VLCN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 4410

VLCN and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4410 (8 December 2022)

Division:GENERAL DIVISION

File Number:          2022/7554

Re:VLCN

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Rebecca Bellamy

Date:               8 December 2022

Date of Written reasons         20 December 2022

Place:Brisbane

The decision under review is affirmed.

..............................[SGD]..........................................
Senior Member R Bellamy

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class EN Subclass 186 Employer Nomination (Permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – persistent offending – decision under review affirmed.

Legislation

Migration Act 1958 (Cth)

Youth Justice Act 1992 (Qld)

Cases

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

FYBR  v Minister for Home Affairs [2019] FCAFC 185.

Minister for Home Affairs v Buadromo [2018] FCAFC 151.

Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member R Bellamy

20 December 2022

1. The Applicant is a 22 year old citizen of South Africa. The most recent visa held by him was a Class EN Subclass 186 Employer Nomination (Permanent) visa (“visa”). His visa was recently cancelled due to his criminal offending, and he has asked the Tribunal to revoke that cancellation.

2. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly 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 paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and

   ·the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

3. Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”. On 24 July 2020, the Applicant was sentenced to 12 months imprisonment with immediate parole. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[1]

   [1]     See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.

4. On 3 December 2020, after the Applicant’s parole was revoked, a delegate of the Minister (“the Respondent”) mandatorily cancelled his visa because he did not pass the character test (see above) and he was serving a full time custodial sentence.

5. On 8 December 2020 the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act which provides:

   The Minister may revoke the original decision if:

   (a)the person makes representations in accordance with the invitation; and

   (b)the Minister is satisfied:

   (i)    that the person passes the character test (as defined by section 501); or

   (ii)    that there is another reason why the original decision should be revoked.

6. On 14 September 2022 the Respondent decided not to revoke the cancellation. On 15 September 2022 the Applicant lodged an application in this Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.

7. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[2]

   [2]     Minister for Home Affairs v Buadromo [2018] FCAFC 151.

8. The hearing of this application took place on 15 November 2022. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”. The Applicant did not have legal representation. He gave evidence via video-conference. Although the Applicant said some things in his written evidence that it transpired were not correct, on the whole, I found him to be honest when he gave oral evidence. He was not evasive and I did not think he sought to tailor his evidence to strengthen his case. He made admissions against his interest when it would have been easy to tell exculpatory lies. In general, I accept his oral evidence. Following the hearing, I was provided with a transcript of the sound recording of the hearing. The transcript contains some inaccuracies. The sound recording, and these written reasons, provide a more accurate record of what was said and who said it.    

   Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?

9. In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.

10. For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must guide a decision maker’s application of Part 2 of the Direction.

11. Those principles may be briefly stated 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. 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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    (4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens 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 by non- citizens who have lived in the Australian community for most of their life, or from a very young age.

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

12. Paragraph 6 of the Direction provides that:

    Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.

13. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account. They are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

14. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests

15. Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

16. I have before me a document entitled ‘Check Results Report’ from the Australian Criminal Intelligence Commission setting out the offences of which the Applicant has been found guilty, the sentences imposed, the courts that imposed the sentences and the dates of offending and sentence (“the criminal history”). Four pages of this document are devoted to offences that the Applicant committed between the ages of 13 and 17 for which he was dealt with by the Children’s Court in Queensland. Convictions were not recorded for those offences, which is the default position under the Youth Justice Act 1992 (Qld).[3] The rest of the criminal history contains offences that were committed after the Applicant turned 18 and dealt with in the Magistrates Court.

    [3]     See section 183.

17. The current state of the law is that offences that were dealt with in the Children’s Court in Queensland without a conviction being recorded cannot be taken into account when applying s501CA(4) of the Act.[4] That is because of the recent decision in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23[5] (“Thornton”). In this case, where the adult offending is a continuation of the juvenile offending,[6] and according to the Applicant his earlier problematic behaviour influenced his later drug abuse, to ignore the juvenile offending makes it difficult to apply the Direction in the way it appears to be intended to apply, particularly with respect to Primary Considerations 1 and 4 and paragraph 9.4.1(2)(a) of Other Consideration (d). However, the Respondent quite properly contended that the juvenile offending could not be taken into account and I have not taken it into account.

    [4]     Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (“Thornton”)

    [5]     Which is the subject of an appeal to the High Court, special leave having been granted in September 2022.

    [6]     Meaning the offending dealt with in the Children’s Court.

18. At the beginning of the hearing, I assured the Applicant that he would not be required to address the juvenile offending and that, as far as the Tribunal is concerned, it did not happen: his offending commenced on 2 December 2018. The Respondent did not make reference to the juvenile offending in the hearing. There were some statements made by the Applicant in his written material that referenced his juvenile offending. In fairness to him, I take those statements to refer to non-criminal, unspecified misbehaviour.

19. Almost all of the Applicant’s offending was related to drug use, and the drug use commenced when he was a juvenile. I think it is permissible and appropriate to take into account the evidence of his juvenile drug use as far as it forms part of the context of his later drug use and offending and is therefore relevant to his risk of re-offending, but I have not had regard to the juvenile drug offences in his criminal record.       

    BACKGROUND and offending

20. The Applicant was born in November 2000 in South Africa. He was adopted as an infant by his aunt and her husband (henceforth referred to as his parents). He has a younger sister who has a young son and another child on the way, and younger twin brothers. In July 2007, his family moved to Australia as a dependent on a Temporary Work (Skilled) (Class UC) (subclass 457) visa. 

21. In 2009 the Applicant’s family moved to Mackay. According to him, when he was around 14 or 15 years old he chose a bad crowd to associate with and he started using drugs. At first he used marijuana. He described his marijuana use as recreational. When asked what led to his drug use, he said “me getting into trouble and just not listening and going off and doing my own thing without asking...”.[7]

    [7]     Transcript, page 42, lines 35 to 40.

22. From the age of around 15, the Applicant was spending periods away from the family home. He would live there for a few months, then he would leave and get himself into trouble, then he would return home. When he was away from home, he kept in contact with his family by telephone.[8] He started using methamphetamine when he was around 16 years old. Someone offered it to him and he accepted. He tried it again a few months later and quickly became addicted. He linked that with getting into trouble too.[9]  

    [8]     Transcript, page 11, lines 10 to 17.

    [9]     Transcript, page 40, lines 15 to 17.

23. According to the Applicant, he felt as though he had let his family down with his behaviour. His father and he had a plan that he would acquire a trade but his father was disappointed once the drug use started. The Applicant felt like a burden and not a good brother or son. He said the fact that he was adopted played on his mind a lot but it was not a problem. It seems that his feelings of having let his family down contributed to his continuing use of drugs as the drug use provided an escape from those thoughts. The Applicant said he was trying to get away from all the problems he had created for himself.[10]  

    [10]    Exhibit G1, G17, page 94.

24. When the Applicant was in year 10, his family moved out of town and he went to a different high school.[11] However, he continued to associate with the same crowd. He and that crowd knew mutual people. He went into town to meet them and they came out of town to meet him. The Applicant said he did try to get away from that crowd and he is not sure why he was not able to.[12]

    [11]    Exhibit A1.

    [12]    Transcript, page 18, lines 12 to 34.

25. On 2 December 2018, the Applicant was stopped for a breath test and a license check. He was driving unlicensed.[13] He was later dealt with for driving unlicensed, failing to take reasonable care and precautions with a syringe or needle, and possess property suspected of having been used in connection with the commission of a drug offence.

