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

[2023] AATA 3956

Withey and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2023] AATA 3956 (29 November 2023)

Division:GENERAL DIVISION 

File Number:          2023/6744

Re:Connor Withey

APPLICANT

AndMinister for Immigration, Citizenship, and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member J. Pennell

Date of decision:    29 November 2023

Place:Melbourne

Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the reviewable decision.

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

Senior Member J. Pennell

CATCHWORDS

MIGRATION – Visa refusal – citizen of New Zealand – Class TY (Subclass 444) visa – Applicant does not satisfy character test – extensive criminal history – drug offences – dishonesty offences – driving offences – prohibited person possess a firearm – whether another reason to revoke mandatory cancellation – Ministerial Direction no. 99 applied – reviewable decision affirmed

LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Act 2023 (Cth)

CASES

Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294

Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120

Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567

Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133

Murphy v Minister for Home Affairs [2018] FCA 1924

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

PQSM v Minister for Home Affairs [2019] FCA 150

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673

Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285 FCR 187

Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531

Williams v Minister for Immigration and Border Protection [2014] FCA 674

SECONDARY MATERIALS

About us, Forestry Careers.NZ, Seafood New Zealand, Seafood New Zealand, < align="left">Economic Survey of New Zealand (January 2022), OECD  <
Gross Domestic Product (June Quarter 2023), StatsNZ, <
Unemployment Rate (September Quarter 2023), StatsNZ, < FOR DECISION

Senior Member J. Pennell

29 November 2023

INTRODUCTION

1.This is an application to review the decision made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs not to revoke the mandatory cancellation of the applicant’s relative (Class TY) (Subclass 444) special category visa (‘the visa’).

2.The Tribunal hearing was held in person on 16 November 2023 at the Tribunal’s Melbourne Registry. The applicant was not represented at the hearing. The respondent was represented by Mr David Brown and Ms Mary Baras-Miller from the Australian Government Solicitor.

3.Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision (‘84-Day Rule’).[1] In this case the 29 November 2023. Failure to do so results in the reviewable decision being affirmed by operation of law.

[1] S 501G(1) of the Act.

4.For the following reasons, the Tribunal has concluded that the delegate’s decision should be affirmed.

APPLICANTS BACKGROUND

5.The applicant is approximately thirty-years old and a citizen of New Zealand.[2] He arrived in Australia in late 2008 when he was around 14 years old[3] as a holder of a TY Subclass 444 Special Category visa (the visa).

[2]     Section 501G documents (GD), GD 78.

[3]     GD 95.

6.The applicant has an extensive criminal history involving violence, drug related offences, driving offences, breach of community corrections orders, committing offences while on bail and offending against government officials while in the performance of their duty (i.e. hindrance and obstruction of police officers).[4]

[4]     Australian Criminal Intelligence Commission (ACIC) report dated 6 September 2021; GD 22-25.

7.On 8 July 2021, the applicant was convicted at the Melbourne Magistrates Court of Victoria of the following charges [5](‘the July 2021 charges’):

(a)prohibited person possess a firearm;

(b)possess prohibited weapon w/o exemption/approval;

(c)cartridge of ammunition w/o a license;

(d)traffic 1,4 butanediol;

(e)drive whilst disqualified.

[5]     ACIC report dated 6 September; GD 23.

8.These charges relate to an incident which occurred on 1 February 2021 where the applicant was found drug affected in his car and in possession of approximately 3.3 kg of 1,4 butanediol, a firearm and sawn-off shot gun, a taser, and a knife.[6] The applicant was sentenced to an aggregate 16 Month imprisonment on each charge, to be served concurrently.

[6]     Transcript of proceeding Police v Withey dated 8 July 202; GD 58.

9.On 23 July 2021 a delegate of the Minister notified the applicant that his visa had been mandatorily cancelled pursuant to s501(3A) of the Act (the cancellation decision).[7] Having received a 16 month sentence of imprisonment, the delegate was satisfied that the applicant had a ‘substantial criminal record’ within the meaning of s 501(7)(c) of the Migration Act 1958 (Cth) (‘the Act’) and, as such, did not pass the character test pursuant to s 501(6)(a) of the Act.

[7] Notice of visa cancellation under s 501(3a) dated 23 July 2021; GD 97.

10.On 24 July 2024, at the invitation of the department, the applicant made representations to have the cancellation decision revoked. [8]

[8]     Request for revocation of a mandatory visa cancellation dated 24 July 2024; GD 73.

11.On 22 December 2022 the Full Court of the Federal Court  in Pearsonv Minister for Home Affairs [2022] FCAFC 203 found that an aggregate sentence of imprisonment did not constitute a single ‘term of imprisonment for 12 months or more,’ and therefore did not attract the operation of the mandatory visa cancellation power at s 501(3A) of the Act. As a result, on 27 December 2022 the applicant was released from immigration detention.

12.On 28 February 2023, while in the community, the applicant was remanded into police custody in relation to charges that included driving while suspended, fail to stop vehicle, drug possession, and commit an indictable offence whilst on bail.

13.The Migration Amendment (Aggregate Sentences) Act 2023 (MAAS) retrospectively validated the cancellation decision. As a result, on 5 May 2023, the applicant was returned to immigration detention.  

14.On 5 June 2023, the applicant was convicted in the Werribee Magistrates Court for possess GHB, commit indictable offence whilst on bail and dishonest undertaking in retention of stolen goods.[9]

[9]     Court Outcome report dated 13 October 2023; Supplementary G-Documents (GS) 187.

15.On 6 September 2023, the delegate, pursuant to s 501CA(4) of the Act made a decision not to revoke the mandatory cancellation of the applicant’s visa (‘the delegates decision’).[10] The applicant sought to review the delegate’s decision by an application dated 13 September 2023.      

[10]   Notice of a decision not to revoke visa cancellation decision dated 6 September 2023. GD 128.

