Pihama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 4383
•7 December 2022
Pihama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 4383 (7 December 2022)
Division:GENERAL DIVISION
File Number(s): 2022/7812
Re:Shayman William Pihama
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:L M Gallagher, Member
Date of decision: 7/12/2022
Date of reasons: 14/12/2022
Place:Perth
The Reviewable Decision, being the decision of the Delegate dated 14 September 2022, not to revoke the mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
.............[Sgd]...........................................................
L M Gallagher, Member
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – criminal record – unlawful use of motor vehicles – breach of bail conditions – unlawful possession of weapons – Direction No. 90 – primary and other considerations – protection of the Australian community – family violence – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 38-year-old man who came to Australia as a 27-year-old – reviewable decision affirmed/set aside and remitted/set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
Bread Manufacturers of NSW v Evans (1981) 180 CLR 404
BSJ16 v Minister for Immigration & Border Protection[2016] FCA 1181
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration & Border Protection[2018] FCA 7
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kanara and Minister for Immigration and Citizenship [2011] AATA 132
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
MJNN and Minister for Home Affairs [2019] AATA 3205
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
Pavey and Minister for Home Affairs [2019] AATA 4198
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705
Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 89
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
Secondary Materials
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa
under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(2), 5.1(3), 5.1(4), 5.2, 5.2(5), 6, 7, 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.2, 8.1.2(1), 8.1.2(2), 8.3, 8.4, 9, 9.1, 9.2, 9.3, 9.4.
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
REASONS FOR DECISION
L M Gallagher, Member
14 December 2022
The Applicant seeks review of a decision made by a delegate of the Respondent
(the Delegate) on 14 September 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).[1][1]R1, G4.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 23 September 2022,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
[2]R1, G2.
The hearing was held on 15 November 2022 at the Perth Registry. The Applicant was self-represented. The Respondent was represented by Ms Shelli Frankel of Minter Ellison.
The Applicant and the Respondent’s representative appeared via Microsoft Teams.
The Applicant’s witnesses appeared via telephone.background facts
The Applicant is a 38-year-old citizen of New Zealand, who first arrived in Australia in November 2011 when he was 27 years old.[3] The Applicant has left Australia numerous times since his arrival.[4]
[3]R1, G30, p145.
[4]R1, G30.
The Applicant has immediate family in Australia, including his partner, daughter, mother, sister and brother, along with nieces and nephews.[5] The Applicant’s father, sister and half-brother live in New Zealand.[6]
[5]Transcript, pp 10-12.
[6]Transcript, p 11, 72-73.
Applicant’s offending
The Applicant’s criminal history is set out in a National Police Certificate, dated 8 July 2022.[7] The details are recorded as follows:
[7]R1, G6.
Court Court Date
Offence
Court Result
Brisbane Magistrates Court 24/05/2022 Possessing dangerous drugs Conviction recorded Beenleigh Magistrates Court
16/08/2021 Unlawful use of motor vehicles, aircraft or vessels x 4
Breach of bail conditions x 3
Unlawful possession of weapons
Receiving tainted property
Imprisonment: 18 Months concurrent
from 16/08/2021Beenleigh Magistrates Court 17/05/2021 Failure to appear x 3 Imprisonment: 1 Month concurrent Beenleigh Magistrates Court 14/12/2020 Unauthorised dealing with shop goods
(maximum $150)Fine: $300; disqualified 9 months Beenleigh Magistrates Court 12/03/2019 Unlawful use of motor vehicles, aircraft or vessels x 2 Imprisonment: 9 months (suspended for 18) after serving 2 months concurrent Beenleigh Magistrates Court 26/07/2018 Unlawful use of motor vehicles, aircraft or vessels
Possessing dangerous drugs; Possess utensils or pipes etc that had been used;
Going armed so as to cause fear
Failure to appear
Failure to appear x 2
Possession of a knife in a public place or school
Receiving tainted property
Imprisonment 9 months concurrent
Imprisonment: 1 month
Imprisonment: 3 months
Imprisonment: 3 months
Imprisonment: 2 months
Beenleigh Magistrates Court 26/07/2018 Breach of probation order from 26/09/2017. Orders revoked.
Resentenced for original offences:
Unlawful use of motor vehicles, aircraft or vessels
Possession of a knife in a public place
Breach of bail condition x 2
Possess utensils or pipes for use
Receiving tainted property; Possessing dangerous drugs; Unlawful possession of suspected stolen property
Possess utensils or pipes for use
Possess utensils or pipes etc that had been used; Breach of bail condition; Driving a motor vehicle other than as allowed under an interlock condition
Conviction recorded.
Imprisonment: 9 months
Imprisonment: 2 months
Imprisonment:45 days
Imprisonment: 30 days
Imprisonment: 1 month
Imprisonment: 21 days
Imprisonment: 14 days
Beenleigh Magistrates Court 26/09/2017 Possess utensils or pipes etc for use x 3
Breach of bail conditions x 3
Unlawful use of motor vehicles, aircraft or vessels x 2
Failure to appear x 2
Unlawful possession of suspected stolen property
Possessing dangerous drugs
Possession of a knife in a public place or school
Receiving tainted property
Imprisonment: 2 months cumulative; 12 months probation order Richlands Magistrates Court 17/03/2017 Failure to appear x 2 Imprisonment: 2 months, to be suspended for 12 months Richlands Magistrates Court 09/01/2017 Failure to appear Fine: $500; in default imprisonment 10 days Brisbane Magistrates Court 23/02/2016 Contravene direction or requirement No conviction recorded.
Fine $110Southport Magistrates Court
01/02/2016
Failure to appear
No conviction recorded.
Fine $300; in default imprisonment 3 days
On 16 August 2021, the Applicant was sentenced to a term of imprisonment of 18 months by Beenleigh Magistrates Court.[8] The Applicant served 6 months of his prison term before his release on parole on 16 December 2021.[9]
[8]The term of imprisonment related to the convictions for two of the four charges of unlawful use of motor vehicles, aircraft or vessels between 1) 22 June 2019 and 2 February 2020 and 2) 12 December 2019 and 6 June 2020 (R1, G6, pp 41-42; G9, p 56).
For the remaining two charges of unlawful use of motor vehicles, aircraft or vessels and the charge of receiving tainted property, the Applicant received convictions but no further punishment (R1, G6, pp 41-42; G9, p 56).
For the remaining convictions on that date, the Applicant received a term of probation for 24 months after release (R1, G6, pp 41-42; G9, p56).
[9]R2, S29 p 52. The Applicant was held in pre-sentence custody for 63 days between 15 June 2021 to 16 August 2021.
The Applicant also has a history of offences in New Zealand dating from 2002 to 2015, as follows:[10]
[10]R1, G8; R2, S1 p 2; the Applicant was convicted pursuant to relevant provisions of New Zealand legislation, including the Crimes Act 1961 (NZ) and the Summary Offences Act 1981 (NZ).
(a)six counts of disorderly behaviour;
(b)four counts of family violence (including wilful damage, male assaults female and cruelty/ill treatment of animals);
(c)three counts of breach of local liquor ban;
(d)two counts of fighting in a public place;
(e)two counts of breach sentence of community work; and
(f)two counts of breath alcohol level over 400mcgs/litre of breath;
and convictions for single counts of the following offences:
(i)supplies false particulars;
(ii)theft ex car (under $500);
(iii)unlawful takes motor vehicle;
(iv)unlicensed get into motor vehicle;
(v)common assault; and
(vi)shoplifts (under $500).
The Applicant is currently detained at North West Point Immigration Detention Centre.
history of proceedings
On 13 September 2021, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act (the Cancellation Decision).[11] The Visa was cancelled on the basis that the Applicant did not pass the character test in s 501(7)(c) of the Migration Act, by virtue of his having been sentenced to a term of imprisonment of 12 months or more.[12]
[11]R1, G16.
[12]R1 G16, p 86. See Sections 501(6)(a) and 501(7)(c) of the Migration Act.
