Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 370
•27 February 2020
Robinson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 370 (27 February 2020)
Division:GENERAL DIVISION
File Number: 2019/8304
Re:Mr Beau Robinson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Senior Member Belinda Pola
Date:27 February 2020
Place:Brisbane
The decision under review is affirmed.
..........................[sgd]................................
Senior Member Theodore Tavoularis
............................[sgd]..............................Senior Member Belinda Pola
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmedLegislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs[2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
Senior Member Belinda Pola27 February 2020
INTRODUCTION AND BACKGROUND
Mr Beau Robinson (the ‘Applicant’) is a 31 year old New Zealand citizen. Movement records indicate that the Applicant was first granted a Class TY, Subclass 444 Special Category (Temporary) visa (the ‘visa’) on arrival into Australia on 4 March 1990[1].
[1] Exhibit G1, PG21, page 81. Note: The Applicant was last granted a visa on 21 March 2017, on re-entry into Australia (Exhibit G1, PG21, page 78).
The Applicant has a criminal history in Australia commencing in February 2014 through to February 2019, having committed 17 offences during this time. Significantly, some of these offences included serious domestic violence, stalking and intimidation, wilful damage and property related offences, drug offences, and serious traffic offences[2]. The offending culminated in the Applicant being sentenced to a term of 18 months imprisonment on 25 February 2019.
[2] Exhibit G1, G10, pages 53 and 54; Exhibit R2, TB1, pages 1 to 22; and Exhibit R2, TB5, page 181.
While serving a term of imprisonment, a delegate of the Minister, pursuant to s501(3A) of the Migration Act 1958 (Cth) (the ‘Act’), decided on 9 May 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test[3] (“the Visa Cancellation Decision”).
[3] Exhibit G1, G5, pages 11 to 28.
On 13 May 2019, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa. The delegate of the Minister decided on 29 November 2019, pursuant to s501CA(4) of the Act not to revoke the cancellation of the subject visa.[4]
[4] Exhibit G1, G9.
The Applicant lodged an application with this Tribunal on 13 December 2019 seeking a review of the abovementioned decision not to revoke the cancellation of his visa.[5] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[6]
[5] Exhibit G1, G2.
[6] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The Application was heard in Brisbane on 17 February 2020 with the Applicant appearing via video link, and represented in person by Ms Jennifer Samuta, of Samuta McComber Lawyers. The Respondent was represented in person by Mr Ben Dube of Sparke Helmore Lawyers. The Tribunal heard oral submissions made by and on behalf of the Applicant, the Applicant’s witnesses, and on behalf of the Respondent, in addition to submitted written evidence, as outlined in the Exhibit Register in Annexure 1 of these Reasons.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s501CA(4) of the Act. Relevantly, this provides that:
(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.
There is no question that the Applicant made the representations required by s501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, the Tribunal must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[7]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[8]
[7] [2018] FCAFC 151.
[8] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[9] The Tribunal will address each of these grounds in turn.
[9] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s501(6) of the Act. Under s501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s501(7)(c) of the Act, which 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”.
The Applicant helpfully conceded that as at the date of the Visa Cancellation Decision he:
(a) had a substantial criminal record as defined through s501(7)(c);
(b) did not pass the character test as prescribed by s501(6)(a); and
(c) was serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the state of Queensland.
The Applicant also conceded that the Visa Cancellation Decision was properly made under s501(3A) of the Act[10].
[10] Exhibit A1, paragraphs 5 and 6.
Consequently, the Tribunal is satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s501CA(4) of the Act, the Tribunal is bound by s499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application[11]. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[12]
[11] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[12] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(iv)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;
(v)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;
(vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
The Tribunal will now turn to addressing these three Primary Considerations.
Primary Consideration A – Protection of the Australian Community
In considering Primary Consideration A, paragraph (13.1.1) of the Direction, compels decision makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege on non-citizens. This paragraph stipulates an expectation that those non-citizens are, and have been law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents:
(a) His criminal history which appears in a document entitled “Check Results Report” from the Criminal Intelligence Commission”[13];
(b) The Respondent’s Tender Bundle of material, which contains[14]:
(i) extract of records produced under summons by New South Wales Police Force;
(ii) extract of records produced under summons by Bankstown Local Court;
(iii) extract of records produced under summons by Maroochydore District Court;
(iv) extract of records produced under summons by Queensland Police Service; and
(v) extract of records produced under summons by Ipswich Magistrates Court.
(c) Sentencing remarks of His Honour, Judge Cash QC (DCJ), when the Applicant was sentenced for unlawful stalking on 25 February 2019[15].
[13] Exhibit G1, G10, page 53 and 54.
[14] Exhibit R2, pages 1 through to 188.
[15] Exhibit G1, G12, pages 57 to 61.
The Nature and Seriousness of the Applicant’s Conduct to Date
Chronological Summary of the Nature of the Offending
The Applicant gave oral evidence at the hearing. He was questioned about his offending, by both legal representatives. In essence, the Applicant either (1) conceded commission of the given offence or offences that were to put to him, (2) accepted the level of seriousness of that offending, and (3) in certain circumstances either denied or could not recall the specific circumstances in which a given offence was committed.
The Tribunal agrees with the Respondent’s contention to the effect that there is very limited information as to any explanation for the Applicant’s offending, and that the Applicant’s offending should be viewed as ‘very serious’[16]. Such a finding is, to the Tribunal’s mind, supported by an application of the relevant sub-paragraphs in paragraph 13.1.1(1) of the Direction. Those relevant paragraphs comprise:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
…
[16] Exhibit R1, page 4, paragraph 18.
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
The primary source of the Applicant’s offending in relation to violence and/or women derives from the nature of his inter-personal relationships, and how he has dealt with difficulties and impasses that have been presented to him via those relationships. His unorthodox, and ultimately unlawful, methods of resolving those differences are the primary basis of his offending history.
