RGYW and Minister for Home Affairs (Migration) - [2018] AATA 2076

RGYW and Minister for Home Affairs (Migration) [2018] AATA 2076 (3 July 2018)
Division: GENERAL DIVISION
File Number(s): 2018/2066
Re:RGYW
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Member K Parker
Date:3 July 2018
Place:Melbourne

The Tribunal affirms the decision made on 6 April 2018 under s 501CA(4) of the Migration Act 1958 by a delegate of the Minister for Home Affairs to refuse to revoke the mandatory cancellation of RGYW’s Class TY Subclass 444 Special Category (Temporary) visa.
.........................[sgd]...............................................
Member K Parker
MIGRATION – application for revocation of mandatory cancellation of visa – applicant held special category visa under s 32 of Migration Act 1958 (Cth) – whether applicant also held absorbed person visa under s 34 of the Act – effect of s 501F of the Act – whether applicant passes character test – whether another reason to revoke decision to cancel visa – extensive history of criminal offending resulting in imprisonment – offences predominately property crimes and did not involve violence – repetition of criminal offending – whether applicant’s offences and conduct were serious – consideration of mitigating circumstances – applicant suffered from multiple mental health conditions and heroin addiction – applicant was homeless in Australia for significant periods – applicant suffered abuse as a child – where Australian community would expect non-revocation – applicant has been a long-term resident in Australia since the age of five – applicant’s current de facto partner is an Australian citizen and lives in Australia – de facto partner committed to providing a stable home for the applicant – other family members resident in Australia – applicant received three formal written warnings that his visa may be cancelled – unacceptable risk of applicant reoffending – applicant may find it difficult to establish a new life in New Zealand – whether applicant likely to suffer harm that would trigger international non-refoulement obligations - decision affirmed
PRACTICE AND PROCEDURE – requirements of s 500(6J) of the Migration Act 1958 – further documentary submission made by self-represented applicant after hearing concluded – meaning of “holds a hearing” – whether to re-open case to receive further submission
Legislation
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth) ss 32, 34, 200, 201, 499, 500, 501, 501CA, 501F, 501G
Cases
Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1
Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61
Mabo v Queensland (No 2) (1992) 175 CLR 1
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441
Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273
Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom (2006) 228 CLR 566
Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234
Nystrom v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 143 FCR 420
Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007
Randhawa v Minister for Immigration, Local Government & Ethnic Affairs (1994) 52 FCR 437
Re Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693
Re Glusheshi v Minister for Immigration and Multicultural Affairs [2000] AATA 717 (unreported, McMahon DP, 18 August 2000)
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
Secondary Materials
Department of Home Affairs, Procedures Advice Manual – PAM3
Direction No. 65 – Migration Act 1958 – Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, 22 December 2014
Migration Legislation Amendment Bill 1994 (Cth), Senate Explanatory Memorandum
Migration Legislation Amendment (Strengthening of Provisions relating to Character and Conduct) Bill 1998 (Cth), Senate, Explanatory Memorandum
Returning Offenders (Management and Information) Act 2015 (New Zealand)
United Nations Human Rights Office of the High Commissioner, International Covenant on Civil and Political Rights, entry in force 23 March 1976
United Nations Human Rights Office of the High Commissioner, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, entry in force 26 June 1987
REASONS FOR DECISION
Member K Parker
3 July 2018
INTRODUCTION

RGYW was born in Tokoroa in New Zealand in 1975.[1] At the age of five, RGYW left New Zealand and arrived in Australia with his family. RGYW’s father arrived first, followed by RGYW, his mother and two sisters (Sister 1 and Sister 2).
[1] Confidentiality orders were made in this application to use a pseudonym, i.e. “RGYW”, in place of the name of the Applicant as these Reasons for Decision refer to offences committed by RGYW when he was minor.
Since the 1920s arrangements have existed between the Australian and New Zealand Governments to facilitate a free flow of people between the two countries. Since 1 September 1994, all non-citizens in Australia were required to hold a visa due to legislative change which altered the migration system in Australia from an entry permit-based system to an entirely visa-based system. This meant that New Zealand citizens who were in Australia on 1 September 1994 automatically became special category visa holders on that date under s 32 of the Migration Act 1958 (Act). This was reflected in the Department of Home Affairs’ records showing that on 1 September 1994, RGYW was granted a Class TY Subclass 444 Special Category (Temporary) visa.[2]
[2] The Minister lodged a set of documents with the Tribunal on 9 May 2018 pursuant to the Minister’s obligation under s 501G(2) of the Act (G-Documents). Refer G-Documents G2/34. The visa was temporary in that it would cease if the visa holder left Australia and was conditional upon the visa holder remaining a New Zealand citizen
On 20 June 2017, RGYW’s special category visa was mandatorily cancelled under s 501(3A) of the Act on account of him having a substantial criminal record. RGYW was convicted for approximately 60 offences, 30 of which he was sentenced to terms of imprisonment, including at least one which was longer than 12 months. RGYW is presently serving a term of imprisonment in a prison facility based in Victoria for two offences of burglary and theft that were committed in April 2016.
RGYW requested that the cancellation of RGYW’s visa be revoked. On 6 April 2018, a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the cancellation. The delegate was not satisfied that RGYW passed the character test or that there was another reason why the cancellation should be revoked.
RGYW submitted that he also held an absorbed person visa under s 34 of the Act and that he should be permitted to remain in Australia under that alternative visa. The Minister’s legal representative at the hearing said she was instructed that RGYW was not recorded on the Department’s records as holding an absorbed person visa under s 34 of the Act. The Minister’s position was that even if RGYW was found to hold an absorbed person visa, nothing would turn on it, as that visa would be taken as cancelled by operation of s 501F of the Act as a consequence of the cancellation of RGYW’s special category visa on 20 June 2017.
RGYW lodged an application for review by this Tribunal of the delegate’s decision not to revoke the visa cancellation. The hearing commenced on 18 June 2018. RGYW was self-represented. RGYW and the legal representative for the Minister both lodged documentary evidence and extensive written submissions prior to the hearing on this day. RGYW gave oral evidence. The Tribunal notes the extensive written submissions prepared by RGYW’s former legal representatives on 12 January 2018.[3] Police records from Queensland, New South Wales and Victoria were produced to the Tribunal under summons.
[3] Refer G-Documents G2/109-120.
Sister 1 made a written statement and gave evidence at the hearing on 18 June 2018 by telephone. Sister 1 lives in Brisbane. Sister 1’s adult children (RGYW’s niece and nephew) both provided written statements in support of RGYW’s application. They did not appear as witnesses. Sister 1’s husband did not provide a witness statement or appear as a witness.
RGYW’s current de facto partner (Partner) made a written statement and also attended the hearing in person on 18 June 2018 to appear as a witness in support of RGYW’s application. The Partner presently lives, and is employed on a full-time basis, in Melbourne.
No evidence was provided by Sister 2. RGYW said he was not presently in contact with Sister 2 and that Sister 2 has had a “falling out” with Sister 1. RGYW’s mother and father are no longer alive. RGYW does not have any children or step-children. RGYW also has an Uncle and Aunt who lives in Brisbane. They were not called to give evidence. RGYW said he had not been in touch with them for several years. RGYW explained the challenges in trying to keep in touch with his family members and friends while he was in prison due to the restrictions in place.
The hearing concluded on 18 June 2018.
On 22 June 2018, RGYW lodged a document with the Tribunal containing further detailed submissions (some of which had been made before) and new assertions of fact, some arising from questions asked of RGYW by the Tribunal at the hearing about certain allegations about him, as reported in the summonsed police documents. RGYW said he was not aware of those allegations before he read the summonsed documents and was taken by surprise by them. On 25 June 2018, the Minister, by its legal representative, contended that the Tribunal should not have regard to that further material on account of the requirements of s 500(6J) of the Act.
Following a consideration of the approach of the High Court of Australia as to the application of s 500(6J) of the Act, and its interpretation of the phrase “holds a hearing”, in Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203, in particular, the observations by Nettle J in paragraph [115] and by French CJ and Kiefel, Bell and Keane JJ in paragraph [70], the Tribunal decided to re-open the hearing process. A resumed hearing was listed on 27 June 2018, providing the Minister with two clear business days to consider RGYW’s further submission. At the resumed hearing, the Minister’s representative said she agreed that the Tribunal could accept the further documentary submissions lodged by RGYW in light of the resumed hearing. The Minister’s representative responded to RGYW’s submissions at the resumed hearing.
No medical or other expert witnesses were called to give evidence in this matter. The Minister conceded that RGYW suffered from the various mental health conditions as asserted by him, including:
(a)general and social anxiety;
(b)severe depression;
(c)borderline personality disorder;
(d)avoidant personality disorder; and
(e)post-traumatic stress disorder.
The Tribunal was greatly impressed by the evidence given by RGYW and found him to be a candid and honest witness. The Tribunal acknowledges that RGYW has had a most unfortunate life history and has faced a great many challenges and threats to his personal safety since a young teen into adulthood. Those experiences were clearly very damaging and made it difficult for RGYW to make a go of things in life.
However, having considered all of the evidence tendered and submissions made by both parties to this review and the factors set out in Direction no.65, the Tribunal is not satisfied that RGYW passes the character test under s 501(6) of the Act, nor does the Tribunal consider there to be another reason why RGYW’s visa cancellation should be revoked. For the reasons I have outlined below, the Tribunal affirms the decision of the Minister not to revoke the cancellation of RGYW’s special category visa.
The Tribunal also finds that RGYW held an absorbed person visa under s 34 of the Act since 1 September 1994, simultaneously with the special category visa automatically granted to him under s 32 of the Act. However, s 501F of the Act operates to cancel both visas and the Tribunal accepts the Minister’s contention that it would make no difference to the outcome of this application if RGYW held an absorbed person visa on the date of cancellation, as well as the special category visa.
RELEVANT LAW
Migration Act 1958
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record. Relevantly, s 501(7)(c) provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more. If these pre-conditions are met, the Minister is under an obligation pursuant to s 501(3A) to cancel the person’s visa and does not have a discretion to decide not to consider exercising this power.[4]
[4] Refer paragraph [72] in Falzon v Minister for Immigration and Border Protection (2018) 351 ALR 61.
Section 501CA provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(5) If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Section 501F of the Act provides as follows:
(1)This section applies if the Minister makes a decision under section 501, 501A, 501B or 501BA to refuse to grant a visa to a person or to cancel a visa that has been granted to a person.
…
(3) If:
(a) the person holds another visa; and
(b) that other visa is neither a protection visa nor a visa specified in the regulations for the purposes of this subsection;
the Minister is taken to have decided to cancel that other visa.
(4) …
(5)A decision that the Minister is taken to have made under subsection (2) or (3) is not reviewable under Part 5 or 7.
A person affected by a decision not to revoke a mandatory visa cancellation may file an application for review with the Administrative Appeals Tribunal under s 500(1)(ba) of the Act.
Section 499(1) of the Act empowers the Minister to give written directions to a person or body having functions or powers under the Act concerning the performance of those functions or the exercise of those powers. Section 499(2A) of the Act provides that a person or body having those functions or powers under the Act must comply with such directions.
On 22 December 2014, the Minister issued directions under s 499(1), entitled “Direction no. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction no.65).
Section 36 of the Act sets out when protection obligations will arise. Relevantly:
(2)A criterion for a protection visa is that the applicant for the visa is:
(a)    a non-citizen in Australia in respect of whom the Minister is satisfied Australia has protection obligations because the person is a refugee; or
(aa)    a non-citizen in Australia (other than a non-citizen mentioned in paragraph (a)) in respect of whom the Minister is satisfied Australia has protection obligations because the Minister has substantial grounds for believing that, as a necessary and foreseeable consequence of the non-citizen being removed from Australia to a receiving country, there is a real risk that the non-citizen will suffer significant harm; or
…
(2A) A non-citizen will suffer significant harm if:
(a)   the non-citizen will be arbitrarily deprived of his or her life; or
(b)   the death penalty will be carried out on the non-citizen; or
(c)   the non-citizen will be subjected to torture; or
(d)   the non-citizen will be subjected to cruel or inhuman treatment or punishment; or
(e)   the non-citizen will be subjected to degrading treatment or punishment.
(2B) However, there is taken not to be a real risk that a non-citizen will suffer significant harm in a country if the Minister is satisfied that:
…
(c) the real risk is one faced by the population of the country generally and is not faced by the non-citizen personally.
Direction no.65
Part 6 of Direction no.65 provides a preamble to the directions. Paragraph 6.1(1) of Direction no.65 states that the objective of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. General guidance is provided in paragraph 6.2 of the Direction no.65. Relevantly, paragraph 6.2 provides:
(1) The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding…whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered…in making a revocation decision are identified in Part C of this Direction.
A set of overarching principles are established in paragraph 6.3 of Direction no.65 as follows (as relevant):
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(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.

