Pomare and Minister for Home Affairs (Migration)

[2018] AATA 1401

Pomare and Minister for Home Affairs (Migration) [2018] AATA 1401 (29 May 2018)

Division:GENERAL DIVISION

File Number(s):      2018/1591

Re:Phillip Pomare

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:29 May 2018

Place:Sydney

The decision not to revoke the cancellation of the Applicant’s visa is affirmed.

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

Senior Member M Griffin QC

CATCHWORDS

MIGRATION – non-revocation of decision to cancel visa – failure to pass character test – Ministerial Direction 65 applied – protection of the Australian community – nature and seriousness of conduct – risk to the Australian community – best interests of child – expectations of Australian community – other considerations – decision affirmed

LEGISLATION

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

SECONDARY MATERIALS

Direction No. 65, Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

1. The decision under review is a decision made by a delegate of the Minister for Home Affairs dated 22 March 2018, not to revoke an earlier decision to cancel the Applicant’s subclass Class TY Subclass 444 Special Category (Temporary) visa.

   Chronology

2. The Applicant is a 33 year old citizen of New Zealand. He first arrived in Australia on 17 September 1990 at the age of 6. He was granted the visa on 30 July 1995.

3. On 6 April 2017, the Department of Immigration and Border Protection mandatorily cancelled the visa under s 501(3A) of the Migration Act 1958 (the Act), because the Applicant had a substantial criminal record and therefore did not pass the character test under s 501(6)(a).

4. On 28 August 2017, the Applicant made representations to the Department about revoking the decision to cancel the visa.

5. On 22 March 2018, a delegate of the Minister decided not to revoke the original decision to cancel the visa under s 501(CA)(4) of the Act.

6. On 26 March 2018, the Applicant applied to the Tribunal for review of the delegate’s decision.

   Criminal history

7. The Applicant has been charged with 78 offences between 2 November 1999 and 21 February 2017. These are, to all intents and purposes, accepted by the Applicant.

8. The Respondent has categorised these offences as follows:

   -The Applicant has been charged with offences relating to violent conduct. These include that the Applicant was charged with 8 counts of resisting police or assaulting police. He was charged with 2 other counts of violence or assault. He was charged with 3 counts of stalking or intimidating a person with the intention to cause fear of physical harm. He has also been convicted of 6 offences relating to carrying or using weapons.

   -          The Applicant has been charged with 19 offences relating to stealing.

   -The Applicant has been charged with 27 driving offences, including involving a police pursuit and 2 counts of driving recklessly/furiously.

   -          The Applicant has been convicted of 5 counts of destroying or damaging property.

   -          The Applicant has been convicted of 4 offences relating to drugs.

   -The Applicant has been convicted of 4 other offences: 1 offence involving swearing, 1 for riding a bike without a helmet, 1 for a form of trespass and 1 for bringing a syringe into a detention centre.

   Specific offences

9. The Applicant was convicted for a series of driving offences between 2001 and 2002.

10. On 31 October 2002, the Applicant received his first sentence of imprisonment, for 6 months, for offences relating to the theft of a car. On 27 November 2002, he was convicted of further stealing offences, and subject to probation and a control order, and directed to attend drug and alcohol services.

11. On 25 September 2004, the Applicant was arrested for stealing wheel nuts from a motor vehicle. When he was arrested, he lied to police, stating that the car was his aunt’s. He was also caught in possession of stolen Star Wars videos. He was convicted for 12 months’ imprisonment, with a 9 month non-parole period, which was confirmed on 8 February 2005. On 7 March 2005, he was warned that his visa was liable to be cancelled as a result of this offending, although the Minister decided not to cancel the Applicant’s visa. The Applicant was warned that any future offences would result in a fresh assessment of whether to cancel the Applicant’s visa.

12. On 29 March 2006, the Applicant was convicted of assaulting a police officer.

13. According to sentencing remarks, it appears that while the Applicant was in custody, a police officer had taken him to a cell or area for him to have a cigarette and when the officer attempted to exit the cell or area, the Applicant attacked him in a violent manner from behind. On that day he was also convicted of  a “fairly violent” resist arrest, a larceny charge for stealing a police badge, a mobile phone, a backpack and a safety vest and a malicious damage charge. For the assault charge, the Applicant was sentenced to 18 months’ imprisonment, with a 12 month non-parole period.

14. On 3 May 2007, the Applicant was involved in conduct which included resisting an officer in the execution of his duty. He was convicted of this offence on 5 December 2007, together with offences involving possession of a stun-gun and stealing offences. He was sentenced to 15 months’ imprisonment for possessing the stun gun and directed to attend a drug and alcohol program and a Pacific Islander program.

