YNNK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 642
•26 March 2021
YNNK and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 642 (26 March 2021)
Division:GENERAL DIVISION
File Number(s): 2019/7244
Re:YNNK
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Rebecca Bellamy
Date:26 March 2021
Place:Brisbane
The decision under review is affirmed.
.........................[SGD]...............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa - where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Mental Health Act 2000 (Qld)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
v Minister for immigration and Border Protection [2019] FCAFC 202
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
26 March 2021
THE ISSUE BEFORE THE TRIBUNAL
The Applicant is a 38-year-old citizen of New Zealand. In 1987, at the age of five, he relocated to Australia with his parents and five siblings.[1]
[1] Exhibit G1, Section 37 T-documents, T16, page 78; T21, page 118.
On 8 May 2018, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) under
s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[2]
[2] Ibid, T3, page 10.
The Applicant subsequently asked the Respondent to revoke the cancellation and made representations in support of that request.[3] Pending the outcome, the Applicant voluntarily returned to New Zealand and has remained there since 14 June 2018.
[3] Ibid, T15, page 71.
On 3 October 2019, the Respondent decided not to revoke the cancellation.[4] On 5 November 2019 the Applicant lodged an application for review of that decision.[5] The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
[4] Ibid, T12 page 49.
[5] Ibid, T1, pages 1 to 3.
The hearing of this application proceeded on 26 and 27 August 2020. The Applicant gave evidence by video conference from New Zealand. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
In February 2018, the Applicant was sentenced to 12 months imprisonment with a non-parole period of three months. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[9] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on
s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[9] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[10]
[10] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C provides for the decision-maker to take into account “Primary Considerations”[11] and “Other considerations”.[12] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[11] The Direction, paragraph 13.
[12] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(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.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[14]
[13] [2018] FCA 594.
[14] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
According to the Applicant, he started using heroin when he was 16 years old and stopped at around the age of 20 or 21. Before he stopped, he was a “full-blown addict” for two years, having started off using it socially.[15] Even after he stopped, he occasionally used it until perhaps six months or a year before his daughter was born[16] (his daughter was born in 2006 when he was 24 years old). He said that in 2004 or 2005, he got a Naltrexone implant for nine to 12 months. The implant blocks opiate receptors so there is no point in using heroin. This straightened the Applicant out.[17] The Applicant attributed his offending when he was not using heroin to his use of “pills”, being temazepam and “benzos” which were prescribed to him but he took to excess.[18]
[15] Transcript, page 15, lines 16 to 45.
[16] Transcript, page 18, lines 15 to 30; page 117, lines 10 to 43.
[17] Transcript, page 18, lines 34 to 46.
[18] Transcript, page 17, lines 20 to 44.
The Applicant was 17 years old when he was first convicted of an offence. Between 1999 and 2018, the Applicant committed over 30 criminal offences,[19] served six periods of imprisonment, incurred over 30 traffic infringements,[20] and his license was cancelled five times.[21]
[19] Exhibit G1 Section 37 T Documents, T13, pages 62 to 66.
[20] Exhibit R2, Respondent’s Tender Bundle, TB2, pages 99 to 105.
[21] Ibid, pages 106 to 107.
On 8 October 1999 the Applicant failed to properly dispose of a needle and syringe. For that he was fined $250. Over the next four years he continued to offend relatively frequently.
His offences included the following:
ocontravene direction or requirement;
opossession of dangerous drugs (amphetamine[22]) and possession of utensils or pipes;
obreach of bail (x 2);
oenter or remain in dwelling and commit indictable offence;
oenter dwelling with intent to commit indictable offence x 2. The Applicant smashed a window and stole jewellery from inside the dwelling[23];
ounauthorised dealing with shop goods, arising from him stealing three items of clothing[24];
opossession of property suspected of being tainted, being perfume and shampoo[25];
ostealing x 2, arising from the Applicant stealing a wallet, bag and stock from a shop[26];
oattempt to dishonestly apply to own use property belonging to another, arising from the Applicant attempting to use a stolen card to buy a baseball cap[27];
o“fraud - dishonestly obtains property from another” and receiving stolen property. He used a mobile phone that did not belong to him as collateral to obtain a $200 loan; and
owilful damage.
[22] Exhibit R2, Respondent’s Tender Bundle, TB1, page 8.
[23] Ibid, pages 31 to 32
[24] Ibid, pages 13 to 18.
[25] Ibid, page 15.
[26] Ibid, pages 23 to 24.
[27] Ibid, pages 27 to 29.
During this four-year period the Applicant was also convicted of three offences of assault/obstruct police arising from two incidents. The first occurred in 15 April 2011. The police report[28] indicates that the Applicant was detained by police in relation to a breach of the peace. The police asked him to go to the side of the footpath; he then turned around and shoved a police officer in the chest, causing the officer to stumble back a few paces. The Applicant denied having done that, however he then said, “I only pushed the police officer” and:
“There’s a lot of them that have put on assault and a shove when there’s no assault occurred. The instructions that are given is ‘put him in handcuffs’ when my arms like, were in pain, yes”.[29]
[28] Exhibit R2, Respondent’s Tender Bundle, TB1, page 6.
[29] Transcript page 99 lines 33 to 37.
The Applicant admitted to having pleaded guilty to the offence. Based on his conviction for assault, I find that he did shove a police officer in the chest.
The second incident occurred 26 September 2002. The police records[30] indicate that the Applicant had been detained for a drug search and he would not cooperate. When the police attempted to move him to the rear of the police vehicle, he “put up a hefty struggle and elbowed the complainant in the head causing pain and discomfort”. The Applicant said that he recalled struggling but did not recall elbowing a police officer in the head. He said police had found drugs in a car occupied by him and his girlfriend at the time, she had told the police they were hers, and therefore he considered the police had no right to arrest him, so he struggled with them.[31] Based on his convictions for assault and obstruct, I accept the police version;
[30] Exhibit R2, Respondent’s Tender Bundle, TB1 page 21.
[31] Transcript page 100.
The Applicant was dealt with for these offences in 13 separate sentencing episodes. Initially he was sentenced to fines and community-based orders, namely probation and community service.
The Applicant breached the probation order. He also breached the community service order and was resentenced to six months imprisonment, suspended for nine months. He then breached the suspended sentence by committing property offences. He was sentenced to three months imprisonment which he was required to serve concurrently with the suspended sentence of imprisonment. In addition, the court recommended that he receive psychiatric and psychological treatment for depression, anxiety and anger management.
On 15 January 2004, the Applicant was sentenced to two months imprisonment for dishonesty offences and to nine months imprisonment for enter dwelling with intent to commit an indictable offence (x 2). The sentence was suspended after six weeks for a period of 18 months. i.e. he served six weeks and was then released on the condition that he be of good behaviour for 18 months. He breached that condition in July 2004 by possessing and uttering counterfeit money knowing it to be counterfeit, for which he was sentenced to three months imprisonment and required to serve three months of the suspended sentence (concurrent). He had used a fake $100 note to purchase cigarettes and was given change of $90.20. He then left the store. It was a shop that he frequented, and he made full admissions to the police.[32] In the hearing, the Applicant said that he was given the fake $100 note by a friend and it was a very poor fake. He said when he used the note he had thought it was a $10 note and did not expect to get change from it but he “went along with it”.[33] He used the phrase “went along with it” several times as though he was not the protagonist. When queried about this, the Applicant admitted that he had put the fake $100 note in his pocket, that he had retrieved it from his pocket when he bought the cigarettes, and that he knew he had given the cashier the fake $100 note when she held it up to examine it.[34]
[32] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 37 to 38.