Paragraph 8 of Direction no.65 requires the Tribunal to take into account the primary and other considerations set out in Part C, as relevant to each individual case. Specifically, paragraph 8 provides:
(a)paragraph 8(2) requires the Tribunal to give appropriate weight to information and evidence from independent and authoritative sources when applying the primary and other considerations.
(b)paragraph 8(3) provides that the primary considerations should generally be given greater weight than the other considerations.
(c)paragraph 8(4) provides that one or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
There are two primary issues to be determined by the Tribunal, namely:
(d)whether RGYW passes the character test as defined by section 501(6) of the Act; and
(e)whether there is another reason why the mandatory cancellation of RGYW’s visa should be revoked.
RGYW’S HISTORY OF OFFENDING
The reason this application is before the Tribunal for consideration is the extensive history of criminal offending by RGYW spanning a 25-year period. The most recent offence was a major burglary and theft which was committed in an office block in the Melbourne central business district in April 2016.
RGYW’s criminal record is set out below.[5] The convictions that resulted in prison sentences are highlighted in bold print:
[5] Based on RGYZ’s National Police Certificate – refer G-Documents G2/26 to 33.

COURT	COURT DATE	OFFENCE	COURT SENTENCE
Melbourne County Court	15 Feb 2017	Burglary	18 months imprisonment. To pay aggregate $36,425.00 compensation.
Melbourne County Court	15 Feb 2017	Theft	18 months imprisonment. 12 months of sentence concurrent. Total 2 years. To pay aggregate $36,425.00 compensation.
Central Local Court	6 Nov 2013	Goods suspected stolen in/on premises (not m/v)	Imprisonment: 1 month commencing 04/07/2013 concluding 03/08/2013 (eeco xx)[6]
		Break & enter house etc steal value <= $60,000-t1	Imprisonment: 6 months commencing 04/07/2013 concluding 03/01/2014
		Goods in personal custody suspected being stolen (not m/)	Imprisonment: 1 month commencing 04/07/2013 concluding 03/08/2013
		Break & entre house etc steal value <= $60,000-t1	Imprisonment: 8 months commencing 04/07/2013 concluding 03/032014
		Break & enter house etc steal value $60,000-t1	Imprisonment: 10 months commencing 04/07/2013 concluding 03/05/2014
		Break & enter house etc steal value <= $60,000-t1	Imprisonment: 16 months commencing 04/07/2013 concluding 03/11/2014 non parole period with conditions : 10 months commencing 04/07/2013 concluding 03/05/2014 release subject tosupv
		Break & enter house etc steal value <= $60,000-t1	Imprisonment : 16 months commencing 04/07/2013 concluding 03/11/2014 non parole period with conditions : 10 months commencing 04/07/2013 concluded 03/05/2014 release subject tosupv
		Break & enter house etc steal value <= $60,000-t1	Imprisonment : 16 months commencing 04/07/2013 concluding 03/11/2014 non parole period with conditions : 10 months commencing 04/07/2013 concluding 03/05/2014 release subject tosupv
		Break & enter house etc steal value <= $60,000-t1	Imprisonment : 16 months commencing 04/07/2013 concluding 03/11/2014 non parole period with conditions : 10 months commencing 04/07/2013 concluding 03/05/2014 release subject tosupv
		Break & enter house etc steal value <= $60,000-t1	Imprisonment: 9 months commencing 04/07/2013 concluding 03/04/2014
		Break & enter house etc steal value <= $60,000-t1	Imprisonment: 9 months commencing 04/07/2013 concluding 03/04/2014
Sydney District Court	01 Jun 2011	Break & enter house etc steal value <= $15,000-t1	Conviction confirmed: release subject to supv (agd/jl x230611) (cor xx) court case reference number 2010/xx
		Break & enter house etc steal value <= $60,000-t1	Conviction confirmed : sentence to commence 031210 release subject to supv (agd/jl 230611) (cor xx) court case reference number xx
		In dwelling steal & break out value <- $15000-t1	Conviction confirmed: sentence to commence 031210 release subject to supv (agd/jl 230611) (cor xx) court case reference number 2010/xx
Central Local Court	01 Apr 2011	Break & enter house etc steal value <= $60,000-t1	Imprisonment: 24 months commencing 03/06/2011 concluding 02/06/2013 non parole period: 12 months commencing 03/06/2011 concluding 02/06/2012 severity appeal lodged
		In dwelling steal & break out value <= 15000-t1	Imprisonment: 18 months commencing 03/06/2011 concluding 02/12/2012 non parole period: 6 months commencing 03/06/2011 concluding 02/09/2011 concluding 02/09/2011 severity appeal lodged
		Goods suspected stolen in/on premises (not m/v)	Bond s9: 3 years supv nsw prob service
		Break & enter house etc steal value <= $15000-t1	Imprisonment: 12 months commencing 03/12/2010 concluding 02/12/2011 non parole period: 6 months commencing 03/12/2010 concluding 02/06/2011 severity appeal lodged
Central Local Court	28 Jul 2009	Break and enter building (steal) value <= $15000-t1	Imprisonment: 24 months commencing 17/10/2008 non parole period with conditions: 12 months release subject to supv
Waverley Local Court	25 Mar 2009	Break and enter building (steal) value <= $15000-t1	Imprisonment: 2 years commencing 17/10/2008 non parole period with conditions: 12 months release subject to supv
		Escape police custody-t1	Imprisonment: 3 months commencing 17/10/2008 (eeco xx)
		Break and enter building (steal) value <= $15000-t1	Imprisonment: 2 years commencing 17/10/2008 non parole period with conditions: 12 months release subject tosupv
Burwood Local Court	27 Sep 2007	Break and enter building (steal) value <= $15000-t1	s10a conviction with no other penalty
Burwood Local Court	27 Sep 2007	Break and enter building (steal) value <= $15000-t1	s10a conviction with no other penalty
Central Local Court	07 Sep 2006	Break and enter With Intent (steal) –t1	Imprisonment: 12 months commencing 08/09/2005
		Break and enter With Intent (steal) –t1	Imprisonment: 12 months commencing 08/09/2005
		Break and enter With Intent (steal) –t1	Imprisonment: 12 months commencing 08/09/2005
Central Local Court	30 Jan 2006	Break and enter With Intent (steal) $15000–t1	Imprisonment: 2 years commencing 19/10/2004
Sydney District Court	02 Sep 2005	Enter building/land With Intent commit indictable offence-t1	Imprisonment: 4 months 13 days commencing 060604 concluding 181004 (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15,000-t1	Indicted for: imprisonment : 2 years & 6 months non parole period : 1 years & 6 months commencing 190405 concluding 181006 (District Court xx) court case reference number xx
		Break and enter With Intent (steal)-t1	Taken into account on form 1: this file (District Court xx) court reference number xx
		Break and enter With Intent (steal)-t1	Taken into account on form 1 : this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1 : this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1 : this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Imprisonment: 1 years & 6 months non parole period : 1 year commencing 19/10/2005 concluding 18/10/2006 (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Imprisonment: 1 years & 6 months non parole period : 1 year commencing 19102005 concluding 180407 non parole period : 1 year concluding 18/10/2006 (matters taken into account on form 1) (District Court xx) court case reference number xx
		Break and enter With intent (steal)-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Break and enter With intent (steal)-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Agg b&e & commit serious indictable offence-use violence-si	Taken into account on form 1: this file (District Court xx) court case reference number xx
		Larceny value <= $2000-t2	Imprisonment : 9 months commencing 19/01/2006 concluding 18/10/2006 (District Court xx)court case reference number xx
		Shoplifting value <= $2000-t2	Taken into account on form 1 : this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Taken into account on form 1 : this file (District Court xx) court case reference number xx
		Break and enter building (steal) value <= $15000-t1	Imprisonment : 4 years commencing 19/10/2004 concluding 18/10/2008 non parole period : 2 years commencing 19/10/2004 concluding 18/10/2006 (matter taken into account on form 1) (District Court xx) court case reference number xx
		Destroy or damage property <=$2000-t2	For indicted offences see xx (District Court xx) court case reference number xx
Central Local Court	18 Jan 2005	Goods in personal custody suspected being stolen (not m/v)	Imprisonment: 6 months commencing 19/07/2004
Sydney District Court	19 May 2004	Enter building/land With Intent commit indictable offence-t1	Conviction confirmed : in lieu imprisonment : 5 months commencing 02/04/2004 suspended on enter bond s12 : 5 months commencing 02/04/2004 concluding 01/10/2004
		Goods in personal custody suspected being stolen (not m/v)	Conviction confirmed : in lieu imprisonment : 1 month 17 days to commence 020404 to conclude 190504 (District Court xx) court case reference number xx
		Possess housebreaking implements-t2	Conviction confirmed : (District Court xx) court case reference number xx
		Break and enter building (steal value <= $15000-t1	Conviction confirmed : in lieu imprisonment : 12 months commencing 02/04/2004 non parole period with conditions : 9 months commencing 02/04/2004 supv nsw prob service obey all directions to reside at [address withheld] advise registrar of change of address (dc xx) court case reference number xx
Downing Centre Local Court	02 Apr 2004	Enter building/land With Intent commit indictable offence-t1	Imprisonment : 6 months commencing 02/04/2004 severity appeal without stay lodged :
		Goods in personal custody suspected being stolen (not m/v)	Imprisonment : 2 months commencing 02/04/2004 severity appeal without stay lodged :
		Possess housebreaking implements –t2	Imprisonment : 1 month commencing 02/04/2004 severity appeal without stay lodged :
		Break and enter building (steal) value <= $15,000-t1	Imprisonment : 12 months commencing 02/04/2004 non parole period : 9 months severity appeal lodged : (dc 394193)
Hornsby Local Court	27 Mar 2002	Drive/rider state false name or address	Fine : $250 costs – court : $58
Hornsby Local Court	27 Mar 2002	Unlicensed for class, class c/r/ir/mr-1^st offence	Fine : $250 costs – court : $58
Downing Centre Local Court	11 Jan 2000	Behave in offensive manner in/near public place/school	Fine : $200 costs – court : $54 (Local Court 27603)
Ballina Local Court	11 Dec 1997	Unlawful entry	Fine : $200 costs – court $60
Brisbane Magistrates Court	12 Jul 1995	Stealing (25/06/95) as [RGYW]	Convicted & fined $750
Brisbane Magistrates Court	12 Jul 1995	Stealing (25/06/95) as [RGYW]	Convicted & fined $750
Brisbane District Court	10 Feb 1995	Breach probation order imposed on 18.2.94 as [RGYW]	Breach proven no action taken in respect of breach resentenced for original office(s) on each charge: imprisonment 4 mths concurrent recommended for parole on and from 13.5.95 conviction recorded
Brisbane District Court	10 Feb 1995	Breach probation order imposed on 18.2.94 as [RGYW]	Breach proven no action taken in respect of breach resentenced for original office(s) on each charge: imprisonment 4 mths concurrent recommended for parole on and from 13.5.95 conviction recorded
Southport Magistrates Court	13 Dec 1994	Breach Bail Granted conditions (31/10/94) possn dangerous drug State false name (dma as [RGYW] Breach Bail Granted conditions (31/10/94) possn dangerous drug State false name (dma as [RGYW]	Convicted & sentenced 1 month imprisonment fined $500 in default imprisonment 16 dys fined $200 in default imprisonment 6 days Convicted & sentenced 1 month imprisonment fined $500 in default imprisonment 16 dys fined $200 in default imprisonment 6 days
Brisbane District Court	18 Feb 1994	Break, enter & steal (on 7.10.93) Break & enter dwelling house with intent in the night-time (on 7.10.93) as [RGYW]	On each charge: no conviction recorded probation 3 years pursuant to section 93(1) of the penalties and sentences act
Brisbane District Court	18 Feb 1994	Break, enter & steal (on 7.10.93) Break & enter dwelling house with intent in the night-time (on 7.10.93) as [RGYW]	On each charge: no conviction recorded probation 3 years pursuant to section 93(1) of the penalties and sentences act
Brisbane District Court	25 Sept 1992	Break, enter & steal (25 chgs on & btn 3/1/90 & 23/3/91 – premises, theatre, shop, offices store) Break & enter place with intent (4chgs btn 26/11/90 & 20/3/91 – premises, showroom, office) Unlaw use motor vehicle (on/abt 4/12/90) as [RGYW]	On each charge: director exercise care and control for 2 yrs. No conviction recorded.
Brisbane District Court	25 Sept 1992	Steal with actual violence (5/11/91) as [RGYW]	Convicted care & control 2 Years
Holland Park Childrens Court	20 Mar 1991	Break & enter place with intent (on 19.3.91) as [name withheld]	Probation 1 yr

