YYPP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4564
•9 November 2020
YYPP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4564 (9 November 2020)
Division:GENERAL DIVISION
File Number(s):2020/5101
Re:YYPP
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member B. Pola
Date:9 November 2020
Place:Brisbane
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 5 August 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
...........................[SGD].............................................
Senior Member B.Pola
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass character test – whether there is another reason to revoke the mandatory cancellation decision – consideration and application of Ministerial Direction No 79 – decision under review is affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
ETWK v Minister for Immigration and Border Protection [2017] AATA 228
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
LQZW v Minister for Home Affairs (Migration) [2019] AATA 93
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits v Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member B. Pola
9 November 2020INTRODUCTION AND BACKGROUND
The Applicant, YYPP, is a 30 year old male citizen of New Zealand, with movement records indicating he has remained in Australia since his first arrival in October 1999, when he was nine years of age[1].
[1] Exhibit G1, G18, page 237.
The Department of Home Affairs’ (herein referred to as ‘Department’) records indicate the Applicant was granted a Class TY Subclass 444 Special Category (Temporary) visa (herein referred to as ‘Visa’) on their arrival into Australia (the subject of this application before the Tribunal) [2].
[2] Ibid.
The Applicant has a criminal history which began when they were a minor shortly after their arrival into Australia, continuing into adulthood, with the Applicant’s final offence recorded on 8 May 2020[3]. The Applicant has appeared before lawful authority on 24 occasions as a minor and adult during their 21 years residing in Australia, having been convicted of more than 60 offences, 30 of which carried custodial sentences[4].
[3] Exhibit G1, G6, pages 35 to 40; and Exhibit R2, page 11.
[4] Ibid.
The offences of the Applicant include drug related offences; unlawful possession of weapons, property related offences including larceny; possessing tainted property and house-breaking implements; wilful damage; assault; assault occasioning bodily harm (including whilst armed/in company); breach of court orders (including breach of apprehended violence orders and bail); as well as serious traffic offences.
Whilst the Applicant was serving a term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (or ‘Respondent’), pursuant to s501(3A) of the Migration Act 1959 (Cth) (herein referred to as the ‘Migration Act’), decided on 13 March 2020 to mandatorily cancel the Applicant’s Visa (or the ‘Visa Cancellation Decision’) on the basis that he did not pass the character test pursuant to s501(6) of the Migration Act [5].
[5] Exhibit G1, G10, pages 53 to 57.
Following the Visa Cancellation Decision, the Applicant made submissions to the Respondent[6].
[6] Exhibit G1, G11, pages 58 to 72; G12, pages 73 to 145; G13, pages 146 to 151; G14, pages 152 to 232; G15, pages 233 to 234; G16, page 235; and G17, page 236.
On 5 August 2020, the Respondent decided not to revoke the cancellation of the Applicant’s Visa pursuant to s501CA(4) of the Migration Act, with the Applicant notified by letter on 17 August 2020[7].
[7] Exhibit G1, G4, page 21; and G3, pages 16 and 17.
The Applicant lodged an application with the Administrative Appeals Tribunal (or the ‘Tribunal’) on 23 August 2020 seeking a review of the abovementioned decision not to revoke the cancellation of his Visa, within the required time frame[8].
[8] Exhibit G1, G2, pages 3 to 15. For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision, refer to s500(6B) of the Migration Act.
The Tribunal has jurisdiction to review this application pursuant to s500(1)(ba) of the Migration Act.
The application was heard in Brisbane over two days on 12 and 13 October 2020, with the Applicant self‑represented and appearing via video link. The Respondent was represented by Mr David McLaren of Minter Ellison, who also appeared by video link. The Tribunal heard oral submissions by the Applicant and Respondent, in addition to submitted evidence as outlined in the Exhibit Register in Annexure 1 of these reasons.
Additionally, the Tribunal heard evidence from witnesses who were called by the Applicant. These witnesses included the Applicant’s former partner, referred to as Ms Y; his sibling referred to as Ms G; and the fiancé of Ms G, referred to as Mr G.
ISSUES
Legislation regarding the revocation of the mandatory cancellation of visas is found in s501CA(4) of the Migration Act, which provides:
“(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
As previously outlined in these reasons, the Applicant made representations to the Respondent as required by s501CA(4)(a) of the Migration Act[9]. The issue before the Tribunal is whether the discretion to revoke the mandatory cancellation of the Applicant’s Visa may be exercised.
[9] Exhibit G1, G11 to G17, pages 58 to 236.
The Tribunal refers to the Full Court of the Federal Court of Australia’s observations in the Minister for Home Affairs v Buadromo[10], where the following was stated:
“…there has been some discussion in the authorities as to whether s501CA(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…”[11].
[10] [2018] FCAFC 151.
[11] 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).
Therefore, there are two issues for consideration before the Tribunal which must be decided:
(i)whether the Applicant passes the character test; and
(ii)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant were to succeed on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked[12].
[12] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As previously referred to in these reasons, the character test is defined in s501(6) of the Migration Act. A person will not pass the character test if they have a “substantial criminal record” pursuant to s501(6)(a) of the Migration Act. Relevantly, s501(7)(c) of the Migration Act provides that a person is considered to have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 29 August 2017, the Applicant was sentenced to 12 months imprisonment at the Toowoomba Magistrates Court, for possessing dangerous drugs (specifically 95 tablets of methylenedioxymethamphetamine tablets (commonly referred to as extasy tablets)). In addition to this conviction, the Applicant was convicted of possessing utensils or pipes etc. for use, and unlawful possession of suspected stolen property; both of which came with a sentence of imprisonment of three months to be served concurrently, and unlawful possession of weapons for which a conviction was recorded with no further punishment[13].
[13] Exhibit G1, G6, pages 36 and 37.
The Tribunal is satisfied that the Applicant does not pass the character test as a result of having been sentenced to a term of imprisonment of 12 months or more.
The Tribunal is of the view that the Applicant is therefore unable to rely on s501CA(4)(b)(i) of the Migration Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in accordance with s501CA(4)(b)(ii) of the Migration Act, the Tribunal is bound by s499 of the Migration Act, to comply with any directions made under the Migration Act.
In view of this, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (here on referred to as the “Direction”) must be applied[14]. The Direction provides guidance for decision-makers on how to exercise discretion in accordance with s501CA of the Migration Act. Relevantly, it states that:
“(1)…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”[15].
[14] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[15] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides that the three Primary Considerations the Tribunal must consider 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.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are 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 Tribunal will now turn to addressing the three Primary Considerations.
Primary Consideration A – Protection of the Australian Community
In considering 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.
In determining whether the mandatory cancellation of an Applicant’s Visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that:
(a)it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and
(b)that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from the following exhibited documents:
(a)The s501 G-Documents[16], and the Respondent’s Supplementary Documents[17] containing:
[16] Exhibit G1.
[17] Exhibit R2.
(1)The Applicant’s criminal history which appears in the National Criminal Intelligence Commission Report of 24 February 2020[18];
[18] Exhibit G1, G6, pages 35 to 40.
(2)Magistrates Court of Queensland in Toowoomba, Transcript of Proceedings on 10 January 2020[19];
[19] Exhibit G7, pages 41 to 44.
(3)Magistrates Court of Queensland in Toowoomba, Transcript of Proceedings on 29 August 2017[20];
[20] Exhibit G8, pages 45 to 48.
(4)Magistrates Court of Queensland in Toowoomba, Transcript of Proceedings on 2 July 2013[21];
[21] Exhibit G9, pages 49 to 52.
(5)Queensland Corrective Services Integrated Offender Management System Sentence Calculation Details[22];
[22] Exhibit R2, pages 1 and 2.
(6)Queensland Court Outcomes record of 22 September 2020[23];
[23] Exhibit R2, pages 4 to 11.
(7)Court Brief, Toowoomba Magistrates Court, 25 January 2012[24];
[24] Exhibit R2, pages 12 to 20.
(8)Court Brief, Toowoomba Magistrates Court, 13 January 2012[25];
[25] Exhibit R2, pages 21 to 26.
(9)Court Brief, Toowoomba Magistrates Court, 24 January 2012[26];
[26] Exhibit R2, pages 27 to 32.
(10)Court Brief, Toowoomba Magistrates Court, 22 February 2012[27];
[27] Exhibit R2, pages 33 to 40.
(11)Court Brief, Toowoomba Magistrates Court, 5 March 2012[28];
[28] Exhibit R2, pages 41 to 45.
(12)Court Brief, Toowoomba Magistrates Court, 25 May 2012[29];
[29] Exhibit R2, pages, 46 to 50.
(13)Court Brief, Toowoomba Magistrates Court, 18 September 2012[30];
[30] Exhibit R2, pages 51 to 58.
(14)Court Brief, Toowoomba Magistrates Court, 29 August 2012[31];
[31] Exhibit R2, pages 59 to 62.
(15)Court Brief, Toowoomba Magistrates Court, 2 October 2012[32];
[32] Exhibit R2, pages 63 to 66.
(16)Court Brief, Toowoomba Magistrates Court, 6 March 2013[33];
[33] Exhibit R2, pages 67 to 70.
(17)Court Brief, Toowoomba Magistrates Court, 4 April 2013[34];
[34] Exhibit R2, pages 71 to 82.
(18)Court Brief, Toowoomba Magistrates Court, 23 September 2013[35];
[35] Exhibit R2, pages 83 to 94.
(19)Court Brief, Toowoomba Magistrates Court, 25 August 2014[36];
[36] Exhibit R2, pages 95 to 101.
(20)Court Brief, Toowoomba Magistrates Court, 29 September 2014[37];
[37] Exhibit R2, pages 102 to 117.
(21)Court Brief, Toowoomba Magistrates Court, 10 February 2015[38];
[38] Exhibit R2, pages 118 to 121.
(22)Court Brief, Toowoomba Magistrates Court, 7 July 2015[39];
[39] Exhibit R2, pages 122 to 146.
(23)Court Brief, Toowoomba Magistrates Court, 8 August 2015[40];
[40] Exhibit R2, pages 147 to 150.
(24)Court Brief, Toowoomba Magistrates Court, 19 October 2015[41];
[41] Exhibit R2, pages 151 to 154.
(25)Court Brief, Toowoomba Magistrates Court, 17 March 2016[42];
[42] Exhibit R2, pages 155 to 158.
(26)Court Brief, Toowoomba Magistrates Court, 1 March 2016[43];
[43] Exhibit R2, pages 159 to 181.
(27)Court Brief, Toowoomba Magistrates Court, 14 April 2016[44];
[44] Exhibit R2, pages 182 to 185.
