TGWR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 5076
•16 December 2020
TGWR and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5076 (16 December 2020)
Division:GENERAL DIVISION
File Number: 2020/6018
Re:TGWR
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member R Maguire
Date:16 December 2020
Place:Brisbane
The Reviewable Decision is affirmed.
..............................[SGD].....................................
Member R Maguire
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Crimes Act 1900 (NSW)
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
REASONS FOR DECISION
Member R Maguire
16 December 2020
Index
Decision
Reasons For Decision
Introduction and background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s Visa?
Primary Consideration A – Protection of the Australian Community
Evidence
Applicant’s Criminal History
Evidence of Witnesses
Application of Factors in Paragraph 13.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Conclusion: Primary Consideration A
Primary Consideration B: The Best Interests of Minor Children in Australia
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Findings: Other Considerations
Conclusion
Decision
Annexure A
INTRODUCTION AND BACKGROUND
The Tribunal made an order under section 35 of the Administrative Appeals Tribunal Act 1975 (Cth) (“the AAT Act”) to prohibit the publication of the name of the Applicant in this matter. He will be referred to by the pseudonym, “TGWR”. The identity of certain other persons will also be an anonymised, lest the disclosure of the names have the effect of identifying the Applicant.
The Applicant seeks the review of a decision of a delegate of the Minister (“the Respondent”) dated 23 September 2020[1] made pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the decision made under subsection 501(3A) of the Act to cancel the Applicant’s Class TY, Subclass 444 Special Category (Temporary) visa (“the visa”).
[1] Exhibit G1, G Documents, G4 at page 14.
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under section 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;…
The Applicant is a 27 year old male citizen of New Zealand.[2] The Applicant was born in Australia[3] in March 1993 but never obtained Australian citizenship due to his residing in New Zealand for two years.[4] New Zealand Customs Service Passenger Movements records show that the Applicant is recorded as having “New Zealand Citizenship/Passport” for all eight of his entries and departures from New Zealand in the period up to 4 April 2002. In particular, he is shown as having been in New Zealand from 15 October 1999 until 20 December 2000. At that point he departed New Zealand on 20 December 2000 and returned on 11 January 2001, and remained there until 24 December 2001 prior to his 10th birthday. He has otherwise lived in Australia all his life and travelled to New Zealand a total of 12 times. He was granted the visa on the occasion of his last entry into Australia on 13 August 2015.[5]
[2] Exhibit R1, Respondent's Statement of Facts, Issues and Contentions (SFIC) at page 1, paragraph [3].
[3] Exhibit G1, G Documents, G 10 at page 130.
[4] Exhibit G1, G Documents, G 13 at page 116.
[5] Exhibit G1, G Documents, G 16 at page 126.
The Applicant has most recently been sentenced to a term of imprisonment of 5 years and 9 months, and has been sentenced to a cumulative total of 10 years and 9 months imprisonment prior to attaining the age of 27.
On 1 October 2019, whilst the Applicant was serving a term of imprisonment (that is, in actual criminal custody) the Respondent, pursuant to section 501(3A) of the Act, decided to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test because of the operation of section 501(6)(a) (substantial criminal record) on the basis of section 501(7)(c),[6] i.e. that he had been sentenced to 12 months or more imprisonment.
[6] Exhibit G1, G Documents, G16 at pages 126-132.
Notice of this decision dated 1 October 2019[7] was given to the Applicant by registered post, and is taken to have been received seven working days after the date of the document as provided in Regulation 2.55 (7). In accordance with Regulation 2.52(2)(b) the Applicant was invited to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations[8] to the Minister on 6 November 2019 within the period and in the manner specified.
[7] Exhibit G1 G Documents, G16 at pages 126 – 132.
[8] Exhibit G1, G Documents G7 at pages 79 – 89, G8 at page 90 – 104.
On 23 September 2020, the Respondent decided not to revoke the visa cancellation decision made under section 501(3A) of the Act,[9] and on 2 October 2020 the Applicant made the present application to this Tribunal for a review of that decision.[10] The Tribunal has jurisdiction to review this decision pursuant to section 500(1)(ba) of the Act.[11]
[9] Exhibit G1, G Documents G1 at pages 7 – 14.
[10] Exhibit G1, G Documents, G1 at pages 1 – 6.
[11] The Act, section 500(6B).
The hearing of the instant application took place on 30 November and 1 December 2020. The Applicant appeared in person via video link, as did Mr Ellison who appeared for the Respondent. The Tribunal received oral evidence from the Applicant, who was in the migration zone on shore in Australia. The Tribunal also received oral evidence from the numerous witnesses set out below. The complete suite of written material forming the exhibit record is further particularised in the Exhibit Annexure attached hereto and marked “A”.
By operation of section 500(6L)(c) of the Act, when an application is made to the Tribunal under section 501CA(4) of the Act, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with subsection 501G(1), the Tribunal is taken at the end of that period, to have made a decision under section 43 of the Administrative Appeals Tribunal Act 1975[12] to affirm the decision under review. At the conclusion of the hearing, Mr Ellison informed the Tribunal that for the purposes of this review, and section 500(6L)(c), the 84th day is Wednesday, 16 December 2020. The applicant did not disagree with this. It is therefore open to the Tribunal to make a decision prior to midnight, 16 December 2020.
[12] (Cth).
ISSUES
Revocation of the mandatory cancellation of visas is governed by section 501CA(4) of the Act. Relevantly, this provides that:
4The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant has made the representations required by section 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[13]
…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[14]
[13] [2018] FCAFC 151.
[14] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016)153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[15]
[15] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in section 501(6) of the Act. Under section 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in section 501(7). Section 501(7)(c) provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. In addition, and as an alternative, section 501(7)(d) provides that a person will have a substantial criminal record if the person “has been sentenced to two or more terms of imprisonment, where the total of those terms is 12 months or more.” Section 501(7A) provides that for the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part) the whole of each term is to be counted in working out the total terms.
The Applicant was convicted in the District Court of New South Wales on 15 March 2019 on what Judge Maiden described in his sentencing remarks[16] as a “significant number of charges”[17] and imposed sentences of imprisonment aggregating five years and nine months, with a non-parole period of three years and five months for offences including two counts of robbery armed with an offensive weapon.[18] As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act. This sentencing occasion alone provides a sufficient platform for a finding that the Applicant does not pass the character test.[19]
[16] Exhibit G1, G Documents G3 at pages 35 – 53.
[17] Exhibit G1, G Documents G4 at page 35.
[18] Exhibit G1, G Documents G3 at pages 27 – 32.
[19] Section 501(7)(c) of the Act.
As the custodial term imposed was “a term of imprisonment of 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(c) of the Act. The Tribunal therefore finds on this basis that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act.
The Tribunal has also had regard for the Applicant’s conviction in the District Court of New South Wales on 23 November 2012 before Judge M. Marien SC where, in imposing aggregate sentences of 22 months imprisonment, his honour remarked “I have formed the view, however, that nothing other than full-time custodial sentences are appropriate for both offences given the seriousness of the offences and his prior record.”[20] This sentencing occasion of itself provides a separate and second platform for a finding that the Applicant does not pass the character test.[21]
[20] Exhibit G1, G Documents G5, 54 – 72 at page 69.
[21] Section 501(7)(d) of the Act.
As the custodial term imposed was “two or more terms of imprisonment where the total of those terms is 12 months or more”, the Applicant does not pass the character test by virtue of his “substantial criminal record” as defined in section 501(7)(d) of the Act. The Tribunal therefore finds on this basis that the Applicant does not pass the character test pursuant to section 501(6)(a) of the Act.
The Tribunal is therefore consequently satisfied that the Applicant does not pass the character test, and that the Applicant therefore cannot rely on section 501CA(4)(b)(i)[22] of the Act for the mandatory cancellation of his visa to be revoked.
[22] Note: This provides that the Minister is satisfied that the person passes the character test (as defined by section 501).
The remaining question therefore is found in section 501CA(4)(b)(ii), namely whether there is another reason why the original decision should be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Ministerial Direction No. 79
In considering whether to exercise the discretion in section 501CA(4) of the Act, the Tribunal is bound by section 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[23] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[24]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[23] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[24] The Direction, sub-paragraph 7(1)(b).
In paragraph 6.2(3) of the Preamble, the Direction provides:
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to… revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered… in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2(3) are found in paragraph 6.3 of the Direction, and may be briefly stated 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-citizen’s in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In the circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen ’s visa should be cancelled, or the visa application refused.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case. Paragraph 8(2) provides that in applying these considerations, information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 8(3) provides that both primary and other considerations may weigh in favour of, or against, whether or not to revoke a mandatory cancellation of a visa. Paragraph 8(4) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 8(5) provides that one or more primary considerations may outweigh other primary considerations.
Three primary mandatory considerations relevant in the context of a revocation decision appear in Part C of the Direction at paragraph 13:
(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.
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;
(e)Extent of impediments if removed.
The Tribunal notes and emphasises the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[25]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.
[25] [2018] FCA 594 at [23].
The Tribunal now turns to addressing these considerations.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an applicant’s visa serves to protect the Australian community, paragraph 13.1 of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (1) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (2) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction provides that decision-makers should give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In considering the nature and seriousness of the non-citizen ’s criminal offending or other conduct to date, decision-makers must have regard to factors including those set out in paragraph 13.1.1 of the Direction:
(a)the principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)the principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)the principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The first step is considering the nature and seriousness of the non-citizen’s conduct to date. Such conduct must be measured in accordance with paragraph 13.1.1 of the Direction having regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following documents before me:
(a)his criminal history which appears in a document called “Check Results Report” from the Australian Criminal Intelligence Commission; [26]
(b)the Sentencing remarks of the District Court of New South Wales on 15 March 2019;[27]
(c)the Sentencing remarks of the District Court of New South Wales on 23 November 2012;[28]
(d)the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 30 September 2019.[29]
[26] Exhibit G1, G Documents, G3 at pages 27-34.