[33] Transcript, page 97.
[34] Transcript, page 98.
The Applicant added that he had subsequently been contacted by the shop about paying with a fake note and implied that he had not had an opportunity to return the change before the police got involved, saying:
“…they later called up, and then before I could return it, they didn’t – yes, they called up my house and there was – I was asleep, and then whilst – I didn’t even get woken up to go back to them and give them the change, because I still had the change in my pocket, they called the police and yes.”
The lawyer for the Respondent asked the Applicant:
“So do you want the Member to find that you – that you had a change of heart at some point after the purchase and you were planning to give the money back, but you didn’t get to do it in time before you got arrested?
The Applicant stopped short of agreeing, saying that:
“No, they – they called up, saying that it was a fake note that I’d given them…And yes, and then before the time I – like, I didn’t get woken up to go get it, and then they called the police when they were waiting for me to go there but yes.” [35]
[35] Transcript, page 98, line 45 to page 99, line 11.
I find that, at the time the Applicant used the counterfeit money to pay for the cigarettes, he knew it was counterfeit. I am not satisfied that he had a change of heart and intended to return the change before he was arrested. I think he sought to imply that, until his evidence was tested by the lawyer for the Respondent.
In April 2006, the Applicant was caught stealing, and in September 2006, he was sentenced to imprisonment for two months and probation for 12 months. The conditions of his probation included “To undertake a get smart program” and “To be given assistance with substance abuse”.
In mid-2006, the Applicant’s daughter, “Child A” was born. The Applicant and Child A’s mother never cohabited but remained in a relationship until 2012. They shared care of her.
During the Applicant’s period of probation, in February 2007, he stole a mobile phone and he shoplifted. On 22 June 2007, he was sentenced to six months imprisonment for each offence (concurrent) with a parole eligibility date of 27 June 2007.
In addition to committing criminal offences, the Applicant had been committing traffic offences since 1999. They included, but were not limited to,
· driving as a learner driver without passenger with open or P licence (x 6). The Applicant said he committed these offences because he could not find his birth certificate which he needed to apply for his driving licence.[36] Accordingly, he was effectively driving unlicensed. He admitted that he had been under the influence of heroin when he committed some of these offences;[37]
· bicycle rider failed to wear helmet (x 2);
· unlicensed driving (x 4);
· speeding by more than 30 km/h. The Applicant claimed he was “rolling down a hill”[38]; and
· drink-driving (blood alcohol concentration 0.73).
[36] Transcript, page 90.
[37] Transcript, page 92, lines 30 to 44.
[38] Transcript, page 86, lines 43 to 45.
The Applicant explained the drink-driving on the basis that his girlfriend at the time was unlicensed and using drugs, and she wanted to drive home so he drove instead. He said it was his love for her that led him to offend. He admitted it was a “stupid thing”[39]. He ended up being charged with unlicensed driving as well.[40] Given the availability of taxis, and the obvious risk that drunk drivers pose to road users including their own passengers, I do not accept that the Applicant’s decision to drive while drunk and unlicensed was a noble one.
[39] Transcript, page 20, lines 17 to 25.
[40] Transcript, page 20, line 28.
There is a four-and-a-half-year gap in the Applicant’s criminal history between June 2007 and January 2012. During this time there was also a reduction in his traffic offending, with his only infringements being one instance of speeding and one fail to give way.
In 2008, the Applicant injured his back at work. As he was on the methadone program by that stage, his doctor recommended he stay on it rather than using morphine.[41] He was also taking medication for anxiety and depression after he stopped using heroin.[42]
[41] Transcript, page 21, lines 1 to 6; lines 33 to 38.
[42] Transcript, page 19.
In late 2009/2010 the Applicant had back surgery and he spent eight weeks in hospital.[43] According to the Applicant, he started smoking methamphetamine in 2010, using it on and off for around a year. I note that while he was not convicted of any offence arising from his use of methamphetamine in this period, on his own evidence, he was offending as it is illegal to possess methamphetamine and utensils associated with its use. The Applicant said he tried to wean himself off methadone by replacing it with methamphetamine as he was trying to lose weight (methadone made him put on weight which aggravated his back condition) but in the end it did not work.[44] He conceded that he became addicted to methamphetamine for a period. He occasionally injected it. He said that from around 2015, if he was around somebody who had it, he would have a “puff or two”[45].
[43] Transcript, page 14, lines 7 to 19.
[44] Transcript, page 22, line 30 to page 24, line 8.
[45] Transcript, page 118, line 20.
In January 2012, the Applicant obstructed police as they executed a search warrant at his family’s home (where he lived). The police records indicate that they attempted to detain all the people who were at the address in one room. The Applicant started yelling and swearing at police and was warned to stop. As police tried to explain the warrant, the Applicant was abusive and shouted over them, refusing to listen. The police warned him several times to stop shouting and abusing them, but he continued and shouted over them every time they tried to explain the warrant.[46] The Applicant admitted to shouting but he denied swearing. He said his parents were there and they asked the police for a copy of the warrant, but the police did not produce it.[47] He was fined for that offence on 3 April 2012.
[46] Exhibit R2, Respondent’s Tender Bundle, TB1, page 53
[47] Transcript, page 101, lines 10 to 48.
Later on, 3 April 2012, the Applicant was taken to hospital under the Mental Health Act 2000 (Qld), because of threats of self-harm. According to the police report, he had recently taken ice, had not slept for three to four days, he was having paranoid thoughts and he believed his neighbours were “trying to get him”.[48] An Emergency Examination Order dated the same day[49] indicates that:
· earlier that day the Applicant had thrown a large ashtray at the next-door neighbour’s roof, damaging tiles;
· his family reported that his behaviour had been occurring regularly for approximately two years, becoming more excessive in recent weeks;
· the police had attended after the Applicant said he wanted to kill himself, he was found in possession of a kitchen knife, his behaviour was erratic, but he was compliant with police;
· he was on the methadone program;
· he and his family advised that he was a “regular user of ice”;
· he was displaying paranoia; and
· he said he had recently taken ice and other medication.
[48] Exhibit R2, Respondent’s Tender Bundle, TB1, page 55.
[49] Ibid, TB1, pages 57 to 59.
In the hearing, the Applicant denied that he had been taking ice during that period, saying it was probably just one time.[50] This is not consistent with other evidence he gave that he had started smoking methamphetamine in 2010 and he was addicted for a period. He said he had been with his daughter and his girlfriend until 2012 with “no problems, no dramas or anything”.[51] However, the Applicant did not live with his daughter or his (then) partner, he lived in the family home. Further, according to an application for a protection order made by his former partner (see below), there were problems in the relationship. The Applicant could not explain why his family had told the police that that sort of behaviour had been occurring regularly for approximately two years.[52] However, the Emergency Examination Order also states that the Applicant himself reported that he was a regular user of ice. I reject the Applicant’s evidence that he was not a regular user of ice in April 2012, and I find that, at that time, he had been using ice for around two years.
[50] Transcript, page 57, lines 28 to 45.
[51] Transcript, page 13, line 22 to page 14, line 6.
[52] Transcript, page 58, lines 5 to 8.
