Seau and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 3430
•18 October 2022
Seau and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 3430 (18 October 2022)
Division:GENERAL DIVISION
File Number(s): 2022/6331
Re:Pritchard Junior Seau
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member K Raif
Date:18 October 2022
Place:Sydney
The Tribunal affirms the decision not to revoke the cancelation of a Class TY Special Category (Temporary) visa held by the applicant.
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Senior Member K Raif
Catchwords
MIGRATION – visa cancellation under subsection 501(3A) of the Migration Act 1958 (Cth) – cancellation not revoked under subsection 501CA(4) – where the applicant has a substantial criminal record – where the applicant does not pass the character test – issue: is there another reason why the visa cancellation should be revoked? – Direction no. 90 considered – relevant law and material considered – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
Hendrick Winata and So Lan Li v Australia CCPR/C/72/D/930/2000 UN HRC, 16 August 2001
Secondary Materials
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Raif
18 October 2022
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the cancelation of a Class TY Special Category (Temporary) visa held by the applicant.
The applicant is a national of New Zealand, born in April 1990. He first travelled to Australia in 2005 as a minor and was granted the Special Category visa upon arrival. The applicant was convicted of multiple offences, set out below, between 2011 and 2021. On 24 August 2021 the applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) because it was determined that the applicant had a substantial criminal record. The applicant was invited and made representations about the revocation of the decision to cancel his visa. On 22 July 2022 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation decision. The applicant is seeking review of that decision.
It is not in dispute that the applicant had made representations about the cancellation of his visa. The issues before the Tribunal are:
(i)Does the applicant pass the character test, as defined by section 501 and if not,
(ii)Is there another reason why the original decision should be revoked.
For the following reasons, the Tribunal has concluded that the decision not to revoke the cancellation of the applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); 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.
Subsection 501CA(3) provides that as soon as practicable after making a decision under
subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Minister, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
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.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in section 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides:
(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))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 15 April 2021 the Minister issued Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction 90) under section 499 of the Act. Direction 90 is binding on the Tribunal in performing its functions, or exercising powers under section 501 of the Act.
Direction 90 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at clause 5.2(2) of Direction 90 states that:
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The primary considerations which are set out in clause 8 of Part 2 of Direction 90 are:
a)Protection of the Australian community from criminal or other serious conduct;
b)Whether the conduct engaged in constituted family violence;
c)The best interests of minor children in Australia; and
d)Expectations of the Australian community.
14.The other considerations which are set out of clause 9 in Direction 90 are:
a)International non-refoulement obligations;
b)Extent of impediments if removed;
c)Impact on victims;
d)Links to the Australian community including
-Strength, nature and duration of ties to Australia;
-Impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. Further, one primary consideration may outweigh other primary considerations: clauses 7(2) and 7(3) of Direction 90.
In this case, it is not in dispute that the applicant has made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met.
Does the applicant pass the character test?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the report of the Australian Criminal Intelligence Commission Check Results Report, which sets out the applicant’s convictions. Relevantly, these are as follows:
Offence date
Offence
Sentence
30/11/11
Dishonestly obtain property by deception – T1
Fine $200 and court costs
07/10/13
- Use unregistered registrable Class A motor vehicle on road
- Drive motor vehicle while licence suspended – 1st off
- Fail to notify authority of change of address within 14 days
- Drive motor vehicle while licence suspended – 1st off
- Use unregistered registrable Class A motor vehicle on road
Fine $350
s. 9 bond 9 months, completion of Traffic Offenders program, disqualification 12 months
s. 10A conviction, no penalty
s. 10 bond 2 years, completion of Traffic Offenders Program
fine $300
26/07/14
- Shoplifting value <= $2000 – T2
- Assault occasioning actual bodily harm – T2
Fine $100
Fine $1000
23/09/15
13/12/2014
- Supply a prohibited drug
- Break and enter house etc destroy etc property <= $60,000 – T1
s. 9 bond 2 years
s. 9 bond 2 years
03/05/16
Drive motor vehicle while licence suspended – 2nd+off
Fine $1000, disqualification 2 years (s. 10 dismissed on appeal)
25/08/18
- Deal with property proceeds of crime <=$100,000 – T2
- Possess prohibited drug
- Supply prohibited drug > small and <= indictable quantity – T1
Intensive correction order 2 years
20/01/18
Supply prohibited drug <=small quantity – T1
Intensive correction order 2 years
10/05/20
Possess prohibited drug
Imprisonment (aggregate) 20 months, non-parole period 12 months (reduced to 10 months non-parole period on appeal)
13/02/20
Possess prohibited drug
Imprisonment (aggregate) 20 months, non-parole period 12 months (reduced to 10 months non-parole period on appeal)
22/01/21
- Supply prohibited drug > indictable and < commercial quantity – T1
- Deal with property proceeds of crime < $100,000
Imprisonment (aggregate) 20 months, non-parole period 12 months (reduced to 10 months non-parole period on appeal)
The NZ Police report that is before the Tribunal indicates that the applicant has also been convicted in October 2008 of common assault and driving under the influence of alcohol. In oral evidence, the applicant explained that at the time he had lost his job and started drinking, he was driving while drunk and was involved in an accident. He states that he ‘probably’ assaulted someone but has no recollection of the incident because he had a ‘blackout’. The applicant was convicted and sentenced on both charges. In relation to the assault conviction, the applicant was given $150 fine, was required to pay court costs and reparation. In relation to the drink driving offence, the applicant was disqualified from driving for eight months.
The applicant concedes that he does not pass the character test. The Tribunal finds that the applicant has been sentenced to a term of imprisonment of 12 months or more. The Tribunal finds that the applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are not met.
Is there another reason why the original decision should be revoked?
The applicant submits that he is genuinely remorseful for his conduct and understands its consequences. He states that he had taken steps towards rehabilitation, will not reoffend again and will make a positive contribution to the Australian society. The applicant refers to his genuine and ongoing relationship with his Australian partner, stating that his partner’s particular personal circumstances need to be assessed when addressing her needs and dependence on him. The applicant suggests that interference with the family relationship of an Australian citizen may violate her rights. The applicant also refers to his relationship with his sister and her child, referring to the harm to the child if he is removed. The applicant submits that the community expectations would be in his favour, given the harm that his removal would inflict on children and vulnerable persons.
The respondent submits, essentially, that the protection of the Australian community and the expectations of the community weigh against the revocation and the other considerations should not outweigh the primary considerations.
The Tribunal’s considerations are set out below with regard to Direction 90.
