SNPS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4183
•29 September 2020
SNPS and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4183 (29 September 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4149
Re:SNPS
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:29 September 2020
Date of written reasons: 19 October 2020
Place:Sydney
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision under review, being the decision of the Respondent dated 7 July 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
................................[SGD]........................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – visa cancellation – Class TY, Subclass 444 Special Category (Temporary) visa – substantial criminal record – aggravated robbery and inflict ABH-SI – drug and alcohol misuse – Direction No. 79 – primary considerations – extensive criminal history – moderate risk of reoffending – where Applicant has no children and limited evidence of how any minor children would be impacted by Applicant’s removal – expectations of the Australian community – other considerations – where Applicant’s ties to Australia are given limited weight – extent of impediments if returned – decision under review affirmed
LEGISLATION
Migration Act 1958(Cth)
CASES
FYBR and 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
PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
WRITTEN REASONS FOR DECISION
Senior Member Linda Kirk
19 October 2020
SNPS (‘the Applicant’), a citizen of New Zealand, was born in 1997.[1] He first arrived in Australia on 1 April 2000 as the holder of a Class TY, Subclass 444 Special Category (Temporary) visa (‘the visa’).[2]
[1] Exhibit R1, G1.
[2] Exhibit R1, G2, 52.
On 20 September 2018, the Applicant was convicted of Aggravated robbery and inflict ABH-SI.[3] He was sentenced in the District Court of New South Wales to five years’ imprisonment commencing on 17 August 2017 and concluding on 16 August 2022 with a non-parole period of two years and six months.[4] Form 1 matters taken into account for this sentence included two counts of Larceny Value <=$2000 – T2.[5]
[3] Exhibit R1, G2, 27.
[4] Exhibit R1, G2, 27.
[5] Exhibit R1, G2, 26.
On 30 January 2019, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under subsection 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not satisfy the character test in subsection 501(6) of the Act by virtue of the term of imprisonment referred to above.[6] On this date, the Applicant was serving a sentence of full-time imprisonment at Bathurst Correctional Centre in New South Wales. The Applicant was invited to make representations about revoking the decision to cancel his visa.[7]
[6] Exhibit R1, G2, 81-85.
[7] Exhibit R1, G2, 82-84.
On 22 February 2019, the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision and made representations to the Minister in support of his revocation request.[8]
[8] Exhibit R1, G2, 57-69.
On 29 April 2020, the Department of Home Affairs (‘the Department’) wrote to the Applicant inviting him to provide further information. The Applicant was invited to comment on this information by 27 May 2020.[9]
[9] Exhibit R1, G18, 264-267.
On 24 June 2020, the Applicant wrote to the Department to provide an explanation as to why he did not respond within 28 days.[10] He subsequently faxed various pages of a Personal Circumstances Form[11] and a submission.[12]
[10] Exhibit R1, G20, 271.
[11] Exhibit R1, G2, 70-73.
[12] Exhibit R1, G2, 79.
On 7 July 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[13]
[13] Exhibit R1, G2, 6-119.
On 12 July 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[14]
[14] Exhibit R1, G1, 1-5.
The matter was heard at a hearing of the Tribunal on 10 and 11 September 2020. The Applicant attended the hearing via videoconference from Villawood Immigration Detention Centre and was self-represented. He gave oral evidence at the hearing.
The material before the Tribunal consists of:
·Respondent’s Statement of Facts, Issues and Contentions (‘Respondent’s SFIC’) dated 2 September 2020;
·G-documents (G1 to G23, pages 1 – 288) – Exhibit R1;
·Respondent’s Tender Bundle (TB1-TB29, pages 1-170) – Exhibit R2;
·Certificates of Completion by the Applicant – Exhibit A1;
·Undated statement of TM, the Applicant’s partner – Exhibit A2;
·Undated statement of MD, the Applicant’s cousin – Exhibit A4;
·Statement of RG, the Applicant’s uncle, dated 22 July 2020 – Exhibit A3;
·Undated statement of SG, the Applicant’s brother – Exhibit A5;
·Statement of DM, the Applicant’s brother, dated 14 August 2020 – Exhibit A8;
·Undated statement of NM, the Applicant’s friend – Exhibit A6; and
·Undated statement of DD, the Applicant’s cousin – Exhibit A7.
The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.
LEGISLATION
Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to paragraph 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.
Section 501CA of the Act applies if the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under subsection 501(3A). Subsection 501CA(4) provides:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 79
When considering whether to revoke the cancellation decision, the Tribunal is required under subsection 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).
The Preamble to the Direction provides a framework for the guidance of decision-makers in deciding whether to exercise the discretion to revoke the mandatory cancellation of a visa under section 501CA of the Act. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.
Paragraph 6.2(1) of the General Guidance provides:
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.
The following Principles are set out in paragraph 6.3:
(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 to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
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.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under subsection 501(3A) of the Act.
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations 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.
The other considerations are:
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties [to Australia];
(c) Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.’ Paragraphs 8(4) and (5) provide that primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations.
ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
There is no dispute that the Applicant made the representations required by paragraph 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[15] the Full Court of the Federal Court of Australia made the following observations in relation to subsection 501CA(4):
... 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...[16]
[15] [2018] FCAFC 151.
[16] 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).
The issues for determination are:
(a)whether the Applicant passes the character test; and
(b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.
If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision should be revoked.
EVIDENCE BEFORE THE TRIBUNAL
Background
The Applicant was born in West Auckland, New Zealand in June 1997.[17] He immigrated to Australia in April 2000 with his mother, father and older brother.[18] The Applicant witnessed domestic violence by the Applicant’s father against his mother, and also experienced violence by his father against him, when he was growing up.[19]
[17] Transcript, 8.
[18] Transcript, 11.
[19] Transcript, 15.
The Applicant completed primary school and attended high school in south Sydney and left school in year 9.[20] After leaving school the Applicant attended TAFE for six months to train as a carpenter. He worked as a tradesman but lost his job because he was not attending work. He was given a second chance by his former employer, but he lost his job a second time for non-attendance at work.[21] The Applicant was subsequently employed as a labourer and worked doing scaffolding and demolition.[22]
[20] Transcript, 17.
[21] Transcript, 19-20.
[22] Transcript, 20-21.
