Van Lith and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1459

Van Lith and Minister for Immigration and Border Protection (Migration) [2017] AATA 1459 (14 September 2017)

Division:GENERAL DIVISION

File Number:           2017/3913

Re:Patrick Van Lith

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member T. Tavoularis

Date:14 September 2017

Place:Brisbane

The decision under review is affirmed.

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

Senior Member T. Tavoularis

MIGRATION – Visa Refusal – Applicant is a citizen of New Zealand – Applicant applied for Bridging visa – s 501 character test applied – history of offending - Applicant does not pass character test in s 501(6) - whether discretion to refuse visa should be exercised – whether considerations in Direction No. 65 weigh in favour of refusing visa – visa should be refused – decision under review affirmed.

Legislation

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

Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 (Qld), s 50

Secondary Materials

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

REASONS FOR DECISION

Senior Member T. Tavoularis

14 September 2017

INTRODUCTION

1. This is an application for review of the decision by a delegate of the Minister of Immigration and Border Protection (the “Minister” or “Respondent”) to refuse Mr Patrick Van Lith (“the Applicant”) a Bridging E (Class WE) visa pursuant to section 501(1) of the Migration Act 1958 (Cth) (“the Act”).

2. Under section 500(1)(b) of the Act, this Tribunal has jurisdiction to review the decision made by the Minister’s delegate.

   BACKGROUND

3. The Applicant is a citizen of New Zealand. He is currently 59 years of age. He first entered Australia on 5 February 1983.[1] The Applicant had a history of offending in New Zealand prior to his arrival, which has continued whilst he is in Australia.

   [1] See Exhibit 4, ‘Section 501 G documents’, G14, p 95.

4. The Applicant has returned to New Zealand once, departing Australia on 12 November 2014 and returning on 24 November 2014.[2]

   [2] See Exhibit 4, G14, p 92.

5. Upon re-entry into Australia on 24 November 2014 the Applicant ticked ‘yes’ on the incoming passenger card to the question: “do you have any previous criminal convictions?” Subsequently, the Applicant was detained and questioned by border security. The usual Class TY subclass 444 (Special Category) visa was refused on the basis he was assessed to be a behaviour concern non-citizen (pursuant to the definition in s 5(1) of the Act) and therefore did not satisfy the criteria for a special category visa in

   
   

   s 32(2) of the Act. Department records indicate that the Applicant had previously been subject to a s 16 deportation order, which was signed on 6 June 1984, but the Department had lost contact with him until his departure and return to Australia in November 2014.[3] The Applicant was invited to apply for a 30 day border visa, which he did.

   [3] See Exhibit 4, G14, p 93-95.

6. On 21 March 2017 the Applicant lodged an application for a Bridging E (Class WE) visa (“the visa”).[4]

   [4] See Exhibit 4, G3 and G9.

7. On 27 April 2017 the Department of Immigration and Border Protection (“the Department”) sent the Applicant a Notice of Intention to Consider Refusal of his visa application on the basis that the Applicant did not pass the character test in section 501(6) of the Act.[5]

   [5] See Exhibit 4, G3.

8. On 19 June 2017 the Applicant responded to that letter and provided documents in support of his visa application, including a personal circumstances form, character references (multiple), state reporting bureau (comments on last page),[6] and medical documents.[7]

   [6] Presumably the District Court Transcript of Proceedings dated 28/3/2008 - Sentencing remarks of Judge Wall QC (which are reproduced at Exhibit 4, G16).

   [7] See Exhibit 4, G4 and G5.

9. On 28 June 2017 a decision was made to refuse the Applicant a visa pursuant to section 501(1) of the Act. Notice of the visa refusal decision was hand-delivered to the Applicant who acknowledged receipt on 29 June 2017.[8]

   [8] See Exhibit 4, G7 and G8.

10. On 5 July 2017 the Applicant applied to this Tribunal for review of that visa refusal decision.[9]

    [9] See Exhibit 4, G2.

    ISSUES

11. The decision to refuse the Applicant’s visa was made on the ground that the Minister’s delegate was not satisfied that the Applicant passed the character test, having specific reference to s 501(6)(a) and s 501(7)(c). After taking into account the relevant considerations the Minister’s delegate decided to exercise the discretion in s 501(1) of the Act to refuse to grant the Applicant’s visa.

