Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4236
•20 October 2021
Pihere and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4236 (20 October 2021)
Division:GENERAL DIVISION
File Number: 2021/5272
Re:Mahuta Tikirau Pihere
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
REASONS FOR Decision
Tribunal: Senior Member P. Q. Wood
Date of Decision: 20 October 2021
Date of Written Reasons: 17 November 2021
Place:Melbourne
The decision under review is affirmed.
...........[Sdg]...........................................................
Senior Member P. Q. Wood
Catchwords
MIGRATION – Mandatory cancellation of visa – non-revocation of mandatory visa cancellation – Class TY Subclass 444 Special Category (Temporary) visa – whether applicant passes character test – failure to pass character test – past criminal conduct – risk would engage in criminal conduct – where Applicant made representations seeking revocation of visa cancellation – where delegate not satisfied of another reason to revoke visa cancellation – where Applicant seeks review by Tribunal – contents of Direction 90 – substantial criminal offending – protection of the Australian community – expectations of the Australian community – Applicant’s substance abuse – links to the Australian community – other relevant considerations – extent of impediments if removed – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ17 [2019] FCA 2013
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301
Secondary Materials
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (made 8 March 2021/commenced 15 April 2021)
REASONS FOR DECISION
Senior Member P. Q. Wood
17 November 2021
Introduction
The Applicant seeks review of a decision made by a delegate of the Respondent on 27 July 2021, under section 501CA of the Migration Act 1958 (the Act) not to revoke the mandatory cancellation of his Class TY (subclass 444) visa.
I conducted the hearing in this matter in Melbourne on 13 and 14 October 2021 by videoconference as permitted by section 33A of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) and consistent with the Tribunal President’s Special Measures Practice Direction issued in relation to the current public health emergency.
The Applicant was represented by Mr J McComber. The Minister was represented by Mr A Downie.
In addition to oral testimony, I have read and had regard to the written evidence, which was compiled into an agreed Exhibit Register, a true and correct copy of which is attached hereto and marked ‘Annexure A’.
On 20 October 2021, I made a decision to affirm the decision under review. The following are the written reasons for that decision.
Background
The Applicant is a 20-year-old citizen of New Zealand who was first brought to Australia by his parents in October 2001, when he was less than one year old. He was educated in Australia to Year 9 level and has a long history of alcohol abuse. He has also admitted to using cannabis.
He departed on Australia on three occasions for short periods in 2003, 2007, and 2015.[1]
[1] Exhibit R1, 174.
Criminal offending
The Applicant has an extensive criminal history dating back to 2015. Since the age of 13, he has pled guilty to more than 70 offences.
On 3 March 2020 the Applicant was sentenced to an aggregate term of 15 months’ imprisonment and fined $1,500 in the Magistrates’ Court of Victoria at Sunshine in relation to the following offences:[2]
(a)Intentionally cause injury;
(b)Affray;
(c)Theft-from shop (10 charges);
(d)Commit indictable offence whilst on bail (9 charges);
(e)Unlawful assault;
(f)Contravene a conduct condition of bail; and
(g)Criminal damage (intent damage/destroy).
[2] Ibid, 26.
On 7 May 2020 a delegate of the Minister cancelled the Applicant’s visa under section 501(3A) of the Act on the basis that he had a ‘substantial criminal record’ on account of his sentence of 3 March 2020 which he was then serving full-time in custody.
The Applicant appealed this sentence. On 21 May 2020, Her Honour Judge Marich of the County Court of Victoria set aside part of the orders of the Magistrates’ Court of Victoria and imposed the following sentence:[3]
(a)Aggregate 11 months’ imprisonment;
(b)12-month Community Corrections Order (CCO), with a requirement for supervision by a Community Corrections Officer for 12 months;
(c)50 hours of unpaid community work; and
(d)A requirement that he undergo assessment and treatment in relation to drug abuse or dependency, alcohol abuse or dependency, and mental health.
[3] Exhibit R2, 468-570.
I set out the effect of this shortened sentence on whether the Applicant fails the character test for migration purposes below.
Preliminary matters
There appears to have been some initial confusion regarding the Applicant’s request for revocation, as the Respondent did not at first accept that representations had been submitted within the prescribed period.[4] However, after evidence was provided that the delay was outside of the Applicant’s control, the Respondent accepted that the Applicant’s representations were made within time. According to the material before me, the evidence is that on 1 June 2020, within the time period for making representations, the Applicant gave his corrections case officer a completed request for revocation form, asking that it be faxed to the relevant address.[5] The Respondent in its Statement of Issues Facts and Contentions (RSFIC) now concedes that there is no issue as to whether the representations were validly made.