In December 2012,[53] the Applicant’s former partner “Ms L”, who is Child A’s mother, applied for a Protection Order against the Applicant, alleging that:
·she has suffered emotional abuse throughout the relationship with the Applicant such as being called names like “slut”, “fucking bitch” and being called a bad mother. In the hearing, the Applicant denied ever having called Ms L any of those terms but he admitted he probably called her a bitch;[54]
·in April 2011, she was at the Applicant’s residence when their daughter was spending time with her cousins. The Applicant and his brother got into a physical fight and she was putting out her hands begging for them to stop as the children were watching. The Applicant’s brother’s girlfriend (“the girlfriend”) came up to her and began to punch her and yelled out “don’t touch my man”. The Applicant’s mother grabbed the girlfriend and pulled her off and was holding her, telling her to stop. The children were screaming uncontrollably. The Applicant said that Ms L was also fighting, that she was “boxing with my brother”.[55] He also claimed that no children were present, although the fight had started because he had been unhappy with his brother’s children’s behaviour;[56]
·in June 2011 she had taken Child A to the Applicant’s residence to see him and his family. When they were going to leave the Applicant told her not to go and as she went to go, he grabbed her arm and twisted it so hard she dropped to her knees. He took the bag off her shoulder and swung it at her face hitting her under the chin. The Applicant denied grabbing Ms L’s arm and twisting it so that she dropped to her knees. He said he was trying to hold her back from hurting him and he had no intention of hurting her but was just trying to pull her off him. He said he did not hit her in the face with her bag but he threw her bag outside’;[57]
·in or around August 2011, when she had taken their daughter to see the Applicant and his family, he became angry when she said they were going, and he picked up Child A. She asked him to hand Child A to her and she put her hands out. He said “You’s [sic] aren’t going anywhere” and he swung Child A around so her feet hit Ms L in the face. The Applicant’s mother walked over and told the Applicant to put his daughter down and watched them walk to the car. The Applicant denied this allegation;[58]
·around 16 June 2012, there was a verbal altercation by phone in which the Applicant accused Ms L of telling Child A that he did drugs and used needles, and he said Child A had asked him when he was having his next needle. Ms L could hear Child A in the background upset. She told the Applicant that Child A knew nothing about it and would have been referring to when he was getting a vaccination. The Applicant then hung up. When Child A came home to Ms L she had bitten into her lips so much that that it was bleeding. The Applicant denied that this phone call happened;[59]
·on 17 July 2012, as the Applicant was leaving the Federal Magistrates Court he yelled out “Your dad is going to be killed”. The Applicant denied having made that threat.[60]
·Ms L feared for the safety of Child A as the Applicant had drug and mental health issues and “may lash out and inflict harm on her when in a state of psychosis”.
[53] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 62 to 71.
[54] Transcript, page 60, lines 1 to 8.
[55] Transcript, page 59, lines 45 to 48
[56] Transcript, page 43, lines 20 to 40.
[57] Transcript, page 61, lines 1 to 15.
[58] Transcript, page 61, lines 23 to 34.
[59] Transcript, page 62, lines 10 to 35.
[60] Transcript, page 61, lines 43 to 47.
I note that there is before me a police record of an application for a protection order, made on 17 July 2012, being the same day Ms L alleged that the Applicant made the threat outside the Federal Magistrates Court. This document noted that the police attended a disturbance at an address that is redacted and that they spoke with the Applicant who seemed to be drug affected. It further noted that the Applicant’s sister said he had been taking ice in the last couple of days.[61]
[61] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 60 to 61.
In January 2013, following from Ms L’s application for a protection order, a temporary protection order was made against the Applicant prohibiting him from committing domestic violence against Ms L.[62] On 24 June 2013, a final Protection Order was made by consent, without admissions.[63]
[62] Exhibit R2, Respondent’s Tender Bundle, TB1, page 72.
[63] Ibid, page 75.
The Applicant claimed that Ms L had made up the allegations to keep him away from Child A because “she wants my daughter all to herself”.[64] He said he was advised to agree to the Protection Order by his lawyer but he did not know why.[65] There was evidence that in 2012, the Applicant’s contact with Child A had been restricted to fortnightly supervised visits at a family relationships centre. In cross examination, the lawyer for the Respondent queried why Ms L would have applied for the protection order because she was trying to do something strategic for the parenting court case if the Applicant was already confined to supervised visits at that time. The Applicant agreed that it did not make sense.[66]
[64] Transcript, page 64.
[65] Transcript, page 59, lines 29 to 33.
[66] Transcript, page 64, lines 40 to 45.
Ms L’s allegations are quite specific, and she identified others who were present and could therefore give evidence confirming or denying her accounts. Those witnesses are all members of the Applicant’s family, so they were presumably available to him at the time Ms L’s application was before the court. The Applicant claims to have good relationships with his mother and siblings, and his mother provided a letter to assist in his efforts to get his visa back. Yet none of his family members provided evidence in these proceedings refuting Ms L’s allegations.
The timing of the events in Ms L’s account coincides with the period in which, according to the Emergency Examination Order, the Applicant was regularly taking methamphetamine. Further, the period spanned by Ms L’s allegations includes the obstruct offence (January 2012) when the Applicant was verbally aggressive towards police, and the alleged threat to Ms L’s father’s life occurred on the same day (17 July 2012) that the police observed the Applicant was affected by drugs and his sister reported that he had been taking “ice”.
It does not assist the Applicant’s credibility in general that he denied allegations regarding drug use and aggressive behaviour made in separate police reports (e.g. that he shoved an officer in the chest in 2001, that he swore at police in 2012), the contents of the Emergency Examination Order and Ms L’s application for a Protection Order. It rather stretches credibility that the authors of those documents, who appear to have no connection to each other, all made false allegations concerning drug use and/or aggressive conduct.
Although Ms L did not give evidence in these proceedings, for the reasons given, I find the contents of her application for a protection order to be more credible than the Applicant’s contradictory evidence, and I accept that the Applicant did the things alleged by Ms L in the application.
The Applicant said that after his relationship with Ms L broke down in 2012, he was having urine tests every month between 2012 and 2015 because of family law proceedings, and he was not using methamphetamine in that period.[67] The evidence I have referred to indicates that he was regularly using methamphetamine up to 3 April 2012 and that he used it in July 2012. His criminal history includes a conviction for failing to “take reasonable care and precautions in respect of needle or syringe” in March 2014, suggesting drug use at that time. There is no other evidence of drug use until 2016.
[67] Transcript, page 118, lines 1 to 15.
While the Applicant did not commit any further criminal offences until March 2014, he continued to commit traffic infringements. He was caught speeding on four occasions: travelling at more than 30 km/h, 20 km/h and 13 km/h (x 2), respectively.
The speeding offence when he was driving 30kmph over the speed limit occurred on 24 May 2013. The Applicant said he had his family with him in the car, driving on the Pacific Highway between Brisbane and the Gold Coast. While his evidence was not clear, he suggested that he was not speeding by that much or that he thought he was travelling at the speed limit which he thought was 110kmph, but that the speed limit was actually 100kmph.[68] I do not accept that the Applicant did not realise he was speeding, even if he thought the speed limit was 10kmph more than it was.
[68] Transcript, page 87.
The Applicant was put on a “good driving behaviour” period for 12 months, starting on 26 August 2013. On 29 September 2013, he was caught driving with an unrestrained child under the age of four in the car. The unrestrained child was the Applicant’s four year old nephew. The Applicant said he was driving, his brother was in the car, and his nephew climbed out of his child seat in the two minute period when they had been driving before being pulled over by police. He said his nephew was very good at climbing out of his seat and added that, after they got pulled over (for a reason other than the unrestrained child), his nephew ran onto the road and the police officers had to grab him.[69] It is common knowledge that child restraints are made so that, when fitted properly, children cannot undo them or climb out of them. I am satisfied that the Applicant did not take adequate steps to ensure his nephew was properly restrained. The seriousness of this lack of care is evident in what happened after he was pulled over – that a four year old child ran onto the road.
