YDJJ and Minister for Immigration and Border Protection (Migration)

YDJJ and Minister for Immigration and Border Protection (Migration) [2017] AATA 2591 (14 November 2017)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )
  )       No: 2017/5360
GENERAL DIVISION  )

Re: YDJJ
Applicant

And: Minister for Immigration and Border Protection
Respondent

CORRIGENDUM

TRIBUNAL: Kim Parker, Member

DATE: 22 November 2017

PLACE: Melbourne

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application to omit the names of persons and locations.

The Tribunal further directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

On page 2, the list of legislation is to be altered to include: Children (Criminal Proceedings) Act 1987 (NSW).

On page 3, footnote number 1 is altered to read: The Tribunal has used a pseudonym for the Applicant’s name in this decision and reasons for decision to ensure compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).

In paragraph 86, the specified date is altered to read: In August 2014.

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

Member

Division:GENERAL DIVISION
File Number(s): 2017/5360
Re:YDJJ
APPLICANT

Minister for Immigration and Border Protection And
RESPONDENT

DECISION

Tribunal:Member K. Parker
Date:14 November 2017
Date of written reasons: 20 November 2017
Place:Melbourne

The Tribunal decides that:

it does not have jurisdiction to hear this application because the Applicant did not lodge it with the Tribunal within the time prescribed under subsection 500(6B) of the Migration Act 1958 (Cth).

The Tribunal also notes that:

despite this, the Tribunal has heard submissions and received evidence about the substantive issues from both parties and considers that if the application had been lodged within the prescribed time, the Tribunal would have affirmed the Minister’s decision under review, which was not to revoke the cancellation of the Applicant’s visa.

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

Member K. Parker

MIGRATION – non-revocation of cancellation of visa due to substantial criminal record – applicant received prior written warning that his visa would be cancelled if his offending continued - nature and seriousness of conduct - risk of engaging in criminal conduct if allowed to remain in Australia - where applicant convicted of multiple offences - need to protect Australian community from conduct - expectations of Australian community not met - applicant suffered poverty during his childhood - strength, nature and duration of ties to Australia – applicant has resided in Australia since he was 11 years old - impact on applicant and family if visa refused - impact on victims – Minister produced evidence at the conclusion of the hearing which revealed that the application had been made out of time – hearing before the Tribunal had taken place in the absence of jurisdiction – finding of no jurisdiction – if the application was made in time, the Tribunal would have affirmed the reviewable decision

Legislation

Administrative Appeals Act 1975 (Cth)
Children (Criminal Proceedings) Act 1987 (NSW)
Migration Act 1958 (Cth)

Cases

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385
Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
Mlinar and Minister for Immigration & Multicultural Affairs, Re (1997) 48 ALD 771
Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578

Secondary Materials

Department of Immigration and Border Protection (Cth), Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA; 22 December 2014

REASONS FOR DECISION

Member K. Parker

20 November 2017

The Applicant, YDJJ, is a 40 year old man.[1] He was born in Indonesia and he gave evidence that he holds an Indonesian passport which is in the possession of his parents.
[1] The Tribunal has used a pseudonym for the Applicant’s name in this decision and reasons for decision to ensure compliance with s 15A of the Children (Criminal Proceedings) Act 1987 (NSW).
YDJJ arrived in Australia in December 1988 at the age of 11 and has resided in Australia under a Class AG Subclass 833 Certain Unlawful Non-citizen (Residence) visa that was granted to him in February 2000.[2]
On 20 July 2015, a delegate of the Minister for Immigration and Border Protection (Minister) made a decision to cancel YDJJ’s visa under s 501(3A) of the Migration Act 1958 (Cth) (Act). It is mandatory for the Minister to cancel a person’s visa under this provision if they do not pass the character test in s 501(6) of the Act for prescribed reasons, including if they have a substantial criminal record. Under s 501(7)(c) of the Act, this is deemed to be the case if a person has been sentenced to a term of imprisonment of 12 months of more. Notably, YDJJ was convicted of five criminal offences on 3 September 2010 and was sentenced to six years and three months imprisonment for two of the offences, and two years for one of the other offences. These convictions followed a long history of criminal conduct by YDJJ.
In August 2015 and February 2017, YDJJ requested that the cancellation of his visa be revoked.
On 21 August 2017, a delegate of the Minister made a decision under subsection 501CA(4) of the Act not to revoke the cancellation of YDJJ’s visa. YDJJ lodged an application with this Tribunal on 5 September 2017 seeking a review of this decision.
On the application form, YDJJ stated that he received the Minister’s delegate’s decision on 29 August 2017. Section 500(6B) of the Act provides that an application for review of a decision under subsection 501CA(4) of the Act must be lodged with the Tribunal within nine days after the day on which the person was notified of the decision. On the basis of the applicant’s representation on his application form that he received notification of the decision on 29 August 2017, and with no evidence available to the Tribunal to contrary, the application proceeded to hearing.
The Minister lodged a set of documents with the Tribunal on 16 October 2017 and an amended set of documents with the Tribunal on 30 October 2017 (G‑Documents).
At the conclusion of the hearing of this application on 13 November 2017, the Tribunal sought to clarify with the parties the precise date the Tribunal was due to issue its decision under s 500(6L) of the Act. This provision establishes a strict deadline for a decision to be made by the Tribunal in relation to the review of a decision under subsection 501CA(4) of the Act within the period of 84 days after the day on which the person was notified of the decision. If that deadline is not met, the Tribunal is deemed to have affirmed the decision under review. The Minister’s representative at the hearing indicated to the Tribunal that the G-Documents did not contain the usual written acknowledgement of receipt by YDJJ of the “Notice of decision not to revoke visa cancellation under subsection 501CA(4) of the Act” (Receipt Acknowledgement).
The Minister’s representative undertook to make an urgent inquiry to identify whether a Receipt Acknowledgement for YDJJ existed. If so, he undertook to obtain this document to confirm the precise day upon which YDJJ was given notice of the reviewable decision, given the discrepancy between the date provided by YDJJ on his application form (29 August 2017) and the date of decision (21 August 2017).
At 6:42 pm on 13 November 2017, the Minister’s representative sent the Receipt Acknowledgement, signed by YDJJ, to the Tribunal which confirmed that YDJJ received the notice of the decision not to revoke the cancellation of his visa on 22 August 2017. The Tribunal finds that this is the day on which YDJJ received notice of the non-revocation decision. The Minister’s representative indicated that the 84^th day under subsection 500(6L) of the Act was 14 November 2017.
With confirmation by the Receipt Acknowledgement that the non-revocation notice was received by YDJJ on 22 August 2017, and not on 29 August 2017 as stated on YDJJ’s application form, it is clear to the Tribunal that under subsection 500(6B) of the Act, YDJJ’s application for review was made out of time. There is no provision empowering the Tribunal to extend the time limit under subsection 500(6B) of the Act. The effect of subsection 500(6B) of the Act is that paragraph 29(1)(d) and subsections 29(7), (8), (9) and (10) of the Administrative Appeals Tribunal Act 1975 (Cth) (which generally allows for an extension of time application to be made an applicant, and granted by the Tribunal at its discretion), do not apply to YDJJ because his application was made under s 501CA(4) of the Act. This meant that the Tribunal has no jurisdiction to review the decision made by the Minister’s delegate on 21 August 2017.
However, a hearing of the substantive issues took place on 13 November 2017, before it became apparent to the Tribunal that it lacked jurisdiction to determine the application. I have decided to set out in this decision for the benefit of YDJJ what I would have decided if I had jurisdiction to review this decision, or in other words, if this application had been lodged with the Tribunal within the prescribed time frame under subsection 600(6B) of the Act. After consideration of the evidence and the relevant legislative framework, if the Tribunal had jurisdiction, I would have affirmed the decision not to revoke the cancellation of YDJJ’s visa for the reasons set out below.

