Ronaki and Minister for Immigration and Border Protection (Migration)

[2018] AATA 427

Ronaki and Minister for Immigration and Border Protection (Migration) [2018] AATA 427 (8 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7652

Re:Rangatira Ronaki  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:R. Cameron, Senior Member

Date:8 March 2018  

Place:Melbourne

The Tribunal affirms the decision under review

........................................................................

Senior Member

MIGRATION - application for revocation of mandatory cancellation of visa – where applicant fails character test - where applicant warned visa may be cancelled - serious criminal offending – offences involving violence – risk of harm if applicant re-offends - unacceptable risk of applicant reoffending -  where Australian community would expect non-revocation - decision affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Re Jupp and Minister for Immigration and Multicultural Affairs [2002] AATA 458

Secondary Materials

Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a Visa under s 501CA (Scott Morrison MP, Minister for Immigration and Border Protection)

REASONS FOR DECISION

R. Cameron, Senior Member
8 March 2018

INTRODUCTION

1. The Applicant Rangatira Ronaki is a citizen of New Zealand who was the holder of a Class TY Subclass 444 Special Category (Temporary) Visa until 29 November 2016 when it was cancelled.

2. On 29 November 2016, a delegate of the Minister for Immigration and Border Protection (“the Minister”) cancelled the Applicant’s Visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) (“the Act”). The Minister’s decision to cancel the Applicant’s Visa was made on the grounds that the Applicant did not pass the character test because he had a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more.[1]

   [1] The decision of 29 November 2016 is document G12 (pages 114 – 119) of the G documents tendered in evidence.

3. On 20 December 2016 the Applicant submitted a request for revocation of the mandatory cancellation of the decision to cancel his Visa pursuant to section 501CA of the Act.

4. On 5 December 2017 the Minister decided under section 501CA(4) of the Act not to revoke the original decision made in November 2016 to cancel the Applicant’s Visa.[2]

   [2] Document G2 (pages 8 – 11) of the G documents.

5. Subsequently, on 22 December 2017 the Applicant lodged with this Tribunal an application for review of the decision of 5 December 2017 not to revoke the cancellation of the Applicant’s Visa. The hearing took place on 22 February 2018, with the Applicant assisted by his mother and Mr J Grant of Sparke Helmore representing the Minister.

   THE EVIDENCE

6. The following documents were admitted into evidence:

   (a)The G documents[3];

   (b)A document from the Victorian Department of Justice and Regulation entitled “Contravention of Community Correction Order by Conditions”[4];

   (c)Victoria Police document headed “Preliminary Brief – Statement Made by Informant”[5];

   (d)A witness statement from the Applicant comprising five pages with an attached statement from a person known as “Pana” who was the owner of “Pana’s Wheels and Tyres” in Hoppers Crossing;

   (e)A witness statement from Mr Gregory Muao (whose partner Kim Davoren is the Applicant’s cousin);

   (f)An email in the form of a statement from Mr Jordan Hoko;

   (g)A witness statement in the form of an email from the Applicant’s mother Kiamaia Ronaki;

   (h)A witness statement in the form of an email from the Applicant’s sister Te Temepara Hou Kiamaia;

   (i)A witness statement in the form of an email from Kylie Muellenbrock the Applicant’s partner[6];

   (j)A witness statement from the Applicant’s youngest sister Maramena Webster.

   [3] Exhibit "R – 1".

   [4] Exhibit "R – 2".

   [5] Exhibit "R – 3".

   [6] The authenticity of this email was strongly tackled by Mr Grant on behalf of the Respondent. This will be addressed later in these reasons.

7. Additionally, there was viva voce evidence from the following witnesses:

   (a)The Applicant;

   (b)The Applicant’s mother Kiamaia Ronaki; and

   (c)The Applicant’s sister Te Temepara Hou Kiamaia.

   THE LEGISLATION

8. It is helpful to reproduce some of the sections of the Act that must be applied in this proceeding.

9.       Section 501(3A) of the Act provides that the Minister (or his delegate) 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)…

…; 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.

10.Section 501CA then 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.

…

(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.

11.     Section 501(6) sets out the grounds for failing the character test. It states, in part:

(6)For the purposes of this section, a person does not pass the character test if:

(a)The person has a substantial criminal record (as defined by subsection (7); or…

1. Section 501(7) provides a definition of “a substantial criminal record” in the following terms:

   (7)For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c)the person has been sentenced to a term of imprisonment of 12 months or more…

   THE MINISTERIAL DIRECTION

2. Under section 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions are about:

   (a)the performance of those functions; or

   (b)the exercise of those powers

3. Where those directions apply to a person or body they must comply with the Minister’s directions.[7]

   [7] Section 499(2A) of the Act.

4. There is an applicable direction made by the Minister on 22 December 2014 known as “Direction No 65” (“the Ministerial Direction”).

5. Several portions of the Ministerial Direction warrant reference to for the purposes of this application and the Tribunal is obligated to consider them in making its decision.

6. In the case of deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account the considerations set out in Part C, which are divided into primary considerations and other considerations.

7. The primary considerations in Part C are articulated in paragraph 13(2):

   (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.

8. Paragraph 13.3(1) (Expectation of the Australian community) of the Ministerial Direction states:

   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 whether 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 regard.

9. Other parts of the Ministerial Direction are also relevant and will be referred to later in these reasons.

   THE ISSUES TO BE DETERMINED IN THIS PROCEEDING

10. The issues to be determined in this application are whether the Applicant meets the character test as defined in section 501(6) of the Act[8], and if not, whether there is another reason why the original decision should be revoked (section 501CA(4)(b)(ii)).