[69] Transcript, page 88, lines 17 to 48.
On 14 October 2013, the Applicant was caught driving by more than 20 km/hr over the speed limit (referred to above). His licence was subsequently suspended. During the period of suspension, he was caught driving unlicensed in July 2014.
There was second break in the Applicant’s offending until 29 September 2016 when he committed assault occasioning bodily harm and assault or obstruct police officer (discussed below). In December 2016, he was caught speeding, followed by a further speeding offence in February 2017. In April 2017, he failed to appear in accordance with his bail undertaking in relation to the assault charges. He committed more speeding offences in September and December 2017, and February 2018.
In February 2018, the Applicant was sentenced for the assault occasioning bodily harm to 12 months imprisonment with a parole release date of 20 May 2018.
In passing sentence, the learned sentencing Judge said:
“The circumstances of the offending is set out in the schedule, but briefly, on 29th of September 2016, you walked into a pharmacy. You walked into the dispensary area, which is not open to the public. The complainant was working in the pharmacy. You walked up to him and spoke to him. He stood up and faced you, and you then punched him without any warning, knocking him to the floor. You then said, “This is a warning” and walked out. The complainant was known to you and he was able to identify you because, up until a couple of months earlier, you had been receiving methadone through that pharmacy. You were receiving methadone there - you have been receiving methadone treatment for a long time and, evidently, there was some conflict between you and the pharmacy and you stopped going there a couple of months ago. The comment that “this is a warning”
…
I think puts (sic) additional serious aspects to this offending in addition to its being an unprovoked assault on somebody working in a shop in their place of business, entirely without warning or provocation, and entirely unjustified. The injuries were not particularly severe. He suffered some - a couple of small contusions, some ulcers on the upper and lower lip, and it would have been quite a frightening experience for him, no doubt. But nevertheless, it is – in - the circumstances of the offending make it a fairly serious example of assault occasioning bodily harm.”[70]
[70] Exhibit G1, Section 37 T-Documents, T14, page 68.
In his revocation request form, the Applicant said that in 2016 he began to experience severe anxiety and depression, and as a result, his use of methamphetamine escalated. He said at the time of the assault occasioning bodily harm offence he was on methadone and the victim was his former pharmacist who fulfilled his methadone prescription. He stopped going there because the victim had been teasing him for over two years by “calling me Caitlyn Jenner and stuff like that”. After two months, he went back to talk to him about his behaviour. He walked in but the victim was busy. He said he heard the victim say “I’ll go outside and start him then”. When the Applicant heard that he snapped and walked back in and asked for the victim, who made a “smart arsed remark and walked away”. The Applicant walked up to him, he (the Applicant) flinched because he thought the victim was going to punch him, and then he swung first. He said:
“I struggle to forgive myself for what I’ve done. I am remorseful and I usually think about the consequences of my actions, but on this occasion I stuffed up and acted without thinking. I had taken methamphetamine the day before and hadn’t slept. I wasn’t all there in the head at the time”[71]
[71] Ibid, T16, page 84.
In the hearing, the Applicant said he had attended that pharmacy every day since 2012 to get methadone or Subutex[72], and in 2015 he stopped attending that pharmacy[73] because there was another pharmacist who was closer to where he lived.[74]
[72] Transcript, page 103, line 30 to page 104, line 15.
[73] Transcript, page 104, lines 30 to 31.
[74] Transcript, page 105, lines 24 to 25.
When it was put to the Applicant that he had previously said it was because the pharmacist called him Caitlyn Jenner he said he changed pharmacies for both reasons.[75]
[75] Transcript, page 105, lines 27 to 35.
In the previous decade, such was the extent of the Kardashian/Jenner family’s saturation of popular culture and social media that Bruce Jenner’s transition to Caitlyn Jenner is a matter of public record. The Applicant appeared at the hearing by videoconference, and in my opinion, he does not bear any resemblance to either Bruce Jenner or Caitlyn Jenner. When I put to the Applicant that I could not see any resemblance, and asked what the connection could be, he said he did not know exactly. When I asked what he meant when he said the pharmacist was teasing him about his sexuality, he said he has been told that he looks like he wears eyeliner.[76] In my opinion, the Applicant’s dark eyelashes could give the impression that he wears eyeliner. When asked exactly what the victim used to say to him, the Applicant said “Hey Caitlyn, where’s your - how is your boyfriend?”. The Applicant said he had no idea why the victim started saying Caitlyn Jenner. He said he started calling him Caitlyn, and then Caitlyn Jenner and “just little remarks here and there”. He said it started in 2013.[77]
[76] Transcript, page 106, lines 36 to 44.
[77] Transcript, page 106, line 45 to page 107, line 18.
The lawyer for the Respondent put to the Applicant that the person “Caitlyn Jenner” did not exist in 2013, that she did not come out as transgender until 2015, and therefore it did not make sense that the victim called the Applicant that name in 2013. The Applicant responded “Well, I was - he just started calling me Caitlyn and then he started calling me Caitlyn Jenner. I don’t know.”[78] The Applicant went on to say that it was upsetting and rude.[79]
[78] Transcript, page 107, lines 20 to 24.
[79] Transcript, page 108, lines 24 to 39.
The lawyer for the Respondent put to the Applicant that the learned sentencing Judge had described the assault as having been without warning or provocation, and unjustified, which was not consistent with the explanation the Applicant gave in these proceedings. The Applicant did not provide a satisfactory explanation for that.[80] He went on to say “I’m not going to lie, that he did deserve it, but I am remorseful for doing that”.[81] In the context that it was made, I take that statement to mean that the Applicant considered the victim deserved the assault. When the lawyer for the Respondent asked the Applicant why he had refused to participate in a formal electronically recorded interview with the police if, in his mind, he had a very good excuse for what happened, he said “Well, I didn’t have anything to say. I was a bit upset (indistinct) how I got handled (indistinct) about anything (indistinct).”[82]
[80] Transcript, page 109, lines 16 to 24.
[81] Transcript, page 109, lines 26 to 31.
[82] Transcript, page 109, lines 33 to 38.
The Applicant admitted that prior to assaulting the victim that day he had not asked him to stop calling him Caitlyn.[83]
[83] Transcript, page 111, lines 7 to 10.
The Respondent did not tender any evidence proving when Bruce Jenner became Caitlyn Jenner, however, as stated, it is a matter of public record. In the hearing, I said the following to the Applicant:
“[Applicant], in fairness, I have to put to you that I have just - I have Googled Caitlyn Jenner, and according to the Internet - according to Wikipedia, she came out as transgender in April 2015. I’m sure I could find a more reliable source to inform myself if I think that’s necessary. So the difficulty I have is that is quite a long time after you say that this fellow was calling you Caitlyn, and also the fact that you didn’t raise any of this with the police at the time or when you were being sentenced. So I have some very serious doubt that that’s true, that you punched this fellow because of years of teasing that is in the context of transphobic remarks”
The Applicant responded:
“Yeah. No, it was not only just the remarks he said. It’s just the way he actually was treating me, just as an individual…Like…not giving me the right change, and this happened a couple of times, and I’d have to say to him, and my sister. She’s also had a few incidents with him, and - like, and also just the way he goes about things just towards me.”[84]
[84] Transcript, page 111, lines 26 to 44.
According to Wikipedia, Caitlyn Jenner debuted her new identity (as a female called Caitlyn) in June 2015. I accept Wikipedia to be a reliable source on this subject.