IF THE TRIBUNAL HAD JURISDICTION TO REVIEW THE DECISION:

ISSUES

YDJJ does not dispute that he was sentenced to more than 12 months imprisonment arising from convictions entered on 3 September 2010 by the Sydney District Court in New South Wales. These convictions and the corresponding sentence for each, amongst others, are recorded in the National Police Certificate for YDJJ dated 8 September 2016.[3] For this reason, YDJJ does not satisfy the character test as defined in s 501(6) of the Act because he has a substantial criminal record as defined by s 501(7)(c) of the Act.
[3] Refer G-Documents G3 – YDJJ’s Australian National Police Certificate.
Accordingly, if this application were made within the prescribed time frame, the issue for consideration by the Tribunal would have been whether the Tribunal should exercise its discretion under s 501(CA)(4) of the Act to revoke the cancellation of YDJJ’s visa.

LEGISLATIVE FRAMEWORK

Migration Act 1958 (Cth)

Under s 501(6) of the Act, a person is deemed not to have passed the character test if any one of the prescribed circumstances set out in subsections (a) to (h) of that provision applies. One of these deeming circumstances is where a person has a substantial criminal record as defined by s 501(7). If none of those prescribed circumstances apply, the person will pass the character test under s 501(6) of the Act.
Section 501(3A) of the Act provides as follows:
The Minister must cancel a visa that has been granted to a person if:
(a)The Minister is satisfied that the person does not pass the character test because of the operation of:
(i)Paragraph (6)(a)(substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) Paragraph (6)(e)(sexually based offences involving a child); and
(b)The person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(7)(a), (b) and (c) provide as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(c)The person has been sentenced to death; or
(d)The person has been sentenced to imprisonment for life; or
(e)The person has been sentenced to a term of imprisonment of 12 months or more;
…
18. Section 501CA provides as follows (emphasis added):
Cancellation of visa--revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)

(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:

(a) would be the reason, or a part of the reason, for making the original decision;
and

(b) is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.

(3) As soon as practicable after making the original decision, the Minister must:

(a) give the person, in the way that the Minister considers appropriate in the
circumstances:

(i) a written notice that sets out the original decision; and

(ii) particulars of the relevant information; and

(b) invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

(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.

(5) If the Minister revokes the original decision, the original decision is taken not to have been made.

(6) Any detention of the person that occurred during any part of the period:

(a) beginning when the original decision was made; and

(b) ending at the time of the revocation of the original decision;

is lawful and the person is not entitled to make any claim against the Commonwealth, an officer or any other person because of the detention.

(7)A decision not to exercise the power conferred by subsection (4) is not reviewable under Part 5 or 7.

Note: For notification of decisions under subsection (4) to not revoke, see section 501G.

In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 at 345 [38], North ACJ found that:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the facts for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
The Full Court of the Federal Court of Australia in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 per Collier J at [32] with whom Logan and Murphy JJ agreed at [59] and [60], also observed as follows:
…the section [s 501CA(4)(b)] does not, for example, require the Minister to revoke the cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision is he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against conviction.

By operation of s 500(1)(ba) of the Act, if YDJJ’s application had been validly made, this Tribunal would have been endowed with jurisdiction to review the decision of the delegate of the Minister under subsection 501CA(4) of the Act not to revoke the cancellation of YDJJ’s visa.

Ministerial Direction No 65

Guidance in exercising the discretion under s 501CA(4) of the Act is provided in Ministerial Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction) which took effect on 22 December 2014.[4]
[4] Section 499(2A) of the Act mandates that the Tribunal must comply with the Direction (see Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, Katz J).
Paragraph 6.1 of the Direction states, in part:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with direction made under section 499.
Paragraph 6.2 sets out General Guidance relating to the Government’s intent:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. […] factors that must be considered in making a revocation decision are identified in Part C of this Direction.

The principles referred to in the General Guidance and reproduced below, constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) 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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

Paragraph 7.1(b) of the Direction states that a decision-maker: “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”.
Paragraph 8(1) of the Direction explains that the considerations in Part A and Part C for existing visa holders and in Part B for visa applicants are different:
...Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa applicant will be approved.
Under Part C of the Direction, paragraph 13(1) provides that where a non-citizen has had his or her visa cancelled under subsection 501(3A) of the Act, the non-citizen may request revocation of that decision under s 501CA of the Act. Where the discretion to consider revocation in enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case. Paragraph 13(2) provides that in deciding whether to revoke the mandatory cancellation, the following are primary considerations:
(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.

Paragraph 14 of the Direction prescribes other considerations that must be taken into account, where relevant, and they include but are not limited to:
(a)      International non-refoulement obligations;
(b)      Strength, nature and duration of ties;
(c)      Impact on Australian business interests;
(d)      Impact on victims; and
(e)      Extent of impediments if removed.

Paragraph 8(4) of the Direction states that primary considerations should generally be given more weight than the other considerations. Paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.

EVIDENCE

YDJJ’s early years in Indonesia

YDJJ spent a large part of his childhood in Indonesia until he departed for Australia at age 11. YDJJ gave evidence that during his childhood his family lived in poverty and that was very difficult. YDJJ was raised in Indonesia by his parents with his brother. YDJJ also has a sister who was subsequently born after YDJJ’s family’s arrival in Australia. YDJJ said his father was “hard on him” and “did not treat him like other children” but he conceded that it was on account of things that YDJJ had done. Otherwise, it seemed that YDJJ was raised in a stable family unit during his early years living in Indonesia.
Ultimately, YDJJ’s family decided to move to Australia in hope of a better future. YDJJ was asked whether he endured any traumatic events during his childhood, other than the poverty experienced by his family, to which he said he had not.

YDJJ’s migration to Australia and his teenage years

YDJJ moved to Australia at age 11 which the Tribunal acknowledges would have been disruptive to YDJJ’s schooling, at least for a few years, while YDJJ was learning the English language. YDJJ gave evidence that he “hung out with the wrong crowd”. In his mid-teens, YDJJ started to engage in unlawful acts. His first conviction was entered at age 16 and he committed his first robbery at age 20.
YDJJ was asked whether he endured any traumatic events during this part of his life, to which he said he had not.
YDJJ gave evidence that before he went to prison; he used to train children to box at a local community centre. He was employed in construction for a while and worked as a packer in April 2009 for about 12 months.

