YRYX and Minister for Immigration and Border Protection (Migration)
[2017] AATA 1985
•27 October 2017
YRYX and Minister for Immigration and Border Protection (Migration) [2017] AATA 1985 (27 October 2017)
Division:GENERAL DIVISION
File Number: 2017/4776
Re:YRYX
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:27 October 2017
Place:Perth
The decision under review is affirmed.
......[sgd]..L M Gallager................................
L M Gallagher, Member
CATCHWORDS
IMMIGRATION – Class TY Subclass 444 (temporary) visa – non-revocation of mandatory cancellation of visa – applicant did not pass character test and had served term of imprisonment – visa mandatorily cancelled under subsection 501(3A) Migration Act 1958 (Cth) – whether discretion in subsection 501CA(4) to revoke mandatory visa cancellation should be exercised – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed – best interests of minor children - expectations of the Australian community - other relevant considerations – non-refoulement obligations - strength, nature and duration of ties to Australia – extent of impediments if removed from Australia - discretion should not be exercised to revoke visa cancellation - decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – sections 499(1) and (2A), 500(1), 501(3A), 501CA, 501(6), 501(7)
CASES
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96
Leota and Minister for Immigration and Border Protection [2017] AATA 1365
SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 – paragraphs 6.2, 6.3, 7(1), 8(1), 13(2), 13.1(1), 13.1(2), 13.1.1, 13.1.2, 13.3(1), 14(1)(a),(b) and (e), 14.2(1), 14.5
REASONS FOR DECISION
L M Gallagher, Member
27 October 2017
INTRODUCTION
This is an application lodged under subsection 500(1)(ba) of the Migration Act 1958 (Cth) (‘the Migration Act’) for a review of a decision of a delegate for the Minister of Immigration and Border Protection (‘the Minister’) dated 3 August 2017 (G3) not to revoke the mandatory cancellation (by virtue of subsection 501(3A) of the Migration Act) of YRYX’s Class TY Subclass 444 (temporary) visa (‘the visa’) pursuant to subsection 501CA(4) of the Migration Act. Relevantly, the delegate found that YRYX had been sentenced to a term of imprisonment of 12 months or more and hence had a substantial criminal record as per subsection 501(7)(c) of the Migration Act. Therefore, YRYX had not satisfied the delegate that he had passed the “character test” by virtue of subsection 501(6)(a) of the Migration Act.
Having found that YRYX had not satisfied the character test, the delegate considered whether there was another reason why the mandatory visa cancellation decision should be revoked, in accordance with subsection 501CA(4)(b)(ii) of the Migration Act and as per the requirements of the Minister for Immigration and Border Protection, Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 (‘Direction No. 65’). The delegate was not satisfied that there was another reason and decided that YRYX’s visa remains cancelled.
BACKGROUND FACTS AND PROCEDURAL HISTORY
YRYX is a 26 year old citizen of New Zealand. YRYX first arrived in Australia on 14 September 1999 and has remained in Australia since that date (G6, page 28).
YRYX has a history of offending in Australia, including but not limited to (G5, pages 24 to 27 and G23, page 165):
(a)22 December 2016 – Aggravated burglary and commit offence in place for which he was sentenced to 10 months imprisonment.
(b)22 December 2016 – Two counts of breach of community based order of 12 May 2016 for which he was sentenced to 2 months and 6 months imprisonment respectively (concurrent).
(c)15 December 2016 – Aggravated burglary and commit offence in dwelling for which he was sentenced to 2 years imprisonment.
(d)12 May 2016 – Carried (possessed) an article with intent to cause fear and was sentenced to a community based order for 12 months (concurrent).
(e)12 May 2016 – Criminal damage or destruction of property and was sentenced to a community based order for 12 months (concurrent).
(f)24 March 2011 – Aggravated burglary with intent in place for which he was sentenced to 9 months imprisonment (concurrent).
(g)24 March 2011 – Wilfully & unlawfully destroy or damage property for which he was sentenced to 6 months and 1 day imprisonment (concurrent).
(h)24 March 2011 – Unlawfully assault and thereby did bodily harm with circumstances of aggravation for which he was sentenced to 6 months and 1 day imprisonment (cumulative).
(i)22 March 2011 – Aggravated burglary and commit offence in dwelling for which he was sentenced to 12 months imprisonment.
(j)6 February 2009 – Threaten to kill for which he was sentenced to 3 months imprisonment.
(k)20 November 2008 – Aggravated burglary and commit offence in place for which he was sentenced to 6 months and 1 day imprisonment.
(l)20 November 2008 – Two counts of breach of intensive supervision order for which he was sentenced to 6 months imprisonment on each charge (concurrent).
(m)20 November 2008 – Breach of suspended sentence for which he was sentenced to 6 months imprisonment (concurrent).
(n)28 October 2008 – Assault occasioning bodily harm for which he was sentenced to 6 months imprisonment, suspended for 12 months.
YRYX’s National Police Certificate (G5) and Australian Federal Police certificate (G23) also record numerous convictions for drug related offences, driving offences, common assault, stealing related offences and for breach of bail and supervision orders.
On 10 October 2011, a delegate of the Minister wrote to YRYX to advise him that while she had decided not to cancel his visa on character grounds on that occasion, he was formally warned that his visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test in future (G9). The letter also stated that disregarding this warning would weigh heavily against him if his case was reconsidered.
On 17 February 2017, YRYX was sent a Notice of Visa Cancellation under subsection 501(3A) of the Migration Act (G10, page 55). That notice invited YRYX to make representations about revocation of the cancellation decision.
On 23 February 2017, YRYX made a request for revocation of the mandatory cancellation and made representations in support of his request (G13 and G14).
On 3 August 2017, a delegate of the Minister decided, under subsection 501CA(4) of the Migration Act, not to revoke the visa cancellation decision dated 17 February 2017 (G3, page 11).
On 11 August 2017, YRYX applied to this Tribunal for review of the decision not to revoke his visa cancellation (G2), the reasons being that (G2, page 5):
“On previous prison sentences I have not had the opportunity to complete programs however on this sentence I have been given such opportunities.
I would like the Tribunal to take into consideration my successful completion of these programs and my personal attempts To [sic] address my recidivism.
My family are all Australian Citizens and Sending Back [sic] to New Zealand would leave me very much alone, please give me a second chance to prove myself.”
