YJMD and Minister for Immigration and Border Protection (Migration)

[2017] AATA 1022

YJMD and Minister for Immigration and Border Protection (Migration) [2017] AATA 1022 (30 June 2017)

Division:GENERAL DIVISION

File Number(s):2017/2380      

Re:YJMD  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:30 June 2017

Place:Sydney

The decision under review is affirmed.

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

Senior Member A Poljak

CATCHWORDS

IMMIGRATION – mandatory cancellation – character test –substantial criminal record – Direction 65 – protection of the Australian community – seriousness and nature of the relevant conduct – the risk conduct may be repeated – best interests of minor children in Australia – expectations of Australian community – decision affirmed 

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member A Poljak

30 June 2017

INTRODUCTION

1. YJMD (“the applicant”) is a citizen of Fiji who first arrived in Australia at age eleven on 24 March 1988. He was granted a Class BB Subclass 155 Five Year Resident Return visa on 15 November 2005 (“visa”).

2. The applicant has been subject to the mandatory visa cancellation provisions of section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) as a result of the sentence of three years imprisonment imposed for an offence of ‘wound person with intent to cause grievous bodily harm’.

3. Section 501CA(4) of the Act provides that the Minister for Immigration and Border Protection (“the Minister”) may revoke a mandatory cancellation decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked.

4. The applicant made a request for revocation of the mandatory cancellation and on 18 April 2017, a delegate of the Minister, after consideration of representations made by the applicant, decided not to revoke the mandatory cancellation. This is the decision under review before the Tribunal (“the decision”).

5. The power of the Tribunal to review the decision not to revoke the decision to cancel the applicant’s visa is provided by section 500. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No.65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA which commenced on 22 December 2014 (“the Direction”).

6. The issues before the Tribunal are whether the applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether there is another reason why the mandatory cancellation should be revoked (s 501CA(4)(b)(ii)).

   CHARACTER TEST

7. The applicant has been sentenced to three years’ imprisonment. It is not in dispute that the applicant has a substantial criminal record in accordance with section 501(7)(c) of the Act and therefore fails the character test. I must therefore consider whether there is another reason to revoke the original cancellation decision. This is a discretionary power.

8. Paragraph 7 of the Direction sets out how the discretion is to be exercised. Informed by the principles in paragraph 6.3, I must take into account the considerations in Part C, in order to determine whether to revoke the mandatory cancellation of the applicant’s visa.

9. Under the heading General Guidance (paragraph 6.2), the Direction provides in part:

   (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.

   …

10. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion should be approached. These principles are:

    (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 the 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 a non-citizen’s visa should be cancelled, or their visa application refused.

11. The Direction, at paragraph 8, requires the decision-maker to take into account the primary and other considerations relevant to the individual case. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations.

12. The three primary considerations which the Tribunal must take into account are set out in paragraph 13(2) of the Direction as follows:

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

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

    (c)Expectations of the Australian Community.

    PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

13. In determining this primary consideration, I note that I must have regard to matters set out in paragraph 13.1, namely:

    (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…

    (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.

    (a) The nature and seriousness of the Applicant's conduct to date

14. Paragraph 13.1.1 of the Direction sets out factors that I must have regard to when considering the nature and seriousness of the applicant’s criminal offending or other serious conduct.

15. The applicant’s offending commenced in 1992, a few years after arriving in Australia. He continued to offend during his teenage years, throughout his 20s, and into his 30s. His complete criminal history includes convictions for common assault, assault an officer in the execution of duty, assault occasioning actual bodily harm, resisting officer in the execution of duty and larceny or stealing. The applicant has also been convicted on many occasions for driving related offences: driving with low/middle/high range prescribed concentration of alcohol, ‘drive recklessly/furiously or speed/manner dangerous’, and drive while disqualified. The applicant received sentences of imprisonment or periodic detention for these offences on 14 May 1999, 19 June 2002, 20 August 2004, 6 April 2005, 14 July 2005 and 17 September 2007.