    [8] The Respondent Minister in his written submission asserted, amongst other things that the Applicant did not appear to contest the character test issue. However, given that he was self-represented and did not expressly make such a concession it is considered appropriate to consider the evidence on the question and rule accordingly, which will be done below.

    THE APPLICANT’S CRIMINAL HISTORY

11. The Applicant was born on 19 February 1990. He comes from a large family of 10 children. He first arrived in Australia on 18 September 2000 at the age of 10. Evidence was given that his father had at one stage been the president of a motorcycle gang known as the “Filthy Few”. His father felt it necessary to leave New Zealand to in effect escape the clutches of this motorcycle gang. Initially, the family settled in metropolitan Sydney and subsequently moved to Melbourne. His father passed away from bowel cancer in 2011, a brother died from a drug overdose and a sister apparently committed suicide (such suicide occurring on occasion when the Applicant was in custody). He stated in his evidence that the loss of his older brother to whom he looked up to as a young child affected him a great deal and led to him losing control, to the extent that he didn’t feel he could speak to his mother or father about his issues. Two other brothers have now been deported from Australia and apparently reside in Auckland, New Zealand. The Applicant gave evidence that, over the years, these deaths in the family had a profound effect upon him and to some extent caused him to lose his way and embark upon the history of drug taking and consequential criminal activity that has been the subject of considerable scrutiny before the Tribunal in this hearing.

12. This version of the events was to some extent corroborated by the Applicant’s mother and sister who gave evidence at the hearing before the Tribunal. The evidence of the Applicant’s mother was impressive. She was a woman who has had to endure considerable vicissitudes in her life and was able to maintain a composure and dignity that was a credit to her. Like any mother would be, she was highly concerned about the welfare of her son and genuinely bewildered by his actions. Despite the fact that her son had significantly let her down and caused her much personal grief she continues to support him to the maximum extent possible. Indeed, in response to a question in cross-examination from Mr Grant she stated that if the Applicant were to be deported to New Zealand she would naturally go and visit him.

13. Similarly, the Applicant’s sister was an impressive witness who exhibited a genuine concern for her brother notwithstanding the bad life choices that he had made. She readily conceded that he had badly misdirected his life but was nonetheless prepared to continue to support him in any way she possibly could. She also stated that in the event that the Applicant did return to New Zealand she would not hesitate to maintain contact with him and indeed visit him personally.

14. The Applicant has an extensive criminal history which was contained in the National Police Certificate dated 1 August 2017 that was in evidence before the Tribunal.[9]

    [9] Document G3 (pages 27 – 42) of the G Documents.

15. Unfortunately, his criminal antecedents commenced on his 18^th birthday on 19 February 2008 in the Parramatta Children’s Court and his last appearance and conviction occurred on 16 January 2017 in the Sunshine Magistrates’ Court. He has had no less than approximately 20 court appearances.[10]

    [10] It should be noted that amongst these appearances was an appeal to the Melbourne County Court on 6 October 2015 which was partially successful on sentence and in the instance of several charges the orders of the Magistrates' Court were set aside and the charges withdrawn.

16. It is not intended to specify each and every occasion on which the Applicant has appeared in court between 2008 and 2017 nor each and every offence that he was convicted of[11]. However, there are several convictions that do warrant noting in these reasons. They can be summarised in the tables below and are categorised in order of the type or classification of crime committed by the Applicant.

    [11] He has a total of 129 convictions.

17. There are the following convictions involving violence and/or injury:

Date	Court	Offence conviction
16 – 1 – 2017	Sunshine Magistrates’ Court	Unlawful assault
4 – 10 – 2016	Sunshine Magistrates’ Court	Intentionally cause injury
6 – 10 – 2015	Melbourne County Court	Intentionally cause injury
5 – 8 – 2015	Sunshine Magistrates’ Court	Intentionally cause injury
7 – 5 – 13	Sunshine Magistrates’ Court	Aggravated burglary – person present

1. Other convictions that warrant mentioning from his criminal history are as follows:

Date	Court	Offence conviction
16 – 1 – 2017	Sunshine Magistrates’ Court	Possess cartridge ammunition Possess controlled weapon
4 – 10 – 2016	Melbourne County Court	Recklessly cause injury Contravene final personal safety intervention order
6 – 10 – 2015	Melbourne County Court	Recklessly cause injury Contravene family violence intervention order Contravene final personal safety intervention order Contravene personal safety intervention order (2 charges)
5 – 8 – 2015	Sunshine Magistrates’ Court	Recklessly cause injury Contravene family violence intervention order (3 charges) Contravene personal safety intervention order (2 charges) Possess controlled weapon
17 – 5 – 2013	Sunshine Magistrates’ Court	Resist police
2 – 2 – 10	Bankstown Local Court	Resist officer in execution of duty (Note a term of imprisonment three months imposed)
14 – 4 – 2008	Parramatta District Court	Resist or hinder police officer in the execution of duty Escape police custody
19 – 2 – 2008	Parramatta District Court	Resist or hinder police officer in the execution of duty Escape police custody.
19 – 2 – 2008	Parramatta Children’s Court	Possess/use a prohibited weapon Resist or hinder police officer in the execution of duty Escape police custody

1. This summary unfortunately shows a propensity on the part of the Applicant to engage in conduct constituting assault and/or causing injury together with breaching family violence intervention orders or related orders, resisting or hindering police officers and possession of what are known as “controlled[12]” or “prohibited” weapons.[13]

   [12] When questioned on this aspect of his behaviour the Applicant stated that he had been in possession of a "pocketknife" when arrested by police. He stated he had never had any other weapon than a pocketknife.

   [13] The National Police Certificate also shows a propensity on the part of the Applicant to commit further crimes such as breaching bail conditions, committing an offence whilst on bail, burglary, dishonestly receiving and/or handling stolen goods, driving offences and drug possession.