[4] Migration Regulations 1994 reg 2.52(2).
[5] Exhibit R1, 55-56.
In March 2021, the Applicant was released from criminal custody and transferred to an immigration detention centre, where he remains.
On 27 July 2021, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa. The Applicant was notified of that decision on the following day, 28 July 2021.
The Applicant lodged an application for review of the delegate’s decision with the Tribunal on 4 August 2021.
Witness evidence
The Applicant
In addition to his oral testimony, the Applicant provided a statement which is undated.[6] The Applicant’s evidence is as follows:
[6] Ibid, 138.
(a)He was born in New Zealand in September 2001 and his family relocated to Australia in October 2001. He has lived in Australia ever since, only traveling briefly to New Zealand.
(b)He had two older brothers, one dying after being diagnosed with cancer.
(c)He was raised in St Albans, Victoria where he attended primary school. He began his secondary schooling at a mainstream secondary college but later transferred to a specialist secondary school. At school, he enjoyed sport including rugby union.
(d)He first got in trouble with the law when he was 13 years old, when he was charged with property crimes. He does not remember the details of these incidents but states that they involved him being part of a group that approached people and threatened them in order to get their property.
(e)Around 2016, his family moved to Rooty Hill, New South Wales and he began attending secondary school nearby. He believes he was involved in an incident where he scraped another person’s car while driving his mother’s car resulting in him being fined for unlicensed and negligent driving and failing to provide his details to the other driver. At some stage after this he left the family home.
(f)He moved back to Melbourne on his own in 2017, and in 2018 was charged in relation to a number of offences including contravening a family violence intervention order. He says that these contraventions related to his teenage girlfriend at the time who was in the care of the Victorian Department of Health and Human Services which had taken out an order preventing her from seeing him. At the time he continued seeing her as he then didn’t understand why he was not allowed to. He now regrets breaching the family violence intervention order and believes that the Department was trying to do the best thing for his then girlfriend.
(g)In 2018, his older brother passed away and he began drinking a lot. He now realises that this was to try and deal with his feelings of sadness and grief. He stole alcohol from shops to support his alcohol abuse.
(h)He was involved in an incident in November 2019, along with an older friend where he attacked a 14-year-old and the child’s father in an unprovoked assault. He accepts the sentencing remarks concerning this incident. He accepts that this was a serious assault and he feels guilty for the injuries he caused.
(i)He was arrested after the incident and held on remand. He plead guilty to the charges and was imprisoned until November 2020.
(j)In prison he completed courses including construction induction training, a business course and an intensive drug and alcohol intervention course. The drug and alcohol course has made him realise the impact that drug and alcohol has had on his life, the reasons for his substance abuse, and how to avoid the mistakes he has previously made. He has learnt that he used substances to avoid negative feelings and has learned alternative ways of dealing with such feelings that aren’t as harmful. He claims that participating in the course and spending time in prison has given him time to reflect.
(k)If he is allowed to stay in Australia, he will move back to live with his parents in Sydney. He wants to take up a job with his father and begin working.
(l)His criminal lawyer has given him the contact details of drug and alcohol counsellor who he could see once per week in Melbourne, but he has not made any enquiries in relation to seeing a drug and alcohol counsellor in Sydney.
(m)He has never lived in New Zealand since coming to Australia and has only returned for brief visits with his parents. He is worried about living alone in a country in which he has never lived for an extended period of time, and that if his parents or surviving brother become sick, he will not be able to return to Australia to be with them.
The Applicant’s mother
In addition to her oral testimony, the Applicant’s mother provided a statement dated
21 February 2021.[7] The Applicant’s mother’s evidence is as follows:
[7] Ibid, 157.
(a)She was born in New Zealand in June 1977 and relocated to Australia in October 2001 with her husband and sons.
(b)The family lived in St Albans, Victoria until 2016.
(c)The Applicant was a talented rugby union player when he was younger and spent a lot of time training and playing with friends on afternoons and weekends. After six months in high school, he was transferred to a school for children who struggled in mainstream schools. He attended this specialist school for about two years, until the family moved to Rooty Hill, New South Wales in the hope of better employment opportunities.
(d)In 2017, the Applicant left the family home. This was the last time she saw him in person.
