Whiu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 1337
•24 May 2022
Whiu and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1337 (24 May 2022)
Division:GENERAL DIVISION
File Number(s): 2022/1941
Re:Trae Tupe Mehana Whiu
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:24 May 2022
Place:Sydney
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
.....................................[sgd]...................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction 90 – protection of the Australian community – nature and seriousness of offending conduct – risk of reoffending – family violence – best interests of minor children – expectations of the Australian community – impediments to removal – links to the Australian community – decision set aside and substituted
LEGISLATION
Crimes Act 1900 (NSW) ss 112, 113, 117, 154A, 189A
Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 10A
Inclosed Lands Protection Act 1901 (NSW) s 4(1)
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA, 501G
CASES
AFY18 v Minister for Home Affairs [2018] FCA 1566
BTZ19 v Minister for Home Affairs [2019] FCA 1301
Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106
CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
CVN17 v Minister for Immigration and Border Protection [2019] FCA 13
CZCV and Minister for Home Affairs (Migration) [2019] AATA 91
Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151
Do and Minister for Immigration and Border Protection [2016] AATA 390
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Fox v Percy [2003] HCA 22
FYBR v Minister for Home Affairs [2019] FCAFC 185
Georges and Minister for Immigration and Ethnic Affairs [1978] AATA 63; (1978) 1 ALD 331
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309
Lee and Department of Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 531
Mendoza and Minister for Immigration and Border Protection [2018] AATA 686
Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24
Minister for Home Affairs v HSKJ [2018] FCAFC 217
Minister for Immigration and Citizenship v SZJSS [2010] HCA 48
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394
RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750
R v Scott [2005] NSWCCA 152
Shi v Migration Agents Registration Authority [2008] HCA 31
Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 5th ed, 2020)
Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Mirko Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Thomson Reuters, 9th ed, 2022)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
24 May 2022
BACKGROUND
Mr Trae Tupe Mehana Whiu (the Applicant) is a citizen of New Zealand/Aotearoa and identifies as a member of the Maori community. He was born in 1995 and first arrived in Australia in December 2001. Since that time he has made several trips back to New Zealand most recently arriving back in February 2015.[1] While he had made several trips to Australia for extended periods of time, he first came to reside in Australia in 2013. He is the holder of a Special Category (Temporary) (Class TY) (Subclass 444) visa which is available to citizens of New Zealand.
[1] G-documents at 59-60.
On 28 May 2021 the Applicant was convicted in the NSW Local Court of a variety of offences for which he was sentenced to a term of imprisonment of 15 months with a non-parole period of six months.
The visa of a non-citizen who is sentenced to a term of imprisonment of 12 months or more is subject to automatic cancellation under the Migration Act 1958 (Cth) (the Act)[2] and this cancellation was effected on 9 June 2021. The basis of such a cancellation is that such a non-citizen is taken to have failed the “character test” under the Act because they have what is defined as “a substantial criminal record”.[3]
[2] Migration Act 1958 (Cth) (Act) s 501(3A).
[3] Act ss 501(6)(a) and 501(7)(c) define a substantial criminal record as including a term of imprisonment of 12 months or more.
When an individual’s visa has been cancelled in such circumstances the Act provides that they may make “representations” to the Minister to have that cancellation decision revoked.[4] The Applicant did so on 11 June 2021, however a delegate of the Minister decided on 2 March 2022 to affirm the cancellation decision.[5]
[4] Act s 501CA.
[5] Act s 501CA(4).
On 9 March 2022 the Applicant applied to this Tribunal for a review of that decision and that matter was heard in the Tribunal on 11 May 2022. The hearing took place with the parties present in person, although the Applicant was self-represented.
Apart from the Applicant, no witnesses were called before the Tribunal although a number of support letters for the Applicant were submitted as part of the G-documents[6] and the material produced under summons.
[6] Act s 501G.
THE BASIS OF THE REVIEW
In proceedings such as this the Tribunal is required to address two questions, namely:
(a)does the Applicant have a “substantial criminal record” and thereby fail the “character test” set out in the Act;[7] and
(b)if he does, is there “another reason” why the cancellation decision should be revoked?[8]
[7] Act ss 501CA(4)(b)(i) and 501(6).
[8] Act s 501CA(4)(b)(ii).
In determining whether or not “another reason” exists, the Tribunal is bound[9] to have regard to the provisions of Ministerial Direction 90 (MD90 or the Direction)[10] as explained below.
[9] Act ss 499(1) and 499(2A).
[10] Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
The answer to the first question is uncontested. The Applicant has been sentenced to a term of imprisonment of more than 12 months and so, by definition, he fails the “character test”. Thus, the remaining task of the Tribunal, standing as it does in the shoes of the original decision-maker,[11] is to consider the evidence before it, including any evidence which may not have been before the original decision-maker,[12] and any representations made by the Applicant, to answer the second question.
[11] AFY18 v Minister for Home Affairs [2018] FCA 1566 at [9].
[12] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37].
Pursuant to paragraph 500(6L)(c) of the Act the Tribunal is required to make its decision by 25 May 2022 or else the decision under review is taken to be affirmed.
APPLICANT’S PERSONAL NARRATIVE
The Applicant was not particularly forthcoming at the hearing but was given the opportunity to elaborate upon and generally confirm the details of his personal narrative which were set out in the report of clinical psychologist Sam Borenstein which was prepared for submission to the Court and is dated 18 May 2021.[13]
[13] Summonsed material at 209-218.
It appears that at the time of his birth the Applicant’s father was in prison and that shortly thereafter he was abandoned by his mother and placed in the care of his paternal grandparent. On occasions he was subject to what he described to Mr Borenstein as “a flogging” and that he was moved around among relatives, many of whom had significant problems of alcohol addiction. He had a troubled schooling and was placed in a school “for students with intellectual or behavioural problems”.
He ran into problems in the New Zealand juvenile justice system and was sentenced by the Youth Court to six weeks in a “boot camp” which he said “straightened me out a lot”. After his father returned to the family he lived with him but was subject to physical abuse at his father’s hands.
The Applicant decided to leave New Zealand on a permanent basis when he was aged 18 years (having made previous visits since the age of six years) and resided with his mother on the Gold Coast. These living arrangements were unsatisfactory and unstable and as a result, the Applicant spent most of his time with Maori peers enjoying an extensive social life. He was also employed on a permanent basis throughout most of this period working in the construction, cement rendering and scaffolding industries.
On the Gold Coast he met TL who was visiting from Perth and they entered into a relationship. When she fell pregnant the couple returned to Perth and the Applicant worked as a “fly-in fly-out” worker between Western Australia and Queensland. The couple’s child was born in early 2018 but the relationship came to an end shortly thereafter in mid-2018.
The Applicant moved from Queensland to Canberra to take advantage of the boom in the construction industry taking place there in 2019 or 2020 where he met EJ and commenced a relationship with her, a son being born to the couple in March 2020. This relationship also did not last, although exactly when it finished is not clear.
Throughout this period, although the Applicant remained in almost constant employment, he also became a heavy user of “ice” and other illicit substances.