YDJJ’s recorded criminal convictions in Australia

A National Police Certificate dated 8 September 2017 records YDJJ’s criminal convictions as summarised below, with offences attracting imprisonment penalties highlighted in bold:[5]
[5] Refer G-Documents G3.

COURT	COURT DATE	OFFENCE	SENTENCE
Sydney District Court	3 September 2010	*Break & enter house etc steal value >$15,000-si* Robbery in company-si *Robbery in company-si* *Robbery in company-si*	Imprisonment: 2 years commencing 15/04/2009 concluding 14/04/2011 Taken into account on form 1: this file. Indicted for: imprisonment: 6 years and 3 months commencing 15/04/10 concluding 14/07/16 non parole period with conditions: 4 years release subject to supv obey all their reasonable directions including those as to drug rehabilitation. Taken into account on form 1: this file. Imprisonment: 6 years and 3 months commencing 15/10/10 concluding 14/01/17 non parole period with conditions: 4 years release subject to supv.
Central Local Court	9 July 2009	Never licensed person drive vehicle on road – 1^st offence Drive vehicle recklessly/furiously or speed/manner dangerous Drive conveyance taken w/o consent of owner – t2	Fine: $200 costs – court: $76 Fine: $200 costs – court: $76 Disqualification: 12 months commencing 09/07/2009 Fine: $300 costs – court: $76
Downing Centre Local Court	8 December 2008	Possess prohibited drug	Fine: $300 costs – court: $73 drug to be destroyed.
Geelong Magistrates Court	4 April 2006	*Recklessly cause injury*	3 months imprisonment. Concurrent.
Melbourne Magistrates Court	24 April 2003	*Robbery*	8 years imprisonment.
Melbourne County Court	24 April 2003	*Theft of a motor vehicle (2 charges)*	18 months imprisonment on each count concurrent and concurrent. Licence cancelled and disqualified for 2 years. To pay $26,084.66 compensation.
Parramatta District Court	20 November 1998	Possess prohibited drug Possess prohibited drug	Appealed against conviction. Conviction confirmed. Appealed against conviction. Conviction confirmed.
Blacktown Local Court	27 August 1998	*Possess prohibited drug* *Possess prohibited drug*	Fixed term: 6 months commencing 14/11/1999 Fixed term 6 months commencing 14/11/1999
Sydney District Court	19 Dec 1997	*Robbery in company-si* *Enter building/land with intent to commit offence-t1*	Minimum term: 18 months commencing 15/11/1997 concluding 14/05/1999 additional term: 2 years 6 months commence 15/j05/1999 conclude 14/11/2001 Fixed term: 6 months commencing 15/05/1997 concluding 14/11/1997
Waverley Local Court	26 Oct 1996	1. Take & drive conveyance	1. Fd $1000 cc $50 comp $4000 total wit exp $52
Sydney District Court	14 May 1996	Appealed against conv	Appeal dism. Conv conf. Sentence to date from 1405 96
North Sydney Local Court	16 Apr 1996	*1. Break enter and steal*	1. Fixed term 3 months from 160496 comp $250 (appealed)
Sydney District Court	14 Jun 1995	Appealed against conv of 170595 Appealed against conv of 170595	Appeal dism. Conv conf. Republic mischief: sentence to date from 140295 in lieu re escape: control order 3 months s 33(1)(g) from 140295 Appeal dism. Conv conf. Sentence to date from 140295
Bidura Childrens Court	17 May 1995	1. Escape (flw) 2. Public mischief 1. Kidnapping	1 & 2. On each charge control order 6 months from 17 0595 1. Control order 9 months from 170595 add term 3 mths
Bidura Childrens Court	26 Oct 1994	*Receiving (s80aa warrant)*	Minimum term: 6 months additional term: 12 months
No Appearance Court	24 Oct 1994	1. Revocation of parole (flw)	1. Returned to former custody
Bidura Childrens Court	24 Aug 1994	1. Fta (bidura 211293)(flw) 2. B&e with intent (flw) 3. Resist police (flw)	1 2 & 3. On each charge prob12months gb supv yost
Sydney District Court	21 Jul 1994	Appealed against conv of 210694	Appeal dism. Sentence confirmed.
Bidura Childrens Court	21 Jun 1994	1. Take or be carried in conveyance	1. Control order 1 mth from 210694 add term 11 months (appealed)
Lidcombe Childrens Court	17 May 1994	Enter enclosed lands (s80aa warrant) Illegal use conveyance	Probation s 33(1)(e): gb until 18 years old supv of juvenile justice branch & obey directions docs juvenile justice branch reside with parents Probation s 33(1)(e): gb until 18 years old supv of juvenile justice branch & obey directions docs juvenile justice branch reside with parents
Lidcombe Childrens Court	20 Dec 1993	Robbery whilst armed Robbery whilst armed Robbery whilst armed	Probation s33(1)(e): 2 years gb supv of juvenile justice branch & father Probation s33(1)(e): 2 years gb supv of juvenile justice branch & father Probation s33(1)(e): 2 years gb supv of juvenile justice branch & father

At the hearing, YDJJ accepted that the robberies he had been involved in were serious offences. He said he had done “some stupid things” and that he “regrets” his behaviour and hopes he is given “a final chance”.
In relation to the most recent convictions on 3 September 2010 entered by the District Court of New South Wales, the sentencing remarks of Judge Syme state that YDJJ had pled guilty to a total of three offences.[6] The first two related to two offences of robbery in company that took place in the period between 12 and 17 December 2008. After those offences were committed, YDJJ was apprehended shortly afterwards and arrested on 19 December 2008. The Tribunal infers that he was released on bail because the sentencing remarks indicate that the third offence related to a break, enter and steal offence that occurred on 20 January 2009, when YDJJ was on bail in relation to the earlier offences.[7] YDJJ denies he was on bail at this time, although nothing turns on it with respect to the substantive issues in this case.
[6] Refer G-Documents G4/28.
[7] Refer G-Documents G4/3.
At the hearing of this application, YDJJ was asked about his criminal offending leading to the 2010 conviction and he admitted that he had been involved in a series of robberies. He said these robberies took place at post office X, a hotel reception, post office Y and post office Z. YDJJ initially denied but later said he could not recall, being involved in the break, enter and steal incident which he said took place at his girlfriend’s neighbour’s house. He said the Police found his fingerprints in the house but YDJJ said could explain this as he had visited that house before the incident took place. He was asked why he entered a guilty plea in relation to the latter incident to which he said he did not know why and that he “probably wanted to get it over and done with”.