ISSUES
The issues for consideration by this Tribunal are:
·whether YRYX passes the “character test”; and
·if not, if there is another reason why the original decision to cancel YRYX’s visa should be revoked, taking into account the relevant considerations in Direction No. 65.
EVIDENCE
This matter was heard in Perth on 9 October 2017. YRYX appeared in person via video-link with the support of his case manager and was self-represented. The Minister was represented by Ms Tattersall from Sparke Helmore Lawyers.
The evidence before the Tribunal consisted of:
· YRYX’s statement dated 5 September 2017 (A1);
· a letter from Pania Pomana dated 21 August 2017 (A2);
· a letter from Reverend David Hilton dated 21 August 2017 (A3);
· a letter from Gwen King dated 18 August 2017 (A4);
· a letter from Jody Anne King dated 21 August 2017 (A5);
· Pathways Program Completion Certificate dated 22 September 2017 (A6);
· a 186 page set of G-Documents (G1 to G30) (R1);
· the Respondent’s Statement of Facts, Issues and Contentions (‘SFICs’) dated 6 September 2017 (R2); and
· extracts from documents produced under summons (R3).
The Tribunal has reviewed all of the material before it. The Tribunal is satisfied that all relevant evidence was before it and that both parties were provided an opportunity to address the evidence, either orally or in writing. Relevant aspects of the evidence and material before the Tribunal will be analysed and referred to below.
CONSIDERATION
Does YRYX pass the character test?
Pursuant to subsection 501CA(4) of the Migration Act, the Minister (and the Tribunal standing in the Minister’s shoes) may revoke a decision made under subsection 501(3A) of the Migration Act to cancel a visa that has been granted to a person 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.
[Emphasis added].
As summarised by Senior Member Popple in the decision of Leota and Minister for Immigration and Border Protection [2017] AATA 1365 at [13]:
In Gaspar v Minister for Immigration and Border Protection, the Federal Court explained:
… s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[1]
In other words, as the Full Court of the Federal Court pointed out in Marzano v Minister for Immigration and Border Protection, “‘may’ in s 501CA(4)(b) means ‘must’”.[2] The Full Court also noted:
… the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.[3]
[1] (2016) 153 ALD 338 at 345 [38] per North ACJ.
[2] [2017] FCAFC 66 at [31] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60]. See also at [30]–[32] per Collier J.
[3] [2017] FCAFC 66 at [32] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60].
In accordance with subsection 501CA(4)(b)(i) of the Migration Act, the Tribunal must first consider whether YRYX passes the “character test” as that term is defined in subsection 501(6) of the Migration Act.
Subsection 501(6)(a) of the Migration Act provides that a person does not pass the “character test” if the person has a substantial criminal record (as defined by subsection (7)).
Subsection 501(7)(c) of the Migration Act relevantly provides that for the purposes of the “character test”, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
As noted at subparagraph 4(c) above, on 15 December 2016, YRYX was convicted in the District Court of Western Australia and sentenced to 2 years imprisonment (G7, page 44).
As a consequence of receiving a sentence in excess of 12 months, YRYX is deemed to have a substantial criminal record and does not pass the “character test” set out in subsection 501(6)(a) of the Migration Act. YRYX did not assert otherwise before this Tribunal.
Accordingly, and on the evidence before it, the Tribunal finds that YRYX does not pass the “character test” as that term is defined in the Migration Act.
Is there another reason why the original decision that cancelled YRYX’s visa should be revoked?
Having determined that YRYX does not pass the “character test” because he has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more, the Tribunal must now determine whether, in accordance with subsection 501CA(4)(b)(ii) of the Migration Act, there is another reason why the original decision that cancelled YRYX visa should be revoked.
On 22 December 2014, the Minister, in accordance with its powers under subsection 499(1) of the Migration Act, issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers from that date (subsection 499(2A) of the Migration Act). It provides guidance to the Tribunal on the application of the “character test” and the exercise of its discretion. Relevantly, the Preamble to Direction No. 65 (at paragraph 6) states:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501 (3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501 CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction No. 65 provides general guidance to the Tribunal in relation to the exercise of the discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501 CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 sets out a number of principles, including the following:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[Emphasis added]
Subparagraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. Relevantly, subparagraph 7(1)(b) of Direction No. 65 states:
(1)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.
Sub-paragraphs 8(1) and 8(4) of Direction No. 65 respectively state:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case.
…
(4)Primary considerations should generally be given greater weight than the other considerations.
In relation to YRYX’s application, Part C of Direction No. 65 sets out the considerations that are relevant in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa. These considerations are addressed below.
Primary considerations
Subparagraph 13(2) of Direction No. 65 sets out the following three “primary considerations” that must be taken into account in deciding whether to refuse a person’s visa:
(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.
Each of the three “primary considerations” is addressed in relation to YRYX below.
(i) Protection of the Australian community from criminal or other serious conduct
In relation to subparagraph 13(2)(a) of Direction No. 65 (i.e. protection of the Australian community), subparagraph 13.1 of Direction No. 65 provides:
13.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australian is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals of the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the non-citizen’s conduct to date
In relation to sub-paragraph 13.1(2)(a) of Direction No. 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), subparagraph 13.1.1 of Direction No. 65 relevantly provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(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 committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeated offending;
…
(g)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);
…
[Emphasis added]
In determining whether YRYX’s conduct should be viewed as serious, the Tribunal notes the facts of his offences and the sentences imposed by courts for aggravated burglary and commit offence in dwelling (the offences for which YRYX was respectively sentenced on 15 December 2016 and 22 March 2011). The Tribunal notes, in particular, the sentencing remarks of His Honour Justice O’Neal dated 15 December 2016 (G7) and Her Honour Justice Yeats dated 22 March 2011 (G8). In those sentencing remarks, the summaries of YRYX’s conduct is as follows:
15 December 2016 (G7), relating to the offence committed on 13 November 2015:
…
“Counsel for [YRYX] sought to persuade me, as a matter of mitigation, that the axe he wielded to gain entry was found fortuitously at the place where entry was forced. Counsel for the State didn’t accept that and no evidence was offered. I’m not able to make a positive finding in that respect in mitigation. Counsel for [YRYX’s co-offender] sought to advance the position that his client was motivated to assault the victim here, nor merely by a belief that his 18 year old partner had been given, or indeed, pressured to use methylamphetamine by her mother’s boyfriend, but that the fact that was so.
