Tuaoi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3980
•9 October 2020
Tuaoi and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3980 (9 October 2020)
Division:GENERAL DIVISION
File Number:2020/4416
Re:Tanielu Tuaoi
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Rebecca Bellamy
Date:9 October 2020
Place:Brisbane
The decision under review is affirmed.
...............................[SGD]......................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) Visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction Number 79 – decision under review affirmed.
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
9 October 2020
THE ISSUE BEFORE THE TRIBUNAL
The Applicant is a 43-year-old citizen of New Zealand who relocated to Australia in 2014 when he was 37 years old.
On 3 April 2019 a delegate of the Minister (‘the Respondent’) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) (‘visa’) under s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’) on the basis that he did not pass the character test and he was serving a full-time custodial sentence.[1] On 20 April 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (‘revocation request’).[2] On 8 July 2020 the Respondent decided not to revoke the cancellation.[3]
[1] Exhibit G1, G Documents, G2, pages 79 to 85.
[2] Ibid, pages 52 to 55.
[3] Ibid, page 10.
The Applicant subsequently lodged an application for review in this Tribunal on 22 July 2020. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 28 September 2020. The Applicant gave evidence by video conference. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked ‘Annexure A’.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[4]
‘…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…’[5]
[4] [2018] FCAFC 151.
[5] 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.[6]
[6] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have ‘a substantial criminal record’. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have ‘been sentenced to a term of imprisonment of 12 months or more’.
The Applicant has been sentenced to a term of imprisonment of two years and eight months with a conditional non-parole period of one year and eight months. Accordingly, there is no doubt that the Applicant has a ‘substantial criminal record’ and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (‘the Direction’) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction[7] contains several principles that must inform a decision-maker’s application of the considerations in paragraphs 7 and 8.
[7] Reproduced at paragraph 79
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[8]
[8] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account ‘Primary Considerations’[9] and ‘Other considerations’.[10] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[9] The Direction, paragraph 13.
[10] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being ‘other’ considerations, as opposed to ‘secondary’ considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
‘…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.’[12]
[11] [2018] FCA 594.
[12] Ibid, [23].
BACKGROUND AND OFFENDING
The Applicant was born in Samoa[13] and was raised in New Zealand. He moved to Australia in 2014 when he was 37 years old
Offending in New Zealand
[13] Exhibit G1, G Document 2, page 22.
On 16 November 1993, the Applicant committed ‘Common Assault (Crimes Act) Manually'. The following day he was convicted and sentenced to 75 hours of community service.[14]
[14] Exhibit G1, G Document 2, page 22.
On 17 February 2000, the Applicant committed the following offences:
·‘Possess Offensive Weapon (Other)’;
·‘Assault Person With Stab/Cutting Instrmnt’;
·‘Failed To Comply With Prohibition By Enforcement Officer’; and
·‘Drove A Motor Vehicle In A Dangerous Manner’.[15]
[15] Ibid.
On 4 April 2000 the Applicant committed ‘Failure to Answer District Court Bail’.[16] He was convicted and sentenced on 29 June 2000 alongside the 17 February 2000 offences.
[16] Ibid.
On 8 June 2000 he was convicted and discharged for the offence of 'Failed To Comply with Prohibition By Enforcement Officer'.[17]
[17] Ibid.
On 29 June 2000 the Applicant was convicted and sentenced for the 17 February 2000 offences as follows:
·‘Possess Offensive Weapon (Other)' - non-residential periodic detention – three months and an order for destruction;
·'Assault Person With Stab/Cutting Instrmnt', - suspended imprisonment - six months, suspended for one year with standard release conditions; supervision by community corrections - none months; non-residential periodic detention - three months and 'I 6M -ANGER/M COUNSL';
·'Drove A Motor Vehicle In A Dangerous Manner' - disqualification from driving - six months.[18]
[18] Ibid.
With respect to the possess offensive weapon and assault offences, the Applicant told the Tribunal that he committed those to protect his father who was being physically attacked. He said:
‘I could see him standing in front, outside a TAB there and another gentleman just came across and started assaulting him. And the only thing I could think of was to try to get out and help my father. So, I jumped out and they just - yes, things happened and there was a big, like a bush knife in the car that I jumped out with, just because the bloke was a bigger bloke.’[19]
[19] Transcript, page 17, lines 42 to 47.