[27] Exhibit G1, G Documents, G4 at pages 35 – 53.
[28] Exhibit G1, G Documents, G5 at pages 54 – 72.
[29] Exhibit G1, G Documents, G6 at pages 73 – 78.
The Respondent has provided in its Statement of Facts, Issues and Contentions (SFIC)[30] Annexure A which sets out the convictions recorded against the Applicant in the National Criminal History Check Report, as well as his NSW Department of Correctional Services record of convictions, sentences and appeals, and his Criminal History Bail Report.
[30] Exhibit R1.
At the hearing, the Applicant conceded the accuracy of Annexure A, and accordingly the Tribunal adopts it and sets it out for ease of reference.
Evidence
Applicant’s Criminal History
Table of Offending[31]
[31] Note: This table is based on the information in the applicant’s National Criminal History Check Report (GD 27 to 34) his NSW Department of Correctional Services record of convictions, sentences and appeals (GD 73 to 78), and his Criminal History Bail Report document (RTB 1 to 25); Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions, Annexure A.
Court/ Hearing date Offence date Offence of which the Applicant was convicted
Sentence imposed 06.03.2020 – Released to immigration detention
04.12.2019 04.12.2019 Correctional Centre Offence: Assault 56 days no visits 11.06.2019 10.06.2016 Correctional Centre Offence: Disobey direction 7 days in cell
7 days no buy ups7 days no contact visits
7 days no phone calls
7 days no television
7 days no amenities
15.03.2019 02.07.2016-03.07.2016 2 counts, robbery armed with offensive weapon
5 years and 9 months imprisonment commencing 27.09.2016 with non-parole period of 3 years and 5 months 02.07.2016-03.07.2016
Destroy or damage property (≤$2,000) 02.07.2016-03.07.2016 Destroy or damage property by fire (≤$2,000)
02.07.2016-03.07.2016 Aggravated break and enter and commit serious indictable offence (in company)
02.07.2016-03.07.2016 Take/detain in company with intention to get advantage
03.07.2016-03.07.2016 Take/detain in company with intention to get advantage and occasion actual bodily harm
03.07.2016 7 counts, dishonestly obtain financial advantage by deception 21.08.2018 18.08.2018 Correctional centre offence: Fight or other physical combat 7 days in cells 10.07.2018 09.07.2018 Correctional centre offence: Possess drug
21 days no buy ups 29.01.2018 23.01.2018 Correctional centre offence: Fight or other physical combat
7 days in cells 09.11.2017 06.11.2017 Correctional centre offence: Possess drug 56 days no buy ups
56 days no contact visits
56 days no phone calls
11.10.2017 11.10.2017 Correctional centre offence: Assaults 56 days no buy ups
56 days no contact visits
18.07.2017 15.07.2017 Correctional centre offence: Disobey direction
7 days no buy ups 13.06.2017 08.06.2017 Correctional centre offence: Disobey direction
56 days no buy ups 13.06.2017 08.06.2017 Correctional centre offence: Intimidation
56 days no phone calls 08.02.2017 03.02.2017 Correctional centre offence: Create and possess prohibited goods
14 days no buys ups
14 days no contact visits
27.09.2016 – enters custody
23.09.2014 14.05.2014 Unlicensed driving (second offence) $600 fine and disqualification for 3 years commencing 23.09.2014
21.05.2014 27.03.2014 2 counts, shoplifting 2 years good behaviour bond
11.11.2013 – released to parole
09.11.2013 08.11.2013 Correctional centre offence: Intimidation
2 days in cells 24.05.2013 07.02.2013 Possess unauthorised prohibited firearm 10 months imprisonment commencing 07.02.2013 with non-parole period of 7 months and 14 days (release subject to supervision)
07.02.2013 – parole revoked and enters custody
10.12.2012 – release to parole
23.11.2012 Receive stolen property (≤$5,000) 10 months imprisonment commencing 11.01.2012 08.11.2011 Aggravated break and enter with intent to inflict actual bodily harm 22 months imprisonment commencing 11.01.2012 with non-parole period of 11 months (release subject to supervision)
20.09.2012 19.09.2012 Correctional centre offence: Fail to comply with Correctional Centre
3 days in cells 01.09.2012 29.08.2012 Correctional centre offence: Fail to comply with Correctional Centre
2 days in cells 11.11.2011 – parole revoked and enters custody
29.09.2011 – released to parole
07.09.2011 – parole revoked and enters custody
31.08.2011 30.08.2011 Unlicensed driving
$250 fine 07.2011 – released to parole
17.05.2011 06.03.2011 Enter building/land with firearm or imitation firearm
4 months control order 06.03.2011 Armed with intent to commit indicatable offence 14 months control order commencing 06.03.2011 with non-parole period of 4 months (release subject to supervision by Juvenile Justice and with conditions)
06.03.2011 Stalk/intimidate with intention to fear physical harm 8 months control order commencing 06.03.2011 with non-parole period of 4 months (release subject to supervision by Juvenile Justice and with conditions)
06.03.2011 – enters custody
01.02.2011 11.01.2011 Aggravated break and enter and commit serious indicatable offence (in company)
75 hours community service order 11.01.2011 Aggravated break and enter and commit serious indicatable offence (in company)
75 hours community service order 05.11.2010 26.12.2009 Robbery in company 200 hours community service order 13.07.2010 Affray 18 months probation bond with supervision by Juvenile Justice and with conditions to:
1.Be of good behaviour2.Attend school or course or employment regularly
3 Attend any program as directed by the Department of Juvenile Justice
08.09.2010 Aggravated break and enter and commit indicatable offence (in company) 12 months probation bond with supervision by Juvenile Justice and with conditions to:
1. Be of good behaviour2. Attend school or course or employment regularly
3. Attend any program as directed by the Department of Juvenile Justice
14.07.2009 11.05.2009 Goods in personal custody suspected of being stolen (not motor vehicle)
18 months good behaviour bond with supervision by Juvenile Justice 31.03.2009 17.01.2009 Enter enclosed land without lawful excuse 6 months good behaviour bond with supervision by Juvenile Justice
04.11.2008 31.10.2008 Shoplifting (≤ $2,000) 12 months probation bond with conditions to:
1.Be of good behaviour2.To accept the supervision of juvenile justice community services
28.10.2008 19.03.2008 Common assault 12 months probation bond supervised by Juvenile Justice to attend school/TAFE regularly or to endeavour to find and stay in regular work and participate in programs as directed
19.03.2008 Enter building/land with intention to commit indicatable offence 12 months probation bond supervised by Juvenile Justice to attend school/TFE regularly or to endeavour to find and stay in regular work and participate in programs as directed
In summary, between 2008 and 2019, the Applicant has been convicted of the following 32 offences:
(a)1 count of common assault
(b)1 count of affray
(c)4 counts of aggravated break and enter
(d)2 counts of taking/detaining a person with an intention to obtain advantage, one of which included actual bodily harm
(e)5 firearms offences, including 1 count of possessing an unauthorised firearm,1 count of entering a building with a firearm, 1 count of being armed with an intention to commit an indictable offence, 2 count of armed robbery with an offensive weapon
(f)5 stealing related offences, including theft, shoplifting and robbery in company
(g)7 counts of obtaining financial advantage by deception
(h)2 counts of entering a building with the intention to commit an indicatable offence
(i)1 count of stalking with an intention to cause fear/physical harm
(j)2 counts of unlicensed driving
The Tribunal now turns to consider the specific sentencing remarks which have been provided, and reveal as follows.
On 23 November 2012, the Applicant pleaded guilty in the District Court of New South Wales before Judge Marien SC to one count of break and enter with intent to commit a serious indictable offence namely larceny, in circumstances of aggravation, namely that he did intentionally inflict actual bodily harm on a person.[32] The offence was alleged to have occurred at about 10:10 PM on the evening of 8 November 2011. The maximum penalty for this offence was 14 years imprisonment. On the same day he also pleaded guilty to a charge of receiving an Olympus camera and three lenses and a proximally $500-$1000. This count carried a maximum penalty of 10 years imprisonment.
[32] Exhibit G1, G Documents, G5 at page 54.
The victim of the break and enter offence was punched in the face near his mouth and cheek causing him to fall over. The victim received cuts to his gums and left upper lip. The victim was unable to identify a picture of the offender in a picture identification procedure. In three calls between 10:18 PM and 10:30 PM the offender said in Pig Latin to an unidentified speaker, he was at the car and when asked what happened, he said, “Snogged him, bombed him, one hit”. The offender was asked if he got anything to which he replied “Na”.[33]
[33] Exhibit G1, G Documents, G5 at page 55.
The Applicant pleaded guilty on the basis that he was party to an agreement with an unidentified male to commit the offence, and was sentenced on the basis that he was a principal in the second degree to that offence, and not the actual offender who entered the premises and assaulted the victim. At the time of this offence, the offender’s phone was the subject of a telephone intercept warrant.
