QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1
•6 January 2021
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1 (6 January 2021)
Division:GENERAL DIVISION
File Number: 2020/6473
Re:QJYD
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:6 January 2021
Place:Perth
The Tribunal affirms the Reviewable Decision of a delegate of the Respondent dated
13 October 2020 not to revoke the mandatory cancellation of the Applicant’s Visa......................[Sgd]...................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – multiple driving offences – drug related offending – approximately 100 offences in total – Applicant received prior written warning and previously had his Visa cancelled – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 32 year old man who arrived in Australia as a 10-year-old child – extent of impediments if returned to New Zealand – impact of COVID-19 pandemic – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 35(3)
Family Law Act 1975 (Cth) – s 121
Migration Act 1958 (Cth) – ss 198, 499(1), 499(2A), 500(6B), 500(6J), 500(6L), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) – reg 2.55(8)
CASES
Anyoun and Minister for Immigration and Border Protection [2018] AATA 174
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Cho and Minister for Home Affairs [2019] AATA 4422
FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294
FYBR v Minister for Home Affairs (2019) 374 ALR 601
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Jagroop and Minister for Immigration and Border Protection (2015) 67 AAR 288
JFSQ and Minister for Home Affairs [2019] AATA 616
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
MJNN and Minister for Home Affairs [2019] AATA 3205
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
SCJD and Minister for Home Affairs [2018] AATA 4020
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Vural and Minister for Home Affairs [2019] AATA 579
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Commonwealth of Australia, Department of Health, National Drug Strategy 2017-2026 (2017)
Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce (2015)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 And Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(5), 6.3(7), 6.3.4, 7(1)(b), 8, 13(1), 13(2), 13.1, 13.1(1), 13.1(2), 13.1(2)(a), 13.1(2)(b), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.1(1)(h), 13.1.1(1)(i), 13.1.2, 13.1.2(1), 13.1.2(1)(a), 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.2(4), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 14, 14(1), 14.1, 14.2(1), 14.3(1), 14.4(1), Part C
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
6 January 2021
BACKGROUND
1. The Applicant is a 32-year-old man who is a citizen of New Zealand.
2. He first arrived in Australia on 29 November 1998 when he was 10 years of age (G14/68).
3.
The Applicant was convicted of the offence of “disorderly behaviour in public place” in the Joondalup Magistrates Court on 31 January 2007, with the offence being committed on
26 January 2007. He received a fine of $400 (R2/14).
4.
The Applicant committed a further 21 offences between 30 November 2007 and
14 April 2012. These included nine driving offences (including unlicensed driving, careless driving, driving under the influence of alcohol, reckless driving and failing to stop for police), aggravated burglary, breach of bail conditions and community-based orders, drug possession, obstructing police officers and failing to comply with a request to give police personal information (R2/27-29). Also included in these offences were the offences of “burglary and commit offence in place” and “stealing” for which the Applicant received a concurrent term of imprisonment of 12 months (R2/12).
5. On 23 January 2013, the Department of Immigration and Citizenship (Department) sent the Applicant a formal counselling letter (G16). The letter stated that the Applicant’s criminal record had come to the attention of the Department. The letter further stated that:
The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in consideration of the cancellation of your visa. The consequences are visa cancellation under section 501 of the Act include removal of the former visa holder from Australia and, in certain cases, bars on re-entering Australia.
(Original emphasis.)
6.
After receiving this warning from the Department, between 11 February 2014 and
4 September 2015, the Applicant committed a further 55 offences. These included numerous drug offences, numerous driving offences (including driving an unlicensed vehicle, driving without licence, driving a vehicle with number plates not issued to that vehicle, exceeding the speed limit, failing to ensure a child was correctly restrained, dangerous driving, failing to stop in circumstances of aggravation), as well as stealing and possession of stolen property offences (R2/19-27). The following offences, of which the Applicant was convicted of on 23 May 2016, were included in these 55 offences and resulted in the following sentences of imprisonment:
(a)
three counts of “no authority to drive-never held Australian licence and is disqualified” for which he received a three-month term of imprisonment, a
three-month cumulative term of imprisonment and a three-month concurrent term of imprisonment;
(b)“possession of stolen or unlawfully obtained property” for which the Applicant was sentenced to a three-month cumulative term of imprisonment;
(c)
“no authority to drive – suspended” for which the Applicant was sentenced to a
three-month concurrent term of imprisonment;
(d)“driver failed to stop (circumstance of aggravation)” for which the Applicant was sentenced to a three-month concurrent term of imprisonment;
(e)“reckless driving - dangerous to public or person (to escape pursuit)” for which the Applicant was sentenced to a 10-month concurrent term of imprisonment; and
(f)“dangerous driving” for which the Applicant was sentenced to a six-month concurrent term of imprisonment.
7. On 5 August 2016, the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (Visa) was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) (G17/72). The Applicant made submissions in support of revocation of this decision to cancel his Visa, and after considering those submissions, the decision-maker decided to revoke the decision to cancel his Visa (G17/72). The letter dated 20 September 2016, advising him of this decision, stated that: “[p]lease note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you” (original emphasis).
8. On 23 September 2016, the Applicant signed an acknowledgement which stated that (G18/74):
I … acknowledge that I have received the Notice of decision to revoke visa cancellation under s 501CA(4) of the Migration Act 1958. I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.
(Emphasis in original.)
9. After receiving the favourable decision concerning his Visa and signing this acknowledgment, the Applicant committed a further 25 offences between 24 October 2017 and 29 August 2019:
(a)
On 24 October 2017, he committed the offence of “possess a prohibited drug (cannabis)” for which the Joondalup Magistrates Court imposed a $500 fine on
4 December 2017 (R2/19).
(b)On 4 October 2018, the Joondalup Magistrates Court convicted the Applicant of three driving offences which were committed on 6 December 2017. These were “driver failed to stop (circumstance of aggravation)”, “no authority to drive - never held an Australian licence and is disqualified” and “aggravated reckless driving pursuit”. The Applicant was sentenced to a 10-month term of imprisonment comprising six-month concurrent and four-month cumulative terms of imprisonment respectively (R2/19; 295).
(c)On 13 February 2020, the Perth District Court of Western Australia sentenced the Applicant to cumulative terms of imprisonment of 18 months and 16 months for two counts of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”. The Court also imposed concurrent terms of imprisonment of six months, four months, and a further six months for three counts of “possession of stolen or unlawfully obtained property” (R2/18).
(d)On 9 March 2020, the Applicant was convicted of numerous offences in the Joondalup Magistrates Court (R2/16-18). He was sentenced to a six-month concurrent term of imprisonment for the offence of “person having been served with a data access order and without reasonable excuse, failed to obey that data access order” and “possession of stolen or unlawfully obtained property” (R2/16-17). These were to be served concurrently with the sentences he was already serving at that time. He also received fines for offences including possessing prohibited drugs, controlled weapons and prohibited weapons (R2/16-17).
10. On 30 April 2020, the Applicant’s Visa was again cancelled under s 501(3A) of the Migration Act (Cancellation Decision) (G20/76-82). The Applicant was notified of the cancellation on 1 May 2020 (G22/84).
11.
The basis of the cancellation was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision (G20/77), which he did on approximately
21 May 2020 (G25-G71).
12. However, after considering the Applicant’s representations, on 13 October 2020 a delegate of the Respondent decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G8/17). This is the Reviewable Decision currently before the Administrative Appeals Tribunal (the Tribunal).
13.
The Applicant was notified of the Reviewable Decision in a letter dated
14 October 2020 which was delivered by email to his authorised recipient (G8/14-15). Therefore, he is taken to have received it by the end of the day on 14 October 2020 (reg 2.55(8) of the Migration Regulations 1994 (Cth)).
14.
On 20 October 2020, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the
Migration Act.
15.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the
84-day period started running from 14 October 2020, meaning that the Tribunal must hand down a decision with respect to this application on or before 6 January 2021.
ISSUES
16. The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No 79).
THE HEARING AND THE EVIDENCE
17. The application was heard on 22 and 23 December 2020 by videoconference.
18.
