Speers and Minister for Immigration and Border Protection (Migration)

[2017] AATA 2287

Speers and Minister for Immigration and Border Protection (Migration) [2017] AATA 2287 (23 November 2017)

Division:GENERAL DIVISION

File Number:           2017/5422

Re:William Speers

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:23 November 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member T. Tavoularis

MIGRATION - non-revocation of mandatory cancellation of visa – visa was cancelled under s 501(3A) because the Applicant did not pass character test and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory visa cancellation should be exercised – Considerations in Direction No. 65 – Applicant been in Australia for 17 years, has family in Australia - considerations outweighed by protection of the Australian community and community expectations – decision under review affirmed.

Legislation

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

Cases
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Allan and Minister for Immigration and Border Protection [2016] AATA 1077

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (the “Direction”)

REASONS FOR DECISION

Senior Member T. Tavoularis

23 November 2017

INTRODUCTION

1. This matter relates to an application for review filed by William Speers (“the Applicant”) on 11 September 2017. The decision under review is the decision of a delegate of the Minister for Immigration and Border Protection (“the Minister” or “the Respondent”) dated 22 August 2017. The delegate’s decision, pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), was not to revoke the original cancellation decision.[1]

2. The Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(ba) of the Act.

   BACKGROUND

   [1] The original decision being the mandatory visa cancellation by virtue of s 501(3A) of the Migration Act 1958 (Cth).

3. The Applicant is a 39 year old citizen of New Zealand. He arrived in Australia on

   
   

   30 September 2000, aged 22 years old.[2]  His movement records indicate that aside from two brief trips to New Zealand in 2009, he has resided in Australia since that time. Upon arrival and re-entry into Australia he was granted a Class TY Subclass 444 Special Category (Temporary) visa (“the visa”).[3]

   [2] See Exhibit 2, Attachment B “Applicant’s Incoming Passenger Card”.

   [3] See Exhibit 4, G Documents, G24, p 149.

4. The Applicant has been charged and convicted with an extensive number of offences both in New Zealand and since being in Australia. I will elaborate on those offences later in my decision.

5. On 8 July 2010, the Respondent’s Department wrote to the Applicant giving him notice of an intention to consider cancellation of his visa under subsection 501(2) of the Migration Act 1958.[4]

   [4] See Exhibit 2, Attachment A “Letter from Department dated 8 July 2010”.

6. On 20 August 2010, the Respondent’s Department wrote to the Applicant again, with their decision pertaining to that notice. On this occasion the Respondent decided not to cancel his visa under s 501 of the Act but formally warned the Applicant that visa cancellation may be reconsidered if he committed further offences.[5]

   [5] See Exhibit 5, Letter from Department dated 20 August 2010.

7. There was a brief interlude in his pattern of offending but the offending behaviour resumed in 2014 and continued until this year.

8. On 21 September 2016, the Applicant was sentenced in the Gladstone District Court to two years imprisonment for three counts of unlawful assault occasioning bodily harm whilst in company.[6] Subsequent to this, on 15 March 2017, the Applicant was sentenced in the Gladstone Magistrates Court to 15 months imprisonment for one count of dangerous operation of a motor vehicle, and four months for failure to stop moto vehicle, and his suspended sentence was fully revoked.[7]

   [6] See Exhibit 4, G Documents, G7, p 104.

   [7] See Exhibit 4, G Documents, G7, p 103.

9. This matter concerns the circumstances whereby the Applicant’s visa was cancelled due to his criminal history and incarceration and the subsequent refusal of the Minister’s delegate to revoke that cancellation.

10. On 30 March 2017, the Minister cancelled the Applicant’s visa pursuant to s 501(3A) of the Act.[8] The mandatory cancellation power was enlivened because the Applicant failed the character test,[9] and he was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against Australian law.

    [8] See Exhibit 4, G Documents, G3, pp 32 - 36.

    [9] The Applicant had a substantial criminal record because he had been sentenced to a term of imprisonment of more than 12 months pursuant to ss 501(6)(a) and 501 (7)(c) of the Migration Act 1958.

11. On 18 April 2017, the Applicant requested revocation of that mandatory visa cancellation.[10] Included with the Applicant’s request for revocation there was a personal circumstances form and about ten character references.[11]

    [10] See Exhibit 4, G Documents, G12, pp 123-126.

    [11] See Exhibit 4, G Documents, G13, and G14 - G23.

