PKBV and Minister for Home Affairs (Migration)

[2019] AATA 683

PKBV and Minister for Home Affairs (Migration) [2019] AATA 683 (9 April 2019)

Division:GENERAL DIVISION

File Number:           2019/0444

Re:PKBV

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President

Date:9 April 2019

Place:Sydney

The decision under review is affirmed.

...............................[sgd].........................................

The Hon. Dennis Cowdroy OAM QC, Deputy President

CATCHWORDS

MIGRATION – mandatory cancellation of visa – failure to pass character test – criminal record – whether the discretion to revoke the cancellation should be exercised – Direction No. 79 – primary considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of conduct – risk to the Australian community – best interests of minor children – expectations of the Australian community – other considerations – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) – ss 499, 501, 501CA

CASES

DND v Minister for Home Affairs (Migration) [2018] AATA 2716

HZCP v Minister for Immigration and Border Protection (2018) FCA 1803

Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

The Hon. Dennis Cowdroy OAM QC, Deputy President

9 April 2019

1. The applicant seeks review of the decision of a delegate of the respondent made on 15 January 2019. Such decision found that the applicant did not pass the character test as defined by section 501 of the Migration Act 1958 (Cth) (“the act”), nor was the power in section 501CA of the act enlivened with the consequence that the applicant’s Class WA Subclass 010 Bridging A Visa should be cancelled.

   FACTS

2. The applicant was born on 20 November 1996 in Tonga. He first arrived in Australia on 21 January 2008 at the age of 11 as the holder of a Class UP Subclass 461 Visa granted on 6 November 2007. Such Visa is known as a New Zealand Family Relationship Temporary Visa. Such Visa expired on 2 November 2012. It appears that the applicant’s mother, or someone on his behalf, made application for a new Subclass 461 Visa, at or about the date of the expiry of the first Visa. At this date, the applicant was still a minor.

3. The application for the second Subclass 461 Visa was never processed. However, the applicant was granted a Class WA Subclass 010 Bridging Visa. Until the cancellation of this Visa on 23^rd of January 2018 under section 501(3A) of the act, the applicant has lawfully resided in Australia.

4. Before coming to Australia the applicant resided with his maternal grandparents and remained with them until his grandmother passed away. He then came to Australia. He resided initially with his mother with whom he has a difficult relationship, and thereafter with his stepmother.

5. The applicant attended primary and secondary schools in the metropolitan area of Sydney. He returned to Tonga briefly in 2009 and 2010. The applicant has never lived with his father. The applicant’s parents separated and the applicant was placed in the primary care of his maternal grandparents when he was one week old.

6. Following his leaving school in 2012 when he was in year 11 of his studies, the applicant undertook studies at a TAFE College where he learnt carpentry. However, after three months the applicant ceased such course, claiming that he “did not like it.” The applicant has thereafter from 2015 to 2017 worked as a concreter with a concreting business. The work fluctuated and it appears he worked 3 to 4 days per week depending upon the requirements of his employer. The applicant says that such firm has offered him employment if he is able to remain in Australia.

   CRIMINAL HISTORY

7. The applicant has had a long history of criminal offences, commencing whilst he was still a juvenile. The National Police Certificate records a summary of the convictions as follows:

