Symonds and Minister for Immigration and Border Protection (Migration)
[2017] AATA 2785
•22 December 2017
Symonds and Minister for Immigration and Border Protection (Migration) [2017] AATA 2785 (22 December 2017)
Division: GENERAL DIVISION
File Number(s): 2017/6153
Re:Jacob Eliah Symonds
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Egon Fice, Senior Member
Date:22 December 2017
Place:Melbourne
The decision made by a delegate of the Minister on 11 October 2017 not to revoke the original decision made on 5 October 2016 cancelling Mr Symonds’ Class TY, Subclass 444 Special Category (Temporary) visa is affirmed.
[sgd]........................................................................
Egon Fice, Senior Member
CANCELLATION OF VISA ON CHARACTER GROUNDS – application to revoke mandatory cancellation – extensive criminal record – risk to the Australian community – high risk of reoffending – expectations of the Australian community – family ties to Australia – reduced mental functioning due to drugs and alcohol
Legislation
Migration Act 1958 ss. 499, 501, 501CA
Administrative Appeals Tribunals Act 1975 s. 43
Secondary Materials
Direction No. 65 made by the then Minister for Immigration and Border Protection, the Honourable Mr Scott Morrison, on 22 December 2014
REASONS FOR DECISION
Egon Fice, Senior Member
22 December 2017
Mr Jacob Symonds is a New Zealand citizen. At the age of 10 months, Mr Symonds was adopted by his mother’s aunt and uncle, Kevin and Merana Symonds. Mr Symonds was granted a Class TY Subclass 444 Special Category (Temporary) visa on 12 March 1999. He first arrived in Australia with his adoptive parents aged one year and 10 months. His biological mother, Ms Tina McKenzie, moved to the United States of America (USA) where she lived for about four years before returning to Australia in 1992. At that time she had married and was with an 18 month old child, Saul. Mr Symonds does not have a relationship with his biological father.
On 13 October 2011 the Melbourne Magistrates Court, sentenced Mr Symonds to an aggregated two years imprisonment on the following charges:
·Theft from shop (shop steal) (three counts)
·Unlawful assault
·Robbery
·Intentionally damage property (two counts)
·Attempted theft from shop (shop steal)
·Assault in company
·Theft (four counts)
·Failed to answer bail
·Resist police
·Intentionally cause injury
·Recklessly cause injury
·Carry dangerous article in public place
·Shop theft – less than $600
·Criminal damage (intent damage/destroy) (five counts)
·Handle/receive/retention stolen goods
·Intentionally damage property
·Assault with weapon
·Affray (common-law)
To date, Mr Symonds has accumulated convictions for in excess of 200 offences, commencing in 2007. His offending record started in 2005, although convictions were not recorded for his earlier offences.
In a letter dated 12 June 2014, an officer with the Department of Immigration and Border Protection (DIBP) informed Mr Symonds that the visa authorising his continued stay in Australia may be liable for cancellation under s. 501 of the Migration Act 1958
(the Migration Act) on character grounds. The letter went on to state that after taking into account all relevant considerations, a delegate of the Minister had made a decision not to cancel Mr Symonds’ visa at that time. It nevertheless stated that Mr Symonds was being given a formal warning that if he committed further offences or otherwise breached the character test in future, the visa cancellation may be reconsidered. However, that letter was not delivered to Mr Symonds and was returned to DIBP on 19 June 2014. Although Mr Symonds did not receive that warning, he did receive a letter from the DIBP dated 10 February 2014 which stated:
The purpose of this letter is to advise you that consideration is being given to cancelling your visa under subsection 501(2) of the Migration Act 1958 (the Act).
…
The Department of Immigration and Border Protection (the Department) holds information about your criminal history (listed on page 4 of this letter), which indicates that you have a substantial criminal record within the meaning of subsection 501(7) of the Act, and that as a result you do not pass the character test as defined by subsection 501(6) of the Act.
Before the Minister or his delegate considers whether to cancel your visa, you have an opportunity to comment or provide information on whether you pass the character test, and on whether the Minister or his delegate should exercise his discretion to cancel your visa.
In his oral evidence, Mr Symonds agreed that following receipt of the 10 February 2014 letter from the DIBP, he was aware that his continued offending could result in his visa being cancelled. Nevertheless, he continued to commit serious offences after that date.
In a letter dated 5 October 2016, the DIBP notified Mr Symonds that his visa was cancelled under s. 501(3A) of the Migration Act. That was because the Minister was satisfied that he did not pass the character test. Mr Symonds was deemed to be a person who had a substantial criminal record because he had been sentenced to a term of imprisonment of 12 months or more.
On 28 April 2017, Mr Symonds sought revocation of his mandatory visa cancellation under s. 501(3A) of the Migration Act. On 11 October 2017 the DIBP notified Mr Symonds of its decision not to revoke the visa cancellation decision. On 14 October 2017
Mr Symonds lodged an application with this Tribunal seeking review of the DIBP decision refusing to revoke the cancellation decision.
Mr Symonds’ extensive criminal offending was not disputed and therefore I find he did not pass the character test set out in s. 501(6) of the Migration Act. He had a substantial criminal record as defined under subsection (7). The issue before me is whether the decision to refuse revocation of the mandatory visa cancellation decision was the preferable decision having regard to the relevant considerations set out in Direction
No. 65 made by the then Minister for Immigration and Border Protection, the Honourable Mr Scott Morrison, on 22 December 2014 (the Ministerial Direction); a direction made under s. 499 of the Migration Act. Section 499 relevantly provides:
(1) The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
…
(2A) A person or body must comply with the direction under subsection (1).
…
Section 501CA of the Migration Act deals with the revocation of a decision under subsection 501(3A). Relevantly, it 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.
When reviewing a decision, the Tribunal may exercise all the powers and discretions which are conferred by any relevant enactment on the person who made the decision (Administrative Appeals Tribunals Act 1975 s. 43(1)). In doing so, it must take into account all relevant matters set out in the Ministerial Direction.
Section 501CA(4)(b)(i) is not in issue in this case given that Mr Symonds accepts he does not pass the character test. I am only concerned with any other reason why the original decision should be revoked.
MR SYMONDS’ CRIMINAL RECORD
Mr Symonds’ criminal record is too extensive to record in full. Much of it is drug and/or alcohol related. The following table, taken from the Respondent’s Statement of Facts, Issues and Contentions, provides an accurate chronology of the Applicant's extensive offending.
Date Offence 16 April 2005
· possess amphetamine
11 June 2005
· traffic ecstasy (mdma/mda/mdea/mda's)
· use ecstasy
· possess drug of dependence
· use other drug of dependence
30 August 2005
· fail to answer Bail
1 October 2005 -
31 March 2006
· criminal damage (intent damage/destroy) (42 charges)
2 November 2005
The Applicant was sentenced for the following offences:
· traffic ecstasy (mdma/mda/mdea/mda's)
· possess drug of dependence
· use ecstasy (mdma/mda/mdea/mda's)
· use other drug of dependence
· fail to answer Bail Granted
No conviction was recorded however he was given a community based order (cbo) for 150 hours over 12 months.
4 November 2005
· criminal damage (intent damage/destroy)
8 February 2006
· criminal damage (intent damage/destroy) (8 counts)
· possess article for criminal damage
18 March 2006
· possess article for criminal damage
27 June 2006
· criminal damage (intent damage/destroy)
· possess dangerous article
28 July 2006
· criminal damage (intent damage/destroy)
· possess article for criminal damage
15 August 2006
· theft from shop (shopsteal)
6 October 2006
The Applicant was sentenced for the following offences:
· theft from shop (shopsteal)
· criminal damage (intent damage/destroy) (51 charges)
· possess article for criminal damage (2 charges)
Sentencing for the offences was adjourned to 5 October 2007 without conviction.