I will deal with each of those incidents in turn and note following evidence in relation to each:

Incident	Sentencing remarks - summarised from an agreed set of facts tendered by the Crown and agreed to by YDJJ[8]	YDJJ’s further evidence about the circumstances of these offences
In December 2008
Robbery at post office X	“[YDJJ] and two other men entered [post office X] wearing a disguise of various forms. They entered the post office yelling and demanding money, they used words or threats to the effect of “do as you are told otherwise you will get hurt”. There was a certain degree of menace in their attendance, the facts refer to yelling and multiple demands and of course there were three offenders in total. The total loss to the post office ultimately was $3,836. There are no weapons complained of and there are no physical injuries of the victims or the complainants”. YDJJ was on parole at the time of this incident.	YDJJ said he agreed with the description of this incident as set out in the sentencing remarks.
Robbery at a hotel reception (described as a block of apartments in the sentencing remarks)	“[YDJJ] and the offender and one other entered the apartments wearing masks or disguises and demanded money, yelling threats to the effect of “we will fucking kill you”. There was a menace involved in these threats, and the offenders stated they had guns and knives. The total loss in relation to this offence was $560 or thereabouts, plus some other items which are not quantified. YDJJ was on parole at the time of this incident.	YDJJ said he did have any weapons on him when he committed this offence and to his knowledge neither did his accomplices. He said there was only one man present in the hotel reception when the robbery took place and that it happened during the day.
Robbery at post office Y	“[YDJJ] and one other entered the post office yelling threats in the same fashion as in [post office X]. They threatened the post office employees to lie down on the floor, they demanded money, there was a certain degree of menace, ultimately they left taking the sum of about two thousand two hundred and sixty dollars with them. YDJJ was on parole at the time of this incident.	YDJJ admitted his involvement in this offence. He admitted to making threats and to telling people to lie down on the floor. He said there were about two staff in the post office at the time and about three customers, one of whom was female.
Robbery at post office Z	[YDJJ] and one other entered, disguised with balaclavas, stating words to the effect of “this is a hold up”. There were threats and menace and a loss of about $1,470. YDJJ was on parole at the time of this incident.	YDJJ admitted his involvement in this offence and admitted to wearing a balaclava. He said the people present were scared at the time and he said he could imagine that they would be “devastated”. He said there were about five or six people in the post office and about three staff members and one was female.
20 January 2009
Break, enter and steal incident at YDJJ’s former girlfriend’s neighbour’s house	“In relation to that offence the offence occurred at a private home it occurred when the home owners, or occupiers were not at home. [YDJJ] entered the home, the home was ransacked, there was a large quantity of cash and jewellery stolen in excess of $20,000. The offender was ultimately arrested under a DNA match”.	YDJJ initially denied any involvement. At the hearing, it was bought to his attention that he had entered a guilty plea in relation to this offence. YDJJ subsequently said he could not recall whether he had been involved in it. He said it was unlikely at the house was next door to his girlfriend’s place and this would not make sense.

[8] Refer G-Documents G4.

YDJJ was asked why he committed the offences set out above when he was on parole or on bail. He said “I have no answer for that”. He was asked whether he was under the influence of any drugs or alcohol at the time of those offences, to which he said he was not. YDJJ said that “I had no money at the time. I was not working. I was doing a lot of gambling. I was using drugs at the time [generally]. I am a heavy gambler out there”.
At the hearing, the Minister’s representative questioned YDJJ about his earlier convictions as recorded on the National Police Certificate. YDJJ had the following to say about each of those convictions:

Incident	Sentencing remarks	YDJJ’s further evidence about the circumstances of these offences
On 20 December 1993, three charges of robbery while armed.	None available to the Tribunal.	Initially, YDJJ said he could not remember the circumstances surrounding these recorded convictions. Subsequently, when more information was provided, he said that he was with a group of “mates” and they had decided to “do stupid things”. He said they robbed three separate post offices. He said “my mate pulled out a screw driver” but that “he did not hurt anyone”. YDJJ said when he did a robbery, he never used a weapon. He said he regretted what he had done. He said “the last few years, I’ve been thinking, I wish I could turn back time on what I have done”. He said when he came to Australia “we had nothing” and that he hung out with “the bad crowd”. YDJJ accepted that for every robbery he had to yell and abuse staff to “get stuff”.
On 17 May 1994, YDJJ was convicted of entering enclosed land and illegal use conveyance.	Not available to the Tribunal.	YDJJ said he went to an empty house and was “hanging out down there”. He said there was a car key there. He said his mate hot-wired the car. He said when he was young, he “drunk alcohol and did stupid things”.
On 21 June 1994, YDJJ was convicted of “Take or be carried in conveyance”.	Not available to the Tribunal.	YDJJ said he was involved in the hot-wiring of a car with his “mates”. When asked whether he was the ring leader, he said they were all guilty. He said he was never the ring leader and that he followed his friends. He said he had not been drinking when this occurred. He said he appealed the sentence because his accomplices had received a lesser sentence.
On 24 August 1994, YDJJ was convicted of “fta” and “b&e with intent” and “resist police”.	Not available to the Tribunal.	YDJJ said this was a conviction of trespassing. He said he reached over into a canteen or kiosk toward the cash register. He said he could not recall resisting police. When asked why he did this, he said that he “wasn’t thinking”.
On 26 October 1994, YDJJ was convicted of “receiving”.	Not available to the Tribunal.	YDJJ indicated that this conviction in relation to a car. He said he was returned into custody after this conviction.
On 17 May 1995, YDJJ was convicted of “escape”, “public mischief” and “kidnapping”.	Not available to the Tribunal.	YDJJ said that he escaped from the juvenile justice centre with four people after they cut through the fence. He denied ever kidnapping anyone, despite the recorded conviction. He said he could not recall what the public mischief was and that all he did was run to the train station. He said was not caught until one month after the escape. He said that he “would never go that far to hurt a victim”. He also said “whatever I do in a group, I go along with”.
On 26 October 1996, YDJJ was convicted of “Take & drive conveyance”.	Not available to the Tribunal.	YDJJ said he committed this offence on his own and it involved hot wiring a car and then dumping it. When asked what he had to say about the context of this offending behaviour he said “it was silly, I guess”.
On 19 December 1997, YDJJ was convicted of Robbery in company and Enter building/land with intent to commit.	Not available to the Tribunal.	YDJJ said this was bank robbery. He said he committed this offence alone. He said he entered the bank, grabbed the cash bag and ran out. When asked whether this was his first attempt at robbing a bank, he said “Yes. I know it’s not funny but sometimes when you have nothing and other people have something, you want that too”. He also said “When I do something, I never think”. When asked whether he still felt the same way now, he said “no – if I could turn back time it would be different”.
On 27 August 1998, YDJJ was convicted of possessing prohibited drugs	Not available to the Tribunal.	YDJJ said that all of his urine tests in the last 10 months were negative. He admitted to using drugs in the past, “mostly cannabis and some cocaine. No ice”. He said he had tried heroin in the past but that he was not into it. He said he used cannabis about three times a week. He said he had been using drugs since he was young and first used cannabis when he was 15 or 16 years old. He said that his drug use would not increase at times he was released from prison and that it stayed the same. He said he had never sold or given drugs to other people. YDJJ said that he had not used drugs for the last 12 months because he had made a promise to his sister not to use drugs anymore.
On 24 April 2003, YDJJ was convicted of Robbery and Theft of a motor vehicle.	The sentencing remarks of Judge Neesham of the Melbourne County Court dated 24 April 2003, were included in the G-Documents.[9] Those remarks state that there was one count of robbery of a branch of the [Bank A] and two of theft of two motor vehicle used purpose of reconnaissance and one was used as the “get away” car. There were four offenders involved and two, including YDJJ, were from [City A]. The sentencing judge remarked: “The robbery itself was appropriately described by [one of the accomplices] as, and I quote, “a counter jump robbery.” Two of you, that is [your accomplice] and yourself, leapt over the counter into the teller’s area, shouting at the tellers to give you their money. One of the others, [other accomplice], walked up and down the counter, on top of it, shouting at those in the bank to get down and stay down. Your object was to succeed by the imposition of terror, and in that you abundantly succeeded. […] one of the tellers said in her evidence, “I was very terrified. I’ve never been so frightened ever.” The victim statements are eloquent in their description of the effect of your behaviour upon the members of staff at the bank at the time. The proceeds of the robbery were $26,000, or thereabouts, split between the four of you. While it cannot be said that the robbery was a sophisticated crime, there was certainly a measure of sophistication about it. You chose a city in which you were not known. You travelled to it under false names. You spent some time selecting a suitable target. You did adopt rudimentary disguise in the form of caps and sunglasses, and you did cause the clothing that you wore in the robbery to be discarded thereafter”.	YDJJ explained that the first conviction involved the robbery of a bank. He said it was his idea to rob a bank. He was visiting two friends in Melbourne. He said the amount of money they stole from the bank was $120,000 (split three ways between him and his two accomplices). He said he spent about $30,000 of this money on gambling and partying. He said he spent $15,000 over two days at Crown casino. He said he was gambling by himself. He said “we don’t care about the money, we just want to have fun”. He said they performed the robbery by jumping the bank counter. His accomplices were pacific islanders. He was wearing a hoodie which covered his face but no mask or balaclava. When he was asked how he “humiliated” his victims, he said he was not sure. He admitted that one of his accomplices told the people in the bank “if anyone doesn’t cooperate, you will get what you deserve”. He admitted that he carried out this robbery while he was on parole.
On 4 April 2006, YDJJ was convicted of “Recklessly cause injury”.	Not available to the Tribunal.	YDJJ said this offence was committed while he was in prison. He said there was a big brawl and that one of his “mates” got stabbed. He said there were more than eight people involved and there was racial tension. YDJJ said that his involvement was to “take down to the ground” one of the inmates. When asked whether he caused any injury to this person, he said “a scratch”. He said there were a lot of people involved and six inmates were convicted. He said he blamed himself for committing this offence. He said he does not keep in touch with any of the people who were involved in this incident and that it was 15 years ago.
On 9 July 2009, YDJJ was convicted for driving without a licence and dangerous driving offences and “drive conveyance”.	Not available to the Tribunal.	YDJJ admitted that this offence was committed while he was on probation. He said he has never held a drivers licence because it was hard for him to get one due to his prior convictions. He said he was driving his “mate’s” car, without his mate’s consent, to “pick up a mate from a night club”, and was pulled over by the Police at King’s Cross. He said he was not speeding or driving dangerously and does not know why he was convicted with dangerous driving. He said he was not under the influence of drugs or alcohol at the time.