Court	Date of conviction	Offence	Court result
Local Court	30 August 2017	Destroy or damage property >$5000 and <=$15000	(call up) imprisonment : 3 months
Local Court	30 August 2017	Steal from the person	(call up) imprisonment : 3 months
Local Court	30 August 2017	Agg enter dwelling in company intent to steal <=$60000	Imprisonment: 3 months
Local Court	30 August 2017	Fail to appear in accordance with Bail Granted acknowledgment	Imprisonment : 1 month
Local Court	1 August 2017	Demand property with menaces with intent to steal	Imprisonment: 12 months, non parole period with conditions: 9 months
Local Court	1 August 2017	Steal from the person	Imprisonment: 18 months, non parole period with conditions: 12 months
Local Court	10 August 2016	Destroy or damage property >$ 5000 & <= $15000	(call up) bond s9: 11 months supervised NSW prob service
Local Court	10 August 2016	Steal from the person	Imprisonment: 3 months, suspended on enter bond s12: 3 months, supervised NSW prob service
Local Court	20 July 2016	Contravene prohibition/restriction in avo (domestic)	S10a conviction with no other penalty
Local Court	10 May 2016	Destroy or damage property >$5000 & <=$15000	Bond s9: 12 months, compensation: $7,838
Childrens Court	22 October 2014	Assault occasioning actual bodily harm, two counts	Control order (aggregate) : 24 months, non parold period with conditions: 15 months, release subject to supervision from juvenile justice: 12 months,
Childrens Court	22 October 2014	Larceny value <=$2000, two counts	Bond s33(1)(b): 6 months
Childrens Court	15 April 2014	Destroy or damage property <=$2000, two counts	Bond s33(1)(b) : 6 months
Childrens Court	14 January 2014	Intimidate police officer in execution of duty w/o abh, two counts	Bond s33(1)(b): 18 months supervision, juvenile justice
Childrens Court	14 January 2014	Use offensive language in/near public place/school	Bond s33(1)(b): 6 months
Childrens Court	14 January 2014	Refuse/fail to comply with direction under part 14	Bond: s33(1)(b): 6 months
Childrens Court	14 January 2014	Be carried in conveyance taken w/o consent of owner, two counts	Bond s33(1)(b): 9 months
Childrens Court	14 January 2014	Agg b&e & commit serious indictable offence – in company	Probation s33(1)(e): 18 months supervision, juvenile justice
Childrens Court	14 January 2014	Reckless grievous bodily harm – in company	Control order s 33(1)(g): 18 months, non parole period with conditions 6 months, release subject to supervision from juvenile justice
Childrens Court	14 January 2014	Assault police officer in execution of duty w/o abh, two counts	Probation s33(1)(e): 12 months
Childrens Court	14 January 2014	>= 3 people threaten violence cause fear	Probation s33(1)(e): 12 months supervision, juvenile justice
Childrens Court	21 March 2013	Use offensive language in/near public place/school	Dismissed with caution s33(1)(a)(i)
Childrens Court	21 March 2013	Continue intoxicated etc behaviour after move on direction	Dismissed with caution s33(1)(a)(i)

1. On 23 January 2018 the applicant’s Visa was cancelled pursuant to section 501(3A), as a delegate of the respondent was satisfied that the applicant did not pass a character test because of the operation of section 501(6)(a), namely that the applicant had a substantial criminal record, on the basis of section 501(7)(c) and because the applicant was then serving a sentence a full-time imprisonment at a Correctional Centre in New South Wales.

2. The applicant made representations in accordance to section 501CA(4)(a). Such representations are contained in his Personal Circumstances Form dated 8 February 2018. The delegate was not satisfied that the applicant passed a character test as defined by section 501. The delegate considered that there was no reason why the mandatory Visa cancellation decision should be revoked in the exercise the power provided by section 501CA(4)(b)(ii).

   DIRECTION 79

3. Direction 79, made pursuant to section 499 of the act, provides guidance to decision-makers in assessing the exercise of powers under section 501 of the act. As provided by clause 6.2, the first consideration under the heading of “General Guidance” is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens.”

4. Under the heading “Principles”, it is stated in clause 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:

   “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.”

5. The principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “harm that would be caused if it were to be repeated, maybe so serious, that any risk of similar conduct in the future is unacceptable.”

6. The principles also state that Australia has a low tolerance of any “criminal or other serious conduct.” And a low tolerance of any “criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.”

7. It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The Primary Considerations identify the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part C of the Direction. Pursuant to clause 13.1.1, the nature and seriousness of the conduct is to be considered including sentences imposed by the courts and the frequency of non-citizens offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.

8. The Primary Considerations in Part C of the Direction reiterate that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizens conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 13.1.2(a) and (b).

9. Clause 13.3 makes provision for consideration of the expectations of the Australian Community. Clause 13.3(1) provides inter alia:

   “The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.”

10. Direction 79 does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision maker is to be lawfully exercised: see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 (2014 FCR 562) Perry J [80]. See also DND v Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].

11. It is also established the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].

12. Part C relates specifically to revocation of a visa.  In particular, clause 13.1.1 refers to the very serious view that is taken of non-citizens who commit violent and/or sexual crimes.  Specifically, where there is repeated offending, the cumulative effect must be taken into consideration: see clause 13.1.1(1)(f).  Sentences of imprisonment imposed by courts for a crime or crimes is also to be considered in viewing the seriousness of a conduct: see clause 13.1.1(1)(d).

