XSLJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 939
•14 April 2021
XSLJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 939 (14 April 2021)
Division:GENERAL DIVISION
File Number: 2020/0413
Re:XSLJ
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:14 April 2021
Place:Brisbane
The decision under review is affirmed.
..............................[sgd].........................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2018] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SCJD and Minister for Home Affairs [2018] AATA 4020
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
CONTENTS
DECISION
CATCHWORDS
LEGISLATION
CASES
SECONDARY MATERIALS
CONTENTS
REASONS FOR DECISION
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
Primary Consideration A – Protection of the Australian Community
The Nature and Seriousness of the Applicant’s Conduct to Date
Applicant’s contentions
Respondent’s contentions
Application of factors in Paragraph 13.1.1(1) of the Direction
Failure to experience any deterrent effect
Failure to demonstrate respect for lawful authority
Predominant role of offending in the Applicant’s life
The Applicant’s offending has supplanted his role as a parent and has precluded him from working in his trade
Effect of drugs on the Australian community – including the death of his co-manufacturerThe risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s Personal Circumstances Form (“PCF”)
The Applicant’s SFIC – prior hearing
The Applicant’s SFIC – this remittal hearing
The Applicant’s written evidence
The Applicant’s oral evidence – in chief
The Applicant’s oral evidence – cross-examination
The expert evidence
Other witnesses – Mr S L
Other witness – Ms G PFindings about recidivism
Conclusion: Primary Consideration A
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Applicant’s SFIC
The Applicant’s other written evidence
The Applicant’s oral evidence at the instant hearing – in chief
The Applicant’s oral evidence at the instant hearing – cross-examination
Other witnesses – Mr S L
Other witnesses – Ms G P
Other witnesses – Ms J W
Other witnesses – Ms J H
Other witnesses – various
Application of Factors in Paragraph 13.2(4) of the DirectionChildren T and C
Child S
Nephew C
Conclusion: Primary Consideration B
PRIMARY CONSIDERATION C: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
OTHER CONSIDERATIONS
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
FINDINGS: OTHER CONSIDERATIONS
CONCLUSION
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
14 April 2021
XSLJ (the “Applicant”) is a 41 year old citizen of New Zealand.[1] Movement records indicate the Applicant initially arrived in Australia on 13 December 2003. According to the Movement Records before the Tribunal dated 7 March 2017, the Applicant’s movements in and out of Australia can be summarised as follows:[2]
[1]T1, 186.
[2]Ibid.
Arrive Depart Days Years Approximate Age On Arrival 13 December 2003 2 January 2004 20 0 1/12 24 5/12 20 January 2004 20 December 2004 335 0 11/12 24 7/12 29 December 2004 13 April 2011 2296 6 3/12 25 6/12 18 April 2011 14 April 2021 3649 10 31 9/12 Total 6300 Days 17 3/12
It appears highly likely that there was at least one other movement in and out of Australia by the Applicant between 18 April 2011 and the present, though only brief. It appears that when sentencing the Applicant in May 2018, the Downing Centre District Court permitted the Applicant to return to New Zealand briefly – to deal with an extenuating circumstance.[3] In any event, I am satisfied that on his most recent entry, the Applicant became the holder of a Class TY Subclass 444 visa (“visa”).[4]
[3]T1, 49.
[4]Note: while the movement by the Applicant in and out of Australia in 2018 is not recorded in his movement history, I will presume that the visa pursuant to which he re-entered Australia for the final time in 2018 was the same visa current at the time of his most recent previous arrival (in April 2011). That particular visa was a Class TY Subclass 444 visa.
The Applicant was 24 years old when he first arrived in Australia, and has spent 17 years and 2 months here. In that period, he has only been outside of Australia for something like 32 days.
The Applicant has a history of criminal offending in Australia and New Zealand. The Applicant’s New Zealand criminal history (in terms of sentencing episodes) runs from April 1997 to April 2002. This history involves offending in the realms of (1) offences against the authority of the police; (2) drug offences; (3) offences of violence; (4) fraud-type offending involving unlawful use of a credit card. He also has a traffic history in New Zealand. In terms of sentencing episodes, it commences in January 1997 and runs to September 2001. There are three convictions for traffic offences involving the unlawful use of a motor vehicle and a failure to comply with a request by police to stop his vehicle. The totality of offences for which the Applicant has been convicted is 20 punished across separate court dates. In terms of custodial time, the totality of the head sentences imposed upon the Applicant for his offending in New Zealand amount to approximately 7 years and 9 months.
The Applicant’s history in Australia is more significant both in terms of its timespan and number of offences. In terms of sentencing episodes, his Australian criminal history commences in August 2006 and runs to August 2018. Having regard to the relevant “Check Results Report” in the material,[5] the Applicant has committed 21 offences punished across 12 court dates.
[5]T1, pages 33–36.
His offending in Australia has involved (1) traffic/driving offences; (2) property offences; (3) drug offences; (4) offences challenging the lawful authority of the police; and (5) offences of violence. By far, the predominant and most serious range of offences he has committed in Australia relate to illicit drugs. Referring only to this aspect of his offending, there are convictions for: (1) possession; (2) supply; (3) manufacture; (4) possession of drug-related paraphernalia. In terms of custodial time, the totality of the head sentences imposed upon the Applicant for his offending in Australia amount to approximately 12 years and 9 months.
This matter comprises a remittal from a previous decision of this Tribunal made on 14 April 2020. Therefore, the process of the Applicant having his visa mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the “Minister” or the “Respondent”) occurred as a precursor to the previous hearing before this Tribunal.
Suffice it to say that the Applicant made his request for revocation of the mandatory cancellation decision by making necessary representations to that end. He was then notified of the non-revocation decision pursuant to s 501CA(4) of the Act and then lodged his application with this Tribunal which, as mentioned, conducted the first hearing in March 2020. This, in short compass, is the procedural and jurisdictional history of the matter up to the point of its first ventilation in this Tribunal. To the best of my understanding, neither party is agitating any procedural or jurisdictional argument.
The hearing before me proceeded by way of video link on 22 and 23 February 2021. The hearing received oral evidence from the Applicant and four additional witnesses. Given the first Tribunal decision-maker issued a confidentiality order under s 35 of the of the Administrative Appeals Tribunal Act 1975 (Cth), it is pertinent for reasons of clarity to provide a table of all witnesses who provided evidence with the acronyms attributed to them. A true and correct copy of that table of witnesses is attached hereto and marked Annexure A.
The Tribunal also received written evidence. That written evidence was compiled into an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked Annexure B.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(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.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6][2018] FCAFC 151.
[7]Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8]Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant makes the following concession in their Statement of Facts, Issues and Contentions (“SFIC”):
“The Applicant fails the character test, and so the issue for the Tribunal is whether or not there is “another reason” why the original cancellation decision should be revoked.”[9]
[9]A1, 11, [41].
As alluded to in the above description of the Applicant’s history of criminal offending in Australia, something in the order of 12–13 years of head custodial time have been imposed upon the Applicant. Having regard to the cumulative period of custodial terms imposed upon the Applicant, there can be no question that the Applicant does not pass the character test pursuant to s 501(6)(a) of the Act. I am consequently satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[11]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[10]On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[11]Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
“…Direction 65 [now Direction 79] 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.”
[12][2018] FCA 594 at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)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 only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to 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 Applicant’s Conduct to Date
Applicant’s contentions
In his SFIC, the Applicant describes his offending as “serious indeed” and, with particular reference to his drug-related crimes, he said “Drug-related crimes are not only serious, they are a threat to the very fabric of the Australian community”. With reference to the application of the factors in paragraph 13.1.1.(1) of the Direction, the relevant portion of the Applicant’s SFIC says the following:
“Protection of the Australian Community
50. Under this heading, the Tribunal must consider both the nature and seriousness of the conduct and the risk to the community were the Applicant to re-offend or engage in other serious conduct. The Direction guides the decision-maker concerning matters to be considered when assessing the evidence (i.e. cl 13.1.1). There is no doubt that the Applicant’s offences in question were serious; indeed, they were described as such by the sentencing judges. Drug-related crimes are not only serious, they are a threat to the very fabric of the Australian community.
52. In terms of the Direction, it is clear that the Applicant has offended frequently. His record shows at least three sets of drug-related offences in New Zealand from 1997 to 2001 and numerous drug-related offences over many years in Australia. His offences start off with small cannabis possession matters and increase in seriousness to encompass possession and use of “harder” drugs and then their manufacture and supply.
53. The Applicant’s offences took place in New Zealand, New South Wales, and the Northern Territory. Large sums of money are involved. The offences are planned and premeditated. Some of them are committed while the Applicant was on bail for other drug-related offences.
54. There are offences related to acts of violence. It is accepted these matters would generally be considered serious.
55. It has been alleged that the Applicant provided false and misleading information by failure to disclose his offences on his incoming passenger cards on more than one occasion. For the Applicant, the erroneous disclosure was due to his poor state of literacy – such that the Applicant failed to recognise this requirement needed to be met - and was dependent upon fellow passengers to help him fill out his arrival card because he was too embarrassed to admit to his literacy level and seek formal assistance.”[13]
[13]A1, 13–14.