(e)If the Applicant were removed from Australia and not able to return, it would have a huge impact on her and her husband as they could not let the Applicant return to New Zealand on his own.
(f)Her mother is in New Zealand but is elderly and lives in a remote area far from the city. Her siblings live in Australia and her husband does not have close family in New Zealand.
(g)She and her husband would have to return to New Zealand to support the Applicant if he were deported. Moving back to New Zealand would mean starting again as they both have employment in Australia and have not lived in New Zealand for 20 years. It would also mean leaving her other son and grandchild.
(h)If allowed to remain in Australia, the Applicant will live with her and her husband and she wants him to engage in training and employment.
(i)She knows the Applicant has made mistakes but believes that now he realises that his actions have consequences.
OTHER EVIDENCE
I have read and had regard to an offer of employment letter dated 11 June 2021 offering the Applicant employment as an apprentice diesel mechanic with Western Sydney Diesel Services.[8]
[8] Ibid, 163.
Issues
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this sub-section provides that:
(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.
As I have referred above, the Respondent now concedes that Applicant has made the necessary representations required by section 501CA(4)(a) of the Act.
The question before this Tribunal is therefore whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. In such circumstances, it is appropriate to refer to the remarks of the Full Court of the Federal Court of Australia in Minister for Home Affairs v Buadromo:[9]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[10]
[9] [2018] FCAFC 151.
[10] Ibid [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
I therefore consider that there are two issues before the Tribunal:
(1)whether the Applicant passes the character test; and
(2)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Where an Applicant makes out either ground, there is a line of authority to the effect that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[11] I consider each of these issues below.
[11] Ibid.
If a person in the migration zone applies to the Tribunal for a review of a decision under section 501CA(4) of the Act not to revoke the mandatory cancellation of his or her visa, section 500(6L) of the Act provides that if the Tribunal has not made a decision 84 days after the date on which the person was notified of the decision, the decision is taken to have been affirmed by the Tribunal. Accordingly, it was necessary, to avoid this self-executing clause to have effect, for me to make a decision in this case by 20 October 2021. I made a decision on 20 October 2021 and these are the written reasons for that decision.
(1) Does the Applicant pass the character test?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have ‘a substantial criminal record’. This phrase is defined in section 501(7)(c) of the Act, which provides that a person will have a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’.
As I have referred above, on 3 March 2020, the Applicant was sentenced to an aggregate 15 months’ imprisonment which was reduced to 11 months’ imprisonment on appeal.
At the beginning of the hearing the Applicant’s representative submitted that, following Her Honour Judge Marich’s decision to reduce the Applicant’s sentence, the Applicant does not have a ‘a substantial criminal record’ as per section 501(6)(a) of the Act. The Tribunal accepts that the Applicant has not ‘been sentenced to a term of imprisonment of 12 months or more’ as per section 501(7)(c) of the Act.
The Respondent contends that notwithstanding his successful appeal, the Applicant does not meet the character test by virtue of sections 501(6)(c)(i) and 501(6)(d)(i).[12]
[12] RSFIC, 5.
Section 501(6)(c)(i) provides that a person does not pass the character test if, having regard to ‘the person’s past and present criminal conduct’, the person is not of good character.
Section 501(6)(d)(i) provides that a person does not pass the character test if, ‘in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would engage in criminal conduct in Australia’.
The Applicant’s representative referred me to the decision of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ17 [2019] FCA 2013 as to the appropriateness of the Minister now relying on sections 501(6)(c)(i) and 501(6)(d)(i). In reply, the Respondent’s representative referred me to para 70 in which Rares J held:
… once the Minister or his delegate has decided that a statutory ground in s 501(6) exists, in respect of which an applicant has not satisfied him that he or she passed the character test, then the discretion under s 501(1) is enlivened. It would not fulfil the statutory purpose or be consistent with Shi 235 CLR 286 or Graham 263 CLR at 30 [57] that the grounds for the decision under review could be expanded in the review without any further new facts emerging. If the Tribunal, on a review, found that it was satisfied that a visa applicant had passed the character test, unless a new fact occurred subsequently, the delegate or the Minister could not revisit later every other ground or criterion in s 501(6) at will, while detaining the person in immigration detention under the authority of the Act for, relevantly, the purpose of determining whether or not he or she should grant the visa: cf. Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180 at 206 [78]-[79] per French CJ, Kiefel, Bell, Gageler, Keane, Nettle and Gordon JJ.