13. Section 501(2) empowers the Minister to cancel a visa which had been granted to a person if: (a) the Minister reasonably suspects that the person does not pass the character test; and (b) the person does not satisfy the Minister that the person passes the character test.

14. The character test is set out in section 501(6) of the Act and includes matters relevant to the current application. Namely, a person has a substantial criminal record (as defined by subsection 7 thereof). Section 501(7) provides that a person has a “substantial criminal record” if:

    “The person has been sentenced to a term of imprisonment of 12 months or more”.

    APPLICATION OF PRINCIPLES

15. The applicant has engaged in criminal conduct, as shown in the summary of the National Police Certificate set out above, from an early age. The first offence, namely on 21 March 2013, related to intoxication and using offensive language. Within 12 months, namely on 14 January 2014, he was convicted of intimidating a police officer, using offensive language, break and enter, refusing to comply with a direction and engaging in reckless grievous bodily harm in company.

16. The applicant was convicted of the next offence of destroying or damaging property value of less than $2000 on 15 April 2014. This is followed by the offence on 13 July 2014 when the applicant punched a victim with his right closed fist, causing the victim to fall to the ground. The applicant then kicked the victim in the face yelling “Don’t touch my girlfriend”. He then stamped on the head of the victim who appeared to be unconscious. The court  transcript reads thereafter:

    “Witnesses intervened and the young person became aggressive, inviting them to fight him. The young person [the applicant] then returned to where the victim was lying on the ground but by this stage he was sitting upright. The young person [the applicant] ran in a few steps and kicked him again in the face with his right foot. The young person [the applicant) was heard to say, “I’m going to kill him tonight”. He again stomped on the victim’s head. Police observed blood spatter on the clothing of the young persons involved. The victim, who was barely conscious and dazed, was bleeding profusely from the face and had swelling and cuts on his lip and was conveyed to hospital.”

17. On 22 October 2014 the applicant was convicted of assault occasioning actual bodily harm. By this date the applicant was close to 18 years of age, and almost an adult. The applicant was provided the benefit of good behaviour bonds, or supervision orders. A control order for 24 months was imposed in respect of the assault. Such assault was particularly vicious. The applicant inflicted punches on the victim and kicked him on the head whilst he was on the ground. The victim lost consciousness and suffered an abrasion to his left hip and a red swelling mark on the left side of his head. Passing witnesses came to the aid of the victim, and when it was seen that the victim was not moving or responding, the applicant left the scene. The victim was taken away in an ambulance. When the applicant was apprehended, he denied all knowledge of the incident. At the time of this offence, and two other offences dealt with before the Children’s Court, the applicant was on parole.

18. The transcript of the Children’s Court Magistrate’s sentencing remarks made on 22 October 2014 records that alcohol was to be blamed for the applicant’s conduct and that it was behaviour learnt from the environment in which he was raised with his grandmother.

19. Further convictions soon followed on 10 May 2016 and 20 July 2016, for which further bonds were imposed. However, on 10 August 2016 the applicant was convicted of destroy or damage property between the value of $5000 and $15,000 for which he was given a bond and 11 month supervision order which was a call up of a previous bond. On the same day the applicant was convicted of stealing and was given a suspended sentence  for three months imprisonment, during which he was placed under the supervision of NSW probation services.

20. Thereafter, the level of seriousness of the offending increased. On 1 August 2017 the applicant was convicted in the Local Court of New South Wales of demanding property with menaces with intent to steal, and stealing from the person. On that occasion the applicant had entered a service station where his companion asked for cigarettes. When the attendant refused to provide the cigarettes free of charge, the applicant said:

    “There’s a knife with me. I will kill you if you don’t commit the smokes. I will smash you if you don’t give me smokes”

21. The applicant then placed his hands down in front of his trousers, suggesting that he was carrying a weapon. The attendant was scared, and called 000. The applicant then stole $20 in the hands of a 66-year-old woman who was waiting to pay for petrol. The attendant was a student, working at the service station apparently to pay for his tertiary studies and was working alone.