Having heard from [YRYX’s co-offender’s partner], I am satisfied that it was the case that having managed, with the assistance of [YRYX’s co-offender], to give up the methylamphetamine habit, she was induced by her mother’s boyfriend to smoke methylamphetamine. I’m satisfied that pressure was brought on her to use methylamphetamine and she succumbed to that pressure. She confessed that fact to [YRYX’s co-offender], feeling and [sic] obligation to do so because of their agreement to help each other with those issues, and he was, I accept, genuinely angry at the mother’s boyfriend for that reason, leading to the offence.
It is not strictly a mitigation fact, as it smacks of vigilantism, but it offers a context that places this offending in a different category, for example, from offences where the motive for forcing entry is the collection of a drug debt or a standover or an intended assault for no reason whatsoever. The circumstances of aggravation here mean that this kind of offence carries a higher maximum penalty than would be the case in an ordinary burglary.
I am satisfied, however, that the following aggravating factors are also established beyond reasonable doubt. This was the kind of aggravated burglary described as a home invasion. It was the home of an elderly couple, a man, 82 and a woman of 72. Also inside the house at the time was a child of 15 years old. It is the case that no violence was directed at them, but they were, of course, subject to the fear that would naturally be created by offending of this kind, when entry was gained to the house in the way that it was.
…
…[YRYX], you were the older of the two, but not the person driving this offending – or so it would appear. But your use of the axe to gain entry made this a particularly distressing experience for the people in the house who, included, of course, two elderly people and a child.
You didn’t enter the house and did not yourself assault anyone. Your reason for being there at all, as best can be determined, was some sense of misguided allegiance of sense of family towards [YRYX’s co-offender] as the brother of your partner…”
[Emphasis added]
22 March 2011 (G8), relating to the offence committed on 31 March 2010:
“The offender has been convicted on his own plea of guilty of one count of aggravated burglary. It’s a very serious offence. On 31 March 2010, he and his co-offender were staying in a tent at the Dongara Denison Beach Holiday Park. They became highly intoxicated.
In the early hours of the morning, the two of them entered cabin 7. They pulled back the flywire screen and pushed open a sliding glass window and climbed in. The cabin was occupied by a couple on holiday with two young children aged five and two and a half, as well as the children’s grandmother, and all were asleep in the cabin.
The offenders stole property valued at $5,000 and approximately $1,800 in cash, as well as the victim’s car keys. The offenders then used the keys to steal a DVD player from the car, and beer and wine from the victim’s boat. The offenders were promptly apprehended, and most of the property recovered and returned to the family.
At the time of the offence, [YRYX] was just 19 years of age. He had an extensive record of prior offending including burglary, stealing, threats to kill, assault occasioning bodily harm, alcohol related driving offences, possession of cannabis.
…
[YRYX] has been in a four-year relationship and has two children, but I understand there’s a violence restraining order against him. He also has been informed of a three-year-old child from another relationship. The offender’s problem is alcohol and adverse peer associates…”
The Tribunal also notes the facts surrounding a number of YRYX’s additional offences, namely:
(a)22 December 2016 (G19 page 93), Aggravated burglary and commit offence in place, relating to the offence committed on 2 October 2016 – YRYX whilst in company with others entered the premises of the Greenough River Resort. The building was not currently used and was in a dilapidated state. YRYX attended the top floor of the premises and pulled copper wiring from the roof space. He has then cut the copper into approximately 1 metre lengths for transportation to an awaiting vehicle.
(b)12 May 2016 (G19), Criminal damage or destruction of property committed between 25 March 2016 and 26 March 2016 – YRYX attended the Woorree Park Community Hall and Geraldton Districts Kennel Club. YRYX became angry after being involved in an argument with his partner. YRYX removed an axe from the bag he was carrying and started smashing windows, security screens and doors at the hall. In total about 20 windows, screens and doors were damaged during the incident.
(c)12 May 2016 (G19), Carried (possessed) an article with intent to cause fear committed on 26 March 2016 – YRYX was walking down the road whilst carrying two large bags of personal effects. YRYX was, at the time, involved in a domestic argument with his partner. YRYX dropped the bags on the side of the road and removed a ¾ length axe and continued walking north with his partner. YRYX used the axe to hit a letterbox causing it to be damaged. YRYX then saw a witness (off-duty police officer) who was watching his actions from a car and YRYX turned and walked towards his vehicle carrying the axe in full view. The witness kept his distance from YRYX fearing if YRYX approached him, he may have been injured.
The Tribunal further notes the remaining significant history of YRYX’s offending including stealing, threats to kill, burglary, alcohol related driving offences, assault occasioning bodily harm, possession of cannabis and that a violence restraining order had previously been taken out against him (G8).
In oral evidence before this Tribunal (or in A1 where otherwise stated), YRYX said:
(a)The last time he was released from prison, he “didn’t have a family” and “didn’t really care” and he failed every course that he tried.
(b)He now has something to lose, being his young son and his fiancée. He has “always been on his own” and has now “experienced what a family should be” and he “doesn’t want to lose them.” He is hoping to get married and considers this [review process] to be “the last chance to see his son grow.”
(c)He also now has the opportunity to better himself. He is on the waiting list for the violent offenders program which will overlap his parole date. If “all goes well with the Tribunal” he intends to delay his parole and stay in prison so that he can complete the violent offenders program. He knows that his parole will “come back up” again.
(d)He wants “more programs” and “more help.” His [conduct has] “taken a toll” and he has “taken things for granted” as he “never really had anything.”
(e)He knew that he had “had a warning” (refer to paragraph 6 above), however he “didn’t care then.” Thanks to his partner, he has “matured a lot” from when he was “young back then” and “was stupid.”
When asked by Ms Tattersall as to which of the offences recorded against him he regarded as serious, YRYX said that they “all are serious” and the reference in his statement to some of his offences being “on the less lower end of serious,” (for example being given a two year sentence when the maximum sentence that could be imposed was 20 years) (A1)) was incorrect.
When it was put to him by Ms Tattersall that his offending record demonstrates that he has no regard for the laws of Australia when it suits him, YRYX disagreed and said that some of his offending was due to drug and alcohol use, therefore he doesn’t remember the actual events (i.e. he has no memory for the offending conduct). YRYX said that he “would annihilate himself,” which “was ridiculous” and that he now has “blackouts here and there because of that.” YRYX said that he now sees that he “has a problem” and he “wants to address all of his behaviour.”