Primary considerations
Protection of the Australian Community
Sub-clause 8.1 of Direction 90 provides as follows:
8.1 Protection of the Australian community
(1) When considering protection of the Australian community, decision-makers should keep in mind 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….
(2) Decision-makers should also 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 considering the nature and seriousness of the applicant’s conduct to date, the Tribunal has had regard to the information in the NSW Police Facts Sheets that are before the Tribunal, as well as the applicant’s oral evidence.
The Tribunal has been provided with the NSW Police Facts Sheet in relation to the 2014 offences. It is stated, with respect to the stealing charge, that the applicant entered an Aldi supermarket and had secreted two packs of crackers to the value of $1.69 each and he left the store without payment. With respect to the offence of assault, it is stated that in July 2014 the applicant entered a restaurant, approached a manager and demanded that he be provided with food. After being refused service, the applicant is said to have raised his right hand and punched the victim’s lip.
The Tribunal has been provided with the agreed statement of facts in relation to the malicious damage offence in December 2014. It is stated that the applicant attended the home of the victim where he consumed some alcohol. Before he left, the victim asked him not to return. After the victim fell asleep, the applicant returned to her home and continued drinking. The victim heard banging on her front door and called the police. By the time the police arrived, the applicant threw a metal bed frame, a metal gym bench and a wooden chair over the balcony, causing damage to these items. It is stated that the applicant gained entry to the unit and continued to drink inside and he consumed food from the fridge without her knowledge or permission. (The applicant denied in his evidence to the Tribunal that he continued drinking while waiting for the police but could not explain why he agreed with the statement of facts).
The Tribunal has considered the Facts Sheet prepared by NSW police in relation to the 2016 offences. It is stated that the applicant was observed driving and when he noticed the police, he started to put his seat belt on. After being stopped by the police, the applicant was asked to produce his licence and he told the police that his licence had been suspended. The applicant was issued with a court attendance notice. There is a statement from the applicant’s employer at the time, who states that the applicant drove at his request. (While the Tribunal accepts that this may have been the case, the Tribunal is of the view that it was the applicant’s responsibility to manage his driving, not his employer’s, particularly if the applicant was aware that his licence was suspended and his employer was not).
In relation to the 2018 offences, the Police Facts Sheet records that in January 2018 the applicant was observed selling drugs to another person. Upon searching the applicant and his motor vehicle, the police found over $700 in cash and an amount of cannabis.
The Tribunal has had regard to the NSW Police Facts Sheet in relation to the February 2020 offences. It is stated that in February 2020 the applicant was driving his car and was stopped for a random breath test which was negative. During the search of the vehicle, the police located a container containing cannabis and medication, including Alpazolam (Xanax), as well as some cash (which the applicant claimed was his pay). The applicant told the police that the cannabis belonged to another person but that person denied this when interviewed by the police.
Another NSW Police Facts Sheet outlines the circumstances of the May 2020 offences. It is stated that the police observed the applicant at a shopping centre and subjected him to a search. During the search, the police located over $1250 in cash. When searching the applicant’s vehicle, the police found a bag containing restricted substances, being 19 tablets of Alprazolam. The applicant claimed these were ‘vitamins’.
The Tribunal has considered the comments of Judge Arnott SC of the District Court of NSW, made on 2 August 2021 in relation to the applicant’s appeal of the severity of the sentences imposed in June 2021. The Judge notes that the first two offences occurred in February 2020 when the applicant was found to be in possession of an amount of cannabis leaf and prohibited drug Alprazolam, which was found in his car. The next offence occurred in May 2020 when the applicant was found to be in possession of Xanax in his bag. The final two offences, for which custodial sentences were imposed, occurred in January 2021. The police observed a male enter the applicant’s car and leave a short time later. The car was searched and the police found $1750 in cash and a number of bags containing cocaine. The Judge noted that the amount of drugs was not a large amount but nevertheless involved dealing not on one occasion to one customer but was intended to be supplied to a number of customers. It was noted that the amount of $1750 was not a large amount. The Judge noted that the offence of supplying the prohibited drug was for both profit and the applicant’s own use and there is evidence that at the time he had a drug habit. The Judge refers to the applicant’s difficult upbringing and the support from his family, as well as the report from a psychologist which refer to the applicant having mental health difficulties. The Judge reduced the non-parole period from 12 months to 10 months.
Paragraph 8.1.1(1)(f) of the Direction allows the Tribunal to consider whether the applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The Tribunal has been provided with copies of several Incoming Passenger Cards (IPCs) completed by the applicant between 2008 and 2013. In these, he failed to declare his convictions. The applicant told the Tribunal that he forgot about the earlier convictions and also that he did not understand he had to disclose these but the Tribunal considers the question on the IPC about past convictions to be quite unambiguous. As the applicant would have been aware of his multiple convictions, it is difficult to see how he could forget these or not realise the need to disclose these. The Tribunal finds that the applicant has not been truthful in his dealings with the immigration authorities.
The Tribunal has had regard to the repeated nature of the offending and the fact that the offences span over approximately ten years. It is significant that the applicant has been convicted of crimes involving violence to others or damage to the property of others. The circumstances of the offending are described above. The information indicates that in 2014 the applicant had, without any excuse or provocation, punched a restaurant worker who refused to serve him with food and had been convicted of assault occasioning actual bodily harm. His other conduct included entering premises of another person, when he was expressly asked not to, and throwing her furniture from the balcony, causing damage to the property and causing the victim to feel apprehensive.
There are multiple drug-related offences. The Tribunal notes that the offending seems to be of increasing seriousness, with the initial offences resulting in relatively minor fines and the most recent offending resulting in a custodial sentence. The Tribunal considers offences relating to the supply of prohibited drugs to be serious, having regard to the potentially devastating effect that drugs could have on individuals and the community. All these factors indicate to the Tribunal that the applicant’s conduct to date has been serious.
The Tribunal has considered the risk to the community, should the applicant reoffend. The evidence from the applicant’s sister, Ms CH, is that the applicant had been using drugs as a means to numb the pain and deal with the trauma because it was easier to turn to drugs. The applicant’s evidence also is that he had self-prescribed medication to numb the pain. It is of some concern to the Tribunal that if the applicant is unable to deal with trauma or difficult situations in the future, he may again turn to drugs or alcohol. Ms CH told the Tribunal that if the applicant is released, she would help him not to commit crimes in the future, provide him with a loving home and greater family support and attend rehabilitation meetings with him. She expressed the view that the applicant poses no risk to the community. The Tribunal accepts that Ms CH genuinely holds these views but the Tribunal is not convinced that Ms CH would necessarily have an impact on the applicant’s behaviour, should he choose to drink, take drugs or reoffend.