The Applicant said the Judge wanted to sentence him to imprisonment for seven years but he accepted that the Applicant was trying to protect his father.[20] It seems unlikely that the learned sentencing Judge considered sentencing the Applicant to seven years of imprisonment, and I think it is likely that the Applicant misunderstood something the Judge said. However, I am satisfied that the Applicant’s defence of his father was taken into account in sentencing as part of the circumstances of the offending and that the Applicant appreciated how seriously the learned sentencing Judge viewed his offending.
[20] Transcript, page 18, lines 21 to 25
On 13 October 2010 the Applicant committed ‘Unlicensed Driver Failed To Comply With Prohibition’. On 29 March 2011, he was convicted and sentenced to a fine of $850.
On 30 June 2011 he committed ‘Unlicensed Driver Failed To Comply With Prohibition'. On 20 September 2011 he was convicted and discharged.
Relocation to Australia
The Applicant was in a long-term relationship in New Zealand that resulted in three children who are all now adults. The relationship broke down as a result of the Applicant keeping portions of his life secret from his partner and deceiving her about his drug taking.[21] In July 2018, he told a psychologist that his ex-partner and children had ceased contact with him because of his offending.[22] A month later he told the author of the Pre-sentence Report that he maintained infrequent contact with his children via telephone and social media.[23] (Both reports are discussed below under Primary Consideration A) I am satisfied that the Applicant has a strained relationship with his children in New Zealand but that there is some communication between them.
[21] Exhibit R1, Supplementary G Document 11, page 261; Transcript, page 17, lines 10 to 14.
[22] Exhibit R1, Supplementary G Document 11, page 261.
[23] Exhibit R1, Supplementary G Document 11, page 279.
In May 2014, the Applicant moved to Australia. He completed an Incoming Passenger Card (‘IPC’).[24] The card contained numerous questions with the option to tick ‘Yes’ or ‘No’ in response to each question. The Applicant ticked ‘No’ in response to the question ‘Do you have any criminal conviction/s?’. This was false as the Applicant did have criminal convictions.
[24] Exhibit G1, G Document 2, page 50; G10, 248.
The IPC contained a declaration immediately underneath the question about criminal convictions that said:
‘The information I have given is true, correct and complete. I understand failure to answer any questions may have serious consequences.’
The declaration was signed by the Applicant.
In his revocation request form the Applicant said:
‘I was thinking that after 10 years of no convictions that my records would be wiped. I was not trying to hide anything and honestly made a bad call by ticking the wrong box’.[25]
[25] Exhibit G1, G Document 2, page 72.
The Applicant told the Tribunal that friends had told him that after 10 years his convictions were ‘wiped’ and to tick ‘No’.[26] he said he had that conversation around a week before he flew to Australia, and that he did not ask anyone, such as an air hostess, at the time he filled in the card. He said he hoped that his convictions had been wiped, and he was worried that if he ticked ‘Yes’ he might not be allowed to come to Australia.[27] At the time he competed the IPC, the Applicant’s most recent conviction for a non-traffic offence was 15 years old. He had been convicted of two unlicensed driving offences four years previously. I find that the Applicant hoped, as opposed to believed, that he did not have to declare his prior offences, and that he answered the question recklessly despite the declaration that he signed making clear the importance of providing true, correct and complete information.
Offending in Australia
[26] Transcript, page 20, lines 32 to 44.
[27] Transcript, page 21, lines 1 to 42.