12. On 22 August 2017, a delegate of the Minister considered the matter and decided not to exercise the discretion in s 501CA(4) of the Act to revoke the mandatory cancellation of the Applicant’s visa.[12] That decision was sent to the Applicant by registered mail on 23 August 2017, who acknowledged receipt on 31 August 2017.[13]

    [12] See Exhibit 4, G Documents, G5, pp 92 -101. 

    [13] See Exhibit 4, G Documents, G6, pp 85-86 & 102.

13. On 11 September 2017, the Applicant lodged an Application for Review of that decision with this Tribunal.[14]

    [14] See Exhibit 4, G Documents, G2.

    ISSUES

14. The issue I must consider is whether, in the circumstances of this case, the discretion in

    
    

    s 501CA(4) of the Act should be exercised in favour of revoking the mandatory cancellation of the Applicant’s visa.

15. When making a decision on whether to exercise the revocation discretion in s 501CA(4) of the Act, there are two issues a decision maker must consider:

    (i)whether the Applicant passes the “Character Test” as defined in s 501 of the Act; or

    (ii)whether there is another reason why the mandatory cancellation decision should be revoked.

16. The Minister contends that the Applicant does not pass the character test and that there is not another reason to exercise the discretion to revoke the mandatory visa cancellation decision. Therefore, according to the Minister, the correct and preferable decision is to not revoke the mandatory cancellation of the Applicant’s visa.[15]

    [15] See Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) at [22], [48] & [49].

17. I will consider each of these issues in turn.

    ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?

18. It does not seem to be contentious that the Applicant does not pass the character test. For the sake of completeness, I will briefly address this issue.

    Australian offending history

19. At the hearing, the Applicant agreed that his offending was serious. The full extent of his Australian offending is set out in the National Police Certificate.[16]  It may be summarised thus:

    [16] See Exhibit 4, G Documents, G7, pp 103 – 108.

    ·       5 September 2002 – Toowoomba District Court - assaults occasioning bodily harm – imprisonment for 12 months (to be served by way of Intensive Correctional Order);

    ·       14 February 2005 – Rockhampton District Court - assaults occasioning bodily harm – imprisonment for 12 months (to be wholly suspended for a period of three years);

    ·       21 November 2007 - Downing Centre Local Court – two counts of common assault, one count of fail to quit premises and one count of resist officer in the execution of duty – punished by way of “probation service supervision for as long as considered necessary” (for the two assaults), a $250 fine and a $500 fine respectively, and $70 court costs (x 4);

    ·       26 June 2008 – Blacktown Local Court – one count of behaving in an offensive manner near a public place or school and one count of not holding a valid ticket for train travel – on each count fined $100;

    ·       26 June 2008 - Blacktown Local Court – resisting a police officer in the execution of his/her duty  and one count of using offensive language in a public place or school – punished by way of 12 month supervision order[17] and $100 fine, respectively, plus $70 court costs;

    [17] Additionally, the Applicant was ordered to complete educational development or drug and alcohol rehabilitation and report back to the probation office within 7 days. Further, the Applicant was required to complete and anger management programme within 6 months of the court date and to attend counselling for alcohol dependence.

    ·       22 August 2008 – Millmerran Magistrates Court – possession of dangerous drugs (with public nuisance) – convicted and fined $500;

    ·       15 January 2009 – Gladstone Magistrates Court – contravene direction or requirement of lawful authority – convicted and fined $175;

    ·       22 January 2009 - Gladstone Magistrates Court – drunk or disorderly in licenced premises – convicted and fined $250;

    ·       20 May 2010 - Gladstone Magistrates Court – failure to appear in accordance with undertaking (x2) – convicted and fined $400;

    ·       2 December 2014 - Gladstone Magistrates Court – possession of dangerous drugs, possession of property suspected of having been acquired for commission of a drug offence – convicted and fined $600;

    ·       3 August 2015 - Gladstone Magistrates Court – possession of utensils or pipes, possession of property suspected of having been acquired for commission of a drug offence, unlawful possession of controlled drug – on all charges convicted and fined $500;

    ·       6 January 2016 - Gladstone Magistrates Court – possession of dangerous drugs (x 2), possession of utensils or pipes, unlawful possession of weapons, possessing / acquiring restricted items – on all charges convicted and fined $1000;

    ·       6 January 2016 - Gladstone Magistrates Court – breach of bail – convicted and fined $400;

    ·       18 January 2016 - Gladstone Magistrates Court – breach of bail – sentenced to imprisonment for 21 days to be suspended for 12 months;

