VJSG and Minister for Home Affairs (Migration)

[2019] AATA 345

VJSG and Minister for Home Affairs (Migration) [2019] AATA 345 (25 January 2019)

Division:GENERAL DIVISION

File Number(s):      2018/6793

Re:VJSG  

APPLICANT

Minister for Home AffairsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President P Britten-Jones

Date:25 January 2019

Date of written reasons:        4 March 2019

Place:Sydney

For the reasons given orally at the conclusion of the hearing in this matter, the Tribunal affirms the decision under review.

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

Deputy President P Britten-Jones

CATCHWORDS

IMMIGRATION – Mandatory cancellation of visa – Request for revocation of cancellation – Character test – Substantial criminal record over long period – Sentence of imprisonment of 12 months or more – Protection of the Australian community – Best interests of minor children – Expectations of the Australian community – Domestic violence – Other considerations – Strong ties to Australia – Warning given as to consequences of re-offending – Decision under review affirmed.

LEGISLATION

Migration Act 1958 (Cth)

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

Deputy President P Britten-Jones

4 March 2019

1. At the conclusion of the hearing of the above matter, the terms of the decision intended to be made and the reasons therefore were stated orally. After the giving of the oral reasons, the parties, pursuant to section 43(2A) of the Administrative Appeals Tribunal Act 1975, requested the Tribunal to provide a statement in writing of the reasons of the Tribunal for its decision.

2. The oral reasons for the decision have been transcribed. Some minor amendments and additions have been made to that transcript. Whereas those oral reasons, as amended, may reflect the inelegance of an extempore decision, they are in fact the reasons for the said decision.

3. The said transcript is annexed hereunto and furnished to the applicant and the respondent as it is the reasons for the Tribunal’s decision.

I certify that the following 38 (thirty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten-Jones

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

Associate

Dated: 4 March 2019

Date of hearing:	24 & 25 January 2019
Applicant’s Representative:	Ms K Clarke
Respondent’s Representative:	Ms K Hooper & Ms A Davyskib of Minter Ellison

ORAL DECISION OF DEPUTY PRESIDENT P BRITTEN-JONES

1. DEPUTY PRESIDENT: I will give you my reasons and then my decision at the end of those reasons. This is an application for review by the Administrative Appeals Tribunal of a decision of a delegate of the respondent dated 1 November 2018. The Minister’s delegate decided that pursuant to subsection 501CA(4) of the Migration Act1958 (the Act) not to revoke the initial cancellation of the applicant’s special category visa pursuant to subsection 501(3A).

2. The applicant, his mother and his sister all gave oral evidence supplementing their written statements. They were credible witnesses. I was very impressed with the mother and the sister who were very articulate and gave the impression of being very capable persons. The applicant himself was less articulate, but he too displayed candour when giving his evidence. The sister also acted as the representative of the applicant and she did a very good job.

3. In addition to the oral evidence, the applicant relied upon written statements or character references from the applicant’s 12 year old daughter and the children’s maternal grandmother. The thrust of this evidence was that the applicant’s children would benefit from their father remaining in Australia and that all of the circumstances were such that the applicant should be given a chance to prove himself as a father and in the community now that he has served his prison sentence.

4. Much of the documentation relied upon by the respondent goes to the past offending by the applicant. There have been numerous regular and serious criminal offences in the period from 2003 to 2011 carried out by the applicant from age 13 to about age 21. The applicant is now 28 years old. He has been in detention for the last 13 months having served six years of imprisonment immediately before then.

5. A chronology of relevant events in the applicant’s life follows. He was born in 1989 and moved from New Zealand to Sydney at age 8 with his mother, father and younger sister. He committed his first offence at age 13 for robbery in company. In 2004, he was involved in a robbery armed with offensive weapon and damaged property for which he was convicted in the juvenile system. In 2006 his daughter was born.

6. In 2007, there was an offence involving domestic violence, as a result of which he entered into a supervised program for alcohol and drug counselling. There was juvenile detention for a period of approximately four weeks. In 2008, the applicant’s son was born. In 2009, the applicant was convicted of assault occasioning actual bodily harm in an incident. This was the first offence of the applicant in the adult court. He spent one month in gaol as a result of that. Also, in 2009 there was a family law order placing the children with their maternal grandmother.

