Read and Minister for Home Affairs (Migration)
[2019] AATA 1404
•25 June 2019
Read and Minister for Home Affairs (Migration) [2019] AATA 1404 (25 June 2019)
Division:GENERAL DIVISION
File Number: 2019/1990
Re:Mr Nicholas Read
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D.J. Morris
Date:25 June 2019
Place:Sydney
The Tribunal decides that the decision of the Respondent made on 1 April 2019, being a decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa under s 501CA(4) of the Migration Act 1958 (Cth), is set aside.
In substitution, the decision to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa is revoked.
....................[sgd].....................
Senior Member D.J. Morris
CATCHWORDS
MIGRATION – mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – failure to pass the character test – whether there is another reason why the cancellation decision should be revoked pursuant to section 501CA(4)(b)(ii) of the Migration Act 1958 – Ministerial Direction No. 79 applied – primary considerations – protection of the Australian community from criminal or other serious conduct – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
Migrations Regulations 1994 reg 2.52
CASES
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 461; 124 ALD 68
Minister for Home Affairs v HSKJ [2018] FCAFC 217; 363 ALR 325
R v Read [2018] NSWDC 304SECONDARY MATERIALS
Migration Act 1958 – Direction under section 499 – Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made 20 December 2018, commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D.J. Morris
25 June 2019
Background
Mr Nicholas Read was born in New Zealand in December 1982 and came to Australia with his parents for the first time as an infant in November 1983, departing a few days later. He returned with them in June 1984 when they settled in Australia. He has travelled out of Australia on a few occasions since then, but has resided in Australia. Mr Read is a New Zealand citizen and remained in this country as the holder of a Class TY Subclass 444 Special Category (Temporary) visa until that visa was cancelled by a delegate of the Minister for Home Affairs (the Respondent Minister) on 24 August 2016 under section 501(3A) of the Migration Act 1958 (Cth) (the Act). The cancellation was mandatory as a result of Mr Read having a ‘substantial criminal record’ as defined in the Act and having been sentenced to serve a term of imprisonment of more than 12 months.
Mr Read was invited to make representations to the Respondent about whether the mandatory cancellation of his visa should be revoked. On 16 September 2016 he made that request in writing.
On 1 April 2019 a delegate of the Minister decided not to revoke the mandatory cancellation of the visa under section 501CA(4) of the Act. On 10 April 2019 Mr Read applied to the Tribunal for a review of the delegate’s decision.
The hearing was held on 6 and 7 June 2019. Mr Read was represented by Mr Nigel Dobbie, for Visa Immigration Specialists Australia Pty Ltd. The Applicant gave evidence and was cross-examined by Mr Andras Markus, for The Australian Government Solicitor, representing the Respondent. The Applicant’s parents and his brother gave evidence, as did a former employer and a drug and alcohol counsellor who had prepared a report on Mr Read.
The Minister tendered two volumes of papers, G-Documents (GD) and a bundle of tender documents (TB). The Applicant and the Respondent both submitted Statements of Facts, Issues and Contentions. The Tribunal admitted other documents into evidence, a list of which is at the end of these reasons.
Legislative Framework
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a non-citizen’s visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52) and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Minister did not contest that Mr Read had made representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7)(c) states:
(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; …
Before the Tribunal was a National Police Certificate dated 23 August 2016 relating to the Applicant .[1] However, Mr Read has been before the Courts subsequent to the issuance of that certificate. On 10 September 2018 Mr Read was convicted by the District Court of New South Wales of the offence of Reckless wounding, and the offence of Doing an act with intent to pervert the course of justice (2 counts). He was sentenced to an aggregate term of 3 years and 6 months ,[2] with a non-parole period of 2 years and 3 months, with the sentence backdated to commence on 8 January 2017.
[1] G-Documents, pp. 22-25.
[2] G-Documents, p. 67.
In the Applicant’s Statement of Facts, Issues and Contentions, Mr Dobbie conceded that Mr Read does not pass the character test because he has a ‘substantial criminal record’ within the terms of the Act. Mr Dobbie stated that the issue before the Tribunal is whether there is ‘another reason’ (within the terms of section 501CA(4)(b)(ii) of the Act) why the original decision to cancel Mr Read’s visa should be revoked.
On the evidence before the Tribunal in the transcript of R v Read [2018] NSWDC 304[3], the Tribunal finds that the Applicant fails the character test under section 501(3A)(a)(i) of the Act because the sentence imposed on him on 10 September 2018 exceeds 12 months.
[3] G-Documents, pp. 47-68
Section 501CA relevantly provides that:
(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.
…
(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.
Having found that Mr Read fails the character test, the Tribunal agrees with the submission from both parties that the sole issue before the Tribunal is whether there is another reason why the original decision should be revoked.