The Applicant was represented by Mr T Mwilambwe and the Respondent was represented by Ms E Tattersall. The Applicant gave oral evidence at the hearing and was
cross-examined. The Applicant called his partner, his mother and Professor James Freeman, consultant psychologist, as witnesses. All witnesses gave evidence by telephone.
19. The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s supplementary submissions, dated 16 December 2020 (Exhibit A1);
(b)
Applicant’s amended Statement of Facts and Contentions (SFIC), dated
19 November 2020 (Exhibit A2);
(c)statutory declaration of the Applicant, dated 4 December 2020 (Exhibit A3);
(d)statutory declaration of the Applicant’s mother, dated 20 November 2020 (Exhibit A4);
(e)statutory declaration of the Applicant’s partner, dated 20 November 2020 (Exhibit A5);
(f)character reference from the Applicant’s friend, dated 19 November 2020 (Exhibit A6);
(g)briefing letter to Professor James Freeman (undated) and corresponding psychological report by Professor Freeman, dated 24 November 2020 (Exhibit A7);
(h)Family Court order, dated 19 March 2020 (Exhibit A8);
(i)letter from Department of Communities, dated 4 February 2019 (Exhibit A9);
(j)Western Australia parole order, dated 19 October 2020 (Exhibit A10);
(k)13 Whitehaven Clinic invoices between 31 October 2019 and 9 April 2020 (Exhibit A11);
(l)
letter from families’ counsellor regarding the Applicant’s partner, dated
17 December 2020 (Exhibit A12);
(m)
section 501G documents (G-documents) numbered G1 to G73, comprising
279 pages (Exhibit R1);
(n)
Respondent’s supplementary documents numbered 1 to 6, comprising
625 pages (Exhibit R2); and
(o)Respondent’s Statement of Facts, Issues and Contentions, dated 9 December 2020 (Exhibit R3).
Two-day rule
20. Exhibit A12 was filed with the Tribunal by the Applicant on Saturday 19 December 2020. Additionally, the Applicant filed two further character reference letters on 22 December 2020, being the morning of the hearing, at 7:44am.
21. Section 500(6J) of the Migration Act provides:
(6J)If:
(a)an application is made to the Tribunal for a review of a decision under section 501 or a decision under subsection 501CA(4) not to revoke a decision to cancel a visa; and
(b)the decision relates to a person in the migration zone;
the Tribunal must not have regard to any document submitted in support of the person's case unless a copy of the document was given to the Minister at least 2 business days before the Tribunal holds a hearing (other than a directions hearing) in relation to the decision under review. However, this does not apply to documents given to the person or Tribunal under subsection 501G(2) or subsection (6F) of this section.
(Emphasis added.)
22. The Tribunal did not admit the two further character reference letters received on the morning of the hearing into evidence, nor has the Tribunal considered them, because to do so would contravene the explicit direction in s 500(6J) of the Migration Act.
23. The Tribunal did, however, admit Exhibit A12 into evidence on the second day of the hearing, 23 December 2020. The Tribunal did so after having regard to the following obiter comments of Nettle J in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 236 (Uelese):
113Finally, there remains the question of whether, when a hearing is adjourned from day to day, the second and any subsequent day of the hearing should be regarded as part of the hearing which began on the first day or as a separate hearing for the purposes of the provision.
114Ordinarily, one would speak of each day of a hearing as part of the one hearing. So, as has been observed, if s 500(6H) had been drafted in terms akin to s 33(2)(a) and (b) of the AAT Act as requiring notice not less than two business days before the hearing of the application for review, there would be little reason to doubt that the requirement was to give notice not less than two business days before the first day of the hearing regardless of whether the hearing might be adjourned at the end of the first day and then continue for several days thereafter.
115But, as has been seen, in the case of s 500(6H) the use of the expression “a hearing ... in relation to the decision under review” contemplates the possibility of more than one hearing and thereby leaves open as a possible construction that each day's hearing may be regarded as a separate hearing for the purposes of giving notice. Since that construction would have the least impact on the ability of the AAT to deal with an application for review in the manner which it conceives to be best calculated to achieve a just disposition of the application, and would also be consistent with the perceived object of the provision of ensuring that the Minister is not taken by surprise, that construction should be preferred.
24. This approach has also been adopted in the Tribunal by Senior Member Morris in Cho and Minister for Home Affairs [2019] AATA 4422 at [5]; Vural and Minister for Home Affairs [2019] AATA 579 at [7]; and Anyoun and Minister for Immigration and Border Protection [2018] AATA 174 at [5]-[6].
25. Additionally, Deputy President Forgie in Jagroop and Minister for Immigration and Border Protection (2015) 67 AAR 288 stated at [69]:
69.The principles that can be drawn from the cases regarding the operation and limitations of s 500(6H) and (6J) are:
…
(5)When an application for review of a decision is heard by the Tribunal over more than one day, each day is regarded as a separate hearing. Therefore, even if an applicant has not satisfied the requirements of s 500(6H) and (6J) before the start of the first day of the hearing, it may be that he or she may be able to do so before the resumption of the hearing on a later day.
(Footnotes omitted.)
Confidentiality order
26. The Tribunal made a confidentiality order under s 35(3) of the Administrative Appeals Tribunal Act 1975 (Cth) to give the Applicant a pseudonym. This was due to child protection issues with respect to the child M, which resulted in her grandmother having custody of her, as per the Family Court order in Exhibit A8 (see also letter from Department of Communities regarding child protection concerns about M in Exhibit A9). In making this confidentiality order, the Tribunal has also had regard to s 121 of the Family Law Act 1975 (Cth), which restricts publications that identify parties to Family Court proceedings.
LEGISLATIVE FRAMEWORK
Migration Act
27. Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
28. Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or
…
(Original emphasis.)
29. A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or …
(Original emphasis.)
30. Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No 79
31. Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
32. Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
33.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on
28 February 2019. This Direction replaced the previous Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under
s501CA (22 December 2014) (Direction No 65).34.
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with
paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a
full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
35. Paragraph 6.2 of Direction No 79 provides “General Guidance” as follows:
(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.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
36. Paragraph 6.3 of Direction No 79 sets out “Principles” which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(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 women or children or vulnerable members of the community such as 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 that non-citizen’s visa should be cancelled, or their visa application refused.
37. Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
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.
38. Paragraph 14(1) of Direction No 79 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
39. Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
40.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 79 can be found in paragraph 8, “Taking the relevant considerations into account”, which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
41. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
42. A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
43.
As a result of the sentences imposed by the Perth District Court of Western Australia
13 February 2020, the Applicant does not pass the character test. Specifically, the Applicant was sentenced to cumulative terms of imprisonment of 18 months and 16 months for two counts of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)”, as well as concurrent terms of imprisonment of six months, four months, and six months for three counts of “possession of stolen or unlawfully obtained property” (R2/18). This constituted a total effective sentence of 34 months (G11/59).
44. Consequently, the Tribunal finds that the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Migration Act. The Applicant also conceded that he did not pass the character test (transcript/14).
45. The Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1)
46. Paragraph 13.1(1) of Direction No 79 provides that:
(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. 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…
47. Paragraph 13.1(2) of Direction No 79 then provides:
(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.
Nature and seriousness of the conduct (paragraph 13.1(2)(a) of Direction No 79)
48. Paragraph 13.1.1(1) of Direction No 79 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
49. As noted above, between 26 January 2007 and 29 August 2019, the Applicant committed approximately 100 criminal and driving offences (G9/43-47; R2/16-29). A “Table of the Applicant’s Offending” detailing his adult offending history and court outcomes is annexed to these reasons.
50. As can be seen from a perusal of this Table, the Applicant’s offending broadly falls into four categories. These categories comprise driving offences, possession of drugs and drug paraphernalia, weapons and ammunition possession offences and other dishonesty offences including burglary and stealing. In addition to these categories, there are other general offences of disorderly behaviour and breach of bail undertakings.
51. Although paragraph 13.1.1(1)(a) of Direction No 79 considers violent and/or sexual crimes to be very serious, it does not limit the range of offences that may be considered serious. Indeed, the Tribunal has often regarded driving offences to be of a very serious nature. Road traffic laws are in place to protect the community, including innocent road users, from harm. Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads.