[9] Refer G-Documents G5.

YDJJ also had a long history of prison offences while incarcerated. They are listed in G-Document G6 as follows:
·14 July 1996 – Fail Attend Muster
·17 August 1997 – Damage/Deface Property
·22 October 1997 – Insulting Language
·5 November 1997 – Drugs in Urine
·7 December 1997 – Damage Clothes/Bedding
·21 January 1998 – Possess Drug Implement
·16 March 1998 – Insulting Language
·22 March 1998 – Drugs in Urine
·16 June 1998 – Assaults
·15 November 1998 – Drugs in Urine
·7 January 1999 – Possess Unauth Property
·12 January 1999 – Fail Attend Muster
·29 March 1999 – Fail Attend Muster
·27 May 1999 – Stealing
·14 July 1999 – Not Comply Routine
·23 August 2007 – Fail Comp Corr Cent Rout
·8 November 2007 – Intimidation
·14 January 2008 – Fail to Attend Muster
·25 February 2008 – Fail Urine Test
·25 February 2008 – Poss Drug Implement
·25 February 2008 – Poss Create Proh Goods
·15 April 2009 – Fail Comp Corr Cent Rout
·6 September 2009 – Fail prescribed urine test
·9 May 2010 – Fail prescribed urine test
·13 October 2010 – Fight or other combat
·9 January 2011 – Possess Offen Weapon/Instu
·7 May 2012 – Fail prescribed urine test
·22 May 2012 – Fail Comp Corr Cent Rout
·3 June 2012 – Damage, Dest Property
·20 August 2012 – Fight or other combat
·4 May 2013 – Possess drugs
·5 June 2013 – Refuse, fail to supply urine sample
·17 June 2013 – Fail prescribed urine test
·8 July 2013 – Intimidation
·14 January 2014 – Ref, fail supply urin sample
·10 March 2014 – Ref, fail supply urin sample
·19 March 2014 – Ref, fail supply urin samp
·25 May 2014 – Fight or other combat
·1 September 2014 – Poss Create Proh Goods
·6 September 2014 – Poss Create Proh Goods
·11 December 2014 – Fail Prescribed Drug Test
·2 April 2015 – Possess Drug Implement
·30 September 2015 – Fail Prescribed Drug Test

