QYXM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

QYXM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1370 (19 May 2020)
Division:GENERAL DIVISION
File Number: 2020/1198
Re:QYXM
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:M J McGrowdie, Senior Member
Date:19 May 2020
Place:Sydney

The reviewable decision dated 24 February 2020, is set aside and, in its place, the Tribunal determines that the mandatory cancellation of the Applicant’s visa is revoked.
......[sgd]..................................................................
M J McGrowdie, Senior Member
CATCHWORDS
MIGRATION – mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – substantial criminal record – character test – discretion under Ministerial Direction No 79 – whether there is another reason to revoke the mandatory cancellation of the visa – risk of re-offending – primary considerations – other considerations – Applicant in Australia since the age of seven – decision under review set aside
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
SECONDARY MATERIALS
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
M J McGrowdie, Senior Member
19 May 2020
INTRODUCTION

The Applicant, was born in 1973 in New Zealand.
He came to Australia with his parents and siblings on 11 November 1980. On 11 January 2008, he was granted a Class TY Subclass 444 Special Category (Temporary) visa.
Whilst in Australia, the Applicant accumulated a substantial criminal record and on 20 December 2018, his visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act).
THE LEGISLATION
Subsection 501(3A)(a) and (b) of the Act relevantly provides that the Minister must cancel the visa of a person who does not pass the ‘character test’ due to them having a substantial criminal record, that is, the person has been sentenced to a term of imprisonment of 12 months or more as defined by subsections 501(6)(a) 501(7)(c) of the Act; and they are serving a full-time sentence of imprisonment for an offence.
Subsection 501CA(4) of the Act confers on the Minister a discretion to revoke a mandatory cancellation of a visa if, following representations by the person whose visa has been cancelled, the Minister is satisfied that the person passes the character test; or there is ‘another reason’ why the mandatory cancellation should be revoked.
There is no issue in these proceedings that, because of his criminal record, the Applicant does not pass the ‘character test’.
The Applicant did make representations and on 24 February 2020, the Minister’s delegate determined not to revoke the mandatory cancellation of the Applicant’s visa. A letter notifying the Applicant of the decision is dated 25 February 2020.
It is from that determination that the Applicant seeks a review to this Tribunal.
DIRECTION 79
In considering whether or not to revoke a mandatory cancellation of a visa, the decision maker, including the Tribunal, must have regard to, and be guided by, the matters contained in Ministerial Direction No. 79 (the Direction or Direction 79) made under section 499 of the Act.
Part C of Direction 79 identifies the ‘primary’ and ‘other’ considerations that must be taken into account in determining whether to exercise the discretion to revoke a mandatory cancellation.
The primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
The other considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties (to Australia);
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Primary considerations are to be given greater weight than the other considerations (paragraph 8 of the Direction).
The Preamble to the Direction provides general guidance to decision makers in relation to the objectives of the Act, in particular the objective to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens (paragraph 6.1(1)).
By way of General Guidance is the commitment of the Australian Government to the protection of the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (paragraph 6.2(1)).
Stated as a Principle in paragraph 6.3(1) is that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia.
Further, that being able to remain in Australia is a privilege with the expectation that visa holders are, and have been, law-abiding, respectful of institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
It is also stated as a Principle, that Australia has a low tolerance of any criminal activity by people who have been participating in, and contributing to, the Australian community for only a short period of time and that 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 (paragraph 6.3(5)).
It is of importance to consider the nature of the criminal or other serious conduct, including crimes of a violent nature particularly against the more vulnerable members of the community.
EVIDENCE CONCERNING THE APPLICANT
The Applicant was raised by his parents in the Newcastle area and he attended school there. His parents had come from New Zealand, and as I understand it, were Samoan in background. In Australia, they were strong adherents of the Seventh Day Adventist faith.
There are many relatives of the Applicant who live in Australia. Sadly, the Applicant’s eldest sister passed away in 2009. It was after this that his substance abuse escalated.
The Applicant has four children living in Australia. Two children are of a former marriage, two sons, aged about 26 and 23 years respectively. Also, from a subsequent and different relationship, which came to an end, the Applicant has a son, aged 17, who is a minor (minor son); and a girl, who had previously been born to this partner, aged about 23 years. His minor son is presently living with the Applicant’s brother in Newcastle since moving out of home. The Applicant has a particularly close relationship with his son and there is a plan, should the Applicant remain in Australia, for the minor son to live with the Applicant. The Applicant is in touch with all of his children. He also has the support of his mother and father. There is no indication that the Applicant has family in New Zealand with whom he has contact.