On 17 October 2016, the Applicant was involved in a robbery in company. The agreed facts of the offending, gleaned from the sentencing remarks, are that:
·the victim first met the Applicant’s co-offender, R, on 29 September 2016, where they struck up a conversation and exchanged phone numbers. They met up again later that night and exchanged text messages;
·between 1 and 3 October 2016, the victim and R met on four separate occasions and on each occasion, R told the victim about personal/financial problems she was having and she borrowed a total of $900 from the victim;
·the victim did not hear from R again until 17 October 2016 when she telephoned him and arranged to pay back the money he had lent her. They agreed to meet at a certain location, and while the victim was on his way there, R contacted him and changed the location;
·the victim arrived, saw R car parked in a nearby laneway, and saw R walking towards him. R told the victim he would need to go with her to get the money. R walked with the victim back to her car and, as he was about to get into the front passenger seat, R told him the seat was broken and asked him to sit in the back seat;
·after the victim got into the back seat, the Applicant opened the same door and forced his way into the back seat next to the victim pushing him across the seat. The victim tried to escape the vehicle through the other rear passenger door but could not unlock it. R pretended she did not know the Applicant. The Applicant said to the victim ‘You’re Doug’ and ‘Your mate, [name redacted] owes me $1,000 and he told me to get it off you’. The victim’s name is not Doug. The victim told of the Applicant he did not have any money and did not know anything about this allegation;
·the Applicant told the victim he had a knife and would stab him. He said he had been looking for him for two weeks. He demanded the victim’s mobile phone and wallet. The victim did not see a knife but feared that the Applicant could have one in his pocket;
·the victim handed the Applicant his phone and his wallet. The Applicant removed $165 and the Applicant’s key card and demanded the PIN. The victim provided the PIN;
·R then drove the car, with the Applicant and the victim inside, to a shopping centre where she took the key card and withdrew $740. She then drove the car back to the meeting place and let the victim out of the car;
·the victim contacted police who obtained CCTV footage from the meeting place that showed R and the Applicant talking together several minutes before the victim first arrived;
·when the police interviewed the Applicant he admitted that he had sat in the back seat with the victim but denied being a party to any robbery. He admitted that he was aware that R wanted to get money from the victim and said she had asked him to be present in the car as ‘intimidation’; and
·the victim was of small stature and had a badly injured right forearm and hand. The Applicant was of a large build and at least twice the weight of the victim.[28]
[28] Exhibit G1, G Document 2, pages 26 to 30.
The Applicant pleaded guilty to ‘Take/detain person in company w/I to obtain advantage’ and ‘Robbery in company’'. On 5 December 2018 he was sentenced to imprisonment for two years and eight months.
The learned sentencing Judge considered that the offending was aggravated by the fact that there was threatened use of violence, the Applicant’s previous convictions, the vulnerability of the victim in that he was trapped inside the vehicle, smaller than the Applicant and had a physical impairment, that the offence was planned, and that it was committed for financial gain. In the Applicant’s favour, the Judge found that he had exhibited some remorse through his guilty plea however his remorse was not reflective of the whole of his offending behaviour. That is: the Applicant claimed to have been manipulated by his co-offender who told him that the victim owed her money; he said he had believed he was acting appropriately and in her best interests; and he apportioned blame to her.[29]
[29] G2, pages 32, 33, 35 and 36.
His Honour noted that the Applicant had a history of using illicit substances but he had ceased in June 2018, almost two years after the offending.[30] The Applicant admitted to the Tribunal that he had been using methamphetamine until that time while he was on bail.[31] His Honour found that the Applicant’s prospects of successful rehabilitation were ‘guarded’, and that his likelihood of re-offending was low to moderate. This was consistent with the risk assessment in the Pre-sentence Report that had been provided to the court. His Honour found, on the basis of a psychological report that was tendered (discussed below), that the Applicant’s successful rehabilitation was dependent on him continuing with drug and alcohol counselling.[32]
[30] Exhibit G1, G Document 2, page 38.
[31] Transcript, page 22, lines 17 to 38.
[32] Exhibit G1, G Document 2, page 40.
In between the Applicant’s commission of the offence and his sentencing, he committed another offence. On 27 August 2018, he damaged his sister’s car by throwing a rock through the car window. This followed an incident in which his sister had physically attacked his partner who was pregnant at the time. The information in the police report[33] indicates that this was a brutal assault, and that the Applicant had to forcibly remove his sister from his partner. The Applicant carried his partner out of the residence, and placed her in his car. He then, out of frustration, threw the rock at his sister’s car.[34] On 31 August 2018, he was fined $1,000 for ‘Destroy or damage property (DV)’.[35]
[33] Exhibit R 1, Supplementary G Document 12, page 296.
[34] Exhibit R1, G Document 12, pages 296 to 297; Transcript, page 9, lines 4 to 15.