The Applicant was found to have failed to comply with his cbo. His cbo was cancelled and he was convicted of the offences sentenced on 2 November 2005. sentencing was adjourned to 5 October 2007 19 October 2006
· intentionally damage property
· theft
· fail produce valid ticket for inspection
25 December 2006
· theft from shop (shopsteal)
26 March 2007
· criminal damage (intent damage/destroy)
27 March 2007
The Applicant was sentenced for the following offences:
· criminal damage (intent damage/destroy) (2 charges)
· possess a dangerous article
· possess article for criminal damage
He was convicted; however, sentencing was adjourned to 26/09/2008.
The Applicant was also proven to have committed the following offence:
· theft from shop (shopsteal)
but it was dismissed without conviction.15 September 2007
· intentionally destroy property
· drink liquor on rail premises
17 October 2007
· fail produce valid ticket-passenger vehicle
· behave in disorderly manner on rail prem
9 November 2007
· criminal damage (intent damage/destroy)
19 January 2008
· intentionally damage property
27 February 2008
· deal property suspected proceed of crime
· fail prod valid ticket-passenger vehicle
29 August 2008
The Applicant was sentenced for:
· theft from shop (shopsteal)
· theft
· fail to produce valid ticket for inspection
· fail to produce valid ticket - passenger vehicle
· behave in a disorderly manner on rail premises
· deal property suspected proceed of crime
· intentionally destroy property
· drink liquor on rail premises
· criminal damage (intent damage/destroy)
· intentionally damage property
He was convicted and given a cbo for 12 months and fined an aggregate $150.
In relation to his offending as sentenced on 2 November 2005, 6 October 2006 and 29 August 2008, the Applicant said (G3, p 71-72) (errors corrected):
At this time of my life I got fired from my job. I started at KFC at the age of 16 or 17 for one year then went to Hungry Jack's for 18 months, then to McDonalds for 10 months I got sacked from McDonald's due to partying too much. I had no form of income I couldn't get Centrelink at that time. I was finding it hard being from New Zealand. It wasn't easy, so I sold ecstasy tablets. I know it was wrong but I didn't get Centrelink and due to living out of home, rent was hard to get.
I was finding it hard to get work straight away but it was not right selling drugs to people. I thought if people were going to buy they're going to buy, but living out of home for the first time as a young adult I ended up getting corrections order for these charges and I breached the order due to either reoffending with theft charges or possessing drugs or criminal damage, which are minor charges. It continued through till 2010 which I finally ended up with a suspended sentence which I did not complete. Either I'm pretty sure it ran concurrent with my 2 year sentence. I tried to get through these orders but (found it hard to comply with so many conditions. I was shattered that I couldn't complete any order given to me throughout those years. I was homeless and struggling with an ice habit in my earlier years.
26 September 2008
The Applicant was sentenced for:
· intentionally damage property.
He was convicted and fined $25, and ordered to pay $89.10 compensation.
11 October 2008
· possess prescribed graffiti implement - adjacent public place (2 charges)
6 November 2008
· mark graffiti on property w/o consent
· possess graffiti implement - intent to mark
16 November 2008
· theft-from shop (shopsteal)
17 December 2008
· theft-from shop (shopsteal)
17 January 2009
· criminal damage (intent damage/destroy)
27 March 2009
· possess open liquor container-rail vehicle
29 June 2009
· fail to answer bail
14 July 2009
· theft-from shop (shopsteal)
27 July 2009
The Applicant was sentenced for:
· fail to produce ticket - passenger vehicle
· use of offensive language in a rail vehicle
He was convicted and fined aggregate $500.The Applicant was also sentenced for:
· theft from shop (shopsteal)
He was convicted and fined $200.The Applicant was found to have failed to comply with his cbo from
29 August 2008. The original cbo was varied and he was convicted of the offences from 29 August 2008 and given a cbo for 24 months.
Total fines: $700
29 September 2009
· deal property suspected proceed of crime
· theft from shop (shopsteal)
2 October 2009
· theft from shop (shopsteal)
· mark graffiti on property w/o consent
. intentionally damage property
9 November 2009
· fail to answer bail
17 December 2009
· criminal damage (intent damage/destroy)
· possess prescribed graffiti implement
· fail prod valid ticket-passenger vehicle
18 December 2009
The Applicant was sentenced for:
· criminal damage (intent destroy/damage)
· theft from shop (shopsteal)
· fail to answer Bail Granted (2 charges)
· criminal damage (intent destroy/damage)
· deal property suspected proceed of crime.
He was sentenced to 3 months aggregate imprisonment, concurrent. His sentence was suspended, with an operational period of 12 months.
He was ordered to pay $2000 compensation for the first charge of criminal damage.
The Applicant was also sentenced for:
· possess prescribed graffiti implement - adjacent public place (2 charges)
· possess prescribed graffiti implement
· fail to produce ticket - passenger vehicle
He was convicted and fined an aggregate of $600.Total Imprisonment: 3 months
Total fine/compensation: $2300
17 March 2010
The Applicant was sentenced for:
· theft from shop (shopsteal)
· possess article from criminal damage
He was convicted and fined an aggregate of $600.20 April 2010
· robbery
In relation to this offending, the Victoria Police Incident Summary Report says (Summonsed Documents p 79-80):
Victim [name] was walking west on Greville Street towards the Prahan train station between 1715 and 1720hrs. He was in company of four female friends that were just in front of him. At the corner of Porter and Greville Street just outside the Station Hotel two males walking north on Porter Street turned left onto Greville Street to head east The two males came face to face with the victim. The two males moved aside to let the victim walk pass.
The victim noticed one of the males turn around, then that male called the victim, and as the victim turned around he grabbed him by the shoulder area of his t-shirt and was pulled towards him... the male has demanded the victims iPod which he was listening to. The iPod Was handed over to the male ... The second male ... has made a demand for the victim's mobile phone which was also handed over to the offender.
The girls had crossed Porter Street and not noticed that the robbery was taking place...
15 June 2010
· criminal damage (intent damage/destroy)
· possess dangerous article in public place
In relation to this offending, the Victoria Police Incident Summary Report says:
Offender has received phone call from girlfriend, as a result of the conversation the offender became extremely aggressive and smashed the train carriage door window (door at the end of the carriage). Offender then produced screw driver and became extremely aggressive. ... Became aggressive and making threats to self harm.
2 July 2010
· theft from shop (shopsteal)
6 July 2010
· theft from shop (shopsteal)
5 August 2010
· theft from shop (shopsteal)
25 September 2010
· theft-from shop (shopsteal)
26 September 2010
· theft
30 September 2010
· theft from shop (shopsteal)
· criminal damage (intent damage/destroy)
· possess open liquor container - rail vehicle
· possess dangerous article in public place
He was convicted and the matter was adjourned to 29 June 2011.
The Applicant was also sentenced for:
· mark graffiti on property without consent
· intentionally damage property
He was convicted, and the matter was adjourned to 29 June 2011. He was ordered to pay $100 compensation.
The Applicant was also sentenced for:
· criminal damage (intent damage/destroy)
· failure to comply with cbo
He was convicted, however, sentencing was adjourned to 29/06/2011. He was ordered to pay $203.48 in compensation.