PROCEDURAL ISSUES

16.In scheduling orders issued on 20 September 2023, the Applicant was given until 23 October 2023 to lodge any statement of Fact, Issues or Contentions, signed witness statements or any reports, records or other documents (‘the applicants documents’) upon which he intended to rely upon, but failed to do so. A case management hearing was held to enquire into his non-compliance on Monday 30 October 2023. The Applicant stated he was hoping to obtain legal advice in relation to his application and indicated that he would be able to lodge his materials within approximately 7 days. The respondent consented to extending time allowed for the applicant to lodge his documents. As a result, the Tribunal made orders extending the time for the applicant lodge his documents until 4:00pm Friday 3 November 2023, but he again failed to do so. During the hearing the applicant made a brief statement in support of his application to overturn the cancellation decision in addition to responding to questions by the Tribunal. He did not call any witnesses during the hearing.

RELEVANT LAW

17.Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the character test. This includes if the non-citizen has been sentenced to a term of imprisonment of 12 months or more. The Minister is required under s 501CA(3) of the Act to provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Under s 496 of the Act, the Minister may delegate these powers.

18.Section 501CA(4) allows for the revocation of a decision under subsection 501(3A) of the Act. Relevantly s 501CA(4) states:

(4)  The Minister may revoke the original decision if:

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

(b)   the Minister is satisfied:

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

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

19.Subsection 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.

20.Section 501(6) of the Act defines the ‘character test.’ Relevantly, in part s 501(6) states:

(6)  For the purposes of this section, a person does not pass the character test if:

(a)  the person has a substantial criminal record (as defined by subsection (7)); or……..

21.Paragraph 501(7) provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

22.If an applicant fails the character test, the issue to be determined under s 501CA(4)(b)(ii) of the Act is whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.[11] The Full Court in Bettencourt[12] reflected with approval upon the approach taken in Viane,[13] about how this is determined. Their Honours summarised the following principles at [27]:

(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.

[11]  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).

[12]  Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 287 FCR 294.

[13]  Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).

23.More recently, in Plaintiff M1/2021,[14] the plurality of the High Court stated 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” made by a former visa holder.

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.

(Citations omitted).

[14]    Plaintiff M1/2021 v Minister for Home Affairs [2022 HCA 17] (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).

Direction 99

24.On 3 March 2023, Direction No.99 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘Direction 99’) came into effect. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under s 501 of the Act.

25.Direction 99 sets out the principles that provide a framework within which a decision maker should approach the task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. Paragraph 5.2 of Direction 99 provides a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:

(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.

(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non­ citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

(6)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 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

26.The primary considerations in making a decision under s 501(1), 501(2) or 501CA(4) are detailed in clause 8 of Part 2 of Direction 99 as follows:

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

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

(3) the strength, nature and duration of ties to Australia;

(4) the best interests of minor children in Australia;

(5) expectations of the Australian community.

27.Clause 9 of Direction 99 details other considerations where relevant, that must be considered. These are:

a) legal consequences of the decision;

b) extent of impediments if removed;

c) impact on victims;

d) impact on Australian business interests.

28.Generally, a decision maker should give greater weight to primary considerations under clause 8 than to other considerations pursuant to clause 9. In Suleiman v Minister for Immigration and Border Protection[15] Colvin J, when considering Direction 65 (now Direction 99) stated:

‘Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations’ (including non‑refoulement obligations).  It requires both primary and other considerations to be given ‘appropriate weight’.  Direction 65 does provide that, generally, primary considerations should be given greater weight.  They are primary in the sense that absent some factor that takes the case out of that which pertains ‘generally’ they are to be given greater weight.  However, Direction 65 does not require that the other considerations be treated as secondary in all cases.  Nor does it provide that primary considerations are ‘normally’ given greater weight.  Rather, Direction 65 concerns the appropriate weight to be given to both ‘primary’ and ‘other considerations’.  In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’

[15] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].

29.While his Honour’s comments were made in relation to the earlier direction, they continue to be relevant in relation to Direction 99.

30.In this case, there is no dispute in relation to the applicant having made representations about the revocation of the cancellation of the visa. As such the requirements of s 501CA(4)(a) of the Act have been met. The issues before the Tribunal are:

(a)does the applicant pass the character test, as defined in s 501 of the Act? If not;

(b)is there another reason why the original decision should be revoked?

THE CHARACTER TEST

31.Section 501(6) of the Act provides that a person does not pass the character test if they have a substantial criminal record as defined in s 507(7) of the Act. Relevantly, s 501(7)(c) of the Act provided that a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.

32.The Tribunal was provided a copy of the applicant’s criminal history[16] which is detailed in the table contained in Annexure “A” attached to these reasons. The documentary evidence provided indicates that the applicant was sentenced to a term of imprisonment of 12 months or more. The applicant did not make any submission in relation to him passing the character test pursuant to s 501(7)(c) of the Act. However, the applicant did accept that he had been convicted of the July 2021 offences and sentenced to a term of imprisonment of 16 months.[17]

[16]  Australian Criminal Intelligence Commission (ACIC) report dated 6 September 2021, GD 22-25; Victoria Police Court Outcomes Report 13 October 2023, GS 187.

[17]    Australian Criminal Intelligence Commission (ACIC) report dated 6 September 2021, GD 22-25.

33.Therefore, based on the documentary evidence provided, the Tribunal finds that the applicant has a substantial criminal record as defined by s 501(7)(c) of the Act. As such, the Tribunal finds that the applicant does not pass the character test and accordingly finds that the requirements of s 501CA(4)(b)(i) are not met.

OTHER REASON TO REVOKE

34.Section 501CA(4)(b)(ii) of the Act requires the Tribunal to consider those factors in favour or against the cancellation decision in assessing if there is another reason why the cancellation decision should be revoked having regard to the principles and considerations detailed in Direction 99.

35.A failure to comply with a ministerial direction has been held to amount to jurisdictional error.[18] Direction 99 does not offer mere guidance or a statement of policy that may be departed from if the circumstances justify departure.[19] It imposes requirements that must be given effect in order for there to be a valid decision made under s 501CA(4). Nevertheless, the Tribunal must comply with its statutory obligations, in particular s 430 of the Act, to give written reasons that 'include its findings on material questions of fact and a reference to the evidence or other material on which those findings were based.' As such only a material failure by the Tribunal to comply with Direction 99 in making its decision would amount to jurisdictional error.[20]

[18]  PQSM v Minister for Home Affairs [2019] FCA 150 [22] per Colvin J; Williams v Minister for Immigration and Border Protection [2014] FCA 674.