16. On 20 August 2004, 6 April 2005 and 17 September 2007, the applicant was made subject to supervision orders requiring that he obey all necessary directions for counselling, educational development or drug and alcohol rehabilitation.

17. On 16 October 2015, the applicant was convicted of ‘wound person with intent to cause grievous bodily harm’ in the Penrith District Court. He was sentenced to a three-year period of imprisonment from 16 October 2015 to 15 October 2018 with a non-parole period of 14 months concluding on 15 December 2016. The particular circumstances of the offence are detailed in the sentencing remarks of Judge Madgwick and the Agreed Facts on Sentence, which I have carefully read and considered.

18. The sentencing Judge remarked (identifying names have been removed):

    The prisoner lived opposite the victim at Regents Park. They had been neighbours for a year and a half. At 11:30am on Sunday, 16 September 2012 the victim and three associates were sitting on the curb outside the offender’s house next to the victim’s motor vehicle. The offender and his partner… came home in the car. She drove into the street, made a U-turn at its end, and double parked a little in front of the victim’s car. The prisoner got out of his car and approached the victim and his associates. He said, “I’ve had a shit day. This is my street, this is my car spot, move your fucking car”. A verbal confrontation ensued and the offender pushed his chest against the victim’s chest several times, forcing the victim to move back.

    The victim said, “relax, or move my car now, it’s all right, we’re neighbours,” and he moved, parking it in his own driveway. The victim then returned to the offender and said, “look, I’m sorry, we neighbours, let’s not do this,” and they then moved away from each other. The victim returned to his own side of the road and saw the offender pacing up and down the front lawn of his own house. After some time the offender went inside the house and began to drink beer.

    A friend of the accused … arrived at about 2.30. He saw the prisoner consume five bottles of beer. The prisoner suggested that he would go over to the victim’s house and “do something about it”. [The applicant’s friend] sensibly told him to let the matter go, but the prisoner said, “it’s in me, I can’t let it go.” The prisoner left his own home at about 6:10pm, taking with him a 60cm long machete. He knocked on the victim’s door but was informed by the victim’s mother that her son was not home and she asked him to leave or else she would contact the police.

    He did not leave but remained in the premises and the victim’s mother rang the police. Shortly after the victim came home, stopped his car, and saw the prisoner, [the applicant’s partner] and the friend… in the middle of the street, and saw the offender was holding a machete.

    The prisoner ran towards the victim, the machete above his head, threatening to kill the victim. The latter reversed his car and drove it into his own driveway, as far from the street as he could. He got out and ran to the back of his car. The prisoner cornered him and was repeatedly threatening to kill him. He brought the machete down, striking the top of the victim’s head. Blood immediately started running down his head and across his face and it caused him great pain. The victim defended himself by throwing some punches which caused the prisoner to drop the machete. The pair then began wrestling. The victim managed to push the offender out into the middle of the street, away from the machete, and punched the offender several more times.

    The offender fell down, but he continued to threaten the victim, saying, “I’m going to kill you.” The victim ran away to the front of his own home where he staunched the bleeding from his head. The prisoner continued to yell, “I’m going to get you, you’re fucking dead.” Soon after, police and ambulance arrived. The prisoner ran away.

19. In relation to the harm to the victim, Judge Madgwick noted that the victim suffered a head wound comprising a 6-7 cm laceration 1 cm deep requiring 6 stitches. He also had a laceration to his left ear, where the top of his ear had been detached as a result. The severed ear was joined back on. His Honour said:

    The claimed effects on the victim were quite severe and, apart from the physical injury, he seems to have had a very bad emotional and psychological reaction to the unprovoked assault upon him. The degree of harm suffered is considerable. The offence is aggravated in that the victim had withdrawn to what the offender personally seemed to see as the victim’s side of the street and the violence was actually - premeditated is too strong a word, but pre-contemplated, and he took a big knife, which has always attracted great opprobrium in the Australian community.

