Watson and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2023] AATA 290
•2 March 2023
Watson and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 290 (2 March 2023)
Division:GENERAL DIVISION
File Number: 2022/10625
Re:Teina Patrick Watson
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member A. Nikolic AM CSC
Date of Decision: 2 March 2023
Place:Melbourne
The Tribunal affirms the decision under review.
........................[sgd]................................................
Senior Member A. Nikolic AM CSC
Catchwords
MIGRATION – mandatory visa cancellation – citizen of New Zealand – Class TY Subclass 444 Special Category (Temporary) visa – persistent offending – substantial criminal record – failure to pass good character test – mandatory visa cancellation – whether another reason to revoke the mandatory cancellation – Ministerial Direction no. 90 applied – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)Returning Offenders (Management and Information) Act 2015 (NZ)
Cases
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67
Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730
Minister for Immigrationand Border Protection v Le (2016) 244 FCR 56
Nathanson v Minister for Home Affairs [2022] HCA 26
Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 90: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (8 March 2021)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
02 March 2023
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa. The hearing was held at the Tribunal’s Melbourne Registry on 1 and 2 March 2023. The Applicant was legally represented when making his revocation submissions,[1] but was self-represented at the hearing. The Respondent was represented by Mr Christopher Orchard, a solicitor from Sparke Helmore.
[1] Exhibit R1, 147-171.
For the following reasons, the Tribunal affirms the decision under review.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Migration Act 1958 (Cth) (“the Act”) are the sources of the Tribunal’s jurisdiction.
Section 501(3A) of the Act obliges the Minister, or their delegate, to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test (“cancellation decision”). This includes if the person is sentenced to 12 months or more imprisonment, being served on a full-time basis.[2][3] Notice of the cancellation decision must be provided as soon as practicable, and the affected person invited to respond.
[2] The Act, s 501(3A), read in conjunction with s 501(6)(a) and s 501(7)(c).
Section 501CA(4) of the Act confers a discretionary power on decision-makers to revoke the original decision if satisfied that the person passes the character test, or there is another reason why the original decision should be revoked. Non-revocation decisions by ministerial delegates are reviewable by the Tribunal.[4]
[4] The Tribunal’s jurisdiction arises from s 500(1)(ba) of the Act, read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
BACKGROUND
The Applicant is a 40-year-old New Zealand citizen. His mother, other family members, and friends continue to reside there. He spent his formative years in New Zealand, where he was raised predominantly by his grandmother. She died when the Applicant was 15, following which several aunts and uncles cared for him until the age of 18.
The Applicant commenced a relationship in New Zealand with a Canadian woman when he was about 21 and subsequently lived with her in Canada between 2009 and 2014. The Applicant says he has a biological child with this former partner but has had no physical contact with either the mother or child since 2014. The Applicant stated in oral evidence he recently reconnected with his child, who still lives in Canada, and they speak by telephone.
The Applicant migrated to Australia approximately eight years ago on 19 December 2014.[5] He was 32 years old on arrival. His father, stepmother, and three stepsiblings reside here. The Applicant believes his stepsiblings are approximately 23, 18, and 15 years of age respectively, although the Tribunal has no independent corroboration of this.
[5] Exhibit R1, 201.
The Applicant’s criminal history commenced in 2002 while he was living in New Zealand.[6] He has several convictions between 2002 and 2006 that resulted in fines and periods of licence disqualification up to six months. The Applicant has also been convicted of multiple offences in Australia between 15 November 2019 and 13 October 2021.[7]
[6] Ibid 45.
[7] Ibid 40-44.
On 30 June 2021, while the Applicant was serving a sentence of imprisonment,[8] a delegate of the Respondent purported to mandatorily cancel his visa under s 501(3A) of the Act.[9] This notification was subsequently found to be defective,[10] requiring the Applicant to be re-notified of the cancellation decision on 4 March 2022.[11]
[8] Ibid 71.
[9] Ibid 202.
[10] Pursuant to EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173, and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
[11] Exhibit R1, 210.
The Applicant made representations to have the cancellation decision revoked.[12] On 20 December 2022, the Minister’s delegate refused to do so.[13] On 29 December 2022, the Applicant asked the Tribunal to review this.
[12] Ibid 126-144; 152-171.
[13] Ibid 8-10.
Under s 500(6L) of the Act, the Tribunal must make a decision in this matter within 84 days of the Applicant being properly notified of the non-revocation decision (“84-Day Rule”).[14] Failure to do so results in the reviewable decision being affirmed by operation of law. These reasons are provided within the permissible statutory period.
[14] Under s 501G(1) of the Act.
ISSUE
The Applicant initially disputed failing the character test, claiming the mandatory cancellation of his visa was invalid. He said this was because his original sentence of 18 months imprisonment for each of eight counts of burglary[15] was reduced on appeal.[16] By virtue of concurrency provisions during sentencing by the County Court, he only served 11 months’ imprisonment, which he said is below the 12-month statutory threshold required for mandatory cancellation. The Applicant also contended that the Tribunal could not rely on other statutory provisions at ss 501(6)-(7) of the Act to overcome this purportedly invalid exercise of power. The Tribunal respectfully disagrees. As held by Middleton J in PYDZ:[17]
58. The applicant relies on this construction of s 501CA(4) in order to contend that it was not open to the Tribunal to apply the broad version of the character test to ‘cure’ the s 501(3A) cancellation decision that he says is invalid. I do not accept that, in determining whether to revoke a cancellation decision in exercise of the powers in s 501CA(4), the Tribunal is confined to the narrow version of the character test in s 501(3A)(a). As I have already indicated by reference to the decision of Burley J in XJLR (at [88]-[89]), the Tribunal is not standing in the shoes of the original decision-maker when exercising the revocation power. The Tribunal has a separate task that it is required to perform under the Act. As the Minister submits, s 501CA(4) effectively provides for merits review of a decision made under s 501(3A) and in doing so the Tribunal is entitled to consider the broad version of the character test. This construction of s 501CA(4) is supported by the express reference in paragraph (b)(i) to “the character test (as defined by section 501)” and the notable absence of any reference to s 501(3A)(a) of the Act.