In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, North ACJ stated, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
The Ministerial Direction
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. On 20 December 2018, the then Minister for Immigration, Citizenship and Multicultural Affairs (who was jointly authorised with the Minister for Home Affairs to administer the Act) made Direction No. 79 (the Direction) under section 499 of the Act. The Direction commenced on 28 February 2019.
The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(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.
Relevantly, the Direction includes the following principles at paragraph 6.3:
(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.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C; which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct’; ‘The best interests of minor children in Australia’; and ‘Expectations of the Australian community’.
Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’ The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal considered each of the primary considerations and, as relevant, the other considerations.
Applicant’s opening submissions
Counsel for Mr Read told the Tribunal that it was a ‘matter of fact’ that the Applicant has a substantial criminal record, with a number of offences spanning the period from 2001 to 2018. Mr Dobbie said , accepting that, the Tribunal should be persuaded that Mr Read’s substantial ties to the community, his general reform and his employability all count in his favour in deciding that there is another reason why the mandatory cancellation of Mr Read’s visa should be revoked.
Respondent’s opening submissions
Mr Markus said that the Respondent accepted that some of the other considerations tend to favour revocation of the cancellation decision; however, he submitted that two of the primary considerations that decision-makers must have regard to in the Direction strongly speak in favour of affirming the original decision.
Evidence of the Applicant
The Tribunal admitted into evidence a written statement of Mr Nicholas Read dated 20 May 2019 .[4]
[4] Exhibit A1.
Mr Read was asked whether he accepted that the material tendered by the Respondent (TB Documents produced under summons by the NSW Department of Corrective Services) is an accurate record of his criminal activity, which he conceded.
Mr Read said that since being in custody and immigration detention he had reflected on his conduct and how many people have been hurt by his actions, both victims and his own family. He said that his parents are distraught by his conduct because he had had a happy upbringing and did not want to go back to his past behaviour.
Mr Read said that he had grown to hate the drug to which he had been addicted, crystal methamphetamine (ICE) and although it had been available both in prison and in detention, he had kept away from it. He conceded that he had taken buprenorphine in prison and that it was the only illicit medication he has consumed in the last three years. He said that when he was on ICE ‘my life became a lie’ and that, when he was taking ICE, he lost everything – his job, shares in his house, his vehicle and many of his possessions that he sold to fund his drug habit.
Mr Read said he was committed to go into residential rehabilitation if his visa is restored and he leaves immigration detention. He said he would initially live with his parents, after the residential rehabilitation course, and hoped to go back to his trade, as an electrician, a job he held from the age of 16 until he was 32 years of age. He told the Tribunal he had risen to be a leading hand electrician installing various electrical systems and with responsibility for a team of younger co-workers, ordering goods and completing tasks on time. Mr Read said although he was born in New Zealand he has no ties with that country, and his strong preference would be to undertake his rehabilitation in Australia because this is where his family and friends are.
When asked about the events leading up to the conviction for Reckless assault, Mr Read said he handled things very badly because of his state of mind at the time, that he was ‘intoxicated with ICE’. He said that he wanted to be known as a successful person, not as a criminal.
Under cross-examination, Mr Read agreed that he does have an aged aunt and uncle in New Zealand, his mother’s sister and her husband, but he had had no contact with them and he would not feel comfortable asking them for help, if he was repatriated.
Mr Read was taken to the National Police Certificate where the first offence recorded was a conviction for Contravene apprehended domestic violence order, before Manly Local Court in March 2001. He said it was his recollection that the police originally applied for the AVO because of his behaviour at home, and that he had come home drunk and broken a plate. He said he remained living with his parents at this time.
Mr Read said he began drinking around the age of 16 at school, mainly binge-drinking on weekends. He finished school in year 10 and was convicted of drink-driving in April 2003. Mr Read agreed with Mr Markus that he had several convictions for driving under the influence of alcohol (the certificate records three such convictions). His first drug offence is recorded as Possess prohibited drug, in June 2005, and Mr Read said he thinks it was for possessing marijuana.
In December 2005, Mr Read was convicted for driving with a middle range of alcohol in his blood, and was fined $2,000 and ordered to attend an educational or drug and alcohol rehabilitation course. He agreed that he had not always been compliant with the orders made by the Court .[5]
[5] Tender Bundle, pp. 1-4.
Mr Read said he had tried ICE aged around 20 but started using ICE regularly in 2013. He said one reason for resorting to the drug was a breakdown in a personal relationship.