[6] All case reference numbers and other identifiers in this record have been replaced with the reference “xx” to conceal the identity of the Applicant.

It is well established that in assessing this application, the Tribunal is not permitted to impugn the convictions – see Minister for Immigration and Multicultural Affairs v “SRT” (1999) 91 FCR 234,[7] Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 247 (Daniele); Minister for Immigration and Ethnic Affairs v Gungor (1982) FLR 441.
[7] Refer paragraph [25].
In this application, the Tribunal will adopt the approach as outlined in the joint judgment of Fisher and Lockhart JJ in Daniele:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination and the extent of that enquiry will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial Judge and jury must determine.
RGYW’S SUBMISSIONS AND EVIDENCE
The Tribunal has considered the contentions made and evidence tendered by RGYW, including RGYW’s written statement dated 12 January 2018 and the assertions of fact made by him in the 13-page final submissions lodged with the Tribunal on 22 June 2018.[8] RGYW prepared and lodged a 50-page submission with the Tribunal on 13 June 2018. RGYW’s submissions were well-structured, comprehensive and articulate.
[8] Refer G-Documents G2/121-130.
RGYW contended that ss 200 and 201 of the Act imposed a 10-year limit on criminal deportations under the Act and that long-term residents were excluded from being deported. He said that s 501 of the Act was never meant for the deportation of long-term residents and not intended to be used to undermine, circumvent or repeal the limits in s 201. RGYW relied, in part, upon comments made during an inquiry into the administration and operation of the Act undertaken by the Senate Legal and Constitutional References Committee in 2005. RGYW contended that s 118 made no reference to either ss 200 or 201, that is, “it does not allow for s 501 to limitlessly affect” those provisions because Parliament intended for residents to be “absorbed” after 10 years and not be liable for deportation. He said “to banish a member of our society who has spent their formative years in Australia and who immigrated before the criminal age of responsibility”, was to “export our problems elsewhere”. He said that the Australian community should take responsibility for the behavior of those produced by this community.[9]
[9] Reliance was placed on the case authorities of Minister for Immigration and Multicultural and Indigenous Affairs v Nystrom [2006] 228 CLR 566; Nystrom (Full Court) (2005) 143 FCR 420; and Re Glusheshi v Minister for Immigration and Multicultural Affairs [2000] AATA 717 (unreported, McMahon DP, 18 August 2000).
RGYW contended that the reason for the introduction of the character test was chiefly to deal with the regulation of entry of non-citizens. He said that Parliament wanted to be able to deny visas to those who had applied, but who were of concern or to cancel the visas of those “who had just received them”. He said that five European states (Austria, Belgium, Portugal, Hungary and Sweden) had provisions in place prohibiting the deportation of non-citizens who had arrived during childhood.
RGYW contended that the Australian community could understand the difference between a person who arrived in Australia one year and committed crimes the next and a person who arrived in and grew up in Australia and who committed offences many years after arrival.
RGYW drew a comparison between himself and Mr Anaki in Re Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693 in which the Tribunal was prepared to revoke the visa cancellation. RGYW contended that the Australian community “would appreciate the difference in outcomes” for those suffering from social disadvantage such as homelessness, mental health and addiction. The Tribunal notes the similarities; however, it must consider RGYW’s application on his individual circumstances and base its decision on those circumstances measured against the considerations set out in Direction no.65.
RGYW contended that where a statute is ambiguous, it should be given a construction consistent with Australia’s international law obligations. He said that those interpreting the statute should assume that the legislature did not intend to repeal fundamental rights and liberties of a person, in the absence of clear words of statutory intent.[10] In that context, RGYW contended that Article 12(4) of the International Covenant on Civil and Political Rights (ICCPR) provided that “no one shall be arbitrarily deprived of the right to enter his own country”, which is a protection implying a right, he contended, not to be deported. He referred to Nystrom v Australia, UN Doc CCPR/C/102/D/1557/2007 in which the 10:5 majority of the United Nations Humans Rights Committee expressed views expanding the scope of Article 12(4), namely, that it applied to non-citizens where they had sufficient ties to a country.
[10] Reliance was placed on the case authorities of Chu Kheng Lim v Minister for Immigration (1992) 176 CLR 1; Minister for Immigration and Ethnic Affairs v Teoh (1994) 183 CLR 273 and Mabo v Queensland (No 2)(1992) 175 CLR 1.