20. The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy and accordingly, any such sentence must be viewed as a reflection of the seriousness of the offence involved.

21. Having regard to the factors relevant to the present matter, I am satisfied that the applicant’s offence of which he was convicted on 16 October 2015, is very serious because it involved the use of an offensive weapon, violence and death threats. Additionally, the sheer number of recorded offences against the applicant and the cumulative effect of such offending are further aggravating features. These factors weigh very heavily against the exercise of the discretion to revoke the cancellation of the applicant’s visa.

    (b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

22. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2 of the Direction. This paragraph provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I must have regard to, cumulatively, the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant re-offending.

23. The applicant provided two statutory declarations in these proceedings, dated 25 May 2017 and 19 June 2017, in which he details his efforts to rehabilitate. He also speaks of his remorse and shame and that he takes full responsibility for his actions. While I accept that the applicant has completed a number of courses in prison, including narcotics/alcoholics anonymous, Defuse Program and Positive Lifestyle Program, he has yet to be tested in the community. The applicant’s evidence is that he receives weekly counselling from his pastor and has booked an appointment with a psychologist in the near future. These are all positive signs that the applicant is taking his rehabilitation seriously. However, the applicant has been in an artificial environment and free from temptation while he has been detained. This will not be the case if he is released into the community. How the applicant will handle such temptations is still unknown. The risk of the applicant relapsing into alcohol and/or drug abuse is a factor which I consider to be important.

24. The evidence shows that alcohol abuse was a significant factor that gave rise to the applicant’s criminal offending. At hearing, the applicant, for the first time, acknowledged that he also had a history of drug use. He said that it started in his 20s and continued into his 30s. His drug abuse predominantly consisted of smoking ice, which continued for many years up until 2012. The applicant says that he is now clean and hasn’t engaged in any drug use since his last offence in 2012.

25. Tim Watson-Munro, consultant forensic psychologist, examined the applicant on 29 July, 6 and 12 August 2015 and provided a written report dated 17 September 2015. He recorded in the report that the applicant denied using illicit drugs but conceded at times to being a heavy drinker. Mr Watson-Munro again examined the applicant on 3, 4 and 17 February 2017 and provided a written report dated 22 March 2017. In this report, he said, “on an encouraging note he does not use illicit drugs”. At hearing, Mr Watson-Munro could not say with certainty whether or not the applicant disclosed to him his drug use, but said that if he had, he would have included it in his report because it was a relevant factor, particularly in regards to treatment modality.

26. In his report dated 22 March 2017, Mr Watson-Munro opined that the applicant does not pose a “major” risk to the Australian community if he is released. At hearing, Mr Watson-Munro confirmed this finding but reiterated that it came with certain caveats. He said the applicant requires professional supervision and treatment. He said that if the caveats were not adhered to, the applicant was at risk of relapse. On an actuarial basis, Mr Watson-Munro said that the applicant is at a medium to high risk of reoffending. However, he said, taking into account other factors such as the applicant’s supportive relationship with his fiancée and support from his family and pastor, the risk of the applicant relapsing and reoffending is reduced to a low risk.  Despite this, he said that in the absence of professional treatment, the best predictor of future behaviour is past behaviour. Mr Watson-Munro said at hearing that the applicant’s efforts towards rehabilitation to date have not gone far enough because he hasn’t yet received the professional treatment he needs. He said that since the applicant had been in a highly artificial environment in prison and detention, his rehabilitation has not yet been tested in the community. Despite the weekly counselling the applicant has been receiving from his pastor, Mr Watson-Munro said that the applicant needed professional psychological treatment and professional help with alcohol and drug abuse. He hasn’t had this type of treatment to date.

27. I consider even a low risk of reoffending to be significant given the nature of the applicant’s offences to date. The applicant’s rehabilitation is premised on a number of caveats and there is a real risk that if the applicant fails to undertake professional treatment for his anger issues and his drug and alcohol use, he could re-lapse into his past behaviour.

