Turner and Minister for Home Affairs (Migration)

Turner and Minister for Home Affairs (Migration) [2018] AATA 3274 (7 September 2018)
Division:GENERAL DIVISION
File Number: 2018/3573
Re:Leo Turner
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Dr L Bygrave, Member
Date:7 September 2018
Place:Sydney

The Tribunal affirms the decision under review.
...............................[sgd]...................................
Dr L Bygrave, Member
CATCHWORDS
MIGRATION - whether matter to be dismissed as Applicant failed to appear at hearing - visa - cancellation - character test - substantial criminal record - traffic offences - possession of drugs - violent offences - protection of the Australian community - best interests of minor children - expectations of the Australian community - strength nature and duration of ties to Australia - extent of impediments if removed from Australia - decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) s 42A
Migration Act 1958 (Cth) – ss 499, 500, 501, 501CA
CASES
Anaki and Minister for Immigration and Border Protection [2016] AATA 693
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – paras 6, 7, 8, 13, 14
REASONS FOR DECISION
Dr L Bygrave, Member
7 September 2018
INTRODUCTION

The applicant, Mr Leo Turner, is a 43-year-old citizen of New Zealand residing in Australia on a Class TY Subclass 444 Special Category (Temporary) visa (visa).
On 11 April 2017, the Department of Immigration and Border Protection (the Department) issued the applicant with a notice advising that his visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act). This decision was made on the basis that the applicant did not pass the character test because he had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in section 501(7) of the Act.
On 4 May 2017, the applicant submitted a request for revocation of the mandatory visa cancellation decision pursuant to section 501CA of the Act.
On 20 June 2018, a delegate of the Minister for Home Affairs (the Minister) decided not to revoke the visa cancellation decision and, on 28 June 2018, the applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.
The matter was heard in Sydney on 27 August 2018.
The applicant did not attend the hearing. The Minister’s legal representative advised the Tribunal at the time of the hearing that staff at Villawood Immigration Detention Centre (Villawood) informed the Department the applicant declined to leave his room at Villawood on the day of his listed hearing. The Minister’s representative also provided the Tribunal with a letter addressed to the applicant and dated 23 August 2018, which set out that the applicant refused to attend a meeting with Villawood staff and refused to accept the Minister’s Statement of Facts, Issues and Contentions on 20 August 2018.
I note that the option to dismiss the matter in accordance with section 42A(2)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (AAT Act) was available to the Tribunal because the applicant failed to appear at the hearing. In making my decision to proceed with the hearing, I considered the following factors: the significance of cancelling a person’s visa under section 501(3A) of the Act; the statutory timeframe for the Tribunal to consider the applicant’s application; and the Tribunal’s objectives as set out in the AAT Act to provide a mechanism of review that is fair, just, economical, and proportionate to the importance and complexity of the matter.
I heard evidence and submissions from the Minister’s legal representative. In making my decision, I have had regard and given appropriate weighting to the evidence that is untested by the applicant.
RELEVANT LEGISLATION AND POLICY
The power to revoke a visa cancellation
Section 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied the person does not pass the character test because of the operation of sections 501(6) and 501(7).
Section 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a “substantial criminal record” as defined by section 501(7). Section 501(7) of the Act provides that, for the purposes of the character test, a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
Pursuant to section 501CA(4) of the Act, the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test; or there is another reason why the original decision should be revoked. This is a discretionary power.
The applicant does not pass the character test in section 501(6) of the Act because his criminal record, set out in paragraph 23 below, meets the statutory definition of a “substantial criminal record” in section 501(7) of the Act. I must therefore consider whether there is another reason to revoke the original cancellation decision.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500 of the Act. Under section 499(1), the Minister has given written directions as to the exercise of the power to review the decision. Section 499(2A) of the Act provides that these directions must be complied with. The relevant direction is Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA which commenced on 22 December 2014 (the Direction).
Direction No. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. It states:
Informed by the principles in paragraph 6.3, a decision-maker:
…must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Under the heading of “General Guidance” at paragraph 6.2, the Direction states in part:
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 [in paragraph 6.3] 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.
In paragraph 6.3, the Minister sets out the principles that provide a framework to approach the task of deciding whether to revoke the decision to cancel a visa. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8 of the Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations, and one or more primary considerations may outweigh other primary considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Part C of the Direction sets out the primary considerations the Tribunal must take into account in deciding whether to revoke the cancellation of the applicant’s visa as follows:
(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.
Other considerations in Part C relevant to this matter are:
(a)strength, nature and duration of ties to Australia; and
(b)the extent of impediments if removed.
EVIDENCE
In a personal circumstances form dated 4 May 2017,[1] the applicant sets out that he arrived in Sydney in 2000 and has been employed as a truck driver and fork-lift driver. He lists his father and three children (born between 1991 and 1995) who reside in New Zealand. He also refers to his relationship with his Australian girlfriend, “K” and her daughter, “D”. The applicant states that he has known “D” since she was two years old and he is the “closest thing to a dad”.[2]
[1] Exhibit G-G9.
[2] Exhibit G-G9, p 35.
There are also references in the evidence that the applicant was raised in New Zealand by his grandparents, and his father and children reside in New Zealand.[3]
[3] Exhibit R-TB8, p 370; Exhibit G-G9, p 36.
A psychology review undertaken while the applicant was in Grafton Correctional Centre on 19 December 2017 refers to the applicant self-reporting a previous diagnosis of depression and anxiety.[4]
[4] Exhibit R-TB8, p 373.
Criminal record
The applicant’s criminal record is detailed in his National Police Certificate dated 19 January 2018 and summarised below:
·Court date: 14 August 2017. Offence: Assault occasioning actual bodily harm-t2. Sentence: Imprisonment – 8 months.
·Court date: 23 May 2017. Offence: Drive motor vehicle during disqualification period – second offence. Sentence: Imprisonment – 12 months (appeal withdrawn). Licence disqualified – 5 years.
·Court date: 7 April 2017. Offence: Drive motor vehicle during disqualification period – second offence. Sentence: Imprisonment – 12 months (severity appeal lodged). Licence disqualified – 5 years.
·Court date: 17 February 2017. Offence: Drive while licence cancelled – second offence. Sentence: Imprisonment – 7 months (order varied). Licence disqualified – 5 years.
·Court date: 11 January 2017. Offence: Possess prohibited drug. Sentence: s 9 bond – 12 months. Offence: Drive while licence cancelled – second offence. Sentence: Imprisonment – 10 months (severity appeal lodged). Licence disqualified – 5 years. Offence: Travel or attempt to travel without valid ticket - adult. Sentence: s 10a bond.
·Court date: 9 March 2015. Offence: Assault occasioning actual bodily harm (dv)-t2. Sentence: s 9 bond.
·Court date: 25 September 2013. Offence: Drive motor vehicle during disqualification period – second offence. Sentence: Imprisonment – 7 months suspended on entering into s 12 bond. Offence: Possess prohibited drug. Sentence: s 10a conviction. Offence: Drive while disqualified from holding a licence. Sentence: s 9 bond.
·Court date: 8 April 2013. Offence: Drive on road etc when licence cancelled. Sentence: fine $1,800. Licence disqualified – 12 months.
·Court date: 21 August 2012. Drive when licence suspended under s 66 Fines Act – first offence. Sentence: Fine $750. Licence disqualified – 3 months.[5]
[5] Exhibit G-G5, pp 19-20.
New Zealand Police Records produced on 8 June 2017 also show the applicant has a history of three traffic convictions from 1996 to 2000, and was convicted of an assault described as “male assaults female (manually)” in 2001.[6]
[6] Exhibit G-G7.
Incident reports dated 21 April 2018 and 25 April 2018 describe the applicant’s involvement in “abusive/aggressive behaviour” and “minor assault”.[7]
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL AND OTHER SERIOUS CONDUCT
[7] Exhibit G-G14.
Paragraph 13.1 of the Direction outlines the Government’s commitment to protecting the Australian community from harm by non-citizens and requires that I consider:
(a)the nature and seriousness of the applicant’s conduct to date; and
(b)the risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
The nature and seriousness of the applicant’s conduct to date
The applicant’s criminal record, set out in paragraphs 23 and 24, is extensive. It shows a pattern of repeated criminal offending by the applicant in Australia over a period of five years, including while in detention after the cancellation of his visa. The applicant also has a history of criminal offending in New Zealand.
The applicant’s criminal offending comprises of traffic offences, possession of drugs, and violent offences.
The seriousness of the applicant’s traffic offences is demonstrated by the sentences from the Courts, which include imposing sentences of imprisonment.
In sentencing remarks in the Liverpool Local Court on 7 April 2017, Magistrate Robinson described the applicant’s criminal history as follows:
…the accused has a history which shows that he has been before the Court prior to this occasion some five occasions for serious traffic offences, all relating to him not having a valid licence. Further, this is the fourth drive whilst disqualified matter that sees him brought before the Court.
Whilst he has provided an explanation for his driving, it appears clear to me from the fact that he was on parole at the time, his previous history for similar matters and his stated intention of intending to drive back to Coffs Harbour [from Sydney], that he does not comply with Court imposed orders or otherwise laws or rules regarding his right to drive.
This is a matter where, in my view, nothing other than a term of imprisonment is the appropriate sentence and I intend to impose a term of imprisonment today.[8]
[8] Exhibit G-G6, pp 23-24.
The applicant has been convicted of possessing prohibited drugs on two occasions, in 2013 and 2017. There is also evidence in the New South Wales Department of Corrective Services reports of the applicant stating he has used cannabis and methamphetamine (ICE).[9]
[9] Exhibit R-TB8, p 370.
In Australia, the applicant was convicted of “assault occasioning actual bodily harm-t2” in 2015 and 2017. Details of these incidents are set out below:
·A New South Wales Police Fact Sheet created on 1 December 2014 described an incident on 26 November 2014 in which the applicant slapped “T”, a 14-year-old daughter of “K”, twice across the face. This caused a laceration in “T”’s lips and “T” to leave the family home as she feared for her safety.[10] An Apprehended Domestic Violence Order was subsequently made against the applicant.[11]
·A New South Wales Police Fact Sheet created in 13 June 2017 described the applicant punching a prisoner in the face and arm.[12] Following this assault, the applicant was transferred to maximum security.[13]
[10] Exhibit R-TB5, pp 114-116.
[11] Exhibit R-TB5, pp 139-140.
[12] Exhibit R-TB3, pp 59-61.
[13] Exhibit R-TB8, p 363.
Considering the relevant factors set out in paragraph 13.1.1 of the Direction, I find that:
·The applicant’s offences include committing serious and violent offences.
·The applicant’s record of criminal offences shows he has been convicted of 13 offences in Australia and four offences in New Zealand. He has received sentences of imprisonment for his offending.
·There has been a cumulative effect due to the applicant’s repeated offending and he has continued to offend despite repeated warnings from the judicial system.
·The applicant has continued to offend while in detention.
·There is no evidence before the Tribunal that the applicant has ever provided false or misleading information to the Department.
I am satisfied that the frequency and cumulative effect of the applicant’s criminal offending is a matter of serious concern. I find that the nature and seriousness of his offending weighs heavily against him.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct
The applicant’s written statement dated 14 March 2018 noted:
Whilst being held here at the Villawood Detention Centre, I have come to a realisation of how remorseful i am about the charges that i have bestowed upon myself.
Whilst using this time, I thought wisely about my past actions that i have made and have no intentions in making NO further illegal commitments to or in the community, such as Drugs, Violence and breaking the law, as my family is more important than the nonsense that i had been involved in/with.
Being sober from drugs, I feel that i am able to think straight and act right about my words, actions and behaviour towards the people around me. I am able to perform self control to the negativity that happens around me, by not getting involved, or when i can, to calm the situation or to make peace with the trouble thats happening.[14] [replicated from the original]
[14] Exhibit G-G10.
The applicant also refers in his personal circumstances form dated 4 May 2017 that he has signed up to the IDAPT intensive drug and alcohol treatment program. There is no evidence before the Tribunal that the applicant has completed any rehabilitation program in relation to his offending behaviour.
In considering the harm and potential risk to the Australian community if the applicant were to reoffend in the future, I am mindful of the nature and seriousness of his past criminal offences including repeated traffic offences and offences of assault occasioning actual bodily harm. I cannot be satisfied on the basis of the evidence before the Tribunal that the applicant will not reoffend if he is released into the Australian community.
On balance, I find that the protection of the Australian community weighs heavily against revoking the cancellation decision.
PRIMARY CONSIDERATION 2 – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2(4) of the Direction sets out the factors that I must consider in relation to whether revoking the cancellation decision is, or is not, in the best interests of a child affected by the decision. Relevant to this factor are the nature and duration of the relationship, the extent to which the applicant is likely to play a positive parental role, the likely effect any separation would have on the child, and whether there are other persons who already fulfil a parental role.

