Vaokakala and Minister for Home Affairs (Migration)

Vaokakala and Minister for Home Affairs (Migration) [2018] AATA 4452 (30 November 2018)
Division:GENERAL DIVISION
File Number(s): 2018/5385
Re:Kelly Vaokakala
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A Poljak
Date:30 November 2018
Place:Sydney

The decision under review is affirmed.
.....................[sgd]...............................................
Senior Member A Poljak
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – expectations of Australian community – strength, nature and duration of ties to Australia – extent of impediments if removed – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member A Poljak
30 November 2018

The applicant, Mr Kelly Vaokakala, is a citizen of New Zealand and first arrived in Australia in December 1979, shortly after his birth. He was the holder of a Class TY (Subclass 444) Special Category (Temporary) visa (“visa”).
On 12 April 2017, the applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on character grounds. The applicant made representations to the Minister to have the cancellation revoked under section 501CA of the Act. The original notification of the applicant’s visa cancellation was found to be defective, and he was re-notified on 13 March 2018. The applicant again made representations seeking revocation of the re-notified cancellation decision.
On 12 September 2018, a delegate of the Minister found that the discretion under subsection 501CA(4) of the Act to revoke the cancellation of the applicant’s visa was not enlivened. This is the decision under review in these proceedings.
The issue before the Tribunal in these proceedings is whether the decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Act.
RELEVANT LEGISLATIVE PROVISIONS
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 that 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 subsection 501(7). Section 501(7)(c) 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.
Section 501CA(4) of the Act provides that the Minister may revoke the original cancellation decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.
The power of the Tribunal to review the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is “Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” which commenced on 23 December 2014 (“the Direction”).
CHARACTER TEST
The applicant fails the character test as a matter of law. He has a substantial criminal record in accordance with section 501(7)(c) of the Act as he has been sentenced to numerous terms of imprisonment for periods of over 12 months. As such, the applicant fails the character test in section 501(6)(a) of the Act.
DIRECTION NO. 65
Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of Mr Vaokakala’s visa.
Under the heading General Guidance (paragraph 6.2), the Direction provides in part:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These 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 a non-citizen’s visa should be cancelled, or their visa application refused.
The Direction at paragraph 8 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.
The three primary considerations which the Tribunal must take into account are set out in paragraph 13(2) of the Direction 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.
PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens…
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the applicant's conduct to date
The extent of the applicant’s criminal offending is detailed in his National Police Certificate dated 7 May 2018 (“National Police Certificate”). The applicant has a lengthy and considerable criminal history dating back to 1998, when he was just 18 years of age.
The nature and seriousness of the applicant’s conduct are relevant considerations when assessing the risk to the Australian community should the applicant commit further offences or engage in other serious conduct. Paragraph 13.1.1(1)(a) of the Direction provides that offences involving violence are viewed very seriously. Given the extent of the applicant’s criminal history, which includes a serious violent event, the applicant’s criminal conduct is viewed very seriously.
The National Police Certificate reveals that the applicant has been convicted of two counts of “take/detain person” (kidnapping) and one count of “aggravated break and enter and commit serious indictable offence - inflict grievous bodily harm”. The circumstances of these offences are detailed below.
On 22 May 2009, the applicant was convicted of four offences, namely, “supply a prohibited drug”; “knowingly deal with proceeds of crime-si”; “supply prohibited drugs on an ongoing basis-si”; “Take/detain person with intent to obtain advantage-si” and “Sp agg b&e & commit serious indict offence-inflict gbh-si”. In sentencing remarks, Judge Flannery of the District Court of NSW, noted:
“[The applicant] pleaded guilty in the Local Court to a charge that he supplied cocaine on an ongoing basis between 1 February and 28 February 2007 and to a charge that he knowingly dealt with the proceeds of crime. He pleaded guilty in this court to the charges of aggravated kidnapping and aggravated break enter and steal which were committed on 16 May 2007”.
