XZJP and Minister for Immigration and Border Protection (Migration)

[2017] AATA 3060

XZJP and Minister for Immigration and Border Protection (Migration) [2017] AATA 3060 (30 October 2017)

Division:GENERAL DIVISION

File Number(s):      2017/5132 

Re:XZJP

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member M J McGrowdie

Date:30 October 2017

Date of written

reasons:9 February 2018

Place:Sydney

The decision under review is affirmed.

.....................[sgd]...................................................

Senior Member M J McGrowdie

Catchwords

IMMIGRATION – Class BB Subclass 155 Five-year Resident Return visa – whether the delegate’s decision to cancel the applicant’s visa should be revoked under section 501CA(4) of the Migration Act 1958 – the applicant does not pass the character test – substantial criminal record – drug offence – protection of the Australian community – expectations of the Australian community – other considerations – decision affirmed

Legislation

Migration Act 1958 (Cth) ss 499, 501, 501CA

Secondary Materials

Direction No.65 – Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M J McGrowdie

9 February 2018

BACKGROUND

1. XZJP came to Australia from Columbia in May 1982.  He was then a man of approximately 20 and has remained in Australia since that time, most recently on a five year resident return visa known as a Class BB (Residence) Subclass 155 visa (the Visa).

2. He has worked on and off since he has been in Australia as a cleaner but he has not always been able to find employment and there have been periods of unemployment.

3. He is part of the Colombian community in Australia as well as being a member of the Australian community. 

4. His visa was cancelled because of the commission of an offence. A decision had been made by the delegate of the Minister on 21 August 2017 not to revoke under section 501CA(4) of the Migration Act 1958 (Cth) a decision under section 501(3A) of the Act to cancel the visa.

5. XZJP has made an application to the tribunal for a review of that decision. There can be no real doubt given what follows that the applicant does not meet the character test as defined in section 501(6) of the Act. In issue is whether a discretion should be exercised in his favour not to cancel the resident return visa in terms of the legislative framework. There is a discretion to not cancel the visa with that discretion being exercised in accordance with Direction no. 65 made under section 499 of the Act.

6. In terms of the offence leading to the cancellation of the applicant’s visa, there is material which establishes that the applicant was sentenced to a term of three years’ imprisonment to be released after serving one year and nine months on entering into a recognizance to be of good behaviour.  The applicant has served that sentence and records establish that the applicant was in every way a good prisoner in terms of his behaviour whilst in custody.

7. The applicant was convicted of attempting to possess a marketable quantity of cocaine on 31 July 2015. Generally this is how it is recorded in the applicant’s national police certificate of 29 July 2016.

8. A better outline of the facts and circumstances leading to the conviction is to be seen in the record of sentencing of the judge presiding on 31 July 2015 in XZJP’s case. Two packages of cocaine were to be delivered to XZJP.  A transcript of the sentencing is at page 25 of the G documents.  It appears that the applicant was to be paid for taking delivery of the drugs and that that was the extent of his role in the importation of the drugs.

9. The District Court judge considered that based upon psychological or psychometric testing the applicant was at the lower end of cognitive ability and was vulnerable to the influence of persons such as the offender and had limited capacity to reason in relation to his conduct.

10. The co-offender was a roommate of the applicant and was also from Colombia.

11. In addition to the commission of that offence, which led to the term of imprisonment, and which mandated that the applicant failed the character test leading to the mandatory cancellation of his visa, there are many other offences that have been committed by the applicant in his time in Australia, however, those offences go a little back further in time.  The most recent of which appeared to have been in 2008.  So between 2008 and 2014 there does not appear to have been any offences or convictions recorded against the applicant.

12. Of the older offences a significant one appears to be one that occurred in 2006.  At that time it may have been the case that the applicant was residing in a boarding house but in any event the landlord intruded into the applicant’s room to challenge the applicant in relation to outstanding rent.  The applicant became immediately alarmed because he had been awoken from sleep lying naked on the bed.  The applicant fled through a window and in the process went through and damaged an awning.