The notice of visa cancellation invited the Applicant to make representations about why the Cancellation Decision should be revoked.[13]
[13]R1 G16, p 86.
On 14 September 2021, the Applicant requested the Cancellation Decision be revoked under s 501CA of the Migration Act and made representations in that regard.[14]
[14]R1, G17; G18
On various dates that followed,[15] the Applicant made a number of further representations and provided submissions and documents in support of his application for revocation.[16]
[15]Several of the Applicant’s documents are undated.
[16]R1, G19 to G22.
As noted above,[17] on 14 September 2022 a delegate of the Minister made the Reviewable Decision.
[17]See [1] above.
On 23 September 2022, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[18] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[18]R1, G2.
ISSUES
The Applicant does not dispute that he does not pass the character test.[19] The Tribunal, in any event, so finds: s 501(6)(a) and 501(6)(e) of the Migration Act preclude a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more.
[19]Transcript, p 9 [15].
On the basis that on 16 August 2021, the Applicant was sentenced to a term of imprisonment of 18 months,[20] he has a substantial criminal record as defined and therefore does not pass the character test.
[20]See para [7] above.
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[21] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason”[22] why the decision to cancel the visa should be revoked,[23] having regard to the primary and other considerations in Direction No. 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 90).[24]
[21]Direction No. 90 para 5.1(3).
[22]See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].
[23][24]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), (08 March 2021).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ends on 7 December 2022.
legislative framework
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7));…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more; or …(Original emphasis.)
Power to revoke cancellation decision
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No. 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as he then was)[25] made Direction No. 90 under s 499 of the Migration Act. Direction No. 90 commenced operation on 15 April 2021, replacing the previous Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 79), which was revoked on the same date.[26]
[25]From 1 July 2022, the title has changed to Minister for Immigration, Citizenship and Multicultural Affairs.
[26]Direction No. 90 paras 2–3.
The Tribunal notes that the Reviewable Decision was made by the delegate applying Direction No. 90, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[27]
[27]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[28] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 90.[29]
[28]Direction No. 90 para 5.1(4).
[29]Direction No. 90 para 6.
Paragraph 5.1 of Direction No. 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 90 sets out ‘[p]rinciples’ which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on
non-citizens in the expectation that they are, and have been, law-abiding,
will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No. 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[30]
[30]Direction No. 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No. 90, which includes the Tribunal.
The primary considerations in Direction No. 90, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[31]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
[31]Direction No. 90 para 8.
Paragraph 9 of Direction No. 90 sets out other considerations that the decision maker must take into account. It relevantly provides that:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, ‘[t]aking the relevant considerations into account’, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
evidence
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant also called the following witnesses to give evidence:
(a)LR (the Applicant’s mother) (LR);[32]
(b)JP (the Applicant’s sister) (JP);[33] and
(c)JH (the Applicant’s partner) (JH).[34]
[32]LR gave oral evidence via telephone and her statement appears at R1, G24.
[33]JP gave oral evidence by telephone and her statement appears at R1, G25.
[34]JH gave oral evidence by telephone and her statements appear at R1, G23 and A4.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s written submissions, filed 23 September 2022 (A1);
(b)Applicant’s Anger Management Certificate, filed 7 November 2022 (A2);
(c)Applicant’s Drug and Alcohol Certificate, filed 7 November 2022 (A3);
(d)Support letter from JH, filed 7 November 2022 (A4);
(e)Support letter from JH’s father, RV, filed 7 November 2022 (A5);
(f)Support letter from BS, the Applicant’s friend, filed 7 November 2022 (A6); and
(g)A statement from the Applicant’s uncle, WR and a support letter from the Applicant’s friend, KJ, both filed 10 November 2022 (A7).
(h)Respondent’s G Documents, being a 218-page set of documents provided under s 501G of the Migration Act numbered G1 to G44, filed on 12 October 2022 (R1);
(i)Respondent’s Supplementary Documents, being a 221-page set of documents numbered S1 to S57, filed 31 October 2022 (R2); and
(j)Respondent’s Statement of Facts, Issues and Contentions (SFIC) filed 31 October 2022 (R3).
The Tribunal has also considered the letters of support and statutory declarations of the Applicant’s additional family members and friends who did not give oral evidence at the hearing.[35]
[35]See R1, G27, G28; A5, A6, A7.
The Applicant
The Applicant provided evidence in his statements[36] and orally at hearing.[37]
[36]The Applicant’s statements appear at R1, G17 to G22.
[37]Transcript, pp 10-73.
The Applicant said that he had lived in New Zealand until he came to Australia in 2011.[38]
[38]Transcript, p 10 [25]-[30].
The Applicant said that he was brought up by his mother LR,[39] who lives in Perth.
[39]Transcript, p 10 [40].
The Applicant said that his father lives in New Zealand, that he does not have a relationship with him and that his father is involved in gangs.[40] The Applicant said it had been at least 15 years since he had had any communication with his father.[41]
[40]Transcript, p 11 [40]-[45].
[41]Transcript, p 12 [5].
The Applicant said he had worked in scaffolding in New Zealand prior to coming to Australia.[42] The Applicant said he had all of his Australian scaffolding tickets (as well as his elevating work platform, forklift tickets, work at height tickets, confined space tickets),[43] which he would need to resit if he were to return to New Zealand to work there.[44] The Applicant said that if he was required to return to work in New Zealand, it wouldn’t be the same (without his daughter and family) and he would go “downhill.”[45]
[42]Transcript, p 11 [5]-[10].
[43]Transcript, p 62 [45]. See R1, G18, p107.
[44]Transcript, p 11 [20].
[45]Transcript, p 65 [30].
The Applicant said that when he first came to Australia in 2011, he came with his then partner and was working on a fly-in, fly out basis.[46] The Applicant said that his mother LR, uncle WR and sister JP had come to Australia a couple of years prior.[47]
[46]Transcript, p 12 [15]-25].
[47]Transcript, p 12 [35]-[40].
The Applicant said he had returned to New Zealand 13 times between coming to Australia in 2011 and 2015, to visit his ex-partner’s father.[48]
[48]Transcript, p 11 [30]-[40].
The Applicant said that by 2015, he had broken up with his ex-partner and relocated to Queensland, where he got a scaffolding job.[49]
[49]Transcript, p 12 [25]-[35].
The Applicant said that in 2016, he “got into drugs”, “hung around the wrong crowd”, and “quit his job”.[50] The Applicant said that this was the first time he had taken drugs in his life,[51] other than having tried marijuana.[52]
[50]Transcript, p 13 [10].
[51]Transcript, p 13 [15].
[52]Transcript, p 34 [40].
When asked what had led to his earlier convictions of failure to appear or contravene direction on requirement,[53] the Applicant said that:
(a)he was on drugs;
(b)drugs had changed him and turned him into another person;
(c)he didn’t think; and
(d)he was hanging around the wrong people.[54]
[53]In 2016 and 2017. See [6] above and R1, G6, pp 45-46.
[54]Transcript, p 13 [20]-[30].
When asked to detail the facts, nature of and reasons for the offences for which the Applicant was convicted on 26 September 2017 and received a probation period of 12 months,[55] the Applicant said that:
(a)he was on drugs;
(b)he was hanging around the wrong people; and
(c)breaking up with his partner had changed him.[56]
[55]See para [6] above and R1, G6, pp 44-45.
[56]Transcript, p 14 [5]-[15].
As to his offence of receiving tainted property on 19 November 2016,[57] the Applicant said he had purchased a stolen motor vehicle and had been caught in possession of the key.[58] The Applicant said that he had purchased the motor vehicle knowing it was stolen, and that he was on drugs at the time and just not thinking.[59]
[57]See Bench Charge Sheet at R2, S5, p 5.
[58]Transcript, p 15 [5]-[15].
[59]Transcript, p 15 [20]-[25].