On 10 November 2011, the Applicant reported to Hurstville police in relation to his bail on an unrelated matter shortly after 2:00 PM. At the time, his phone was still the subject of the same telephone intercept warrant. In a call with an unidentified male earlier that day the offender discussed committing an offence and that he did not want to “leave it late like last time”.[34] Shortly before 3:00 PM an unidentified person broke into the premises of another victim by removing a metal grill covering a bedroom window and stole about $3000 in cash and about $1000 in Chinese currency and an Olympus camera and three lenses.
[34] Exhibit G1, G Documents, G5 at page 56.
The Applicant was arrested the next morning, and denied any knowledge of the offences.[35]
[35] Exhibit G1, G Documents, G5 at page 57.
In the course of sentencing remarks, the judge said:
Break enter and steal and breaking into premises with an intent to steal or to commit a serious indictable offence has long been regarded as a serious crime by the legislature particularly because it is an invasion of the privacy of victims and also because of the prevalent nature of the offence. General deterrence is a particularly important sentencing consideration for these offences.[36]
[36] Exhibit G1, G Documents, G5 at pages 57-8.
The judge noted that a pre-sentence report stated that the Applicant had had previous contact with the Probation and Parole Service by way of supervision under a Juvenile Justice Parole Order for the offences of armed with intent to commit indictable offence and stalk/intimidate. The report also stated that the Applicant was released to parole in July 2011, however on 7 September 2011 he was returned to custody when his parole orders were revoked after being charged with new offences. In September 2011, the revocation was rescinded in the Children’s Court and the Applicant was again released to parole. The report stated that his response to supervision was “deemed to be poor and his attitude and behaviour during an educational programme he was participating in were described as immature.” [Tribunal’s emphasis].[37]
[37] Exhibit G1, G Documents, G5 at page 58.
The judge also recorded:
The report states quite correctly, in my view, that it would appear that the offender will need to seriously commit himself to setting constructive goals and be more diligent in his choice of associates or friends if he is to lessen the risk of continuing to come to the adverse attention of the law.
There was a report from forensic psychologist Ms Anna Robilliard dated 13 November 2012 before the judge[38] which recorded that the Applicant’s mother was “extremely supportive of him”.[39] The judge also noted that cognitive assessment by the psychologist produced a composite IQ between 73 and 83, and that this call was in the borderline range and attracted a percentile ranking of five meaning 95% of his age cohort would score equal to or ahead of him. Testing by the psychologist placed the offender entered the “low to moderate risk of reoffending” category.[40]
[38] Exhibit G1, G Documents, G5 at page 59.
[39] Exhibit G1, G Documents, G5 at page 61.
[40] Exhibit G1, G Documents, G5 at page 63.
The judge also noted as follows:[41]
Ms Robilliard states in her report what, from my experience is clear in this case, that is that this case is unusual for most young men with criminal histories similar to the offender, because unlike most offenders with a similar history, particularly young offenders, this offender comes from a supportive family where he was not exposed to adverse or traumatic experiences and he still has his family’s support and he has no drug or alcohol issues. All such factors Mr Robilliard says are usually found underpinning extensive criminal involvement particularly in young people.
She says, and I agree with her conclusion that his criminal involvement appears to be related to his choice of antisocial peers and his unquestioning adoption of antisocial attitudes values and behaviours without independent thought.…
She says that on his return to the community the offender intends to get a job, to play football and pursue his interest in music and singing. She says that with these elements in place he would have significant structure controls and containment that would diminish the risk of reoffending. She says, in reality, he has little employment experience or vocational training and he would be capable of undertaking vocational training to increase his employment potential. However his social network has not been a positive influence to date and his insight into this aspect of his criminal involvement is limited.
[41] Exhibit G1, G Documents, G5 at page 63-4.
The Applicant’s record at the time of sentencing on 23 November 2012 was described[42] by the judge as follows:
Both offences are aggravated by the fact that he committed them whilst on conditional liberty, that is on parole and on probation and this is a serious aggravating factor. His record is a serious one, as I have said before confined to this time, to matters being dealt with in the Children’s Court but they are for serious matters including robbery in company, aggravated break enter and steal and other serious offences of dishonesty. That record aggravates the offences not in making these offences more objectively serious but by requiring that in the normal case that further weight be placed on consideration of personal deterrents and community protection. [Tribunal’s emphasis].
[42] Exhibit G1, G Documents, G5 at page 65.
The sentencing judge also remarked:[43]
[43] Exhibit G1, G Documents, G5 at page 67-68.
It is also relevant to take into account that this is his first experience in an adult gaol. He has been in adult custody since his arrest on 11 November last year. A matter of great concern is that he was the victim of a serious assault earlier this week by other inmates which required him to be taken to hospital. I should say, of course, as I will come to explain shortly that whilst he has been in custody since his arrest for these offences on 11 November last, not all of that custody continuing today relates strictly to these offences. Some of that custody relates to serving revoked parole.
As I said earlier I found the offender to be very impressive in the witness box. I found him to be forthright with no attempt on his part to be evasive and ultimately he acknowledged that he does now realise the serious consequences of his criminal offending particularly because he now had the experience of being in custody in an adult gaol.
I think his prospects for rehabilitation are very favourable as long as he gets the kinds of intervention recommended by Ms Robilliard and by the Probation Officer in the pre-sentence report, that is in particular that he gets into training, educational employment training and that he gets into employment or further education.
I believe that this is an exceptional case in many ways and I believe it is a case that sometime described (sic) in the authorities as the case of an offender who is at “cross-roads”.
As I say I have come to this view, not only because of the reports from Ms Robilliard and the pre-sentence report but by his evidence before me yesterday.
Accordingly I have determined that this is an exceptional case where I should extend some leniency to encourage his reform and rehabilitation. [Tribunal’s emphasis].
….
…I have formed the view, however that nothing other than full-time custodial sentences are appropriate for both offences given the seriousness of the offences and his prior record. [Tribunal’s emphasis].
However, the Crown concedes that the time the offender has spent in custody for the offences is approaching a permissible band for a minimum sentence or minimum sentences for these offences. I am satisfied that there are special circumstances warranting a variation and in my view a substantial variation of the statutory ratio between the total sentence and the non-parole period, they being his youth, associated with his cognitive impairment, his need for extended supervision on parole and the fact that this is his first custodial sentence in an adult gaol which would obviously cause him more hardship than for an offender who has previously served custody in adult custody.
The judge then sentenced the Applicant in respect of the receiving charge to a fixed term of imprisonment of 10 months which had already expired at the date of its imposition. The sentence carried a non-parole period of 11 months imprisonment in respect of the break and enter with intent to commit a serious indictable offence in circumstances of aggravation charge commencing on 11 January 2012 and expiring on 10 December 2012.[44] Further, the judge ordered that he be released to parole on that date[45] and recommended that he receive educational and employment skill training and monitoring of associates by way of supervision, and participate in the Positive Lifestyle Program run by the Salvation Army. The effect of these orders was that the Applicant was released from custody 17 days after his sentencing.
[44] Exhibit G1, G Documents, G5 at page 69.
[45] Exhibit G1, G Documents, G5 at page 70.
At the conclusion of the sentencing, the following exchange occurred[46] between the judge and the Applicant:
[46] Exhibit G1, G Documents, G5 at pages 71-2.
His Honour: Now TGWR, do you understand that I have extended considerable leniency to you? [Tribunal’s emphasis].
Applicant: Yes
His Honour: Do you understand what I mean by that?
Applicant: Yes [Tribunal’s emphasis].
His Honour: So that the result of those orders will be that you will be released to parole on 10 December.
Now you haven’t got a good history with complying with what you’re supposed to do when you’re on parole, do you?
Applicant: No.
His Honour: No. You don’t have a good history. And so I’ve accepted though that you are now seeing that you have to recognise how important it is that you do cooperate with the Probation and Parole Service and do what they ask you to do, in particular as Mr Hutchinson has asked, that I made a recommendation that you participate in the Positive Lifestyle Program with the Salvation Army and that you participate in any counselling that they think you should have.
Now if you don’t, if that is a requirement, although I have only made it a recommendation, it is ultimately a matter for the Probation and Parole officer but whatever you’re asked to do if you don’t comply then the Parole Board will get a letter saying that you’re not complying with your parole and your parole probably will be revoked immediately and you’ll be back in custody. Do you understand that?
Applicant: Yes.
His Honour: And the other thing is you’ve just got to understand that these people you associate with, where you meet them through football or anywhere else. Some of them you said are now overseas.
Applicant: Correct.
His Honour: But anyone that you think is maybe going to lead you into trouble, first of all they can’t be your friend if they’re going to lead you into trouble. So you’ve just got to discard them. All right?
Applicant: Yes
His Honour: And make sure that you have people around you who are going to have positive influences on you rather than negative influences and lead you into criminal offending. And you now understand having been in an adult gaol for a year how serious the consequences are.
Applicant: Yes
His Honour: When you just blindly follow what others want you to do or become involved with. Well I hope you do understand that.
Notwithstanding the clear, cautioning language of the sentencing judge, on 7 February 2013, less than three months later, and about two months after being placed on parole, the Applicant was arrested and charged with possessing an unauthorised prohibited firearm. His parole was immediately revoked, and he again entered custody. Subsequently, on 24 May 2013, the Applicant appeared before the Sutherland Local Court charged with possessing an unauthorised prohibited firearm, and was sentenced to 10 months imprisonment.[47]
[47] Exhibit G1, G Documents, G3 pages at 32-33.
On 4 July 2016, the Applicant along with a co-offender engaged in several offences over a three-hour period. It was not until 15 March 2019 that the offenders were dealt with in the District Court of New South Wales in respect of what the sentencing judge described as a “significant number” of offences. The victims were a 51-year-old man, whom I shall refer to as AB, and his eight-year-old son whom I shall refer to as CD, who suffered from a number of medical conditions including autism[48].