Mr Read was asked about a conviction in 2014 for common assault. He said that he thought this may relate to the flatmate of a former girlfriend. The Tribunal notes the police charge sheet records that Mr Read called at the flat of his former girlfriend. Her flatmate told him he was no longer welcome there.[6] An argument ensued:
The Accused said to the Victim, “You need to be taught a lesson”. The victim, unsure what the Accused meant said, “What…are you talking about, are you going to hit a girl?” The Accused was in the fact of the Victim when he was saying this was still yelling with a raised voice. At that moment the Accused, with his right hand grabbed the Victim around the throat and squeezed it tightly a number of times. The Accused, also with his left hand, clenched his fist and moved it backwards in a motion that caused the Victim to think he was going to punch her. The victim was terrified due to the Actions of the accused. A witness [name redacted] saw the Accused arrive at the location and punch a parked vehicle. [The witness] observed the Accused choke the Victim and moved over to assist her. He ran up to the Accused and grabbed him, moved him away from the Victim and attempted to calm the Accused. The Accused then walked off.
[6] Tender Bundle, pp. 119-120.
The police were called and Mr Read was arrested. He received a three month suspended sentence.
In August 2015 Mr Read appeared before the Manly Local Court. He received a term of imprisonment because of, in the Magistrate’s words , “the sheer repetition of offences”.[7] He was sentenced to three terms of imprisonment, two of 6 months and one of 12 months, for contravening AVOs, which were all suspended. The Tribunal had before it a pre-sentence report, dated 6 August 2015, which stated:
Assessment
It would appear that Mr Read had been gainfully employed and led a more positive and stable lifestyle prior to his use of crystal methamphetamine. For more than a year his lifestyle has deteriorated in that he is unemployed, relies on his father for financial assistance and has become estranged from other members of his family. Unfortunately, Mr Read does not seem to consider that he is in need of either counselling or residential rehabilitation to assist him to achieve or maintain a drug-free lifestyle.[8]
[7] G-Documents, p. 32.
[8] Tender Bundle, p. 173.
Mr Markus asked Mr Read about this report. The Applicant responded: ‘I have a different opinion now; they’d have been correct, then’.
Mr Read was then taken to subsequent Corrections Service reports which recorded that he had breached conditions of bonds imposed by the Court and had to be resentenced. He told the Tribunal that he had been admitted to Odyssey House for a residential drug rehabilitation course, but had left the same day. He was taken into custody in April 2016 and has been in custody since that time.
In terms of the incident which resulted in the conviction for Reckless assault and two counts of attempting to pervert the course of justice, Mr Read told the Tribunal that he found out that a friend was sleeping with his former girlfriend. They had a fight and he put a wood chisel through the victim’s hand.
In terms of the two counts of attempting to pervert the course of justice, Mr Read said he rang his former girlfriend to get her to persuade the victim of the assault to change his statement so that he, Mr Read, did not have to go to gaol. The victim actually answered her mobile telephone, so he spoke to him first, and later telephoned and lobbied his former girlfriend for such an outcome.
The agreed facts stated by Montgomery DCJ in Court were before the Tribunal,[9] and Mr Read said he agreed with ‘everything that is there’.
[9] G-Documents, pp. 49-58.
Relevantly, the injuries suffered by the victim were serious. His Honour said:
As a result of the assault [the victim] suffered the following injuries:
(1) A penetrating laceration of the webbing between his left thumb and forefinger with an exit wound;
(2) 2 fractures of his left cheek/eye-socket region;
(3) soft tissue swelling on his face;
(4) a bruise to his scalp;
(5) a laceration to his left eyebrow; and
(6) minor lacerations to his right arm and left leg.
[The victim] has persisting double vision to the left eye as a consequence of the assault upon him committed by the offender.[10]
[10] G-Documents, p. 52.
Mr Markus said that he accepted that it is Mr Read’s intention to rehabilitate himself, but what is at issue is whether that intention can be fulfilled, and can it be fulfilled in New Zealand. Mr Read said that he would find it hard because he would be emotionally upset and without the immediate support of his family. He agreed that there would be no language barriers and that New Zealand is a similar country to Australia and that his trade skills would be transferable . He said that he was not familiar with what services were available for rehabilitation in New Zealand, but had spoken to some people in detention who said that the services there are similar to what is available in Australia. Mr Read said that he felt it would be ‘much easier for me to fall off the wagon’ in New Zealand with no family support or friends around him.
Evidence of Mr Shahang Sharanizadeh
The Tribunal admitted into evidence a written statement of Mr Sharanizadeh dated 20 May 2019 .[11]
[11] Exhibit A2.
Mr Sharanizadeh told the Tribunal that he has known the Applicant for about 18 years and is a friend of him and his family. He had employed Mr Read in the company for which he works for approximately four years. Mr Sharanizadeh said he was aware of Mr Read’s criminal history. In answer to a direct question from the Tribunal, he said that he had never seen any signs of anger from the Applicant when he worked with him and confirmed that as a leading hand electrician Mr Read often worked with a team of between one and two, and sometimes up to fifteen, workers under his supervision. He said that Mr Read had been a good and effective worker when he employed him.