13. He was pursued by police who asked him what was happening but the applicant still being afraid attempted to flee and there was some apparent scuffle with the police at which time capsicum spray was used finally resulting in the applicant being arrested for indecent exposure, damage to property and resisting arrest.

14. The fact that the applicant found himself unclothed is perfectly understandable.  So also the damage to property, which occurred during his flight.  However, the grave aspect of the applicant’s conduct was his response to police.  This was dealt with by the court by way of a 12 month bond with supervision by the Probation Service.  At the same time that the offences I’ve just been describing were dealt with the applicant also faced the court with the offence of driving whilst disqualified.  This was also dealt with under the head of the 12 month bond.

15. There is also a record of the applicant assaulting a police officer in February of 1998.  However, it does not appear that the records in relation to that event are available.

16. An earlier offence dealt with by the local court in June 1996 involved providing a false name and place of abode.  Further, in August 1989 there is recorded the offence of stealing when the applicant was fined $200.  Again, there’s no real detail about what those events involved.

17. Apart from those matters, which I have indicated, there is a very long list of driving matters.  He has been found guilty of driving whilst unlicensed on 12 occasions between 1987 and 2008.  He has also been found guilty of driving an unregistered or uninsured motor vehicle on two occasions.  Further to those driving offences the applicant was declared to be an habitual offender on two occasions, once in 2006 and again in 2008.  There are also other driving offences in a very long list set out in a traffic record report, which appears at page 115 of the G documents.

18. If one were viewing this matter say in 2010 the applicant would be seen to be a person with a very long but recent and current record of offences.  There was nothing between 2008 and 2014.  A question arises as to whether the applicant had managed to rehabilitate himself to a very large extent before the offences of 2014 took place.

19. However, given that there were the offences in 2014 it suggests that the applicant had not reformed.  An explanation may be found for this in that the applicant has shown that he has been prepared to disobey the law when expedient to do so.  For example, if he needed or wanted to drive and didn’t have a licence he would still do it.  In terms of the 2014 offences the applicant was in financial difficulties and the lure of payment appears too much for the applicant to have resisted in the circumstances he found himself in.

20. It might well be the case that now with the custodial sentence having been served and the gravity of his conduct before him he will see that reform is the only way for him to establish a positive life.  One is hopeful that the applicant has now learnt that these errors have not furthered his interests and puts him in the position where he finds himself today.

21. There is a report of the psychologist who examined the applicant for the purposes of the court proceedings in relation to the 2014 offences, at page 68 of the G documents, dated 23 July 2015.  It makes reference to the applicant’s history; including that in recent times his mother passed away in Colombia and the effect that had, that the applicant has a brother in the United States and a sister who lives in Colombia.  It also indicates that the applicant’s father died when the applicant was only a young boy and that the applicant was brought up substantially by his aunt and in his aunt’s family.

22. It also details in some degree the stressors that the applicant has had to deal with in his life.  The recommendation of the psychologist was that the applicant would benefit from receiving psychological support perhaps by a Spanish speaking psychologist.

23. Included in the documents also are letters of support from various people.  There is a letter from a cousin of the applicant, a letter from a very long term friend of the applicant, and a joint letter from members of the long term friend’s family, as well as a letter from an individual from the correctional facility attesting to the applicant’s very good behaviour in custody.

24. Some oral evidence was also led from the long term friend and the gentleman from the correctional facility, reiterating what they had said in their letters in support of what the applicant said in his application.

25. The applicant’s cousin has relocated to Queensland.  The applicant has indicated that if his application before the tribunal was successful it would be his intention to continue to live and to work in Sydney.

    Direction no. 65

26. I turn now to a consideration of the matters which I need to consider as set out in Direction no. 65.  Direction no. 65 sets out some general guiding principles, which includes the protection of the Australian community from harm as a result of criminal activity by non-citizens.

27. There is also a statement of principle that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia given that coming or remaining in Australia is a privilege conferred on non-citizens in the expectation that they will be law abiding.

28. Part C of Direction no. 65 deals with the principles relevant in deciding whether to cancel a non-citizen’s visa.  There are primary considerations and secondary considerations.