Ms B’s evidence to the Tribunal is that the applicant committed offences because ‘he had no choice’ and needed money. While she acknowledges that he was employed, she states that he needed more money to support the family and also his own drug habit. If true (and the Tribunal does not necessarily consider Ms B’s views to be accurate, even if genuinely held), it is of concern to the Tribunal that the applicant would prefer to turn to crime to earn more money if he believes what he earns from employment to be insufficient for his needs.
In his submission to the delegate dated 20 September 2021 and evidence to the Tribunal the applicant states that his psychological impairment owing to traumatic experience in his childhood should be taken into account in giving him a second chance. The applicant claims that he understands the harm of his actions to himself and the society and is remorseful. (The Tribunal is mindful that the applicant expressed the same remorse and claimed to have been reformed in his earlier submissions in March 2020 before reoffending). The applicant submits that the has rehabilitated in prison, has an excellent prison record, he will continue to work towards his rehabilitation and making a contribution to society.
The applicant refers to the crime he had witnessed at the age of 16, stating that it had left a severe impact on his mental health and he states that his criminal conduct is the result of his poor mental health condition. The applicant submits that his rehabilitation would mean he is no longer a threat to the community.
In his statutory declaration provided to the delegate, dated March 2020 the applicant concedes that he has a history of offences in Australia for which he has expressed remorse. The applicant requests that his background and trauma he experienced at the age of 16, which ‘mires [his] mind forever’ should be taken into account. The applicant states that he had never been sentenced to imprisonment but had a two year intensive correction order issued in November 2018. He states that with the help of his partner, he has been able to manage his condition and stayed out of trouble and because of his commitment and persistency, the order ran for only one year and ceased in November 2019. The applicant states that he was considered no risk to the community and no longer required restrictions and reporting obligations. (The Tribunal is mindful that at the time of this decision, the applicant’s statement is no longer accurate because he was convicted of further offences, involving a term of imprisonment, in 2020-21).
In oral evidence, the applicant stated that part of his motivation for committing crimes was financial, as his sister lost her job and he felt he had to contribute to the household. The applicant states it was not ‘his best decision’. This evidence is of some concern to the Tribunal as it suggests that the applicant had made a conscious and what he believed rational decision to engage in crime in order to earn money. The applicant does not deny that financial gain was part of the motivation for him to engage in drug offences. The applicant has not satisfied the Tribunal that, should similar circumstances arise in the future, or if he feels in the future that he needs money for whatever purpose, he would avoid engaging in criminal conduct.
There is before the Tribunal a psychological educational assessment completed by Ms Carol Hayek on 2 September 2022. The Tribunal considers it to be of limited value. Firstly, the Tribunal notes Ms Hayek’s reference to the request made by the applicant’s representative to assess whether the applicant poses a threat to the community and ‘the level of irreparable disadvantage’ if he is to be deported. That instruction appears to pre-empt (or assume) a finding that there would be disadvantage or if the applicant is to be deported and such disadvantage would be ‘irreparable’. In the Tribunal’s respectful view, the nature and the extent of the disadvantage, and its very existence, are not matters to be determined by the applicant’s migration representative. Secondly, much of the information in the report appears to be based on the applicant’s self-reporting which may have been self-serving and unreliable. Thirdly, Ms Hayek suggested in oral evidence that at least some of the information supplied by the applicant had been inaccurate, for example, when the applicant reportedly stated that he had complied with court conditions when that was not the case. (The applicant’s evidence to the Tribunal is that he did disclose that information to the psychologist and her report is not accurate.) Such inaccuracies diminish the probative value of Ms Hayek’s report.
Ms Hayek’s report repeats much of the evidence contained in the applicant’s own statement and other reports (and in oral evidence, Ms Hayek confirmed that at least some of the information in her report is based on the applicant’s self-reporting and was inaccurate or incomplete). Ms Hayek refers to the applicant self-reported addiction to Xanax and his past engagement with drug and alcohol rehabilitation programs. Ms Hayek refers to the applicant’s criminal history and states that during detention, he had completed an addiction course and other courses, as well as counselling. Ms Hayek states that the applicant has expressed his remorse and regret that the financial and psychological stress placed on him during Covid was not better managed. It is stated that the applicant has developed an awareness of the impact his offending has on the community. Ms Hayek states that the applicant presented as genuinely remorseful and regretful. Ms Hayek outlines the various assessments completed by the applicant, noting that his symptomatic distress levels are moderate and, in some areas, approaching the clinical range, there is evidence of self-deprecation and his depressive symptoms are elevated. He also has anxiety symptoms above normative means. Another assessment shows ‘extremely low risk’ of chemical abuse, very low level of antisocial tendencies. Ms Hayek offers a diagnosis of post-traumatic stress disorder and a comorbid presentation of sedative, hypnotic or anxiolytic use disorder being moderate in sustained remission. Ms Hayek states that the applicant expressed regret and remorse in relation to the offending and she refers to evidence from the CPS (notably, not her own conclusion) that there is a low risk of reoffending. In oral evidence Ms Hayek confirmed her view that there is a low risk of reoffending and the Tribunal gives this some, but limited weight, in light of the concerns with the accuracy of the information before Ms Hayek, as noted above.
The applicant’s earlier partner Ms K provided a declaration to the delegate, in which she expresses the view that the applicant’s past ‘mistakes’ and behaviour was a result of his trauma which he is now managing with her support and professional programs he completed. Ms K states that the applicant has promised her that he has learned his lesson and has followed his correctional orders closely and the cessation of the two-year intensive correction orders is a testimony to his change. Ms K states that she supports the applicant and believes his promise. The Tribunal gives this evidence very limited weight, because the applicant did reoffend after Ms K’s statement was prepared.
The Tribunal also acknowledges the evidence of the applicant’s adoptive mother Ms B and his sister Ms CH to the Tribunal that they would provide greater support to the applicant if he is in the community and will ensure his attendance at a rehabilitation program. The Tribunal accepts that they genuinely intend to do so but as noted elsewhere, the Tribunal is of the view that they would have only a limited opportunity to ensure the applicant’s engagement in such programs if he chooses not to engage.
There is evidence before the Tribunal that the applicant had participated in, and completed, a number of intervention programs. He was referred to the CREDIT program in 2015 and had also received professional counselling. In his oral evidence to the Tribunal the applicant confirmed that he had participated in a variety of rehabilitation programs over the years. The Tribunal is mindful that the applicant continued to reoffend despite these intervention programs. It cannot be said, in the Tribunal’s view, that the applicant’s past engagement in rehabilitation programs has been successful in preventing further offending.