I do not accept that Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v CPJ17 [2019] FCA 2013 stands for the proposition that the Minister may never broaden the scope upon which the character test is to be considered and prohibits the Minister from relying on sections 501(6)(c)(i) and 501(6)(d)(i) in this case. In this instance, I consider that new facts have emerged in the decision of Her Honour Judge Marich of the County Court of Victoria.
Having had regard to the Applicant’s offending and convictions, which I have set out above, I find that the Applicant does not pass the character test pursuant to sections 501(6)(c)(i) and 501(6)(d)(i) of the Act.
(2) Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act.
DIRECTION 90
In this case, ‘Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.[13]
[13] Direction [6]. See also Direction [4(1)] which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The Principles in Paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under section 501 or 501CA, as the case may be.
Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable 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 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 by non-citizens who have 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 measurable risk of causing physical harm to the Australian community.
Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
(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;
(4) expectations of the Australian community.[14]
[14] Direction [8].
The Other Considerations which, where relevant, I must take into account “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.[15]
[15] Direction [9(1)].
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should ‘generally’ be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction quoted above does not materially differ from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[16]
[16] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545 [23].
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to have regard to the principle 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
Application of Factors in Paragraph 8.1.1(1) of the Direction
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that 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).
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
In submissions in support of revocation dated 31 May 2021[17] and the Statement of Issues Facts and Contentions dated 8 September 2021 (ASFIC)[18] (together the Applicant’s Written Submissions), the Applicant conceded that his history of offending was very serious, involving unprovoked violence, contravention of family violence orders and resisting emergency services workers.[19]
[17] Exhibit R1, 141.
[18] ASFIC, 6.
[19] Exhibit R1, 145.
In respect of the latter two matters, the Applicant’s representative submitted that the circumstances of the Applicant’s breach of a family violence order involved the Applicant having willing contact with a protected person who had not sought the order, and that this offending fell at the less serious end of the continuum. In terms of the order, I accept this. There is however an issue of other related conduct involving the same previous girlfriend, which I discuss further below.
In respect of the Applicant’s conviction for resisting an emergency worker, the Applicant’s representative submitted this was less serious conduct than assault and should be weighed less heavily than conduct involving actual physical violence for the purpose of 8.1.1(b)(ii). I accept this.[20]
[20] Ibid.
Nevertheless, taking into account all of the evidence (and in particular the Applicant’s most recent offending), I find that sub-paragraph (a) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a very serious nature.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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.
I have already referred above to the Applicant’s most recent offending which was an unprovoked assault against a 14-year-old and the child’s father. The circumstances of the offending were described by the sentencing Magistrate as follows:
That particular incident involved yourself and your co-accused attacking a father and a son who alighted from a bus. The father was trying to protect his 14-year-old son. You and the co-accused then essentially attacked the father in a situation that has resulted in him having injuries which were two fractures or a fracture to both of his cheekbones and he was hospitalised as a result of that incident. It was an unprovoked attack. You had no prior relationship with the victims in this matter in any way.[21]
[21] Exhibit R1, 36.
When questioned about this in the Tribunal the Applicant candidly said that at the time of this offending he was drunk, bored and looking for something to do.
I consider children to be vulnerable members of the community as contemplated by the Direction and find that sub-paragraph (b) of paragraph 8.1.1(1) of the Direction militates in favour of a finding that the Applicant’s criminal offending has been of a serious nature.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker to consider certain sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. I have referred to relevant sentences above. As outlined above, I take also into account that the Applicant’s most recent sentence was reduced on appeal by Her Honour Judge Marich of the County Court of Victoria.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction directs a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
As I have stated above, the Applicant’s offending is in the order of more than 70 offences since 2015 and his most recent offending is his most serious. As such, in all the circumstances, I find that the Applicant’s offending is frequent and involves a trend of increasing seriousness, which enlivens the application of sub-paragraph (d) of paragraph 8.1.1(1) of the Direction in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction requires a decision-maker to give consideration to the cumulative effect of repeated offending of the non-citizen.
I consider that the Applicant's repeated acts have had a cumulative effect, especially in the context of the considerable resources required to hold him responsible on so many occasions. This includes the costs borne by the community to provide the police resources required and the further expense of the Courts, justice, and correctional systems.
I am of the view that the cumulative effect of the Applicant’s repeated offending enlivens the application of sub-paragraph (e) of paragraph 8.1.1(1) of the Direction in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. This consideration is not relevant to the Applicant.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction requires a decision-maker to consider whether the non-citizen has re-offended since having been 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 (observing that the absence of such a warning is not considered to be in the non-citizen’s favour). I do not understand the Applicant to have been formally warned or otherwise made formally aware in writing about the consequences of further offending with respect to his migration status.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker 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.