Drug and alcohol use
The Applicant was introduced to drugs and alcohol by his older friends when he was 13 years old.[23] He was ‘young’ and ‘wanted to fit in’ but ‘quickly became addicted to the drugs and the social scene which accompanied it.’ He graduated from ‘cannabis to pills, powders, Ice, cocaine and heroin’.[24] During his heaviest drug use he was taking ‘whatever I could put my hands on, I was using anything.’ He was using drugs daily and spent all his disposable income on drugs and social activities.[25] At the time he committed his most recent offences the Applicant was using ice and taking Xanax.[26]
[23] Transcript, 87.
[24] Exhibit R2, TB, 54.
[25] Exhibit R2, TB, 54.
[26] Transcript, 88.
The Applicant did not attend a detox or a drug and alcohol program. He had periods of up to three months when he was off drugs, but he would always relapse. He told the Tribunal that drugs ruined his life and caused a lot of damage to him and his family.[27]
[27] Transcript, 31.
The Applicant told the Tribunal that he has not used ice since the day he was arrested in August 2017. In gaol he was referred to the Intensive Drug and Alcohol Treatment Program (IDATP), however he declined to participate in the referral and assessment process as he wished to complete the Young Offender’s Program.[28]
[28] Exhibit R2, TB, 67.
Criminal history in Australia
The Applicant’s Nationally Coordinated Criminal History Check dated 17 April 2020 records that the Applicant has an extensive criminal history from 2012 to 2015 (as a minor) and from 2015 to 2018 (as an adult).[29] As a minor, he has convictions for 72 offences involving graffiti, robbery, travelling on public transport without a valid ticket, destroying property, travel without paying fares, shoplifting and common assault. For these offences the Applicant was given periods of probation, good behaviour bonds, community service and fines. As an adult, he has convictions for 18 offences involving aggravated robbery, larceny, assault including domestic violence, breaking and entering, resisting and assault of a police officer, shoplifting, public transport, drug, trespassing and property offences.
[29] Exhibit R1, G2, 26-31.
The following table lists the convictions recorded against the Applicant as an adult offender during the period March 2014 to September 2018:
Date Offence Sentence 18 March 2014
Assault occasioning actual bodily harm in company of other(s) – T2
Assault police officer in execution of duty without actual bodily harm – T2
Assault police officer in execution of duty cause actual bodily harm – T1
Probation s 33(1): 12 months supervision Juvenile Justice
16 September 2014
Common assault – T2
Probation s 33(1): 12 months supervision Juvenile Justice 04 August 2015
Common assault (Domestic violence – T2
Probation s 33(1): 12 months supervision Juvenile Justice 14 April 2016
Armed with intent commit indictable offence – T1 Intensive correction order: 9 months 14 April 2016
Assault occasioning actual bodily harm (DV) – T2 Intensive correction order: 4 months 14 April 2016
Contravene prohibition/restriction in apprehended violence order (Domestic) Intensive correction order: 9 months 20 September 2018
Aggravated robbery and inflict actual bodily harm -Strictly Indictable Imprisonment: 5 years
2014 and 2015 convictions
On 18 March 2014, the Applicant was convicted of Assault occasioning actual bodily harm in company of other(s) – T2; Assault police officer in execution of duty without actual bodily harm – T2; and Assault police officer in execution of duty cause actual bodily harm – T1 and put on probation for a period of 12 months.
The Applicant was asked about this offending during cross-examination. He confirmed that he was aged 16 at the time and he pleaded guilty to the offences. He denied that he assaulted a police officer but he was charged with assault. He could not recall who was the victim of the assault occasioning bodily harm offence.[30]
[30] Transcript, 52.
On 16 September 2014, the Applicant was convicted of Common assault – T2 and put on probation for a period of 12 months. The Applicant was asked about this offence during cross-examination but he did not recall the incident.[31]
[31] Transcript, 53.
In relation to his conviction on 4 August 2015 for Common assault (Domestic violence) – T2, he told the Tribunal that the only domestic violence was against his family. He said that he ‘had arguments and had disagreements’ with family members but he did not assault anyone although he was charged with assault by the police.[32]
[32] Transcript, 55.
2016 convictions
On 14 April 2016, the Applicant was convicted of three offences Contravene prohibition/restriction in AVO (Domestic), Assault occasioning actual bodily harm (DV) and Armed with intent commit indictable offence, and placed on Intensive Correction Orders for nine months, four months and nine months respectively.
The New South Wales Police Fact Sheet describes the incident on 7 December 2015 which led to the convictions, as involving the Applicant’s father, mother and brother.[33] The Applicant borrowed his father’s phone and became aggressive when his father asked him to return it. The Applicant ‘grabbed the Co-Victim by the hair and viciously kneed him to the face repetitively.’ The Applicant’s brother and mother tried to intervene, and the Applicant grabbed a sharp paring knife and lunged towards his father. The Applicant yelled, ‘I will get the Rebels to come down here and rape you guys’ and ‘I will ram this knife through your throat’. The Applicant threw a brick at his brother’s lower back which caused it to bleed. The Applicant’s brother continued to tell the Applicant to leave the house. The police arrived and sighted the Applicant yelling at the victims.[34]
[33] Exhibit R2, TB, 2.
[34] Exhibit R2, TB, 3-4.
At the time, the Applicant was the subject of an enforceable Apprehended Violence Order (AVO) which listed the Person(s) in Need of Protection as the Applicant’s mother and the Applicant’s two nephews (aged 10 and seven years).[35] As a consequence of this offence, the Applicant breached this AVO.[36]
[35] Exhibit R2, TB, 2-3.
[36] Exhibit R2, TB, 5.
The Applicant claims that at the time he was under the influence of the drug ice and was not ‘thinking straight’. He says he had an argument with his older brother and grabbed a knife with the intention to intimidate him, as he was scared and afraid.[37] He told the Tribunal:
my intention was to solely scare them off and so they back off and to protect myself and - not to protect myself, because I wasn't going to use it, but it was to scare them off and just to keep them away from me.[38]
[37] Transcript, 53.
[38] Transcript, 63.
In her sentencing remarks, Magistrate Huber noted she was not surprised that the Applicant’s father and brother were scared given the Applicant’s non-idle threats, his behaviour on the day and his drug addiction.[39] She remarked that ‘[t]he nature of the assault was vicious in keeping with [his] ice addiction at the time’ and the contravention of the domestic violence order was ‘of the worst variety’ as the Applicant did not merely attend the premises but he was violent in relation to persons with whom he was in a domestic relationship.[40] The Applicant told the Magistrate, ‘I’ve changed heaps.’[41]
[39] Exhibit R1, G2, 46.
[40] Exhibit R1, G2, 45.
[41] Exhibit R1, G2, 45.
