ZFJT and Minister for Home Affairs (Migration)

[2018] AATA 4039

ZFJT and Minister for Home Affairs (Migration) [2018] AATA 4039 (25 October 2018)

Division:GENERAL DIVISION

File Number(s):2018/4429       

Re:ZFJT

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:25 October 2018

Place:Sydney

The decision of the Respondent dated 6 August 2018, to refuse to revoke the Applicant’s visa cancellation decision made under s 501(3A) of the Migration Act 1958, is affirmed.

..........................[sgd]..............................................
Senior Member M Griffin QC

CATCHWORDS

MIGRATION – Revocation of visa cancellation – Ministerial Direction No. 65 applied – primary considerations - protection of Australian community from criminal or other serious conduct - best interests of minor children in Australia - expectations of Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – decision under review affirmed

LEGISLATION

Migration Act 1958 – ss 499, 500, 501, 501CA

SECONDARY MATERIALS

Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA – paragraphs 6, 13, 14

REASONS FOR DECISION

Senior Member M Griffin QC

25 October 2018

BACKGROUND

1. This is an application of review of a decision of a delegate of the Minister made on 6 August 2018 under section 501CA(4) of the Migration Act 1958 (the Act) not to revoke a visa cancellation decision made under section 501(3A).

2. The Applicant was born on 28 December 1990 in New Zealand and first arrived in Australia on a Class TY Subclass 444 Special Category (Temporary) Visa on 12 July 2000. The Applicant’s visa was originally cancelled on 19 December 2016 and the reviewable decision not to revoke cancellation was made on 6 August 2018. The Applicant applied for review on 9 August 2018.

ISSUES

1. The issue in this review is whether the original decision to cancel the Applicant’s visa should be revoked pursuant to section 501 of the Migration Act 1958 (the Act). The Tribunal may revoke the original decision if the Tribunal is satisfied:

   a)That the Applicant passes the character test as defined by section 501 of the Act; or

   b)There is another reason why the original decision should be revoked.

2. In this case, the Applicant, it is accepted, has a substantial criminal history and the only issue is, therefore, whether there is “another reason” to revoke the original decision.

RELEVANT LEGISLATION AND POLICY

1. Ministerial Direction No. 65 - Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction 65), the relevant paragraphs of which are set out below, describes the framework within which the Tribunal’s discretion is to be exercised in this case.

2. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

3. Subsection 501CA(4) provides that:

   4The 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.

4. Subsection 501(6)(a) relevantly provides that a person does not pass the "character test" if the person has "a substantial criminal record". Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).

5. It is clear according to the Act that because of the Applicant’s past criminal history he does not pass the character test.

10.Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

11.The Minister has made written directions pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 65). Section 1 of Direction No 65 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (cl 6.2(1));

(b)the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia or elsewhere (cl 6.3(2));

(c)a non-citizen who has committed a serious crime, including of a violent nature, and particularly against vulnerable members of the community such as minors, should generally expect to forfeit the privilege of staying in Australia (cl 6.3(3));

(d)in some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa (cl 6.3(4));

(e)while Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, or contributing to, the Australian community for only a short period time, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age (cl 6.3(5)); and

(f)the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused (cl 6.3(7)).

12.Part C of Direction 65 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises three "primary considerations" and several specified, but non-exhaustive, "other considerations", which must be taken into account.

13.Pursuant to Part C of Direction 65, the Tribunal must, to the extent that they are relevant to this case, take into account three primary considerations and other considerations. Primary considerations should generally be given greater weight than the other considerations and one or more primary considerations may outweigh other primary considerations. These principles are of course dependent upon the facts and circumstances of each case.

14.The three primary considerations 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.

Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct

15.Paragraph 13.1 of Direction 65 provides:

1When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

2Decision-makers should also give consideration to:

(a)The nature and seriousness of the non-citizen’s conduct to date; and

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

16.The two limbs of paragraph 13.1(2) that the Tribunal must consider when assessing the protection of the Australian community are set out below.