The Tribunal has had regard to the report prepared by Ms Julie-Anne Younis, a psychologist with the Western Sydney Local Health District in relation to an earlier offence. Ms Younis refers to the applicant’s background, his father’s drinking and beatings and his reported use of alcohol as a means of coping with the trauma. Ms Younis states that the applicant presented to a Youth Health Service in March 2013 requesting assistance to deal with his mother’s death and had committed to the process of counselling, having attended 45 counselling sessions at the Service. The applicant reported to have admitted to the use of alcohol and cannabis to manage the feelings of anxiety and depression but he reports to no longer use alcohol and drugs as he understands their impact on his behaviour. It is stated that the applicant had completed a Christian-based rehabilitation program in 2009 for ten months, which he found valuable. Ms Younis reports that the applicant has insight into the effect of anxiety and trauma on his life choices and has a ‘strong idea’ around the impact of substances on his behaviour, leading to the significant reduction in AOD consumption. Ms Younis refers to protective factors being intelligence and insight, strong work ethic and strong sense of empathy for the well-being of others. The risk factors have been identified as social isolations, history of self-medication with substances when he feels overwhelmed by feelings of sadness, anxiety and loneliness. It is stated that the applicant has been ‘almost abstinent from alcohol and cannabis’ since late 2014 and is aware of the risk of relapse and has been connected to a drug and alcohol service.
The Tribunal considers some of that evidence problematic. The report was prepared in 2014. As noted above, despite the applicant’s engagement in various rehabilitation programs and programs to address his mental health issues, the applicant’s offending continued and became more serious, culminating with a custodial sentence. He continued (or resumed) the use of drugs despite claiming to understand the adverse impact of drugs and alcohol on his conduct. Indeed, in 2015, 2018 and 2021 the applicant was convicted of drug-related offences. It cannot be said, in such circumstances, that the applicant’s engagement in the various rehabilitation programs has been successful or effective. It failed to preclude the repeat of the offensive conduct.
The Tribunal has considered the sentencing remarks made by Magistrate Still in relation to the 2015 offences. It is notable that at that time, the applicant was recognised as having a PTSD and had been seeing a psychologist. The applicant gave evidence at the time of having engaged in rehabilitation programs which, he claimed, he had done successfully. The Magistrate warned the applicant at that time that the offending was serious and that he could go to jail. These matters did not prevent the applicant from reoffending and the applicant had committed multiple further offences after 2015, despite his engagement in the rehabilitation programs and obtaining professional help.
There is before the Tribunal the sentencing assessment report prepared in November 2018 by the Community Corrections Officer Sam Willmott. It is stated that initially, the applicant’s attitude was that he was ‘at the wrong place at the wrong time’ and he required prompting to develop insight into his behaviour, which he rationalised for pursuit of financial gain. He later acknowledged that acceptance by his pro-criminal peers was a factor that led to offending. It is stated that the applicant indicated that he experienced difficulty distancing himself from his pro-criminal peers, particularly if they were in need. It is stated that the applicant could not provide alternate courses of action in the future, should he find himself under financial strain. Mr Willmott states that the applicant has been assessed as medium / low risk of reoffending.
The Tribunal has also had regard to the pre-sentencing report dated 16 November 2016, prepared by Ms Colleen Sutherland. Ms Sutherland identifies factors related to offending as substance use (alcohol and drug) and mental health (unsolved grief, anxiety and depression). Ms Sutherland refers to the risk of reoffending as low / medium, identifying criminogenic needs as emotional / personal.
The Tribunal considers it significant that in his declaration sworn in March 2020 the applicant expressed remorse for his conduct, appears to appreciate the significant repercussions of his conduct (he was facing the prospect of having his visa cancelled), he states that with professional help, he is able to manage his behaviour and would not reoffend. The applicant requested that he be given a second chance. However, the most recent (and the most serious) offences resulting in a custodial sentence occurred in January 2021, after the applicant’s representations. That is, despite the real possibility of having his visa cancelled and of being removed from Australia, despite understanding the seriousness of his actions and his claimed remorse and ability to lead a life without crime, the applicant continued to offend. In these circumstances, the applicant’s present undertaking not to reoffend, his willingness and his ability to comply with the law, are, in the Tribunal’s view, unreliable.
In his pre-sentencing submission to the court dated 10 June 2021 the applicant also stated that he had a chance to reflect on his actions of which he is ashamed. The applicant stated that at the time of the offences, he was going through a rough time and his life spiralled downhill and having a drug addiction made it worse. The applicant states that he wants to lead a normal life after he is released and this has been a ‘wakeup call’ for him. As noted above, these comments are not dissimilar to those expressed by the applicant earlier, without the change in the applicant’s behaviour.
In his evidence to the Tribunal the applicant states that he is genuinely committed to rehabilitation (as evidenced by his conduct in prison and immigration detention), is genuinely remorseful and has been a ‘model to others’ while in prison. The applicant submits that he has had no issues while in detention, he has been recognised as a ‘model worker’ and a role model to other inmates. The applicant refers to character references provided by other detainees and the support and mentoring he had provided to others. He states that he has not used drugs or alcohol (which had influenced his past conduct) since his detention and his reliance on drugs and alcohol has reduced.
The applicant told the Tribunal that going to prison has been a ‘wakeup call’ for him. The Tribunal is prepared to accept that imprisonment has been a significant experience for the applicant but, as noted elsewhere, the Tribunal is also mindful of the fact that the applicant has had multiple convictions prior to his incarceration, he has had many dealings with the criminal justice system and would have been well aware of the serious consequences of his conduct. Indeed, he had been warned by the sentencing magistrates of the consequence of reoffending and, despite that, continued to be involved in drug-related offending.
The Tribunal places considerable weight on the fact that the applicant had in the past completed several rehabilitation programs and, on the evidence of the psychologist and his own evidence to the Tribunal, had gained insight into the effects of drug and alcohol use on his conduct. He had also been warned several times during sentencing after the various offences of the consequences of his conduct. Yet he continued to offend. The Tribunal places considerable weight on the fact that in early 2020 (when the applicant would have recognised the potentially serious consequences of his offending), the applicant also declared that he was rehabilitated and would not reoffend, seeking a ‘second chance’, yet he committed further offences. In these circumstances, the Tribunal considers the applicant’s promise of rehabilitation and his undertaking not to reoffend further to be unreliable and unpersuasive. The Tribunal does not accept that the more recent programs that the applicant had engaged in and his stated abstinence from drugs and alcohol during detention would necessarily prevent further reoffending.