Total compensation: $303.48
30 October 2010
· affray (common law)
In relation to this offending, the Victoria Police Incident Summary Report says (Summonsed Documents p 57):
At approximately 0015Hrs on the 30/10/2010, the three male victims, [redacted] were walking along the bike track next to the Merlynston train station towards the platform gates. As they approached the gates, a large group of males on the platform began to make racial comments towards the victims. The males then surrounded the victims and began to assault them using glass bottles and rocks from the train lines all three victims received cuts, bruises and swelling to their faces and bodies ... It would appear that this is a racially motivated attack by Caucasian males on young Lebanese males.
1 November 2010
· theft (3 counts)
13 November 2010
· affray (common law) (2 charges)
· intentionally cause injury
· recklessly cause injury
· carry dangerous article in public place
In relation to this offending, the Victoria Police Incident Summary Report says (Summonsed Documents p 93):
On 13/11/10 at approx. 0530 hours the victims [redacted] and a friend [redacted] exited CBD nightclub [redacted] outside the venue the 4 offenders [redacted] and Symonds have been waiting for [redacted] because of a relationship he has with [redacted] girlfriend. [redacted] has his pitbull dog with him and Symonds had a concealed tyre iron in his pants. [redacted] has threatened the friend [redacted] and has ran back inside the nightclub [redacted] and Symonds have then followed the victims along [redacted] threatening them. Outside 415 Bourke Street an assault has taken place. [Redacted] and Symonds have punched [redacted] in the face and hit his legs with the tyre iron. [Redacted] has been bitten by [redacted] by [redacted] pitbull dog on the left arm causing a 5cm by 5cm bit [sic] wound. [Redacted] have ran across the road into McDonalds ... to call for police._ the 4 offenders have followed [redacted] into McDonalds with the tyre iron , metal pole, broom and chairs and made threats to kill him. [Redacted] has defended himself by throwing chairs and [t]aking a metal pole from one of the offenders. The affray lasted 1 ½ minutes before offenders left. A McDonald's patron [redacted] was trapped on the eastside of the store during the affray and became hysterical with fear.
23 November 2010
· possess dangerous article.
In relation to this offending, the Victoria Police Incident Summary Report says (Summonsed Documents p86):
Both males matched description involved in earlier incident on lnkerman St where the accused was seen holding a sharp glass object in his hands and Symonds was observed holding a black metal pole. Nil victim for incident. Symonds observed hiding the black pole behind a tree on police arrival.
25 November 2010
· assault with weapon
· assault in company
In relation to this offending, the Victoria Police Incident Summary Report says (Summonsed Documents p 67):
4 offenders... began harassing taxi driver for a ride. 2 female offenders have spat in taxi drivers face [redacted] has then grabbed victim by shirt and ripped it [Redacted] has then attempted to punch the victim to the head Symonds has then wielded a 700ml Jim Bean bottle and hit the victim over the head with it [Redacted] has then stolen the victim's turban from his head and run away with it
14 December 2010
· theft-from shop (shopsteal)
· unlawful assault
In relation to this offending, the Victoria Police Incident Summary Report says (Summonsed Documents p 75-77):
At approximately 10:00pm on Monday 13 December 2010, the victim ... and 3 other friends were seated in the flagstaff gardens, Melbourne. At approximately 2:00am on 14 December 2010 a group of 3 males approached the victim and his friends and started making small talk. ... After making small talk, the victim and his group attempted to leave but the victim was stopped by the main offender and has been involved in a scuffle. The victim was taken to the ground and was punched and kicked by the main offender. The male offender has then grabbed a shoulder bag which the victim was wearing and a further struggle has ensued a la tug of war ... The offender has gotten hold of the victim's bag which contained the victim's video camera, $70 cash and personal items The offenders have run from the victims who have given chase down Dudley street and then into railway terrace where they have lost sight of the offenders.
21 December 2010
· handle/receive/retention stolen goods
On or about
1 January 2011
· criminal damage (intent damage/destroy) (5 counts)
11 January 2011
· damage/deface by graffiti-ptc/adjacent property
17 February 2011
· deal property suspected proceed of crime
· false name/address-transport ACT
19 February 2011
· theft-from shop (shopsteal)
· state false name when requested
· possess drug of dependence - prescription drug
24 February 2011
· damage/deface by graffiti-ptc/adjacent prop
· possess prescribed graffiti implement intent mark
· fail to answer bail
20 March 2011
· intentionally damage property
7 April 2011
· intentionally damage property
4 May 2011
· theft-from shop (shopsteal)
· resist police
5 June 2011
· mark graffiti on property w/o consent (3 counts)
· possess prescribed graffiti implement- property transport company
28 June 2011
· shop theft - less than $600
3 July 2011
· write any word on a rail vehicle
· convey anything likely damage property
· fail prod valid ticket-passenger vehicle
· place feet on rail vehicle - w/o reasonable excuse
16 July 2011
· threat to inflict serious injury
· enter place between 2 platforms-railway
17 July 2011
· handle/receive/retention stolen goods
26 September 2011
· attempted theft-from shop (shopsteal)
· intentionally damage property
13 October 2011
The Applicant was found to have breached his suspended sentence from
12 December 2009. The 3 month sentence was re-instated for these offences.
The Applicant was also sentenced for:
· Theft from shop (shopsteal) (3 charges)
· Unlawful assault
· Robbery
· Intentionally damage property (2 charges)
· Att. Theft from shop (shopsteal) (3 charges)
· Assault in company
· Theft (4 charges)
· Fail to answer bail
· Resist police
· Intentionally cause injury
· Recklessly cause injury
· Carry dangerous article in public place
· Shop theft (less than $600)
· Criminal damage (intent damage/destroy) (6 charges)
· Handle/receive/retention stolen goods
· Intentionally damage property
· Assault with weapon
· Affray (common law)
He was sentenced to an aggregate 2 years imprisonment.
The Applicant was also sentenced for:
· Possess dangerous article in public place
· Deal property suspected proceed of crime
· False name/address - transport act
· Damage/deface by graffiti - ptc/adjacent property
· Possess prescribed graffiti implement intent mark
· Theft from shop (shopsteal)
· False name when requested
· Possess drug of dependence - prescription rug
· Write any word on a rail vehicle
· Convey anything likely damage property
· Fail to produce valid ticket - passenger vehicle
. Place feet on rail vehicle - passenger vehicle
He was convicted, and these matters were adjourned until 11 October 2012.
Total Imprisonment: 2 years and 3 months
In relation to his offending of 13 October 2011, the Applicant said (G3, p 71) (errors corrected):
I was stuck between loyalties of a mate at the time. His girlfriend was sleeping with this dude. I understand now I should not have got involved but I did for the reason of not being called loyal or a bitch. I was seeking loyalties in the wrong area of friends which never stayed loyal to me. I wish I could go back
17 February 2012
The Applicant was sentenced for:
· Theft from shop (shopsteal) (3 charges)
· Threat to inflict serious injury
· Affray (common law)
· Handle/receive/retention stolen goods
He was sentenced to an aggregate of 6 months imprisonment, to be served concurrently.
The Applicant was also sentenced for:
· Damage/deface by graffiti - ptc/adjacent property
· Mark graffiti on property without consent (4 charges)
· Enter place between 2 platforms - railway
· Possess prescribed graffiti implement - property transport company
· Possess graffiti implement - intent to mark
He was convicted, however, sentencing the matters were adjourned until 16 November 2012.
In relation to this offending, the Applicant said (G3, p71) (errors corrected):
I was already in gaol at this time doing a 2 year sentence which I served only 18 months of a 24 month sentence. Most of the charges are minor except the affray. I was told to do an anger course but I could not complete by parole.
10 July 2013
· carry prohibited weapon w/o exemption/approval
In relation to this offending, the Victoria Police Incident Summary Report says:
On Wednesday the 10th of July 2013 approximately 2:00pm ... The accused backpack was searched and a butterfly knife was located in one of the bags pockets. The accused was interviewed at the scene and the knife was seized. Enquiries revealed the accused is currently on parole and is not suitable for an infringement notice..."