The Applicant gave very similar explanations for his offences of having unlawfully used a motor vehicle on 26 September 2016,[60] other similar instances of unlawful possession of a motor vehicle, a number of charges of possessing utensils or pipes (for use or that had been used), going armed so as to cause fear and possessing dangerous drugs,[61] unauthorised dealing with shop goods[62] on 14 December 2020[63] and his most recent offences which led to his sentence of imprisonment.[64]
[60]Transcript, p 15 [30]-[45]. See Bench Charge Sheet at R2, S9, p 15.
[61]Transcript, p 16 [5]-[25].
[62]The Applicant stole petrol from Coles Express: R2, S25, p 45.
[63]Transcript, p 18 [15]-[30].
[64]Transcript, p 19 [30]-[40].
The Applicant said that at the time, he did not consider the impact of his offending on the community and that he did not work at all from 2016 onwards.[65] The Applicant said that generally, he was under the influence of drugs (mainly methamphetamine)[66] when he offended and could not really remember the facts of his offending, “only bits.”[67]
[65]Transcript, p 16 [15]-[25].
[66]Transcript, p 18 [40].
[67]Transcript, p 18 [10]; [30]-[35]. See also Transcript, p 20 [10]-[15].
As to his charge of going armed so as to cause fear,[68] where he was recorded by police as having exited a vehicle brandishing a Japanese style Katana sword,[69] the Applicant said that he had the sword on his lap in the car, that it wasn’t a weapon as described, it wasn’t sharp and rather it was “just a pretty looking ornament” that someone would have in their house.[70]
[68]On 19 January 2018. R1, G6, p 44; Sentencing Schedule at R2, S14, pp 23-24.
[69]R2, S14, p 23.
[70]Transcript, p 17 [10]-[20]. Similarly, the Applicant described the pocketknife in his possession relating to his offence on 20 July 2020, as “only a pocketknife with tools and that on it”. He said he is not sure why he was charged and that it was “unfair” (Transcript, p 20 [30]). The Applicant also said that he didn’t think he’d “get done” for possessing capsicum spray on 20 July 2020 (R2, S23, p43) because “you buy it out of a shop” and he “didn’t do nothing [sic] with it” (Transcript, p20 [45] and p21 [5], [15]).
When taken to his conviction of unlawful use of motor vehicles or aircraft or vessels on 12 March 2019, the Applicant said that he was buying stolen cars all the time for his own transport.[71] The Applicant said that he should have used public transport to get around; however, he wasn’t thinking at the time,[72] nor was he thinking about:
(a)his repeated offending,
(b)the repercussions of his actions,[73] or
(c)the harm caused by offending whilst on drugs.[74]
[71]Transcript, p 17 [25]-[30].
[72]Transcript, p 17 [35].
[73]Transcript, p 17 [45].
[74]Transcript, p 18 [5].
The Applicant said that although he had not worked since 2016, he could afford to purchase the stolen vehicles as he had “heaps of help getting money” from people.[75] The Applicant said that the people who gave him the money to purchase the vehicles did not know that the vehicles were stolen, nor were they aware of his previous convictions.[76]
[75]Transcript, p 19 [45] and p20 [5].
[76]Transcript, p 20 [5].
When asked, the Applicant said that his having been incarcerated has had a big impact on his life,[77] that impact being his realisation of how “bad” and “stupid” his behaviour and drug use was.[78] The Applicant said that had missed his daughter’s birth while he was in jail,[79] that having a daughter has changed him,[80] that he cannot support his family and he has let them down, and his partner is going “downhill.”[81]
[77]Transcript, p 21 [30].
[78]Transcript, p 21 [30]-[40].
[79]Transcript, p 21 [45].
[80]Transcript, p 22 [5].
[81]Transcript, p 22 [5].
At the hearing, the Applicant said that he “now” accepts that any offending (including his) may have an impact on or cause harm to the Australian community.[82] The Applicant also said that he believes he has not committed serious crimes because:[83]
Most of them are just breaches and not going to court, and then, there’s been no violence, and none of them, like the cars or stuff like that…
[82]Transcript, p 23 [25]; p 25 [15].
[83]Transcript, p 25 [20]-[25].
The Applicant said that having had a sword or capsicum spray in his possession were not serious offences because the sword was an “ornament” he had “to show mates” and the capsicum spray was to “show off” and “wasn’t [sic] for nothing.”[84]
[84]Transcript, p 25 [25]-[30].
As to his comment in his interview with the Queensland Department of Child Safety, Youth Justice and Multicultural Affairs (Child Safety) that he “shouldn’t be in jail it’s stupid,”[85] the Applicant said that it was wrong for him to say this, he wasn’t thinking at the time, and he just wanted to get his daughter.[86]
[85]R2, S48, p 195.
[86]Transcript, p 24 [20]-[25].
As to his comment in the same interview that:[87]
“…I just got stupid, had a couple [sic] outstanding court issues and didn’t show up so they put me in jail”
the Applicant said that he accepted that was an incorrect statement,[88] and it was incorrect
for him to tell Child Safety that he didn’t have much of a (criminal) history.[89]
[87]R2, S48, p 195.
[88]Transcript, p 24 [45].
[89]Transcript, p 25 [10].
When asked, the Applicant also said that it was incorrect that he had stated in his Individual Re-Entry Plan[90] that he had “no issues with substance abuse” and that he had “denied past substance issues.”[91]
[90]R2, S36, p 155.
[91]Transcript, p 36 [35]-[45].
When asked about his driving offences, the Applicant said that he continued to drive whilst his licence was suspended in order to see friends,[92] that he “just didn’t think straight”,[93] that he would have been putting people at risk, he should not have been driving but he “never sped.”[94]
[92]Transcript, p 26 [20].
[93]Transcript, p 27 [10]-[15].
[94]Transcript, p 27 [20].
Regarding the Interlock device that the Applicant was required to have in his vehicle from 2016,[95] the Applicant said he did drink and “got done [for] drink driving” when he was working, but hasn’t had a drink for the last five years.[96] The Applicant later added that he had probably “a beer, or a couple of beers” in a year since that time,[97] but had not drunk alcohol since his incarceration in 2017.[98]
[95]R2, S19, p 32.
[96]Transcript, p 27 [45] and p28 [10].
[97]Transcript, p 37 [30]-[40].
[98]Transcript, p 38 [10]-[15].
When asked about his New Zealand criminal history,[99] the Applicant said the two charges resulting from traffic convictions for drink driving were “just stupid.”[100] The Applicant made a similar comment about his similar conduct in Australia:[101]
…it was stupid because…all I got was a fine and that…so I really didn’t learn my lesson… I’ve learned my lesson now, getting locked up for this amount of time.
[99]R1, G8. Between 2002 and 2015, the Applicant was convicted of 25 offences, including one in 2015 whilst he was visiting New Zealand after relocating to Australia.
[100]Transcript, p 46 [10].
[101]Transcript, p 46 [15]-[20].
As to his having denied having a criminal history in New Zealand and his advice that he had spent most of his life in Australia,[102] the Applicant maintained his convictions were only minor, not of a serious nature and that he “only got community service and fines” and supervision orders.[103] The Applicant said that he now believes it is true that he has a criminal history in New Zealand.[104]
[102]Transcript, p 47 [20].
[103]Transcript, p 47 [20]-[40].
[104]Transcript p 48 [5].
When asked, the Applicant said that he had stated to the Department of Home Affairs (the Department) that he had “never drunk alcohol in his life”,[105] because he had never received a conviction in relation to alcohol use. The Applicant also accepted that this was an incorrect statement.[106]
[105]R1, G41, p 183.
[106]Transcript, p 38; p 39.
When taken to the record of his having been found in possession of “bupe” (suboxone) in detention on 28 March 2022,[107] the Applicant said he was given “a little bit” by an inmate who was a friend and although he had intended to try it, he never did.[108]
[107]R1, G32, p 150. Suboxone, a combination medication containing buprenorphine and naloxone, is one of the main medications used to treat opioid addiction.
[108]Transcript, p 30.