(28)Court Brief, Toowoomba Magistrates Court, 27 July 2016[45];
[45] Exhibit R2, pages 186 to 189.
(29)Court Brief, Toowoomba Magistrates Court,14 October 2016[46];
[46] Exhibit R2, pages 190 to 196.
(30)Court Brief, Ipswich Magistrates Court, 17 November 2017[47];
[47] Exhibit R2, pages 197 to 200.
(31)Court Brief, Ipswich Magistrates Court, 13 June 2018[48];
[48] Exhibit R2, pages 201 to 204.
(32)Court Brief, Caloundra Magistrates Court, 3 July 2019[49];
[49] Exhibit R2, pages 205 to 207.
(33)Court Brief, Maroochydore Magistrates Court, 25 September 2019[50];
(34)Court Brief, Caloundra Magistrates Court, 27 November 2019[51];
(35)Court Brief, Caloundra Magistrates Court, 28 January 2020[52];
(36)Court Brief, Toowoomba Magistrates Court, 9 January 2020[53];
(37)Court Brief, Toowoomba Magistrates Court, 3 February 2020[54];
(38)New South Wales Police summary of events, 21 September 2010[55];
(39)Documents from Queensland Corrective Services (including offender case file, parole board reports, dosage history reports, movement history, completion summaries in relation to court ordered parole and community service, security classifications, breaches, incident reports, violation history, contraventions, relapse prevention and management plan, reintegration assessment, risk of re-offending assessments, and visitor reports)[56]; and
(40)Documents from Toowoomba Magistrates Court (including court reports, work records, traffic record, objection to bail affidavits, faxes, and letters)[57].
[50] Exhibit R2, pages 208 to 211.
[51] Exhibit R2, pages 212 to 227.
[52] Exhibit R2, pages 228 to 233.
[53] Exhibit R2, pages 234 to 239.
[54] Exhibit R2, pages 240 to 248.
[55] Exhibit R2, pages 249 to 253.
[56] Exhibit R2, pages 249 to 594.
[57] Exhibit R2, pages 595 to 638.
Overview of the Applicant’s criminal offending history
Before examining the nature and seriousness of the Applicant’s conduct to date in relation to determining the weight applicable to Primary Consideration A in paragraph 13.1(2) of the Direction; the Tribunal will provide a factual overview of the Applicant’s offending history.
Juvenile offending
Evidence before the Tribunal confirms that the Applicant has a criminal history which began as a minor shortly after their arrival into Australia as a nine year old. The Applicant’s first recorded offence occurred on 13 February 2004 when they were just 13 years old, before a Children’s Court where they were convicted of larceny and given a 12 month good behaviour bond[58].
[58] Exhibit G1, G6, page 40.
Almost four years later on 6 December 2007, the Applicant (at 17 years of age) again appeared before a Children’s Court and was convicted of having their face blackened/disguised with intent to commit indictable offence, where they were given a two year good behaviour bond[59].
[59] Ibid.
Then on 5 February 2009, the Applicant again appeared before a Children’s Court and was convicted of having their face blackened/disguised with intent to commit indictable offence, destroy/damage property, failure to appear in accordance with bail undertaking, and common assault (domestic violence). The Applicant received a 12-month supervision order[60].
Adult offending
2009
[60] Ibid.
On 28 July 2009, the Applicant appeared before the Glen Innes Local Court as an adult and was convicted of contravening an Apprehended Violence Order (‘AVO’) (Domestic), and was sentenced to a 12-month good behaviour bond, fined, and ordered to pay court costs. The Applicant confirmed in submissions before the Tribunal that he had commenced a relationship with his former partner, Ms X, around 2005, and an AVO was taken out by his former partner following the dissolution of their relationship (with whom he shares a child, born in mid-2008) [61].
Late 2011 and 2012
[61] Exhibit G1, G6, page 40; Transcript, page 17, lines 6 to 31.
On 11 November 2011, a Queensland Police Court Brief states that the Applicant had attended a party and was involved in a fight with a victim. Witnesses advised they saw the Applicant grab the victim and pull them to the ground, where the victim was kicked repeatedly by a number of people. The brief further states that the Applicant (with other persons) began smashing the vehicle of this victim and pushed it down a hill where the front of the vehicle collided with a telegraph pole. In this brief, the Applicant admitted to consuming a large amount of alcohol and had taken drugs on the night of this incident[62]. The Applicant did not dispute these facts when they were put him in cross-examination[63].
[62] Exhibit R2, page 13.
[63] Transcript 12 October 2012, page 19, lines 16 to 47; and page 20, lines 1 to 12.
Some months later on 4 January 2012, the Applicant was interviewed by Queensland Police and was charged with assaults occasioning actual bodily harm whilst armed/in company, and wilful damage, and ordered to appear before the Toowoomba Magistrates Court on 25 January 2012[64].
[64] Exhibit R2, pages 12 to 16; Transcript 12 October 2020, page 17, lines 6 to 31.
On 29 December 2011, a Queensland Police Court Brief states that the Applicant had been drinking at a nightclub, where they had consumed a large amount of alcohol and had recalled that they had gotten into a verbal argument within the premises. After the Applicant had left the premises, they later were involved in a verbal altercation which became physical. Closed circuit television (‘CCTV’) revealed that the victim had backed away from the Applicant and other male persons present, the victim was then grabbed and put into a headlock hold, punched in the facial area and received a knee to the head area. The brief further states that the Applicant stated that they had felt “weak” after watching the footage. Following this, the Applicant was charged with assaults occasioning bodily harm whilst in company and ordered to appear before the Toowoomba Magistrates Court on 25 January 2012[65].
[65] Exhibit R2, pages 17 to 20.
On 12 January 2012, the Applicant was charged with contravening a requirement under the Police Powers and Responsibilities Act 2000 (Qld), as the Applicant had failed to attend and complete a Drug Diversion Assessment Program, which was a condition of bail undertakings[66].
[66] Exhibit R2, pages 27 to 32.
On 13 January 2012, the Applicant was charged with breaching bail on three occasions relating to the events of 11 November 2011 and 29 December 2011[67].
[67] Exhibit R2, pages 21 to 26.
The Applicant appeared before the Toowoomba Magistrates Court on 25 January 2012, where he was convicted of one count of breach of bail, and one count of contravening a direction or requirement from police. A conviction was recorded but the Applicant was not further punished. Additionally, the Applicant appeared before the Toowoomba Magistrates Court regarding a further three counts relating to breach of bail, for which no conviction was recorded (regarding the events of 11 November 2011 and 29 December 2011)[68].
[68] Exhibit G1, G6, page 40.
On 7 February 2012, the Applicant was involved in a break and enter at a car wash business. The Queensland Police Brief stated that the business was broken into and $5,000 was stolen (consisting of $1.00 and $2.00 denominations). CCTV footage captured the vehicle used and the clothing worn by the offenders, and the implement used to break into the business. Police later executed a search warrant at an address where they found the clothing and the implement, with the Applicant admitting he gained entry to the business with two other accomplices which he did not nominate, in an attempt to steal money. The Applicant was charged with enter premises and commit indictable offence by break[69].
[69] Exhibit R2, pages 37 to 40.
On 13 February 2012, the Applicant was the subject of a police search warrant which lead to charges of possessing utensils or pipes etc which had been used. The Queensland Police Brief stated this was in relation to the use of cannabis[70]. In the Applicant’s submissions to the Tribunal when questioned on the events of this night, the Applicant did not dispute these facts[71]. The Applicant was given a notice to appear before the Toowoomba Magistrates Court on 12 March 2012.
[70] Exhibit R2, pages 33 to 36.
[71] Transcript, 12 October 2020, page 21, lines 36 to 47; page 22, lines 1 and 2.
On 22 February 2012, the Applicant was charged with two counts of breaching bail conditions in relation to undertakings entered into on 13 February 2012[72].
[72] Exhibit R2, pages 41 to 45.
On 25 May 2012, the Applicant was charged with two counts of breaching bail conditions in relation to undertakings entered into on 4 January 2012, with the Queensland Police Court Brief stating that the Applicant had failed to report to the Toowoomba police station on 36 occasions between 15 March 2012 and 23 May 2012[73]. The Applicant in submissions before the Tribunal stated that at the time they were trying to avoid the police[74].
[73] Exhibit R2, pages 46 to 50.
[74] Transcript 12 October 2020, page 23, lines 16 to 20.
On 30 May 2012, the Applicant appeared before the Toowoomba Magistrates Court for nine charges, sentences for which are summarised below[75]:
(i)Wilful damage (11 November 2011), conviction recorded and sentenced to imprisonment for one month concurrently, taking into account time spent in pre‑sentence custody. Assaults occasioning bodily harm whilst armed/in company (11 November 2011); conviction recorded and sentenced to imprisonment for 14 days concurrently, taking into account time spent in pre-sentence custody.
(ii)Assaults occasioning bodily harm whilst armed/in company (29 December 2011) conviction recorded and sentenced to imprisonment for one month concurrently, taking into account time spent in pre-sentence custody.
(iii)Enter premises and commit indictable offence by break (7 February 2012), conviction recorded and sentenced to imprisonment for two months concurrently, taking into account time spent in pre-sentence custody.
(iv)Possessing utensils or pipes etc which had been used (13 February 2012), conviction recorded and fined.
(v)In relation to four outstanding charges for breach of bail (15 February 2012, 17 February 2012, 16 March 2012, 24 May 2012), convictions were recorded with no further punishment.
[75] Exhibit G1, G6, pages 39 and 40.
On 30 August 2012, the Applicant was convicted and fined with breaching bail conditions on 29 August 2012[76].
[76] Exhibit G1, G6, page 39.
Again, on 1 October 2012, the Applicant was convicted and fined with breaching bail conditions[77]. On this occasion the Queensland Police Court Brief states that police attended a residence to undertake a bail check on the Applicant. The Applicant had told police that they were not present at their address on 29 September 2012, as they had been to the Gold Coast to visit their sick mother. Upon being taken back to the Toowoomba Police Watchhouse, police had noticed the Applicant wearing a wrist band to a music festival which the Applicant had denied attending, stating he had simply found the wrist band and wore it. Police checked with the Applicant’s mother if she had seen the Applicant, with the Applicant’s mother confirming she had not seen her son for some time. The Applicant was subsequently charged[78]. In submissions before the Tribunal, the Applicant confirmed they had attended the music festival, and that they were very heavily intoxicated and on drugs[79].
[77] Ibid.
[78] Exhibit R2, pages 63 to 66.
[79] Transcript 12 October 2012, page 24, lines 10 to 28.