On 18 July 2016, the Applicant was convicted in the Local Court of New South Wales of four counts of shoplifting. On one of the counts, the Applicant was sentenced to six weeks imprisonment.[42] On two of the other counts, the Applicant was placed on two 18-month good behaviour bonds. The sentencing remarks of Magistrate Walsh indicate these offences involved the larceny of a purse and sunglasses.[43] On the final count, which also involved the larceny of sunglasses, the Applicant was ordered to complete 150 hours of community service. The Applicant was also fined $300 for Enter inclosed land not prescribed premises without lawful excuse.[44] On 29 January 2018, the Applicant was placed on a further six-month good behaviour bond on call up for the shoplifting conviction.
[42] Exhibit R1, G2, 27
[43] Exhibit R1, G2, 41-43.
[44] Exhibit R1, G2, 43.
2018 convictions
On 20 September 2018, the Applicant was convicted in the District Court of New South Wales of Aggravated robbery and inflicting actual bodily harm and was sentenced to five years imprisonment, with a non-parole period of two years and six months. A further two counts of Larceny less than or equal to $2000 were taken into consideration on a Form 1.[45]
[45] Exhibit R1, G2, 26-27.
The incident that led to the offences occurred at around 9:33 am on 17 August 2017.[46] The Applicant and his co-offender approached the young male victim and the Applicant asked the victim for a cigarette and if he knew where he could buy cannabis. The victim indicated that he had some cigarettes and could supply some cannabis. After they walked into a lane, the co-offenders told the victim they wanted to urinate, and the Applicant pointed out a ‘secluded alcove’ down the laneway and all three men climbed into this spot. As the victim reached into his backpack to retrieve cigarettes, the Applicant, holding a hammer told the victim ‘you’re going to have to give me everything’. The Applicant struck the victim with the hammer in the back of his head causing a large laceration and causing him to feel unwell for a while. The victim fearing a further assault tried to take the hammer from the Applicant. As the victim grabbed the hammer, he heard the Applicant tell the co-offender ‘stab him, stab him’. The victim let go of the hammer and grabbed the scissors the co-offender had in his hand. The Applicant then hit the victim in the back causing him pain and to let go of the scissors. The victim grabbed his backpack and attempted to run away, however the Applicant grabbed his bag and took out his wallet. The co-offender swung the scissors and struck the victim in the left forearm causing a laceration. The victim ran down the street for help. Two builders’ labourers heard the victim’s screams and rushed down the laneway and confronted the co-offender as he threw the scissors into the dumpster. The two co-offenders walked past the labourers and left the scene. Some $350 in cash was taken by them from the victim together with a credit card.
[46] Exhibit R2, TB, 57-58.
The Applicant claims there was a dispute with the victim over the marijuana and he flew into a rage and hit the victim in anger with a hammer which he found in the bathroom when he went to the toilet.[47]
[47] Exhibit R1, G2, 34; Transcript, 68.
Later that day, the Applicant entered an unattended vitamin shop and took the contents of a cash register containing over $600.[48] A couple of minutes later, the Applicant returned with his co-offender and they took the contents of a second cash register containing over $700.[49] The Applicant later entered another store at Westfield Bondi Junction and became aggressive with staff. The police were called, and the Applicant was consequently charged with aggravated robbery and larceny.[50]
[48] Exhibit R2, G2, 35.
[49] Exhibit R1, G2, 35.
[50] Exhibit R1, G2, 35.
In his sentencing remarks, Judge Madgwick stated that he did not believe the Applicant happened to find the hammer, but that the Applicant had it in his possession to use as a weapon in order to rob a likely prospect.[51] His Honour noted there was no occasion whatsoever for the Applicant to strike the victim or to urge his co-offender to stab him, and that the violence was ‘gratuitous and serious’. He further found that the offence was ‘amateurish and explicable’ on the basis that the Applicant was well affected by drugs even though it was before 10:00am in the morning.[52] He accepted these were the acts of an ‘immature person, young for his age by reason of having knocked around a drug using scene and not got on with his adult life in a proper and usual way’, but noted it could not be said that the offences were ‘out of character for him.’[53] His Honour found that the robbery offence was considerably aggravated by the ‘brazen and desperate larcenies’ committed a few hours later on the same day.[54] He remarked that the Applicant’s behaviour on the day was ‘that of a quite desperate drug addict prepared to engage in brazen, serious and unrestrained criminality.’[55] His Honour observed that the Applicant had been a ‘stubborn fool who resisted efforts by his family to help him, believing he did not need it’.[56]
[51] Exhibit R1, G2, 34.
[52] Exhibit R1, G2, 34.
[53] Exhibit R1, G2, 36.
[54] Exhibit R1, G2, 36.
[55] Exhibit R1, G2, 35.
[56] Exhibit R1, G2, 36.
Remorse and insight into offending
The Applicant claims that at the time of the 2018 convictions, he was going through ‘a bad stage’ in his life and was under the influence of ice and Xanax. He claims that he was hanging around the wrong people and had gone through a ‘big break up’ with his girlfriend.[57]
[57] Exhibit R1, G2, 79.
The Applicant told Jennifer Brown, who prepared a psychosocial report dated 14 September 2018,[58] that he was ashamed of his behaviour ‘for me and the family. I'm better than that, that's not me’. He told her that during his incarceration, when he is locked in 18 of every 20 hours, ‘it's on my mind, it plays in my head.’ He expressed to Ms Brown feelings of both guilt and remorse about the offence.[59]
[58] Exhibit R2, TB, 50-56.
[59] Exhibit R2, TB, 55.
The Applicant told the Tribunal that he understands what he has done and knows that what he has done is ‘wrong’ and he takes ‘full responsibility and ownership for it.’[60] He said that if he had the opportunity to do so, he would apologise to his victim and give him his money back and let him know that he is sorry for what he did.[61]
[60] Transcript, 51, 56, 57.
[61] Transcript, 69.
Courses and work in gaol
The Applicant provided certificates that recognise he completed three EQUIPS courses in Foundation, Addiction and Aggression while he was incarcerated at Bathurst Correctional Centre.[62] The facilitator of these programs provided positive feedback about the Applicant’s participation, stating ‘he openly shared with the group and displayed a good understanding of the course modules.’[63] The Applicant told the Tribunal that he ‘put [his] hand up straight away’ when he heard he was eligible for the EQUIPS courses and they were very beneficial to his rehabilitation. He stated:
And I’ll be honest with you, it - it did help me a lot, it helped me a lot and it helped me with how to manage myself, and how to manage my skills, and what I learnt out of - out of that is - you know, like, how to stay away from drugs, how to say no …
[62] Exhibit R2, TB, 67; Exhibit A1.