    [13]    Exhibit R2, page 1.

26. On 24 December 2018 unknown persons broke into a business premises and took several sets of car keys and some money. They used the keys to steal two vehicles which were parked nearby. The Applicant was later detected driving one of the vehicles on 28 December 2018 when he put $68.11 worth of petrol into the vehicle and did not pay for it.[14]

    [14]    Exhibit R2, pages 2 and 4.

27. On 9 January 2019, unknown persons broke into a person’s home and stole a handbag and keys to the victim’s vehicle. The police later saw the Applicant and others exiting the vehicle.[15]

    [15]    Exhibit R2, page 5.

28. On 4 February 2019 the Applicant broke into a medical centre and took two Eftpos machines, some diagnostic kits, an iPad and a box of Ventolin nebules. The police attended and he was also found in possession of five ephedrine vials, a cone piece, a knife and a pocket knife.[16] He had stolen the items and the vials to sell to a person who had approached him about them.[17]

    [16]    Exhibit R2, pages 7 and 8.

    [17]    Transcript, page 50, lines 10 to 18.

29. On 8, 15 and 22 May 2019 the Applicant breached a bail undertaking that he had entered into on 30 April 2019.

30. On 23 May 2019, the police saw a car make an erratic turn across traffic. The Applicant was in the front passenger seat and there were three children in the back seat. The police found several clip seal bags strewn throughout the vehicle. In a bag slung over the Applicant’s shoulder there was a clip seal bag containing methamphetamine, some cannabis, a silver knife with a blade approximately 10cm in length, and several tablets of various types of prescription medication. The police arrested the Applicant and placed him a police vehicle while they continued to search the car. The Applicant wound down his window, opened his door from the outside and ran away, scaling several fences as the police chased him until he was out of sight.[18] The Applicant now says he sees that it was wrong for children to be in an environment where there were drugs and dangerous items.[19]

    [18]    Exhibit R2, pages 10 to 15.

    [19]    Transcript, page 51, lines 5 to 15.

31. On 6 September 2019 the Applicant was sentenced for all of the above offences. For possess property suspected of having been used in connection with the commission of a drug offence, stealing, and unlawful use of motor vehicle (x 2), possessing dangerous drugs x 2, enter premises and commit indictable offence and escape by person in lawful custody he was put on probation for two years. He was not punished for the rest of the offending which included possessing a knife in public and unlawful possession of restricted drugs (x 5).  

32. In between the offending episodes on 4 February and 23 May 2019, the Applicant had also breached a bail undertaking on several occasions in February 2019 and he was dealt with for those offences without being punished on 8 March 2019. He had then breached his bail undertaking by failing to appear in court on 14 March 2019 for which he was fined $200 on 30 April 2019.

33. On 17 December 2019, the Applicant was fined $200 for possessing restricted drugs on 16 December 2019 and sentenced to three months imprisonment (suspended for 12 months) for unlawful use of a motor vehicle between 5 and 17 December 2019. He had been remanded in custody on 16 December 2019.

34. On 17 December 2019, the day the Applicant was given the suspended prison sentence, a vehicle was stolen. There was a motor pass fuel card inside which the owner cancelled shortly afterwards. The next day, the Applicant drove the stolen vehicle to a service station, got around $87 worth of fuel, attempted to pay with the motor pass fuel card which was declined, then left without paying.[20] (Later, on 19 March 2019 the Applicant was convicted of unlawful use of motor vehicle, stealing and “attempted fraud-dishonest application of property of another”).

    [20]    Exhibit R2, page 25.

35. On 18 December 2019, the Probation and Parole Service recommended that that the Applicant be breached for failure to comply with the probation order imposed on 6 September 2019.[21] The report regarding this recommendation identified substance abuse and relationships as criminogenic factors. It had been identified on 21 November 2019 that the Applicant was associating with pro-criminal associates in the Mackay region. To mitigate that risk a plan had been made for him to return to his parents’ address as they were identified as pro social supports. On 6 December 2019 he reported that he had been living with his parents however there were indicators that he was being dishonest including attending the office with spare clothing (although he does not recall doing that). A referral was sent to Lives Lived Well (a rehabilitation service) on 6 December 2019 while the Applicant was present, however he failed to attend a scheduled appointment on 12 December 2019. The report also mentioned the further offending.[22]

    [21]    Exhibit R2, S5 pages 23 to 24.

    [22]    Exhibit R2, pages 23 to 24.

1. The Applicant thought he recalled attending an appointment with Lives Lived Well, and speaking about his drug use, offending and “what was going on around that at the time”. He said his drug use was the reason he did not keep attending.[23]

   [23]    Transcript, page 52, line 37 to page 53, line 24.

2. On 30 December 2019 a Kia vehicle was stolen. On 1 January 2020 the Applicant’s mother saw two vehicles including the stolen Kia vehicle in her backyard. The other vehicle was a white Holden Commodore. She saw the Applicant hosing both vehicles down. She reported this to the police. The Applicant did not live with her at the time and his arrival was unannounced. He then left in the stolen Kia. The stolen Kia was not recovered. (Later, on 19 March 2020 the Applicant was convicted of unlawful use of motor vehicle).

3. At around 5.00pm that day the Applicant attended the residence of a “Mr K” and his son in relation to selling a chainsaw. Mr K and his son went to a police station about unrelated matters, leaving the Applicant alone at their address. When they returned later that night, Mr K’s unregistered gold Holden Commodore was gone and so was the Applicant.

4. At around 1.30pm on 2 January 2020 the Applicant’s parents saw that their neighbour’s shed had been damaged and it looked like it had been broken into. They had not noticed the damage before the Applicant had arrived the previous day. They contacted the police and the police determined that there had been forced entry using cutting implements and that some of the metal sheeting of the roller door had been cut. The following property was stolen: two chainsaws, a rifle and rounds of ammunition. It appears, based on evidence the Applicant gave in the hearing, that two knives may have been taken too. (Later, on 19 March 2020 the Applicant was convicted of enter premises and commit indictable offence by break).

5. On 3 January 2020 the police found the Applicant asleep in the stolen gold Holden Commodore, which was bogged in sand. There was a female in the passenger seat. The Applicant had the stolen rifle across his lap with the barrel pointed out the driver’s side window. The rifle was loaded, the Applicant had the ammunition in his possession, and he also had one of the stolen chainsaws. The other chainsaw, valued at around $750, was not recovered. The Holden Commodore was so damaged from being bogged that it was no longer driveable. A Holden vehicle key was found in the Applicant’s pants pocket but it did not belong to the gold Holden Commodore. This key was believed to be tainted property. The police found a large hunting knife in the centre console and a small knife underneath the Applicant. They also found a plastic bottle fashioned into a bong which smelt of burnt cannabis. Additionally, they found blister packs of restricted drugs. The Applicant was heavily affected by drugs and he was taken to hospital under guard.[24] (Later, on 19 March 2020 the Applicant was convicted of unlawful use of motor vehicle, unlawful possession of weapons, authority required to possess explosives, possess tainted property, possession of a knife in public place, possess utensils or pipes and not being endorsed to possess restricted drug).

   [24]    Exhibit R2, pages 26 to 29.