The evidence establishes that while living on the Gold Coast the Applicant was a binge drinker of alcohol and a regular user of marijuana. After his move to Canberra he progressed to the regular use of “ice”. He reported that this was primarily used as a stimulant to allow him to keep up his hours of work.[14] It was his evidence, which the Tribunal accepts, that he financed his drug use out of his regular earnings and there is no suggestion of his acquisition of money by any other means.
[14] Ibid at 213.
It was Mr Borenstein’s conclusion that the Applicant “does not currently display symptoms of serious psychiatric disorder” but that he manifests signs of severe depression and anxiety as confirmed by psychometric testing.[15]
[15] Ibid at 213-214.
In relation to the Applicant’s status at the time of his offending in December 2020, Mr Borenstein opined:
“Mr Whiu was in a psychotic/delusional state (drug induced), and, in my opinion, unable to exercise sound judgement or decisions.”[16]
[16] Ibid at 216.
The Tribunal notes that Mr Borenstein’s report was referred to by his legal representative in the relevant court proceedings where its conclusions do not seem to have been challenged. In this Tribunal hearing the Respondent offered no challenge to the report’s content other than to note, properly, that it contains no formal diagnosis of any mental health or psychiatric condition present in the Applicant.
APPLICANT’S OFFENDING RECORD[17]
[17] G-documents at 29-31.
The Applicant first appeared in the Queensland Local Court on 21 April 2015 where he was charged with offences of commit a public nuisance in licensed premises, commit public nuisance and assault/obstruct police officer.[18] No conviction was recorded and he was fined $400.00.
[18] Date of offence was 5 April 2015.
On 6 October 2015 he was back before the same court on charges of assault occasioning actual bodily harm and assault/obstruct police officer while affected by intoxicating substance. On this occasion again, no convictions were recorded but the Applicant was placed on probation for 2 years, required to serve 240 hours community service and make restitution to the sum of $500.00.[19]
[19] Date of offence was 25 April 2015.
Apparently the Applicant then breached the terms of his community service order and, as a result he appeared in court in September 2016. This resulted in his being re-sentenced for the 25 April 2015 charges. Subsequently, the community service order was revoked, a conviction recorded, and he was put on probation for a period of 18 months.
On 18 December 2020 the Applicant, now resident in New South Wales, committed a number of offences:
·take and drive conveyance without consent of owner;
·break and enter house etc steal value <= $60,000.00;
·break and enter dwelling house etc with intent (steal);
·enter inclosed land not prescribed premises without lawful excuse;
·shoplifting; and
·receive etc property stolen outside NSW.
As mentioned above, he was sentenced on 28 May 2021 to a term of imprisonment of 15 months with a non-parole period of six months.
It is worth noting the circumstances surrounding the offences in question committed on 18 December 2020. They are summarised in the record of the Court proceedings by the Applicant’s legal representative:
MAHON: 4.29am on 18 December 2020 Mr Whiu has driven a stolen vehicle into the front doors of a [motor vehicle] showroom in Waitara. Thankfully there’s no-one else present at the building at that time. There is CCTV footage, Mr Whiu makes no attempt to disguise his identity. Mr Whiu also makes no attempts to steal money or other vehicles inside the showroom, instead he takes what is described as a bumbag from behind the counter and walks out. Your Honour will have regard to the subsequent events which include Mr Whiu attempting to enter a private garage space using bolt cutters and Mr Whiu taking a premade meal from the door of a nearby apartment. Mr Whiu then collapses and falls asleep in a kitchen area of [a hotel] only a short distance from where the break and enter took place. Mr Whiu was found by police wearing the same bumbag.
In these circumstances it appears Mr Whiu’s offending is without any logical objective, his offending is certainly not sophisticated and there is no evidence of premeditation or planning. The report of Mr Boronstein further illuminates Mr Whiu’s subjective circumstances and state of mind at the time of these offences. In the preceding 12 months Mr Whiu had battled homelessness, drug addiction and had recurrent symptoms of severe depression and anxiety. Your Honour would be well aware that such matters are interrelated and often travel in tandem with one another.
At the time of the offending Mr Whiu was in a psychotic or delusional state of mind, he was paranoid and thought he was being tested in the words of Mr Boronstein, he had not slept in six days. It is conceded that the s 5 threshold is overcome by virtue of these offences, clearly the offending is serious but in my submission Mr Whiu has a powerful subjective case which supports a sentence which promotes his rehabilitation, it may not be a unique case but it is a powerful one.
Despite the many obstacles faced by Mr Whiu he has never previously conducted himself in a manner in which he did on 18 December 2020. His background in one of notable disadvantage and his childhood features violence, abandonment and paternal incarceration. In my submission these features do have the effect of diminishing Mr Whiu’s moral culpability.[20]
[20] G-documents at 35-36.
The sentencing magistrate took some of these submissions into account and in her sentencing remarks, Her Honour stated (inter alia):
What does that all mean, ultimately there is no issue here that the s 5 threshold[21] has been crossed, what that means is a gaol sentence is the only appropriate sentence. I certainly agree with that submission and I say so because of the principles of sentencing that relate primarily to break and enter type matters. The superior Courts have held that break and enters even for people who are drug addicted and have mental health issues generally speaking that there should be an expectation that people should go to gaol for that.
I note these were business premises but that does not necessarily make it less serious, sometimes a house can be more serious but it does not make it less serious because it is a business premises. I note though he was affected by ice and arguably the fact that he just kind of literally conked out and fell asleep in the middle of almost committing offences is corroborative of this what he says is that he was an ice binge for some days and it just kind of he crashed, luckily not the car that he stole.
Interestingly he has got no previous criminal history in New South Wales which is surprising for someone who has gone about this little crime spree. I do note through the report to Mr Boronstein that he now having spent some time in custody and he has been in custody bail refused on these matters since his arrest in December has had an opportunity to reflect on that and it’s almost been and he sees that his time in custody has been a circuit-breaker that it could have got a whole lot worse. I guess in a way lucky for him he has been arrested and hopefully this will achieve some outcomes.
Ultimately the sentence I have actually constructed is not far off an ICO, it is almost the same thing. I have considered an ICO but ultimately in my view an aggregate sentence given that I have got matters on a Form 1 as an appropriate course to take into account.[22]
[21] Crimes (Sentencing Procedure) Act 1999 (NSW) (Sentencing Procedure Act) s 5(1) states that “[a] court must not sentence an offender to imprisonment unless it is satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate.”
[22] G-documents at 37-38.
In terms of the sentences imposed, it appears from Her Honour’s remarks that a term of 6 months imprisonment was imposed for sequence one (stealing the car) and a term of 12 months for sequence two (break, enter and steal). Her Honour also stated inter alia, “sequence 5 in my view can be dealt with by way of s.10A”[23].
[23] Ibid at 38. Section 10A of the Sentencing Procedure Act provides for conviction with no further penalty.
In relation to the prior offences, evidence given at the Tribunal indicated that the assault occasioning bodily harm was as a result of a fight breaking out among a group of what the Applicant described as “Kiwi boys”, all of whom were drinking at a venue in Surfers Paradise. It also indicated that obstruction of a police officer resulted from the Applicant trying to leave the scene and being restrained.