7. At around about that time and in 2010 the applicant participated in a process of drug and alcohol rehabilitation and attended Alcoholics Anonymous. Unfortunately, there was a relapse because during that year he was convicted of common assault and sentenced to six months imprisonment. This was another episode of what has been described as serious domestic violence.

8. In February 2011, the applicant received a formal warning from the Department of Immigration and Citizenship which he has acknowledged receiving and understanding the consequences of it. In August 2011, the applicant inflicted grievous bodily harm on his then partner. He evaded police until his arrest on 31 December 2011 when he was placed in custody. In September 2011, the maternal grandmother by agreement was given sole parental responsibility for the children. In February 2014, the applicant was convicted by a jury and sentenced to nine years imprisonment for the domestic violence that had occurred in August of 2011. In May 2017, the applicant’s visa was cancelled and on 1 November 2018 a delegate of the Minister for Home Affairs decided not to revoke the cancellation decision.

9. I next deal with the legislative framework. Section 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances. Section 501(6)(a) relevantly provides that a person does not pass the character test if the person has a substantial criminal record. Relevantly a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more. It follows that a mandatory cancellation of a visa arises in circumstances where a person has a substantial criminal record and is serving a sentence of imprisonment.

10. Section 501CA applies if the Minister makes a decision under section 501(3A) to cancel a visa that has been granted to a person. Section 501CA(4) allows the Minister to revoke the original decision in certain circumstances.

11. Next I deal with the issues. The principal matter for determination is whether the discretion contained in section 501CA(4) should be exercised, such that the mandatory visa cancellation decision is revoked. There are two issues to be considered in determining whether this discretion should be exercised. First, does the applicant pass the character test, and second, is there another reason why the mandatory visa cancellation decision should be revoked.

12. With respect to whether the applicant passes the character test, section 501 of the Act relevantly states in subsection (6) that, for the purposes of this section, a person does not pass the character test if the person has a substantial criminal record. The Tribunal is satisfied that the applicant has a substantial criminal record as defined by section 501(7)(c). The applicant has been sentenced to a term of imprisonment of 12 months or more. Consequently pursuant to section 501(6) the applicant does not pass the character test. Thus, this ground cannot be used to enliven the Tribunal’s discretion to revoke the cancellation of the applicant’s visa.

13. As to whether there is another reason to revoke the cancellation, section 501CA(4) of the Act provides for a discretion to revoke mandatory cancellation of a visa. In considering whether to exercise the discretion, the Tribunal is bound to comply with any directions made under the Act; in this case Ministerial Direction Number 65 (the Direction) applies. 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 C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

14. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13.2 of the Direction provides the three primary considerations that the Tribunal must take into account, namely the protection of the Australian community, the best interests of minor children in Australia and the expectations of the Australian community. Paragraph 8.1 of the Direction provides the decision-makers must take into account the primary and other considerations relevant to the individual case. Those other considerations are set out in the Direction.

15. I refer to paragraph 6.3 of the Direction. It sets out a number of principles that inform the decision-maker’s consideration. With respect to the primary consideration, regarding protection of the Australian community, the Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision-makers should also give consideration to the nature and seriousness of the conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. I will address each of these elements in turn.

16. With respect to the nature and seriousness of the applicant’s conduct to date, I refer to paragraph 13.1.1 of the Direction that 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. With respect to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, I refer to paragraph 13.1.2(2)(a) of the Direction which requires me to consider the nature of the harm to individuals or the Australian community should the applicant behave in further criminal or other serious conduct, and paragraph 13.1.2(2)(b) which requires me to have regard to the likelihood of the applicant engaging in further criminal conduct, including any evidence of reoffending and rehabilitation.

17. With respect to the nature and seriousness of the offending by the applicant, the offences include three separate incidents of domestic violence of a serious and escalating nature.  There are also a number of drug offences. The most recent offending resulted in the applicant being sentenced to a term of nine years imprisonment. There is a trend of increasing seriousness and the offending has been frequent. The cumulative effect of the repeated offending is significant. The applicant reoffended soon after receiving his formal warning and soon after providing representations suggesting he had learnt his lesson in response to a previous consideration given to cancelling his visa.