YRYX said that his problem with alcohol is longstanding, from when he was eleven years old. YRYX said that he “wants to stop,” he has not previously made any effort to stop and he has also failed to previously deal with substance abuse problem. YRYX said that he previously engaged with Pathways and with an anger management program and had failed both courses. YRYX said he had now completed the Pathways Program and referred to his completion certificate (A6) in this regard.
YRYX said that while he had attended counselling that had been offered to him following previous court orders, he “supposed you could say” that he had been indifferent to those opportunities at the time.
Ms Tattersall directed YRYX to the following extract from his prison interview notes dated 29 September 2011 (G18, page 91), noting that despite his efforts during counselling (noting YRYX previously participated in the Pathways Program in 2011 however did not complete it) he continued to offend after his release from prison in 2011:
“[YRYX] further stated that he “tries to get help” – counselling – but that often counsellors would turn him away and “kick him to the kerb.” [YRYX] stated that he was currently attending counselling sessions once a week in prison and intends to continue this.
[YRYX] has participated in the Pathways Program and is on the list for a Violent Offenders Therapeutic Program, however this latter program is booked out for the next two years.”
With regards to the extract at paragraph 42, YRYX said that he did try to address his anger issues, but there was either nothing available to him at the time or he “had to travel for it.” YRYX said that he completed the Pathways Program less than one month ago (A6) and it was the only rehabilitation program that he has completed. YRYX said that his violence program “comes up very soon” and “all the other courses book out.” YRYX said that he is trying to do anything he can to help him with his offences and that he wants to get as much help as he can. YRYX said that he does not want his son “to be where he is.”
Ms Tattersall noted that YRYX’s comments (in paragraph 43 above) were almost verbatim to the paragraph that followed the extract from his prison notes at paragraph 42 above, namely:
“When asked if he thought it was likely that he would re-offend, [YRYX] stated that he did not want to go back to prison and would try to get as much help as you can to avoid re-offending. [YRYX] expressed great concern for his children if he were deported. [YRYX] stated that he does not want to be deported from Australia.”
YRYX then said that now that he has a son, he is trying to get all of his kids together to meet their new brother and that he wants to see his kids grow up.
When asked by Ms Tattersall, YRYX said that he had started offending after his first child was born in 2004, however he did not know about this child until she was about two years old. YRYX said that he was angry that he hadn’t known about his daughter and part of the reason he began offending because his daughter was not a part of his life. YRYX said he did not blame his daughter’s mother for his offences, rather, he believes her mother has “done the right choice, by taking her away,” which he “thanked her” for. YRYX said that at the time, he wasn’t a fit father figure and not a good role model for his daughter.
When asked by Ms Tattersall, YRYX said he also continued to offend after his twin boys were born in 2008.
As to the reference in his prison notes dated 29 September 2011 (G18, page 90) that YRYX stated “that the mother took off when the twins were 18 months old, as her family did not approve of her relationship with him,” YRYX said he had looked after the twins from approximately 18 months of age to two and a half years of age. YRYX said the twins then spent a few months with his sister, until they were about the age of three and the twins have been living with their mother since then.
As to his youngest son, born in early 2017 while he was in prison, YRYX said that he had continued to offend after finding out in about August 2016 that his partner was pregnant.
YRYX said that he had stopped drinking before going into prison as he was tired of it, rather “it’s the drugs he needs to get off.” YRYX said that the reference in his statement (A1) to being convicted of offences “connected somehow to my drug and alcohol dependence,” it “was more the drug use” and it was more of a habit than anything else to refer to “drugs and alcohol” together.
As to his fiancée, YRYX said that they have been in a relationship for about two years although he can’t really remember when they first met.
When asked by Ms Tattersall as to whether he continued to use drugs and offend after having met his fiancée, YRYX said “not as much” and that he had “slowed down” in terms of his offending and drug use. In response to Ms Tattersall’s question of whether YRYX considered his offending conduct involving the use of an axe and smashing windows in a hall was a “slowing down” of his offending, YRYX said that “he supposes” and that it was “better than picking fights with people and taking drugs.”
When directed to it by Ms Tattersall, YRYX accepted there was an inconsistency between his fiancée’s statement that since being in a relationship with him he has stopped taking drugs (G2, page 6) and his evidence that his drugs use had slowed (rather than ceased completely) when he met her.
In relation to YRYX’s offences, the Minister, in its SFICs (R2), contended that YRYX’s crimes should be viewed as serious for the following reasons:
(a)YRYX’s crimes attracted a sentence of imprisonment (for a total period of approximately 9 years), noting that sentences of imprisonment are the last resort in the sentencing hierarchy and that, accordingly, any such sentence must be viewed as a reflection of the objective seriousness of the offence involved (R2, paragraph 32).
(b)Noting the various factors to which decision-makers can have regard in paragraph 13.1.1 of Direction No. 65, YRYX’s offences are serious as they involved violence and threats of violence (subparagraph 13.1.1(1)(a)), they demonstrate a trend of frequent offending increasing in seriousness (subparagraph 13.1.1(1)(d)) and a disregard for the laws of Australia and the consequences of his offending (R2, paragraph 31).
(c)In addition to YRYX’s more serious offences, he had a number of convictions for breach and bail and breach of community based orders and driving without authority (R2, paragraph 31).
(d)YRYX continued to offend despite being formally warned about the consequences of further offending in terms of his migration status (G9, page 52) (R2, paragraph 31) (subparagraph 13.1.1(1)(g)).
At hearing, Ms Tattersall contended further that YRYX’s offending was very serious and contrary to his assertion of it “slowing down” having met his current partner. Ms Tattersall said that YRYX sought to attribute his offending, in part, to the mother of his daughter not telling him when she was pregnant and he also sought to attribute his driving without a licence on 9 October 2014 to his need to attend work (A1, page 2).
Ms Tattersall added that the offences recorded in R3 demonstrated a pattern of offending as opposed to an isolated incident (referring to R3 at pages 26, 30, 53, 79, 82, 95, 96, 98, 131, 146, 187, 212 and 217).
Ms Tattersall also noted that the birth of YRYX’s children, as well as the availability of counselling at various times, has not altered YRYX’s offending behaviour.