[63] Exhibit R2, TB, 67.
The Applicant commenced the Young Adult Offender Program at Oberon Correctional Centre on 23 September 2019. A program facilitator noted that the Applicant was ‘progressing though the course at a satisfactory level.’[64]
[64] Exhibit R2, TB, 67.
The Applicant completed courses in Digital literacy and Hospitality skills while in gaol.[65] He was employed in industries, wing cleaning and grounds maintenance. His longest custodial employment was working in laundry services for three months, with his custodial overseer reporting his performance was satisfactory.[66] The Applicant told the Tribunal he also worked at the coffee shop at the correctional facility.[67]
[65] Exhibit R2, TB, 67.
[66] Exhibit R2, TB, 68.
[67] Transcript, 21.
Behaviour in custody
The Pre-Release Report in relation to the Applicant prepared by Corrective Services NSW, Community Corrections dated 26 November 2019 (‘Pre-Release Report’) reported that the Applicant demonstrated a ‘mixed response’ to custody, receiving eight institutional misconducts during his incarceration. It was noted the Applicant had remained offence free over the past ten months, with his most recent charge occurring on 6 January 2019.[68]
[68] Exhibit R2, TB, 66.
With respect to his most recent charges of Unlawfully using a phone and Stealing, the Applicant claimed these were due to a misunderstanding. In relation to the charge of Failing prescribed drug test occurring in June 2018, the Applicant admitted he had done the wrong thing and had taken buprenorphine.[69] The Applicant reported that following his transfer to Bathurst Correctional Centre he has maintained abstinence from all illicit substances and non-prescribed medications. He was most recently subject to urinalysis testing in custody on 16 November 2019, with no drugs detected.[70]
[69] Exhibit R2, TB, 66.
[70] Exhibit R2, TB, 66.
Rehabilitation
The Applicant told the Tribunal that following the time he spent in gaol he believes he has rehabilitated:
I want to make a change, I want to make a difference and I believe this time when I done those courses and then the (indistinct) program on the last - on the end of my sentence, it made me realise a lot, and it made me realise everything, and put it all into one and realise what it takes to - to stay off that, you know. I - I believe I know what it takes know, and I’ve got what it takes to stay away from drugs, and stay away from bad influences, stuff like that. So, it took me a little while to learn that and find that in me, but I realised that it all come down to me, and it was me that was making the decisions. It wasn’t anyone else and it was only me and me only, and I wasn’t trying to stop. I wanted to but I wasn’t trying - I wasn’t trying hard enough.[71]
[71] Transcript 26-27.
The Pre-Release report acknowledged the improvements in the Applicant’s behaviour while he was in custody:
The evidence of [the Applicant’s] behaviour over the past ten months suggests that he has begun to absorb the lessons of compliance and application to conduct which the correctives system aims to demonstrate to inmate charges. Together with an improvement in behaviour, this has resulted in the successful completion of offence specific programs, and his continuing participation in the Young Offender’s Program.[72]
[72] Exhibit R2, TB, 71.
The Applicant told the Tribunal that he would be willing to do further courses once released and also to attend rehabilitation for six or 12 months.[73] He explained:
I will submit myself into going into a rehab or doing drug and alcohol courses, AA meetings, stuff like that, I’m happy to do that … I know I’m ready to get out and I know I’ve got what it takes to manage that and to get on the right path and to rehabilitate myself.[74]
[73] Transcript, 74.
[74] Transcript, 91.
Risk of re-offending
The Pre-Release Report records that the Applicant had been assessed at a ‘Medium-high risk’ of reoffending according to the Level of Service Inventory - Revised (LSI-R).[75]
[75] Exhibit R2, TB, 68.
The Applicant was asked about his risk of reoffending during cross-examination. He stated:
It’s not what I’m going to – I’m not going to put myself in that position, you know, I’m not going to surround myself around those sort of people in that environment. I’m not going to put myself there again, you know. I know that I’ve caused a lot of damage in the past, you know, I’ve been – it has taken me a long time to realise, you know, it took me seven years to realise from a young age, and, you know, I can see why my risk of reoffending is but – is at low risk – medium to high, you know, I hadn’t finished the (indistinct) programs there and the Young Offenders Program, so I think it might have been a bit different, the report, after that.[76]
[76] Transcript, 77.
Health
The Applicant told the Tribunal that he is in very good physical and mental health and he is well-equipped to make necessary changes to his life:
I'm the healthiest I've ever been, you know, I'm feeling great. I'm feeling good. My family is happy with me, you know, everyone is happy, so it's good, and, yes, I feel really good, you know. And it's the best - mentally and physically I'm the best I've ever felt, you know, and it's good, you know. I'm training inside jail, I was training outside every now and again but not as much, but come into jail and training and helping me get fitter, stronger and, you know, build that mental strength and physical strength as well, and it's training in jail it's helped me a lot. It's helped me get away and it's helped me realise and fix myself and better myself and once you start seeing results and start feeling changes yourself and you see other people, like, family and friends that - the changes in you, it's good, you know, you feel good and you're, like, 'this is what I want' …[77]
[77] Transcript, 32.
Plans for the future
The Applicant told the Tribunal that if he is released into the community he will reside with his mother in Mount Druitt. He will be able to get work at a demolition company where his brother SG works as a supervisor.[78] His brother DM and uncle RG also work in the demolition industry. He will begin working as a labourer and then will get his excavator and Bobcat tickets.[79] His friend NM is a plumber and he also may be able to offer the Applicant work. He would also like to complete his carpentry apprenticeship.[80]
[78] Transcript, 96.
[79] Transcript, 96-97.
[80] Transcript, 97.
The Applicant told the Tribunal that if he were to be given a ‘second chance’ he wants to:
get out and get a job, and you know, live a normal life, do the normal things, save money, and you know, travel, and you know, go do normal things, you know, just live life. Not live life, you know, taking drugs, doing crime, you know. … Doing things - doing things, you know what I mean, to get - to get - to get money and you know what I mean, I want to do - I want to go to work and I want to be - you know, legitimate, I want to - you know, help (indistinct) family, you know, friends …[81]
[81] Transcript, 28.
Family members in Australia and New Zealand
The Applicant told the Tribunal that his mother is his ‘best friend’ and they are ‘very, very close’.[82] She wrote a support letter for him, but he did not ‘get it in on time’.[83] His mother has returned to New Zealand a few times, and on one occasion she stayed there for nearly two and a half years to help his sister with her six boys.[84] During this period the Applicant stayed in regular contact with his mother by phone.