The description of the nature and seriousness of the Applicant’s offending appeared to evolve at the hearing. With particular reference to the latter chapter of the Applicant’s offending history, the Applicant’s representative,[14] during closing submissions, said this:
“It is accepted, as it must be, that this primary consideration weighs against revocation. Plainly the applicant has a significant and substantial criminal history in both New Zealand and Australia and a number of the applicant's offences - particularly more recently - in both the Northern Territory and Sydney, NSW, are extremely serious and there is no shying away from the serious nature of the applicant's criminality and those matters obviously and plainly weigh adversely against the applicant in his prospects to get back his visa and we concede as much in our written submissions.”[15]
Respondent’s contentions
[14]Dr Jason Donnelly, Barrister-at-law, New South Wales Bar, Latham Chambers, legal representative for the Applicant.
[15]Transcript, 23 February 2021, page 14, lines 10–17.
In the SFIC filed on behalf of the Respondent, there is a more formulaic application of the relevant factors in paragraph 13.1.1(1) of the Direction and a conclusion that “Having regard to the following matters, the Applicant’s conduct should be viewed very seriously”.[16] This description of the nature of the offending had its echo in closing submissions made by the Respondent’s representative,[17] during which she said the following:
“With respect to the protection of the Australian community it’s not been disputed that the applicant has a lengthy and serious criminal history which includes frequent offences, offences of violence, for example, assault occasioning actual bodily harm and instances of evading police, one of which the Minister accepts that did not result in the criminal conviction.”[18]
Application of factors in Paragraph 13.1.1(1) of the Direction
[16]R1, 5, [26].
[17]Ms Subasha Prasad, Associate, MinterEllison, legal representative for the Respondent.
[18]Transcript, 23 February 2021, page 25, lines 39–43.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors is:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that 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, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended 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);
(i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. There is nothing before me which indicates that the Applicant has ever been convicted of a crime of a sexual nature.
In terms of crimes actually or potentially involving violence, the following convictions are recorded in his New Zealand criminal history:
Court
Result Date
Offence Date
Offence Description
Result
Otahuhu District Court
11/6/1998
9/4/1998
Common Assault (Crimes Act) Manually
Convicted and Sentenced : Reparation -$500.00 / Suspended Imprisonment – 9 Months, Suspended for 1 Years beginning 11/06/1998, Standard Release Conditions / Supervision by Community Corrections - 11/06/1998 - 1 Year / Additional Information - I 9M /SPEC CONDTS
Warkworth District Court
3/11/1998
12/4/1998
Aggravated Assault (Manually)
Convicted and sentenced: fine $400
In terms of convictions for crimes actually or potentially involving violence in Australia, his Australian criminal history reads thus:
Source
Court
Date
Offence
Result
Qld
Southport Magistrates Court
14/10/08
PPRA 790(1) Assault or Obstruct Police Officer
Conviction recorded, fined $300
NSW
Sydney District Court
12/6/09
Assault occasioning actual bodily harm in company of other(s)
Imprisonment for 6 months suspended on entering a bond with conditions including 6 months obeying NSW probation service directions, and advising the registrar of any change of address
NSW
Sydney District Court
12/6/09
Assault occasioning actual bodily harm in company of other(s)
Imprisonment for 15 months suspended on entering a bond with conditions including 15 months obeying NSW probation service directions, and advising the registrar of any change of address
With reference to the offences involving violence in New Zealand, there is nothing in the material before the Tribunal which is informative about the nature and circumstances of that offending.
With reference to the three offences potentially or actually involving violence in Australia, there is nothing in the material by way of a police record (or other record) relating to the Applicant’s conviction for “Assault or obstruct police officer” for which he was convicted on 14 October 2008. Suffice it to say that the Applicant was fined the sum of $300 which is perhaps more consistent with offending in the realm of either outrightly refusing a lawful direction or doing so with some low-level physical resistance.
The material is, however, more informative with regard to the Applicant’s respective convictions for “assault occasioning actual bodily harm in the company of others” for which he was convicted in the Sydney District Court on 12 June 2009. The material does contain a description of the circumstances of the offending.[19] This description is heavily redacted and would be difficult for the reader to follow if quoted in full in these reasons. Suffice it to say that the general circumstances of the offending involved a motor vehicle that had been delivered to a workshop for mechanical repairs in September 2007. The vehicle was then taken to a panel beating workshop for smash repairs. There appeared to be some dispute about either the location of the vehicle or a perceived delay in its return to the owner. The police summary then says:
“Around 1pm on 12 Nov 2007 [redacted] received a further phone call from [redacted] In which he threatened to cut his head off if his car wasn’t returned. . About 2.30pm on the same afternoon [redacted], the owner [name], [name] and three other unknown males attended the location a short time later and was confronted by the six men. [redacted] continually said to [redacted], “Where is my fucking car, where is my fucking car?” [Redacted] replied several times, “I’ll get your car for you, I’ll get your car for you.””[20]
[19]T1, 287–289.
[20]T1, 288.
What then seems to have transpired is that a first assault was administered upon the person who was being asked about the location of the car (“Initial Victim”):
“At this point [redacted] punched the victim in the face. All the other men present then punched the victim in the face. All the other men present then punched and kicked the victim numerous times. At this point another panel beater tried to intervene on the victim’s behalf but was threatened with the same treatment. The victim regained his feet and walked to the office of the workshop. He was bleeding from the mouth and nose.”[21]
[21]T1, 288.
It then transpired that a second person (“Second Victim”) became involved in the melee, most probably the brother of the Initial Victim. This Second Victim was assaulted, and the Initial Victim was assaulted a second time:
“A short time later [Second Victim] arrived at the location. He was armed with a ring spanner to try and protect his brother. The offenders than assaulted [Second Victim] by punching him and kicking him. [Initial Victim] was assaulted for a second time.”[22]
[22]T1, 288.
The police narrative recorded the following further details about the offending and its physical impact on the Initial Victim:
“[The Applicant], and the two unknown males began to punch into him until he fell to the ground where they continued to kick him in the head and face. At this point another panel beater tried to intervene on the victim’s behalf but was threatened with the same treatment. [The Initial Victim] regained his feet and walked to the office of the workshop. He was bleeding from the mouth, nose and face.
[…]
As a result of the assault, [Initial Victim] has serious facial injuries including fractured nose and eye socket. These require surgery and at this point a full report on injuries is unavailable. [The Second Victim] has cuts and bruising to his face.”[23]
[23]T1, 288–289.
This offending has obviously involved the administration of violence upon at least two victims. The violence is both serious and significant. Judging from the injuries sustained by the Initial Victim, it is not beyond the realms of possibility that the violence could have resulted in a fatality. Having regard to the circumstances of this extremely serious offending (that is, the conduct culminating in the Applicant’s two convictions for assault occasioning actual bodily harm), I find that sub-paragraph (a) of paragraph 13.1.1(1) of the Direction militates very strongly in favour of a finding that the totality of the Applicant’s offending must be viewed as extremely serious.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The Applicant has no convictions for such offending in either New Zealand or Australia.
The Tribunal notes with concern that the material discloses some suggestions of domestic violence between the Applicant and a former partner. It is contained in a psychological report and documents produced by the Department of Family and Community Services[24] These allegations were put to the Applicant and he flatly denied them in the following exchange:
“Ms Prasad: So one instance is recorded at page 706 and one's recorded at 713, that maybe the same incident, but there was one incident where they talked about [redacted], being present in the home when you assaulted [redacted] and that assault resulted in [redacted] being hospitalised; do you recall that incident?
Applicant: Yes, I don't want to incriminate myself but that's never been to court and I dispute those allegations and they're not true, yes.
Ms Prasad: I'll just note that at page 713 there was an affidavit put on clarifying that an assault did occur […] so you deny that that incident in April 2014 occurred?
Applicant: No, there was an incident. There were voices raised and there was arguments […].”[25]
[24]T1, 706, 713; 819.
[25]Transcript, 22 February 2021, page 31, lines 1–11.
However, the complainant in the alleged domestic violence incident was not called to give evidence. Therefore, it is difficult to fairly allocate any weight against the Applicant pursuant to this sub-paragraph (b).
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.”
There is no conviction in either New Zealand or Australia for offending against vulnerable members of the community. However, in New Zealand the Applicant has committed the following offences against police officers:
Court
Result Date
Offence Date
Offence Description
Result
Otahuhu District Court
15/4/1997
21/9/1996
2 counts of Obstruct/Hinder Police
Convicted and sentenced for each charge. Fined $50.
Otahuhu District Court
15/4/1997
21/9/1996
2 counts of Resist Police
Convicted and sentenced for each charge. Fined $50.
The material does not contain any descriptive evidence or summary about these convictions in New Zealand. It suffices to say that (1) they occurred 24–25 years ago at a time when the Applicant was approximately 17 years of age and (2) they were punished by relatively mild fines in the sum of $50. While it may be said that this offending may have involved an element of youthful indiscretion, the offending is nevertheless captured by this sub-paragraph (c), but, ultimately, is not at the serious end of this type of offending.