12. The issues for this Tribunal to consider are essentially the same, being:

    i.whether the Applicant passes the character test as defined in s 501(6) of the Act; and

    ii.if he does not pass the character test, whether the discretion in s 501(1) of the Act should be exercised to refuse to grant the Applicant the visa.

    ISSUE 1: CHARACTER TEST

13. The first issue I must consider is whether, objectively speaking, the Applicant passes or fails the character test as defined in s 501(6) of the Act.

14. Section 501(6) of the Act provides a number of circumstances in which someone will not pass the “character test”. Most relevant here is s 501(6)(a), under which a person does not pass the character test if they have a “substantial criminal record” as defined in s 501(7). In s 501(7)(c), a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.

15. The Applicant has a lengthy criminal history both in New Zealand and Australia.

    Summary of criminal offending

16. The Applicant’s criminal history in New Zealand (spanning 1975 – 1982) can be summarised as follows:[10]

    ·Four offences of driving while disqualified (committed variously in 1975, 1976, and 1977);

    ·One offence of obstructing police, three burglary offences, one offence of unlawfully taking a motor vehicle and one offence of theft (committed in 1975);

    ·One offence of receiving, plus additional offences of unlawful possession of a shotgun, possession of cannabis and three offences of aggravated robbery. Most notably the Applicant was also first sentenced to a custodial term for these three aggravated robbery offences (committed in 1977);

    ·One offence of common assault, one offence of breach probation and one offence of aggravated robbery (committed in 1980); and

    ·One offence of theft in relation to property (committed in 1982).

    [10] See Exhibit 4, G11, pp 87 – 88 – New Zealand Police Certificate dated 24.11.2014.

17. The Applicant’s criminal history in Australia (spanning 1983 – 2011) can be summarised as follows:[11]

    ·One offence of theft (committed in 1983);

    ·One offence of using a weapon to prevent investigation and one offence of assault occasioning actual bodily harm (committed in 1992);

    ·One offence of driving a vehicle with a prescribed concentration of alcohol in the high range and an associated offence of unlicensed driving (committed in 1995);

    ·One offence of misappropriation of property (committed in 1996);

    ·Two offences of indecent treatment of child under 16 (committed in 2005, sentenced in 2008); and

    ·One failure to comply with reporting requirements (committed in 2011).

    [11] See Exhibit 4, G10, pp 85 – 86 – National Police Certificate dated 18.04.2017.

18. On 28 March 2008 the Applicant appeared before the Townsville District Court for the 2005 charges of indecent treatment of child under 16. For each offence he was found guilty on his own plea and sentenced to a term of imprisonment of 12 months, which was wholly suspended for two years. In his sentencing remarks the District Court Judge (Wall DCJ) noted the offences as “serious” and that the Applicant clearly took advantage of the two victims via the use of alcohol. The sentencing judge was in no doubt that the Applicant “took advantage of these two young girls”.[12]

    [12] See Exhibit 4, G16, p 99.  

    Character test conclusion

19. The wording of s 501(7)(c) is clear: it relates to the sentence imposed by a Court, not the amount of time a person has actually served. In circumstances where this Applicant has received two sentences involving a custodial term of imprisonment of 12 months, he therefore does not pass the character test. It is irrelevant whether or not he spent any time in actual custody.

    ISSUE 2: DISCRETION TO REFUSE VISA

20. In circumstances where a visa Applicant does not pass the character test, the determinative issue then becomes whether the decision maker should exercise the discretion in s 501(1) of the Act to refuse the visa.

21. When considering whether or not to exercise the discretion in s 501(1) of the Act a decision maker must have regard to the policy that informs that decision making process. The policy informing decisions in relation to visa refusals, cancellations or refusals to revoke a mandatorily cancelled visa has been set out in Direction No. 65.

    The Legislative Framework

22. In considering whether to exercise the discretion in s 501(1) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with Direction No. 65 (“the Direction”). The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:

    … a decision maker must take into account the considerations in Part A or Part B where relevant in order to determine whether a non-citizen will forfeit the privilege of being granted or of continuing to hold a visa.[13]

    [13] Direction No. 65, paragraph 7(1)(a).

23. The Direction requires that any exercise of the discretion in s 501 is to be informed by the Principles in paragraph 6.3. Briefly stated, they are summarised as follows:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (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 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 future risk of similar conduct in the future is unacceptable;

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal for minor children and other immediate family members in Australia are considerations for determining whether to exercise the discretion.