[19]    PQSM v Minister for Home Affairs [2019] FCA 150 [22] per Colvin J Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [42].

[20]    PQSM v Minister for Home Affairs [2019] FCA 150, at [22] per Colvin J.

EVIDENCE

Documentary evidence

36.The following materials were taken into evidence by consent at the hearing:

(a)G-Documents numbering 137 pages.[21]

(b)Supplementary G-documents numbering 466 pages.[22]

[21]    Applicant’s G-Documents (paged 1-13) (GD).

[22]    Applicant’s Supplementary G-Documents (paged 138-604) (GS).

37.The applicant did not provide the Tribunal with any Statements of Fact, Issues or Contentions, signed witness statements or any reports, records or other document in accordance with the Tribunal’s order made on 20 September 2023 and 30 October 2023.

Applicant’s evidence 

38.The applicant was born on 31 July 1993 in Tokoroa, New Zealand. The applicant lived in Tokoroa until he was about 11 years old. The applicant’s evidence was that in Tokoroa he had become involved with the gang members and had started to experiment with the drug Crystal methamphetamine (ICE) and commit minor crimes. As a result, his family moved to Tauranga to avoid any further involvement by the applicant with the gang members. 

39.In or about 2008, the applicant and his family returned to Tokoroa to live with his grandmother for the purposes of saving money in anticipation of their move to Australia. The applicant did not have any involvement with the gang members upon his return.

40.The applicant arrived in Australia on 22 December 2008, when he was about 14 years old. The applicant’s father travelled to Australia before the rest of the family and established a residence in Tarneit, Victoria. As a result, upon his arrival in Australia, he lived with his mother, father, and brother for approximately 12 months in Tarneit after which they moved to Hoppers Crossing, Victoria. The applicant’s father worked as a linesman with the railways and his mother as a bus driver. The applicant’s parents and brother currently live in Sunbury, Victoria. 

41.The applicant has an older ‘half-sister’ in New Zealand who is married with three children aged around 21 years, 19 years and 10 years old. The applicant believes she may have another child but could not recall. In December 2012 the applicant returned to New Zealand for approximately three weeks. His evidence was that during this time he had an argument with his sister, a result of which he no longer has any contact with her. Nevertheless, his evidence was that he receives a phone call once a year from her eldest child.

42.The applicant’s evidence was that he is not directly related to any children under the age of 18 in Australia. However, his mother has two very close friends who are like family and considered by the applicant as Aunties. He contacts them and their families from time to time. His evidence was that when he was released from prison on 26 December 2022, he spoke to them approximately twice a week.   

43.After his arrival in Australia the applicant attended Hoppers Crossing Secondary School where he experienced some difficulties. As a result, he attended Kensington Community College (‘KCC’) in Kensington, Melbourne. KCC is a school that specialises in the education and development needs of students suffering from significant personal and interpersonal difficulties and who have been identified as being at risk of not completing their secondary education. The applicant’s evidence was that while he was at KCC he was using Marijuana. The applicant completed year 10 at KCC when he was 18 years old.

44.After leaving school the applicant worked for approximately two months as a bricklayer and for about six months as a concreter.  The applicant’s evidence was that he was only employed for a short period in both jobs because he did not enjoy bricklaying and because he had an altercation with his boss as a concreter. After school he remained living with his parents but generally ‘couch surfed’ at friends’ homes. He became involved with a group of friends who enjoyed making mischief in the community including graffiti, ‘partying’ and hanging out on the street until late at night. During this time the applicant began using the drug known as 'ice’.

45.The applicant’s evidence was that his mother and father became aware he was addicted to ice when he was 20 years of age. They tried to help him with his addiction by keeping him home and seeking counselling at the youth centre at Hoppers Crossing. The applicant was also encouraged to seek medical treatment for his addiction to ice. The applicant refused to accept the help and advice offered to him including seeking medical treatment for his addiction.

46.On 25 September 2014 the applicant was convicted and received an 18-month Community Correction Order (‘the CCO’) at the Sunshine Magistrates Court for various charges relating ot his drug addiction including drive in a dangerous manner, possess a controlled weapon without excuse, possessing dangerous article in a public place and possess a prohibitive weapon without exemption or approval.

47.On 7 January 2015 the applicant was convicted of breaching the CCO and received a 4-month suspended sentence.

48.On 25 November 2016 the applicant was found guilty of having contravened the suspended sentence upon which it was fully restored, and the applicant served four months in prison.

49.In or about 2014 the applicant formed a relationship with Ms RF. The applicant’s evidence was that both he and Ms RF both had a drug habit. On 24 October 2014 the applicant was engaged in an incident in which he caused significant damage to Ms RF parent’s home and car. It’s reported[23] that during the incident the applicant chased Ms RF and made a threat to kill both Ms RF and her parents. The applicant’s evidence to the Tribunal was that the incident occurred at a bad time during their relationship and because her parents tried to keep Ms RF from him. The applicant denied making the threat to kill against Ms RF and her parents as reported but conceded that he was on drugs at the time of the incident and that it would have been frightening experience for Ms RF and her parents.

[23]  Preliminary Brief Statement made by Informant Senior Constable Lubinsky; GS 165.

50.After his release from prison the applicant moved to Ouyen, Victoria to live with Ms RF. The applicant remained in Ouyen for approximately two years. During this time, he worked as a kitchen hand for a catering company servicing the mines. The applicant was let go after seven months and then worked odd jobs for a rental accommodation business owned by a friend. The applicant’s evidence was that he was drug free during his time in Ouyen.

51.The applicant’s evidence was that upon his return to Melbourne he returned to Hoppers Crossing. The applicant worked for a few months as a forklift driver before being let go. The applicant’s evidence was that the drugs took over again contributing to the end of his relationship with Ms RF.

52.In 2019 the applicant formed a relationship with Ms CM for approximately two months. The applicant’s evidence was that in or about October 2019 they were in a bad place in their relationship. The applicant and Ms CM had an argument which escalated quickly and resulted in the applicant damaging property. As a result, a Family Violence Intervention Order was made against the applicant on 16 December 2020. 