In his teenage years, he became involved with cannabis and alcohol. He came to the attention of the Courts between 1991 and 2013. The Applicant was convicted of offences including sexual assault, assault occasioning actual bodily harm, contravening a domestic violence order as well as a number of driving offences and ‘offensive conduct’ offences. None of these offences attracted any significant penalty.
During those years, the Applicant largely maintained regular employment. He was a youth worker from 1993 to 2000, involved in construction from 2000 to 2006 and was a plant operator from 2006 to 2011. After being a youth worker, much of the Applicant’s work was in the mining industry. He has established contacts and is confident in securing ongoing employment in Australia were he to stay. The Applicant has a good and strong work history.
In 1993, the Applicant referred himself to do a nine month program with the William Booth Rehabilitation Centre for drug and alcohol use, which I understand was somehow associated with the Applicant’s youth work connections. Nonetheless, it appears that the Applicant had not overcome his use of alcohol and drugs; and by 2008 he was using ‘ice’ perhaps twice a day and this level of use intensified.
The Applicant was cross-examined about various matters appearing recorded in Police Incident reports. This record included a reference to an incident at a nightclub in Newcastle in 1996 when a person was assaulted. The Applicant said he had no recollection of it and knew that he was never charged with assault in relation to any such event.
As the years progressed, so did his drinking and drug use, going from ‘soft’ drugs to heroin and ‘ice’. It was during this period, when the Applicant became an ‘ice-addict’, that he really became chronically addicted to the drugs. His marriage ended and he was separated from his two eldest sons for a long period. He said that he came into contact with the harder drugs when he was doing some work as a security guard rather than through the crowd he usually mixed with.
With the Applicant’s escalating drug addiction came the need for money to buy drugs; and so, he involved himself in serious crime.
On 29 January 2013, the Applicant was convicted in the NSW District Court at Newcastle of ‘Spa gg B&E & commit serious indictable offence – weapon’ and was sentenced to imprisonment for 12 years and 6 months with a non-parole period of 8 years and 6 months. This sentence was reduced on appeal to 8 years and 11 months imprisonment with a non-parole period of 5 years and 4 months.
The Applicant had pleaded guilty to the offences, which involved a home invasion and occurred on 5 July 2011. It would appear that he may not have been the ‘organiser’ but one of a number of offenders and only knew about ‘the plan’ shortly before it occurred.
In the sentencing remarks of Berman SC DCJ, the Applicant suffered a dark period in his life following the death of his sister. The Court considered that the Applicant had shown remorse and had no memory of being involved in the offence until later.
Prior to the above, the Applicant had been involved with others in a spate of robberies. The first of these was on 23 January 2012 at a Hotel, when money was stolen. The next was on 2 February 2012 at a Post and News Shop. The third of the offences occurred on 11 February 2012 at a Bowling Club. On 17 February 2012, there was an attempted robbery at a Westpac Bank. Weapons were brandished during some of these incidents for the purpose of threatening and frightening persons. In the words of Maiden DCJ, the sentencing Judge in the District Court at the Downing Centre on 9 May 2014: ‘…he is an example of a man whose life has changed because of his addiction to substances’.
The Applicant pleaded guilty to each offence and was sentenced to one term of 9 years and 3 months imprisonment and three terms of 8 years and 6 months with non-parole periods of 6 years and 5 months, all backdated.
During the commission of the robbery at the Hotel on 23 January 2012, the Applicant was on bail for the offence committed on 5 July 2011. The ‘robbery offences’ spanned a period from 5 July 2011 to 17 February 2012. The Applicant was taken into custody on 17 February 2012. Upon early release, the Applicant was taken into immigration detention and has remained there since 19 July 2019. He was in prison for some seven and a half years.
For an offence committed whilst in custody, namely ‘inmate possess mobile phone/SIM card etc’, the Applicant was sentenced on 19 July 2017, in the Wagga Wagga Local Court, to 2 months imprisonment. Also, whilst in custody, the Applicant was found to have a ‘smoking implement’ in his cell. The Applicant agreed to this charge but explained to the Tribunal that he had been newly placed in a cell where there was ‘cigarette-paper’ rolled up like a straw on the windowsill. The Applicant agreed that it was in his cell but that he had not put it there. He was not charged or convicted with any other offence whilst in custody.
The Applicant never tested positive for drugs to any urine test whilst in custody, although on one occasion he failed to pass urine for a drug test which became the subject of a misconduct report. The Applicant explained this incident at the Tribunal hearing, and said that he had just finished his allocated chores in the gaol and had not been drinking water and simply could not ‘go’. There were no other reported incidents of this kind whilst in prison.
There was however another incident referred to, namely one where it was suggested in cross-examination that the Applicant was said to have been inciting violence against prison officers. This would have been a very serious matter and one for which the Applicant was never charged.
Whilst in custody and immigration detention, the Applicant has engaged in a number of programs. He completed the EQUIPS Foundation Program as well as the EQUIPS Aggression Program. He has engaged in regular counselling with one-on-one sessions to give him better strategies for dealing with stress. He was also on anti-depressive medication for a period and is now off those.
The Applicant also gets regular visits from an Ordained Pastor of the Seventh Day Adventist Church. Since his imprisonment, the Applicant has renewed his connections with the Church. Before his most serious offending and as a youth worker, the Applicant did pastoral work for the church including coaching rugby union in the church of his family here in Australia.