The Applicant explained that his failure to discharge his Community Service obligations resulted, in part, from his being unable to attend to aspects of the programme because he was in full-time work and found it difficult to negotiate the proposed schedules. He also admitted that he did not attend weekend sessions as he prioritised his social and recreational life instead.
The Tribunal is aware that any convictions themselves cannot be challenged or called into question by it, nor can the Tribunal go behind the convictions and re-examine matters de novo.[24]
[24] Minister for Immigration and Ethnic Affairs v Gungor (1982) 4 ALD 575 at [596] per Sheppard J; Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649.
In Daniele, the Federal Court outlined the limits of the Tribunal’s powers in this regard:
The conviction is the genesis of the Minister's power to deport. There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant's criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. Whether these circumstances and matters are susceptible of examination, and the extent of that inquiry, will vary from case to case. The matters which the Tribunal is called upon to determine are wider than and different from the questions which a trial judge and jury must determine.[25]
[25]Minister for Immigration and Ethnic Affairs v Daniele (1981) 39 ALR 649 at [653] per Fisher and Lockhart JJ
These “wider and different” matters for determination require specifically, that the Tribunal’s task includes making assessments in relation to the considerations laid out in MD90.
Furthermore, Professor Dennis Pearce, in his authoritative text on the Tribunal notes:
“So on an application to review a deportation order based on criminal conviction, evidence may be presented that pertains to the issue of deportation and this may attempt to explain or qualify evidence given at the trial”.[26]
[26] Dennis Pearce, Administrative Appeals Tribunal (LexisNexis Butterworths, 5th ed, 2020) at 163; Lee and Department of Immigration, Local Government and Ethnic Affairs (1991) 24 ALD 531
MINISTERIAL DIRECTION 90
The Direction commences with a Preamble which applies to all parts of the Direction and establishes a number of guiding principles which provide a framework within which decision-makers should approach the task of deciding whether to affirm or set aside a decision made under subsection 501(2) of the Act.
In particular, the Direction provides inter alia that:
·being able to come to or to remain in Australia is a privilege conferred 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;
·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;
·there is an expectation that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct that raises serious character concerns, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community; and
·Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community for a short period of time.
Sub-paragraph 8.1(2) of Part 2 of the Direction starts with a general instruction for a decision-maker to consider the “nature and seriousness of the conduct”.
In terms of the “nature and seriousness of the conduct” the decision-maker is obliged to consider the extent to which the conduct involves crimes of a violent or sexual nature, crimes against women and children and acts of family violence. The decision-maker must also (inter alia) consider the frequency of the offending behaviour and whether it displays and trend of increasing seriousness, the cumulative effect of repeated offending and whether an individual has received prior warning about the consequences of further offending.
The Direction then elucidates four primary considerations which should generally be given greater weight than the other considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
It is worth noting that the issue of “family violence” was introduced into MD90 as a major addition from the set of criteria which existed under its predecessor Ministerial Direction 79. This reflects a clear statement of government/public policy that crimes of family/domestic violence and violence against women or vulnerable people are to be regarded as matters of exceptional seriousness.
Section 9 of Part 2 of the Direction provides that other considerations must be taken into account where relevant, which include (but are not limited to):
·international non-refoulement obligations;
·extent of impediments if removed;
·impact on victims; and
·links to the Australian community, including:
ostrength, nature and duration of ties to Australia; and
oimpact on Australian business interests.
The Tribunal is required to consider each of the items. However, it should be noted that there is ample High Court authority for the principle that it is up to the Tribunal itself to assess the weight which should be given to each of the respective criteria. Explicitly, the Court stated in SZJSS that: “[t]he weighing of various pieces of evidence is a matter for the Tribunal.”[27]
[27] Minister for Immigration and Citizenship v SZJSS [2010] HCA 48 at [33]; Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 at 41.
Once weight is assessed for each criterion, where there are competing assessments, and a balance to be arrived at, it becomes a matter of the Tribunal engaging in a process of “calculus” [28] to arrive at a final determination.
[28] Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47 at [52].
In determining the “weight” to be given to each of the criteria, the Tribunal assigns:
·“neutral” weight where the criterion counts neither for nor against the Applicant;
·“limited” weight where the criterion counts one way or another but not to any great extent and where evaluation is finely balanced but just falls on one side or the other;
·“moderate” weight where the criterion counts one way or another but is it clear that the evaluation falls on one particular side; and
·“significant” weight where the criterion counts one way or the other very heavily (and in some cases determinatively) on one particular side.
Protection of the Australian Community
The Ministerial Direction requires that the Tribunal must give consideration to:
·the nature and seriousness of the non-citizen's conduct to date; and
·the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness
The seriousness of the Applicant’s offending is characterised by the Respondent as being both “very serious” and of “escalating seriousness” in their Statement of Facts, Issues and Contentions (SFIC) at [25]-[27].
Ministerial Direction 90 (at sub-paragraph 8.1.1(1)(c)) directs that the Tribunal must have regard to any sentence imposed by the courts and failure to do so will amount to jurisdictional error on its part.[29]
[29] BTZ19 v Minister for Home Affairs [2019] FCA 1301 at [57]-[62] per Burley J.
The Respondent also notes that the seriousness of an offence may be assessed by reference to the sentence imposed. It cites the decision in Pavey[30] where Senior Member Tavoularis[31] said:
Sub-paragraph (d) of paragraph 13.1.1(1)[32] of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
[30] Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]; PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
[31] The Respondent’s SFIC is incorrect in referring to this as a decision of Deputy President Britten-Jones.
[32] As it appeared in the previous Ministerial Direction 79, now replaced in Ministerial Direction 90 at sub-paragraph 8.1.1(1)(c).
In the most recent authoritative text on sentencing, the learned authors state:
“It (sentencing) is the highest price our system of law exacts on wrongdoers.”[33]
[33] Mirko Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Thomson Reuters, 9th ed, 2022) at 2.
However, sentencing goes further than just “objective seriousness”. As the NSW Court of Criminal Appeal said in Scott:
There is a fundamental an immutable principle of sentencing that the sentence imposed must ultimately reflect the objective seriousness of the offence committed and there must be a reasonable proportionality between the sentence passed and the circumstances of the crime committed.[34]
[34] R v Scott [2005] NSWCCA 152 at [15].
In relation to the offence for which the Applicant was sentenced, the Tribunal notes the comments of the Sentencing Magistrate to the effect that:
(a)the sentence was “not far off an ICO, it is almost the same thing” and
(b)at least part of the offence sequence was more appropriately dealt with by used of section 10A of the Sentencing Procedure Act.
The Applicant was charged with:[35]
·take and drive conveyance without consent of owner for which the maximum penalty is five years imprisonment;[36]
·break, enter and steal for which the maximum penalty is 14 years imprisonment;[37]
·break and enter with intent to steal for which the maximum penalty is 10 years imprisonment;[38]
·shoplifting for which the maximum penalty is five years imprisonment;[39]
·receiving stolen property out of NSW for which the maximum penalty is 10 years imprisonment;[40] and
·entering inclosed land without permission incurs a fine of up to five penalty units.[41]
[35] Summonsed material at 142.
[36] Crimes Act 1900 (NSW) s 154A(1)(a).