As to his never having declared his criminal convictions to the Department on his incoming passenger cards,[109] on 13 return overseas trips, the Applicant reiterated his understanding that:
(a)he thought he only had to do so if he had been to jail;
(b)he had misunderstood the question; and
(c)he did in fact have a criminal record at that time.[110]
[109]R1, G15.
[110]R1, G22, p 128; Transcript, p 34.
The Applicant said that he had been doing “SMART Recovery” while in detention,[111] on and off for about three and a half months.[112]
[111]Transcript, p 35.
[112]Transcript, p 35.
The Applicant said that he had last used drugs about 20 months ago[113] and had stopped upon learning he and his partner JH were having a baby.[114] The Applicant said that he had not used drugs in prison or in immigration detention.[115]
[113]Transcript, p 37 [10].
[114]Transcript, p 37 [15].
[115]Transcript, p 37 [20].
The Applicant said that if he were released into the community, he’d never “stuff up again” or “go near drugs again.”[116] The Applicant said that with his family’s support, he would not take drugs in the future because:[117]
I’ve done all the courses and that, and the impact of me being locked up this long, and I’ve got to focus on my daughter. I’ve got to focus on work, and I’ve got the opportunity to go back to work and raise my daughter and be with my family.
[116]Transcript, p 22 [10].
[117]Transcript, p 37 [25]. See also Transcript p 22 [10]-[15].
The Applicant said that he had undertaken the drug and alcohol and anger management courses[118] to keep himself busy, to try to better himself and to stop himself from relapsing.[119] The Applicant said that from these courses, he had learned ways around getting angry and violent and how to avoid hanging around people who use drugs.[120]
[118]See related certificates: A2, A3. See also R1, G18, p 106.
[119]Transcript, p 40 [15]-[30].
[120]Transcript, p 40 [15]-[30].
The Applicant said that he had also completed the Explore Program (which was about drugs, alcohol, violence, children, anger management),[121] an accounting course[122] and a parenting guidelines course, the latter of which he failed.
[121]R1, G37, p 170. Certificate of Completion dated 11 November 2021; Transcript, p 42 [15].
[122]Transcript, p 41 [45].
As to why he had been resistant to engaging in alcohol or drug interventions earlier (in 2019),[123] the Applicant said that it was because he was using drugs at this time.[124]
[123]R1, S33, p 94; Transcript, p 43 [45].
[124]Transcript, p 44 [5].
The Applicant said that he had seen a psychologist in jail to address his substance use, however, in detention he gets to see a psychologist only once every couple of weeks.[125]
The Applicant said that through working with a psychologist, he had learned strategies to stay away from drugs such as keeping busy with work, going to the gym and other hobbies and how to avoid situations and people involving alcohol and drugs.[126][125]Transcript, p 36 [10]-[15].
[126]Transcript, p 36 [25]-[30].
When asked what steps he would take to address his drug dependency if released into the community, the Applicant said that he has work and housing in Perth and would be taking drug tests.[127] The Applicant said he would work in his uncle’s security business.[128]
[127]Transcript, p 44 [45].
[128]Transcript, p 63 [5]-[15].
The Applicant said that despite the court providing him significant leniency in relation to his offending he continued to abuse substances and commit further offences and he didn’t learn his lesson until he got “locked up.”[129]
[129]Transcript, p 45 [5].
The Applicant said that he doesn’t want to return to New Zealand because he has “nothing” there and his dad’s side of the family is New Zealand is “just gangs.”[130] The Applicant said that if he had remained in Perth his drug use “never would’ve happened” and he has “no one to blame except for himself.”[131]
[130]Transcript, p 22 [25].
[131]Transcript, p 22 [45].
The Applicant said that he had lost contact with his family in Perth for about four years when he broke up with his ex-partner, started taking drugs and moved to Queensland but he now has a good relationship with them.[132] The Applicant said his mum has always been in his life.[133]
[132]Transcript, p 60 [15]-[25]. See R1, G18, p100.
[133]Transcript, p 61 [30]-[45].
The Applicant said his relationship with JH probably commenced in 2018. The Applicant said that their relationship was “on and off,” “up and down” but they always stayed together.[134] The Applicant said he calls JH most days[135], that in 2019 they were engaged to be married[136] and to his knowledge they are still together.[137] The Applicant said that JH is struggling with his being in detention and that she needs his support.[138]
[134]Transcript, p 56 [45], p57 [5].
[135]Transcript, p 56 [5].
[136]Transcript, p 56 [10]. See R1, G22, p126.
[137]Transcript, p 56 [15].
[138]Transcript, p 56 [20]-[25].
The Applicant said that he knows that his infant daughter is residing with KJ and keeps in touch with his daughter through Child Safety.[139] The Applicant said that his daughter had been taken into the care of Child Safety “because of [JH’s] family circumstances”,[140] those circumstances being her young age and family drug abuse.[141]
[139]Transcript, p 50 [10].
[140]Transcript, p 50 [20].
[141]Transcript, p 50 [40].
The Applicant said that it was correct that his partner left their daughter at the hospital and checked herself out after their daughter’s birth.[142]
[142]Transcript, p 50 [45].
The Applicant said that even though he intends for JH to reside with him and their daughter in Perth[143], he has concerns for JH’s wellbeing[144] and he intends to obtain sole custody of their daughter,[145] the reason being:[146]
Just in case, just in case because she’s been out this amount of time and she hasn’t been making many good steps to getting our daughter back. Like, she’s been out there and she hasn’t been going to visits and stuff like that, so I’m going to get custody of my daughter just in case I do get out and me and my partner do - she changes her mind to come back to me.
And further:[147]
MS FRANKEL: You stated a few moments ago that - well, it’s a bit unclear at least from my understanding as to whether you are in a relationship with [JH] or whether you’re looking to potentially reconcile a relationship if you were released. Could you elaborate on that a bit further?‑‑‑
APPLICANT: It’s hard to say. I’ve been locked up 18 months, I don’t know what she’s been doing in that [sic] and it looks like she hasn’t been taking steps to [sic] our daughter, so I just want to focus on our daughter mainly when I get out there, that’s it. So, like, she’ll either move to Perth with me or - she says she will but it’s a big difference when I get out to see what happens.
[143]Transcript, p 52 [5]-[10].
[144]Transcript, p 70 [25]-[30].
[145]Transcript, p 51 [45].
[146]Transcript, p 52 [15]-[20].
[147]Transcript, p 55 [15]-[20].
The Applicant said that JH “blames it on me,” “that I am not out” (of prison) “but she is not trying at all…she tells me what I want to hear but it seems it is not happening…that’s why I want custody myself.”[148] The Applicant said that JH “is acting like it is all my fault because I am in here.”[149]
[148]Transcript, p 71 [15].
[149]Transcript, p 72 [10].
The Applicant said that while he has told JH he intends to seek sole custody of their daughter, he is not entirely sure whether she understands that to be the case.[150]
[150]Transcript, p 72 [10].
The Applicant said that Child Safety has advised him that that he “can’t do much” (to apply for custody) until he gets out of detention.[151] When asked, and noting his criminal history, the Applicant said that he would now be in a position to provide for his daughter’s needs given the change in him following being locked up, and his having family support, work and housing upon release.[152]
[151]Transcript, p 53 [30].
[152]Transcript, p 54 [5].
The Applicant said if released, he would firstly go see his daughter in Queensland and then move to Perth,[153] staying in daily phone contact with his daughter until he gets custody of her.[154] The Applicant said that so long as he keeps working and drug-testing, he intends to remain drug and alcohol free to ensure that he can provide for his daughter’s needs.[155]
[153]The Applicant said this was the case even though JH provided a letter indicating that she had accommodation for the Applicant in Queensland: A4; Transcript, p 63 [45], p 64 [5].
[154]Transcript, p 54 [15]-[35].
[155]Transcript, p 54 [45].
The Applicant said that he did not think returning to Queensland with JH might give rise to him engaging in further offending conduct or relapsing into drugs as he has learned his lesson and would stand to lose everything.[156]
[156]Transcript, p 64 [25], [45] and p 65 [5].