The Tribunal notes that, in considering the nature and seriousness of YRYX’s offences, in particular, the offences for which YRYX was convicted on 15 December 2016 and 22 March 2011 (see subparagraphs 4(c) and 4(i) above) they are offences that are viewed seriously, which is reflected in direction No. 65 and by the sentencing remarks extracted at paragraph 34 above. As noted by the Minister, sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. YRYX’s terms of imprisonment for these offences reflect the seriousness of YRYX’s conduct against the community.
The Tribunal also notes the sentencing remarks that the offence for which YRYX was convicted on 15 December 2016 created fear in a particularly distressing way towards two elderly people and a child and on 22 March 2011 included a grandmother and two children (and refers to subparagraph 13.1.1(1)(b) of Direction No. 65). In considering the totality of YRYX’s offending conduct, the Tribunal also notes the factors identified by the Minister at subparagraphs 34(b), 34(c) and 34(d) above along with subparagraph 13.1.1(1)(e) of Direction No. 65.
The Tribunal notes that YRYX has an extensive history of offending, with many of those offences (by YRYX’s own evidence) involving drugs and alcohol and a number of those offences involving violent conduct.
The Tribunal notes that YRYX has failed to comply with the community based order imposed on him following his conviction of carried (possessed) an article with intent to cause fear.
The Tribunal has also taken into account the fact that at the time of YRYX’s offending his drug and alcohol abuse may have influenced his offending behaviour, although it cannot be said that those factors reduce his responsibility for those actions. The Tribunal notes that YRYX’s evidence that he no longer drinks alcohol and rather, it is the drug taking that needs to cease.
The Tribunal finds that while YRYX appears to be sorry for his offending conduct, given certain aspects of his evidence (that using an axe and smashing the windows of a hall constituted a slowing down of his offending, attributing his offending, in part, to not initially knowing that his then partner was pregnant with his daughter and that some offences, for example damaging windows are “a lot better” than others, for example picking fights), it cannot be satisfied that YRYX has accepted full responsibility for his actions or that he understands or accepts the seriousness of his offences, including some of them being violent in nature and against vulnerable members of the community.
Applying the above to the principles in subparagraph 13.1.1 of Direction No, 65, the Tribunal finds that, viewed objectively, YRYX’s crimes are indeed serious and of considerable concern. In the circumstances of the matter, the crimes that YRYX committed, particularly those involving aggravated burglary, threaten to kill, assault occasioning bodily harm, those committed while under the influence of drugs and alcohol (by YRYX’s own evidence) and those committed with disregard for a community order in place, weigh heavily against revocation of the mandatory cancellation of YRYX’s visa. YRYX’s conduct in continuing to drive without authority (having never held a licence) and reoffending whilst subject to a community order reflects disregard for the law and a degree of indifference that cannot be excused.
(b) The risk to the Australian community should further offences be committed
Subparagraph 13.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether YRYX represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Subparagraph 13.1.2 of Direction No. 65 provides:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[emphasis added]
In oral evidence before the Tribunal, YRYX said that he “knows he has done all of these things” and it “looks like he is constantly reoffending” and it is “time to change.” YRYX said that he has spoken to his victims “[victim’s name] and all that” and “said sorry and stuff like that” and having now completed the Pathways Program, he knows that “not everything can be solved by a beer or a cone or a fight on the street.”
YRYX said that he now has a family, which he never had before, which has made him realise that everything he does or says “actually impacts a lot of people.” YRYX said that “if he gets another chance, he will sign an affidavit that he will never come back to prison.”
In his written statement (A1), YRYX said that he has “a low risk of reoffending if I maintain my medication (for depression and anxiety) and stay away from drugs.”
In relation to relevant issues which relate to the consideration of the risk to the Australian community, the Minister contended as follows in R2:
34.The nature of the harm to victims if the applicant were to reoffend in the future is serious, and could involve significant physical, financial, and psychological harm to members of the Australian community.
35.Turning to the likelihood of reoffending, the applicant is a repeat offender with an extensive criminal history, which dates back to 2006. The Minister notes that, whilst the applicant has expressed some remorse and has engaged in limited rehabilitation, the applicant’s ability to abstain from drugs and alcohol and not offend further has not been tested in the community free from obligations of the Court.
36.Given the applicant’s criminal history, past relapses despite engagement in a [sic] previous rehabilitation and counselling (G18/91), and continued offending despite receiving a warning by the Department and with the knowledge that his offending could lead to deportation, the Tribunal can have little confidence in the applicant’s assertion that he will “hopefully not” reoffend (G14/74). Furthermore, limited weight should be given to the applicant’s assertion that his son is a motivation for him to change (G14/74) in circumstances where he continued to offend after the birth of his younger children.
In considering the risk of harm to the Australian community, the Tribunal notes YRYX’s evidence in paragraphs 67 to 69 above, along with A1 in its entirety and the Minister’s contentions in paragraph 70 above. The Tribunal has also considered:
(a)the letters of support from YRYX’s mother (A2, G16), chaplain (A3), friends and family (A4, A5, G2);
(b)YRYX’s Pathways Program Certificate (A6);
(c)YRYX’s evidence regarding his upbringing, including his homelessness as a child and substance abuse issues; and
(d)YRYX’s overall disciplined behaviour in custody and program schedule for further rehabilitation (G19) (also having regard to subparagraph 13.1.2(2)(b) of Direction No. 65) and his remorse for his offending.
Having considered these matters, the Tribunal considers there is nothing in the evidence and materials before it to objectively demonstrate that if YRYX was placed in similar situations again that he would not engage in serious criminal offending once again. The Tribunal also has significant concern, notwithstanding YRYX’s expression of his remorse regarding his offences, about his inability, even at hearing, to appreciate the seriousness of (and, at times, violence inherent in) his offending conduct and the consequences that flowed from this.
Based on the evidence before it, the Tribunal considers that there is a moderate risk that YRYX will reoffend if returned to the community in Australia. The Tribunal also considers that this risk would be high if YRYX were to return to abusing drugs and alcohol. Applying the guidance in subparagraph 13.1.2 of Direction No. 65, and given the nature of YRYX’s offences, his role in the commission of those offences and the Tribunal’s view that, even now, he fails to appreciate the serious nature of these offences, the Tribunal finds that the risk of YRYX reoffending is unacceptable in all of the circumstances of the case. Overall, YRYX’s behaviour presents a risk of reoffending that would be too much for the Australian community to tolerate. This weighs heavily against revocation of the mandatory cancellation of YRYX’s visa.