59. …
60. I agree with the following observations of Burley J in XJLR:
[90] …as noted above, s 501CA(4) provides a means for the Minister or a delegate of the Minister and, on review, the Tribunal, to consider whether to revoke the cancellation decision. Section 501CA(4)(b)(i) introduces consideration of a broader version of the character test than that which was under consideration at the time of the mandatory cancellation decision made pursuant to s 501(3A) and, of particular relevance to the present case, opens consideration of multiple offences, including those served concurrently by the applicant at the time of the decision being made under s 501CA(4).
[91] The application of the broader version of the character test accords with the statutory scheme of enabling mandatory cancellation under s 501(3A) to take place only in the clearest of cases, and more nuanced consideration to take place under s 501CA(4), when an application has been made to review the mandatory cancellation.
61. Once it is accepted that the Tribunal is entitled to look at the broad character test in s 501 then it was clearly open to the Tribunal on the evidence before it to find that the applicant did not pass the character test…
[15] Exhibit R1, 33.
[16] Ibid 37.
[17] PYDZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1050, [58]-[61].
The Applicant does not pass the character test because he has a substantial criminal record. This arises from him being sentenced to two or more terms of imprisonment exceeding 12 months.[18] His contentions about reduced sentences on appeal and concurrency effects, which resulted in him serving less than 12 months imprisonment, does not assist him. That is because s 501(7)(d) of the Act is enlivened by the sentences awarded, not the actual time served or how the sentences are served.[19]
[18] The Act, s 501(6)(a), read in conjunction with s 501(7)(d).
[19] See, for example, Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, [96], [114] (Moore, Rares, Nicholas JJ), the correctness of which was affirmed in Ali v Minister for Home Affairs (2019) 269 FCR 340, [32] (Jagot, Burley, Lee JJ).
The issue to be determined in this case is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[20] The Tribunal must make ‘the correct or preferable decision’ on the material currently before it,[21] guided by principles summarised by the Full Court about how ‘another reason’ is determined:[22]
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[20] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[21] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]–[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs [2022] HCA 26 (Nathanson); AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175,[25] (Wigney, Abraham and Rofe JJ); Beezley v Repatriation Commission (2015) 150 ALD 11, [68]
[22] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294, [27], reflecting with approval on the approach taken in Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently in Plaintiff M1,[23] the plurality of the High Court stated the following about how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims”…
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
[23] Plaintiff M1/2021 v Minister for Home Affairs (2022) 400 ALR 417 (Plaintiff M1/2021), [22]-[27], (Kiefel CJ, Keane, Gordon and Steward JJ), [22]-[25].
Ministerial Direction 90
In making its decision, the Tribunal must comply with a ministerial direction, made under s 499(1) of the Act, and known as ‘Ministerial Direction 90’ (“the Direction”).[24] The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task:
(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 noncitizens 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 noncitizens 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 measureable risk of causing physical harm to the Australian community.
[24] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2022) 96 ALJR 497, [4] (Rares, O’Callaghan and Jackson JJ); Nathanson, 2 [4].
Clause 6 of the Direction provides that, informed by the principles at cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction refers to the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The best interests of minor children in Australia;
(d)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including: (i) Strength, nature and duration of ties to Australia; and (ii) Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[25]
[25] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[26]
EVIDENCE
[26] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
Documentary evidence
The following documents were tendered into evidence:
(a)G-documents from the Respondent numbering 238 pages;[27] and
(b)Supplementary G-documents numbering 548 pages.[28]
[27] Exhibit R1.
[28] Exhibit R2.
Applicant’s evidence
The Tribunal has considered written statements from the Applicant dated 6 May 2022[29] and 9 November 2022.[30] At the commencement of his oral evidence he adopted the latter as his statement in this proceeding.
[29] Exhibit R1 173-174.
[30] Ibid 191-193.
The Applicant’s oral evidence is summarised as follows:
(a)He had a difficult upbringing because his parents were ‘not there’ for him. He was brought up by his grandmother until the age of 15. When she died, aunties and uncles looked after him until he turned 18, following which he ‘ran away from home and joined the circus’. He subsequently worked as a labourer and on an orchard.
(b)The Applicant said his drug use commenced with cannabis at the age of 15. He referred to it several times as ‘medicine’ that helps him relax. He also abused alcohol since a young age and used cocaine for about a year while living in Canada, which caused the end of his relationship with the mother of his child. The Applicant explained that his ex-partner ‘didn’t want to compromise on things anymore’. When asked if this meant she objected to his cocaine use, the Applicant responded: ‘Yes’.
(c)After arriving in Australia, the Applicant worked in a factory under his father’s supervision. He also referred to work as a powder-coater, stonemason, and busker. The Applicant said his persistent cannabis use caused disagreements with his father, who believed this endangered both of their jobs at the factory. The Applicant said he was eventually asked to leave the family home, after which he ‘lived on the streets’ and pursued his interest in music. The Applicant agreed he was 37 years old at this time, following which his drug use worsened to include smoking crystal methylamphetamine (“ice”). When asked why he did not stop smoking cannabis as his father asked, the Applicant responded: ‘I thought I knew better at the time and wanted to try a different avenue by pursuing music’. He again referred to cannabis as his ‘medicine’, which he believes should be legalised. He agreed with Mr Orchard’s suggestion that despite having a secure job, family support and stable accommodation, he chose continued drug use, unemployment, and homelessness.