[35] Exhibit G1, G Document 2, page 21.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors, including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant has been involved in three offending episodes in which he has committed violent offences. First, in New Zealand he committed common assault in 1993. The facts of that offence are not known. Second, in 2000 also in New Zealand, he committed an assault while armed with a knife. Third, in 2016 in Australia, he trapped a man in his co-offender’s car, made him think he had a knife and robbed him. In accordance with paragraph 13.1.1(1)(a), these offences are all serious, although the offences in New Zealand are rather dated. The recent offending in Australia also involved a vulnerable victim in that he was half the weight of the Applicant and had a physical impairment.[36] This also goes to the seriousness of that offending. The learned sentencing Judge imposed a sentence of two years and eight months imprisonment with a non-parole period of one year and eight months. A sentence of imprisonment is a last resort in the hierarchy of sentencing options available to courts. Not only did the court impose a sentence of imprisonment, it imposed a substantial one with a substantial period to serve. The head sentence and non-parole period both reflect serious offending. I note that the Applicant was sentenced to periodic detention for the assault in 2000, and the Applicant believed that the Judge had considered a lengthy period of imprisonment appropriate if not for the fact that he had been acting in defence of his father.
[36] The Direction, paragraph 13.1.1(1)(c).
The Applicant’s recorded offending cannot be considered frequent, although he has admitted to having been a user of illicit drugs for many years (see below).[37] He has had only two criminal convictions since 2001. The 2016 offence is his most serious. Based on the Applicant’s criminal history, I am not satisfied that there is a trend of increasing seriousness in the Applicant’s offending, particularly having regard to the long gap between his offending in New Zealand and his offending in Australia and the fact that one of the assaults in New Zealand involved an actual – rather than threatened – weapon. However, what is apparent is that the Applicant has a tendency to act unlawfully, including committing violent offences, when he feels justified. In 2000, he committed an assault while armed with a knife because his father was being attacked. In 2016, he terrorised a man and stole from him because he believed that person owed his friend money. In 2018, he threw a rock at his sister’s car because she had violently attacked his partner. While I would not go so far as concluding that the Applicant’s offending shows a disregard of the law, it does show that sometimes he considers that compliance with the law is optional. The cumulative effect of the Applicant’s repeated offending is that persons have been subject to violent crime.
[37] See below, Paragraphs 56-58.
The Applicant provided false information on his IPC when he declared that he did not have any criminal convictions. He did so recklessly despite being on notice that it was important to provide correct information. Failing to provide correct information on an IPC undermines the ability of the Australian government to protect the Australian community from potential harm by making informed assessments of whether a person should be permitted entry into Australia. The Applicant’s failure to ensure he gave correct information was serious conduct.
I do not consider factors (b), (h) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires a decision-maker to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires a decision-maker to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
Should the Applicant engage in further conduct involving violence and/or theft, the harm to individuals in the Australian community includes physical injury, emotional distress and possibly long term psychological harm. Although there is no victim impact statement before me, it is reasonable to infer that the victim of the 2016 offending, being small in stature and having a physical disability, could have felt vulnerable, powerless and terrified. I refer in particular to the fact that (1) he feared that the Applicant had a knife and (2) he readily disclosed his PIN. It is well known that the psychological impact of offences involving violence or the threat of violence tend to stay with victims.
Likelihood of engaging in further criminal or other serious conduct
In his revocation request form, the Applicant said of his 2016 offending:
‘I take full responsibilities (sic) for my actions and its (sic) out of character these charges. I was misled and thought I was going to protect someone.’[38]
[38] Exhibit G1, G Document 2, page 67.
The Applicant told the Tribunal that while he now understands that what he did was wrong, at the time he was under the influence of methamphetamine and he thought he was doing the right thing.[39]
[39] Transcript, page 20, lines 21 to 30.
He further said:
‘I believe I’m not the same person I was when I came to prison. I have rehabilitated my self (sic) and done every step I can not to reoffend if given one more chance’.[40]
[40] Exhibit G1, G Document 1, page 4
As noted by the learned sentencing Judge, the Applicant stopped using drugs around two years after the offences in June 2018. He told the Tribunal he stopped at that time because his parents came to stay with him, and they, in his words:
‘spoke to me and they just let me know that what I was doing was wrong and ruining my life and I thought it was about time that I, you know, I did try and make that stop. And I saw a drug and alcohol counsellor before I was in prison.’[41]
[41] Transcript, page 18, line 41 to page 19, line 15.