RGYW also asserted that his rights to protection under Article 17 “from arbitrary interference with his family life” and under Article 23(1) “from arbitrary interference with his home” and claimed these rights would be violated if he was deported. RGYW said that having spent 37 years residing in Australia, including his formative years; having done all of his schooling in Australia; and having been employed in Australia for many years, meant that “for all intents and purposes he is Australian” and “knows of no other culture”.
RGYW referred the Tribunal to Articles 6 and 7 of The Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) which established a right “not to be subjected to cruel, inhuman or degrading treatment or punishment”. RGYW contended that depriving someone of their home, family and social network could certainly be argued as a being cruel, inhuman or degrading treatment and for him, that being deported would certainly constitute cruel and degrading treatment. RGYW said that:
It would also be both a breach of my dignity and severely diminish my mental integrity. I have a number of mental health issues and if I were to be deported then I know that the immense stress and trauma this would place on me would be catastrophic…
I cannot even contemplate being forced to live in a country that I do not know or have any current ties to. For all intents and purposes I am an Australian. I can vote. I did all my schooling here. To think I would be forced to have all that taken from me is unthinkable and would certainly be cruel and demeaning…
So when I think about how I will survive in New Zealand I am filled with a severe sense of Anxiety and Stress, Fear and Horror. All I can think about it that I will end up on the street in a new country and all the horrible, stressful and dangerous elements of that life I once lived will return…
So as far as impediments go, I face an untold amount. And if the truth be told I don’t think I will be able to bear it. How does one continue when they are facing the end of life as they know it? I will never again see any towns, cities and country that I know. I will never again see any familiar faces. No-one will know me or my past. I will only hear foreign accents and a language, whilst still English, filled with anecdotes and slang that mean nothing to me. I will have no points of reference…
All I know is that I get off the plane once deported and I am on the street once again but this time I am in New Zealand, a country where I know no-one, have no bank account, no money, no house, no job, no support system, no social contacts. Nothing…
I am very worried that my mental health will collapse to the point where I may no longer have the will to continue and without any support around me I will cease to have the motivation to live…
...I will be given another parole period once I return under the Returned Offenders Act 2015. This is despite possibly doing my whole sentence here, parole period included, getting deported and then having to serve parole again…
RGYW said that he had been living in Australia for 11 years before committing his first offence in Australia. He said he should be the holder of an “absorbed person visa” under s 34 of the Act having been in Australia for a total period of 37 years. Section 34 provides that a non-citizen who was in Australia on 2 April 1984 and before that date had ceased to be an immigrant is taken by force of s 34(2) of the Act to have been granted an “absorbed person visa” on 1 September 1994. RGYW said he arrived in 1981.
The Tribunal accepts the evidence that RGYW was in Australia on 2 April 1984.[11] The Tribunal also infers that he had “ceased to be an immigrant” when the Migration Act legislative changes took effect on 1 September 1994 as the Department automatically granted him a special category visa on that day under the operation of s 32 of the Act.[12] The Tribunal is satisfied that RGYW met the criteria also for an absorbed person visa as at that date and held such a visa by operation of s 34 of the Act, whether or not the Department recognised as such. At the hearing, despite having an opportunity to do so, the Minister’s representative did not make any submissions or point to any evidence to suggest that s 34 did not apply to RGYW on 1 September 1994. Instead, it was contended that it was the Minister’s position, as mentioned above, was that it mattered not whether RGYW held that visa at the cancellation date as it would be taken to be cancelled by operation of s 501F of the Act.
[11] Refer to the requirement under s 34(2)(a) of the Act.
[12] Refer to the requirement under s 34(2)(b) of the Act.
RGYW contended that the crimes for which RGYW has been convicted were not crimes of the type listed as serious, either in the Act or in Direction no.65. He said they were primarily property crimes that had not caused physical harm or injury to a person. He said that he had not committed offences against vulnerable members of the community nor against government officials or representatives.
RGYW referred the Tribunal to the Department of Home Affairs’ (Department) Procedures Advice Manual - PAM3 and said that it specifically provided that “property offences” were not likely to pose a risk to the health or safety or good order of the Australian community.[13] The Tribunal will generally follow guidance issued by the Department but will not do so if it considers it to be inconsistent with the relevant legislation or if there is a good reason not to follow it. This guidance applied to different provisions under the Act although those provisions also related to cancellation powers. The Tribunal considers that the guidance was not definitive. The Tribunal also considers that it was inconsistent with the legislation as it unduly seeks to limit the scope of “good order of the Australia community” in the absence of wording in the provision to this effect or supportive of this limited interpretation.
[13] Department of Home Affairs, Procedures Advice Manual – PAM3, General visa cancellation powers (s109, s116, s128, s134B and s140), 4. Procedural Instruction
RGYW contended that he should not be characterised as a serious offender. With respect to the most recent offence, for which he is presently in custody, RGYW submitted that most of the money stolen was returned by him and he turned himself in to the police to confess his crime.
RGYW said he committed the most recent offence after becoming “seriously anxious” due to damage that was caused by a third person to his now Partner’s car while it was unattended, after she had parked it in a spot where she was reluctant to park it, but RGYW had been insistent that she do so. At the time of the incident, the Partner was not in relationship with RGYW - they were friends (having been introduced by mutual friends when they were in their late teens). At the time the damage was caused to the car, they had been sharing accommodation in a unit in Melbourne that had been leased by Partner a short time prior.[14] RGYW explained that when he found out about the damage to the car he was “devastated”, felt responsible for it and was “sick with anxiety”. He said he was fearful that he would be asked by his now Partner to leave the unit. He thought that the least he could do, was to pay for the insurance excess and that:
The only problem was I could not afford it and was unemployed. I decided I had to make the money up somehow and I can only explain that it was due to my overacting anxiety to the situation I felt it consume me. For the next week or two it was all I thought about. [Partner] on the other hand explained it was okay and that I needed to relax, that it wasn’t a big deal.
[14] RGYW said that his now Partner had asked him to move in with her which he was happy to do so. He said that when he had moved to Melbourne, he stayed with a friend a few days a week and was otherwise homeless and staying in “squats”. He said he was on a wait list for a place through community housing. RGYW and his now Partner both gave evidence that when RGYW was staying at the Partner’s unit he paid $150 per week rent and helped the Partner with household chores, as she was working full time. This arrangement continued for the year after the offence, while RGYW was on bail.
RGYW said on the day of his most recent offence in April 2016, his intention was to go to the city to meet a friend who was to help him to sell some second-hand furniture. He said that Partner was in Brisbane at the time, visiting her father who was having surgery. RGYW said his intention was to make enough money to repay his now Partner the excess insurance payment, which he said was about $500. In the end, RGYW said he did not end up meeting his friend. RGYW did not have any credit left in his phone to make contact with his friend. RGYW said he waited for his friend at what he thought was the pre-arranged meeting place but his friend did not arrive.
Instead, RGYW bumped into a former acquaintance he knew from living on the streets. He said this acquaintance offered him some alcohol, Valium and Xanax. RGYW said he decided to take the Valium. He said the Valium started to take effect after about an hour. He said that because he had not taken Valium for a long time, he had underestimated its strength and effect on him. He said it changed his whole demeanor and all he could think about was how he had to get some money. He decided to break into an office in the city that day.
RGYW said his intention was to steal a few mobile phones or lap tops, sufficient to generate enough funds to pay for Partner’s insurance excess payment. He said he was surprised to see a safe under the desk and when he searched for the keys. He said he found them almost immediately in the desk drawer below where the safe was located. He said when he opened the safe he was surprised to see the large sums of cash that were in the safe. RGYW said he hesitated for a moment but decided to take the cash as he had already taken the step of committing a “break and enter” offence.
RGYW said that when he left, he became panicked and scared about having stolen such a large sum of money. He was also concerned that the money may have been tainted as he could not understand why such a large amount of money had been kept in the office. He said he did not return to his Partner’s home because he thought there may have been CCTV footage of the incident. He said in his experience, there were usually CCTV cameras in offices in the city. He said he did not want to bring “the heat” to Partner at her unit which was one of the reasons why he was reluctant to return to the unit he was sharing with her.
RGYW said that instead he went to a “squat” and remained there for about a week. He said that initially there were two other people at the “squat” and shortly afterwards, three of four more people arrived. He said that he spent about $4,000 or $5,000 of the stolen funds on heroin, food and taxi fares for him and the others at the “squat” over the course of the following week. He said that he thought that by taking this time, it would give him a chance to clear his head and to think about what he should do next.
RGYW said a few days after the offence he contacted Partner to arrange to meet her. He said he broke down and told her everything which he said brought him relief. He said Partner told RGYW he would be alright. He said they decided to go to a lawyer. He said they attended the Fitzroy Legal Aid office but arrived late and were told to come back at a later time. He said he tried to tell Fitzroy Legal Aid what had happened but they urged him not to at that point in time as they could not see him immediately. There was evidence that a further car accident happened that day. The same day, a third party drove a car into the rear of Partner’s car. RGYW said that this was yet another thing he had to contend with at that time.
RGYW said it was his intention to return to Fitzroy Legal Aid in a few days when they would have time to see him. In the meantime, RGYW said he had “a long think” about what to do. He said he concluded that he would go to the Police without a lawyer and tell them everything to get it over with.
RGYW said that the same night (it was a Friday) he saw footage on television showing a vision of RGYW at the burglary. It was also reported that he found out from this that the affected business was a money exchange business, operating inside an English language school, and that the owner did not have insurance. The footage on television showed that the owner was sick with worry and had attended a hospital for stress. RGYW said this was the “last straw” for him. He said he was planning to turn himself in the following Monday but when he saw the television footage he decided to do so the following day (on the Saturday). He went to the Police the next day with the stolen money to turn himself in, after he attended his doctor. He said he went to the doctor first as he wanted to commence on Methadone because he thought he would be immediately arrested and imprisoned after he had handed himself in. Instead, RGYW was given bail. His now Partner gave evidence that she posted $500 for his bail. RGYW said that he and Partner commenced a relationship between the time he committed the offence and when he turned himself into the Police.
RGYW said he knew he would be liable for deportation but he said he “had to do the right thing”. He said that Partner had insisted that it was the best way to deal with it and that she would support him. He said that:
It doesn’t make sense that someone would hand around $160,000 back, go to jail and then get out and try and get money again and commit offences. Those days are over for me. Money doesn’t change anything internally, and especially when it is not legally earned then it is pointless. No good can come of it.
RGYW does not accept that when he committed the most current offence he was living in “stable” accommodation as had been described by the County Court sentencing judge. He accepted that at the time, he had been sharing accommodation with his now Partner, and that she had not asked him to leave or made any threats to him to do so, however, RGYW submitted that “chronic homelessness can have a devastating effect on those unlucky enough to have endured it and it leaves lasting issues and insecurities”.
RGYW said he was homeless for over 15 years and that it had an enormous effect on his mental health and contributed largely to his use of drugs and his subsequent offending. RGYW said he felt deeply ashamed for resorting to theft from businesses and that he felt great remorse for those affected by those crimes.
In relation to the prior warnings, RGYW made detailed submissions about the circumstances of his re-offending after he had received those warnings. He explained his great challenges in finding secure and stable accommodation after release from prison. He explained the danger and violence which had surrounded him at the shelters he stayed at. In particular, RGYW contended as follows:
Due to the threat of violence, the chance of eviction, the drug use on-site and the high cost of rent at these shelters many people turn to living on the street. At first glance this seems extreme but after living in shelters it becomes clear why this a viable and sometimes preferred alternative.
The stress and threats of danger just becomes too intense and people like myself who suffer from severe anxiety, depression and especially avoidant personality disorder find being in that environment too painful.
Unfortunately there came a point where I felt that committing an offence to get money was possibly worth the risk because I was in a hopeless situation. If I got caught I would be in prison where I no longer had the everyday stress of finding shelter and food. And if I wasn’t caught I could eat well and self-medicate to escape the everyday misery I was experiencing.
RGYW also contended as follows:
Lastly I would like to note that at the time of receiving the previous warnings that I had every intention of remaining crime and drug free. I just underestimated the level of support I really needed, the lack of support I would actually be receiving once released and overestimated my resilience and ability to withstand the pressures of life.
I also found it hard to navigate the complex mental health system. If you cannot afford it then you must go public which means there is little continuity in treatment. You also have no say in who treats you and when.
Having said that I firmly believe I have now addressed all those issues and along with all the other factors I have laid out her I believe I will finally be able to move on with my life. And I have the support to do so.
Sometimes it takes more than once or twice to achieve your goals and this has certainly been the case for me. I regret the pain I have caused to anyone affected by my offences and only wish to make amends for my transgressions and to become a productive member of society.
RGYW said he had attended drug rehabilitation a number of times and at times, he had great success. He said that overall he had done well and had gained insight into his drug use.
RGYW said it was quite hard for him to receive treatment for his mental health conditions when his only help was through the public mental health system. He said he had always tried his best at seeking treatment and while his success in doing so was not a complete cure, he had gained insight into his strengths and weaknesses and that he was striving for a better and healthier outcome. RGYW said he was “happier, fitter and healthier in every way” than he had “ever been in his life”. He said he was not suffering from the symptoms of his mental health conditions in the way he was previously. He said that even though he was in jail, he was “alright in the knowledge that I am loved and have a future”. He said he had a partner who “would be there for him no matter what”.
RGYW said he was currently studying a Tertiary Preparation Program (TPP) as he has a goal of completing a degree in Sociology. He said his assessment scores to get him into the TPP were very high. He said the course would take about three months for him to complete. He said he hoped to help “at risk youths” who may end up offending, using drugs or becoming radicalised.
RGYW submitted that there had always been elements of mitigation which had resulted in the sentences imposed for his offending to be less than warranted for the particular offences (i.e. not mid- or high-range). He said he always pled guilty to save the court (and ultimately, the tax payer) time and money. He explained that he did this because he was brought up to believe in “the Australian philosophy of copping it on the chin”, that is, if you did something wrong then you should own up to it and accept the consequences “when found out”. He said other mitigating circumstances included the offences being unplanned and the circumstances of his life at the time of offending, being homeless, the effects of substance abuse and suffering from mental health issues. In the most recent offence, he said it was “one in which I disclosed unknown guilt”.
RGYW submitted that there had been lapses of years between lots of his offences. He said that in the mid-1990s until 2004, there had been a period of about nine years between the “more severe” offences like “break and enter”. RGYW claimed that there had not been an increase in the seriousness of his offences and that they had all been of the same nature and the number of offences at each point at which he was charged, had decreased. He contended “if anything you could say that there has been a dramatic decrease in my offending, in that I disclosed unknown guilt and returned the money”.
RGYW said he had not ever misled the Department about “any fact of my life” or “concerning my prior criminal offences”.