    ·       16 September 2016 - Gladstone Magistrates Court – possession of dangerous drugs (x 4), possession of utensils or pipes, possession of property suspected of having been acquired for committing a drug offence (x 2), lack of authority required to possess explosives, contravention of direction or requirement of lawful authority (x 2), possession of property suspected of being the proceeds of an offence under the Drugs Misuse Act1986 (Qld), breach of bail – on all charges convicted and fined the sum of $2,000;

    ·       21 September 2016 - Gladstone District Court – unlawful assault occasioning bodily harm (x 3) – on all charges convicted and sentenced to imprisonment for two years (all terms of imprisonment to be served concurrently);

    ·       15 March 2017 - Gladstone Magistrates Court – dangerous operation of a motor vehicle, failure to stop motor vehicle upon lawful request to do so, contravention of domestic violence order – suspended sentence previously imposed was fully invoked and concurrent with that, the Applicant was (for these offences) convicted and sentenced to imprisonment for 4 months (concurrent), plus 15 months to be served on a cumulative basis with a parole eligibility date of 11 April 2017. Additionally, the Applicant’s driver licence was disqualified for a period of two years.

    New Zealand offending history

20. The Applicant has criminal and traffic history in New Zealand pre-dating his arrival in Australia.  It dates from 18 July 1995 and runs until 2 August 2000. It is particularised in his New Zealand Police Report.[18] Stated in short compass, the criminal history can be summarised thus:

    ·Failure to report without reasonable excuse, failure to stop when followed by red/blue flashing lights (x 2), drove a motor vehicle in a dangerous manner, operated a motor vehicle recklessly, drove while disqualified, unlawfully takes trailer, unlawfully takes motor vehicle (x 2), failure to answer District Court bail (x 3), receives property over $5,000 (x 2), possession of offensive weapon, wilful damage over $5,000, common assault, escapes from police custody, cultivate cannabis, assault person with blunt instrument.

    ·For these offences, the Applicant received sentences ranging from disqualification from driving, to corrective type orders, to community services orders, and ultimately to terms of imprisonment from 1 month to 9 months.

    [18] See Exhibit 4, G Documents, G9, pp 111 – 113.  

    Character assessment

21. The character test is defined in s 501(6) of the Act. It provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is s 501(6)(a), under which a person does not pass the “character test” if they have a “substantial criminal record” as defined in s 501(7). According to s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more. The wording of that provision is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served.

22. Having regard to his criminal history, it is clear the Applicant has been sentenced to more than 12 months imprisonment. There is no doubt the Applicant has a “substantial criminal history” within the meaning of s 501(7)(c) of the Act, and as such, he does not pass the character test.

23. I must therefore move on to the next question: whether there is another reason why the discretion under s 501CA(4) of the Act, to revoke the mandatory cancellation of the Applicant’s visa, should be exercised.

    ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

24. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:

    “…a decision maker: 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.” [19]

    [19] Direction No 65, paragraph 7(1)(b).

25. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:

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

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

    (c)Expectations of the Australian community.

26. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

27. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

28. Paragraph 6.3 of the Direction sets out at a number of principles that should inform the decision maker’s consideration.  Briefly stated, they are summarised as follows:

    (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 a violent or sexual crime, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;

    (4)  In some circumstances, the criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any future risk of similar conduct in the future is unacceptable. Notably, 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;

    (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;

    (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 for determining whether to exercise the discretion.

    Primary Consideration A:  Protection of the Australian Community from Criminal or Other Serious Conduct.

29. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides 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) The Nature and Seriousness of the Applicant’s Conduct to Date

30. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevantly (for present purposes), amongst those factors are: (i) violent crimes are viewed seriously; (ii) the sentence imposed by the courts for a crime or crimes; (iii) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; (iv) the cumulative effect of repeated offending; (v) whether the non-citizen provided false or misleading information to the department, including by not disclosing prior offending; and (vi) whether the non-citizen has been formally warned in writing about the consequences of further offending in terms of the non-citizen’s migration status.

31. The Applicant’s conduct to date is clearly of a serious nature.  As mentioned earlier, he conceded as much at the hearing. His criminal history, not just in Australia but when viewed in totality with his history in New Zealand, is appalling.

32. In reaching a considered assessment of the nature and seriousness of the Applicant’s conduct it is necessary to elaborate on the abovementioned factors.