27 August 2013
· theft (2 counts)
28 August 2013
The Applicant was sentenced for:
· Shop theft - less than $600
· Theft
He was convicted and fined an aggregate of $1000.
5 March 2014
· Fail produce valid ticket - designated area
· refuse/fail to comply with request
· jump over any barrier on rail premises
· resist an officer.
5 March 2014
The Applicant was sentenced for:
· Carry weapon prohibited without exemption/approval
He was convicted and fined $100.3 June 2014
· Theft-from shop (shopsteal)
· shop theft - less than $600
· attempt possess alprazolam
· possess diazepam.
11 July 2014
· assault with weapon.
In relation to this offending, the Victoria Police Incident Summary Report says (Summonsed Documents p 46):
At approximately 22:50hrs on Friday 11th July 2014, male offender has entered the Salem Namasthe Grocery Store (Western Union Money Transfer) ... the offender has walked straight to the front counter where he has lent over and stolen a set of keys belonging to the store. [Redacted] has observed the theft and confronted the male in an attempt to retrieve the keys. The offender has then denied stealing keys and when (redacted) has produced his mobile phone and advised the offender he was going to call police, the offender has become aggressive and lunged at [redacted] with a green coloured box cuter and attempted to snatch [Redacted] mobile phone ... [Redacted] has retreated and the offender has followed [redacted] before returning to the front counter where he has lent over and attempted to open the cash register before fleeing the store empty handed.
12 July 2014
· theft-from shop (shopsteal)
· unlawful assault commit indictable offence whilst on bail
28 August 2014
The Applicant commenced on the Court Integrated Services Program (CISP).
27 October 2014
· theft-from shop (shopsteal)
· commit indictable offence whilst on bail
28 October 2014
The Applicant was sentenced for:
· theft from shop (shopsteal)
· Commit indictable offence whilst on Bail Granted
He was convicted and fined an aggregate of $1000.In relation to his offending from court dates 28 August 2013, 5 March 2014 and 28 October 2015, the Applicant said (G3, p 70) (errors corrected):
These are all minor charges which I know now is wrong, but I was stealing to get by in life. A drug habit is no excuse for being paranoid and to carry a weapon.
10 December 2014
The Applicant was sentenced for:
· theft from shop (shopsteal)
He was convicted and fined an aggregate of $300, and ordered to pay $50 compensation.
The Applicant was also sentenced for:
· unlawful assault
· shop theft - less than $600
· attempt possess alprazolam
· possess diazepam
He was convicted and fined an aggregate of $300.
17 December 2014
The Applicant was exited from CISP.
27 February 2015
· interfere with locked gate-rail premises
· jump over any barrier on rail premises
· place feet on rail vehicle -w/o reasonable excuse
· fail produce valid ticket-passenger vehicle
· use offensive language in a rail vehicle
· descent from platform onto railway track
8 September 2015
The Applicant was sentenced for:
· theft
· attempt to commit indictable offence
· theft from shop (shopsteal).
For each charge he was sentenced to 30 days imprisonment, with 14 days to be served concurrently.
The Applicant was also sentenced for:
· assault with weapon
He was sentenced to 3 months imprisonment.
The Applicant was also sentenced for:
· theft from shop (shopsteal)
He was sentenced to 14 days imprisonment.The Applicant was also sentenced for:
· fail to answer Bail Granted
He was sentenced to 1 month imprisonment.The Applicant was also sentenced for:
· state false name when requested
He was convicted and fined $350.Total imprisonment: 3 months 62 days
Total fines: $350In relation to this offending, the Applicant said (G3, p 70) (errors corrected): I acknowledge that they may seem serious. At the time I felt bad that they have occurred. I ended up getting bail on a CISP program and they put me through rehab. I did leave 3 days before the Quinn House Rehabilitation finished. I felt in a good enough space to do so. I spent 3 months there and stayed clean for 2 and a half. The Applicant admits that they charges appear serious but that given he was given bail and admitted into rehab this shows the offences were not as serious. He was admitted into the Quinn House Rehabilitation Centre for 3 months and claims to stayed clean for 2 and a half months after all on my own and then realised I needed help, so I continued to seek help through Galiamble (Drug Addiction Centre).
24 September 2015
The Applicant was sentenced for:
· handle/receive/retention stolen goods
He was sentenced to 7 days imprisonment.8 January 2016
· threat to inflict serious injury
27 January 2016
· mark graffiti on property w/o consent
14 February 2016
· mark graffiti on property w/o consent (4 charges)
29 April 2016
· mark graffiti on property w/o consent
· mount part of rail vehicle- not for travel
14 June 2016
· theft from shop (shopsteal)
· commit indictable offence while on bail.
17 June 2016
The Applicant was sentenced for:
· theft of a motor vehicle
· theft (2 charges)
· commit indictable offence whilst on Bail Granted (3 charges)
· traffic cocaine
· possess cocaine
· possess cannabis
· possess drug of dependence (2 charge)
· deal property suspected proceed of crime (2 charges)
· theft from shop (shopsteal) (3 charges)
· fail to answer Bail Granted (2 charges)
He was convicted and sentenced to an 18 month community correction order
starting 17 June 2016, requiring 100 hours of unpaid community work.
18 June 2016
· theft-from shop (shopsteal)
· commit indictable offence while on bail
30 June 2016
The Applicant was sentenced for:
· interfere with locked gate-rail premises
· jump over any barrier on rail premises
· place feet on rail vehicle -w/o reasonable excuse
· fail produce valid ticket-passenger vehicle
· use offensive language in a rail vehicle
· descent from platform onto railway track
He received a conviction and was fined $500.00
1 July 2016
· theft-from shop (shopsteal)
· commit indictable offence while on bail
8 July 2016
· theft of a motor vehicle
11 July 2016
· possess cannabis
20 July 2016
· theft-from shop (shopsteal)
· commit indictable offence while on bail
16 August 2016
· possess cannabis
· commit indictable offence while on bail
· contravene a conduct condition of bail
8 September 2016
The Applicant was sentenced for:
· theft of a motor vehicle
He was sentenced to 2 months imprisonment and all licenses and permits were disqualified for 12 months.
In relation to this offending, the Applicant said (errors corrected): I was homeless at the time and it was one of the worst times of my life. I was trying to write myself off with heroin at the time. I didn't feel worthy of living because being homeless in my 30s was hard, especially finding somewhere to sleep, so I'd give my mates drugs to stay somewhere safe. When I got caught for the car theft, I aided the police in getting it back
The Applicant was also sentenced for:
· theft from shop (shopsteal) (4 charges)
· commit indictable offence whilst on Bail Granted (4 charges) He was sentenced to an aggregate 5 days imprisonment (concurrent).
The Applicant was also sentenced for:
· commit indictable offence whilst on bail
· contravene a current condition of bail
· possess cannabis
He was convicted and fined an aggregate of $800.
The Applicant was also sentenced for:
· fail to produce valid ticket - designated area
· refuse/fail to comply with request
· jump over any barrier on rail premises
· resist an officer
He was convicted and fined aggregate $750.
In relation to this offending, the Applicant said (errors corrected): It's just a jurisdiction problem I had with ticket officers. I'm not saying in this instance, but transport should be free and I couldn't afford to get to all my appointments like my job network. Problem was that I had to travel from Footscray to Prahan a lot I accept what I did is wrong and next time I will be more considerate to the officers.