I do not find the Applicant’s claim that the victim of his assault had teased him by calling him Caitlyn or Caitlyn Jenner plausible. Further, I am bound to make findings of fact that are consistent with the findings made by the learned Judge in the sentencing episode that grounds my decision making jurisdiction in these proceedings.[85] Accordingly, I find that the attack was unprovoked. I further note his dingenuous attempt to somewhat justify or excuse his attack on the victim.
[85] HZCP v Minister for immigration and Border Protection [2019] FCAFC 202.
In March 2018, the Applicant was fined for assault or obstruct police officer.
According to the police records, this offence, to which the Applicant pleaded guilty, arose from the police attending the scene of the assault on the pharmacist, and directing the Applicant to place his hands behind his back. The Applicant refused and locked his hands in front of his chest, refusing to follow directions. The police then used “open hand tactics” and restrained the Applicant with handcuffs.[86]
[86] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 85 to 86.
The Applicant denied obstructing or assaulting the police.[87] He said:
“I walked out with a drink bottle in my hand. My mother was standing there and (indistinct) under arrest for assault, and I said basically hands on my back and put my bottle down and immediately got my hands snapped up on my back, and (indistinct) obstructing. I got my head smashed against the wall. So I did - I can tell you 100 per cent I did not try and obstruct, did not assault (indistinct) hands behind my back (indistinct) I was up against the wall.”[88]
[87] Transcript, page 103.
[88] Transcript, page 103, lines 5 to 13.
When it was put to the Applicant that he pleaded guilty, he said:
“How am I going to fight that when I’m already in gaol getting sentenced?” and “it didn’t happen, but I got charged for it…and I pled guilty to obstruction”.[89]
[89] Transcript, page 103, lines 22 to 25.
I am bound by the findings of the sentencing court in relation to this offence and, in any event, I find the police records more credible than the Applicant’s account. I find that the Applicant obstructed the police on this occasion.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or Government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
The Applicant has a long history of physical aggression, having committed acts of violence against members of the community in 2001, 2003, 2011, 2012 and 2016. Violent crimes are to be viewed very seriously. The assault on the pharmacist was unprovoked. Some of the Applicant’s violence was directed at police officers in the performance of their duty, adding another dimension of seriousness to the offences. Some violence was directed towards Ms L, including incidents when their daughter was present. In one incident, the Applicant used their daughter as a weapon against Ms L - swinging her feet so they hit Ms L’s face. To my mind, involving Child A as he did, aggravated already serious conduct.
In addition to the violent offences, the Applicant has shown disrespect to law enforcement, e.g. obstruct police, and disrespect for road rules, e.g. driving without a license. He has damaged and stolen property, showing disregard for the property rights of others. He has committed traffic infringements of the kind that tend to increase the risk of harm to other road users, e.g. drink-driving, high-range speeding, and having an unrestrained child in his vehicle, which indicates disregard for the safety of other members of the community. He has breached community-based orders and suspended sentences by continuing to offend, showing lack of respect for the administration of justice.
Imprisonment is a sentence of last resort in the hierarchy of sentencing options available to a court. On several occasions the courts have imposed sentences of imprisonment, reflecting the objective seriousness of the Applicant’s offending. The most recent sentence of 12 months, to serve three months, for assault occasioning bodily harm, is a substantial sentence. The learned sentencing Judge made a point of the fact that the assault was entirely unjustified and he described it as “a fairly serious example of assault occasioning bodily harm”.
The Applicant’s offending is relatively frequent as he committed over 30 offences in a 17 year period. There is a discernible trend in increasing seriousness with his most recent offence being the most serious.
Despite the Applicant having been given the benefit of community-based orders and suspended sentences on several occasions, he continued to offend, causing harm or risk of harm to members of the community and consuming the resources of the criminal justice system. Due to the Applicant’s repeat offending, several members of the community have been physically attacked by the Applicant, police have been impeded in the performance of their duty, people’s property rights have been violated, and road users have been put at increased risk of harm on many occasions.
I do not consider factors (g), (h) or (i) of paragraph 13.1.1(1) of the Direction apply in this matter.
The rest of the sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the reviewable decision.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The nature of harm from further violent offending include physical injury and possibly psychological injury including to police officers in the performance of their duties.
The nature of harm should the Applicant commit further traffic offences of the kind he has committed is physical or psychological injury, or death, to other road users.
The nature of harm from stealing and dishonesty offences of the kind committed by the Applicant includes financial loss, property damage, and the violation of members of the community’s property rights and sense of security.
Likelihood of engaging in further criminal or other serious conduct
The Applicant contended that the only time he does “stupid things” is when he is under the influence of drugs which, he said, explains most of his criminal convictions.[90] He said he has not committed any crimes or traffic infringements while in New Zealand. There is no independent evidence to confirm or refute that. I would have expected the Respondent to put forward evidence of a New Zealand criminal history if there was one. In the absence of that evidence, I accept that the Applicant has not been convicted of any offences or incurred any traffic infringements in New Zealand.
[90] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 5.
The Applicant attributed his offending, when not using heroin, to the overuse of prescription medication, and there is also evidence of methamphetamine use. He said while he was affected by drugs he did not think about the consequences of anything he did, that it affected his sense of right and wrong.[91] I am satisfied that drug use has historically contributed to the Applicant’s offending but it does not explain all of it. Some of the traffic infringements do not appear to have been drug related.
[91] Transcript, page 81, lines 24 to 30.
There also seems to be a link between the Applicant’s mental health and drug use. He said he thought his anxiety and depression were initially caused by his drug use, that it is always there to some extent, and it could be made worse by events happening in his life. He said he had been more depressed since the conflict with Ms L over Child A. There is a long gap in the Applicant’s criminal history between June 2007 and January 2012, although he was using methamphetamine and committing acts of violence toward Ms L in 2010 and 2011. The resumption in offending appears to coincide with the deterioration of his relationship with Ms L and the resulting impact on his mental health.
There is a second break in the Applicant’s criminal history (with only one traffic infringement in the period) between March 2014 and September 2016.
The Applicant said the last time he had use methamphetamine was the day before the assault on the pharmacist, that he had did not use it in prison or immigration detention, and he has not used it since he has been in New Zealand.[92] He claimed to have undertaken drug and alcohol and anger management courses while in immigration detention.[93] Although he did not provide any independent evidence of this, I am prepared to accept that he engaged in such treatment. There is no independent expert report to indicate whether the Applicant benefitted from that treatment and what his risk of relapsing in terms of drug use and violent behaviour is.
[92] Transcript, page hundred and 18, lines 30 to 38.
[93] Exhibit G1, Section 37 T Documents, T16, page 84.
The Applicant said he was not taking any drugs at all for an 18 month period after his most recent offending but he went back on methadone because of his back condition.[94] He currently uses methadone daily[95], and he attends ATODS (Alcohol, Tobacco and Other Drug Service).[96] He said he is a changed person who is no harm to society or anybody.[97]
[94] Transcript, page 115, lines 30 to 48.
[95] Transcript, page 24, lines 40 to 43.
[96] Transcript, page 28, lines 43 to 46.
[97] Transcript, page 31, lines 5 to 31.
If the Applicant is permitted to return to Australia, his intention is to live here permanently, therefore I must consider the risk of him re-offending over the rest of his life. While I accept that the Applicant does not have a criminal history in New Zealand despite having lived in the community there since June 2018, that does not necessarily mean he is rehabilitated. His Australian criminal history contains a period of four and a half years without any criminal offences (but two traffic infringements) and an 18-month period without any criminal offences (but one traffic infringement). Yet, both periods were followed by further offending.