The position is marginally different with reference to the Applicant’s commission of these types of offences in Australia. His criminal history in this country contains the following convictions:
Source
Court
Date
Offence
Result
Qld
Southport Magistrates Court
14/10/08
PPRA 790(1) Assault or Obstruct Police Officer
Conviction recorded, fined $300
NSW
Sydney District Court
13/4/2007
Resist officer in execution of duty
No discrete sentence was imposed, but the matter was taken into account in sentencing the Applicant for “Supply a prohibited drug”.
I have checked the totality of the material and to the best of my understanding, there is no police record or other summary of the abovementioned “Assault or obstruct police officer” offence for which the Applicant was convicted on 14 October 2008. Contrary to what may be said about his similar offending in New Zealand, which he committed as a relatively young person, the same cannot be said about the age at which the Applicant committed this offence. He was 29 years of age at the time of conviction and yet had still not formed any appreciative comprehension of the important requirement to observe and respect the lawful authority governing the community back into which the Applicant now seeks re-admission. The fine imposed is not insignificant and, if nothing else, the Applicant’s unlawful conduct occupied police time and consumed their resources for something that the Applicant should have been mature enough to avoid.
The abovementioned “Resist officer in execution of duty” offence actually occurred on 25 June 2005 but the Applicant appears to have been dealt with for it almost two years later in April 2007. An abbreviated reference to the relevant police record about this offence adequately describes the circumstances of its commission:
“About 4:00pm on Saturday 25th June 2005, police were making a patrol of [redacted]. At the intersection of Dowling Street and Sydney Place, police observed the Accused, [the Applicant], sitting in a maroon coloured Holden Commodore at the intersection of Sydney Place and .Mcelhone Street, which is a well known location for the supply of prohibited drugs.. At the time the Accused was facing away from police and had a female passenger seated in the front passenger seat of the vehicle..
[…]
Police informed the Accused that he had been observed in a location which is well known for the supply of prohibited drugs and that they were going to search him. At this point the Accused was asked to put his arms against the wall and stand still.. Police located a black flat bum bag concealed down the front of the Accused's jeans. When police located the bum bag the Accused began to struggle with police and has attempted to turn around. Police pushed the Accused up against the wall and handcuffed him.. The Accused continued to struggle with police and as a result the Accused was administered a one second burst of OC spray to the facial area and placed on the ground.. Police removed the bum bag from the Accused and searched the contents. Police located a small resealable plastic bag containing a number of pink coloured tablets, which had the [redacted] logo stamped on them. Police also located a resealable plastic bag with a small amount of clear crystal substance and $760 cash. Police, searched the Accused's wallet and located a small purple coloured plastic container which was heat sealed on all sides. This container appeared to contain a small amount of powder type substance.. Police asked the female passenger to get out of the vehicle and stand on the footpath. Police asked the female how she knew the Accused and what they were doing in Sydney Place.”[26]
[Errors in original]
[26]T1, 293.
There can be no question that the Applicant’s respective offences in both New Zealand and Australia directly challenged lawful directions made by “government representatives or officials […] in the performance of their duties […]”. As such, these offences fall squarely within the ambit of sub-paragraph (c) which stipulates that such conduct is to be regarded as “serious”. This finding is, in turn, contributory towards a finding that the totality of the Applicant’s offending must be found to be “extremely serious”. I am prepared to “discount” the two offences committed in New Zealand given that he committed them as a relatively young person. But this is more than outweighed by the offence committed in New South Wales which was part of more serious offending in the realm of illicit drugs.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort[27] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[28]
[27]See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[28]See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
The custodial terms imposed for the Applicant’s offending in both Australia and New Zealand can be conveniently summarised in the following two tables. First, for custodial terms imposed in New Zealand, the following can be noted:
Court Date Offence Imprisonment (months) 19-Sep-01 Drove a Motor Vehicle In A Dangerous Manner;
Failed To Stop When Followed By Red/Blue Flashing Lights1 11-Jun-98 Common Assault(Crimes Act)Manually 9 19-Sep-01 Possess Pipe or Utensil for Cannabis;
Possess Knife In Public Place (Summ Off)0.25 7-Dec-01 USE CREDIT CARD FOR PECUNIARY ADVANT [(sic)] 2 17-Apr-02 POSSESS CLASS B DRUG METHAMPHETAMINE 3 17-Apr-02 POSSESS METHAMPHETAMINE 24 17-Apr-02 Possess For Supply Cannabis Plant 12 17-Apr-02 DEAL METHAMPHETAMINE 24 17-Apr-02 POSSESS METHAMPHETAMINE FOR SUPPLY 18[29] Total term of imprisonment 7 years, 9 months [29]Note: this sentence is, somewhat counterintuitively, recorded as “6 Months, 1 Year” in the New Zealand Criminal History.
Second, for custodial terms imposed in Australia, the following can be noted:
Court Date Offence Imprisonment (months) 13-Apr-07 Various 12 12-Jun-09 Assault occasioning ABH in company of other(s) 15 12-Jun-09 Assault occasioning ABH in company of other(s) 6 8-Nov-17 SUPPLY A COMMERCIAL QUANTITY OF METHAMPHETAMINE 72 29-Aug-18 Manufacture prohibited drug >= large commercial quantity 48 Total term of imprisonment 12 years, 9 months
To my mind, the custodial terms imposed on the Applicant make for sober reading. He is a man in his very early forties. Yet his offending has been of such seriousness that it has caused judicial sentencing officers to impose head custodial terms of something in the order of 20 years of custodial time. In other words, his offending has been so serious that the totality of custodial terms imposed on him (in terms of head sentences, not actual time served) represents almost half of his life.
For the purposes of this sub-paragraph (d), I find that the above-tabulated sentencing regimes imposed on the Applicant across the totality of his offending, very strongly militate in favour of a finding that the Applicant’s offending has been of an extremely serious nature. To my mind, this finding is only augmented by the reality that the Applicant has managed to compile such a significant number of custodial terms as a relatively young man in his early forties.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction involves an examination of the frequency of a non-citizen’s offending and whether there is any detectable trend of increasing seriousness. To my mind, it is self-evident that the task involving the allocation of any weight to this sub-paragraph (e) largely parallels the exercise compelled by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
Turning firstly to the frequency of the Applicant’s offending, I have prepared the following tables demonstrating the frequency of the Applicant’s offending in both New Zealand and Australia. These tables are expressed in terms of respective court dates and in terms of actual offence dates.
New Zealand First court date Last court date Timespan Court date count Frequency
(court dates/year)21 January 1997 17 April 2002 5 yrs, 3 mo 10 1.91 First offence Last offence Timespan Offence Count Frequency (offences/year) 20 August 1996 30 September 2001 5yrs, 1 mo 20 3.91 Australia First court date Last court date Timespan Court date count Frequency
(court dates/year)23 August 2006 29 August 2018 12yrs 12 1.00 First offence Last offence Timespan Offence Count Frequency (offences/year) 21 August 2006 2 November 2016 10yrs, 2mo 21 2.06
I should point out that in terms of the offence count for Australia, the absolutely most favourable count for the Applicant was performed. In other words, the above offence count for Australia was carefully prepared to avoid any double counting of (1) “called up” prior offences,(2) any appeal hearings results, (3) further court dates attributable to the re-sentencing of called up offences, (4) and the hearings of any further appeal(s).
In New Zealand, the Applicant found himself before lawful authority on approximately two occasions per year for the commission of almost four offences per year. In Australia, the Applicant found himself before lawful authority on an average of one occasion per year for the commission of just over two offences per year. On the sheer numbers alone, there can be no finding other than that the totality of this Applicant’s offending has been committed on a frequent basis.
The next element of this sub-paragraph (e) involves an investigation of whether there is an increasing trend in the seriousness of the offending. Referring firstly to his offending in New Zealand, while it can be said that most, if not all, of that offending was committed during the Applicant’s relative youth – that is, between the ages of 17–21 – it would not be safe to use this as a reason against a finding about the increasing trend of the seriousness of his offending in that country. As early as September 1996, the Applicant was convicted for four offences involving “resist police” and “obstruct/hinder police”. This offending graduated in seriousness to common assault in 1998 that resulted in the imposition of a suspended custodial term of nine months. There followed six convictions for offences in the realm of illicit drugs ranging from possession of a pipe or utensil for consumption of those drugs, “POSSESS METHAMPHETAMINE FOR SUPPLY”, “DEAL METHAMPHETAMINE”, together with a further three possession offences relating to methamphetamine and cannabis. It should also be noted that this drug offending committed in 2001 was punished by custodial terms. I find there is a detectable trend of increasing seriousness in the Applicant’s New Zealand criminal history.