There are numerous instances of this type of offending in the Applicant’s history. First, it can be noted that the Applicant received a significant custodial term of imprisonment for stalking. The circumstances of this offending can be readily understood from the sentencing remarks of His Honour Judge Cash QC (DCJ) made on 25 February 2019[17]:
[17] Exhibit G1, PG12, pages 58 and 59.
“The circumstances of the offence relate to what one hopes is now your former partner, with whom you had been in a relationship at times over a fairly lengthy period of time, and from that your relationship you have two daughters with the victim of your offending. In late 2016, you and she had separated. It seems, as I have said, for the final time. You, though, engaged in conduct that resulted in there being a protection order that was made – the one which I have referred to – that was made in the Magistrates Court at Ipswich on 21 November 2016.
The present offending occurred then in breach of that order and commencing in March of 2017, when, after having the care of the children through a contact arrangement, you were returning them to your former partner at the Sunshine Coast. As you were driving up from Brisbane to return the children, you spoke to her on the telephone. You threatened not to return the children and while you were on the phone, she heard you say to the children:
“I’m going to kill mummy and when she gets a new boyfriend I’m going to kill him and burn your house down.”
It is not suggested, of course, that you intended to carry out that threat but anyone who reflects upon it, including you, would have to be aware of the trauma that making that kind of statement would have caused to your former partner.
I have discussed with the lawyers the issue that that threat of violence is not something which is alleged particularly in the charge that is made against you, but the view that I have taken is that in circumstances where there is no dispute that you have said those things – you say you do not remember them but you do not dispute saying it – there is no unfairness to you in me having regard to that as being a factor that is to be considered in assessing the overall seriousness of your conduct, even though it has not been particularly charged in the indictment.
That, of course, was not the end of it, as far as the offending is concerned. Only a couple of days later, your made some 34 calls to the complainant’s phone and from the beginning of April, you would call her up to 20 times a day with the complainant usually letting the calls run out.
On 2 April, things appear to have escalated. On that day, and till the following day, you made some 250 calls and also sent about 60 text messages to her. This continued over the course of the next several days, with there being frequent telephone calls and frequent messages where you were, in effect, lamenting the position in which you found yourself.
The messages resulted in the complainant, understandably, feeling scared and unsafe. She was afraid that you would come to her home and that resulted in her, in early April, going to the Nambour station to talk to the police. While she was there, you called her several times. A police officer there answered a call and tried to talk to you, warning you that your conduct was in breach of the protection order and might be stalking, and you respond by yelling, “I don’t care”.
The truth of that statement was illustrated by your continuing harassment of the complainant, when, after leaving the police station, she received another 21 phone calls and 21 text messages that day. The next day, 18 calls and 47 text messages. The day after, 70 calls. And then, between a few hours on 6 April, 131 calls. There were further messages and phone calls over the following days until 9 April 2017 when you were issued with a notice to appear in relation to the stalking offence.”
The circumstances of this offending are, on any objective view, very serious. The Applicant committed this offence in clear contravention of an existing protection order made in November 2016, and to which he was still subject. As well, the material submitted to the Tribunal appears to confirm the Applicant openly threatened to kill his former partner, and accordingly, the provisions of sub paragraphs (a) and (b) are engaged as a result of the violence expressed by the Applicant in this threat. The threat not only was designed to make its target fearful for her life, it was also, notably for present purposes, made against a woman and as such, must be viewed very seriously.
His Honour, Judge Cash QC (DCJ), reached a similar conclusion about this offending[18]:
“The stalking offence that you committed, of course, is a serious one. It is punishable by up to seven years imprisonment. And it had a significant effect upon your former partner, who, in a victim impact statement, speaks particularly of feeling helpless and scared, not just for herself but also for your two young daughters. And you have probably had the chance to think about this – if you have not, you should – think about not just the effect of what you did on your former partner, but how distressing it must have been for your two young daughters and what they must have thought of their dad for doing this kind of thing.”
[18] Exhibit G1, PG12, page 60.
Second, the Applicant was dealt with for two further contraventions of a domestic violence order on 23 November 2018 at the Ipswich Magistrates Court. This offending involved the Applicant breaching a domestic violence order that had been taken out against him by his own mother. The offending involved the Applicant making a demand upon his mother for money. When a difficulty was presented to him in the form of her refusal to accede to that request, the Applicant resorted to his familiar methods of dealing with it. The relevant Queensland Police Services Court Brief records that[19]:
“At around 7.00pm on Sunday the 4th February 2018, the defendant contacted his mother, the listed aggrieved, via text message asking for money however she declined telling him that he needs to get a job. The defendant replied with a barrage of abusive messages, including calling her a ‘bitch’ and a ‘cunt’ and further stating ‘I’m going to come to the house while you’re at work and burn it down’.
The defendant arrived at the aggrieved address of [omitted] a short time later and walked into the house unannounced and straight into the garage. The aggrieved followed and told the defendant to get out, however he refused saying “you can’t make me”. The aggrieved grabbed the offender in attempt to remove him, however he shoved her out of the way using one hand to the chest. The aggrieved went to the bedroom to and picked up her mobile telephone to call *000 for police, however the defendant followed and snatched it from her preventing her from doing so...
The defendant went back to the garage and collected a jerry can (had ran out of fuel in his vehicle nearby) before exiting through the garage roller door. The aggrieved attempted to put the roller door down to stop him from coming back in, however the defendant grabbed the door and tried to hold it open. The aggrieved put further force on the door competing against the defendant trying to open it before it was fully closed and secure with the defendant locked outside. The defendant walked away, with the aggrieved able to get in her car and drive to a nearby police station.”
[19] Exhibit R2, TB4, page 106.