[82] Transcript, 9.
[83] Transcript, 9.
[84] Transcript, 9
The Applicant’s father lives in New Zealand. He returned there for a funeral in October 2018 and was not permitted to return to Australia due to his criminal record.[85] The Applicant’s father visited him on 15 occasions while he was in gaol.[86] The Applicant told the Tribunal that he had a ‘good relationship’ with his father but it ‘slowly unravelled’ following the break-up of his parents’ relationship in 2017.[87] He is no longer in contact with his father.[88]
[85] Transcript, 11.
[86] Transcript, 12
[87] Transcript, 12.
[88] Transcript, 15.
The Applicant has three brothers. DM is his oldest brother and the next eldest is SG who is 16 years older than the Applicant. They all have the same father. DM and SG both live in Australia. His other brother ‘M’ was deported to New Zealand last year.[89] The Applicant no longer speaks to him following the separation of their parents.[90] The Applicant’s sister has lived in New Zealand all her life.[91] The Applicant is the youngest child of the family.
[89] Transcript, 14-15.
[90] Transcript, 15.
[91] Transcript, 13.
The Offender Visits schedule records the Applicant was visited by his family members on 31 occasions whilst he was incarcerated intermittently from 3 June 2016 to 24 November 2019.[92] In the two years prior to the Applicant’s release from prison on 16 February 2020, his mother visited him twice and his father visited him twice. There were two recorded visits from his nephew, one from his sister and one from his brother-in-law. In the two years prior to his release, there are no recorded visits from the Applicant’s partner or any of his other siblings.
[92] Exhibit R2, TB, 160-163.
Relationship with minor children
The Applicant told the Tribunal he has a close relationship with his niece and nephew, M and T, who are the children of his brother SG.[93] He last saw M and T a few weeks before he went to gaol. They did not visit him in gaol or detention but he has spoken to them via Facetime since he has been in detention.[94] They talk on the phone about their school and sports. Before he went to gaol, he ‘watched them grow up’ and would go to see T play football and attended their birthdays.[95] They do not know he was in gaol nor that he is currently in detention.[96] M and T have previously travelled to New Zealand with their father and have met the Applicant’s sister. The Applicant told the Tribunal that he was a good uncle to the children, and he is ‘going to play a big role model in their lives.’[97]His brother DM also has a child, but she was born while the Applicant was in gaol.
[93] Transcript, 34.
[94] Transcript, 35.
[95] Transcript, 36
[96] Transcript, 37.
[97] Transcript, 38.
Relationship with partner
The Applicant is in a relationship with TM, an Australian citizen.[98] They met through mutual friends when they were at high school and he was about 16 years old. He told the Tribunal they have ‘been on and off for years’ but that ‘it’s gotten a lot better recently’.[99] Although she did not visit him while he was in gaol they were ‘in contact all the time’ by phone.[100]
[98] Exhibit R1, G2, 70.
[99] Transcript, 24.
[100] Transcript, 25.
The Applicant described his relationship with his partner and their future plans:
We’ve had our ups and downs, but, you know, we’re going to start off from hopefully where we – where it was and begin, you know, and rekindle that relationship and hopefully build it, you know. And with me coming out like this I think it’s going to help a lot, so I know that she will stay positive in a good way, and she has been looking at it a good way, and she’s happy with the way I’ve come and, but yes, like, you know, obviously one day I would like to settle down, have kids, you know, have a family, you know, at least have a couple of kids, at least two – one to two. And, you know, live a normal life, you know, get a house somewhere, you know, like live a normal life, you know, and just doing all the things, save money, travel, I want to travel, and like yes, we have all those plans.[101]
[101] Transcript, 94
Impediments on return
The Applicant told the Tribunal that he has returned to New Zealand on three occasions, but he was young at the time and he did not stay for an extended period.[102] Whereas he does not fear returning to New Zealand, it would have a ‘big impact’ on him. He stated:
… it’s a big change going back to this other country you don’t know, you know what I mean, with barely anyone there besides your sister that you know, you know what I mean? And obviously I know my brother and father that are back there, but we don’t have any – I don’t have any contact with them, same as my mum, and my family here, even my brothers, they would tell you too that I don’t, and we don’t have any contact with them and don’t plan on making any contact with them.[103]
[102] Transcript, 78; Exhibit R1, G2, 51-52.
[103] Transcript, 78.
The Applicant told the Tribunal that if he were returned to New Zealand, he ‘wouldn’t know where to start’ and he ‘would be lost.’ [104]
[104] Transcript, 79.
Evidence of family and friends
TM provided an undated statement[105] and gave oral evidence by phone at the hearing. She told the Tribunal that she and the Applicant had been friends for many years, and their friendship turned into a relationship. Their relationship has been ‘on again and off again’ but overall it is ‘stable’.[106] They really need each other. She said that she is the only person that the Applicant has in Australia other than his mother who are his ‘main support system’. She confirmed that she did not visit the Applicant in gaol but they stayed in contact through letters and phone calls.[107] She is sure the Applicant has changed since he has been in goal and she has always encouraged him to ‘take the right path’.[108] She is the person that the Applicant will listen to,[109] and when he was with her, he was ‘on the straight and narrow’.[110] She confirmed that when she discovered the Applicant was taking drugs she broke up with him, but they remained friends.[111] She has not travelled to New Zealand and does not plan to do so. She wants the Applicant to remain in Australia with her.[112] They intend to continue their relationship and hopefully start a family.[113]
[105] Exhibit A2.
[106] Transcript, 100.
[107] Transcript, 101.
[108] Transcript, 101, 102.
[109] Transcript, 101.
[110] Transcript, 102.
[111] Transcript, 102.
[112] Transcript, 103.
[113] Transcript, 104.
RG provided a statement dated 22 July 2020 and gave oral evidence by phone at the hearing.[114] He told the Tribunal that he is the Applicant’s father’s younger brother.[115] He is a New Zealand citizen and has lived in Australia for more than 25 years and he is currently working in demolition and living in Queensland. He has not seen the Applicant for four years.[116] In the past he has assisted the Applicant to get work.[117] He would be willing to put the Applicant on his ‘books’ and bring him up to Queensland and look after him.[118] He agreed that he does not know the current ‘mindset’ of the Applicant, and he does not really know whether he has changed. Although he has not seen the Applicant for four years they have been in contact via phone.[119]
[114] Exhibit A3.
[115] Transcript, 109.