During his period of custody, the Applicant was moved to different prisons in different parts of the State which often made family visits difficult. Nonetheless, the Applicant has received support from his family. In particular, the Applicant is in daily contact now with his minor son, by phone and ‘face-time’ calls.
I turn now to the considerations under Direction 79.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 13.1(2) of the Direction directs that decision makers should give consideration to:
(a)The nature and seriousness of the non-citizens conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the nature and seriousness of the non-citizen’s criminal offending and other conduct to date, paragraph 13.1.1(1) sets out a number of factors that a decision maker must have regard to and includes, among others, consideration of the nature of the offences, the sentences imposed, the frequency of offending and the cumulative effect of repeated offending.
Nature and seriousness of the Applicant’s conduct to date and the risk to the Australian community
There is no doubt that the Applicant’s offending has been serious and has attracted substantial terms of imprisonment. The most serious offences committed by the Applicant occurred in a period from 5 July 2011 to 17 February 2012, that is spanning about eight and a half months. As the sentencing Judges have remarked, the Applicant was in the grip of a strong drug addiction. Whilst this in no way excuses the conduct, it is relevant to a consideration of how the Applicant is now and what risk he poses to the Australian community should he be permitted to remain in Australia.
It is now more than 8 years since these very serious offences took place and, of course, the Applicant has not been in the community since he was taken into custody.
Risk to the Australian community
No doubt, for the purposes of a sentencing hearing in the District Court, the Applicant was seen by forensic psychologist, Caroline Hare. She produced reports dated 14 January 2013 and 22 January 2014. In the report dated 14 January 2013, Ms Hare speaks of the benefits for the Applicant in engaging with mental health support, including programs and bereavement counselling. She concludes the report by saying that ‘…if [the Applicant] engages with [these] recommendations, his risk of reoffending can successfully be managed.’
Whilst in the Villawood Immigration Detention Centre, the Applicant was seen by numerous health care professionals including a psychiatrist, counsellor and mental health nurses. These are recorded in clinical notes identified as the IHMS Clinical Notes. In a report dated 27 March 2020 of Bradley Jones, psychiatrist, an assessment of ‘risk’ was conducted and expressed in the following terms:
In providing an assessment of the risk of [the applicant] engaging in future offending, a number of testing instruments have been used. Based on the assessment, it is my opinion that [the applicant] currently poses a low risk for committing general offences relative to other offenders and presents a low risk of engaging in violent behaviour.
Mr Jones indicates that a ‘low’ risk of offending is the lowest possible level.
It would appear that the Applicant has been drug-free and alcohol free from when he was taken into custody in 2012.
In prison and in detention, the Applicant was generally regarded as polite and respective. Over the course of the hearing the Applicant impressed me as being polite and respectful as well as remorseful for his past actions and optimistic in terms of having a meaningful life in Australia, if permitted to stay. He is positive in his outlook and looks for ways to contribute to society and his family; and, particularly to his minor son. In prison, he actively contributed by carrying out duties in the kitchen and cleaning, and obtained, for example, certification in food hygiene.
There are various written character references put forward by the Applicant in support of his application. There is a statement from his minor son dated 26 March 2020. This statement outlines the close bond the minor son has with the Applicant as a changed man.
One gets the impression that the Applicant was a person with two different sides – a person who freely gave his time to the welfare of others, worked hard and tried to be a positive role model in the community; and a person who became ‘drug-addicted’ and ‘alcohol dependent’ with a diminished ability to cope and prepared to engage in callous conduct of a serious kind. There were significant stressors in the Applicant’s life around the time including the death of his sister, relationship breakups and dealing with addictions, amongst other things. The Applicant simply had not developed the capacity to deal with life stressors.
I consider that he now has an awareness of this and sought help in this regard. I believe that the Applicant has gained in maturity and insight and feels shame for what he has done. He no longer considers that ‘outside help’ is a sign of weakness for a person; even in his earlier years, he appears to have had a desire to help others.
I consider that this consideration weighs in favour of revocation.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
I would regard it as being in the best interests of the applicant’s minor son that the Applicant remain in Australia. The minor son has a strong relationship with the Applicant and the immediate family. He is getting to the end of his schooling and it is obvious that he yearns for a bond with his father. He is near to attaining his majority, but the Applicant could be a positive influence and support to his minor son going forward.
The Applicant also has a minor niece and there is contact between them.
I consider that overall, this consideration weighs in favour of revocation.
THE EXPECTIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction provides guidance based on the notion that the Australian community expects non-citizens to obey Australian laws.
As stated in Afu v Minister for Home Affairs (2018) FCA 1311, Bromwich J held at [85]:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community.