Paragraph 8.1.2(2) of the Direction provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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 non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)Where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.1(2)(a) of the Direction compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
In the Applicant’s Written Submissions, the Applicant accepts that further reoffending might result in physical and psychological harm to others and the loss of property. It is submitted on the Applicant’s behalf that the magnitude of harm that might result from any future reoffending is not so great as to mean that the cancellation decision should not be revoked. I do not agree.[22]
[22] ASFIC, 7.
I consider that there is little to be said against the contention that the nature of the harm to individuals, in the event of the Applicant re-committing similar or identical unlawful conduct for which he was most recently sentenced would, without question, involve (at the very least) physical and psychological harm with a more than realistic possibility of such harm resulting in disastrous consequences.
The terms of the Direction have direct application to the facts of the Applicant in this case. Put simply, having regard to the Applicant’s recent unprovoked assault on a 14-year-old child and his father, were that offending to be repeated, its resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable. In that case, the 14-year-old’s father had his cheekbones broken in the assault and was hospitalised where his treatment included a scan to identify whether there was any bleeding on the brain. Fortunately, there was no such bleeding.[23]
[23] Exhibit R2, 424.
I am of the view that reasonably minded members of the Australian community would regard the Applicant’s involvement in an unprovoked assault on a child and his father in the circumstances I have set out as so serious that they would refuse to accept any risk of recurrence.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s Written Submissions contend that the Applicant’s risk of reoffending is low for the following reasons:[24]
(a)our client’s past criminal offending occurred when he was very young, between the ages of 13 and 18, and he has matured significantly since that time;
(b)our client’s experience of imprisonment from November 2019 to November 2020 had the intended deterrent effect on our client;
(c)in the course of his imprisonment, our client completed a drug and alcohol rehabilitation course which significantly improved his insight into his problem drug and alcohol use and provided him with the tools to stop his problem alcohol use in the future;
(d)our client is now aware of the consequences of further criminal offending on his Australian migration status, and the permanent exclusion that any future visa cancellation under s 501 would cause;
(e)our client intends to return to living with his parents in Sydney and find employment in Sydney.
[24] Exhibit R1, 146; SFIC, 7.
On 3 March 2020 the sentencing Magistrate said:[25]
I have read the presentence report that has been provided and I’m aware of your history. You were living in Sydney with your parents. You have had a period of time living in Melbourne with your sister-in-law and you have had to deal with the passing of your brother.
You have had some involvement with youth justice previously and I note that in their report they say that previously on deferrals of sentence they have had trouble engaging you.
In relation to all of these matters I am going to deal with it in the following way: I will make one more observation. I note that Youth Justice say that they are unable to come to a conclusion about your prospects for rehabilitation but given your young age I am going to proceed on the basis that there has to be some guarded prospects that I need to take into account.
[25] Exhibit R1, 37.
I have also had regard to the Loddon Prison report dated 31 October 2020 and Loddon Prison case notes which both suggest a high-risk profile.[26]
[26] Exhibit R2, 238-241; 270.
I have separately given careful consideration to all the relevant information regarding the Applicant's risk of recidivism. I observe that the Applicant has already been the subject of various diversions and non-custodial sentences including good behaviour bonds and community corrections orders. The Applicant has accepted that he has contravened bail conditions, breached family violence intervention orders, and failed to engage with Youth Justice. The Applicant has a history of offending under the influence of alcohol and has also admitted to using cannabis. His most recent theft offences involve him brazenly stealing alcohol from retail premises. He has a long history of substance abuse. He has been found to have ‘homebrew’ contraband both in prison and in detention.[27] In prison, he was involved in a fight.[28] I acknowledge that he has completed a 15-day drug and alcohol program whilst in prison. Whilst the Applicant expressed a wish to enter the workforce, his future plans to address his substance abuse in the community seemed inadequate. I do not consider his future prospect of returning to the family home a sufficient protective factor. Having listened to the Applicant, I am not convinced that the Applicant has the degree of insight into his substance abuse and offending as he would like the Tribunal to believe. In all the circumstances, I consider that notwithstanding the rehabilitative benefit the Applicant may have received, it falls well short of the level necessary for the Tribunal to conclude that he would be unlikely to engage in further criminal or other serious conduct.