(d)The Applicant claimed to have been abstinent from alcohol and illicit drugs since his most recent imprisonment. When asked how he would avoid relapse if released, he responded: ‘I’d try to seek rehab on not to use. I’d have a Corrections Order to apply – start off counselling and stuff’.
(e)The Applicant said a prolonged period in custodial settings had been a ‘long rehab’. He completed courses while imprisoned in first aid, food handling, and an ‘Atlas Course’ focussed on drug and alcohol addiction. He had not done any formal courses in immigration detention but said people came and spoke at their daily ‘Coffee Club’ about avoiding drugs.[31] When asked to elaborate on what he learned from these speakers, the Applicant’s response did not meaningfully advance any learnings beyond attendance.
[31] Exhibit R2, 485.
(f)The Applicant was asked about reported incidents of misconduct in custodial settings. His evidence about this is summarised below and supports a reliable finding that the Applicant has not been consistently compliant in custodial settings, which resulted in reprimands, removal or privileges, and relocation:
(i)He conceded that he was caught with a non-prescribed ‘Avanza pill in [his] cell,’ and stated he took this drug to help him sleep. The Tribunal notes from open-source material Avanza is for the treatment of major depression and must be prescribed by a medical practitioner. When asked if he agreed this incident cast doubts on his abstinence claims, the Applicant responded: ‘Well yes and no, the whole period of time I was incarcerated I didn’t use drugs full-time – it doesn’t mean I was taking them full time, basically’.
(ii)The Applicant agreed he was observed on CCTV collecting contraband thrown from another compound, claiming it was tobacco.
(iii)In relation to an incident involving ‘home brew’ in his cell, the Applicant said this was not his and denied consuming any.
(iv)The Applicant agreed he was observed on CCTV disposing of a sock containing a rock that was used in an assault,[32] but claimed he just happened to be ‘in the wrong place at the wrong time’. When asked to elaborate, he said the person who committed the assault passed the sock / rock to him and he accepted it under ‘threat of [his] life’. The Tribunal notes from the incident report his disposal of this item occurred at 03:53 am.
[32] Ibid 117.
(v)The Applicant agreed he refused food during a protest, which he said was a ‘strike to fight for more rights’.
(g)The Applicant was asked about his failure to disclose criminal convictions in three Incoming Passenger Cards (“IPC”) after returning to Australia from international travel. He gave various explanations for this, initially claiming these were mistakes because of his ‘lack of schooling and low literacy’. He later claimed he thought convictions were expunged after seven years and did not need to be declared. After Mr Orchard directed his attention to offending in New Zealand inside of seven years from the date of one IPC, the Applicant’s response did not address the question asked. In later submissions, the Applicant conceded he did not disclose his criminal history because he was ‘scared about not being allowed to enter Australia’. He claimed however, that ‘other people have done that as well’, which the Tribunal inferred was suggesting his conduct was neither unique nor particularly serious.
(h)The Applicant was asked about references in evidence to his stepmother and three stepsiblings, and why no statements were provided from them. He said his previous lawyer told him these would be helpful, but he decided a statement from his father was sufficient. The Applicant did not call any witnesses despite several offers from the Tribunal prior to and during the hearing to facilitate this. The Applicant was asked about supportive statements from friends. He claimed to have met most of them ‘on the street’ while busking. Another statement is from the mother of his goddaughter, while another statement is form a person he met in immigration detention.
(i)The Applicant referred to ‘three strikes’ in the past and ‘three chances to better [him]self’, which he had not taken advantage of. The Tribunal inferred this was a reference to past rehabilitative opportunities. The Applicant stated, however, that ‘everyone deserves another last chance’. He referred to his current period of imprisonment and immigration detention as a ‘kick up the backside’. If released in Australia, he promised this time to ‘seek out counselling and be a better person’. He intends to live with his father, who he claimed has a ‘job waiting for [him]’. When asked what sort of counselling he would pursue, the Applicant responded: ‘drug counselling to stop the urges to use again’. The Applicant agreed with psychologist Mr Healey’s opinion that he has significant rehabilitative needs to address.
(j)In terms of recidivism risk, the Applicant acknowledged past assessments rating him as a moderate to high risk, but claimed he would not be a threat to the community.
(k)When asked about the interests of any minor children in Australia, the Applicant referred to a goddaughter who he thought was ‘about ten or eleven’. He could not recall her birthday and had not spoken to the child for a ‘long time – since 2015’. He asked about his goddaughter when speaking with the child’s mother and said the child asked about him to her mother. The child has both parents who care for her. He also claimed that one of his stepsiblings is 15 and they ‘developed a relationship’ after he arrived in Australia. He last spoke with this stepsibling six to 12 months ago. When asked what sort of relationship they have, the Applicant responded: ‘Basically we did our own thing – he played video games and I went to work’.
(l)When asked about any medical or psychological issues, the Applicant said he has none and does not take any medication. When referred to references in his revocation submissions and Mr Healey’s report about psychological conditions, the Applicant said there was little support available to him in custodial settings. When referred to reports that he repeatedly refused mental health assessments and primary health appointments in immigration detention,[33] the Applicant accepted these consultations were offered to him, but he refused to attend.