15. In April 2008, the Applicant was convicted of an offence of stalk/intimidate with the intention of causing fear of mental or physical harm in relation to the Applicant’s mother. His mother subsequently took out an apprehended violence order against him.

16. On 29 April 2008, the Applicant was notified that the Minister was considering, again, whether to cancel the Applicant’s visa. The Applicant received a warning on 25 June 2008, that his case would be reconsidered if he offended further and that disregarding that warning would weigh heavily against the Applicant if his case were reconsidered.

17. On 25 February 2009, the Applicant was sentenced for a custodial sentence of 18 months, with a non-parole period of 9 months for entering a house with an intention to steal goods and possessing housebreaking implements. The Applicant committed this offence while under the influence of substances.

18. On 28 August 2009, the Applicant was given a third warning that his continuing conduct could result in the cancellation of his visa.

19. On 24 February 2010, the Applicant was convicted of common assault and assaulting a police officer, among other offences, all committed while on parole. The Applicant assaulted a taxi driver because he made a comment which the Applicant found to be distasteful. The Applicant was sentenced to eight months’ imprisonment, with a six month non-parole period ending on 28 April 2010.

20. In late 2012, the Applicant was driving a vehicle which he claims to have bought, but was convicted of having goods in custody reasonably suspected of being stolen. He was driving while disqualified and involved in a police pursuit at excessive speeds. When he was arrested he was sprayed with capsicum spray, and he then resisted his arrest and assaulted a police officer. He was taken into custody on 9 November 2012. On 17 January 2013 he was sentenced to 12 months’ imprisonment commencing on 9 November 2012, and was eligible for parole on 8 May 2013.

21. On 4 November 2014, the Applicant committed offences involving possessing a semi-automatic pistol and firing that pistol at his father. That morning, around 7am, the Applicant’s father assaulted his mother. At 4pm that day, the Applicant and his sister’s partner drove to his mother and father’s house. The Applicant got out of the car was heard to yell out “Dad. Where’s my fucking father”. The Applicant then fired the gun 4 times in the vicinity of his father. Throughout these events the Applicant and his father were yelling and swearing at each other. The Applicant left in a car. The pistol was not located by the police. On 21 February 2017 he was sentenced to an aggregate non-­parole period of 2 years and 9 months, commencing on 12 November 2014 and expiring on 11 August 2017, with an additional term of 1 year and 3 months commencing at the expiration of the Applicant’s non-parole period, which will expire on 11 August 2018.

    Issues

22. The Applicant clearly does not pass the “character test” (see s 501(6)(a)).

23. Accordingly, the issue to determine is whether, having regard to Ministerial Direction No. 65 (Direction 65), the mandatory cancellation of the visa should be revoked.

    Relevant legislation and policy

24. 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).

25. Subsection 501CA(4) provides that (emphasis added):

    (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.

26. Subsection 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).

27. Subsection 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.

28. 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 No 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes 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(3));

    (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)).

29. 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.

30. I will now deal specifically with the issues required by Direction No. 65.

    Protection of the Australian community from criminal or other serious conduct

    Nature and seriousness of relevant conduct and risk to the Australian Community

31. The nature and cumulative effect of the Applicant’s criminal history and conduct are very serious.

32. Not only is the Applicant’s cumulative offending history very serious, it is also wide-ranging, violent and has continued to escalate. Although the Applicant gave evidence that he has matured and changed, I have grave misgivings about this. His offending history demonstrates that, even having attempted rehabilitation on occasions, he fell back into criminal behaviour. The warnings of loss of his visa and deportation by Government officials did not act as a deterrent. Prison has not acted as a deterrent. He said in evidence that he was institutionalised.

33. The Applicant tendered a report of his treating psychologist, Laura Durkin, who stated “gaol is no deterrent for him now and is rather a break from the ongoing stress of substance dependence and crime that he experiences in the community”. The report continues: “the Applicant has traits which have remained through the Applicant’s adulthood and have seemingly become increasingly embedded including a pattern of impulsivity in which he has failed to moderate his conduct and poor consequential thinking. He also has anti-social attitudes which distort his judgement”.

34. I pause to note that this is a tragic case. The Applicant’s life has been characterised by violence and he has been surrounded by those who perpetrate violence and commit crimes, save for his mother, who gave evidence and is very supportive of him. As the psychologist wrote, “the Applicant seems to have become so enmeshed with the anti-social subculture that he now struggles to operate pro-socially for any length of time”.