    Violent Crimes are viewed seriously

33. The Applicant has been convicted of numerous assault offences, both here and in New Zealand. In particular, on 21 September 2016 he was convicted of three charges of unlawful assault occasioning bodily harm whilst in company. The circumstances of this offence make for sombre reading. According to the remarks of the sentencing Judge, the Applicant and five friends attended the victims’ house to retrieve a stolen motorcycle. The Applicant’s co-accused were armed with crowbars and hammers. They then proceeded to assault the three men with those weapons with the addition of punching and kicking.[20] At the hearing, the Applicant sought to make a point of not actually engaging in the administration of the physical assault and that he was more an overseer or orchestrator, or to put it in his words, “directing traffic”. To my mind, this submission goes nowhere and does not, in any way, ameliorate the circumstances of the offending.

    [20] See Exhibit 4, G documents, G11, Sentencing Remarks of Judge Koppenol.

1. In a further indication of his propensity to violent offending, the Applicant was asked to leave certain licenced premises by security and the licensee and owner. He took umbrage at that reasonable request, became violent and started swinging punches using clenched fists with both hands, striking the victim with blows on the body and head.[21] Amongst other offences for this episode the Applicant was convicted of two counts of common assault on

   
   

   21 November 2007.

   [21] See Exhibit 3, Summons Material, pp 8 – 10.

2. There are earlier assaults in Australia dating from 2002. His conviction for assaults occasioning bodily harm on 5 September 2002 resulted in an application for criminal compensation by the victim. The presiding Judge determining the criminal compensation matter formed this view of the Applicant’s conduct:

   “On the occasion in question involving the [Applicant], [the victim] approached the [Applicant] and spoke to him thinking that he was a person that he had some dealing with in the past, and [the Applicant] responded by savagely punching him.”[22]

   [22] See Exhibit 3, Summons Material, p 4, lines 10 – 20.

3. There was evidence before the sentencing judge that the victim did suffer for many years from Autism (Asperger Syndrome). It is clearly an attack on a vulnerable member of the Australian community. The consequences of this attack were appreciated by the sentencing Judge who noted the victim “…has suffered identifiable additional difficulties with his background of Asperger Syndrome… this attack set him back to an appreciable extent and so far as the psychiatrist can, he has put a percentage of 10% effect attributable to the attack. I am content to accept that that is appropriate.” [23]

   [23] See Exhibit 3, Summons Material, p 4.

4. The Judge determining this criminal compensation matter also thought the circumstances serious enough to fix the level of the compensatory award at between 18 and 20 percent of the maximum available figure. Accordingly, an order was made that the Applicant pay the victim the total sum of $14,000 by way of criminal compensation.[24] It is not clear from the evidence whether that sum has ever been paid.

   [24] See Exhibit 3, Summons Material, p 5.

5. Two further aspects of the violent offending should be taken into account. First, the Applicant did, on 11 November 2016, contravene a domestic violence order against his then domestic partner. The circumstances of his conduct grounding the original order are not before the Tribunal and no definitive conclusion about this offending can be drawn from the contravention alone.  The Tribunal has previously highlighted the seriousness of this type of offending in the matter of Ahori and Minister for Immigration and Border Protection, saying:

   “Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another be trivialised or downplayed. The implications of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.”[25]

   [25] Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53] per Senior Member Sosso (as he then was).

6. Second, the Applicant’s history in New Zealand contains similar themes of violence towards others with at least two assault-type offences for which he was sentenced to a community service order and a term of imprisonment for 9 months. For the sake of completeness I note there is a still further conviction for common assault in his Australian history from 14 February 2005.

7. The Applicant’s offending – his violent offending in particular – can be viewed in no other way other than serious. This factor confirms the nature and seriousness of his offending.

   Sentences imposed by the Courts

8. It is undeniable that sentences involving terms of imprisonment are the final resort in the sentencing hierarchy. The Applicant’s history in this regard is lamentable. There are nine sentences of imprisonment on separate occasions relating to his offending – four in New Zealand and five in Australia. The nature of the custodial terms imposed clearly reflects the seriousness of the offences he has committed. For his two most recent episodes of offending, the sentencing courts clearly thought this Applicant’s days of receiving leniency in the form of non-custodial terms and/or other community service or reporting based orders, are now well behind him.

9. In Australia alone, his criminal history runs for just over five pages. When sentenced for the three unlawful assault charges on 21 September 2016, the court sentenced him to a term of imprisonment of two years. When being sentenced for dangerous operation of a motor vehicle on 15 March 2017 the sentencing court had no hesitation in imposing a custodial term of 15 months. The sentencing regime, like the offending, is escalating in severity.

   Frequency of offending and increasing seriousness

10. Having regard to the totality of the Applicant’s criminal history, we are talking about something in the order of 44 offences committed in Australia and 19 in New Zealand. The sheer consistency in the pattern of offending, both in Australia and New Zealand, ignoring, as it does, lawful authority and the personal and property rights of others, to my mind, confirms two things: (1) the nature of this Applicant’s offending conduct to date is very serious, and (2) I cannot be convinced that it is at an end.