The nature and seriousness of the conduct

17.Sub-paragraph 13.1.1 of Direction 65 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

(a)the principle that violent and/or sexual crimes are viewed very seriously (sub­paragraph 13.1.1(1)(a));

(b)the principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), government representatives or officials due to the position they hold, or in the performance of their duties, are serious (sub-paragraph 13.1.1(1)(b));

(c)the sentence imposed by the courts for a crime or crimes (sub-paragraph 13.1.1.(1)(c));

(d)the frequency of the non-citizen's offending and whether there is any trend of increasing seriousness (sub-paragraph 13.1.1.(1)(d));

(e)the cumulative effect of repeated offending (sub-paragraph 13.1.1.(1)(e));

(f)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 (sub-paragraph 13.1.1.(1)(g)); and

(g)where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention is serious (sub-paragraph 13.1.1.(1)(h)).

The risk to the Australian community

18.Paragraph 13.1.2 of Direction 65 states that decision makers should have regard to the following:

(a)the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were repeated, is so serious that any risk that it may be repeated is unacceptable;

(b)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

(c)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending.

Primary Consideration 2 – Best interests of minor children in Australia affected by the decision

19.The considerations include:

(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

(e)Whether there are other persons who already fulfil a parental role in relation to the child;

(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

Primary Consideration 3 – Expectations of the Australian community

20.Paragraph 13.3 of Direction 65 provides:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government's views in this respect.

21.The principles to be applied, as set out in paragraph 6.3 of Direction 65, state that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australia community. It is also the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes (sub-paragraph 6.3(2) of Direction 65).

Other Considerations

International non-refoulement obligations

22.Considerations include:

(a)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(b)The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen's visa.

(c)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s 501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).

(d)Where a non-citizen makes claims which may give rise to international non­refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

(e)Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen's criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated.

Strength, nature and duration of ties

23.Considerations include:

(a)how long the non-citizen has resided in Australia, the period of offending, positive contributions to the Australian community.

(b)the strength, duration and nature of any family or social links with Australian citizens, including the effect of non-revocation on the non-citizen’s immediate family.

Impact on Australian business interests

24.Direction 65 notes 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.

Impact on victims

25.Paragraph 14.4 of Direction 65 provides:

Impact of a decision not to revoke 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 visa cancellation has been afforded procedural fairness.

Extent of impediments if removed

26.Extent of impediments if removed requires consideration of 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: age and health; whether there are substantial cultural barriers; and the availability of any social, medical and/or economic support.

APPLICANT’S OFFENDING HISTORY

27.  The Applicant’s criminal history is set out at G3 33 – 36. A summary is as follows:

28.19 December 2005: The Applicant was convicted in the Children’s Court of NSW of resist officer in execution of duty and assault officer in execution of duty and was placed on a good behaviour bond for 9 months. 

29.4 May 2006: The Applicant was convicted in the Children’s Court of NSW of robbery armed with offensive weapon for which he was placed on a control order for 12 months and robbery in company for which he was placed on a control order for 9 months. The Applicant appealed the convictions and the appeal was dismissed on 17 May 2006 but it was ordered that the control orders to be suspended after serving 6 months.

30.15 February 2007: The Applicant was convicted in the Children’s Court of NSW of the following offences: maliciously inflict grievous bodily harm; affray; and larceny. The Applicant appealed against the convictions and the appeal was dismissed in the District Court of NSW on 27 July 2007 but ordered the control orders to be suspended after serving 6 months.

31.16 November 2010: The Applicant was convicted in the Parramatta Local Court of assault officer in execution of duty (for which he was placed on a section 9 good behaviour bond) and resist officer in execution of duty (for which he was fined $400 and ordered to pay court costs of $79).

32.1 November 2016: The Applicant was convicted in the Parramatta District Court of a series of armed robberies (committed in 2014) with offensive weapon and assault with intent to rob armed with an offensive weapon. The Applicant was sentenced to 7 years’ imprisonment with a non-parole period of 4 years. In 2014 there was a concentrated period of serious violent robbery offences in which weapons were used. The Applicant was the offender who perpetrated the actual robberies. In one case he held a knife at the victim’s throat. It will be observed by reference to his history that there was a period of serious offending as a youth for similar types of offences. While it is proper to regard youthful offending as a different and separate category of offending, involving less blameworthiness than adult offences, in this case, the tribunal must and does not ignore that period of offending which commenced in 2005 to 2007. The tribunal regards it as relevant demonstrating a continued disposition to commit such offences in adulthood. The facts also disclose an increase in seriousness of those sorts of offences. The penalties imposed in relation to the 2014 offences also speak of the seriousness of those offences.