It is significant, in the Tribunal’s view, that considerable part of the applicant’s motivations in committing drug offences is to make money. The applicant states in his written and oral evidence to the Tribunal that he wanted to make money, either because he was in financial difficulty (for example, having limited income during Covid) or to support the family or to fund his own drug habit and a better lifestyle. At least some of the applicant’s offending does not appear to be caused by (or stem from) his past trauma but, rather, he was motivated by personal gain. This motivation may remain even if the applicant receives counselling and is able to deal with his grief. That is, despite the applicant’s participation in the rehabilitation programs, he may still be motivated to reoffend if the applicant decides that he needs money.
The Tribunal is also mindful that the applicant has spent little time in the community since the most recent offences. While it may be possible that the applicant may have had access to drugs in immigration detention and possibly in jail, drugs would not have been as readily available to him as they would be in the community. Neither could the applicant commit driving offences while in detention but would have access to a motor vehicle if he is in the community. His driving offences are multiple. In these circumstances, the applicant’s undertaking not to use drugs and alcohol and to abide by road rules has not been adequately tested.
The Tribunal has formed the view that the risk of reoffending remains, even if that risk is low. The risk may be dependent on the applicant’s use of drugs alcohol and in the Tribunal’s view, his ability to abstain from drugs and alcohol has not been adequately tested at present. The Tribunal finds that if the applicant was to reoffend, the risk to the Australian community would be significant, given the potential seriousness of the offences involving drink driving and unlicensed driving and offences involving the use and supply of drugs. The Tribunal has formed the view that the protection of the Australian community weighs heavily against the revocation.
Whether the conduct engaged in constituted family violence
The conduct engaged in did not constitute family violence. This consideration is neutral.
The best interests of minor children in Australia
The applicant states in his submission to the delegate that he is the only father figure to his niece, T, who is an Australian citizen and whose father died before she was born. The applicant submits that his removal would mean that this Australian family would be seriously disadvantaged and it will ‘leave a dent’ in the upbringing of T. In oral evidence to the Tribunal the applicant had also described his relationship with T and the parental role he had in relation to the child. The Tribunal is prepared to accept that evidence.
There is before the Tribunal medical evidence relating to T’s mother, Ms CH, confirming that she has a number of health issues. The evidence is that the applicant has helped care for the child, looks after her during the school holidays, helps pick her up from school, etc. It is stated that the applicant is a father figure for the child. the Tribunal accepts that evidence.
As noted below, the Tribunal acknowledges the evidence provided to the Tribunal by T’s mother Ms CH and accepts the special circumstances surrounding the birth of T and her upbringing and the strong bond she has developed with the applicant. The Tribunal accepts that the applicant has a close relationship with the child. The Tribunal accepts that prior to his incarceration, the applicant had cared for the child and had maintained a parental role. The Tribunal accepts the evidence of Ms CH about the relationship between the applicant and T. Ms CH’s evidence to the Tribunal is that the applicant has also provided financial support to the child in the past and the Tribunal is prepared to accept that evidence. The Tribunal also acknowledges the evidence that the child’s mother and grandmother rely on the applicant and the Tribunal acknowledges that such reliance may be greater in circumstances where the child’s mother has been diagnosed with several mental health conditions. The Tribunal is prepared to accept that if the applicant’s removal from Australia would adversely affect T’s mother and grandmother, their well-being would also be relevant to T’s own well-being.
In all these circumstances, the Tribunal has formed the view that it is in the best interests of T that the cancellation of the applicant’s visa be revoked. This weighs heavily in favour of the revocation.
The applicant refers to another Tribunal decision where it was found that the best interests of a child outweighed other considerations. The Tribunal acknowledges that evidence but must determine each case on its own facts and the weight to be given to different considerations would be different in each case because the facts of each case are different.
Expectations of the Australian community
Clause 8.4 of Direction 90 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Clause 5.2(3) of the Directions sets out the government’s view in relation to community expectations:
The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
The applicant refers to the events concerning the death of his mother and the effect it has had on him. There is evidence from health professionals and others confirming that evidence, which the Tribunal accepts.
The applicant submits that the expectations of the Australian community would be to give him another chance, let him learn from his past and to enable him to have an ongoing relationship with his family in Australia and, in particular, with his niece.
The Tribunal is of the view that the Australian community would feel a great degree of compassion and empathy in relation to a person with his experience. However, regard must also be had to the applicant’s conduct. In particular, the Tribunal has formed the view that the repeated offensive behaviour over a number of years, violent conduct in relation to another person (the assault conviction), the fact that the applicant had received multiple warnings from various magistrates and continued to reoffend, and the potential harm to the community arising from drug offences, are such that the Australian community would expect that the applicant should not hold a visa. The Tribunal finds that the community expectations would weigh against revocation.
Other considerations
International non-refoulement obligations
In his declaration to the delegate the applicant stated that he is afraid of his father, who has been released from prison, and that his father may feel that he had betrayed him and may hurt him. In oral evidence, the applicant suggested that the Samoan community and his father’s immediate family may feel that he had betrayed them as he was a witness at his father’s trial. He also suggested that his own siblings may have a vendetta against him because he has left the country and moved on.
The Tribunal does not accept that evidence. There is nothing before the Tribunal to indicate that either the applicant’s father, his family or members of the Samoan community either in New Zealand or in Australia had approached the applicant in relation to the 2006 incident and expressed any intention to harm him (he claims to have had no contact with them or with his father since the trial) or took any steps to do so. There is no evidence that the applicant has been subjected to any harm or threats of harm. Indeed, there is no evidence that the applicant’s father, his family or the Samoan community or anyone else has had any interest in the applicant since 2006 when his father committed the offence till now.
The applicant’s evidence to the Tribunal is that he has not had any contact with his father since his father’s trial and he has not had contact with his father’s family. It does not appear that the applicant’s father or anyone else (including members of his father’s family or the community) had expressed any desire to harm the applicant and his suggestion that they would is nothing more than mere speculation. The applicant concedes that he does not know if any family members or others have any ‘vendettas’ against him.
Neither has the applicant satisfied the Tribunal that the authorities in New Zealand would be unwilling or unable to protect the applicant. That is, there is no evidence before the Tribunal to indicate that the applicant would be denied protection for any reason.