11. There is the additional factor of this Applicant’s age. He is a relatively young 39 years of age. He has committed something in the order of 63 offences as an adult. If one looks at the total years of his adulthood thus far (21 years) and divides that by the number of committed offences, we are talking about an Applicant who has committed an average of three offences per year which have come before the courts for punishment/sentencing.

12. This consistency of offending has the more concerning and sinister trend of increasing seriousness. His early offending can be described as, perhaps, less than very serious. However, there can be no doubt that as the offending continues, so does its seriousness.  The factual circumstances of the assaults for which he was sentenced on 21 September 2016 import an element of deliberate planning and organisation. This was not offending “off the cuff” arising from some minor disagreement. The assaulting conduct was administered in a deliberate way to achieve a specific outcome.

    Cumulative effect of repeated offending

13. There is clearly a snowballing effect resulting from this Applicant’s offending. It can be seen in the absence of hesitation in the minds of the sentencing judicial officers in 2016 and 2017 to impose terms of imprisonment. It can also be seen in the nature and extent of the criminal compensation order imposed on him earlier in his offending career. To my mind, his offending is so consistent and the factors behind it so unresolved, that there is no telling what further harm he could do were this conduct to be continued. 

14. Two further items of concern should be noted. First, the Applicant does not seem to be developing any measure of respect for the personal rights of others. When not getting his way at licensed premises his first reaction is to respond in physical terms. There are clearly unresolved issues of anger management and behavioural moderation in his personality which lead him to physically lash out at people. Second, the Applicant’s issues with illicit substances appear throughout his offending history and, for present purposes, reach a crescendo in his sentencing regime on 21 September 2016. It is not an unreasonable conclusion to say that his unresolved battle with drugs and alcohol has disoriented his capacity to distinguish right from wrong and that it has clearly unhinged his moral compass.

    Providing false or misleading information to the Department

15. In considering the nature and seriousness of the Applicant’s conduct, I must also consider whether he has provided false or misleading information to the Department overseen by the Respondent. Unfortunately for the Applicant, he has. On his arrival in Australia on

    
    

    30 September 2000, the Applicant provided a false declaration on his incoming passenger card by declaring that he had no criminal convictions, thereby intentionally concealing his New Zealand criminal history.[26]

    [26] See Exhibit 2, Annexure B, Applicant’s Incoming Passenger card. 

16. All too often in applications of this type, an applicant seeks to ameliorate this factor by suggesting that he/she was misled into thinking that the question on the incoming passenger card was asking about whether he/she had any criminal convictions in Australia. For this reason, it is often contended the “No” box was ticked. This submission goes nowhere because the question is clear “Do you have any criminal conviction/s?” There is no reference to in Australia or, indeed, anywhere else. This type of “I was misled” submission is always disingenuous in circumstances where an applicant knows he/she has a criminal history in the country from which he/she emanated. In those circumstances, an incoming passenger with a query about that question on the passenger card would no doubt seek guidance from the appropriate immigration officer.

    Further offending after being formally warned

17. The Applicant’s offending eventually came to the attention of the Respondent’s Department. On 8 July 2010 the Department wrote to him, noting he had a substantial criminal record and notifying him of an intention to consider cancellation of his visa.[27] The Applicant claimed he did not recall receiving that letter. On 20 August 2010, a delegate of the Minister made a decision not to cancel his visa on character grounds at that time. Instead, a formal warning was issued to the Applicant that his visa may be cancelled if he further offends.[28] The Applicant continued offending in spite of this letter.

    [27] See Exhibit 2, Annexure A, Notice of Intention to Consider Cancellation of Visa.

    [28] See Exhibit 5, Notice of Decision Not to Cancel Visa, dated 20 August 2010.

18. Despite an appreciable lull in the offending from 2010 until late 2014, the Applicant’s offending resumed at the end of 2014 and, as outlined above, resulted in him coming before sentencing courts on 2 December 2014, 3 August 2015, 6 January 2016, 18 January 2016, 16 September 2016, 21 September 2016 and 15 March 2017. The formal warning and risk of deportation clearly did not deter him.

    Conclusion

    50.The Applicant’s conduct, for the purposes of this primary consideration is therefore very serious. In the final analysis, there was little or no resistance to such a finding from the Applicant. He conceded the seriousness of his offending at the hearing and purported to demonstrate remorse.