52. For example, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 (Apire) Member Webb stated at [16]:
Even though each offence is not properly classed as a ‘serious offence’ under 10.5.2 of the Instructions, rather meeting the description of a ‘minor offence’, to my mind driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly. In this regard, I respectfully agree with what the Tribunal said in re Wang and Minister for Immigration and Border Protection at [7] – laws to protect users of the road go to the essential safety of the community. Behaviour of this kind is not consistent with Australian community values. …
(Footnote omitted.)
53. In Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett) Senior Member Tavoularis also noted the serious nature and adverse consequences of driving offences at [43]-[45]:
There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community’. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Footnotes omitted.)
54. In MJNN and Minister for Home Affairs [2019] AATA 3205 (MJNN), this Tribunal applied the above comments of Member Webb and Senior Member Tavoularis and stated at [55]:
The Applicant’s record of repeat driving offences tends to indicate an [in]ability to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. It is for these reasons that the Tribunal finds that the totality and nature of the Applicant’s driving offences should also be viewed as serious.
55. A similar observation can be made with respect to the Applicant’s history of driving offences, set out in the annexed Table of the Applicant’s Offending. The Applicant has committed 43 driving offences including driving under the influence of alcohol, driving whilst disqualified and suspended, “drove a vehicle with number plate not issued to that vehicle”, driving an unlicensed vehicle, “reckless driving – dangerous to the public or any person (to escape pursuit)”, “careless driving”, “dangerous driving”, “driver failed to stop (circumstances of aggravation)” and “aggravated reckless driving pursuit”.
56. Indeed, when sentencing the Applicant on 13 February 2020 for drug offences, the sentencing Judge, Petrusa DCJ observed (G11/54):
You have a substantial criminal record, most notably for traffic matters. It’s clear that you’ve got no regard to the traffic laws, having been convicted multiple times. I think I’ve counted about 42 breaches of our traffic laws.
57. Some of the Applicant’s traffic offences were committed during five traffic pursuits where the Applicant attempted to evade police. The Tribunal will now briefly outline the facts of these pursuits.
58. On 2 February 2012, the Applicant engaged in a pursuit with police for 15 minutes at speeds that did not exceed 60 kilometres an hour. However, when police attempted to stop him, the Applicant swerved towards them, attempting to collide with the police vehicle on a number of occasions before actually colliding with the police vehicle, veering off the road and hitting a brick wall. The vehicle that the Applicant was driving was unlicensed and the Applicant was unlicensed and disqualified from driving at the time (R2/173-174).
59. The Applicant engaged in another high-speed pursuit on 30 August 2014 where he travelled at 140 kilometres per hour in a 70 kilometres zone to escape pursuit by police, narrowly escaping a collision with another vehicle he overtook. The Applicant was unlicensed and disqualified from driving at the time, and the car he was driving was fitted with incorrect number plates. When police managed to stop the vehicle, they discovered the Applicant’s partner at the time in the front passenger seat holding an unrestrained three-week-old infant (the Applicant’s biological child, M) in her lap (R2/154-157).
60. On 28 May 2015, the Applicant was riding a stolen motorcycle with no registration plate. Police attempted to stop him after they observed him travelling at approximately 140 kilometres per hour. The police attempted to pursue him with the Applicant reaching speeds of approximately 150 kilometres per hour on the freeway. When exiting the freeway, police observed the Applicant going through a red traffic light. The Applicant eventually failed to negotiate a roundabout and lost control of the motorcycle, at which point he absconded on foot before being apprehended by police. The Applicant did not hold a driver’s licence and was suspended from driving at the time (R2/113-114).
61. On 4 September 2015, the Applicant engaged in another police chase, during which he exceeded the speed limit and where other road users had to swerve to avoid a collision. At the time he was unlicensed, disqualified and he was driving an unregistered motor vehicle (R2/100-101).
62. When sentencing the Applicant on 23 May 2016, Magistrate Smith described the serious nature of the police pursuit incidents on 28 May 2015 and 4 September 2015 as follows (R2/303):
You have what I would consider a serious traffic record. …
I’ve said that you’ve got a bad traffic record, but the incident on 28 May last year where you pleaded guilty to reckless driving to avoid pursuit is a serious incident where you show a selfish disregard for the safety of other road users and you put their lives at risk, not to mention your own life and not to mention the lives of the police who are charged with trying to catch you.
I make the same comment in relation to the incident on 4 September last year. That is not reckless to avoid pursuit. That is dangerous driving to avoid pursuit. That does not carry mandatory imprisonment, but in my view, the comments that I’ve made apply equally to that incident where other road users have had to take evasive action to avoid colliding with you. In my view, that conduct on the road on those two occasions is so serious as to require an immediate sentence of imprisonment. …
Your history of driving without a driver’s licence is appalling to say the least and there are a number of matters before me today where I must deal with you for exactly that sort of conduct.
63. Again, on 6 December 2017, the Applicant engaged in another police chase after police unsuccessfully attempted to stop him for speeding. The Applicant drove at speeds of 140 kilometres per hour, “left the road on several occasions [and] the vehicle lost traction around numerous corners, colliding with two roadside curbs, crossing grassed verges”. The explanation recorded by police was that the Applicant panicked because he had no licence (R2/94-95).
64. These facts and the judicial comments outlined above illustrate the very serious nature of this type of offending. It is a matter of extreme good fortune that the Applicant did not harm or kill an innocent road user whilst engaging in these traffic pursuits with police. There are also risks of injury or death to police during a traffic pursuit.
65.
Additionally, the Applicant has been convicted of two offences for driving under the influence of alcohol, with these offences being committed on 30 November 2007 and
2 February 2012. The Tribunal agrees with the following comment regarding the seriousness of driving under the influence of alcohol from Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]:
The laws against driving under the influence of alcohol are specifically designed to protect members of the Australian community from serious physical harm and/or death. The applicant’s offences of driving under the influence of alcohol are serious and show reckless indifference to the safety of the wider community. ... When viewed as a whole, the applicant’s history of driving offences evidences a serious pattern of ongoing disregard for the laws of Australia and accepted community values. …
66. As noted above by this Tribunal in MJNN, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol, which can have catastrophic consequences to innocent members of the community. Therefore, the Tribunal agrees that these offences are serious.
67. The Applicant has also committed approximately 28 drug offences. As set out in the Table of the Applicant’s Offending, these offences include possession of cannabis and methylamphetamine, possession of drug paraphernalia containing a prohibited drug or plant and possession of methylamphetamine with intent to sell or supply. The Applicant’s most recent drug offences resulted from police searching the houses that the Applicant resided in with his partner and the children L, S and J. Search warrants were executed on 20 February 2019, 19 March 2019, and 29 August 2019 (R2/39-92) as well as a consensual search being conducted on 8 August 2019 (R2/53-54). When sentencing the Applicant for drug offences resulting from the warrants executed on 19 March 2019 and 29 August 2019, Petrusa DCJ noted that the Applicant was dealing in drugs for a commercial gain, and not just to support his own habit. Her Honour also noted that the offending was serious (G11/54):
It is clear from the context in which these drugs were found, and given the amounts, that you were involved in drug dealing at street level on an ongoing basis. You weren’t deterred by your arrest in March and you persisted in your drug dealing activities despite spending time in custody.
Your offending then is serious. Further, it would appear that your involvement was for more than just paying for your own drug habit. You say you would have used some money for gambling and perhaps, given your family circumstances, to some way help with that. So there is an additional commercial element above and beyond paying for your own use.
68. The Tribunal has previously recognised the harmful effects of drugs on the community (see, for example, Senior Member Cameron in SCJD and Minister for Home Affairs [2018] AATA 4020 (SCJD) at [81]-[83]). These harms will be discussed in further detail below. Given the serious and detrimental effect of the drug trade on the Australian community, the Tribunal finds that the Applicant’s drug offences should also be regarded as serious.