[48] Exhibit G1, G Documents, G4 page at 35.
An outline of the circumstances of the offences is found in the judges sentencing remarks:[49]
[49] Exhibit G1, G Documents, G4 pages at 36-39.
At about 11 PM, AB heard a knock at his front door and he heard a voice saying, “AB, open the door, police.” AB partially opened the front door, and as he was asking for identification, the door was forced open by both offenders, both of whom were armed with screwdrivers, and they had with them a barbecue lighter. Their faces and heads were covered.…
Both offenders grabbed the victim, AB by the shoulder and forced him backwards, and in essence [the Applicant] took control of AB and pushed him backwards, and as he did this he was forcibly shaken, it would seem, by [the Applicant] and [his co-offender] shook the victim roughly from side to side, causing him to hit his head in the door frame. He was then thrown to the ground, and he was facing down towards the carpet, when there was a discussion where [the Applicant] said to him words to the effect that, “Do you remember the police raid in December?” And a conversation ensued about having a machine for the making of what is said to be fake ID (sic) (identification).
There was further discussions which showed a degree of familiarity between at least [the Applicant] and the adult victim. The password was demanded for the adult victim’s phone, which he gave. Further requests were made for the victim’s Apple iPad ID, and what is said to be an iCloud password. The wrong phone was given, and at that time it appears that [the Applicant] lost control of his self, and yelled an obscenity at the adult victim, and punched him to the head on approximately three occasions, blood coming from the victim’s mouth. The victim was kicked by [the co-offender] to the chest.
At that time, [the co-offender] passed a 5 Litre can of rice bran oil to [the Applicant], who poured the contents over the victim’s head. [The Applicant] then produced a barbecue lighter, and clicked it several times in front of the face, causing the flame to light at the end. A threat was made to light, if further information was not provided, and the lighter was placed closely to the victim’s leg, where he felt pain due to the heat. [Tribunal’s emphasis].There was discussion about an incident in 2015, where there may have been some involvement by the victim, but I am unable to say.…
Then the wallet was obtained, and there was $150 removed from the wallet by [the Applicant] and then credit cards were removed, and a demand was made for the PIN codes, with the threat of stabbing if they were not given. [Tribunal’s emphasis]. With that, the piece of paper with the codes was given to [the co-offender], and again with a discussion about whether the right or correct codes had been given, [the Applicant] became angry, and punched the victim to his face.
The younger victim had been in his bedroom, but then had come into the area where the assaults were taking place, and saw what was happening to his father. [The co-offender] took the boy to his bedroom, and apparently left the house shortly after, and the cards were used to obtain money from various ATM machines.… Later on further monies were obtained by [the co-offender]…
Count five was a robbery with an offensive weapon, where a demand was made for a valuable that had been stored by the adult victim. Further threats were made, and the victim complied with the demands for the items, the discussion being about gold bars, cash and jewellery, and apparently there were two Rolex watches that were taken. The younger victim observed this at this time, but once again it appears that [the Applicant] lost his temper and broke items including a telephone item, and other items that had been in a suitcase.…
[The co-offender] was arrested on 9 August 2016, and [the Applicant] was arrested on 26 September 2016. Both men have been in custody since their arrest dates.…
General principles that apply in this matter include, firstly, the totality of the criminal behaviour in undertaking it, and when the history of given, this is an ongoing and a serious matter, involving violence, threat and then execution against the adult victim, and in the presence of a young victim, who unfortunately has a number of issues which have resulted in his reaction being adversely affected greater than most.
The judge noted that there were two offences under section 86[50] of the Crimes Act 1900 (NSW) (the Crimes Act), and continued:
… one under S 86 (2) and one under 86 (3). Both matters are under the heading of kidnapping, and reflect the aggravation in both 2 and 3, 3 being greater because injury, that is at least actual bodily harm was occasioned. [Tribunal’s emphasis].
[50] Exhibit G1, G Documents, G4 at page 39. Note: There is a typographical error in the transcript which initially records the offences be as being under section 68 rather than 86.
The Tribunal notes that the penalties for offences under section 86(2) (offence committed in company) and (3) (in company and actual bodily harm to the victim) of the Crimes Act are a maximum of 20 and 25 years respectively.
In considering the Applicant’s antecedents, the judge observed:[51]
The offender’s criminal history commences, as I indicated, in his early teenage years, and it does involve some matters of seriousness. His antecedent history shows matters involving violence, such as an aggravated break and enter in company, common assault, what appears to be his first custodial matter which was perhaps a wounding, it is difficult to see, but nonetheless, he received on 17 May 2011 a period of custody under a control order at that time from the Children’s Court. There is an aggravated break and enter 2012, for which he received imprisonment of 22 months, of which there was 11 months of release in that time. It should be borne in mind that he was at that time, on my calculation, approximately 18 years. The last matter I believe to be possession of a firearm in the Sutherland Local Court in February 2013, for which he again received a period of custody.
[51] Exhibit G1, G Documents, G4 at page 41.
The Tribunal turns now to a consideration of the Conviction, Sentences and Appeals report from the New South Wales Department of Corrective Services dated 30 September 2019.[52] This report discloses that the Applicant has been dealt with on no less than 16 occasions for breaches of discipline whilst in custody.[53] There was an episode when he “king hit” a fellow inmate, and another when he threw boiling water over another. His misconduct in custody included intimidation, disobedience of directions, fighting, and assaults. He has also been dealt with for possessing item such as a mobile phone, Sim card and charger, and drugs and other prohibited goods. It is clear from this that the Applicant has repeatedly disregarded lawful authority whilst in custody.
[52] Exhibit G1, G Documents, G6 at pages 73 – 78.
[53] Exhibit G1, G Documents, G6 at pages 77-78.
Evidence of Witnesses
Evidence of TGWR
At the hearing, the Applicant expressed remorse in respect of his conduct, and blamed his immaturity at the time and the bad company he kept. He appeared understandably anxious about his future. Mr Ellison, representative for the Respondent, took the Applicant through a detailed exploration of his criminal history. The Applicant remained courteous throughout this, and substantially recollected details of individual offences when asked, although at times he disagreed with the correctness of judicial sentencing remarks, and maintained that he entered pleas of guilty at the insistence of his legal representatives.[54]
[54] Transcript at page 30, line 33, page 26, line 21.
The Applicant stated that he regards himself as an Australian, and he has not embraced his Maori ancestry and culture, and had not learned the haka or how to speak Maori, and would find life difficult were he forced to return to New Zealand.[55] He spoke of aspirations and hopes of marrying, and of pursuing his musical interests, and a possible career as a personal trainer, or electrician.[56]
[55] Ibid at page 106, line 32.
[56] Ibid at page 104, line 38.
The Applicant also spoke of witnessing the injuring of a close friend, and the support he gave to the friend’s mother.
The Applicant told the Tribunal that he has no children of his own, and that there are no children under the age of 18 years who would be impacted by this decision.
The applicant addressed the Tribunal, and spoke of physical, sexual and mental abuse he had suffered in his early teen years. He attended five schools in Australia and one in New Zealand. He was suspended from school a few times for fighting. The Applicant told the Tribunal that he had completed an online anger management course and has learned how to control his emotions and anger.
The Applicant stated that he accepted responsibility for his past conduct and that he would take it back “in a heartbeat”,[57] and that his thought processes had “matured rapidly”. He said that he has spent over four years incarcerated, and has tried unsuccessfully (through no fault of his own) to engage with psychologists.
[57] Ibid at page 8, line 24.
The Applicant emphasised that he was born in Australia, and has spent nearly all of his life in Australia, and it is where his family and friends are, and is all he has known.
The Applicant denied having resided in New Zealand for two years, and said that the longest he had spent in NZ was eight months or nine months.[58]
[58] Ibid at page 15, line 20.
Mr Ellison took the applicant to the G Documents pages 116-117, which were the New Zealand Customs Service Passenger Movements. The Applicant said that he had seen this before and that it accurately represented his trips to New Zealand as a child. These records showed that the Applicant arrived in New Zealand on 15 October 1999, and departed on 20 December 2000. The also showed a further arrival on 11 January 2001, and a departure on 24 December 2001. The Applicant said he had no reason to disagree with the accuracy of these records.
Mr Ellison referred the Tribunal to page 133 of the G documents which was the Applicant’s movement records in and out of Australia. These showed that he departed Australia on 15 October 1999, and returned on 20 December 2000. They showed a further departure on 11 January 2001 and an arrival on 24 December 2001.
When asked about the offences for which he was sentenced in 2012, the Applicant said that he did not recall committing the offence, and that he remained in a vehicle at Marrickville in November 2011.[59] At the time, the Applicant was 18 years old, and on parole and probation.[60] When it was put to him that he had pleaded guilty to break and enter a dwelling house with intent to commit an indictable offence, namely larceny (an offence which carried a maximum of 14 years imprisonment) he said that he did not know what the intentions were, as he was in a car. The applicant blamed his legal team for this, as they said just plead guilty, and he said that he got the wrong advice “just plead guilty, you’ll only get a couple of months”[61] from his legal team, and pleaded guilty on the basis of that legal advice.
[59] Ibid at page 20, line 24.
[60] Exhibit 1, G Documents, G5 at page 65.
[61] Ibid at page 21, line 9.