6. When asked why he had a loaded firearm on his lap, the Applicant told the Tribunal it was originally on the back seat and he thought he had fallen asleep with it on his lap, and that there was no good reason for that. He was coming down from methamphetamine at the time. He said both of the knives had been stolen from the shed.

7. On 19 March 2020, the Applicant was dealt with for all these offences and for breaching previous court orders. For breaching the probation order imposed in September 2020, he was convicted and not further punished. He was re-sentenced for all the original offences, except for escape lawful custody, and for all of the new offences, to 12 months imprisonment to be served in the community by way of an Intensive Correction Order (“ICO”). An ICO contains an obligation to be of good behaviour, a component of community service and reporting and other conditions. For escape lawful custody, he was re-sentenced to imprisonment for three months to be suspended for 12 months. For breaching the suspended sentence imposed on 17 December 2019, he was convicted and not further punished, and the suspended sentence was extended by six months. All sentences were concurrent. The Applicant was also disqualified from driving for 2.5 years.

8. The following exchange took place between the learned Magistrate and the Applicant in the sentencing proceedings:

   BENCH: That [the ICO] will be the order. Now, you know and I know you’re not going to get through that.

   APPLICANT: I’m going to try.

   BENCH: I know you’re going to give it a go, but one of your mug mates are going to come around and they’re going to offer you, “Hey, this has got”---

   APPLICANT: Yeah.

   BENCH: You know, you’re no stranger to me, Mr [Applicant].

   APPLICANT: Yeah, yeah, I know, your Honour.

   BENCH: You’re no stranger to me. Prove me wrong, but you know and I know at this stage you’re not going to make it, so what I urge you to do – urge you to do – - -

   APPLICANT: Yes.

   BENCH: because it’s the end of it now – once you get picked up – if you get picked up tomorrow you’ve got to do the whole time. You don’t get out early.

   APPLICANT: Yes.

   BENCH: You do the 12 months. If you get picked up in three months, you do nine months.

   APPLICANT: Yep.

   BENCH: So how are you going to do it?

   APPLICANT: Go to rehab.

   BENCH: Okay.

   APPLICANT: Yep.

   BENCH: That’s the smartest thing – - -

   APPLICANT: Yep.

   …

   BENCH: How are you going to do that?

   APPLICANT: Enrol, see if there are any places that can – - -

   BENCH: Where are you going to go?

   APPLICANT: Hopefully back to mum and dad’s, if I can, talk to them.

   BENCH: You’ve got a lot of bridges to build there.

   APPLICANT: Yeah, I know.

   BENCH: A lot of bridges to build.

   APPLICANT: Yeah.

   BENCH: But more to the point, where are you going to go to get your rehab?

   APPLICANT: In Mackay.

   BENCH: Right.

   APPLICANT: Yep.

   …

   BENCH: Now, this is a matter for you. You can tell me to stick it, if you like – I’ll know if you don’t do it – keep walking straight over the road to Lives Lived Well

   APPLICANT: Yep.

   BENCH: – - – make an appointment and tell the problem you’re in. They’re a great organisation. Go and talk to them – - -

   APPLICANT: Yes.

   BENCH: – - – make arrangements for your rehab – - -

   APPLICANT: Yes.

   BENCH: – - – and then go and get your clothes.

   APPLICANT: Okay.

   BENCH: But it’s up to you, because now you don’t even come back to see us.

   …

   APPLICANT: So that’s straight across.

   BENCH: Straight over. You look – when you get out to the front of Victoria Street, you look just a touch to your right and you’ll see Lives Lived Well.

   APPLICANT: Yep.

   BENCH: Go and see them.

   APPLICANT: Okay, your Honour.

   BENCH: This is your last chance.

   APPLICANT: Yes.

   BENCH: Your age will not save you after this.

   APPLICANT: Yes.

   BENCH: Right. And the authorities say that break and enters – the Chief Justice said, “Anybody with a history of this, breaks into peoples’ houses, it starts at about two and a-half” – - -

   APPLICANT: Yep.

   BENCH: – - – and up she goes from there.

   APPLICANT: Yeah.

   BENCH: You’re in that range now.

   APPLICANT: Yes.

   BENCH: Do you understand?

   APPLICANT: Yes, I do, your Honour.

   BENCH: Now, I’m sure, if you’re fair dinkum and particularly with a baby on the way, I’ve never seen anybody get as much support for such a long period of time that you’ve got from your mother and father.

   APPLICANT: Yeah.

   BENCH: Well – - -

   APPLICANT: And they’re still behind me.

   BENCH: And you’ve kicked them in the guts every inch of the way – - -

   APPLICANT: Yeah.

   BENCH: – - – haven’t you.

   APPLICANT: Yes, I have.

   BENCH: Well, it’s a matter for you. Right. Okay. Anything further?[25]

   [25]    Exhibit G1, G6, page 42 to 46.

9. The Applicant agreed that this conversation was a “wake-up call”. When asked if he did anything towards his rehabilitation, he initially said he went to live with his parents for a few months to try and stay away from town. However, he then recalled that he had in fact gone to live with his (then) partner who was using drugs.[26] Therefore, he had not done anything towards his rehabilitation after this wake-up call. Nor did he attend Lives Lived Well despite telling the Magistrate he would.[27]

   [26]    Transcript, page 56, lines 44 to 45.

   [27]    Exhibit G1, G6.

10. Around 19 November 2019, a friend called Gemma gave the Applicant a lift to her home. The following evening, she left her vehicle locked in her driveway with her car keys inside her home. The next morning, she awoke to find her car keys and her vehicle missing. She saw the Applicant driving her vehicle on the morning of 21 March 2020. She had not given him permission to enter her residence or take her vehicle. The following day the police saw the Applicant driving her vehicle and pursued him using sirens and lights. He sped up and evaded the police vehicles. Later that day the police found the Applicant and arrested him.[28]

    [28]    Exhibit R2, pages 35 to 36.

11. In the hearing the Applicant attributed his offending to the fact that the car was new, he was angry with Gemma after an argument, he was using methamphetamine at the time, and he stole the car to “get around”. He evaded the police because he was afraid of going back to gaol. He conceded that his reluctance to go back to gaol did not prevent him from committing the offence.[29]  

    [29]    Transcript, page 24, line 45 to page 25, line 16.

12. This offending breached the two suspended sentences of imprisonment and the ICO. On 22 March 2020 the Applicant was remanded in custody. A Court Report dated 22 May 2020 recommended that the Applicant be convicted of breaching the ICO and ordered to serve a portion in prison. This Court Report noted that on 20 March 2020 the conditions were explained to the Applicant who said he understood. As he had offended and been remanded in custody so quickly there had not been an opportunity for him to be given a work order for his community service or for him to report as directed on 25 March 2020.[30]

    [30]    Exhibit R2, pages 33 to 34.

13. On 24 July 2020, the Applicant was sentenced to six months imprisonment for unlawful use of motor vehicle, 12 months’ imprisonment for enter dwelling with intent and 50 days imprisonment with disqualification from driving for two years for evading police. Taking the time he had served on remand into account, the court ordered immediate parole.