22. Although it was submitted for the applicant that the offence was in the low range of criminal offences, the judge did not agree, referring to the fact that he put terror into the elderly person from whom he stole. The terror resulted from the threats that he was going to stab the attendant, although the applicant did not have a knife with him at the time of the offence.

23. For this offence imprisonment of 12 months was imposed, with a nine month non-parole period. However in respect of the stealing, the applicant was imprisoned for 18 months with a non-parole period of 12 months, subject to supervision.

24. Despite such matters, on 30 August 2017 the applicant again came before the courts charged and convicted of destruction of property, stealing from a person, an aggravated entry into a dwelling in company with intent to steal less than $60,000. The latter offence involved the forced entry into the residence of another person and stealing. The applicant, at the time of the offence, was attending a party in an apartment in a home unit building. He left that venue and broke into another home unit in the same complex to steal money, as he was homeless at that time.

25. By virtue of the offending, especially the sentences of imprisonment, the applicant does not pass the character test defined in subsection 501(7) of the act.

    PROTECTION OF THE AUSTRALIAN COMMUNITY: CLAUSE 13.1

26. The applicant has made attempts to rehabilitate himself, and attributes his conduct to a drinking problem. He has completed several courses including Life Challenge Program for Young Offenders, a Rehabilitation Program for the Treatment and Prevention of Drugs and Alcohol Use, and an EQUIPS foundation program, designed to provide skills to address personal issues and allow reintegration into the community. The applicant has expressed remorse for his offending.

27. Despite such attempts, and such remorse, it is apparent that the applicant has a record of violent conduct towards others, including members of the Australian community who were unknown to the applicant. Such conduct is evidenced by the violence attributed towards others whilst he was a juvenile man but, more particularly, in recent years when the applicant’s offending has markedly increased in seriousness. The offence of holding up a defenceless attendant at a service station for personal gain, and the theft from an elderly Australian woman, demonstrates that despite all the good behaviour bond is which have been provided to the applicant, rehabilitation has been unsuccessful.

1. At the hearing the applicant relied upon a statement which had been prepared, apparently for him. The applicant claims to apologise for the matters resulting in convictions, both as a juvenile as it and as a young adult. He claimed that he associated with the wrong people and struggled to find his own identity. The applicant claims full responsibility. The applicant also, in the course of evidence, testified that he did not wish to put his close family, namely his partner and his partner’s mother and grandmother, through such an experience again. The applicant refers to the programs which he has undertaken and the rehabilitation programs for drug and alcohol. He states that he has ongoing access to support in the community through services which conduct a variety of general support programs.

2. The applicant states that prior to his incarceration he had just begun to reside with his partner and her family who live away from the bad environment in which he formerly lived. He states that being away from old acquaintances and the environment and lifestyle he originally knew would keep him “on the straight and narrow”. He claims to have commenced integration back into the community and looks forward to returning to his work as a concreter. He hopes to be a productive and law-abiding member of society and the community.

3. The applicant also relied upon two statements of his partner’s mother. Her first statement and her evidence, establishes that the applicant came to live with her, her daughter and son,  approximately four months before his incarceration. She spoke highly of his abilities and claims that she would regard the applicant “as my own son”. She refers to the applicant as being a “very happy, energetic and positive person”. The applicant came to live with such witness shortly after one of her children’s partners passed away and throughout that tragedy, the applicant has assisted the family. The witness states she has spoken to his employer personally and confirmed that there is work available for him on his release. The witness also states that she does not feel that the applicant’s loss of residency would not benefit Australia. She puts his experiences down to “mistakes”.

4. The second statement of the same witness largely challenges the findings of the courts in which the applicant was convicted. The statement is argumentative. During her oral evidence, this witness stated that she did not consider that the offences with which the applicant had been convicted to be particularly serious. She referred to the criminal history of the applicant as being “not violent crimes”; that they were out of character; that they were restricted to weekends.

5. The Tribunal observes that the decision of the Federal Court of Australia in HZCP v Minister for Immigration and Border Protection (2018) FCA 1803 states clearly the principles to be adopted when considering a criminal record at [78] to [80]. At [78] Bromberg J relevantly stated the principles to be:

   “(1) Where a previous conviction is the foundation for the exercise of power by the decision-maker, no challenge can be made to the fact of the conviction (or sentence, is a case may be) or to the essential facts on which it is based, but the circumstances of the conviction may be reviewed for a purpose other than impugning the conviction itself.