When asked if he knew that an Olympus camera and cash he had received were stolen, he said that he did not ask questions when he received the property and knew it was stolen. The Applicant was referred to the judge’s sentencing remarks at page 58 of the G Documents,[62] wherein the judge commented on a pre-sentence report dated 19 November 2012 which stated “… his response to supervision was deemed to be poor and his attitude and behaviour during an educational program he was participating in were described as immature.” The Applicant disagreed with this assessment of his conduct, but agreed with an observation by the judge at page 59 of the G Documents that he did not have a drug and alcohol problem at the time. He agreed with the judge’s record that “He told the Probation Officer that at the time he was associating with a negative peer group and he realises that he must be proactive in remedying the situation”.[63]
[62] Exhibit G1.
[63] Exhibit 1, G Documents, G5 at page 60.
The Applicant was asked about a passage from the judge’s remarks at page 61 of the G Documents, where the judge recorded, with reference to the report from Forensic Psychologist Anna Robilliard: “He said that he and his father are still in contact and that his father is supportive “but really disappointed in me.” The Applicant denied having referred to his father’s disappointment.
The Applicant was referred to, and accepted the judge’s sentencing remarks at page 64-5 of the G documents where his honour said “However, he has now since November of last year experienced custody in an adult gaol for the first time and he said and I accept his evidence, that he now has begun to see how serious the consequences of his actions can be.”
The Applicant was also referred to a passage from the judge’s sentencing remarks at page 68 of the G documents where the judge stated “Accordingly I have determined that this is an exceptional case where I should extend him some leniency to encourage his reform and rehabilitation.” Whilst the Applicant did not remember the judge saying those words, he did not disagree that the judge had said them.
The Applicant agreed that one month after the sentencing date, he was put on parole. The Applicant could not recall whether he participated in the Positive Life Style program conducted by the Salvation Army and attended such psychological counselling as they might be able to organise in accordance with the judge’s recommendation, but said that he must’ve gone because he would have been arrested if he did not.
The Applicant did not disagree that the judge had stated to him “do you understand that I have extended considerable leniency to you?” As recorded at page 71 of the G documents.
Mr Ellison raised with the Applicant the circumstance that three months after being admitted to parole, in December 2012, the Applicant had his parole revoked and was back in custody because he was found in possession of an unauthorised firearm which was in a car he was driving in February 2013, for which he was sentenced to imprisonment for ten months with a non-parole period of 7 months and 14 days. The Applicant told the Tribunal that the firearm was a hunting rifle, but that it was not his. He told the Tribunal did not know it was in the car, and to this day he does not know who owned it. He then said that it was borrowed from a mechanic unknown to him who was the friend of a friend. He said pleaded guilty because of the legal advice he received even though he did not know the gun was in the car. Under cross-examination, the Applicant ultimately agreed that he knew that the gun was in the car. He was then asked about his inconsistent evidence before the Tribunal. He said he thought that he was confused with another firearms charge, when he was charged with entering a building with a firearm.
When asked regarding two shop-lifting offences for which he was given bonds, the Applicant said that he stole a jacket because it was raining. He said that he was “immature at the time.”[64]
[64] Transcript at page 28, line 39.
The Tribunal notes that the Applicant spent no time in custody in 2014 and 2015. However, when he re-entered custody in September 2016 it was in respect of very serious offences which were committed a few months earlier in July 2016. The Applicant was not sentenced for these offences until 15 March 2019. Extracts of the judge’s sentencing remarks are set out at paragraph 56 of these reasons. The Tribunal notes that the Applicant has been deprived of his liberty since September 2016, as he placed in immigration detention when he became eligible for parole in February this year.
The Applicant disagreed with the judge’s sentencing remarks in a number of respects. He did not dispute the manner of entry, namely that he and his accomplice gained entry to premises with their faces covered by initially calling out to the occupant to open up as they were police, and then forcing the door open when the occupant partially opened it seeking identification. The Applicant did not dispute that they were each armed with screw drivers with blades which he said were about 4 or 5 centimetres long. He initially admitted, then denied having a BBQ lighter with him when he entered the premises but said that he located a lighter there. He disagreed that the victim hit his head against a door frame as per the judge’s remarks, notwithstanding that the judge’s remarks were based on agreed facts to which he had agreed.
When challenged as to his departure from the agreed facts relied upon by the judge, the Applicant again blamed his lawyer. He told the Tribunal that he agreed with the facts at the time because his lawyer said he could not represent him unless he agreed on those facts, and he feared that he would face another year in custody if his lawyer withdrew.
The Applicant nevertheless agreed that he picked up a jet-lighter clicked it several times, and after pouring 5 litres of rice bran oil over the victim’s head, threatened to set the victim on fire. He did not recall holding the flame near the victim’s leg as was recorded in the judge’s remarks, although he did recall making the threat to set the victim on fire. He said that they did not take the oil to the premises.
The Applicant agreed that there had been a conversation with the victim regarding a police raid in December. He told the Tribunal that the victim had been creating fake IDs, and that he went there to collect money for a female friend. The Applicant had previously given the victim money which she had advanced to fund the victim’s gambling addiction. The Applicant said that he and his associate took $5,000 in cash and bullion gold from the victim.[65] He denied receiving any money for his efforts, and said that he was just being helpful to his female friend with whom he was staying.
[65] Ibid at page 34, line 31.
The Applicant agreed that he had demanded the password to the victim’s phone, iPad ID, and iCloud, and that when the wrong phone was given, he had punched him three times. He then poured rice bran oil on the victim’s head, produced a jet-lighter clicked it several times. The Applicant did not recall holding flame near victim’s leg, but recalled threatening to set him on fire.
The Applicant said that he took $5,000 from the victim’s wallet as well as his credit cards and demanded his pin codes and threatened to stab him if he didn’t provide them. He also admitted that he became angry and punched the victim in the face, and that the victim’s son had come out of the bedroom. The Applicant agreed that he used the victim’s cards to take money from ATMs and to buy things from stores. He denied taking Rolex watches.
The Applicant agreed that he told the sentencing judge in 2012 that he could see the serious consequences of his offending, and that he was under the influence of drugs and continuing hanging around with the wrong crowd in 2016. He said that this was around the time that his friend passed away and that his judgment was impaired.
The Applicant said that it remains his hope to pursue his music, and become an electrician, and a personal trainer. He also agreed that he had been using the drug ice, and that he had an underlying personality of anger which needs treatment.
The Applicant told the Tribunal that he had been released from custody into immigration detention in February 2020, and had not been at liberty since September 2016.
Mr Ellison also asked the Applicant about his behaviour whilst in custody or detention. He was referred to pages headed NSW Department of Corrective Services Convictions, Sentences and Appeals.[66]
[66] Exhibit G1, G Documents, G6 at page 77 – 78.
The Applicant was referred to an offence of Intimidation which occurred 9 November 2013.[67] The Applicant said that he recalled the incident but when asked to recount it could not. He said that he received two days confined to cells and was only allowed out for one hour per day.
[67] Exhibit G1, G Documents, G6 at page 78.
The Applicant was referred to a further offence of Intimidation which occurred on 8 June 2017,[68] and for which he received 56 days off phone calls, but could not remember the details. He was also referred to an offence of Disobeyed Direction said that it arose from an argument with one of the officers, when he disobeyed the direction of an officer, in consequence was not allowed buy ups of personal items for 56 days. The Applicant was them referred to a Misconduct Report at page 82 of Exhibit R2, the Respondent’s Tender Bundle in respect of the episode of 8 June 2017. It was said that he had stated, with reference to a female Senior Correctional Officer then present “I don’t give a [expletive deleted] what that slut said”. The Applicant said that he did not remember saying the words attributed to him, but did remember the incident. He then said he thought he definitely didn’t say that, and he had called her a bitch.
[68] Exhibit G1, G Documents, G6 at page 77.
The Applicant was then referred to an incident reported dated 19 October 2017.[69] The report states in part:
CCTV clearly shows [the Applicant] throwing Boiling Water [Tribunal’s emphasis] through the fence onto the upper torso/facial areas of [victim] with [victim] sustaining a minor burn to the left side of his face in what was an unprovoked attack on [victim]. [Applicant] has shown no remorse after the unprovoked attack on [victim].… [Applicant] has prior violent offences whilst committed in custody that being, assault, intimidation and disobey direction.… [Applicant] has an issue with correctional centre routine and following staff direction.… Due to the extensive breaches of Institutional Behaviour by [Applicant] via way of assault and intimidation,…
[69] Exhibit R2, Respondent’s Tender Bundle at page 91.
In commenting on this episode, the Applicant confirmed that he had thrown boiling water over the other person, because that person had thrown hot water at him in a cup, and he had retaliated. When asked why he had not simply reported the incident, he said that he would have been stabbed had he done so. He also said “it’s not the officers that actually run the gaol …. the inmates pretty much have their own rules.”[70]
[70] Transcript at page 39, lines 32-37.
The Applicant was also referred to a Misconduct Report of an incident on 6 November 2017 when he was found in possession of bupe, a substance used to treat withdrawal from heroin. The Applicant said the substance was traded in custody.[71] The Applicant did not deny anything contained in the report.
[71] Exhibit R2, Respondent’s Tender Bundle at page 90.
The Applicant was also referred to an episode reported at page 40 of the Respondent’s Tender Bundle[72] in respect of an incident at Long Bay Hospital recorded as having happened on 23 January 2018 when the Applicant was seen to be throwing punches at another inmate. Whilst the Applicant did not initially recall the incident, upon reflection he said that the fight arose because it only two of six allocated telephones were working, and it was the turn of the Applicant.