(m)When asked what his plans are if returned to New Zealand, the Applicant said he stays in touch with and is close to an auntie that raised him after his grandmother died, and friends from school. He also has a friend who owns a farm on the east coast of New Zealand’s North Island, who has offered him a job and accommodation.
PRIMARY CONSIDERATIONS
[33] Exhibit R2, 506-514; 520-521.
Protection of the Australian community from criminal or other serious conduct
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
a) the nature and seriousness of the non-citizen’s conduct to date; and
b) the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, 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)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
The Tribunal has considered sentencing remarks dated 16 June 2021, referring to the Applicant having ‘a lot of priors’.[34] These are predominantly for dishonesty offences such as burglary, stealing cars, dealing with proceeds of crime, obtaining property by deception, theft, handling / receiving stolen goods, and being equipped to steal / cheat. He has also been convicted of possessing a prohibited weapon, escaping from police custody, assaulting an emergency worker, breaching conditional liberty like bail and Community Correction Orders (“CCO”), intentionally damaging property, and drug possession. He has multiple speeding and road offences recorded against him in 2016.[35]
[34] Ibid 54 [6].
[35] Ibid 5.
The Applicant was sentenced in the Magistrates’ Court of Victoria on 16 June 2021 for a range of offences, including terms of 18 months’ imprisonment on each of eight counts of burglary to be served concurrently.[36] He appealed against these sentences and, on 13 October 2021, Judge Bayles of the County Court of Victoria set aside the Magistrates’ orders and instead imposed a sentence of 150 days imprisonment for each of the eight burglary charges, to be served concurrently.[37] Given that burglary is an indictable offence rendering an offender liable to imprisonment up to a maximum of ten years,[38] the Applicant’s sentences suggest his offending was at the lower end of seriousness for such crimes.
[36] Exhibit R1 46-70.
[37] Ibid 72-116.
[38] Crimes Act 1958 (Vic), s 76(3).
Having regard for cl 8.1.1 of the Direction, the Applicant has been convicted of several violent crimes. The sentences he received over time have increased in severity, from CCOs and community work, to increasing sentences of imprisonment. When regard is had for his criminal history in New Zealand and Australia, his offending has been frequent. The cumulative effect of his crimes is only exacerbated by the repeat nature of several categories of offending, including dishonesty, drug, and conditional liberty offences. The Tribunal does not accept the Applicant’s inconsistent explanations for failing to disclose criminal convictions in his Incoming Passenger Cards (“IPC”).[39] His failure to do so constitutes false or misleading information in an official context. The Applicant’s eventual concession that he failed to truthfully disclose past convictions on his IPC raises concerns about the extent to which he was forthright in other aspects of his evidence.
[39] Exhibit R1, 198-200.
The Applicant was asked during oral evidence about custodial records that routinely form part of the evidence in non-revocation cases.[40] These reports are obtained under summons and their probative value is tested during questioning. The Tribunal is not bound by the rules of evidence;[41] and, although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them within the meaning of ‘other conduct’ at cl 8.1.1(1) of the Direction. Witnesses must be afforded procedural fairness, however, by having the records put to them for response. As Kenny J has pointed out, the Tribunal should treat contemporaneous police and custodial records carefully and acknowledge the ‘limits to the material…said to evidence such conduct, including its cogency and reliability’.[42] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[43] The Tribunal has only placed weight on custodial records where the Applicant agreed these incidents occurred.
[40] Ibid 117-125; Exhibit R2, 480-483.
[41] AAT Act, s 33(1)(c).
[42] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[43] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74], citing Brown v Minister for Immigration and Citizenship (2009) 112 ALD 67, [85] (Edmonds J) and cited by the Full Court on appeal in Brown v Minister for Immigration and Citizenship (2010) 183 FCR 113, [128] (Nicholas J, with whom Moore and Rares JJ agreed).
The evidence supports a reliable finding that the Applicant has not been consistently compliant in custody and has received reprimands, removal of privileges and relocation. The Tribunal does not accept the contention of the Applicant’s previous legal representative, that he has been a ‘model prisoner’,[44] nor the Applicant’s excuses for the circumstances giving rise to incident reports.
[44] Exhibit R1, 66
The totality of the Applicant’s criminal history in New Zealand and Australia, coupled with other misconduct, reflects an unflattering pattern of behaviour that is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.
Clause 8.1.2(2) of the Direction states that in assessing the risk the non-citizen poses to the Australian community, decision-makers must take into account, cumulatively:
(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:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of harm from a repeat of the Applicant’s violent offending could encompass serious injury if he again assaulted others or escaped from police custody. Physical, psychological, or financial harm could result from a repeat of his burglary offences, given that the elements of this offence involve either an assault on a person in a building, or damage to the building or property in the building.[45]
[45] Crimes Act 1958 (Vic), s 76(1)(b).
In terms of the likelihood or risk of the Applicant engaging in further criminal or other serious conduct, he has contextualised his offending since 2018 as arising from drug and alcohol abuse, which caused his father to evict him from the home. The Applicant said that ‘dire and desperate’ circumstances, including a lack of family support, as well as association with anti-social peers, caused him to resort to crimes. In terms of recidivism risk, the Applicant stated in his March 2022 Personal Circumstances Form (“2022 PCF”):
‘I am not a risk to the Australian community. I have learnt my lesson. I do not want to go to prison again or stay in immigration detention. It was my first time in prison and I never want to go back again. I know that I will be deported from Australia if I commit any more crimes. I do not want that to happen. I am asking the Department to give me another chance.[46]
…
I am now in a better position in life. I have had time in prison to reflect on my actions. With the benefit of hindsight, I know that what I did was wrong. I have done some courses in prison. I have reached out to friends who have offered accommodation and secured work for me for when I get out of detention.’[47]
[46] Exhibit R1, 128.