The Applicant’s sister, M, wrote a letter of support in which she said she and her parents moved to Australia from New Zealand in 2017. It therefore appears that it took some time for the Applicant’s parents’ influence to have an effect. The Applicant said his drug and alcohol counselling involved him seeing a counsellor once every week.[42]
[42] Transcript, page 22, line 44 to page 23, line 2.
The Applicant told the Tribunal that before he sought help, he had been using methamphetamine socially with other people - around half a gram every two or three days.[43] He said he is no longer in contact with those people despite some of them attempting to contact him through Facebook.[44]
[43] Transcript, page 19, lines 15 to 45.
[44] Transcript, page 20, lines 1 to 10.
I have before me a ‘Psychological Assessment Report’[45] by a Ms Laura Durkin, psychologist. It appears to have been commissioned by the Applicant’s lawyer in his criminal proceedings. It is dated 31 July 2018. Ms Durkin noted that the Applicant had pleaded guilty after initially maintaining his innocence. She said in 2014, the Applicant had experienced a relationship breakdown and was struggling with substance use. His eldest brother encouraged him to move to Australia for a fresh start. After initially doing well he was introduced to illicit drugs by his cousin. After the offending, the Applicant’s brother distanced himself from the Applicant.[46]
[45] Exhibit R1, Supplementary G Document 11, pages 257 to 264.
[46] Exhibit R1, Supplementary G Document 11, page 259.
Ms Durkin said the Applicant had commenced using cannabis at the age of 16 and in his early adulthood he started using crystal methamphetamine (‘ice’).[47] He smoked up to two grams per day at the height of his use. He smoked ice consistently in the three years prior to the offending. The Applicant reported that he continued to struggle with abstinence from ice but he hoped that he could quit.[48]
[47] Exhibit R1, Supplementary G Document 11, page 261.
[48] Exhibit R1, Supplementary G Document 11, page 261.
Ms Durkin said that since engaging in counselling, the Applicant had gained insight into the negative influence that (illicit) substances had on his life. The Applicant told her that he now felt embarrassed about the offending and sorry for the victim.[49] Mr Durkin assessed the Applicant’s prospects as positive should he continue to seek assistance to help him to make appropriate decisions in the future. She recommended that he continue with drug and alcohol counselling.[50]
[49] Exhibit R1, Supplementary G Document 11, page 262
[50] Exhibit R1, Supplementary G Document 11, page 264
I also have the benefit of a Pre-sentence Report, dated 3 August 2018.[51] That report stated that the Applicant verbally expressed regret for the offending but appeared to divorce himself from responsibility for it, apportioning accountability to his co-offender. The report described the Applicant as an individual who had experienced a chaotic lifestyle characterised by illicit substance misuse and a seemingly poor choice of associates. It said that on a positive note, he had the benefit of strong support networks among his family and partner and he was maintaining stable accommodation and employment. Further, in recent months he appeared to have abstained from drug use. He was given a low/medium risk rating.[52] The Applicant referred to his partner in his revocation request form. He said she was supportive and they planned to marry.[53] However, he told the Tribunal that he is no longer in that relationship.[54]
[51] Exhibit R1, Supplementary G Document 11, pages 278 to 280.
[52] Exhibit R1, Supplementary G Document 11, page 280.
[53] Exhibit G1, G Document 2, page 61.
[54] Transcript, page 18, lines 31 to 35.
I am prepared to accept that the Applicant stopped using illicit drugs in June 2018 which means he abstained while in the community for around six months before he was incarcerated in December 2018. The Applicant said he wanted to do rehabilitative courses in prison but he was told he did not fit the criteria because his risk assessment was too low.[55] Accordingly, he has not undergone any further rehabilitative treatment since 2018.
[55] Transcript, page 15, lines 20 to 29: page 16, lines 22-32.
At the time of the offending, the Applicant’s eldest brother lived in Sydney and the Applicant lived with his (then) partner and her children in Sydney. His parents and other siblings lived in New Zealand. Most of his nuclear family now live in Australia. His father is now deceased, his mother lives in Sydney with his sister (M) and her family, his eldest brother still lives in Sydney and his other sister (J) lives in Brisbane with her family.[56] His other brother lives in New Zealand.