24. The considerations relevant to refusing a non-citizen’s visa application appear in Part B of the Direction. Paragraph 11 of the Direction provides the three primary considerations that the Tribunal must take into account:

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

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

    c)    Expectations of the Australian community.

25. Paragraph 8(1) of the Direction provides that decision-maker must take into account the primary and other considerations relevant to the individual case. The other considerations which must be taken into account for visa refusal matters are provided in a non-exhaustive list in paragraph 12 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Impact on family members;

    (c)Impact on victims; and

    (d)Impact on Australian business interests.

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

26. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 11.1 of the Direction further provides that decision-makers should also give consideration to:

    (a)The nature and seriousness of the non-citizen’s conduct to date; and

    (b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    (a)The Nature and Seriousness of the Applicant’s Conduct to Date

27. Paragraph 11.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct, which relevantly includes the following:

    a.The principle that violent and/or sexual crimes are viewed seriously;

    b.The principle that crimes committed against vulnerable members of the community (such as minors, 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;

    c.…

    d.…

    e.The sentences imposed by the courts for a crime or crimes;

    f.The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    g.The cumulative effect of repeated offending;

    h.…

    i.Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

28. It is difficult to escape the Minister’s contention as to the seriousness of the Applicant’s criminal offending. He has committed serious and violent offences ranging from common assault, aggravated robbery, assault occasioning actual bodily harm and, as mentioned earlier, indecent treatment of a child under the age of 16 years (x 2). I therefore accept the contention that these crimes should be characterised as serious and that his sentences are an accurate reflection of the nature of his offending.

29. The Applicant’s offending commenced in New Zealand in 1975 when, as a 17 year old, he commenced his pattern of offending by operating a motor vehicle whilst disqualified from driving. His initial refusal to accept and submit to lawful authority was contemporaneously followed with an offence involving the obstruction of police from conducting their lawful activities.

30. It is plain from his history and, indeed, from early in that history, that the Applicant’s criminal conduct quickly evolved into a belief in some kind of right to interfere with the rights of others. What then follows (in 1975) are three burglary offences and an offence involving the unlawful taking of a motor vehicle. This theme of non-acceptance of lawful authority and scant respect for the personal and property rights of others remained a constant theme throughout his pattern of offending.

31. In 1977, we see the first inkling of substance abuse that seems to have conditioned or motivated much of the Applicant’s conduct giving rise to his pattern of offending. In 1977 he was charged with possession of cannabis. It was clear from his own evidence at the hearing before me that he has experienced a life-long struggle with unlawful substances and alcohol. Although not clear from the material, it is not too significant a leap of faith to believe that much of his offending and his attempts to resolve disputes with others have both been motivated or conditioned by his substance abuse issues.

32. The Applicant arrived in Australia in 1983. As is so often heard in matters such as this, the intention was to try and make a “fresh start” here. A cursory reference to his pattern of offending in Australia clearly demonstrates this did not occur. He commenced offending quite soon after arriving here, committing a theft offence which was detected by law enforcement authorities and for which he was duly punished.

33. As was the case in New Zealand, his propensity towards unlawful conduct did not dissipate nor did it level out. Exactly as occurred in New Zealand, it escalated in type and severity. In December 1991 the Applicant used a weapon to stifle an investigation by lawful authority. Again, the concurrent theme of not respecting the personal rights of others re-emerged because he was convicted of one charge of assault occasioning actual bodily harm.

34. The circumstances of this assault matter are at once both significant and disturbing. The appalling attack was perpetrated upon an individual whom the Applicant believed was making untoward advances to his then girlfriend. Although there is some difference between the account provided by the victim and that of the Applicant, there is no escaping the reality that the attack was both menacing and brutal and involved the deprivation of the victim’s liberty such that the Applicant sought to unilaterally impose his idea of discipline and dispute resolution to resolve an issue in his life.

35. There was a further transgression with the property rights of others resulting in a misappropriation of property charge in 1996.

36. What then follows is, to my mind, an inexcusable and probably fatal (for present purposes) escalation in the unlawful conduct. In 2005, the Applicant was charged (and eventually convicted in 2008) of two offences relating to indecent treatment of a child under the age of 16 years. I have had reference to the police material summarising the factual circumstances around this charge. [14]

    [14] See Exhibit 3 – Summons material from Queensland Police (pp 2 – 5).