Third, on 26 June 2018, the Applicant again contravened a domestic violence order, this time against his former partner. The Applicant’s former partner had allowed the Applicant to stay at her address for a few months as a means of assisting him at a time of need (for him). This domestic arrangement did not end well. According to the relevant Queensland Police Services Court Brief Narrative[20]:
“The Aggrieved continued to state the defendant had taken several property items including a Bose speaker. The Aggrieved text messaged the defendant on the 25th of June 2018 stating that he is no longer welcome at the address and to return the speaker. The Aggrieved explained that at about 7.00am on the 26th of June the defendant attended her address and knocked on the rear door. The Aggrieved asked through the door for the speaker to which the suspect replied it’s up the road and demanded his property to be returned and then the speaker would be returned. The Aggrieved placed the defendant’s property under the garage door for the suspect to obtain. The garage door is divided by a screen door which the Aggrieved kept closed. The defendant has asked for the Aggrieved’s Medicare card to which she replied with “no” the defendant has then threatened “if you don’t give me it I’ll trash the place”. The Aggrieved contacted ‘000’ as the defendant has previously carried out the threat.
The defendant had left the premises before Police arrival with an arrest warrant sought for the defendant’s apprehension for this matter.
On the 20th day of August 2018 police intercepted the defendant on Brisbane Road Redbank where he was arrested on outstanding warrants.”
[20] Exhibit R2, TB4, page 94.
Fourth, the Applicant was dealt with by the Bankstown local court, on a charge of Stalk/intimidate intend fear physical harm etc (domestic) on 27 February 2014. According to relevant New South Wales Police Fact Sheet, the Applicant and his former partner became engaged in a domestic argument and, similar to circumstances of his offending in June 2018, his former domestic spouse asked him to leave the subject premises.
Once again, the Applicant sought to resolve an impasse or difficulty by means of violent, threatening and intimidatory conduct. On 6 February 2014, he took it upon himself to lose control of his temper and to then punch a bedroom door with his fist, creating a 30-50cm hole in that door. The victim (ex-partner) understandably sought refuge from the Applicant’s conduct and removed the two infant children present during this episode to the other side of house. The victim was obviously in fear of both her own and the children’s safety. The subject New South Wales Police Fact Sheet summary of this offending makes for sobering reading[21]:
“Whilst the Victim was hiding her children, the Accused has completely trashed the Victim’s bedroom, removing all the clothes from the wardrobe and throwing around the room. Whilst doing this, the Accused has damaged a wardrobe drawer, damaging the bottom shelving. The Accused has also knocked over a large television onto the bedroom floor, damaging the speakers on the left hand side of the television. The Accused has then collected a large amount of the Victim’s brassieres and has placed them in the bathroom toilet.
The Accused has continued to argue and swear at the Victim, before throwing the Victim’s personal clothing outside the premises, and onto the front lawn. The Accused has returned inside the premises and stood face to face with the Victim. The Accused has raised his right fist next to his own face and said to the Victim, “I’m going to fucking kill you, I’m going to murder you. I’m going to go Jake the Musk on you”.
The Victim has raised her hands around her head to defend herself as she believed the Accused was about to strike her. The Victim has begun crying and shaking and tried to calm the Accused.
…
The Victim has returned to her home and noticed the Accused and “Stevie” were packing the Accused’s possessions and leaving. Both the Accused and “Stevie” laughed at the Victim as she was crying and comforting her children.…
The Victim fears for her safety and the safety of her children as the amount of aggression displayed by the Accused due to an argument over ongoing issues went too far. The Victim fears that the Accused may escalate his aggression and may physically hurt her or her children in future. Police believe that an urgent Apprehended Violence Order is required to ensure the safety of the Victim and her children.”
[21] Exhibit R2, TB2, pages 25 and 26.
Having regard to the circumstances of the Applicant’s violent attacks against both his mother and his former domestic spouse and his propensity to place no boundaries around that offending such that it can draw children into its orbit (as it did) is, to the Tribunal’s mind, confirmative of a finding that (1) his offences against his female domestic spouse and his mother are, indeed, of a violent nature; and (2) an application of both sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction clearly militates in favour of a finding that the nature of the Applicant’s offending conduct is indeed very serious.
The Tribunal has had regard to the provisions of sub paragraph (c) of 13.1.(1) and is of the view the factual circumstances of the Applicant’s offending do not attract the application of this sub paragraph, as determinative of the nature or seriousness of the Applicant’s offending.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Tribunal has had regard to the Applicant’s movement records, since his initial arrival in Australia on 4 March 1990. He has then departed and returned to Australia as follows[22]:
[22] Exhibit G1, PG21, pages 78 to 81.
·Arrived in Australia on 4 March 1990;
·Departed Australia on 18 August 1990;
·Arrived in Australia on 26 August 1990;
·Departed Australia on 18 June 1992;
·Arrived in Australia on 25 June 1992;
·Departed Australia on 17 October 1992;
·Arrived in Australia on 13 June 1993;
·Departed Australia on 20 March 2007;
·Arrived in Australia on 18 April 2007;
·Departed Australia on 17 October 2007;
·Arrived in Australia on 27 October 2007;
·Departed Australia on 27 February 2008;
·Arrived in Australia on 2 March 2008;
·Departed Australia on 26 February 2009;
·Arrived in Australia on 2 March 2009;
·Departed Australia on 17 March 2017; and
·Arrived in Australia on 21 March 2017.
His Movement Records indicate that the Applicant has spent approximately 26 of his 31 years in Australia. He was taken into criminal custody on 25 February 2019, and upon his parole release date (24 August 2019), he was taken into immigration detention. This means that the Applicant has been a member of the mainstream Australian community for the majority of this life. Approximately ten of these years have been spent in the mainstream Australia community as an adult. His criminal history commences in February 2014, when the Applicant was aged 25 years. His subsequent sentences demonstrate that offending has very significantly figured in the Applicant’s adult life in this country, and thus militates in favour of a finding that the nature of his offending has been very serious.