The Applicant was also sentenced for:
· possess cannabis
He was convicted and fined $200.Total imprisonment: 2 months + 5 days
Total fines: $800 + $750 + $200 = $17505 October 2016
The Department mandatorily cancelled the Applicant's visa in accordance with s 501(3A) of the Migration Act
12 December 2016
The Applicant was found to have breached his community correction order from 17 June 2016. For those offences, he was sentenced to an aggregate of 3 months imprisonment.
The Applicant was also sentenced for:
· mark graffiti on property without consent (6 charges)
He was sentenced to 3 months imprisonment, concurrent.
The Applicant was also charged for:
· mount part of rail vehicle - not for travel.
He was convicted and discharged.
(Summonsed Documents p217)Total imprisonment: 3 months
In relation to this offending, the Applicant said (paraphrased):
I first got a community based order but due to sleeping rough and being on drugs I could not complete my corrections order. A part of me would have breached it to go to gaol to have somewhere to sleep. I do realise that drawing on other people's property is wrong and I aided in getting the car back as well as I felt guilty for taking the car.
8 January 2016
· Threat to inflict serious injury.
(See court date 10 March 2017)In relation to this offence, the Victoria Police Incident Summary Report says (Summonsed Documents p 34):
"At Approx. 12 45 08/01/2016, an unknown M[an] attempted to gain entry to "Clocks" Pokies, Flinders St Stn, Swanson St Melb. Victim ... was working security at NA and recognised the M[an] from an incident on 31/12/2015 (not reported to police).
[Redacted] denied entry to the M[an] who become aggressive [Redacted] shuffled the M[an] backwards to the front entrance of the store where a further confrontation took place. The M[an] reached into his back pocket or bumbag and produced a pair of small nail scissors.
The Wan] held the scissors in his right hand down by his side making a stabbing motion and said to [Redacted] “I want to stab you... I'm not scared of you'', The M[an] then made a "cut-throat' motion with the scissors held in his right hand. [Redacted] was in fear and believed that the M[an] would stab him and did not push the M[an] any further but continued to block his entry into the Pokies."
10 March 2017
The Applicant was sentenced for:
· Threat to inflict serious injury
He was sentenced to 1 day imprisonment.In relation to this offence, the Applicant has said:
"I was angry that I was not allowed into the pokie venue in the morning I got denied entry so I guess I was venting to the guy and saying whatever to get in I might have been drunk, but looking back on it he was just doing his job so I shouldn't have taken my anger out on this dude."
9 October 2017
A delegate of the Minister decided not to revoke the visa cancellation under s 501CA(4) of the Migration Act.
APPLICATION OF THE MINISTERIAL DIRECTION
The objectives of the Migration Act are stated in clause 6.1 of the Ministerial Direction. Relevantly, they provide:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
General guidance is set out in clause 6.2 of the Ministerial direction. Relevantly, it provides:
(1) 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.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel our non-Citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
In this case, because the reviewable decision before me is the refusal to revoke a decision to cancel Mr Symonds’ visa, Part C is relevant.
The principles underpinning the Ministerial Direction are set out at clause 6.3. Those relevant in this case are:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, 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.
…
Clause 7 of the Ministerial Direction provides guidance regarding how to exercise the discretion. Clause 7(1)(b) of the Ministerial Direction states that a decision-maker must take into account considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked. The relevant considerations in the Ministerial Direction are stated to be either primary or other considerations. Clause 8 deals with taking the relevant considerations into account. It provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they would be permitted to remain in Australia for the duration of the visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
APPLICATION OF THE PART C CONSIDERATIONS IN THIS CASE
There can be no question that under s. 501(3A) of the Migration Act, the Minister must cancel visa granted to a non-citizen if the Minister or his delegate is satisfied that the non-citizen does not pass the character test. As is stated in clause 13(1) of the Ministerial Direction, a non-citizen who has had his or her visa cancelled on character grounds may request revocation of that decision under section 501CA of the Migration Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Clause 13(2) provides:
(2) In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Protection of the Australian community
Clause 13.1 of the Ministerial Direction provides:
(1) When considering protection of the Australian community, the decision-maker 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 non-citizens 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.
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
The relevant considerations under Clause 13.1.1 include the following:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
(c)The sentence imposed by the courts for a crime or crimes
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
…
(g)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);
….
Significant in Mr Symonds’s case is the violent nature of a number of criminal events, particularly between 2010 and 2014. Those events have been recorded by Victoria Police in incident reports. Briefly, they are as follows:
(a)20 April 2010 – this event is described as an armed robbery. The victim was walking towards the Prahran railway station in the company of four females when Mr Symonds’ accomplice grabbed the male by the shoulder pulling him towards him. Mr Symonds demanded that the victim hand over his mobile phone. The video recording of the incident indicated Mr Symonds approaching the victim and making him remove the mobile phone. Mr Symonds produced a knife which appeared to have been hidden in the sleeve of his jacket. The serrated blade was visible. The victim subsequently confirmed that a knife was produced by Mr Symonds.
(b)15 June 2010 – Mr Symonds was on board a train arriving at the Sandringham railway station when he received a phone call said to be from his girlfriend. As a result of that conversation he became extremely aggressive, smashing the train carriage door window and then producing a screwdriver. Upon disembarking from the train, Mr Symonds discarded the screwdriver in bushes alongside the train line. It was subsequently recovered by police and seized. When arrested, Mr Symonds became aggressive making threats of self harm. He was assessed as having a risk of self harm and was transported to a hospital. He was not interviewed.
(c)30 October 2010 – three male victims were walking along a bicycle track next to a train station and as they approached, a large group of males on the platform began to make racial comments towards them. They surrounded the victims and began to assault them using glass bottles and rocks. All three victims received cuts, bruises and swelling to their faces and bodies. One of the victims had his mobile phone stolen. In his oral evidence, Mr Symonds described this as a gang fight. He accepted that he was involved in that affray and said he had been drinking during the day but had not taken drugs. Mr Symonds also made the comment that the victims should not have gone to the station as they knew that they would be assaulted, the gang fight apparently having been previously arranged.
(d)13 November 2010 – Mr Symonds was involved in an affray outside a nightclub on Bourke Street. Mr Symonds had his pitbull dog with him and a concealed tyre iron in his pants. This event took place at 5 AM according to Mr Symonds. Mr Symonds was with four other accomplices. Mr Symonds threatened one of the victims who ran back inside the nightclub and Mr Symonds followed the remaining victims while threatening them. An assault then took place where one of the victims was punched by Mr Symonds in the face and struck by the tyre iron. He was also bitten by the pitbull dog causing a significant bite wound. Some of the victims ran across the road into a McDonald’s restaurant to call the police. Mr Symonds followed them with the tyre iron and made threats to kill one of the victims while apparently brandishing a metal pole, a broom and chairs. An innocent bystander in the McDonald’s restaurant became trapped in the store during the affray and became hysterical with fear. Mr Symonds was interviewed for affray; intentionally causing injury; making threats to kill; assault with a weapon; and assault in company.
In cross-examination, Mr Symonds agreed that he was sober at the time that incident took place and suggested he was in the wrong place at the wrong time. He also rationalised his involvement in that affray by stating that he was simply being loyal to his co-accused because he had provided Mr Symonds with accommodation.
(e)23 November 2010 – this incident involved Mr Symonds being charged with possessing a dangerous article in a public place. Along with an accomplice, the police found Mr Symonds loitering in a St Kilda street after an earlier incident reported in the same area. Mr Symonds was seen holding a black metal pole which he hid behind a tree when the police arrived. His accomplice was seen holding a sharp glass object in his hand.