14. Additionally, for breaching the ICO, the Applicant was ordered to serve the outstanding balance, being 360 days, in prison cumulative on 12 months’ imprisonment for enter dwelling with intent. For breaching the suspended sentence that was imposed in December 2019 and extended in March 2020, that sentence was activated in full, meaning the Applicant was required to serve it in gaol. The suspended sentence for escape lawful custody was also activated in full. The learned Magistrate ordered immediate parole. His Honour remarked that the Applicant had committed offences only a couple of days after being placed on the ICO – effectively a period of imprisonment that the Applicant was allowed to serve it in the community, which he did not take advantage of – so there had been a complete failure in that regard. His Honour also noted that the Applicant seemed to have a fractious relationship with his parents and that he did not have their support.[31]

    [31]    Exhibit G1, G7, pages 49 to 50.

15. While the Applicant was on parole, he continued to offend. On 13 November 2020 a rental car was stolen. Later that day the Applicant was seen by police in the driver’s seat of the vehicle. He told the police he got the car from a “Ryan” however would not provide further details. He could not explain why he was sitting in the driver’s seat of a stolen vehicle. The police found some cannabis in the vehicle, and they found an empty clip seal bag on the Applicant. The Applicant said he did not know where either of the bags came from.[32] He was charged with unlawful use of a motor vehicle and possessing dangerous drugs and remanded in custody.

    [32]    Exhibit R2, pages 40 to 41.

16. In the hearing the Applicant said he and a friend stole the car because it was raining, they did not have anywhere to go, they tried the handle which opened, and the keys were inside. He was also affected by drugs and he thought that contributed to his decision to steal the car.

17. On 17 November 2020 the Applicant was released on bail and one of the conditions was that he resided with his parents. His father collected him and took him home. His father later told the police that the Applicant was only there for about two hours and he had not been back since. On 21 November 2020 the police arrested the Applicant and he admitted that he had only briefly been at his parents’ home. He said that it was because of “family stuff” and would not elaborate any further.[33] In the hearing he said he and his father had an argument on the way home so he decided to leave.[34]

    [33]    Exhibit R2, page 42.

    [34]    Transcript, page 57, lines 25 to 34.

18. On 19 November 2020 the vehicle of a 76 year old man was stolen. The following day a police officer saw the Applicant driving that vehicle. When the vehicle came to a stop the officer opened the driver’s side and attempted to grab the Applicant, however the Applicant drove off at speed, with the tyres skidding, making the smell of burnt rubber. There were multiple other cars around at the time. A witness indicated to the police that the vehicle had been driving erratically and at speed, causing other vehicles to take evasive action. On 21 November 2020 the police attended an address, where the Applicant was, and saw the stolen car parked nearby. The Applicant said he got the vehicle from someone else and that he used a flathead screwdriver or scissors to start the car. He was not licensed at the time.[35] He was charged with unlawful use of motor vehicle and dangerous operation of a vehicle, and he was remanded in custody. His parole was cancelled on 24 November 2020.[36]

    [35]    Exhibit R2, pages 42 to 44.

    [36]    Exhibit G1, G10, page 59.

19. In the hearing the Applicant said he stole the car because a friend told him how to steal it without a key and he needed to get around. He was affected by drugs and thinks this contributed to his decision to steal the car. He admitted that he took off quickly when the police officer approached but denied having driven erratically beforehand or having made anyone swerve out of the way. As he was affected by drugs at the time, I do not consider his recollection to be more accurate than the account of an apparently independent eyewitness. I accept that the Applicant drove in the manner described in the police report. 

20. A Mental Health Assessment Court Liaison Service report, dated 23 November 2020, noted that the Applicant was a 20-year-old male with a previous history of drug induced psychosis who had received short-term treatment for his symptoms which were resolved on his last medical review in July 2020. He was reviewed that morning in the police watchhouse following referral for assessment due to emotional instability. He denied any depressed or low mood but reported anxiety regarding court and separation from his then partner. The reported reason for referral was emotional distress on arrest. He said he would like access to drug rehabilitation, and he reported suicidal ideation which was precipitated by his incarceration. No further mental health intervention was required at that time.[37]

    [37]    Exhibit R2, pages 37 to 38.

21. On 3 December 2020, the Applicant’s visa was cancelled. On 8 December 2020, the Applicant submitted a revocation request in which he said, “I am not a violent person nor have (sic) any violent crimes against me” and “… This is a real wake-up call…”.[38]

    [38]    Exhibit G1, G13; G14, page 86.

22. On 4 February 2021, the Applicant was sentenced to imprisonment for nine months for each unlawful use of motor vehicle offence and he was fined $5,000 for the other offences. He was given a parole eligibility date of 3 May 2021.

23. According to prison records, the Applicant committed several transgressions while in prison. On 18 April 2021, he was involved in a physical fight with another prisoner and they continued fighting after being told to stop.[39] The explanation he gave to the Tribunal was that he was asleep when another inmate came into his cell, threw something at him and spat on his face. He thinks this inmate was tormenting him, trying to get him to fight. He felt that he was being targeted and he was a little afraid because he did not know who else was involved or what else could happen.[40] I accept that the Applicant acted in self-defence at first, but he kept fighting after a guard arrived on the scene and told both inmates to stop.  

    [39]    Exhibit R2, page 174.

    [40]    Transcript, page 29.

24. On 16 May 2021, the Applicant was fighting with another inmate. They were separated, and while the other prisoner was complying with directions, the Applicant charged at him headfirst and hit him with his head in the middle of his back.[41] The Applicant claimed that he had a disagreement with the victim who said he was going to come and get him afterwards. The victim was fighting at the back of the unit, then came towards the front where the Applicant was. The Applicant was told by another prisoner that the victim was going to attack him with a mop stick. There was a mop stick near the victim and the guards were not close by, so the Applicant charged the victim.[42]

    [41]    Exhibit R2, page 179.

    [42]    Transcript, page 30, lines 5 to 34.

25. On 8 June 2021, the Applicant and five other prisoners were smashing windows, assaulting each other, and not complying with directions. The Applicant was involved in smashing windows.[43] He told the Tribunal that a few of the men in the unit were drinking alcohol and an argument started. Officers told everyone to go outside, and most people complied but the Applicant and some others did not. When relating this he said, “So we’re trying to fight five officers…”. He said he became involved because an inmate told him to get involved and to try to get others involved.[44]

    [43]    Exhibit R2, pages 182 and 187.

    [44]    Transcript, page 28, lines 8 to 31.

26. On 14 June 2021 the Applicant was put on an Intensive Management Plan due to “ongoing poor institutional behaviour”.[45] The Applicant knew why he was on the plan and he recalls that it did encourage him to improve his behaviour because it limited the time he spent outside his room and on phone calls.[46] However, while on the plan, on 28 June 2021, the Applicant allegedly punched another prisoner. He could not recall this incident but he did not deny it either. Some days later, on 9 July 2021, the Applicant ran into a room and started striking an inmate.[47] The Applicant said the victim had stolen money from him and he was angry. He added that some people, when they have disagreements, leave the unit and go to a different unit, and that is what the victim was doing to do. The Applicant approached the victim as he was going out the door. He agreed that he hit the victim when the victim was leaving the conflict.[48]

    [45]    Exhibit R2, pages 59 to 64.

    [46]    Transcript, page 37, lines 38 to 40.

    [47]    Exhibit R2, page 196.

    [48]    Transcript, page 31, line 43 to page 33, line 15. 

27. On 8 August 2021, two inmates were assaulting a third and the Applicant joined in, striking the victim in the head with a broom handle.[49] The Applicant’s explanation to the Tribunal was that the victim had been standing over them, forcing them to give him money under threat that if they did not he would fight them individually. He was bigger in stature, and they were scared of him. The Applicant joined in the attack because he was angry about being “scammed for money” and being scared.[50]

    [49]    Exhibit R2, page 99.

