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

[2020] AATA 4255

RGKY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4255 (26 October 2020)

Division:GENERAL DIVISION

File Number(s):      2020/4703

Re:RGKY

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:26 October 2020

Place:Sydney

The decision refusing to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa is affirmed.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – mandatory visa cancellation – subclass 444 special category visa – citizen of New Zealand – failure to pass character test – substantial criminal record – domestic violence offences – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 501, 501CA

Crimes (Sentencing Procedure Act) 1999 (NSW)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Direction No 79 – Visa Refusal and Cancellation under s.501 and Revocation of a Mandatory Cancellation of a Visa under s.501CA

REASONS FOR DECISION

Mr Rob Reitano, Member

26 October 2020

INTRODUCTION

1. On 20 September 2019, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was required to cancel RGKY’s Class TY Subclass 444 Special Category (Temporary) visa, which was issued to him on 16 February 2012. This was because RGKY had failed the character test under s.501(3A) of the Migration Act 1958 (Cth) (Act) as he had been sentenced to a term of 12 months imprisonment following his conviction on 15 November 2017 for the offence of assault occasioning actual bodily harm.

2. On 23 September 2019 RGKY, following the Minister’s invitation to do so, made representations to the Minister in accordance with s.501CA(4)(a) of the Act about why the Minister should revoke the decision to cancel the visa.

3. On 30 July 2020, a delegate of the Minister, after having considered the matters raised in the representations was not persuaded that there was ‘another reason’ to revoke the original decision to cancel the visa.

4. On 5 August 2020, RGKY filed an application for review with the Tribunal by which he sought to have the decision cancelling the visa revoked because he submitted that there was ‘another reason’ why the cancellation decision should be revoked.

5. I have decided to affirm the Minister’s decision. I set out the reasons for my decision.

   ISSUE

6. RGKY, as I have already noted, made representations to the Minister seeking revocation of the decision to cancel his visa which is the prerequisite to the exercise of the power to revoke that decision.[1] There are only two bases on which the decision cancelling his visa may be revoked: the first is if the Minister is satisfied that he passes the character test (as defined by s.501), and the second is if the Minister is satisfied that there is ‘another reason’ to revoke the original decision cancelling the visa.[2] As the matter is now before the Tribunal I stand in the Minister’s shoes in making the relevant decision.

   [1] ss.501CA(4)(a).

   [2] ss. 501CA(4)(b).

7. In RGKY’s case the only basis on which the visa could be restored is if RGKY can satisfy me that there is ‘another reason’ to revoke the mandatory cancellation. This is because he cannot pass the character test because he has been sentenced to imprisonment for more than 12 months which means he has a ‘substantial criminal record’ which the Act dictates means that he fails the character test.[3]

   [3] ss.5016(a)&7(c).

8. Whether there is ‘another reason’ to revoke the mandatory cancellation of RGKY’s visa relies upon an evaluative judgment because of the requirement that the Minister, and in this review the Tribunal, be ‘satisfied’ about the existence of ‘another reason’. The function I am to perform is assisted by consideration of ‘Direction No 79 – Visa Refusal and Cancellation under s.501 and Revocation of a Mandatory Cancellation of a Visa under s.501CA’ (Direction) which I will address later in these reasons.

   FACTS

9. In August 1998 when he was only five months old RGKY arrived in Australia. He is a citizen of New Zealand although, unsurprisingly, always thought he was an Australian citizen. His mother was a citizen of New Zealand but is now, it would seem, a citizen of Australia. His father was a citizen of New Zealand, but RGKY is unsure what citizenship his father currently holds. He has three younger brothers aged 19, 16 and 13 and a younger sister aged 14. I do not know their citizenship status, but they have been permanently in Australia for some time if not all their lives. Another of his younger sisters died in August 2012 when RGKY was 14 years of age. RGKY was close to her. He has a step-grandfather and grandmother, 11 aunts and uncles, four nieces and nephews and 36 cousins. All of his relatives to his knowledge live in Australia.

10. It is fair to say that RGKY had a deprived childhood. His grandmother Ms JW described his parents as regularly drinking alcohol, presumably to excess, and beating him. Ms NG, who knew RGKY when he was a child growing up with his mother, confirmed that his mother drank quite a lot and was abusive towards him. As a result, RGKY was placed in foster care from when he was seven years of age until he turned 18.

11. RGKY worked during 2015 and 2016 in the construction industry and in 2017 and 2018 as a demolition tradesperson. I do not know the exact periods of time over which he worked. Some of his employment appears to have been full time. He had a white card which permitted him to work on construction sites.

12. Sometime during 2017 or 2018 RGKY and Ms MQ became partners. In May 2019 Ms MQ gave birth to her and RGKY’s son. As will become apparent since sometime in July 2019 when RGKY has been incarcerated or in detention, but before restrictions were imposed in March 2020 because of the pandemic, he says his son visited him weekly, sometimes twice a week, and since then RGKY has spoken to him on the phone every day. He says his son falls asleep with the phone next to him every night.

13. RGKY has a history of criminal offending which commenced when he was about 16 years of age and involves the commission of about 40 offences over something like six years. It was not entirely clear in the evidence but his criminal offending more likely than not appears to have commenced at a time when his alcohol, cannabis and methamphetamine use commenced. This is an all too common feature associated with juvenile offending of the kind in evidence in this case.

14. Much of RGKY’s early offending appears to be drug related involving the oft found mix of possession and supply of prohibited drugs and stealing offences, such as shoplifting, goods in custody, obtaining property by deception and so on, all of which may have had as their objective the securing of resources to fund his habit. RGKY used cannabis and methamphetamine up until when he commenced his most recent period of incarceration in July 2019. RGKY agreed with the characterization of him as until and at that time a habitual user of methamphetamine.