69. When the search warrants were executed on 20 February 2019 and 19 March 2019, as well as quantities of methylamphetamine being located, several weapons were found in the house the Applicant shared with his partner and three children. On 20 February 2019, police located a butterfly flick knife, a taser disguised as a baseball bat, and a live round of ammunition in the bedroom (R2/64-66). On 19 March 2019, police located a small pepper spray in the bedroom, 48 rounds of ammunition in the kitchen, a .22 sawn off shotgun buried in the back yard with a magazine loaded with 10 rounds of live .22 ammunition, a box with 13 live rounds of .22 ammunition and another 17 rounds of .22 live ammunition (R2/67-68). However, the Applicant was not convicted of the charges relating to the discovery of the 17 rounds of ammunition and the sawn-off shotgun (noting email from Applicant’s representative dated 5 January 2021). It is the Tribunal’s opinion that the possession of prohibited and/or unlicensed weapons and/or ammunition is serious because their intended or accidental use could result in serious injury, impairment or death.
70. Paragraph 13.1.1(1)(b) of Direction No 79 provides that violent offences against women or children are viewed very seriously, regardless of the sentence imposed. This is not applicable to the Applicant.
71. Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community, or government representatives or officials in the performance of their duties are “serious”. The Applicant has a spent conviction for “obstructing public officers” on 6 March 2010 (R2/14; transcript/42) where police attempted to arrest him for another matter. Although this conviction was spent, it is an example of conduct by the Applicant. The Statement of Material facts describes the Applicant as having a “violent struggle” with police officers, resulting in the Applicant and the officers falling to the ground, the Applicant attempting to punch officers and struggling violently to get free, and a police officer’s knee being dislocated. Police were required to use a taser on the Applicant “to prevent further injuries being sustained by officers or the accused” (R2/186). As noted above, during the police traffic pursuit on 2 February 2012 the Applicant made several attempts to collide his vehicle with the police vehicle and did in fact collide his vehicle with the police vehicle. During both incidents police officers were acting in performance of their duties. Both incidents are serious, but the Tribunal regards the incident on 6 March 2010, where a police officer’s knee was dislocated, to be particularly serious.
72. Paragraph 13.1.1(1)(d) of Direction No 79 also requires the Tribunal to have regard to the sentences imposed by the courts for a crime or crimes. The Applicant was first sentenced to two 12-month concurrent terms of imprisonment for the offences of “burglary and commit offence in place” and “stealing”. When sentencing the Applicant on 13 August 2012, Magistrate Lane noted that the offences were “a very serious matter” because at the time the offences were committed the Applicant was subject to a community-based order (G12/61). Magistrate Lane further stated:
Now, you have been remanded in custody in relation to this matter since 28 April 2012. I have looked at all the sentencing options available to me and I have considered that the only appropriate option is an immediate term of imprisonment. …
It’s a very difficult matter sentencing a young person who is only 23 to a period of imprisonment but I have looked at all the other options available to me and consider that it’s the only appropriate sentence to impose. What I’m going to do is impose a period of 12 months’ imprisonment backdated to 28 April 2012 and make you eligible for parole.
73. The Applicant was next sentenced on 23 May 2016 to a total term of 22 months’ imprisonment comprising concurrent and cumulative terms of imprisonment for numerous offences including four offences of driving whilst unlicensed and/or suspended, “dangerous driving”, “reckless driving – dangerous to the public or any person (to escape pursuit)”, “driver failed to stop (circumstance of aggravation)” and “possession of stolen or unlawfully obtained property”. The sentencing Magistrate commented (R2/306-7):
I turn now to the dangerous driving to avoid pursuit on 4 September 2015. I’ve already commented that that showed selfish disregard for the safety of other road users. In my view, even though imprisonment is not mandatory, it’s so serious that it calls for imprisonment …
I should say that with record, from now on if you get caught driving without a licence, I would expect that you will receive a sentence of imprisonment every time you do it …
74. On 4 October 2018, the Applicant was sentenced to a further ten-month term of imprisonment for driving offences committed during the police pursuit on 6 December 2017 which commenced from the time he was taken into custody on 6 December 2017 (R2/19; 295).
75. On 13 February 2020, the Applicant was sentenced to a total term of 34 months’ imprisonment to commence on 8 June 2019 for two counts of “possession of a prohibited drug with intent to sell or supply (methylamphetamine)” and three counts of “possession of stolen or unlawfully obtained property”. When sentencing the Applicant, Petrusa DCJ stated (G11/58):
it is clear that you have been engaged in drug dealing over a sustained period of time and there was a commercial element to your involvement above and beyond paying for your own habit.
You weren’t deterred by other penalties imposed upon you. And in particular, you weren’t deterred on the first time you were charged with possession with intent to sell or supply it in March. You weren’t deterred by the fact that you are remanded in custody for 80 days, following your arrest.
Whilst your level of dealing would appear to be at the lower end, it wasn’t at the lower end and certainly it was persistent. For these reasons, I consider that only a term of immediate imprisonment is appropriate …
76. The Applicant was sentenced to his fifth and final term of six months’ imprisonment on 9 March 2020. This comprised two concurrent terms of imprisonment of six months for “possession of stolen or unlawfully obtained property” and “person having been served with a data access order and without reasonable excuse, failed to obey that data access order” (R2/16-17). However, as the Applicant was already serving a sentence of imprisonment, it did not increase the term of imprisonment he was already serving.
77. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162 Senior Member Poljak stated at [22] that: “[s]entences 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”. The Tribunal agrees and finds that the several terms of imprisonment that the Applicant was sentenced to reflect the seriousness of the Applicant’s offending. The judicial comments also reflect that the level of seriousness of the offending warranted terms of imprisonment being imposed. Additionally, imprisonment is generally a last resort, particularly when an offender is of a very young age, and notably when the Applicant was first sentenced to a term of imprisonment, he was only 23 years of age.
78. The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79). The Applicant’s offending is frequent, as illustrated by his lengthy record of offending, comprising approximately 100 offences committed over a 12-year period and interspersed by periods of imprisonment. The Applicant has committed driving offences since 2007, with a break until 2012, after which time he has consistently committed driving offences. Indeed, when sentencing the Applicant on 23 May 2016, Magistrate Smith referred to the Applicant’s “predilection for driving when [he doesn’t] have a driver’s licence” and his “persistent conduct and… previous record” (R2/306). Overall, the Applicant’s offending is prolific and frequent and there is a slight increase in seriousness in terms of the frequency and number of drug related offences committed by the Applicant from 2015.
79. With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant’s court history comprises approximately 100 offences, four periods of imprisonment, numerous fines, driving suspensions, breaches of bail and breaches of community-based orders. Additionally, four separate search warrants were served on the Applicant’s places of residence in 2019 resulting in numerous drugs, stolen property and weapons possession charges. These would likely have had a cumulative effect of placing a burden on the resources of police, corrective services, and the court system.
80. The Tribunal must also consider whether the Applicant provided false or misleading information to the Department by not disclosing prior criminal offending on any incoming passenger cards (paragraph 13.1.1(1)(g) of Direction No 79). When he re-entered Australia from New Zealand on 10 October 2009, the Applicant ticked the box marked “no” in response to the question, “[d]o you have any criminal conviction/s?”, on his incoming passenger card. This information was incorrect because at that time the Applicant had convictions for “disorderly behaviour in a public place” (with the offence date being 26 January 2007) and four driving offences committed on 30 November 2007 including careless driving, driving without a license, driving an unlicensed vehicle and having an excess blood alcohol reading (R2/28-29). The Tribunal has not, however, placed weight on this consideration because the Applicant was not asked about his incorrect response at the hearing.
81. As set out in the background section above, the Applicant received a warning from the Department in a letter dated 23 January 2013 that further offending may affect his migration status (paragraph 13.1.1(1)(h) of Direction No 79). In summary, the letter warned the Applicant that any further criminal convictions may result in further consideration as to whether his Visa should be cancelled. Following this warning, the Applicant committed a further 55 offences before having his Visa cancelled on 5 August 2016. As detailed in the background section above, the decision to cancel the Applicant’s Visa was revoked after the Applicant made submissions. The letter advising him of this revocation decision dated 20 September 2016 further warned him that his Visa could be considered for cancellation if he committed further offences and the Applicant signed an acknowledgement to that effect on 23 September 2016. However, after receiving this favourable decision, the Applicant committed a further 25 offences before the Cancellation Decision that is the subject of this application was made.
82. When asked about his reaction when he received his first warning at the hearing, the Applicant’s evidence was that (transcript/52):
I honestly didn’t think I would ever get deported because I was classified as a permanent resident.