[56] Transcript, page 11, lines 1 to 20.
If the Applicant gets his visa back, he plans to live in Sydney with his sister, M.[57] He told the Tribunal that his eldest brother would support him in terms of offering social support to help him stay off drugs.[58] He said his eldest brother and he spoke when he was in prison and he could see the changes that the Applicant had made so he is now happy to assist him.[59] However, the Applicant’s brother did not provide a letter of support.
[57] Transcript, page 12, lines 10 to 20.
[58] Transcript, page 11, lines 40 to 46.
[59] Transcript, page 12, lines 1 to 7.
The Applicant said he is ‘mentally fit’[60] now and he strongly believes he can stay away from people who previously influenced him. He plans to distance himself from his old associates, find employment, and join prayer groups and church groups to get himself involved in the community.[61] He is also prepared to engage in further drug and alcohol counselling.[62] I note that when the Applicant threw a rock through his sister’s car window he had ceased using illicit drugs.
[60] Transcript, page 12, line 35.
[61] Transcript, page 12, lines 34 to 38.
[62] Transcript, page 23, lines 4 to 10.
I have before me a character reference from a pastor of the Colyton Samoan Assembly of God in Glendenning.[63] In it, Pastor Fialelei says he has known the Applicant for over 12 years as he has attended the Colyton Assembly of God Church for over 12 years. Much of that attendance must have been in a New Zealand congregation because the Applicant had never been to Australia before 2014. The Applicant said he knows Mr Fialelei through the church and because his sister is married to Mr Fialelei’s nephew, and they socialise together at family functions.[64] Mr Fialelei describes the Applicant as a decent, hard-working, trustworthy person who has been helpful within the church ministry.[65]
[63] Exhibit G1, G Document 2, page 76.
[64] Transcript, page 7, lines 10 to 40.
[65] Exhibit G1, G Document 2, page 76
There is another letter of support before me, from the Applicant’s sister,[66] M, which speaks well of the Applicant. She said she moved to Australia from New Zealand with her parents in 2017 as their father was terminally ill with kidney failure. She said the Applicant suggested they move so he could help look after their father. M, lives in Sydney with her partner, children[67] and the Applicant’s mother. It was M who attacked the Applicant’s (then) partner in 2018. An extract of the police report of that incident reads as follows:
‘with a closed right fist struck the Victim twice to the left side of her face. The Victim and Accused ... ... . .. grabbed each others hair and started to pull at each other.
Accused ... .... .. grabbed the Victims head with both hands and started to push her face into a microwave numerous times before feeling her hair being pulled and Accused [the Applicant] forcibly removing her from the Victim . Accused ... .. .... kicked the Victim who was on the floor of the kitchen numerous times to her abdomen, specifically her stomach no less than three times, the Victim being one month pregnant at the time.’[68]
[66] Exhibit G1, G Document 2, page 77.
[67] Transcript, page 9, lines 15 to 22: page 11, lines 8 to 10.
[68] Exhibit R1, Supplementary G Document 12, page 296.
Despite that incident, the Applicant told the Tribunal he has a good relationship with M and that she is not normally a violent person.[69] That may be so, but her conduct towards the Applicant’s then partner on that occasion was violent and callous, and it speaks to her character that she engaged in such behaviour even once. I do not consider M to be a protective influence for the Applicant.
[69] Transcript, pages 8 to 9.
There is a letter of support from M’s partner,[70] who has known the Applicant for four to five years according to the Applicant.[71] He speaks well of the Applicant’s character and attests to the Applicant’s regret for his offending. He says the Applicant has turned over a new leaf and that his family will help him to stay on the right track.[72]
[70] Exhibit A4.
[71] Transcript, page 10, lines 26 to 34.
[72] Exhibit A4.
The Applicant’s other sister, J, has provided a letter of support in which she speaks positively about the Applicant’s character and she says that the Applicant is ‘incredibly remorseful’.[73]
[73] Exhibit A3.
The opinions of the those close to the Applicant are somewhat undermined by his history of illicit drug use, his deceitful behaviour towards his long-term partner in New Zealand when he was in a relationship with her, and his criminal offending. I accept that the Applicant has virtues and sometimes behaves in a positive manner, including saving his ex-partner from a vicious attack. However, I do not accept that his offending in 2016 was out of character given his prior behaviour. Further, my assessment of the expressions of confidence in the Applicant’s ability to reform takes into account the optimism typical of close family members.