The Tribunal has found the applicant’s claim in relation to the non-refoulement claims to be extremely vague, lacking in detail and unsupported by evidence. The Tribunal does not accept that in these circumstances, there is a real chance that the applicant would experience any serious or significant harm upon return to New Zealand which gives rise to Australia’s non-refoulement obligations. The Tribunal does not consider that the applicant’s other claims or evidence would give rise to such obligations.
The Tribunal has formed the view that the non-refoulement obligations are not engaged in this case. This consideration is neutral.
For the sake of completeness, the Tribunal notes that during the concluding remarks on the second day of the hearing the applicant informed the Tribunal that the previous night he had made the application for another visa but during the short adjournment on the second day of the hearing the applicant told us that he had withdrawn that application. The Tribunal draws no adverse conclusions from that process and acknowledges that the applicant does have the option of seeking a protection visa in the future. Should the applicant make that application in the future, his claims would be assessed with respect to Australia’s international obligations.
Extent of impediments if removed
In his submission to the delegate the applicant states that he has no connection to New Zealand and that he has made a life in Australia. He refers to his employment and payment of taxes in Australia. The Tribunal accepts that evidence. The Tribunal accepts that the applicant has little or no support in New Zealand (he claims to have no contact with his siblings) and given the length of his stay in Australia, the Tribunal accepts that the applicant will not receive social, medical and / or economic support in New Zealand.
There would be no language or cultural barriers to the applicant’s return to New Zealand. The evidence before the Tribunal is that the applicant has been employed throughout his stay in Australia (with some breaks) and his oral evidence to the Tribunal is that he would have no difficulties obtaining employment in New Zealand. The Tribunal does not consider that the applicant would have difficulties in establishing himself and maintaining basic living standards in New Zealand.
As the list in Direction 90 is not exhaustive, the Tribunal has considered other impediments if the applicant is removed from Australia.
The applicant refers to his long term relationship with his Australian partner, noting that if he is to be deported, she would not have the funds to visit him in New Zealand. The applicant submits that his partner relies on him financially. Ms K stated in her written statement to the delegate that she had lost her job during Covid and was fully reliant on the applicant and if he is removed from Australia, she would be in a ‘dire financial situation’. She states that she cannot afford to visit him in New Zealand and he would be unable to return to Australia and the situation is ‘unbearable’ for both of them. As that relationship with Ms K appears to have ended, the Tribunal does not consider that there would be any impediment to Ms K if the applicant is removed.
In his more recent submission to the delegate, the applicant refers to his relationship with Ms H. He states that Ms H is a stage IV cancer survive and has a number of health complications. The applicant claims he is the only carer she had before he was sent to prison and she will be dependent on his care and support. Ms H’s evidence to the Tribunal is consistent with that.
The applicant provided to the Tribunal evidence of having made arrangements to register the relationship with the Registry of Births, Deaths and Marriages. The Tribunal is mindful that his step was taken in late September 2022, shortly before this matter was listed for a hearing. The Tribunal accepts that the relationship exists between the applicant and Ms H and that they consider the relationship to be genuine, committed and ongoing.
Ms H in her declaration and oral evidence refers to her particular circumstances and upbringing, stating that her children were taken away from her and she was deprived of motherhood. (There are before the Tribunal the birth certificates of Ms H’s two children and consent court orders made by Registrar Campbell providing for the children of Ms H’s relationship to reside with their father and for the father to have the primary responsibility for their care, welfare and development).
Ms H states in her evidence that she receives unconditional love from the applicant and because of him, she has been able to survive cancer. She states that she depends on the applicant for her survival. Ms H refers to the injuries she had sustained in a car accident (the Tribunal has been provided with medical evidence relating to Ms H), stating that she has difficulties moving and the applicant is the only person who has been caring for her and can care for her. Ms H told the Tribunal that during the applicant’s incarceration, she relies on herself and an elderly neighbour to help her but there is nobody else available to take care of her.
Ms H states in her declaration and oral evidence that she wants to have a child with the applicant and his departure from Australia would mean she would be deprived of a chance to be a mother and ‘would be deprived of a life’. Ms H spoke of her cancer diagnosis, stating that she has put her life at risk by not having a medical procedure because she wants a chance to have another child. The Tribunal accepts that if the applicant is removed from Australia, it may affect the possibility of him having children with Ms H (who told the Tribunal she would not accompany the applicant to live overseas).
Ms H gave oral evidence to the Tribunal, repeating the information in the written evidence. She spoke about her upbringing, her marriage and the circumstances in which her former partner was given custody of the children. Ms H spoke about her health conditions and their effect on her daily life. Ms H spoke about the support the applicant provided to her, particularly in the aftermath of the car accident.
Ms H told the Tribunal that she wants to have another child with the applicant (she describes the limited time she has due to health issues) and states that they were seriously planning a relationship shortly before the applicant was sentenced and they were planning to conceive once he was released from jail. Ms H spoke about their love and respect for each other and her dependence on the applicant. Ms H states that she depends on the applicant financially (as she can only work limited hours due to her health), emotionally, physically and in other respects. The Tribunal accepts Ms H’s evidence, although the Tribunal is also mindful that Ms H and the applicant had been living apart for many months due to the applicant’s incarceration.
Ms H expressed the view that the applicant is not a ‘high risk’ to the Australian community and states that she would support him, take him to appointments and a drug and alcohol rehabilitation centre. Ms H states that she is planning to ‘fix’ the applicant (help him deal with the problems) before they have a child.
Ms H states that she is aware of the applicant’s criminal history and states that she would look after his well-being and make sure he ‘does not fall into the wrong path again’. She told the Tribunal that she would take him to a rehabilitation program and ensure he has ‘closure’ for the 2006 incident before they have children. The Tribunal acknowledges that undertaking but it is unclear how Ms H would be able to enforce it, should the applicant choose to reoffend. This is particularly so as Ms H’s evidence to the Tribunal is that she was aware in 2019 that the applicant was dealing drugs and she was also aware that he was taking Xanax. It does not appear that Ms H either took any steps to help the applicant with rehabilitation or that she prevented him from reoffending.
The Tribunal accepts for the purpose of this review, that the applicant and Ms H may be in a genuine relationship. The Tribunal acknowledges Ms H’s specific personal circumstances and accepts that she is reliant on the applicant emotionally and physically (when the applicant was in the community) and that she plans to have children with the applicant.
Ms H’s evidence to the Tribunal is that she has lived her whole life in Australia and has never lived anywhere else. Her children are in Australia and she claims that it would be difficult for her to find a job in New Zealand and she could not afford to travel back and forth between Australia and New Zealand. The Tribunal accepts that considerable hardship would be caused to Ms H if the applicant was removed from Australia.