[72] Exhibit R2, Respondent’s Tender Bundle.
The Applicant was also referred to page 88 of the Respondent’s Tender Bundle, an Inmate misconduct report of an episode at Long Nay (sic) Hospital where the Applicant was found in possession of 10 unknown tablets. The Applicant did not deny this episode.
The Applicant was also referred to Page 87 of the Respondent’s Tender Bundle an Inmate misconduct report dated 18 August 2018 of an episode at Long Bay Hospital where the Applicant was again involved in a fight with another prisoner. The Applicant recalled the incident, which was also over the use of the phone.
The Applicant was also referred to Page 76 of the Respondent’s Tender Bundle which was a report to the Governor of Long Bay Hospital from the Acting Senior Assistant Superintendent reporting an incident which occurred at approximately 9:46 AM on 1 December 2019 where the Applicant was involved in a group assault upon an inmate. It was stated:
[the Applicant] walks behind the victim and “king hits” him causing him to fall to the ground unconscious, [the Applicant] kicks the victim in the head then stomps on the victim’s head and stomach.
This is a vicious assault with the victim unaware it was about to happen therefore unable to defend and protect himself.
As per OIMS [the Applicant] has an extremely poor history of Offences committed in Custody with blatant disregard for Correctional Centre Routine and Correctional Centre Discipline.
It is therefore recommended that [the Applicant] be placed on an initial 14 day Segregation Order. [Tribunal’s emphasis].
The Applicant did not deny the incident, and said that at the time he had just had shoulder surgery. He had heard a rumour that the victim “was going to try to take me out”,[73] and that the victim had just asked someone for a knife. When asked by the Tribunal what he meant by “take me out” the Applicant said that he thought the victim was going to try to kill him, and he had made a pre-emptive strike “before my life ends”.[74] The motivation of the victim, according to the Applicant, was that the Applicant had been associating with someone the victim did not like.
[73] Transcript at page 42, line 18.
[74] Ibid at page 42, line 39.
The Applicant was also referred to a further incident which occurred on 29 April 2020,[75] where the Applicant was dealt with for having thrown a contraband item which consisted of a double a battery and an orange bupe strip over a fence. The Applicant was alleged to have thrown the item over a fence. At the time, the Applicant told officers that he did not know what it was that he had thrown over the fence, and he adhered to this stance before the Tribunal. He said that a fellow detainee had asked him to throw it.
[75] Exhibit R2, Respondent’s Tender Bundle at page 130.
The Applicant was also referred to a further Incident Detail Report[76] in respect of an incident which occurred on 25 June 2020, and involved a tennis ball sized package containing a “white powder-like substance inside a plastic wrapping roughly 1x1x1 cm in size”. Before the Tribunal, the Applicant denied knowledge of any white powder, and said that he only knew about a sim card.
[76] Ibid at page 137.
In describing his family life, the Applicant stressed that he was born in Australia. Both parents and one sister live in Australia, and he had another sister, but he was uncertain if she was in Europe or New Zealand. He said that his mother and her partner live in Australia. His father does not have a current partner. He has uncles, aunts and cousins in Australia. Has said that whilst he has family in New Zealand, he would not know who they are. In terms of extended family, he referred to his grandmother as his Nan, and said that he has uncles Jamie and Nelson, and his mother’s sister Katie. Neither he, nor his younger sisters have children.
The Applicant said that he lived with his Nan in New Zealand for approximately two years. His mother’s partner has his own daughter who is older than he is. When he was a child, there was a family friend living with them who had sexually abused his mother’s partner’s daughter so he was sent to New Zealand at the age of seven. He said that the last time he went to New Zealand was around 2003.[77]
[77] Transcript at page 46, line 45.
In terms of his past employment, the Applicant said that in 2014 he attended TAFE doing airbrushing and painting and worked doing furniture removing. He was then incarcerated, and after that did bar tending, electrical work, and also worked as a receptionist.
The Applicant said that if he is permitted to remain in Australia, his future occupational plans are in the fields of personal training, music, and working as an electrician. He said that he had had an issue with his shoulder which was dislocated a few times playing football, but after having surgery, it is good now, and would not prevent him doing any of his proposed career paths. He reported no other health problems.
The Applicant told the Tribunal, that in the event that he is released back into the community, he has set goals which he never used to do. He said that he has lost too much of his life to time in gaol. He said that he wants to get married and have children and he does not have time to spend in gaol. He said that he has changed “heaps”.[78] He indicated a preparedness to seek psychological help to prevent him from re-offending. He said that his thought processes have changed, and that he intends to have good company around him, people who will help him better himself. The Applicant said that he is presently on parole, and will be until next year or the year after. He indicated a preparedness to undertake courses whilst on parole if he is released, and added that his conditions would require him to undertake programmes and be under supervision. A lawyer friend planned to refer him to psychological support. The Tribunal notes that the lawyer friend had provided a statement to the Tribunal but when telephone for the purpose of giving evidence, declined to do so.[79]
[78] Ibid at page 48, line 34.
[79] Ibid at page 83, line 7.
The Tribunal was referred to a Pre-release report dated 13 February 2020[80] and various observations contained in it. Under the heading Attitudes the following paragraphs appear:
While [the Applicant] did not present with issues in relation to generally managing his stress and anger, he verbalised an acceptance of violence as a method of managing situations or difficulties. [Tribunal emphasis]
[The Applicant] saw the financial benefits to his offending and said he believed he was helping his friend. He struggled to identify how he may avoid situations in the future that involved illegal activity. [Tribunal emphasis].
[80] Exhibit R2, Respondent’s Tender Bundle at pages 93–99.
The Tribunal was also referred to the following paragraph which appears[81] under the heading Other programs:
[The Applicant] has engaged with psychological services intermittently since entering custody with the last occasion being related to a self-harm attempt in December 2020; where he admitted to swallowing a razor blade to avoid an escort as he was expecting a visit.
[81] Exhibit R2, Respondent’s Tender Bundle at page 96.
The Tribunal was also referred to the following entries which appear[82] under the heading key reasons against release:
·[The Applicant] has not completed any offence-targeted programs since entering custody.
·[The Applicant] has a poor behavioural record in custody.
·[The Applicant] has not progressed his classification to an adequate level.
[82] Exhibit R2, Respondent’s Tender Bundle at page 98.
The Tribunal’s attention was also drawn to the following which appears on the same page under the heading Overall assessment:
[The Applicant] has not had the opportunity to complete an offence-targeted program in custody. He has generally failed to manage his behaviour or take advantage of employment opportunities until recently.
[The Applicant] presents with ingrained antisocial attitudes and a concerning acceptance of violence. [Tribunal’s emphasis]
The Applicant told the Tribunal that this assessment was incorrect, and that he did not accept it.
The Applicant said that the Department did not facilitate any offence targeted programs for him.
The Applicant said that he engaged in violence whilst in custody because he “had to protect” himself. The Applicant was asked in cross examination if he still has a problem with anger, and answered “yes, of course”.
The Applicant said that he has completed an anger management course and another dealing with stress. He added that because of Covid-19 it has been hard for him to find the right help. He said that the anger management course was an online computer course comprised of multiple choice questions and answers, and he took it because he could not personally engage with professionals. The course took him four or five hours over two to three days.
In sentencing remarks, made on 23 November 2012 in the District Court of New South Wales, Judge Marien SC stated:[110]
Break and enter and steal and breaking into premises with an intent to steal or to commit a serious indictable offence has long been regarded as a serious crime by the legislature particularly because it is an invasion of the privacy of victims and also because of the prevalent nature of the offence.
[110] Exhibit G1, G Documents, G5 at page 58.
As can be seen above, and in the remarks earlier quoted, the judge was at pains to explain to the Applicant the seriousness of his conduct, and how leniently he had been treated. The judge described the Applicant as being “at the crossroads”, however the Applicant has moved well past that point. Whilst at liberty he has taken no significant or successful steps to resolve his anger issues, or otherwise reform his conduct.
The Applicant has committed criminal acts involving firearms, theft, violence, and fraud.
In evidence before the Tribunal, the Applicant stated that he had taken steps to curb his acknowledged anger issues. Some relevant extracts from the transcript follow:
Applicant: Whilst in custody, I requested to take part in a number of programs, but being in a remanded gaol - in remanded gaol, programs were not facilitated. Whilst being - yes, were not facilitated. Whilst being in detention I’ve completed an anger management course and dealing with stress certificate. Whilst in custody I learnt how to control my emotions and anger. I learnt how to let things go and from the start of my incarceration towards the end there was a big change.[111]
…
Mr Eillson: And page 42, fourth line from the bottom, notes you have an underlying personality of anger. Do you agree with that assessment?
Applicant: Personality of anger. Yes.[112]
Mr Ellison: Now, I wonder whether you might tell the tribunal if you were released how are you going to refrain from offending - what are your plans for rehabilitation - how would this time be different from the last time when you were released into the community?
Applicant: Obviously I’ve set goals for what I want, which I never used to do. What I learned in gaol and what - and I’ve spent too much of my life in gaol - spent too much of my life in gaol and I’ve - like lost - lost too much from spending too much time in gaol, like - like losing friends, loved ones, from passing away. Like the goals I’ve set out, like obviously I want to get married, I want to have kids, I’m nearly 30 years old and like I don’t have time to [expletive deleted] - sorry for my language - but I don’t have time to be spending time in gaol, which I never used to think about back then - like I was immature back then and I’m matured like so much - like I’m sure it is - like rapidly. Obviously I want to - I’ve already started in here with - by doing anger management and like trying to control my stress. Like the judge said when he sentenced me that he’d - part of my parole conditions would be to engage in like psychological like health and like programs and to obviously the reoffending, like I said, I’ve got no time for doing that, it’s - yeah. I’ve lost too much time in gaol.[113]
…
Mr Ellison: Do you think you still have a problem with anger?
