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

[2021] AATA 78

Simpson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 78 (1 February 2021)

Division:GENERAL DIVISION

File Number:          2020/7058

Re:Codi Alan Simpson

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member Rebecca Bellamy

Date:1 February 2021

Place:Brisbane

The decision under review is affirmed.

.........................[SGD]...............................................
Member Rebecca Bellamy

CATCHWORDS

MIGRATION – Non-revocation of mandatory cancellation of a Special Category (Class TY) (subclass 444) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Nystrom  v Australia UN Doc CCPR/C/102/D/1557/2007 (1 September 2011)
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Uelese v Minister for Immigration and Border Protection [2016] FCA 348

SECONDARY MATERIAL

Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Member Rebecca Bellamy

1 February 2021

THE ISSUE BEFORE THE TRIBUNAL

1. The Applicant is a 32 year old citizen of New Zealand. In February 2005 when he was 16 years old he moved to Australia permanently. The most recent visa granted to him was a Special Category (Class TY) (subclass 444) visa (“visa”).[1]

   [1]  Exhibit G1, Section 501 G-documents, G8, page 40.

2. On 10 October 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2] On 5 November 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”).[3] On 6 November 2020, the Respondent decided not to revoke the cancellation.[4]

   [2]  Ibid, G9 pages 41 to 47.

   [3]  Ibid, G11 pages 52 to 66.

   [4]  Ibid, G3 pages 16 to 27.

3. The Applicant subsequently lodged an application for review in this Tribunal on 12 November 2020.[5] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.

   [5]  Ibid, G1 pages 1 to 6.

4. The hearing of this application proceeded on 20 and 21 January 2021. The Applicant gave evidence via videoconference. The Applicant’s ex-partner and Dr Lisa Zipparo, psychologist, gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.

   LEGISLATIVE FRAMEWORK

5. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

   4The 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.

6. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]

   “…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]

   [6] [2018] FCAFC 151.

   [7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

7. There are therefore two issues presently before the Tribunal:

   ·whether the Applicant passes the character test; and

   ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

8. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]

   [8] Ibid.

   Does the Applicant Pass the Character Test?

9. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

10. On 8 August 2019, the Applicant was sentenced to concurrent terms of imprisonment of four years and six months, three years, and six months (x2). He had already served 341 days in pre-sentence custody and was ordered to serve another four months and 12 days before becoming eligible for parole.[9]  

    [9] Exhibit G1, Section 501 G-documents, G4, pages 28 to 29.

11. Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of her visa to be revoked.

    Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

12. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.

13. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.

14. Paragraph 7(1) of the Direction provides that:

    Informed by the principles in paragraph 6.3 above, a decision-maker:

    …

    b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10]

    [10] The Direction, sub-paragraph 7(1)(b).

15. Paragraph 8(1) of the Direction provides that:

    Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...

16. Part C provides for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

    [11] The Direction, paragraph 13.

    [12] The Direction, paragraph 14.

17. The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they 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.

18. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]

    “…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]

    [13] [2018] FCA 594.

    [14] Ibid, [23].

    BACKGROUND AND OFFENDING

19. The Applicant was born in New Zealand. When he was 11 or 12 years old his father relocated to Perth. In 2003, when he was 14 years old, he moved to Perth with his mother and two younger brothers. Ten months later, his mother sent him back to New Zealand to live with his older half-brother in order to separate him from a negative peer group.[15] He returned to live in Australia permanently in 2005 when he was 16 years old. At that time, he relocated to the Gold Coast with his mother and younger brothers. His mother died in 2015. His father and brothers. He does not know where his half-brother lives.

    [15] Exhibit G1. Section 501 G-documents, G15, page 97; transcript, page 12, lines 1 to 5.

20. The Applicant commenced offending in 2005, only months after he permanently moved to Australia while he was still a minor. He continued to offend until mid-2011. There was a period of around six years when he did not offend but continued to commit traffic infringements. In 2017 to 2019, he committed further offences. Overall, he has committed some 34 criminal offences in Australia and been dealt with in 16 separate sentencing episodes. He also has a lengthy traffic history in Australia consisting of some 25 traffic infringements.  

21. In May 2005, three months after moving to Australia, the Applicant was caught driving at night with no visible lights and driving as a learner driver without supervision. These offences were committed on the same date: it appears that he was doing both at the same time. He was fined for these offences.

22. Five months later, in October 2005, he committed his first criminal offence, being wilful damage. He was sentenced in late 2005 where he was reprimanded with no conviction recorded. He could not recall the details of this offence and put it down to “hanging out with the wrong people”.[16]  

    [16] Transcript, page 12, lines 30 to 40.

23. In December 2005, the Applicant committed three further offences including unlawful use of a motor vehicle, trespass, and unauthorized dealings with stolen goods. He was sentenced in early 2006 to 12 months good behaviour.

24. In 2007, the Applicant committed two further traffic offences and on 10 October 2007 his license was suspended for three months following an accumulation of demerit points. Two months later, while his license was suspended, he was caught driving and his license was disqualified for six months. 

25. In 2008, the Applicant appeared before the courts on six occasions for multiple breaches of bail conditions, two counts of obstructing/assaulting police, and two counts of breaching a Domestic Violence Order (“DVO”). He received fines or was not further punished for these offences.

26. With respect to the two offences of breaching a DVO, on 10 March 2008, a temporary DVO had been granted naming the Applicant as the Respondent and his then partner, who he identified in the hearing and who I will refer to as “Ms T”, as the protected person. On 13 April 2008, the Applicant and Ms T had several phone and text conversations where they had both agreed to meet at her address. They did so and discussed the DVO including whether Ms T would continue with it. Ms T’s step-father located them and chased off the Applicant. The next day Ms T and her step-father attended the police station to report a breach of the order to police. The Applicant was charged with two counts of contravening the DVO.[17]  In the hearing, the Applicant said Ms T’s parents had forced the DVO  on him, that he would never be violent towards a woman, and that Ms T is a good friend of his.[18] There is a letter of support before me from Ms T confirming that she was previously in a relationship with the Applicant and stating that they are very close friends.[19] While I am satisfied that the Applicant knowingly breached a DVO, I am not satisfied there was any violence or other inappropriate conduct involved.