The New Zealand position is largely analogous to what has occurred in Australia, probably to a more extreme extent. The Applicant’s offending in Australia commenced with a court date for a traffic offence in August 2006. From then onwards, the offending is instantly “serious” rising to “extremely serious”. As early as April 2007, the Applicant has respective convictions for “supply a prohibited drug” and “manufacture prohibited drug – commercial quantity”. This offending involved the imposition of a custodial term of 12 months with a non-parole period of five months. There followed the abovementioned two convictions for “assault occasioning bodily harm in company of other(s)” in mid-2009.
A crescendo in the seriousness of the offending can be readily seen in the Applicant’s respective convictions in 2017 and 2018. At the Darwin Supreme Court in November 2017, the Applicant was convicted of “Supply a commercial quantity of methamphetamine” for which a six-year head custodial term was imposed with a non-parole period of three years. In May 2018 at the New South Wales District Court, the Applicant was sentenced to a term of imprisonment of two years, five months and 28 days with a non-parole period of 362 days consequent upon a conviction for “manufacture prohibited drug >= large commercial quantity”. This sentence was appealed by the Crown and resulted in an increase to the sentencing regime with a head custodial term of four years and a non-parole period of two years.
A unique feature of the Applicant’s offending history is that the timing of his offending, particularly from 2010 onwards, is not analogous to the sentencing dates in November 2017, May 2018 and August 2018. In 2010 the Applicant was involved in a criminal enterprise involving the manufacturing of dangerous drugs. That exercise resulted in an explosion at the manufacturing facility or “lab” causing the death of one of his co-conspirators. As I understood the material, the prosecuting authorities presented an indictment which included a charge of involuntary manslaughter against the Applicant arising from the death of his co-conspirator. The court ultimately directed the jury to find the Applicant not guilty on the manslaughter charge because the Crown was unable to identify with certainty exactly what caused the explosion.[30] This entire criminal justice process took from approximately 2010 to 2017–2018. During the intervening period, the Applicant was separately convicted for the “supply a commercial quantity of methamphetamine” offence at the Darwin Supreme Court in November 2017.
[30]T1, 476–478.
For the remaining “manufacture prohibited drug – large commercial quantity” offence, the Applicant was, as outlined above, ultimately sentenced in August 2018 to a head custodial term of four years with a non-parole period of two years for the 2010 offending. To my mind, there is an undeniably increasing trend seriousness evident in the Applicant’s offending, especially from 2010 onwards.
I am of the view that an application of this sub-paragraph (e) results in an inevitable finding that both the frequency of the Applicant’s offending and its increasing seriousness strongly militate in favour of a finding that the totality of the Applicant’s offending has been at least of a very serious, more likely extremely serious, nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. Several cumulative effects can be gleaned from the Applicant’s offending history.
Failure to experience any deterrent effect
Even a cursory review of the Applicant’s offending history (and the sentences imposed for it) demonstrates the Applicant has failed to experience any measurable deterrent effect. It is very difficult to form any other view when one has regard to the historical sequence of his offending. As mentioned, he arrived in Australia in December 2003. By August 2006, he was convicted for his first offence in Australia. From the very beginning, there is no semblance of him learning any lesson from past offending. He committed offences in New Zealand and relatively soon after arriving here, commenced offending here.
There follows at least four sentencing episodes in Australia for the commission of offences as diverse as (1) property offences, (2) drug offences, (3) offences against the lawful authority of police and (4) offences of violence (assault). These sentencing episodes run from April 2007 until June 2009. Yet again, during this initial phase of his offending in Australia, the Applicant failed to be deterred from continuing to offend.
Perhaps the most significant phase of his offending in Australia that is demonstrative of a failure to experience any deterrent effect can be seen from 2010 onwards. In 2010, the Applicant was involved in an operation for the manufacture of drugs. This unlawful activity resulted in an explosion in a shed at the rear of a property that had been rented by the Applicant. There is no contest about the purpose of the unlawful activity being the manufacturing of a prohibited drug. Similarly, there is no contest that the Applicant’s 23 year old co-offender was severely injured, and died in hospital after his family decided to turn off his life support.[31]
[31]T1, 473.
The significant points for present purposes are that (1) this drug-manufacturing activity saw the Applicant charged with a range of drug offences plus a charge for manslaughter consequent upon the death of his co-offender and (2) while on bail awaiting trial for these very serious charges, the Applicant then committed some of his most serious offending involving the trafficking of unlawful drugs between New South Wales and the Northern Territory. His role in this trafficking activity was not at a low level or cursory. It is pertinent to have regard to the relevant portion of the sentencing remarks for this offending, which demonstrate (1) the scale of the unlawful activity and (2) the Applicant’s role in it. In sentencing the Applicant, His Honour Grant CJ noted the following:
“[Applicant], I proceed to sentence in this matter on the basis that you brought the 191 grams of methamphetamine into Darwin and provided it to [Buyer 1] and [Buyer 2]. You either brought it in personally, or you were instrumental in arranging for it to be brought in. [Buyer 1] and [Buyer 2] did not have the money to purchase that quantity of methamphetamine in advance. As they sold the methamphetamine, payments would have been made to a supplier.
I find on the basis of the police evidence that the value of the methamphetamine was somewhere between approximately $100,000 and $200,000, depending on the manner and quantities in which it was sold. I also note the police evidence to the effect that methamphetamine fetches a higher price in Darwin than it does in the southern states, and so derives higher profits.
Although it is not possible for me to find the precise proportion of profits from that undertaking you were to receive personally, I do find that they were substantial and that they were sufficient to warrant the risks that you were taking by reason of your involvement in that undertaking.
Having said that, I sentence you on the basis that there are no indicia of unexplained wealth or substantial enrichment which would point to substantial profit-making activities at the high level sometimes seen in these courts.
I also find that your involvement in the supply of the 191 grams of methamphetamine to [Buyer 1] and [Buyer 2] involved a degree of premeditation and planning and that your involvement was not limited to that of a courier. So much is apparent from your continuing association and communications with them in that period in the first half of 2015.
You defended the matter to trial and you were found guilty by jury as I have said. In the circumstances, I approach the sentencing process on the basis that you did not accept responsibility for your conduct in this respect and that you do not feel any particular remorse for it.”[32]
[32]T1, pages 57–58.
To my mind, a further cumulative effect evident from the Applicant’s offending and his failure to experience any deterrent effect from sentences imposed on him can be seen in the evolution of the sentencing regime imposed upon him in 2018. This sentencing regime derives from the abovementioned unlawful drug-manufacturing activity from 2010 which caused an explosion. The Applicant took the resulting two charges to trial. They comprised (1) knowingly taking part in the manufacture of a prohibited drug namely pseudoephedrine not less than the commercial quantity and (2) the manslaughter of the co-offender.
The jury was directed to acquit the Applicant of the manslaughter charge.[33] The Applicant was initially sentenced for the manufacturing in May 2018 to a custodial term of two years, five months and 28 days. In 2018, the prosecution successfully appealed that sentence on the basis that it was manifestly inadequate. The Applicant was re-sentenced in August 2018 to a head custodial term of four years with a non-parole period of two years. There can be little to cavil with the suggestion that the varied sentence imposed on the Applicant in August 2018 may very well have been less severe if his preceding criminal history in Australia had been of a less serious nature. It is clear from the sentencing remarks of Judge Maiden SC made on 21 May 2018 that the antecedent history of the Applicant’s offending history in Australia was taken into account.[34]
Failure to demonstrate respect for lawful authority
[33]Note: as I understood the material, the case was run on a “dangerous act” manslaughter provision. There was ambiguity about the cause of the explosion. The Crown said that the Court did not need to be satisfied about what the cause of explosion was, it need only decide that there was a dangerous act (drug manufacture) and that an explosion happened. The Applicant’s counsel cited High Court authority which suggested that all links in the chain between the unlawful/dangerous act needed to be proven beyond reasonable doubt.
[34]T1, 45.
To an extent analogous with the immediately preceding discussion around a failure to experience a deterrent effect is the reality that the Applicant has failed to demonstrate any measurable respect for the lawful authority governing the Australian community back into which he now seeks re-admission. First, there is little to be said in response to a finding that the Applicant’s repeated convictions deriving from repeated challenges to lawful authority are demonstrative of a failure to respect such authority. He has convictions for this type of offending in both New Zealand (April 1997) and Australia (April 2007 and October 2008).
Second, perhaps at a more fundamental level, the Applicant’s propensity to offend caused him to disrespect the privilege of bail which had been afforded to him after being charged with drug manufacturing and manslaughter consequent upon the explosion at the drug-manufacturing facility in 2010. Not only did he disrespect the privilege of bail, but he further disrespected the laws against supplying illicit drugs that saw him convicted in at the Darwin Supreme Court in November 2017.
Predominant role of offending in the Applicant’s life
I have earlier recounted number of offences committed by the Applicant, the number of court dates that dealt with that offending, and the cumulative length of head custodial terms imposed for that offending. As mentioned earlier he, is now just under 42 years of age. In New Zealand, across an offending period of about 5 years, he was convicted of approximately 4 offences per year. He arrived in Australia in December 2003. In Australia, for an offending period of approximately 10–11 years, he has been convicted of approximately 2 offences per annum. The totality of his offending has caused judicial sentencing officers to impose head custodial terms in the approximate cumulative term of 20 years. It is not incorrect to suggest that the Applicant’s difficulties with law enforcement have come to dominate his life – both in this country and across its entire 40 year lifespan.