2. The Applicant has been sentenced to jail for terms exceeding 12 months or more (section 501(7)(c)) and also two additional terms of imprisonment with a total of such terms of twelve months or more (section 501(7)(d)). Further, taking into account the requirements of section 501(7A) of the Act he has been sentenced to two or more terms of imprisonment to be served concurrently by reason of which the whole of each term is to be counted in calculating the total of such terms.

   THE CHARACTER TEST

3. Under section 501(6) of the Act, a person does not pass the character test if he has a substantial criminal record (as defined by subsection (7)). For the reasons articulated in the previous paragraph the Tribunal must find, as is the case, that the Applicant does not pass the character test because he has a substantial criminal record within the definition of section 501(7) of the Act.

   PART C - CONSIDERATIONS RELEVANT TO THE REVOCATION OF A MANDATORY CANCELLATION

4. Given the matters that have been identified above concerning the Applicant and the finding that he does not pass the character test due to his substantial criminal record the only other ground upon which the Tribunal may set aside the refusal to revoke the Visa cancellation decision is that there is another reason why such original decision should be revoked.[14]

   [14] See section 501CA(4)(b)(ii) of the Act.

5. As noted, the primary considerations in Part C are set out in paragraph 13(2) and comprise:

   (a) Protection of the Australian community;

   (b) The best interests of minor children in Australia affected by the decision; and

   (c) Expectations of the Australian community.

6. Other considerations set out in paragraph 14(1) of the Ministerial Direction are:

   (a)International non-refoulement obligations;

   (b)Strength, nature and duration of ties;

   (c)Impact on Australian business interests;

   (d)Impact on victims; and

   (e)Extent of impediments if removed.

7. The Ministerial Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)).

   PROTECTION OF THE AUSTRALIAN COMMUNITY (13.1)

8. Paragraph 13.1 of the Ministerial Direction obliges the decision-maker 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. In undertaking this task the Ministerial Direction provides that:

   (2) Decision-makers should give consideration to:

   (a) The nature and seriousness of the non-citizens conduct to date; and

   (b) The risk to the Australian community should the noncitizen commit further offences or engage in other serious conduct.

   THE NATURE AND SERIOUSNESS OF THE CONDUCT (13.1.1)

9. Significant time was taken particularly in cross-examination of the Applicant in considering the nature and seriousness of his conduct. This scrutiny encompassed several dimensions, including whether or not the Applicant in documents lodged with the Respondent was candid in stating that he had “no violent charges”.

10. Further detailed consideration was given to two specific incidences of violence committed by the Applicant against women which will be detailed further below. The aspect of the Applicant’s conduct which was highlighted by the Respondent during the course of the hearing concerning these incidents of violence against women were directed to identifying as was the case, that the Applicant failed to appreciate the gravity of his offending or gain an insight into what he had really done in an objective sense. The two incidents concerned were the first one in August 2016 against his current partner Kylie Mullenbrock (“Ms Mullenbrock”) and two others in January and May of 2015 against a former partner Lichelle Jansen (“Ms Jansen”).

11. Lest it needs to be repeated, paragraph 13.1.1(a) of the Ministerial Direction provides that decision-makers must have regard to factors including the principle that violent crimes are viewed very seriously.

12. In several places in the “Personal Circumstances Form” signed by him the Applicant stated: “I have no violent charges”[15] and “I have no violent charges”…..[16] For the reasons articulated above, these statements are false. When asked in cross-examination why he had provided this response in the Personal Circumstances Form the Applicant’s response was: “At the time I thought that I didn’t have any violent charges. It slipped my mind I haven’t done any violent charges before. I fixed my mistake. I said I didn’t have violent charges. I didn’t have my charge sheets. When I got my charge sheets I realised that I had them.” There was no evidence that he fixed his “mistake” until this hearing[17]. This explanation is implausible and has the air of reconstruction. It reflects particularly badly upon him and his appreciation of an obligation to be truthful in dealings with the government and understanding the seriousness of the criminal conduct that he was convicted of. More will set be said about this propensity on the part of the Applicant in these reasons.

    [15] See document G6 (page 70) of the G documents.

    [16] See document G6 (page 72) of the G documents. The Applicant underlined the word "no" in such document.

    [17] This is all the more puzzling given that the Applicant filed a witness statement a few days before the hearing, presumably after he had been in possession of the Respondent's Statement of Facts, Issues and Contentions in which the fact that he had claimed he had "no violent charges" was directly challenged (paragraph 19). Even giving the Applicant the benefit of the doubt in terms of his limited education, lack of legal representation and the fact that he was in detention at a remote facility; to assert in the material that he had no convictions for violence is difficult to accept.

1. The Applicant’s account of the two incidents in January and May 2015 involving the Applicant and his former partner Ms Jansen also reflect particularly badly on him.

2. The contents of the “Preliminary Brief – Statement Made by Informant” produced on subpoena to the Tribunal were put to him by Mr Grant and his explanation sought. The Preliminary Brief notes, amongst other things that the police: “observed what appeared to be bruising to the right eye of the victim and bruising to her upper arms, back and chest. The victim, although extremely reluctant to converse with the police, eventually disclosed that the bruising to her upper arms was caused by the accused grabbing her the night before.”[18]

   [18] Immediately after this notation the brief records that Detective Senior Constable Meagher attempted to photograph the victim's injuries but she was reluctant for this to occur. The victim would not provide a formal statement to police other than that she did not want to provide a statement. It is probably open to the Tribunal to draw certain inferences from this reluctance on the part of Ms Jansen to provide a statement to police.