    [17] Exhibit R2, Respondent’s Supplementary Documents, pages 46 to 48 and pages 18 to 20.

    [18] Transcript page 18, lines 19 to 22.

    [19] Exhibit G1, Section 501 G-documents, G16, pages 102 to 103.

27. On 15 January 2009, the Applicant was convicted of three counts of burglary and commit indictable offence which had been committed on 15 and 30 May 2008. He was sentenced to a three year probation period and 240 hours of community service. In May 2010, the Applicant was convicted of breaching these orders, the Community Service Order was extended by 12 months and he was fined. In October 2011, he was again convicted for breaching the Probation Order and was fined.

28. Since the Probation Order was imposed on 15 January 2009, the Applicant failed to report on 11 occasions between 2009 and 2011 where he did not produce a valid excuse. Twice in April 2009 and July 2009 he absconded from supervision.[20] In the hearing the Applicant was asked about a relapse prevention plan that was dated 19 November 2010. He said that he had been addicted to cannabis, smoking it every day, and he indicated that this was around 2009 and 2010.[21] He said it was a factor in his offending at the time because it was associated with him associating with “the wrong people”.[22]

    [20] Exhibit R2, Respondent’s Supplementary Documents page 204; Transcript, page 13, lines 25 to 35.

    [21] Transcript, page 14, lines 33 to 46.

    [22] Transcript, page 15, lines 1 to 7.

29. On 1 April 2009, the Applicant’s license was suspended for three months following the accumulation of demerit points. On 4 April 2009, he was caught driving a defective vehicle without wearing a seatbelt and while using a mobile phone. He was fined for these three offences. On 1 July 2009, his license was again suspended for three months. On three occasions between January 2010 and July 2011 he was caught driving a defective vehicle.  In December 2011 he was caught speeding by more than 40km/hr over the speed limit and was fined for speeding and for failing to have proper control of the vehicle.

30. He committed two other offences in 2011, including a breach of bail and unlawful use of a motor vehicle. For the latter offence, he was sentenced to six months imprisonment which was suspended for 18 months.

31. In March 2012, the Applicant was placed on a high speed suspension for six months. In August 2012, he was caught driving while suspended and was fined and disqualified for six months. Between July 2013 and October 2015, he committed four further traffic offences and was fined for each offence.

32. In 2015, the Applicant’s mother passed away. He started using methamphetamine to self-medicate. He said it went from weekend used to daily use and, while he did not consider himself to be addicted, it helped him deal with what he was going through.[23] He attributed his offending in the following years to his drug use. The Applicant’s ex-partner, “Ms J”, confirmed that his problems started when his mother passed away. She said he shut off completely, took drugs, did not come home at night and got in a “whole lot of trouble”.[24]

    [23] Transcript, page 5, line 32 page 6, line 5.

    [24] Transcript, page 48, lines 1 to 6.

33. In 5 December 2015, there is a recorded incident of domestic violence between the Applicant and “Ms J”.

34. According to a police file note of the incident,[25] at a time when the Applicant was separated from Ms J, she drove her new partner’s vehicle to the Coomera IGA. The Applicant arrived there as a passenger in his new girlfriend’s car. He jumped out of the car and started yelling at Ms J, demanding that she tell him where her new partner was. He was extremely aggressive towards her. He then started hitting her new partner’s car causing damage to the driver’s side mirror and door. As he did this he was yelling out “where is he”. Ms J saw their one year old son in the rear of the Applicant’s girlfriend’s car and he seemed upset. She went over to the car and tried to comfort him. The Applicant came up behind her, grabbed her and pulled her back. The Applicant continued to yell about finding out where Ms J’s new partner was. He had a conversation with that person on Ms J’s phone then he threw the phone to the ground, smashing it. He then told her to “get out of here or I will do more”. Later, while the Applicant was at the Coomera police station, he sent Ms J two Facebook messages that said “Fucken wait till I see that cunt you’re lucky I’ve gotta be somewhere” and “I’m going there tonight bitch kick your head in and his”. 

    [25] Exhibit R2, Respondent’s Supplementary Documents pages 50 to 51.

35. The Applicant did not dispute any of the facts reported in this account.[26] By way of explanation he said “I got a little bit angry towards [Ms J] because I found out that she had  - she was sleeping with one of my friends, with one of my mates.”[27] At that time, he had been separated from Ms J for eight or nine months.[28] He attributed his behaviour to drugs, saying that the drugs made him violent.[29]

    [26] Transcript, pages 20 to 21.

    [27] Transcript, page 18, lines 35 to 39.

    [28] Transcript, page 20, lines 5 to 10.

    [29] Transcript, page 21, lines 31 to 36.

36. On 6 February 2017, the Applicant and two co-offenders committed a home invasion. He was subsequently convicted of the following offences:

    ·burglary with circumstances of aggravation;

    ·assault occasioning bodily harm in company;

    ·wilful damage; and

    ·assault occasioning bodily harm whilst armed in company.

37. The police facts indicate that:[30]

    [30] Exhibit R2, Respondent’s Supplementary Documents page 10 to 13.

    ·the Applicant and two co-offenders (one male and one female) broke into a unit in the early hours of the morning;

    ·residing in the unit were C, J and J’s six-year-old daughter. Another person, W also lived there. C, J and W were friends with the Applicant and his two co-offenders;

    ·C and J were asleep in bed when C was woken up by a hit above his left eye which caused immediate pain and bleeding. The Applicant and his co-offenders were all in C and J’s bedroom;

    ·the Applicant punched a television smashing the screen and walked out of the bedroom asking “Where’s [W]’s laptop, where is [W]’s room”. C and J said they did not know;

    ·one co-offender demanded C and J’s mobile phones before grabbing J’s phone. Meanwhile W had awoken to screams coming from C and J’s bedroom. He got out of bed and looked towards their bedroom. The Applicant ran towards W throwing punches at him before grabbing him and becoming involved in a violent wrestle. W pushed him into a spare bedroom and his back hit the window causing it to smash. The Applicant continued swinging punches at W, several of which hit him in the body and head. W tackled the Applicant to the ground, sat on his chest and called out for help;