…
Technically I felt like I was more Australian than New Zealand. Like, I’ve been here a lot longer than I have New Zealand. I’ve got no ties there. All my brothers are Australian. My daughter’s Australian. Like, my grandmas and my grandads are all citizens. Like, I just, yes, didn’t believe I could be, like, get deported.
83. When asked about the first cancellation of his Visa, and how he felt after the cancellation was revoked, the Applicant’s evidence was (transcript/53):
Well, I – my mate, he’s lost his visa five times or six times and he keeps getting it back and so I pretty much just thought, well, you know, it wasn’t that much of a deal.
84. In summary, the Applicant has essentially had two written warnings putting him on notice that further offending may result in his Visa being cancelled. It is of concern that the Applicant failed to take notice of these warnings and that he committed a very large number of offences, including being sentenced to three further terms of imprisonment after the first cancellation of his Visa. The Applicant’s attitude was of concern. Not treating the notices seriously suggests a disregard for lawful authority and an inability to appreciate the likely consequences of his actions, namely that further offending may result in his deportation.
85. Paragraph 13.1.1(1)(i) of Direction No 79 requires the Tribunal to consider whether the Applicant has committed any crimes while in prison or immigration detention, for example during an escape from immigration detention. This is not applicable to the Applicant.
86. Based on the analysis of each of the sub-paragraphs of paragraph 13.1.1(1) of Direction No 79 above, the Tribunal finds that the nature and seriousness of the Applicant’s offences, particularly the driving offences he committed during the course of escaping pursuit by police and driving whilst under the influence of alcohol, as well as his drug offences, to be very serious. So too was the obstructing public officer offence, during which a police officer was injured. The frequency and volume of the Applicant’s offending, which amounts to approximately 100 offences, the cumulative effect of his offending behaviour, his failure to take notice of prior warnings, and the terms of imprisonment imposed upon him, are further indicative of the seriousness of the Applicant’s offending. Consequently, the Tribunal finds that paragraph 13.1.1 of Direction No 79 weighs very strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1(2)(b) of Direction No 79)
87. A decision-maker must also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
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 non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm
88. Broadly speaking, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. This firstly requires a consideration of the nature of the harm should the Applicant engage in further criminal or serious conduct (paragraph 13.1.2(1)(a) of Direction No 79).
89. Should the Applicant commit further driving offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, and possible psychological harm.
90. In Exhibit R3, para [41] the Respondent referred the Tribunal to the Commonwealth of Australia, Department of the Prime Minister and Cabinet, Final Report of the National Ice Taskforce (2015). In the Executive Summary, under the heading, “[i]ts use creates a distinct problem for society”, the report summarised the harmful effects of methylamphetamine (colloquially known as “ice”):
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
91. The Respondent also drew the Tribunal’s attention to the Commonwealth of Australia, Department of Health, National Drug Strategy 2017-2026 (2017) (Strategy). The Strategy identified, at pages 4-5, the need for a national response due to the health harms, social harms and economic harms caused to Australian communities, families and individuals by alcohol, tobacco and other drug abuse. In the Tribunal’s opinion, many of the identified harms can be attributed to the prevalence of methylamphetamine use in the community:
Health Harms such as:
· injury;
· chronic conditions and preventable diseases (including lung and other cancers; cardiovascular disease; liver cirrhosis);
· mental health problems; and
· road trauma.
Social Harms including:
· violence and other crime;
· engagement with the criminal justice system more broadly;
· unhealthy childhood development and trauma;
· intergenerational trauma;
· contribution to domestic and family violence;
· child protection issues; and
· child/family wellbeing.
Economic Harms associated with:
· healthcare and law enforcement costs;
· decreased productivity;
· associated criminal activity; and
· reinforcement of marginalisation and disadvantage.
(Original emphasis.)
92. The Strategy also stated, at page 30, that “[s]ome of the harms that can arise from the use of methamphetamines and other stimulants include mental illness, cognitive impairment, cardiovascular problems and overdose”.
93. Further, in SCJD Senior Member Cameron, at [81]-[83], outlined the harms that can result from drug trafficking and drug abuse:
81.The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
82.In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
83.There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
Likelihood of engaging in further criminal or other conduct
94. Next, the Tribunal is required to consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community (paragraph 13.1.2(1)(b) of Direction
No 79).95. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359, 389 [111] (which was quoted with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424, 444-445 [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117,
124–5 [42]-[43]):An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be.
Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality, but also on the seriousness of the consequences if it does.(Footnotes omitted.)
96. In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, [68] Moshinsky J stated that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational”. Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, [41] Kenny J also referred to the basis for the assessment of the likelihood of reoffending as requiring a “rational and probative basis”.
97. As noted above, the Applicant has a lengthy criminal history, comprising approximately 100 offences over a 12-year period. He is only 32 years of age and yet he has offended throughout his adult life. He has been undeterred by fines, disqualifications and several periods of imprisonment. He has committed the same types of offences, for example certain drug and driving offences multiple times. He was undeterred by a written warning that he faced Visa cancellation if he reoffended. He was undeterred when his Visa was in fact cancelled in 2016. He was undeterred when his Visa was reinstated with a further written warning which he signed to acknowledge. Indeed, after having his Visa reinstated and being released from prison, the Applicant reoffended within two months of his release and was back in prison within four months (R2/19; R2/492).
98. The Applicant has also had the support of his mother and his partner in the past, and they have offered him emotional support if he is permitted to stay in Australia. The Tribunal also notes a character reference from the Applicant’s friend L (A6). Support from family and friends may offer some protection for the Applicant to assist him to reintegrate into the community, to abstain from drugs and to not reoffend. The Applicant’s mother appears to the Tribunal to be a pro-social individual and the Tribunal accepts her evidence that she has never used drugs. The Applicant’s mother also undertook the responsibility of taking over parental responsibility of the Applicant’s daughter M after having concerns for her wellbeing while she was in the care of her mother. She is raising M as well as 16-year-old and 19-year-old sons (the Applicant’s younger brothers). The Tribunal accepts that whilst the Applicant’s mother has not previously been aware of the full extent of his offending and his drug use, that she is now in a more informed position and would now be better placed to provide him with support to re-integrate into the community than previously. However, the Tribunal is concerned that having the support of his mother has not prevented the Applicant from re-offending in the past and that her ongoing support may not be protective enough to prevent the Applicant from re-offending.
99. This concern similarly applies to the Applicant’s partner, but to a far greater extent. In the Tribunal’s opinion, the Applicant’s partner is substantially less of a pro-social influence than his mother. Specifically, the Applicant’s partner was aware that he was using drugs and knew about many of the unlawful items found by police when warrants were executed in 2019 including a flick knife, a taser disguised as a baseball bat, some cash, cannabis and a smoking implement (transcript/102-104). The Applicant’s partner was aware that there were two laptops found by police in the living room during the execution of the warrant on 29 August 2019 (transcript/106-107). However, when asked what her understanding was about where the laptops came from, her evidence was, “I have no idea. I didn't ask questions”. (transcript/107), and with respect to $650 of cash located on a bedside table by police during the execution of that warrant she stated, “I don’t know where it came from, I didn’t ask questions”. The following exchange is also relevant because it tends to suggest that the Applicant’s partner knew, or should have known about cash and stolen items, but did not question the Applicant about where they came from. This was despite him only being in receipt of Centrelink benefits at the time (transcript/107-108):
MS TATTERSALL: Well, you would have understood that he wasn't working; is that right?
APPLICANT’S PARTNER: Yes, I understood that.
MS TATTERSALL: And you knew that the only income he was obtaining was from Centrelink?
APPLICANT’S PARTNER: Yes.
MS TATTERSALL: So is it your evidence then that at no time over that almost six month period when the police kept finding copious amounts of cash in your house did you speak to him about where that had come from?
APPLICANT’S PARTNER: I don't recall, I don't know. I could have, I probably did, but I can't tell you yes or no.
MS TATTERSALL: Well, it's a pretty significant event for the police to execute search warrants on your house on four separate occasions; isn't it?
APPLICANT’S PARTNER: Sorry?
MS TATTERSALL: It's a pretty significant event for the police to execute search warrants on your house on four separate occasions?