[37] Ibid s 112(1)(A).
[38] Ibid s 113(1).
[39] Ibid s 117.
[40] Ibid s 189A(1).
[41] Inclosed Lands Protection Act 1901 (NSW) s 4(1)(b).
Consideration of the maximum level of penalties proscribed for the suite of offences committed by the Applicant compared with the penalties imposed by the Court can only lead to the conclusion that the Court did not consider the seriousness of the offences to be as rank and heinous as the Respondent contends.
The Court’s view is shared by the Tribunal. This is especially the case given that the Court also took cognisance of the evidence before it as to the impaired state of mind of the Applicant at the time of the offence.
Reflecting upon the earlier offences, they consist primarily of two instances of causing a public nuisance, three offences of obstructing a police officer in the performance of their duty and one offence of occasioning actual bodily harm.
The Tribunal acknowledges that offences against Police are to be taken seriously and that the Ministerial Direction makes specific reference to such offences.[42]
[42] MD90 s 8.1.1(1)(b(ii).
The circumstances of these offences has been outlined above and noting the Respondent’s admonition to have regard to sentences imposed, the Tribunal notes that these were all dealt with on the basis of no conviction being recorded and/or fines, probation or community service orders imposed.
There is also the offence of breaching a community service order, and while the Applicant has made excuses about his inability to comply due to work requirements, the Tribunal does not accept this excuse and regards the breach as a serious matter counting against the Applicant.
Leaving aside, for the moment, the issue of any family violence offence, the Tribunal, in its review of the “seriousness” of the Applicant’s offending, places it very much at the lower end of any scale and draws comfort from the fact that this appears to have also been the opinion of the Courts.
Risk of reoffending
The Sentencing Assessment report of 20 May 2021 rates the Applicant as being of “medium” risk of reoffending. However, the Tribunal reads this as being within the context of that report which acknowledges clearly the impact of alcohol and substance abuse in the Applicant’s record.
It also notes the remarks of the sentencing magistrate to the effect that:
Interestingly he has got no previous criminal history in New South Wales which is surprising for someone who has gone about this little crime spree. I do note through the report to Mr Boronstein that he now having spent some time in custody and he has been in custody bail refused on these matters since his arrest in December has had an opportunity to reflect on that and it’s almost been and he sees that his time in custody has been a circuit-breaker that it could have got a whole lot worse. I guess in a way lucky for him he has been arrested and hopefully this will achieve some outcomes.[43]
[43] G-documents at 37.
One of the reasons for the Tribunal insisting on an in-person appearance by the Applicant was to help it gain some degree of impression about the truthfulness, nature and character of the Applicant.
In respect of this, the Tribunal bears in mind the strictures of judicial authority.
On the one hand, Fisher J in Georges and Minister for Immigration and Ethnic Affairs observed that:
[I] had the opportunity of observing the applicant… during the taking of evidence and this is a crucially important advantage not available to the Minister and the Secretary.[44]
[44] [1978] AATA 63; (1978) 1 ALD 331 at 334.
On the other hand, there is a clear warning from the High Court that:
It is true, as McHugh J has pointed out, that for a very long time judges in appellate courts have given as a reason for appellate deference to the decision of a trial judge, the assessment of the appearance of witnesses as they give their testimony that is possible at trial and normally impossible in an appellate court. However, it is equally true that, for almost as long, other judges have cautioned against the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of witnesses. Thus, in 1924 Atkin LJ observed in Société d'Avances Commerciales (Société Anonyme Egyptienne) v Merchants' Marine Insurance Co (The "Palitana"):
"... I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour."
Further, in recent years, judges have become more aware of scientific research that has cast doubt on the ability of judges (or anyone else) to tell truth from falsehood accurately on the basis of such appearances. Considerations such as these have encouraged judges, both at trial and on appeal, to limit their reliance on the appearances of witnesses and to reason to their conclusions, as far as possible, on the basis of contemporary materials, objectively established facts and the apparent logic of events. This does not eliminate the established principles about witness credibility; but it tends to reduce the occasions where those principles are seen as critical. [45]
[45] Fox v Percy [2003] HCA 22 at [30]-[31] per Gleeson CJ, Gummow and Kirby JJ. Footnotes omitted.
Nevertheless, the Tribunal formed an impression of the Applicant which did not suggest a lack of sincerity on his part in terms of remorse for his actions, understanding of the impact of his behaviour, a willingness to address his issues of alcohol or substance abuse,[46] or his understanding of what would be the consequences of any future offending.
[46] Summonsed material at 203-204 and 217.
The Police Fact sheet of 18 December 2020 states that the Applicant “is reportedly a member of the criminal group the Mongrel Mob”.[47] This was put directly to the Applicant and flatly denied by him. The list of the Applicant’s tattoos,[48] comprising primarily Ngapuhi text or imagery[49] do not reflect any Mongrel Mob association.
[47] Ibid at 55.
[48] Ibid at 19.
[49] Ngapuhi is the largest Maori tribe in New Zealand and tattoos are often associated with a particular iwi.
This Tribunal then turns to the allegations of family violence. In light of the evidence that the Applicant has been served with more than one Apprehended Violence Order(AVO)/Family Violence Order (FVO) in more than one State, this must count against him. However, the details of these are not entirely clear and what evidence there is results from ex-partners’ reports to Police which have been challenged by the Applicant and which have never been tested in court.
The one detailed report (again in part denied by the Applicant) refers to him “pushing (his ex-partner) hard in the chest” and making her get out of a car. An Australian Federal Police (AFP) report (discussed in detail below) raises concerns for the Tribunal which is not prepared to make a definitive finding based on that document alone. Again, its details are contested by the Applicant and character evidence from the mother of his ex-partner raises some issues of credibility in reporting.
While it is impossible to ever conclude that an offender will never offend again, the Tribunal rates the likelihood of this occurring in relation to this Applicant as low.
Letters of support
Although no witnesses were called on behalf of the Applicant, the G-documents and the summonsed material contain letters written in his support on earlier occasions, including several from family members.
LN (who describes herself as “an Aboriginal artist”) is the mother of the Applicant’s previous partner EJ. In an email dated 25 September 2021, written after “their relationship began to crumble and Trae took the wrong path that led him to where he is now” she nevertheless speaks of his good qualities, her love and support for him and the necessity of her grandchildren having him as a father-figure in their lives.[50]
[50] G-documents at 72-73.
Mr Zavia Scott is the Operations Manager for Breakout Scaffolding who was fully aware of the charges pending against the Applicant in 2015 and made a clear offer that were he to be granted bail he would employ him. He furthermore offered his home as a base for the grant of bail and recorded the close relationship between the Applicant and himself along with his children.[51]
[51] Zavia Scott’s Letter dated 28 January 2021, Summonsed material at 175.
Ms Christine Kapagiannos (aged 63 years) states that she is aware of the Applicant being charged with offences “involving his ex-partner as well as matters which recently finalised at Hornsby Local Court”. She goes on to write that “I have recently been contacted by staff from the State Parole Authority and confirmed that Trae is welcome to stay with us at our address”. She writes of the closeness of her family with the Applicant and their enduring friendship.[52]
[52] Christine Kapagiannos’ Letter dated 18 June 2021, Summonsed material at 98.