The Applicant’s offending has supplanted his role as a parent and has precluded him from working in his trade
Further cumulative effects have resulted from the Applicant’s offending. First, his offending and the custodial consequences he has paid for it has, on any reasonable view, severely impacted on his capacity to play a “hands on” parenting role to his three children. I will expand on this point later in these reasons. Second, the extent of his difficulties with the criminal law in this country have effectively precluded him from earning his living as a qualified panel beater. In his statutory declaration made on 26 February 2020, the Applicant said:
“I am a qualified panel beater. I commenced work as a panel beater when I was 15 years of age. I completed my apprenticeship in New Zealand. When I moved to Australia, I worked as a panel beater for approximately 6 years. I worked for [business name redacted] at [suburb redacted]. I am a hard worker, and if given the chance to be a productive member of the community again, I will not waste that chance.”[35]
Effect of drugs on the Australian community – including the death of his co-manufacturer
[35]T1, 830–831, [10].
There can be no challenge to the suggestion that the Applicant will have been aware of concerted government and community-based campaigns against the significant social and economic difficulties arising from illicit drugs. An additional cumulative effect of the Applicant’s offending has been previously recognised by this Tribunal and specifically involves the damage caused to the fabric of the Australian community as a result of the trafficking, supply and consumption of illicit drugs. In SCJD and Minister for Home Affairs [2018] AATA 4020, albeit in response to a different highly dangerous drug, Senior Member Cameron of this Tribunal noted the following:
“The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.”[36]
[36]Per Senior Member Cameron, [81]–[83].
I am of the view that the learned Senior Member’s observations in relation to the effects of heroin on the community are equally applicable to methamphetamine. I am accordingly of the view that the cumulative effects of the nature and extent of the Applicant’s repeated offending I have outlined above, both in Australia and New Zealand, attract application of this subparagraph (f) in favour of a finding that the totality of his offending has been of at least a very serious, more likely extremely serious, nature.
Sub-paragraph (g) of paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. There seems to be a peculiar anomaly in the material about this specific sub-paragraph (g). The material discloses at least one instance where upon re-entry into Australia, the Applicant failed to disclose his criminal convictions in this country.
There is a ready concession appearing in an earlier SFIC filed on behalf of the Applicant:
“In completing several Incoming Passenger Cards, it is accepted that the applicant neglected to disclose any prior criminal offending. The applicant has explained that this failure was a result of his being too humiliated and ashamed of his inability to read and write to ask someone for help. He accepts that he should have asked for assistance.”[37]
[Internal citations omitted]
[37]T1, page 784.
The movement records demonstrate the Applicant has entered Australia on four occasions. On each of those occasions, the Applicant had to complete the usual “Incoming Passenger Card”. Each of those cards posed the following question “If you are not an Australian citizen, do you have any criminal conviction/s”. On each, the Applicant answered with: “No”.
During his oral evidence before me, the Applicant readily accepted the answers were incorrect and sought to attribute the incorrect answers to a combination of illiteracy and incorrect guidance provided by a fellow passenger. I have misgivings about the purely subjective nature of that explanation because it is not the subject of any independent evidence about the Applicant’s levels of literacy. I also have misgivings about his “fellow passenger getting the answer wrong” on the first occasion the Applicant as required to fill out a passenger card. Even if I did accept that contention, I would have further difficulty in accepting his contention that he continued to make the same error into at least three subsequent passenger cards. In the end, the reality is that the Applicant has re-entered Australia four times and on each of those four occasions has incorrectly answered the relevant question about his past criminal convictions.
In the circumstances, I allocate a moderate level of weight to this sub-paragraph (g) in favour of a finding that the totality of the Applicant’s unlawful conduct to date has been serious.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to find any such communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of the instant application.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. I have carefully reviewed the material and cannot locate any records relating to the Applicant’s time in immigration detention. Accordingly, there is nothing in the material suggestive of facts or circumstances pointing to the Applicant’s commission of a crime “while in immigration detention”. This sub-paragraph (i) is not relevant to determination of the instant application.
While the material contains no reference to the Applicant committing offences in immigration detention, the material nevertheless contains certain references to other conduct, which, to my mind, falls within the reference to “other conduct” appearing at the chapeau to the factors at 13.1.1(1) of the Direction. That introductory paragraph reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
First, there is reference in the records summonsed from the NSW Department of Corrective Services dated from September 2007 that indicates the Applicant failed urine drug screen tests that he was required to undertake as a condition of his release:[38]
“OFFENDER NAME: [Applicant]
Date: 17 September 2007 […]
Location: BURWOOD COMMUNITY CORRECTIONS
Text: Reported as required.
discussed urinalysis results with him. Appeared to be surprised that his results came back positive. said that he had not smoked any, however queeried the possibility of him providing a positive result if he has been exposed to the drug via friends.” [39]
[Errors in original]
[38]See eg, T1, 297.
[39]See eg, T1, 297.
Second, there is a more recent record dating from March 2016 demonstrating the Applicant’s “poor compliance” with the conditions of a bond. The relevant record in the material summonsed from the NSW Department of Corrective Services says the following:
“OFFENDER NAME: [Applicant]
Date: 23/03/2016 […]
Location: BANKSTOWN COMMUNITY CORRECTIONS
Text: [Applicant] attended appointment as directed, discussed with [Applicant] that he had been breached due to his poor compliance while at the Sutherland office and his lack of contact, explained to [Applicant] that he had obligations under the bond to attend his appointments and keep in contact with parole.”[40]
[40]T1, 312.
While I accept that neither of these two incidents resulted in any additional conviction(s) for the Applicant, it is clear that he has a demonstrated record of failing to meet the requirements of orders that have been lawfully imposed on him which require him to either do or refrain from doing a particular thing. Accordingly, I find this “other conduct” is captured by the subject chapeau and moderately favours a finding that the totality of his conduct has been of at least a very serious, more likely extremely serious nature.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (a), (c), (d), (e), (f), (g), together with the chapeau of paragraph 13.1.1(1) of the Direction are relevant. I am of the view that the Applicant’s offending conduct can be readily characterised as at least very serious, more likely extremely serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non‑citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
In the Respondent’s SFIC, there is reference to the likely nature of harm that would be occasioned on the Australian community were the Applicant to re-offend:
“Taking these in turn, the nature of the harm to the Australian community should the applicant commit similar offending is incredibly serious. The applicant's supply and manufacture of illicit addictive drugs over many years will have contributed to substantial harm to the community both in terms of the mental and physical impacts of the use of such drugs, but also by way of a significant financial cost to the community associated with emergency services and law enforcement activities for drug-related crime.”[41]
[41]R1, 7, [34].
In the Applicant’s SFIC, there is the following concession:
“It is accepted that if the Applicant were to re-offend, such criminality could cause substantial emotional, financial, and physical harm to the Australian community”[42]
[42]A1, 17, [67].
To my mind, there are two ways to understand the nature of the harm that would befall the community in the event of this Applicant re-offending. The first way is by having regard to his criminal history. There is no question that were the Applicant to again, for example, (1) find himself in possession of goods suspected of being stolen, (2) directly challenge the lawful authority represented by the police, or (3) enter upon land without lawful excuse, then such conduct would involve adverse outcomes for the Australian community.
Second, and more importantly, were the Applicant to again involve himself in the commission of very serious to extremely serious types of offending in the realm of illicit drugs, the impact on the community would be much more severe. The increased severity derives from the fact that not only the consumers/users/addicts of these illicit substances are affected. They obviously are, because they are most the most visible victims. But there are other unseen victims as well. The families and other close connections of those adversely affected by illicit drugs also suffer. They may not suffer in the same immediate physical sense that an addict suffers. However, the adverse effects of a relative’s or friend’s addiction often results in unexpected and very damaging emotional and financial consequences for those within the orbit of affected addicts. The scourge of illicit drugs has consumed more than its fair share of the community’s resources relating to police and law enforcement, the judicial system and the healthcare system.
The terms of paragraph 6.3(4) of the Direction have clear application to the instant facts. Were the Applicant’s record of criminal offending in the realms of supplying and/or manufacturing illicit drugs to be repeated, the resulting consequences and harm may very well be so serious that any risk of similar conduct in the future is unacceptable. I am of the view (and I find) that reasonably-minded members of the Australian community would regard this Applicant’s history of drug offending to be so serious that they would refuse to accept any risk of its re-occurrence.
The Applicant speaks of having overcome his predisposition to abuse illicit substances and to consequently offend to a very serious or extremely serious level. He wants to re-configure his life such as to be a responsible father-figure to his three infant children. The difficulty with that contention is twofold. First, the children were born respectively, in December 2013, November 2015, and January 2016. The presence (or imminent presence) of children in his life did not prevent the Applicant from offending and incurring convictions in February 2014,[43] April 2015 (5 convictions – not including a called-up prior offence), and December 2015 (2 traffic offences).