[27] Exhibit R2, 231.
[28] Ibid, 228.
Conclusion: Primary Consideration 1
I find that:
(a)the nature of the Applicant’s offending is very serious;
(b)were the Applicant to reoffend in a similar way, the nature of the resulting harm would involve very serious physical and/or psychological harm to the Australian community, quite conceivably, to a disastrous level; and
(c)in terms of risk of recidivism, there is a reasonable likelihood that he will engage in further very serious offending if returned to the Australian community.
In consideration of all the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration 1 weighs very strongly in favour of non‑revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
(i)the extent to which the person accepts responsibility for their family violence related conduct;
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
(iii)efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 8.2(1) of the Direction compels a decision-maker to make a determination about any family violence committed by the non-citizen.
The Applicant’s Written Submissions contend that the Applicant’s contravention of a family violence order is atypical offending in that it occurred when the Applicant was a teenager, the order was not sought by the protected person but the Department charged with her care, and that the contact between the Applicant and the protected person was consensual and not consistent with acts of physical and emotional violence or coercion. It was further submitted that the Applicant now understands the purpose of the order and has expressed regret that he contravened it.
During the course of the hearing the Applicant told the Tribunal that he and his previous girlfriend consensually disregarded the order and maintained contact. This is part of the story.
In the Tribunal hearing the Applicant volunteered that a Victorian DHHS worker had seen him smack his previous girlfriend to the back of the head. It was submitted that the Applicant and his previous girlfriend would both engage in smacking each other in circumstances where they were not intending to cause harm but were instead frustrated with their communication with each other. The Applicant’s representative described their behaviours as a maladaptive form of communication or expression between two young people. There was some discussion about the level of force the Applicant indicated was used and I accept the level of force he described was substantially less than full force.
The Respondent submits that this behaviour between the Applicant and his previous girlfriend is punitive in nature, the kind of conduct that the Direction was designed to apply to and that this consideration should weigh at least moderately against revocation.
I have considered the definition of ‘family violence’ which is contained in the Direction. ‘Family violence’ is defined to mean ‘violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful’.[29] Having considered all the evidence, I find that the Applicant’s conduct has previously been violent, threatening, coercive and controlling in the past, even though his then girlfriend may not have been fearful at all times.
[29] Direction 9(4)(1) definition of ‘family violence’.
Conclusion: Primary Consideration 2
Primary Consideration 2 weighs moderately against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: BEST INTERESTS OF MINOR CHILDREN
Paragraph 8.3 of Direction No 90 provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of Direction No 90 continues to outline the factors that a
decision-maker must consider when determining the best interests of a child affected by the decision:(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e)whether there are other persons who already fulfil a parental role in relation to the child;
(f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
Analysis and Conclusion: Primary Consideration 3
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
The Applicant’s Written Submissions contend that the Applicant has a young nephew, Antonio, who is the son of his brother.
It was submitted on the Applicant’s behalf that the interests of Antonio would be served if he were allowed the opportunity to develop a relationship with the Applicant, especially when the Applicant is his only uncle. During the course of the hearing, evidence was given that the Applicant has no contact with Antonio. Indeed, the Applicant told the Tribunal that he had only met Antonio once because Antonio’s family has said that they don’t want to have contact with the Applicant or other family members.
Notwithstanding the Applicant’s lack of contact with Antonio, I consider that the mere presence of family in Australia – particularly as the Applicant is an only uncle – can be important for minor children. As such, I find that this primary consideration weighs slightly in favour of revocation.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[30] The Direction further states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.[31]
[30] Direction, [8.4(3)].
[31] Ibid [8.4(4)] – paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that ‘the Australian community expects non-citizens to obey Australian laws while in Australia’. The second proposition is that:
where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a:
visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I also note, based on the principles in paragraph 5.2 of the Direction, that:
(a)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[32]
(b)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[33] and
(c)The nature of a 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 a visa outcome adverse to the non-citizen.[34]
[32] Ibid, [5.2(4)].
[33] Ibid.
[34] Ibid, [5.2(5)].
In the Applicant’s Written Submissions, the Applicant relies on the following factors to submit that this primary consideration weighs only slightly against revocation:
·the Applicant’s residence in Australia since he was one month old;
·the presence of the Applicant’s parents, surviving sibling and grave of his oldest brother in Australia; and
·his social ties and the fact that that the Applicant did not commence offending until 13 years after he began to reside in Australia.