Evidence of Mr Samuel Read
The Tribunal admitted into evidence a written statement of Mr Samuel Read dated 17 May 2019.[12]
[12] Exhibit A3.
Mr Samuel Read is Mr Read’s younger brother by two years. He said they attended primary school together and then, when his brother moved to high school, their parents also transferred him so that the two boys could be at the same school.
Mr Samuel Read told the Tribunal that he considered that repatriation of his brother would have a detrimental affect both on the Applicant and on their family. He said that it was his opinion that Mr Read has come a long way since his life ‘derailed’ in 2014 and felt that his brother was a different person from what he was before. When pressed about this, Mr Samuel Read said, while it was no excuse, he believed his brother’s behaviour was impaired by drug use, which greatly affected his judgement, and that he had finally come to a realisation about that.
When asked about the AVOs taken out against Mr Read, Mr Samuel Read said that in most instances it was because of his brother’s ingestion of alcohol and drugs which led to him being argumentative and occasionally inflicting minor vandalism at their family house; he said that Mr Read had never done any physical harm to either him or his parents.
Mr Samuel Read said that his brother cut off contact with him when he was taking ICE but that he still tried to communicate with him during this period. He said he visited Mr Read in prison and kept in regular contact by telephone, twice a week. He said it was his view that the Applicant was genuinely remorseful for what he had done.
Mr Markus asked Mr Samuel Read whether he thought that their parents could assist Mr Read financially if he was repatriated, and the witness said while they were financially stable, his view was that Mr Read needed support beyond funds, and that he considered his brother would feel ‘abandoned’ in New Zealand.
Evidence of Mr Murray Read
The Tribunal admitted into evidence a written statement of Mr Murray Read, father of the Applicant, dated 19 May 2019, together with a minor emendment to that statement dated 28 May 2019.[13]
[13] Exhibit A4.
In the statement, Mr Murray Read described how he and his wife moved to Australia from New Zealand in 1984 with Nicholas, then aged 18 months, and their second son, Samuel, who was born in Sydney in 1985. They have lived here ever since that time.
Mr Murray Read said that his son’s involvement with ICE has been devastating for him and for his family. He said that provided the Applicant can complete a residential rehabilitation course under strict conditions, he was confident his son would be able to rebuild a productive life. He was of the view that drugs have been an enormous factor in his son’s downfall.
Mr Murray Read said that he believed his son finally understands the damage that drugs have done to him. He said that, previously, it had been impossible to rationalise with the Applicant and that he had several discussions with his son’s parole officer about strategies to try and make him comply with Court orders. Mr Murray Read said that he had seen a complete turnaround in the last six months, particularly since Mr Read had started counselling with Ms Ardren.
He agreed that he was in a position to provide financial support for his son if he was repatriated but was of the view that emotional and family support was what the Applicant really requires.
Evidence of Mrs Janette Read
The Tribunal admitted into evidence an undated written statement of Mrs Janette Read, mother of the Applicant.[14] The statement relevantly stated:
The past 4 years have been such a sad and difficult time for my husband Murray, myself and our youngest son Sam as we lost Nicholas to the drug ice. Nicholas went from a contributing member of society working as an Electrician, buying a share in his first property, attending family birthdays [and] family dinners to somebody that withdrew from us and society. Nicholas did not cope well at all with the breakup of his relationship in 2014 and found it difficult to focus on his goals which was when he became involved with ice addition. Being in custody has had a huge impact on him and he is remorseful of his past. He is very focused on his future, getting back into the workforce and becoming a contributing member of society again.
[14] Exhibit A5.
Mrs Read said that before her son took up with ICE he had issues with alcohol, but was otherwise warm and caring. She told the Tribunal that after a relationship breakdown she had taken Mr Read to their local general practitioner who had prescribed antidepressants. She had generally been careful to mete them out to him, two at a time, because she was worried about his mental state in the wake of his relationship breakdown. One evening the Applicant had come home, found the bottle of antidepressants, and swallowed the whole contents. He had to be taken by ambulance to the local hospital.
In terms of family in New Zealand, Mrs Read said she had a 74 year old sister whose husband is a year older, and a brother-in-law who also lives there, but that her son has had no contact with any of them for many years, and she did not think they would be in a position to offer any help should he be repatriated.
Mrs Read agreed that her son was vulnerable and residential rehabilitation was a necessity; she acknowledged this would be possible in New Zealand but was of the view that it would be much more difficult for him to succeed without family support.
Expert Evidence of Ms Juliet Ardren
The Tribunal admitted into evidence a report dated 29 May 2019 by Ms Juliet Ardren, a social worker and alcohol and other drug specialist.[15] Ms Ardren confirmed that she had read the Tribunal’s guidelines for persons giving expert and opinion evidence and that her duty was to the Tribunal, not as an advocate for a party.