15. There are three juvenile offences of particular note being one offence of common assault, one offence of assault occasioning actual bodily harm and one of using an offensive weapon with intent to commit an indictable offence. These offences involved threatening another young person, a young girl, with a knife, striking her with his hand, cutting her leg with scissors and pulling her hair. RGKY received sentences of two years’ probation, a three month control order and a 12 month control order respectively for these offences. They are offences of significance in the light of RGKY’s later offences against his partner and mother.

16. For the 20 or so offences he committed over the period December 2013 to September 2017 RGKY accumulated a series of bonds, control orders, periods of probation and fines.

17. On 15 November 2017 RGKY was convicted of offences of stalk/intimidate with intent to cause fear of physical or mental harm, assault occasioning actual bodily harm, two counts of common assault and one of destroying or damaging property. For the first two offences he was sentenced to 12 months imprisonment, while for the counts of common assault he was sentenced to three months imprisonment for each. For the property damage offence, he was placed on a bond to be of good behaviour for two years. The sentencing Magistrate found special circumstances which meant that RGKY received a non-parole period of only 4 months.

18. Much of the circumstances of these offences are largely unknown because, it would seem, the documents relevant to their commission have not been able to be found. From the sentencing remarks of the Magistrate it is, however, obvious that the personal offences were committed against RGKY’s then partner Ms MQ who was then 17 years of age and that the offences occurred on 19 June 2017. That they involved violence against Ms MQ is evident from the nature of the offences themselves – stalk/intimidate with intent to cause physical or mental harm, assault occasioning actual bodily harm and common assault. The sentencing Magistrate described RGKY’s conduct towards Ms MQ which obviously gave rise to the offence as ‘reprehensible’. Otherwise not much is known about the circumstances of these offences.

19. I am not prepared to rely on the police records that set out the detail of the complaint made to the police as being reflective of the circumstances of the offences for which RGKY was convicted and imprisoned. I do not know on what facts the matter proceeded before the Court. But it is to be remembered that the convictions and sentences for the offences of stalk/intimidate with intent to cause fear of physical or mental harm and of assault occasioning actual bodily harm were the basis for the Minister’s mandatory cancellation of the visa. I will return to this later.

20. On 22 November 2018, it would appear only a matter of months after his parole period for his earlier offences ended, RGKY was convicted of an offence of dishonestly obtaining property by deception. He was given a 12 month community correction order for that offence.

21. On 9 May 2019 RGKY was convicted of a series of offences that were all committed on 31 August 2018. Those offences were the offences of common assault, affray, resist arrest, contravene a condition of an apprehended violence order (domestic) and fail to appear in accordance with a bail acknowledgment.

22. The circumstances of the offending involving violence appear to be, at least so far as it is recorded in the NSW Police Facts Sheet tendered to the Court, as follows. Police observed RGKY yelling at Ms MQ whilst pressing her up against an advertising board at a bus stop. Whilst holding her against the board with his left hand he was then observed ‘throwing approximately six – 10 uppercut style punches with a closed fist directly into the victim’s lower stomach’. Ms MQ was seen by the police officers to have winced in pain. The police officers then apparently attempted to arrest RGKY who swore at them and was wrestled to the ground whilst resisting their attempts to arrest him. Ms MQ came to RGKY’s assistance in trying to help him resist the attempt to arrest him. After some time, RGKY was handcuffed and taken to Manly police station. At the time of this offence an apprehended violence order was in place which order was made almost 12 months before. The order amongst other things proscribed RGKY from assaulting Ms MQ.

23. I have been a little careful to note that the circumstances of the offending ‘appear’ to be those to which I have referred, as the transcript from the Local Court of the sentencing is sparse in its detail about the facts upon which RGKY was sentenced. RGKY pleaded guilty to the offence of resisting arrest (thus explaining why the Facts Sheet may have been before the Court) but otherwise, so it would seem, pleaded not guilty to the other offences which were subject to a defended hearing. This is at least a little unclear because of the evidence before me to which I will refer in a moment. There is no record of the defended hearing in the material in evidence before me.

24. In his evidence before me RGKY denied, at least initially, that he had pleaded guilty to the offence which involved him punching Ms MQ in the stomach. This appears to be consistent with the observations of the Magistrate in sentencing which refers to a finding of guilt after a hearing. RGKY suggested what actually happened involved him trying to get Ms MQ to return his phone. He said in his evidence that Ms MQ was eight months pregnant at the time of the offence or was ‘pregnant and gave birth a couple of months after that’. That, of course, could not have been correct because the child was born in May the following year. RGKY also said in his evidence that he pleaded guilty to facts in the Local Court that involved him throwing eight to 10 uppercut style punches to Ms MQ’s stomach in August 2018. RGKY also claimed that he did not receive a fair trial because relevant witnesses were not called. He said because he thought he was not receiving a fair trial ‘So, I just pleaded guilty to it and I said, chuck me in gaol’. That does not seem to be a plausible or reasonable explanation for admitting to punching someone in the stomach in the way that was alleged, but it puts in doubt the claim that he had pleaded not guilty. The one thing that is clear from RGKY’s evidence is that what was alleged against him in the charges and therefore what was subject to the finding of guilt involved him throwing uppercut style punches to Ms MQ’s stomach. The inconsistencies about Ms MQ’s pregnancy and whether he pleaded guilty or not make it difficult to rely on RGKY’s evidence about what happened.

25. Ms MQ in her evidence before me denied that RGKY had punched her with a number of uppercut style punches to the stomach. Her evidence was that ‘never happened’, and she referred to the medical assessment made of her after the incident as support for that with no evidence, according to her, of any injuries being sustained by her. I do not accept her evidence about the punches in particular because that was what was, according to RGKY, what was alleged and the subject of a guilty verdict. I also found that Ms MQ’s evidence was likely to have been affected by her desire to paint things better for RGKY so that her main focus of her son having a relationship with his father could be advanced.