[116] Transcript, 110, 112.
[117] Transcript, 110.
[118] Transcript, 111.
[119] Transcript, 112.
MD provided a statement dated 12 August 2020 and gave oral evidence at the hearing.[120] She confirmed that she is the Applicant’s cousin on his mother’s side, and she is four years older than the Applicant. In the last three or four years she has seen the Applicant about half a dozen times at family gatherings.[121] She has four children, the youngest being five years old.[122] She did not visit the Applicant when he was in gaol.[123]
[120] Exhibit A4.
[121] Transcript, 115.
[122] Transcript, 116.
[123] Transcript, 116.
SG, the Applicant’s brother, provided an undated letter of support and gave oral evidence at the hearing.[124] He is aged 39 years and has lived in Australia for 20 years and is a permanent resident. He and the Applicant share the same father, but he was brought up by his mother.[125] There is a 16 year age difference between him and the Applicant. He had very limited contact with him for the first 19 years of his life. When he first arrived in Australia in August 2000 he lived with the Applicant and his father and step-mother, but he stayed with them only two weeks as ‘it was so bad there’ that he chose to leave and live on the streets.[126] He confirmed that the Applicant was ‘brought up around drugs and alcohol’ and the home environment was ‘toxic’. He tried to support the Applicant as there were times when he was ‘down and out because of the domestic violence going on in his family.’[127]
[124] Exhibit A5.
[125] Transcript, 117.
[126] Transcript, 119.
[127] Transcript, 120.
SG told the Tribunal that he shares custody of his two children, M and T, aged 7 and 11 years, with his former partner. He confirmed that they have not seen the Applicant since he went to gaol nor did they speak to him on the phone.[128] Since the Applicant moved to immigration detention, the children have said a quick ‘hello’ to him on the phone. He hopes the Applicant will not offend again, but he is not prepared to say that he does not think he will.[129]
[128] Transcript, 120-121.
[129] Transcript, 122.
NM provided an undated letter of support and gave oral evidence by phone at the hearing.[130] He told the Tribunal that he met the Applicant when he was around 12 years old when they were at school and he has known him for more than 12 years. At the time the Applicant was ‘excelling’ at rugby league. The Applicant’s parents ‘were known to be heavy marijuana smokers.’[131] Despite the home environment in which he lived, the Applicant ‘kept trying for a number of years.’[132] However, the Applicant was too young to make his own decisions.[133] NM told the Tribunal that he can help the Applicant with a job. He is a plumber and has worked in construction for eight years. He could get the Applicant a job as a labourer as he is a leading hand at his company.[134]
[130] Exhibit A6.
[131] Transcript, 124.
[132] Transcript, 125.
[133] Transcript, 126.
[134] Transcript, 127.
DM provided a letter dated 14 August 2020 and gave oral evidence by phone at the hearing.[135] He confirmed he is aged 38 and is the Applicant’s older half-brother. He was adopted at birth by his father’s older sister and her husband. He lived in New Zealand until he was aged 27 and has been in Australia for 14 years.[136] When he first arrived in Australia, he lived with his father and step-mother for about eight months. He was close with his brother who was then aged 12 years, and he taught him to swim and surf. However, he did not agree with how the Applicant’s family was bringing him up and he ended up living his own life as he ‘couldn’t handle what [he] was seeing.’[137] He feels ‘guilty’ as he could not do more for the Applicant at the time. He has not seen the Applicant for three years nor has he been in contact with him during this time. He told the Tribunal that he could help the Applicant to get work. He has two teenage children and a four year old daughter who met the Applicant before he went to gaol when she was aged one. He does not want the Applicant to return to New Zealand as he wants to have a face-to-face relationship with him and for the Applicant to get to know his young daughter.[138]
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
[135] Exhibit A7.
[136] Transcript, 132.
[137] Transcript, 134.
[138] Transcript, 134-135.
Does the Applicant pass the character test?
In the representations and documents that the Applicant submitted to the Department and the Tribunal, he does not dispute the information in the National Criminal History Check dated 17 April 2020 regarding his criminal convictions and sentences.
The evidence before the Tribunal is that on 20 September 2018, the Applicant was convicted in the District Court of New South Wales of Aggravated robbery and inflicting actual bodily harm and sentenced to a term of imprisonment of five years. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in paragraph 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in paragraph 501(7)(c). The Tribunal is also satisfied, for the purposes of paragraph 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.
For these reasons, the Applicant cannot rely on subparagraph 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.
Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?
In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.
PRIMARY CONSIDERATIONS
Primary Consideration A – Protection of the Australian community
Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) provides:
When considering protection of the Australian community, decisionmakers should 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. Remaining in Australia is a privilege that Australia confers on noncitizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that 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.
(a) Nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. In the circumstances of this case, the following factors may be relevant:
(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 subparagraph (b) above, the sentence imposed by the courts 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) …
The Applicant has an extensive criminal history commencing when he was aged 15 years in January 2012. From 2012 to 2015, the Applicant has 72 recorded convictions as a juvenile including for possessing graffiti implement, robbery, travel without valid ticket, destroying/damaging property, possessing prohibited drugs, assaulting a police officer, resisting arrest, shoplifting and common assault. From 2017 to 2018, as an adult offender the Applicant was convicted of a further 18 offences including aggravated robbery, larceny, breaking and entering, resisting arrest and assault of a police officer, shoplifting, public transport offences and assault occasioning actual bodily harm.[139] In the 20 years that the Applicant has resided in Australia, he has been convicted of a total of 90 offences and spent a total of two years and 11 months in prison in addition to a range of non-custodial penalties.
[139] Exhibit R1, G2, 26-31.
The Applicant has committed multiple violent crimes, including those for which he was convicted in 2016 and 2018, which caused physical injuries to his victims, including members of his family. In accordance with paragraph 13.1.1(1)(a) of the Direction, the Tribunal is required to view these violent offences very seriously. The Tribunal has given weight to the sentencing remarks of Magistrate Huber who described the Applicant’s contravention of the apprehended domestic violence order in December 2015 as of the ‘worst variety’ and the assault which caused injuries to his brother as ‘vicious’. The Tribunal finds that the seriousness of the Applicant’s offending is increased by the fact the Applicant continued to re-offend as an adult despite, ignoring numerous warnings from the courts to him as a juvenile offender, and despite being subject to three intensive correction orders in April 2016. The Tribunal has also given weight to the sentencing remarks of Judge Madgwick who described the Applicant’s violence against his victim in August 2017 as ‘gratuitous and serious’, noting that it was ‘fortunate that more harm was not caused to the victim.’[140]
[140] Exhibit R1, G2, 34.