    [50]    Transcript, page 35, lines 15 to 18.

28. On 3 September 2021, home brew was found in the Applicant’s cell.[51] The Applicant told the Tribunal that his cellmate brought it in and he was planning to have some.[52] 

    [51]    Exhibit R2, page 204.

    [52]    Transcript, page 35, lines 30 to 35.

1. On 29 October 2021, the Applicant and another inmate approached the victim (a further inmate) and punched him in the face, head and upper region of his torso and back.[53] The Applicant’s explanation for this was that his accomplice in the attack had been told that the victim had touched his daughter inappropriately (in the wider community), and he conveyed that information to the Applicant. The Applicant is a close friend of the accomplice and became angry at the victim. The Applicant agreed that he accepted what he was told about the victim, and acted on it, without question.[54] 

   [53]    Exhibit R2, page 210.

   [54]    Transcript, page 36, line 35 to page 37, line 19.

2. In April 2022, the Applicant was taken into immigration detention.

3. According to an International Health and Medical Service (“IHMS”) file note dated 12 May 2022 includes the text “ICE used IVDU prior to prison, last used 6m ago in prison plus Subutex”[55] which appears to mean that the Applicant used methamphetamine intravenously prior to going to prison, that he last used methamphetamine six months ago in prison and he also took Subutex (which is a prescription medication normally used to treat opioid dependence) at that time. It was noted that there was no evidence of any mental health features of concern. It also noted that there no current medical concerns other than poor sleep patterns.[56] 

   [55]    Exhibit R2, page 57.

   [56]    Exhibit R2, page 56.

4. A file note dated 20 May 2022 included:

   “…[the Applicant’s] blood test for Hep C has come back positive with a viral load =35000. [The Applicant] reported he completed Hep C treatment at Maryborough prison 5 m ago, but admits to using IVDU since then.

   Possible reinfection or incomplete treatment of initial one…”[57]

   [57]    Exhibit R2, page 56.

5. In the hearing the Applicant admitted to having consumed Subutex orally but he denied having consumed any other drug while in custody. He said he did not have a good reason for taking Subutex and that he did it because it was offered to him. He claimed he did not like it. As stated earlier in these reasons, the Applicant readily made admissions that were against his interests on multiple occasions in his oral evidence, so it would be anomalous if he was tailoring his evidence in relation to methamphetamine use in prison. The IHMS note about drug use in the second file note could be based on the first file note – it is not clear. It is possible that the first file note represents a miscommunication or misunderstanding between the writer and Applicant. According to the note, the resurgence of Hepatitis C could have been due to incomplete treatment. i.e. not necessarily due to intravenous drug use. I am cautiously prepared to give the Applicant the benefit of the doubt and accept that the file notes are incorrect with respect to the apparent methamphetamine use in prison. I accept that he has not used methamphetamine since just before he was incarcerated in November 2020.

6. On 2 August 2022, CCTV footage showed a detainee passing the Applicant what appeared to be a sharp item like a shiv or a syringe.[58] According to the Applicant, another detainee was consuming alcohol, and following an altercation that person took the metal bars out of two electric toothbrushes. The Applicant and a third detainee took them from him and put them in the bin. The emergency response team put the person in the detention unit. The Applicant and the third detainee then retrieved the items and returned them to the owners of the toothbrushes. The person had tried to get the Applicant involved in the altercation, but the Applicant tried to calm the situation and avoid someone being stabbed with those items by taking them from him.

   [58]    Exhibit R2, pages 53 to 55.

7. The Applicant has now served all sentences of imprisonment so if he is returned to the wider community he will not be on parole.

   PROTECTION OF THE AUSTRALIAN COMMUNITY

8. Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

9. In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:

   a)The nature and seriousness of the Applicant’s conduct to date; and

   b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.

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

10. When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:

    (a)…

    (b)…

    (c)the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)…;

    (g)…

11. The Applicant committed some 44 offences in a two year period from December 2018 to November 2020, only stopping when he was incarcerated. His offending includes drugs offences, property offences, unlawful use of a motor vehicle on nine occasions, possession of knives in public places on multiple occasions, possession of a weapon and explosives (loaded rifle and ammunition), stealing petrol, traffic offences and evading and escaping police.

12. The Applicant broke into a friend’s home and stole her car keys and her car. He broke into a shed and stole tools, a firearm and ammunition. Illegally entering a person’s home and stealing from them is serious. It is an invasion of what should be their sanctuary and a violation of their property rights. Theft and unlawful use of property often causes inconvenience and financial loss even if the stolen property is insured. The gold Holden Commodore was so badly damaged by what the Applicant did to it, it could not be driven. The Applicant was caught driving several stolen vehicles. Considerable money is spent on the purchase and upkeep of a vehicle. People rely on having the use of their vehicles in their everyday lives and in emergencies. One of the victims was 76 years old.

13. The Applicant’s propensity to carry weapons in public places is serious. In particular, having a loaded firearm pointed out the car window while affected by drugs creates an obvious high-risk situation. The traffic offences include the kind that tend to make the roads more dangerous for other road users. The regulation of licenses and car registration is intended to ensure that only roadworthy vehicles are on the road and that only people who are competent drivers who sufficiently comply with road rules are in control of vehicles on the roads. The Applicant drove unlicensed and he drove an unregistered car. Even worse, he engaged in dangerous operation of a motor vehicle and evade police.        

14. While the Applicant’s criminal history does not contain offences of violence, and there is no evidence of his offending having caused physical harm to any person, he has committed offences of the kind that cause other types of harm and of the kind that carry a risk of causing physical harm to others in the community. What is more, his offending is frequent and the cumulative effects of his repeated offending include that multiple people’s property rights were violated and he was a drain on the resources of the criminal justice system. While the offences the Applicant committed did not become incrementally more serious as time went by, the context in which he continued to offend adds a dimension of seriousness. That is, from March 2020, the Applicant was committing offences almost immediately after being released from remand and he was offending knowing he was subject to suspended sentences or parole.

15. I am also to consider other serious conduct. The violence in gaol in which the Applicant was the aggressor is serious. The Applicant gave reasons for engaging in this aggression. The particular reasons he gave explain his motivation but they do not provide an excuse or justification.       

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

16. According to paragraph 8.1.2(1) of the Direction, in considering the risk to the Australian community, I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

17. In accordance with paragraph 8.1.2(2), I must have regard to the following relevant factors on a cumulative basis:

    (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, giving weight to time spent in the community since the most recent offence.

18. The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct includes financial loss, damage to property, inconvenience and possibly danger due to not having access to one’s vehicle (for example to see a doctor or get medicine from a pharmacy), serious injury or death on the roads, physical harm from acts of violence, and the psychological harm that often afflicts victims of crime.    

19. The Applicant considers that he is still young enough to change his life and with support from his family he can build a family of his own and live a life where he is a contributing member of society.[59] He provided some letters of support from family and friends. His mother wrote that if the Applicant gets his visa back he would live with the family, they would get him back into playing rugby and get him a job, and she will do her best to keep him on the right path.[60] The Applicant’s sister wrote that the Applicant has a lot of loving and supportive family and friends. She mentioned a partner, however the Applicant does not have a partner anymore. She promised to help him and make him a better member of the community.[61] I accept that the Applicant’s family are law-abiding and do not condone drug use. I accept that they will try to help him to avoid drugs and crime. However, they previously tried to do that to no avail. Further, there are indication in both transcripts of sentencing remarks that the Applicant’s parents have, at times, become fed up with his behaviour and their relationship with him has been tenuous at times.     