26. The evidence about the circumstances attending these offences and the findings made in the Local Court is a little unsatisfactory. It is clear that RGKY was found guilty, convicted and sentenced on the basis of the offences I have referred to. It is also reasonably clear that at least one thing that was alleged and found against him either because he admitted it, or the Court found so much, involved him punching Ms MQ. The evidence of RGKY and Ms MQ is not capable of disturbing the strong prima facie position provided by RGKY’s conviction and sentence in the Local Court.[4] I find that one circumstance of this offending involved the punching of Ms MQ in the stomach.

    [4] Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385 at [41] – [44].

27. A pre-sentence report was prepared in relation to these offences. The pre-sentence report recorded that RGKY sought to justify and excuse his offending even though he was said to understand that unless he changed, he would have to face the consequences. The pre-sentence report also recorded that RGKY ‘failed to genuinely demonstrate an understanding of the impact of his actions on the victim and the other family members’. Most significantly the report contains the most recent assessment of RGKY’s likelihood of re-offending which was undertaken in accordance with the Level of Service Inventory - Revised and assessed his likelihood of re-offending as ‘T2/Medium/High risk of re-offending’.

28. The Magistrate made several observations when sentencing RGKY that are relevant here. First, her Honour observed that RGKY’s grandfather, Mr W, believed that he required ‘mandated counselling, anger management, drug and alcohol cessation and support and, most importantly, meaningful employment to provide for your young family’. The Magistrate agreed with those views and warned RGKY about the seriousness of the offences. Her Honour continued saying that ‘I accept that your girlfriend loves you and doesn’t want to see you in gaol but she is also about to be a mother and she will want that child and herself to be safe and protected, do you understand?’. RGKY agreed he did understand. The observations of the Magistrate support the conclusion that the offences were serious.

29. For all of these offences except the one related to breach of the bail condition, for which he received only a conviction by way of penalty, he was placed on a 12 month intensive correction order. The Magistrate explained to RGKY that what he was receiving by way of penalty was not a good behaviour bond and that if he breached the order he would go before the Parole Board and they would decide what was to happen. On 13 August 2019 that order was revoked by the New South Wales Parole Board and replaced with a term of imprisonment to be served in custody, rather than in the community, of just over 9 months.

30. On 10 October 2019 RGKY was convicted of a further six offences, four of which related to conduct on 9 and 10 July 2019 when he stole some goods from a motor vehicle. The other two offences were committed on 22 July 2019 and were stalk/intimidate with intent to cause fear of physical or mental harm in relation to his mother and maliciously damaging property valued at under $2000. It is likely, although not clearly explained in the material, that the commission of these offences gave rise to the revocation of the earlier intensive correction order because the revocation of the order is otherwise unexplained in the material. RGKY confirmed in his evidence that he last went into custody sometime in July 2019 when he was bail refused because of these offences having been committed at a time when he was on an intensive correction order.

31. The circumstances of the offence involving RGKY’s mother are important. They involved RGKY contacting his mother with a view to having RGKY collect their child. RGKY said the words ‘I’m going to fucking kill you, you wait till I get there coming down there to kill you all’. RGKY went with Ms MQ to his mother’s home who was there with his child and her other four children. Another witness was also there. RGKY said words like ‘Go inside and get my fucking baby’. His entry to the house was blocked by the screen door being closed. Ms MQ went to the back of the house. RGKY continued to threaten his mother with the words ‘Give me my fucking baby, I’m going to come in there and fucking kill you, call DOCS on me. What the fuck are you going to do’.

32. RGKY tells something of a different version of events to those which he pleaded guilty, attributing what happened that day to the fact that his son nearly fell from a pram when his mother grabbed at the pram which caused him to yell at his mother because he was scared for his son. He said, nonetheless, in his evidence that he knew he had ‘stuffed up big time’. Again, in my view the evidence given by RGKY does not displace the strong prima facie evidence provided by the conviction and sentence or satisfy the heavy onus that they present. I have formed this view because I considered RGKY to be an unreliable historian, that he was simply trying to minimise the seriousness of the circumstances of the offending and because of his recognition that he ‘stuffed up’.

1. RGKY was sentenced to two months imprisonment for the offence against his mother, one month imprisonment for one of the earlier offences of obtaining property by deception, placed on a 12 month community correction order for three of the other offences and convicted with no penalty for the offence of breaking into the motor vehicle.

2. RGKY put much of his offending down to being taken away from his parents at an early age and his troubled upbringing in foster care. He said having a child has changed him. He said the fact that he has not been able to use drugs while in custody and detention means that he is drug free and that he intends to remain drug free upon his release from detention. He said that he had learnt his lesson from being incarcerated which has taught him how much he misses his family and his son. He referred to the courses he did after his first period of incarceration as being something that would assist him in not taking up methamphetamine abuse again. He says he has full time work available to him with his cousin upon his release. That evidence about his prospective employment when released was corroborated. I accept it.

3. A number of witnesses called to give evidence on behalf of RGKY expressed the view that RGKY had ‘changed’ and that the birth of his son had brought that about. They expressed the opinion that RGKY would be a different person if released from detention and permitted to stay in Australia. Much of this evidence displayed the kind of support that RGKY would have in the local community if he were permitted to remain in Australia.

4. Mr WW and his wife Ms JW who are RGKY’s grandparents gave evidence about their respective opinions about RGKY’s likelihood of re-offending especially having regard to the arrival of his son. Mr JW frankly conceded that his evidence might be biased by reason of his affection for RGKY. Mr WW gave evidence about the views of RGKY’s brothers and sisters who he said were missing him and are distressed at the thought of their brother being removed from Australia.