53.The applicant’s evidence was that he suffers anxiety and depression. He claimed that he suffered anxiety from a young age, particularly in relation to large crowds. The applicant was not able to identify when he first suffered depression but accepted that it was likely connected with his addiction to drugs. The applicant stated that he currently feels depressed being separated from family and from the fact that his offending and inability to stay clean from drugs has disappointed his family. The applicant claimed that he had been a member of Narcotics Anonymous Australia having attended meetings while he was in Loddon prison. However, he claimed that due to Covid-19 he had been unable to maintain his attendance.

54.The applicant believes that he will have the support of his family if the decision to cancel his visa is revoked. However, the Tribunal notes that none of the applicant’s family appeared before the Tribunal to give evidence and make submissions in support of the applicant.

55.The applicant claimed that he wanted to stay in Australia because he had been here for most of his life. He claims all he knows is here in Australia.[24] However, his evidence to the Tribunal was that he had been thinking about returning to New Zealand and confirmed that he was able to do so. The applicant noted that given the assistance provided to s 501 people upon their return to New Zealand, it presented a possibility of a fresh start. He noted that despite not having spoken to his sister in New Zealand for a long time, he did not see any reason for him not to get along with her and her family upon him returning to New Zealand. If he returned, he would be interested in a job in the forestry or fishing industries.

[24]  Request for Revocation of a Mandatory Visa Cancellation under 501(3A), GD 73-90.

ASSESSMENT OF EVIDENCE

PRIMARY CONSIDERATIONS

Protection of the Australian community from criminal or other serious conduct

(7)Clause 8.1 of Direction 99 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

(8)Under cl 8.1.1 of Direction 99, 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 197 A 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).

(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.

56.The applicant has an extensive criminal history involving violence, drug related offences, driving offences, breach of community corrections orders, offences while on bail and offending against government officials while in the performance of their duty.[25]

[25]  Australian Criminal Intelligence Commission (ACIC) report dated 6 September 2021; GD 22-25.

57.On 14 December 2012 the applicant was involved in a minor collision in which he attempted to drive away but was stopped by the victim. As a result, the applicant assaulted the victim with a tomahawk style axe. The applicant agreed that he had assaulted the victim but stated the tomahawk still had the protective cover on it. The applicant conceded that it would have been a frightening experience for the victim. The applicant was charged with reckless conduct endangering life, reckless conduct cause serious injury, intentionally cause injury, recklessly cause injury, assault with a weapon, unlawful assault, and drive in a manner dangerous. The applicant was summonsed to appear at the Werribee Magistrates Court on 9 September 2013. The accused failed to appear at court and a warrant was issued.[26]

[26] Police Summary-Remand/Bail application; GS 138.

58.On 23 September 2013 the police checked the applicant’s vehicle and found it to be unregistered and that the applicant only had a learner’s permit. The police located several items and weapons in the applicant’s car including a double-edged hunting knife, meat clever, bolt cutters, mask and rubber gloves. The applicant was charged with several offences including possessing a prohibited weapon, possess a controlled weapon X3, drive an unregistered vehicle and drive without a qualified driver present. The applicant was summonsed to appear at the Werribee Magistrates Court on 21 October 2023. The applicant failed to appear at court, and a warrant was issued.[27]  

[27] Ibid.

59.The applicant accepted that he was charged with the offences on 23 September 2023 and that he had failed to appear at Court as summonsed. The applicant’s explanation to the Tribunal was that he was ‘a kid’ at the time of the offences and was affected by drugs.

60.On 24 January 2014 the applicant was arrested by police in relation to the two warrants issued for his failure to appear at court. The applicant was bailed to appear at the Werribee Magistrates Court on 16 April 2014 but once again failed to appear.  As a result, two bench warrants were issued by the Court.[28]

[28] Ibid.

61.On 4 June 2014 the applicant was arrested in relation to the outstanding warrants.  The report by the police[29] noted that the applicant had shown a complete disregard for bail in the past and had continued to commit offences while on bail. As a result, the applicant was a risk of continuing to offend if given bail and posed a risk to the community due to him continuing to carry weapons.

[29] Ibid.

62.On 25 September 2014 the applicant was convicted in the Sunshine Magistrates Court of the following charges:[30]

[30] Australian Criminal Intelligence Commission (ACIC) report dated 6 September 2021, GD 22-25.

·Drive in a Dangerous Manner

·Fail to give name and address

·Learner Driver Drive Vehicle w/o Experienced Driver

·Possess Dangerous Article in Public Place.

·Possess Prohibited Weapon w/o exemption/approval

·Possess controlled weapon without excuse (x 2 charges)

·Recklessly causing injury

·Fail to answer bail

·Use unregistered motor vehicle.

63.The court ordered that the applicant be placed on a Community Corrections Order (CCO) for a period of 18 Months. The condition of the CCO was that he undergo assessment and treatment for drug abuse as directed and that undertakes a mental health assessment and treatment as directed. In addition, the applicant was required to perform 200 hours of unpaid work. The applicant agreed that he had been given a CCO but was not able to recall the conditions of the CCO. His evidence was that he was not able to recall if he had undertaken the mental health and drug assessment but stated he would have complied with the condition.

64.However, the applicant’s evidence was that he did not perform the hours of unpaid work. He stated that at the time he was affected by drugs (ICE and Marijuana), was lazy and not a person who would perform such work. The applicant conceded that he had an issue with anger management at the time but claims that he has worked on himself and is now in a better place. The applicant’s evidence is that he is currently prescribed Endep to help treat his mental and mood issues.

65.On 7 January 2015 the applicant was convicted at the Sunshine Magistrates Court of the following charges (‘the January 2015 charges’): [31]

·Contravening the CCO

·Criminal damage (intent to damage and destroy) (x4 charges)

·Make threat to kill

·Resist police

·Theft from motor vehicle.  

[31] Ibid.

He was fined $1,250.00, received a CCO of a period of 12 months with 200 hours community work. The applicant also received a 4-month suspended sentence for breaching his previous CCO.