There are three letters written back in 2015, two of which indicate some awareness of the Applicant’s offending behaviour to that date, but which nevertheless offer him support and attest to his basically good character,[53] and one which gives some details of the Applicant’s volunteer work for a local Neighbour Watch community.[54] It should be noted that all three of these letters were written by members of the Applicant’s family, although none was called to give oral evidence in support of them or in support of the Applicant directly. The Applicant attributed this to the fact that his relationship with all members of his family appears to have been minimal, by his choice, in recent years.
[53] Damian Johnston’s (26 September 2015) and Robert Long’s (27 September 2017) Letters, Summonsed material at 237 and 238 respectively. Mr Johnston is the Applicant’s step-father and Mr Long is the Applicant’s uncle.
[54] Karrina Johnston’s Letter dated 1 October 2015, Summonsed material at 239. Ms Johnston is the Applicant’s mother.
In respect of this criterion the Tribunal finds that it counts against the Applicant but that it does so only to a limited extent.
Family violence
The Applicant has never been convicted of any offences involving domestic or family violence although in relation to each of his ex-partners there are extant Apprehended Violence or Family Violence Orders still in place against him naming the ex-partners as protected persons.
There is a report from the Queensland Police Service dated 26/27 July 2018 which reports some sort of verbal argument, “both of them under a bit of pressure” which was “just verbal” and ending with the Applicant “embrac[ing] and apologis[ing]” to TL (his then partner) before she left their home in an uber car heading to the airport.[55]
[55] Summonsed material at 15-16.
The next incident is one where Applicant told the Tribunal that, on 17 December 2020 he drove from Canberra (where he was residing) to Sydney in order to visit a friend from whom he intended to seek money which he needed to pay debts. He stated that his friend was not at home and so it occurred to him to visit the home of his ex-partner TL to ask her for money.
A NSW Police statement of facts then records[56]
“About 10:00 on Thursday the 17th of December 2020 the victim was at her home… sleeping when her house-mate woke her up and said the accused was outside. The victim went outside and saw the accused in a white Volkswagon 4WD with Queensland registration. The victim entered the car and then drove a short distance down the street before parking and beginning an argument about money.
The victim has looked in the back seat of the vehicle and seen a shotgun, she describes it as black and brown in colour and about two and a half feet long. The victim asked the accused about the shotgun and the vehicle, which the victim thought was likely stolen, but he refused to answer any questions. The victim left the car and returned to her unit.
About 7:30 pm Thursday the 17th of December 2020 the victim was standing out the front of her unit block… smoking a cigarette with her house-mate ‘Brad’ when the accused drove up the driveway in the white Volkswagon. The victim was worried that the accused may be aggressive with her house-mate so got in the vehicle to talk. The accused asked for money and the victim stated that she would get him money from an ATM if he dropped her to work and then left her alone.
The accused began driving the victim east bound on the Great Western Highway and then the M4 motorway, they arrived at approximately 10:00 pm… at the victim's workplace… they began driving the surrounding streets looking for an ATM unsuccessfully. The accused stopped the vehicle in an unknown street outside a Coles warehouse or distribution centre.
The argument escalated and the accused has picked up the shotgun from the back seat and began waving it around yelling at the victim about money, the accused said ‘I'm gonna go hold brad hostage’ this statement in combination with the accused holding the firearm caused the victim to fear for her safety.
The accused then pushed the victim hard in the chest yelling at her to get out of the car causing the victim to fall back against her seat and the door. The victim then got out of the vehicle and ran as the accused drove off.
The victim went to her workplace where a friend took her to [the] Police Station.”
[56] Summonsed material at 55-56. Some personal identifying details omitted.
In his evidence to the Tribunal the Applicant challenged the basic outline of this narrative. While he agreed that he drove to TL’s home, he says that she agreed to give him some money and they went in search of an ATM. He then denies that he made any threat against “Brad” who he had only met that day or that he engaged in any physical violence against TL.
The Police apprehended the Applicant the following day at a hotel in Waitara and the Police Report then notes two things:
“The accused was not interviewed in relation to this matter due to his intoxication level.
The vehicle driven by the accused during this incident was located and seized by Police. Located inside this vehicle was a spear gun. The spear gun had a black handle with a timber barrel. Police this is what the accused had in the vehicle when the victim was in the car [sic].”
In other words, there is no police record of any alternate version of events as described by the Applicant and the “shotgun” (which the Police record TL “thought was likely stolen”) turned out to be a spear gun, ownership and possession of which is not illegal.
There is then some degree of confusion about exactly what charges resulted from this incident.
The Respondent in its SFIC (at [10]) states that charges were laid as follows:
“(a) stalk/intimidate intend fear physical etc harm (domestic)-t2;
(b) common assault (dv)-t2;
(c) armed w/i commit indictable offence-t1; and
(d) possess or use a prohibited weapon without permit-t2.”
The records of the Local Court on 24 September 2021 indicate charges of:
“stalk/intimidate intend fear physical etc harm (domestic)-t2;
common assault (dv)-t2;
armed w/i commit indictable offence-t1.”[57]
[57] Summonsed material at 35.
In any case it does not appear that the matter proceeded in that particular Local Court location as it next appears that the Applicant was charged in another Local Court location on 19 December 2020 with the offences of:
“stalk/intimidate intend fear physical etc harm (domestic)-t2;
common assault (dv)-t2”.[58]
[58] Ibid at 36.
The Applicant on both occasions entered a plea of “Not Guilty” and the charges were withdrawn.[59]
[59] Ibid at 39 and 41.
The Respondent has asked the Tribunal to take into account a letter provided by the Australian Federal Police to the National Character Consideration Centre[60] which is in the following terms[61]:
[60] An agency of the Department of Home Affairs with responsibility for making character assessments in matters under the Migration Act.
[61] G-documents at 99-100. Some personal identifying details omitted.
“To whom it may concern,
I am writing in relation to Trae WHIU, born… 1995, and his request seeking revocation of the decision made to cancel his visa.
There have been several incidents of family violence reported to Police where Mr WHIU is the alleged offender.
On 26 May 2021, Trae WHIU’s ex-partner, [EJ] reported a series of historic family violence assaults which occurred in 2019 and 2020.
Police were involved in some of the incidents [EJ] reported at this time however [EJ] was not forthcoming with information previously because she feared retribution from Mr WHIU.
Mr WHIU and [EJ] have one child together, [MW], born 10 March 2020. [EJ] is also the mother of [NH], born 15 April 2016.
The incidents that [EJ] has disclosed to Police are significant in nature. [EJ] alleges that she was assaulted on a number of occasions by Mr WHIU and that he threatened to kill her and her unborn baby at the time. She has also reported allegations of sexual intercourse without consent.
As a result of these incidents, [EJ] applied for and was granted a Family Violence Order (FVO) with Mr WHIU as the respondent and herself and her two children listed as protected persons on the order. She also sought refuge in a women’s shelter due to her fear of being located by Mr WHIU.
Police are aware that Mr WHIU has made attempts to contact [EJ] through a third party requesting that she provides a letter of support for his visa to be reinstated.