Having regard to paragraph 13.1.1(d) of the Direction, the custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh and Minister for Immigration and Border Protection [2017] AATA 367 at [50]. The Tribunal finds that while the sentences imposed on the Applicant are not at the higher end of the sentencing range, they do not detract from the serious nature of his criminal offending.
The Tribunal has had regard to paragraphs 13.1.1(1)(e) and 13.1.1(1)(f) of the Direction and finds that the Applicant’s criminal offending was frequent and repetitive during the period January 2012 and August 2017. The Applicant engaged in violent and intimidating conduct against his victims, which included physical assaults and verbal abuse against family members in breach of an AVO. The Tribunal finds that the frequency and cumulative effect of the Applicant’s repeated offending increases its severity.
Based on the evidence before it and having regard to the considerations in paragraph 13.1.1 of the Direction, the Tribunal finds that the Applicant’s criminal offending has been repetitive and violent and is therefore serious.
The seriousness of the Applicant’s criminal offending weighs against the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.
(b) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2(1) of the Direction:
In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)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 re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
Having regard to the nature of the harm to individuals or the Australian community if the Applicant were to re-offend, the Tribunal finds that any future re-offending by the Applicant may involve physical and/or psychological harm to members of the Australian community. The Applicant's criminal offending has included actual and threatened violence committed against his victims, which include members of his family. The potential harm to individuals and the Australian community should he again engage in such conduct is serious. His violent behaviour has caused, and has the potential to cause in future, substantial harm to victims, being both the psychological and physical impacts of his offending, and significant financial cost to the community associated with emergency services and law enforcement activities.
Having regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Tribunal notes that despite being afforded numerous warnings and second chances by the courts through the imposition on him of a community service order and an intensive correction order, the Applicant continued to re-offend. The Applicant’s blatant disregard for authority and court orders through his repeated breaches of the ADVO and court orders reinforces his risk of re-offending. The Tribunal has given weight to the LSI-R assessment in the Pre-Release Report of the Applicant as being at a medium to high risk of reoffending. [141]
[141] Exhibit R2, TB, 68.
The Applicant attributes his offending to his youth and drug abuse. The Tribunal notes that the Applicant was aged 20 years at the time of his offending and was using drugs regularly. The evidence before the Tribunal is that the Applicant has not taken drugs for more than two years and has acquired the knowledge and skills required to control his actions, make the right choices and think about the consequences of his behaviour. The Tribunal has however noted the evidence before it that the Applicant’s previous attempts to rehabilitate failed and he subsequently relapsed into using drugs and reoffended in 2017. The Applicant’s evidence is that he intends to continue his rehabilitation in the community, including by going to rehabilitation and attending AA meetings so as to ensure that he does not again relapse into substance abuse. The Applicant completed a range of courses and programs while in gaol, including the Young Offenders Program and three EQUIPS courses, which he claims have greatly assisted with his rehabilitation and reduced the risk he will engage in further criminal offending.
The Applicant’s evidence is that if he is permitted to return to the community, he will have secure accommodation with his mother. The Tribunal however notes that at the time of his offending which resulted in his 2018 convictions, the Applicant had the support of family members in Australia, including his mother, and this did not act as a protective factor against his offending. The Applicant has various employment options which have been made available to him by family and friends, including working as a labourer. He wishes to undertake further study at TAFE to obtain formal qualifications in carpentry or as a roofer. Based on the evidence before it, the Tribunal finds that if the Applicant has secure accommodation and regular paid employment, these will be protective factors against him engaging in future criminal offending.
On the basis of the evidence before it, and taking into account available information and evidence on the risk of the Applicant re-offending, the Tribunal finds that the likelihood of the Applicant engaging in further criminal or other serious conduct is moderate, and that this level of risk is unacceptable given the nature of the harm he may cause if he does re-offend.
For the reasons above and applying the guidance in paragraphs 13.1.1(1) and 13.1.2(1) of the Direction, Primary Consideration A weighs against the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B – The best interests of minor children in Australia affected by the decision
Primary Consideration B of Part C in paragraph 13.2 of the Direction requires decision-makers to make a determination whether revocation is in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.
The Applicant does not have any children of his own.[142] His evidence is that he has two nieces and a nephew who are aged 4, 7 and 11 years. Having regard to paragraph 13.2(4)(a) of the Direction, there is no evidence before the Tribunal that the Applicant has played any parental role in the lives of these children. Whereas the Applicant spent some time with his niece and nephew, M and T, prior to his incarceration, he has had very limited contact with them since his arrest in August 2017. Similarly, his contact with his other niece has been extremely limited as she was aged one when he went into custody. The Applicant has maintained some phone contact with his nieces and nephew, but this has been only since he left gaol. Having regard to paragraph 13.2(4)(e) of the Direction, the Applicant’s nieces and nephew are cared for by their parents who have primary responsibility for their daily needs and upbringing.
[142] Transcript, 24.
Having regard to the factors in paragraph 13.2(4)(d) of the Direction, the Tribunal notes that M and T have maintained their limited contact with the Applicant by phone and there is no evidence to indicate that they could not continue to remain in touch with him in this way if he leaves Australia. Further, the evidence is that the children’s father makes regular return visits to New Zealand and the children have travelled there with him in the past and are able to do so in the future allowing them to continue their relationship with the Applicant.
There is limited evidence before the Tribunal of the views of the children in relation to the Applicant or how they would be impacted if the Applicant were not to hold a visa, other than the evidence given by their respective fathers. Accordingly, the Tribunal has not placed weight on the factors in paragraph 13.2(4)(f).
In circumstances where there is limited evidence of the Applicant playing a parental role in the lives of any of the children, nor of the impact on them of the Applicant’s removal from Australia, the Tribunal has given limited weight to this Primary Consideration.
On the basis of the evidence before it, the Tribunal finds that Primary Consideration B does not weigh in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration C – The expectations of the Australian community
Primary Consideration C of Part C in paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Full Court of the Federal Court considered paragraph 11.3(1) of Direction 65, which is analogous to paragraph 11.3(1) of the Direction, in FYBR and Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The majority (Charlesworth and Stewart JJ) concluded as follows:
·Paragraph 11.3 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to impute or ascribe to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.[143] 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.[144]
·However, the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion.[145] It is necessary for the decision-maker to assess the applicant’s circumstances in order to reach an evaluative assessment of “appropriateness”.[146]
[143] Charlesworth J at [66]; Stewart J at [91].