[15] Exhibit A7.
Ms Ardren said that she had seen the Applicant from April 2019 for twice weekly counselling sessions for two hours. She wrote:
Mr Read displays significant remorse when reflecting on the decisions made due to his substance abuse. This is reflected throughout each session. Mr Read takes full responsibility and displays an incredibly honest portrayal of this history.
…
If Mr Read is granted permission to remain in Australia which Nicholas calls his home, having lived in Australia since 11 Months old, under suitably qualified professional supervision, Mr Read will undergo twice weekly urinalysis, twice weekly counselling sessions until admission into a Drug and Alcohol rehabilitation centre. This will continue to support and enable Mr Read to receive the supports he needs to continue developing the attitude and skills to avoid crime, substance misuse and live a productive life in the community.
In her oral evidence, Ms Ardren told the Tribunal that, since writing her report, Mr Read has now been accepted into three facilities offering residential rehabilitation. She said that one specialising in persons with trade backgrounds would be the most appropriate, and was of the view that Mr Read would benefit from Dialectical Behavioural Therapy (DBT).
Ms Ardren said that in her sessions with him, Mr Read was showing insight into his past conduct. She believed a ten to twelve month residential rehabilitation course was essential, followed up with DBT and then ongoing monitoring to guard against relapse. Ms Ardren said that she had some broad familiarity with services available in New Zealand but noted that a major component of residential rehabilitation is family days, where residents can interact with their family members, which she considered was an important part of re-introduction of persons to society.
Mr Markus took Ms Ardren though the Tender Bundle, which shows Mr Read’s history of non-compliance with bond conditions imposed by the Courts and his departure from a rehabilitation course at Odyssey House after only one day. In answer to a direct question from the Tribunal about what she considered to be the main driver of Mr Read’s current attitude, Ms Ardren said she had long experience with addicts telling her what they thought she wanted to hear. In Mr Read’s case, Ms Ardren considered he is ready to address his substance abuse.
Ms Ardren agreed that there was a risk of relapse, and that it was impossible for her to predict whether or not Mr Read would return to drug addiction, whether with ICE or another addictive substance.
Consideration of the Direction
The Tribunal considered each of the primary and other considerations set out in Part C of Direction No. 79 (the Direction).
Primary consideration - Protection of the Australian community (paragraph 13.1)
The Direction requires decision-makers, including this Tribunal, to give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Mr Dobbie conceded that Mr Read’s criminal record reveals offending that can be considered as serious, but submitted that it was in the lower to middle range of seriousness. However, the Tribunal also notes that His Honour, in his commentary on the injuries sustained by the victim, said that the beating was “savage, sustained, caused serious facial fractures and lacerations”, that there was no relevant provocation by the victim; that there was no element of self-defence; and that “it was a cowardly one way attack”.
His Honour also noted that Mr Read repeatedly lied to police and, in the course of the week following his arrest, continued a course of conduct of intimidating the victim and pressuring him to change the evidence about the assault that he had given to the police. The Judge said:
In my opinion, the objective seriousness of the Count 2 offending is indicated by the criminal culpability of rising without provocation from a peaceful posture and environment against a friend who was not responding with violence, with the intimidation of a potentially lethal weapon to achieve dominance, It is also indicated by sustained repeated and forceful bashing to the eye region and the head of [the victim]. The degree of recklessness was high. The wounding was significant but not in the high range for offences of this type. I assess the objective seriousness at about the middle range for an offence of this type.[16]
[16] G-Documents, p. 59 at para [49].
In terms of the two counts relating to Mr Read attempting to pervert the course of justice, His Honour said:
Encouraging persons, particularly persons who are to give evidence, to retract their statements or to fail to give evidence is a serious matter. The offender clearly intended to thwart the course of justice. The Crown concedes that neither witness was prepared to go along with the offender’s approaches. As submitted by Counsel for the offender, his attempts to thwart justice by use of a prison telephone was not only ineffective but was unsophisticated because of the risk that he would be detected. The statements had already been given to the police by the witnesses. The prospects of him being successful were low. I acknowledge the statutory goalpost of a maximum term of 14 years. I accept the Crown submission that the objective seriousness of Counts 3 and 4 is in the lower range for offences of this type.[17]
[17] G-Documents, p.59 at para [51].
The Direction also explicitly highlights the principle (at paragraph 13.1.1.(1)(b)) that crimes against women and children are viewed very seriously, regardless of the offence imposed. Mr Read’s unprovoked attack on his former girlfriend’s flatmate falls squarely into this category, and is viewed adversely by the Tribunal.