DISCUSSION

Protection of the Australian community (past conduct and future risk)

33.It is sufficient to say that the Applicant’s offending history demonstrates a concentrated period of violent offending in 2014 with other incidents of criminal / anti-social behaviour, including robbery with an offensive weapon in 2006 and maliciously inflicting grievous bodily harm in 2007. The former offences were committed when the Applicant was addicted to drugs. It is said he had a particularly poor home life and upbringing although this does not detract from the serious level of offending.

34.The Australian community expects the Australian Government should cancel the visas of those who commit serious crimes in Australia (para 6.3(2)) and should forfeit the privilege of staying in Australia (para 6.3(3)). In some circumstances, criminal offending and the harm caused if repeated may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing factors may be insufficient to justify not cancelling the visa.

35.Likewise, the Government is committed to protecting the Australian community from harm as a result of criminal activity.

36.The issue of the Applicant’s rehabilitation has assumed significance in this hearing. The Applicant, relied on material provided originally in support of his application and further material provided for the purpose of the tribunal hearing.

37.The effect of the Applicant’s evidence is that he has, since imprisonment in 2014, realised the seriousness of his offending and has undertaken a variety of courses to assist rehabilitation. The Applicant swears that he is rehabilitated and will not commit any further offences.

38.The Applicant has provided a number of character references and called witnesses to this effect. I have no doubt that the statements and evidence of those who speak on his behalf are well-meaning and truthful. These witnesses, furthermore, attest to the fact that the Applicant has played a significant role in assisting and caring for his mother and two siblings. Furthermore, information before the Tribunal reveals that the Applicant has in the past, been involved in community and church activities for the benefit of those communities.

39.The Applicant, in his statement to the Tribunal states:

However, since my incarceration in 2014, I have been able to address my offending behaviour having completed the EQUIPS Addiction program, EQUIPS Aggression program, and EQUIPS Foundation. These courses also assisted me in developing and maturing my emotional intelligence, communication skills and self-reflection ability, that has helped me identify the negative behavioural patterns I once operated in and the changes I need to implement and actively address to meet the expectations and become of ideal character to the Australian Government.

Furthermore I was able to attain a work and development order (WDO) to repay my fines, complete a TAFE digital media course, a Café skills course and a digital literacy training course. In addition whilst detained at Villawood Detention Centre, I actively sought out further education and training to pursue my passion in working with the community and successfully completed two online courses concurrently through Open 2 Study. I attained a certificate of achievement for a Leadership: Identity, Influence and Power course and a certificate of achievement for a Sociology course.

40.In support of the Applicant’s contentions of rehabilitation, he has provided a variety of certificates including certificates of achievement and completion of the EQUIPS Addiction Program and the EQUIPS Foundations Program. Other certificates include certificates from Open 2 Study in Leadership and Sociology.

41.In the statement of Brigitte Lees, the writer says that:

[The Applicant] was observed to be the primary support person to his mother, providing emotional and financial support to her. In my opinion, the [Applicant’s] family was held together and function purely as a result of the commitment and effort of [the Applicant] his self (sic). I have very serious concerns for the well being of his mother and brothers should he be forced to leave Australia ... During the period 2012 to 2014, [the Applicant] attended our disability service on an almost daily basis to provide a high level of care and support to his younger brother. This care included support with daily living skills and support… To his brother to manage his mental health condition paranoid schizophrenia and intellectual disability.

42.The writer of this reference referred to the Applicant having been convicted of “a serious offence”. This statement hardly describes the Applicant’s offending conduct and calls into question the writer’s intimate knowledge that the writer has of the Applicant. Furthermore, this period to which the writer refers is the very period during which the Applicant was supposedly in the grip of a drug addiction.

43.Apart from the extreme seriousness of the Applicant’s offending in 2014 (dealt with elsewhere) the Applicant received what has been described as an “intimidation record” whilst in prison in October 2016. The Applicant’s explanation for the circumstances surrounding this record demonstrates that he was challenging and oppositional to a prison staff member. His explanation further disclosed a worrying lack of insight into this type of aggressive behaviour demonstrating a continuing anti-authority disposition.

44.On all the material on the topic of the Applicant’s rehabilitation and taking into account and accepting the character references and evidence to this effect, the Tribunal is nonetheless not satisfied that the well-meaning efforts of the Applicant, particularly in relation to the question of rehabilitation concerning drug abuse is properly established on all the evidence. The Tribunal‘s view is that the Applicant has demonstrated an intention and taken steps for rehabilitation. The Tribunal accepts that the Applicant has undergone a course with the Equips Addiction Program and other courses. He has commendably put in place a post-custody work and living program which would provide stability, supervision, as well as work, on release from prison.