On 11 October 2012, the Applicant was convicted of breaching probation orders imposed on him from 30 May 2012, with a conviction recorded with no further punishment.
Additionally, on 11 October 2012, the Applicant was also convicted of possessing a night instrument of house breaking prior conviction of crime relating to property, and trespass – entering or remaining yard or place for business, with a conviction recorded and 80 hours of community services imposed on the Applicant to be completed in four months[80]. These two offences related to an incident which occurred on 28 August 2012, where police found the Applicant after having jumped the fence from inside the premises of a business, wearing all dark clothing and a pair of gloves with a wrecking bar. The Applicant was tracked down through the Toowoomba dog squad[81].
[80] Exhibit G1, G6, page 39.
[81] Exhibit R2, pages 51 to 54.
In submissions before the Tribunal, the Applicant confirmed that he could recall the offending, and stated that his actions at the time, “would have been for drug – money for drugs, pay a bill maybe, I don’t know”, and that, “there was a selection of time where I was going through a very bad phase, was – this was pretty much the time when I was doing a lot of break and enters and fights and stuff…”[82].
2013
[82] Transcript 12 October 2020, page 24, lines 30 to 47; and page 25, lines 1 to 12.
On 28 March 2013, the Applicant was convicted of possessing utensils or pipes etc that had been used, where a conviction was recorded and the Applicant was fined[83].
[83] Exhibit G1, G6, page 39.
On 2 July 2013, the Applicant appeared before the Toowoomba Magistrates Court for new offences, and for resentencing of prior offences as the Applicant had been convicted of breaching previous orders. Significantly, the Applicant was sentenced to a count of assault occasioning bodily harm whilst armed/in company (in relation to an offending episode on 2 April 2013) where a conviction was recorded, and the Applicant was sentenced to 12 months imprisonment to be served concurrently. Additionally, the Applicant was also sentenced to a count of assault occasioning bodily harm (again in relation to the offending episode on 2 April 2013), where he was again sentenced to a term of imprisonment of 12 months to be served concurrently[84]. A Queensland Police Court Brief states that the offending episode was captured on CCTV[85].
[84] Exhibit G1, G6, pages 38 and 39.
[85] Exhibit R2, pages 71 to 78.
On 2 July 2013, Magistrate Stark in the Toowoomba Magistrates Court outlined the following facts and circumstances regarding the Applicant’s offending episode on 2 April 2013[86]:
“…I also take into account your early pleas. A charge more serious has been discontinued today, an assault occasioning bodily harm in company substituted in lieu, so this is the first opportunity for the plea and I do take that into account and reduce the overall sentence for that reason. I note your involvement in the assaults occasioning bodily harm - and you do have two charges. You were the instigator. You're the person to throw the first punch, and that was a king hit in respect to the victim [name redacted], who was punched by you some five times. He was left bleeding as a result of that but was not rendered unconscious, as was [name redacted]. You further punched [name redacted] whilst he was being held by [name redacted]. I have already outlined the injuries that were sustained by [name redacted] as a result of the actions of the two of you. Yet it's not able to indicate or sheet home the actual injury to any particular blow, but you were both involved in that assault. You both caused blows to be struck to [name redacted], and those blows in concert have resulted in the injuries sustained by him.
Your matter is aggravated by the fact of your prior history. At the time of committing the offence, you were on probation for a range of offences, including two assaults occasioning bodily harm in company. I've read the — or probation, and you're also on community service for other offences. I've read the reports given to the Court by [name redacted] as to your level of compliance with probation and whilst the probation order had gone for a reasonable period of time, it's not true to say that your compliance has been anything but abysmal. You were required to attend a number of intervention programs, and you subsequently failed to take up those options. In respect to the community service order, the order imposed was for some 80 hours, and you've completed some seven hours of that, so only a very small portion of the hours. The recommendation of the probation office in light of your poor performance and the commission of the offences whilst on probation and community service is that those orders be revoked and you be dealt with again for those offences. I will accept that submission and revoke those orders…
I note, as I say, that you were the instigator. You're the person who started this altercation between the two groups of persons, and that was by way of a king hit. You then involved yourself by punching the person who subsequently was found to suffer significant injuries, punching him whilst he was being held by another person. That is really, on both occasions, cowardly acts. A king hit and then punching someone whilst he's being held by another person. At the time of committing the offences, you were on probation for assault offences. They themselves were perhaps slightly less serious. The offence on the 11th of November involved a single punch to the face and then a wrestle, for which you received probation and also an imprisonment order of some 14 days imprisonment. The second offence of assault occasioning bodily harm in company with two groups on the streets of Toowoomba, where it's — well, I sentence on the basis today that you were involved, but that you did not actually strike a person at that time.
In all of those circumstances, as I say, I'm satisfied the only appropriate sentence is one of imprisonment. I note the sentence which has been imposed in respect of your co-offender [name redacted]. You will not be receiving the same sentence. Your sentences are not automatically cumulative with a sentence that you are currently serving and I don't make orders for cumulative sentences in respect to the matters which are — I don't intend to make cumulative sentences in respect to the matters which are being resentenced on the breach of probation.
Accordingly, for each of the assaults — fresh assaults — of assault occasioning bodily harm in company on [name redacted] and [name redacted] you are convicted and sentenced to 12 months imprisonment in respect to each. For the breach of probation order, the orders are revoked — the probation and community service orders. I deal with you for the original offences. The assault occasioning bodily harm in company on the 11th of November, knowing that you've already served 14 days in respect to that, you are convicted and sentenced to three months imprisonment. For the wilful damage which involved you and others smashing the vehicle and then pushing it down a hill into a pole, you are convicted and sentenced to three months imprisonment. For the assault occasioning bodily harm in company which involved you, with a group, instigating a fight on the streets of Toowoomba where the other group was — the victim was seeking to back away, you are convicted and sentenced to four months imprisonment.
For the break and enter premises, being of the [business name redacted], noting that you've already served two months, noting that's a serious offence in itself, where two tins of coins to a value of something like $5000 was stolen, you are convicted and sentenced to six months imprisonment. For the offences for the breach of the community service order, noting that one of these is possession of instruments of housebreaking and the other is the trespass, where you were found in the yard of a premises with all of the accoutrements of a break and enter person, of the possession of instruments of housebreaking you are convicted and sentenced to six months imprisonment, for the trespass, you are convicted and sentenced to one month imprisonment. I will order that each of those terms be served concurrently with each other, bringing a total head sentence of six months imprisonment.
I make a declaration in respect to presentence custody, and this will be made in respect to the two terms of 12 months imprisonment, that you had served 89 days of presentence custody between the 4th of April '13 and the 1st of July '13 and declare that the whole of that period to be imprisonment already served under the sentence. I will fix a parole release date which takes account of your pleas of guilty. I won't set it at the one-third mark. It will be slightly more than that, noting that I haven't imposed any cumulative terms here today. I fix the parole release date as at the 2nd of August 2013. Convictions are recorded for all offences.”
[Tribunal insertions]
[86] Exhibit G1, G9, pages 49 to 52.
Following the Applicant’s release on parole on 2 August 2013[87], he was then involved in further offending episodes over the period of 17 September 2013 to 20 September 2013, regarding the unlawful use of a motor vehicle. Queensland Police Court Briefs stated the following[88]:
[87] Exhibit R2, page 416.
[88] Exhibit R2, pages 87 to 90.
“At about 11:35pm on the 18th of September 2013, the stolen vehicle was observed by police being driven at the intersection of [address redacted]. Police have lost sight of the vehicle before an attempt to intercept the vehicle was made.
Police have again observed the vehicle being drive (sic) at about 1.30am on the 19th of September 2013. At that time the vehicle was observed being driven out of [address redacted]. Police have again lost sight of the vehicle before an attempt to intercept the vehicle was made.
On the 19th of September 2013, at about 11.40pm, police have again observed the stolen vehicle. On this occasion the vehicle was located at [address redacted]. At this time police have observed a white Holden Calais registration number [redacted], it appeared that the occupants of that vehicle were following the stolen orange Holden Commodore.
When police have executed a u-turn to follow the vehicle, both have left the area in opposite directions at high speed. Police have lost sight of both vehicles shortly thereafter.
At 11.45pm, police have received a call from a witness who advised, that the orange Holden commodore had hit a traffic sign on [address redacted]. The witness states that there were two persons, describing one of them as being slim build with short blonde hair, wearing light blue jeans, with an approximate age of 16 to 17 years of age. The witnesses states the two persons have returned to the vehicle driving off towards [address redacted].
At 2:00am on the 20th of September 2013, the stolen vehicle was located parked in the drive through of the [business redacted], which is located on the corner of [address redacted].
The vehicle was located in a damaged condition. Police have observed damage to the front passenger side wheel arch, bonnet and front passengers side door consistent with the vehicle hitting a guide post. The front passenger side tyre and wheel were also damaged…
A fingerprint examination of the vehicle was conducted. As a result fingerprints were located on numerous surfaces of the vehicle.
The fingerprints of both [the Applicant] and [name redacted] were located.”
[Tribunal insertions, and bolding for emphasis]
2014
On 10 January 2014, the Applicant appeared before the Toowoomba Magistrates Court and was convicted of unlawful use of a motor vehicles, aircraft or vessels and sentenced to a term of imprisonment of two months, with parole effective from 10 January 2014[89].
[89] Exhibit G1, G6, page 38.
On 30 July 2014, the Applicant was issued with a notice to appear before court, and failed to do so and a warrant was issued for the Applicant’s arrest. The Applicant was arrested on 27 August 2014, and was issued bail before the Caboolture Magistrates Court which then required the Applicant to appear before the Toowoomba Magistrates Court on 25 September 2014, where the Applicant failed to appear. Subsequently on 29 September 2014, the Applicant was found by police as a rear passenger in a vehicle that was intercepted, and the Applicant was arrested for failure to appear in accordance with an undertaking[90]. The Applicant appeared before the Toowoomba Magistrates Court on 29 September 2014, and was convicted and fined.
[90] Exhibit R2, pages 100 to 105.
The notice to appear before court issued to the Applicant on 30 July 2014, was in relation to three charges regarding offending, which occurred on this date and was subsequently convicted of these offences before the Toowoomba Magistrates Court on 5 December 2014; two offences related to possessing a knife in a public place or school; and possessing property suspected of having been used in connection with the commission of a drug offence. The Applicant was convicted of both offences and sentenced to three months imprisonment served concurrently with time already spent in pre-sentence custody deemed as served under the sentence[91].
[91] Exhibit G1, G6, pages 37 and 38.
