Pohahau and Minister for Home Affairs (Migration)

[2019] AATA 106

Pohahau and Minister for Home Affairs (Migration) [2019] AATA 106 (8 February 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6820

Re:Teavae Pohahau

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:8 February 2019

Place:Sydney

The decision of the Respondent dated 20 November 2018, to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958, is affirmed.

...........................[SGD].......................................

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa – mandatory cancellation – failure to pass character test – Ministerial Direction No 65 – frequency of reoffending – cumulative effect of repeated offending – unacceptable risk of reoffending – strength, nature and duration of ties to Australia – extent of impediment if removed – best interest of minor children – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) s 499, 500, 501, 501CA

SECONDARY MATERIALS

Minister for Immigration and Border Protection, Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

8 February 2019

1. The Applicant seeks review of a decision of a delegate of the Respondent not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the “visa”). The subject decision was made on 20 November 2018 and the application for review with the Administrative Appeals Tribunal (the “Tribunal”) was made on 20 November 2018 and therefore within the statutory time period.

   BACKGROUND

2. The Applicant was born on 5 November 1985 in New Zealand. He arrived in  Australia on 19 October 1986, as an infant of nearly one year old and has not left Australia since.

3. The Applicant has a lengthy criminal history, referred to in Exhibit 1 (G5). He has been before the court on 55 occasions. In many instances he was convicted of multiple offences in relation to those appearances. He has also been before the court in relation to breach of bail on a number of occasions. In summary, the Applicant has had a criminal history which commenced at the age of about 17 and he has been regularly before the courts ever since, until his last conviction in October 2017 at the age of 32. He was then placed into custody and then immigration detention, and has not been in the community since about September 2017.

4. The Applicant was sentenced to a term of imprisonment of 12 months in April 2017 to be served by way of an intensive correction order and his visa was mandatorily cancelled as he was serving a full time term of imprisonment.

5. The Applicant has been sentenced to many terms of imprisonment totalling more than 12 months. The offences include offences of larceny, shoplifting and goods in custody, possess prohibited drug, motor vehicle offences including driving without a licence, driving while disqualified, negligent driving and driving uninsured, assault and affray, breach of domestic violence order and, more recently in 2017, two convictions for supply prohibited drug.

6. The Applicant has had short periods of incarceration in 2007 and 2008, about eight months in 2008-9, two months in 2009, about six months in 2009-10, five months in 2010-11, nearly 12 months in 2011-12, five months in 2012-13, and then his most recent custodial sentence which commenced in September 2017.

7. The Applicant was formally counselled in relation to his offending and the impact this may have on his immigration status in February 2010. The Applicant acknowledged receipt of a letter advising him that further criminal convictions or other relevant conduct could result in the cancellation of his visa. It is clear from the history set out above that this did not impact upon the regularity of the Applicant's offending.

8. The Applicant was further advised that consideration was being given to cancelling his visa under s 501 of the Act in August 2011. The Applicant made representations at that time as to why his visa should not be cancelled and a decision was ultimately made not to cancel his visa. In the notice advising him of the decision, particular attention was drawn to the comment by the delegate as follows:

   Mr Pohahau has already failed to take proper notice of one warning that his visa is at risk. By continuing to commit crimes he faces a more serious risk that he will not be given further chances. He should realise that more convictions could lead to his removal from Australia.

9. In the representations made to the Minister during this process, the Applicant asked "to give me this last chance to turn my life around because I know now I have taking (sic) this beautiful country for granted". He claimed he now knew how to turn his life around and had started going to church and doing various courses. He also stated that "I now chose (sic) my family over drugs and crime".

10. Despite this, the Applicant continued to offend and from the frequency with which he appeared before the courts and was convicted, there appears to have been no change in his behaviour. The offending, in the Tribunal’s view, in fact escalated.

11. When the Applicant was advised of the mandatory cancellation of his visa, he made various representations and also provided a number of letters in support.

12. The Applicant wrote that his daughter and future wife are in Australia as well as his mother and family. He claimed that he has finally "changed my way of life". He refers to the impact on his family members, particularly his daughter, if he were to be removed. He also referred to his current partner, whom he claimed to have been with for four and a half years "on and off”. They knew each other when younger and then re­united in 2012 and he claimed that she "has been a positive part of my life".

13. He acknowledged the role that drug addiction played in his offending and claimed he was on the methadone program and that these issues would be fixed.

14. A letter of support from the Applicant's partner, Ms Hoto, indicated that the Applicant's daughter had only in the last 12 months formed a “close and tight relationship” with her father.

15. Ms Hoto also provided another letter in which she details re-engaging with the Applicant in 2012 and noticing a change in his behaviour. She also expresses her confidence that he would use this latest period of incarceration to get professional help. Ms Hoto also refers to the fact that she has a young daughter.