In regards to the supply charges, Judge Flannery on sentencing found that the offence committed by the applicant was relatively low in objective criminality and noted that the quantity of drugs supplied by the applicant was small. In sentencing remarks she said:
“They were each operating at a very low level in the organisation which albeit was one of some sophistication. There was no dissemination of the drugs into the community, although of course the offenders were not to know that and I accept that each of them committed the offence to fund his own drug habit. I am also satisfied that the objective criminality of the offense of being knowingly concerned in the proceeds of crime is relatively low”.
In regards to the offences of “take/detain person” and “aggravated break and enter and commit serious indictable offence-inflict grievous bodily harm”, the details and seriousness of the offending behaviour is detailed in the sentencing remarks. Judge Flannery outlined:
“The Crown submitted that this was a very serious example of the offence. It was committed at 2.20 in the morning. Thirty minutes before the offence was committed, the two offenders were on the phone discussing what was to happen and the Crown says the phone call makes it clear that Mr P and [the applicant] were directly involved in the commission of the offence although they did not actually enter the room. He pointed out that although only one circumstance of aggravation is pleaded, that two other circumstances are present and should be taken into account. They are that the offenders were in company and they knew [the victim] would be at home.
Mr Paish submitted that I would not find that this offence is a mid-range offence because his client had a subsidiary role to the two main offenders. He did not enter the room and was not armed and because I would find that the telephone call thirty minutes or so before the commission of the offence, makes it clear that although there must have been some earlier discussion about what was to take place it was not extensive until that telephone call it did seem that the arrangement did not involve [the applicant]”.
Judge Flannery found:
“I consider this offence is a mid-range offence. In making that finding I take into account that apart from the circumstance of aggravation relied upon to found the charge, two other circumstances are present. I also take into account that [the applicant] held the door to the victim’s room closed to ensure that the victim did not escape until the two armed assailants had finished menacing [the victim] and that it was Mr P prevailed upon [the applicant] to take part in the commission of the offence.
I accept the submission of Mr Williams that the steal from person offence was committed spontaneously and opportunistically and no doubt because Mr P saw the laptop and realised he could easily convert it into money for drugs.
The only aggravating feature that it is suggested has application here is that both offenders were on s 9 bonds at the time of the commission of the offences with which I am dealing. I find each offence is aggravated in the way suggested”.
The applicant was convicted of all charges and received a total sentence of 5 years and 1 month with a non-parole period of 3 years and 1 month. This calculation of the term of imprisonment is a combination of both concurrent and partially cumulative sentences for the offences. Judge Flannery notes in the sentencing remarks:
“I propose to impose concurrent sentences in relation to the supply offence and the knowingly deal with proceeds of crime offence in relation to [the applicant]…
I also propose to impose concurrent sentences for the aggravated kidnapping and the aggravated break enter and steal offence. I do so because I consider that the aggravated kidnapping and the aggravated break enter and steal offence were very much a part and parcel of the same incident.
I will then partially accumulate the sentences I impose in relation to those matters upon the sentences I impose for the supply offence to reflect that they are separate and distinct defences committed at different times”.
On 22 May 2012, the applicant was convicted of “take/detain person in company with intent to obtain advantage”. The offence was committed on 27 March 2011, while the applicant was on parole. The facts of this offence were disputed and subject to a disputed facts hearing, however I note that the applicant entered a plea of guilty to detaining the victim for advantage whilst in company. Judge Sides of the District Court of New South Wales made some findings about the circumstances surrounding the offence. These are detailed in his sentencing remarks. He states:
“In all the circumstances, the Court is satisfied beyond a reasonable doubt that at least the offender [the applicant] entered the victim’s motel room. There is no evidence of empty beer bottles and no other evidence connecting them to the motel. It is unclear therefore, on the evidence, apart from the evidence of the complainant which is not corroborated, how long the offender [the applicant] remained in the victim’s motel room…