5. I will refer to some of the other facts below as is necessary.

   IS THERE ANOTHER REASON FOR REVOCATION?

6. I am required, to comply with the Direction in considering whether ‘there is another reason why the original decision should be revoked’. The Direction is ‘to guide decision-makers performing functions or exercising powers under section 501 of the Act…to revoke a mandatory cancellation under section 501CA of the Act’.[5] Its object is to provide ‘a framework within which decision-makers should approach their task of deciding whether…to revoke a mandatory cancellation under section 501CA’. The Direction identifies the ‘relevant factors that must be considered in… making a revocation decision’.[6]

   [5] Cl.6.1(4).

   [6] Cl.6.2(3).

   The principles

7. The principles ‘inform’ a decision-maker about the matters that must be considered in determining whether the mandatory cancellation of a visa will be revoked.[7] Without reproducing the principles it is instructive to refer to them in turn. The principles are one of the cornerstones of the decision-making process about whether there is another reason to revoke a decision cancelling a visa.

   [7] Cl.7(1).

8. The first principle records the sovereign right of Australia to determine whether non-citizens of ‘character concern’ are allowed to ‘remain in Australia’.[8] It says that being in Australia is a privilege that is conferred in the expectation that non-citizens are ‘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’. The principle is about the fact that it is Australia who decides who can be in Australia and that Australia permits people to be here on the express basis that they will abide with Australian law.

   [8] Cl.6.3(1).

9. The second principle refers to the expectation of the Australian community 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’.[9] This principle is reiterated later in the factors that must be considered, but it is the ‘expectation’ of the Australian community that is relevant. The expectation referred to in the principle is normatively established and reflects one of the factors to be considered to which I will later refer.

   [9] Cl.6.3(2).

10. The third principle refers to ‘a non-citizen who has committed a serious crime 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… forfeit the privilege of staying in, Australia’.[10] This operates on the premise of a ‘general’ expectation or rule, the corollary is that in some specific circumstances it may not apply.

    [10] Cl. 6.3(3).

11. The fourth principle opens with the words ‘[i]n some circumstances’, indicating that there will be specific cases that attract its attention.[11] The ‘some circumstances’ are those where ‘criminal offending or other conduct… may be so serious, that any risk of similar conduct in the future is unacceptable’ and it is ‘[i]n these circumstances’ that ‘even other strong countervailing considerations may be insufficient to justify not cancelling… the visa’. This principle leaves open two possibilities relevant to not cancelling a visa. The first is where criminal offending or other conduct is not so serious that ‘strong countervailing considerations’, or even countervailing considerations alone, might justify not cancelling a visa. The second is where ‘strong countervailing considerations’ may be, in any event, sufficient to justify not cancelling a visa.

    [11] Cl.6.3(4)

12. The fifth principle is that: ‘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’.[12] So far as this principle is concerned, sight should not be lost of the fact that living in the Australian community for most of their life, or from a very young age, is not at all qualified by the words ‘participating in, and contributing to’ as applies in the case with those who have only been in Australia for a short time. Although it is not expressed to be the case, these are likely to be amongst the ‘countervailing considerations’ that are relevant to the fourth principle. It is also important to note that living in Australia for ‘most of their life’ or ‘from a very young age’ is not something that is to be regarded as an automatic exception to the general position of ‘low tolerance’; the word ‘may’ suggests that the issue is an open one presumably dependant on other principles, the relevant factors that must be considered and, naturally enough, the circumstances of the particular case.

    [12] Cl.6.3(5)

13. The sixth principle refers to Australia’s ‘low tolerance of any criminal or other serious conduct’ such that those who hold a limited stay visa can have no expectation that they may remain here permanently.[13] This principle heads off at the pass the suggestion that expectations generated over time are not at all relevant given that there can be no such expectation arising from a limited stay visa.

    [13] Cl.6.3(6).

14. The seventh principle, like the fifth, states that the ‘length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa…cancellation for minor children and family members’ are considerations.[14] The use of the conjunction ‘and’ suggests that positive contribution is not relevant to the issue of consequences for minor children and family members so that, so far as consequences for minor children and family members are considered, time is immaterial. Again, these are likely to be among the countervailing considerations referred to in other principles.

    [14] Cl.6.3(7).

    The primary and other considerations

15. The Direction requires that the principles inform the decision-maker’s consideration of the matters referred to in Part C.[15] Part C contains ‘primary considerations’ and ‘other considerations’. Both classes of considerations may weigh in favour of or against revocation of the mandatory cancellation of a visa;[16] rationally, some of them in particular cases, might be entirely neutral or even irrelevant.

    [15] Cl.7(1)(b).

    [16] Cl.8(3).

16. Primary considerations should ‘generally be given greater weight than the other considerations’.[17] Again, the use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is ‘whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply’.[18] That raises a question about what ‘the circumstances that generally apply’ might be. That issue as to when special consideration should be given to a factor or other factors is reasonably left to the good sense of the decision-maker in weighing the relevant matters.

    [17] Cl.8(4).

    [18] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

17. The ‘primary considerations’ are the protection of the Australian community from criminal or other serious conduct,[19] the best interests of minor children in Australia,[20] and the expectations of the Australian community.[21] The ‘other considerations’ include, noting that the class of other considerations is not closed, international non-refoulment obligations,[22] the strength, nature and duration of ties to Australia,[23] the impact upon Australia business interests,[24] the impact on victims,[25] and the extent of impediments if a non-citizen is removed from Australia.[26] I note that international non-refoulement obligations, impact on victims and the impact upon Australian business interests (although the Minister had something to say about this last consideration it seems to have no relevance having regard to the facts advanced by RGKY) are not relevant considerations in this case.