Applicant: Yes, of course. That’s why I try to do - whilst I’ve been here I’ve been trying to do these, like, better myself.[114]
[111] Transcript at page 10, lines 10-15.
[112] Transcript at page 36, lines 25-28.
[113] Transcript at page 48, lines 14-30.
[114] Transcript at page 53, lines 42-45.
The Tribunal does not give credence to the Applicant’s assertion that his conduct is based on past immaturity. His recent violent conduct whilst in custody suggests that the root cause of his problems persist, and he has had years at liberty to seek to address them and has not.
The Applicant’s “other conduct to date” as discussed above in relation to paragraph 13.1.1(1) of the Direction, includes conduct in custody which is a major cause for concern. He has thrown boiling water on the face and torso of one fellow inmate, and “king hit” another, causing him to fall to the ground unconscious, whereupon the Applicant kicked the victim in the head, and stomped on his head and stomach. Of great concern to the Tribunal is that this incident occurred at a time when the Applicant was under lawful supervision in custody, his visa had already been cancelled, and he was awaiting a response to his request for the revocation of the decision to cancel his visa. An official report in respect of the episode quoted above bears repeating:
This is a vicious assault with the victim unaware it was about to happen therefore unable to defend and protect himself.
As per OIMS [the Applicant] has an extremely poor history of Offences committed in Custody with blatant disregard for Correctional Centre Routine and Correctional Centre Discipline.
Unfortunately, too often the media in Australia carry reports of death or serious injury resulting from single “king hit” assaults. Were this episode confined to the one strike which resulted in the victim rendered unconscious, it would still be sufficient for this Tribunal to regard it very seriously. However the assault was exacerbated by a kick to the head of the already unconscious victim, and further exacerbated by a kick to his stomach. As has been noted, all of this occurred at a time when the Applicant was in custody, and expected to behave accordingly. Not only this, he was awaiting what he no doubt hoped would be the favourable consideration of a request to revoke the cancellation of his visa. If ever there was a time when the Applicant might have been expected to exercise maximum self-discipline and restraint in his own interests, this was it. This assault could well have resulted in the death or serious injury of the victim.
The Respondent has submitted,[115] and the Tribunal accepts, that the Applicant’s conduct has been persistently violent. In particular, the Applicant’s conduct in relation to the 2016 offence was vicious and life threatening. The victim was punched and terrorised in the privacy of his place of residence, a place he was entitled to feel safe and secure. The combination of flame and flammable liquid in angry hands could well have resulted in very serious personal injury or death to the victim. Were a similar situation to arise again the results could easily be extremely serious. The same can be said for the episodes of violence in custody.
[115] Exhibit R1, Respondent’s Statement of Facts, Issues and Contentions at paragraph 38.
It is clear from the above that the nature of the harm which would arise if the Applicant engaged in other conduct similar to that in the past includes:
(a)with respect to crimes of violence, the Applicant may cause physical harm to other members of the community, and to other prisoners; and
(b)with respect to property based offences such as theft, the Applicant may cause loss of property and related harm.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending 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. On the basis of this paragraph 6.3(4), the Tribunal considers that the risk of similar conduct is unacceptable.
The Applicant has demonstrated over his lengthy, and serious criminal history that he is a danger to society. He is strongly built and very short tempered. He has on two occasions engaged in extremely violent conduct. Had the rice bran oil ignited it could easily have resulted in very serious injury and possibly death. Likewise, the king hit followed by a kick and stomps to the head and stomach of his victim could very easily have resulted in long term injury, or death. This last mentioned episode occurred about twelve months ago, and leads the Tribunal to conclude that the Applicant has not changed his ways in the manner he claims.
The Applicant appears to have had a relatively short period of gainful employment. In his Personal Circumstances Form[116] the Applicant described having worked bartending for the period 2013 to 2014, and as an “electrician tradie” from 2014 to 2015. His also expressed an interest in music, and a future career as a personal trainer or an electrician.
[116] Exhibit G1, G Documents, G8 at pages 90 – 104.
The Tribunal considers that were he to reoffend, the Applicant’s conduct could seriously impact the privacy, property, and physical safety and emotional well-being not only of members of the Australian community who are at liberty, but also those with whom he might be in custody.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Respondent made submissions on this point at paragraph 44 et seq of Exhibit R1, which the Tribunal sets out for convenience:
44. For the following 7 reasons, the Minister submits that the applicant is at least at a medium risk of reoffending.
44.1 First, in a report dated 24 July 2018, Ms Godbee (a Forensic Psychologist) found that (RTB 110):
44.1.1 The applicant is of low average cognitive functioning, but with no indication of intellectual impairment.
44.1.1 (sic) Given his history of repeated violence and other offending, it is considered that TGWR will need to engage in treatment to help him identify and manage triggers for his violence and other antisocial behaviours.
44.1.2 Applying a Level of Service/Case Management Inventory (LS/CMI) test, the applicant was in a “High” risk range.
44.2 Second, in a pre-release report prepared by the NSW Department of Corrective Services and dated 13 February 2020, the applicant was assessed at a medium risk of reoffending under the LSI-R (RTB 93). That report noted that:
“TGWR has displayed numerous instances of poor behaviour, incurring 11 offences since entering custody in relation to violence, possession of drugs and non-compliance with directions. TGWR failed to explain the offences beyond an admission of guilt and dismissed suggestions he has not adequately complied with Correctional Centre routine.
…
Overall assessment
TGWR has not had the opportunity to complete an offence-targeted program in custody. He has generally failed to manage his behaviour or take advantage of employment opportunities until recently.
TGWR presents with ingrained anti-social attitudes and a concerning acceptance of violence.”
…
44.3 Third, the sentencing judge accepted that the applicant’s use of ice may have had some causal effect on his most recent offending (GD 42). In an interview on 22 January 2020, the applicant claimed that he committed the offences because his friends who used illicit substances offered him some ‘help’ (RTB 70). The applicant appears to have continued to use (or at least possess) substances in custody, and has not undertaken any drug and alcohol treatment.
44.4 Fourth, the applicant’s offending is reasonably recent, and his conduct in custody very recent.
44.5 Fifth, the volume of offences and serious conduct is indicative of likely future offending.
44.6 Sixth, the sentencing judge in 2019 found that there was an ‘essential’ need for the applicant to rehabilitate (GD 42) but there is limited evidence of this occurring. A pre-release report prepared by the NSW Department of Corrective Services and dated 13 February 2020 states that the applicant has not completed any programs (as he was not eligible or able to participate in them while in custody), but that he has intermittently engaged with psychological services (RTB 96 and 98).
44.7 Seventh, the applicant has had a number of opportunities in the community while the subject of bonds and under parole, but has continued to offend. The sentencing remarks of Judge Marien SC describe parole reports which say the applicant’s “response to supervision was deemed to be poor and his attitude and behaviour during an educational program he was participating in were described as immature” (GD 58). The applicant was released on parole shortly after being sentenced by Judge Marien SC in 2012 and despite acknowledging the importance of complying with his parole conditions (GD 71 to 72) he nevertheless breached those conditions and returned to custody some 2 months later (GD 76).
44.8 The failure to comply with supervision was also noted in the pre-release report prepared by the NSW Department of Corrective Services and dated 13 February 2020. It said that (RTB 96):
“Response to supervision
TGWR has been subject to supervision in relation to a Children’s Court order and two periods for parole supervision in 2011 and 2013.
TGWR made little progress during these periods. While he demonstrated some engagement with interventions, he committed new offences on each occasion he was subject to supervision.”
45. The Tribunal should therefore conclude that the applicant is at least at a medium risk of reoffending, in line with the consistent expert evidence.
46. Given the seriousness of his conduct and the harm which would occur if it were repeated, such a risk is unacceptable. This consideration should weigh overwhelmingly against making a decision to revoke the cancellation of the applicant’s visa.
The Applicant has expressed hope that he can reform himself, however, in view of his past conduct, the Tribunal gives this little credence. The Applicant has had the support of family and friends available to him in the past, but this has not stopped him from committing very serious offences. The Applicant has had many years and opportunities to rehabilitate himself but has failed to do so in the past, and there appears to be little reason to believe that he is capable of doing so in the future.
The Tribunal generally accepts the submissions of the Respondent, and considers that that there is at least a medium level likelihood that this Applicant will engage in further criminal or other serious conduct should he be permitted to re-join the Australian community, and this must weigh very heavily against the Applicant.
Conclusion: Primary Consideration A
The Applicant’s offending and sentencing history clearly demonstrates that he has had many opportunities to modify and ameliorate his conduct. The courts have been patient with him in giving him the benefit of a graduated sentencing regime. His pattern of violent behaviour suggests that further periods of incarceration await him unless he himself takes steps which he has thus far failed to take.
The Tribunal has had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and has also had regard to subparagraph 6.3(3) of the Direction. The Tribunal finds that the nature of the Applicant’s offending conduct is very serious, and that there is at least a medium level likelihood that he will engage in further very serious conduct if returned to the Australian community.
Having considered the entirety of the evidence and each of the relevant factors contained in the Direction, the Tribunal finds that Primary Consideration A weighs extremely heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether cancellation is or is not in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to cancel the subject visa is expected to be made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
It is first necessary to identify the children actually or possible relevant to this proceeding.