16. Other letters of support also claim that the Applicant is now taking steps to deal with his drug addiction and this will result in a change from his previous conduct.

17. The Applicant states that while he has done other courses he wasn't ready to stay clean but he has recently completed the Equips Addiction Program in April 2018.

18. The Applicant also claims to have turned his life back to God and again refers to courses he has engaged with and his relationship with his daughter and partner as reasons for him to stay “clean”.

19. The Applicant refers to some medical issues if he was returned to New Zealand, including taking medication for a panic disorder and suffering from depression and anxiety and that he has no ties or familiarity with New Zealand.

20. The Applicant has had limited contribution to the Australian community.

    ISSUES

21. The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to s 501 of the Migration Act 1958 (the “Act”). The Tribunal may revoke the original decision if the Tribunal is satisfied:

    (a)That the Applicant passes the character test as defined by s 501 of the Act; or

    (b)

    There is another reason why the original decision should be revoked

    
    

    (s 501CA(4)(b)).

    RELEVANT LEGISLATION AND POLICY

22. Direction No. 65 – Visa Refusal and Cancellation under section 501 and Revocation of a Mandatory Cancellation of a Visa under section 501CA (“Direction 65”), the relevant paragraphs of which are set out below, describes the framework within which the Tribunal’s discretion is to be exercised in this case.

23. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

24. Subsection 501CA(4) provides that:

    4The 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.

25. Paragraph 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

26. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

27. The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly include that:

    (a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));

    (b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(2));

    (c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));

    (d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa (cl 6.3(4));

    (e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (cl 6.3(5)); and

    (f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused (cl 6.3(7)).

28. Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

29. Pursuant to Part C of Direction 65, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

30. The three primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

    Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct

31. Paragraph 13.1 of Direction 65 provides:

    1When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

    2Decision-makers should also give consideration to:

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

32. The two limbs of para 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

    The nature and seriousness of the conduct

33. Paragraph 13.1.1 of Direction 65 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which include:

    (a)the principle that violent and/or sexual crimes are viewed very seriously (para 13.1.1(1)(a));

    (b)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious (para 13.1.1(1)(b));

    (c)the sentence imposed by the courts for a crime or crimes (para 13.1.1.(1)(c));

    (d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (para 13.1.1.(1)(d));

    (e)the cumulative effect of repeated offending (para13.1.1.(1)(e));

    (f)whether the non-citizen has reoffended 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 (para 13.1.1.(1)(g)); and

    (g)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious (para 13.1.1.(1)(h)).

    The risk to the Australian community

34. Paragraph 13.1.2 of Direction 65 states that decision makers should have regard to the following:

    (a)the principle 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 repeated, is so serious that any risk that it may be repeated is unacceptable (para 13.1.2(1));

    (b)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct (para 13.1.2(2)(a)); and

    (c)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending (para 13.1.2(2)(b)).

    Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

35. The considerations at para 13.2 of Direction 65 include:

    (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) (para 13.2(4)(a));

    (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 (para 13.2(4)(b));

    (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 (para 13.2(4)(c));

    (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 (para 13.2(4)(d));

    (e)Whether there are other persons who already fulfil a parental role in relation to the child (para 13.2(4)(e));

    (f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (para 13.2(4)(f));

    (g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect (para 13.2(4)(g)); and

    (h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct (para 13.2(4)(h)).

    Primary Consideration 3 – Expectations of the Australian community

36. Paragraph 13.3 of Direction 65 provides:

    1The 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. Non-revocation 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 continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.

37. The principles to be applied, as set out in para 6.3 of Direction 65, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes (para 6.3(2) of Direction 65).

    Other Considerations

    International non-refoulement obligations

38. The considerations at para 14.1 of Direction 65 include:

    (a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations (para 14.1(1));

    (b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa (para 14.1(2));

    (c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled) (para 14.1(3));

    (d)Where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked (para 14.1(4));

    (e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated (para 14.1(5)).

    Strength, nature and duration of ties

1. The considerations at para 14.2 include:

   (a)how long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community (para 14.2(1)(a));

   (b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family (para 14.2(1)(b)).

   Impact on Australian business interests

2. Direction 65 notes an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia (para 14.3(1)).

   Impact on victims

3. Paragraph 14.4 of Direction 65 provides:

   1'Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for visa cancellation has been afforded procedural fairness.'

   Extent of impediments if removed

4. The extent of impediments if removed requires consideration of 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: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support.

   DISCUSSION

   Character test

5. It is clear according to the Act that because of the Applicant’s past criminal history he does not pass the character test.