3. When this was put to the Applicant he stated: “At end of our relationship I did assault Ms Jenson I did grab her on the arms and aggressively threw her, yes. I threw her and that caused her to fall and hit her head.” When particulars of Ms Jansen’s injuries were read out to him and he responded with: “Yes that sounds true yes it is the first one”. When asked if he had pleaded guilty he stated that he remembered being arrested but couldn’t remember what he plead. When further pressed he stated: “I must’ve pleaded guilty. I don’t accept that these are exactly right but I must’ve pleaded guilty.” He showed a reluctance to admit the guilty plea or the circumstances of the assaults concerned and only reluctantly conceded the circumstances when pressed in cross-examination.

4. The incident on 27 May 2015 was described in the Preliminary Brief as having occurred at the Sanctuary Lakes Hotel. The police observed injuries on Ms Jansen including significant bruising, some swelling on her face, a cut lip, a black eye, bruised cheek bones, numerous scratch marks and bruising on her neck and arms. On this occasion she provided police with a statement in which she alleged that the Applicant punched her, grabbed her arms and kicked her. On this occasion she was conveyed to the Footscray Hospital and her injuries photographed. Regrettably, for the Applicant the Preliminary Brief notes that a record of interview was conducted by the police with him concerning these allegations in which he denied them all. Most remarkably in cross-examination when probed about this incident in May 2015 his first answer in response to a question asking whether he recalled this incident at the Sanctuary Lakes Hotel was: “It is the same event but it didn’t happen at the Sanctuary Lakes hotel. She might have got the location mucked up” and “I told the police to get the CCTV for the location.” He then went on to state that the incident occurred at the “Featherbrook Hotel” in Point Cook. The point of referring to this response is that on several occasions in his evidence the Applicant, particularly when it came to whether or not he had pleaded guilty and with respect to what charges had been laid against him he asserted that his memory was not particularly good yet he showed a capacity to recall in considerable detail which hotel the event with Ms Jansen took place in. It gave his evidence overall a complexion of unreality and regrettably, unreliability.

5. The incident with Ms Mullenbrock is recounted in the summary that the Police Prosecutor gave to the Sunshine Magistrates’ Court on 16 January 2017. The Applicant pleaded guilty to, amongst other things, charges of assaulting Ms Mullenbrock at a service station in Hoppers Crossing on 23 August 2016. This summary recorded that the Applicant was observed chasing a female through the service station pumps to inside the cash register area. The incident was recorded on CCTV and Ms Mullenbrock was observed as being panicked and running away from the Applicant who was holding something in his hand and was pursuing her. Ms Mullenbrock turned and faced the Applicant while walking backwards with an arm extended in a defensive position. The Applicant was then accused of: “herding her in the direction of the exit” where she was then “ushered” by the Applicant into a vehicle. Two concerned witnesses called 000 who thought that Ms Mullenbrock had been kidnapped. Police attempted to locate her that evening and were unsuccessful. Subsequently, the following day police attended an address to speak to Ms Mullenbrock to satisfy themselves as to her welfare and arrested the Applicant. He was also found in possession of drugs. During a formal record of interview the Applicant denied it was him in the still images printed from the CCTV at the service station. He further denied being involved in any incident at the service station as alleged.

6. In the course of his evidence and in particular cross-examination before the Tribunal he stated that he did not agree with the summary that the prosecutor read to the court. It should be observed at this point that of course the Applicant was represented by counsel at this hearing and the summary was tendered to the court with the consent of the Applicant’s counsel. Indeed, the transcript reveals that several charges were either amended or withdrawn by consent, presumably after negotiations had taken place between the prosecutor and the Applicant’s counsel. Before the Tribunal he conceded that he did deny the allegations in the record of interview with the police that it was him at the service station in the still footage reproduced from the CCTV. On at least two occasions in response to questions from Mr Grant, the Applicant stated that the reason he denied the allegations was because Ms Mullenbrock had made a statement to the police stating that he was not present at the service station during the relevant time and that he hadn’t committed the crimes he was accused of (which he well knew to be false). He sought to justify his denials by saying that because he had not physically struck Ms Mullenbrock it did not constitute an assault. This denial lacks credibility because on his own admission to the Tribunal he knew full well he was at the service station at the time with Ms Mullenbrock and he could have admitted that to the police whilst at the same time telling them that he did not strike her. A further and most unsatisfactory aspect of the Applicant’s evidence concerning this incident is that he observed that: “She made admissions that I didn’t touch her yet they pressed on. They tried to get an intervention order further and we didn’t want that. I said why you are trying to push that on us it is not necessary.” His evidence seemed to downplay if not almost dismiss the seriousness of his actions against Ms Mullenbrock and treat the police concerns for her welfare and the process of applying for an intervention order way too lightly and without the obvious seriousness that both matters deserved. This is also something that tells against him.

7. Another disturbing aspect of the subsequent attendance at the Sunshine Magistrates’ Court on 16 January 2017 by the Applicant after he was charged over the service station incident with Ms Mullenbrock is that the Applicant quite robustly in his cross-examination before the Tribunal asserted that the incident was relatively minor and he was almost dismissive of it. On one occasion with respect to why bystanders might have called the police he stated: “I told her to get out of the service station and come outside and not cause a scene in front of everyone. By me raising my hands they said that I threatened her.”, “I don’t know why bystanders called police.” and “The summary is not accurate.” When it was further put to him that he was expecting the Tribunal to accept his version that he and Ms Mullenbrock were just having an argument and he didn’t know why people would call the police he replied “Yes”. “They didn’t ask me and they asked everyone else.” Once again this response is remarkable and demonstrates a propensity on the part of the Applicant to do and say anything to suit his agenda and treat almost dismissively the very serious actions that he engaged in. It reflects a complete lack of insight into the seriousness of his offending.