66.On 25 November 2016 the applicant was convicted at the Sunshine Magistrates Court of the following charges:[32]

[32] Ibid.

·Contravention of suspended sentence

·Contravention of CCO

·Possess controlled weapon without excuse

·Possess cannabis

·Possess Methamphetamine

·Theft

·Theft from shop

·Fail to answer bail

·Use heavy vehicle w/o NR plates issued by Corp

·Use Veh-not comply reg Std-Gvm greater than 14.5 ton

·Use unregistered vehicle

·Unlicensed driving.

67.The court ordered that the applicant’s suspended sentence be fully restored. As a result, the applicant served 4 months in prison. In addition, the applicant received a CCO for a period of 12 months with a condition of 175 hours of unpaid work. The applicant was not able to explain to the Tribunal why he breached the CCO. Despite being 22 years of age at the time the applicant’s explanation was that he was only a kid at the time and that he was no longer ‘that person’.

68.On 21 February 2020 the applicant was convicted in the Melbourne Magistrates Court (sitting in the County Court) of the following charges (‘the February 2020 charges’):[33]  

[33] Ibid.

·Unlicensed driving

·Theft

·Criminal damage (intent to Damage/Destroy)

·Commit and indictable offence whilst on Bail

·Reckless conduct endanger serious injury

·Possess GHB

·Possess Drug of dependence – prescript drug

·Possess Controlled weapon without excuse

·Handle /receive/retention stolen Goods

·Fail to answer bail

69.Upon the February 2020 charges being put to the applicant he accepted that they arose out of an incident that occurred with his former partner Ms CM in or about October 2019. The applicant received a term of imprisonment of 8 months, being released from prison in November 2020. In addition to the February 2020 charges, a Family Violence Intervention Order was made against the applicant on 16 December 2020. 

70.The applicant’s evidence to the Tribunal was that he did not remember the February 2020 charges. Nevertheless, he accepted that Ms CM would have been fearful at the time of the incident in October 2019. The applicant claimed that at the time he was young. He stated that he no longer does such things because he is no longer that person.  

71.However, the ‘Preliminary Brief - Statement made by the Informant[34] indicated that at the age of 26 the applicant had an extensive criminal history which contained a ‘list of dishonesty offences including theft, criminal damage, drug possession, weapon possession, threats and assault and driving offences.’[35]  The applicant’s actions are referred as endangering the lives of the victims and the community and states that he has a ‘blatant disrespect for the law and the community.’[36]

[34]          Preliminary Brief – Statement made by Informant; GD 70.

[35]   Preliminary Brief – Statement made by Informant; GD 71.

[36]  Ibid.

72.Despite being released from prison in November 2020, on 1 February 2021 the applicant was found drug affected in his car and in possession of approximately 3.3 kg of 1,4 butanediol, a firearm and sawn-off shoot gun a taser and a knife.[37] As a result, on  8 July 2021, the applicant was convicted and sentenced to 16 months imprisonment at the Melbourne Magistrates Court  in relation to the following charges [38] (‘the July 2021 charges’):

·prohibited person possess a firearm.

·possess prohibited weapon w/o exemption/approval.

·cartridge of ammunition w/o a license,

·traffic 1,4 butanediol,

·drive whilst disqualified.

[37]  Transcript of proceeding Police v Withey dated 8 July 2021; GD 58.

[38]  ACIC report dated 6 September; GD 23.

73.During the court hearing the Magistrate noted that the amount of the drug found with the applicant was an appreciable amount, noting that it was a highly valuable illicit commodity and ‘clearly held for the purposes of trafficking.’[39]  The Magistrate stated that in the circumstances the applicant’s offending constituted a ‘high level of criminality.’[40] The Magistrate stated:

‘So, this offending occurred about two months, certainly not much more than that, after he finished the last sentence. It’s a bit disturbing because he’s had the family fully supportive of him, from what I am told, most of his life and yet he can’t realise that that support should be embraced and be the product or base for any reform. But rather he thinks he can carry out involvement in criminal offending of a serious sort which is upping the ante from the previous criminality which had resulted in imprisonment. He’s had many opportunities on corrections order, persistently breaching them.

It’s a long bow in the nature of the current offending to be considered or suggesting that the court should consider a further opportunity on corrections order If he cant do it with his family’s support he’s got, which many people don’t have, if he cant do it after coming out of gaol having served an appreciable sentence and getting back on the drugs pretty quickly well, what hope really for him? He’s just got to come to his terms with his own capacity to bite the bullet as it were and reform. Imprisonment is the only proper disposition.’

[39] The Police v Withey-Transcript of Proceedings Magistrates Court, Melbourne 8 July 2021. GD. 58.

[40] The Police v Withey-Transcript of Proceedings Magistrates Court, Melbourne 8 July 2021. GD. 59.

74.The applicant’s evidence to the Tribunal was that upon being released from prison he had remained off the drugs during this parole period. However, once his parole was over, he returned to using drugs which resulted in his offending. Nevertheless, his evidence was that he is no longer that same person as he is now off the drugs and properly medicated to deal with behavioural issues.

75.The International Health and Medical Services (IHMS) reports indicate that despite the applicant’s claims that he has been able to deal with his behavioural issues he has continued to display aggressive and abusive behaviour while he has been in immigration detention. The applicant has been verbally abusing and aggressive to nursing staff while receiving his prescribed medications[41] and requesting protein drinks.[42] When the applicant was referred to the IHMS incident reports, he was not able to recall each incident in which it is reported he displayed aggressive and abusive behaviour. He denied each incident and claimed that each report was false.

[41] IHMS Clinical records; GS 548, GS 525 & GS 487.

[42] IHMS Clinical records; GS 542.

76.The applicant claimed that in immigration detention he has not been able to access programs to assist him with his mental health and drug addiction. However, the IHMS report notes that on 3 June 2023 the applicant refused to consult with the mental health network (MHN) either via telehealth or in person. The applicant denied ever being asked if he would consult with MHN.  Finally, the applicant claimed that he was drug free.  However, the IHMS report dated 30 May 2023 states that he tested positive for amphetamines while in immigration detention.[43] The applicant accepted that he tested positive but stated he did so ‘to get on the program’.  