    [59]    Exhibit G1, G14, page 86.

    [60]    Exhibit G1, G15, page 89.

    [61]    Exhibit G1, G16, page 93.

20. There is letter from a friend who says she has known the Applicant for four months. She described him as incredibly remorseful and willing to do whatever it takes to “make reparations financially and emotionally if possible”.[62] Another friend wrote that she attended the same primary school and high school as the Applicant and she had known him for a few years. She attributed his behaviour to the people he used to hang around, and she expressed a belief that he could “change who he is now to who he really wants to be in life”.[63] These letters are rather aspirational and do not point to any tangible evidence of reform. 

    [62]    Exhibit A1.

    [63]    Exhibit A2.

21. The Applicant’s offending in the community was drug related in that he committed offences to fund his drug use and he was affected by drugs when he committed many of the offences. Further, he was in the company of other people when he committed many of the offences.

22. The Applicant acknowledged that his offending is drug related and he claimed to have sought help through family and friends.[64] That is, he said his parents got him into counselling when he was around 14 years old and they encouraged him to live at their home and tried to make him feel welcome and included.[65] He referred to his parents as his two big supports because they are anti-drugs.[66]

    [64]    Exhibit G1, G14, page 83.

    [65]    Transcript, page 21, lines 4 to 9.

    [66]    Transcript, page 13, lines 45 to 48.

23. The Applicant said he did not use drugs during previous periods in custody but he resumed when released. He said he was addicted. He partly attributed his drug use to the desire to escape feelings of having let his family down. However, his evidence indicated that the primary contributing factor to his drug use was peer influence. He said at first he got drugs for free and then he bought them; “It wasn’t hard to obtain with the people I was hanging around”. He said when he was around the wrong people he could not stop.[67] He also mentioned cravings.[68]   

    [67]    Transcript, page 20, lines 35 to 45.

    [68]    Transcript, page 20, lines 22 to 25.

24. The Applicant has now been abstinent from illicit drugs for two years although he took prescription medication that he was not permitted to take in gaol simply because it was offered. I accept that after abstaining for that long, he would not currently have physical cravings. His abstinence from illicit drugs in custody has occurred in an environment where he claims, and I accept, that drugs are available. However, prison and immigration detention are highly controlled environments where there is a great deal of surveillance unlike the wider community. Accordingly, it does not necessarily follow that the Applicant’s abstinence in custody would continue in the wider community. Indeed, abstinence in custody for shorter periods did not result in abstinence after release from custody previously.   

25. Since being incarcerated the Applicant has complete an eight hour online drug and alcohol course. He considers that he learned how to say no, how to open up about what is going on in his life, and how to deal with cravings such as finding a place where he can be on his own, think and try to clear his head or call his family.[69]

    [69]    Transcript, page 43, lines 7 to 17.

26. The Applicant has a relapse prevention plan and he considers that he has put some steps in place toward his rehabilitation. He is now more open with his family about his drug use and how it started – how he felt and what was going on at the time. He speaks with his family daily from immigration detention and he has their full support. He has cut ties with his friends in Mackay by blocking them on social media and refusing to communicate with them while in custody. The only people he is in touch with in Mackay are his family. He intends to see a counsellor to address his drug problem if he is returned to the community but he has not made any arrangements yet.

27. The Applicant was asked what he would do if he was offered a drug he had not tried before and he was curious (as he was when he was offered Subutex). He said he knows the effect it would have on his life and he would say no. He will make sure he does not put himself in a situation where that happens, and he will have support people around him. He identified his mother as his support person and said he listens to her. However, it is significant that her influence was not enough previously.   

28. I asked the Applicant if his parents had a “tough love” approach where they supported him but did not simply let him do whatever he wanted. He agreed with that. As bad behaviour is not tolerated at their home, that helped him to stay off drugs and behave himself when he was there. However, he chose to live away from his parents at times so he could use drugs because he was addicted to methamphetamine. Further, in his Relapse Prevention Plan he identified a high-risk situation as having an argument with someone at home. He now claims that if he had a fight with his mother, he would look to his father or sister for support with drug issues. However, he previously left the family home, which was his approved parole address, because he had an argument with his father. His discomfort about letting his parents down has previously not motivated him to stop using drugs but it has had the opposite effect of making drug use more tempting.

29. The guidance, support and boundaries provided by the Applicant’s family have not previously been effective in stopping his drug use and offending. In his Relapse Prevention Plan he identified conflict with family as a high-risk factor. Based on previous behaviour, I think it likely that he will clash with them if they disapprove of something he is doing or proposes to do. His parents also have other commitments on their time and energy. They have jobs and two other sons to raise, so they will not be available to monitor and support the Applicant all the time.

30. Whether the Applicant’s family is able to really help in his rehabilitation depends largely on his commitment and ability to permanently change his attitude and behaviour.    

31. Another concern is the Applicant’s violence in gaol which was very strongly linked to anger and to his peers. He continued to engage in violent behaviour even when he was on an Intensive Management Plan and after his visa was cancelled and he had put forward his lack of violent offences as a reason why the cancellation should be revoked. He indicated that he had found gaol difficult: there were a lot of altercations and arguments, and people tried to pressure him to do things he did not want to do including fight other prisoners. There is also the fact that he was being stood over by a prisoner. He is relatively young and not large in stature. There was a prison chaplain whom he spoke with sometimes about his problems in gaol and other issues in his life and he found that helpful. Even so, I accept that prison was a difficult environment for the Applicant.

32. The Applicant completed a 100 hour online anger management course while in immigration detention. He said he learnt how to step away from a situation and assess it, how to communicate better and some breathing techniques. He has implemented those strategies while in immigration detention, for example he avoided escalating an argument. I also acknowledge the recent instance where the Applicant sought to quell a volatile situation by taking a make-shift weapon from another detainee. However, it does not appear that he has been in the same sorts of situations in immigration detention that led to him being aggressive in gaol, so he has not been tested in that regard.

33. The Applicant has some constructive goals. He is not eligible for government income support because of his visa conditions but he is allowed to work. He would like to be an electrician which is what his father started out doing before rising to a different position. His father’s employer is aware of his criminal history and might be able to help him do the required course. His mother also might be able to arrange a job for him at the meatworks. There are openings there and they are aware of his criminal history. Full-time employment is widely regarded as potentially being beneficial to rehabilitation as it provides structure, a feeling of purpose and a lawful activity to occupy a person.   

34. The Applicant was diagnosed with ADHD in his early teenage years and put on medication which he took through high school. It had helped him to focus but he stopped taking it because he was not eating properly and lost a lot of weight. He did not think going off the medication caused the problems with his behaviour although it all happened around the same time. His mother wants him to look into going back on the medication and he intends to do that. I accept that this might result in improvements in the Applicant’s behaviour and his ability to focus on work and maintain employment.       

1. I accept that the Applicant realises that drugs and crime have put him in a very bad position and he currently wishes to change for the better. However, he previously told a Magistrate that he realised he had no more chances and he would seek help, yet he did not seek help and he quickly re-offended. There is therefore a disconnect between the Applicant’s stated intentions and his behaviour.     