The motive for the detention of the victim was to recover the value of what was lost, that is the $500 or its equivalent in genuine drugs… It is more consistent, in the Court’s view, with the scenario that they sought to paint in evidence that the detention would have gone somewhat beyond the brief period they claim. The evidence, however, does not permit the Court to determine whether it went for as long as the victim asserts. Once it became clear that they were not going to get the restitution they demanded they obviously left the victim and he was able to make good his escape.
As to the taping of the victim’s wrists, there is no evidence of any used tape being found when the police attended the scene and no credible explanation for its absence. In the circumstances the Court is not satisfied beyond reasonable doubt that his wrists were taped…
Clearly, during the period of the detention, the victim feared for his safety. Threats of a very serious nature that were not trifling in nature had been made. He may well have believed that he would be left in circumstances where he might put in a suitcase, thrown off a bridge and effectively left to drown. The Court is not satisfied that he suffered any physical injuries…
It is possible in connection with offences like this for a victim to be left with long-term emotional or psychological problems. The victim was outnumbered by two men who were significantly larger than him and subjected to repeated threats designed to make and fear that he might end up losing his life. However, in all the circumstances the Court is of the view that the offending behaviour is towards the lower end of the range.
The offence was spontaneous and in response to the victim ripping the offenders off. However, that was brought about by their own voluntary participation in illegal activities. They were not entitled to take the law into their own hands to remedy the situation that had developed”.
The applicant was sentenced to a total of 33 months in prison with a non-parole period of 17 months for the offence.
The applicant has subsequently been convicted of four counts of “drive while license cancelled” and one count of “drive vehicle, illicit drug present in blood etc- 1^st off”. All of these offences occurred during the period December 2016 and January 2017. As a result of these offences, the applicant was ultimately sentenced to 6 months in prison from February 2017 to August 2017.
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy and accordingly, any such sentence must be viewed as a reflection of the seriousness of the offence involved. In this case, the applicant has been sentenced to multiple terms of imprisonment over 12 months in length. The lengthiest being a total term of imprisonment of 5 years and 1 month in 2009.
It is also of significance that the applicant’s offending post October 2009, was committed following receipt of formal warnings from the Department; on 28 October 2009 and 7 December 2012. The warning letters specifically stated that the delegate has decided to give the applicant a “formal warning”. The letters clearly state, “Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered” [Emphasis in original]. On 14 December 2012, the applicant signed a formal acknowledgement of the letter dated 7 December 2012. It is plain from these formal warning letters and the applicant’s signed acknowledgement that it would have been abundantly clear to him the possible consequences should he continue to reoffend. The applicant’s concern at this possibility is also captured in a Probation and Parole Service Immigration Report dated 22 July 2009. However, despite these warnings, the applicant continued to reoffend.
Having regard to the circumstances of the applicant’s criminal behaviour and the nature of his offences, I find that the applicant’s conduct is to be viewed very seriously. The applicant’s history of criminally offending spans nearly 20 years and appears to be well entrenched. He has had previous warnings about the potential impact to his visa status and had numerous periods of incarceration; neither had any impact on his offending behaviour. The significant extent of the applicant’s criminal offending over many years and his repeated disregard for the law is alarming. I find that the nature and seriousness of the applicant’s criminal conduct should be viewed very seriously.
(b) The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction. This paragraph provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and 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 applicant re-offending.
The applicant has been convicted of a number of charges relating to illicit drugs. Namely, for possession and charges of supplying a prohibited drug on an ongoing basis. The applicant’s other offences involving kidnapping and break and enter also appear to be drug related. The applicant’s history with drugs and alcohol is extensive and is detailed in the report of Rima Nasr, forensic psychologist, dated 17 May 2012. In summary, Rima Nasr records, according to the applicant’s account:
·The applicant first consumed alcohol socially with his peers at the age of 16 years and would drink 6 beers on a weekly basis. By 18 years of age his alcohol use had increased to a daily basis, such that he was drinking up to 24 beers to ‘feel happy’. He stated it ‘was part of my lifestyle’. The applicant also reported that upon his release in 2010, he was consuming ‘heaps’ of alcohol in a binge fashion ‘three times a week’;