37. At the hearing before me, the Applicant initially cavilled with a suggestion from the Respondent’s representative that the circumstances of this offence were indeed serious. The Applicant suggested that those circumstances had been “just blown out of proportion”. But that is not the reality. The factual summary around this offending appearing in the police material refers to not only the Applicant encouraging consumption of alcohol by the two victims (aged 13 and 14 respectively). The factual summary also has reference to physical interference. This version is not consistent with what the Applicant initially sought to establish in cross-examination, that is, that the incident involved light hearted frivolity involving him eventually convincing the under aged victims to remove most, if not substantially all, of their clothing so that he could take lewd and inappropriate photographs of them.

38. Rather, the factual summary provided by the police makes it clear that the circumstances of the offence alleged by either or both of the victims was markedly different and, indeed, significantly more serious. The Applicant told the hearing that at his trial, the more significant and serious component of the factual circumstances recounted by the victims involving actual physical interference was apparently either discontinued by the prosecution or, in the alternative, that he was found not guilty of any such more serious offence.

39. Irrespective of the specific charge(s) for which he was sentenced, it is worth repeating and bearing in mind that the sentencing judge was clearly of a mind that the offending was “serious” involving the Applicant having “plied” a 13 and 14 year old girl with alcohol. The sentencing judge had no doubt (and nor do I) that the Applicant “took advantage of these two young girls”.[15]

    [15] See Exhibit 4, G16, p 99, being the Transcript of District Court Sentencing remarks Wall DCJ on 28/3/2008.

40. His pattern of offending concludes with an offence of failing to comply with a reporting requirement issued to him by lawful authority in 2011. Section 50(1) of the Child Protection (Offender Reporting and Offender Prohibition Order) Act 2004 compels a “reportable offender” to comply with his/her reporting obligations, unless that offender has a reasonable excuse to not do so. The Cairns Magistrates Court could not find any such reasonable excuse and proceeded to fine the defendant (the Applicant in this matter) the sum of $300 and record a conviction. As best as I recall his evidence, the Applicant cited the tepid excuse of being drunk and thus forgetting the reporting requirement. To my mind, this behavioural episode succinctly summarises the recurring themes apparent in the Applicant’s unlawful conduct. This is because (1) the original offence giving rise to the reporting requirement is serious; (2) he does not have sufficient respect for lawful authority to observe and comply with a consequential reporting requirement; and (3) he fails to comply with that requirement because he cannot get on top of his issues with alcohol.

1. To be fair to the Applicant after both the Respondent’s representative and I took him through the entirety of his criminal offending, he eventually agreed that his offending had in fact been “shocking” and that he was not actually aware of how extensive it was until his attention had been directed to it as part of this review process.

2. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 11.1.1 of the Direction affords decision-makers guidance by reference to a number of factors. I cited those factors above[16] and now have regard to the relevant ones as follows: (a) the Applicant’s sexual offences must be viewed seriously; (b) he has offended against vulnerable members of the community (such as minors), which is viewed seriously; (e) the sentencing courts have on more than one occasion (1977 and 2008) imposed a custodial term (a sentencing option of last resort) for those crimes; (f) the consistency and frequency of his offending throughout nearly all of his adult life manifested in a concerning trend of increasing seriousness; and (g) the cumulative effect of repeated offending against the personal and property rights of others and a refusal to respect lawful authority is clearly of a serious nature.

   [16] See paragraph 27 of these reasons.

3. Upon application of the above factors to both the written and oral evidence now before me, I have little difficulty in agreeing with the Minister’s delegate in finding that the nature and totality of the Applicant’s offending can only be viewed seriously in terms of its overall impact on the community.

   (b)The Risk to the Australian Community Should the Applicant Continue to Commit further Offences or Engage in Other Serious Conduct

4. Paragraph 11.1.2(3) of the Direction provides two of the factors the Tribunal must have regard to in determining the risk to the Australian community of the Applicant re-offending or continuing to engage in other serious conduct. Stated briefly they are:

   (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, and the duration of the intended stay in Australia.

   The Nature of Potential Future Harm

5. The Applicant has committed a number of offences involving significant transgressions against the personal and property rights of others. He has committed at least five criminal offences involving the infliction of physical harm on others.[17] This offending can only be viewed as serious. There are at least three criminal offences involving a refusal to respect lawful authority (one of obstructing police, one of using a weapon to prevent an investigation, and one of failing to comply with a reporting requirement). There is a parallel theme in his history of refusing to respect the property rights of others, as is evidenced by his various theft and robbery offences culminating in the misappropriation of property conviction in 1996.