[EJ] has provided a statement to Police but it is unclear if there will be enough evidence to prosecute Mr WHIU.
[EJ] has expressed concerns about the safety of herself and her children if Mr WHIU was able to locate her.
The matter reported on 26 May 2021 is recorded in Police Real-Time Online Information System (PROMIS)… Previous matters reported from 2019-2020 are recorded in PROMIS…”
The letter is over the name of a Senior Constable of the AFP at its Woden (ACT) headquarters. It is dated 5 November 2021.
The Respondent drew attention to a specific reference to such documents in the Ministerial Direction at sub-paragraph 8.2(2)(b) which directs the Tribunal to have regard to circumstances where:
“There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.”
The Applicant has been afforded procedural fairness in that the AFP letter and its contents were put to him directly at the Tribunal hearing and he was given the opportunity to comment or refute any matter contained therein.
The Tribunal has serious concerns about this AFP statement. It contains no details of what exactly was reported on 26 May 2021, although this material is apparently in the listed police records. Whatever it is, it led the AFP to a conclusion that it was “unclear if there will be enough evidence” for a prosecution. This must go to matters of the strength of the evidence or the reliability or availability of witnesses to sustain a prosecution.
The Tribunal is also concerned about accepting any untested evidence based upon statements which may or may not have been made by EJ. The Applicant was explicit in stating that he never made threats of physical violence against EJ and never forced her to have sexual intercourse.
In the Tribunal hearing the Applicant was asked about the relationship between EJ and her mother, the Aboriginal Artist LN and he replied that, to the best of his knowledge, there was nothing unusual or estranged about it. The relevance of this matter is that LN was asked by the Applicant to provide him with a letter of support, and on 25 September 2021 she wrote:
“I have known Trae Whui for the past 5 years he was in a relationship with my daughter [EJ] they seemed to very much in love he made my daughter smile again, not long into their relationship they found out they were having a child, you couldn’t wipe the smile off Trae he was over the moon. Then baby [MW] came into this world and Trae was once again over the moon, he was such a good father very hands on. Unfortunately their relationship began to crumble, and Trae took the wrong path that led him to where he is now. I believe Trae will change for the good, as he is a very kind hearted, hard worker, family person who has a lot of respect for his elders. My grandson will grow up knowing who his father is as Trae will be part of his life forever. I will always treat him as my son in- law as he is the father of my grandson. I have a very strong connection with Trae. He has been a very good father, treating his son as number one priority in his life. I will continue to give Trae the love and support that he needs.”
Obviously, this is after the alleged incidents which EJ may have detailed in 2019 and 2020 and is nigh impossible to reconcile with the reported gravamen of those allegations.
The Tribunal is conscious of the warnings given in numerous cases about how to evaluate and assess the reliability or relevance of Police records where the authors of the record are not subject to cross-examination and where applicants contest or deny their accuracy.
In Healey the Tribunal stated:
72. In terms of the probative weight to be given to police records, this material routinely forms part of the evidence in mandatory visa cancellation cases. The documents are usually obtained under summons and do not assume the status of evidence until tendered and admitted. Their value is frequently tested during questioning. The Tribunal is not bound by the rules of evidence and although police records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them under the chapeau of ‘other conduct.’ Witnesses must be afforded procedural fairness, however, by having the records put to them for response. It is not accepted that procedural fairness requires the authors of police records to be cross-examined for weight to be placed on these reports.[62]
[62] Healey and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4309.
In CVN17 Kenny J pointed out that the Tribunal should treat “police service files” carefully and acknowledge the “limits of the material before it that was said to evidence such conduct, including its cogency and reliability”.[63]
[63] CVN17 v Minister for Immigration and Border Protection [2019] FCA 13 at [98]-[100].
Anastassiou J has similarly expressed the need for care about “reaching a view that criminal conduct has occurred, absent a prosecution and conviction”.[64]
[64] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394 at [74].
Anderson J in Bullmore noted that:
there is no automatic, unqualified or universal rule as to when an administrative decision maker would be required to facilitate cross-examination of, or not rely on, material which emanates from a source that has not been tested by way of cross-examination in the Tribunal.[65]
[65] Bullmore v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1106 at [69].
In their recent authoritative volume Sentencing in Australia, Bagaric et al., write:
“When a court is engaged in the exercise of determining the presence of aggravating factors it is fundamental that an offender is not punished for an act for which he or she has not been charged. This is a cardinal principle and was articulated for the purpose of Australian criminal law in the High Court decision of R v De Simoni.”[66]
[66] Mirko Bagaric, Theo Alexander and Richard Edney, Sentencing in Australia (Thomson Reuters, 9th ed, 2022) at 137.
The Tribunal hastens to accept that the Tribunal is not a court, the matter before it is not a matter of criminal law and that cancellation of a visa is not accepted to be any form of “punishment”.[67]
[67] Djalic v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCAFC 151 at [76]
Nevertheless, the fundamental principle that the Tribunal should be wary of weighing heavily against an applicant purported details of offending behaviours which have not been taken forward to the point of charges being laid, and thence the evidence tested, is one which should be borne closely in mind.
The Tribunal has made it clear that it has no tolerance for any form of domestic or family violence. In Mendoza I stated explicitly:
The Australian community, rightly, professes zero tolerance for violence against women. There is zero tolerance for domestic violence perpetrated against any woman, man or child. Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.[68]
[68] Mendoza and Minister for Immigration and Border Protection [2018] AATA 686 at [48].
In this instance, leaving aside the issues raised by the AFP statement, the one and only explicitly recorded instance of domestic or family violence is the reference in the police report of 17 December 2020 to the effect that the Applicant “pushed the victim hard in the chest yelling at her to get out of the car.”
The Respondent arrives at a final position in its SFIC (at [35])
“While the applicant has not been convicted of an offence in relation to these incidents, the Minister contends that the police reports are probative evidence and the Tribunal should accept, on the balance of probabilities, that the events occurred as reported. The Minister contends that, in accordance with Direction 90, and despite there being no conviction, the Tribunal should view the incidents of family violence involving the applicant very seriously. The Minister contends that the Tribunal should be satisfied that the applicant has been involved in family violence frequently with varying degrees of seriousness the cumulative effect of which is unacceptable.”
This is a bridge too far for the Tribunal. It accepts that there have been incidents of domestic or family violence perpetrated by the Applicant such that, in more than one State, an AVO or equivalent FVO has been issued against him. However, as explained above, the Tribunal does not regard the Applicant as an inherently aggressive or violent person and some of the reported incidents relate to non-violent (verbal) altercations. The Tribunal must necessarily weigh this criterion adversely to the Applicant, but it does not do so to the extent urged upon it by the Respondent.
In respect of this criterion the Tribunal finds that it counts against the Applicant but that it does so only to a limited extent.
Best interests of minor children
The Applicant has two sons.
RL was born on in early 2018 to his then partner TL. The Applicant and TL split up as a couple in July 2018[69] after having been together for 12 to 18 months. It was the Applicant’s evidence that he was present at his son’s birth and that he provided for and took care of him between March and July 2018 but that, since that time, he has had no further contact with him. It appears that the child is now in the care or custody (this point is unclear) of his grandparents who reside in Perth. The whereabouts of the child’s mother is not known to the Applicant or the Tribunal.