·The applicant reported that he first experimented with cannabis at the age of 16 years and developed a quick dependence, having abused one gram per day until the age of 24 years. From 24 years of age up until he was first incarcerated at the age of 27, the applicant reported that he smoked up to seven grams on a daily basis and mainly when socialising with his peers. It is noted that the applicant said cannabis assisted him to feel better and it seems that he became more heavily dependent on cannabis subsequent to being diagnosed with cancer. It is noted that the applicant abstained from cannabis use while in custody for a number of years however upon his release into the community, the applicant claimed that he experienced difficulty functioning and coping with daily stressors and replaced cannabis use with heroin. It is noted in the report that the applicant ‘displayed a general dependence on substances to cope with stress’;
·The applicant reported that he first experimented with heroin at the age of 25 years and claimed that he used ‘half a gram every three months’ until the age of 27 years. Rima Nasr notes in the report, “his use of heroin appears self-medicative in nature, whereby he described a dependence on heroin as it calmed him in social situations, enabled him to temporarily avoid past traumatic memories of his time in custody and aided him with sleep onset difficulties. Moreover, [the applicant] stated that heroin was ‘easier to get out of my system and get a positive urine’, reinforcing his difficulty abstaining from this substance and highlights his antisocial attitude. This also highlights his propensity to manipulate others to mask the problematic nature of his substance dependence”;
·The applicant reported that he first began using ecstasy at 18 years of age when he was socialising with his friends on weekends and that he would use ‘five to six pills two to three times a week’ until he went into custody at 27 years of age;
·The applicant had an early onset into the use of crystal methamphetamines (ICE). He reported first experimenting with ICE at 13 years of age. He began to smoke this substance regularly from about 25 years of age, whereby he reported using one gram, two to three times per week. By the age of 26, the applicant reported that he was smoking ‘half a gram most days’ except when he was in custody. Subsequent to his release in 2010, the applicant reported that he relapsed on two occasions;
·The applicant reported that he began abusing cocaine at 17 years of age, using ‘two to three points’ on a weekly basis. At the age of about 24 years, when the applicant was diagnosed with cancer, he reported using ‘two to three grams’ of cocaine on a daily basis. Rima Nasr notes in the report, “[the applicant] denied having used cocaine since 2007. Nonetheless, it is clear that his use of this substance has been associated with his involvement in antisocial behaviour and a negative lifestyle, such that he became more heavily involved in criminal behaviour as a means of supporting his cocaine dependence”.
It is also noted in the report of Rima Nasr, dated 17 May 2012, that the applicant had a history with gambling which he reported first beginning at the age of 16 years. It is noted that “from 2005 to 2006, during the period that he was most heavily polysubstance dependent, he reported that his gambling became problematic. [The applicant] stated that he would gamble ‘between $1000 to $8000 most evenings’, which is clearly in excess of his means”. At hearing, the applicant was questioned about the costs associated with his drug and alcohol use and his gambling during the period detailed in the report of Rima Nasr. The applicant stated that ‘business was good’ and accepted that he was referring to the business of selling drugs.
In the report dated 17 May 2012, Rima Nasr details the treatment that the applicant had received for his drug and alcohol use. It is noted that the applicant reported completing the SMART program on two occasions whilst in custody in 2007 and upon his release into the community in 2010. It is also noted that he engaged in the SMART Recovery program on a weekly basis and reported attending weekly Alcoholics Anonymous meetings on approximately 14 occasions prior to his entry into custody. Rima Nasr recommended:
“…given [the applicant’s] substance dependence and risk of relapse, it is suggested that he engage in long-term rehabilitation to assist him to achieve abstinence in a structured environment…
It is recommended as essential that [the applicant] receive ongoing treatment and supportive counselling with a forensic psychologist, to address his substance use, poor anger control and offending behaviour. This will also assist him in hopefully managing his risks relation to reoffending”. [Emphasis added]
At hearing, the applicant confirmed that since 2011/2012 he did not continue with treatment because he thought that he was okay and didn’t need it. The applicant also confirmed that he had no future plans to engage in counselling upon his release to ensure that he does not relapse.
In an Intensive Correction Order Assessment Report dated 4 April 2017, the applicant claimed to have been abstinent from all illicit substances and alcohol for approximately two years. This is contrary to the applicant’s National Police Certificate and the New South Wales Police records, which reveal that on 10 April 2017, the applicant was convicted of “drive vehicle, illicit drug [methamphetamine] present in blood etc- 1^st off” committed on 13 January 2017.