[43]The offence which was dealt with on this date was actually committed on 25 July 2013 (See T1, 253). The Applicant’s first child was born in December of that year. No doubt the mother of that child was pregnant at the time the Applicant was charged with this offence.
Second, and perhaps more significantly – certainly in terms of the risk of him being removed from the Australian community and thus the lives of his three infant children – the Applicant, “at some time prior to 28 May 2015”,[44] committed the extremely serious offending of supplying a commercial quantity of methamphetamine for which the Darwin Supreme Court sentenced the Applicant to a head custodial term of 6 years with a non-parole period of 3 years. In neither of these two instances did the presence of infant children in his life deter, dissuade or discourage the Applicant from offending in such an extremely serious way.
[44]T1, 56.
I find that the Applicant’s offending – especially in the realm of the supply and manufacture of illicit drugs – has been so serious that any risk of its re-commission would be unacceptable to the Australian community. Were he to re-offend in a similar way, I am of the view that there is a convincing likelihood that such future offending would result in very significant physical, psychological and/or financial harm to the Australian community including, quite conceivably, to a catastrophic level. The nature of the harm to be occasioned by individuals or the Australian community in the event of similar or identical offending would be very serious, more likely extremely serious.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s Personal Circumstances Form (“PCF”)
In his PCF, the Applicant was asked to identify factors that explained the commission of his past offences which he thought should be taken into account in the determination of whether his visa status should be restored to him. His response can be summarised thus:
“Yes. There are many factors which I believe have contributed to my offending behaviour such as chronic exposure to chronic Domestic violence causing severe childhood trauma. My Mother’s partners were extremely violent to my siblings and I. My sister and I were often beaten and tortured at the hands of my Mothers many partners and [redacted]. My Mother had many partners after separating from the man I believe was my biological father and we were often exposed to their sexual and violent acts. I believe this trauma and abuse led me to use illicit substances however I now realise this did not help. I am sober and absent from illicit substances and have been for some time – this can be supported by urinalysis results. I also believe my childhood trauma and abuse affected me mentally and although I have never had a formal diagnosis I believe poor mental health is a contributing factor + something I am willing to address”[45]
[45]T1, 124.
Also in his PCF, the Applicant spoke of why there is a low likelihood of him offending:
“There is absolutely no chance of me re-offending. I am going to gain employment immediately after release, I have gained extra qualifications while incarcerated and I want to be a good father and partner and set a good example for my family so they can be proud of me.”[46]
[46]Ibid.
There can be little or no argument about the traumatic nature of the Applicant’s early childhood. This element was duly recognised and reported on by each of the three clinicians who have had an involvement in this case. It also seems common ground that the Applicant has resorted to the abuse of illicit substances as a means of numbing the pain of his traumatic childhood. This has seen him commence an involvement with illicit drugs from as early as his teenage years when he started smoking marijuana which then saw him transition to a very destructive dependency on methylamphetamine when he was 19 years of age.
Any evidence about the Applicant now representing an “absolutely no chance” of re-offending must be received with considerable caution. This is self-reported evidence from the Applicant. While the PCF speaks of him “going to gain employment immediately after release”, there is little certainty about the nature of that employment. During his oral evidence, the Applicant spoke of variously taking up employment in traffic controlling-type work with his brother-in-law. There was also reference to him returning to work in his panel beating trade. Then there was reference to the possibility of him doing some kind of online course that would, in turn, give him sufficient qualifications to commence work as a personal trainer. He also spoke of taking employment in the electrical services industry.[47] None of these alternatives could be said to be concrete options that he will definitely pursue upon a return to the community. These options are largely speculative and aspirational.
The Applicant’s SFIC – prior hearing
[47]A2, 5.
The Applicant’s SFIC filed in advance of his previous hearing is dated 24 February 2020. This document was written with the benefit of respective reports from the consultant psychiatrist, Dr Olav Nielssen and the Applicant’s social worker Dr Juliet Ardren. In this first SFIC, the Applicant spoke of a “non-existent” risk of him re-offending. In the alternative, the Applicant suggested the Tribunal should find the Applicant is at a “low” risk of re-offending.
“35. The applicant contends that the likelihood of him engaging in further criminal conduct is non-existent. The applicant has expressed an extremely strong desire to remain drug and offending free. On numerous occasions the applicant has said to Ms. Ardren, “I will not give up, no matter what”, “I will not relapse, no matter what”, and “I have learnt my lessons and want a normal healthy life for my family and myself”
36. Should the Tribunal reject this contention, the applicant’s risk of re-offending could be characterized as low.
(a) The applicant’s last criminal offending was in early 2016. It is contended that this was minor offending for which he was convicted, with no other penalty. The last serious criminal offending was in May 2015;
(b) The applicant has shown insight into his offending and his drug use. The applicant has taken steps to address his drug use, and has been substance free for approximately 3 ½ years. This is despite the fact that drugs are readily available both in custody and immigration detention. The applicant has completed a number of courses with Ms. Ardren, and has a plan for ongoing counseling and urinalysis with Ms. Ardren should he be released into the community. Even before his engagement with Ms. Ardren, the applicant was taking steps to address his drug use, and participated in a voluntary Alcohol and other Drug Program whilst in custody in the NT;
(c) The sentence of imprisonment imposed on the applicant in the NT was the first time he had been sentenced to a term of imprisonment since his children were born. This has had a significant effect upon the applicant, in that he has see what his children have had to go through without him at home, and he realizes what he is missing out on as a father. The applicant has a determination to be a good father to his children, and to be the father that he never had.”[48]
[Errors in original; internal citations omitted]
[48]T1, 784.
In 2003, this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[192]
[192]Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36] (per DP Block).
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[193]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[193]ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
This more circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection (“YNQY”):[194]
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[My underlining]
[194][2017] FCA 1466 at [76]–[77].
The learned Justice Mortimer also thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[My underlining]
In Afu v Minister for Home Affairs (“Afu”),[195] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[195][2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[196] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[197] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [198]
[My underlining]
[196][2019] FCA 500.
[197]Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[198]FYBR, paragraph [42] (Perry J).
The single judge decision in FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld the single judge decision in FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian community.[199]
[199]See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. Rather, it is an assessment of community values made on behalf of that community.[200]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[201]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks the “expectations of the Australian community” are, and the Tribunal should have due regard of those statements, if made;[202]
(d)in assessing the weight attributable to this Primary Consideration C, decision‑makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker.[203]
[200]Afu at paragraph [85].
[201]FYBR at paragraph [42].
[202]FYBR, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[203]Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant’s PCF contains a shortly-stated employment history in Australia. It tells us that from 2003–2008 he worked as a panel beater at a motor vehicle smash repair shop in Sydney.[204] This is corroborated by a statement of the principal of that former business (which has since ceased to trade) namely, Mr P C. Mr P C confirmed that the Applicant was employed by that business from 10 February 2004 to 1 July 2005 and from 16 December 2005 to 29 December 2006. Mr P C was of the view that the Applicant performed his duties as an employed panel beater “in a competent manner”.[205]
[204]T1, 125.
[205]A13.
As mentioned earlier, the Applicant has given both written and oral evidence of an intention to involve himself in other areas of employment that can be broadly stated as (1) electrical services; (2) obtaining qualifications to become a personal trainer; and (3) returning to the panelbeating trade. As against this, the evidence is that during his time in Australia, he has spent a total of something like seven years in criminal custody and/or immigration detention and that he has not engaged in remunerative employment since 2010.
The Applicant’s PCF refers to certain positive contributions he has made to the Australian community thus: “I am a hard worker and qualified panel beater who has worked in Australia for 6+ years and paid Australian taxes.”[206] The PCF is silent about his participation in any volunteer activities and in any community and cultural activities. While not performed in the Australian community, it is worth noting that as per the Applicant’s own evidence, corroborated by that of Mr C S, he has provided self-improvement assistance to fellow detainees in the realms of mentoring, fitness and advocacy of their rights.
[206]T1, 125.
It would not be safe to find that the Applicant has solid history of remunerative employment history in Australia. It would appear that when he turns his mind to some kind of lawful activity, be it panel beating or assisting others, he does it well. This observation must be tempered against the dominant role that his involvement with illicit drugs and consequent very serious to extremely serious offending has played in his life in the Australian community.
The Applicant’s professed determination to either immediately return to remunerative employment or to obtain qualifications to do so in a new area in which he has not worked before must be viewed in the context of his history of criminal offending. It cannot be denied that while he has worked in remunerative employment in the past, it has not acted as a deterrent from him criminally offending to a very serious and often extremely serious level. I do not accept there to be any correlation between this Applicant engaging in actual or potential remunerative employment and a reduced risk of recidivism.
This Applicant’s history of offending across some 21 years in both Australia and New Zealand with, particular reference to the offences for which he was punished at the Darwin Supreme Court in November 2017 and the Downing Centre District Court in August 2018 resulting in the imposition of significant head custodial terms has, without question, breached the expectations of the Australian community. Viewed in its totality, his offending has been extremely serious and has (1) represented a direct challenge to the lawful authority represented by the laws governing Australia and (2) consumed a disproportionate level of this country’s law enforcement, healthcare, and judicial resources in dealing with the consequences of his offending.