RGYW acknowledged that he had received three formal written warnings from the Department. He said his homelessness and mental health status were such that he never really got to a point where he had attained stability and was able to change his life. He said he had achieved this, but not until after he was charged with his current offence. He said the longer he lived with his Partner in safe and secure accommodation and the longer he had her support, the better he became. He said when he was on bail in the year after his most recent offence and before he went to prison, he did not spiral back into drug use or reoffend. He said he had not used drugs in the last 16 months while he had been in prison, despite being offered them at times as reflected in the available results for when RGYW was tested for drugs.
RGYW contended that mental health and homelessness were major drivers of crime and drug use. He said the failure of successive governments to address those important issues was wreaking havoc on Australians.
RGYW gave evidence that he was sexually abused by a group of older men when he was only 12 years old. He said that along with some friends, he went to a hotel in the Gold Coast with the older men that he had met at a local skating rink where RGYW said he had worked for free admission. He said that the older men would take RGYW and his friends to hotels on weekends, go-karting and to the beach. He said that one night in a hotel on the Gold Coast, RGYW and his friends were given alcohol and woke up the next morning in different beds wearing little or no clothing. He said they could not remember the night previously and that they were “very sore”. He said he left with his friends immediately and hitchhiked back to Brisbane. He said RGYW and his friends promised between themselves not to tell anyone.
RGYW said his mother has suspected something was wrong and that RGYW eventually told her what had happened. His mother told a Brisbane Juvenile Aid Bureau Officer but he said it was not followed up as RGYW had refused to provide the Police with the necessary details. He said that he did not want to go to court about it.
RGYW also recounted a number of other incidents in his life which he said had a tremendous effect on him, including:
(a)the death of his step-father. RGYW said he found him lying face down on his bedroom floor having suffered a heart attack brought on from his chronic alcoholism;
(b)the death of a 15-year old school friend who died after inhaling substance that was emitted from a fire extinguisher;
(c)the death of another 14-year old friend who was found dead after drinking and taking prescription pills;
(d)the deaths (including from overdoses and murders) of some of his acquaintances and friends in the “squats” or housing commission homes in which he has stayed;
(e)the death of his sister’s fiancé from a suspected alcohol and drug overdose;
(f)the death of his former long-term girlfriend from pneumonia after watching her fight for her life in ICU for 10 days;
(g)the death of his father from lung cancer when RGYW was 23. RGYW said his father’s death shocked him and he believed it was a major reason that he started taking and became addicted to opiate drugs, such as heroin. His father was visiting New Zealand at the time he died;
(h)the death of his mother which he said was “very hard to take” and that he was not able to attend her funeral due to the parole restrictions that were in place at the time; and
(i)he has been “stabbed, bashed unconscious a number of times, had my teeth knocked out and I was once seriously sexually assaulted after overdosing and becoming unconscious and waking up in a strangers home”.
RGYW said that his parents separated in about 1983. RGYW was about 8 years old at that time. He said he lived with his mother and two sisters and visited his father. His mother subsequently re-partnered. Sister 1 gave evidence that they had about three or four step-fathers when they were growing up and that the each of them were violent and abusive.
These circumstances had a negative effect on RGYW and he said his mental health issues had not been attended to promptly or sufficiently in the community or while he was in prison. He said he had managed to maintain a relatively good state of mental health through “sheer determination and hard work” and despite there being “next to no help” in prison.
RGYW said that being on “parole” in the past had not helped him to find stable housing. He said he was on the priority housing list for eight years in New South Wales but was not offered a housing commission home. He said that from 2000 to 2004 and after he was released in 2006 until 2016, he was homeless. He said that at times he was released to a crisis centre/homeless person’s accommodation centre and other times he had found his own crisis accommodation. He said he was required, by law, to leave it to move out of shelters if he had been there for 12 weeks. He said that at times he would spend weeks or months living on the streets. RGYW explained that the parole board did not allow him to return to Queensland where he might have otherwise found accommodation and support with his family.
RGYW considered that due to the lack of stable housing, he found himself back in prison a number of times and that he found life to be “a daily grind”. He said he thought he was going to die on the streets. Despite this, RGYW said that he:
…never robbed people’s homes, I never bashed and robbed anyone. I never sold drugs. I never used violence and the crimes I committed never increased in seriousness. I just did what I thought at the time I had to do to continue living at that time. And I always regretted and felt ashamed for doing so.
Since the most recent offence, RGYW said he had made many changes. He has stopped using cigarettes and other drugs; he has gradually ceased using Methadone (with resulting improvement in his mental health) and he has undertaken physical training. RGYW said he completed a 24-Hour Drug and Alcohol Program while he was in prison and other courses such as Elevated Work Program, Forklift, White Card and Traffic Control. This evidence was not in dispute and I accept that RGYW undertook those courses.
RGYW said he saw a psychiatric nurse while he was in prison. He said that along with the support that he has had (and will continue to have), and the profound lessons he had learnt, he said there was no reason why he would reoffend again. Of note, he submitted:
Something has fundamentally changed in me. I have found a woman who has shown me unconditional love and who has stood by me despite the challenges involved. I will no longer be homeless and now have a stable home in which to live and thrive.
And if even that were to change, I have come to terms with all the loss I have endured and any self-doubt I once had.
RGYW’S PARTNER
RGYW’s Partner gave evidence in a statutory declaration signed by her on 4 November 2017; a witness statement signed by her on 7 June 2018 and further oral evidence given by her at the hearing.
In the statutory declaration, the Partner gave evidence that:
(a)she was born in, and is a citizen of, Australia;
(b)as at November 2017, she was employed full-time as a sales consultant for a lighting company. The Partner has had ten years of work experience in the lighting industry;
(c)her parents and one sister live in Brisbane and her extended family live in Brisbane and the Gold Coast. She said she had lived in Brisbane for most her life until recently when she moved to Melbourne;
(d)she developed a relationship with RGYW in September of 2015. She stated that she relocated to Melbourne in February 2016 to further her relationship with RGYW. She maintained her relationship with RGYW through prison visits, daily phone calls and by writing letters;
(e)she was aware of RGYW’s background and current circumstances, having known him for the previous 15 years. She described him as having had an extremely difficult life and had faced many adversities with little or no support and yet, she said, he remained one of the most compassionate, loving and supportive people she had ever known. She said he had grown up in a family with issues of substance abuse, financial strain and domestic violence;
(f)the loss of RGYW’s parents had “brought many issues to the forefront” and it meant he had no stable place to reside. She said he subsequently fell into a cycle of homelessness, addiction and mental illness;
(g)she considered RGYW to be a very intelligent, caring, supportive and compassionate man and that he had supported her through a violent relationship and later, her marriage that had failed due to her husband being mentally ill and addicted to ice and heroin. She said he helped to save her life on more than one occasion;
(h)she said that RGYW was not a violent offender and the issues causing his offending behaviour had been addressed and therefore, he was not a risk to the Australian community. She said that upon release, if he was returned to the community, RGYW would have a stable home and emotional and financial support offered by her and RGYW’s family. She said this opportunity would not be available for him if he is deported;
(i)she said that if RGYW was deported she also would be fearful of her own mental health declining. She said that RGYW and herself had been through a lot in their lives and they wanted to live a simple, honest life together, hoping to marry in the future;
(j)she would not be able to relocate to New Zealand due to her father being terminally ill. She said he had heart and kidney problems and was on dialysis. She said she has to stay in Australia to support her family as they were “close knit”.[15]
[15] By the time of the hearing, Partner’s position must have changed as she gave evidence that that she would be prepared to move to New Zealand but it would not be for a few years – see paragraph [81].
In her statement dated 7 June 2018, the Partner gave the following evidence:
(a)she was still based in Melbourne working full-time as an electrical design consultant for a company which built homes;
(b)she had met RGYW through a mutual friend in Brisbane in 2003 (RGYW was 18 years old at this time). They had remained close friends and maintained contact on and off over the years;
(c)she had entered into a relationship with RGYW in May 2016 and had been in a de facto relationship with him since that time. At a later point in the same statement, she said she entered into a relationship with RGYW on 27 April 2016;
(d)she separated from her husband in June 2015. She said she relocated from Melbourne to Brisbane in February 2016 “for a fresh start and better career opportunities”. She said she had visited RGYW in September 2015 and liked Melbourne. She said that she had looked into employment opportunities in Melbourne, which seemed positive;
(e)in relation to RGYW’s most recent offence, she stated:
On the 24 April 2016 [RGYW] travelled into the city to meet a friend in regards to second-hand furniture he had available that may be appropriate for [RGYW]’s business. Before he got to meet up with his friend [RGYW] had run into an associate that (sic) offered him Valium. At this time [RGYW] was extremely anxious, depressed and certain that I would return from Brisbane and ask him to move out so his thought processes were all over the place and he accepted the Valium. Being under the influence of a substance that clouds your judgement and induces loss of inhibitions, [RGYW] found himself breaking into a business and stumbling upon a large amount of cash which he stole.
I returned from Brisbane to find [RGYW] missing from our residence and fearing the worst, that [RGYW] may have committed suicide. [RGYW] contacted me a few days after committing the offence and was extremely distressed and informed me of what he had done. I encouraged [RGYW] to come home so we could work out what the next course of action was. [RGYW] came home and it was at this point that [RGYW] and entered into a relationship.
[RGYW] was very remorseful and worried, he was concerned about the impact his actions would have on his victim/s, he also worried that the money might belong to ‘gangsters’ and feared for my safety should someone come looking for the money. After some reflection [RGYW] made the decision to hand himself in to the police, it was the right thing to do and the first step to making amends. On Saturday May 7 2016 I drove [RGYW] to the Fitzroy Police Station so he could hand himself in and return the money.
At the hearing, the Partner said that she had not started her relationship with RGYW until after the most recent offence and before he turned himself into the police.
When questioned at the hearing about whether the Partner would relocate to New Zealand if RGYW was deported, she stated:
I’m prepared to do it but it’s something that would not happen for a few years.
Partner explained that she had to sort out an unresolved property dispute with her husband. She said her husband’s name was on the title of a house they used to live in together in Brisbane. She said she had made mortgage payments on the home loan for that property for a period of about seven years. When asked whether it was possible for her to sort out this issue remotely if she was based in New Zealand, she said it would be easier to do so it she was based in Australia. Partner also said that her family was in Australia, and her father was not well. She was also concerned about being able to find work in New Zealand and claimed there was less work there.
The Partner gave evidence at the hearing that she was still married to her husband, but they were separated. She said that she had not yet lodged the paperwork for a divorce or to recover her interest in the marital home because she said she was saving up for the legal fees and expected to have them in “a couple of months”.
The Partner was questioned at the hearing about why she had moved away from her family in Brisbane. She said that she did it out of concern for her safely as there had been issues of violence in her marriage and that her husband had continued to pursue her after they had separated. The Partner said she travelled from Melbourne to Brisbane to visit her family about four times per year. She also said that by relocating to Melbourne, she was hopeful that the relationship between RGYW would develop further. She said it had provided her with a “fresh start”, as she had not lived away from Brisbane before.
When RGYW was questioned whether he thought that Partner would move to New Zealand with him if he was deported, he said that she probably would. However, he said he did not think it was right to and he did not intend to ask her to relocate for him.
Partner was asked whether at the hearing she would stand by RGYW if he was released and continued to re-offend. She said: “probably not”.
SISTER 1’S EVIDENCE
Sister 1 gave evidence by way of a statutory declaration dated 29 July 2017;[16] a written statement in an email sent by her to the Tribunal on 13 June 2018; and further oral evidence given by telephone at the hearing.
[16] Refer G-Documents G2/143 and 135.
In the July 2017 statutory declaration, Sister 1 stated that their family background had included alcohol and drug abuse and domestic violence issues. She said that their family did not condone any criminal behaviour, however, they loved and supported RGYW and considered him to be:
…an intelligent, caring and loving man, who has had serious drug and mental health issues.
Sister 1 said she has been married for 25 years and has two adult children, one being a serving member of the Australian Army and the other being a carpenter who owned his own home.
Sister 1 said she has worked as a disability support worker for the previous 12 years supporting people with disabilities and mental health issues. This is her current occupation. She said that she believes that RGYW suffered a mental health breakdown when he committed the most recent offence in 2016. She said he had become “institutionalised in his thought processes”. She said he had suffered serious traumas and loss in the past.
Sister 1 said that RGYW had the full support of her, her husband and their children. She said she sends RGYW the maximum amount of financial support that she is permitted to send to him in prison each fortnight. She said if she had lived closer, she would have supported RGYW with more than just money. She said that if she had not left the family home at the age of 15 “to escape”, she may have been able to save RGYW in the first place.
In her June 2018 written statement, Sister 1 stated that her parents had divorced when RGYW was 10 years old. She considered there was a strong stigma at that time attached to being raised by a single mother. She said this affected RGYW in profound ways, and he was constantly bullied about it. Sister 1 said her mother always worked “as she had no choice” and this left RGYW with too much unsupervised time. She said that it allowed adult predators to become involved in RGYW’s life and to groom him in the art of stealing for them and eventually supplying RGYW with drugs. She said that she had always suspected that RGYW had been sexually abused, as she had been too.
Sister 1 stated her belief that RGYW could, and would, contribute to society if he was given the chance. She said he had every opportunity to do so with the love and support of Partner. She said that RGYW had proven that whilst being on bail under strict conditions, even at times of great stress when she said it was most likely that he would reoffend, he had not done so. She said that Australia was the only home RGYW knew and that he was not a risk to others in society. She said he had made terrible choices and mistakes in his life when he was drug addicted, mentally unwell and homeless.
Sister 1 stated that RGYW had worked hard to remain drug free and to address his mental health issues, that he had a stable residence/home. She said this was his last chance and that he had done everything he could to be “job ready” and “to pay restitution”.
Sister 1 said she feared for her brother’s life if he was sent to New Zealand, being a country that was foreign to him, with no family or social ties, nowhere to live and no prospect of employment. She said that suicide may be his only option.
At the hearing, Sister 1 was asked that in the event that RGYW was deported, whether she would travel to New Zealand to assist him to establish himself. Her response was: “I guess I will have to”.
RGYW’S NIECE
RGYW’s niece (Sister 1’s 28 year-old daughter)(Niece), made a statement dated 17 January 2018 in support of the revocation of RGYW’s visa cancellation.[17] Niece said she was aware of RGYW’s criminal history and his most recent offence.
[17] Refer G-Documents G2/145 and 146.
Niece said that RGYW had been a part of her life growing up, even though he had lived interstate. She said she had visited him in prison when she was able and kept in touch with him by phone. She described RGYW as a loving Uncle who encouraged her to learn from his mistakes and to get a good education, work hard and to live a healthy lifestyle. She said that RGYW had not had the same opportunities in life that she had. She believed his offending was highly related to those disadvantages in life leading to his mental illnesses and homelessness.
Niece said that if RGYW was afforded the chance to stay in Australia that he would have her support and the support of their small family. She said she would continue to be a part of his life and would help to provide him both emotional and financial support. She said he would not have the direct support he needed if he was deported to New Zealand and that it would be emotionally devastating to their family and extremely detrimental to RGYW’s future. She said that she had complete faith in RGYW that he would “prove himself and turn his life around” if given the opportunity to stay in Australia.
RGYW’S NEPHEW

