Qalovaki and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2582

Qalovaki and Minister for Immigration and Border Protection (Migration) [2017] AATA 2582 (13 December 2017)

Division:GENERAL DIVISION

File Number(s):      2017/5958

Re:Josaia Qalovaki

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:13 December 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

MIGRATION – mandatory visa cancellation – character test – substantial criminal record – multiple terms of imprisonment – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – decision affirmed

LEGISLATION

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

SECONDARY MATERIALS

Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A Poljak

13 December 2017

1. The applicant, Mr Qalovaki, is a citizen of New Zealand. The applicant visited Australia on a number of occasions prior to his last arrival in Australia on 23 December 2008, when he was granted a Class TY Subclass 444 Special Category (Temporary) Visa (visa).

2. On 3 February 2017, the Department of Immigration and Border Protection (“the Department”) issued the applicant a notice that his visa had been cancelled pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).

3. On 14 February 2017, the applicant submitted a request for revocation of the mandatory cancellation decision pursuant to section 501CA of the Act and on 20 September 2017, a delegate of the Minister for Immigration and Border Protection (“Minister”), decided not to revoke the decision to cancel the applicant’s visa. This is the decision under review in these proceedings (“the reviewable decision”).

4. The issues to be determined in these proceedings are whether the applicant meets the character test as defined in section 501(6) the Act, and if not, whether there is another reason why the mandatory cancellation should be revoked (s 501CA(4)(b)(ii)).

   RELEVANT LEGISLATIVE PROVISIONS

5. Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of sections 501(6) and 501(7).

6. Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a substantial criminal record as defined by subsection 501(7).

7. Section 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

8. Section 501CA(4) of the Act provides that the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test as defined by section 501(6); or that there is another reason why the original decision should be revoked. This is a discretionary power.

9. The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 23 December 2014 (“the Direction”).

   CHARACTER TEST

10. The applicant does not pass the character test in section 501(6) of the Act because of his criminal record (set out below), which meets the statutory definition of substantial criminal record in accordance with section 501(7)(c).

    DIRECTION NO. 65

11. Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of the applicant’s visa.

12. Under the heading General Guidance (paragraph 6.2), the Direction provides in part:

    (1)  The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

13. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These 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. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4) 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.

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

    (6) Australia has 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) 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 a non-citizen’s visa should be cancelled, or their visa application refused.

14. The Direction at paragraph 8 requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.

15. The three primary considerations that the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:

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

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

    (c)Expectations of the Australian Community.

    PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

16. In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1 of the Direction, namely:

    (1)  When 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…

    (2)  Decision-makers should also give consideration to: 

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

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

    (a) The nature and seriousness of the applicant's conduct to date

17. The applicant’s criminal history in Australia is extensive. Since July 2008, the applicant committed and was found guilty and/or convicted of approximately 39 criminal offences receiving a total of 7 prison sentences of 12 months or more. The National Police Certificate dated 14 July 2017, details much of the applicant’s criminal offending, which may be summarised as follows:

Offence date/period	Court date	Offence	Sentence
9/07/2011	29/07/2011	Possessing dangerous drugs	Fined $2,200
2/11/2012 – 5/11/2012	21/11/2012	Breach of bail	Fined $350
23/01/2013	24/01/2013	Receive etc property stolen outside NSW Negligent driving (not occasioning death/grievous bodily harm) Not give particulars to other driver Not obey direction of police/authorised person Class A motor vehicle >10km/hr – lidar Unlicensed driver/rider (not licensed for 5 years) – 1st offence	Imprisonment 15 months; non-parole period 3 months Section 10a conviction with no other penalty Section 10a conviction with no other penalty Section 10a conviction with no other penalty Section 10a conviction with no other penalty Section 10a conviction with no other penalty; licence disqualification – 3 months
23/01/2013	11/07/2013	Possess unauthorised pistol	Rising of the Court
12/10/2012	2/06/2015	Enter dwelling by mean of break, in company, and commit indictable offence	Imprisonment 18 months
18/04/2012 – 23/02/2014	2/06/2015	Unlawful use of motor vehicles, aircraft or vessels (5 charges) Unlawful use of motor vehicles, aircraft or vessels –used/intended for indictable offences (3 charges) Unlawful possession of motor vehicles, aircraft or vessels with intent to deprive (2 charges) Assaults occasioning bodily harm	Imprisonment 12 months for all charges Imprisonment 12 months for all charges Imprisonment 12 months for all charges Imprisonment 12 months
13/10/2012 – 2/01/2013	18/06/2015	Breach of bail Commit public nuisance Possession of knife in a public place or a school Failure to appear in accordance with undertaking (2 charges) Burglary and commit indictable offence Possess tainted property Possess property suspected of having been used in connection with the commission of a drug offence	Imprisonment 1 month Imprisonment 1 month Imprisonment 1 month Imprisonment 1 month, both charges Imprisonment 12 months Imprisonment 1 month Conviction recorded; no further punishment
3/02/2016	15/03/2016	Unlawful possession of weapons	Outstanding – warrant issued
6/12/2015	21/03/2016	Commit public nuisance licensed premises or in the vicinity of licenses premises	Outstanding – warrant issued
19/05/2016	21/02/2017	Possess ammunition without holding licence/permit/authority Possess unauthorised firearm Use, supply etc stolen firearm or firearm part Possess unregistered firearm – prohibited firearm Not keep firearm safely – prohibited firearm	Section 10a conviction with no other penalty Imprisonment 2 years; non-parole period 18 months Imprisonment 2 years; non-parole period 18 months Imprisonment 12 months Imprisonment 9 months
30/04/2017	Matter ongoing	Reckless Grievous bodily harm