As mentioned, his offending history runs from February 2014 until February 2019. He is now 31 years of age. His offending history commenced when he was 25 years of age. His offending is not the result of youthful indiscretions or him otherwise being subject to being led astray by any bad company he was keeping. We are of the view that at the age of 25, with the responsibilities of domestic relationship and two infant children, the Applicant was well and truly old enough and mature enough to understand what he was doing and its consequences. His violent offending committed against both his former domestic partner and his mother is so significant and so concentrated across its five year history, that it is not either unreasonable or incorrect to observe that it has dominated his adult life in this country.
The offending history involves some seven sentencing episodes that dealt with at least 17 individual offences. As the Tribunal outlined earlier, this offending history has culminated in a custodial term of 18 months. We are mindful that a parole release date came into operation after the Applicant had served six months in actual custody. Against this, the Tribunal is also mindful that the Applicant’s offending has seen him before lawful authority on at least seven occasions across the five year period of his criminal history. That five year period has also seen lawful authority deal with approximately 17 offences.
The Tribunal is of the view that having regard to the relatively intensive nature of the Applicant’s offending from 2014 to 2019, sub-paragraph (d) militates for no other finding than that this Applicant’s offending is indeed of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
First, the Tribunal has had regard to the frequency of the Applicant’s offending. The Applicant arrived in Australia as a 15 month old infant in 1990. He has been an adult in Australia since approximately 2007. During his adulthood in this country he has committed at least 17 separate offences and has been dealt with by lawful authority for that offending on at least seven separate sentencing occasions. His offending as an adult in Australia has seen him before lawful authority as follows:
·2014 – One sentencing episode, for two separate offences.
·2016 – One sentencing episode, for two separate offences.
·2018 – Three separate sentencing episodes, for 11 separate offences.
·2019 – Two separate sentencing episodes, for two separate offences.
Across the approximately 30 years the Applicant has spent in this country, his offending history may, on a conservative view, not be regarded as overly frequent. However, it should be remembered he arrived here as a 15 month old infant in 1990. The impression to be taken from the frequency of his offending in this country as a proportion to the time he has spent here as an adult leads to a different outcome. He has spent approximately 12 years as an adult in the general Australian community. At least five of those 12 years have been spent offending, often very seriously so. As an adult, the Applicant has been offending for just under half of his time in this country. The Tribunal is of the view that the Applicant’s offending conduct has been of a frequent nature.
Second, the Tribunal has sought to discern any increasing level of seriousness in the Applicant’s offending history. The Tribunal has had regard to the Applicant’s offending history as a whole. While it can be said that there are certain less serious instances of offending in that history such as a failure to appear in accordance with a bail undertaking, and a refusal to follow a direction or requirement of lawful authority, it cannot be said that the Applicant history starts at a low level of seriousness and then somehow evolves into more serious offending.
It is clear that his offending is serious, indeed very serious, from its outset. The Applicant’s above described conduct in February 2014, was both extraordinary in terms of its brazen disregard for the safety of his former partner and their infant children, as well as the property that he wantonly damaged. We stress that this conduct appears at the beginning of the Applicant’s offending history. This early conduct is a disturbing precursor to his violent conduct against his mother on 4 February 2018; then against his former partner on 26 February 2018; and then, ultimately, the stalking offences against his former partner for which an 18 month custodial term was imposed on 25 February 2019. It is, to the Tribunal’s mind, notable from the offending history of this Applicant, that his offending does not begin with low-level misdemeanours. Rather, its theme of violence, and extreme imposition of his will upon someone else to resolve a difficult situation, is present from its beginning. The history is peppered with perhaps less serious offending, in the form of (1) possession of drug – related utensils [2016]; (2) breaches of bail [August 2018], (3) contravention of a lawful direction by police [November 2018]. Be that as it may, the Tribunal stresses that the violent aspects of the Applicant’s offending (especially in a domestic context) is the predominant theme of his offending from its beginning.
Thus, an application of this sub-paragraph (e) leads the Tribunal to an inevitable finding that both the frequency of the Applicant’s offending and its consistent level of seriousness, is such as to attract a finding that his offending has been of a very serious nature.
With further reference to this sub paragraph (e), the Tribunal notes that the Applicant has a record of offending as a juvenile. Although not ventilated at the hearing either in oral evidence or in the written material, there is evidence of the Applicant having committed a range of offences prior to his obtaining the age of majority. This offending occurred in New South Wales. It can be summarised thus:
·In 2002 (Applicant aged 13), there is a police record of the Applicant being involved in an incident described as ‘actual malicious damage’. The conduct involved malicious damage to a certain bus shelter, the Applicant was one of “two persons of interest” and is alleged to have thrown a rock at the glass portion of the bus shelter structure resulting in the smashing of that glass. The police narrative notes that the Applicant and another person committed the offence while “… leaving High School after attending classes for the day”[23].
·There is another police narrative dating from 2002 (specifically 9 November 2002), involving the Applicant and another offender physically attacking a member of the public. This conduct is recorded as “actual assault”. According to the police narrative:
“The victim has attempted to walk past the POI’s, where POI 1… has grabbed the victim and pushed him towards the ground. The victim has tried to stand, however the POI has again pushed the victim to the ground. The victim states that the POI has been generally pushing and shoving the victim around, refusing to let the victim continue onto school. At this stage, POI 2, Beau Robinson has begun pushing and shoving the victim around. With the assistance of POI 2, POI 1 has grabbed the victim around the neck and has pushed his face toward the overpass, making the victim look over the edge, a substantial drop to the ground. At this stage, a member of the public has entered the pedestrian overpass and both POI’s have released the grip on the victim and began walking to school.”[24]
· While a 17 year old, there is evidence in the material that on 13 November 2006 the Applicant admitted to conduct amounting to “actual break and enter”. Police observed the Applicant entering certain school grounds without permission, entering the hall building of the school without permission, and having possession of house breaking implements. The police narrative notes that the Applicant received a caution for entering premises with intent to steal and for possession of house breaking implements[25].