The Tribunal notes that both of the assault offences of which Mr Read has been convicted stemmed, in their circumstances, to problems in his personal relationships. In the first case, he was enraged by not being able to see a former girlfriend, and lashed out at an innocent young woman. In the second case, he decided to inflict a sustained and serious assault, using a chisel as a weapon, against a friend whose entry into a sexual relationship with his former girlfriend Mr Read decided was not acceptable. ICE may well have played a part in this offending, but these disproportionate and antisocial responses are also indicative of a lack of control of his aggression.
In terms of assessing the risk of Mr Read re-offending, the Tribunal believes that the risk is real. There is a pattern of aggression, including (verbally) towards his own family as illustrated by the AVOs, which had its worst manifestation in the two assault convictions, the second of which could have led to life-changing injuries for the victim. An assessment of risk hinges directly on whether Mr Read returns to taking ICE or another drug, but also how he handles alcohol, which was a factor before he turned to methamphetamine. The Tribunal accepts Mr Read’s written and oral statements of remorse as genuine, as was the professional opinion of Ms Ardren, but accepting he has – generally – resisted the temptation of taking up with drugs in prison and has in detention, there is a frailty which relies solely on his own will-power. That may be seen from his two convictions for taking buprenorphine when in prison, in June 2017 and July 2018.[18] Any return to his previous conduct would be totally unacceptable to the community.
[18] G-documents, p. 61 at para [60].
The Tribunal finds that this primary consideration weighs against revoking the mandatory cancellation of the visa.
Primary consideration - Best interests of minor children in Australia affected by the decision (paragraph 13.2)
In answer to direct questions from the Tribunal, Mr Read confirmed that he did not have children, and nor did his brother. Parties made no submissions that this primary consideration is relevant in this matter. The Tribunal finds that this consideration is not engaged.
Primary consideration – Expectations of the Australian community (paragraph 13.3)
The Direction reminds decision-makers that the Australian community expects non-citizens to obey Australian laws while in this country. The Tribunal would add that expectation is no different from what is expected of Australian citizens, whether by birth or conferral.
Both Mr Dobbie and Mr Markus drew the Tribunal’s attention to the recent Federal Court judgment in FYBR v Minister for Home Affairs [2019] FCA 500. In that matter, Perry J was considering a refusal of an application for a visa in relation to Direction No. 65 (now superseded by the Direction), but the text of the relevant part of the Direction is exactly similar. Her Honour stated, at [42]:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction.
The Tribunal respectfully agrees that it must give effect to the ‘norm’, but in the context that ascertaining the expectation of the Australian community necessarily supposes that the notional community member has knowledge of all the facts surrounding a non-citizen’s offending or other serious conduct. This primary consideration must also be read in the context of the Principles in the Direction, where at paragraph 8(3) it is clear that primary and other considerations may weigh in favour, of, or against, whether or not to revoke a mandatory cancellation of a visa. Otherwise this primary consideration in the Direction effectively becomes a dead letter.
The expectations of the Australian community are inclined against the restoration of the visa of any non-citizen who is a serious offender, but the Tribunal’s view (supported by paragraph 6.3(5) of the Direction), is that the Australian community may give a greater measure of tolerance to Mr Read as a person who came to this country as a young child and has resided here with his family ever since.
However, the same community member would also take a dim view of Mr Read’s list of criminal offending in terms of drug use and drink driving, which is an inherently dangerous activity against society. The informed community member would also consider that Australians are intolerant of incidents of unprovoked assault, such as Mr Read perpetrated on the innocent flatmate of his former girlfriend, and in the subsequent incident, on what can only be considered, given the Judge’s recitation of the physical injuries inflicted, a very serious assault. The fact that the Tribunal may accept that Mr Read’s judgment and conduct was affected by drugs is no mitigation.
The Tribunal concludes that, on balance, this primary consideration weighs against revoking the mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
Mr Dobbie submitted that this consideration was not relevant in this matter, and Mr Markus agreed. The Tribunal notes that Australia has international obligations not to forcibly return a person to a place where they will be at risk of a specific type of harm, but there are no apparent protection or complementary protection issues that arise if Mr Read was repatriated to New Zealand. The Tribunal therefore weighs this consideration neutrally in this consideration.
Strength, nature and duration of ties to Australia (paragraph 14.2)
The Direction requires the Tribunal to have regard to how long a non-citizen has resided in Australia, with less weight being given where the non-citizen began offending soon after arriving in this country. More weight should be given to the time the person has spent contributing positively to the Australian community.
Mr Read emigrated with his parents when he was 18 months old. Apart from vacations, he has spent all of his life in Australia. The first record of him offending is an appearance at Manly Local Court in March 2001 when he was aged 18, so it may be seen that his offending did not commence soon after his arrival in Australia but did start on the onset of adulthood.