8. Yet another disturbing aspect of his evidence concerning the appearance at Sunshine Magistrates’ Court concerning the service station incident with Ms Mullenbrock relates to one of the reasons why he did plead guilty. He stated that in short because the Magistrate offered him 14 days and:

   “At the end of sentence I would get my immigration papers, I took it to minimise my sentence so I wouldn’t be deported. I was going to plead not guilty but when he said I would get 14 days I thought I would take it. I was concerned that I was facing more than one year and I wanted to avoid that. That is why I pleaded guilty to unlawful assault.”

   There appears to be a complete absence of remorse or contrition (let alone an apology) for what happened in the service station incident and the guilty plea on his own admission appears to be one of convenience to minimise the potential sentence. Once again it shows a lack of insight into both the seriousness of his offending and considerable disrespect for the judicial and legal systems of Australia.[19]

   [19] It should be recorded at this stage that the Applicant had been in custody since August of 2016 after the service station incident. This can be deduced from the observations of Magistrate Pithouse in the transcript of the hearing at the Sunshine Magistrates Court on 16 January 2017 (document G4 of the G documents page 51) where His Honour records that the Applicant had already served 151 days in prison.

9. With respect to the other offending on the part of the Applicant recorded in the National Police Certificate as noted above, many of them involve property offences and burglary. The Applicant sought to explain this behaviour by reference to his drug habit and the necessity to support it through such crimes. Whilst one probably does not dispute this evidence, the reality is that such offending has a most serious and harmful effect on the victims. To have one’s property broken into and items stolen is a gross invasion of those victims’ rights and their safety. The sustained pattern of conduct with respect to property offences and burglary over an extended timespan on the part of the Applicant once again does not reflect well upon him and does raise the question of whether or not he has truly reformed after his time in prison or still retains a propensity to undertake such criminal behaviour.

10. Further reference should also be made to the several occasions on which the Applicant was convicted for breaching intervention orders (or like orders), committing indictable offences on bail and failing to obey some of the more basic tenets of our legal system. The Respondent tendered in evidence as noted above a document entitled “Contravention of Community Correction Order by Conditions”. This document and its contents were referred to in some detail during the cross-examination of the Applicant. The document reveals several contraventions of community corrections orders by the Applicant. These contraventions included failure to attend drug tests, failure to attend weekly reporting, failure to notify the Secretary of the Department of Justice and Regulation of any change of address or employment within two clear working days and failure to attend judicial monitoring. Tellingly, as noted, he ultimately ceased contact with the Werribee Community Correctional Service in violation of his obligations under the Community Correction Order. He gave several reasons for his failure to attend but conceded when pressed that it was because he didn’t want to fail a drug test. He admitted that he advised the service that he had no current drug use and that this was a lie. He stated that it was his evidence that he deliberately didn’t comply with mandatory conditions for assessment and treatment made by the County Court at Melbourne on 6 October 2015. Once again, overall this leaves one with the impression that the Applicant has a propensity to disobey obligations including court ordered conditions. The sustained pattern of disobedience does not give one confidence that he will reliably obey any further legal obligations that he may be subject to.

    THE RISKS TO THE AUSTRALIAN COMMUNITY SHOULD THE NONCITIZEN COMMIT FURTHER OFFENCES OR ENGAGE IN OTHER SERIOUS CONDUCT (13.1.2)

11. The Applicant both in his written statement to the Tribunal, his various submissions to the Respondent and both in submissions and evidence given to the Tribunal, repeatedly stressed that he understood the ramifications of his past behaviour and undertook not to reoffend. In making these submissions and providing such evidence he relied upon several matters including but not limited to the following:

    (a)that he was extremely remorseful for his actions and fully understood the seriousness of his criminal history;[20]

    (b)the fact that whilst in custody he had undertaken drug and alcohol treatment programs including a 44 hour intensive drug and alcohol program;

    (c)he had undertaken a further 12 hour drug and alcohol program;

    (d)through such programs he had gained a better understanding of his behaviour so it would prevent him from reoffending;

    (e)he stressed in some detail the support of his family and what he saw as his obligations to them after having let them down, particularly as observed earlier his mother; he stated he had much to lose if he reoffended;

    (f)as his brothers reside in Sydney he is the sole male provider for his mother and sisters.[21]

    (g)he stated that sorting out his issues with drugs were his key problem and that he has a better understanding of what drugs do to him and how they can destroy people’s lives and family;

    (h)there was considerable emphasis on what he saw as being a good role model and father figure to his nieces, that the criminal history was not the real him and that he really was a humble young loving respectful and caring person and could demonstrate this if he was given the opportunity;

    (i)that he wanted to get out of custody turn his life around be there for his family, fix himself up get a job and hopefully complete his carpentry apprenticeship.

    [20] See for instance his letter to the National Character Consideration Centre of 9 October 2017 (document G8 page 107 of the G documents) at the sixth paragraph. The contents of the letter are referred to for its full terms and effect and the Applicant’s contentions.

    [21] See the Personal Circumstances Form, document G6 of the G documents page 86.

12. Not only the history of the Applicant’s offending but more critically, his approach in the witness box as articulated in the previous section of these reasons must give rise to serious concerns about the Applicant’s assertions and attitude to abiding by the law and the legal process. The consequences of his actions and the almost dismissive way he treated the several incidents with women and the consequential hearings in court arising from those incidents do not give the Tribunal much confidence in the Applicant’s capacity to avoid trouble with the law in the future.