There were opportunities in RGYW’s past where there was sufficient income from his welfare benefits or at some points, from his employment, for RGYW to sustain a basic level of share accommodation and food. The Tribunal is satisfied that RGYW instead, chose to stay in shelters, “squats” or to remain homeless so that he could use his available welfare benefits to acquire drugs for his personal use. I accept that this was likely to be a way that RGYW could self-medicate with respect to his treating his mental health issues, as contended for by RGYW. However, the Tribunal considers that RZYW had access to the public health system which allowed him to obtain bulk-billed medical and therapeutic services and the PBS allowed him to obtain prescribed psychotropic medications for his mental health conditions under the medical supervision of his general practitioner or a psychiatrist under a mental health plan.
RGYW chose what he considered to be a more effective form of medication being self-medication in the form of illicit substances. Given RGYW’s high level of cognitive function as evident at the hearing, and in the preparation of his submissions, I am satisfied that RGYW was aware of the serious consequences when choosing to go down that path of self-medicating, rather than using conventional medication and treatment.
Additional evidence was given by RGYW about other strategies that he proposed to adopt if he was released into the community to avoid further relapses. The Tribunal notes that RGYZ undertook a drug and alcohol course during his recent period in custody and the occupational courses and other studies to help him secure employment. He intends to live with Partner so he has stable and safe accommodation.
The Tribunal notes the summary provided by the County Court sentencing judge the views of a psychologist who had examined RGYW (Psychologist) in relation to his most recent offence in 2016. His Honour remarked:[34]
30.      Your counsel handed up a psychological report from [the Psychologist]. You told [the Psychologist] that after you were last released from custody in 2014, you came to Melbourne to start a new life. As I have already mentioned, you were offered stable accommodation by [the now Partner] in early 2016.
31.      You told [the Psychologist] that you had participated in heroin detoxification programs in Queensland and Sydney, and had undergone residential drug rehabilitation programs in both of those places. Your also told [the Psychologist] that whilst in custody you considered that there was a significant nexus between your homelessness and using more heroin.
32.      You said to [the Psychologist] that you felt (at the time of the interview on 23 October 2016) the most psychologically stable that you have felt for 17 or 18 years.
33.      You expressed to [the Psychologist] that you had used heroin intravenously two or three times over the previous six months to the date of interview. This is significant because you had been living with [the Partner] at that time and had been undertaking the methadone program with [Dr X].
24.      [The Psychologist] assessed you as having an antisocial personality disorder, and avoidant personality disorder and probably either a borderline personality disorder or dependent personality disorder. Unfortunately, none of these opinions were elaborated upon.
25.      In his opinion, [the Psychologist] stated that your prognosis with respect to further offending and long-term drug rehabilitation was guarded.
[34] Refer G-Documents G2/153.
Taking into account the evidence available in relation to the risk of RGYW reoffending, noting it was limited, the Tribunal is satisfied that RGYW is likely to reoffend once he is released. There were limited examples where RGYW had demonstrated that outside of a structured environment, such as that in prison or while on bail or on parole, he was able to manage not to reoffend for any significant length of time. In the past he was issued with warnings and knew of the potential repercussions of reoffending with respect to the risk it posed to having his visa removed and yet, he reoffended. RGYW did not present any reports from psychologists expressing views as to the likelihood of recidivism.
The Tribunal notes that the only expert evidence available was the views of the Psychologist who examined RGYW in the lead up to the sentencing hearing for his most recent offence. The Tribunal notes that the Psychologists’ views were that RGYW’s prospects of rehabilitation were “guarded”. The reoffending has taken place previously in the context of RGYW having completed rehabilitation programs for his addiction. On balance, and while I hope to be proven wrong, I consider that RGYW is likely to reoffend once he is released when presented with a challenging situation, with which is unable to cope.
Best interests of minor children in Australia affected by the decision
It was not contended, nor was there any evidence of, any minor children who would be affected by this decision. This consideration is not relevant in this application.
Expectations of the Australian Community
Paragraph 13.3(1) of Direction no.65 requires the Tribunal to take into account the following:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal accepts that when a person has a criminal history of offences “against the person” such as domestic violent, assault, rape or murder, it would seem quite clear that the Australian community would expect the deportation of a visa holder, despite the fact that they had spent almost all of their life in Australia. RGYW contends that in his case, given that he committed property offences, that the Australian community would not expect him to be deported given that he has lived as long as he has in Australia having arrived at the age of five.
The Tribunal does not agree. I am satisfied that in the circumstances of this case, the Australian community is likely to expect that RGYW’s privilege to remain living in Australia be removed on account of:
(a)RGYW’s history of repeated criminal offending with approximately 60 convictions, 30 of which he was sentenced to terms of imprisonment;
(b)the cost to the community of RGYW’s offending behavior (including not only the direct losses to the business and the individuals who own those businesses caused by the goods and money stolen by RGYW, but also the cost of maintaining security and insurances on account of such conduct);
(c)the cost to the community of policing and enforcing the law and to fund RGYW’s repeated periods of incarceration and subsequence corrective and supervisory programs.
I am satisfied that the Australia community would expect that RGYW, having had three chances already, should not be provided with any more.
OTHER CONSIDERATIONS
There are other considerations relevant to this application that should be considered in revocation matters which are identified in paragraph 14(1) of the Ministerial Direction. It provides that:
(1) … These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) …;
d) Impact on victims;
e) Extent of impediments if removed.
International non-refoulement obligations
Paragraph 14.1 of the Ministerial Direction provides as follows in relation to Australia’s non-refoulement obligations (emphasis added):
(1)      A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)       The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3)       Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4)       Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5)       If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48 A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)       In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
The Minister accepts that the Tribunal is required to turn its mind to any international non-refoulement obligations that might arise if RGYW were returned to New Zealand consistent with the decision of the Full Court of the Federal Court of Australia decision in BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456. This decision was upheld in the High Court of Australia in BCR16 v Minister for Immigration and Border Protection [2017] HCA Trans 240.
In undertaking this task, the Tribunal is not required to conduct an extensive assessment. The level of analysis required is less than that would be required in assessing a claim for a protection visa.[35]
[35] See Ayoub v Minister for Immigration and Border Protection (2015) 231 FCR 513.
The conventions referred to in Direction no.65 are aimed at Australia’s obligations to avoid particular types of harm occurring to a person in the event that they were to be returned to their country of nationality. The Tribunal assessed whether RGYW has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group, or political opinion. The Tribunal also assessed whether there are substantial grounds for believing that, as a necessary and foreseeable consequence of RGYW being removed to New Zealand, there is a real risk that he will suffer significant harm. Further, the Tribunal has assessed whether he would suffer harm under the ICCPR or the CAT as contended for by RGYW in paragraphs [38] and [40] inclusive of these Reasons for Decision.
RGYW contended that if he were returned to New Zealand it would impact on his relationship with his de facto partner. He said he would also be prevented from seeing his sisters and other family members in Australia, including the Niece and Nephew, as well as his friends. He said he would no longer see familiar places and he would not be able to visit his mother’s grave in Australia if he is deported. He said if he went to New Zealand he would have no supports there and would be “sleeping rough”. He said he did not know whether he would be eligible for social services in New Zealand nor was he familiar with what they are. He said he was concerned that if he were deported to New Zealand it would cause his mental health to rapidly deteriorate, and without any support networks, he would become suicidal.
RGYW said he may be subjected to a further period of supervision by Community Corrections upon returning to New Zealand under its Returning Offenders (Management and Information) Act 2015. The Tribunal notes a returning offenders fact sheet issued by the New Zealand Department of Corrections in January 2017 tendered into evidence stated as follows:[36]
[36] Refer Exhibit “A9”.
The new law means New Zealanders who have been sentenced to more than one year in an overseas prison and who have been recently released from detention before returning to New Zealand will be supervised by Community Corrections. This is called a Returning Offenders Order. If you are considered to be at greater risk of re-offending, Corrections may apply to the Court for additional supervision conditions to be placed on you.
…
The period of supervision will be based on the length of sentence you served overseas. The shortest time is six months.
…any past treatment you have completed will be considered when the Court determines what conditions to impose. Community Corrections will assess whether you could benefit from further interventions.
…
On your arrival a group of people will meet you at the airport. The group include New Zealand Police, Community Corrections, Work and Income and community support workers such as the Prisoners’ Aid and Rehabilitation Society (PARS)…
Police need to check your details and they may ask to take a DNA sample. If you were in prison in Australia you will probably have a period of supervision by a Community Corrections probation officer in New Zealand. The probation officer will give you instructions about when you must report to them and they will help you settling in.
In most cases, Australian authorities will work with you to arrange short-term accommodation for your return to New Zealand. If you are subject to a Returning Offenders Order, the accommodation will need to be approved by a New Zealand probation officer. If the accommodation is deemed unsuitable, your probation officer will work with you to find a suitable alternative…
Work and income in New Zealand is like Centrelink in Australia. They will talk to you about finding employment and can provide income support. They’ll sort out some immediate things to support you in the first few days and they’ll continue to work with you to support your relocation to New Zealand.
A probation officer will work with you to establish social support networks. Many agencies and groups are available to help in this way.
The Minister contended that if RGYW’s visa cancellation was not revoked, it was open to him to make a protection visa application and the Tribunal should approach its assessment of this consideration with this in mind. While the Tribunal has noted as such, it does not place weight on this factor, particularly given that RGYW has not indicated an intention to make a protection visa application.
The Minister contended that RGYW’s claims as to what he would face if he was deported to Australia “do not speak to whether he faces serious or significant harm in New Zealand”.[37] The Minister contended that the Tribunal cannot be satisfied on the evidence before it that he suffered harm of the type that would give rise to international non-refoulement obligations and at best they raise considerations of the impediments he would face if returned to New Zealand and should be considered under paragraph 14.5 of Direction no.65, and not under paragraph 14.1.
[37] Refer Minister’s SFIC at paragraph [57(a)].
The Tribunal agrees. I was unable to identify any real risk of significant harm that would face RGYW personally if he was returned to New Zealand, as distinct from risks faced by the population of the country generally. RGYW points to the probability that he will be under supervision orders as a negative thing. However, the Tribunal considers that this will provide him with a layer of structure, assistance and intervention during his early days in New Zealand that is designed to increase his chances of settling in New Zealand without re-offending.
The Tribunal does not consider that deportation of RGYW to New Zealand would give rise to breaches of the CAT and ICCPR. The highlighted section of paragraph 14.1(1) in paragraph [156] requires the Tribunal to follow the tests enunciated in the Act with respect to Australia’s interpretation of those international obligations. This would include Australia’s rejection of the majority views of the United Nations Human Rights Committee seeking to expand the scope of article 12(4) of the ICCPR in Nystrom v Australia.
There is insufficient evidence for the Tribunal to conclude that RGYW would be at risk of a specific type of harm that would trigger an international non-refoulement obligation within the meaning of paragraph 14.1 of Direction no.65, if he were to be deported to New Zealand. I have taken into account the difficulties that RGYW is likely to face upon deportation to New Zealand under paragraph 14.5 of Direction no.65 in paragraphs [177] to [190] inclusive of these Reasons for Decision.
The strength, nature and duration of ties to Australia
The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The Strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.     less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.     more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
RGYW arrived in Australia at age 5 and has lived in Australia for 37 of his 42 years of life. He has only been absent from Australia on two occasions for short holidays. He completed all of his schooling in Australia. At various times, he has been employed or served terms of imprisonment in Australia. He identified himself only as “Australian” and says he has no memory of New Zealand having left at such a young age. RGYW’s mother was buried in Brisbane and he said he would like to one day visit her grave, which the Tribunal notes he has not yet done.