The Tribunal notes that the Applicant was also convicted of a charge in the Queensland Police Court Brief relating to driving a motor vehicle with a suspended driver licence also on the date which the above two offences occurred, being 30 July 2014[92]. The Applicant’s Queensland Police Service traffic record reveals that the Applicant was convicted on 30 July 2014 in the Toowoomba Magistrates Court for unlicensed driving, disqualified for one month and with time spent in pre-sentence custody deemed as time already served[93].
[92] Exhibit R2, pages 95 to 101.
[93] Exhibit R2, page 602.
The Applicant was convicted of three further offences when he had appeared before the Toowoomba Magistrates Court on 5 December 2014[94]. The first of which relates to two charges of wilful damage which occurred on 2 September 2014, where a Queensland Police Court Brief states that the Applicant was caught on CCTV footage at a shopping centre kicking a parked motorbike which subsequently fell over and damaged a parked car[95].
[94] Exhibit G1, G6, pages 37 and 38.
[95] Exhibit R2, pages 106 to 109.
Forensic police examined the motorbike and found handprints belonging to the Applicant, and they subsequently charged him with two counts of wilful damage in relation to the motorbike and parked car. The Applicant was convicted of both these offences, and was sentenced to four months imprisonment to be served concurrently, with time already spent in pre-sentence custody deemed as served under the sentence.
The final charge regarding the Applicant’s appearance before the Toowoomba Magistrates Court on 5 December 2014 again related to unlawful use of a motor vehicles aircraft or vessels. This offending episode occurred on 5 August 2014 with the Queensland Police Court Brief stating that the Applicant failed to return a hire car which was hired by him with his own identification and credit card on 28 July 2014, failing to return it on 4 August 2014[96]. The Applicant was charged and convicted of unlawful use of a motor vehicles aircraft or vessels and sentenced to a term of imprisonment of six months to be served concurrently[97].
2015
[96] Exhibit R2, pages 110 to 113.
[97] Exhibit G1, G6, page 37.
Following the Applicant’s release on parole on 5 December 2014, the Applicant was then caught on 14 January 2015 and charged with driving a motor vehicle without a driver licence. The Queensland Police Court Brief states that the Applicant was intercepted by mobile patrols and was asked to undertake a Random Breath Test, which initially came back positive. A subsequent test came back negative. The Applicant was issued with a notice to appear in the Toowoomba Magistrates Court on 10 February 2015[98]. The Applicant was disqualified from driving until 15 March 2015 according to Queensland Police Service traffic records[99].
[98] Exhibit R2, pages 118 to 121.
[99] Exhibit R2, page 602.
On 20 June 2015, a Queensland Police Court Brief states that the Applicant was again caught driving a motor vehicle as part of an incident involving a domestic disturbance with his former partner. The brief goes on to state that witnesses informed police that they observed the Applicant and his girlfriend at the time in a domestic dispute involving a physical altercation outside their residence, which at one point resulted in the Applicant’s former girlfriend running up the street whilst the Applicant went back inside their residence. Following this, the brief states that witnesses saw the Applicant then return outside the residence and got into a vehicle and drove away. The Applicant then returned shortly after, and drove the vehicle onto an adjoining vacant block doing “circle work” before driving back onto the front yard[100]. The Applicant was charged with driving a motor vehicle without a driver licence SPER (Qld Lic), and appeared before the Toowoomba Magistrates Court on 1 July 2015. The Applicant was disqualified from driving until 12 January 2017 according to Queensland Police Service traffic records[101].
[100] Exhibit R2, page 123.
[101] Exhibit R2, page 602.
On 26 June 2015, around midnight, a Queensland Police Service Court Brief states that a victim’s room was broken into and they had their Medicare card and items stolen worth $1,280. Police later executed a search warrant at a premise where the Applicant was present. Police located the Applicant’s wallet and found a Medicare card belonging to the victim. The Applicant denied involvement in the burglary to the Police when questioned, and stated that he was unaware as to how the victim’s Medicare card got into his wallet. The Applicant was charged and bailed to appear in the Toowoomba Magistrates Court on 7 July 2015[102].
[102] Exhibit R2, pages 143 to 146.
On 29 June 2015, according to a Queensland Police Service Court Brief, police executed a search warrant, where the Applicant was later charged with two counts of possession of dangerous drugs (namely methylamphetamine (commonly referred to as ice)) and methylenedioxymethamphetamine (commonly referred to as ecstasy)); one count of supplying dangerous drugs (namely ice); and possessing anything used in the commission of a crime (with the Applicant having in their possession a mobile phone used in connection with the commission of a crime). The Applicant was charged and bailed to appear in the Toowoomba Magistrates Court on 7 July 2015[103].
[103] Exhibit R2, pages 129 to 138.
Just past midnight on 17 July 2015, a Queensland Police Court Brief states that police pulled over a vehicle for a roadside breath test, and formed a suspicion that the vehicle may contain dangerous drugs, and detained the occupants (one of whom was the Applicant seated in a passenger seat). During the search the police found a bag which the Applicant stated was theirs, with police discovering four unopened packets of Suboxone, two open packets of Suboxone and 20 Suboxone individual films wrapped in cling wrap. The Applicant stated that he was not prescribed Suboxone, and was subsequently charged with unlawful possession of a controlled drug and ordered to appear before the Toowoomba Magistrates Court on 8 August 2015[104].
[104] Exhibit R2, pages 147 to 150.
On 19 October 2015, the Applicant was convicted and fined with breaching bail conditions on 18 October 2015[105].
[105] Exhibit R2, pages 151 to 154; and Exhibit G1, G6, page 37.
On 17 December 2015, a Queensland Police Court Brief states that a rental car was hired by a close associate of the Applicant. On 27 December 2015, police attended the residence of the Applicant in relation to other matters and found the rental car parked and locked in the backyard of the Applicant’s address. On 28 December 2015, the rental car was reported as stolen as it had not been returned in accordance with the rental agreement. The brief states that in the early morning of 28 December 2015, the rental car was involved in a number of offences in the area, including offences of dangerous operation and evade police. The rental car was located by police later that morning, and when searched they found a phone case with a New Zealand passport belonging to the Applicant, a mobile phone with confirmed emails sent to and from the Applicant; in addition to a clip seal bag containing a crystal substance that tested positive for Amphetamine[106].
[106] Exhibit R2, pages 155 to 158.
The Applicant admitted that the drugs belonged to him in evidence before the Tribunal, in addition to being a passenger in the vehicle[107]. The Applicant was charged with possessing dangerous drugs and ordered to appear before the Toowoomba Magistrates Court on 17 March 2016.
2016
[107] Transcript, 12 October 2020, page 38, lines 25 to 38.
The Applicant appeared before the Toowoomba District Court on 14 April 2016, where he was convicted of two charges regarding possessing dangerous drugs in relation to the charges against him from 29 June 2015. For each conviction he was sentenced to a term of imprisonment of three months to be served concurrently[108].
[108] Exhibit G1, G6, page 37.
On the morning of 29 February 2016, police charged the Applicant with a range of offences in connection with a robbery which occurred in late December 2015, where a property was broken into and a large quantity of firearms (in a safe) were stolen along with ammunition, in addition to two cars. Notably, non-alcoholic drinks were also stolen from the fridge of the property. When one of the vehicles was later found by police, an empty non-alcoholic drink bottle was found of the exact same type stolen from the property in December. Queensland Police Court Briefs state that police conducted a DNA swab, and found that it belonged to the Applicant[109]. Further to this, briefs also state that a stolen Apple Ipad could be traced back to the Applicant’s address at the time of the offence[110]. Bail was refused and the Applicant was ordered to appear before the Toowoomba Magistrates Court on 1 March 2016.
[109] Exhibit R2, pages 159 to 181.
[110] Exhibit R2, page 171.
The Applicant was charged with unlawful use of a motor vehicle, and was refused bail and ordered to appear before the Toowoomba Magistrates Court on 14 April 2016. This was in relation to events on 31 December 2015 at around 3pm in the afternoon. A Queensland Police Court Brief states that a motor vehicle was stolen from a victim’s property. Later that evening, the stolen vehicle was photographed by a traffic camera exceeding the speed limit on two occasions, and was caught on video footage from a traffic camera doing “donuts” in an Airport Link Tunnel in addition to other motor vehicles (one of which belonged to a cousin of the Applicant, who according to the brief resided with the Applicant at the time). When the stolen vehicle was recovered by police, a forensic examination was undertaken, where police found a sock located on the driver side of the vehicle. A DNA sample was taken from the Applicant to compare it to the DNA located on the sock found by police in the vehicle.
On 1 September 2016, the Applicant appeared before the Toowoomba Magistrates Court and was convicted of the following offences[111]:
(i)Unlawful use of a motor vehicles aircraft or vessels (use on 27 December 2015), where the Applicant was sentenced to eight months imprisonment to be served concurrently, with time spent in pre-sentence custody deemed as time already served under the sentence.
(ii)Receiving tainted property (between 25 June 2015 and 30 June 2015), where the Applicant was sentenced to three months imprisonment to be served concurrently.
(iii)Possessing dangerous drugs (between 16 December 2015 and 29 December 2015), where the Applicant was sentenced to three months imprisonment to be served concurrently.
(iv)Breaching bail conditions (on 22 July 2016), where a conviction was recorded and the Applicant was fined[112].
(v)Unlawful possession of controlled drug (on 17 July 2015), where a conviction was recorded and the Applicant was fined.
[111] Exhibit G1, G6, page 37.
[112] Exhibit R2, pages 186 to 189.
Following the Applicant’s release back into the community on 1 September 2016[113], they were then caught by police on 14 October 2016 for a range of serious drug offences. A Queensland Police Court Brief states that police intercepted a vehicle on a patrol and performed a roadside breath test on the driver of the vehicle which was negative. The brief states that the front passenger in the vehicle identified themselves as the Applicant, and following this, police conducted a search of the vehicle. Police located a bag in the front foot weld of the car where the Applicant was sitting, which the Applicant denied belonged to him.
[113] Exhibit R2, page 415.
The brief goes on to state that upon searching the bag police located 95 ecstasy tablets with correspondence in the name of the Applicant next to the drugs in the bag, $100 cash (which the Applicant claimed was from an ATM withdrawal that they were unable to produce a record for), a device used to split tablets in half, four sheets of Valproate Winthrop containing an active ingredient of Sodium Valproate (a pharmaceutical medication), and brass knuckledusters. The Applicant was charged with possessing dangerous drugs, property suspected of being the proceeds of an offence under the Drugs Misuse Act1986 (Qld), possessing utensils or pipes etc for use, unlawful possession of suspected stolen property and unlawful possession of weapons. The Applicant was refused bail and ordered to appear before the Toowoomba Magistrates Court on 14 October 2016[114].