A significant concern I have is that the Applicant does not seem to accept the full extent of his offending behaviour or accept full responsibility for it. Of note is that:
·he denied some offences or aspects of some offences, e.g. that he did not shove a police officer, he does not recall elbowing a police officer in the head, and he did none of the things alleged by Ms L in her application for a Protection Order;
·he seemed to understate the extent of his traffic offending; when he was asked how many times his driver’s licence had been cancelled, he answered “None. I think maybe one time, if any.”[98] In fact his license has been cancelled/disqualified a total of five times, being 7 March 2002, 22 December 2003, 2 November 2005, 27 June 2007 and 14 August 2014;
·he sought to understate the seriousness of some offences, e.g. he was “rolling down a hill” when he was speeding by at least 30kmph, and he did not realise he was speeding on another occasion when he was again speeding by at least 30kmph;
·he sought to justify some offences, e.g. the police had no right to arrest him because his girlfriend took ownership of the drugs in the car, and the police did not provide a copy of the search warrant when searching his family home;
·he sought to diminish his accountability for some offences, e.g. his nephew was very good at getting out of his child seat, he did not mean to use a counterfeit note to pay for cigarettes but he “went along with it”; and
·he gave a disingenuous explanation for the assault occasioning actual bodily harm.
[98] Transcript, page 84, lines 27 to 28.
The Applicant shows very little insight into, or genuine remorse for, his behaviour.
There are some letters of support before me. The Applicant’s eldest sister, said she has complete faith that if the Applicant were to return to Australia he would contribute to society in a positive manner.[99] The Applicant’s mother said she had great faith that the Applicant would be a good law-abiding citizen.[100] Nether explained the basis for their faith.
[99] Exhibit G1, Section 37 T Documents, T18, page 108.
[100] Exhibit A3, Letter of Support of the Applicant’s Mother.
A cousin who has known the Applicant for more than 28 years said he had a strong moral character and treated others with courtesy and respect.[101] A family friend who has known the Applicant for 28 years said he often used to run errands for her and help with different tasks such as mowing the lawn, and she always found him to be honest trustworthy, caring and loving towards her and her children. She said was very surprised to learn of what happened because it was not in his nature or his character. She said the Applicant had told her that he had learned his lesson and was very remorseful.[102] Another family friend who has known the Applicant for over 20 years described him as a happy loving and caring person. She said she had never known the Applicant to act out in any way so was very surprised to know about his deportation and charges. She expressed confidence that he would not reoffend and that is very apologetic for his actions.[103] In a letter dated August 2020, the Applicant’s nephew said he was aware that the Applicant was “not perfect and has been in trouble and had ups and downs in life”. He said the Applicant pushed him to study and work hard and that he knows that the Applicant is now working full-time in New Zealand and clean of drugs.[104]
[101] Exhibit G1, Section 37 T Documents,T18, page 110.
[102] Ibid, page 111.
[103] Ibid, pages 112 to 113.
[104] Exhibit A6, Letter of Recommendation from Jeremey Habchi.
I afford limited weight to these letters of support because they do not address the Applicant’s long-term drug use or mental health issues, and the individuals who express faith that the Applicant will not reoffend do not point a rational basis for asserting that he will not re-offend. Further, the letters from family friends attesting to the Applicant’s good character indicate that the authors had very little knowledge of the Applicant’s history of offending.
There is a letter from a “Ms J”, dated January 2020,[105] with whom the Applicant lived at the time of the hearing. She has known the Applicant for around 15 years as he is the brother of her best friend. When she found about his situation, she and her partner asked him to move in with them as he had no other family support in New Zealand. She knows the Applicant is on the methadone program because of his problem with his spine and that he has been drug-free as they do not allow drugs in their house. She said he has been a good housemate, helps around the house when needed and is good with her son who is three years old. I give more weight to this letter.
[105] Exhibit A2, Letter of Support of Ms J.
A letter from a person who undertook a vocational course with the Applicant and had known him for nine weeks, described him in positive terms.[106] I give this letter limited weight.
[106] Exhibit A4, Letter of Support from Singa Falanitule.
If the Applicant is permitted to return to Australia, he plans to live in Brisbane where his mother and siblings live. He said he is close with his family despite having had some problems in the past. Only one of his five siblings provided a letter of support, but I accept that at least the Applicant’s mother, one sister, a cousin and a nephew are supportive. The Applicant’s nephew is a qualified builder who owns his own construction company. He has offered the Applicant work in Australia.[107]
[107] Transcript, page 34, lines 35 to 40.
The Applicant is confident that his nephew will give him a job in his construction business. He intends to see if he can re-establish his relationship with Child A. The Applicant has previously had employment including during periods when he was offending. According to him, he lived in his family home for the duration of his life in Australia except for a period of around six months in 2005.[108] I am not satisfied that family support and employment are sufficient protective factors to significantly lower the risk that he will relapse and re-offend.
[108] Transcript, page 127, lines 1 to 7.
The Applicant has a long history of substance abuse and offending, including periods when he was not in trouble with the law. In those circumstances, his current sobriety and absence of criminal history in New Zealand is not enough to give me confidence that he will not return to drug abuse and offending at some point in the future if he returns to Australia.
I consider that there is a real risk that the Applicant will engage in further offending of the kind he has engaged in.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and duration of the relationship between the child and the person, noting that less weight should generally be given where there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
· the extent to which the person is likely to play a positive parental role in the future, taking into account the time until the child turns 18, and including any Court order relating to parental access and care arrangements;
· the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizens ability to maintain contact in other ways;
· evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect;
· whether there are other persons who already fulfil a parental role in relation to the child; and
· any known views of the child.
The Applicant claims two minor children as persons whose best interests would be affected by the decision. Child A, and a nephew, “Nephew K”, who was 17 at the time of the hearing but is now 18 years old and therefore no longer a minor.[109] I will consider Nephew K under “Other Considerations” rather than under this Primary Consideration.
[109] Exhibit G1, Section 37 T Documents, T16, page 81.
Child A is currently 14 years old. Her biological mother, Ms L, fulfils the parental role and there is no suggestion that this is likely to change. Nor is there any suggestion that Child A is not well cared for.
According to the Applicant, he got together with Ms L in around 2005. They never lived together, and the relationship broke down in 2012. In the hearing, the Applicant said that after Child A’s birth there was an arrangement with Centrelink, instigated by Ms L, where Child A stayed with the Applicant for three nights per week and Ms L received Parenting Payment (Single). When Child A stayed with the Applicant, he cared for her.[110] The Applicant lived in the family home.
[110] Transcript, page 46, line 35 to page 48, line 29.
In the Applicant’s personal circumstances form, submitted in June 2018, he said
“[Ms L] and I cared for [Child A] full-time from the time she was born until [Ms L] and I separated into 2012. When [Ms L] and I separated in 2012 I had [Child A] on the weekends. That arrangement lasted for a few months. Until Family Court Proceedings were started regarding [Child A’s] care. For the next three years I saw [Child A] every fortnight at the Family Relationship Centre in Ipswich. At one stage I had [Child A] full-time, but then [Ms L] took her full-time. I was told that I could play “cat and mouse” with [Ms L] regarding [Child A’s] care but I didn’t think that was the right thing to do by [Child A]. By 2015 I was experiencing a lot of anxiety and depression and [Ms L] and I signed consent orders regarding [Child A’s] care. I kept going to the Family Relationships Centre after this, but [Ms L] wasn’t taking [Child A]. In 2016 I wanted to apply to the Family Court to get new orders so that I could be guaranteed some time with [Child A], but I didn’t pursue it becaus eof my mental state. It is difficult to see [Child A] because [Ms L] often travels for work. My niece does pick her up and see her regularly though, so [Child A] does have regular contact with my family. I speak with [Child A] on the phone. The last time I was to her was two weeks ago. She loves speaking to me. I asked her about school and how she and her mum are going. I love my daughter and I have always been upset about how little I have been able to see her over the last few years.”[111]
(Errors in original)
[111] Exhibit G1, Section 37 T Documents, T16, page 82.