1. In addition to the applicant’s criminal history detailed in the National Police Certificate, the applicant’s Traffic Record from the Queensland Department of Transport and Main Roads records a number of driving offences spanning from 2008 to March 2016. Offences include driving whilst disqualified, driving whilst unlicensed, speeding and careless driving. Most significantly the applicant has committed two offences of driving whilst under the influence of alcohol. The first occurred on 17 July 2008 and the second on 9 July 2011.

2. The applicant’s criminal history is viewed very seriously, not just because of the breadth of offences but because the applicant’s history includes a number of offences which were violent and/or violent in nature (paragraph 13.1.1(1)(a)). The applicant’s conviction and recent charges of physical violence are summarised below.

3. The applicant was convicted of one charge of grievous bodily harm which occurred on 23 February 2014. The Queensland Court Brief outlines the facts of the charge and records that on that date the applicant was out socialising and drinking with friends at a bar. At closing time the applicant assaulted a stranger in the car park while waiting for a taxi. The fact sheet records that witnesses said the applicant started yelling; approached a group of people challenging them generally to fight and then he struck the victim. The victim suffered a fractured right cheek bone, a suspected skull fracture and a bleed on the brain as a result of the assault.

4. Most recently, the applicant was charged with ‘reckless grievous bodily harm’ following an incident that allegedly occurred on 30 April 2017 while the applicant was incarcerated at Goulburn Gaol. The Police Fact Sheet states:

   “…when for unknown reasons the [applicant] walked up to the victim from the side and punched him to the head, knocking the victim to the ground. Whilst the victim lay on the ground, the [applicant] continued to punch the victim a number of times to the head and then proceeding to stomp on his head on three occasions...

   As a result of the assault, the victim sustained multiple fractures to his skull, jaw, base of neck and bleeding to his brain.

   The entire incident is captured on CCTV and video footage.”

5. Additionally, on 25 October 2017, an incident occurred at the Wellington Correctional Centre resulting in the applicant being charged with “fight or engage in other physical combat”. At hearing he described the environment in gaol as being very hostile and violent and said that he did not throw any punches during the incident but was merely trying to protect his friend. He said at most, he pushed people. The Inmate Discipline Action form records that the applicant plead guilty to the charge and received seven days cellular confinement.

6. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him (paragraph 13.1.1(1)(c)). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved. In the present case, the applicant has been sentenced to multiple terms of imprisonment of greater than 12 months. Also, when considered as a whole, the repeated nature and trend of increasing seriousness of the applicant’s offending, is very serious indeed (paragraph 13.1.1(1)(d) and (e)).

   (b) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

7. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction, which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Decision-makers must have regard, cumulatively, to: (a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and (b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending.

8. The nature of the harm to victims if the applicant were to reoffend in the future is very serious, and could involve significant physical harm to members of the Australian community. The applicant has shown that he is capable of causing significant physical injury to others, often by way of unprovoked physical assaults. The applicant’s numerous charges of possessing prohibited firearms and unlawful weapons are also very concerning as they are types of offences that could endanger the safety of members of the community.

9. Turning to the likelihood of reoffending, the applicant has an extensive criminal history, which dates back to 2008. Contrary to the applicant’s assertions, there is a significant risk that he will reoffend. This is suggested by the evidence which is relevantly summarised below.

10. The applicant submits that his string of offences over a two to three month period in late 2012 and early 2013 was a result of a downturn in his life and a “mistake” when he “partied a lot, was out of control” and engaged with alcohol and drug abuse. However, when viewing the applicant’s history of offending fairly, it is not confined to a three-month period in May 2012 to 2013; rather, it spans from 2008 to October 2017. At hearing the applicant agreed that he had a general criminal tendency and it is plain from the applicant’s criminal record that he has not been deterred by numerous periods of incarceration.

11. On 20 June 2013, the applicant received a letter from the Department advising him that his visa was to be considered for cancellation under subsection 501(2) of the Act, on the grounds that information held by the Department indicated that he had a substantial criminal record. Despite receiving this notice, the applicant continued to offend. At hearing he said that he didn’t really take it seriously but that it has now “hit home” because he is actually facing deportation. This submission has little force because following the cancellation of his visa on 3 February 2017, the applicant committed his most significant and violent offence two months later on 30 April 2017. Additionally, he was also charged with “fight or engage in other physical combat” on 25 October 2017. Plainly he was not deterred by the real and imminent threat of deportation. It is also particularly concerning as it shows that the applicant continues to have an ongoing, unresolved propensity to resort to violence.