35. An analysis of his criminal history, with which he substantially agrees, shows that he has spent the greater proportion of his adult life in prison. In terms of protection of the Australian community, I consider the risk to the Australian community of repetition of criminal conduct is very high indeed. Cumulatively, the two limbs of this primary consideration weigh very heavily in favour of visa cancellation. Moreover, nothing that the Applicant has said in evidence gives any real confidence that he has actually reformed. Overall, these considerations weigh heavily against a decision to revoke cancellation of the Applicant’s visa.

    Best interests of minor children

36. The Applicant has two daughters aged 13, who were born to different mothers. The evidence discloses that the Applicant has maintained some contact with one daughter, the other he has had virtually no contact with at all. He has made plans to have one of his daughters live with him. I infer from his evidence that he wishes to have contact with both children. Further, there is evidence that he has been offered accommodation in the country, far away from bad influences, by a friend of his mother. I accept that this is a genuine proposal. There is no doubt any child, particularly a teenager, would in normal circumstances, benefit from contact with their father. This consideration, I regard, however, as carrying only limited weight in the Applicant’s case.

    Expectations of the Australian community

37. The Applicant’s extensive and violent criminal history does not, in my opinion, meet Australian community expectations. The Australian community would expect that the Applicant should not hold a visa (see cl 13.3(1)).

    Other Considerations

    International non-refoulement obligations

38. The Applicant claimed in 2013, that if he were returned home he was concerned for his safety because his parents were involved in gangs, and his aunt and uncle were murdered on their return to New Zealand. This claim was repeated by the Applicant’s family members.

39. I conclude that the Applicant’s claims do not engage Australia’s non-refoulement obligations for the purposes of cl 14.1 of Direction 65.

    The strength, nature and duration of the ties to Australia

40. The Applicant has lived in Australia since the age of 6. His relevant ties include his family unit in Australia, including his mother and two adult sisters, who he claims would be badly impacted by his departure. As noted above, the Applicant also has two daughters in Australia, only one of whom he is in contact with.

41. The Applicant’s mother claims that the Applicant would assist and care for her, as she has a disability.

42. The strength of the Applicant’s ties to Australia is limited by the fact that the Applicant has been incarcerated or in immigration detention for 12 of the last 16 years, which has necessarily reduced the contact the Applicant has had with his family and limited his capacity to contribute positively to the community.

43. It is significant that the Applicant has lived in Australia since the age of 6.

44. These ties should weigh in favour of the cancellation decision being revoked. However, the extremely serious conduct and offending of the Applicant to date must be considered in this context.

    Extent of impediments if removed

45. The Applicant claims that if he is returned to New Zealand it would be very difficult, because he would not know what to do or how to live his life.

46. The Applicant has a limited education and job qualifications, and so this may limit the economic support available to him in New Zealand. He has work experience in various non-skilled fields of labour. To the extent that the Applicant is unable to get work in New Zealand because “[h]e is ambivalent about engaging in employment and to his mind he is emotionally and physically ill-equipped to do so.” This should be given lesser weight because this is an impediment which would affect the Applicant regardless of whether he was removed to New Zealand. In any event, if unemployed in New Zealand, the Applicant would be eligible for welfare payments. It is relevant and in the Applicant’s favour that he holds safety concerns for himself (referred to in the Non-refoulement issues).

47. The Applicant has a number of ongoing medical issues, including Hepatitis C, reported episodic memory deficits and drug related psychosis. However, as a New Zealand citizen, the Applicant would be able to access health care services in New Zealand.

48. The Applicant has demonstrated some impediments that he would face, for the purposes of clause 14.5, if he returned to New Zealand. These, taken together, are not in my opinion, of any great magnitude.

49. Specifically, should his visa be cancelled, the Applicant’s family, particularly his mother and sisters, will be negatively affected by his removal to New Zealand.

50. There is no evidence to suggest there would be any impact on the Applicant’s victims nor is there any evidence as to the impact on Australian business interests.

    CONCLUSION

51. Although there are some features to which I have referred that are in the Applicant’s favour, for example, his children, impact on family members, and the Applicant’s health issues that favour revocation of the mandatory cancellation of the visa, in my opinion, the primary considerations of protection of the Australian community and expectations of the Australian community so vastly outweigh any other considerations in the Applicant’s favour that the decision not to revoke the cancellation should be affirmed.

    SM Griffin QC

    Date: 29 May 2018

I certify that the preceding 51 (fifty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 29 May 2018

Dates of hearing:	16 and 21 May 2018
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton, Australian Government Solicitor