13. Further, there appeared to be an attitude towards women that was quite disturbing. Firstly, the mere fact that he assaulted them in the way he did is unacceptable in any shape or form. Secondly, his approach to the intervention order processes which are designed to protect vulnerable people including women from the violent and predatory behaviour that the Applicant engaged in is disturbing and once again unacceptable. Thirdly, the lack of apparent contrition or genuine remorse concerning the incidents with Ms Jansen and Ms Mullenbrock also does not give the Tribunal confidence about potential future risks that the Applicant poses of committing further offences or engaging in other serious conduct. Fourthly, the fact that even as late as his cross-examination the Applicant was disputing the version of the events relating to the service station incident notwithstanding that he was represented by competent counsel who negotiated a resolution of the matters with police demonstrates that he does not view the process with the respect and seriousness it deserves let alone the matters with which he faced serious criminal charges. Fifthly, his approach to penalty also reflected the very poor way that the Applicant viewed these matters. It had an air of wanting to simply dispose of it quickly and for as short a sentence as possible again without any genuine insight or reflection on the terrible things he had done. Once again it does not bode well for his future prospects in the event that the decision not to revoke cancellation of his Visa is set aside.

14. Lest it needs to be repeated, the Ministerial Direction at paragraph 13.1.1(1)(b) requires the decision maker to have regard to the principle that crimes committed against vulnerable members of the community are serious. Women such as Ms Jansen and Ms Mullenbrock were obviously in a special position of vulnerability as against the Applicant. Their significant injuries reflect this fact. His behaviour was completely and utterly unacceptable and must be a factor that weighs heavily against him in the context of this application. If the Applicant were to repeat such offending the Tribunal finds that it would pose a considerable risk of harm to members of the Australian community.

15. Another matter that should be observed in the context of future risks is that the Applicant was warned on 20 September 2013 that the Minister might consider cancellation of his visa under section 501 of the Act on character grounds. After a consideration of all relevant matters a delegate of the Minister made a decision not to cancel his Visa and informed him of that fact by a letter dated 10 February 2014. However, that letter contained a warning that if he committed further offences or otherwise breached the character test in the future there could be consequences weighing heavily against him in the event of any further reconsideration of his visa status. Notwithstanding this warning he continued to offend and had many court appearances after that date. The fact that this warning was simply ignored in the way it was by the Applicant also does not give the Tribunal confidence that his assertions that he is fully reformed and will not offend again, will in fact turn out to be the case.

    THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA (13.2)

16. The Applicant placed considerable emphasis on what he described as his relationship with the son of his partner Ms Mullenbrock. In the Personal Circumstances Form completed in late December 2016 he stated that he had had a relationship with Ms Muellenbrock’s son for about three years and that he sees him daily and provides him with the emotional support he requires. It is also stated that he tries to be a role model for him providing positive values beliefs and attitudes.[22] He gave similar evidence to this effect.

    [22] See document G6 of the G documents at page 85.

17. However, one has to question how close the relationship can possibly be in the light of the fact that he conceded in cross-examination that he last saw the child in August 2016 before he was taken into custody over the service station incident. He stated that he did speak to him a couple of days ago over the phone. Once again it is a reflection on the Applicant’s lack of candour that in the Personal Circumstances Form this was not disclosed.

18. Another aspect of the relationship with the child that is slightly disturbing is the fact that he asserted he helped him get ready for school, cooked his toast in the morning, watched cartoons with him and helped him with his school homework, if this all occurred during a time when the Applicant was committing offences. It seems hard to accept that this really is the conduct of a good role model for a young child.

1. Further, the Applicant stated that the last time he saw Ms Mullenbrock was when he was at the Melbourne detention centre in approximately May of last year. He stated that he hadn’t seen her for quite some time because she was not allowed to visit him in jail due to a criminal record.

2. It emerged in evidence from the Applicant that Ms Mullenbrock works full-time in a factory for Toll Transport. However, she has a family in Melbourne consisting of a father, mother and two brothers. It was quite telling that she did not give evidence in support of the Applicant other than a very short email the authenticity of which was hotly contested by the Respondent.[23] When asked a question in cross-examination why she was not giving evidence the Applicant responded: “I asked her to come but she said she had to work.” This evidence is also inconsistent with a statement made in the Applicant’s Personal Circumstances Form[24] where he states that Ms Mullenbrock: “Kylie and I have a strong bond and understanding of each other, she provides unconditional support…” It does seem somewhat unlikely that if the relationship is as portrayed by the Applicant that Ms Mullenbrock would not have attended and given evidence in support of him at one of the most difficult times he has ever faced.

   [23] The Respondent noted that the email from Ms Mullenbrock came from an email address of "Sharyn Kissling” which surname is the Applicant's middle name. It was put to the Applicant that in fact Ms Mullenbrock did not send the email. It is not a matter that the Tribunal is easily able to resolve. However, it seems highly irregular and in the absence of Ms Mullenbrock little weight can be placed upon it. In any event it only consists of six lines and does not condescend to much detail at all about the Applicant's relationship with the child and is largely conclusory.

   [24] Document G6 of the documents at page 87.

3. It should be observed at this stage that under paragraph 13.2(4)(a) of the Ministerial Direction that in considering the best interests of the child several factors must be considered where relevant including, amongst other things:

   (a)the nature and duration of the relationship between the child and the noncitizen;

   (b)less weight should generally be given where the relationship is nonparental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;

   (c)the extent to which the noncitizen is likely to play a positive parental role in the future; and

   (d)the impact of the noncitizen’s prior conduct.

4. The Tribunal considers the fact that there has been a long period of disconnection between the Applicant and Ms Muellenbrock’s son effectively over three years whilst he has been mostly in custody, that he is not the child’s father, that there has been little meaningful contact and the fact that the Applicant’s repeated offending cannot lead to a likely positive role in the child’s upbringing indicates that overall the best interests of the child are unlikely to be affected by the decision to revoke the Applicant’s Visa.

   EXPECTATIONS OF THE AUSTRALIAN COMMUNITY (13.3)

5. The Ministerial Direction commences with the prescription that the Australian community expects noncitizens will obey the law whilst in Australia. It further opines that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect the person should not hold a Visa.