[23] Exhibit R2, TB1, page 16.
[24] Exhibit R2, TB1, pages 15 and 16.
[25] Exhibit R2, TB1, pages 13 and 14.
The Tribunal is of the view that the Applicant’s offending as a juvenile augments our finding with regard to the weight attributable to this sub paragraph (e) that the frequency of the Applicant’s offending is indicative of the very serious nature of that offending.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
The Applicant has a five year criminal history. In the course of that history, he has received the benefit of (1) good behaviour bonds, (2) several ‘no conviction recorded’ notations; (3) the imposition of fines; and (4) probationary sentences requiring him to complete a duly ordered period of community service. He has been given numerous different sentencing opportunities to moderate his conduct and to otherwise get on top and address the issues predisposing him to offend. Despite the best efforts of sentencing judicial officers, reasonably and correctly applying a range of sentencing regimes, the Applicant seems to have taken nothing from those opportunities. His very serious offending commenced in February 2014, and continued right up until his sentencing in February 2019.
During this period, the Applicant did not develop any measure of respect for lawful authority or the property rights of others. The criminal history demonstrates a refusal to comply with bail conditions granted to him, repeated refusals to comply with requests from lawful authority to do or refrain from doing something, along with at least three offences relating to stealing. In addition to his failure to learn anything from moderate sentences, a further cumulative effect of his offending has caused him to not respect lawful authority or the rights members of the community have in relation to the property they own.
A further cumulative effect of the Applicant’s offending is consequential upon his refusal to respect lawful authority. In particular, his traffic history reveals a marked and historical lack of respect for the rules governing the operation of a motor vehicle on Australian roads. The Applicant’s convictions in regard to driving offences are summarised as follows[26]:
[26] Exhibit R2, TB1, pages 1 to 22; and Exhibit R2, TB5, page 181.
·29 March 2014 (NSW), Driving on a suspended licence;
·6 November 2017 (NSW), Major Traffic Crash, “Driver1 rolling a cigarette while driving and collided head on with a telegraph pole... Police decided to conduct a vehicle search. During the search, police located a backpack in the boot of the vehicle, containing a number of empty resealable plastic bags, several ice pipes and syringes…”;
·11 October 2017 (NSW), Driving with expired licence;
·22 October 2017 (NSW), Driving with expired licence;
·27 January 2018 (QLD), Driving without a licence demerit points (Qld Licence);
·27 January 2018 (QLD), Offence of driving etc, while relevant drug is present in blood or saliva, holder of learner, probationary or provisional licence;
·2 March 2018 (QLD), Diving without a licence demerit points (Qld Licence);
·7 March 2018 (QLD), Driving without a licence demerit points (Qld Licence);
·26 March 2018 (QLD), Driving without a licence demerit points (Qld Licence); and
·27 March 2018 (QLD), Driving without a licence demerit points (Qld Licence).
The cumulative effect of the nature and extent of the Applicant’s repeated offending clearly attracts application of this sub-paragraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction asks a decision-maker to determine whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
Evidence presented to the Tribunal discloses an incoming passenger card completed by the Applicant and dated 21 March 2017[27]. There is a contention against the Applicant that he falsely completed this incoming passenger card upon his re-entry into Australia on this date. The card asked the Applicant, “Do you have any criminal conviction/s?”. He responded with, “No”. It is obvious that at the time of the Applicant’s completion of the subject card (21 March 2017), he knew he had appeared before lawful authority for sentencing on at least two prior occasions (in 2014 and 2016) involving the commission of at least 3 offences.
[27] Exhibit G1, G13, page 62.
The Applicant conceded he provided false or misleading information to the Department, but it was contended on his behalf that this was “not intentional but a result of the Applicant’s low literacy and subsequent misunderstanding”[28]. The Tribunal has misgiving as to the veracity of this contention, in circumstances where, on a plain reading of the terms of the subject passenger card, it would have been very unlikely that the applicant either misunderstood or could not comprehend (1) the question and (2) the options available to him in terms of a response – either “Yes” or “No”.
[28] Exhibit A1, paragraph 57.
A more credible contention may have been that the Applicant answered “No” on this card because his offending in 2014 and 2016 (predating the subject card) involved the imposition of penalties in the form of good behaviour bonds and/or a fine with a “no conviction recorded” notation. No such contention was put on behalf of or made by the Applicant.
It is the Tribunal’s view that the Applicant’s conduct in providing false and misleading information about his criminal offending in the subject incoming passenger card attracts the application of this sub-paragraph (g) in favour of a finding that his conduct is of a very serious nature.
The Tribunal is of the view that the factual circumstances of the Applicant’s offending do not attract the application of sub paragraphs (h) and (i), as determinative of the nature or seriousness of the Applicant’s offending.
The chapeau to the factors at paragraph 13.1.(1) of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[Tribunal’s underlining]
The material discloses that a portion of the Applicant’s violent offending towards his former partner occurred in the presence of their two infant children. For example, his offending on 25 February 2019 (as previously outlined in this Decision) occurred in the presence of his two infant children, and, as noted by the learned Judge Cash QC (DCJ) in his sentencing remarks[29]:
“… You threatened not to return the children and while you were on the phone, she heard you say to the children:
“I’m going to kill mummy when she gets a new boyfriend and I am going to kill him and burn your house down.””
[29] Exhibit G1, PG12, page 58.
By way of further example, while committing violent conduct towards his former partner on 6 February 2014[30], the Applicant caused his former partner to start crying while at the same time, “… comforting her children”. The police facts sheet discloses that his former partner was fearful for her own safety and that of her children. The intervening police must have been of a similar view because the facts sheet notes that “police believe that an urgent apprehended violence order is required to insure the safety of the Victim and her children”.
[30] Exhibit R2, TB2, pages 25 and 26.