(ii) Best interests of minor children
The second primary consideration listed in subparagraph 13(2) of Direction No. 65 asks the Tribunal to examine the best interests of any minor children in Australia affected by a decision to revoke or not revoke the mandatory cancellation of a visa.
In relation to subparagraph 13(2)(b) of Direction No. 65, subparagraph 13.2 of Direction No. 65 relevantly provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
…
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)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;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
…
[Emphasis added]
YRYX has four minor children in Australia, namely:
(a)a son, born in January 2017;
(b)a daughter, born in January 2008; and
(c)twin sons born in October 2004.
In oral evidence, while YRYX accepted that here had been extended periods of separation between himself and the children, he said that he does try and keep in contact with them, by “Facebook.”
When it was put to him by Ms Tattersall, YRYX also accepted that there was no reason why he could not continue to contact them by “Facebook” if he were to be removed from Australia, YRYX said that he “would like to be in their lives,” which is “something he has to work on” and see if the mothers are willing to “let him be a part of their (children’s) lives” and “be a father or something in their lives.”
YRYX said that all of his children live with their mothers, who are essentially the ‘parent’ for them.
In his statement (A1), YRYX said that he sees his infant son two or three times a week. YRYX also said in his statement that since he has been in jail he cannot support his kids like he has when he was out of jail and now (his infant son) is here he cannot support him and his mother.
In relation to the consideration of the best interests of YRYX’s minor children, the Minister contends that (R2 at paragraph 39):
“39.In accordance with paragraph 13.2.4(a)…less weight should be given to this consideration in circumstances where:
a.It is not apparent that the applicant currently has any contact with [his twin sons and his daughter] and there have been long periods of absence given the applicant’s incarceration.
b.There has been limited meaningful contact with [his infant son].
c.The children could maintain contact with the applicant by other means for example telephone or Skype.
d.Someone already fulfils a parental role for each of the children.
e.Given the applicant’s lengthy criminal history and drug, alcohol, and anger management problems, the Tribunal can have no confidence that the applicant would play a positive parenting role in the future.
At hearing, Ms Tattersall made no further contention in relation to the issue of the best interests of YRYX’s minor children.
The Tribunal notes that if the original decision is not revoked, YRYX will be forced to leave Australia. That would not be in the best interests of YRYX’s four minor children to the extent, in practical terms, that they will be separated from their father.
The Tribunal accepts that YRYX has maintained a relationship with his infant son during his time in prison and his intentions are to be a positive role model for him. The Tribunal has taken into account that YRYX had not had contact with his twin sons, now approaching thirteen years of age, since they were approximately two and a half years old (or with his daughter since he was first informed or her existence when she was three years old) and while he intends to re-establish contact with them he is yet to do so.
Overall, considering the evidence at paragraphs 76 to 84 above the Tribunal finds that this factor weighs in favour of revoking the mandatory cancellation of YRYX’s visa, although not as heavily as the first primary consideration (being protection of the Australian community from criminal or other serious conduct) and that the Tribunal finds this to be the case mainly in relation to YRYX’s infant son (and significantly lesser so in relation to his three older children).
(iii) Expectations of the Australian community
In considering subparagraph 13(2)(c) of Direction No. 65 (the expectations of the Australian community), the Tribunal refers to subparagraph 13.3 of Direction No. 65 for guidance:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
[Emphasis added]
In relation to the expectations of the Australian community, the Minister contended as follows (R2):
“42.The Minister acknowledges that in line with Principle 5 of Direction 65, the Australian community may afford a higher level of tolerance of criminal or other serious conduct to the applicant as he has lived in Australia since age 8. However, the Minister notes principle 2 of Direction 65, confirming the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled.
43.Given the nature of the applicant’s offences and long history of offending, and the continuing risk to the community that he poses, the Australian community would expect that the applicant should not hold a visa.”
At hearing, Ms Tattersall made no further contentions in relation to the issue of the expectations of the Australian community and none were put orally by YRYX in this regard.
In the circumstances of the case, the Tribunal finds that the expectations of the Australian community are that a non-citizen who has engaged in a number of serious crimes, some involving violence, who has shown, in the Tribunal’s view, no true appreciation of the serious nature of the offence or provided any satisfactory evidence that it will not happen again, should expect to be denied the right to stay in Australia.
Other considerations
Paragraph 14(1) of Direction No. 65 states:
14 Other considerations – revocations requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
[Emphasis added].
It is not in dispute, and the evidence shows, that in relation to YRYX, the only “other considerations” that are relevant are those outlined in subparagraphs 14(1)(a), 14(1)(b) and 14(1)(e) of Direction No. 65 (i.e. international non-refoulement obligations, the strength, nature and duration of ties and extent of impediments if removed).
International non-refoulement obligations
The Minister’s decision, although not a decision to “cancel” a visa but, rather, a decision not to revoke mandatory cancellation of a visa, is in practical terms, akin to a decision to cancel a visa held by YRYX. Consequently, the Tribunal considers it appropriate in YRYX’s case to take into account any other relevant considerations.
Paragraph 12.1 of Direction No. 65 provides:
(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations to non-citizens in Australia under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2)The existence of a non-refoulement obligation does not preclude refusal of a non-citizen’s visa application in Australia. This is because Australia will not remove a non-citizen, as a consequence of the refusal of their visa application, to the country in respect of which the non-refoulement obligation exists.
(3)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider refusal of their visa under s501 of the Act, or can be clear from the facts of the case (such as where the non-citizen is an applicant for a protection visa).
(4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen is able to make a valid application for another visa, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether their visa application should be refused.
(5)If, however, the visa application being considered for refusal is a Protection visa application, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6)In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should be granted a visa. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa application were refused, they would face the prospect of indefinite immigration detention.