19. I therefore have little difficulty in agreeing with the Minister’s delegate in finding that the Applicant’s offending can only be viewed as very serious in terms of its overall impact on the community.

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

20. Paragraph 13.1.2(1) provides that a decision maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors in paragraph 13.1.2(2). They are:

    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 reoffending.

    The Nature of Potential Future Harm

21. Criminal or other serious conduct inherently has a negative effect on individuals and the Australian community at large. The essential question for the Tribunal is what level or magnitude of harm would the Applicant cause to individuals in the Australian community if he continued offending? I have no doubt that it would be serious harm.

22. The most recent offences involve blatant and very serious interference with the personal rights of others, as recounted above. Specifically, the nature of the offending is not regressing but on the contrary, is becoming more serious.

23. There is, to my mind, no other conclusion that can be arrived at upon application of paragraph 13.1.2(2) of the Direction: given the serious nature of the Applicant’s prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death.

    Likelihood of engaging in further criminal or other serious conduct

24. The Applicant contends he will no longer offend. He told the Tribunal that he wants to come out of detention and take steps to rehabilitate himself. He provided some details about four rehabilitative courses he has undertaken while in custody. Those courses relate to the management of substance abuse issues and overcoming stress, anger, depression and anxiety.[29] The difficulty with that contention is that the Applicant must surely have realised he had difficulties with both substance abuse and other aspects of his personality before he received the lengthy custodial terms in 2016 and 2017. His offending history was running for something like 21 years (ie. from 1995 to 2017), yet he did not see fit to seek external assistance and intervention outside his custodial terms.

    [29] See Exhibit 1, and Exhibit 3, G documents, G2, pp 7 & 8.  

25. In the absence of any demonstrated formal rehabilitation it is difficult for the Tribunal to form a view that this applicant is now a rehabilitated or changed man to the extent that he is not an unacceptable risk to the Australian community. While the Applicant may contend the likelihood of his offending is “extremely minimal”[30] and that when he was offending he was “not in a good state”, that contention does not have traction in circumstances where there is nothing from an independent expert to say that he has either overcome or is well on the way to overcoming the range of issues behind his offending.

    [30] See Exhibit 3, G documents, G13, p 134.

26. The Applicant’s further contention that he has commenced his personal rehabilitation process is largely a hollow one, unsupported as it is by any evidence from an independent treating expert. I accept that he has done the abovementioned courses while in custody. Despite that, I am of the view that both insufficient time has elapsed and there has been insufficient opportunity to test these rehabilitation claims when the Applicant was taken back into custody.

27. The question for a decision maker now is how this Applicant will conduct himself in an unrestrained and unsupervised environment within our community. Can he be trusted – on his own evidence of rehabilitation - incomplete and unverified as it is – to not relapse into a fresh pattern of offending? I have little confidence in the Applicant’s claim that his risk of reoffending is “extremely minimal”.

28. As one sentencing judicial officer observed, the Applicant’s “… criminal history, both in New Zealand and Queensland, demonstrates a persistent and consistent choice to live, it seems to me, a lawless life, evidenced by having no regard for traffic rules, Court orders or the criminal law.”[31]

    [31] See Exhibit 3, G documents, G10, p 114, per Magistrate Clarke.

29. Having regard to (1) the totality of the Applicant’s criminal history, (2) its obviously increasing severity, and (3) the absence of any probative evidence of rehabilitation, I am of the view that the Applicant would pose a grave risk to individuals in the Australian community. Violent offending in the nature of his previous offending could result in members of the Australian community suffering anything from serious physical and psychological injuries to death.

30. I therefore determine that on the totality of the material available to me, primary consideration A weighs heavily in favour of not revoking the mandatory cancellation of the Applicant’s visa.

    Primary Consideration B:  The Best Interests of Minor Children in Australia Affected by the Decision

31. The Applicant does not have any biological children of his own, but claims he is a loved uncle to his nieces and nephews who he sees a couple of times a week.

32. I find this Consideration has little relevance where the Applicant’s nieces and nephews have other people, namely their own parents, who already fulfil the parental role in their lives.[32] The interests of his wider family are given consideration in my discussion about Other Consideration (b) later in these reasons.

    [32] See Direction No. 65, at paragraph 13.2(4)(e).

33. I therefore agree with the Respondent’s contention that this Consideration does not weigh in the Applicant’s favour and is neutral.

    Primary Consideration C: Expectations of the Australian Community

34. I turn now to the final primary consideration: the expectations of the Australian community.  In making this assessment, 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. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa.