[43] IHMS Clinical reports GS 494.

77.The Tribunal has had regard to the nature and frequency of the applicant’s offending including the number of times he has breached judicial orders. The applicant has display flagrant disregard for the law and the judicial process by him continuing to possess unauthorised weapons and his continued breach of judicial orders. The applicant’s actions have shown a tendency toward more serious crimes which is reflected in the custodial sentences he has received.

78.As a result, the Tribunal accepts that the totality of the applicant’s offending and other misconduct is serious. Accordingly, it places significant weight on the applicant’s offending in favour of not revoking the decision to cancel the applicant’s visa.

Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

79.In considering the need to protect the Australian community from harm, the Tribunal has had 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 repeated, is so serious that any risk that it may be repeated may be unacceptable.[44]

[44] Direction 99 at 8.1.2(1).

80.Clause 8.1.2(1) of Direction 99 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. 

81.Clause 8.1.2(2) of Direction 99 states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, 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;

(ii)    and 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).

82.In measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[45]  Her Honour states that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

[45]    Tanielu v Minister for Immigration and Border Protection(2014) 225 FCR 424; [2014] FCA 673.

83.The Tribunal is required to assess the risk posed to the Australian community if the applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behavior.[46] In Murphy v Minister for Home Affairs [2018] FCA 1924 Mortimer J, (as her Honour) considered the notion of risk and its nexus to future possibility. Her Honour noted:[47]

‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’

[46]  Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63].

[47]    Murphy v Minister for Home Affairs [2018] FCA 1924, [37].

84.The applicant contends that there is a low risk of re-offending because he is no longer ‘that person’. He claims that he is no longer affected by drugs and that he is receiving treatment for his behavioural issues. The applicant claims that he suffers from depression and anxiety and that he has pain in his lower back. The applicant did not provide any medical report to support his mental and physical condition as claimed.  Nevertheless, he claims to have the support of his family and would live with his brother in Sunbury if released into the community.

85.The applicant’s evidence was that he became addicted to drugs at an early age. He claims he associated with the wrong people and suffered from anxiety and depression which led him to making the wrong choices. As a result, he claims that most of his offending occurred while he was addicted to drugs. The Tribunal accepts and finds that the applicant was addicted to drugs as claimed.

86.The Government is committed to protecting the Australian community from harm because of criminal activity by non-citizens. In this case, despite the support of his family and the opportunity of receiving medical help, has repeatedly chosen a course of conduct that has led to his abuse of drugs and repeated offending. The applicant by his actions has displayed a disregard for the law and for the safety of his victims and the community more generally.

87.Despite the applicant’s evidence that he has managed his behavioural problems, including his anger and aggressive behaviour and that he was now drug free, there was no evidence to show that this was the case. While the Tribunal accepts that the applicant is currently receiving medication for his behavioural issues, no medical evidence was provided to the Tribunal as to the applicant’s physical and mental health or his ability to control his behaviour. The IHMS reports indicates that despite him receiving medication he continues to display aggressive and antisocial behaviour while in immigration detention, including refusing to consult with the MHN.  Further, no evidence was provided by the applicant’s family in relation to the level and degree of support they may provide him upon his release into the community. The Tribunal notes that despite their support for him in the past the applicant has continued to offend.   

88.Therefore, based on the seriousness of the applicant’s offending and the escalating nature of his offending, the Tribunal does not accept that there is a low risk the applicant will re-offend if he is released into the community. Given the nature and seriousness of the applicant’s conduct, the Tribunal finds that there is a real risk the Australian community will be harmed if the applicant re-offends. The protection of the Australian community is a factor that weighs significantly against revocation of the applicant’s visa in this case.

Family violence committed by the non-citizen

89.Direction 99 makes it clear that the Australia Government and the community consider acts of family violence by non-citizens as a serious character concern. This consideration is enlivened where a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described that involve family violence. Nevertheless, Direction 99 states that ‘the Government concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.’ In assessing the seriousness of the family violence engaged by the applicant the Tribunal is mindful of:[48]

(a)the frequency of the family violence and/or any trend of increasing seriousness.

(b)the cumulative effect of any repeated acts of family violence.

(c)any rehabilitation achieved at the time of this decision.

(d)whether the applicant has reoffended.  

[48]  Direction 99 cl 8.2.

90.‘Family violence’ is defined in Direction 99 to include violence, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member) or causes the family member to be fearful. For the purposes of that definition ‘member of a person’s family’ includes a person who has, or has had, an intimate personal relationship with the applicant.

91.As referred to above, the applicant’s evidence was that he had an intimate personal relationship with Ms RF in or about 2014. On 24 October 2014 the applicant was engaged in an incident in which he caused significant damage to Ms RF parent’s home and car. The applicant’s evidence was that the incident occurred because Ms RF parents had tried to keep her from seeing him. As a result of the incident, the applicant was charged and convicted of the February 2015 charges, including criminal damage and a threat to kill.  

92.The applicant denies making any threat to kill. His evidence was that he threatened to kill the dog ‘because it kept barking’ at him.  In any event, the informant’s statement refers[49] to the applicant chasing Ms RF and making a threat to kill both Ms RF and her parents. In addition, the Sunshine Magistrates Court found the charges to be proven and the applicant was convicted of the January 2015 charges (including criminal damage and threat to kill). In such circumstances the Tribunal does not accept the applicant’s evidence that the threat to kill was in relation to a dog as claimed.

[49]  Preliminary Brief Statement made by Informant Senior Constable Lubinsky; GS 165.

93.There is no evidence of a family violence order having been made in relation to this incident. Nevertheless, based on the documents provided to the Tribunal and the applicant’s own evidence, the Tribunal is satisfied that the January 2015 charges arose due to the applicant’s relationship with Ms RF and as such involved family violence.  