[Emphasis added]
YRYX has given evidence in his statement (A1), that:
“…if I was deported I [sic] have to join a bikie group and I don’t not [sic] like Bickies [sic] and that my mum had to move here to australia [sic] because she was going to die due to she will not join [sic] and she fears that coz [sic] I do not like them and that it will break [sic] up a lot [sic] of famliy’s…”
The Tribunal also notes YRYX’s evidence that (G17, page 88):
“My grandmother and mother moved me to Australia because they was [sic] concerned about my well-being. My father was involved with the Mongrel Mob and I would grow up and become involved with them if I stayed in New Zealand. If I go back to New Zealand I will be with the Mongrel Mob as I am next in line as my father is deceased. And it is expected I will become involved as my family is involved with them.”
The essence of YRYX’s evidence at paragraph’s 94 and 95 above is that he fears harm from a gang his late father was involved with should he return to New Zealand. In relation to international non-refoulement obligations, the Tribunal notes paragraph 12.1 of Direction No. 65 (refer to paragraph 92 above) makes the following comments and findings:
(a)There is no evidence that YRYX has ever sought, or been granted a protection visa, therefore he is not prevented from doing so in future subparagraph 12.1(5) of Direction No. 65).
(b)Until recently, the Tribunal would have found that, because of his ability to apply for a protection visa, the Tribunal was not required to assess any non-refoulement obligations owed to YRYX. It was generally accepted that because Direction No. 65 specifically states that it is not necessary to determine a non-refoulement issue in circumstances where an applicant can apply for a protection visa, the Tribunal would normally rely on any non-refoulement assessment being made by another body specifically charged with determining the validity of a Protection visa claim.
(c)That position is now disputed, however, because of the recent decision of the Federal Court in BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96 (“BCR16”). Following BCR16 (now on appeal to the High Court but which is binding on this Tribunal) the Tribunal is required to assess (to the extent that it can on the evidence) any type of harm that might arise to him should YRYX be deported to New Zealand. This is so regardless of whether an applicant specifically frames his risk of harm as a non-refoulement issue.
(d)In assessing any non-refoulement obligations, the Full Court has previously noted that the level of analysis required by the Tribunal is less than that required in assessing a claim for a Protection visa. Relevantly, in Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 in relation to a s 501 refusal, the Court found (at [28]):
An exercise of the statutory power conferred by s 501 of the Migration Act does not require the same analysis to be undertaken as would be required if an application for a protection visa is made and s 36 is invoked. Nor is that analysis to be undertaken even where the Minister does take into account Australia’s non-refoulement obligations.
(e)Nor, it should be stressed, could the Tribunal engage in the sort of evidentiary analysis that would be undertaken if a protection visa claim were examined elsewhere by those specifically charged with analysing a protection visa claim. Normally, when a protection visa application is determined, the decision maker has access to an extensive interview with the applicant and, importantly, a detailed International Treaties Obligations Assessment (“ITOA”). That is not the case here. Before this Tribunal, in an expedited hearing that requires the Tribunal to make an assessment in a very short period of time, the Tribunal does not have the benefit of an ITOA or the full body of evidence one would expect in a protection visa hearing.
(f)In these circumstances, the Tribunal can only assess the limited evidence before it in determining any risk of harm to YRYX. This is arguably less than ideal given the possible negative consequences for an applicant in this context.
(g)Based on the limited evidence before it, the Tribunal is willing to accept that YRYX:
(i)has familial ties to the Mongrel Mob in New Zealand;
(ii)may face some risk of harm if he is returned to New Zealand and refuses to join them.
(h)On the limited evidence before it, this finding weighs to some degree in favour of revoking the decision to cancel YRYX’s visa. The question the Tribunal needs to ask, however, is whether this finding in relation to what is an “other” or “secondary” consideration outweighs the Tribunal’s findings in relation to the primary considerations detailed above.
(i)The Tribunal finds that it does not do so. The Tribunal finds, on the limited evidence, that YRYX might have some safety concerns in New Zealand, albeit minor. The evidence in support of this finding is, however, scant. Overall, the Tribunal needs to weigh these safety concerns with the very strong concerns outlined above in relation to the seriousness of YRYX’s crimes, the risk of further offending and what this would mean for the Australian community – findings that were based on very clear and strong evidence.
(j)The Tribunal recognises that any concerns it has in relation to YRYX’s safety are somewhat addressed by the fact that YRYX can apply for a protection visa. Further, noting that the primary considerations in Direction No. 65 (based here on unequivocal evidence) are normally given greater weight than the other considerations (here, based on less than ideal evidence), the Tribunal finds that the primary considerations here clearly outweigh this secondary consideration. This should not be seen, however, as a comment by the Tribunal as to the prospects of any future protection visa application.
Strength, nature and duration of ties
With respect to the “strength, nature and duration of ties” consideration, sub-paragraph 14.2 of Direction No. 65 states:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where there the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
[Emphasis added]
In his statement (A1), YRYX said that from what he knows, all of his family are in Australia.
In relation to the strength, nature and duration of YRYX’s ties to Australia, the Minister contended as follows (R2):
“60.The Minister acknowledges that the applicant has substantial ties to Australia. He arrived at age 8; however, in line with paragraph 14.2(1)(a)(i), the Minister contends that less weight should be given to this consideration in circumstances where the applicant began offending soon after he arrived. Further, the evidence before the Tribunal does not indicate that the applicant has made any significant positive contributions to the Australian community and as such, the Minister contends that less weight should be given to the length of the applicant’s residence in Australia (paragraph 14.2(1)(a)(ii)).
61.The Minister acknowledges that the applicant’s children, parents, and family reside in Australia (G14/73). While the applicant’s removal to New Zealand may involve a physical separation from his children, there is no evidence before the Tribunal to suggest that they would not be permitted to visit him in New Zealand. Nor is there any suggestion that he would be unable to maintain contact with his family in other ways.
62.The Minister accepts that this consideration weighs in favour of revocation. However, the Minister contends that it should be given limited weight and does not outweigh the primary considerations weighing heavily in favour of revocation.”
At hearing, Ms Tattersall made no further contentions in relation to the issue of the strength, nature and duration of YRYX’s ties to Australia and none were put orally by YRYX in this regard.
In considering the strength, nature and duration of YRYX’s ties to Australia, the Tribunal has taken into account the matters addressed at paragraphs 98 and 99 above, along with:
(a)His engagement to his fiancée who is an Australian citizen and the mother of their infant son.
(b)YRYX’s evidence that he intends for their family to remain together and to be a father to his infant son and to re-establish contact with his three older children (refer to subparagraph 37(b) and paragraph 78 above).