2017 and 2018
[114] Exhibit R2, pages 190 to 196.
On 29 August 2017, the Applicant appeared before the Toowoomba Magistrate Court, where the Applicant was sentenced by Magistrate Ryan, the Tribunal refers to the following sentencing remarks of their Honour[115]:
[115] Exhibit G1, G8, pages 45 to 48.
“You are only a young man, of 27 years of age — well, not quite 27. Twenty-six still. What can one say? I do need to take into account your criminal history, and I note the fact that you have — whilst there are some convictions for drug-related matters, they are far outweighed by the property offending on your history; although when you did receive the term of imprisonment in 2016, with the parole release date, immediate parole release date, you were sentenced to a term of imprisonment for possessing dangerous drugs.
I am — it has been submitted that you are not addicted to drugs. There are no test results to confirm that. [Name redacted] does point to your lack of history for drugs matters. She also has submitted that you have been on bail since February of this year and have abided by strict conditions and have no breaches of that bail whatsoever. You have not been charged with any other charges since that time…
You have obtained yourself a job. And I have read the letter here from [name redacted] which was with regard to having bail varied at one stage; but I am told that you now are working full-time. You have a partner. You are going to be a father later this year, I think — or early next year. One of the two. My maths is not that good. You have not breached any of your bail conditions. And I am told that they were quite strict…
You have the factors of your youth, your pleas of "guilty", your performance on — since you have been on bail, and what you have been doing. There is no, of course, attempts at rehabilitation, because I am told that you are not a drug addict…
I am satisfied that sentence of imprisonment is appropriate. With regard — and I will give you reasons as to this particular sentence. With regard to the possession of the MDMA tablets, you will be sentenced to a term of imprisonment of 12 months. Now, this is to reflect the fact that this was committed whilst you were on parole and had only been on that parole for six weeks.
Given your performance on your bail and the steps you have taken with getting yourself a job; you are living out at Toowoomba; you have got a solid family base, by the sound of things — I have determined that I am going to wholly suspend that term of imprisonment for a period of three years. So it is a pretty heavy sentence, but that is to balance the fact, as I said before, that this was committed within six weeks of you being released on parole.
With regard to the possess utensils and the possess — unlawful possession of suspected stolen property — on each of those charges, you will be sentenced to terms of imprisonment of three months, to be served concurrently with each other and the sentence I have already imposed, also wholly suspended for the three years. On the possession of the knuckleduster, you are going to be convicted, and no further penalty imposed. With regard to the drugs, the weapon and the utensil — I am going to order that those all be forfeited to the Crown for destruction.
So what all of that means is that yes, you walk out of here today; but you have that suspended term of imprisonment hanging over your head. If you break the law — and it is not just with drug offences, either, but if you commit any offence that you are liable to get imprisonment for during that period of three years, you risk going to prison for the 12 months. Do you think you understand that?
DEFENDANT: Yes. I understand.”
On 2 October 2017, the Applicant was pulled over by police for a roadside drug test, which returned a positive indication for a relevant drug. The Applicant made admissions to police that they had smoked marijuana the previous night. Following a further saliva test which underwent further analysis, it returned a positive result for Delta-9-tetrahydrocannabinol (cannabis) and Methylamphetamine (ice). The Applicant was charged with an offence of driving etc. while relevant drug is present in blood or saliva, whilst unlicensed. The Applicant was ordered to appear before the Ipswich Magistrates Court on 17 November 2017[116]. Queensland Police Service traffic records indicate the Applicant was fined and disqualified from driving for three months on 15 January 2018 at the Ipswich Magistrates Court[117].
[116] Exhibit R2, pages 197 to 200.
[117] Exhibit R2, page 602.
Whilst appearing before the Ipswich Magistrates Court on 15 January 2018, the Applicant was also convicted of two counts of breach of orders imposed on 29 August 2017, where the Applicant received an extended suspended sentence on all charges by one month[118].
[118] Exhibit G1, G6, page 36.
A month following the Applicant’s driving offence in October 2017, the Applicant was involved in a motor vehicle crash on 2 November 2017. A Queensland Police Court Brief states that when police had arrived the Applicant was receiving treatment on a stretcher from paramedics at the scene. The Applicant was the driver and the only occupant in the car when they crashed into a tree on the side of the road. When the Applicant was later taken to hospital, blood samples were taken, which returned a positive result for 0.23mg/kg of Methylamphetamine (ice). On 22 May 2018, the Applicant was spoken to by police and issued with a notice to appear before the Ipswich Magistrates Court on 13 June 2018[119]. Queensland Police Service traffic records indicate the Applicant was fined and disqualified from driving for six months on 3 October 2018 at the Ipswich Magistrates Court[120].
[119] Exhibit R2, pages 201 to 204.
[120] Exhibit R2, page 602.
The Tribunal heard submissions from the Applicant in relation to this driving offence, transposed below[121]:
“… I think I had actually gotten off the drugs for a while and I think that was around the time that I’d relapsed. I was actually working at a local [business redacted] in [location redacted] where I didn’t have full on employment yet but I was just filling in for people who weren’t reliable, so I was on call. But I pretty much had the opportunity to make myself be noticed so I could actually get fulltime employment at the [business redacted] and which I was given the opportunity to do day shifts and night shifts in sequence with each other. So I think (indistinct) shifts maybe more and it was taking a very big toll on me, I think I was getting fatigued. I used to have to drive from [location redacted] to [location redacted] to work which was probably an hour and a half there, hour and a half back. I was starting at ridiculous hours. I’d start at two in the morning, finish at one and then I’d be back to work again probably at five in the afternoon and then do a whole night shift, which is clean up straight after day shift, which I started to relapse on methamphetamine just to try and keep up with my hours. And I think I got very fatigued and I ended up crashing my vehicle into a tree.
…
… Well, there was as big lengthy amount of time where I had actually stopped drugs because I had a healthy relationship with [Ms Y] at the time. I was out of [location redacted], I was actually going well for the first time in a very long time in my life. I seem to be on medication for my mind state and just in amongst of me doing dayshifts and nightshifts, I couldn’t keep up with myself. This was just after making a good impression on my boss so I could get full-time work because I didn’t have the full-time position yet. And in amongst that, I guess I relapsed and I used a bit of meth, just to try and keep up with my job and I was, obviously, still very fatigued and I fell asleep on...”
[Tribunal insertions]
[121] Transcript, 12 October 2020, page 41, lines 13 to 28, and lines 41 to 47; and page 42, lines 1 to 3.
Whilst appearing before the Ipswich Magistrates Court on 3 October 2018, the Applicant’s suspended sentence was extended by three months and was convicted of a breach of order imposed on 15 January 2018.[122].
2019
[122] Exhibit G1, G6, page 36.
On 5 June 2019, the Applicant was charged with failing to dispose of a needle and syringe, which had been used in connection with administering dangerous drugs. The Applicant was convicted of this before the Caloundra Magistrates Court on 3 July 2019, where a conviction was recorded and they were fined[123]. The Tribunal heard evidence from the Applicant that they could recall the offences around this time, and that they had started injecting Subxone (with no prescription) as they had gotten off “meth”[124].
[123] Exhibit R2, pages 205 to 207; and Exhibit G1, G6, page 36.
[124] Transcript, 12 October 2020, page 44, lines 16 to 29.
Again, on 6 September 2019, the Applicant was charged with failing to properly dispose of needle and syringe, which had been used in connection with administering dangerous drugs. The Applicant was convicted of this before the Maroochydore Magistrates Court on 25 September 2019, where a conviction was recorded and they were fined[125].
[125] Exhibit R2, pages 208 to 211; and Exhibit G1, G6, page 36.
A Queensland Police Court Brief states that sometime between 20 and 23 September 2019, a motor vehicle was broken into and two laptops were stolen (the brands of which were Apple and HP). Around 9 October 2019, police were informed by the victim that the tracking device had been enabled and the Apple laptop was located. Forensic police examined the laptop and fingerprints were found on it which belonged to the Applicant. The Applicant admitted that he unblocked computers for people and he had recently received an Apple and HP laptop from another person. The Applicant was charged with possessing tainted property, and enter premises and commit indictable offence[126]. The Applicant entered into a bail undertaking and was ordered to appear before Caloundra Magistrates Court on 27 November 2019.
[126] Exhibit R2, pages 220 to 227.
The Tribunal heard submissions from the Applicant in relation to this offending, transposed below[127]:
“Yes, so both these charges were in 2019, around the same time I was done with the uncapped syringe and I was still using methamphetamine. I didn’t really have stable accommodation, I was self-medicating for my issues. People used to bring iPhones and laptops to me (indistinct) possibly stolen, possibly just ones that they had forgot their passwords to. I used to have a bit of a knack for unlocking things. So, in this occasion, actually - I was actually brung(sic) a laptop that I’d tried to unlock and little did I know that - it was actually stolen and some remote tracking thing was activated… They didn’t find me in possession of it, but…
I was unaware that it was a stolen laptop. They didn’t find the laptop in my possession, but when they did find the laptop, they found my fingerprints on it for actually attempting to unlock the laptop. So, therefore, I was charged with the tainted property.”
[127] Transcript, 12 October 2020, page 45, lines 27 to 44.
On 6 November 2019, the Applicant was charged with an array of offences. Queensland Police Court Briefs state that the Applicant was again charged with failing to dispose of needle and syringe, with the Applicant admitting it was used to inject Suboxone. Additionally, the Applicant was charged with possessing tainted property, namely a set of keys, an Apple Ipad and mobile phone[128]. The Applicant was also found in possession of a glass vile containing a yellow liquid, which the Applicant admitted to police was steroids, and they were charged with possessing dangerous drugs[129]. The Applicant entered into a bail undertaking and was ordered to appear before Caloundra Magistrates Court on 27 November 2019.
[128] Exhibit R2, pages 212 to 215.
[129] Exhibit R2, pages 216 to 219.
On 6 December 2019, the Applicant was caught using a motor vehicle without a driver licence and subsequently charged. Additionally, the Applicant tested positive during a roadside drug test, which they had admitted to using cannabis three days prior. A subsequent drug test was undertaken and returned a positive result confirming presence of a relevant drug[130]. The Applicant was charged with offence of driving etc. while a relevant drug is present in blood or saliva (unlicensed) and ordered to appear before Caloundra Magistrates Court on 28 January 2020 for both charges.
2020
[130] Exhibit R2, pages 228 to 233.