[69] Summonsed material at 11.
MW was born on in early 2020 to the Applicant’s subsequent partner EJ. In early 2016, EJ also had a daughter, born to another man.[70] The Applicant had contact with this son from the time of his birth until the time of the Applicant’s incarceration in December 2020, a period of some nine months. Since that time the Applicant has had no contact with his son.
[70] G-documents at 99.
On 20 January 2021 a Domestic Violence Order (DVO) was taken out against the Applicant to declare TL a protected person and the Applicant is prohibited from contacting her for an indefinite period of time.[71] This means that, in relation to his son RL he has no knowledge of his whereabouts in Perth and no right to re-establish any contact with the child’s mother.
[71] Summonsed material at 117. The DVO was originally made as an interim ADVO until revocation or further order made by the court, however no such order has been made.
In relation to EJ, who lives in Canberra, it appears that a Family Violence Order was taken out against the Applicant sometime in May 2021 listing both herself and her two children as protected persons.[72] There are no clearer details of this FVO before the Tribunal but it appears that the Applicant is also prevented from seeking any contact with this son (or his mother) as well.
[72] G-documents at 99.
The Applicant has two nieces who are the children of his eldest step-sister. The Applicant could not give the dates of birth of these children (JS and JY) but thought that they were around four and two years old respectively. They live with their mother on the Gold Coast and the Applicant has not seen or been in contact with them since he left living there to move to Canberra in 2020.
The Applicant has not played any significant part in any of the children’s lives and in relation to his sons there are legal and practical impediments in him being able to do so any time in the foreseeable future.
On the other hand, the Tribunal does not gainsay the repeated statements of the Applicant that he loves his sons and that he wants to have a meaningful relationship with them. He makes it clear that he believes that male children should have a significant and responsible male father-figure in their lives and he contrasts this with his own negative experience of an absent father who was in gaol until the Applicant was about eight years of age.
As Rares J noted in RGKY “[o]rdinarily, the best interests of a child are to have two loving parents who wish to care for and look after the child in the family home”[73] and as Allsop CJ exhorted decision-makers to have due regard for the fact that refusal to revoke a visa cancellation can have devastating effects on members of the family (children included),[74] the Tribunal is aware that to make a positive finding that it is not in the best interests of a minor child to be deprived of the attention and care of a parent, is a major decision.
[73] RGKY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 750 at [59].
[74] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
The Tribunal cannot however create out of thin air or in the absence of evidence a scenario whereby the Applicant has any immediate chance of being reunited with his sons. While circumstances may change, there is the additional practical problem of the sons being the children of two different women both now residing in different parts of the country. As the High Court made clear in Plaintiff M1, decisions, including decisions about weighting in relation to “representations must occur within the bounds of rationality and reasonableness”[75].
[75] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 at [25] per Kiefel CJ, Keane, Gordon and Steward JJ.
The Respondent in its SFIC (at [38]) urges the Tribunal to give only limited weight to this criterion in favour of the Applicant and it is upon that urging that the Tribunal goes beyond a neutral finding.
In respect of this criterion the Tribunal finds that it counts in favour of the Applicant but that it does so only to a limited extent.
Expectations of the Australian Community
Sub-paragraph 8.4(1) of the Direction provides that:
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 not to allow such a non- citizen to enter or remain in Australia.
Sub-paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be granted or continue to hold a visa.
That norm referred to in the Direction is to be understood as providing that:
·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 they may do so, the Australian community expects the Australian Government to not allow such a non-citizen to enter or remain in Australia; and
·non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person not continue to hold a visa.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community taken as a whole, and in this respect, decision-makers are required to proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion which is ultimately determinative.[76] That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in MD90 at paragraph 8.4. Although these principles are discussed in relation to the former MD79, those principles are relevantly analogous in principle with respect to MD90.
[76] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J.
It has further been held that the consideration is “[i]n substance … adverse to any applicant” in virtually all circumstances and was indeed, designed to be so.[77]
[77] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76] per Mortimer J.
There is nothing before the Tribunal which would allow it to do anything other than to accept that this criterion weighs against the revocation of the cancellation decision.
In according weight to this criterion, the Tribunal refers to the discussion above of the “seriousness” of the Applicant’s offending and his risk of reoffending and the conclusions it has reached in that regard which causes it to determine that this criterion counts against the Applicant to a limited degree.
“Other” considerations
Having considered what the Direction designates as “primary” considerations, the Tribunal must turn to those designated as “other”. In the chapeau which precedes the listing of the “other considerations” the Ministerial Direction (at sub-paragraph 9(1)) states: “[t]hese considerations include (but are not limited to)” those which are then listed.
As Colvin J has made clear in Suleiman that:
[t]o treat the other considerations as secondary irrespective of its character in this particular case does not conform to the language of Direction 65.[78]
[78] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [28]. Ministerial Direction 65 was a precursor of MD90 and was operative from 23 December 2014 to 28 February 2019.
His Honour made it clear that the weight of “other” considerations could, in appropriate circumstances, overbear the weight of the primary considerations to the advantage of the Applicant.[79]
[79] Ibid at [26].
Colvin J’s statement was considered and not disapproved by the Full Federal Court in HSKJ[80] and more clearly supported by Wigney J in FHHM. [81]
[80] Minister for Home Affairs v HSKJ [2018] FCAFC 217 at [31]-[35].
[81] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [21].
This principle has been affirmed in a number of Tribunal cases,[82] for example being made explicit in CFHQ where Deputy President Redfern, referencing Suleiman stated:
…factors set out in Direction 65 as ‘other considerations’ should be given appropriate weight, which may, in some cases, outweigh the primary considerations.[83]
[82] Son and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2947 at [131]-[137].
[83] CFHQ and Minister for Home Affairs (Migration) [2018] AATA 3858 at [88].
In Tewhare the Tribunal made it clear that:
While affording to primary considerations more weight than the other considerations is generally the case, I am not precluded, in the context of any particular matter, from giving equal or greater weight to any consideration. As such, in an appropriate case, other considerations may, for instance, be given more weight than primary considerations.[84]
[84] Tewhare and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2875 at [50].
In CZCV the Tribunal stated:
When read in light of the Full Court’s comments in HSKJ, in the Tribunal’s opinion, it would be correct to state that although the Tribunal cannot elevate an other consideration to become a primary consideration, it can give greater weight to an other consideration over a primary consideration.[85]
[85] CZCV and Minister for Home Affairs (Migration) [2019] AATA 91 at [164]. As noted above, Ministerial Direction 65 (effective 23 December 2014 to 28 February 2019) is an analogous predecessor of Ministerial Direction 90 and the relevant parts are expressed in the same terms.