APPLICANT’S PARTNER: Yes, it is.
MS TATTERSALL: And would it also not be a pretty significant event when having executed those search warrants the police found thousands of dollars of cash as well as different levels of both methamphetamine, cannabis and smoking implements at the house?
APPLICANT’S PARTNER: Yes, I do agree with you. It is significant. Keeping in mind I was also aware that [the Applicant] was gambling at the time and I'd witnessed [the Applicant] winning money. I witnessed him withdrawing money from the casinos and he had a pretty good run for a long time with the casino and I witnessed that so I know that everything wasn't kosher, I'm not stupid, but I didn't acknowledge it.
MS TATTERSALL: Well, isn't your evidence that you didn't acknowledge it and in fact you didn't really speak to him about it at all?
APPLICANT’S PARTNER: We spoke about the drugs.
MS TATTERSALL: But you didn't speak to him about the cash or the items found on your property?
APPLICANT’S PARTNER: Not really, no. I was pregnant at the time, I had my own personal things going on. [The Applicant] and I were fighting often. Don't get me wrong we weren't fighting all day every day but we were having our moments and, okay, it's pretty fair to say I buried my head in the sand.
100. The Tribunal accepts that the Applicant’s partner may have thought some of the money found by police was from gambling wins, however, it is most unlikely that she was not aware that some of the cash and other items were from the proceeds of drugs or that they were stolen. The Applicant’s partner was also aware of his daily drug use (transcript/100, 105), and admitted that she tolerated it, “to some extent” (transcript/109). When asked if she offered the Applicant any support in relation to his methylamphetamine use after the second search warrant was executed, the Applicant’s partner’s evidence was that she offered him emotional support by “being there for him” (transcript/105), however she did not discuss him seeking treatment. In the Tribunal’s opinion, a pro-social partner would not tolerate daily drug use and would not have tolerated drugs, weapons and stolen items being stored in the home that she and the Applicant shared with three minor children. When it was put to the Applicant’s partner that she knew that certain items (such as weapons) were in the house that might not be suitable for children but that she allowed those items to be there, the Applicant’s partner stated, “[y]es, but they aren't accessible to the children and I made sure of that”. In summary, the Applicant’s partner appears to some extent to have tolerated his drug use and possession of unlawful items in the home they shared with three minor children without adequately questioning him. The Tribunal is therefore concerned about the Applicant’s partner’s ability to be a pro-social influence on him and does not regard her to be sufficiently protective so as to reduce the likelihood of his reoffending.
101. In the Applicant’s SFIC at paragraph [43], the Applicant’s representative submitted that he is “deeply remorseful in [sic] the damage that he has caused to the community” and that he “is ashamed of the offences that he has done in the past” (Exhibit A2). In his statutory declaration (A3, para [37]) the Applicant stated that:
I feel clean and clear headed for the first time in a long time and completely understand that my offending behaviour is completely unacceptable. I believe that I will not reoffend again given that upon my release I intend to attend counselling, spend time with my family, follow parole guidelines, work, and work out at the gym.
102. Expressing remorse can be indicative that an Applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn reduce the likelihood of reoffending. However, the Tribunal has some concerns about the Applicant’s remorse and his stated belief that he will not reoffend, as he made similar representations in 2016 when making revocation submissions to get his cancelled Visa reinstated. Specifically, in 2016 the Applicant stated his belief that he would not reoffend, noting the courses that he had undertaken in prison including the Lifeskills re-entry intervention program, career development workshop and Cognitive Skills Brief Intervention Program. He also stated that he had broken ties with his ex-partner and old friends and that he would join martial arts to help with his self-esteem (R2/586). Yet after receiving the favourable decision concerning his Visa on 20 September 2016 and signing an acknowledgment that further offending may result in cancellation of his visa being considered again, the Applicant went on to commit a further 25 offences between 24 October 2017 and 29 August 2019.
Impact on Australian business interests
215. Paragraph 14.3(1) of Direction No 79 provides that the Tribunal is to consider the:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that 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.
216. This consideration does not arise on the material before the Tribunal.
Impact on victims
217. Paragraph 14.4(1) of Direction No 79 provides that the Tribunal is to consider the:
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 revocation has been afforded procedural fairness.
218. This consideration does not arise on the material before the Tribunal.
Extent of impediments if removed
219. Paragraph 14.5(1) of Direction No 79 provides that the Tribunal is to consider:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
220. The Applicant is 32 years of age and is in good physical health. He has suffered from depression in the past for which he has taken medication, however he currently appears not to have any mental health issues and is no longer taking any medication. The Tribunal does however note the Applicant’s history of substance abuse and the diagnosis by Professor Freeman of methamphetamine dependency disorder (A7, para [8.3] of Professor Freeman’s report). Professor Freeman’s evidence was that the Applicant was in partial remission because he was currently in the controlled environment of immigration detention, but that he would need monitoring and support in the community to prevent a relapse (transcript/74). It is unclear as to the extent of any monitoring and support that would be available to the Applicant if he were returned to New Zealand. However, Professor Freeman also stated in his evidence that the Applicant was in “pretty good mental health” (transcript/79).
221. The Applicant is also likely to face some emotional hardship from being separated from his mother, partner, children, stepchildren, and brothers and from being returned to a country that is unfamiliar to him after residing in Australia since his childhood.
222. New Zealand is, however, broadly comparable to Australia. There is no evidence of any language or substantial cultural barriers that would constitute an impediment to the Applicant returning to New Zealand, nor is there evidence that the Applicant would not have the same access to services as other citizens of New Zealand, including economic support, social security, and access to education, employment and health services.
223.
The Applicant also has no friends or family members in New Zealand, save for his elderly grandmother who has dementia, nor any contacts who could help him find employment. After living in Australia for nearly his entire life, he would undoubtedly face difficulty in
re-establishing himself in New Zealand, and the Tribunal accepts that he would not have any family support or other existing social networks in New Zealand if he were returned there.
224.
Overall, the Tribunal finds that the Applicant may encounter some difficulty and hardship establishing himself and maintaining a basic standard of living if he were to return to
New Zealand, but that these difficulties are not insurmountable. Consequently, this consideration weighs moderately in favour of the revocation of the Cancellation Decision.
Impact of COVID-19 pandemic
225.
If the Tribunal affirms the Reviewable Decision, the Applicant must be removed to
New Zealand as soon as is reasonably practicable (under s 198 of the Migration Act). If restrictions on international travel due to the COVID-19 pandemic continue, it may not be possible for the Applicant to be immediately removed. It is therefore possible that if the Tribunal affirms the Reviewable Decision, the Applicant may face an additional period of detention before it will be reasonably practicable to remove him to New Zealand. However, as noted by Member Eteuati in FRVT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 294, [299] “[t]his may result in prolonged but not indefinite detention for the Applicant until the risk presented by the virus … subsides”.
226. The Tribunal also notes that the Applicant has not been able to have in person visits from his family due to COVID-19 restrictions on in person visits at the immigration detention centre.
227. Overall, the Tribunal finds the impact of the COVID-19 pandemic to weigh only minimally in favour of the revocation of the Cancellation Decision.
CONCLUSION
228. The Applicant does not pass the character test under s 501 of the Migration Act.
229. The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 79.
230. In relation to the first primary consideration, the Tribunal has found that:
(a)the nature and seriousness of the Applicant’s offending conduct weighs very strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.1 of Direction No 79); and
(b)the risk to the Australian community should the Applicant commit further offences weighs very strongly against the revocation of the Cancellation Decision (paragraphs 13.1 and 13.1.2 of Direction No 79).
231. Overall, with respect to the first primary consideration, the Tribunal has concluded that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of
Direction No 79), weighs very strongly against the revocation of the Cancellation Decision.232. With respect to the second primary consideration, being the best interests of minor children (paragraph 13.2 of Direction No 79), the Tribunal has found that the best interests of the Applicant’s: eight-year-old daughter weighed strongly; 15 month-old daughter weighed strongly; eight-year-old stepdaughter weighed moderately; five-year-old stepson weighed moderately; and 16-year-old brother weighed slightly in favour of the revocation of the Cancellation Decision.