On 9 January 2020, Queensland Police Court Briefs states that the Applicant was questioned by Toowoomba police as to their identify and they gave a false name, which they subsequently admitted to when he was identified. The Applicant was charged for failing to appear in accordance with undertakings (regarding his appearance at the Caloundra Magistrates Court), and contravening a direction or requirement of police[131].
[131] Exhibit R2, pages 234 to 239.
On 10 January 2020, the Applicant appeared before the Toowoomba Magistrates Court, before Magistrate Davies, where they were subsequently convicted for an array of charges. The Tribunal refers to the remarks of Magistrate Davies, transposed below[132]:
[132] Exhibit G1, G7, pages 41 to 44.
“…you're before the court today and you've pleaded to a total of six separate offences. These include a failure to appear, contravening direction, possess tainted property times two and possess dangerous drugs and failed to take reasonable
care and precautions in respect of syringe or needle.None of the offences are particularly serious; they're all at the lower end. Unfortunately for you, you've got a seven page criminal history and, importantly, you're on a suspended sentence which was imposed in the Toowoomba Magistrates Court on the 29th of August of '17. That was a 12 months suspended sentence for three years. So by committing those offences you've breached that order.
What I have to do is work out what to do with you in relation to the situation you find yourself in. I take into account that you're 29 and single, but you've pleaded guilty and I give you the benefit of your plea of guilty and I reduce the penalty because of that. I take into account your cooperation with police, and that's a matter that goes in your favour as well.
You do have shared care of a [indistinct] and you do have some recent work history. You have been out of trouble, relatively, a lot more in recent times, but you've got to, really, do better and keep out of trouble altogether, because you're at risk of going back to jail each time you commit an offence with your bad history.
In relation to the suspended sentence; it's already had the operational period extended a number of times. I am going to activate a portion of that, and the portion that I'll activate is three months of that suspended sentence. And what I'm going to do is fix your parole release date as today, being the 10th of January of 20…
In relation to the other charges that you're facing, the orders will be these. For the failure to appear and contravene direction and for the possess drugs, which is steroids, and the syringe offence, you are convicted and not further punished on each of those offences. In relation to the first possess tainted property, being the one the 9th of October of '19, there's one month imprisonment, and — which is cumulative on the three months for the suspended sentence. And there is one month imprisonment for the other one, which is concurrent. So the total sentence you are receiving is four months. Do you understand that? But you're going to be released on parole today.
I have to say certain things to you in relation to that. I have to say that you're immediately subject to a court-ordered parole and must comply with the following conditions; you must be under the Chief Executive's supervision until the end of your period of imprisonment. You must carry out the Chief Executive's lawful instructions. You must give a test sample of blood, breath, hair, saliva or urine if required to do so. You must report to and receive visits as directed by the Chief Executive. You must notify the Chief Executive within 48 hours of any change of your address or employment. You must not commit an offence. You are required to report to a probation and parole office…
… you have to go there before 4.30, or 4.20, actually, on Monday, okay? If you didn't go there, you'd be unlawfully at large. That would mean you'd be committing an offence. You may be returned to prison and you may find that you don't get any parole at all. So it's your obligation to make sure you are there and report in, and then just comply with it…
… sorry, your 12 months imprisonment that were suspended for three years; I'm ordering that three months of that is activated, but you'll be on parole for that, okay? But that still leaves the remaining two years and nine months…
…So just be very careful, because you could breach parole and breach a suspended sentence.”
Between 10pm on 1 February 2020 and 6am on 2 February 2020, a Queensland Police Court Brief states that a victim’s dwelling was broken into, car keys were taken and a car was stolen. The brief goes on to state that there is CCTV footage of the Applicant in the passenger seat of the stolen vehicle, with the Applicant later arrested in possession of the stolen vehicle outside a pub. The Applicant was subsequently charged with burglary and commit indictable offence, and unlawful use of a motor vehicles aircraft or vessels. The Applicant was refused bail and ordered to appear before the Toowoomba Magistrates Court on 3 February 2020[133].
[133] Exhibit R2, pages 240 to 243.
On the morning of 2 February 2020, Queensland Police Court Briefs state that a victim’s dwelling was broken into where a violin, laptop, jewellery and an iPhone were stolen from within their dwelling. Police state that the Applicant was caught attending an address at around 10am in a stolen vehicle, which was under CCTV surveillance. Police arrived as the Applicant was re-entering the stolen vehicle, and conducted a search of the stolen vehicle and found items belonging to the victim. The Applicant was charged with burglary and commit indictable offence, refused bail and ordered to appear before the Toowoomba Magistrates Court on 3 February 2020[134].
[134] Exhibit R2, pages 244 to 248.
The Tribunal heard submissions from the Applicant in relation to this offending, transposed below[135]:
“I was picked up by someone in the morning at - I was - we were going to the pub to have a beer and have a - put $20 in the pokies. Actually, and I had pressed my $20 and I asked for the key to go wait in the car for the driver to finish. And when I was outside waiting for him, police ran around the sides and I got arrested and that’s when I found out that the car was stolen and they thought that I was the driver because I had the key and... Then, I actually told police that I’d been picked up and that if they could watch the CCTV between separate times that they would probably actual notice that I was a passenger and not the driver of this vehicle.”
[135] Transcript, 12 October 2020, page 47, lines 12 to 21.
On 8 May 2020, the Applicant was convicted of unlawful use of motor vehicles aircraft or vessels (regarding use on 2 February 2020), and was sentenced to six months imprisonment suspended for 12 months[136].
[136] Exhibit R2, pages 10 and 11.
The Nature and Seriousness of the Applicant’s Conduct to Date
Under cross-examination, the Applicant largely admitted to and accepted the circumstances of convictions which were put to him, and, at times conveyed that he was ashamed and appalled at his criminal history[137].
[137] Transcript, 12 October 2020, page 37, lines 25 to 29.
The Tribunal views the Applicant’s lengthy and often violent criminal offending history very seriously. The Tribunal is of the view that this finding is consistent with the application of the following relevant sub‑paragraphs in paragraph 13.1.1(1) of the Direction:
“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 subparagraph (b) above, the sentence imposed by the courts 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;
…
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);
…”
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction further provides that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”.
Whilst the evidence before the Tribunal does not suggest that crimes of a sexual nature have been committed, there is evidence of the Applicant’s involvement and subsequent convictions of violent crimes relating to the assault of victims. There were a number of offending episodes in 2011 which the Applicant was later convicted of in 2012 and 2013 which the Tribunal has detailed in earlier reasons.
These serious assaults carried out by the Applicant, resulted in sentences of imprisonment, and in one case the length of the term of imprisonment was 12 months. With regard to that particular assault, which was caught on CCTV and replayed to the Applicant, Queensland Police Court Briefs state that the Applicant had described witnessing their assault on the victim as making them feel “weak”[138]. The Tribunal observes that the impulsive and violent behaviour of the Applicant regularly involved the consumption of drugs and alcohol.
[138] Exhibit R2, pages 17 to 20.
There is evidence that the Applicant has been the subject of protection orders against him in the past.
A Queensland Protective Services offender file states that the Applicant was subject to a Domestic Violence Order which commenced on 26 June 2015, taken out by the Applicant’s own mother, with the order expiring on 23 June 2017. Notes in this file state that the order was taken out by the Applicant’s mother due to “excessive drug and alcohol use”[139]. The Applicant acknowledged that this was the case in the hearing[140].
[139] Exhibit R2, page 321.
[140] Transcript 12 October 2020, page 69, lines 29 to 38.
Under cross-examination from the Respondent, the Applicant was asked if he could recall the AVO that his former partner (Ms X) and mother of his first child had taken out against the Applicant[141]. The Applicant was convicted of contravening this AVO in July 2009, when the Applicant was 18 years of age and his first child was nine months of age at the time[142].
[141] Transcript, 12 October 2020, page 17, lines 6 to 31.
[142] Exhibit R2, pages 42 and 43.
Further, there is a documented episode in a Queensland Police Court Brief in relation to a call out for a domestic disturbance between the Applicant and a former partner in June 2015. Witnesses stated they observed a physical altercation between the Applicant and his former partner. Whilst no charges were laid in relation to the altercation, the Applicant was charged in relation to driving a motor vehicle without a driver licence and suspended from driving[143].
[143] Exhibit R2, page 123.
There is no doubt in the Tribunal’s mind that the Applicant has a history of violent offending and his actions have involved serious violence and the assault of innocent victims, in addition to contravening protections orders which had been put in place to protect women (his former partner and mother).
The Tribunal is of the view that the Applicant’s offending has enlivened the application of both sub-paragraphs (a) and (b) of paragraph 13.1.1(1) of the Direction. The Tribunal views the nature of the Applicant’s violent offending and his offending towards women very seriously.
The Tribunal has had regard to the provisions of sub-paragraph (c) of paragraph 13.1.1(1) of the Direction and is of the view that the factual circumstances of the Applicant’s offending attracts the application of this sub-paragraph, as determinative of the nature or seriousness of the Applicant’s offending.
Whilst the evidence regarding victims is not detailed to an extent that the Tribunal is able to determine whether they were vulnerable (in the sense of being elderly or disabled), there is evidence that the Applicant has been convicted for offences committed against police.
The Applicant was convicted in January of this year for contravening a direction or requirement of police. He gave a false name to police officers who asked for his identification when there was a warrant in place for his arrest at the time for failing to appear before the Caloundra Magistrates Court in November 2018[144].
[144] Exhibit R2, pages 234 to 239.
Whilst the offence of the Applicant against the police was not violent in its nature, it was deceitful. It was done in order to evade police given there were warrants in place for his arrest. The Applicant admitted as much when he was asked why he had given them a false name, when he said, “You have to give it a go”[145].
[145] Exhibit R2, pages 234 to 239.
However, the Tribunal would find it difficult to accept that there has been no impact on the life of the Applicant’s children, given his long periods of absence as a result of incarceration and the impact of the Applicant’s substance abuse issues over a long period of time.
The Tribunal has already reached the conclusion in earlier paragraphs of these reasons that the Applicant’s risk of re-offending is significant.
The only reasonable finding by the Tribunal is that sub-paragraph (c) of paragraph 13.2(4) of the Direction merits a neutral allocation of weight.
Sub-paragraph (d) of paragraph 13.2(4) of the Direction refers to an assessment of the likely effect that any separation of the Applicant would have on their child, considering the Applicant’s ability to maintain contact in other ways.
There is no evidence before the Tribunal confirming the views of the Applicant’s children (noting that the Applicant’s youngest child is too young to communicate or comprehend the situation which the Applicant finds himself in). Further, there is no evidence before the Tribunal from an independent expert witness stating or delineating any adverse effect upon the Applicant’s children, should the Applicant to be removed from Australia.