YDJJ’s witness statement

YDJJ did not provide a statement in support of this application. However, he sought to rely upon a previous statement made by him on 23 September 2013, expressing why he should be permitted to remain in Australia. This statement is reproduced below:
For DIAC: Information to provide context for my appeal to remain in Australia.
[…] I am 36 years of age and I reside with my parents and my little sister in [Suburb A].
I am the eldest of the three siblings, my brother [Brother] is 35 years of age and my sister [Sister] is 16.
My father [Father] is 55 and works as a machine operator in [Suburb B] while my mother [Mother] is 51 and works at [a hotel] as a cleaner.
My father came to Australia in 1987 from Indonesia in search of a new start or at least a new beginning both for himself and for all the family. With my mother, [Brother] and I came the following year, 1988 to re-unite the family.
What prompted my father to come here was his older brother. [Uncle] and his older sister, [Aunt] had come to Australia ten years previously. They sent word that Australia was a beautiful country and a good place to find secure jobs and raise children including great opportunities for education.
My Mum and Dad have been useful additions to the Australian workforce each becoming reliable and dependable workers over many years.
Of course, I knew nothing of Australia except the kangaroos, koalas and Crocodile Dundee because I had come here as an eleven year old boy.
I could not speak the language but was keen to learn. In 1989, at the start of the year, I was enrolled in a Muslim school in [Surburb C] and at the same time, I slowly learnt to speak English through their ESL class.
Next, I started year 6, at [Public School A] where my English was improving nicely as children seem to pick up language quite OK.
I was a good student with a good attendance record and I was strong at sports and that’s where I learnt to play cricket and rugby league.
In 1990, I commenced at [Public School B] in year 7. I did well in my first year and had a good attendance record. I played soccer and represented [Public School B] in rugby league in 1991. School was good for me and I learned a lot through the different disciplines.
I left school during Year 10 and started working with [a retail telephone company] at [Suburb D].
My boss was called [Mr Boss] and I worked there part-time until I was offered a full-time position as a sales representative. I enjoyed this work and stayed with them for five years.
But I had started getting into trouble with the law at a young age and was in the juvenile justice system throughout my teenage years. I put this down to the youngsters I hung around with. I do not blame anybody for my wayward behaviour, nobody but myself that is.
I take full responsibility for my actions over the years. I had a good upbringing and still have a happy and supportive family. As a family, we travelled to Canberra, Snowy Mountains, the Central Coast and Dubbo and I have continued to travel since those days to get to know my country better.
I came to Australia in 1988 when I was 10 years old so that makes 25 years that I have called Australia home.
All of my family are here and I have never travelled back to Indonesia. Although I do have relatives in Indonesia, I hardly know any of them. Most have passed on, my grand-parents on both sides included.
But I cannot hide from my mistakes, I have made. For these mistakes, I think I’ve been punished appropriately.
What stands out is the fact that in 2006-2007, I received a warning from DIAC NOT to commit further crime in Australia.
Let’s face it, I blew it my chance!
This is difficult for me to ask but I am hoping to be given a further chance to make my way in Australia.
I would be lost without my family beside me. I wish to show them that the promise I showed in early years, I can still do something with. I have so many things I would like to achieve in Australia.
I want to find a wife, start a family and start anew with a satisfying job. I am quite determined over time to have my own business like say, a coffee shop, a restaurant or a phone shop.
It is my turn to help out my parents. It is clear to me that I have abused their efforts with me. It is time I stepped up to the plate and did something for them.
Despite the fact that I have put them through hell, they are still there for me. I am now 36 years old. I am not a kid anymore and have seen rather late that I have not attended to my responsibilities.
I feel that I have been punished for my offences of the past and know what a wrong life I was leading.
If given now a third chance, I will become a responsible citizen of Australia. I will do no crime. I will do the right thing by the law and by my family.
To send my back to Indonesia at this stage of my family’s lives would be an enormous break-up. As much for my siblings and parents as for me.
I have done programs to assist me to think rightfully. To ensure that I resolve conflict and solve problems with straight thinking…
At the end of the hearing, YDJJ was invited to make any other comments in relation to why he should be permitted to remain in Australia. He said words to the following effect: “whatever happens, happens. I will accept the decision and what I get, I’ll probably deserve. If I get this last chance though, I want to make things right. I want to make it worth it and try my best not to go back to jail and not use drugs or gamble. I know it’s not going to be easy but I will try my best. I’m doing it for my family and for myself”.

CONSIDERATION

If this application had been validly made, the Tribunal would have been required to assess the propriety of the Minister’s delegate’s revocation decision, balancing factors both in favour and against the revocation of YDJJ’s visa cancellation. I have undertaken this assessment using the prescribed considerations as set out in the Direction.

PRIMARY CONSIDERATIONS

Protection of the Australian community from criminal or other serious conduct

Paragraph 13.1 of the Direction states:
(1)When considering protection of the Australian community, decision-makers should 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

The nature and seriousness of the conduct

Paragraph 13.1.1 of the Direction sets out factors to be considered in determining the nature and seriousness of the conduct. In considering YDJJ’s conduct, the following parts of paragraph 13.1.1 are potentially relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed seriously.
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance or their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend increasing seriousness;
(e)The cumulative effect of repeated offending;
...
(g)Whether the non-citizen had reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …;
(h)…

Paragraph 13.1.1(a) – serious crimes

YDJJ’s extensive criminal history spanning 23 years is set out above in paragraphs [36] and [43]. The first conviction was recorded in 1993 when YDJJ was aged 16 and further convictions against YDJJ and prison offences have been made since then on a consistent basis, up until two years ago.
The most recent instances of YDJJ’s more serious offending behaviour were recorded in September 2010 for four offences of Robbery in company (for which he was sentenced to eight years and three months for two of those offences) and one offence of Break, enter and steal (for which he was sentenced to two years for this offence). YDJJ was also convicted of Robbery in April 2003, for which he was sentenced to eight years imprisonment, and Robbery in company in December 1997 for which he was sentenced to 18 months imprisonment.
It is well-established that the Tribunal cannot go behind a conviction and examine the facts on which it is based.[10] As noted by the Federal Court of Australia (Branson, Lindgren and Emmett JJ) in Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244:
... it is not open to the Tribunal to engage in any enquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal…
[10] Minister for Immigration and Ethnic Affairs v Gungor [1982] FCA 99; (1982) 4 ALD 575; Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 5 ALD 135; Saffron v Federal Commissioner of Taxation (No 2) (1991) 30 FCR 578; (1991) 102 ALR 19; (1991) 91 ATC 4646; (1991) 22 ATR 307. Mlinar and Minister for Immigration and Multicultural Affairs [1997] ALD 771 and Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 62 ALD 673 at [41] to [45].
However, that is not to be taken as denying the right of an applicant to inform the Tribunal about the circumstances of their conviction, providing they do not contradict the court’s findings in arriving at a conviction: Re Du Pont and Minister for Immigration and Ethnic Affairs (1983) 5 ALN N143.
The Tribunal is satisfied that the nature of all of the offences referred to in the paragraph [50] are appropriately characterised as serious, exhibiting extremely aggressive and threatening behaviour toward others on the part of the YDJJ during the robberies. This conclusion is based on the circumstances of those 2003 and 2010 convictions as detailed in the sentencing remarks for these offences, and the evidence given by YDJJ about the context and circumstances surrounding these offences and the offences in 1997, as set out above in paragraphs [40], [41] and [42]. The Tribunal has considered this evidence, bearing in mind the authoritative guidance provided in paragraphs [51] and [52], regarding how much of YDJJ’s evidence in relation to his offending behaviour it can accept, in light of recorded convictions.
In particular, the sentencing judge, in relation to YDJJ’s 2003 convictions, stated that “the robbery of the bank that deliberately terrorises law-abiding citizens going about their business, and indeed humiliates them is at the upper end of the scale of that crime”. The sentencing judge, in relation to YDJJ’s 2010 convictions, stated that his most recent crimes were “very serious” and that a full time custodial sentence was “the only appropriate sentence”.
YDJJ was asked by the Tribunal at the hearing whether he considered his offences as serious. YDJJ conceded that they were serious.