While the quoted passage states that the Applicant had contact with Child A every fortnight at a supervised centre for three years, in his evidence he said that arrangement lasted for two years.[112] The Applicant denied ever having been under the influence of methamphetamine while Child A was in his care.[113] He said he did not know the reason why he was only allowed contact with Child A at a supervised centre, that he did not agree to it, and there was nothing he could do about it. He said Ms L made allegations against him in order to limit his contact with Child A.[114]
[112] Transcript, page 58, lines 30 to 45.
[113] Transcript, page 75, lines 1 to 3.
[114] Transcript, pages 55 and 56.
I accept that for the first six years of Child A’s life, the Applicant fulfilled a significant parenting role, and that for the next two years he maintained contact with her that was subject to restrictions that were not of his choosing. It is relevant that the Applicant engaged in aggression towards Ms L in front of her, that he involved Child A in one instance of aggression, and that Ms L thought Child A was so upset by the Applicant’s behaviour on one occasion that she bit her lip so hard it bled. This behaviour was obviously not in Child A’s best interests.
The Applicant said Child A had visited him occasionally when he was in immigration detention[115], and he currently speaks with her once or twice every month.[116] He is optimistic that, if he returns to Australia, he would be able to have some contact with her. He thinks Ms L would be more open to that now that she has a new partner and a new child.[117]
[115] Transcript, page 69, lines 34 to 35.
[116] Transcript, page 69, line 11.
[117] Transcript, page 71, lines of 14 to 28.
There is no evidence about the impact, if any, that the Applicant’s removal from the wider Australian community has had on Child A. Nor is there any evidence about her views, however it seems reasonable to conclude that she would prefer her father to be in Australia because it increases the potential for him to contribute positively to her life. However, with the Applicant’s history of domestic violence, drug abuse and other offending, and the risk that he will repeat that behaviour, it is not a given that his physical presence in Child A’s life would be positive for her.
The Applicant does not intend to contribute financially to Child A’s needs unless Ms L raises that issue.
Given the current communication between the Applicant and Child A, it seems likely that he will be able to continue to maintain long distance communication with her from New Zealand.
I am satisfied that revocation of the cancellation of the Applicant’s visa is in Child A’s best interests to a limited extent.
Conclusion: Primary Consideration B
Primary Consideration B weighs in favour of revocation of the cancellation of the Applicant’s visa to a limited extent.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. 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. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[118]
[118] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
Accordingly, in assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia when he was five years old and he is now 38;
·the Applicant commenced using heroin when he was 16 years old and he committed his first offence at the age of 17;
·the Applicant’s offences include violent offences and traffic infringements of the kind that tend to increase the risk of traffic accidents;
·there is a real risk that he will re-offend;
·as stated above, his offending demonstrates a disregard for the laws regulating the community that he will seeks to re-enter, and for the safety of the members of that community;
·the Applicant has done some volunteer work (see below under “Other Considerations”);
·the Applicant has a solid history of gainful employment (see below under “Other Considerations”) and the lengthy gap in his employment is attributable to an incapacitating back injury; and
·if he is not permitted to return to Australia, it will adversely affect Child A as well Nephew K, his mother and his eldest sister, and would likely sadden the rest of his siblings and his extended family in Australia (see below under “Other Considerations”).
Conclusion: Primary Consideration C
The nature and extent of the Applicant’s offending is such that the Australian community would expect that he should not hold a visa. Considering all relevant factors, Primary Consideration C weighs moderately in favour of non-revocation of the decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant is currently living in New Zealand. He does not claim to fear harm and none of the evidence suggests a risk of harm. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The Applicant came to Australia at the age of five and he lived in Australia for the next 31 years, being most of his childhood and all but two years of his adulthood. While he did not commence offending immediately after arriving, he was only a young child at that time. He started using illegal drugs while still a minor, committed his first offence at the age of 17, and spent much of his adult life offending. He is entitled to some limited weight under paragraph 14.2(1)(a) of the Direction.
When the Applicant was 16, he started working in joinery as an apprentice, and continued on as a casual employee. He claimed to have held employment in 2005, from 2008 to 2009, and from 2007 to 2018. After injuring his back at work, he was unable to continue working. The break in employment between 2009 and 2017 is due to his back condition. He was in receipt of disability pension during that period.[119] The Applicant went doorknocking for charity (Epilepsy) over a period of six or seven months. He did it two or three times per week with his friend who had epilepsy.[120] The Applicant’s employment and voluntary work afford him moderate weight under paragraph 14.2(1)(a)(ii) of the Direction.
[119] Transcript, page 39, lines 25 to 44.
[120] Transcript, page 40, lines 1 to 12.
In his revocation request, the Applicant identified his mother, three sisters and two brothers who live in Australia. He said he had 10 uncles or aunts in Australia and 12 nieces or nephews in Australia (the form does not distinguish between uncles and aunts or between nieces and nephews). He said that if he is forced to leave Australia it would have a significant effect on his family who have lived here since 1987. He said he would not expect his family to return to New Zealand with him and that they would be upset and sad if he could not return to Australia.[121] I accept that the Applicant’s family would not move to New Zealand in the event that the Applicant is not permitted to return to Australia. I accept that the Applicant’s aunts, uncles, nieces and nephews in Australia would probably be saddened if the Applicant were not permitted to return to Australia, although there is no evidence that they have been significantly impacted by his absence or would be significantly impacted by his continued absence.
[121] Exhibit G1, Section 37 T Documents, T16, page 83
The Applicant said he is close to his mother and siblings. He keeps in contact with them through phone calls. He speaks with his family around once a week although it fluctuates.[122] His mother becomes upset when they videoconference. I accept that the Applicant’s siblings will be saddened and miss him if he is not permitted to return to Australia, however they can keep in touch as they currently do.
[122] Transcript, page 40, lines 13 to 33.
The Applicant’s mother, in her letter of support, said she has been widowed for the past 10 years and lives with her youngest son. As she is not able to drive, the Applicant used to provide transport to and from shops so she could buy groceries as well as taking her to doctors’ appointments. He would also support her financially. She said before the Applicant went to New Zealand, she had all six of her children living in the same State and they had never been separated for long periods of time. When the Applicant left, it impacted on her health, leaving her feeling extreme sadness, loss of appetite and loss of sleep. It has caused her stress and anxiety as she continues to worry about his livelihood in New Zealand. She keeps in regular contact with him and believes he is remorseful and homesick. She believes he is very depressed in New Zealand away from his immediate family and daughter.[123]
[123] Exhibit G1, Section 37 T Documents T18, page 109.
I accept that the Applicant’s absence has caused his mother some emotional hardship, and that his continued absence will continue to cause her emotional hardship. I accept that the Applicant used to provide financial and practical support to his mother. However, she did not state that she is without support now that the Applicant is in New Zealand. Further the Applicant agreed that, given the size of his family there is a lot of support available among its members if somebody needs support.[124] I am not satisfied that the Applicant’s mother is currently without the support that she needs because of the Applicant’s absence, or that she would be without the support that she needs in the future because of his continued absence.
[124] Transcript, page 43, lines 7 to 10.