18. In sentencing the applicant with respect to his most recent domestic violence offence, the sentencing judge referred to the offence as an extremely serious one.  Her Honour stated further that the offence, and I quote:

    involved the use of a weapon to inflict serious injury resulting in significant ongoing disability and substantial emotional harm. The offender armed himself with an extremely sharp weapon and he lunged at the victim after earlier assaulting her and threatening to kill her. It was an incident arising out of a domestic relationship, an offence committed in the victim’s home in front of others who were clearly affected by what they witnessed.

19. Her Honour described the applicant’s behaviour as cowardly and his flight from the premises after the offence as consistent with full knowledge of what he had done.  Domestic violence offending must be considered to be very serious offending.

20. With respect to the risk to the Australian community should the applicant commit further offences or engage in other serious conduct, paragraph 13.1.2(1) of the Direction provides that a decision-maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Should the applicant re-offend in the manner he has previously, the nature of the harm likely to be caused includes serious physical and psychological harm and financial harm.

21. It is apparent that the victim of the applicant’s most recent domestic violence offence suffered very significant physical harm as a result of the applicant’s conduct.  With respect to the risk of recidivism on 30 November 2009 sentencing the applicant for offences of assault occasioning actual bodily harm and common assault, the sentencing judge remarked that the assaults on members of the public in public were unnecessary, cowardly and unprovoked. On 25 August 2010, the sentencing magistrate indicated that the applicant had a shocking record of domestic violence.

22. In sentencing the applicant on 21 February 2014, the judge remarked that at the time of the offence, the applicant was on a good behaviour bond, that the applicant had a long history of drug and alcohol abuse, that the applicant had undertaken rehabilitation but relapsed, that the applicant claimed he was motivated to do something about his drug and alcohol abuse, however on his own admission had continued to take illicit substances when in gaol and that this did not bode well for his prospects of rehabilitation, and that the applicant is someone who clearly has difficulty accepting responsibility for his own actions.  Her Honour had difficulty accepting that the applicant was genuinely remorseful and contrite and expressed considerable doubt as to his ability to rehabilitate himself and reform.

23. Further of relevance to the risk of recidivism the applicant received a notice of intention to consider cancelling his visa on 27 September 2010. The applicant provided the Department with a handwritten letter in response to the notice of intention. The applicant asked that his visa not be cancelled because of his Australian citizen children. The applicant also provided a handwritten letter dated on or about 23 October 2010 in response to a notice of intention. The applicant stated relevantly that he had come to the realisation that he could not drink any amount of alcohol, that he planned to go back and do another rehabilitation program and to address his problems so that he never went back to gaol, that he now realised what he had done and what he could lose if he were to be deported and that he asked for one more chance because he knew that he would not reoffend.

24. By letter dated 1 February 2011, the applicant was issued a formal written warning. The applicant received this warning and acknowledged receipt of it. Despite this, the applicant re-offended within a very short period of his being released from gaol. He was released on 10 February 2011 and readmitted to gaol on 31 December 2011 when he was arrested in relation to his offence committed in August 2011.

25. The presence of the applicant’s children has not proven a deterrent in the past, nor has the applicant been deterred by suspended sentences or good behaviour bonds or prior sentences to imprisonment. The applicant has an extensive record of incidents in criminal custody between the period 2011 and 2017. They include, but are not limited to, disobeying a direction, failing a prescribed urine test, failing to comply with correctional centre routine, possessing a drug implement, failing a prescribed drug test and stealing. There is a high and unacceptable risk that the applicant will reoffend causing very significant harm to the Australian community. This primary consideration weighs very heavily in favour of a decision not to revoke the cancellation of the applicant’s visa.

26. Next I consider the best interests of the children. The applicant’s witnesses gave passionate and heartfelt pleas that it is in the best interests of the children that the applicant remains in Australia, especially given the support that they will need as they enter their teenage years. I accept that the children’s interests weigh in favour of revocation of the decision to not revoke the visa, but in terms of the weight that I should give to this factor I note the following matters:

    (a)that the children have been with their maternal grandmother on and off for the majority of the time since 2009;

    (b)that the applicant’s physical presence in his children’s lives has been intermittent due to his own conduct;

    (c)that in the six years in prison, his children did not physically visit him, but that in the 13 months in detention there have been some visits by the children;

    (d)that the children’s paternal grandmother sees her grandchildren regularly and has said that she would always put them first;

    (e)that the daughter is now living with her aunt and she is settled there and is treated like a daughter; and

    (f)that the son is settled and happy with his maternal grandmother in Rylstone where there are support facilities on which the son has ongoing reliance.