Paragraph 13.1.1(b) – crimes committed against vulnerable persons or government officials or representatives

It was not apparent from the evidence that when offending, YDJJ deliberately targeted vulnerable persons, such as minors, elderly persons, or persons with disabilities, nor was it apparent that YDJJ targeted government officials or representatives.
Accordingly, this factor does not appear to be relevant in the present circumstances. However, the Tribunal notes that the frequent victims of YDJJ’s offending behaviour were bank officials, post office workers, and other community members who were seeking to go about their day to-day-business in places where they should expect to feel safe. This was an aspect of the offending that was remarked upon by the sentencing judge as referred to in paragraph [54] above. On account of YDJJ’s decisions to engage in the various robberies, those employees and customers, many of them female, were not safe and were exposed to his threatening behaviour.
Paragraph 13.1.1(c) – sentence imposed by the Court
The Tribunal considers that the imprisonment sentences handed down for YDJJ’s offences referred to in paragraph [36] (1997 – 18 months; 2003 – eight years; 2010 – six years and three months) reflect the gravity of his criminal offending.
YDJJ has also served earlier shorter terms in prison. These shorter terms nevertheless reflect the seriousness of those earlier offences, in that the sentencing magistrates in those cases considered that an imprisonment term was warranted over other alternative forms of punishment. The Tribunal was not provided with the sentencing remarks or other information for his other convictions and at times, YDJJ said he could not recall what had happened. The fact remains, however, that in each case, the conviction was made and recorded and a sentence was imposed.
Over the course of his lifetime, YDJJ has been sentenced to imprisonment terms totalling 17 years and nine months. On any measure, this reflects the seriousness of the repeated offending behaviour by YDJJ.

Paragraph 13.1.1(1)(d) – frequency and whether any trend of increasing seriousness

The National Police Record and record of prison offences for YDJJ demonstrated that from a young age, YDJJ has committed offences frequently. He has 31 recorded criminal convictions between the period 1993 and 2010 and 43 prison offences in the period 1997 to 2015 inclusive.[11]
[11] Refer G-Documents G3 (National Police Certificate) and G6 (record of prison offences and punishments).
YDJJ committed his first bank robbery in 1997 at only 20 years of age. His offending conduct since then has plateaued. While it cannot be said that his offending behaviour has increased in seriousness over time, the Tribunal notes that YDJJ set the bar high at the beginning commencing his criminal offending with serious crimes early in his adulthood.

Paragraph 13.1.1(1)(e) – cumulative effect of the offending

The cumulative effect of YDJJ’s criminal offending is the loss of tens of thousands of dollars to various banks, post offices and individual persons; the damage to a number of vehicles that were taken, damaged and dumped; and the exposure of many victims in [two states] to YDJJ’s threatening behaviour and the likely distress to those victims as a result. The Tribunal is satisfied that the cumulative effect was significant.

Paragraph 13.1.1(f) – providing false or misleading information to the department

YDJJ has provided conflicting evidence to the Department about his reason for coming to Australia. In 2006, in a Personal Details Form completed by YDJJ and submitted to the Department, YDJJ stated that he came to Australia to “get away from [his] abusive father” and to “have better future in Australia”.[12] However, in YDJJ’s 2013 statement set out above in paragraph [44], he informed the Department that his father came to Australia in 1987 from Indonesia in search of a new start for himself and his family and YDJJ and his mother and brother followed him to Australia the following year.[13]
[12] Refer G-Documents G45/364.
[13] Refer G-Documents G18/152.
When questioned about this at the hearing, YDJJ said his father had been hard on him and that this was part of their culture but he was not prepared to go so far as to say that his father had abused him.
The Tribunal finds that the information YDJJ gave to the Department in 2006 was false or at least, misleading. However, the Tribunal does not place great stock in this as YDJJ made this statement a long time ago noting that YDJJ has a low level of communication and comprehension skills, and that English is his second language. The Tribunal was also generally satisfied that throughout the hearing, YDJJ was transparent to the best of his ability when giving evidence, and at times he gave evidence that was against his interests (as conceded by the Minister’s representative), in an effort to be cooperative with the Tribunal.

Paragraph 13.1.1(g) – prior warning

On 2 May 2007, the Department of Immigration and Border Protection (Department) issued a letter to YDJJ to advise him that a delegate of the Minister had decided not to cancel his visa on character grounds but instead to issue YDJJ with the following formal warning:[14]
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
[14] Refer G-Documents G41.
On 3 May 2007, YDJJ signed and returned to the Department an acknowledgment in the following terms:[15]
I, YDJJ, acknowledge that I have received the Notice of decision not to cancel visa under subsection 501(2) of the Migration Act 1958. I understand that I can again be considered for refusal or cancellation of any visa granted to me if further information of relevance comes to the attention of the Department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered.
[15] Refer G-Documents G42.

The Direction implicitly acknowledges that the Australian community accepts some risk in relation to the conduct of non-citizens, depending on its seriousness. The evidence before the Tribunal about the repeated nature of and gravity of YDJJ’s criminal conduct, and the adverse impact on the victims, supports the conclusion that the Australian community would expect the Minister not to revoke the cancellation of YDJJ’s visa, even after taking into his personal circumstances as referred to in these reasons for decision.

OTHER CONSIDERATIONS

International non-refoulement obligations – paragraph 14.1 of the Direction

This consideration is not relevant in this application.

Strength, nature and duration of ties – paragraph 14.2 of the Direction

The Tribunal acknowledges that YDJJ has been living in Australia for approximately 30 years or three-quarters of his life being a very significant period of time.
YDJJ gave evidence in relation to some continuing relationships with certain friends, based in [City A], although not all of those connections could be characterised as positive. YDJJ expressed a preference to move to Melbourne eventually, if he is released, so he could be away from those negative influences. There are some character references in the G-Documents (G45/373 and 374) from YDJJ’s sister-in-law and a friend. However, these character references date back to 2006 and carry negligible weight with the Tribunal being so out of date. They also state a belief that YDJJ has changed his ways, has learnt from his mistakes, will do the right thing and should be given another chance. After these letters, YDJJ committed the multiple robberies and the break, enter and steal offence that he was convicted for in 2010.
No further character references or witness statements from YDJJ’s family and friends post-dating the 2010 conviction were lodged as evidence in support of YDJJ’s application. Specifically, the Tribunal has no current evidence before it from YDJJ’s family members to understand his family members’ attitudes to YDJJ not being permitted to remain living in Australia.
YDJJ gave evidence that had no girlfriend or wife in Australia, nor does he have any children.
However, YDJJ gave evidence from which the Tribunal indicating that YDJJ remains in phone contact with his parents and his siblings residing in Australia. The Tribunal is satisfied that it will cause YDJJ distress to be deported from a country where his family still reside. However, the Tribunal takes into account that his family members would be able to visit him in Indonesia if he returns there and notes the evidence that some of his family members have travelled back to Indonesia to visit on occasion following their migration to Australia.
On balance, the Tribunal considers that to some degree this consideration weighs in favour of the revocation of the visa cancellation. Having regard to paragraph 14.2(1)(a)(i) of the Direction, the Tribunal has afforded lesser weight to this factor because YDJJ started offending a relatively short time, five years, after his arrival in Australia. The Tribunal has not placed increased weight on this factor on account of paragraph 14.2(1)(a)(ii) of the Direction, because although YDJJ spent time in gainful employment and teaching boxing to young people at a community centre, those contributions to the Australian community by YDJJ appeared to the Tribunal to be modest. For at least half of YDJJ’s adult life during his time in Australia (approximately 14 years), YDJJ was in prison.

Impact on Australian business interests – paragraph 14.3 of the Direction

There is no impact on Australian business interests arising in YDJJ’s case.