In his personal circumstances form dated 4 May 2017, the applicant lists three children who reside in New Zealand and are over the age of 18 years. The applicant refers to a child, “D” who is the daughter of his girlfriend, “K” and who he has known since she was two years old. There is no information about the age of “D” and the applicant notes that “D” is currently with DOCS (Department of Community Services).
There is no evidence before the Tribunal that the applicant plays a parental role in the lives of any other minor children. In view of the applicant’s separation from “D” while he has been in prison and detention, and the limited and untested evidence about his role in the life of “D”, I place minimal weight on this consideration. I also note the evidence set out in paragraph 32 above, which describes the applicant’s conviction of assault occasioning actual bodily harm in relation to another minor child of “K” in 2014.
I am not satisfied that this primary consideration has any significant weight or relevance in this matter.
PRIMARY CONSIDERATION 3 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) of the Direction provides:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
Having regard to the principles set out in paragraph 6.3 of the Direction, set out in paragraph 16 above, I am mindful the Australian community anticipates a nuanced and balanced approach to considering the extent to which the applicant is a member of the Australian community even though he is not a citizen. The deliberation of Australian community expectations involves “bringing appropriate perspective and proportionality to bear in the assessment of risk.”[15] I therefore consider any positive contributions the applicant has made to society, such as employment, community activities and/or family relationships; and weigh this against his adverse and antisocial behaviour.
[15] Anaki and Minister for Immigration and Border Protection [2016] AATA 693, [89].
The applicant stated in his personal circumstances form that he has resided in Australia since 2000 and has been employed as a truck driver and fork-lift driver. The applicant has provided no character references, including from his girlfriend “K”.
The applicant has demonstrated a long-term pattern of repeatedly committing serious offences and disregard for the Australian law and judicial system.
In assessing all the relevant evidence against the requirements of the Direction, it is my view that the Australian community would have no sympathy for the applicant given the frequency and seriousness of his crimes.
On balance, I am satisfied the third primary consideration counts against revoking the mandatory cancellation of the applicant’s visa.
OTHER RELEVANT CONSIDERATIONS IN DIRECTION NO. 65
Paragraph 14 of the Direction sets out other considerations that must be taken into account in deciding whether to revoke the visa cancellation. Relevant considerations in this matter are the strength, nature and duration of the applicant’s ties to Australia, and extent of impediments if he is removed.
There is no evidence before the Tribunal that other considerations including international non-refoulement obligations, the impact on Australian business interests and the impact on victims are relevant to these proceedings.
Strength, nature and duration of ties to Australia
I now consider the strength, nature and duration of the applicant’s ties to Australia and the extent of impediments if he is removed to New Zealand.
Paragraph 14.2(1) of the Direction provide that:
Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
In his personal circumstances form dated 4 May 2017, the applicant stated:
Australia has change [sic] me to a better person. To take that from me I really don’t know where or what I’m gonna do. Please please don’t take this from me. I am really sorry in what I have done. Please give me one more chance so I can be with my family.[16]
[16] Exhibit G-G9, p 40.
The applicant’s girlfriend “K” is an Australian citizen and resides in Australia. However, apart from the applicant’s written submissions, there is no evidence before the Tribunal about the status of this relationship.
Given the length of the applicant’s time in Australia, I am satisfied he has some social ties to Australia. I find that consideration of the applicant’s ties to Australia weighs in his favour.
Extent of impediments if the applicant is removed
The extent of impediments if the applicant is removed from Australia relies on his capacity to reside in New Zealand. Pursuant to paragraph 14.5 of the Direction, I must consider the applicant’s age and health, whether there are any substantial language or cultural barriers, and any available social, medical and/or economic support.
The applicant is 43 years old. There is some evidence before me that the applicant has depression. As a citizen of New Zealand, however, he would have access to a public health system and social welfare. There is no language or cultural barrier to the applicant returning to New Zealand and obtaining employment. I also note the applicant’s father and children reside in New Zealand, which suggests the applicant would have familial support in New Zealand.
I find there are no substantial impediments preventing the applicant commencing a life in New Zealand.
CONCLUSION
The first and third primary considerations weigh against the revocation of the cancellation decision, and the second primary consideration has no significant relevance to this matter.
In regard to the other considerations, I find the applicant’s ties to Australia weigh in his favour and the impediments to his removal from Australia do not.
In these circumstances, it is not appropriate for me to revoke the decision to cancel the applicant’s visa.
DECISION
The Tribunal affirms the decision under review.

63. I certify that the preceding 62 (sixty - two) paragraphs are a true copy of the reasons for the decision herein of Dr L Bygrave, Member

..................................[sgd]......................................
Associate
Dated: 7 September 2018

Date(s) of hearing: 27 August 2018

Applicant: No appearance

Solicitors for the Respondent: Andrew Keevers, Sparke Helmore Lawyers

[2018] AATA 3274

7 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Date(s) of hearing:	27 August 2018
Applicant:	No appearance
Solicitors for the Respondent:	Andrew Keevers, Sparke Helmore Lawyers