6. A number of matters have been identified in the history of the Applicant’s interaction with Australian society, other citizens, the police and the legal system which give rise to an expectation that the Applicant should not hold a Visa to reside here. These matters include but are not limited to the following:

   (a)the sustained pattern of reoffending by the Applicant;

   (b)the nature of the offences committed by the Applicant over a sustained time including, violence, violence against women, resisting authority both police and court imposed conditions, committing offences whilst on bail or parole and committing property offences which violate people’s property;

   (c)serving significant periods of imprisonment for the crimes he has committed;

   (d)disregard of Community Corrections Orders which are designed to give offenders a second chance;

   (e)signing and submitting official documents to government departments or agencies that he knew contained false or inaccurate information;

   (f)making false denials to police;

   (g)a readiness to engage in disobedience of court orders and legal process; and

   (h)the continued failure to come to terms with the predicament he has been in or gain an insight into the appearances that he has made in court and continuing to insist that police summaries agreed to by him and his counsel are still not correct.

7. In Re Jupp and Minister for Immigration and Multicultural Affairs [2002] AATA 458 Deputy President Block considered that the Australian community should not be regarded as a monolithic entity and does not essentially ‘think as one’ in regards to issues such as immigration and the rehabilitation of individuals who have committed crimes. The Tribunal agrees with this view yet considers that the Australian community is overall receptive and fair minded towards genuine rehabilitative efforts.

8. This will however depend on the circumstances of each individual case, and in light of the circumstances recounted above leads to the conclusion that the Australian community, when fully informed of the facts, would expect the Applicant not to hold a Visa.

   OTHER RELEVANT CONSIDERATIONS SET OUT IN MINISTERIAL DIRECTION 65

   INTERNATIONAL NON-REFOULEMENT OBLIGATIONS (14.1)

9. The Applicant in written documentation produced to the Minister[25] and filed with this Tribunal, as well as in his viva voce evidence’ asserted that if he was required to return to New Zealand he would be in some way forced or recruited into a motorcycle gang or a street gang. He stated that he would be identified upon his arrival by a motorbike gang previously referred to known as the “Filthy Few” who would identify him through Facebook and other social media. When asked why they would be interested in him he replied “I am the son of my father you can’t just leave the club” He further opined: “if I went to New Zealand my life would be in jeopardy I don’t have any gang connections I don’t have any gang convictions. If I return it is an option that the gang will track me down.”

   [25] He stated in his Personal Circumstances Form with respect to this issue: "I believe that gang members within New Zealand would use force to recruit me which scares me. I would face repercussions if I refused to join….”

10. These assertions do have an air of unreality to them. New Zealand is a developed and sophisticated nation with all the appropriate law enforcement agencies to deal with this sort of criminal behaviour. There seems no plausible reason why the Applicant could not rely upon such agencies in the event that he were subject to any illegal approaches by such gangs. Further, he gave evidence that these gangs tended to congregate around a particular area and that would be another reason for him coming to their attention. One has to question why the Applicant would in those circumstances see fit to reside in a neighbourhood where such gangs congregate. Further, lest it needs to be said, but it is also the Applicant’s choice as to the persons with whom he chooses to associate.

11. The Respondent in his Statement of Facts, Issues and Contentions[26] also notes that in the event that there was substance to such claims by the Applicant he would not be precluded from lodging a Protection Visa application and were such an application to be made his non-refoulment claims would be determined before any consideration is given to character concerns. This is a contention well made by the Respondent which further justifies no weight being given to this consideration.

    [26] Paragraphs 45 to 47 of the Respondent's Statement of Facts, Issues and Contentions are referred to for full particulars of this position.

12. Usually, international non-refoulement obligations arise in a situation where a person may be removed to a country and face the prospect of being subjected to cruel or unusual punishments. This seems an implausible proposition to suggest about New Zealand. Further, there is simply no evidence that would justify this conclusion. For that reason there are no non-refoulement obligations that need to be observed in this instance.

    STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA (14.2)

13. As previously noted the Applicant arrived in Australia at the age of 10 with his parents and siblings. It is a large family. Also it warrants repeating that it is a family that has faced considerable difficulty since its arrival with the death of the Applicant’s father, a brothera and a sister.

14. In the Applicant’s Personal Circumstances Form details are provided of the wider family residing in Australia of which the Applicant is a member.[27] Evidence was given by the Applicant, his mother and to a more limited extent his sister as to the nature of Maori families and their interaction.

    [27] Attachment "B" which is an appendix to the Personal Circumstances Form is for work 3rd to contains 2 1/2 pages of names of an extended Maori family to which the Applicant belongs. These relatives include uncles cousins nephews and nieces.

15. There was evidence such as the witness statement from Gregory Muao whose partner is the Applicant’s cousin. The witness statement gave evidence of the Applicant’s involvement with his children and the extent of his relationship with them, providing examples such as the fact the Applicant gives lessons to them concerning the Maori language and Maori traditions. The Applicant was described as a: “loving son, cherished brother and cousin, and one amazing and loved uncle he never fails to support his family and friends in time of need.” He also mentioned the fact that he is involved with a cultural organisation known as Awhi Melbourne which assists with the homeless. Whilst one can appreciate his involvement as described it would appear that such involvement must of necessity have been limited in its scope and effect for many years. This is because the Applicant had a long history of drug use and dependency and law breaking together with periods in custody. The practical impact on these relationships if he were to return to New Zealand would appear not to be as difficult as perhaps it is portrayed by some witnesses.