   Protection of the Australian community (past conduct and future risk)

6. In considering the protection of the Australian community, Direction 65 focuses attention on the nature and seriousness of the Applicant's conduct to date and the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

7. While the Applicant's offending falls outside the category of very serious offending, the repetition of offending over a number of years causes the Tribunal to view representations made by the Applicant that he has now realised that he needs to change his behaviour with scepticism. At least some of the many offences do fall within the concept of serious offences under Direction 65, being those offences involving violence. The Tribunal considers that the frequency of offending and the cumulative effect of repeated offending are particularly relevant in this matter. This is highly suggestive of a risk of future offending.

8. Considering whether the Applicant represents an unacceptable risk of harm to the Australian community, the Tribunal cannot be satisfied that there is little risk of the Applicant reoffending. In fact, the opposite conclusion suggests itself. The knowledge that further offending may lead to his visa being cancelled has not inhibited his behaviour. Following receipt of the formal counselling letter in February 2010, the Applicant went on to commit some 60 offences.

9. There is little in the Applicant's history that would support his claim to be rehabilitated. The Applicant essentially made similar representations during his previous visa cancellation process. While the Applicant now points to a relationship with his current partner as being a driver for changed behaviour, this relationship has been in existence since 2012, yet since that time the Applicant has been convicted of many offences. Much of the more serious offending in the Applicant's criminal history also occurred during this time; in particular, the two convictions for supply drugs, affray and common assault all occurred during this period.

10. The Applicant has undertaken an Equips course recently while in custody. The Applicant was under the Drug Court regime for some time with its alternative processes available to assist people addicted to drugs. However, his criminal history demonstrates that he was not successful in this. He has not been released into the community since engaging with this program and his claims to rehabilitation are untested.

11. The Applicant has been the subject of an earlier cancellation process and formal counselling and his response to these processes was that he continued to offend in either a similar or more serious manner.

12. Ultimately, the Tribunal is unable to accept on the evidence that the Applicant has rehabilitated. The Tribunal considers that the Applicant presents an unacceptable risk of reoffending in the future.

    Best interests of minor children in Australia affected by the decision

13. In relation to the second primary consideration, the best interests of minor children affected by the decision, the Applicant has both a biological daughter and appears to have a relationship with his current partner's child.

14. The Applicant's mother has custody of his daughter. This explains the comments by Ms Hoto that his daughter has only recently developed a connection with him.

15. It is accepted by the Tribunal that it would be in the best interests of both children for the Applicant to remain in Australia. This consideration weighs in favour of revoking the cancellation.

    Expectations of the Australian community

16. In relation to the third primary consideration of the expectations of the Australian community, the Applicant's offending to date, viewed cumulatively, is serious and there is an unacceptable risk that he will continue to offend for the reasons set out above. In the circumstances, the Tribunal considers that, applying the principles set out in this consideration, the expectations of the Australian community would be that the Applicant's visa cancellation not be revoked.

    Other considerations

    International non-refoulement obligations

17. A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

18. There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.

    Impact on Australian business interests

19. There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.

    Impact on victims

20. There is nothing in the material which suggests that this consideration is relevant to the Applicant’s case.

    Strength, nature and duration of ties

21. The Applicant has resided in Australia since he was one year old. The Applicant has raised his connections with a number of persons present in Australia. These include his current partner, Ms Hoto; his mother and brother; his nephew and cousin; as well as other relatives in Australia. It is accepted that these people identified by the Applicant would experience both emotional and practical hardship if the Applicant were removed from Australia. This consideration weighs in the Applicant’s favour.

    Extent of impediments if removed

22. The Applicant has raised as an impediment to removal that he has some medical issues, including a panic disorder; and that he is on the methadone program and suffers from anxiety and depression. There is material in relation to these issues from the Applicant's and some family member's statements. Accepting his claims in relation to this, the comparable health system in New Zealand compared with Australia, the Tribunal considers, would lessen the concerns about the claimed impediments to the Applicant's removal.

23. The Applicant has also claimed a lack of familial support if removed from Australia. On his return to New Zealand, the Applicant would presumably be able to access similar social security support mechanisms of the kind he has been accessing in Australia.

24. The Tribunal accepts that there will be hardship for the Applicant in being sent back to New Zealand due to the length of time he has been in Australia and due to his familial connections in Australia. This consideration weighs in favour of revocation.

    CONCLUSION

25. The Tribunal concludes that these considerations, including the consideration of the best interests of the two minor children identified, do not outweigh the considerations which weigh heavily in favour of not revoking the cancellation decision. The primary considerations of protecting the Australian community and the expectations of the Australian community leads to a conclusion that the Applicant's visa should remain cancelled.

26. The decision under review is affirmed.

I certify that the preceding 64 (sixty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC.

...........................[SGD]..........................................

Associate

Dated:  8 February 2019

Date(s) of hearing:	30 January 2019
Applicant:	In person
Solicitors for the Respondent:	J Hutton, Australian Government Solicitor