On the available evidence, I am not satisfied that the applicant has adequately addressed his substance abuse issues. Further, there have been limited opportunities to test the applicant’s claims of rehabilitation given that since February 2017; the applicant has been in custody or immigration detention.
In regards to the applicant’s insight into his criminal offending, Rima Nasr notes in the report dated 17 May 2012:
“[The applicant] appeared to experience difficulty accepting responsibility for his offending behaviour, with limited insight, expressed remorse or victim empathy. For instance, [the applicant] stated that ‘he [the victim] is not the victim. I’m in here for something I barely did. I’m so frustrated that I’m in here for that, for him owing me $500”…
His insight into his offending behaviour appeared limited, as too did his sense of remorse and victim empathy. [The applicant] has been convicted of similar offences in the past, in addition to other violent and substance related offences for which he has served several periods of incarceration…[The applicant] has struggled to achieve a sense of stability but rather has been involved in an itinerant lifestyle and displays significant antisocial personality traits and attitudes”.
In sentencing for the offence of “take/detain person in company with intent to obtain advantage” in May 2012, Judge Sides remarked:
“Turning then to the issue of rehabilitation and not re-offending. The offender [the applicant] gave evidence about motives to change associates and address his addictive behaviour. He has done some programs in the past and had the benefit of programs prior to release to parole and whilst on parole. However, he continued to use with the drugs. The Court notes that he has one prior similar matter, although not an aggravated form of the offence, on his record. The Court remains somewhat pessimistic about his prospects of rehabilitation and not re-offending”. [Emphasis added]
The Intensive Correction Order Assessment Report dated 4 April 2017 addresses the applicant’s risk of reoffending and records:
“According to an actuarial risk/needs assessment tool (Level of Service Inventory - Revised), the offender is assessed as a medium risk of reoffending. The offenders criminal genic needs are:
·Alcohol and other drug
·Driving”
I take a dim view of the applicant’s prospects of rehabilitation. The evidence shows that the applicant has had numerous opportunities in the past to cease offending, but continued to do so. In particular, he has committed serious offences while on a good behaviour bond or while on parole for similar offences. The applicant has also been warned on two occasions about potential consequences to his visa status if he were to reoffend, yet this did little to deter him. I have very little faith in his prospects of rehabilitation.
The applicant is a serious repeat offender with a lengthy criminal history in Australia spanning 20 years. The nature of the harm to victims of the applicant were he to reoffend in the future is serious and could involve, psychological harm to victims; physical harm; and financial cost to the community arising from the need for the police and criminal justice system to respond to the applicant’s offending.
Overall, on the evidence before me, I find that there remains a real risk of the applicant re-offending. I am not convinced that any risk, let alone a medium risk, is an acceptable risk, particularly in regards to criminal conduct involving aggravated kidnapping, aggravated break and enter and supplying prohibited drugs on an ongoing basis. As such this primary consideration weighs heavily against a decision to restore the applicant’s visa status.
PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2 of the Direction provides that decision-makers must make a determination about whether cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is, would be, under 18 years old at the time when the decision to cancel the visa is expected to be made.
The applicant has not identified any minor children affected by his visa cancellation. Accordingly, this consideration does not weigh in the applicant’s favour and is neutral.
PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3(1) 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.
In making the Direction, the Minister has made it clear 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 (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding.
Relevant to this matter, I have had particular regard to clause 6.3(5) of the Direction that states in part, “...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”. The applicant arrived in Australia shortly after he was born and has resided continuously in Australia since that date however; he started offending at the age of 18 in 1998 and has continued to offend up until 2017.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J said at [76]:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