The Tribunal has been provided with a psychological report prepared by Sam AlBassit in relation to Ms H. The report refers to Ms H’s reports of her traumatic and abusive childhood and marriage at the age of 16, with that relationship being controlling and abusive. It is stated that Ms H entered another relationship in 2014 which was also controlling and abusive and Ms H reports to have suffered trauma physically, emotionally and psychologically. Mr AlBassit concludes that the psychological assessments of Ms H determined that the symptomatology presented is consistent with a dual diagnosis of complex PTSD with major generalised anxiety. It is stated that a DASS-21 questionnaire was administered to Ms H and she returned a reading in the ‘severe’ range for depression, anxiety and stress and in another assessment Ms H returned a score of ‘severe’ PTSD symptoms. The Tribunal accepts that evidence.
In his statement to the delegate dated 11 September 2021 the applicant refers to the close relationship he has with his adoptive family in Australia and being a role model to those around him, including his niece. The applicant refers to his relationship with his partner. The Tribunal is prepared to accept the applicant’s evidence that he has a close relationship with his Australian family and his partner.
The applicant’s adoptive sister Ms CH provided a declaration to the Tribunal in which she referred to the circumstances surrounding her fiancé and her grandfather. Given the sensitive nature of that information, the Tribunal will not summarise it here but has had regard to the information provided by Ms CH and has given it due weight. In particular, the Tribunal acknowledges the close relationship the applicant has developed with his adoptive niece and accepts that his departure from Australia may have a detrimental effect on his adoptive family in Australia.
In oral evidence, Ms CH repeated the information contained in her written evidence. Ms CH explained the circumstances relating to her fiancé’s death and the effect it has had on her. Ms CH spoke about her mental health, stating that she has had two mental health breakdowns in the past and has good and bad days. Ms CH states that her mental health issues affect her parenting, there are days when she cannot leave the house and she must rely on her family to take care of the child. Ms CH states that for the first few years of her life, her daughter was raised by her mother and grandfather and when her grandfather passed away, it has had a significant effect on her daughter. Ms CH states that when her grandfather passed away, the applicant came into their lives and quickly they developed a close relationship. He would take the child to and from school, plays and reads with her and Ms CH states that the applicant plays a parental role in her daughter’s life as they discuss and make decisions about the child’s well-being together. She expressed the view that if the applicant is to leave Australia, it would ‘destroy’ her daughter.
Ms CH’s evidence to the Tribunal is that since the applicant’s detention, T has had electronic contact with him, which she enjoys, but the family otherwise rely on friends and others to help with child minding arrangements and Ms CH states that she had to give up some work to be able to care for her daughter. The Tribunal accepts Ms H’s evidence.
There is before the Tribunal a report prepared by Ms Elizabeth Byron of Apex Psychology, dated 4 February 2021 in relation Ms CH, the applicant’s adoptive sister. The report refers to Ms CH experiencing a range of complex mental health difficulties and diagnoses of generalised anxiety disorder, major depressive disorder in the context of complex PTSD and meeting diagnostic criteria for borderline personality disorder, impacting her functioning and well-being.
The Tribunal has been provided with a statement prepared by the applicant’s adoptive mother Ms B, addressed to the sentencing judge. Ms B states that over the years, her daughter Ms CH battled her own mental health issues and Ms B states she relied heavily on the applicant to step in and support her through the tough times, and to support his sister. Ms B states that her daughter works full-time, so she relies on the applicant to pick up his niece from school at short notice and he also looks after his niece during school holidays. Ms B states that she and the applicant rely on each other during the tough times.
In oral evidence, Ms B also stated that the applicant is a father figure for her granddaughter, as she has not known her father and since the passing of T’s grandfather, the applicant has always been there for her. Ms B refers to her own health and states that she supports her daughter whenever needed but she is ‘too old’ and finds it to be ‘too much’. Ms B expressed the view that if the applicant is removed from Australia, it would have significant impact on her granddaughter, and would ‘send her daughter backwards’ in terms of her mental health. Ms B stated that she herself would also be affected if the applicant is to leave Australia but would try to visit him overseas.
Having regard to the above evidence, the Tribunal accepts that if the applicant is removed from Australia, it would result in separation of the applicant from his family in Australia and cause significant hardship to his family in Australia. While the Tribunal acknowledges that the applicant will be able to maintain electronic contact with his family in Australia, the nature of relationships will necessarily be different to what could exist when the applicant is near his family in Australia. The Tribunal accepts that there would be a significant impediment to the applicant and others if he is removed from Australia. This weighs heavily in favour of the revocation.
Impact on victims
There is no evidence before the Tribunal concerning any impact on victims. This consideration is neutral.
Links to the Australian community
The applicant has been residing in Australia since the age of 17. In his declaration provided to the delegate, the applicant states that he came to Australia because his father murdered his mother in 2006 and was imprisoned. The applicant states that upon arriving in Australia, he had severe depression and voluntarily went to a rehabilitation centre in 2009 and completed a depression-alcohol program. The applicant states that he has been working and paying taxes, has been with his current employer since 2013 and has the employer’s support.
The applicant refers to his relationship with an Australian citizen Ms H. Her evidence to the Tribunal is summarised above. As noted above, for the purpose of this review, the Tribunal accepts that the applicant has a genuine and ongoing relationship with his partner.
There is before the Tribunal a statement from Mr Hawatt, the applicant’s employer, dated July 2016. Mr Hawatt refers to the applicant being quiet and reserved and willing to help, courteous and reliable.
The Tribunal accepts that the length of the applicant’s residence in Australia is significant and that during that residence he has formed strong ties to Australia, including family, social, employment and other ties.
The Tribunal accepts that the applicant has extensive family and other links to Australia. That consideration weighs in favour of the revocation.