    [19] Cl.13.1.

    [20] Cl.13.2.

    [21] Cl.13.3.

    [22] Cl.14.1.

    [23] Cl.14.2.

    [24] Cl.14.3.

    [25] Cl.14.4.

    [26] Cl.14.5.

18. In applying the Direction, it must be kept steadfastly in mind that the obligation is to give active consideration to the circumstances reflected in the evidence. Sight should not be lost of the fact that the rigorous evaluation of the circumstances of a particular case, after all, have an objective: the identification of whether there is another reason to revoke the original decision cancelling a visa. The factors to be considered are not to be robotically applied by simply working through a predetermined list of matters but are to be engaged in a manner that involves genuine consideration and intellectual engagement in the process of achieving, or not, the requisite satisfaction.

19. It is nonetheless useful to deal with each consideration informed by the principles. It is convenient to record, consider and deal with each of the primary and other considerations in turn, dealing with the particular facts relevant to each of them as they are considered.

    Protection of the Australian community

20. I must give consideration 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’; that ‘[r]emaining in Australia is a privilege that Australia confers on non-citizens’ in the expectation that they will obey the law, will respect Australia’s institutions and will not cause or threaten harm to individuals in the community.[27] Specifically, I must consider the nature and seriousness of the conduct and the risk to the Australian community should further offences or other serious conduct be committed.[28]

    [27] Cl.13.1(1).

    [28] Cl.13.1(2).

21. The principles and matters that I must consider as relevant to this case are: ‘without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously’ (cl.13.1.1(1)(a)); ‘crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’ (cl.13.1.1(1)(b)); ‘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’ (cl.13.1.1(1)(c)); ‘the sentence imposed by the Court for a crime or crimes’ (cl.13.1.1(1)(d)); ‘the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness’ (cl.13.1.1(1)(e)) and ‘the cumulative effect of repeated offending’ (cl.13.1.1(1)(f)). I have considered the other matters listed in this part of the Direction and they do not appear relevant in this case.

22. RGKY’s offending so far as it involved violence against Ms MQ on two separate occasions within about 14 months, and against his mother about a year after his second offence against Ms MQ, is objectively serious. In each case it involved violence against a person and, additionally, violence against women. Not much is known about the circumstances of the first series of offences committed against Ms MQ, but the nature of the offences for which he was convicted, stalk/intimidate with intent to cause fear of physical or mental harm, assault occasioning actual bodily harm, destroying or damaging property and two convictions for common assault, together with the sentence of 12 months imprisonment for the first two offences, speaks of objectively serious offending. In general, custodial sentences speak of serious offending. This is especially so given that the maximum sentence for each of the first two offences is five years imprisonment.

23. So far as the 2018 offending is concerned, punching a woman to her stomach is self-evidently serious, but again I stress that even on the face of the offences for which RGKY was convicted and sentenced these offences were objectively serious given the nature of the offences, the maximum penalty they carried and sentence imposed. The principles to which I referred earlier indicate that generally offences involving violence against women are to be treated seriously such that a person committing such crimes should expect to forfeit their right to remain in Australia.

24. The penalty imposed for the first assault occasioning actual bodily harm and stalk/intimidate with intent to cause fear of mental or physical harm against Ms MQ, being 12 months’ imprisonment, reflects, as I have said, that they were in fact treated as very serious. This is because they involve both a period of incarceration and a long period at that. It is true that RGKY was given the benefit of a 12 month intensive correction order for his later offences of common assault and breaching the condition in the apprehended violence order against Ms MQ. However, it should be remembered that an intensive correction order is made on the premise that the Court has sentenced the person to a term of imprisonment but directed that the sentence be served in the community at least while the conditions attaching to the order are satisfied.[29] It too constitutes a fairly serious form of punishment within the criminal justice system. The fact that RGKY contravened the conditions of the order and was required to serve a little over nine months in prison reflects the nature of the order in a practical way.

    [29] s.7 Crimes (Sentencing Procedure Act) 1999 (NSW).

25. Likewise, RGKY’s conviction and sentence for resisting a police officer in the execution of his duty is objectively serious because it was committed against a public official executing his duty. It too attracted the imposition of a 12 month intensive correction order as part of the aggregate sentence imposed.

26. The property related offences are not as serious as those involving violence against people, but two things are important about their seriousness. First, the offences have occurred fairly regularly over a period of something like six years. Second, those offences have attracted more and more serious criminal sanctions with the offences in 2019 attracting 12 month intensive correction and community correction orders as the penalty. This perhaps reflects that the earlier penalties do not appear to have had much of a deterrent effect. The cumulative effect of this kind of offending over a period of years makes what otherwise might not be viewed as serious offending all the more serious.

27. I do not give as much weight to the earlier offending involving the assault of another young person when RGKY was a juvenile, largely because it was juvenile offending and because it appears to have attracted a fairly lenient sentence reflective of the principles that apply to youthful offending. Those offences are more relevant so far as they were foreboding of what came later. RGKY’s other juvenile offending is not quite as serious as his offences against Ms MQ and his mother, but nonetheless they evidence a propensity to offend that in practice carried on into RGKY’s adult life.

28. I have already referred to the periodicity associated with the offences against Ms MQ and RGKY’s mother, occurring as they did at roughly yearly intervals. There is no pattern of escalating seriousness that accompanies the offending: it all appears to be very serious. The trend, if there is any, is from offending involving drugs/property towards offending involving violence to people.

29. In general, his offending conduct demonstrates a continuing disregard for the law which is also evident from the breaches of the community correction orders, bail conditions and intensive correction orders that RGKY has received the benefit of during his period of involvement in the criminal justice system.