   (2) Where the exercise of the power is not founded on the conviction, then the essential facts underlying the conviction are not immune from challenge and the conviction is only conclusive of the fact of the conviction itself, albeit there is a heavy onus on the person seeking to challenge the facts upon which the conviction is necessarily based.”

6. In the present circumstances, only (1) is relevant. As such, no challenge can be made to the essential facts upon which the conviction was based. It follows that the applicant’s partner’s mother’s consideration cannot impact upon the decision-makers conclusion, but her attempts to minimise the seriousness of the offences is concerning.

7. The applicant relied upon a statement of his partner’s grandmother. However, when called upon to give evidence it became apparent that such witness had no direct involvement with the applicant’s life.

8. The Tribunal considers that there is a real risk that the applicant will offend again, and that his continued presence represents a risk to the Australian community. However, for the reasons which follow, the risk is not as significant as it existed before the applicant’s incarceration.

   BEST INTERESTS OF MINOR CHILDREN: CLAUSE 13.2

9. The applicant is not married and has no children. He has several nieces and nephews and five cousins, but no detail has been provided of their ages nor of any personal details which suggest that non-revocation of the applicant’s Visa could be harmful to any infant children.

10. During the hearing of this application the applicant stated that he has step brother who is now 20 years of age. In addition, he has three step sisters who are aged 16, 13 and eight years. He has developed a good relationship with the youngest step-sister. However, the applicant has not seen her for more than two years. There is no evidence of any positive relationship between the applicant and the older two step-sisters. Based upon the paucity of evidence, it appears that if the applicant played any role in the life of the older step-sisters, it has been very limited.

11. The Tribunal has been furnished with a statement of the applicant’s partner’s brother, who is 16 years of age. He states that the applicant has been:

    “…an amazing male role model to me. Through his experiences I have learnt how to stay away from repeating his mistakes and dealing with my issues and feelings in a different way and that is thanks largely to him and watching what he has endured for the last year now”.

12. Such witness states that the applicant has helped him make decisions in the completion of his education and explains that he is currently studying for his HSC online whilst working full-time. He states that the applicant has helped his family through some very hard times. The witness states that whilst the applicant has made “mistakes”, the revocation “would be too painful a thought for any of us to bear”.

13. The Tribunal accepts that in regard to the best interests of the youngest step sister of the applicant, and of the 16 year old brother of the applicant’s partner, it would be preferable for the visa revocation to be set aside.

14. The Tribunal also observes that there appears to be a very young child of the mother of the applicant’s partner, who has provided two written statements as referred to above and who testified in support of the applicant. No detail is available in respect of such infant.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY: CLAUSE 13.3

15. Clause 13.3 of Direction 79 states that the Australian community expects noncitizens to obey Australian laws whilst in Australia. Clause 13.3 (1) also states:

    “Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or whether non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.”

16. The applicant, by his continued offending over many years, has demonstrated a disregard for the Australian law. The applicant has also shown a disregard in respect of rehabilitation that might have resulted from the latitude given to him by the imposition of good behaviour bonds.

17. The nature of the violent offending of the applicant, against the community members, leads to the conclusion that the expectation of the Australian community is that the applicant’s Visa should remain cancelled.

    OTHER CONSIDERATIONS: CLAUSE 14

18. Direction 79 requires the Tribunal to consider international non-resettlement obligations as provided in clause 14.1. However there is no relevant issue on this application for such consideration.

19. The Tribunal is to consider the strength, nature and duration of ties which the applicant might have: see clause 14.2. Clause 14.2(1) requires the Tribunal to consider the length of time that the non-citizen has resided in Australia and the strength, duration and nature of family or social links with Australian citizens, Australian permanent residents and others who have an indefinite right to remain in Australia.

20. The Tribunal notes that the applicant has resided in Australia for 11 years, and was 11 years old when he arrived in Australia. Accordingly he has lived in Australia for half of his age. The applicants schooling, both primary and secondary, has been in Australia, as has his employment. His mother resides in Australia with the applicant’s step brother and stepsisters.