   [17] This list includes the offences of indecent treatment of child under 16.

6. There is a clear consistency in the offending both in terms of its type, severity and his refusal to submit to lawful authority. The Applicant’s criminal history is suggestive of an overall demeanour, most probably motivated by unresolved substance abuse issues, orienting him towards feeling that he could automatically get his own way or otherwise not allowing anything else to get in the way of what he wants to achieve. Despite the no doubt numerous warnings he would have received from sentencing courts, he continued to re-offend.

7. Having regard to the nature of this past conduct, should he re-offend in a similar manner, I am of the view that he would pose a very significant risk to individuals in the Australian community. His offending against the personal rights of others, the property rights of others, and his consistent refusal to submit to lawful authority – if repeated – could result in members of the Australian community suffering anything from financial loss, serious physical and/or psychological injuries to, conceivably, death.

8. Though I have previously said that it is quite likely that this Applicant’s offending has been motivated by unresolved substance abuse issues, I do not accept his evidence that he is now a reformed drinker and is no longer interested in illegal substances. Despite the contentions of the Applicant, he conceded there was simply no available medical or other evidence to in any way convince a decision maker that those substance abuse issues had been resolved. I therefore find that his contention of posing no future risk of harm to be unsubstantiated. Taking into consideration the nature of his previous offending, I consider that the potential future harm he may cause to members of the Australian community is significant.

The Likelihood of Re-offending, or Continuing to Engage in Other Serious Conduct

1. The Applicant contends that he is not likely to continue to offend or otherwise engage in serious conduct because he has moderated his drinking habits and no longer has an involvement in illegal drugs. He says he is remorseful, that he has changed his ways and that the version of himself represented by his criminal history no longer exists. He speaks of being seriously ill with issues affecting his lungs and, consequently, his capacity to look after himself and otherwise manage his affairs on a day to day basis. He told the hearing that he is apparently reliant on a close circle of friends to assist him through life. The sum total of his evidence seems to be that his current health condition has seen him take steps to rehabilitate himself. However, in the absence of any convincing and forensic psychiatric examination and report (dealing with resolution or management of his substance abuse issues) and a medical report detailing his asserted physical health maladies, one has difficulty in being convinced that there is some kind of underlying mental or physical health (or both) rationale behind a pattern of offending – indeed serious offending – that has run for over 36 years (1975 – 2011).

2. Whilst I recognise that the Applicant says that the spectre of deportation will have a lasting impact on his behaviour, I do not consider this sufficient ground for finding that he is not likely to re-offend.

3. The Applicant has received two custodial sentences for his offending (in 1977 and 2008), yet this has had no discernible impact on his pattern of offending or his behaviour more generally. It is therefore unlikely that being detained or being removed from his friends and family is a sufficient catalyst for the Applicant to change his ways. As mentioned earlier, he has no doubt received multiple warnings from sentencing courts in relation to any continuation in his offending. Yet, armed with those warnings, the pattern of offending continued.

4. This indicates to me that even if the Applicant genuinely considers himself a changed man, in the absence of medical evidence demonstrating rehabilitation from his substance abuse issues, it is, on the strength of the evidence before me, more likely than not that he will return to his previous pattern of offending.

5. There are four key characteristics of the Applicant’s criminal history and conduct to date that further point towards the likelihood of his re-offending.

6. First, as briefly mentioned above, his offending has continued over a long period of time (over 36 years), at fairly consistent, often increasing, levels of seriousness.

7. Second, in addition to his offending, the Applicant’s history of a refusal to accept and respect lawful authority is, to my mind, of particular concern. In considering matters like this, I have regard to the nature and severity of the offending. That type of conduct could, on some occasions, be understood where it derives from a dispute between two private citizens, or alternatively, for example, the offender’s addiction to illicit substances. However, when that offending involves repeated challenges to lawful authority in the form of a refusal to acknowledge that lawful authority, the offending becomes, to my mind, of a nature that is more likely to be repeated. This is because the offender often does not fear retribution by lawful authority for his offending. In those circumstances the risk of re-offending is thus higher.