The Applicant pointed to the support of his family as a factor that would help him to stay off drugs and avoid any further offending. He said previously, he was living with his partner, he did not have his parents here, and his eldest brother was not talking to him because he was embarrassed about his behaviour. He said the only person he could rely on at the time was his (then) partner and that she, in his words:
‘…didn’t really sort of keep me on the straight and narrow. Every time I did wrong, she - in a way, she sort of encouraged it. I’m not saying she encouraged it, but she didn’t sort of tell me that I was doing wrong or letting (sic) me know that, you know, ‘Hey, you’re not doing the right thing, you’re not supposed to be doing these things’. Whereas, if I had the support of my family, straight away they would have just stopped things, stopped the negative things that I was doing.’[74]
[74] Transcript, page 17.
I do not accept this explanation. The Applicant said his brother had already shown his disapproval by ceasing contact with him, yet that evidently did not stop him from ‘doing wrong’. Further, I do not accept that having his family around him will necessarily stop the Applicant from doing the wrong thing. The Applicant was in a long-term relationship in New Zealand which broke down as a result of him concealing portions of his life from his partner and deceiving her about his drug taking.[75] This person was not only his partner, she was the mother of his children. I am not persuaded that the Applicant would not, again, conceal wrongdoing from those close to him.
[75] Exhibit R1, Supplementary G Document 11, page 261; Transcript, page 17, lines 10 to 14.
The Applicant left it rather late to engage in intervention when he was in the community, so he only had a six month period of good behaviour before entering the highly structured environs of prison and Immigration Detention. Through no fault of his own, while incarcerated, he has not engaged in any counselling or courses directed to drug use or appropriate decision making. I accept that he now has family around him although their ability to prevent him from engaging in drug taking or crime is limited. I accept that the Applicant intends to avoid negative peers, engage in treatment in the community, and involve himself in the community in positive ways. However, his long-term commitment to these endeavours is largely un-tested. He has a history of engaging in unlawful, violent conduct when he feels justified, and he considers that he needs to be told not to do the wrong thing by those around him. To my mind, these matters that predispose him to offend have not been adequately addressed.
Considering the totality of the evidence, I am unable to depart from the risk assessment in the Pre-sentence Report, and I note that the risk of repeated offending that the Direction requires me to consider is not limited to the risk of re-offending in the immediate future. I consider there to be a low to moderate risk that the Applicant will commit further offences of the kind that he has previously committed.
Conclusion: Primary Consideration A
Primary Consideration A weighs moderately against revocation of the cancellation of the Applicant’s visa.
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 revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Applicant does not claim that there are any minor children whose best interests would be affected by the non-revocation of the cancellation of his visa. Further, as all of the Applicant’s children are adults who reside in New Zealand, they are explicitly excluded from being considered under the Direction.[76] Accordingly, this Primary Consideration is not relevant.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
[76] G2, page 62; Transcript, page 15, lines 1 to 10.
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that the decision-maker should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, a decision-maker should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. The decision-maker must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[77]
[77] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Paragraph 6.2(1) of the Direction states that:
‘The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.’
Those principles, set out in paragraph 6.3 of the Direction, are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant relocated to Australia in May 2014 when he was 37 years of age;
·he engaged in the index offending only two years later in 2016;
·his offending was serious, involving a threat of violence against a vulnerable person;
·there is a low to moderate risk that he will re-offend;
·his participation in the Australian community has been limited as he was only at liberty in the community for four and a half years;
·while he did not list any employment in his revocation request form, he said he has not received Centrelink in Australia as he has been employed, and I am prepared to accept that;[78]
·he does not claim to have done voluntary work although it appears he has been actively involved in his church; and
·if he is removed to New Zealand, it will adversely affect his mother and siblings (addressed below under Other Considerations).
Conclusion: Primary Consideration C
[78] Exhibit G1, G Document 2, page 54.
Taking all the above matters into account, Primary Consideration C weighs moderately against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. Under the Direction, a decision-maker in required to consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulment obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of 37 and has lived in Australia for six and a half years. He committed the index offences only two years after relocating to Australia. He has made a limited contribution to the Australian community through employment and some involvement in his church.