94.In 2019 the applicant was involved in an incident with Ms CM resulting in a Family Violence Intervention Order being made against the applicant on 16 December 2020.   In addition, the applicant was convicted of the February 2020 charges. The ‘Preliminary Brief - Statement made by the Informant’[50] states that on 31 October 2019 the applicant drove to a park to meet Ms CM. She got into the applicant’s car upon which he asked if she had seen his friend’s mobile phone. He refused to allow her to leave until he received the phone. Ms CM became concerned that the applicant would drive off with her in the car. As a result, so she got out of the car and ran to her home where she locked the front door. The applicant followed Ms CM home in his car. He then forced the front door open causing damage to the property and snatched her mobile phone. Ms CM then went to her mother’s car that was parked in the driveway The applicant attempted to take the keys from the car upon which Ms CM’s attempted to raise the window. The applicant grabbed the window causing it to smash. Ms CM drove off and the applicant followed in his car and crashed into Ms CM’s mother’s car causing damage to the rear bumper.  The applicant accepted that the incident would have been a frightening experience for Ms CM.

[50]          Preliminary Brief – Statement made by Informant; GD 70.

95.Based on the documents provided to the Tribunal and the applicant’s own evidence the Tribunal finds that the applicant engaged in conduct constituting family violence as defined in Direction 99 in October 2014 and October 2019 as detailed above. The applicant accepted that because of both incidents he had been convicted and sentenced in relation to the January 2015 charges and the February 2020 charges which included crimes such as threat to kill and criminal damage and reckless conduct endanger serious injury.

96.Therefore, given the violent nature of the charges brought against the applicant in relation to each family violence incident, the fact that he had reoffended and the increasing risk to the victims and the community more generally, the Tribunal considers the nature of the applicant’s family violence to be serious. As a result, the Tribunal places a significant weight on this consideration against revoking the cancellation of the applicant’s visa.  

The strength, nature, and duration of ties to Australia

97.Clause 8.3 of Direction 99 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)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.

(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

(4)Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:

a.     The length of time the non-citizen has resided in the Australian community, noting that:

i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and

ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

90.The applicant arrived in Australia on 22 December 2008, when he was about 14 years old. The applicant completed his secondary education in Australia and was employed in a series of jobs as a bricklayer, concreter, hospitality worker and forklift driver from 2012 to 2019. The applicant’s evidence was that he has spent most of his life in Australia, and it is all he knows. The Tribunal notes that the applicant has been in prison or immigration detention for approximately two and half years.  Nevertheless, the Tribunal accepts that the applicant has lived in Australia since his arrival and gives some weight to the fact that he has been ordinarily a resident in Australia during his formative years.

91.The applicant has immediate family in Australia. His parents and his brother all reside in Sunbury, Victoria. The applicant’s evidence was that he is close to his family and has a good relationship with each of his parents and his brother and that he maintains regular contact with each of them. The Tribunal notes that the Magistrate made mention of the fact that his father has supported him in Court during the proceedings on 8 July 2021 and that the applicant had a stable and supportive home life. The Tribunal notes that the applicant’s parents and brother did not provide any evidence in support of the applicant in these proceedings. The applicant’s evidence was that he had not asked them to provide any statement to the Tribunal as they had better things to do.

92.The applicant conceded to the Tribunal that he did not have any other family members in Australia. However, his evidence was that in addition to his immediate family, he had other close family friends who he considered to be family. The applicant’s mother has two very close friends who the applicant considers as Aunties. He claims to be close to their families and contacts them from time to time. The Tribunal accepts that the applicant has close family ties with friends of his mother as claimed. However, the Tribunal notes that no evidence in support of the applicant was provided by any close friend of the applicant’s family.

93.Based on the applicant’s evidence in relation to his close ties to Australia, the Tribunal accepts that he has some ties to Australia based on his family relationships. However, the Tribunal notes that he was not able to provide any independent evidence of the strength and duration of such ties. As such, the Tribunal gives some weight to this consideration in favour of revocation of the mandatory cancellation of the applicant’s visa.   

Best interests of minor children in Australia

94.Clause 8.4 of Direction 99 requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.

95.The applicant’s evidence was that he has no immediate family who are under the age of 18 years. However, his evidence was that his mother’s close friends, who he considers to be Aunties, have six children under the age of 18 years, who he considers to be nieces and nephews.  The applicant’s evidence was that he speaks to them on the phone occasionally. His evidence was that he was last in contact with them when he was released from prison in November 2020.  

96.Based on the applicant’s evidence the Tribunal accepts that the applicant has been in contact with his mother’s friend’s children as claimed.  However, based on the applicant’s own evidence and given the lack of independent evidence in relation to these relationships, the Tribunal only gives some weight to this consideration in favour of the revocation of the mandatory cancellation of the applicant’s visa.  

Expectations of the Australian community  

97.Clause 8.5 (1) of Direction 99 identifies the expectations of the Australian community:

(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.

98.Clause 8.5(2) of Direction 99 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 that 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:

…

(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…;

99.The Australian community expects non-citizens to obey Australian laws while in Australia. As provided by clause 8.5(1) 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 remain in Australia. 

100.For the reasons set out earlier in this decision, the Tribunal considers that there is an unacceptable risk of the applicant re-offending. In addition, the Tribunal does not consider that the Australian community has a higher level of tolerance for the applicant’s criminal past merely because he has lived in Australia for most of his life, including during his formative years as a teenager.

101.In this case, the applicant, from the time he arrived in Australia, became involved with drugs and antisocial behaviour. The applicant has rejected the support and care of his family for the purposes of overcoming his drug addiction or improving his mental health. Rather, he has continually displayed a flagrant disregard for the law and for the safety of the community more generally by continuing to offend and to breach of court orders. The applicant offered no evidence of him attempting to rehabilitate himself save to say that he was no longer ‘that person’. In fact, the IHMS report of the applicant in immigration detention indicate that the applicant continues to display aggressive and abusive behaviour toward staff and that he has refused attempts to arrange consultations in relation to his mental health.

102.As such the expectations of the Australian community is a factor that weighs against the applicant. In all the circumstances, the Tribunal gives significant weight in favour against revocation of the cancellation of the applicant’s visa.

OTHER CONSIDERATIONS

103.In deciding whether there is “another reason” to revoke the cancellation of the applicant’s visa, the Tribunal must consider the “other considerations” listed in Direction 99. These considerations are not exhaustive.[51]

[51] SZRTN v Minister for Immigration and Border Protection[2014] FCA 303; (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.