The Tribunal has had regard to the letters from the Applicant’s nieces to him[184].
[184] Exhibit A1, and Exhibit A4.
The Tribunal observes that electronic communication has never been more readily available. In the event the Applicant’s children (and to a lesser extent his nieces and nephew) wished to contact the Applicant in the future, there is capacity for the Applicant to maintain contact with them through text messaging, social media platforms, or visual and real time contact via digital platforms from foreign locations.
The Tribunal has had regard to the role the Applicant has played in the life of his child to date and his capacity to maintain contact with his child via digital or electronic means. The Tribunal is of the view that sub-paragraph (d) of paragraph 13.2(4) of the Direction is of moderate weight in favour of a finding that it is in the best interests of the Applicant’s child that the Applicant’s Visa status be restored in order to allow him to remain in Australia.
Sub-paragraph (e) of paragraph 13.2(4) of the Direction asks whether there are other persons who already fulfil a parental role in relation to any children.
The Tribunal has already observed that in relation to the Applicant’s children, from the evidence presented, the Applicant is not expected to undertake a primary carer role for either of his children, particularly in circumstances where the Applicant’s children reside in places that the Applicant has stated he will not be living.
The Tribunal refers to previous reasons confirming that the former partners of the Applicant (Ms X and Ms Y) both fulfil the role of primary carer to the Applicant’s children.
In respect to the Applicant’s nephew and nieces, their mother (Ms G) confirmed that she and her partner already fulfil the role of primary carer for these children[185], and the Tribunal affords limited weight to this consideration.
[185] Transcript 13 October 2020, page 80, lines 24 to 28.
The Tribunal accepts that the Applicant could be expected to play some role in the parenting of his children into the future until they obtain the age of 18 years (and to a lesser extent his nieces and nephew).
On this basis, the Tribunal finds sub-paragraph (e) of paragraph 13.2(4) of the Direction is of moderate weight in favour of the Applicant in assessing whether the restoration of his Visa status is in the best interests of his child in Australia.
Sub-paragraph (f) of paragraph 13.2(4) of the Direction requires the Tribunal to consider any known views of the children about their separation from the Applicant, having regard to their age and maturity.
There is no independent or expert evidence before the Tribunal detailing any behaviours of the Applicant’s children, indicative of any adverse views they may have regarding how the physical removal of their father from their lives will negatively impact on them.
The Tribunal has had regard to the letters from the Applicant’s nieces, however these alone do not provide sufficient insight to make any finding with respect to the application of sub‑paragraph (f) of paragraph 13.2(4) of the Direction.
The Tribunal is unable to allocate weight to this sub-paragraph (f) of paragraph 13.2(4) of the Direction in circumstances where no view of the Applicant’s children is known. Put simply, the Tribunal does not know the level of any adverse impact the prolonged, physical absence of the Applicant would have on the life of their child.
The Tribunal is of the view that this sub-paragraph (f) of paragraph 13.2(4) of the Direction is of no weight and is not determinative of any finding about this Primary Consideration B.
Sub-paragraph (g) of paragraph 13.2(4) of the Direction looks to evidence that the Applicant has abused or neglected their child/ren in any way, including physical, sexual, and/or mental abuse or neglect.
The Tribunal is of the view that the factual circumstances of the Applicant do not attract the application of sub-paragraph (g) of paragraph 13.2(4) of the Direction.
This factor has no weight and is not determinative of any finding about Primary Consideration B.
Sub-paragraph (h) of paragraph 13.2(4) of the Direction looks for evidence that the child/ren of the Applicant have/has suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.
In the absence of independent and expert evidence detailing any physical or emotional trauma suffered by the Applicant’s child as a result of the Applicant’s offending, the Tribunal is of the view that this sub-paragraph (h) of paragraph 13.2(4) of the Direction is of no weight and is not determinative of any finding about this Primary Consideration B.
Conclusion: Primary Consideration B
Having regard to:
(a)the evidence of the Applicant, and submissions before the Tribunal with respect to the relationship the Applicant has with his children (and to a lesser extent that of his nephew and nieces), and that such a relationship may be resumed (in a physical and present sense) should the Applicant be allowed to remain in Australia;
(b)the interrupted parental role the Applicant has played in the life of his children (and to a lesser extent that of his nephew and nieces) as a result of multiple periods of incarceration and subsequent detention, including the absence of a parenting order or plan in place stipulating contact time or parenting responsibilities the Applicant has with his children;
(c)the reality that the Applicant’s children are well cared for by their respective mothers (the Applicant’s former partners), and that there are no claims of parental responsibility with respect to his nephew an nieces as this is fulfilled by their parents;
(d)the absence of any independent or expert evidence about the adverse impact upon the Applicant’s children as a result of the Applicant’s current or future absence from their lives (and to a lesser extent that of his nephew and nieces);
(e)the Applicant’s capacity to maintain contact with his children via electronic and digital platforms from a foreign location (and to a lesser extent that of his nephew and nieces); and
(f)the moderate level of weight the Tribunal has attributed to factors (a), (b), (d) and (e) of paragraph 13.2(4) of the Direction.
The Tribunal is of the view that the best interests of the relevant minor children (and to a lesser extent that of his nephew and nieces) in Australia, weighs moderately in favour of revocation of the decision to cancel the subject visa.
The Tribunal qualifies this finding by saying that the weight attributed to Primary Consideration B is of a moderate weight only, and does not in any way, outweigh the very heavy weight the Tribunal has attributed to Primary Consideration A.
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 the Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community.
The Tribunal must also have regard to the Government’s views in this respect, and any overarching principles and guidance provided by the Direction.
Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that he or she should not hold a visa.
Factual circumstances relevant to Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following circumstances arising from the Applicant’s circumstances:
(a)The Applicant, currently 30 years of age, arrived in Australia in October 1999, when he was nine years of age, where he has remained.
(b)Prior to the Applicant’s arrival in Australia, he’d had an unhappy upbringing. The Applicant stated that he had lived in foster care from a very young age, and that his mother was a drug addict and a prostitute.
(c)The Applicant and his sibling (Ms G) have stated that after their mother had brought them to Australia, her drug addiction had continued, and they had moved towns a lot as children.
(d)The Applicant has a significant criminal history which began as a minor shortly after their arrival into Australia (with their first conviction recorded when they were 13 years of age. The Applicant’s criminal offending continued into adulthood, with the Applicant’s final offence recorded on 8 May 2020.
(e)The Applicant has appeared before lawful authority on 24 occasions over a 17 year period, six of these occasions were as a minor, the remaining were as an adult.
(f)During this 17 year period of offending, the Applicant has been convicted of more than 60 offences, 30 of which carried custodial sentences.
(g)The Applicant’s offending history has culminated in the sentencing of custodial terms of almost eight years, with the Tribunal mindful that parole release dates did come into operation reducing the total time the Applicant spent in criminal custody.
(h)The offences of the Applicant include drug related offences, unlawful possession of weapons, property related offences including larceny, possessing tainted property and house-breaking implements, wilful damage, assault, assault occasioning bodily harm (including whilst armed/in company), breach of court orders (including breach of apprehended violence orders and bail), and serious traffic offences.
(i)The Applicant has had the benefit of more than 30 non-custodial sentences involving community service orders, good behaviour bonds, apprehended domestic violence orders, bail undertakings, and the imposition of fines.
(j)Of the more than 30 non-custodial sentences the Applicant has received the benefit of, some 20 of these were for breaching orders or breaching bail conditions.
(k)The Applicant has failed to experience any deterring effect from the graduated sentencing process imposed on him in the course of his offending history.
(l)The Applicant’s offending has been frequent, and is viewed very seriously by the Tribunal.
(m)The Tribunal is of the view that should the Applicant be returned to the community, there is a significant likelihood that they will return to the same temptations which led them to offend in the past, and they would resume offending upon release back into the Australian community.
(n)If any of the Applicant’s very serious, and at times violent offending, were to be repeated, it is the Tribunal’s view that it has the potential to cause very serious or even catastrophic harm to members of the Australian community.
(o)The Applicant’s offending has been linked to a very long history of illicit substance abuse, alcohol abuse, with the Applicant showing at various times an incapacity to control their emotional regulation.
(p)There is evidence before the Tribunal that the Applicant has continued to abuse drugs whilst incarcerated only a few months ago.
(q)There is no evidence before the Tribunal from an independent clinical expert, confirming that the Applicant’s substance abuse issues or his incapacity to regulate his propensity towards violent behaviour have been diagnosed or identified, and are under some kind of remedial management and control.
(r)The Tribunal is of the view that the Applicant has not demonstrated a capacity to meaningfully address his long running substance abuse issues, notwithstanding the many opportunities which have been provided to him by way of non-custodial sentencing throughout his criminal offending history.
(s)Whilst the Applicant has articulated remorse for his criminal offending, there is no evidence before the Tribunal that the Applicant has demonstrated any level of respect for the lawful authorities governing the Australian community to which the Applicant now seeks to re-enter.
The Evolution of the Australian Community’s “Expectations”
The Tribunal is mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the Applicant’s circumstances. Since the early 2000s, courts and tribunals have been defining formulae to assist a decision-maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President J Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501”[186].
[186] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction[187]. The learned Deputy President thought this paragraph leads a decision-maker to:
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgment that is ultimately made by a decision-maker must be able to be explained.”
[Tribunal’s underlining]
[187] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection[188]:
“In substance this consideration is adverse to any applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and has been convicted of serious crimes.”
[Tribunal’s underlining]
[188] [2017] FCA 1466 at [76]-[77].
Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[Tribunal’s underlining]
In Afu v Minister for Home Affairs, Justice Bromwich said[189]:
“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 that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[Tribunal’s underlining]
[189] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs, Justice Perry observed that[190]:
“It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...”
[Tribunal’s underlining]
[190] FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42. Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community: see FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a) The ‘expectations of the Australian community’ cannot be measured or determined as if it is a provable fact. It is an assessment of community values made on behalf of that community[191].
(b) The Tribunal cannot determine for itself what such ‘expectations’ are by reference to the Applicant’s circumstances or evidence about those expectations[192].
(c) The Government’s view in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the ‘expectations of the Australian community’, and the Tribunal should have due regard of that statement, if made[193].
(d) In assessing the weight attributable to Primary Consideration C, decision-makers can have regard to the principles appearing in paragraph 6.3 of the Direction, in particular sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision-maker[194].
Analysis – Allocation of Weight to this Primary Consideration C
[191] Afu at paragraph 85.