27. It will be difficult for the children if the father is deported, but I note that there would be no impact on the current care arrangements. This factor, namely the best interests of the minor children, is favourable to the applicant, but it does not command a significant weight given the factors I have referred to.

28. Next I wish to consider the expectations of the Australian community. Paragraph 13.3(1) of the Direction provides, and I quote:

    The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached or where there is an unacceptable risk that they will breach this true 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.

29. This applies in the case of the applicant. The offences of domestic violence and the risk of reoffending means it is simply inappropriate to revoke the decision.

30. The Australian community has a particularly low tolerance of domestic violence and would expect that this would weigh very heavily against the applicant. The applicant has had multiple opportunities to reform his offending behaviour and has failed to act upon them.  The applicant has not been deterred from offending by terms of imprisonment, nor by the prior warning with respect to the potential for repeated criminal conduct to cause his visa to be cancelled, nor by the presence of his children and a loving sister and mother.

31. There is no independent evidence of any substantial positive contribution to the Australian community by the applicant, although I do note that the applicant has held some jobs and has participated in and obtained certain certificates of qualification whilst incarcerated. I consider that there is a high and unacceptable risk of recidivism by the applicant with the consequential potential for very significant harm to members of the community. The expectations of the community weigh heavily against revoking the cancellation decision.

1. Next I deal with other considerations. Those that are relevant in this case are the strength, nature and duration of the applicant’s ties to Australia, the impact on victims, and the extent of impediments if the applicant is removed to New Zealand. 

2. With respect to the strength, nature and duration of ties, I note that the applicant arrived in Australia in May 1998 when he was only 8 years old and that he commenced offending as a juvenile aged 13 years old. The applicant has ties to Australia owing to the presence of his family members and has contributed to Australian society by virtue of his employment. The applicant arrived in Australia as a minor, however this consideration is mitigated by the fact he started offending as a minor and continued to do so regularly. This other consideration is not particularly significant to the outcome of these proceedings. It marginally favours the applicant.

3. With respect to impact on victims, I note that there is a victim impact statement dated 13 October 2013, and that it supports the drawing of an inference that a decision not to revoke the cancellation of the applicant’s visa would be regarded favourably by the victim, although I note the date and the fact that the victim impact statement was not with respect to this application. I consider that this is a minor factor that goes slightly against the applicant.

4. Next I consider the extent of impediments if the applicant is removed from Australia.  Paragraph 14.5(1) of the Direction provides the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) should be taken into account. It then lists some factors. There are no relevant language or cultural barriers for the applicant should he relocate to New Zealand. The applicant will be able to access health care in New Zealand comparable to that available in Australia and this does include access to methadone program according to some of the material provided by the respondent. New Zealand has a similar culture, language and health system standards to Australia.

5. It is accepted that the applicant will face practical difficulties in establishing himself in New Zealand, however they are not insurmountable. It is accepted that he, his family and children will be emotionally upset should the applicant be required to return to New Zealand. Nevertheless, they can continue to maintain contact by Facetime and phone calls in the same way that contact has occurred in the past when the father has been removed from his children. This other consideration with respect to the extent of impediments is slightly favourable to the applicant.

6. In weighing up the primary and other considerations, I consider that the primary factors of protection of the Australian community and their expectations outweigh the best interests of the children. The other considerations referred to, do not impact this conclusion. If deported, the children will have significantly less to do with their father than if he remained, but that must be seen in the context of the past and them having had relatively little contact with him due to the applicant’s own conduct. The children are lucky to have two very caring grandmothers and a caring and supportive aunt. Their role will continue to be very important.

7. In conclusion, the decision of the Tribunal is to affirm the decision under review, which means that the applicant has not been successful. They are my reasons and that is the decision of the Tribunal.

   END OF ORAL DECISION