There are, to the Tribunal’s mind, additional elements of the Applicant’s offending that fall within the chapeau to paragraph 13.1.1(1) of the Direction. We summarise those elements:
·23 July 2004 – Public transport fare evasion;
·1 August 2006 – Riding a bicycle without wearing necessary safety helmet;
·15 October 2006 – Police exercise “move on” powers towards the applicant to cease his harassing conduct towards another person;
·1 October 2007 - Public transport fare evasion;
·1 February 2008 - Public transport fare evasion;
·8 January 2010 - Public transport fare evasion;
·9 June 2010 - Public transport fare evasion;
·17 July 2010 - Public transport fare evasion;
·13 August 2010 - Public transport fare evasion;
·26 August 2010 - Public transport fare evasion;
·1 September 2010 - Public transport fare evasion;
·2 October 2011 – Resisting arrest;
·13 January 2013 - Public transport fare evasion; and
·30 April 2013 - Public transport fare evasion.
While this conduct may not necessarily fall within the specific parameters of any of the nine sub paragraphs of 13.1.1(1) the Tribunal is nevertheless of the view that this conduct does come under the above-mentioned chapeau to the factors outlined in paragraph 13.1.1(1). While not determinative, these additional elements to the Applicant’s offending are, when read in conjunction with the Tribunal’s findings about the relevant sub paragraphs of 13.1.1(1) of the Direction, relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
Having regard to (1) the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e), (f), and (g) of paragraph 13.1.1(1) of the Direction are relevant, and (2) the ‘other conduct’ from 2004 to 2013 (as particularised above), the Tribunal is of the view that the Applicant’s conduct is readily capable of characterisation as ‘very serious’.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires the Tribunal to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires the Tribunal to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent has contended that[31]:
“… the nature of the harm if the applicant were to reoffend is serious and could involve the physical and psychological harm to members of the Australian community with adverse consequences for public health, the justice system and the general incidences of violent crime. The nature of the harm were the applicant to reoffend is evident from the victim impact statement before the Maroochydore District Court provided by the applicant’s ex-partner… She described suffering emotional harm for five years, feeling helpless, scared, requiring counselling and suffering from depression and anxiety because of the applicant’s conduct.”
[31] Exhibit R1, page 7, paragraph 26.
Apart from the Applicant’s own contentions and those of his mother, there is no evidence before the Tribunal to suggest that the Applicant has overcome his predisposition towards violent behaviour to resolve difficult situations presented to him.
The Tribunal’s view is that this contention is well founded with regard to the nature of the Applicant’s offending to date. The Direction in paragraph 6.3(4) requires decision makers to be guided by the principle that criminal offending 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. The Tribunal is of the view that given the Applicant’s past propensity towards violence and imposing his will upon someone else to resolve a difficult situation, is conduct that, if repeated, poses a significant risk to a member or members of the Australian community – especially women - and children drawn into its orbit. This conduct could result in very serious physical and psychological harm to members of the Australian community. Its level of seriousness would not preclude the risk of catastrophic harm to any future victim.
The Applicant’s criminal history runs from 2014 through to 2019, and has previously been summarised in general terms and with particularity regarding the Applicant’s more serious offences earlier in these Reasons. The nature of the Applicant’s previous offending, especially his very violent offending in a domestic context against women, precludes any finding other than, were it to be repeated, significant harm would result. There is no suggestion in either the history or material more generally that the Applicant has acquired any demonstrated level of respect for the lawful authority governing the Australian community to which he now seeks readmission.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
It is important for the Tribunal to review the Applicant’s position in regard to his views on his own likelihood of re-offending.The Applicant now says he is a changed person and, if returned to the Australian community, would not re-offend. Further, the Applicant now contends that all previous issues and factors predisposing him to offend would no longer be present in future. The difficulty with that contention is that it is not corroborated any independent and expert psychological/psychiatric opinion.
As previously mentioned, the sentencing history of the Applicant indicates he has received the benefit of (1) good behaviour bonds, (2) several ‘no conviction recorded’ notations; (3) the imposition of fines; and (4) probationary sentences requiring him to complete a duly ordered period of community service. None of these non-custodial sentences had the effect either deterring or convincing the Applicant to change his ways. It is clear that he has minimal insight into the factors behind his predisposition to offend, and violently so, against victims, specifically women.
The Applicant says[32]:
[32] Exhibit A2, page 7, paragraphs 73 to 76, 78, 81 and 82.
“I have been sober from all of my addictions for nearly twelve months while I have been in prison, and I have had time to think about my actions.
I never wanted to scare or cause harm to [redacted], or to our children. I can’t believe I behaved like that. I have only positive thoughts towards her now, and I will respect her as a person who has made her own way. I really regret what I did.
I also can’t believe I behaved like that towards my mother.
The charges were completely appropriate given how I was behaving, and I am so ashamed of my behaviour. I was out of control, depressed, and on methamphetamines. I couldn’t cope with the idea that my relationship with [redacted] was over. She was my stability, and I was losing that.
…
I still can’t believe I got so dependent upon methamphetamines. I hated the stuff, and I vowed never to use it, but I got addicted.
…
I was not able to engage in any rehabilitation programs whilst incarcerated as my sentence (to serve) was only 6 months which precluded me from being eligible to partake in coursework. During my time at BITA I have undertaken important rehabilitation efforts. These include:
(a)Men’s Health;
(b)Alcohol Anonymous meetings; and
(c)Anger Management.
I wish to engage in a formal drug rehabilitation program. I know that it will be different given that I am illiterate and have problems paying attention, but hopefully there is someone out there who can help treat me appropriately and then teach me the rehabilitation courses.
These contentions from the Applicant, to our mind, lack both credibility and are simply not corroborated by the evidence, apart from what the Applicant has to say. He may have “… been sober from all my addictions for nearly 12 months while I have been in prison…”. Being drug-free while in the closed confines of criminal custody and immigration detention, does not provide certainty that this situation will persist were he to be returned to the mainstream Australian community.