    ·C tried to open the bedroom door, but it was being held shut by a co-offender. That person then went to where the Applicant and W were and said “Teach you to call me a dog” and hit W in the head with a small white shelf. He and the Applicant then started violently punching and kicking W while he was on the ground. The Applicant grabbed the shelf and hit W while his co-accused continued to punch and kick W. The shelf smashed against W’s arm injuring it. W was left in severe pain, covered in blood;

    ·the Applicant and that co-offender walked between the bedrooms and the lounge room a number of times screaming and smashing things. The second co-offender was yelling for them to stop. The Applicant at one stage was holding C’s xbox and said “I will fucking smash you with his xbox” and “we know where you live cunt”;

    ·J called police and as she did, the Applicant and his co-offenders ran out of the unit. J went into her daughter’s room to check that she was okay. W stumbled into the lounge room and collapsed. C assisted W until the police and ambulance arrived. Both W and C were bleeding; and

    ·W had suffered cuts and abrasions, a soft tissue injury to the skull and tender right wrist. He was diagnosed with minor left parietal extracranial soft tissue without underlying fracture. C was diagnosed with a traumatic head injury and he received four minor head lacerations and had an underlying bump.

1. These facts are not inconsistent with the facts found by the learned sentencing Judge although Her Honour’s rendition of the facts was not as detailed.[31]

   [31] Exhibit G1 Section 501 G-documents, G5, page 32.

2. The Applicant told the Tribunal that he got “peer pressured” into this offending. He said if he had not been “peer pressured” into it he would not have done it. He said the only reason he did it was because he had lent the victims money and they “weren’t paying me my money”. He said they were all friends and he went around to talk to them, but a fight ended up breaking out. He said he was using ice at that time.[32] I do not accept that the Applicant acted under the influence of peer pressure or that he intended only to talk to the victims. First, there is no evidence in the police facts or the findings by the court that are consistent with the Applicant having been subject to peer pressure, and in fact he was the main protagonist in the attack on W. Second, the Applicant and his co-offenders broke into the unit in the early hours of the morning while the victims slept and launched unprovoked violent assaults on two of the victims. There was no attempt to enter into discussions. It is very concerning that the Applicant does not, even now, accept full responsibility for this very serious offending.

   [32] Transcript, page 15, lines 15 to 24.

3. The Applicant was arrested and remanded in custody that day, and he was subsequently released on bail on 14 June 2017.

4. Between September 2017 and October 2017, while on bail, the Applicant was caught drug driving on two occasions, and speeding in a school zone by less than 13km/hr. He was fined and had his license cumulatively disqualified for four months.

5. On 26 March 2018, the Applicant committed two property offences including wilful damage and trespass. According to the police facts,[33] the victim was at home inside his property which was fenced on all sides with a colour bond fence and motorised roller gate at the front. The Applicant and three other males approached, and one climbed up over the fence. The victim walked outside and was told there were people who wanted to speak to him. He declined and walked back towards the house. The victim saw the Applicant jump onto the top of the fence and look around the front of the property. He then heard people kicking the front roller gate. The gate came off its tracks and was partly open. The Applicant squeezed through the gap and pulled the gate further off its hinges to allow access. The victim was at that time on the phone with the police and saw the Applicant come through the gap. The victim yelled that he was on the phone to the police who would be there soon. The Applicant immediately exited and drove off. The damage to the gate rendered it unworkable.

   [33] Exhibit R2, Respondent’s Supplementary Documents page 99.

6. The Applicant was sentenced for these offences on 21 August 2018 to fines.

7. On 23 May 2018, the Applicant failed to appear in court. He was convicted on 21 August 2018 and sentenced to fines and a good behaviour period of six months.

8. On 8 and 9 January 2019, police located a stolen vehicle outside a house where the Applicant was staying. The other occupants told the police that the Applicant had arrived at the house driving the car. On the same day the police executed a search warrant at the Applicants residence. During the search police located:[34]

   ·a centre fire rifle;

   ·quantities of ammunition including 2 x 38 calibre ammunition rounds and 19 x 30 calibre ammunition rounds;

   ·various quantities of drugs including 7 grams of methylamphetamine in a cryo-vac bag, 3 grams of methylamphetamine in a clip seal bag, 1 vial of testosterone, 20 x 1 ml filled syringes of testosterone, 100 testosterone tablets in a cryo-vac bag, 10 vials of growth hormone, 64 mesterolone tablets and two alprazolam tablets; and

   ·drug related paraphernalia including 3 x glass pipes with methylamphetamine residue, a spoon with white crystal residue, a set of digital scales and a cryovac machine.

   [34] Exhibit R2, Respondent’s Supplementary Documents pages 110 to 111.

9. The Applicant was charged with multiple offences including:

   ·Unlawful possession of weapons (centre fire rifle);

   ·Authority required to possess explosives (ammunition);

   ·Utensils/pipes used (3 glass pipes and spoon);

   ·Possessing dangerous drugs (x4), being methylamphetamine, testosterone, growth hormone, and alprazolam; and

   ·Possess anything used in the commission of crime defined in part 2 (digital scales and cryovac machine).

10. He was remanded in custody. On 8 August 2018, the Applicant was sentenced for the offences committed on 6 February 2017 and the offences arising from the search conducted on 8 and 9 January 2019.

11. In passing sentence, the learned Judge said:[35]  

    “…this is offending with aggravating factors. You [and your co-offender] were both armed at one stage and you were in company.

    …

    You had a difficult upbringing and you have limited education. You have lost your mother, which was very difficult for you. Although you did not do a trade, you have had good employment over the years as a steel fixer, and that is what you intend to do upon your release.

    You have a five year old son, who is obviously suffering because of your criminal activity and drug abuse. He is with his mum. You have been in a long term relationship with her for 13 years. I accept that, at the time of the offending, that you had a serious drug addiction. That is no excuse for using violence in the manner that you did.

    In sentencing you, I must have regard to the principles of specific and general deterrence. They are particularly relevant in cases of home invasion that are premeditated, as is the case here. This occurred at night time. It must have been a terrifying experience for those present in the house. Your assault was violent. You did not take any weapons to the house. I note that you were prepared to use the broken shelf in the assault.”

    [35] Exhibit G1, Section 501 G-documents, G5 pages 31 to 34.

    PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY

12. In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

13. In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:

    a)The nature and seriousness of the non-citizen’s conduct to date; and

    b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

14. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;

    (d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;

    (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (f)The cumulative effect of repeated offending;

    (g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;

    (h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

    (i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

15. I am not limited to considering proven offences. I am required to consider the nature and seriousness of the Applicant’s “conduct to date”. That includes the incident in December 2015 when he damaged Ms J’s partner’s car, grabbed her and pulled her away from their infant son when she was trying to comfort him, and made threats of violence against her and her partner. This is very serious conduct. 

16. Even more serious was the home invasion carried out in February 2017. The Applicant’s violent offences were aggravated by the fact that he was in company and armed (with a wooden shelf from the residence). The home invasion was premeditated and carried out at a time when the victims could be presumed to have been asleep and therefore less able to defend themselves. There was no attempt to resolve the issue the Applicant claimed to have had with the victims without violence or the threat of violence. Unsurprisingly, these offences attracted significant terms of imprisonment, reflecting their objective seriousness.

17. Even after being remanded in custody for four months for these offences, the Applicant went on to engage in similar behaviour in March 2018 when he and three other men tried to break into a person’s home and informed him that there were people who wanted to speak to him. While no express threats were made, the fact that four men were invading the victim’s property and saying “people” wanted to speak to him must have carried an implied threat. Indeed, the victim called the police. The Applicant’s determination to enter the victim’s property is apparent in the fact that he broke the roller gate to enter the property, and only left when the victim said the police were coming. This kind of intimidating behaviour towards a person in his own property is serious.

18. The Applicant’s other offending includes stealing and burglary, property damage, unlawful use of motor vehicles, breaching various court orders, possession of a weapon (a rifle) and ammunition, and possession of illicit drugs and related paraphernalia. In addition, he has committed traffic offences of the kind that tend to increase the risk of accidents, including driving with no visible lights and driving as a learner driver without supervision (in 2005), driving a defective vehicle (in 2009, 2010, 2011 and 2013), speeding by more than 40km/hr over the speed limit and failing to have proper control of the vehicle (in 2011), and drug driving on two occasions while on bail (in 2017).  

19. The Applicant committed some 34 criminal offences and some 25 traffic infringements between 2005 and 2019. There is an over-all trend in increasing seriousness given the most serious offending occurred in 2017, being the home invasion and the drug driving and in 2019 he was found in possession of a rifle and ammunition. Even during the lengthy period when the Applicant did not commit criminal offences, he continued to disregard road rules.   

20. The cumulative impact of the Applicant’s traffic offending is that on several occasions other road users have potentially been put at increased risk of injury or death. The Applicant has caused injury and fear to people in their own home, intimidated another victim in his property, and frightened and man-handled an ex-partner who was the mother of his child. As the learned Judge observed in relation to the home invasion, it must have been terrifying for the victims. The Applicant has, on multiple occasions, dealt with other people’s property as his own and he has damaged property. He has wasted the resources of community corrections by failing to abide by community based orders. He has shown a consistent disregard for road rules over the entire period he has lived in Australia, and he has shown disregard for the law during lengthy periods when he was not coping well with events in his life.  

21. I do not consider factors (b) and (g) to (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. There is not sufficient information about the assault/obstruct police offences to determine whether those offences were committed against police or were more in the nature of failing to co-operate with police. Accordingly, I do not allocate any weight under factor (c).   

22. The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

23. Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:

    ·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    ·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

24. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

25. Should the Applicant engage in further violent offending, the nature of harm includes physical and psychological harm, which could be serious depending on the circumstances and extent of the violence. The invasions of people’s homes, in company, has the clear potential for psychological distress and a lingering feeling of being unsafe in one’s own home. It is a fundamental value in Australian culture that a person should feel and be safe in their own home. Further driving under the influence or driving that involves an element of recklessness has the potential to cause injury or death to other road users. Should the Applicant engage in further property offences, the harm includes loss or damage to the property of others, financial loss, and feelings of violation that personal property has been stolen or interfered with.    

    Likelihood of engaging in further criminal or other serious conduct

26. The Applicant said that after his father left the family home, his mother did not have much time for him, focusing on his younger brothers. When he discovered that his parents were not together anymore and that his older brother was in fact a half-brother, he felt betrayed by his parents.[36] He started associating with “the wrong people” and getting into trouble.[37] He had a stint in New Zealand to get away from that peer group and returned to Australia 10 months later in early 2005.  

    [36] Exhibit G1, Section 501 G-documents, G15, page 97.

    [37] Transcript, page 6, lines 27 to 40.

27. The Applicant attributed, or partly attributed, his offending in 2005, 2010 and 2015 to 2019 to associating with the wrong people – see paragraphs 22, 28 and 39 above. He also attributed his offending in 2009 and 2010 and from 2015 to 2019 to drug use.

28. There is no evidence that the Applicant’s offending prior to 2009 was drug related. This offending includes driving at night with no visible lights and driving as a learner driver without supervision, wilful damage, unlawful use of a motor vehicle, trespass, unauthorized dealings with stolen goods, breaching bail conditions, obstructing/assaulting police, and breaching a DVO.  

29. The Applicant provided a written statement in which he acknowledged the damage his actions had caused to his life, the status of his visa, his victims, his son, his family and other loved ones. He said he was extremely remorseful, and he now has a greater understanding that “the life I was leading wasn’t the greatest”.[38] He nominated his son as his biggest reason to remain here in Australia and avoid making the same mistakes again. He considers that he lost his own father when he was young and does not want his son to experience the same thing. He said since his incarceration and cancellation of his visa, and with the death of his mother, he and his father have reconnected, and his father is now a great support. He claimed to have been substance free ever since he was incarcerated and to have no intention of going down that path again. He said he has not had the opportunity to do any drug and alcohol rehabilitation courses while incarcerated but has made enquiries about rehabilitation centres on the Gold Coast in the event that he is allowed to return to the wider Australian community. He has job opportunities and he understands that if he is released he will be subject to parole. He said he is extremely embarrassed for his actions and crimes and that his heart aches to be back with his son, his family and loved friends who he misses greatly.[39]

    [38] Exhibit A8, Statement of the Applicant dated 12 December 2020.

    [39] Ibid.

30. In oral evidence, the Applicant said he had started a drug rehabilitation course when he first entered immigration detention but, because of the pandemic it was cancelled. If he is allowed back into the wider community he intends to engage in drug and alcohol treatment.[40] He has never, to date, seen a psychologist about his drug use.[41]

    [40] Transcript, page 16, lines 7 to 14.