Other claims
The applicant suggests in his written statement to the Tribunal that interference with a family relationship of an Australian citizen may violate his partner’s rights. The Tribunal finds that statement odd, given that it is the role (and the responsibility) of this Tribunal to consider the decision not to revoke the cancellation of the applicant’s visa and it cannot be reasonably said that because the applicant is in a relationship with an Australian citizen, the only outcome of this review is to revoke the cancellation because there would otherwise be interference with the rights of an Australian citizen. The Tribunal’s considerations relate to the applicant and not an Australian citizen and while the effect of the cancellation of the applicant’s visa on his partner is relevant to his review, it is not a determinative issue. The applicant also submits (by reference to Hendrick Winata and So Lan Li v Australia CCPR/C/72/D/930/2000 UN HRC, 16 August 2001) that his removal from Australia would mean arbitrary or unlawful interference with family affairs of Australian citizens. The Tribunal does not accept argument because any ‘interference’ cannot be said to be arbitrary or unlawful if the applicant’s removal results from a process envisaged by the legislation. An alternative would be that no person could ever be removed from Australia under any circumstances if an Australian citizen is affected and that cannot be what the legislation envisages. The applicant also submits that the principles in ICCPR are relevant here and he refers to another Tribunal decision where these were considered. The Tribunal acknowledges that decision but is of the view that each case is to be determined on the basis of its own facts and the weight to be given to each consideration is a matter for this Tribunal. As for Australia’s obligations under ICCPR, the Tribunal has addressed the various factors and the applicant’s claims elsewhere in this decision.
The applicant also submits that he has been punished for his crimes in Australia and there is little likelihood of him reoffending and measures can be taken to ensure reoffending does not occur. The applicant submits that his removal from Australia is likely to constitute double punishment for his conduct. Again, the Tribunal considers the applicant’s submission misguided. A decision whether or not to revoke the cancellation of his visa is not a punishment for his conduct. It is a consequence of the applicant being found not to pass the character test. It is the application of the character test that gave rise to the possibility of the visa being cancelled, and the character test (and any consequence of its application) are not designed to be a punishment for the applicant’s conduct. Again, the applicant’s submission would suggest that a person who has been convicted in Australia could never have a visa cancelled or be removed from Australia because in each case, that could constitute ‘double punishment’. That is clearly not what the legislation envisages as it does specifically provide that certain convictions may result in the visa holder not passing the character test. Further, the likelihood of reoffending is one of many considerations that are relevant to the Tribunal’s decision but it is not the sole consideration, nor a determinative one.
The applicant also submits that given his rehabilitation, low risk of offending, family links to Australia and the legal impact of his removal from Australia, non-revocation of the cancellation would ‘inflict unusually cruel and harsh punishment’ and breach the applicant’s and others’ human rights because it would lead to a life-term separation from his home, family, job and adopted country. The Tribunal acknowledges that if the applicant is removed from Australia, there is little or no likelihood of him obtaining another Australian visa in the future, and that would lead to his separation from his home, family, job and adopted country. These are all relevant considerations but not determinative, and must be weighed with other considerations set out in Direction 90. The Tribunal’s consideration of the applicant’s evidence is set out elsewhere in this decision. Essentially, the Tribunal accepts that significant impediment would be caused to the applicant and others if he is removed from Australia and the Tribunal has given this consideration due weight in favour of the revocation.
The applicant provided character references from a number of detainees at VIDC. The Tribunal acknowledges that evidence and accepts that those who provided statements believe the applicant to be a good person. The Tribunal also acknowledges the evidence about the support the applicant provides to others.
The applicant’s representative submits that the applicant is a person with disability and that the Convention on the Rights of Persons with Disabilities applies to the applicant. As noted above, the Tribunal accepts the evidence in the various professional reports and accepts that the applicant has mental health issues. That evidence is not in dispute. The Tribunal has regard to that evidence when reaching its decision. Even if the Convention on the Rights of Persons with Disabilities applies to the applicant, it cannot prevent the lawful operation of the Australian law.
The applicant submits that the Minister can cancel his visa again, should he recommit other offences. The Tribunal accepts that is the case, but to state that a cancellation should be revoked simply because there may be future opportunities to cancel a visa would negate and render the cancellation provisions of no effect.
Conclusion
The Tribunal has found that the applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the applicant had committed serious offences, in particular, the drug offending, and that there remains a risk of reoffending. The nature of the offending and the applicant’s general disregard for the law evident from persistent offending, including while on bond not to reoffend, are such that his conduct is against the expectations of the Australian community. The Tribunal has formed the view that the protection of the Australian community and the expectations of the Australian community weigh heavily against the revocation. These are primary considerations and the Tribunal gives these significant weight.
The other primary consideration, the best interests of a minor child in Australia, weighs strongly in favour of the revocation. In this case, the Tribunal accepts that the applicant’s niece would be adversely affected if the applicant was to leave Australia and she may also be affected if her mother and grandmother are affected by the non-revocation of the applicant’s visa.
With respect to other considerations, the Tribunal accepts that the applicant has significant ties in Australia, in particular the presence of his adoptive sister and niece, mother and partner. He has been employed in Australia and has formed social and employment ties in this country. The applicant has been living in Australia since he was a minor and came to Australia to avoid what would have been a very difficult situation in New Zealand. The Tribunal has formed the view that there would be significant impediment to the applicant and others if the applicant is removed from Australia and that weights strongly in favour of revocation.
The Tribunal has decided that Australia’s non-refoulement obligations do not arise in this case. Other claims made by the applicant are addressed above but the Tribunal does not consider these weigh strongly in favour of the revocation.
Overall, the Tribunal acknowledges the significant impediment to the applicant and others if he is removed from Australia, his strong ties to Australia and, most significantly, the best interests of a child and these are all factors that weigh in favour of the revocation. However, in the particular circumstances of this case, the Tribunal has decided to give greater weight to the protection of the Australian community and the expectations of the Australian community. The Tribunal has formed the view that the applicant has engaged in serious and repeated conduct and that there remains a risk of reoffending (even if the risk is not significant). The Tribunal has decided that, in all the circumstances of this case, these two primary considerations should be given greater weight. The Tribunal has decided that the decision under review should be affirmed.
In his submission to the Tribunal the applicant requested the Tribunal to refer the matter to the Minister for personal consideration on the basis that his removal from Australia is likely to cause irreversible harm to others. The Tribunal is mindful, however, that the Minister’s power to substitute a decision in section 351 is only enlivened with respect to a Tribunal’s Part 5 reviewable decision to which section 349 refers. This is not such a decision. The Tribunal does not consider that it has any power to refer the matter such as the present to the Minister under any other provision of the Act.
DECISION
The Tribunal affirms the decision not to revoke the cancelation of a Class TY Special Category (Temporary) visa held by the applicant.
I certify that the preceding 120 (one hundred and twenty) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif
....................................[SGD]....................................
Associate
Dated: 18 October 2022
Date(s) of hearing: 12 & 13 October 2022 Advocate for the Applicant: Mr R Salomonn, Immigration and Citizenship Australia Solicitor for the Respondent: Ms S Edmondstone, Minter Ellison
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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Remedies
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