30. I find, consistent with the position put by both RGKY and the Minister in addressing the Tribunal, that RGKY’s record of criminal offending is very serious.

31. Next, I must consider the risk to the Australian community should further offences or other serious conduct be committed. I am required to have regard to, ‘cumulatively’, ‘the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’ [30] and ‘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’.[31]

    [30] cl.13.1.2(a).

    [31] cl.13.1.2(b).

32. First, the nature of the harm should the offences be repeated is likely to be at least as serious as the harm caused by the offending to date. Having regard to the nature of the charges, the offending conduct in 2017 involved physical violence against Ms MQ that inflicted actual bodily harm, but I do not know what her injuries were. It also involved psychological violence, but again I know little about it. The 2018 offending conduct involved punching her to the stomach and given that she was likely one month pregnant things probably could have turned out much worse. The offending conduct in 2019 involved a threat to kill someone. The harm caused by such threats is difficult to measure especially when there is no evidence about the actual nature of the harm caused. Of course, all these offences cause harm directly to the victim but also to those close to them. There are also the social costs, direct and indirect, associated with such offending. The harm associated with the offending should it be repeated is in general terms likely to be significant.

33. So far as the property related offences are concerned there is obviously a personal cost to those who have had their property stolen. There is the social cost associated with law enforcement and the like. The harm of one individual instance of such an offence is probably not great but over time its cost to the community mounts. The ongoing harm associated with such offending may ultimately prove considerable.

1. Second, it is difficult to assess the likelihood of RGKY re-offending. The most telling evidence in that regard is the pre-sentence report that was prepared in May 2019. Apart from assessing RGKY as a medium to high risk of re-offending that pre-sentence report recorded that RGKY ‘appeared to justify and excuse his behaviour’. That was much the same as he did in his evidence before me where he attributed his wrongdoing to his upbringing and the death of his sister. His lack of acceptance of responsibility for his offending is a significant factor in assessing the likelihood of him re-offending. The report also recorded that RGKY recognised that if his behaviour did not change, he would have to face the consequences. Ominously that is at least in part what this matter concerns.

2. The larger difficulty, of course, is that RGKY even after that report did not change and offended once more by the threats directed towards his mother that led to his most recent period in custody. Before leaving that pre-sentence report it is significant that the report recorded that RGKY failed to ‘genuinely demonstrate an understanding of the impact of his actions on the victim and the other family member’.

3. In his evidence RGKY’s denials of his wrongdoing concerning punching Ms MQ and his culpability in the offence involving his mother demonstrate a lack of any genuine remorse for his wrongdoing. That lack of remorse was, in similar vein to that which is recorded in the pre-sentence report, accompanied by a lack of any genuine understanding about his wrongdoing and a genuine acceptance of responsibility.

4. I accept that RGKY says that it his intention not to re-offend once in the community. I also accept that it is his intention to try to remain ‘drug free’ once released. And I accept that the fact of his young son is some motivation to keep him away from offending as is the fact of the deterrent effect of being imprisoned and placed in detention once more. I accept that he has an intention to participate in rehabilitation courses.

5. The difficulty with relying on any of his stated intentions singularly or together as indicating some lower likelihood of re-offending than what was assessed in the pre-sentence report, is that only about six weeks after his son was born he was re-offending both in terms of property offences and an offence of personal violence against his mother. By then he had already had the experience of about four months in prison because of his offences in August 2018. He had also been warned by the Magistrate that things were serious. He was alerted to the fact that his continued re-offending would have consequences. He was afforded the opportunity to participate in a rehabilitation programme during the course of the intensive correction order. The only matter that is not known, because it simply cannot be tested, is his ability to remain drug free if he were released into the community, but again he had the opportunity to go down that road on 9 May 2019 when he received the 12 month intensive correction order. And he did not take it. It is for these reasons that I am unable to place any significant reliance on what RGKY says about what he intends to do in the future.

6. Some reliance was placed on the fact that if released into the community RGKY would have the support of a strong network of friends and family led no doubt by his grandfather and grandmother. I do not doubt the motivations of those people, but the simple fact remains that that network did not assist much in the past.

7. In like fashion it was suggested that RGKY knowing that he would be deported if he offended again would be a significant deterrent to him re-offending. Although superficially attractive there does not seem to be much going for that in the light of the fact that criminal sanctions involving the last resort of incarceration have not done much by way of deterrence, especially when RGKY was placed on notice when he was sentenced to an intensive correction order that further offending would in fact involve serving the remainder of his sentence in prison.

8. Having regard to RGKY’s long record of offending, the nature of his offences, and the opinion expressed in the pre-sentence report in May 2019 I find that there is a real likelihood of RGKY re-offending again in the future. Considered with the nature and seriousness of RGKY’s offence record I consider that the protection of the Australian community weighs heavily against revocation of the mandatory cancellation.

   Best interests of minor children in Australia affected by the decision

9. Next, I am required to consider the best interests of children who may be affected by the decision to either revoke or not revoke the cancellation of RGKY’s visa. Clause 13.2(2) requires that I only consider minor children, that is children under the age of 18 years, when I make my decision. Clause 13.2(3) requires that, where there are two or more minor children, I consider the interests of any such children individually to the extent that their interests may differ.

10. It is important to keep in mind that this consideration is not concerned with RGKY’s interests at all. Rather, it is directed towards the interests of minor children, and in fact as the consideration states, their best interests.

11. In considering the best interests of minor children I am directed to consider a number of specific factors. Those which are relevant here are: ‘the nature and duration of the relationship between the child and the non-citizen’ noting ‘that less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact’ (cl.13.2(4)(a)); ‘the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18…’ (cl.13.2(4)(b)); ‘the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child’ (cl.13.2(4)(c)); ‘the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways’ (cl.13.2(4)(d)); ‘whether there are other persons who already fulfil a parental role in relation to the child’ (cl.13.2(4)(e)); and ‘any known views of the child (with those views being given due weight in accordance with the age and maturity of the child’) (cl.13.2(4)(f)). I have reproduced these factors so that the observations I make below can be understood in context.