    [41] Transcript, page 17, lines 15 to 17.

31. I accept that the Applicant has not had opportunities to complete any drug and alcohol rehabilitation courses, that he intends to engage in treatment in the wider community, and that if released he will be subject to parole, and I note that none of this evidence was challenged by the Respondent. 

32. I further accept the Applicant’s evidence that he has abstained from drug use since his most recent incarceration, beginning in January 2019.[42] However, he did resume his drug use after his first period of incarceration, being February to June 2017. [43]

    [42] Transcript, page 6, lines 18 to 20.

    [43] Transcript, page 48, lines 1 to 10.

33. The Applicant said he will never commit another offence or use drugs again as he has learned his lesson and wants to live a normal life.[44] He said he is no longer in contact with the two co-offenders in relation to the home invasion.[45] However, those people are not the only people he committed offences with. After being remanded in custody for that home invasion and subsequently released on parole, he committed a similar offence with three male co-offenders.

    [44] Transcript, page 8, lines 4 to 20.

    [45] Transcript, page 15, lines 25 to 29.

1. The Applicant said he has a lot of support in his friends and family. In his revocation request, he included a relapse prevention plan focusing on mitigating the risks that he will become addicted to illegal drugs or associate with the illegal drug community.[46] This plan acknowledges the need for professional help and community support, full-time employment, and effective prevention strategies that identify high risk situations. The Applicant said that he has shared his relapse prevention plan with his partner and family, and they were all committed to supporting him. I note that his partner, Ms J, is no longer his partner.

   [46] Exhibit G1, Section 501 G-documents, G14, pages 88 to 89.

2. While having the relapse prevention plan is a good start, I am concerned that the Applicant has continually blamed negative peer groups and that he sought to diminish his culpability in the home invasion. I am not convinced that he accepts that the responsible for his past drug use and offending, and any future drug use and offending, ultimately rests on him.

3. There are some letters of support before me from the Applicant’s father, two of his brothers, a friend/ex-colleague, friend/ex-employer, another ex-employer, and an ex-girlfriend who is now a good friend (Ms T). These letters all speak positively and optimistically about the Applicant. The opinions of these people must be seen against the background of the Applicant’s  history of offending.

4. The Applicant’s father said about him:

   “…he is undoubtedly disappointed in himself and understands the stress this put on his family unit and ultimately the trauma he inflicted on his victims at the time. He had a significant error in judgement that he understands holds no excuses and now may cost him his residency and without question, he will never repeat the actions that have consequently altered his life path for the worst”. [47]

   [47] Exhibit A2, Statement of Alan Simpson dated 11 December 2020.

5. The Applicant’s father said the Applicant has his full family’s support, the Applicant would live with him if he is permitted to remain in Australia, he would provide financial support to the Applicant until he was able to gain employment, and he would provide emotional support as the Applicant integrates himself positively into the community.[48] The Applicant’s brothers pledged their support for the Applicant as did a former employer/friend who also said he would give the Applicant a job.[49] I accept that the Applicant will have the support of family and friends and that he will be able to secure employment if he is permitted to return to the wider Australian community. 

   [48] Ibid.

   [49] Exhibit A3. Statement of Braedan Simpson dated 18 December 2020, Exhibit A4, Statement of Jordan Simpson dated 18 December 2020 and Exhibit A6, Statement of Pablo Guerrero lodged 18 December 2020.

6. The Applicant was assessed by a clinical neuropsychologist, Ms Lisa Zipparo, in August 2020. She conducted an interview by phone. Ms Zipparo conducted a risk assessment using the Historical Clinical Risk Management-20 (“HCR-20”) assessment tool which involves a structured interview aimed at identifying factors that are relevant to risk of re-offending. These factors are categorised as historical, such as education and employment, clinical, such as a mental illness or drug abuse problem, and risk management, including what is happening in the present moment.[50] She assessed the Applicant’s risk of re-offending as moderate because, despite having some protective factors and good insight into his weaknesses, he still needs a lot of support in terms of understanding his triggers and having tools to help him deal with life stress.[51] She added that the Applicant reported many protective factors that could change his future risk of reoffending to low if the insight and motivating factors that he articulated to her remain driving forces. Those factors included the Applicant’s relationship with his son and his motivation to continue to be a part of his son’s life, his good support network of family and friends in Australia, and insight into the reasons for his past poor decision-making including understanding of factors that contributed to his drug abuse and offending behaviour.

   [50] Transcript, page 35, lines 29 to 46.

   [51] Transcript, page 37, line 45 to page 38, line 2.

7. Ms Zipparo did not have access to the Applicant’s criminal record and took him at his word in relation to his criminal history.[52] She was under the impression that the only previous period of unstable behaviour was in the Applicant’s early teens between ages 11 and 13 in New Zealand. She further understood that, after the family relocated to Australia to get the Applicant away from a negative peer group, he had settled down and that “his teens were quite good”. She said there was no evidence of any sort of adverse antisocial behaviour once he got over that phase.[53]

   [52] Transcript, page 39, lines 31 to 34.

   [53] Transcript, page 36, lines 10 to 21.

8. After being informed that between 2005 and 2011, the Applicant had been dealt with by courts on 13 occasions for criminal offending, and that he had a marijuana addiction, she said it did not change her risk assessment to high, however she opined that the Applicant was not a person who was “going to have a free and easy time of it once he’s out in the community. He’s going to have to work at it. He’s got a lot of issues that he has to deal with, and he has to do that with supportive, he can’t do that on his own” and agreed that “quite possibly” the Applicant’s history meant that it would be harder for him to continue to abstain and to cope with stressors in his life than she had previously thought. She added that because this destabilising time occurred after the age of seven, the Applicant’s “foundations” were okay. She said with family and professional support she thought his outcomes could be good but without those things he could possibly be a high risk of re-offending.[54]

   [54] Transcript, pages 40 to 41.

9. Ms Zipparo opined that the Applicant’s biggest weakness was his inability to cope with the stress of life events like the loss of a parent which previously resulted in him using methamphetamine.[55] She said methamphetamine use takes over people’s lives and it did for the Applicant, it is a drug that changes the person almost immediately, and it takes hold of the addiction centres in a person’s brain and causes a terrible aggressive behaviour.[56] This is consistent with what the Applicant told the Tribunal about the effect methamphetamine use had on him and I accept it.