16. As previously noted the Applicant in various documents and his evidence to the Tribunal has emphasised the responsibility that he believes he has to provide support to his mother. Whilst one can accept that he undertakes this responsibility it is apparent from the established facts that any contribution he has made to his mother’s well-being by way of support has in recent years been limited due to his prolonged periods in custody and the effects of his drug addiction. It is fair to say as his mother acknowledged in the witness box that the Applicant has let her down.

17. His mother does have the support of her daughter (his sister) who gave evidence and as also recorded previously in these reasons was an impressive witness and came across as someone who would not let her mother down and would do all she could to provide assistance.

18. Additionally, whilst one must have considerable sympathy for the plight of his mother it must be noted that she has battled on against the odds. She has full-time employment and certainly appears to be in good health. There was not in the course of the evidence given either in the witness box or the documentary material anything specifically identified that the Applicant could do that would improve her position or put the other way that demanded support. One has to repeat that this is not to lose sympathy for the plight of the Applicant’s mother but simply to record that if he were to return to New Zealand there is unlikely to be any practical difference one way or the other to her life as it currently is. The Tribunal therefore determines that this consideration weighs only slightly in favour of the Applicant.

    IMPACT ON AUSTRALIAN BUSINESS INTERESTS (14.3)

19. The Tribunal did not have any evidence regarding the impact on Australian business interests if the Applicant were to be returned to New Zealand. Although it notes his plans to complete his carpentry apprenticeship and gain employment, these are future aspirations and the Tribunal does not ascribe any weight to this consideration

    IMPACT ON VICTIMS (14.4)

20. If there is a victim of the Applicant’s criminal behaviour likely to be most directly affected by his departure from Australia it is indeed Ms Mullenbrock. She did not choose to give evidence as noted above. However, there is the limited evidence referred to with respect to the service station incident and the fact that she apparently did not make a statement against the Applicant. Therefore in terms of impact upon her, it is difficult for the Tribunal to make an assessment with respect to this ground one way or the other.

21. There is no evidence one way or the other that identifies what effect if any the revocation would have on any other of the Applicant’s victims. One would infer that more likely than not there would be no impact in a practical sense. Therefore little more needs to be said on this topic.

    EXTENT OF IMPEDIMENTS IF REMOVED (14.5)

22. In his Personal Circumstances Form[28] the Applicant stated that he had no family or support in New Zealand. In the course of his evidence before the Tribunal he stated that two of his brothers now reside in Auckland having been recently deported there. In his evidence he stated that he hadn’t thought where he might go if he returned to New Zealand but there does not seem to be any conceivable reason why he would not be able to draw upon his brothers at least for some support and guidance in re-establishing himself in the event of his return.

    [28] Document G6 page 98 of the G documents.

23. Further, his mother stated that she would visit the Applicant should he return to New Zealand. Similar evidence was given by his sister. As noted above they were both impressive and truthful witnesses and there is no reason to believe that they wouldn’t do their best to provide him with support both in terms of visits to New Zealand and anything they were able to do remotely within their power.

24. As noted earlier the Applicant did undertake an apprenticeship for two years. He did concede in his evidence that he could use his vocational skills in New Zealand. Although there was no evidence about any particular obstacles to the Applicant obtaining employment opportunities in New Zealand it seems unlikely to differ very much from the current situation in Australia. New Zealand certainly has comparable healthcare education and social welfare mechanisms to those that are available in Australia. As a New Zealand citizen those services would be available to him were he to suffer financial or medical hardship.

    CONCLUSION

25. The primary considerations that most needed to be considered by the Tribunal in this application are the protection of the Australian community and the expectations of the Australian community.

26. The Tribunal has found that the Applicant engaged in serious criminal conduct. There is also a real and present risk of reoffending. There are several reasons for this which have been also considered above but centre around his repeated conduct in the face of official warnings from the Minister that if he continued down this path his Visa status could be affected coupled with as has been observed above, his failure to come to terms with the gravity of his offences and the obligation to obey the law. Of particular concern, is the fact that he did not even accept that his guilty pleas to several charges of which he faced were properly made. Furthermore, there was his pattern of violation of such processes as intervention and personal safety orders and community corrections orders. His evidence in the witness box concerning several of these matters which has been examined in these reasons do not give confidence that the Applicant will not run afoul of the law in the future.

27. Several of his offences were committed against women who were in particularly vulnerable positions. Yet, even in the witness box he sought to in some way downplay the gravity of those offences. Significant weight must be attached to the primary considerations as is required by the Ministerial Direction because of the nature and duration of his criminal conduct and to some extent that his future conduct will be dependent upon him remaining drug-free. There is a significant risk of reoffending.

28. It therefore follows that the Australian community would not expect the Applicant to be allowed to remain in Australia.

29. In those circumstances the primary considerations, when properly applied, weigh strongly against revocation of the decision to cancel the Applicant’s Visa.

30. With respect to the remaining primary consideration and other considerations for the reasons articulated above they must be given less weight. His relationship with Ms Mullenbrock and her son remains difficult to appreciate given the lack of contact he has had with them due to the lengthy period of time that he has been in custody.

31. As for the relationship and effect on his extended family including his mother and sister, whilst one must appreciate how they would feel it is submitted that whilst in the Applicant’s favour, this factor does not weigh heavily enough to justify revocation of the decision to cancel the Applicant’s Visa.

32. Whilst having to relocate to New Zealand would entail practical difficulty for the Applicant, there are no significant impediments to which he would be exposed if he were to be returned to and he has means to establish himself and gain employment alongside potential sources of family support.

    DECISION

33. In the circumstances, the decision made by the delegate of the Minister on 5 December 2017 is affirmed.

93.     I certify that the preceding 92 (ninety-two) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member

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

Associate

Dated: 8 March 2018

Date of hearing:	22 February 2018
Applicant:	In person
Advocate for the Respondent:	Mr J Grant
Solicitors for the Respondent:	Sparke Helmore