28. The applicant provided to the Tribunal numerous statements and letters from his family members, former employers, his fiancée and the pastor at The Potter’s House Christian Centre in Bankstown, all of which I have read and considered.

1. The letters speak of the applicant’s work ethic and the support the applicant has from his family and local community. However, I note that the applicant had the support of his family and local community at the time of his criminal offending. It plainly did little to deter him. This is also the case for the support he received from his fiancée. I acknowledge that the applicant’s criminal offending appears to have reduced since they met in late 2008. But he also had the support of his fiancée in 2012, when he committed his most violent offence. His relationship with his fiancée did little to deter him at that time. It is also plain on the applicant’s evidence that his relationship with his fiancée did little to deter him from engaging in drug use. His evidence is that he continued to smoke ice throughout their relationship, until 2012, without her knowledge. 

2. The applicant relies on the NSW Department of Correctional Services Case Note Report (“the report”) to demonstrate that the applicant was a ‘model inmate’ and has changed his ways. I have reviewed the report carefully. I acknowledge that the report speaks highly of the applicant and even includes messages of well wishes from staff members. However, the report only takes the applicant so far. The report specifically refers to the applicant’s aptitude and attitude towards work. It also speaks of his trustworthiness and relationship with other inmates. I acknowledge that the report does not contain any record of the applicant responding in anger or hostility. However, despite this positive and encouraging record, I consider it to be of limited weight because the applicant’s work history is not in issue. The applicant appears to have continued to be a well-regarded employee during his many years of criminal offending. Nothing has changed in this respect. Also of significance is that while incarcerated, the applicant was free from alcohol, one of the key contributing factors to the applicant’s criminal offending and anger issues.

3. I acknowledge that at hearing, the applicant was forthcoming about his past drug use. Despite this I did not find him to be particularly remorseful or insightful about his criminal offending. He expressed that he was “embarrassed” and “ashamed” about his actions but I was not convinced that he has any insight into the consequences of his actions. In regards to his criminal offending, he struggled to remember the details of any of the offences of which he had been convicted. When questioned about the circumstances surrounding his last conviction on 16 October 2015, the applicant glossed over how the victim came to be injured. It was only when the applicant was pressed and shown the agreed facts on sentence that he accepted the circumstances surrounding the offence. Even then, the applicant hesitated before accepting the agreed facts.

4. Having regard to all of the evidence before me and the applicant’s record of criminally offending, I am satisfied that the nature of the harm to the Australian community, should the applicant engage in further criminal and/or serious conduct of the nature of that which he has engaged in the past, would be serious, and perhaps extremely serious. A repetition of the offences would certainly involve a degree of physical and/or psychological harm to members of the Australian community. Additionally, repetition of offences such as larceny, assault and resisting arrest would cause feelings of insecurity in the Australian community.

5. This primary consideration weighs heavily against a decision to revoke the decision to cancel the applicant’s visa.

   PRIMARY CONSIDERATION (B) – THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

6. The applicant identifies his five nephews and nieces as minor children in his life. The Minister contends that this consideration should be given limited weight in circumstances where the applicant does not have parental responsibility for the children and is unlikely to play a positive parental role.

7. Having particular regard to paragraph 13.2(4)(a)-(h) of the Direction, there are a number of factors that must be considered, where relevant, in determining the best interests of minor children. The Direction states that less weight should generally be given when the relationship is non-parental; the extent to which the non-citizen is likely to play a positive parental role in the future; and the negative impact of the non-citizen’s prior conduct and any likely future conduct on the minor children.

8. Having considered all the evidence before me and the relevant factors identified in the Direction, I find that this primary consideration has limited weight in favour of revocation.

   PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

9. Paragraph 13.3(1) provides:

   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 will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.