2. The Applicant is only 22 years old. I do not have the benefit of expert psychological evidence about his level of maturity and insight. My own assessment based on the evidence before me is that he has poor judgement and seems fairly impressionable and easily led. Further, he has shown that, when not affected by drugs, he was prepared to brutally attack people on multiple occasions. He showed only limited insight into the seriousness of his offending and other anti-social conduct, and he did not seem to appreciate how hard it will be for him to make the changes he needs to make to avoid re-offending.

3. With respect to those changes, the Applicant will have to abstain from methamphetamine after having spent years using it in the wider community. He will have to either avoid his old friends (and new bad influences) while living in the same community where they live or become impervious to the influence of negative peers. He will have to stop relying on illegally taking or using other people’s property when it suits him despite that previously being his way of life. He will have to find a way to stay in the family home and comply with his parents’ rules rather than leaving when the rules do not suit him. These are all big changes, and the evidence before me does not persuade me that he will make them.

4. I think it is very likely that despite the Applicant’s aspirations and plans, he will fall back into his old lifestyle if he is returned to the wider community, and this time there will be a significant risk of violence.  

5. The individual offences that the Applicant has engaged in are not at the high end of the range of seriousness where, for example, armed robbery, drug trafficking, sexual offences and murder are situated. However, what is of great concern is the virtual inevitability that he will continue to offend if he is given the chance. Taking that into account, along with the nature of harm from repeated offending and the nature and seriousness of the Applicant’s conduct to date, Primary Consideration 1 weighs heavily against revocation of the cancellation of the Applicant’s visa.

   FAMILY VIOLENCE

6. There is no evidence before the Tribunal that the Applicant has ever engaged in family violence. This Primary Consideration is not relevant.

   The best interests of minor children in Australia

7. Paragraph 8(3) of the Direction compels a decision-maker to consider the best interests of a minor child in Australia. Under paragraph 8.3(1), I must determine whether non-revocation under section 501CA is or is not in the best interests of a child affected by the decision. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ

8. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

   ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

   ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

   ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

   ·     whether there are other persons who already fulfil a parental role in relation to the child; and

   ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

9. The Applicant claims that the best interests of his younger twin brothers and his nephew are affected by the visa cancellation. His twin brothers are 16 years old and his nephew is just over a year old.

10. The Applicant was only intermittently living in the family home from the age of 15. His brothers would have been around nine or ten years old at that time. When he was not at home he was in telephone contact with his family, and when he was at home he did activities with his brothers such as riding motorbikes on the family land and swimming in the pool. He taught them a little how to ride the bikes and when he and his father built a fence they taught his brothers how to do that.

11. The twins do not always get along. There is a rather sad letter before me from one brother (“Brother A”) stating that he needs the Applicant because his twin, in his words, “doesn’t care about me, never wants to talk to me, always (sic) rude to me even though I give him money but nothing is ever enough.”[70] The Applicant tries to keep the peace between them. He has a good relationship with both. He recently helped his other twin (“Brother B”) when Brother A called him to tell him Brother B ran away from home. The Applicant arranged for a friend pick him up and drive him home.

    [70]    Exhibit A1. 

12. The Applicant wants to show his brothers how to talk to women, how to be respectful, and to stay away from bad influences and avoid the mistakes (crimes) that he made. He talks with them about that often. Neither of his brothers are involved in anything like that. Brother A wants to get a TAFE qualification to become an electrician and Brother B is doing well at school.

13. I accept that the Applicant has a good relationship with each of his brothers, that he has helped them in the past and more recently, and that he would continue to do things to help them in the future. Their parents fulfil the parental role. He has had limited contact with them over the last six or seven years. In two years, they will no longer be minors.

14. The Applicant’s previous lifestyle of drug abuse and offending has undoubtedly caused distress and heartache to his whole family including his brothers. If he resumes that lifestyle, and it seems very likely that he will, he will continue to cause a negative impact to his brothers, and his ability to assist them will be limited. On the other hand, it will naturally cause some emotional hardship to them if he is deported with no foreseeable prospect of being allowed to return to Australia. In theory the Applicant could continue to communicate with, and give advice to, his brothers from South Africa using telephone and electronic means but that relies on him establishing himself and having access to communication devices which is not guaranteed. It is in the best interests of both brothers for the Applicant to remain in Australia although only to a limited extent.          

15. The Applicant has never met his nephew. His nephew has two parents fulfilling the parental role. The Applicant’s sister and her family currently live with the Applicant’s parents. I presume that if the Applicant lives a drug-free, law-abiding lifestyle he will have regular contact with his nephew and that will be a positive thing. It is a matter of speculation what sort or contact, if any, he would have with his nephew if he went back to his old lifestyle and whether he would cause any negative impact to his nephew. There are many years in which the Applicant could potentially contribute in a positive way to his nephew’s life. Given that potential, on balance, I think the best interests of his nephew favour revocation of the cancellation of the Applicant’s visa, but only to a minimal extent.       

16. Taking into account the best interests of the children mentioned above cumulatively, this Primary Consideration weighs to a limited extent in favour of the revocation of the cancellation of the Applicant’s visa.

    THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

17. Paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. It further stipulates that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.

18. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

19. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185.

20. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    ·the Applicant has engaged in a range of illegal behaviour, including property offences, weapons offences and potentially harmful traffic offences;

    ·the Applicant’s offending history is, in totality, serious;

    ·he repeatedly breached the trust of the Australian community, including when:

    o   he was granted conditional liberty (bail) rather than remanded in custody after being charged with offences; and

    o   he was given the benefit of community based orders, suspended sentences and immediate parole rather than incarceration after being convicted of offences;   

    ·his offending history demonstrates a disregard for the laws regulating the community that he seeks to re-enter and for the safety and wellbeing of members of the Australian community; and

    ·there is a high risk that he will continue to offend.

21. Considering all relevant factors, Primary Consideration 4 weighs significantly against revocation of the cancellation of the Applicant’s visa.   

    Other Considerations

22. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    International non-refoulement obligations

23. Paragraph 9.1(1) of the Direction provides that a non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm, and it refers to Australia’s non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

24. It goes on to say that the Act, particularly the concept of “protection obligations”, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing and that in considering non-refoulement obligations where relevant, decision-makers should follow the tests enunciated in the Act.

25. Subsections 36(2)(a) and 36(2)(aa) of the Act provide the tests for protection on the basis of refugee status and for complementary protection.

26. The Applicant claims to fear for his safety and his life if he is removed to South Africa. This is based on his belief that crime is increasing there and that white people (as the Applicant is) are the primary victims.[71] His mother has also told him a lot about people not being safe in South Africa. He has done internet searches and gathered from those that South Africa is not safe. He referred to statistics showing that white people are the primary victims of crime but he did not produce those or any internet articles, and his mother did not give evidence. No criticism is intended: the Applicant is young and he did not have legal representation or, it seems, anyone else helping him in this proceeding.

    [71]   Exhibit A1.

27. It is widely known that South Africa is much more lawless than Australia. However, there is not any reliable, comprehensive country information before me. More information is required to make a proper assessment of each of the matters that must be assessed under
    ss 36(2)(a) and 36(2)(aa) of the Act.