   [55] Transcript, page 36, lines 40 to 45.

   [56] Transcript, page 37, lines 3 to 17.

10. Ms Zipparo said it was very positive that the Applicant had abstained from drug use while being incarcerated given that drugs were readily available in that environment.[57] However, she qualified that statement by pointing out that being in a structured setting had made it easier for the Applicant to abstain,[58] because while incarceration has its own stressors, the structured environment with a predictable day-to-day routine is good for people who do not cope well with stress. In the wider community all the structures are gone so it is then up to the individual to implement the tools they have to deal with stressors that occur. She opined that, once the Applicant is in the wider community, he will have choices available to him and it is important that he engage with drug and alcohol counselling, someone he can see on a weekly basis, probably for at least 12 months, to help anchor and consolidate the gains he has made.[59] Ms Zipparo distinguished between expressing an insight into one’s weaknesses and actually being able to implement those tools in an unstructured environment when one is called upon to manage one’s stress. She said the Applicant will need some structure in the community and it would come in the form of regular counselling.[60]

    [57] Transcript, page 37, lines 25 to 33.

    [58] Transcript, page 38, lines 17 to 19.

    [59] Transcript, page 38, lines 20 to 24.

    [60] Transcript, page 42, lines 1 to 20.

11. Ms Zipparo was under the impression that the Applicant had voluntarily engaged in anger management programs and other programs that were available to him while he was incarcerated and in detention.[61] There was no evidence in support of this and the Applicant himself said he had not had an opportunity to undertake drug and alcohol programs except for one that he started but could not complete. I am prepared to accept that the Applicant undertook an anger management program and started a drug and alcohol program. I accept Ms Zipparo’s expert evidence that the Applicant’s current risk of re-offending is moderate. I note her opinion that he could achieve a low risk rating in the future if he maintains the insight, motivation and protective factors he identified that this is a contingency and the Applicant has yet to undergo the treatment he needs. In any event, I must take into account the Applicant’s current risk. 

    [61] Transcript, page 37, lines 34 to 36.

12. I note that Ms J gave evidence that the Applicant was diagnosed with bipolar disorder after his first period of incarceration, however having heard evidence from the Applicant on that issue, I am satisfied that Ms J was mistaken, and the Applicant has not been diagnosed with bipolar disorder or any other mental illness.

13. I consider there to be a moderate risk that the Applicant will commit further offences of the kind that he has committed including offence involving violence and traffic offences of the kind that tend to increase the risk of collisions.     

    Conclusion: Primary Consideration A

14. Primary Consideration A weighs heavily against revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

15. Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.

16. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;

    ·     evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;

    ·     whether there are other persons who already fulfil a parental role in relation to the child; and

    ·     any known views of the child.

17. Some of the people who have provided letters of support have said that the Applicant has a close or positive relationship with their children and/or that they would like him to have a relationship with their children in the future. The evidence before me does not contain any further information about these children, the relationship (if any) the Applicant has with them, their views or their circumstances. There is not sufficient evidence to make a determination about their best interests either way. I am unable to find that revocation is in the best interests of these children.

18. The Applicant has one minor biological child in Australia, a son who is seven years old (“Child A”). The Applicant described Child A as his world, his everything.[62] Ms J is Child A’s mother. The Applicant and Ms J were in a relationship, with some periods of separation, until his most recent incarceration.

    [62] Transcript, page 4, lines 26 to 28.

19. From the time the Applicant was released from prison in June 2017 until his incarceration in January 2019, Mrs J supported the family financially and the Applicant was a stay-at-home father. Child A attended daycare and Mrs J’s parents helped to look after him, having him to stay every weekend.[63] During that period, the Applicant was only using drugs on the weekends.[64] Ms J said the Applicant was a good father to Child A, taking him to school, cooking dinner, and doing the cleaning and washing etc. She said Child A loves the Applicant but has not seen him for two years.[65]

    [63] Transcript, page 23, lines 5 to 34.

    [64] Transcript, page 24, lines 1 to 8.

    [65] Transcript, page 45, lines 29 to 34

20. Ms J lost her blue card, and thus her job, because the Applicant had illicit items in their home that were found by the police. She is unable to reapply for a blue card for another five years.[66] I got the impression that Ms J was resentful about this and the impact the Applicant’s offending has had on Child A, and that she has no desire to resume her relationship with the Applicant. Ms J only speaks to the Applicant when he calls to speak to Child A.[67]

    [66] Transcript, page 49, lines 3 to41.

    [67] Transcript, page 44.

21. Child A used to visit the Applicant every week before the pandemic, and now they communicate once or twice each week by telephone.[68] Ms J said Child A talks about the Applicant all the time and wants to see him.[69]

    [68] Transcript, page 4, line 34.

    [69] Transcript, page 45, lines 1 to 28.

22. Ms J and Child A currently live with her parents and younger brother. They all play something of a parental role in Child A’s.[70] They take him to school and pick him up when Ms J has to work, and her parents help to support her and Child A financially. They have done so since the Applicant was most recently incarcerated.[71] Ms J has extended family, being uncles, aunts and cousins in Australia who love, care for and support Child A emotionally and financially.[72]

    [70] Transcript, page 48, lines 30 to 46.

    [71] Transcript, page 49, lines 2 to 7.

    [72] Transcript, page 49, lines 12 to 18.

23. Ms J is not willing to move herself and Child A to New Zealand if the Applicant is deported.[73] Nor will she take Child A to visit the Applicant before he turns 10 because she does not want him to forgo the opportunity to become an Australian citizen.[74]

    [73] Transcript, page 47, lines 18 to 28.

    [74] Transcript, page 47, lines 20 to 36.

24. According to Ms J, Child A is happy, healthy and enjoying school where he has some friends.[75] He has ADHD and is on the spectrum, but he has a teacher aide (funded through the school) assigned to him and seems to be improving. He is not on medication.[76] The Applicant described Ms J as “a good mother; she is an awesome mother”.[77]

    [75] Transcript, page 49, lines 43 to 47.

    [76] Transcript, page 50, lines 1 to 11.