He speaks of “I have had time to think about my actions”. The difficulty with that contention is there is no evidence the Applicant has conveyed those thoughts to any independent and suitably qualified expert who could analyse and report on those thoughts with particular reference to the extent to which the Applicant may have overcome his difficulties with illicit substances.
The extent of the Applicant’s remorse about his very violent conduct towards his former partner (in the presence of their infant children) and towards his mother, goes no further than him saying he “only has positive thoughts” towards his former partner and that he “can’t believe” he behaved as he did towards his mother.
He also speaks of being ashamed of his behaviour and acknowledges he was “… out of control, depressed, and on methamphetamines”. He said that he hated those drugs and has vowed to never again use them. The difficult with that contention is that there is no other evidence from an independent clinician to corroborate what he says about having overcome his addiction issues.
Most critically for present purposes involving, as it does, the very important exercise of assessing the risk or likelihood of this Applicant reoffending, the Applicant has confirmed he has not been able to engage in any rehabilitation programs due to his incarceration. While he speaks of an engagement with “Men’s Health”, “Alcohol Anonymous meetings”, and “Anger Management”, he confirms that he only has intent at this stage through his comment, “I wish to engage in a formal drug rehabilitation program”. Of greater concern is his evidence that “hopefully there is someone out there who can help treat me appropriately and then teach me the rehabilitation courses”.
The material is not entirely devoid of expert clinical opinion. When the Applicant was sentenced by His Honour Judge Cash QC (DCJ) on 25 February 2019, a psychological report was tendered for the information of the court. The relevant clinician was Dr Minge who found the Applicant to be of a moderate risk of reoffending. The view of the learned Judge Cash QC (DCJ), expressed in His Honour’s sentencing remarks, is respectfully adopted by this Tribunal[33]:
“… the content of Dr Minge’s report suggest that you are someone who is prone to act erratically in circumstances of stress. So there is a need, in my view, to impose a sentence that is a deterrence for you directly but, as well, to deter others who might read about this and who might engage in similar conduct. As well, your actions in relation to this offence and your past history that I have outlined, indicate that you are someone who might face the difficult path to rehabilitation and the need to protect the community is something which is of significance in the sentence.”
[33] Exhibit R2, PG12, page 60.
As to a specific assessment of the Applicant’s risk of reoffending the Tribunal again refers to the sentencing remarks of His Honour Judge Cash QC (DCJ)[34]:
“I have looked at the report of Dr Minge, which sets out your background and, unfortunately, you have a problem with drugs and, unfortunately it seems you probably also have a borderline personality disorder. And those two things come together to mean that you really do not have stability in your life. Your circumstances at the moment are that you are still not working and, as Mr Robinson has told me, you do not really have any place to live.
The difficulty with that – and you do not need me to tell you this – is that if that continues, it is almost inevitable that you are going to get yourself in trouble with the police in some way or another. And that is not going to be to your benefit, and nor is it to the community’s benefit in the long run.”
[Tribunal underlining]
[34] Ibid.
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community.[57]
(b)The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations;[58]
(c)The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the government thinks is the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made;[59]
(d)In assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular subparagraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[60]
[57] Afu at paragraph [85].
[58] FYBR at paragraph [42].
[59] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[60] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant’s evidence to the Tribunal regarding his work history was ventilated at the hearing[61]:
[61] Transcript, 17 February 2020, page 5, lines 2 to 23.
Ms Samuta: And after school, what did you do after school?
Applicant: I started working as soon as I left.
Ms Samuta: What kind of work did you do, Mr Robinson?
Applicant: It was - I started off factory 5 work, but yes, I ended up labouring the majority of my time.
Ms Samuta: Have you held a job for most of that time?
Applicant: Yes. I’ve always had a job.
Ms Samuta: Did you have a job right up until your sentence of imprisonment?
Applicant: No
Ms Samuta: Can you describe just what was going on with your employment history?
Applicant: Well, my last job would have been concrete pumping and I had the split up with the missus and yes, I ended up losing my job.
Ms Samuta: What year would that have been?
Applicant: So, I was out of work - what was that, sorry?
Ms Samuta: What year would that have been?
Applicant: 2016, ‘17, the start of ‘17.
Ms Samuta: Can you explain why didn’t have a job after that period of time?
Applicant: I went into a depression, downhill spiral, after the breakup and I started using drugs and just couldn’t hold a job.
No evidence was submitted to the Tribunal confirming the applicant’s employment history. The Tribunal heard evidence from the Applicant and the Applicant’s mother ), that the Applicant’s mother may be able to get the Applicant a job through her own employer if he was released back into the Australian community.
The Applicant’s very serious offending and unlawful conduct resulting in an extensive criminal history across the past four years, has surely breached the expectations of the Australian community. His offending has been consistent and often very serious. It is clearly demonstrative of his failure to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, the Tribunal takes into account the following factors and/or findings:
(a) The Applicant has made minimal positive contributions to the Australian community[62].
(b) The Applicant has lived in mainstream Australian community for a majority of his life[63].
(c) The removal of the Applicant may have an adverse impact on his two biological children[64].
(d) The very serious nature of the Applicant’s offending to date to other people in the community, most notably his former partner and mother.
(e) The nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority, the personal rights of others, and a refusal to follow the rules governing Australian public roads.
(f) The lack of current, independent and expert evidence (1) addressing the factors giving rise to his propensity to offend, and (2) measuring the level of the Applicant’s insight into the nature and severity of his offending.
(g) The Tribunal’s finding of a strong and convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community.
(h) The Tribunal’s assessments of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[62] The Direction, paragraph 6.3(7).
[63] The Direction, paragraph 6.3(5).
[64] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
The Tribunal is of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. The Tribunal accordingly finds that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant submitted that this consideration is not relevant to his Application before the Tribunal[65].
[65] Exhibit A1, paragraph 74.