[144] Charlesworth J at [67]; Stewart J at [104].
[145] Charlesworth J at [76].
[146] Stewart J at [97].
The effect of Paragraph 13.3(1) points to the likelihood that community expectation will in most cases call for non-revocation, without dictating an inflexible conclusion. The question for a decision-maker is the weight to be attached to this consideration.
Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia. The Applicant’s offences include serious offences involving domestic violence, which as recognised by Principles 2 and 3 of paragraph 6.3, should generally result in the cancellation of his visa.
The Applicant arrived in Australia at the age of two years and is now aged 23 years. Having regard to the factors in Principle 5 of paragraph 6.3 of the Direction, particularly the length of time the Applicant has been in Australia, the Australian community would likely afford a higher degree of tolerance for the Applicant’s criminal behaviour than if he had been resident in Australia for a shorter period of time. The Tribunal finds that the length of time the Applicant has been living in Australia, namely a period of more than 20 years, is a factor that supports a finding that there is a higher level of tolerance by the Australian community for his serious criminal conduct than there would be for a non-citizen who has not lived in the community for an extended period of time.
Having regard to the factors in Principle 7 in paragraph 6.3 of the Direction, relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the mandatory visa cancellation on the Applicant’s mother, two brothers, aunts and uncles, cousins and other family members who are Australian permanent residents and reside in Australia. The Applicant’s removal from Australia will prevent them from re-establishing their bond with him and will require them to maintain their relationship by phone and visits to New Zealand. The impact on the Applicant’s family members in Australia are factors which would likely cause the Australian community to have a higher degree of tolerance for the Applicant’s serious criminal conduct.
There is limited evidence before the Tribunal in relation to the impact of the Applicant’s removal from Australia on the Applicant’s immediate family members, particularly his mother who did not provide a statement in support of the Applicant. The Tribunal however accepts the Applicant’s evidence that he has a close relationship with his mother and she will be adversely affected by his removal to New Zealand. In making this finding the Tribunal notes that the Applicant’s mother has made numerous trips to New Zealand in the past and stayed for extended periods to assist her daughter and may be able to do so again to support the Applicant to resettle there upon his return.
The Tribunal also has had regard to the contribution the Applicant has made to the Australian community during his 20 year residency in Australia. The evidence is that whereas he has participated in sporting activities and volunteered as a judge of body-boarding competitions,[147] he has had very limited periods of paid employment, the longest being for approximately 12 months as a labourer.
[147] Transcript, 40.
Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision.
OTHER CONSIDERATIONS
While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.
The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:
... 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.
International non-refoulement obligations
There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this other consideration is of neutral impact.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
(1) Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Guided by paragraph 14.2(1)(a) of the Direction, the Tribunal recognises that the Applicant has resided in Australia for 20 years, having arrived as a young child of two years and has only returned to New Zealand on three occasions for a short period of time. He completed his schooling in Australia and has worked for limited periods in paid employment prior to his incarceration. Having regard to paragraph 14.2(1)(a)(ii) of the Direction, the Tribunal notes that the Applicant began offending at the age of 14 and he has been in custody, gaol or immigration detention since August 2017. The Applicant has not engaged in any substantial period of productive employment and this together with his incarceration for the past three years has necessarily limited any positive contribution he has made to the Australian community.
Having regard to the considerations in paragraph 14.2(1)(b), the Tribunal accepts the Applicant has ties to Australia through his mother, two brothers and other family members and friends who want him to remain in Australia and will be disappointed if he is returned to New Zealand. However, there is no evidence before the Tribunal to indicate that these family members or friends have any particular reliance on the Applicant, or would suffer any financial or practical hardship if he were removed. Insofar as this consideration weighs in the Applicant’s favour, the Tribunal has given it limited weight.
Based on the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration does not weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1)Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant was employed as a carpentry labourer prior to his incarceration. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal on the impact of the non-revocation of the cancellation decision on the Applicant’s victims.
Extent of impediments if removed from Australia
The Direction states in paragraph 14.5(1) that:
(1)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 substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 23 years and is in good physical and mental health. He has experience working as a labourer and has trained as a carpenter and plans to complete his qualifications and/or undertake an apprenticeship.
The Applicant has a history of drug abuse and he intends to continue his rehabilitation in the community. Treatment for substance abuse is available in New Zealand and the Applicant will have the same access to this as other New Zealand citizens should he seek such assistance on his return.
Having regard to paragraph 14.5(1)(b) of the Direction, the Tribunal finds that the Applicant will not face language or cultural barriers on return. New Zealand is culturally and linguistically similar to Australia and has comparable standards of social welfare support and the Applicant will have access to these services as a New Zealand citizen. Noting paragraph 14.5(1)(c) of the Direction, the Tribunal is satisfied that the Applicant will have access to healthcare and medical supports available to all New Zealand citizens, which is likely to be of a similar quality to that available in Australia.
The Applicant’s evidence is that although the members of his immediate family, specifically his father, brother and sister reside in New Zealand, it would be extremely difficult for him to return there. He claims that he has no contact with his father and brother and has not been in touch with them for a couple of years. He does however have a good relationship with his sister who has lived in New Zealand throughout her life. The Tribunal therefore finds that the Applicant has immediate family members in New Zealand who could provide him with a degree of support if he were to reach out to them upon his return.
On the basis of the evidence before it, the Tribunal finds that, on his return to New Zealand, the Applicant will face hardship, particularly financial and emotional stress, while he finds suitable accommodation, accesses available welfare and mental health services, and looks for a job or education and training opportunities. This hardship will be exacerbated if he is unable to re-establish contact and re-build his relationship with his immediate family members in New Zealand.
Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration A weighs against revocation of the Mandatory Visa Cancellation Decision. The nature, frequency and seriousness of the Applicant’s criminal offending, and the moderate risk of him committing future offences, are such that the protection of the Australian community is best served by the non-revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration B is of neutral weight in determining whether the Mandatory Visa Cancellation Decision should be revoked as there is limited evidence that there are minor children with whom the Applicant has a significant relationship and who may be affected by his removal.
Primary Consideration C weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia.
In regard to the relevant other considerations, only the extent of impediments on return to New Zealand weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
DECISION
The Reviewable Decision dated 7 July 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.
I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
...............................[SGD].........................................
Associate
Dated: 19 October 2020
Date(s) of hearing: 10 and 11 September 2020 Applicant: Self-represented Solicitors for the Respondent: Mills Oakley Lawyers
Key Legal Topics
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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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Jurisdiction
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Standing
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