Analysis – Allocation of Weight to this Primary Consideration 4
I have had regard to each of the matters referred to in the paragraph immediately above. At the same time, I refer to my other observations above, namely that the Applicant has already faced court in relation to more than 70 offences at his young age but over an extended period of time, and that the Applicant’s most recent offending saw him assault a 14-year-old child and his father in circumstances where he was unprovoked. I consider that this all amounts to conduct in breach of the Australian community’s expectation that non-citizens in Australia will obey the law. Therefore, by virtue of paragraph 8.4(1) of the Direction, the Australian community, as a “norm” expects the Government to remove the Applicant.
The next question I must consider is whether there are any factors which might vitiate or, perhaps more conservatively, counteract the Australian community’s expectation that the Applicant cease to hold a visa.
The Applicant’s representative submitted that in circumstances where the Applicant has lived in Australia since being an infant and has spent very limited time outside of the country, greater tolerance should be afforded to him pursuant to 5.2(b) of the Direction. I accept this.
I recognise that the Applicant is an individual who has lived in Australia since he was an infant and has only spent the briefest periods outside Australia and as such, I afford him greater tolerance than I would a person who had arrived more recently and who had spent more time offshore.
The Applicant’s representative submitted that I should take into account that a co-offender of the Applicant received a favourable revocation decision and the Applicant confirmed this in his oral evidence. I accept that a co-offender of the Applicant may have received a favourable revocation decision but ultimately I do not consider this is relevant to my task.
Otherwise, other than matters that are properly considered elsewhere in these reasons, there are no other factors that counteract the expectation of the Australian community.
Overall, I consider that this is a case that engages the principle in paragraph 5.2(5) of the Direction:
the nature of the non-citizen’s conduct, and the harm resulting from it, is so serious that even the strong countervailing considerations are insufficient (at least so far as the Australian community’s expectations are concerned) to justify revoking the mandatory cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
In consideration of all the evidence and each of the relevant factors contained in the Direction, I find that this Primary Consideration weighs strongly in favour of non‑revocation.
OTHER CONSIDERATIONS OF THE DIRECTION
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International Non-Refoulement Obligations
Paragraph 9.1 of the Direction directs a decision maker to weigh any non-refoulement owed obligations owed in respect of the Applicant against the Applicant’s criminal offending. This consideration is not relevant to this application.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account
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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant submits that the Applicant’s young age and long period of residence in Australia would be impediments to the Applicant establishing himself and maintaining basic living standards in New Zealand. I have had regard to this.
The Respondent concedes that the Applicant would face a difficult period of transition if he was removed to New Zealand but submits that this should be given moderate weight in favour of revocation, due to the Applicant’s age, training that he has undertaken, recent offer of employment, and lack of evidence of cultural or linguistic barriers or health conditions.[35]
[35] RSFIC, 12.
I will address each of the three main components of this Other Consideration in turn.
First, it is necessary to consider the Applicant’s age and state of health.[36]
[36] Direction, [9.2(1)(a)].
As referred to above, the Applicant is 20 years of age.
His state of health has been described briefly above in so far it relates to his substance abuse. The Applicant’s representative asked the Tribunal to accept that the Applicant has had problems with problem-solving and interpersonal skills, as reflected in the Corrections Victoria documentation.[37] I accept this. The Applicant’s representative said that because of the restrictions concerning visits arising from Covid-19, as well as the cost of obtaining independent expert reports, he was unable to participate in neurocognitive assessment. In these circumstances, I do not consider that I can make any further findings in this respect.
[37] Exhibit R2, 220.
Notwithstanding his substance abuse issues, his physical abilities and overall health should allow him to work and he has expressed a desire to obtain employment.
Second, it is necessary to consider whether there are any ‘substantial language or cultural barriers’[38] to the Applicant returning to New Zealand.
[38] Direction [9.2(1)(b)].
There are none. As found by this Tribunal (differently constituted) in a previous case:
New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand. […].[39]
[39] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), [101].
Third, Paragraph 9.2 of the Direction requires an enquiry into the extent of any ‘social, medical and/or economic support available’ in New Zealand.[40]
[40] Direction [9.2(1)(c)].
In this respect, it is appropriate to again refer to this Tribunal’s findings in Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 wherein it was noted:
New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The Applicant will have access to those services as a New Zealand citizen.[41]
[41] Tera Euna [101].