    [77] Transcript, page 5, lines 13 to 14.

25. The Applicant said Child A currently suffers from separation anxiety,[78] although this was not supported by the evidence given by Ms J, who identified the problem arising from the Applicant’s incarceration in terms of Child A not fully understanding why the Applicant was absent.

    [78] Exhibit G1, Section 501 G-documents, G11, page 58.

26. Child A’s views are not known however, Ms J opined that it would be in his best interests to have the Applicant present in his life.

27. I am satisfied that the Applicant was a good father prior to his incarceration and that he shared a close bond with Child A. He engaged in appalling behaviour in the presence of Child A when affected by methamphetamine, pulling Ms J away from Child A when she tried to comfort him. He also used methamphetamine regularly when he was Child A’s primary carer. Due to his offending he was absent from Child A for four months in 2017 and he has again been absent for the last two years, although he keeps in frequent telephone contact.

28. I am satisfied that if the Applicant is deported, Child A will not visit him until he is at least ten years old, but that Ms J will facilitate telephone contact as she currently does.

29. Ms J currently fulfils the parental role with assistance from her immediate family. She is a good mother and Child A is doing well. Child A also has the support of extended family. There is no evidence of any psychological harm to Child A from his current separation from the Applicant.

30. If the Applicant were to remain in Australia and abstain from drug use and criminal behaviour, he would have a significant presence in Child A’s life and that would be a positive thing for Child A. As Child A is seven, there are many years in which the Applicant can enrich his life while he remains a minor. If the Applicant is deported, Child A will not have his father physically present in his life which is a significant loss for Child A.            

    Conclusion: Primary Consideration B

31. Taking all of those matters into account, I find that the best interests of the Child A weigh moderately in favour of the revocation of the cancellation of the Applicant’s visa.

    PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

32. In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. 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. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.

33. The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[79]

    [79] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

34. This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.

35. Paragraph 6.2(1) of the Direction states 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. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”

1. Those principles, set out in paragraph 6.3 of the Direction, are:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizens Visa should be cancelled, or their visa application refused.

   Analysis – Allocation of Weight to this Primary Consideration C

2. Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:

   ·the Applicant permanently relocated to Australia when he was 16 years old. He is now 32;

   ·he commenced offending only months after moving to Australia;

   ·his offences include serious violent offences;

   ·there is a moderate risk that he will re-offend;

   ·his criminal and traffic history demonstrate a disregard for the laws regulating the community that he seeks to re-enter;

   ·there is no evidence of voluntary work or participation in community groups, although his younger brothers stated that he helped them when they were growing up; 

   ·he has a solid employment history from 2007 to 2017; and

   ·if he is removed to New Zealand, it will adversely affect his immediate family and some close friends (addressed below under Other Considerations), and his removal would be against the best interests of his son (addressed above under Primary Consideration B).  

3. The Applicant’s legal representative advanced an argument that a matter I should take into account with respect to this Primary Consideration is that the Applicant’s removal from Australia would breach Australia’s obligations under Article 12(4) of the International Covenant of Civil and Political Rights (“ICCPR)”. That Article states that “No one shall be arbitrarily deprived of the right to enter his own country”. It was submitted that implicit in Article 12(4) is the right to remain in one’s “own country”.

4. It was submitted that Australia is the Applicant’s “own country” within the meaning of Article 12(4) because he came to Australia when he as a child, has lived here all of his adult life, has not left since 2005, all of his family and social circle are in Australia and he has no real ties, beyond the bare fact of citizenship, to New Zealand.

5. The Applicant’s legal representative pointed to the case of Nystrom v Australia, Communication No 1557/2007 (“Nystrom”), in which the United Nations Human Rights Committee considered the meaning of Article 12(4) of the ICCPR. The Committee said:

   “… the Committee recalls its General Comment No 27 on freedom of movement where it has considered that the scope of “his own country” is broader than the concept “country of his nationality”. It is not limited to nationality in a formal sense, that is, nationality acquired at birth or by conferral; it embraces, at the very least, an individual who, because of his or her special ties to or claims in relation to a given country, cannot be considered to be a mere alien. In this regard, it finds that there are factors other than nationality which may establish close and enduring connections between a person and a country, connections which may be stronger than those of nationality. The words “his own country” invite consideration of such matters as long standing residence, close personal and family ties and intentions to remain, as well as to the absence of such ties elsewhere.”

6. According to the Committee:

   “In the present case, the author arrived in Australia when he was 27 days old, his nuclear family lives in Australia, he has no ties to Sweden and does not speak Swedish. On the other hand, his ties to the Australian community are so strong that he was considered to be “an absorbed member of the Australian community” …; … the Committee considers that the author has established that Australia was his own country within the meaning of Article 12, paragraph 4 of the Covenant, in the light of strong ties connecting him to Australia, the presence of his family in Australia, the language he speaks, the duration of his stay in the country and the lack of any other ties than nationality with Sweden.”

7. It is noteworthy that Nystrom concerned a person who had lived in Australian since he was a mere 27 days old. As the Respondent pointed out, the other authorities relied on by the Applicant also concerned persons who were all less than two years old when they relocated. The Applicant was 16 years old when he moved permanently to Australia, meaning he spent most of his childhood and completed most of his schooling outside Australia. No objective evidence was put forward in support of the claim that the Applicant considered Australia to be his “own country” or that he had any “special ties” with or a “close and enduring connection” to Australia. On the evidence, he has nothing more than social, familial and employment related ties here. The Applicant speaks the language spoken in New Zealand, he has relatives there, and he must know non-family members in New Zealand having completed most of the schooling there. There was no evidence put forward that the Applicant had ever wanted to apply for Australian citizenship, participated in community groups in Australia, identified as Australia or engaged in any kind of patriotic activities. I am not satisfied that Australia could be considered to be the Applicant’s “own country” within the meaning of Article 12(4) of the ICCPR, therefore this part of his argument fails, and it is not necessary for me to consider the rest.    

   Conclusion: Primary Consideration C

8. The Applicant breached the trust of the Australian community by committing serious offences on more than one occasion. The nature of his offending is such that the Australian community would expect that he should not hold a visa. There is very little militating that. Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.   