12. Additionally, the applicant has repeatedly demonstrated a disregard for legal authority through his propensity to act contrary to supervision conditions and parole orders.

13. In regards to his alcohol and drug abuse, the applicant completed a couple of courses while in custody in Queensland in 2014 dealing with aggression and addiction problems. Since completing the courses the applicant has continued to reoffend and he agreed at hearing that they didn’t help him stop offending.

14. I have little confidence in the applicant’s claim that he is rehabilitated and will not reoffend. I am of the opinion that there is a significant risk that the applicant will engage in further criminal or other serious conduct of the nature of which he has been involved in the past; posing a significant risk of substantial harm to the Australian community.

15. For the above reasons, applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, the protection of the Australian community weighs heavily in favour of not revoking the mandatory cancellation of the applicant’s visa.

    PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

16. There is no evidence that the applicant plays a parental role in the lives of minor children in Australia. Accordingly, this primary consideration is irrelevant in these proceedings.

    PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

1. Paragraph 13.3(1) of the Direction provides:

   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. 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

2. In making the Direction, the Minister has made it clear 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 (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.

3. Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country. The applicant has repeatedly breached the trust of the Australian community by committing offences of a type that could endanger the safety of members of the community.

4. Relevantly, paragraph 13.3(1) of the Direction indicates that cancellation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa. Given the nature of the applicant’s offences, which involve serious violence, the Australian community would expect that the applicant should not hold a visa. Additionally, when considering the nature of the applicant’s violent offences, and the numerous offences involving possession of unauthorised weapons and prohibited and unregistered firearms, the Australian community would undoubtedly expect that the applicant should not hold a visa.

5. I acknowledge that in line with Principle 5 (paragraph 6.3) of the Direction, the Australian community may afford a higher level of tolerance of criminal or other serious conduct to the applicant as he has lived in Australia for over 10 years. However, given the nature of the applicant’s offences, the applicant’s long history of offending, and likelihood that he will commit further offences in the future, there is an unacceptable risk that he will continue to breach the trust of the Australian community in the future and the Australian community would expect that the applicant should not hold a visa.

6. This primary consideration weighs heavily in favour of non-revocation.

   OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65

7. Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked including the strength, nature and duration of his ties to Australia and the extent of impediments if the applicant were removed from Australia.

8. Other considerations such as international non-refoulement obligations, impact on victims and the impact on Australian business interests are not relevant considerations in these proceedings.

   Strength, nature and duration of ties to Australia

9. Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

   a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   (i) less weight should be given where the person began offending soon after arriving in Australia; and

   (ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and

   b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

10. The applicant has a number of family members living in Australia, including, aunts, uncles and cousins. The applicant claims to have contributed positively to the Australian community in a number of ways during his time in Australia, including participating in football clubs and through his employment as an apprentice carpenter. I accept that the applicant has ties to Australia. This factor favours revocation. However, it is significantly outweighed by the primary considerations. This is particularly so as the applicant has continued to regularly and repeatedly commit criminal offences, many of which have attracted lengthy sentences of imprisonment, throughout his time living in Australia, right up until he was last taken into custody. In accordance with paragraph 14.2(1)(a)(i) of the Direction, less weight should be given to the time that the applicant has been living in Australia.

    Extent of impediments if removed

11. I have taken into account that the applicant has concerns about returning to New Zealand. While the applicant may well face some initial difficulty re-establishing himself in New Zealand, it cannot be said that the extent of the impediment would be insurmountable.

12. The applicant is currently 29 years of age and arrived in Australia as an adult at approximately 19 years of age. He has spent most of his life in New Zealand. The applicant’s mother currently resides in New Zealand as does his father and brother. Although the applicant alleges that he is estranged from his family in New Zealand, there is a suggestion that they may offer some support to the applicant should he return. This is due to the fact that the applicant’s mother, Kiti Qalovaki, provided a written statement in these proceedings in support of the applicant. In the statement dated 16 November 2017, she says “we as a family stand and commit to his rehabilitation and support him through this process”. At hearing, the applicant acknowledged that he did have some contact with his mother but maintained that he had no contact with his father and brother.

13. There is no substantive language or cultural barrier to the applicant returning to New Zealand. There is no evidence before me that the applicant is affected by any health conditions affecting his ability to obtain employment. In any event, as a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship.

14. Accordingly, I do not consider that this factor outweighs the primary considerations favouring non-revocation.

    CONCLUSION

15. For all of the above reasons, in particular the extent of the applicant’s offending in Australia, the nature and seriousness of his offending, the expectations of the Australian community, and the risk of future harm, I am satisfied that the decision to not revoke the cancellation of the applicant’s visa is the correct decision.

16. The decision under review is affirmed.

I certify that the preceding 49 (forty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 13 December 2017

Date(s) of hearing:	7 December 2017
Applicant:	In person
Solicitors for the Respondent:	Ms M de Jongh, Clayton Utz