(c)YRYX’s fiancée’s evidence that her depression and anxiety would increase if YRYX were to be deported (G2, page 6).
(d)YRYX’s employment history from 2005 to 2016 (G14, page 75) in industries including cray fishing, shearing, as a handyman and as a volunteer at the Sun City Christian Centre in Geraldton.
YRYX arrived in Australia at 8 years of age (G6, page 28). The Tribunal accepts that YRYX has a close relationship with his fiancée and his infant son and has no family members residing in New Zealand.
The Tribunal considers that if YRYX is forced to leave Australia, the effect on his fiancée and infant son will be negative, however this must be considered along with the fact that his offending conduct commenced by 2006 and continued through to his present term of imprisonment.
The Tribunal finds that on balance, the strength, nature and duration of YRYX’s ties to Australia weigh in favour of revocation of the mandatory cancellation of YRYX’s visa.
Extent of impediments if removed
With respect to the “extent of impediments if removed” consideration, sub-paragraph 14.5 of Direction No. 65 states:
(1)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 them in that country.
At hearing, YRYX said that, regarding rehabilitation programs that would be available to him in New Zealand, there “were a few courses there” but “not as much as what is available to him in Australia,” “unless you are in the actual (prison) system itself.”
As to whether there was any reason why YRYX’s fiancée (and son) could not go with him if he were to be removed from Australia, YRYX said that to move would be “expensive” and that his fiancée “wants to move but money is a factor.” When it was put to him by Ms Tattersall, YRYX accepted that his fiancée, if she moved to New Zealand with him should he be deported, would be able to keep in touch with her family (in Australia) electronically.
In his statement (A1), YRYX said that:
“I have sever [sic] depression and anxiety and I am taking medication since I have been on them I can think better I’m not angry at all and my partner and my mother-in-law both can see the difference in my mood’s [sic] and I am afraid I fear that if I am to leave I will not have the motivation and the support not just from my family but also from … my vitim’s [sic] I well [sic] go off the rail’s [sic] and back to my old way’s [sic] of living and I don’t want that…
…”I do not know where I would live or to find work or were [sic] I need to go to get my medication from or social security or the health system or anything like that. just [sic] thinking about it makes me cry and upsit [sic]…”
In relation to the extent of impediments if YRYX were to be removed from Australia, the Minister contended as (R2):
“65.The applicant is currently 43 [sic] years of age and would have no language impediments if removed.
66.The Minister contends that the New Zealand government offers comparable social welfare to which the applicant may be entitled and that cultural and social conditions are also comparable. He also has work experience in Australia and there is nothing to suggest that he would not be able to obtain work in New Zealand. While the applicant may well face some initial difficulty re-establishing himself in New Zealand, it cannot be said that the extent of the impediment would be insurmountable. Accordingly, the Minister considers that this factor does not outweigh the considerations favouring non-revocation.”
At hearing, Ms Tattersall noted that while YRYX’s evidence was that “he has always been alone,” limited weight should be given to the fact that he would have limited family support in New Zealand given the evidence that his fiancée would be prepared to move with him to live there.
YRYX is currently aged 26 years, so his age will not, in and of itself, be an impediment for him. There is no evidence to suggest YRYX would have any language or cultural barriers if removed. The Minister has contended that (at paragraph 66 of R2 extracted at paragraph 109 above) that the New Zealand Government offers comparable social welfare to which YRYX may be entitled and the Tribunal finds this to reasonably be the case.
The Tribunal notes that YRYX takes medication for his depression and anxiety, which the Tribunal considers would also be available to him in New Zealand.
The Tribunal does accept however, that YRYX would suffer emotional hardship should he be separated from his fiancée and infant son and then need to re-establish himself in New Zealand without them, should they not be in a position to join him, whether for financial reasons or for reasons of maintaining family support in Australia.
On balance of these factors, the Tribunal finds that this consideration weighs against the revocation of the mandatory cancellation of YRYX’s visa.
CONCLUSION
Having been convicted of an offence carrying with it a sentence of a term of imprisonment of 12 months or more, YRYX has a substantial criminal record and does not pass the character test in subsection 501(6) of the Migration Act. This is not in dispute.
In determining whether to exercise its discretion to revoke the mandatory cancellation of YRYX’s visa, the Tribunal has attached significant weight to the fact that YRYX committed a number of offences which are regarded as objectively very serious and carried with them an overall term of imprisonment of approximately nine years. The Tribunal has also attached weight to the fact that YRYX drove without ever having had a licence, committed offences while under the influence of drugs and alcohol, committed violent offences, at times against vulnerable members of the community and breached a community based order.
On the evidence before it, the Tribunal finds that YRYX should, as per paragraph 6.3 of Direction No. 65, expect to be denied the privilege of staying in Australia.
The Tribunal also finds that there remains an unacceptable risk that YRYX may engage in further criminal conduct if he remains in Australia and that the Australian community will, as a consequence, be at risk. In making this assessment the Tribunal has considered the likelihood of further criminal or other serious conduct, taking into account its view that even now, and despite having completed the Pathways Program while in prison, YRYX still fails to appreciate the serious nature of his offences. In the circumstances, the Tribunal finds that there is an ongoing risk of reoffending, and as such, an unacceptable risk to the Australian community.
The Tribunal considers that the best interests of YRYX’s minor children, in particular his infant son, and possible non-refoulement obligations weigh against revocation, given its comments and findings at paragraphs 76 to 85 and 92 to 96 above.
The Tribunal finds that on balance, the primary considerations addressed in this decision (see paragraphs 30 to 89 above) lead to the view that the Australian community would expect that the mandatory cancellation of YRYX’s visa would not be revoked.
The Tribunal has also had regard to the countervailing “other considerations” of the strength, nature and duration of ties along with the fact that YRYX would not face any notable impediments if removed from Australia to New Zealand.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No. 65, it is not satisfied that there is another reason why the original decision to cancel the visa should be revoked as required by subsection 501CA(4)(b)(ii) of the Migration Act and the correct and preferable decision is not to revoke the mandatory cancellation of the visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.
I certify that the preceding 123 (one hundred and twenty -three) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
.........[sgd]..........................................................
Administrative Assistant - Legal
Dated: 27 October 2017
Date(s) of hearing: 9 October 2017 Applicant: In Person Representative for the Respondent: Ms E Tattersall Solicitors for the Respondent: Sparke Helmore Lawyers
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