The Applicant has a mother, three siblings, some in-laws and some nieces and nephews in Australia.[79] I accept that his siblings will be saddened if he is removed to New Zealand although there is no evidence to suggest that they could not visit him there or keep in touch using telephonic or electronic means.
[79] Transcript, page 9, lines 1 – 47.
The Applicant’s sister, M, said that their mother suffers from some health problems and that knowing the Applicant might be deported is taking a toll on her health.[80] The Applicant did not put forward any medical evidence, however he did not have the benefit of legal representation, and in all the circumstances I am prepared to accept M’s word about his mother’s health. I am satisfied that the prospect of the Applicant’s removal from Australia is affecting his mother’s health and if that comes to pass, it will continue to affect her health. However, I am not satisfied that the impact to her health is debilitating or life threatening in the absence of reliable evidence to that effect.
[80]Exhibit A2.
There is no evidence that the Applicant’s mother or siblings are in any way dependent on him, although he would like to help to look after his mother if he is returned to the wider community.
Overall, I am satisfied that the Applicant has close familial ties in Australia, that his immediate family would suffer some emotional hardship, and that there would be some impact on his mother’s health.
I am satisfied that the strength, duration and nature of ties to the Australian community weighs to a limited extent in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the me relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
·the non-citizen’s age and health;
·whether there are any substantial language or cultural barriers; and
·any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 43-year-old man who is able bodied and does not claim to have any medical or psychological conditions.[81]
[81] Exhibit G1, G Document 2, page 69.
The Applicant has a brother who currently lives in New Zealand with his family.[82] He told the Tribunal that his brother was supposed to move to Australia but he stayed in New Zealand in case the Applicant’s visa got cancelled so that the Applicant would have some support there.[83] I am satisfied that the Applicant’s brother and his family will provide the Applicant with support in New Zealand. The Applicant also has some limited contact with his adult children who live in New Zealand so I am satisfied that there is potential for them to provide some social or emotional support to the Applicant.
[82] Transcript, page 11, lines 25 to 30; Transcript, page 12, lines 40 to 47.
[83] Transcript, page 13, lines 1 to 20.
The Applicant lived in New Zealand until the age of 37. He obviously speaks the language and is familiar with the culture. Accordingly, there are no language or other cultural barriers to the Applicant’s return and re-establishment in New Zealand.
The Applicant has held gainful employment in New Zealand and he holds a forklift license.[84] Further, it is reasonable to find that the level of medical care and governmental/social support in New Zealand is at or about the same level as that currently available to the Applicant in Australia. The Applicant will be entitled to income support in the event that he does not secure employment.
[84] Exhibit R1, Supplementary G Document 11, page 260.
Considering all of these matters, I am of the view that this Other Consideration (e) weighs only slightly in favour of revocation of the reviewable decision.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: weighs to a limited extent in favour of revocation;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: weighs slightly in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
I am 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 s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs moderately in favour of non-revocation;
·Primary Consideration B is not relevant;
·Primary Consideration C weighs moderately in favour of non-revocation; and
·To the extent that Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
.................................[SGD]...................................
Associate
Dated: 9 October 2020
Date of hearing: 28 September 2020 Date of last submissions: 16 September 2020 Applicant: Self Represented, appeared by video link Solicitor for the Respondent: Ms K Ervin, Clayton Utz Solicitors
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (pages 1-247)
R
-
13 AUG 20
R1
Respondent’s Supplementary section 501 G-Documents (pages 248-306)
R
-
16 SEP 20
R2
Respondent’s Statement of Facts, Issues and Contentions (16 pages)
R
16 SEP 20
16 SEP 20
A1
Applicant’s Statement (one page)
A
13 AUG 20
13 AUG 20
A2
Statement of the Applicant’s sister, M (one page)
A
13 AUG 20
13 AUG 20
A3
Statement of the Applicant’s sister, J (one page)
A
13 AUG 20
13 AUG 20
A4
Statement of the Applicant’s brother-in-law (one page)
A
14 AUG 20
14 AUG 20
‘Annexure A – Exhibit List’
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Remedies
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Statutory Construction
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10
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