   OTHER CONSIDERATIONS

9. It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).

   (a) International non-refoulement obligations

10. The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.  

    (b) Strength, nature and duration of ties

11. The Applicant came to Australia at the age of 16 and has lived in Australia for nearly 16 years. He commenced offending only months after arriving in Australia and therefore is entitled to very little weight under paragraph 14.2(1)(a)(i) of the Direction. His employment affords him moderate weight under paragraph 14.2(1)(a)(ii) of the Direction.

12. The Applicant’s son resides in Australia, as do his father and three brothers with whom he is close. While the Applicant included Ms J and her parents as family,[80] it is apparent that Ms J does not feel the same and there is no evidence about the views of her parents. The Applicant also has some close friends who provided letters of support.

    [80] Transcript, page 4, lines 20 to 25.

13. I have found that the Applicant’s deportation would be against his son’s best interests. In their letters of support, the Applicant’s three brothers spoke of their bond with him and the sadness it would cause them if he were to be deported.[81] The Applicant’s former colleague and former employers described him in positive terms in relation to his employment, and one said that he would upset if the Applicant were deported.[82] I am satisfied that the Applicant’s deportation would cause some emotional hardship to his father and brothers with whom he has a close bond, and would sadden some of his friends. Ms J was asked how it would impact her if the Applicant was not allowed to remain in Australia, and she answered that it would be good for him to stay for his son.[83] I am satisfied that the Applicant’s deportation would not affect her personally.

    [81] Exhibit A3. Statement of Braedan Simpson dated 18 December 2020, Exhibit A4, Statement of Jordan Simpson dated 18 December 2020 and Exhibit A9, Statement of Devon Simpson dated 22 December 2020.

    [82] Exhibit A5, Statement of David Courtney dated 18 December 2020.

    [83] Transcript, page 48, lines 11 to 13.

14. The Applicant’s social and familial ties, and the impact on his family of his removal from Australia on his immediate family and close friends weigh heavily in favour of revocation under paragraph 14.2(1)(b) of the Direction. 

15. Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs heavily in favour of revocation.

    (c) Impact on Australian business interests

16. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.

    (d) Impact on victims

17. This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.

    (e) Extent of impediments if removed

18. As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

19. The Applicant is a 32 year old year old man who is able bodied and does not claim to have any medical or psychological conditions. I am satisfied that being deprived of the opportunity to be present in Child A’s life will cause some emotional hardship.  

20. The Applicant has a good employment history and his former employers speak highly of him. I am satisfied that he has people willing to provide good references and that he has reasonably good employment prospects. Regarding any periods of unemployment, the Applicant will have the same access to social welfare as other New Zealand citizens.  He will also have the same access to medical care, and governmental/social support as other New Zealand citizens, and it is reasonable to find that the level of such support is comparable to that which is currently available in Australia.  

21. The Applicant lived in New Zealand until he was 16 years old. There are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.

22. The Applicant does not have any close family residing in New Zealand; however, he will be able to maintain communication with his family in Australia in the same way that he does now while in immigration detention. The Applicant acknowledged that he has some relatives in New Zealand,[84] but said he does not know them, and he is not in contact with them.[85] His half   moved to Australia and he no longer has any contact with him[86] so does not know where he lives. Ms J said the Applicant has grandparents in New Zealand.[87] I think the Applicant downplayed his family ties in New Zealand, and he was unable to explain why he was not in contact with his New Zealand relatives, having spent most of his childhood there. I am satisfied that the Applicant has relatives in New Zealand and that it is therefore not the case that he does not have anyone in New Zealand.  

    [84] Transcript, page 7, line 40

    [85] Transcript, page 24, lines 24 to 37.

    [86] Transcript, page 24, lines 40 to 47.

    [87] Transcript, page 47, lines 44 to 45.

23. It is likely that the Applicant will face some difficulty in re-establishing himself in New Zealand as he will have to secure accommodation, obtain a job or arrange income support, establish a social network and arrange the rehabilitative support he needs. However, any such difficulty would be short-term only and would not prevent him from successfully re-settling there.

24. This Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.

    Findings: Other Considerations

25. The application of the Other Considerations in the present matter can be summarised as follows:

    ·international non-refoulement obligations: not relevant;

    ·strength nature and duration of ties: weighs heavily in favour of revocation;

    ·impact on Australian business interests: not relevant;

    ·impact on victims: neutral; and

    ·extent of impediments if removed: weighs slightly in favour of revocation.

    CONCLUSION

26. I am now required to weigh all of the Considerations in accordance with the Direction.  

27. In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:

    ·Primary Consideration A weighs heavily in favour of non-revocation;

    ·Primary Consideration B weighs moderately in favour of revocation;

    ·Primary Consideration C weighs heavily in favour of non-revocation; and

    ·To the extent that Primary Consideration B and Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.

28. Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.

    DECISION

29. The decision under review is affirmed.

I certify that the preceding 134 (one hundred and thirty-four) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy

............................[SGD].........................................

Associate

Dated: 1 February 2021  

Date of hearing:

20 and 21 January 2021

Solicitor for the Applicant:

Ms Krishlyn Chetty

MyVisa Lawyers

Solicitor for the Respondent

Mr Anthony Gardner

Minter Ellison

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G22 pages 1 to 164)	R	-	26 NOV 2020
A1	Applicant’s Statement of Facts, Issues and Contentions	A	18 DEC 2020	18 DEC 2020
A2	Statement of Alan Simpson	A	11 DEC 2020	18 DEC 2020
A3	Statement of Braedan Simpson	A	18 DEC 2020	18 DEC 2020
A4	Statement of Jordan Simpson	A	18 DEC 2020	18 DEC 2020
A5	Statement of David Courtney	A	18 DEC 2020	18 DEC 2020
A6	Statement of Pablo Guerrero	A	-	18 DEC 2020
A7	Statement of Paul Powhiro	A	8 DEC 2020	18 DEC 2020
A8	Statement of the Applicant	A	12 DEC 2020	15 JAN 2021
A9	Statement of Devon Simpson	A	22 DEC 2020	15 JAN 2021
A10	Statement of Ms J	A	13 JAN 2021	15 JAN 2021
R1	Respondent’s Statement of Facts, Issues and Contentions	R	12 JAN 2021	12 JAN 2021
R2	Respondent’s Supplementary Documents (S1 to S4 pages 1 to 227)	R	-	12 JAN 2021