In terms of the Applicant’s positive contributions to the community, it was not contested that he began his apprenticeship as an electrician aged 16 upon leaving school. He completed his technical qualifications as an electrician at North Sydney TAFE; evidence of his initial and subsequent qualifications is in the papers.[19] He was employed as a marine electrician from 1999 to 2003, then as an electrician installing alarm systems and CCTV systems from 2003 to 2007, and then from 2007 to 2014 by two companies as an electrician. Mr Sharanizadeh, his former employer, corroborated Mr Read’s employment background in his evidence.
[19] G-Documents, pp. 100-107.
It is lamentable that Mr Read’s descent under the influence of ICE led to him losing his job and other assets, but the Tribunal takes account of the positive contribution he has made to the Australian community in his working life for a significant period of his adulthood. At times he seems to have been able to sustain this employment, apparently unimpeded, while grappling with excess alcohol consumption. However, the pernicious destructiveness of ICE cost him his job, and much else.
The Applicant’s parents are naturalised Australian citizens and his brother is an Australian citizen by birth. On balance, the Tribunal considers that this other consideration weighs strongly in favour of revoking the mandatory cancellation of Mr Read’s visa.
Impact on Australian business interests (paragraph 14.3)
This part of the Direction requires decision-makers to consider the impact on Australia’s business interests if a 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 the delivery of an important service in Australia.
While, as discussed above, there is no doubt that Mr Read possesses valuable trade skills, there was no evidence before the Tribunal that his technical abilities are such that the loss of them would affect a major project in Australia. This is not to suggest that his skills are not of value, but there are others with similar skills. The Tribunal considers that this consideration does not weigh either for or against revoking the mandatory cancellation decision.
Impact on victims (paragraph 14.4)
The Tribunal must consider the impact of a decision not to revoke the mandatory cancellation on members of the Australian community, including victims of the non-citizen’s criminal behaviour where that information is available. There was no information before the Tribunal that the two assault victims were aware of Mr Read’s visa status, so the Tribunal does not consider this other consideration further.
Extent of impediments if removed (paragraph 14.5)
I must consider the extent of any impediments that a non-citizen may face if removed from Australia to his or her home country in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The Tribunal must take into account the age and health of the person; any substantial language or cultural barriers; and any social, medical or economic support available to Mr Read if he is repatriated.
Mr Read agreed in answers to questions from both counsel that New Zealand does not pose any language or cultural barriers for him. Mr Read gave some evidence that work may be harder for him to obtain, but the Tribunal views this more as surmise and the Applicant himself said he was not acquainted with the electrical trade in New Zealand. He conceded that he would be able to obtain employment there.
In his sentencing remarks in September 2018, the Judge quoted from expert psychologist reports before the Court. Relevantly, the expert psychologist concluded, in relation to Mr Read:
The offender’s good intentions towards rectifying his life (as are expressed in his letter to the court), are likely to be unsuccessful without structured, supervised residential rehabilitation services because his behaviours are ingrained.[20]
[20] G-documents, p 63, at [65].
Ms Ardren suggested that some New Zealand rehabilitation services may not offer DBT; however, it is her professional view that this is the optimal approach for addressing Mr Read’s addictive problems, not that it is the only approach, and she agreed with Mr Markus that there were residential rehabilitation services available in that country.
The Tribunal does note Ms Ardren’s view that family contact is an important part of the residential rehabilitative process and that this would not be possible, or at least would be much more difficult, if Mr Read was in New Zealand. In this respect the Tribunal takes into account Mr Markus’s submissions that family contact would be possible through telephone and other electronic means, and also the Respondent’s concessions that such contact would not be equivalent to personal interaction.
Putting aside Mr Read’s drug issues, and noting that apart from relapsing into two cited incidences of taking buprenorphine in prison, there was no evidence before the Tribunal that the Applicant was not otherwise fit and healthy. He would have access, as a New Zealand citizen, to the social welfare and health services available in that country and, on the evidence of his parents, to financial assistance from them, if he were repatriated. The Tribunal accepts the evidence of Mr and Mrs Read that their respective siblings are of an age where they would not be able to offer much by way of assistance to the Applicant in New Zealand.
On balance the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa owing to the lesser social support available to the Applicant, but only slightly so.
Conclusion
In undertaking review decisions of this nature under the Act, the Tribunal must take full consideration, as required under section 499, of the Direction. The Tribunal accepts Mr Markus’s submissions that the two relevant primary considerations weigh against revoking the mandatory cancellation of Mr Read’s visa.