[47] Ibid 140.
The Applicant also referred in his 2022 PCF to the following rehabilitation:
‘Whilst in prison, I completed a Food Handling Certificate, Atlas Drug & Alcohol course over 4 weeks long and an Occupational Health & Safety Certificate. The drug and alcohol course helped me to better understand the impact of drug use and motivated me to stay away from drugs in the future.’[48]
[48] Ibid 140; 164.
The Tribunal notes several references in evidence to the Applicant failing to answer bail or attend for supervision, drug assessment and treatment.[49] The totality of the available evidence is reflective of him not being deterred by corrective penalties, nor taking advantage of opportunities to address factors contributing to his offending. The Applicant failed to persuasively identify any constructive coping strategies learned from rehabilitative courses that he could use in the community to reduce his risk of re-offending.
[49] Exhibit R2, 54; 89; 92-93; 98; 124; 127; 162; 194; 252; 380.
In terms of protective factors, the Applicant relies primarily on the following:
(a)The salutary experience of a prolonged period in custodial settings.
(b)Offers of accommodation and work with his father, and other support from family and friends if released.
(c)The fear of being returned to prison and deported from Australia if he does not embrace this ‘last chance’.
In terms of expert evidence, the Tribunal has considered a report dated 26 August 2021, prepared by psychologist Mr Bernard Healey.[50] Although somewhat dated, it is the best expert evidence available to the Tribunal. A summary of key aspects follows:
[50] Exhibit R1 179-190.
(a)Mr Healey interviewed the Applicant on 26 and 27 August 2021 for approximately one hour on each occasion.
(b)The Applicant started smoking cannabis at the age of 16, which ‘became a regular involvement up to a gram per day and continued over the years except when he has been without his liberty’. He claimed to have commenced smoking ice approximately two-and-a-half years prior to his consultations with Mr Healey and used between several points and one gram per week. He also previously used cocaine for approximately a year while living in Canada. The Applicant was observed to exhibit traits of substance abuse syndrome and ‘bipolar features with marked mood fluctuations’.[51]
(c)Mr Healey said the Applicant’s offending ‘appeared to be linked to a remarkable downturn in his life’, during which he was ordered to leave his father’s house in 2018 because of conflict between them. His offending was in the context of dependency on ice and for general support.
(d)The Applicant was first imprisoned in 2020 but ‘drifted back into the dubious solace’ of drug abuse and a transient lifestyle. Despite ‘opportunities provided through Community Correction Orders’ and housing support he was ‘unable to embrace these’ and reoffended. Mr Healey noted he ‘only attended…one session’ of the complex counselling he was referred to.
(e)Because of the Applicant’s ‘low level of intellectual functioning and aspects of personality dysfunction he needs to be in a supportive environment which is drug free and conflict free’. Mr Healey administered personality testing, which disclosed that the Applicant has:
‘…some antisocial features, some compulsive features, and the clinical syndrome, some elements of excitement seeking, difficulties in making decision between alternative courses of action, and also the disorder in relation to drug abuse and addiction. The Post Traumatic Stress Syndrome was also clinically significant’.
…he will need the very complex ongoing counselling process which commenced with only one session whilst he was in the care of Corrections through a Community Order. That complex counselling would involve enabling him to understand more about himself and his own personality problems and inadequacy, but also in regard to his marked dependence upon drug substances as a form of dubious solace and escape from the difficulties he faces within his own person and within the community at large’.
…
These features of his mental and psychological condition are of a relatively permanent nature at this point in time, certainly those conditions as outlined contributed significantly to his behaviours in regard to drug-related offending and some quite bizarre and blatant risk-taking behaviour…
Certainly, without ongoing support and development of understanding of himself he will be troubled in the future and clearly needs ongoing complex counselling support as identified through those endeavouring to help him on his Corrections Order.
[51] Ibid 189.
The Tribunal accepts the Applicant may have had a difficult childhood in New Zealand. The breakdown of his relationship in Canada and subsequent falling out with his father in Australia, both due to the Applicant’s persistent drug use, would also have been difficult for him. These experiences, however, in no way excuse his persistent substance abuse and crimes. He has repeatedly breached CCOs and other conditional liberty provisions,[52] and failed to use rehabilitative opportunities to meaningfully change the course of his life. This includes reoffending and being found with cannabis and ice in his system during compulsory urinalysis.[53] Reports refer to his recidivism risk over time as follows:
(a)In a Department of Justice and Community Safety report dated March 2021, he was considered by the to be a ‘high risk of general reoffending, and has contravened all current Orders by further offending…’.[54]
(b)In a Department of Justice and Community Safety report dated November 2020, he was considered by the to be a ‘moderate risk of general reoffending’.[55]
(c)In October 2020 the Applicant was assessed by Corrections Victoria to be a ‘High’ risk of reoffending under the ‘LS Risk’ methodology.[56]
(d)In August 2020 the Applicant was assessed by Corrections Victoria to be a ‘Medium’ risk of reoffending under the ‘LS Risk’ methodology.[57]
(e)In submissions opposing the Applicant’s bail in August 2020, police considered him to be ‘an unacceptable risk‘ of reoffending, including because he had only been released from prison for a few weeks prior to committing the same offence.[58]
(f)In July 2020 he was assessed under the Level of Service Risk Assessment Tool as constituting a ‘medium risk of reoffending’.[59]
(g)In November 2019 the Applicant was assessed by Corrections Victoria to be a ‘High’ risk of general reoffending under the ‘LS Risk’ methodology.[60]
[52] Exhibit R2, 91-92.