35. A proper consideration of this Primary Consideration C requires an analysis of an Applicant’s offending across a given factual matrix. One must not reach a hasty decision based on populist or prevailing views. Rather, one must look to the expectations of “… the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[33] 

    [33] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] per Deputy President Block.

36. Put another way, would an informed and reasonable member of the Australian community consider that the Applicant no longer presents a risk (to the Australian community) by virtue of his serving multiple actual terms in prison for his criminal offending (in Australia), such that he should now be allowed to remain in this country?  

37. The application of paragraph 13.3(1) of the Direction has recently been the subject of consideration by Deputy President Forgie of this Tribunal in ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103]:

    “102.    …I considered this paragraph in some detail.  I will not repeat my analysis but adopt its conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects noncitizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. I respectfully suggest that a consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:

    “... 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.”

    103.  Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.”

1. Having regard to the principles set out in paragraph 6.3 of the Direction, I am of the view that the Australian community, especially with reference to this Applicant’s serious offending history in this country (let alone New Zealand) and his unresolved substance abuse and behavioural issues:

   (i)would expect this Applicant to obey Australian laws, and respect our important institutions, such as our law enforcement framework while he is in Australia; and

   (ii)would expect him to not cause or threaten harm to individuals or the Australian community; and

   (iii)would endorse the Government’s cancellation of his visa, in the circumstances the Applicant has committed serious crimes in this country; and

   (iv)would consider that his very serious breaches of the trust behind the above expectations, render it appropriate that he does not continue to hold a visa. 

2. At the hearing, the Applicant spoke of being given a “second chance”.  Does he deserve it? This depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[34]

   [34] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.

3. This involves a consideration of whether the Australian community would expect this Applicant to hold a visa to remain here in circumstances where:

   ·He has committed something in the order of 44 offences in Australia and 19 offences in New Zealand, in the barely 21 years since he became an adult;

   ·In 2002, a sentencing Judge saw fit to make an order for criminal compensation against him in the sum of $14,000 for personal injuries occasioned to one of the victims of his offending;

   ·He has been sentenced to five custodial terms in Australia[35] and four custodial terms in New Zealand;

   ·He arrived in Australia in September 2000 and committed his first offence in this country in November 2001, and has since appeared in front of Australian Courts on no less than 15 occasions;

   ·Put another way, he has been in this country for 17 years but when one adds up the totality of custodial sentences he has received here, we are talking about total custodial time of something approaching 6 years.[36] This means one third of his time in this country has been spent in either actual custody and/or in the observance of parole-based orders or suspended sentences. 

   ·The Applicant is still serving the sentence of imprisonment imposed upon him on 15 March 2017 and has not yet been taken into immigration detention. 

   [35] This includes terms in actual custody and terms of imprisonment that were wholly or partially suspended.

   [36] As above this includes terms in actual custody and terms of imprisonment that were wholly or partially suspended.

4. Paragraph 6.3(5) of the Direction tells a decision maker that the Australian community has an understandably low tolerance for any criminal or other serious conduct by visa holders who have been participating in, and contributing to, the Australian community only for a short period of time. This Applicant has been precluded from making any meaningful contribution to the Australian community due to (1) the consistency of his offending, (2) his unresolved issues with illicit substances and alcohol, and (3) an absence of demonstrated rehabilitation. Having regard to these factors one can appreciate the Australian community’s lowered tolerance of this Applicant’s serious offending and his lack of any meaningful participation in and contribution to the Australian community.

5. There is scant reference in the material to the Applicant previously having “…employment in construction.”[37] It should be noted that, to his credit, the Applicant has attained a Certificate II in Sport Coaching,[38] and a Certificate II in Resources and Infrastructure Work Preparation.[39] He also appears to have undertaken TAFE study towards a Certificate II in Engineering and Certificate I in Construction.[40] While the Applicant is to be commended for his diligence in undertaking these courses, there is no proven record of him applying those courses in the construction or sporting industry as a member of the Australian community. Completing the courses is one thing. Utilising the knowledge from those courses and converting it into a valuable participation and contribution to the Australian community, is another.

   [37] See Exhibit 4, G documents, G17, p 142.

   [38] See Exhibit 4, G documents, G2, p 9.

   [39] Ibid, p 10.

   [40] Ibid, pp 12 – 32.

6. All of his character references are from family members who speak fondly of him and who otherwise are aware of his issues with substance abuse. Two things can be gleaned from those references. First, none of them speak of any significant or other contribution he has made to the Australian community since being here. Second, only limited weight can be allocated to these references being, as they are, from persons who are not independent of the Applicant. Further to that, none of these character referees attended the hearing to give oral evidence.