In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and or findings:
(a)the Applicant has made a modest level of contributions to the Australian community via his limited employment history and whatever assistance he may have rendered to fellow detainees;[207]
(b)putting aside the time he has spent in criminal and other custody in Australia, it can be fairly found that the Applicant has spent some 10–15 years in the Australian community;[208]
(c)the removal of the Applicant will have a negative impact on the four relevant children in Australia;[209]
(d)the extremely serious nature of the Applicant’s offending to date;[210]
(e)my finding that his risk of re-committing similar or identical offences (particularly those dealt with in November 2017 and August 2018) upon any return to the Australian community is at best low-moderate, and more likely, no different to what it was at the time of his most recent removal from the Australian community;[211]
(f)My assessment that, were the Applicant’s offending to be repeated, particularly in the realm of supply or manufacture of illicit drugs, the nature of harm to members of the Australian community could involve significant physical, psychological and/or financial harm including, quite conceivably, to a catastrophic level.
[207]Direction, paragraph 6.3(7).
[208]Direction, paragraph 6.3(5).
[209]Ibid, paragraph 6.3(7).
[210]Ibid, paragraph 6.3(3).
[211]Ibid, paragraph 6.3(4).
Conclusion: Primary Consideration C
I am of the view that the immediately preceding factors (a)–(f) inclusive, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e) to the extent any of them may be relevant to the instant facts.
(a) International non-refoulement obligations
As best as I understood the evidence, no claim is made by or on behalf of the Applicant that his removal to New Zealand would engage any of Australia’s non-refoulement obligations that could possibly be owed to him. This was confirmed during the course of submissions by the Applicant’s representative:
“Senior Member: Okay. Well, in the evidence I recall some kind of vague reference to a fear of going back to New Zealand or something like that. That doesn't rise to the point of engaging on refoulement obligations or anything like that, does it? Because I distinctly recall the words, "fear of going back" or "fear of some kind of harm or damage" or something. Are we in the territory of consideration (a) or not?
Dr Donnelly: No. No, Senior Member, we are not, no.”[212]
[212]Transcript, 23 February 2021, page 20, lines 36–45.
This Other Consideration (a) is therefore not relevant to determination of the instant application.
(b) Strength, nature and duration of ties
In its SFIC, the Respondent contends that little or limited weight in favour of revocation should be allocated to this Other Consideration (b):
“74. Having regard to all of the issues above, the Minister contends that this consideration should be given little weight.
75. Furthermore, any weight given to this consideration does not outweigh the primary considerations weighing in favour of non-revocation, particularly the protection of the Australian community and expectations of the Australian community, and should accordingly be given limited weight in favour of revocation.”[213]
[213]R1, 14.
The Applicant first came to Australia in December 2003 aged 24 years. He commenced offending in Australia in August 2006, under three years later. Having regard to 14.2(1)(a)(i) of the Direction, it is safe to find the Applicant did begin offending “soon after arriving in Australia”. Until removed from the Australian community in August 2016, he had spent something like 10–15 years in that community. He offended less than three years after his arrival. Accordingly, no weight can be allocated in favour the Applicant on the basis of paragraph 14.2(1)(a)(i).
Some measure of weight may be allocable in favour of the Applicant via an application of paragraph 14.2(1)(a)(ii). This is on the basis that he has spent at least some time in Australia contributing positively to the Australian community. I have found that he has a modest history of remunerative employment in this country. I have also found that he has made modest contributions to the Australian community via his positive activities in immigration detention. As against that I have also found that he has spent something like seven years in custody/detention and that he has not engaged in remunerative employment since 2010. Applying the terms of paragraph 14.2(1)(a)(ii) of the Direction as favourably towards the Applicant as I can, I will find that he has made some measure of cumulative positive contributions to the Australian community. That said, only a slight measure of weight is allocable to him pursuant to this sub-paragraph 14.2(1)(a)(ii).
More compelling weight can be found upon an application of paragraph 14.2(1)(b) of the Direction. It is concerned with the strength, duration and nature of any social or family links with Australian citizens or people who can otherwise remain here indefinitely.
In his PCF, the Applicant identifies the following “living parents, step-parents, brothers, sisters and adult children”:
·his sister, born June 1980;
·his brother, born November 1974.[214]
[214]T1, 123.
With reference to a “list of other close family members including cousins, grandparents, uncles/aunts”, the Applicant identified the following people in his PCF:
·his abovementioned adult nephew, Mr B T, born in October 1999;
·his abovementioned minor nephew, Nephew C, born in August 2010.[215]
[215]Ibid.
In his PCF the Applicant was asked to “describe the impact the cancellation of [his] visa would have or has had, on [his] family”:
“While my family is small, we are very close. For me to be deported my family would be devastated. I was the first to move to Australia and my siblings followed me over so we could be together. My brother and sister are my main supports (besides my Partner) while I am in custody, our relationship is important to me and we maintain regular contact.”[216]
[216]Ibid.
During his evidence in cross-examination, the Applicant was asked to summarise his relationships with the Australian community. He responded as follows:
“Ms Prasad: All right. I just wanted to clarify: in relation to your relationship with people in the community you have not had any contact with your brother, [redacted], but you have your sister, [redacted], and her two children?
Applicant: Yes.
Ms Prasad: Now, [Mr K]; that was [your sister’s] former partner?
Applicant: Well, they were together at the last tribunal but unfortunately they're not together anymore.
Ms Prasad: And then there's your three children?
Applicant: Yes.
Ms Prasad: And of course you still have a friendship with [Partner T] and (indistinct words), [Partner R]?
Applicant: Yes.
Ms Prasad: So they're the extent to your ties to the Australian community?
Applicant: No, I'm really good friends with [Ms G P]. I'm good friends with [redacted], [redacted], and my kids and [Partner T] and [Partner R] and even though I haven't spoken to my brother in years he's still blood and, yes, it's a relationship that I would be able to fix because he's my brother and, yes, I really want the chance to be able to sort that relationship out as well.[217]
[217]Transcript, 22 February 2021, page 20, lines 31–47; page 21, lines 1–2.
It is pertinent to briefly review the relevant statements in the evidence indicative of the level of the Applicant’s strength, nature and duration of ties in this country:
·the statement of Mr B T indicates he would “be devastated emotionally if the Applicant is removed to New Zealand”;[218]
[218]A5.
·the statutory declaration of Mr B T indicates that Mr B T has “little to no family members left in Australia being my mum and [the Applicant]” and describes the Applicant as supportive and loving. Mr B T also, at least in part, attributes his personal success in finding a job to the Applicant;[219]
[219]T1, 138.
·Ms G P said the following:
“Personally I will be distraught and emotionally inconsolable if [the Applicant] is deported to New Zealand. I value his friendship and have grown to love him and his family as part of my own. Our similar spiritual, moral and ethical values lead to hours of discussion, and during times of emotional distress for me [the Applicant] consistently provides a kind ear without judgement. He has been an amazing support for not only me, but more importantly his children.”[220]
[220]A8, 8–9.
·Ms J W, the aunt of Partner T, said “I strongly believe regular contact and therefore the continued building of the relationship between [the Applicant] and [Child T] and [Child C] is very important for the children’s sense of family and routine.”[221]
·Ms J G said these things about why it is important for the Applicant to remain in Australia: “I have no doubt that if given the chance to remain in Australia, he will not disappoint, he speaks of working and parenting full-time […] I know that […] he is ready to start his new life with is children/family.”[222]
·The Applicant’s friend who he has known since the early stages of high school, the abovementioned Ms K H, said:
“[The Applicant] and I reconnected over a year ago and talk all the time. Our friendship and charts are meaningful. Now I know the choices he has made and the lifestyle he lived were poor to say the least. And he has served time for those. But the man I have been talking to is not that person anymore.”[223]
·The father of Partner R, Mr S L, noted the following:
“I now know [the Applicant] as a person. I have taken the time to get to know him. He has earned my absolute respect for honestly holding himself to account. He has earned my ongoing friendship for rethinking and changing his attitudes and behaviour. For these reasons, he has earned my ongoing and unwavering support in any capacity that he may require.”[224]
[221]A8.
[222]A9.
[223]A11.
[224]A14.
With specific reference to this paragraph 14.2(1)(b), I find that the strength, nature and duration of the Applicant’s relationships with members of the Australian community falling within the ambit of that sub-paragraph are strong and palpable. I find that this paragraph 14.2(1)(b) weighs strongly, but not determinatively, in favour of revocation of the decision to mandatorily cancel the Applicant’s visa.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
There is no victim impact statement (or equivalent) before me that the Applicant’s continued presence in Australia would have an adverse impact on any victims of his of his offending. It suffices to say that the nature, extent and seriousness of his offending in the realm of the production and supply of illegal drugs has doubtless claimed its fair share of victims.