8. Third, it should be noted that the Applicant talks about having serious health issues and that he is otherwise remorseful for what he has done. At the hearing he spoke of a difficult childhood having endured both physical and sexual abuse while under the care and supervision of others. He also experienced the loss of his mother at the relatively young age of 12 years. Frustratingly, there was no forensic or analytical report before me describing the effect those episodes (and perhaps others) have had in the development of the Applicant’s persona throughout his life and how those factors have materially contributed to his serious history of offending. I therefore have misgivings about these types of factors raised, as it were, at “death’s door”, when applications like this come before tribunals or courts for determination. One wonders about the reason for the Applicant’s silence and absence of complaint about these factors throughout his adult life thus far and why these factors only emerge when serious decisions about these types of applications have to be made. 

9. Finally, the Applicant initially sought to downplay and minimise the circumstances of his past offending. His initial demeanour in giving his evidence seemed to suggest that much of his offending was due to extraneous factors (such as the abovementioned asserted past trauma) and that this somehow generated symptoms within him, resulting in abuse of alcohol and illicit drugs, that in turn, has materially caused his past offending and criminal behaviour.  

10. In consideration of the above factors, I determine that primary consideration A weighs heavily in favour of the Applicant’s visa being refused. 

    Primary Consideration B: The Best Interests of Minor Children in Australia

11. The evidence presented suggests that the Applicant has two adult biological children, one of whom resides in Sydney and the other in Tasmania. Additionally, he has four grandchildren.

12. As pointed out by the Respondent,[18] paragraph 11.2(2) of the Direction makes it clear that this consideration only applies if a child of the applicant is or would be under 18 years old at the time when the decision to refuse to grant the visa is expected to be made.

    [18] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions, at [33].

13. This, of course, is not the case with the Applicant’s children. During the hearing I sought to obtain some type of response from the Applicant about whether or not he plays any kind of parenting, parental or other supportive role in the lives of his grandchildren. The Applicant told the hearing that he has not met the grandchildren[19] (in person) but that he speaks to them by phone and otherwise keeps in contact via Facebook and social media.

    [19] The grandchildren are aged between 5 – 10 years.

14. In the absence of evidence indicating any type of “in person” positive parental role now and into the future between the Applicant and his grandchildren, I will apply paragraph 11.2(4)(a) of the Direction, which stipulates that less weight should generally be given where the relationship is non-parental or there is no existing relationship or limited meaningful contact.

15. I therefore find that no significant weight attaches to this factor in favour of not exercising the discretion to refuse the Applicant’s visa.

    Primary Consideration C: The Expectations of the Australian Community

16. I turn now to the final primary consideration: the expectations of the Australian community.  In making this assessment, paragraph 11.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Additionally, whether the Australian community would expect that someone with his character concerns and history of offending should not be granted a visa. I must also have regard to the Government’s views in this respect.

17. The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 11.3(1) of the Direction guides a decision-maker to exercise the discretion to refuse a visa as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Taking into account the consistent and quite serious nature of his offending for which he has been charged and convicted, there is, to my mind, little or no doubt that the Australian community would expect that this Applicant should not hold a visa.

18. The inexcusable offences against the personal and property rights of other people could – on their own – quite understandably result in a lowered tolerance in the Australian community of any criminal or other serious conduct. This offending is further adversely flavoured by his refusal to submit to lawful authority and by the consistent and often escalating nature of his offending.

19. This Applicant is aged 59 years. He first came to Australia as a 24 year old man. He had a criminal history in New Zealand. He resumed that pattern of offending in the same year that he arrived in Australia. Any contribution he has made to the Australian community had been plagued by constant interactions with lawful authority. Plainly, a failure to resolve his substance abuse issues throughout the course of his adulthood life thus far has caused him to have a propensity towards serious offending instead of getting on with his own career and/or personal development, and in that way, becoming a valued member of the community. 

20. Any contribution this Applicant may have made to this community – not apparent to me from the evidence in any event - is significantly outweighed by his serious conduct resulting in the custodial and other punishments imposed on him. He spoke positively of performing charitable and volunteer work and I have little doubt that given a life away from offending, the Applicant does have potential for enhanced self-development. He speaks of now having a loyal and reputable circle of friends. This too remains unproven – none of them appeared as character references at this hearing – neither orally nor in writing.[20]

    [20] It should be noted that a number of character references were submitted to the Minister’s delegate as part of the process culminating in the decision under review. See Exhibit 4, G 19, pp 116 – 122. As I read those references, none of them directly address the Applicant’s history of offending either in Australia or New Zealand.