The Applicant said that JH has agreed to move to Perth with him and it was “hard getting her to move.”[157] The Applicant said that from his conversations with JH he knows she would not come to New Zealand if he were to return.[158]
[157]Transcript, p 57 [30].
[158]Transcript, p 67 [25].
The Applicant’s family
The Tribunal heard evidence from the Applicant’s mother LR, sister JP and partner JH, all of whom had earlier provided statements.[159]
[159]R1, G23, G24, G25; A4.
LR – the Applicant’s mother
LR gave evidence that:[160]
(a)She did not have contact with the Applicant for some time prior to his incarceration. The Applicant took a different path that she probably wouldn’t agree with.
She recommenced her relationship with the Applicant around Christmas 2021, after he reached out and she found out where he was.(b)She has discussed with the Applicant that if released, he could live with her and work in her brother’s (the Applicant’s uncle’s) business. LR said that if the Applicant were permitted to stay in Australia, she would support him with whatever was needed, including financial and emotional support and somewhere to stay.[161]
(c)She is unsure of the full story regarding the Applicant’s partner; however, she is agreeable to JH and their baby living in her home.
(d)She has not spoken with JH and understands her daughter JP has reached out to her on Facebook. She understands that JH has herself spent a short time in jail.[162]
[160]R1, G24; Transcript, pp 81-84.
[161]Transcript p 45 [30]-[35]. See also R1, G44 [22].
[162]Transcript, p 84 [15].
JP – the Applicant’s sister
JP gave evidence that:[163]
(a)She is very close with all her siblings, including the Applicant, whom she speaks to at least weekly.
(b)She did not have much contact with the Applicant during the period he lived on the Gold Coast as the Applicant was caught up in his own world and “not the best” at contacting her.
(c)She does not have too much information regarding the Applicant’s offending.
(d)She has discussed the Applicant’s future plans with him, including his moving to Perth and working in an administrative role in the family business.
(e)She has room at her home and is willing to accommodate the Applicant if required.
(f)She and her family want the Applicant to be able to live a normal and healthy life. Their family has a very family-oriented lifestyle.
(g)She has helped the Applicant a little with what he needs to do to seek custody of his daughter.
(h)She does not know too much about the Applicant’s partner but has reached out to her on Facebook, where they have exchanged “a few messages here and there.”
[163]R1, G25; Transcript, pp 85-87.
JH – the Applicant’s partner
JH gave evidence that:[164]
[164]R1, G23; A4; Transcript, pp 74-80.
(a)She does not remember when she first met the Applicant, but they were in an on again-off again relationship until they entered into an official relationship in 2020 or 2021.
(b)They were not “properly” engaged at any point in time.[165] They have talked about marriage, and it is one of their dreams.
(c)They are still in a relationship, which they maintain through social media and talking on the phone. They try to speak every day.
(d)Their relationship has been a challenge and they are constantly having rough patches, including the Applicant being locked up and JH losing her parental rights over the baby. She lives in Queensland and is not currently working.
(e)She sees her daughter maybe once or twice a week, when she can.
(f)She doesn’t have transport or a lot of support to enable more regular visits with her daughter.
(g)She is “absolutely” taking steps to try and gain custody of her daughter, which she is doing mostly by herself, including a parenting class where they teach her how to take care of her daughter’s needs.
(h)She has discussed moving to New Zealand with the Applicant if he were required to leave, and they want to stay in Australia.
(i)She lives with her mum and dad, when they are both around. At home, she does her own thing and keeps to herself.
(j)Members of her household sometimes use substances; however, they do not use them in the home.
(k)She has previously had substance abuse. She last used a substance “three weeks ago” but no longer uses substances regularly. She avoids certain people and focuses on her home and her daughter to help her refrain from using substances.
[165]JH’s statement reads “I am engaged to Shayman Pihama” (R1, G23, p 131).
discretion to refuse to grant the visa
Having determined the Applicant does not pass the “character test,” the Tribunal must determine whether the discretion should be exercised to revoke the Cancellation Decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 90, there is another reason why the Cancellation Decision should be revoked.[166]
[166]Pursuant to s 501CA(4)(b)(ii) of the Migration Act.
The Applicant contends that the best interests of his minor child weighs strongly in favour of revocation and outweighs any other primary consideration going against revocation.[167]
[167]A1 [3].
The Respondent is of the view, however, that the expectations of the Australian community and the protection of the Australian community weigh heavily against revocation and outweigh the considerations that fall in the Applicant’s favour, being the best interests of the Applicant’s minor child and the strength, nature and duration of the Applicant’s ties to Australia.[168]
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 90)
[168]Transcript, p 90.
Paragraph 8.1(1) of Direction No. 90 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No. 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (para 8.1.1 of Direction No. 90)
Paragraph 8.1.1(1) of Direction No. 90 provides:[169]
[169]See also Direction No. 90 para 8.1(2)(a).
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(Emphasis added).
The Applicant made a number of submissions regarding the protection of the Australian community.[170] The Tribunal has considered these submissions and is of the view that the following submissions specifically relate to the nature and seriousness of the Applicant’s conduct and its weighing in favour of revocation, for the following reasons:[171]
(a)
The Applicant’s offending in detention relating to the possession of suboxone and for which the Applicant was convicted but not punished, is not comparable (in seriousness) to the use of illicit substances which led to his (other) offending.
The Applicant’s offending relating to suboxone is demonstrative of his attempts to abstain from illicit substances.
(b)The type of the Applicant’s offending, such as failing to comply with bail conditions and stealing a motor vehicle could be considered serious. However, it is unlikely that this type of conduct has the potential to cause physical, psychological and/or financial injury to members of the Australian community.
[170]A1.
[171]A1 [2], [5].
The Respondent contended that the nature and seriousness of the Applicant’s conduct should be viewed as very serious, and weighs heavily against revocation, because: [172]
[172]A1, [20]-[26].
(a)The Applicant has been convicted on seven occasions of Unlawful use of motor vehicles aircraft or vessels and most recently, on 16 August 2021, was sentenced to a term of 18 months imprisonment for two of these offences.[173] The offences evidence an ongoing disregard for the community and Australian laws.
[173]The offences occurred on 19 November 2016, between 25 September 2016 and 4 February 2017, between 1 May 2018 and 4 May 2018, between 13 October 2018 and 17 November 2018 and on 29 December 2018, between 22 June 20189 and 2 February 2020 and 12 December 2019.
(b)
As incarceration is the penalty of last resort in the sentencing hierarchy, this sentence of imprisonment is indicative of the seriousness of the offences.
Where a court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the objective seriousness of the offences involved.[174] The Applicant’s conduct should be considered serious, noting the sentence imposed by the court.[175]
[174]See for example, Pavey and Minister for Home Affairs [2019] AATA 4198 at [44].
[175]Para 8.1.1(c) of Direction No. 90.
(c)The serious nature of the Applicant’s offending is demonstrated by the fact that drugs have been involved in a number of offences. In particular, the Applicant was charged with possessing amphetamine drug and buprenorphine drug, on various occasions and utensils for the use of drugs.[176] The Tribunal has previously recognised that drugs ‘cause[s] real and serious harm to the Australian community.’[177] Exacerbating this conduct is that the Applicant has continued to attempt to possess drugs whilst being detained in immigration detention, evidencing a continued disregard for the law and a lack of rehabilitation.[178] The Applicant has also been found in breach of his bail conditions on numerous occasions, some of which were as a result of returning positive urine samples for ongoing drug use.[179]
[176]See R2, S2, p2; S3, p3; S4, p4, S5, pp6-7; S7, p11; S12, pp20-21.
[177] Kanara and Minister for Immigration and Citizenship [2011] AATA 132 at [32] per SM Toohey.
[178]R2, S2, p2; S3, p3.
[179]R2, S38, p164; S44, p186.
(d)The Applicant committed an extensive number of driving offences, which adds to the overall seriousness of the Applicant’s criminal conduct.[180] The Tribunal has previously cited the seriousness of driving related offences such as those committed by the Applicant.[181] In particular, as noted by Senior Member Evans in MJNN:
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community.’ Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(emphasis added).