[53] Ibid 92.
[54] Ibid 386.
[55] Ibid 93.
[56] Ibid 289; 292.
[57] Ibid 274; 278.
[58] Ibid 107.
[59] Ibid 140.
[60] Ibid 58-59.
The Tribunal is unpersuaded that the protective factors the Applicant invokes persuasively ameliorate his risk. This includes because he continued to use drugs despite supportive loved ones asking him to stop, leading to the breakdown of these relationships and exacerbating factors that contributed to his crimes. Moreover, his misconduct in custodial settings, including taking drugs not prescribed to him, is not suggestive of persuasive insight, remorse, abstinence, and rehabilitation.
There are several references to the Applicant intending to live with his father if released,[61] which he confirmed in oral evidence. The tumultuous nature of their past relationship does not inspire confidence about how a resumed relationship might persuasively ameliorate the Applicant’s recidivism risk. Psychologist Mr Bernard Healey attributes the Applicant’s mental health issues in part to the ‘time…he spent with his father’.[62] The Applicant has previously referred to his father leaving their family soon after he was born, then a five-week relationship with his father when the Applicant was 13 years old. He then lived with his father between 2014 and 2018 but described him as ‘an alcoholic’ who was violent against members of the family, which caused a ‘major argument’ between them in 2018 and the father asking the Applicant to leave the home.[63] During oral evidence it emerged that it was the Applicant’s unwillingness to stop using cannabis that was the source of conflict between them. They lost contact after that[64] and the impetus to re-build their relationship is relatively recent and aspirational.[65] The Applicant’s father refers in his statement to the Applicant working at his factory if released, although there is no corroboration from the employer in question. Moreover, past work by the Applicant in his father’s factory, or as a powder coater, or stonemason did not meaningfully ameliorate his drug use or tendency to commit crimes.
[61] Ibid 174; 194.
[62] Ibid 189.
[63] Ibid 191.
[64] Exhibit R2, 141.
[65] Exhibit R1, 192 [15].
Based on the evidence currently before the Tribunal, particularly Mr Healey’s report, the Applicant has considerable unmet rehabilitative needs that require complex counselling and support. The Applicant’s plan to address these is expressed at a high level of generality. His purported motivation to do is diminished by persistent refusal to attend mental health and primary health screening in detention. In any event, and as the Direction makes clear, decisions should not be delayed for rehabilitation to be undertaken.[66] The Tribunal has little confidence in the Applicant’s assurances alone that he will seek out rehabilitative support, remain abstinent, live a law-abiding life, and not constitute a threat to the Australian community. These claims are aspirational at best. His risk of reoffending on current facts is at least moderate. The very serious nature of the Applicant’s past crimes, coupled with a moderate risk of recidivism, and the potentially serious harm arising from any repeat, results in this primary consideration weighing substantially against revocation.
[66] The Direction, cl 8.1.2(2)(b)(ii).
Family violence committed by the non-citizen
There is no evidence the Applicant has been involved in family violence within the meaning of the Direction. This primary consideration is not enlivened and carries neutral weight.
Best interests of minor children in Australia affected by the decision
The Applicant did not invoke the interests of any children in his 2022 PCF.[67] He only made claims regarding the interests of minor children during his oral evidence when aspects of his documentary evidence were raised with him. The daughter who was born in and resides in Canada, and with whom he has had limited contact since 2014,[68] falls outside of the meaning of cl 8.3 of the Direction. The Tribunal accepts the Applicant has some relationship with his goddaughter and youngest stepsibling but has not spoken with the former for many years and only occasionally with the latter. On the evidence he presented, these are not particularly developed relationships. Moreover, both children have parents who care for them and the Applicant’s relationship with them is contextualised by long periods of absence and limited meaningful contact. There is no evidence from the children about the nature of their relationship with him. Although the interests of these two minor children, on balance, are best served by revocation, this primary consideration only carries slight weight in the Applicant’s favour.
[67] Exhibit R1 135-138.
[68] Ibid 161; 168; 184; 188; 191 [7].
Expectations of the Australian community
Clause 8.4(1) of the Direction provides:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Clause 8.4(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
(a) acts of family violence;
(b) …;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature…;
(d) …;
...
Clause 8.4(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.4(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in a particular case.
Clause 8.4(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court (FCAFC) in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (FYBR). Notwithstanding the different pathways in judicial reasoning, the plurality in FYBR held that Expectations of the Australian community is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[69]
[69] FYBR (2019) 272 FCR 454, at 471–2 [66] (FYBR) (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[70]
[70] Ibid at 473 [75]–[76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[71]
[71]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 056.
The Applicant submitted that he deserves a ‘final last chance’ to remain in Australia.
Mr Orchard submitted that the Australian community would expect the Applicant should not hold a visa because of his very serious criminal offending. Moreover, the potential harm that would be caused should he continue to engage in offending is sufficiently serious that countervailing considerations in his favour should not be found to justify revocation
The Applicant’s offending raises serious character concerns within the meaning of cl 8.4(2)(d) of the Direction. He has breached the community’s expectation that non-citizens obey Australian laws. Having regard for the norm stipulated at cl 8.4(1) of the Direction and the guidance provided by the principles at cls 5.2 of the Direction, the Australian community would expect the Applicant should not hold a visa. This primary consideration weighs at least moderately against revocation.