(b) Strength, nature and duration of ties
The Applicant was born in 1988, and first arrived in Australia as a 15 month old on 4 March 1990, spending the majority of his life in Australia. In applying paragraph 14.2 of the Direction to the Application before the Tribunal, the Tribunal is required to apply less weight where the non-citizen began offending soon after arriving in Australia (14.2(1)(a)(i)); and apply more weight where a non-citizen has spent time contributing positively to the Australian community(14.2(1)(a)(ii)).
It is the Tribunal’s view that, at best, 14.2(1)(a) would overall be of neutral weight, as the Applicant’s brushes with the law began when he was 13 years old after having arrived as a 15 month old. This is marginally offset by the Applicant’s minimal positive contribution to the Australian community.
In applying paragraph 14.2(1)(b) of the Direction, the Tribunal notes the Applicant has two biological children in Australia. It is clear the Applicant’s biological children would be impacted by the Applicant’s removal from Australia. Assuming that the Applicant’s mother has a right to permanently reside in Australia, we note her evidence to the effect that contact between her and the Applicant would be resumed and maintained were he to remain here. The Tribunal would make similar observations in relation to the Applicant’s aunt.The Applicant’s submission is that he has an “absolute lack of ties in New Zealand”. At best, a slight measure of weight is attributable to this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
The Applicant submitted that this consideration is not relevant to his Application before the Tribunal[66].
[66] Exhibit A1, paragraph 79.
(d) Impact on victims
The Applicant’s representation submitted that “having regard to the totality of evidence, there is no evidence of the impact revocation of the decision to cancel our client’s visa would have on any of his victims. Nevertheless, our client identifies his ex-partner as the victim to his offending and is remorseful for the pain he undoubtedly inflicted on her physically and mentally”[67].
[67] Exhibit A1, paragraphs 1 and 82.
No doubt, victims such as the Applicant’s former partner, who has been on the receiving end of the Applicant’s very serious violent conduct, may have had something to say about the impact of the Applicant’s continued presence in Australia would have upon them.
As previously outlined in these Reasons, the Applicant’s mother was a victim of his crimes, but was nevertheless present and gave evidence to the Tribunal advocating on behalf of her son that he should remain in the country.
However, in the absence of such evidence from the other victims of the Applicant’s offences, it would be irresponsible for the Tribunal to enter the realm of mere conjecture and guess as to the impact of the Applicant’s continued presence in Australia would have on all his past victims. Accordingly, the Tribunal cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa and is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant’s representation submitted that[68]:
“It is submitted that this consideration is relevant to the extent the Applicant will be permanently separated from his children, parents, siblings and extended family. In circumstances where has existing mental health issues, including a documented history of depression with an attempt at suicide in 2017, if he was permanently separated from Australia and his loved ones, the Applicant submits that the potential impact on his mental health is a significant impediment to his returning to New Zealand (in the context of him not being able to ever return to Australia).”
[Errors in original]
[68] Exhibit A1, paragraph 83.
The Applicant is youthful at 31 years of age, and the Tribunal has not been presented with any independent verifiable medical evidence that he is not in good health. Whilst the Tribunal accepts that the Applicant may be faced with some short term hardships upon resettlement in New Zealand, the Applicant is at least familiar with his birth country, having last visited for four days in March of 2017[69].
[69] Exhibit G1, G21, page 78.
The Tribunal does not consider any of the factors appearing in Paragraph 14.5(1) of the Direction to assist the Applicant. He would suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.” [70]
[70] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.
The Tribunal therefore respectfully agrees with the contention of the Respondent[71] to the effect that there are limited impediments to the Applicant being removed to New Zealand, and that this Other Consideration (e) does not weigh in favour of revocation and is neutral.
[71] Exhibit R1, page 12, paragraph 46.
Findings: Other Considerations
With reference to these Other Considerations, I am of the view that to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: is of limited weight.
·Impact on Australian business interests: not relevant.
·Impact on victims: neutral.
·Extent of impediments if removed: neutral.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As the Tribunal have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before the Tribunal, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, The Tribunal has had regard to the considerations referred to in the Direction. The Tribunal finds as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that any of them, even when combined with each other and/or with Primary Consideration B, outweigh the very significant and determinative weight the Tribunal has attributed to Primary Considerations A and C; and
·a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, The Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
“ANNEXURE 1 – EXHIBIT REGISTER”
Exhibit No.
Description
G1
Section 501 G-Documents, received 8 January 2020, paged 1 to 114.
R1
Respondent’s Statement of Facts, Issues and Contentions, received 6 February 2020, paged 1 to 13.
R2
Respondent’s Tender Bundle, received 6 February 2020, including:
· TB1: Extract of records produced under summons by New South Wales Police Force, dated 17 January 2020 (paged 1 to 22);
· TB2: Extract of records produced under summons by Bankstown Local Court, dated 17 January 2020 (paged 23 to 37);
· TB3: Extract of records produced under summons by Maroochydore District Court, received dated 10 Jan 2020 (paged 38 - 57);
· TB4: Extract of records produced under summons by Queensland Police Service dated 14 Jan 2020 (paged 58 - 156); and
· TB5: Extract of records produced under summons by Ipswich Magistrates Court dated 17 Jan 2020 (paged 157 - 188).
A1
Applicant’s Statement of Facts, Issues and Contentions, received 12 February 2020, paged 1 to 12.
A2
Applicant’s Further Evidence intended to be relied on, received 12 February 2020, paged 1 to 15.
I certify that the preceding 168 (one hundred and sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Senior Member Belinda Pola.
...............................[sgd].........................................
Associate
Dated: 27 February 2020
Date of hearing: 17 February 2020 Applicant:
Solicitors for the Applicant:
Appeared via videolink
Ms Jennifer Samuta
Samuta McComber LawyersSolicitors for the Respondent:
Mr Ben Dube
Sparke Helmore Lawyers
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