(e)Since 2016, there has not been a calendar year in which the Applicant has not committed an offence, and there has been no identifiable period in which the Applicant has refrained from offending. The Applicant’s more recent criminal conduct demonstrates an escalation in the seriousness of the offending.[182]
(f)The Applicant has continually been charged with failure to appear and breach of bail conditions, evidencing a lack of regard for Australian laws and the community.
The Applicant’s history before the courts show that he had previously been treated with some leniency in an attempt to allow him to reform his offending conduct, noting the Applicant has been given fines and suspended sentences in the past.
Despite the court’s leniency in these circumstances, the Applicant has continued to offend, failing to appear in accordance with undertaking and breached bail conditions. The Applicant’s repeated offending indicates an inability to distinguish right from wrong, which may have potentially catastrophic consequences.(g)The Applicant has provided false information to the Department on at least 13 occasions, having falsely claimed that he did not have any criminal convictions in his incoming passenger cards.[183]
[180]Paragraph 8.1.1(d) of Direction No. 90. See R2, S17, p 30; S19, p32; S22, p 41; S26, p 46 and S28, p 50).
[181]Citing MJNN and Minister for Home Affairs [2019] AATA 3205, at [54]-55] per Senior Member Evans; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45] per Senior Member Tavoularis; Wang and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 89 at [7] per Senior Member Bell; Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366 per Deputy President Kendall (at [54]); Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16] per Member Webb; Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20] per Senior Member Poljak; Berryman and minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421 at [43]-[45] per Deputy President Boyle.
[182]Paragraph 8.1.1(d) of Direction No. 90.
[183]Paragraph 8.1.1(f) of Direction No. 90. See R1, G15, pp 72-84.
The first primary consideration, Protection of the Australian community from criminal or other serious conduct,[184] requires the decision-maker to look at “the non-citizen’s criminal or other conduct to date” (emphasis added).[185]
[184]Para 8(1) of Direction No. 90.
[185]Direction No. 90, para 8.1.1(1). For completeness, the Tribunal notes there is no “other” conduct identified by the Tribunal as relevant.
In assessing the Applicant’s offending conduct against the considerations identified in para 8.1.1 of Direction No. 90, the Tribunal has regard to the fact that the Applicant has been in Australia for 11 years, having come to Australia as a 27-year-old. In that time, the Applicant has engaged in serious offending on a frequent basis. The Tribunal notes the facts and circumstances of the Applicant’s offending and the conviction imposed.[186]
[186] The Applicant’s offending conduct is briefly detailed at paras [6]-[8] above.
The Tribunal has regard to the fact that the Applicant driving offences are clearly serious crimes against other road users,[187] who in the context of the Applicant’s offending conduct are vulnerable members of the community.[188] The Tribunal notes that the Applicant’s evidence was that he was under the influence of drugs while he committed these offences, which increases the potential for catastrophic harm. The Applicant takes a different view, namely that his offending “could be serious” but is “unlikely” to cause injury, or at its highest “may” cause harm to the community.[189] The Tribunal finds this view unsettling and disturbing.
[187]See cases cited at fn 184 and Senior Member Evans comments in MJNN at [101(c)] above.
[188]Paragraph 8.1.1(1)(b)(ii) of Direction No. 90.
[189]See [56] above.
Even more concerning to the Tribunal is the Applicant’s evidence at hearing that he has not committed serious crimes because he does not consider his crimes are violent, that he did not consider his sword to be a weapon and rather, it was ornamental, and the capsicum spray was to “show off.” Similarly, the Applicant did not consider his failures to appear or his breaches of orders to be serious and could not recall many details of his offending due to his methamphetamine use at that time.
The Applicant’s offending also involved conduct that formed the basis of the finding that he did not pass the character test[190] and resulted in an 18-month term of imprisonment.[191]
For completeness, a prison sentence is the last resort in the sentencing hierarchy and in the Applicant’s case, follows being afforded leniency on several occasions and indicates the overall seriousness of the Applicant’s offending.
[190]Paragraph 8.1.1(1)(b)(iii) of Direction No. 90. See [10] above.
[191]Paragraph 8.1.1(1)(c) of Direction No. 90.
Considering the Applicant’s offending history as a whole, the Tribunal is of the view that there are clear indications of a high frequency of offending, particularly since 2016 and offending that is increasing in seriousness such that the cumulative effect is to be viewed seriously.[192]
[192]Paragraph 8.1.1(d) and 8.1.1(1)(e) of Direction No. 90.
The Applicant did not disclose his prior offending on 13 occasions in his incoming passenger cards,[193] having falsely claimed that he did not have any criminal convictions. The Tribunal finds the Applicant’s explanation that he thought he only had to do so if he had been to jail, and that he had misunderstood the question to be unsatisfactory, in circumstances where the Applicant had a lengthy criminal history over a number of years. In any event, ignorance of the law is no excuse, and the onus was on the Applicant to ensure that his conduct was at all times lawful.[194]
[193]Paragraph 8.1.1(f) of Direction No. 90.
[194]See, for example Ruffin v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3145 [45] (Member R Maguire), referencing a long-held principle of Australian law. See also Iannella v French (1968) 119 CLR 84; Ostrowski v Palmer (2004) 218 CLR 493.
In summary, for the reasons given above, the Tribunal is satisfied that having regard to the evidence to which the sub-paras of 8.1.1 of Direction No. 90 are relevant, the nature and seriousness of the Applicant’s conduct is such that it ought to be viewed seriously and weighs strongly against the revocation of the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 90)
Paragraph 8.1.2 of Direction No 90 states, in part:[195]
[195]See also Direction No. 90 para 8.1(2)(b).
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
(Emphasis added.)
The Tribunal in CZCV and Minister for Home Affairs[196] (CZCV) summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) [2015] FCA 705 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “… there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[196][2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 90. Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.
This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[197]
[197]Para 8.1.2(2)(a) of Direction No. 90.
The Applicant submitted that it is unlikely that his offending conduct, particularly his failure to comply with bail conditions and his stealing a motor vehicle has the potential to cause physical, psychological and/or financial injury to members of the Australian community.[198] At hearing, the Applicant said that he “now” accepts that any offending (including his) may have an impact on or cause harm to the Australian community,[199] however he did not elaborate on the type of harm that could be caused or how this would impact a member of the community or the community at large. As with the Applicant’s views on whether or not his offending conduct was serious in nature or not, the Tribunal finds the Applicant’s evidence on this matter somewhat contradictory.
[198]A1 [5].
[199]See [56]
The Respondent submitted that the nature of the harm to the Australian community should the Applicant commit similar offending is incredibly serious.[200] The Respondent submitted that noting the Applicant’s past offending which has included unlawful use of a motor vehicle aircraft or vessel, drug offences, weapon offences and traffic offences, the potential harm to individuals and the Australian community is serious should he engage in such conduct again.[201] The Respondent submitted that such offending causes substantial harm to the community, both in terms of the mental and physical impacts of drug use and dangerous traffic offences and the significant financial cost to the community associated with the need for emergency services and law enforcement activities.
[200]R3 [28].
[201]R3 [28].
Should the Applicant commit further similar offences, this would clearly result in further harm that may cause considerable physical, psychological and economic harm to members of the Australian community.
As such, the Tribunal finds that the nature of the harm to individuals or the Australian community if the Applicant were to engage in further criminal or other serious conduct to be objectively high.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[202]
[202]Para 8.1.2(2)(b)(i) of Direction No. 90.
The Applicant’s likelihood of reoffending
The Applicant contended there is a low likelihood of him engaging in further criminal or other serious conduct and made the following submissions in support:[203]
[203]A1 [1], [4], [6] – [8].
(a)
The Applicant has become a father, which has had a great impact on him.
The Applicant resolves to be an example for his daughter, particularly given that she has been placed into foster care. This serves as a protective factor against reoffending.
(b)
If the Applicant were allowed to remain in Australia, he would have housing, family support and paid employment (which would require him to be drug free).