45.However, the evidence that the Applicant has truly rehabilitated and reformed is insufficiently compelling to conclude that the Applicant is no longer a risk of offending for the Australian community. In other words, the Tribunal is satisfied that despite what the Applicant and his witnesses argue in his favour, the Applicant still presents a real and substantial risk to the Australian community because of the likelihood of his continuing to offend and/or reoffend, particularly in respect of offences of violence.

46.The Tribunal takes the view that the nature and seriousness of the Applicant’s past conduct demonstrates a high level of seriousness of offending in relation to the second limb of Primary Consideration 1 although it is not correct to say that the Applicant has offended continuously as the Respondent submitted.

47.Nonetheless, taking the history of offending overall, and in particular the Tribunal not being satisfied that there is sufficient evidence of suitable and appropriate rehabilitation (referred to above) the Tribunal is ultimately of the view, that upon release, the Applicant remains a real risk of continuing to offend particularly in relation to offences of violence.

48.In the Tribunal’s view, Primary Consideration 1 therefore weighs heavily against cancellation of the revocation.

The best interests of minor children in Australia

49.There is no evidence, nor does the Applicant contend, that this consideration has any relevance to the Applicant’s review.

Expectations of the Australian Community

50.Having regard to the phraseology of Direction 65, it is impossible to accept anything other than that this consideration, because of the Applicant’s criminal history and likelihood of committing further offences, weighs against the Applicant, even allowing for those mitigating factors which the Tribunal accepts are the Applicant’s unfortunate background and the community work which he has undertaken and the fact that he has been a care-giver to his mother and siblings.

Other considerations

International non-refoulement obligations

51.A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.

52.There is nothing in the material to demonstrate that the Applicant has a well-founded fear of persecution for reasons of race, religion, nationality, membership of a particular social group or political opinion. The Tribunal is satisfied that there are no grounds for concluding that there is a real risk that the Applicant will suffer significant harm if removed from Australia.

Strength, nature and duration of ties

53.The Applicant has resided in Australia since 2000 (apart from an absence in 2002 – 2003).

54.The Applicant has a number of immediate family members who reside in Australia including his mother, siblings and extended family. Non-revocation will no doubt have a detrimental impact on these people. It is accepted that the Applicant has made some positive contributions to the Australian community having completed courses in prison and having both worked and performed community service in a social and church setting. As referred to above, there are those who attest positively to the character and rehabilitation of the Applicant. The Tribunal considers that overall, that although this consideration weighs in favour of the Applicant, it is powerfully outweighed by Primary Consideration 1.

Impact on Australian business interests

55.There is no evidence currently available to suggest that the Applicant is involved in the delivery of a major project or of an important service in Australia. Accordingly, this consideration is not relevant to the Applicant's circumstances.

Impact on victims

56.There is nothing in the material in the manner of direct evidence which suggests that this consideration is relevant to the Applicant’s case. While it is possible to properly infer that the victims of armed robberies are likely to suffer from such offences, the Tribunal recognises this consideration but specifically does not weigh it against the Applicant’s interests.

Extent of impediments if removed

57.The Applicant is currently 27 years of age and although he was treated for mental health issues in prison (apparently the result of drug-induced psychosis) and depression, the material reveals that he voluntarily stopped medication. He is a New Zealand citizen and although he has not lived in that country for most of his life, it is not impossible to suppose that he would be able to integrate culturally should he be returned to that country.

58.While this consideration on balance may weigh in the Applicant’s favour, neither this consideration nor any other consideration capable of being taken into account in the Applicant’s favour outweighs the powerful force of Primary Considerations 1 and 3.

CONCLUSION

59.Primary Considerations 1 and 3 powerfully weigh in favour of non-revocation of the original decision even taking into account all those other matters and consideration in the Applicant’s favour. The Tribunal affirms the decision under review.

I certify that the preceding 59 (fifty-nine) paragraphs are a true copy of the reasons for the decision herein of
Senior Member M Griffin QC

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

Associate

Dated: 25 October 2018

Date of hearing:	10 October 2018
Applicant:	In person
Solicitor for the Respondent:	Mr W Staples, Clayton Utz