28. The Applicant can apply for a Protection visa and, if he chooses to do that, he will have the opportunity to make detailed claims and present evidence. More importantly, I expect that the Respondent will have access to comprehensive, current, relevant country information and will make use of that. Therefore, I think it is appropriate to defer the claims raised that are relevant to non-refoulement to that process.[72] I do not allocate any weight to this Other Consideration.

    [72]   Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.

    Extent of Impediments if Removed

29. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    (a)the non-citizen’s age and health;

    (b)whether there are any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

30. The Applicant is a 22 year old man who does not currently suffer from any physical ailments and does not currently require any medication, although he was previously treated for Hepatitis C and for ADHD and he may need or want further treatment in the future. He has a susceptibility to dependence on methamphetamine.

31. English is widely spoken in South Africa so I find that the Applicant will not experience any substantial language barriers. Having spent the six years of his life in South Africa, the culture would not be totally unfamiliar to him. I am not satisfied that he would face substantial cultural barriers.  

32. The Applicant fears that he would not have anywhere to live or anyone to stay with in South Africa, and that he would have to leave his family and friends behind.[73] He thinks it is dangerous to live on the streets in South Africa. He is afraid he will not be able to survive there. He suggested he might have to go back to crime there and everything would be a lot worse. The Applicant preparedness to resort to crime in the receiving country and the consequences that may flow from that are not matters that are appropriately taken into account in favour of revocation of the cancellation of his visa. However, I will address the other matters. 

    [73]   Exhibit G1, G14, page 86.

33. There is no evidence before me that the Applicant would be eligible for government income support or subsidised medical or pharmaceutical care, and I do not accept that he would. There is no evidence before me about the availability of suitable drug counselling services or social services that could assist the Applicant to secure accommodation and re-integrate into South African society or to cope with the feelings of loneliness and apprehension that he will almost certainly experience. I am not prepared to find that those services would be readily available or accessible. There is no guarantee that the Applicant will have the means to own or otherwise access communication devices to keep in touch with his family. I accept that he does not know any relatives or family friends in South Africa or if there are any. I accept that living on the street is dangerous in any society including in South Africa.     

34. It is well known that the South African economy is not as strong as the Australian economy. The Applicant will likely struggle, at least initially, to earn a living. He is able bodied and he has some skills that could assist him, having done some manual work for his parents and their friends, and having briefly worked in a shop and a dog grooming business. He has some prospects of gaining employment or earning a living working for himself.

35. The Applicant’s father is employed as a specialist in underground machinery, having worked his way up from being an electrician in the mines. His mother has a job at the meatworks.[74] Neither of the Applicant’s parents gave evidence so it was not possible to enquire whether they would be prepared to send the Applicant money if he were deported. His mother wrote a letter but did not address that subject. The evidence of both the Applicant and his mother is that his parents wish to support him and help him to live a productive life if he gets his visa back. It is not plausible that their love for him and desire to help him only apply if he is in Australia. I think it is likely that the Applicant’s parents would provide some level of financial support to the Applicant if he needed it to subsist although I cannot speculate about how adequate it would be.        

    [74]    Transcript, page 13, lines 11 to 14; page 46, lines 1 to 5; page 47, lines 35 to 38.

36. I am satisfied that the Applicant will experience a lower standard of living in South Africa and emotional hardship due to social isolation and separation from his family. I also accept that doing the things that he needs to do to establish himself and maintain basic living standards will be more difficult for him than it would be for citizens who already have family and a social network there. I allocate significant weight to this consideration in favour of revocation of the cancellation of the Applicant’s visa.

    Impact on victims

37. There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration is therefore not relevant.

    Links to the Australian Community

38. In consideration of this Other Consideration, paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

39. The Applicant came to Australia as a child. He commenced offending eleven years later. He has attended school in Australia, worked in two businesses for a few months each, and done some odd jobs for cash for friends of his parents. He also did jobs for people in the drug scene to pay for drugs but I do not consider that this work could be classed as a positive contribution to the community. 

40. The Applicant’s parents, his sister, and his brother-in-law live in Australia (along with his brothers and nephew).  He speaks with his family frequently, and he speaks with his brother-in-law every other day. I accept that the Applicant is close to his parents and siblings, and that he has a relationship with his brother-in-law. He currently communicates with his family daily and he described his relationship with his parents as “pretty great”.[75]

    [75]    Transcript, page 10, lines 40 to 43.

41. According to the Applicant, since his incarceration, his parents have missed him a lot. He thinks if he does not get his visa back they would be very upset, mentally it would hurt them. I accept that a non-revocation decision would cause emotional hardship to the Applicant’s parents and sister. If he is returned to the community and relapses it must be that it would also cause them emotional hardship. They are not in any way dependent on him. There is no evidence about how a non-revocation might affect his brother-in-law. I have considered the impact on his brothers and nephew above.     

1. The Applicant’s father’s sister and her family live in Brisbane. The Applicant only talks with his uncle and aunt on-and-off due to some family disputes although he stays connected to his cousins through social media. There is no evidence about how they might be affected by the visa cancellation.

   Impact on Australian business interests

2. The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction. 

   Conclusion: Other Consideration (d)

3. Overall, I am satisfied that the Applicant’s links to the Australian community weigh moderately in favour of revocation.

   CONCLUSION

4. I am now required to weigh all of the Considerations in accordance with the Direction. Primary Consideration 3 and Other Considerations (b) and (d) weigh in favour of revocation of the Applicant’s visa to a limited extent, a significant extent and a moderate extent respectively. Primary Considerations 1 and 4 weigh against revocation to a heavy and significant extent, respectively. The weighing exercise is therefore finely balanced. The Primary Considerations are generally to be given greater weight than the Other Considerations and I see no reason to depart from that in this case. Further, one Primary Consideration can outweigh another. In this case the interests of the Australian community, prescribed in Primary Considerations 1 and 4 prevail.       

5. Application of the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.

   Decision

6. The decision under review is affirmed.

I certify that the preceding 144 (one hundred and forty-four) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy

..............................[SGD]..........................................

Associate

Dated: 20 December 2022  

Date of hearing:

15 November 2022

Applicant:

By videoconference

Solicitor for the Respondent

Ms Gabrielle Gutmann 

Minter Ellison

ANNEXURE A – EXHIBIT LIST

EXHIBIT	DESCRIPTION OF EVIDENCE	PARTY	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1 to G22 paged 1 to 130)	R	-	27 September 2022
A1	Applicant’s Material Including: ·     A1.1 Letter from Brother A (1 page); ·     A1.2 Photograph of the Applicant and his Brothers; ·     A1.3 An undated statement from the Applicant (3 pages); ·     A1.4 Letter from Kira B (2 pages); ·     A1.5 Alcohol and Drug Awareness Course certificate; ·     A1.6 Copies of G15, G16, G18 from the G documents.	A	-	12 October 2022
A2	Letter of Dakota T dated 14 October 2022 (1 page)	A	14 October 2022	14 October 2022
A3	Applicant’s relapse prevention plan (21 pages)	A	-	24 October 2022
A4	Applicant’s Statement lodged 6 November 2022 ( 2 pages)	A	-	6 November 2022
A5	Copies of G15, G16 from the G documents.	A	-	10 November 2022
A6	Letter of Paige P (undated) (1 page)	-	10 November 2022
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1 to 11)	R	2 November 2022	2 November 2022
R2	Respondent’s Supplementary Documents  (S1 to S43, paged 1 to 213)	R	-	1 November 2022