12. The minor children who were referred to in the evidence are RGKY’s own child who is about 17 months old, his two younger brothers aged 16 and 13 and his younger sister aged 14 and his nieces and nephews. There was not a great deal of evidence about any of the minor children other than RGKY’s own child.

13. RGKY had about six or seven weeks’ interaction with his son after he was born and before RGKY commenced his most recent period of imprisonment which was followed by him being placed in detention. There has been a relatively short period of day in day out meaningful contact with his son.

14. Before March this year, when restrictions were imposed due to the pandemic, he was visited by his son, about once a week and sometimes twice a week. During those visits he played with his son and attended to the types of things fathers often do with babies such as changing nappies, feeding and comforting the baby and so on. He has since then spoken to him every day on telephone or by using a social media platform such as FaceTime. Although this contact is meaningful it would be wrong to overstate it especially when measured against what might be considered to be the more optimal or ideal relationship between father and son involving as it does daily contact and daily physical involvement in the child’s life.

15. I accept the statements of RGKY, his grandfather and grandmother, Ms MQ and others, about RGKY’s devotion to his son both in the past and in all likelihood into the future. I accept his and their desire that RGKY be part of his son’s life as he grows up. All of those things can only be something that would be positive in a child’s upbringing and therefore in the best interests of the child.

16. Those things need to be measured very carefully given RGKY’s criminal history and, in particular, the fact that that history involves offending against his son’s mother and his own mother when his son was present and in her care. I am unable to find that RGKY would, on balance, be likely to play a positive parental role in his son’s life in the future given those matters and my assessment concerning the likelihood of him re-offending. Moreover, should the kinds of offending in the past be repeated in the future I consider that will invariably have a negative impact on RGKY’s son because of its likely psychological impact upon the child. It is to be remembered that RGKY’s most recent offending against his mother was in the presence of his child. These are matters that cause me to moderate the weight that I give to this consideration.

17. As is likely to be the case, separation from his father should RGKY return to New Zealand will necessarily have something of a negative impact on RGKY’s son. I am unable to make any assessment at all as to the magnitude of that impact because of the dearth of information that was presented. So much is self-evident, but contact will be able to be maintained in other ways such as by phone and by resort to social media platforms as has been done since March this year so that the effect upon him will be mitigated. RGKY’s son is obviously too young to express his preference about RGKY remaining in Australia. His son has his mother who is able to fulfil a parental role.

18. So far as RGKY’s younger brothers and sister are concerned, I accept they would be quite upset about RGKY being required to return to New Zealand even though they did not give direct evidence about that. I do not know a great deal about their present relationship with RGKY or even their relationship in his adult years. The relationship is not parental. It can be given that in their youth the children were close by reason of their plight in foster care and the fact that RGKY assumed something of a paternal role in their upbringing. That obviously did not continue in recent years because of his incarceration and detention. Again, his potential future role in their upbringing needs to be approached cautiously because of his offence record and his likelihood of re-offending. That is another reason why I have given consideration of their best interests less weight. Like with his own child he will be able to maintain contact with them by phone and social media in the event of non-revocation. RGKY’s relationship with them is not parental so that I should give less weight to this consideration in their cases because that is what the Direction requires.

19. I am unable to give any meaningful consideration to the best interests of RGKY’s nieces and nephews as I know so little about their situations. There was no direct evidence about their family situation or the detail of the nature of their relationship with RGKY both now and in the past. Nonetheless I think it is reasonable to give some weight to their position because of the relationship they have had with RGKY.

20. In my view, the best interests of RGKY’s child weighs moderately in favour of revocation. The best interests of RGKY’s minor brothers and sister weigh slightly in favour of revocation. The best interests of his minor nieces and nephews also weigh slightly in favour of revocation.

    Expectations of the Australian community

21. The third primary consideration is in cl.13.3 which says that ‘[t]he Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust, or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect’.

22. This primary consideration imputes to the Australian community the expectation that those who have permission to remain in Australia will obey Australian laws. I am not required to consider what the Australian community expects because that is normatively expressed in the consideration itself. Rather, the relevant inquiry is whether ‘it is appropriate to give more or less weight to a deemed community expectation of’ non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences’.[32]

    [32] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

23. In determining the weight to be accorded to this consideration it is helpful to return to the some of the principles I considered earlier.

24. The fourth principle records that some offending may be so serious that any risk of similar conduct is unacceptable. That principle would suggest greater weight should be given to this consideration if it were in play. I do not think that that is the case here because the offending simply does not fall into the category of being that serious that any risk is unacceptable.

25. The fifth principle refers to the fact that having ‘lived in the Australian community for most of their life, or from a very young age’ as being factors that mean the Australian community may extend more tolerance to a non-citizen. That principle is clearly relevant here. Mr RGKY has been here all of his life except for its first five months. Simply put, he has been here for a very long time. The Australian community would be more tolerant of his circumstances for those reasons. The weight to be accorded to this consideration is moderated by reason of his early arrival and long time in Australia.

26. The seventh principle which is relevant to the consideration of visa cancellation refers to the length of time a person has been making positive contributions to the Australian community, and the consequences of non-revocation for minor children and other immediate family members. I do not think in light of RGKY’s offence record and his limited time in paid employment in Australia it is possible to say that he has been making a significant positive contribution to the community. His sporting achievements are something of a positive contribution. The consequences for his child and his brothers and sister and immediate family are significant if only in an emotional sense. This factor too operates to moderate the weight to be accorded to this consideration.