21. There is little material available concerning the relationship with the applicant’s biological mother. However there appears to be support from his stepmother and stepbrother with whom the applicant resided prior to his incarceration.  The stepbrother claimed that the applicant had been a male role model.  The applicant has been in a relationship for two years and the applicant claims that he intends to marry his partner. However there is no confirmation and in his Personal Circumstances Form, the applicant lists such partner as a stepsister. At the hearing the applicant acknowledged that such statement was incorrect. He frankly admitted that he lied when completing the form because he was concerned that, as he was 22 and his partner was 16 years of age, such fact might be detrimental to his application.

22. The material suggests that the applicant’s biological parents have been separated since he was a very young child and the applicant has no recollection of his father.

    Other considerations: extent of impediments if removed clause 14.5

23. The applicant has been employed, as already referred to, as a concreter. The applicant’s skills should be useful in Tonga. He was 11 years of age when he left Tonga and accordingly should have some recollection of the customs and language of that country. According to the Personal Circumstances Form, the applicant has five uncles or aunts; three nieces or nephews; 20 cousins and a grandparent who reside in Tonga. Accordingly whilst there will be some emotional break in Australia from his stepmother and stepbrother, there is family for him in Tonga who could provide support if he were to establish himself in that community.

24. Direction 79 also requires the decision-maker to have regard to any impact on Australian business interests (clause 14.3). There is no evidence of any business interests involving the applicant.

25. The decision-maker is also to have regard to the impact upon the victims. There is no material which suggests that the victims would be advantaged or disadvantaged by the non-revocation of the applicant’s visa.

    SUMMARY OF SUBMISSIONS FOR APPLICANT

26. The applicant blames alcohol for such conduct, and there is evidence to suggest that most of the offences resulted from consumption of alcohol.  Whilst there remains a prospect that the applicant will reoffend, there are several reasons, set out hereunder, which the applicant submits would lower the risk of re-offending.

27. First, the influence of the partner of the applicant, and of her mother and her son would be beneficial. Hitherto, as evidenced from the transcripts of the court proceedings, it appears that the applicant has suffered a turbulent childhood and young adulthood. He has not had the benefit of any proper parental direction, which has caused him to engage in excessive alcohol consumption which has been unchecked. This in turn has led to his criminality.

28. Second, the applicant’s partner’s mother has stated that she has a high regard to the applicant and will provide a home for him. This would be another important factor in ensuring that the applicant is separated from the previous group in which he appears to have been associating.

29. Third, there is the promise of work. If the applicant is afforded constant work, this should further replace him in a position of minimising risk of associating with his former associates.

30. Fourth, the applicant professes to claim to have now recognised the errors in his earlier adulthood and childhood. It may be that such recognition arises from the period of incarceration, combined with the fact that he has, at least for a short period of four months, lived in a household where there has been some stability and recognition of the values which must be followed if the applicant wishes to remain living in Australia.

31. Fifth, as was observed by the legal representative for the Minister, the applicant was quite candid in his evidence before the Tribunal, even when it was not in his interest. For example, he acknowledged that the award of good behaviour bonds represented a second chance for him. The Tribunal is minded to believe that this could be the manifestation of his recognition that if he wishes to remain in Australia, his life must change.

32. Six, the applicant has undertaken courses whilst in gaol to rehabilitate himself, and particularly to address his alcohol consumption issues.

33. Seven, the applicant has found a partner. Although this relationship existed for only four months before the applicant’s incarceration, the relationship is continuing, and has existed throughout his period of incarceration. Such relationship should provide some stability for the applicant in the future.

34. Eight, the applicant committed all the offences whilst he was a juvenile and as a young man. Alcohol was the catalyst for such offending. The applicant’s demeanour during the hearing suggested that he recognises that such conduct was unacceptable in Australia.

35. Nine, if the applicant were returned to his home country, it would be especially difficult for him. With no close relatives, and having lived effectively all of his young adulthood in Australia, and in a capital city, it would be difficult to adjust to an island community, where he has only remote family, no ties and no employment readily available to him. Further, it would impact adversely upon his prospects of marriage to his partner. Until he was incarcerated, he did not know that he was living in Australia on a bridging visa, or indeed any visa.

    SUBMISSIONS OF MINISTER

36. The Minister submits that, since the applicant was only the holder of a bridging visa, the applicant has no right to remain in Australia. The Tribunal acknowledges, that the holding of a bridging visa does not give the same entitlements as would a visa granting more permanent status. Further, the Minister submits that the violent history of criminality, and the opportunities ready afforded to the applicant, warrant revocation of the Visa.