When asked in cross-examination why he had the metal pole, Mr Symonds said that he and his co-accused were confronted by a big group of what he described as Lebos (which I understood to mean persons of Lebanese origin) and, being outnumbered, decided to protect himself. He said he did not use the weapon.
(f)25 November 2010– this event is described in the incident report as assault with a weapon. Mr Symonds and three others began harassing a taxi driver for a ride. Two of those other persons, who were female, spat in the driver’s face and one of the offenders grabbed the taxi driver by the shirt, ripping it. An accomplice attempted to punch the taxi driver in the head. Mr Symonds was wielding a 700 ml Jim Beam bottle which he used to hit the taxi driver over the head.
In cross-examination Mr Symonds said he did not hit the taxi driver with the bottle but merely threatened to do so. He also said that the taxi driver was harassing the two females involved in the incident. He agreed that he had been drinking and was probably also using drugs.
(g)13 December 2010) – this incident involved a robbery where a video camera and cash were taken from the victim. Three offenders were involved in this incident. It occurred in Flagstaff Gardens at around 2AM when the three offenders approached four persons seated in the gardens. All of the offenders were described as being in their early 20s and of Maori appearance. After a brief discussion, the victims attempted to leave but the person described as a main offender stopped one of those persons and a scuffle ensued where the victim was taken to the ground and punched and kicked. The male offender grabbed a shoulder bag which the victim was wearing and wrestled it from him. The bag contained a video camera and $70 in cash. Mr Symonds was subsequently identified as one of the offenders.
In cross-examination, Mr Symonds said he could not recall that incident. It was explained to Mr Symonds that there had been a series of similar incidents over a short period of time and when he was asked to explain what was going on, Mr Symonds said he was homeless and without money. He said the persons with whom those offences were committed were persons who got me stuff, which I understood to mean drugs and alcohol, and that he was simply being loyal to friends particularly as they provided a roof over his head.
(h)10 July 2013– Mr Symonds was walking along the street in Richmond with two other persons when intercepted by plainclothes policeman. His backpack was searched and a butterfly knife was located in one of the back pockets. A butterfly knife is a knife which in effect has two handles which rotate around the tang thereby concealing the blade in the closed position. It is a prohibited weapon. At the time of this incident, Mr Symonds was on parole.
Mr Symonds said in his oral evidence that he had purchased the knife that day and was simply taking it home.
(i)11 July 2014– the police described this incident as an assault with a weapon. Mr Symonds entered a grocery store which was also had a Western Union money transfer facility. He walked up to the counter, leant over it and stole a set of keys which Mr Symonds described as keys for the till. A person in the store observed the theft and confronted Mr Symonds, attempting to retrieve the keys. Mr Symonds first denied stealing the keys and when the person in the store produced his mobile phone saying he’s going to call the police, Mr Symonds became aggressive and lunged at that person with a box cutter, also attempting to snatch his mobile phone. The person retreated while Mr Symonds returned to the front counter where he leant over it attempting to open the cash register. Unable to do so, he fled the store.
When Mr Symonds was asked in cross-examination whether took the box cutter with him as a weapon, he responded by saying he could not recall and that he thought it was probably a spur of the moment thing.
It should be apparent from the above brief summary of the more violent offending by Mr Symonds that his criminal conduct must be viewed very seriously. The crimes were committed against persons who are going about their ordinary business and they should not have to be confronted with the kind of behaviour exhibited by Mr Symonds. In fact innocent persons were traumatised by his conduct on at least one occasion.
In addition to the violent offending, what is most concerning is the frequency of Mr Symonds offending. His criminal history indicates continuous offending since 2005. Furthermore, the nature of his offending discloses a trend of increasing seriousness. His earlier offences involved possessing and selling drugs of dependence and petty theft. The offending then progressed to criminal damage, particularly marking graffiti on others’ property. He also began to accumulate offences for failure to answer bail and comply with other Court orders. In 2010 his offending escalated significantly when he was involved in numerous acts of violence, using weapons. It culminated in Mr Symonds being sentenced to 2 years and 3 months imprisonment on 13 October 2011. While in prison, on 17 February 2012, Mr Symonds was sentenced to a further six months imprisonment, to be served concurrently, for offences committed prior to his incarceration.
Upon release from prison and while on parole, Mr Symonds recommenced his criminal offending. Those offences included carrying a prohibited weapon and also shop theft. On 8 September 2015, Mr Symonds was again sentenced to a term of imprisonment, being three months. In June 2016 Mr Symonds was convicted of theft of a motor vehicle and a number of drug offences including trafficking cocaine, possessing cocaine and cannabis. He received a community correction order (CCO) for a period of 18 months. On 8 September 2016 Mr Symonds was sentenced to 2 months imprisonment for theft, theft of a motor vehicle, committing an indictable offence while on bail and contravening a condition of his bail. On 12 December 2016 Mr Symonds received another three month imprisonment sentence.
His last recorded conviction occurred on 10 March 2017 which resulted in a sentence of one day imprisonment. The offence on that occasion is described as threat to inflict serious injury. The police report indicates Mr Symonds attempted to gain entry into a venue containing gaming machines but was prevented from doing so by a security guard. Mr Symonds became aggressive and produced a small pair of nail scissors. He held the scissors in his right hand down by his side making a stabbing motion and said to the guard: I want to stab you… I’m not scared of you. He then made a cut-throat motion with the scissors held in his right hand. The security guard expressed fear and believed that Mr Symonds would stab him. He did not push Mr Symonds any further but continue to block his entry to the venue. Mr Symonds then gave up and left the area.
While Mr Symonds has made some efforts to rid himself of his dependence on alcohol and drugs, at this stage, he has been unsuccessful. It is therefore difficult to envisage that his behaviour would change significantly if he were allowed to be released into the Australian community. I find that Mr Symonds’s offending and continued offending over a particularly long period of time has escalated and must be considered as being very serious.
In addition, it is clear that Mr Symonds was aware as early as 10 February 2014 that the consequences of further offending by him may result in cancellation of his visa. Although Mr Symonds said he did not receive the subsequent letter dated 12 June 2014 formally notifying him that he might be liable for cancellation under s. 501 of the Migration Act, in his oral evidence, he agreed that he had received the letter of 10 February 2014 and therefore was on notice that cancellation of his visa was a possibility should he continue to reoffend. It had no effect on his offending.
Risk to the Australian community should Mr Symonds commit further offences
Mr Symonds’ criminal history provides a clear answer to this issue. Mr Symonds does represent an unacceptable risk of harm to individuals, groups or institutions in the Australian community. The frequency of his violent offending and his more recent tendency to arm himself with a weapon is cause for grave concern regarding the nature of harm which might be inflicted on the Australian community should he engage in further criminal or serious conduct.
In September 2014 Mr Symonds was assessed by the Court Integrated Services Program (CISP). In a report prepared by his Case Manager, Ms Kerry Nesbitt, on 8 October 2014, it is stated that Mr Symonds was assessed and recommended for Level Three Intensive Case Management by the CISP team. Mr Symonds then commenced on CISP when bail was granted on 28 August 2014. The report noted Mr Symonds presented with issues relating to substance abuse, mental health, cognitive difficulties and accommodation.
Although Mr Symonds said he was formally tested for Acquired Brain Injury (ABI) in 2009/2010, Ms Nesbitt reported:
A neuropsychological assessment 28 May 2009 was completed by Dr Robert Bourke, of ARBIAS and occurred while Mr Symonds was engaged with CISP at the Melbourne Magistrates’ Court. Dr Burke concluded that Mr Symonds did appear to have a “reduced attentional capacity, which resulted in inefficiencies in some forms of new learning” but it was suggested that these reductions in attention and working memory were likely to reflect the effects of drug use and “there was no clear pattern in his test performances to support a diagnosis of Acquired Brain Injury”. Previous CISP records also suggest that Mr Symonds completed a further neuropsychological assessment with Dr Loretta Evans in 2010, which concluded the absence of an ABI.