10. Clearly the applicant has not met the expectation that as a non-citizen he will obey the laws of this country.

11. In making the Direction, the Minister has made it clear 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” (at paragraph 13.1(1)). The principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding.

12. Relevant to this matter, I have had particular regard to clause 6.3(5) of the Direction that states in part, ‘...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.’ The applicant first arrived in Australia with his family at age 11. The applicant very quickly commenced criminally offending from the age of 14. The crimes which he committed involved larceny, stealing, dangerous/reckless/furious driving, driving under the influence of alcohol, resisting arrest, assault of an officer, the use of weapons, common assault, threatening and causing harm to members of the Australian community. Given the nature, seriousness, and lengthy period of his criminal conduct, I am satisfied that the Australian community’s expectation would be that the applicant’s visa should remain cancelled.

13. While the Australian community has greater tolerance for people who have resided in Australia for a long time and from a young age, given the applicant’s long history of offending and the nature of his last offence, the tolerance of the community would have surely run out.

14. This primary consideration weighs heavily against a decision to revoke the decision to cancel the applicant’s visa.

    OTHER RELEVANT CONSIDERATIONS SET OUT IN DIRECION NO. 65

15. Paragraph 14 of the Direction provides for other considerations relevant to deciding whether the cancellation of the applicant’s visa should be revoked include the strength, nature and duration of his ties to Australia, impact on victims and the extent of any impediments if the applicant were removed from Australia.

16. Other considerations such as international non-refoulement obligations and the impact on Australian business interests are not relevant considerations in these proceedings.

    Strength, nature and duration of ties to Australia

17. Paragraph 14.2(1) of the Direction sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the person began offending soon after arriving in Australia; and

    (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

18. As already stated the applicant arrived in Australia at the age of 11 and has resided continuously in Australia since that date. He came to Australia with his family and spent the latter part of his childhood here.

19. It is evident that the applicant has support from his family and church. I acknowledge that the applicant’s immediate family resides in Australia and I accept that he has strong family ties to Australia. In particular, the applicant is engaged and they intend to marry as soon as possible and start a family. His fiancée’s commitment to him is clear and she was present at the hearing.

20. While the applicant’s strength, nature and duration of ties to Australia favour the applicant, these factors are significantly outweighed by the relevant primary considerations.

    Impact on victims

21. It is plain on the evidence, that the offence in 2012 had a significant and lasting impact on the victim and his family for a number of years. Some effects will be with the victim for life, such as his physical scars. I also note the sentencing remarks of Judge Madgwick in which he states, “the claimed effects on the victim are quite severe and, apart from the physical injury, he seems to have had a very bad emotional or psychological reaction to the unprovoked assault upon him. The degree of harm suffered is considerable.”

22. This factor weighs against revocation.

    Extent of impediments if removed

23. I note that the applicant has concerns about returning to Fiji because he claims that he has no family or social support. The applicant’s fiancée still has family in Fiji. Namely, her mother and some siblings. At hearing, the applicant advised that he had a good relationship with his mother in law. It is not unreasonable to consider that his fiancée’s family would assist the applicant in re-assimilating.

24. There is no substantive language or cultural barrier to the applicant returning to Fiji. The applicant speaks Hindi and English and gave evidence that he was able to communicate with his fiancée’s family and the locals. There is also no evidence before me that the applicant is affected by any health conditions affecting his ability to obtain employment.

25. While there may be some inconvenience for the applicant and a period of adjustment to life in Fiji, I am not satisfied that there are any significant impediments.

    CONCLUSION

26. For all the above reasons, I am satisfied that the decision to not revoke the cancellation of the applicant’s visa is the correct decision.

27. The decision under review is affirmed.

I certify that the preceding 55 (fifty –five) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

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

Associate

Dated: 30 June 2017

Date(s) of hearing:	22 & 23 June 2017
Counsel for the Applicant:	T Baw
Solicitors for the Applicant:	R Koo, Craddock Murray Neumann
Solicitors for the Respondent:	W Sharpe, MinterEllison