As set out in paragraph 8(4) of the Direction, primary considerations should generally be given greater weight than the other considerations. However, the requirements of assessing whether the discretion is enlivened for there to be another reason under section 501CA(4)(b) of the Act involve the Tribunal taking into account the totality of the Direction. Relevantly, the Full Court of the Federal Court of Australia stated in Jagroop v Minister for Immigration and Border Protection [2016] FCAFC 48; 241 FCR 261; 124 ALD 68, at [57]:
Notwithstanding these features, as the Minister submitted, the terms of Direction No. 55 do not purport to direct a decision maker as to the outcome of the s 501(2) residual discretion in relation to any given individual, or categories of individuals. Further, by the use of qualifying words such as “generally” (for example, in cl 8(4) that primary considerations “should generally be given greater weight than the other considerations”), the weighing process in each case is in substance left, as it must be, to the individual decision maker exercising the power under s 501.
More recently, it has been held by the Full Court of the Federal Court in Minister for Home Affairs v HSKJ [2018] FCAFC 217 (at [35]) that the Tribunal would err if it concluded that an ‘other consideration’ in the Direction was incapable of outweighing a primary consideration. This would seem to me to be consistent with the Minister’s explicit use of the word ‘generally’ in paragraph 8(4). This view is not at odds with the Minister being reasonably able, in the Direction, to indicate what weight a decision-maker should give to different considerations. In doing so, the Minister is indicating which considerations should generally weigh more, in an assessment about a non-citizen’s conduct, not being directive that primary considerations must.
In this particular case, Mr Read’s offending, while too frequent, has been generally at the lower end of the spectrum. His two assault convictions are however serious and are completely unsatisfactory. His drug-taking has been a major driver in his criminal conduct, but, on the whole, it has done more damage to him than it has to others. Mr Read’s drink driving offences are also serious, including one incident where he crashed and caused himself injuries; however, it could just as easily have been another road user.
In conducting the weighing exercise, the Tribunal places significant weight on two factors. The first factor is that, even though he is a relatively young man, Mr Read has contributed positively to the Australian community in an essential and responsible trade for almost all of his adult life, until that career was undermined by drugs and then he was taken into custody. The second factor is the considered professional evidence, based on her clinical assessment of Mr Read, from Ms Ardren (who has significant experience in treating persons with drug and alcohol addiction) that, provided the Applicant submits to residential rehabilitation including regular urinalysis and, after the completion of the programme, ongoing monitoring, there are good prospects that he will remain clean from drugs and be able to resume his previous career and rebuild his life. There are positive signs, including his resistance from the temptation of taking drugs in detention, but that resolve has yet to be tested in the open community.
The Tribunal takes note that the Applicant’s family are close. They all gave evidence and stand ready to help him. I am satisfied (as I note was the Respondent) that it is Mr Read’s intention to rehabilitate. However, what unfolds in his future is in Mr Read’s hands. New Zealand citizens in this country may be granted a special category of visa, which gives them freedom to enter and remain in Australia. But it is explicitly a temporary visa and subject to revocation by the Minister or his delegate at any time.
The Tribunal’s conclusion in this review is that the discretion available in the Act is enlivened, and the Tribunal finds, while the two primary considerations weigh against revoking the mandatory cancellation of the visa, I am satisfied in this case that there is another reason why the mandatory cancellation of Mr Read’s visa should be revoked.
However, I hope that on Mr Read reading this decision, he will starkly understand that if he reoffends against the laws of Australia, his permission to stay in this country is likely to be re-examined, and the outcome and consequences of such a re-examination may be anticipated.
Decision
The Tribunal decides to set aside the decision made by a delegate of the Minister on 1 April 2019 refusing to revoke the cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa, under section 501CA(4) of the Act. The Tribunal substitutes a decision that the mandatory cancellation of the visa be revoked.
List of Exhibits Tendered at Hearing
A1 Statement of the Applicant, dated 20 May 2019
A2 Statement of Mr Shahang Sharanizadeh, dated 20 May 2019
A3 Statement of Mr Samuel Read, dated 17 May 2019
A4Statement of Mr Murray Read, dated 19 May 2019 and amendment dated 28 May 2019
A5 Statement of Mrs Janette Read, dated 17 May 2019
A6 Statement of Ms Emma van den Bok, dated 12 May 2019
A7Report dated 29 May 2019 of Ms Juliet Ardren, social worker and drug and alcohol specialist, together with her curriculum vitae
R1 Volume of ‘G’ documents lodged by the Respondent on 23 April 2019
R2Tender bundle of documents summonsed from NSW Department of Corrective Services, lodged by the Respondent on 31 May 2019
I certify that the preceding 105 (one hundred and five) paragraphs are a true copy of the reasons for the decision herein of Senior Member D.J. Morris
...........................[sgd].............................
Associate
Dated: 25 June 2019
Dates of hearing: 6 and 7 June 2019 Solicitor for the Applicant: Mr N Dobbie, Visa Immigration Specialists Australia Pty Ltd
Counsel for the Respondent: Mr A Markus, Australian Government Solicitor
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