Impact on victims – paragraph 14.4 of the Direction

The Tribunal has considered a number of matters in relation to the risk of harm to the Australian community and potential victims as set out in paragraphs [73] to [74] above, should YDJJ be permitted to remain in Australia and he reoffends. The Tribunal has already concluded that this weighs against the revocation of the visa cancellation.
The Tribunal does not consider that any of YDJJ’s prior victims are at risk should he be permitted to remain in Australia. There was no evidence to suggest that YDJJ had any intention to cause harm to those victims by way of retaliation or otherwise.

Extent of impediments if removed – paragraph 14.5 of the Direction

Under paragraph 14.5(1) of the Direction, the Tribunal has taken into account a number of factors set out below to consider the extent of any impediments that YDJJ may face if removed from Australia to Indonesia, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).

YDJJ’s health and age

YDJJ gave evidence that he had asthma but that he had managed any asthma attacks by the use of Ventolin. He said he has some back pain but this has been managed with the use of pain killers. He gave evidence that he had put on a lot of weight but at the hearing this did not appear to affect his physical capabilities. He also gave evidence that he had been depressed in the past and had taken anti‑depressant medication but that he had ceased this medication. The Tribunal concludes that despite suffering from some health issues which appeared to be actively managed by medications, YDJJ was in moderately good health. He is of a mature age, being 40, but he is not elderly.
The Tribunal does not consider YDJJ’s age and health to be an impediment to establishing himself and maintaining basic living standards if he were to return to Indonesia.

Language or cultural barriers

YDJJ has expressed concern about returning to Indonesia because he described his understanding of the Indonesian language as “faulty”.
YDJJ’s first language is Indonesian and he spent the first 11 years of his life in Indonesia. YDJJ gave evidence that he still converses with his father in Indonesian most of the time, as it was part of “their culture” to do so. He said that he mainly spoke to his mother in English as she was not so concerned about “culture”. While the Tribunal accepts that YDJJ is probably more comfortable communicating in English, I am satisfied that he is capable of doing so in Indonesian if he is required to do so.
A number of times during the hearing, YDJJ referred to matters pertaining to “our culture” when referring to the conduct of his father in the past and also when referring to the use of the Indonesian language in their family communications. The Tribunal gained an impression the YDJJ identified with and had a good understanding of Indonesian culture.
In conclusion, the Tribunal does not consider YDJJ to have a substantial language or cultural barrier that would serve as an impediment to establishing himself and maintaining basic living standards if he were to return to Indonesia.

Social, medical and/or economic support available in Indonesia

There was no evidence to suggest that YDJJ would be able to rely on support from extended family members in Indonesia if he was required to return there. YDJJ said that he has an Auntie and cousins in Indonesia but YDJJ described that he had not been in touch with them for an extended period of time. The Tribunal is satisfied that his relationships with his extended family in Indonesia are limited and that he may not be able to rely upon them to provide him with support.
However, during the hearing, when questioned whether his parents were likely to support him financially, if he required it, once released from prison, he confirmed that they would do so. The Tribunal notes YDJJ’s evidence that his father was employed on a full-time basis (presently on workers’ compensation) and his mother operated her own catering business, which YDJJ described as going well.
If YDJJ returned to Indonesia, the Tribunal is satisfied that his parents are likely to provide him with financial assistance to establish himself and maintain a basis standard of living, should he require it.
The Tribunal takes into account that YDJJ has had some experience working in construction and as a packer. He was also involved in some employment while he was in prison. It considers that YDJJ may be able to obtain employment in Indonesia using his acquired skill base from that work experience. The Tribunal accepts that he may face some challenges finding such employment given his extensive criminal record. However, if YDJJ does not succeed in finding work, he could rely on financial support from his parents.

CONCLUSION

YDJJ first arrived in Australia as a child. He has spent approximately three-quarters of his life living in Australia.
The Tribunal acknowledges that if YDJJ is not permitted to remain in Australia, he would be returned to Indonesia where he was born, not having visited that country for approximately 30 years. It is place where he is likely to have little or no local network of people to call upon for support. However, YDJJ’s parents remain as a support base for him, albeit at some distance as they will remain living in Australia, as will YDJJ’s siblings and their respective families. The evidence suggests they will continue to support YDJJ and to visit him in Indonesia and it is noted they have travelled back to Indonesia at times since their immigration to Australia.
Through YDJJ’s convictions, and most notably, those in 1997, 2003 and 2010 and the 43 prison offences committed while he in prison, YDJJ has repeatedly demonstrated that he does not have regard for Australian laws, Australian institutions and others within in the Australian community, including innocent citizens going about their daily business.
Paragraph 6.3(6) of the Direction provides that remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law-abiding:
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 should be allowed to come to, or remain permanently in, Australia.
Given the extent of YDJJ’s criminal offending, the Tribunal is unable to conclude that during the time he has lived in Australia, YDJJ has acted in a way that appropriately reflects his responsibilities as a visa holder.
Further to the various considerations already addressed in these reasons for decision, the Tribunal acknowledges that YDJJ has had a partially disruptive childhood. Moving to a new country, not knowing the spoken language, no doubt presented significant challenges to YDJJ and his family, at least for a few years.
The Tribunal acknowledges that YDJJ has expressed remorse in relation to some of his offences, although he would also often seek to externalise the blame for what took place, for example, he said he did it because he was following the group or that he did not think before he would act or that certain behaviour in jail is justified in the jail environment. The Tribunal acknowledged that at times, he gave evidence accepting responsibility for his past criminal conduct, and that he had promised to his sister that he would change his ways and was committed to this promise. However, those comments are at odds with the repeat nature of YDJJ’s offences. The Tribunal has found the likelihood of YDJJ reoffending is high as he has repeatedly engaged in similar conduct, often while on parole, and with disregard to a formal warning that had been issued to him by the Department in 2007.
The evidence demonstrated that when tested, there was little or no regard by YDJJ for the consequences and victim impacts of such repeated offending, despite the evidence he gave that he was committed to changing his ways.
After weighing up all of the evidence and the applicable law, the Tribunal concludes that the need to protect the Australian community against YDJJ’s criminal misconduct, coupled with the expectations of the Australian community, as set out in these reasons for decision, greatly outweighs the other considerations.
If the Tribunal had jurisdiction to review the decision of the Minister’s delegation not to revoke the cancellation of YDJJ’s visa, it would have exercised its discretion not to revoke the visa cancellation for the reasons set out above, taking in account the various considerations as relevant under the Direction. I do not consider that YDJJ’s visa cancellation should be revoked. I would have affirmed that decision of the Minister’s delegate.

135. I certify that the preceding 134 paragraphs are a true copy of the reasons for the decision herein of Member K Parker

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

Associate

Dated: 20 November 2017

Date of hearing:	13 November 2017
Advocate for the Applicant:	Self-represented
Solicitors for the Applicant:	Self-represented
Advocate for the Respondent:	Mr Jamie Grant
Solicitors for the Respondent:	Sparke Helmore

[2017] AATA 2591

14 November 2017

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Immigration

Administrative Law

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