The Applicant’s mother’s evidence was that she and the Applicant’s father would give up their jobs and lives in Australia in order to return to New Zealand to support the Applicant if he were deported.
Having heard her evidence, I consider it reasonably likely that the Applicant’s mother and father would make great sacrifices and indeed return to New Zealand to support the Applicant. It follows that the Applicant would therefore not be alone in New Zealand and without support.
In all the circumstances, I consider that this Other Consideration (b) weighs moderately in favour of the Applicant.
(c) Impact on Victims
Paragraph 9.3(1) states that
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.
Both the Applicant and Respondent submit that this consideration is not relevant as there is no material before the Tribunal regarding the effect of the Applicant’s continued presence in Australia on any victims of his past offending. I agree.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to the following two factors:
(1)9.4.1. the strength, nature and duration of ties to Australia; and
(2)9.4.2. the impact on Australian business interests.
9.4.1. Strength, Nature and Duration of Ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s immediate family where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to have regard to the strength, nature and duration of any family or social links the Applicant may have with people who have indefinite right to remain in Australia.
In the Applicant’s Written Submissions, the Applicant states that his mother and father would be adversely affected by a non-revocation decision as they would relocate to New Zealand, losing their jobs and contact with their other family in the process, which would have a negative effect on them. I accept this is the case. I accept that this would mean that the Applicant’s parents are separated from their immediate family in Australia, including their only grandson.
In terms of other immediate family and ties to Australia, the Applicant’s Written Submissions helpfully point to the presence of the Applicant’s immediate family, including his three surviving siblings and most of his other family, as well as the Applicant having social connections in the Australian community.
I also accept that the Applicant has had a close personal relationship until recently with his most recent previous girlfriend, with that relationship having broken down only recently during the Applicant’s incarceration.
The Respondent submits that the age that the Applicant began offending, namely 13, and the limited period of time in which he could be found to have positively contributed to the community, limit the weight that might otherwise be given to the fact that the Applicant has resided in Australia since he was one month old.[42]
[42] RSFIC, 12.
As per the Direction, I consider that as the Applicant has resided in Australia since he was one month old, he is entitled to a higher level of tolerance of criminal conduct.
I accept that the Applicant has positively contributed to the community, albeit briefly overall, as a student and through participation in sport. I have had regard to the associations that the Applicant would have developed through the years from such involvement.
I take into account and have had regard to all of the evidence relating to:
(d)the impact of the Applicant’s removal on his family members in Australia;
(e)that the Applicant has resided in Australia since he was one month old; and
(f)the extent of the strength, duration and nature of his family or social links with people who have an indefinite right to remain in Australia.
Overall, I find that the Applicant’s ties to Australia weigh moderately in favour of the revocation of the cancellation decision.
9.4.2 Impact on Australian Business Interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on Australian business interests. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can generally only be allocated in this instance where a non-revocation decision ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
I consider that this second part of Other Consideration 4 is not relevant to determination of this application.
Weight allocable to Other Consideration 4: links to the Australian community
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)International non-refoulement obligations: neutral;
(b)Extent of impediments if removed: moderate weight in favour of revocation;
(c)Impact on victims: neutral; and
(d)Links to the Australian community: moderate weight in favour of revocation.
CONCLUSION
Is There Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under section 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before it, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds as follows:
·Primary Consideration 1: weighs very strongly in favour of non-revocation;
·Primary Consideration 2: weighs moderately in favour of non-revocation;
·Primary Consideration 3: weighs slightly in favour of revocation;
·Primary Consideration 4: weighs strongly in favour of non-revocation;
·The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that the totality of the weight attributable to the relevant Other Considerations outweigh the weight that it has attributed to the Primary Considerations as stated above.
The Tribunal does not exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the written reasons reasons for the decision herein of Senior Member P.Q. Wood
.............................[SDG].......................................
Associate
Dated: 17 November 2021
Date of hearing:
13 and 14 October 2021
Advocate for the Applicant:
Mr J McComber
Solicitors for the Applicant
Sentry Law
Counsel for the Respondent:
Mr A Downie
Solicitors for the Respondent: Australian Government Solicitor EXHIBIT REGISTER
File No 2021/5272
Between Mahuta Tikirau Pihere (Applicant)AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Respondent)
Heard on 13 and 14 October 2021
Before Senior Member P. Q. Wood
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF LODGEMENT
R1
Section 501G ‘G’ Documents
Respondent
20 August 2021
R2
Supplementary G-Documents
Respondent
6 October 2021
2
9
0