OTHER CONSIDERATIONS
In determining the existence of ‘another reason’ under s 501CA(4) of the Act, the Tribunal must consider the list of other considerations at cl 9 of the Direction, which is non-exhaustive. This includes regard for the consequences resulting from a non-revocation decision.[72]
[72] Minister for Immigration and Border Protection v Le (2016) 244 FCR 56, [61].
International non-refoulement obligations
The Applicant did not make non-refoulement claims and none can be discerned from the available evidence. This consideration is not enlivened and carries neutral weight.
Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant is 40 years of age. There are no discernible language or cultural impediments disclosed by the evidence. Apart from living in Canada for five years and then in Australia for the last eight years, the Applicant has lived in New Zealand for most of his life.
In his 2022 PCF the Applicant referred to the following mental health problems noted in Mr Healey’s report, which he did not meaningfully advance during the hearing:
‘…including dependency, anti-social features, features of bipolar disorder such as mood fluctuations and elements of post-traumatic stress’.[73]
[73] Exhibit R1, 142.
The Tribunal has considered IHMS records referring to periodic diagnostic tests and relatively minor ailments suffered by the Applicant.[74] It is noteworthy that he has repeatedly refused mental health assessments and primary health appointments.[75]
[74] Exhibit R2, 484-548.
[75] Ibid 506-514; 520-521.
The Applicant claims his mother in New Zealand has re-partnered, and he does not ‘maintain contact with her’ or other relatives and friends.[76] These claims were directly contradicted during his oral evidence, when he said his mother has not re-partnered, and referred to being close to an aunt that helped raise him, and to maintaining connections with school friends. He also stated in his 2022 PCF that because he has been ‘away from New Zealand for so long,’ it would be difficult for him to ‘find work and establish a new life there’. This was again contradicted during oral evidence, when he referred to a close friend who owns a farm and has offered him work and accommodation.
[76] Exhibit R1, 192-193 [15].
The Applicant has some work history in Australia, including in a factory, as a powder-coater, farm worker, stonemason, and musician. He has also undertaken some self-development and vocational courses in custodial settings. He reports a desire to return to immediate employment and stated during the hearing there are no medical, psychological, or medication-related issues preventing that. There is no evidence the work and vocational skills he has gained in Australia are not transferrable to New Zealand, particularly given he seems to have secured an offer of work and accommodation on a friend’s farm. The Tribunal inferred from some of the Applicant’s evidence that he considers opportunities in Australia are better than in New Zealand. The requirement under the Direction, however, is to consider an applicant’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country,’ rather than by comparison with Australia. There is no evidence that if he needed it, the Applicant would not have the same entitlement to healthcare, income, housing, or other support available to all New Zealand citizens who meet required prerequisites. This includes through legislation enacted in New Zealand to support returnees in the Applicant’s circumstances.[77]
[77] Pursuant to the Returning Offenders (Management and Information) Act 2015 (NZ).
The Tribunal accepts that after living in Australia for the last eight years, the Applicant will be confronted by some hardship if returned. On balance, however, particularly given the sources of support he discussed in oral evidence, this consideration weighs only slightly in favour of revocation.
Impact on victims
Clause 9.3 (1) of the Direction states:
Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Federal Court has held that this consideration requires assessment of ‘the impact on a victim of the perpetrator remaining in Australia’.[78] There is no evidence of this before the Tribunal. This consideration therefore has neutral impact.
[78] Manebona v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 730 [55] (SC Derrington J); HVLC v Minister for Home Affairs [2019] FCA 616, [13] (Colvin J).
Links to the Australian community
Clause 9.4 provides that a decision-maker must have regard to cls 9.4.1 to 9.4.2 of the Direction, which includes consideration of the strength, nature, and duration of any ties the non-citizen has to the Australian community and the impact on Australian business interests if the non-citizen is not allowed to remain in Australia. In terms of the latter, there is no evidence Australian business interests are enlivened within the meaning of the Direction. This consideration therefore carries neutral weight.
The strength, nature, and duration of ties to Australia
Clause 9.4.1 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the noncitizen has to the Australian community. In doing so, decision-makers must have regard to:
(a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant’s formative years, well into adulthood, were spent in New Zealand and Canada. He has lived permanently in Australia for only about eight years, having arrived here at the age of 32. This is not a case where a higher level of tolerance would be extended to him by virtue of him having lived in Australia since a young age or for most of his life.
There is a dearth of information about any positive contributions the Applicant has made in Australia. He referred in his documentary and oral evidence to employment as a factory worker from 2014 to 2015, and as a stone mason from 2016 to 2018.[79] There are limited employer details for this work, however, and no evidence from the organisations he claimed to work for. He elaborated upon this work in oral evidence and the Tribunal accepts on balance that he has made some positive contribution through employment.
[79] Exhibit R1, 141.
The Applicant states he is currently single. He referred to his closest relationships in Australia as being with his father, step-mother and half-siblings, but states there have been ‘ups and downs’ before he and his father had a ‘major falling out…in early 2018’.[80] In his latest statement he refers to recent resumption of a conversation with his father and feels that repatriation to New Zealand would prevent them ‘rebuilding [their] relationship’. There are also references to the support the Applicant can expect from his stepmother, but there is no evidence from her. In the absence of any corroborating evidence from his stepmother, or expert evidence regarding the claim that she has been diagnosed with cancer,[81] the Tribunal places little weight on these uncorroborated claims, which the Applicant did not advance in oral evidence.
[80] Ibid 165.
[81] Ibid 162, 166.