According to Ms Nesbitt, Mr Symonds expressed an interest in accessing training and employment. He was particularly interested in training to be a chef. Apparently Mr Symonds said that he was planning to attend an open day at a chef training school in Moorabbin on 15 October 2014. There was no evidence that he attended on that day. Nevertheless, Ms Nesbitt said that Mr Symonds engaged well in appointments and that he appeared to be motivated towards addressing the goals within his treatment plan.
After Mr Symonds was remanded for further offending on 27 October 2014, because CISP policy is to exit clients from the program if they are remanded during their episode of intervention, his then case manager, Ms Brianna Ellis, advised Mr Symonds on 28 October 2014 that he would be exited from the program. She did not have further contact with Mr Symonds between 28 October 2014 and 6 November 2014. On 10 November 2014 Mr Symonds reported a desire to continue engaging with support to address his presenting issues.
In a letter dated 17 December 2014 addressed to the Magistrates’ Court of Victoria, Ms Ellis noted that a final progress report was tendered to the Court on 9 December 2014. At that time Mr Symonds was residing in residential rehabilitation but an exit planning discussion had not taken place. At the time of the exit planning appointment, Mr Symonds could not identify any further referrals or intervention. He was provided with the details for Directline, Lifeline and bulk billing psychologists in the Melbourne CBD area if he should require additional support in the community. He was then formally exited from the program on 17 December 2014.
Despite the significant assistance offered to Mr Symonds through the CISP, he returned to drug taking and criminal offending.
Furthermore, following his conviction on 17 June 2016 which imposed a CCO for 18 months on Mr Symonds, he not only failed to comply with the CCO but also the conditions attached to that Order. They included assessment and treatment for drug abuse or dependency as directed and mental health assessment and treatment as directed. The report from the Department of Justice and Regulation dated 17 October 2016 referred to Mr Symonds’ failure to engage appropriately during the supervision appointments he attended, at times refusing to engage at all, and that he had ceased contact with the services providing treatment and rehabilitation for drug abuse. It stated:
Mr Symonds was referred to The Australian Community Support Organisation (ACSO) on 24.06.2016 for a Response of Assessment, planning, intervention and diversion service (RAPIDS) assessment. He attended this appointment and was recommended for further treatment of complex counselling. Mr Symonds was linked with Galliamble Services and attended one (1) appointment prior to absconding.
Although Mr Symonds said in the course oral evidence that he had not been provided with appropriate support in order to overcome his drug and alcohol abuse problems, the evidence appears to indicate that he has not made a serious effort to overcome his problems. Therefore, given his current state of drug dependence (he remains on Naltrexone which is not a cure for opioid/alcohol addiction), the risk of Mr Symonds reoffending remains high. The Department of Justice and Regulation report states:
Mr Symonds is a 30-year-old male offender assessed as High risk of reoffending according to the Level of Service – Risk Need and Responsivity tool (LSR). Mr Symonds was provided with an opportunity to address his offending behaviour by way of a Community Correction Order.
As outlined in the report above, Mr Symonds’ overall compliance regarding his Order obligations is considered most unsatisfactory, as he has accrued four (4) unacceptable absences from supervision and on the occasions he did attend his appointments, attended intoxicated and/or under the influence. As Mr Symonds further offended and ceased contact, this service had no other option but to initiate contravention proceedings.
In light of the above, it is respectfully recommended that Mr Symonds order be cancelled and that he be resentenced on the original charges. Mr Symonds is not a suitable candidate for further community-based disposition at this time.
In light of the above evidence, I find that the risk of Mr Symonds reoffending, should he be released into the Australian community, remains high and the level of seriousness of potential harm is also high. I also find that the harm that would be caused if Mr Symonds were to reoffend would be unacceptable to the Australian community.
Best interests of minor children in Australia
Mr Symonds said that he did not have any minor children. Therefore this consideration is not relevant in this case.
Expectations of the Australian community
Clause 13.3 of the Ministerial Direction provides:
(1) 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 not to revoke mandatory visa cancellation of such 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 most concerning aspect of Mr Symonds’ criminal behaviour is its continuing nature and increasing severity. There are no grounds on which I can have any confidence that Mr Symonds’ drug habit or alcohol dependence have been brought under control let alone progress towards abstinence. Although Mr Symonds indicated that he has not had proper or significant rehabilitation support, the evidence before me indicates that when support was given to him, he appeared either to choose not to seriously participate in the support programs or he found himself incapable of doing so. It seems to me that Mr Symonds has become significantly reliant upon persons who have a drug habit and are not prepared to seek rehabilitation. As long as that situation persists, it is highly unlikely that Mr Symonds’ criminal offending will abate.
Given the significant resources which have been allocated to Mr Symonds without any tangible result, I find that the Australian community would not expect that Mr Symonds should retain his visa. I also have no doubt that that would be the view of the Government in these circumstances.
OTHER CONSIDERATIONS
Clause 14 of the Ministerial Direction deals with other considerations which, generally, are given less weight than the primary considerations. Relevantly, it provides:
(1) In deciding whether to revoke the mandatory cancellation of the visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)…
(b)Strength, nature and duration of ties;
…
(d)Impact on victims;
(e)Extent of impediments if removed.
Strength, nature and duration of ties
Clause 14.2 of the Ministerial direction relevantly provides:
(1) The strength, nature and duration of ties to Australia. 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 derived 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 (with those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Symonds arrived in Australia on 15 March 1988. At that time he was one year and 10 months of age. He is presently 31 years of age and therefore has, essentially, resided in Australia for about 30 years. He has travelled to New Zealand on four occasions since his initial arrival in Australia. In 1990, he spent almost 3 weeks in New Zealand. In October 1994 Mr Symonds went to New Zealand, remaining for 12 months. In his oral evidence, Mr Symonds said that he went to school while in New Zealand for that 12 month period. He returned in October 1995. He again departed for New Zealand in September 1997 remaining for just under two weeks. His last trip to New Zealand was in March 1999 when he stayed for about one week.
Mr Symonds’ adoptive parents are New Zealand citizens but resident in Australia. His biological mother, with whom he resumed contact when he was about five years old, is also a New Zealand citizen but now resident in Australia. Mr Symonds has a half-brother who is an American/New Zealand citizen but now resides in Australia. Mr Symonds’ biological father remains in New Zealand and, although he has met his biological father, Mr Symonds has stated that his biological father has no wish to have any further contact with him. He is unsure of his whereabouts in New Zealand.
Although Mr Symonds maintained he had strong support from his family in Australia, the evidence before me indicates a turbulent upbringing as child. In a history given to Ms Carla Lechner, a clinical psychologist who interviewed Mr Symonds on 2 June 2015, he said that he had a positive relationship with his adoptive parents but indicated that they were very tough on him at didn’t tolerate his bullshit. He said he grew up in Footscray until the age of 13 years when he ran away from home because he was sick of the physical and verbal abuse and he was scared to tell his parents that he failed at school. In his oral evidence, Mr Symonds said he left home at the age of 13 or 14 but was put into foster care. In fact his biological mother said that he was made a ward of the state. He subsequently returned home six months later, but when he was 14, he ran away to live with his biological mother where he remained for 12 to 18 months. He then returned to his adoptive parents’ home where he stayed until he was 19 years old when he left the house in order to live by himself.