The Applicant is not the father to any children, and told the Tribunal at hearing that there are no minor children who will be affected by the cancellation of his visa.[117]
[117] Transcript at page 2, lines 41-44.
Accordingly, the Tribunal gives no weight to Primary Consideration B.
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1)[118] of the Direction provides that the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. The Tribunal must also have regard to (1) the Government’s views in this respect and (2) any overarching principles and guidance provided by the Direction.[119] Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he/she should not hold a visa.
[118] The terms of paragraph 13.3(1) of the new Direction 79 are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
[119] See the Direction, paragraphs 6.2(1) and 6.3(1)-(7).
The Evolution of the Australian Community’s “Expectations”
In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, 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.”[120]
[120] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[121]
102. …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 non-citizens 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 character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa… [Tribunal’s underlining]
[121] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[122]
In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes. [Tribunal’s underlining]
[122] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] we do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do… [Tribunal’s underlining]
In Afu v Minister for Home Affairs (“Afu”),[123] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did. [Tribunal’s underlining]
[123] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[124] Justice Perry observed that:
It follows, in line with the authorities, that cl 11.3 of Direction 65[125] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...[126] [Tribunal’s underlining]
[124] [2019] FCA 500.
[125] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[126] FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[127]
[127] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as a provable fact. Rather, it is an assessment of community values made on behalf of that community.[128]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[129]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made; and[130]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[131]
[128] Afu at paragraph [85].
[129] FYBR at paragraph [42].
[130] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[131] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
In weighing this consideration, there is no escaping the clear unequivocal language of the very simple proposition found in paragraph 13.3 (1) of the Direction. It is in these words. “The Australian community expects non-citizens to obey Australian laws while in Australia.” The language could not be clearer. Neither could the Applicant’s failure to meet this expectation.
The Applicant in this case has failed to take any practical notice of the very clear and constructive judicial advice that he received in 2012, and which he acknowledged as having understood at the time. He has shown a wanton disregard for the property and physical safety of others on numerous occasions. His conduct whilst in custody speaks loudly, but not favourably of his respect for authority. He has been sentenced to significant terms of imprisonment. He has made limited positive contribution of consequence to the Australian community.
Not only has this Applicant breached his obligation to obey Australian law, there is an unacceptable risk that he will do so again given the opportunity. The Tribunal believes the Australian community would strongly expect that this Applicant should not hold a visa.
Conclusion: Primary Consideration C
The Tribunal accordingly finds that this Primary Consideration C is to be given heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to New Zealand. None of the evidence suggests a risk of harm were that to occur. This consideration is not relevant to determination of this application.
(b) Strength, nature and duration of ties
The Tribunal accepts that this Applicant was born in Australia, and has lived here for all but approximately two years of his life. The Tribunal accepts that all of the applicant’s friends and close family reside in Australia. Moreover, the Tribunal accepts the evidence (other than the statement from the witness who declined to make an affirmation) of all of the witnesses on behalf of the Applicant. It is clear, that the Applicant has a large group of friends and close relatives who think very highly of him. The Applicant’s mother gave evidence which was described by Mr Ellison as “compelling”, a description with which this Tribunal concurs. It is clear that the Applicant has what are effectively strong lifelong ties to Australia.
It is also clear that the Applicant did not commence offending until he was about 15 years of age, and this therefore does not lessen the weight which should be given to this Other Consideration in accordance with paragraph 14.2 (1)(a)(i) of Direction 79. The Applicant has spent a couple of years contributing positively to the Australian community, and the Tribunal does give this some weight in his favour paragraph 14.2 (1)(a)(ii) of Direction 79.
In having regard for this consideration, the Tribunal has had regard for the principles at paragraph 6.3 of the Direction, and in particular at subparagraph (5) where it is stated “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.” The Tribunal accepts that the Applicant was born in Australia and has now resided in Australia for over 25 years, and that all of his close friends and relatives are in Australia. The Tribunal also accepts that should the Applicant’s visa remain cancelled this will impact on all of these people to some degree. The Tribunal accepts that the Applicant has had very limited periods of employment in Australia.
The Tribunal gives this consideration limited weight in favour of revocation.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that the cancellation of the Applicant’s visa would have an impact on Australian business interests, or would significantly compromise the delivery of a major project, or delivery of an important service in Australia. The Tribunal therefore finds that this consideration is not relevant to determination of this application, and give it neutral weight.
(d) Impact on victims
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims, and the Tribunal therefore makes no finding in relation to this consideration, and gives it neutral weight.
(e) Extent of impediments if removed
The Tribunal accepts that all of the Applicant’s friends and close relatives reside in Australia, and that to the extent that he does have relatives in New Zealand, he is only close to his grandmother whom he refers to as Nan. The Applicant states that he has not embraced the Maori culture of his ancestors and relatives, does not speak Maori, and has never learned to do the Haka.
The Applicant’s mother said that the Applicant’s grandmother is in her late sixties, and still working, and is already having to cope with caring for her sister, the aunt of the Applicant who suffers from schizophrenia and PTSD. The Tribunal accepts the evidence of the Applicant, and his mother in relation to family circumstances in New Zealand.
The Tribunal accepts that there will be a degree of social adjustment required on the part of the Applicant if he is to be relocated to New Zealand, and that he will have no particular family or social network. However the Tribunal notes that the Applicant appears to be an able-bodied young man in good health, and there is no reason to believe that he ought not to be able to live harmoniously in New Zealand as he is fluent in the English language, and should have no difficulty finding work if he seeks it. In the same vein, if the Applicant chooses to show the side of himself which he has shown to those who gave such glowing evidence on his behalf, he should be able to establish a new and positive network quickly.
The Tribunal also notes that the Applicant has stated that his poor choice of associates has contributed to his past wrongdoings. In this regard, it may well be doing him a favour to remove him from the sphere of influence of those people, and give him an enhanced opportunity to turn his life around unimpeded by bad influences.
The Tribunal accepts the evidence of the Applicant and his mother that whilst he does have some blood relatives in New Zealand, he has had practically nothing to do with most of them, and will be to a significant degree without the support of family or friends should he relocate to New Zealand. The Tribunal also accepts that it will be upsetting for the Applicant and his family should he not be able to return to Australia. However, there is no evidence before the Tribunal of any impediment to the travel by any member of the Applicant’s family, or any of his friends to New Zealand once the Covid-19 restrictions are lifted. The Tribunal considers it likely that any of his family or friends who wish to travel to visit him there should be able to do so in the not-too-distant future.
The Tribunal accepts that the Applicant, who is presently 27 years of age, was born in Australia and has lived here all his life other than for a period of about two years which he spent in New Zealand with his Nan. The Tribunal also notes that New Zealand has a very good health system, and he would be able to receive any psychotherapy or other treatment which he might have recommended, as well as medication there which would be comparable to what he might expect to receive in Australia.
Whilst there may be some language and cultural barriers to the Applicant’s potential assimilation into Maori society in New Zealand, the Tribunal considers that these would likely resolve with time. The Tribunal also notes that New Zealand is a developed country, with a strong social welfare system which could assist him to get back on his feet. In any event, the Tribunal does not consider these issues to present any serious impairment to the Applicant’s ability to establish himself and maintain basic living standards in New Zealand.
Overall the Tribunal views this consideration as being of slight weight in favour of revocation.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which each weighing heavily in favour of non‑revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: limited weight in favour of revocation;
·impact on Australian business interests: neutral;
·impact on victims: neutral; and
·extent of impediments if removed: slight weight in favour of revocation.
CONCLUSION
The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.
In considering whether there is another reason to exercise the discretion afforded by section 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal finds as follows:
·Primary Consideration A weighs extremely heavily in favour of non-revocation;
·Primary Consideration B carries no weight;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
·Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
·Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
256. I certify that the preceding 255 (two hundred and fifty five) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire
.................................[SGD].......................................
Associate
Dated: 16 December 2020
Date(s) of hearing: 30 November 2020 and 1 December 2020 Date final submissions received: 25 November 2020 Applicant: Via Microsoft Teams Solicitors for the Respondent: Mr T Ellison, Australian Government Solicitor ANNEXURE A
EXHIBIT No DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED G1 Section 501 G-Documents (G1 to G21 pages 1 to 188) R - 20 OCT 20 A1 Statement of Witness A1 A 5 NOV 20 25 NOV 20 A2 Statement of Witness A2 A 9 NOV 20 25 NOV 20 A3 Statement of Witness A3 A - 23 NOV 20 A4 Statement of Witness A4 A - 23 NOV 20 A5 Statement of Witness A5 A - 10 NOV 20 A6 Statement of Witness A6 A 9 NOV 20 10 NOV 20 A7 Statement of Witness A7 A - 10 NOV 20 A8 Statement of Witness A8 A - 10 NOV 20 A9 Statement of Witness A9 A 6 NOV 20 10 NOV 20 A10 Statement of Witness A10 A 6 NOV 20 10 NOV 20 A11 Statement of Witness A11 A - 10 NOV 20 A12 Statement of Witness A12 A 9 NOV 20 10 NOV 20 A13 Statement of Witness A13 A 5 NOV 20 10 NOV 20 A14 Statement of Witness A14 A 4 NOV 20 10 NOV 20 R1 Respondent’s Statement of Facts, Issues and Contentions R 16 NOV 20 16 NOV 20 R2 Respondent’s Tender Bundle (R1 – R24, 152 pages) R - 30 OCT 20 R3 Individual Management Plan Records (70 pages) R 25 NOV 20
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