RGYW gave evidence that if he was not permitted to remain in Australia, his Partner, sisters and their families would be devastated. The Tribunal was satisfied from the evidence of both RGYW and Partner of the close affection and high degree of commitment between them. The Partner has said that she was willing to provide RGYW with a stable home once he was released if he is permitted to remain in Australia. The Tribunal accepts this evidence, noting that the Partner’s preparedness to do so was conditional upon RGYW not re-offending.
In terms of the other elements of paragraph 14.2 of the Direction no.65, the Tribunal notes that RGYW’s offending commenced approximately 10 years after his arrival in Australia with his first two court appearance recorded in 1991. In 1992, RGYW was convicted of the offence of “Steal with actual violence” and placed under two years of “convicted care and control”. RGYW contended that this should be in his favour in that he did not start offending soon after he arrived. However, the Tribunal does not accept this contention as it was evident that as soon as RGYW “came of age”, his criminal behaviour began.
RGYW has been in Australia for 37 years. For the vast majority of that time RGYW was either imprisoned or homeless, in receipt of welfare payments and taking illicit drugs. There were some periods of employment but they were generally short and not able to be sustained. While the Tribunal affords some recognition for the several years of work in Australia that RGYW performed, his extensive history of offending has significantly impacted upon his ability to make any significant positive contribution as a member of the Australian community in the 37 years that he has been permitted to live in Australia.
In light of the unfortunate childhood that RGYW had and the mental health issues and drug addiction followed, I do not consider that RGYW ever intended to become a burden on the Australian community, rather than being a positive contributor to it. Rather, he fell into a hole at a very early age which, regrettably, he did not have the personal strength to get himself out of, nor did he have the family support when he needed it to help him. Sadly though, when opportunities were provided to RGYW later in his life, to make changes and rebuild a new life in Australia, they were not taken up.
RGYW gave evidence of his intentions in the future, were he permitted to remain in Australia, to become a social worker and help “at risk youth” not to make the same mistakes in life.[38] The Tribunal is hopeful that RGYW is able to realise those aspirations.
[38] Refer paragraph [57] of the RGYW’s witness statement. He gave evidence in similar terms at the hearing.
Despite RGYW commencing his offending behaviour as soon as he “came of age” in Australia and despite his lack of significant contribution to the Australian community, the Tribunal concludes that the consideration under paragraph 14.2 of Direction no.65 nevertheless weighs in favour of the revocation of RGYW’s visa cancellation, on account of length of time he has spent living in Australia and significant ties he has with Partner, Sister 1, her family and the Friend who are Australian citizens and based in Australia.
Impact on Australian business interests
RGYW was not involved directly or indirectly in any business undertaking in Australia. This factor is not a relevant consideration in this application.
Impact on victims
Paragraph 14.4 of Direction no.65 provides that the Tribunal should consider the impact of a decision to revoke the cancellation decision on members of the Australian community. The Tribunal has made findings about the general impacts of RGYW’s criminal offending as set out in paragraphs [126] and [127]. The Tribunal considers that this factor weighs against revoking the decision to cancel RGYW’s visa.
Extent of impediments if returned to New Zealand
Paragraph 14.5 of Direction no.65 requires the Tribunal to consider the extent of impediments that the Applicant may face in establishing himself 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 Applicant’s age and health, whether there are substantial language or cultural barriers and any social, medical and/or economic support available to him in the home country.
The Tribunal notes that no language barrier would apply with respect to RGYW settling into New Zealand because the primary language spoken in New Zealand is English.[39] RGYW is concerned about having a different accent; however, the Tribunal does not consider this will place RGYW at a disadvantage socially or when applying for employment. The Australian accent is not an accent that is foreign to New Zealanders given the close proximity of Australia and New Zealand and the frequent travel of many of their respective citizens between the two neighboring nations.
[39] Languages spoken in New Zealand are reported as follows: English (de facto official) 89.8%, Maori (de jure official) 3.5%, Samoan 2%, Hindi 1.6%, French 1.2%, Northern Chinese 1.2%, Yue 1%, other or not stated 20.5%, New Zealand Sign Language (de jure official) – refer
I also consider that the cultural differences between the two countries are not significant or likely to disadvantage RGYW because, while I acknowledge there are differences, there are also a great number of similarities between the culture in Australia and New Zealand. Importantly, New Zealand and Australia have similar legal and social services systems.
The Tribunal is satisfied that it is likely that both RGYW and Partner are both likely to secure employment in New Zealand, given their respective previous employment experience and skills. There was no evidence tendered to indicate that the employment rate in New Zealand would cause a barrier to either RGYW or Partner in finding employment in New Zealand. New Zealand’s unemployment rate was estimated at 4.9 per cent in 2017.[40]
[40] Refer
RGYW is a middle-aged person of youthful appearance. His evidence was that he did not intend to waste any more of his life. He impressed the Tribunal when he gave evidence as a person who was presently physically strong for his age, despite his previous personal history and the things he has had to endure. This was supported by his evidence that he had undertaken a physical exercise program while in prison; was not taking any drugs and had also ceased taking Methadone.
RGYW has had previous work experience in a number of, mainly unskilled, occupations, including in the construction and cleaning industries. He has completed short courses to help him to be “job ready” when released. The Tribunal considers on the evidence and based on RGYW’s skills, previous work experience and recent courses he had completed, that he would be well suited for a future position in the construction industry. The Tribunal considers that RGYW would by no means, be limited to that occupation and notes RGYW’s current motivation and aspirations to be a social worker.
RGYW’s written submissions in this application alone, which RGYW confirmed at the hearing that he prepared himself, demonstrated that RGYW is an articulate and intelligent person, as confirmed by Partner and Sister 1 in their evidence. RGYW may also be able to seek work as a social worker; or other types of office work where he could use his communication skills to his advantage. He could also work as a cleaner as he presently doing for a few hours per week, while he is in prison.
The Tribunal considers that Partner is well-positioned to secure further employment in New Zealand if she were to move there. Partner has at least ten years’ experience in her field. There was no evidence given of any reason why the Partner’s work experience would not be transferable to the lighting industry or new home construction industry in New Zealand.
RGYW evidence at the hearing was that he was not suffering from significant mental health symptoms at the present time and had been better psychologically and physically, than he had been for the last 17 years. However, should RGYW’s mental health deteriorate, particular in light of the underlying diagnoses, which the Minister did not dispute and the Tribunal accepts to be present, there was no evidence provided to the Tribunal to support a finding that he would not have access to appropriate medical and therapeutic services in New Zealand on par or at a similar level to those available in Australia. The Tribunal also takes into account that even when those services have been available to RGYW in the past, he does not have a consistent history of availing himself of conventional treatments in an attempt to address his mental health condition and drug addiction issues.
The Tribunal acknowledges that if RGYW returned to New Zealand he would be without the immediate support of Partner and Sister 1 and her family. The Tribunal heard evidence that Partner, Sister 1, Sister 1’s husband, Niece and Nephew are all working full-time in paid employment. All, except for Sister 1’s husband, gave evidence to the effect that RGYW had their full support. This being the case, the Tribunal is satisfied that collectively they are in a position to finance and establish secure and stable accommodation for RGYW until such time as he can find employment or commence receiving appropriate welfare benefits in New Zealand to enable him to pay for his own living costs. Sister 1 has also given evidence that she was prepared to, if she had to, travel to New Zealand to help RGYW establish himself.
The Tribunal accepts Partner’s evidence that she will continue to support RGYW emotionally provided he does not re-offend. The Tribunal is satisfied that during the initial period during which she is tying up her affairs in Melbourne before moving to New Zealand, she is able to continue to support RGYW emotionally from afar by phone and other forms of communication. If RGYW decided as he had indicated, “not to allow her to” move to New Zealand, the Tribunal considers that this is a personal choice of RGYW but it is not the way it has to be, as the Partner has given evidence she was prepared to move to New Zealand. The Tribunal notes that with respect to the Partner, who has no dependents, she may visit RGYW in New Zealand to provide further emotional support during that initial one or two-year period before relocating and to continue their relationship.
The Partner gave evidence that she needed to remain to support her parents and in particular, her father who is unwell. However, the Tribunal has not placed great weight on this consideration. The Partner is not living in the same city as her parents and she gave evidence that she visits her parents only four times per year. The Tribunal also notes that and flight times and costs from Melbourne to Brisbane are not substantially less than it would be for a flight from New Zealand to Brisbane.
In terms of RGYW establishing initial basic accommodation, social supports and community supports, the Tribunal has taken into account the support that is likely to be provided by the Corrections Officer if a supervision order is made with respect to RGYW upon his return to New Zealand as referred to in Exhibit “A9” as set out in paragraph [161]. The Tribunal also notes the reference in that government publication that, “work and income in New Zealand is like Centrelink in Australia”.
The Tribunal has taken into account all of the matters referred to in paragraphs [177181] to [189] and concludes that consideration under paragraph 14.5 of Direction no.65 does not weigh in favour of revoking the cancellation of the RGYW’s visa.
CONCLUSION
The Tribunal did not reach its decision in this application without considerable deliberation, given the significant ties that RGYW has with Australia. RGYW’s de facto partner, sisters and their families are citizens of and based in Australia and I am mindful of the impacts that this decision will have on both RGYW and on each of those family members. RGYW was received his education in Australia and for periods of time, worked in Australia. He has not lived in any other country except New Zealand while he was an infant.
The Tribunal recognises RGYW’s unfortunate history in terms of his troubled childhood and particular difficulties experienced as he transitioned into adulthood particularly in light of the frequent trauma he experience with the death of many of his family members and friends. The Tribunal is moved by the challenges and unfortunate circumstances that have confronted RGYW, particularly with having been the victim of sexual abuse at a young age and beyond childhood; physical assault, homelessness, exposure and addiction to drugs and the negative influences on his life as he lived in “squats”, on the streets and in shelters.
The Tribunal is mindful that if RGYW is deported he will be without the support of his family or his friend who gave evidence in this application. Although his symptoms are limited at the present time, RGYW has significant medical and therapeutic needs arising from multiple underlying mental health conditions. He has experienced problems with drug addiction for most of his life which also makes RGYW particularly vulnerable. The Tribunal accepts that this will make it difficult for RGYW to establish himself in New Zealand without the immediate support of Partner and family members and being in an unfamiliar environment. However, the Tribunal does not find that RGYW will suffer any harm likely to give rise to international refoulement obligations.
Despite RGYW’s significant ties to Australia and the difficulties he is likely to face when deported to New Zealand, there are two primary considerations and some other considerations that weigh against revoking the cancellation decision (and outweigh the above considerations).
RGYW considers that he has turned a corner both with respect to his drug addiction and also that he will no longer offend if released back into the Australian community. However, on the evidence, the Tribunal is not satisfied that RGYW will continue to avoid future problems with drug dependency. Those dependencies, should they arise, are likely to lead RGYW to re-offending. While RGYW has shown in recent times a successful and commendable withdrawal from all drugs, including Methadone, the Tribunal is mindful that it has been in the context of a structured setting in prison which will not exist for RGYW to the same degree if released into the community. The Tribunal acknowledges that RGYW did not offend while he was on bail before the trial for the 2016 offence, however, at that time, he was acutely aware of the immediate and likely cost of him doing so with respect to the criminal prosecution he was about to face.
There was insufficient evidence before the Tribunal to be satisfied that RGYW is unlikely to re-offend upon being release into the community. The reference in the sentencing remarks in February 2017 to the Psychologist being “guarded” with respect to the risk of recidivism after examining RGYW diminished the Tribunal’s confidence that RGYW would not reoffend in the future.
However, RGYW’s consistent criminal history over the past 25 years speaks for itself. Despite the efforts at rehabilitating RGYW and the multiple warnings issued to him of the repercussions of continuing to offend, RGYW did not respond to that rehabilitation or heed those warnings. The Tribunal is satisfied that the risk of RGYW re-offending is high, or at best, medium, if he is released into the Australian community. The Tribunal considers the offences committed by him were serious despite them predominately being property offences. Many of them resulted in RGYW serving significant periods of imprisonment.
The Tribunal finds that the good order of the Australian community is at risk if RGYW is not deported and that this risk is unacceptable. Further, the Tribunal is satisfied that the Australia community would expect to be protected from such criminal activity, particularly in consideration that RGYW has been afforded three chances, by way of the three formal warnings issued to him by the Department, so he was aware that any further offending would jeopardise his visa and may result in him losing the privilege of living in Australia.
The Tribunal recognises that in the event that RGYW is no longer in the same country as his family members, it is likely to have a detrimental impact both on him and on them. However, Partner has indicated that she will probably move to New Zealand even though it might take her a few years to do so. Sister 1 has also indicated that she will go to New Zealand to help RGYW establish himself, “if she has to”. It is most fortunate that New Zealand is a neighboring country with regular flights available, some of them being less than the cost of flying from one coast of Australia to the other. The Tribunal notes that RGYW family and friends are based on the East coast of Australia. The Tribunal notes that RGYW’s Partner and family members are all employed on a full-time basis and receiving a regular income. The Tribunal is satisfied that RGYW’s family and friends are likely to have the financial means to fund visits to New Zealand to support RGYW.
The Tribunal concludes that there is not another reason why RGYW’s visa cancellation should be revoked.
For the reasons set out above, the Tribunal affirms the decision of the delegate of the Minister not to revoke the cancellation of RGYW’s visa.

I certify that the preceding 201 (two hundred and one) paragraphs are a true copy of the reasons for the decision herein of Member K Parker.

.............................[sgd]...........................................
Associate
Dated: 3 July 2018

Date(s) of hearing: 18 and 27 June 2018

Counsel for the Applicant: Self-represented

Solicitors for the Applicant: Self-represented

Advocate for the Respondent: Rachel Noronha

Solicitors for the Respondent: Clayton Utz

Date(s) of hearing:	18 and 27 June 2018
Counsel for the Applicant:	Self-represented
Solicitors for the Applicant:	Self-represented
Advocate for the Respondent:	Rachel Noronha
Solicitors for the Respondent:	Clayton Utz