233. The Tribunal has found that the third primary consideration, being the expectations of the Australian community (paragraph 13.3 of Direction No 79) would be that the Cancellation Decision should not be revoked. The Tribunal must now determine the weight to be applied to this consideration.
234. In determining the weight to be afforded to the third primary consideration, the Tribunal notes that the first primary consideration, regarding the protection of the Australian community, weighed against the Applicant. This consideration was comprised of the nature and seriousness of the Applicant’s offences, which weighed very strongly against the revocation of the Cancellation Decision. It was also comprised of the risk of the Applicant reoffending, with the Tribunal finding that the Applicant had a moderate likelihood of reoffending, which nevertheless weighed very strongly against the revocation of the Cancellation Decision. In reaching this conclusion the Tribunal considered the serious nature of the harm that can be caused to the community from drug and driving offences such as those committed by the Applicant. Overall, the Tribunal found that the first primary consideration weighed very strongly against the revocation of the Cancellation Decision.
235. Further, in determining the weight to be applied to the third primary consideration, the Tribunal must balance the first primary consideration of the protection of the Australian community with the considerations that weigh in the Applicant’s favour. These considerations included: the primary consideration of the best interests of minor children (with the respective weights having been referred to above). Additionally, the Tribunal found that the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weighed strongly in favour of the revocation of the Cancellation Decision. Further, the impediments the Applicant would face if returned to New Zealand weighed moderately in favour of the revocation of the Cancellation Decision (paragraph 14.5(1) of Direction No 79).
236. The Tribunal also considered the impact of the COVID-19 pandemic, including the amount of time the Applicant may potentially be detained for without having in person visits from his family until he can be returned to New Zealand, which was given minimal weight in favour of revoking the Cancellation Decision.
237. After balancing the relevant primary and other considerations, the Tribunal concludes that the expectations of the Australian community would nevertheless weigh very strongly against the revocation of the Cancellation Decision. As articulated in paragraph 13.3(1) of Direction No 79, the Australian community expects non-citizens to obey Australian laws while in Australia. The Applicant has, however, shown a consistent disregard for the law by committing approximately 100 offences, sometimes repeatedly. He has been undeterred by prison sentences, a warning in 2013, and the previous cancellation of his Visa, and the reinstatement of his Visa in 2016 with a similar warning. The Tribunal is of the opinion that, even when balanced against the primary and other considerations that weigh in favour of the Applicant (including the best interests of minor children) the very strong view of the Australian community would be that the Applicant should not hold a Visa.
238. The Tribunal finds that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the best interests of the relevant children and the other considerations which weigh in favour of the Applicant.
239. Having had regard to the relevant primary considerations and relevant other considerations in accordance with Direction No 79, the Tribunal is of the view that the correct or preferable decision is to affirm the Reviewable Decision.
DECISION
240. The Tribunal affirms the Reviewable Decision of a delegate of the Respondent dated 13 October 2020 not to revoke the mandatory cancellation of the Applicant’s Visa.
I certify that the preceding 240 (two hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
.............[Sgd]...........................................................
Associate
Dated: 6 January 2021
Dates of hearing: 22 December 2020
23 December 2020Representative for the Applicant:
Solicitors for the Applicant:
Mr T Mwilambwe
Armstrong Legal
Representative for the Respondent:
Solicitors for the Respondent:
Ms E Tattersall
Sparke Helmore Lawyers
ANNEXURE – TABLE OF THE APPLICANT’S OFFENDING
| Conviction Date | Court | Offence | Offence Date(s) | Court Result | |
| 1. | 9 March 2020 | Joondalup Magistrates Court | Possess a prohibited drug (Methylamphetamine) | 19 March 2019 | $3,500 fine (global) |
| 2. | Person having been served with a data access order and without reasonable excuse, failed to obey that data access order | 3 April 2019 | Six months’ imprisonment (concurrent) | ||
| 3. | Possessed a prohibited weapon | 20 February 2019 | $3,500 fine (global) | ||
| 4. | Possess a prohibited drug (Methylamphetamine) | 20 February 2019 | $3,500 fine (global) | ||
| 5. | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 29 August 2019 | $3,500 fine (global) | ||
| 6. | Possessed a prohibited weapon | 20 February 2019 | $3,500 fine (global) | ||
| 7. | Possess a prohibited drug (Methylamphetamine) | 29 August 2019 | $3,500 fine (global) | ||
| 8. | Possess a prohibited drug (Methylamphetamine) | 8 August 2019 | $3,500 fine (global) | ||
| 9. | Possess a prohibited drug (Cannabis) | 20 February 2019 | $3,500 fine (global) | ||
| 10. | Unlicensed person possess firearm/ammunition | 19 March 2019 | $3,500 fine (global) | ||
| 11. | Possession of stolen or unlawfully obtained property | 29 August 2019 | Six months’ imprisonment (concurrent from 9 March 2020) | ||
| 12. | Possess a prohibited drug (Cannabis) | 29 August 2019 | $3,500 fine (global) | ||
| 13. | Possess a prohibited drug (Cannabis) | 8 August 2019 | $3,500 fine (global) | ||
| 14. | Possessed a controlled weapon | 19 March 2019 | $3,500 fine (global) | ||
| 15. | Unlicensed person possess firearm/ammunition | 20 February 2019 | $3,500 fine (global) | ||
| 16. | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 8 August 2019 | $3,500 fine (global) | ||
| 17. | 13 February 2020 | Perth District Court of Western Australia | Possession of a prohibited drug with intent to sell or supply (Methylamphetamine) | 29 August 2019 | 16 months’ imprisonment (cumulative from 8 June 2019) |
| 18. | Possession of stolen or unlawfully obtained property | 29 August 2019 | Six months’ imprisonment (concurrent from 8 June 2019) | ||
| 19. | Possession of stolen or unlawfully obtained property | 29 August 2019 | Four months’ imprisonment (concurrent from 8 June 2019) | ||
| 20. | Possession of stolen or unlawfully obtained property | 19 March 2019 | Six months’ imprisonment (concurrent from 8 June 2019) | ||
| 21. | Possession of a prohibited drug with intent to sell or supply (Methylamphetamine) | 19 March 2019 | 18 months’ imprisonment (cumulative from 8 June 2019) | ||
| 22. | 4 October 2018 | Joondalup Magistrates Court | Driver failed to stop (circumstances of aggravation) | 6 December 2017 | Two years’ motor vehicle license disqualification; Six months’ imprisonment (concurrent from 6 December 2017) |
| 23. | No authority to drive – never held Australian license and is disqualified | Nine months’ motor vehicle license disqualification (cumulative); 4 months’ imprisonment (cumulative from 6 December 2017) | |||
| 24. | Aggravated reckless driving pursuit | Two years motor vehicle license disqualification (concurrent) | |||
| 25. | 4 December 2017 | Joondalup Magistrates Court | Possess a prohibited drug (Cannabis) | 24 October 2017 | $500 fine |
| 26. | 23 May 2016 | Joondalup Magistrates Court | No authority to drive – never held Australian license and is disqualified | 4 August 2015 | Nine months’ motor vehicle license disqualification (cumulative); Three months’ imprisonment (cumulative from 23 May 2016) |
| 27. | Possession of stolen or unlawfully obtained property | 29 May 2015 | Three months’ imprisonment (cumulative from 23 May 2016) | ||
| 28. | No authority to drive never held and disqualified by disqualification notice | 12 May 2015 | Nine months’ motor vehicle license disqualification (cumulative); $1,200 fine | ||