27. In all of the circumstances the Australian community would expect that RGKY should not have the mandatory cancellation of his visa revoked. The fact of his long criminal record and the seriousness of his offending would ordinarily weigh heavily against revocation. That weight is reduced, as I have said, because of RGKY’s long time from his early childhood in Australia and because of the consequences of non-revocation for his minor children and his immediate family.

28. I will accord this primary consideration moderate weight in my consideration of the matter.

    Strength, nature and duration of ties

29. The Direction requires that attention be paid to the strength, nature and duration of ties to Australia.[33] I am required to address the issue of how long RGKY has resided in Australia, by giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia[34] and ‘more weight’ where ‘time has [been] spent contributing positively to the Australian community’.[35] Second, I must consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.[36]

    [33] Cl.14.2.

    [34] Cl.14.2(1)(a)(i).

    [35] Cl.14.2(1)(a)(ii).

    [36] Cl.14.2(1)(b).

30. RGKY’s offending commenced when he was sixteen years of age. It cannot be said his offending started soon after he arrived in Australia. Apart from his limited sporting achievements he does not appear to have made much of a positive contribution to the Australian community through paid employment or otherwise. The first part of this consideration seems fairly neutral so far as the weight I should accord it is concerned.

31. There was evidence about RGKY’s considerable ties to the community by reference to his former partner Ms MQ, his child, his brothers and sister, his grandfather and grandmother, his four nieces and nephews and 36 cousins more generally, and the number of his friends who gave evidence. There was no direct evidence about the migration status of many of those with whom RGKY has ties, but I am prepared to infer that all are Australian citizens or permanent residents or people who have an indefinite right to be in Australia. The ties RGKY has are familial and social in nature. Many of those ties, especially those with his son and his grandparents, are obviously strong.

32. In my view this consideration is one that weighs moderately in favour of revocation of the mandatory cancellation of RGKY’s visa, principally because whilst the ties he has are numerous and in some cases strong he has made a limited contribution to the Australian community and has been offending over a period of years.

    The extent of impediments if removed

33. Clause 14.5 requires me to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard for themselves in the country to which they are returning. I am required to consider age, health, language and cultural barriers and any social, medical and/or economic support that may be available.

34. RGKY is 22 years of age. There was no evidence that he is suffering from any diagnosed medical condition. There was a faint suggestion that he suffered from mental illness, but there was no reliable evidence to support that claim. Even the faint suggestion seemed to be disavowed when queried. RGKY appeared to be fit and healthy. He is fluent in English and engaging. He has transferable skills and experience in aspects of the construction industry.

35. New Zealand is a country with much in common with Australia. It has an advanced social welfare, medical, legal, and economic system. RGKY will have as much opportunity in New Zealand as he would in Australia to rehabilitate himself in relation his substance abuse issues. That may be more difficult without his family and friends to support him, but he is likely to be able to engage services to assist him should he wish to do so. Because he will not have the support of his family to assist him in that pursuit, I have given this consideration more weight than I would otherwise have given it.

36. There is no doubt that adjusting to life in New Zealand will present difficulties to RGKY. I do not consider that there are any significant impediments to him establishing and maintaining a basic standard of living in New Zealand. I accept that he does not have any significant family ties or network of friends in New Zealand and that this will create some difficulty for him in adjusting to life in New Zealand. These are all matters that are, as the Minister submitted, unlikely to be long term in duration. I do not consider that there is any material difference between New Zealand and Australia so far as the COVID-19 pandemic is concerned, such that it at all weighs in the equation.

37. This factor weighs moderately in favour of revocation of the mandatory cancellation of the visa.

    Other ‘other considerations’

38. I have considered Australia’s international non-refoulment obligations, the impact on Australian business interests, and other matters and do not consider that any of them are relevant to my assessment of whether there is another reason to revoke the mandatory cancellation of RGKY’s visa.

1. I will give some weight to the impact of not revoking the decision to cancel the visa on Ms MQ even though this was not relied on at all by RGKY. The Minster conceded it was open to me to accord weight to this consideration given Ms MQ’s desire to have her son brought up with RGKY in his life. In that sense the decision not to revoke the cancellation will have an impact upon her although as I have said RGKY will be able to be in his son’s life to the extent that telephones and social media permit. In that light I accord this consideration some weight, albeit slight.

   CONCLUSION

2. I have found that the protection of the Australian community weighs heavily against revocation of the mandatory cancellation and that the expectations of the Australian community weigh moderately against revocation. Those two considerations loom very large in the consideration I have given to this matter.

3. The best interests of RGKY’s child weigh moderately in favour of revocation of the visa, while the best interests of his minor siblings and nieces and nephews weigh slightly in favour of revocation. RGKY’s ties in Australia weigh moderately in favour of revocation as do the impediments to him re-establishing himself in New Zealand. I have given the impact on Ms MQ of a decision not to revoke the mandatory cancellation slight weight given her desire that her son be brought up with RGKY in his life.

4. The weight I have given to the protection of the Australian community and the expectations of the Australian community, which are primary considerations, is significant. Those two considerations weigh much more heavily than the primary consideration concerning the best interests of minor children. The weight attached to the ties RGKY has to Australia and the impediments confronting him upon return to New Zealand do not outweigh the overall weight I have given to the primary considerations. I see no reason to depart from the general position that the Direction refers to requiring that primary considerations are generally to be given greater weight than other considerations.

5. I am unable to find that there is another reason why the mandatory cancellation of RGKY’s visa should be revoked.

6. I affirm the decision refusing to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) Visa.

I certify that the preceding 109 (one hundred and nine) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 26 October 2020

Dates of hearing:	1 & 2 October 2020
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr L Dennis, Minter Ellison