The Applicant did not have these factors available to him prior to his offending in 2018 and did not have the support of his family at the time of his offending.
(c)The Applicant was released on parole following the parole board finding he was not a risk to the community.[204]
(d)The Applicant’s behaviour whilst in prison was such that he was classified as “low security”, which was indicative of him being a “model prisoner” who required a lower level of structured supervision.
(e)While the Applicant has a lengthy criminal record, his more recent offending was the first time he was sentenced to a term of imprisonment, where part of the purpose is rehabilitation. It appears from the Applicant’s behaviour in prison that he had rehabilitated and that he is unlikely to reoffend.
[204]See R2, S38, p 164 and S39, p166. The Applicant contravened the parole order shortly after.
The Respondent contended that the risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct, is a “very real ongoing risk” given the following:[205]
[205]R3 [28], [29].
(a)The Applicant has previously been treated with some leniency by the court, having received suspended sentences and corrective orders; notwithstanding, the Applicant continued to offend and breached his corrective orders as well as his bail conditions indicating a lack of respect for Australian laws. In this respect, the Applicant was consistently non-compliant with his parole conditions noting:[206]
[206]R2, S39, p 167.
[the Applicant] was released from custody three weeks ago and for the greater part of this time, his whereabouts have been unknown. He has been unable to comply with his Parole Order by contravening a number of conditions of his Parole Order including failing to report, failing to reside where approved or notify of an updated address, engaging in illicit drug use, and failing to comply with a curfew. All efforts to locate [the applicant] have been exhausted with no further avenue available to make contact.
(Emphasis added).
(b)While the Applicant has provided some supporting statements, including from his sister, as well as vague references to the opportunity of employment and supporting company documents, it is not clear what authority the Applicant’s sister has to make an offer of employment, other than holding a single share in the business for which the offer stands.[207] No formal offer of employment has been submitted as evidence. These factors are unlikely to serve as a protective factor in the community.
(c)Although the Applicant has indicated he will live with his sister if his visa cancellation is revoked, there is evidence to suggest that this support is contingent on the Applicant relocating to Perth;[208] additionally, the available evidence indicates that the Applicant’s relationship with his sister has only recently been reconciled.
(d)The Applicant has also expressed an intention to continue his relationship with his partner in Queensland, as well as establish a relationship with his child who resides in the same state. This may indicate an intention to return to Queensland, where the Applicant has conducted his offending in the past.[209]
(e)The Applicant’s past encounters with the law, the possibility of his visa being cancelled, and the presence of family and community, have not previously deterred the Applicant from offending, nor encouraged him to reform his criminal conduct. The Applicant has always enjoyed an extended network of family support in Australia, including immediate family. However, the Applicant’s residence in Australia has been characterised by frequent interactions with police and the law. This indicates that even if the Applicant finds himself in a stable and supportive environment going forward, this is unlikely to prevent him from reoffending.
(f)
Further, the Applicant has continued to display a disregard for Australian laws by engaging in criminal conduct whilst in immigration detention.[210] This strongly contradicts any evidence that the Applicant is remorseful or rehabilitated and further, the Applicant’s ability to remain drug free in the community remains untested.
In circumstances where the Applicant has not remained drug free in an environment which is tightly controlled, the Tribunal should not accept that the Applicant would remain drug free in the community. The courses that the Applicant has undertaken postdate the mandatory cancellation decision.[211]
(g)The above demonstrates that the Applicant’s past conduct was serious and there is a very real risk of the Applicant re-offending.
[207]R1, G42, p 187.
[208]R1, G25, p 134
[209]R1, G41, p 184.
[210]R2, S2, p 2; S3, p3.
[211]R1, G37, p 170.
Neither party made any submission on this consideration and hence this factor should be given neutral weight.
Extent of impediments if removed (para 9.2 of Direction No. 90)
Paragraph 9.2 of Direction No. 90 states:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen's age and health;
b)whether there are substantial language or cultural barriers; and
c)any social, medical and/or economic support available to them in that country.
(Emphasis added).
In relation to the extent of impediments if removed to New Zealand, the Applicant submitted that:[244]
(a)If he were removed from Australia, it is reasonably foreseeable that he would relapse into potentially serious drug misuse due to the stress, devastation and hopelessness he would feel at being returned to a country where he would be separated from this family. The Applicant has limited social support in New Zealand and a history of criminal behaviour due to being in the company of persons who initially led him astray.
(b)As a result, any serious drug misuse would affect the Applicant’s health and impact his ability to establish himself to a basic standard of living.
(c)Given he has a large family to support him in Australia, and he will be living with his sister,[245] he is more likely to abstain from drugs and offending if the Cancellation Decision is revoked and maintain a standard of living which is “better than basic.”
[244]A1 [5].
[245]The Applicant’s evidence is that he would also have the option of living with his mother, which was corroborated by her.
The Respondent’s position with respect to the impediments to the Applicant if he were removed is that this consideration may be given limited weight in favour of revocation, for the following reasons:[246]
(a)Even if the Applicant were to re-establish himself in New Zealand, any difficulty would be limited, would only present a short-term hardship and would not preclude resettlement.
(b)The Applicant resided in New Zealand until the age of 27, and therefore it is likely the Applicant would have a support network in the country.
(c)
The Applicant will face few impediments if he is returned to New Zealand.
There are no language or cultural barriers to overcome. The Applicant is likely to maintain the same standards of living as in Australia and there is no evidence that he will be unable to access the same social, medical and economic support as other New Zealand citizens.
[246]R4 [45]-[47].
Having considered the available evidence and the parties’ submissions, the Tribunal considers that the Applicant would likely face significant emotional and social hardship at the prospect of returning to New Zealand.
While he does have some immediate family members in New Zealand, he is not in contact with his father (nor would he resume contact given their estranged relationship) and the Applicant’s relationships with his sister and half-brother who live in New Zealand are unclear.
It is also uncertain as to whether his partner JH would return to New Zealand with the Applicant and if either the Applicant or JH would be in a position to bring their daughter with them, given her current care arrangements and their needing to obtain legal custody.
The Tribunal accepts the Applicant’s evidence that he believes he and his partner would go “downhill” if he were to return to New Zealand.
The Tribunal considers the Applicant would face financial hardship upon his to New Zealand (should he return); however, given the Applicant’s qualifications and work experience, the Tribunal is of the view that this hardship would be temporary.
The Tribunal notes the Applicant came to Australia at 27 years of age and has spent relatively even proportions of his adult life between Australia and New Zealand.
The Applicant has not provided evidence of or otherwise claimed any health or medical concerns.Overall, the Tribunal is satisfied that the extent of impediments if removed consideration weights slightly in favour of revocation.
Impact on victims (para 9.3 of Direction No. 90)
Paragraph 9.3 of Direction No. 90 states:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
Neither party made any submission on this consideration and hence this factor should be given neutral weight.[247]
[247] See R3 [44].
Links to the Australian community (para 9.4 of Direction No. 90)
Paragraph 9.4 of Direction 90 provides:
Reflecting the principles at paragraph 5.2, decision-makers must have regard to paragraphs 9.4.1 and 9.4.2 below.
Strength, nature and duration of ties (para 9.4.1 of Direction No. 90)
Paragraph 9.4.1 of Direction No. 90 states:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
In relation to the strength, nature and duration of the Applicant’s ties, the Applicant submitted that he has strong ties to the Australia community and that he has a close-knit family who have offered to assist him in his time of need so he can be reunited with them.[248]
[248]A1 [6].