The Applicant’s eldest sister provided a letter, dated in January 2019[125], in which she said the Applicant’s absence has severely impacted her family, especially in relation to the care and assistance he used to provide to her son, Nephew K, who has had severe cerebral palsy since he was five months old, is profoundly deaf, cannot walk or talk, cannot do any activities independently and requires care 24 hours a day. She is a single mother with six children, three of whom have moved out. The other two are sons aged 11 and eight. She receives government assistance through Nephew K’s occupational therapist, speech therapist and the cerebral palsy league. She could not afford additional assistance to help Nephew K with day-to-day activities. The Applicant used to support her at least three times per week by bathing, changing clothes, continence assistance, transitioning Nephew K from his chair to other furniture, assisting him on outings, helping with his physiotherapy exercises, providing feeds and general cleaning around the house. This also provided some respite for her so that she could support her other children. She suffers from depression and anxiety and most times does not want to leave the house. The Applicant was also an emotional support for her. She said:
“I cannot express enough how hard it has been both for myself and my sons without the support of (the Applicant). He has an incredible relationship with [Nephew K] in the absence of [the Applicant] has affected him emotionally too.”
[125] Exhibit G1, Section 37 T Documents T18, page 108.
The Applicant said he has been involved in Nephew K’s life at all times since his birth up until the Applicant’s imprisonment. He provided material assistance to his sister, relieving her of the demanding role of a disability carer and parent.[126] I accept this and the evidence of the Applicant’s sister.
[126] Ibid, T17, page 101.
Nephew K’s circumstances are now different. At the hearing, the Applicant said that after he went to New Zealand, his sister’s husband was incarcerated, his sister had a mental breakdown and Nephew K ended up in hospital. Child Safety became involved, and now Nephew K is in a home for people who need special care.[127] The Applicant’s sister’s husband is now back in the home with her and the two other children. The Applicant knows little else about Nephew K’s current situation.
[127] Transcript, pages 27 to 28.
I accept that the Applicant cared for Nephew K throughout his life, providing a great deal of support for him, and that his absence has affected him emotionally. It is logical to conclude that Nephew K may have even greater need of the Applicant’s company and emotional support now that he is in a group home without family around him. It does not seem realistic that Nephew K could keep in contact with the Applicant using the telephone or electronic means. I am satisfied that the Applicant’s permanent absence from Australia will effectively remove the Applicant from Nephew K’s life on a permanent basis which will be detrimental to Nephew K.
I accept that, by helping to look after Nephew K, the Applicant helped his eldest sister both practically and emotionally. She does not need help looking after Nephew K now and it is not known whether Nephew K will return to her care. I am satisfied that she would still benefit from the Applicant’s emotional support given her recent mental breakdown and her other two children at home.
While there is scant evidence, I am prepared to accept that the Applicant has some social ties in Australia.
The Applicant’s social and familial ties, and the impact on his family members, including his daughter, of his removal from Australia, weighs moderately in his favour under paragraph 14.2(1)(b) of the Direction.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community weighs moderately in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia has adversely impacted on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s return to Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
When the Applicant went to New Zealand, he wanted to stay with his mother’s sister, however she said there was not enough room for him and this caused a falling out between his mother and her sister.[128] He is therefore not in touch with his aunt. He has other relatives in New Zealand who live around six hours from where he lives. He said that if he is required to remain in New Zealand, he would reach out to them although he has never met them before.[129] I am satisfied that the Applicant has almost no family support in New Zealand.
[128] Transcript, page 36, line 40 to page 37, line 15.
[129] Transcript, page 37, lines 24 to 34.
The Applicant stayed in a hostel for six months before Ms J invited him to stay with her family. However, in the hearing, the Applicant said there was a time limit and he had four weeks to find his own accommodation.[130] There was no mention of a time limit in Ms J’s letter so I have some doubt about that. In any event, the Applicant reported that he was working between three and four days per week[131] and that he had been able to access the social security system in New Zealand,[132] so I am not satisfied that he would have difficulty securing his own accommodation if he had to.
[130] Transcript, page 25, line 9 to 25.
[131] Transcript, page 29, lines 27 to 31.
[132] Transcript, page 36, lines 27 to 28.
The Applicant said he does not have any friends in New Zealand, although there are a few people at work who he is friendly with, and he has met some family members of Ms J.[133]
[133] Transcript, page 120.
Since the Applicant has been in New Zealand, his mother and a brother have visited him once.[134] A friend of the Applicant’s family who provided a letter of support said that, as a result of going to New Zealand, the Applicant had suffered hardship such as the loss of family, friends and financial support, and that he was currently under great stress due to being away from his daughter.[135] I accept that the Applicant has suffered some emotional and psychological hardship, however I am satisfied that he is able to access counselling and support services in New Zealand if needed, and he can seek emotional support from his family with whom he is in regular contact.
[134] Transcript, page 38, lines 25 to 33.
[135] Exhibit G1, Section 37 T Documents, T18, page 111.
The Applicant continues to suffer discitis, and he is currently taking methadone for that. He said he has problems with his pancreas although doctors do not know what the specific problem is.[136] There is no medical evidence before me relating to the Applicant’s pancreas but in any event, it is reasonable to find that the level of medical care available to him in New Zealand is at or about the same level as that currently available in Australia.
[136] Transcript, page 14.
The Applicant also has depression and anxiety. He said when he first arrived in New Zealand he was very depressed because he had no-one. He is unable to get a prescription for Valium in New Zealand, and he suggested it was due to his history of drug abuse.[137] He has had some counselling sessions, although he said the best thing for his anxiety and depression was “to just get out there, do a course, start working which I have done and I am doing now just to keep myself busy.” I am satisfied that the Applicant is managing his mental health adequately.
[137] Transcript, page 32, line 41 to page 33, line 7.
The Applicant did not claim to face any substantial language or other cultural barriers in New Zealand.
While the Applicant does not like being away from Australia and his community, and he has not yet established much of a social support network, he has successfully re-settled and maintained basic living standards in New Zealand.
Accordingly, I am of the view that this Other Consideration (e) does not weigh in favour of revocation and is therefore neutral.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: neutral.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B weighs to a limited extent in favour of revocation;
·Primary Consideration C weighs moderately in favour of non-revocation; and
·To the extent that Primary Consideration B and Other Consideration (b) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 161 (one hundred and sixty-one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
.........................[SGD]...............................................
Associate
Dated: 26 March 2021
Date of hearing: 26 and 27 August 2020 Applicant:
By videoconference Solicitor for the Respondent Mr Samuel Cummings
Sparke Helmore
A
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 37 T-Documents (T1 to T27 pages 1-158)
R
-
3 FEB 2020
R1
Respondent’s Statement of Facts, Issues and Contentions
R
-
16 JUN 2020
R2
Respondent’s Tender Bundle (TB1 to TB2 pages 1-110)
R
-
16 JUN 2020
A1
Applicant’s Statement of Facts, Issues and Contentions
A
-
8 JUN 2020
A2
Letter of Support of Ms J
A
28 JAN 2020
8 JUN 2020
A3
Letter of Support of the Applicant’s Mother
A
6 JUN 2020
8 JUN 2020
A4
Letter of Support from Singa Falanitule
A
27 FEB 2020
27 JUL 2020
A5
Letter from Yi-Hsiang Lin, Community Alcohol & Drug Services Auckland
A
21 FEB 2020
27 JUL 2020
A6
Letter of Recommendation from Jeremey Habchi
A
12 AUG 2020
14 AUG 2020
ANNEXURE A – EXHIBIT LIST
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Natural Justice
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Jurisdiction
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Statutory Construction
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Remedies
0
12
0