7. I do not consider that the Australian community would be prepared to give this Applicant “a second chance”, in light of my findings as to:

   (v)the nature of the harm presented to the Australian community were this Applicant to re-offend;

   (vi)his likelihood of re-offending; and

   (vii)the comments of the learned  Deputy President Forgie in ETWK regarding the more circumscribed expectations of the community.

8. Having regard to this primary consideration C, I find that this consideration weighs heavily in favour of non-revocation.  

   Other Considerations

9. It is necessary to look at the other considerations listed at paragraph 14 of the Direction. I have considered each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e). I will address each in turn.

10. With reference to other consideration (a) – International Non-refoulement obligations – There has been no submission that this consideration is relevant in this case.

11. With reference to other consideration (b) – Strength, nature and duration of ties – the Applicant has been in Australia on a virtually continuous basis since September 2000. As mentioned above, approximately ten written character references were provided by various members of the Applicant’s family who reside in Australia.[41] His relatives in this country comprise: a brother, a sister, two uncles, two aunts and several nieces and nephews.[42] I agree with the Respondent’s acknowledgement that the Applicant does have family members in Australia who have expressed a desire that he remain here with him. As against that, cost issues aside, there is nothing to suggest that his family would be unable to visit him in New Zealand or to maintain contact with him in other ways.

    [41] See Exhibit 4, G documents, G14 – G23.

    [42] See Exhibit 4, G documents, G13, p 133.

12. Mention should also be made of the Applicant’s former Australian citizen fiancée. To his credit, the Applicant gave frank and honest evidence at the hearing about the historically difficult nature of their relationship. He said that consumption of illicit drugs featured in both of their lives while they were together and that it had adversely affected their relationship. He said the relationship had largely dissolved since he had gone back into custody. I asked him whether the relationship would be rekindled were he to be released from prison back into the Australian community. His evidence was equivocal because he would not be of a mind to resume the relationship with her if he was not convinced that she had overcome her issues with illicit substances. Based on this evidence I cannot afford any reliable weight to any relationship with the former fiancée.  

13. Consistent with paragraph 14.2(1) of the Direction, I note that less weight should be given to this other consideration (b) in circumstances where: the Applicant was not a young child when he arrived in Australia (he was 22 years old) and he commenced offending less than fourteen months after arriving in Australia.

14. Accordingly, I give only minimal weight to this other consideration (b) in favour of revocation.

15. With reference to other consideration (c) – Impact on Australian business interests – there was no suggestion that any Australian business interests would be impacted if the Applicant’s visa cancellation is not revoked. This particular other consideration is of no weight to my consideration.

16. With reference to other consideration (d) – Impact on victims – there is no specific evidence about the impact on any victims of the Applicant’s offending. However, it should be borne in mind that there are indeed victims of this Applicant. Most notably, there is the vulnerable victim of his assault who was awarded $14,000 by way of criminal compensation in 2002.

17. With reference to other consideration (e) – Extent of impediments if removed – as noted by the Respondent, the Applicant may experience some short-term hardship in re-establishing himself in New Zealand. However, the Applicant lived in New Zealand until he was 22 years old and spent over half of his life there. He would almost certainly suffer no language or other cultural barriers if compelled to return there. In Tera Euna and Minister for Immigration and Border Protection, the Tribunal commented that:

    “New Zealand is culturally and linguistically similar to Australia.  There are no significant linguistic or cultural barriers facing the Applicant if he returns to New Zealand… (He has previously lived there and visited on occasions) … New Zealand has comparable standards of health care, social welfare and housing support to those in Australia.  The Applicant will have access to those services as a New Zealand citizen.”[43]

    [43] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 at [101] per Senior Member Kelly.

18. I agree with the contention of the Respondent that whatever skill set and employment capacity he has is readily transferrable to New Zealand. Accordingly, there are minimal or no impediments to him being removed to New Zealand.

19. To the extent that any of these Other Considerations may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which weigh heavily in favour of non- revocation.

    CONCLUSION

20. There is no doubt that on the basis of his offending, the Applicant does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in Direction No. 65.

21. Primary Considerations A and C weigh heavily in favour of non-revocation. They both outweigh any of the Other Considerations that may weigh in favour of revocation.

    DECISION

22. For the reasons outlined above, I affirm the decision under review.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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

Associate

Dated: 23 November 2017

Date of hearing:	15 November 2017
Applicant:	Self-represented
Solicitors for the Respondent:	M. Hawker & J. Kyranis, Sparke Helmore Lawyers