    CONSIDERATION OF SUBMISSIONS

    2013 offence

37. The report prepared in relation to the 2013 assault records:

    “David reported that his behaviour is aggressive and violent towards other people when he is under the influence especially towards others he perceives as controlling his behaviour. David reported an understanding that his alcohol use is affecting his lifestyle and he is concerned about his risk of further anti-social behaviour and offending if he doesn’t require the skills to refrain and manage his alcohol misuse…

    Whilst David was on previous bail conditions, a referral was made for him to attend counselling at Manly Drug Education and Counselling Centre. His previous juvenile justice That officer, [X) confirmed that he attended two appointments with a counsellor, however during the assessment for this report, David reported that he did not want to attend further appointments unless directed by the Court as a requirement of his release from custody…

    David initially engaged in counselling with the centre Psychologist working on issues within the family and his future goals, however since his case conference in November 2013, David has not engaged.…”

    David has many contributing factors that place him at high risk of reoffending…”

    2014 offence

38. The criminal history of the applicant shows that all attempts to rehabilitate the applicant have failed. A record relating to the convictions in 2014 states:

    “In addressing the offence committed on 13 July 2014 David [the applicant) described his efforts in trying to refuse an older Tongan peer who was entrenched in the juvenile are now adult justice system. David identifies the relentless online pressure he received via Facebook to travel to the city to consume alcohol. After giving in and drinking to the point of blacking out David struggled to recall details, however he acknowledges his commission of these offences and the outlined victim impact

    In canvassing levels of empathy and remorse, David appeared to grasp empathy by outlining his awareness of the consequential fears, anxieties and flashbacks of his victim is likely experiencing as a result of his violence”.

39. The report refers to the fact that since a custody or case conference held on 13 October 2014, the applicant and his mother “have initiated a referral to Mission Australia to begin family therapy”.

    2017 offence

40. A Pre-Sentence report prepared in respect of the 2017 offences records:

    “[the applicant] disclosed a history of binge drinking behaviour prior to the current offences. He advised he was consuming alcohol on a daily basis to intoxication. [The applicant] has previously been referred to intervention to address his alcohol use, however, does not appear to have engaged with these services”.

41. There is no evidence submitted to the Tribunal that the applicant has overcome his problem with intoxication. While courses were undertaken towards rehabilitation whilst the applicant was in gaol, there has been no opportunity to satisfy the Tribunal that the applicant has been rendered a rehabilitated person. The applicant seemed disinterested when undertaking similar courses in the past, and the risk of re-offending remains high. 

42. The violent conduct of the applicant has been directed at members of the public who were unknown to him. In respect of the 2013 offence, the applicant, in the company of others, attacked a member of the public without any provocation and after punching the victim, kicked the victim whilst he was on the ground multiple times. The victim was conveyed to the emergency Department of a hospital where he was found to have a fracture of the jaw requiring surgery.

43. The Tribunal finds that the protection of the Australian community, as a primary consideration, warrants cancellation of the applicant’s visa. Further, the Australian community would expect that the applicant’s visa remain cancelled. However the Tribunal considers that the best interests of minor children in Australia, as discussed above, is a factor in favour of the setting aside of the revocation. Further, under the other considerations to be taken into account, particularly clause 14.2, namely the nature and duration of the ties of the applicant to this country, indicates that the setting aside of the revocation would be preferable.

44. Having weighed up all the considerations, the Tribunal is satisfied that the protection of the Australian public outweighs the personal interests of the applicant. The applicant has shown no attempts to overcome his drinking problem. Nothing has been put forward which would give the Tribunal any assurance that the reoffending would not re-occur. If it does, members of the Australian public will be placed at risk of harm. There is no question that the expectation of the Australian community requires that the visa remain cancelled.

    DECISION

45. Accordingly the Tribunal finds that the decision under review should be affirmed.

I certify that the preceding 79 (seventy - nine) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President

................................[sgd]........................................

Associate

Dated: 9 April 2019

Date of hearing:	27 March 2019
Applicant:	In person
Solicitors for the Respondent:	Mr A Markus Australian Government Solicitor