Clearly the applicant has not met the community expectation that as a non-citizen he will obey the laws of this country. Given the “nature and character” of the applicant’s criminal offending, I’m satisfied that the community would now expect that the applicant would be denied the opportunity to remain in Australia. He would no doubt have exhausted the trust and patience of the Australian community who would now expect that it is no longer appropriate for it to bear the cost of the resources expended in criminal justice and corrections involved in responding to the applicant’s offending and as stated above, I am not convinced that the applicant has rehabilitated. While the Australian community has greater tolerance for people who have resided in Australia for a long time and from a young age, given the applicant’s long history of offending and the nature of his offences; the tolerance of the Australian community has surely run out.
OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECTION NO. 65
Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked including the strength, nature and duration of his ties to Australia and the extent of impediments if the applicant were removed from Australia.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:
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 person 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; and
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons 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).
The applicant has resided in Australia for the majority of his life; having arrived in Australia shortly after he was born. However, less weight is given to this consideration because the applicant started criminally offending at the age of 18 and has continued to commit criminal offences since that time; a period spanning nearly 20 years. He has been criminally offending in Australia for most of his adult life.
The applicant says that he is close to his mother and siblings, who all reside in Australia, however there is no evidence as to the nature and strength of his relationships with his family members and there have been no statements in support of the applicant provided by any members of his family. A number of the applicant’s family members were present at the hearing to support him and it is reasonable to assume that they will be impacted in some way if the applicant is deported. In any event, the applicant will be able to maintain contact with his Australian based family were he to be removed to New Zealand.
In regards to specific impact, the applicant states in his Personal Circumstances Form dated 22 March 2018, that his parents are disabled and that he was applying to be their full-time carer before he was taken into custody. Notwithstanding this, there is evidence that this carer role is being undertaken by the applicant’s sister and I also note that the applicant has been incarcerated for many years and most recently since February 2017 prior to immigration detention. During this time his family has not been dependent on him financially or otherwise. This was accepted by the applicant at hearing.
The applicant’s employment history demonstrates limited contribution to the Australian community. He has not filed any character references in support from community members.
While the applicant’s strength, nature and duration of ties to Australia may slightly favour the applicant, this consideration is significantly outweighed by the relevant primary considerations of the risk to the Australian community and the community’s expectations.
Extent of impediments if removed
I note that the applicant has concerns about returning to New Zealand because he claims that he has no family or social support in New Zealand.
There is no substantive language or cultural barrier to the applicant returning to New Zealand. As a New Zealand citizen he would have access to a social welfare and a public health system, comparable to those of Australia, which would be available to him if he were to suffer any financial or medical hardship in New Zealand. I accept that the applicant will face a period of adjustment in New Zealand and will face certain impediments. The challenges likely faced by the applicant upon his arrival in New Zealand are not insurmountable.
Overall, this factor favours revocation of the cancellation decision; however it is significantly outweighed by the primary considerations of the risk to the Australian community and the Australian community’s expectations.
CONCLUSION
For the reasons outlined above, the Principles and the two primary considerations of the protection of the Australian community and the expectations of the Australian community, weigh heavily against revocation of the mandatory cancellation of the applicant’s visa. Those Principles and considerations significantly outweigh the other considerations in favour of revocation.

The decision under review is affirmed.

I certify that the preceding 61 (sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

.......................[sgd].............................................
Associate
Dated: 30 November 2018

Date(s) of hearing: 19 November 2018

Applicant: In person

Solicitors for the Respondent: Sparke Helmore Lawyers

[2018] AATA 4452

30 November 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Date(s) of hearing:	19 November 2018
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore Lawyers