The Respondent submitted that while it accepts the Applicant’s ties to Australia weigh in favour of the cancellation decision, given that:[249]
(a)The Applicant has lived in Australia for nearly 11 years and has departed Australia on 13 separate occasions;
(b)The Applicant has immediate and extended family who would be impacted should the Applicant’s visa remain cancelled;[250] however, there is no evidence that the Applicant plays a caring role in the lives of any of his family members. The Applicant did not, by his own evidence, have a relationship with his family for several years and he has reconciled with them only during his recent period of incarceration;[251]
(c)Of the 11 years he has spent in Australia, he has been cumulatively incarcerated for 18 months and since 16 December 2021 he has been detained in immigration detention; and
(d)Notwithstanding his periods of employment, given the Applicant’s serious criminal history, it should not be accepted that the Applicant has made a positive contribution to the community,
this consideration should accordingly be given limited weight in favour of revocation and it does not outweigh the primary considerations weighing in favour of revocation, particularly the protection of the Australian community and the expectation of the Australian community.
[249]R3 [48], [49].
[250]Being the Applicants mother, brother, sister and partner. See R1, G41 [184].
[251]See R2: S32; p 73; S33, pp 146-147; R1, G41, p 183.
The Applicant has provided a body of lay evidence regarding his family, and his social ties in support of his case. This evidence focuses on his relationships with family members including his mother, his siblings, his partner, his partner’s father and his friends.[252]
[252]Referred to in [36]-[37] above.
The Tribunal does not seek to nor consider it necessary to summarise the entirety of the evidence here and notes it has considered the various available letters and statements[253] in the context of this consideration. In particular, the Tribunal has considered:
(a)The Applicant’s reconciliation with his immediate family is very recent, and it appears his family are unaware of the nature and extent of his offending. It is unknown as to whether the Applicant’s family would continue to support him in the way they have proposed if they had full knowledge of these matters.
(b)Neither the Applicant or his partner are certain as to the current status of their relationship or their future plans, including:
(i)the Applicant’s intention to seek sole custody of E,
(ii)exactly where they each will reside in future depending on the outcome of E’s custody arrangement and
(iii)whether the Applicant’s family would be willing to accept JH in their homes if her substance use remained untreated.
(c)The Applicant came to Australia as an adult, at the age of 27 and after four years in Australia, he has offended consistently and more recently been incarcerated and detained.
[253]See fn 253.
Having considered these matters in the context of this consideration, the Tribunal is satisfied that:
(a)the Applicant’s ties to Australia (particularly his familial ties) are moderate, however, it cannot be said that they have endured over a lengthy period;
(b)the greatest impact to be had by the Applicant’s removal, should it occur, would be felt by the Applicant’s daughter E, although this impact would not be immediate given her young age and her not being in the Applicant’s care; and
(c)It is unknown as to whether the Applicant’s family’s support would continue:
(i) whether or not they had full knowledge of his offending;
(ii) whether or not they had full knowledge of JH’s circumstances; and
(iii) whether or not the Applicant was successful in obtaining custody of E.
As such, the Tribunal finds that the strength, nature, and duration of the Applicant’s ties consideration carries slight weight in favour of revocation of the Cancellation Decision.
Impact on Australian business interests (para 9.4.2 of Direction No. 90)
Paragraph 9.4.2 of Direction No. 90 states:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
In relation to the impact on Australian business interests consideration, the Applicant submitted:[254]
It is conceded that the non-revocation of the Applicant’s visa is unlikely to impact on an Australia business interest, compromise the delivery of a major project or the delivery of an important service in Australia.
[254]A1 [41].
The Tribunal is satisfied that this factor is not relevant in the present case and should be given neutral weight.[255]
[255]See R [44].
conclusion - the weighing exercise
As to how to apply the primary and other considerations in Direction No. 90, the Tribunal in guided by Deputy President Boyle in Wightman:
Direction 90 guides the decision maker on how to apply the primary and other considerations. Paragraph 7 of Direction 90 sets out the way in which the relevant considerations are to be taken into account (see [31] above). It provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under Direction 65 and Direction 79, the same considerations apply to the exercise required by Direction 90 which is materially in the same terms. The Tribunal is guided by Colvin J’s judgment in Suleiman v Minister for Immigration & Border Protection and the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so. …
(Emphasis added, footnotes omitted).
The Tribunal follows the approach directed by the above cases. The Tribunal also takes guidance from the principles set out in paragraph 5 of Direction No. 90, in particular paragraph 5.2(5) of Direction No. 90, which in turn refers to paragraph 8.4(2) of Direction No. 90.
As to the first primary consideration, the protection of the Australian community (para 8.1 of Direction No. 90), the relevant consideration is whether the risk is an unacceptable one, taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the offences or other serious conduct and the likelihood of that occurring. For the reasons set out in paras [97]-[132] above, the Tribunal has found that given:
(d)the nature and seriousness of the Applicant’s conduct to date is “serious” (paras 8.1(2)(a) and 8.1.1 of Direction No. 90); and
(e)the “objectively serious” nature of the harm and the very real risk to the Australian community, should the Applicant commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No. 90),
the primary consideration of the protection of the Australian community weighs very strongly against revocation of the Cancellation Decision.
Looking at the second primary consideration (para 8.2 of Direction No. 90), as indicated at paras [133]-[136] the family violence consideration has neutral weight.
With respect to the third primary consideration, the best interests of minor children in Australia (para 8.3 of Direction No. 90), the Tribunal has found that for the reasons set out in paras [137]-[150] above, the best interests of the Applicant’s minor child weighs slightly in favour of revocation of the Cancellation Decision.
The fourth primary consideration, the expectations of the Australian community (para 8.4 of Direction No. 90), as it must and as is the “norm,” weighs very strongly against revocation of the Cancellation Decision. For the reasons set out at paras [151]-[161] above, significant weight should be given to this primary consideration.
In relation to the “other considerations” identified in para 9 of Direction No. 90:
(f)The Tribunal is not satisfied that the Applicant’s current evidence enlivens Australia’s non-refoulement obligations, therefore considers this consideration carries neutral weight (see paras [163]-[164]) (para 9.1 of Direction No. 90).
(g)The extent of impediments if the Applicant were removed from Australia weighs slightly in favour of revocation of the Cancellation Decision (see paras [165]–[174] above) (para 9.2 of Direction No. 90).
(h)The impact on victims consideration weighs neutral (see paras [175]-[176] above) (para 9.3 of Direction No. 90).
(i)The Applicant’s links to the Australian community (para 9.4 of Direction No. 90); being:
(i)the strength, nature and duration of the Applicant’s ties (para 9.4.1 of Direction No. 90) weigh slightly in favour of revocation of the Cancellation Decision (see paras [177]–[184]); and
(ii) the impact on Australian business interests (para 9.4.2 of Direction No. 90), has no relevance to the present matter and hence is a neutral consideration (see paras [185]-[187]);
indicate that this consideration overall weighs slightly in favour of revocation of the Cancellation Decision.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are, prima facie, greater than those weighing against revocation.
There is factual material, which is slightly in the Applicant’s favour, in relation to the best interests of his minor child, the extent of impediments if removed and the Applicant’s links to the Australian community, being the strength, nature and duration of his ties to Australia.
Despite the number of considerations weighing in the Applicant’s favour, the Tribunal is nonetheless of the exceptionally strong view that, due to:
(a)the risk of objectively serious harm to the Australian community; and
(b)the seriousness of the Tribunal’s concerns regarding the very real risk of the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) and the expectations of the Australian community consideration, are two primary considerations which the Tribunal considers weigh very strongly against revocation of the cancellation Decision – to the extent that they outweigh any and all considerations weighing in the Applicant’s favour.
Given the significance of the weight placed on the two primary considerations weighing strongly against revocation, this is where the Tribunal has found the balance lies.
For the Tribunal to adopt the Applicant’s submission that the best interests of his minor child favourably outweighs all other considerations would be to ignore the significance of the very strong weight the Tribunal firmly attaches to the protection of the Australian community and the expectations of the Australian community considerations.
Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 14 September 2022, not to revoke the mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 205 (two hundred and five) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
................[Sgd]...................................................
Associate
Dated: 14 December 2022
Date of hearing: 15 November 2022 Applicant: Self-represented Solicitors for the Respondent: Ms Shelli Frankel, Minter Ellison
The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.
See s 501CA(4)(a) of the Migration Act and [11]-[14], [18] above.
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