| 29. | No authority to drive – suspended | 28 May 2015 | Nine months’ motor vehicle license disqualification (cumulative); Three months’ imprisonment (concurrent from 23 May 2016) | ||
| 30. | No authority to drive – never held Australian license and is disqualified | 4 September 2015 | Nine months’ motor vehicle license disqualification (cumulative); Three months’ imprisonment (concurrent from 23 May 2016) | ||
| 31. | Driver failed to stop (circumstances of aggravation) | 28 May 2015 | Two years’ motor vehicle license disqualification (concurrent); Three months’ imprisonment (concurrent from 23 May 2016) | ||
| 32. | Used an unlicensed vehicle | 12 May 2015 | $150 fine | ||
| 33. | Reckless driving – dangerous to public or person (to escape pursuit) | 28 May 2015 | Two years’ motor vehicle license disqualification (concurrent); 10 months’ imprisonment (concurrent from 12 October 2015) | ||
| 34. | Drove a vehicle with number plate not issued to that vehicle | 3 March 2015 | $500 fine | ||
| 35. | Unlicensed vehicle (permit use) | 3 March 2015 | $150 fine | ||
| 36. | Drove a vehicle with number plate not issued to that vehicle | 4 March 2015 | $500 fine | ||
| 37. | No authority to drive – never held Australian license and is disqualified | 12 May 2015 | $1,200 fine; Nine months’ motor vehicle license disqualification (cumulative) | ||
| 38. | Drove a vehicle with number plate not issued to that vehicle | 3 March 2015 | $500 fine | ||
| 39. | Unlicensed vehicle (permit use) | 3 March 2015 | $150 fine | ||
| 40. | Unlicensed vehicle (permit use) | 4 March 2015 | $150 fine | ||
| 41. | Dangerous driving | 4 September 2015 | Six months’ imprisonment (concurrent from 12 October 2015) Two years’ motor vehicle license disqualification (concurrent) | ||
| 42. | Drove a vehicle with number plate not issued to that vehicle | 20 October 2014 | $500 fine | ||
| 43. | Drove a vehicle with number plate not issued to that vehicle | 4 September 2014 | $500 fine | ||
| 44. | No authority to drive – never held and disqualified | 4 September 2014 | $1,000 fine; Nine months’ motor vehicle license disqualification (cumulative) | ||
| 45. | Exceed speed limit in a speed zone – between 20 and 29km/h | 4 September 2014 | $300 fine | ||
| 46. | Breach of bail undertaking | 14 August 2015 | $200 fine | ||
| 47. | Possession of stolen or unlawfully obtained property | 4 November 2014 | $400 fine | ||
| 48. | Possess drug paraphernalia containing prohibited drug/plant | 19 May 2015 | $150 fine | ||
| 49. | Breach of bail (fail to appear soon after) | 22 May 2015 | $200 fine | ||
| 50. | Possess drug paraphernalia containing prohibited drug/plant | 19 May 2015 | $150 fine | ||
| 51. | Possess a prohibited drug (Cannabis) | 25 November 2014 | $300 fine | ||
| 52. | Possess drug paraphernalia containing prohibited drug/plant | 19 May 2015 | $150 fine | ||
| 53. | Stealing | 5 May 2015 | $200 fine | ||
| 54. | Possess a prohibited drug (Amphetamine) | 1 February 2015 | $500 fine | ||
| 55. | Possess a prohibited drug (Amphetamine) | 19 May 2015 | $500 fine | ||
| 56. | Possess a prohibited drug (Methylamphetamine) | 12 May 2015 | $500 fine | ||
| 57. | Possess a prohibited drug (Cannabis) | 10 January 2015 | $300 fine | ||
| 58. | No authority to drive – never held Australian license and is disqualified | 5 May 2015 | Nine months’ motor vehicle license disqualification (cumulative); Three months’ imprisonment (concurrent from 23 May 2016) | ||
| 59. | 16 September 2015 | Joondalup Magistrates Court | Driver to ensure passenger under six months correctly restrained | 30 August 2014 | $500 fine |
| 60. | Drove a vehicle with number plate not issued to that vehicle | $500 fine | |||
| 61. | 28 August 2015 | Joondalup Magistrates Court | Possess a prohibited drug (cannabis) | 13 July 2015 | $300 fine |
| 62. | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | $300 fine | |||
| 63. | 27 March 2015 | Joondalup Magistrates Court | Drove a vehicle with number plate not issued to that vehicle | 4 November 2014 | $500 fine |
| 64. | Stealing | 4 October 2014 | $300 fine | ||
| 65. | Stealing | 7 July 2014 | $300 fine | ||
| 66. | Unlicensed vehicle (owner/driver) | 4 November 2014 | $200 fine | ||
| 67. | Breach of bail undertaking | 4 February 2015 | $250 fine | ||
| 68. | Stealing | 4 June 2014 | $300 fine | ||
| 69. | No authority to drive – never held and disqualified | 4 November 2014 | $1,000 fine; nine months’ motor vehicle license disqualification (cumulative) | ||
| 70. | No authority to drive – never held and disqualified | 4 October 2014 | $400 fine; nine months’ motor vehicle license disqualification (cumulative) | ||
| 71. | 30 January 2015 | Joondalup Magistrates Court | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 16 December 2014 | $150 fine |
| 72. | 15 December 2014 | Joondalup Magistrates Court | No authority to drive - suspended | 29 October 2014 | $1,000 fine; nine months’ motor vehicle license disqualification (cumulative) |
| 73. | Drove a vehicle with number plate not issued to that vehicle | $350 fine | |||
| 74. | Unlicensed vehicle (not owner) | $200 fine | |||
| 75. | 28 July 2014 | Joondalup Magistrates Court | No authority to drive – never held | 15 June 2014 | $250 fine; four months’ motor vehicle license disqualification (concurrent) |
| 76. | 30 June 2014 | Joondalup Magistrates Court | No authority to drive – never held and disqualified | 17 May 2014 | $400 fine; nine months’ motor vehicle license disqualification (cumulative) |
| 77. | 23 April 2014 | Joondalup Magistrates Court | Possess a prohibited drug (cannabis) | 25 March 2014 | $300 fine |
| 78. | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | $150 fine | |||
| 79. | Stealing | 11 February 2014 | $400 fine | ||
| 80. | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 25 March 2014 | $250 fine | ||
| 81. | 19 October 2012 | Joondalup Magistrates Court | Possessing stolen or unlawfully obtained property | 14 April 2012 | $800 fine |
| 82. | 13 August 2012 | Perth Magistrates Court | Burglary and commit offence in place | 25 October 2011 | 12 months’ imprisonment (concurrent from 27 April 2012) |
| 83. | Stealing | 12 months’ imprisonment (concurrent from 27 April 2012) | |||
| 84. | Exceed 0.08g alcohol per 100ml of blood | 2 February 2012 | $1,800 fine; 20 months’ motor vehicle license disqualification | ||
| 85. | 15 June 2012 | Joondalup Magistrates Court | Person who breaches CRO or community order without reasonable excuse | 20 July 2011 | $500 fine |
| 86. | Breach of community based order | 19 April 2011 | $2,000 fine | ||
| 87. | 10 February 2012 | Joondalup Magistrates Court | Reckless driving – dangerous to the public or any person | 2 February 2012 | $750 fine; nine months’ motor vehicle license disqualification |
| 88. | Fail to stop when called upon | $500 fine | |||
| 89. | No authority to drive – never held | $200 fine; three months’ motor vehicle license disqualification | |||
| 90. | Unlicensed vehicle (not owner) | $150 fine | |||
| 91. | Breach of protective bail conditions | $200 fine | |||
| 92. | 21 September 2011 | Joondalup Magistrates Court | Posses a smoking utensil used for smoking prohibited drug | 18 August 2011 | $600 fine (global) |
| 93. | Posses prohibited drug namely, dexamphetamine | $600 fine (global) | |||
| 94. | 17 June 2011 | Joondalup Magistrates Court | Aggravated burglary and commit offence in dwelling | 19 April 2011 | Nine month community based order from 17 June 2011 (concurrent) |
| 95. | Stealing | No penalty. | |||
| 96. | 5 July 2010 | Perth Magistrates Court | Fail to comply with request to give police personal details | 6 March 2010 | $250 fine; spent conviction |
| 97. | Obstructing public officers | $500 fine; spent conviction | |||
| 98. | 12 May 2008 | Joondalup Magistrates Court | Excess 0.08%, >=0.08% but <0.09% | 30 November 2007 | $400 fine; three months’ motor vehicle license disqualification (concurrent) |
| 99. | No driver’s licence | $200 fine; three months’ motor vehicle license disqualification (concurrent) | |||
| 100. | Unlicensed vehicle (not owner) | $200 fine | |||
| 101. | Careless driving | $250 fine | |||
| 102. | 31 January 2007 | Joondalup Magistrates Court | Disorderly behaviour in public place | 26 January 2007 | $400 fine |
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