The Full Bench of the Federal Court gave specific reconsideration of the reasoning in Suleiman in its recent determination in FHHM where it said[86]:
[34] The point made in Suleiman was that the other considerations referred to in the direction were not inherently secondary and were not secondary in all circumstances. Generally, the primary considerations were such that they were to be given greater weight. However, particular circumstances may pertain that may justify greater weight being given to one or more of the other considerations than one or more of the primary considerations. It may be noted that the reference in Suleiman to an inquiry as to whether the case is outside the circumstances that generally apply should not be read as requiring an inquiry as to whether there was something about the nature of the case of the person wanting to maintain their status as a visa holder that was unusual or uncommon or out of the ordinary. Rather, the question was whether there was some reason why the general circumstance where the primary considerations should be given greater weight than the other considerations should not apply when it came to weighing the various considerations that were relevant to the particular case.
[39] …the reasons in Suleiman are not dealing with the weight to be given as between primary considerations. They are dealing only with the relative weight as between other considerations and primary considerations.
[40] …the final sentence in [23] of Suleiman… is dealing with two possibilities. First, one or more of the other considerations being treated as a primary consideration. Second, one of the other considerations being afforded the greatest weight of all the considerations (including primary considerations).
[86] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
Non-refoulement obligations
No matters arise under this criterion for consideration by the Tribunal and the Applicant has expressed no concerns about matters of his physical safety should be returned to New Zealand.
In respect of this criterion the Tribunal finds that it counts neither for nor against the Applicant and is thus neutral in its impact.
Impact on victims
There have been no victims identified individually or who have made representations in such a way as to enliven any consideration of this criterion for the Tribunal.
In respect of this criterion the Tribunal finds that it counts neither for nor against the Applicant and is thus neutral in its impact.
Impediments if removed
It is well established that the Applicant is a fit young man, indeed he has been working on improving his fitness.[87] He has considerable skills in the construction, concreting and scaffolding industries and as such would have little or no difficulty finding employment in New Zealand. He is generally in good health and has no diagnosed physical or mental health conditions, although he is prone to suffer from anxiety and depression. He spent many years prior to the age of 18 in New Zealand and is familiar with the customs and mores of that country and, by his own admissions, identifies and participates readily with other members of the Maori community.
[87] Summonsed material at 217.
It is clear that the Applicant is prone to substance misuse. When living in Queensland he appeared heavily reliant on alcohol, but apparently gave up drinking when he moved to Canberra, but rather started using “ice”.[88] He managed to access illicit drugs (buprenorphine) while in custody.[89] However he has indicated on more than one occasion that he is prepared to seek treatment or assistance in managing this problem, and such services may in effect be more readily available to him as a citizen of New Zealand than they might be as a non-citizen in Australia.
[88] His evidence at the Tribunal was consistent with that recorded in the Sentencing Assessment Report of 20 May 2021. Summonsed material at 203.
[89] Summonsed material at 18, 20 and 25.
Mr Borenstein’s report indicates that the Applicant has many family members in New Zealand (primarily half-siblings)[90] but the Tribunal accepts the Applicant’s evidence that he has had no contact with them for many years and that they are unlikely to constitute and resource a base of support for him on his return.
[90] Ibid at 211.
The principal impediment he faces would be separation from his family in Australia and their separation from him.
In his closing remarks to the Tribunal the Applicant indicated that:
(a)he wanted to have the opportunity to change;
(b)he was “at the crossroads” in his life;
(c)he “had thought about it a lot” in terms of what he wanted to do;
(d)prison and detention had been “an eye opener”; and
(e)he would take genuine advantage of a second chance.
The Tribunal has never been averse to granting applicant’s a second chance. Indeed, as Deputy President McCabe explained, this is unsurprising given that “we are a nation built on second chances”.[91] In this instance, and with regard to the totality of matters under consideration the Tribunal believes that the Applicant would benefit from and take advantage of that second chance.
[91] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
In respect of this criterion the Tribunal finds that it counts for the Applicant to a moderate extent.
Links to the Australian community
The Applicant has spent the last seven or so years living continuously in Australia and prior to that made many visits from the age of six years onwards. He has had a steady history of gainful employment throughout most of this time and as such has been a contributor to the Australian economy.
The Applicant has numerous family members in Australia, but the Tribunal accepts his own evidence that his contact with them, especially in recent years has been limited and not always positive.
It is clear from the letters of support that he has a network of friends, again with many not part of a current set of regular contacts but that there are some, such as Mrs Kapagiannos and Mr Scott to whom he remains close and are supportive. They have both indicated a willingness to support the Applicant were he to be released into the Australian community.
Paragraph 9.4.2 of the Direction indicates that the Tribunal should take note of any business interests which might be affected by the Applicant’s removal, and in this case there are none that can be identified.
In respect of this criterion the Tribunal finds that it counts for the Applicant to a limited degree.
THE CALCULUS
Summarising the conclusions of the Tribunal:
(a)the protection of the Australian community counts against the Applicant to a limited degree;
(b)the criterion of family/domestic violence counts against the Applicant to a limited degree;
(c)the best interests of minor children count in favour of the Applicant to a limited degree;
(d)the expectations of the Australian community count against the Applicant to a limited degree;
(e)non-refoulement obligations must be weighed as being neutral as far as this Applicant is concerned;
(f)the impact on victims criterion must be weighed as being neutral as far as this Applicant is concerned;
(g)the impact of the Applicant’s removal from Australia counts in favour of the Applicant to a moderate degree; and
(h)the Applicant’s ties to Australia count in his favour to a limited degree.
This results in an exquisitely fine balance of considerations. The Ministerial Direction (at paragraph 7(2)) states that “primary considerations should generally be given greater weight than the other considerations.”
The word “generally” of course is invested with a discretionary element. It is not absolute; it admits of the possibility of a finding in a different direction.
As Wigney J put it in FHHM:
The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving an other consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so...[92]
[92] FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775 at [137].
As noted, the “other” considerations as listed do not constitute an exhaustive list, they are “not limited to” those proscribed.
The Tribunal is entitled to take into considerations the now well-referenced exhortation by Chief Justice Allsop in Hands: [93]
By way of preliminary comment, it can be said that cases under s 501 and the question of the consequences of a failure to pass the character test not infrequently raise important questions about the exercise of Executive power. Among the reasons for this importance are the human consequences removal from Australia can bring about. Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law. The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.
[93] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225. Citations omitted.
CONCLUSIONS
There is no doubt that the Applicant has committed a number of offences, but the Tribunal does not believe that his overall record is so egregious that he has forfeited any second chance to get his life together, to address his issues of misuse of alcohol and other substances and to re-establish a productive life in the Australian community. The evidence suggests to the Tribunal that the Applicant understands his current situation and is personally motivated to do so.
The Tribunal does not find that his potential release back into the community would pose an unacceptable risk to the safety of that community, nor does it believe he is likely to reoffend. Whether he can, at some stage in the future, find a positive role to play in the life of his two sons is purely a matter of speculation. The considerations weighing against the Applicant are not so weighty as to require his removal from Australia or to impose upon him the impediments associated therewith.
DECISION
The decision under review is set aside and in substitution the cancellation of the Applicant’s visa is revoked.
I certify that the preceding 164 (one hundred and sixty -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
.................................[sgd].......................................
Associate
Dated: 24 May 2022
Date(s) of hearing: 11 May 2022 Applicant: In person Solicitors for the Respondent: Mr L Dennis, MinterEllison
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