Mr Symonds said that his biological mother returned to his life after coming back from the USA where she had lived for about four years. Although he lived with her for a short while between the ages of 14 ½ and 16, he left when he was 16 years old because he said she pushed too hard regarding his school study, which he did not tolerate. In the history taken by Ms Lechner, Mr Symonds said that he found learning hard and that while he could read and write, he had a short concentration span and was easily distracted. He said he was bullied at school on account of his thin frame. He also described his adoptive father as abusive and that he was hit quite a lot, with hands, belt and wooden spoon. He also told Ms Lechner that at 18 years of age, his adoptive parents kicked him out of their house. Ms Lechner said:
He does not appear to be emotionally supported by his family and feels as though he is a disappointment to all parties. He stated openly that he is “jealous” of the bond that his (biological) mother and Saul share. His social networks tend to be transient in nature and centre on similar drug-taking activities. Mr Symonds is inclined to form intense intimate relationships and becomes destabilised when these relationships come under real or perceived threat.
Mr Symonds’ biological mother, Ms Tina McKenzie, provided a written statement which was taken into evidence and she attended to give oral evidence at the hearing. Ms McKenzie also testified that Mr Symonds had a tough life and suffered abuse and beating from his adopted father. Ms McKenzie also said that she had a special relationship with her son and that she would work tirelessly to let him know that she was there for him. However, with respect to Ms McKenzie, the overall evidence appears to indicate that Mr Symonds only falls back for support on his biological mother when he finds himself in serious need of either shelter or money or both. Ms McKenzie said that if her son were permitted to remain in Australia, she could help him get work and he could stay with her. While I have no doubt that her intentions as stated are sincere, my concern is that Mr Symonds will not accept that support or, if he does, it will simply be transient. After all, she has provided that support for many years and yet Mr Symonds’ criminal behaviour has not altered. In fact in his oral evidence Mr Symonds said that if he were allowed to remain in Australia, he would most likely get away from Melbourne, for example to Perth or Cairns, in order to get away from those people who have influenced his criminal activities.
Given the evidence before me regarding the strength, nature and duration of ties to Australia, I find that his ties are tenuous at best. Despite support offered by particularly his biological mother, his behaviour has not changed. In fact Ms Lechner made the following statement regarding Mr Symonds’ chances of remaining free of drugs and desisting from criminal behaviour :
Mr Symonds stated that he was doing well on the CISP program and remained abstinent for about six weeks – “I relapsed because I was lending people money and I wanted money back but they didn’t have money, they could only give me drugs and I relapsed”. This illustrates how vulnerable Mr Symonds is to the risk of relapse and his need for intensive rehabilitation support, preferably in a residential facility. He is still finding it hard to imagine a future of total abstinence and hence is best described as being in the “contemplative” stage of change.
Impact on victims
The only direct evidence before me indicating that victims were significantly affected was where a patron at the McDonald’s restaurant became hysterical with fear even though the violence perpetrated by Mr Symonds on that occasion was not directed at her.
I was also directed to Ms Lechner’s report where Mr Symonds accepted that his conduct would have been terrifying for victims. I accept that a reasonable inference can be drawn regarding the fear experienced by both victims and those within the vicinity of the violent behaviour.
Impediments if Mr Symonds were returned to New Zealand
I accept there are no impediments regarding language or culture in this case. Furthermore, Mr Symonds accepted that as a New Zealand citizen, he was able to access the New Zealand health system in the same way as any other New Zealand citizen and that the Social Security system was comparable to that in Australia.
The Minister accepted that Mr Symonds would experience some difficulty in relocating to New Zealand, not having lived there as an adult. He did not have connections with any persons in New Zealand. However, Mr Symonds indicated in his oral evidence that even if he were returned to the Australian community, he would move as far away as possible, for example Perth, where he did not know anybody upon whom he could rely if in need. If that is the case, then it seems to me that moving back to New Zealand would pose no greater difficulties for Mr Symonds than moving to Perth. He would be just as far away from his biological mother in either case. In any event, Ms McKenzie’s ability to visit her son in either location is identical. Therefore, I find that impediments Mr Symonds faces whether he remains in Australia or is required to return to New Zealand are identical.
As I have set out above, clause 14(1) of the Ministerial Direction sets out considerations which must be taken into account where relevant but those considerations listed are not exclusive. There is one other matter which I believe should be considered in this case. That relates to Mr Simon’s current mental state.
Mr Symonds’ mental functioning
Ms Lechner administered two sub-tests of the Wechsler Abbreviated Scale of Intelligence – Second Edition to Mr Symonds in order to gain an estimate of his cognitive functioning. Mr Symonds’s results were in the borderline/low average range. Ms Lechner said:
It is possible that on account of his drug use, Mr Symonds has suffered a degree of cognitive deterioration. He performed less well on the task of pattern recognition and sequencing. I note that the CISP Report makes reference to two neuropsychological assessments undertaken in 2009 (Dr Bourke of ARBIAS) and 2010 (Dr Evans). The former indicated “reduced attentional capacity” which resulted in “new learning inefficiencies”. The second report apparently concluded “the absence of an ABI”. Ongoing drug use in the interim period may be adversely affecting Mr Symonds’ cognitive functioning.
Ms Lechner also administered to Mr Symonds the Beck Depression Inventory and concluded that his score on that test was consistent with his presentation and interview and a diagnosis of clinical depression.
While I readily accept that Mr Symonds suffers a degree of mental incapacity and probably has done so for many years due to his ongoing drug and alcohol use, his functioning is not such as would result in him not having a full understanding of the seriousness and consequences of his criminal behaviour. While I have taken that into account, I find that it does not excuse or in any way ameliorate the consequences which must follow his criminal behaviour. There was no evidence that his depression has played any part in his criminal behaviour.
SHOULD THE CANCELLATION DECISION BE REVOKED
I have found that Mr Symonds’ criminal conduct is very serious. It has continued, almost unabated, for in excess of 10 years. The level of violence and harm to victims discloses a disturbing escalation of seriousness. He has shown no regard for the law or orders made by the Court.
I have also found that Mr Symonds’ conduct poses an unacceptable risk of harm to the Australian community. I have found that the harm that would be caused if his conduct were repeated to be so serious that the risk of it being repeated is unacceptable. He poses a significantly high risk of recidivism.
The nature and circumstances of Mr Symonds’ offending has led me to find that the Australian community would not expect Mr Symonds to hold a visa.
As for the other considerations, which generally are given less weight than the primary considerations to which I have referred above, I have found that the nature and duration of his ties to Australia are tenuous at best. I have also found that the impact on victims, despite the evidence being scant, cannot be described as insignificant. As for impediments if Mr Symonds were returned to New Zealand, I have found that while Mr Symonds will experience some impediments in relocation if he were removed to New Zealand, given his expressed desire to move away from Melbourne to places where he does not know persons who might support his rehabilitation, any impediments in establishing himself and maintaining basic living standards available generally to other citizens of New Zealand are not significantly different to those if he were to move to another place in Australia, distant from Melbourne.
I find that the primary considerations in this case outweigh any of the other considerations which may be seen to favour revocation of the cancellation decision. Therefore, I find that the decision made by a delegate of the Minister on 11 October 2017 not to revoke the original decision made on 5 October 2016 cancelling Mr Symonds’ Class TY, Subclass 444 Special Category (Temporary) visa was the preferable decision. I affirm that decision.
64. I certify that the preceding 63 (sixty-three) paragraphs are a true copy of the reasons for the decision herein of Egon Fice, Senior Member
[sgd]........................................................................
Associate
Dated: 22 December 2017
Date of hearing:
Applicant:
13 December 2017
By video
Advocate for the Respondent: Ms Elanor Cannon Solicitors for the Respondent: Clayton Utz
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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