29. The primary considerations are:

    (a)Protection of the Australian community from criminal or other serious conduct,

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

    Protection of the Australian community

30. When considering the protection of the Australian community consideration is to be given to the nature and seriousness of the non‑citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences.

31. In this particular instance, if the applicant’s offending had ceased in 2008 the position might be different.  However, when one views the offences in 2014 against the voluminous list of offences through to 2008 over an extended period of time, one reaches the conclusion that there is certainly a risk of reoffending.  And even if this risk were to be towards the lower end of the scale the last offence was of such a kind that the damage to the community can be quite considerable.  In my view this consideration weighs heavily against the applicant.

    Best interests of minor children in Australia

32. The next primary consideration is the best interests of minor children in Australia but this has no application in the present case.

    Expectations of the Australian community

33. The third primary consideration is the expectations of the Australian community.  Contained in the Direction is the reference to the fact that the Australian community expects non-citizens to obey Australian laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they have breached its trust or where the non‑citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person.

34. Whilst the Australian community is not intolerant of some transgression it is my view that in view of the most recent offences and the long history of breaches of the law it would be the expectation of the Australian community that a cancellation of visa would not be set aside.

35. I turn now to the other secondary considerations.  They 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.

36. In relation to the first consideration, that is international refoulement obligations, the applicant has not been afforded or given refugee status.  He does fear however, that if he were to return to Colombia his life might be in danger from members of a Colombian drug cartel.  The applicant gave evidence that in 2014 he received two telephone calls from associates of the co‑offender saying that if the applicant returned to Colombia they would kill him.

37. There is no corroborating evidence in relation to these threats, however I accept that the applicant did receive these calls.  But as to the strength or voracity of the claims made there is no real evidence suggesting that it is a real danger.  Nonetheless taking it into account I can accept that the applicant would have some concerns in this regard.

38. The submission made on behalf of the Minister in this respect is that it would be open to the applicant to apply for a protection visa though should the cancellation of his present visa stand and that this aspect of the matter could be given full and proper consideration by way of that process.  It might be that the applicant could marshal some further evidence to support his claim that his life would be under threat, if he returned to Colombia.

39. The next matter to be considered is strength, nature and duration of ties.  The applicant has been in Australia for a considerable period of time.  He has friends and he has had some history of work.  The applicant does not own property.  The applicant does not have family in Australia other than his cousin who is in Queensland.  He has a sister in Colombia and he has returned to Colombia for visits on a few occasions since he has been in Australia.

40. Relevant also is the fact that the applicant has been in Australia on a number of limited stay visas and it has only been the problems he has got into with the law that has led to the cancellation of the last of these.  There could not on my view be undue weight placed on this consideration with the history of offending given that the continuation of the applicant’s right to remain in Australia would be influenced by his conduct whilst here.

41. The next consideration is the impact on Australian business interests.  There is no real suggestion that this consideration would have any application.

42. Next is the impact on victims.  There is no evidence of any particular impact on any particular victims.

43. Next is the extent of impediments, if removed.  It would seem that the applicant’s sister in Colombia is not in strong financial circumstances and lives in a small house.  There is no indication that she would be able to provide support to the applicant in Colombia.  On the other hand the applicant had been unemployed for a period of three years before his offences in 2014 and was living in rental accommodation.

44. It is submitted on behalf of the Minister that the applicant grew up in Colombia, speaks Colombian, has a sister in Colombia, and that the environment would not be totally unfamiliar to him.  Whether the threats made to the applicant by phone in 2014 gives rise to real concerns is a matter which perhaps could be further investigated.  The applicant himself however would consider that to be an impediment to his removal.

    DECISION

45. In conclusion and weighing all of the various considerations, it is my view that they weigh against setting aside the decision.  In particular, that is because of concerns with regard to the protection of the Australian community and the expectations of the Australian community.  Accordingly, the decision under review is affirmed.

I certify that the preceding 45 (forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member M J McGrowdie

.......................[sgd].................................................

Associate

Dated: 9 February 2018

Date(s) of hearing:	30 October 2017
Applicant:	In person
Solicitors for the Respondent:	Sparke Helmore