[192] FYBR v Minister for Home Affairs [2019] FCA 500 paragraph 42.
[193] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph 74; (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[194] Ibid, paragraphs 77 (Charlesworth J) and 105 (Stewart J).
In ascertaining the weight attributable to Primary Consideration C, the Tribunal takes into account the following factors and findings:
(a)The Applicant has lived in the Australian community for the majority of his adult life, after arriving in 1999.
(b)The circumstances of the unhappy and unfortunate upbringing of the Applicant.
(c)The removal of the Applicant may have an adverse impact on his biological children (and to a lesser extent his nephew and nieces).
(d)Limited evidence was presented to the Tribunal of any contributions made by the Applicant to the Australian community.
(e)The Applicant has had serious substance abuse issues for the majority of his life, and has continued to abuse drugs until only a few months ago. The Tribunal is unable to rely on the Applicant’s own assurances that they have rehabilitated their addictions in the absence of any formal rehabilitation and counselling courses.
(f)The very serious and at times violent nature of the Applicant’s offending to date and its impact on other people in the community.
(g)The harm resulting from any return by the Applicant to their offending ways is very serious, such that any risk of similar conduct in the future is unacceptable.
(h)The Tribunal’s assessments of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
(i)The nature of the Applicant’s offending history, involving a lack of respect for lawful authority, the personal rights of others, and a refusal to follow the laws governing the Australian community to which the Applicant now seeks to re-enter.
Conclusion: Primary Consideration C
The Tribunal is of the view that the above factors, read as a whole in the context of this case, weigh very heavily in favour of not revoking the cancellation of the Applicant’s Visa.
The Tribunal accordingly finds that Primary Consideration C is of a very heavy weight in favour of affirming the non-revocation decision under review
OTHER CONSIDERATIONS
It is necessary for the Tribunal to look at the Other Considerations listed at paragraph 14 of the Direction. The Tribunal will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
Paragraph 14.1 of the Direction directs decision-makers to consider international non‑refoulement obligations
The Tribunal has had regard to the directions outlined in paragraph 14.1 of the Direction and is satisfied that Australia’s non-refoulement obligations are not engaged in relation to the Applicant.
(b) Strength, nature and duration of ties
Paragraph 14.2 of the Direction directs decision-makers to consider the strength, nature and duration of ties to Australia, whilst reflecting the principles at 6.3. Decision-makers must have regard to how long the non-citizen has resided in Australia, including whether the non‑citizen arrived as a young child, noting that:
(a)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(b)More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
Decision-makers are also required to have given consideration to the strength, nature and duration 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).
In applying paragraph 14.2(1)(a)(i) and (ii) of the Direction, the Tribunal observes that the Applicant has lived in Australia for the majority of his adult life and has family links here which, in the Tribunal’s mind, weigh slightly in his favour when having regard to the letters of support for the Applicant from his family, the fact that he has two sons that live here, in addition to considering the oral evidence from witnesses who appeared before the Tribunal that spoke in support of the Applicant remaining.
The overall weight the Tribunal has assigned in favour of revocation for this paragraph of the Direction has been done so in view of the minimal evidence before the Tribunal that the Applicant has made any positive contribution to the Australian community such that it could be seen to lessen the impact of the Applicant’s offending history.
In applying paragraph 14.2(1)(b) of the Direction, the Tribunal has previously referred to the family links of the Applicant, and notes that his biological children will remain in Australia, and would be impacted by the Applicant’s removal from Australia. Additionally, it is clear from the material before the Tribunal that the Applicant’s strength, nature and duration of ties to Australia are of moderate weight.
It is the Tribunal’s view that, consistent with paragraph 14.2(1)(b) of the Direction Other Consideration (b) attracts a moderate level of weight in favour of the Applicant.
Accordingly, the Tribunal is of the view that whilst this Other Consideration (b) in paragraph 14.2 of the Direction is overall of a moderate weight in favour of revocation, it is outweighed by the very heavy weight the Tribunal has given to both Primary Considerations A and C, both of which weigh very heavily in favour of non-revocation.
(c) Impact on Australian business interests
Paragraph 14.3 of the Direction directs decision-makers to consider the impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Tribunal has had regard to the directions outlined in paragraph 14.3 of the Direction, and is satisfied that an impact on Australian business interests is not relevant to the factual circumstances of the Applicant.
(d) Impact on victims
Paragraph 14.4 of the Direction directs decision-makers to take into account the impact that a decision not to revoke the Applicant’s Visa would have on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
Based on the evidence before the Tribunal, it is clear there are multiple victims of the Applicant’s extremely serious and violent offending.
The Tribunal notes that there is no evidence as to how the victims of the Applicant’s offending would be impacted.
In light of the abovementioned reasons, and in weighing the impact of a decision not to revoke the mandatory cancellation of the Applicant’s Visa, the Tribunal finds this consideration has a neutral impact.
(e) Extent of impediments if removed
Paragraph 14.5 of the Direction directs decision-makers 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 substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
With reference to the three factors within paragraph 14.5(1) of the Direction, the Applicant is currently 30 years of age and has not disclosed or substantiated any significant health issues, nor tendered any independent medical evidence that outlines any significant health concerns, which would not receive comparable standards of care should the Applicant be returned to New Zealand[195].
[195] Exhibit G1, G11, page 70.
The Tribunal refers to the decision of Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301, where Senior Member Kelly stated the following at paragraph 101:
“New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand... New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”
The Tribunal is of the view that should the Applicant be deported to New Zealand he would suffer no language or other cultural barriers, given the similarities between New Zealand and Australia. Any hardships the Applicant may face with resettlement would likely be temporary, until he is able to establish himself.
The Tribunal does note that the Applicant has raised concerns and/or fears regarding the prospect of returning to New Zealand where he states his father resides, and from whom he and his sibling suffered sexual abuse. The Applicant has stated in submissions before the Tribunal that his sibling was raped by their father at a “very young age”, in addition to the sexual abuse suffered by the Applicant[196].
[196] Exhibit G1, G11, page 71.
With regard to these claims of the Applicant, and how this impacts the Applicant’s possible return to New Zealand; the Tribunal observes that there is no evidence before the Tribunal of any convictions, or police reports of the alleged crimes committed by the Applicant’s father, as claimed by the Applicant.
The Tribunal’s observation is not made as a dismissal of the Applicant’s concerns and/or fears they have raised with respect to claims of sexual abuse of their father who they state resides in New Zealand, it is but a statement of fact based on the evidence presented.
The Tribunal does accept the resulting trauma and difficulties the Applicant has experienced from their childhood, and acknowledges that this may affect his feelings towards deportation to New Zealand.
In view of the reasons outlined by the Tribunal with respect to the extent of any impediments a non-citizen may face if removed from Australia to New Zealand, it is the Tribunal’s view that paragraph 14.5 of the Direction weighs slightly in favour of revocation, however the Tribunal is of the view that the weight of this factor does not outweigh the very heavy weight the Tribunal has found for both Primary Consideration A and Primary Consideration C.
Summary: Other Considerations
With reference to Other Considerations, the Tribunal is of the view that, to the extent that any of these Other Considerations, as outlined in paragraphs 14.1 to 14.5 of the Direction, weigh in favour of revoking the mandatory Visa Cancellation Decision, they are by far outweighed by Primary Considerations A and C, which weigh very heavily in favour of non‑revocation.
The application of the Other Considerations in the matter before the Tribunal can be summarised as follows:
(a)International non-refoulement obligations, are not engaged in relation to the Applicant.
(b)Strength nature and duration of ties, weighs moderately in favour of revocation of the mandatory Visa Cancellation Decision.
(c) Impact on Australian business interests, is not relevant to the factual circumstances of the Applicant.
(d)Impact on victims, is of a neutral weight.
(e)Extent of impediments if removed, a slight measure of weight is attributable in favour of revocation of the mandatory Visa Cancellation Decision.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
As previously outlined in these reasons, pursuant to s501CA(4)(b) of the Migration Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s Visa:
(a)either the Applicant must be found to pass the character test; or
(b)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
As the Tribunal has already outlined in these reasons, the Applicant does not pass the character test.
Having reference to the Direction and to the totality of the evidence before the Tribunal, there is not another reason for the Tribunal to revoke the cancellation of the Applicant’s Visa.
In considering whether there is another reason to exercise the discretion afforded by s501CA(4) of the Migration Act to revoke the mandatory Visa Cancellation Decision. The Tribunal has had regard to the Primary Considerations referred to in the Direction, and the Tribunal finds as follows:
(a)Primary Consideration A weighs very heavily in favour of non-revocation.
(b)Primary Consideration C weighs very heavily in favour of non-revocation.
(c)Primary Consideration B weighs moderately in favour of revocation.
The Tribunal has outlined the weight attributable to the Other Considerations. The Tribunal does not consider that any of the weight the Tribunal has found in favour of revocation from the Other Considerations, even when combined with each other, outweigh the very significant and determinative weight the Tribunal has attributed to Primary Consideration A and Primary Consideration C of the Direction.
It is the Tribunal’s opinion that a holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s Visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s Visa.
DECISION
Pursuant to s43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 5 August 2020 not to revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.
I certify that the preceding one hundred and 285 (two hundred and eighty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B.Pola
.............................[SGD]........................................
Associate
Dated: 9 November 2020
Date of hearing:
12 and 13 October 2020
Applicant:
YYPP
Self-represented
Appeared via video link
Solicitor for the Respondent:
Mr D McLaren
Minter Ellison
Appeared via video link
“ANNEXURE 1 – EXHIBIT REGISTER”
| Exhibit No. | Description |
| G1 | Section 501 G-Documents (pages 1 to 284), received 4 September 2020. |
| R1 | Respondent’s Statement of Facts, Issues and Contentions (pages 1 to 16), received 1 October 2020. |
| R2 | Respondent’s Supplementary Documents (pages 1 to 638), received 1 October 2020. |
| A1 | Letter from Applicant’s niece (one page), received 15 September 2020. |
| A2 | Letter of support from Ms Y (one page), received 15 September 2020. |
| A3 | Letter of support from Mr G (one page), received 15 September 2020. |
| A4 | Letter from Applicant’s niece (one page), received 15 September 2020. |
| A5 | Letter of support from Applicant’s sister (Ms G) (pages 1 to 2), received 15 September 2020. |
| A6 | Bundle of screenshots (six images), received 21 September 2020. |
| A7 | Letter from the Applicant (one page), received 7 October 2020. |
| A8 | Bundle of photos (five images), received 9 October 2020. |
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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Statutory Construction
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Jurisdiction
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Natural Justice
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