In determining the expectations of the Australian community, the Tribunal is to have regard to Principle 5 of the Direction, namely, that 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.
The Applicant has indeed lived in Australia for most of his life. His parents are citizens of Australia, as are his children. The Applicant said that he was earlier going to apply for Australian citizenship, but he had encountered difficulties in gathering the necessary documentation and let it pass. Of course, there may have been other obstacles in him obtaining citizenship.
I believe that now, the Applicant, if he was permitted to remain in Australia, would appreciate that even the slightest transgression could lead to a further cancellation of his visa and possible deportation.
I conclude that the expectations of the Australian community would be such as to condemn the Applicant’s past serious conduct whilst acknowledging his efforts of rehabilitation, him serving punishment for his crimes and his commitment to a positive future. As such, this consideration weighs in favour of revocation of the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
International non-refoulement obligations
No evidence was advanced that is relevant to this other consideration. Accordingly, this consideration is afforded no weight.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction, directs the decision maker to have regard to how long the non-citizen has resided in Australia including whether the non-citizen has arrived as a young child. It also refers to the strength, duration and nature of any family or social links with Australian citizens.
The Applicant certainly does have strong ties with Australia. His family and children are here. He has made a positive contribution through his youth work and employment and has the opportunity of continued employment in Australia, support from his family and being a father to his children. As such, this consideration weighs in favour of revoking the cancellation decision.
Impact on Australian business interests
This consideration is applied if non-revocation would significantly compromise the delivery of a major project, including an important service in Australia, as referred to in paragraph 14.3(1) of the Direction. As there is no evidence before the Tribunal that the Applicant is involved with the delivery of a major project in Australia, this consideration does not lead me to give it any weight.
Impact on victims
There is no direct current evidence as to the impact of the Applicant’s offending on the victims, but no doubt there would have been some real and ongoing psychological impact on the victims, particularly the victims of the Applicant’s offending in 2011 and 2012. There is no evidence of any ongoing physical injury present. As such, this consideration weighs neutrally.
Extent of impediments if removed from Australia
The Applicant has no obvious present ties to New Zealand. It would appear that he has no family members with whom he has contact in New Zealand. Also, he would not have the same job contacts that he has in Australia.
That is not to say that employment opportunities would not be available in New Zealand. The same could be said for health care and other services. Of course, in Australia he has now an established contact with the church and his family, with the support that comes from those connections. There are no language and cultural barriers, but it was seen that he has no social contacts in New Zealand. In Australia he can live with his parents or his brother and at the same time provide accommodation and support to his minor son.
The Tribunal finds this consideration to weigh slightly in favour of revocation.
CONCLUSION
In summary, and with regard to the primary and other considerations; giving predominant weight to the primary considerations, I consider that the balance is in favour of revocation of the mandatory cancellation of the Applicant’s visa.
DECISION
The reviewable decision dated 24 February 2020, is set aside and, in its place, the Tribunal determines that the mandatory cancellation of the Applicant’s visa is revoked.

I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of M J McGrowdie, Senior Member

......[sgd]..................................................................
Associate
Dated: 19 May 2020

Date(s) of hearing: 4 and 5 May 2020

Counsel for the Applicant: Ms Theresa Baw

Solicitors for the Applicant: Hardy Lawyers

Solicitors for the Respondent: MinterEllison

[2020] AATA 1370

19 May 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Remedies

Statutory Construction

Standing

Date(s) of hearing:	4 and 5 May 2020
Counsel for the Applicant:	Ms Theresa Baw
Solicitors for the Applicant:	Hardy Lawyers
Solicitors for the Respondent:	MinterEllison