Legal consequences of the decision

104.Clause 9.1 of Direction 99 states:

9.1 Legal consequences of decision under section 501 or 501CA

(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.

(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.

(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.

105.Direction 99 provides that in accordance with s 198 of the Act, an unlawful non-citizen is liable to be removed from Australia as soon as reasonably practicable. For the purposes of s 198 it is irrelevant whether Australia has non-refoulement obligations in respect of the unlawful non-citizen.

106.In this case if the cancellation decision is not revoked, the applicant would be removed from Australia to New Zealand in accordance with s 198. The applicant’s evidence was that he did not have any fears of returning to New Zealand. In fact, his evidence was that he had been thinking about returning to New Zealand for the purpose of making a new start.

107.The applicant otherwise did not raise any claims which may give rise to international non-refoulement obligations. Accordingly, the Tribunal places no weight on this consideration.

Extent of impediments if removed

108.Direction 99 requires that the Tribunal consider the extent of any impediments that the applicant may face if removed from Australia to New Zealand in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).

109.Clause 9.2 (1) of Direction 99 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.

110.The applicant is thirty-one years old and claims that he suffers from chronic back pain, anxiety, and depression. The applicant did not provide any medical reports in relation to either his current mental or physical condition.  Nevertheless, his evidence was that he is prescribed Endep to help with his behavioural issues.[52] The Victoria Police Court Outcomes Report suggests that there is evidence the applicant is suffering from symptoms associated with withdrawal from substance addiction and that he has a prolapsed disc in his back.[53] The IHMS records[54] refer to a provisional diagnosis of Opioid dependence disorder.

[52]    GD 89.

[53]   Victorian Police Court Outcome Report sated 13 October 2023; SGD 187.

[54]   IHMS report dated 29 August 2023; SGD 473.

111.The applicant claims that he has no contacts in New Zealand and would suffer finding employment and getting to know people. However, his evidence to the Tribunal was that he had a half-sister who continues to live in New Zealand. His evidence was that he has not spoken to her since visiting in 2012, but that he does have some contact with her eldest daughter. The applicant’s evidence to the Tribunal was that despite him not having spoken to his half-sister he would be able to establish a relationship with her and her family if he returned to New Zealand.

112.The Tribunal accepts that if he was removed from Australia to New Zealand the applicant’s medical conditions and lack of family or social connections would impede his adaptation to living in New Zealand. However, the applicant has a half-sister to help him establish a social network. In addition, there is nothing to suggest that as a citizen of New Zealand he would be denied medical treatment for his conditions.

113.While the applicant has not lived in New Zealand for approximately 15 years, he has family living in the country and he did he spend most of his formative years there. As such, it cannot be said that it will be entirely unfamiliar to him. There is no suggestion that he would suffer any cultural and language difficulties if he is returned to New Zealand.

114.Finally, it is reported that New Zealand is a developed country that has recovered quickly from the Covid-19 pandemic because of measures to protect employment and income by the implementation of expansionary macroeconomic policies.[55] While it is forecast that the GDP growth is to ease by about 1 percent, the unemployment rate is still relatively low at 3.9 percent.[56]   The applicant’s evidence was that if he returned to New Zealand he would look for work in the forestry or fishing industries. It is reported[57] that both industries are expanding with opportunities for employment.     

[55]   Economic Survey of New Zealand (January 2022), OECD < align="left">[56]   Gross Domestic Product (June Quarter 2023), StatsNZ, < ; Unemployment Rate (September Quarter 2023), StatsNZ, <

[57]   About Seafood New Zealand, Seafood New Zealand, < About us, Forestry Careers.NZ, on the applicant’s own evidence and available country information, the Tribunal gives this consideration some weight in favour of revoking the cancellation of the applicant’s visa.

Impact on victims

116.Clause 9.3(1) of Direction 99 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.

117.While it may be self-evident to say that the victims of the applicant’s crimes have suffered terribly, there was no evidence presented to the Tribunal of impact on victims within the meaning of Direction 99 to enliven this consideration, which carries neutral weight.   

Impact on Australian business interests

118.Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of Direction 99. This consideration is not enlivened and carries neutral weight.

CONCLUSION

119. The Tribunal has considered the specific circumstances in relation to the applicant. The Tribunal is required to weigh up all the relevant factors to determine whether it is satisfied that there is “another reason” to revoke the cancellation decision.

120.The primary considerations of the protection and expectations of the Australian community weigh in favour of not revoking the cancellation decision. Having considered the strength, nature and duration of the applicant’s ties to Australia, the best interests of minor children, together with the other considerations of the legal consequences of the decision and the extent of impediments if removed, the Tribunal is not satisfied that the cancellation of the applicant’s visa should be revoked.

121.The applicant’s offending was serious, it occurred over an extended period and in circumstances where he showed a complete disregard for the safety of the community and the operation of the law. In addition, the applicant has displayed violent and aggressive behaviour arising from incidents of family violence.

122.In addition, the applicant has failed to adequately address his addiction to drugs and mental health issues. While the applicant may become drug free while he is in prison or immigration detention, his behaviour, once he is free in the community, has been to revert to using drugs. He has continually rejected the support and assistance of his family in favour of the drugs, a result of which, he has repeatedly engaged in dangerous, antisocial and violent behaviour that has put his victims and the general community at the risk of harm. While the applicant claims that he has his behavioural issues under control, the IHMS reports suggest that he continues to display aggressive and antisocial behaviour and has refused treatment when offered.  

123.In such circumstances the Tribunal is of the view that the applicant is an unacceptable risk to the Australian community. As such, it is not satisfied that countervailing considerations outweigh the protection and expectations of the Australian community such that the cancellation decision should be revoked.

DECISION

124.The Tribunal is not satisfied that there is another reason to revoke the cancellation decision. The decision of the Tribunal is to affirm the decision under review.

I certify that the preceding 124 (One hundred and twenty four) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Pennell.

…………[SGD]……………………….

Associate

Dated: 29 November 2023

Date of hearing:

16 November 2023

Advocate for the Applicant:

Self-represented

Advocate for the Respondent

Solicitor for the Respondent:

Ms Baras-Miller

Mr David Brown

AGS Lawyers