The Applicant refers to ‘a lot of good friends in Australia’ who he is close to and considers to be like family.[82] Five supportive statements have been provided as follows:
(a)A letter dated 4 May 2022 from a person who says he has known the Applicant for three years and considers him to be ‘a good trusted friend’.[83] No reference is made to the Applicant’s drug addiction or offending, nor the fact that the Applicant has been in custodial settings during most of their three-year friendship. The author was not called as a witness and could not be cross-examined about the precise extent of his relationship with the Applicant. Less weight is placed on this letter.
(b)An undated letter from a person who states he has been the Applicant’s friend for the last three years, since arriving in Melbourne from Sydney.[84] There is general reference at best to the Applicant’s drug addiction and no reference to the Applicant’s offending or that he has been in custodial settings during most of their three-year friendship. It is therefore difficult to understand how their paths crossed because of a ‘shared interest in cycling’. The author was not called as a witness and could not be cross-examined on the contents of his letter or precise extent of his relationship with the Applicant. Less weight is placed on this letter.
(c)A letter dated 18 November 2022 from a person who says the Applicant is a ‘family friend’[85] known to them for ‘many years’, and that the Applicant is godfather to one of the author’s daughters.[86] It is claimed in the letter that the Applicant’s former partner and daughter from that relationship intend to visit from Canada ‘sometime next year’, although this is an uncorroborated assertion at best in circumstances where there is no evidence from the Applicant’s former partner or daughter. No reference is made in this letter to the Applicant’s drug addiction or offending. The author was not called as a witness and could not be cross-examined about the precise extent of their relationship. Less weight is placed on this letter.
(d)A letter dated 18 November 2022 from a person who says the Applicant is a ‘very good friend’ he has known for six years.[87] The Applicant explained during oral evidence he met this person in immigration detention. The author states he has seen the Applicant’s criminal record, without referring to what it contains. No reference is made to the Applicant’s drug addiction. The author states the Applicant is welcome to live and work with his family on their farm. The author was not called as a witness and could not be cross-examined. Less weight is placed on this letter.
(e)A letter dated 30 November 2022 from a person who says the Applicant is his ‘dear friend’ and they met while the Applicant was busking,[88] but can’t recall how long they have known each other. The author states he is a subcontractor in the primary sector, wants to get the Applicant ‘involved in the sheep industry’, and could arrange work and a caravan for him to stay in. No reference is made in this letter to the Applicant’s drug addiction or criminal record. The author was not called as a witness and could not be cross-examined. Less weight is placed on this letter.
[82] Ibid 173; 192.
[83] Ibid 177.
[84] Ibid 178.
[85] Ibid 177.
[86] Ibid 194.
[87] Ibid 195-6.
[88] Ibid 197.
There is little in the way of positive contributions by the Applicant during his eight-year residence in Australia. He has taken illicit drugs for much of this time here, including in custody, committed multiple crimes, engaged in other misconduct, and has been in custodial settings for almost three years. It is noteworthy that his offending commenced relatively soon after arriving in Australia, with multiple speeding and road offences recorded against him in 2016.[89] He went on to commit more serious offences and has caused harm to multiple victims. The evidence he presents about ties to family members and prosocial peers is sparse at best. For example, despite advice from a previous legal representative to get statements from other immediate family members, there is no statement from his stepmother or three stepsiblings, who he professes to have good relationships with.[90] It is accepted, however, that there is a small circle of family members and friends and who would be upset about a non-revocation decision.
[89] Exhibit R2, 5; 9.
[90] Ibid 160; 168.
On balance, this consideration weighs moderately at best in favour of revocation.
Additional considerations
No additional considerations were advanced by the parties; and the Tribunal has not identified any others under the non-exhaustive list at cl 9(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. The Tribunal sees no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations than other considerations.
The Applicant has accumulated a significant criminal history in New Zealand and Australia. The Tribunal is unpersuaded that the circumstances he would be released into sufficiently ameliorate his risk of reoffending to an acceptable level. In the specific circumstances of his case, and consistent with the principles at cl 5.2 of the Direction, he should expect to forfeit the privilege of remaining in Australia.
In terms of minor children, the Applicant has limited relationships with his goddaughter and youngest stepsibling but did not persuasively advance these during the hearing. The Tribunal accepts he aspires to a closer relationship with his father, stepmother, adult stepsiblings, and supportive friends. The absence of any statements from his stepmother or stepsiblings, however, limits the weight that can be placed on these ties, which have previously been insufficient to assist the Applicant in changing the course of his life. Notwithstanding past conflict with his father, which resulted in the Applicant being asked to leave the family home, the Tribunal accepts that non-revocation would likely have an adverse emotional effect on his father.
In terms of impediments to removal, the Applicant’s unmet rehabilitation and mental health needs, and the consequences of his criminal history in Australia and New Zealand, are likely to pose some challenges. That said, he can rely on several close relationships in New Zealand, including with an aunt who helped raise him, and a friend who has offered him accommodation and employment on a farm.
The Applicant has made a limited positive contribution in Australia through work and paying some taxes. It is noteworthy, however, that he eschewed stable accommodation and employment with his father, instead resorting to continued drug use, homelessness, and crimes to support himself.
Having weighed the relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the mandatory cancellation of the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’, and ‘Expectations of the Australian community’, substantially outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children’ and other countervailing considerations.
DECISION
It follows that the Tribunal affirms the decision under review.
84. I certify that the preceding one eighty-three (83) paragraphs are a true copy of the written reasons for the decision of Senior Member A. Nikolic AM CSC
................[sgd]........................................................
Associate
Dated: 2 March 2023
Date of hearing: 1 March 2023 Advocate for the Applicant:
Applicant in Person Advocate for the Respondent:
Solicitors for the Respondent:
Mr Chris Orchard
Sparke Helmore
[3] The Act, s 496.
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