21. At the hearing he also spoke of having the respect of his friends who apparently see beyond his previous history of offending and who accept him for the man he is. Be that as it may, the Applicant has, to my mind, a significant way to go before he can convince any decision maker in my position that were he to remain in this country, the Australian community could: (1) reasonably expect there would be no risk of him re-offending, (2) that he has resolved his substance abuse and alcohol issues and that (3) he will live the rest of his life on a crime-free basis seeking fulfilment for himself and positive benefits for the Australian community.

22. I therefore have significant difficulty in accepting this Applicant, with: (a) his total history of offending, (b) the absence of any medical evidence indicating management or rehabilitation of his substance abuse issues, and (c) his minimal contribution to the Australian community – he would meet the reasonable requirements of the Australian community that he hold a visa to stay here. 

23. I therefore cannot believe that the Australian community would expect that someone with a serious criminal record like the Applicant’s would be granted or allowed to keep his visa. 

24. Having regard to all of these circumstances, I find that this consideration weighs heavily in favour of exercising the discretion to refuse the Applicant’s visa.  

    Other Considerations

25. I turn now to the other considerations listed at paragraph 12 of the Direction.[21] I have considered each of the five stipulated sub-paragraphs (a), (b), (c), and (d).

    [21] Direction No 65, paragraph 12(1).

26. With reference to other consideration (a) – International Non-refoulement obligations – I find this consideration is of no relevance nor does the evidence indicate that an assessment of this consideration is necessary in the circumstances as the Applicant is from New Zealand.  There is no assertion by the Applicant that were he to be returned to New Zealand he would be at risk of a specific type of harm relevant to this factor.

27. With reference to other consideration (b) – Impact on family members – the Applicant has been in Australia on virtually a continuous basis since 1983. During his time here his two daughters have presumably settled into relationships. One of his daughters has four children of her own. The Applicant’s evidence was that he is yet to meet the grandchildren despite the eldest of them being 10 years of age. Evidence about telephone and social media contact with his family leads me to the conclusion that there would be no significant impact on his relationship with his daughters and grandchildren were he to be returned to New Zealand. Contact between him and his daughters and grandchildren could be maintained unabated by the telephone and social media channels referred to earlier. As also mentioned earlier and although not strictly relevant to this other consideration, the Applicant spoke of a close circle of friends upon whom he apparently relies. These are social acquaintances that he has no doubt met on a social basis. There seems no impediment to him making similar acquaintances in New Zealand. I accordingly attach no significant weight to this factor in favour of not exercising the discretion to refuse the visa.

28. With reference to other consideration (c) - Impact on victims – the Respondent concedes there is no evidence of any direct harm to victims in Australia if the Applicant were to remain here. Be that as it may there seems little doubt that the Applicant’s offending has resulted in significant physical and/or financial harm to others. My finding is that this other consideration does not assist the Applicant.

29. With reference to other consideration (d) – Impact on Australian business interests – there is no suggestion that any Australian business interests would be impacted if the Applicant’s visa was refused. This particular other consideration is of no weight to my consideration.

    Other comments

30. The Applicant claims that there is nothing for him in New Zealand were he to return there. To my mind, there are no significant practical obstacles to the Applicant resettling in New Zealand. There is no substantial language or cultural barrier between Australia and New Zealand. Similarly, there is a commonality between Australia and New Zealand in terms of the social, medical and economic support available to him.  

    CONCLUSION

31. The Applicant does not pass the character test as defined in section 501(6) of the Act. In then considering whether to exercise the discretion afforded by section 501(1) of the Act to refuse the visa, I have had regard to the considerations referred to in the Direction. Primary considerations A and C weigh heavily in favour of refusal. I have assigned little or no weight to Primary Consideration B. I acknowledge that minimal weight should be allocated to some of the ‘Other considerations’ but not to the extent it outweighs the primary and other considerations which favour refusal.

    DECISION

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

I certify that the preceding 80 (eighty) paragraphs are a true copy of the reasons for the decision herein of Senior Member T. Tavoularis

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

Associate

Dated: 14 September 2017

Date of hearing:	8 September 2017
Applicant:	By phone
Advocate for the Respondent:	M. Hawker
Solicitors for the Respondent:	Sparke Helmore Lawyers