Be that as it may, in the absence of any victim impact statement (or equivalent) about any impact on a specific victim(s), it would, in my view, be unsafe to allocate any weight to this Other Consideration (d) in circumstances where there is no information before the Tribunal about how non-revocation of the mandatory cancellation would impact any such victim(s).
Accordingly, I am of therefore of the view that this Other Consideration (d) is of neutral weight for the purposes of determining the instant application.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and therefore required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Respondent contends:
“as the applicant will face few impediments if he were returned to New Zealand, this factor should be given limited weight in favour of revocation and does not outweigh the primary considerations.”[225]
[225]R1, 15, [82].
Contrastingly, the Applicant contends “[t]his consideration weighs strongly in favour of the revocation of the mandatory cancellation decision.”[226]
[226]A1, 24, [101].
In his PCF, the Applicant responded by ticking the “No” box in response to the question “Do you have any diagnosed medical or psychological conditions?”. The Applicant can thus be safely found to be a relatively young man in a good state of health.[227] Further in his PCF, the Applicant ticked the “Yes” box in response to the question “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” He provided the following details:
“Returning to New Zealand puts my life at great risk from past acquantainces and my ex-step father. My return to New Zealand would also put my sister [redacted] at risk and [Mr R B]’s life at great risk. Threats of Murder have been made from [my sister’s] ex-partner with whom she was in a domestically violent relationship (corroborated by an AVO in NZ)”[228]
[227]Direction, 14.5(1)(a).
[228]T1, 126.
Two things can be said about this stated “concern”. First, as mentioned earlier, it does not rise to the level of a fear of harm necessary to engage any non-refoulement obligations that Australia may owe to the Applicant. Second, to the extent the Applicant apprehends a challenge to his personal safety upon return to New Zealand, he will, just like every other New Zealand citizen, have the right to seek protection from the police and law enforcement mechanisms of that country.
In his most recent statement before the Tribunal (dated 3 January 2021), the Applicant identified the following impediments if removed to New Zealand:
·“First, I have no family support in New Zealand. My siblings reside in Australia. Equally, all my associations and connections are with people in Australia.”
·“Secondly, I already have a position of employment ready to go to in the Australian community”
·“Thirdly, I have the most horrific and disadvantaged upbringing in New Zealand. Being forcefully returned to a place where I have so many bad memories is also likely to be bad for my mental health and well-being”
·“Fourthly, although I may indeed be entitled to some social welfare in New Zealand, that does not mean I will not suffer substantial hardships in that country.”
·“Fifthly, there is also the remote prospect that I may be the subject of harm at the hands of my sister’s former partner […]”[229]
[229]A2, 7–8.
The following can be said about the abovementioned five contentions. First, while it can be fairly accepted that the Applicant appears to have only the one elderly relative (his “nan”) who is aged 96 and in a nursing home, he nevertheless agreed that he had schoolfriends in New Zealand although he had not spoken to them “for years”.[230] However, it should also be noted that during his oral evidence, the Applicant said that but for the presence of his children in Australia, he would have no hesitation in returning to New Zealand. Therefore, the absence of familiar faces to him in New Zealand does not necessarily appear to be an impediment to the extent he makes it out to be.
[230]Transcript, 21 February 2021, page 10, lines 1–16.
Second, for reasons I have mentioned, the Applicant’s employment prospects in Australia are less than certain and are more aspirational than anything else. As I recall the evidence, the idea of working in the electrical services industry may no longer be current. This has been replaced by an apparent prospect of him working as a traffic controller, becoming a personal trainer (subject to completion of a course) and a possible return to panel-beating. It cannot be safely said that the Applicant has “employment ready to go in the Australian community”.
Third, to the extent that a return to New Zealand may cause him any mental distress and/or anguish in terms of the difficult childhood he experienced there, he will have access to the same (or nearly the same) level of community mental health support that is currently available to him in Australia. Put simply, he will be entitled to mental health support to the same standard as that available to other New Zealand citizens. Fourth, his contention about suffering substantial hardships despite being entitled to receipt of social welfare in New Zealand is of no significant weight. The hardships that will confront him were he to find himself on social welfare in New Zealand will be no different to those experienced by other citizens of that country.
Fifth, I have earlier dealt with the Applicant’s fear of harm at the hands of his sister’s former de facto partner. The Applicant will have the right to access police and law enforcement protection in New Zealand against any such perceived threat.
I have earlier sought to address the evidence relating to the Applicant’s psychological symptomatology. To the extent that he may require such further treatment and/or consultations in New Zealand, it is safe to find that these facilities and services will be available to him in that country to the same extent that they are available to other citizens of that country.[231] Similarly, he will be able to access any additional medical care, treatment and governmental support in New Zealand at or about the same (or very nearly the same) level as available to him in Australia. Put simply, he will have access to those medical and other social and economic supports in New Zealand in the context of what is generally available to other citizens of that country.[232]
[231]Direction, paragraph 14.5(1)(a).
[232]Direction, paragraph 14.5(1)(c).
The Applicant spent the first 24 years of his life in New Zealand and, as the movement records have indicated, he has returned to New Zealand infrequently for short visits. He is not unfamiliar with that country and I do not consider he will confront any significant or substantial language or other cultural barriers to re-establishment in New Zealand.[233]
[233]Paragraph 14.5(1)(b) of the Direction.
Having regard to the totality of the evidence, I am of the view that this Other Consideration (e) is of moderate weight in favour of revocation.
FINDINGS: OTHER CONSIDERATIONS
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which favour non‑revocation very heavily and heavily, respectively. The allocation of weight referable to the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: of strong, but not determinative weight;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: of moderate weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (e) combined, even when conjoined with the moderate weight I have attributed to Primary Consideration B, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non‑revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed
I certify that the preceding 361 (three hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
............................[sgd]...........................
Associate
Dated: 14 April 2021
Date(s) of hearing: 12 & 13 February 2021 Counsel for the Applicant: Dr Jason Donnelly (direct access) Advocate for the Respondent: Ms Subasha Prasad Solicitors for the Respondent: MinterEllison ANNEXURE A – WITNESS LIST
WITNESS ACRONYM
RELATIONSHIP TO APPLICANT
STATEMENTS
XSLJ
Applicant
A2;
T1, pp 829–836Mr S L
Father of Applicant’s former partner (Partner R)
(mother of Child S)A14
Ms G P
Close friend of the Applicant for 12–18 months
A7
Ms J H
Lawfully appointed foster carer for Child S
A10
Ms J W
Aunt of Partner T
A8
ANNEXURE B – EXHIBIT REGISTER
EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED T1 Indexed Bundle of Relevant Documents
(paged 1–945)– 25 November 2021 R1 Respondent’s Statement of Facts, Issues and Contentions (paged 1–15) 3 February 2021 3 February 2021 R2 Transcript of Proceedings in AAT matter XSLJ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2020/0413) at first instance:
· Day 1, Thursday 26 March 2020 (paged 1–94);
· Day 2, Friday 27 March 2020
(paged 95–169).– 4 February 2021 A1 Applicant’s Statement of Facts, Issues and Contentions (paged 1–26) 7 January 2021 8 January 2021 A2 Applicant’s Supplementary Statement
(paged 1–8) including annexure:· Annexure A: Various photographs (paged 9–46).
3 January 2021 8 January 2021 A3 Applicant’s Tender Bundle containing IHMS Medical Records
(70 pages bearing various numbers)– 8 January 2021 A4 Statement of Ms A R, Case Manager at an authorised Out of Home Care Service provider in New South Wales
(1 page)8 December 2020 8 January 2021 A5 Statement of Mr B T, Applicant’s nephew
(1 page)27 January 2021 8 January 2021 A6 Statement of Mr C S, Applicant’s friend
(2 unnumbered pages)26 November 2020 8 January 2021 A7 Statement of Ms G P, Applicant’s friend
(10 unnumbered pages) with annexure:· Transcript of Academic Record from TAFE NSW current to 16 February 2019 indicating Ms G P’s eligibility to receive a “Statement of Attainment in Mental Health” (1 page).
4 January 2021 8 January 2021 A8 Statement of Ms J H, Applicant’s son’s carer
(1 page)5 January 2021 8 January 2021 A9 Statement of Ms J G, Applicant’s friend
(1 page)12 October 2020 8 January 2021 A10 Statement of Ms J W, Applicant’s former partner’s aunt (1 page) 4 January 2021 8 January 2021 A11 Statutory Declaration of Ms K H, Applicant’s friend, sworn and witnessed on 5 January 2021 (2 pages) 5 January 2021 8 January 2021 A12 Statement of Ms M W, Applicant’s caseworker at NSW Department of Communities and Justice (1 page) 8 January 2021 8 January 2021 A13 Reference from Mr P C, Applicant’s former employer (1 unnumbered page) 29 January 2021 8 January 2021 A14 Reference from Mr S L, Applicant’s former partner’s father (4 unnumbered pages) 4 January 2021 8 January 2021 A15
Certificate of Completion for “ParentWorks” course (1 page)
24 January 2021
8 January 2021
1
15
0