Zoing and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 375

Zoing and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 375 (3 March 2020)

Division:GENERAL DIVISION

File Number:          2019/8421

Re:Wayne Zoing

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Dr N A Manetta, Senior Member

Date:3 March 2020

Place:Sydney

The Tribunal affirms the decision under review.

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Dr N A Manetta, Senior Member

CATCHWORDS

MIGRATION – mandatory cancellation of applicant’s visa – serious criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – where applicant convicted of violence against a woman – likelihood of recurrence of offending – other considerations – applicant a citizen of New Zealand – no substantial hardship in returning to New Zealand – primacy of primary considerations - decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185
Ung v Minister for Immigration, Citizenship, Migrant Services, and Multicultural Affairs [2020] AAT 112

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

REASONS FOR DECISION

Dr N A Manetta, Senior Member

3 March 2020

1. This is an application by Mr Wayne Zoing, a dual national of New Zealand and Fiji, seeking a review of the decision of a delegate of the Respondent dated 9 December 2019 that the mandatory cancellation of his visa (effected under section 501(3A) of the Migration Act 1958) not be revoked. The visa was mandatorily cancelled because Mr Zoing had committed serious criminal offences whilst in Australia and, at the time of revocation, was serving a term of imprisonment in relation to them.

2. Hearing the matter afresh on the evidence before me, I must decide whether to affirm the decision under review. At the hearing before me, Mr Zoing appeared for himself; Ms Dejean appeared for the Respondent. The Tribunal heard evidence from Mr Zoing, Mr Zoing’s grandfather, and from Ms Connors, Mr Zoing’s partner.

   STATEMENT OF CONCLUSION

3. I have decided to affirm the decision under review. I set out below the background facts and my reasons for this conclusion.  As Mr Zoing did not have representation, I shall express myself plainly.

   BACKGROUND FACTS

4. Mr Zoing gave evidence before me.  He was born in Fiji in April 1997 and is a citizen of that country. He is also a citizen of New Zealand, having emigrated there with his grandfather in 2006. His parents had earlier separated, and he had been living with his mother; but she had two other children to raise and found it difficult to look after all three.  Mr Zoing gave evidence, which I accept, that the separation affected him, but he slowly got used to it.

5. In New Zealand, Mr Zoing pursued his primary and secondary schooling while living with his grandfather. He said he enjoyed the school he attended. He finished up his schooling in New Zealand and came to Australia in 2013, at about the age of 16, with his grandfather.

6. Mr Zoing’s grandfather took him first to Sydney and then on to Goulburn in 2013. Mr Zoing attended school there and did well.  He completed Years 11 and 12, and in 2015 achieved his HSC.  Mr Zoing’s grandfather indicated in his evidence that Mr Zoing passed his HSC comfortably.

7. Mr Zoing did not proceed from high school to further technical or academic studies, but chose to seek work in Griffith.  He was employed at a poultry farm, where  he helped to round up chickens that were to be trucked out in pallets. He worked as a casual in this role.  When he was engaged on the farm, he would work eight hours per day, he said, Monday to Friday and would earn some $1200 per week.

8. In 2016, aged 19, Mr Zoing met a 25-year-old woman, Ms Connors.  He gave evidence that he first met her at her home, where she was living with her mother, at an impromptu gathering that mutual acquaintances had suggested he attend. He said he ended up getting tipsy, as did Ms Connors, and he had sexual relations with her that night.   Mr Zoing gave evidence, which I accept, that this sexual encounter was the first in his life.  Ms Connors gave evidence, which I accept, that the next day she suggested to Mr Zoing that he move in with her. He agreed to do so.  I pause here to note that the speed with which Ms Connors, then aged 25, sought to establish an ongoing relationship with Mr Zoing, a nineteen-year old whom she had not met previously and with whom she had had one casual sexual encounter, is surprising.  Hearing her evidence, I believe her behaviour reflected her own need for support.

9. Mr Zoing gave evidence, which I accept, that there was a great deal of drinking in the household into which he had moved. This was confirmed by Ms Connors, who said that her mother drank regularly and heavily.  Ms Connors also referred in her evidence to her own drinking problems at that time.

10. Mr Zoing gave evidence, which I accept, that he began to drink heavily as a result of his association with Ms Connors and her mother. I accept his evidence in this regard.  There were frequent arguments between mother and daughter, and he became embroiled in them.  It was clear from Ms Connors’ evidence that she was struggling.  She had alcohol problems, a number of criminal convictions in her past, and, it would appear, an alcoholic mother to manage. 

    CRIMINAL OFFENDING

11. I turn now to consider Mr Zoing’s offending. Mr Zoing’s offences are now numerous.[1] In November 2016, he was convicted of damaging property. He had deliberately damaged a glass shelf in Ms Connors’ mother’s home. He was placed on a bond to be of good behaviour for two years as a result of that event.

    [1] They are set out in Ex R1 at 23-26.

12. In March 2017, Mr Zoing was convicted of entering land without a lawful excuse and of contravening a prohibition or restriction in an apprehended violence order (or AVO). As I understand matters, the AVO had been taken out by the police on the complaint of Ms Connors’ mother who was concerned about Mr Zoing’s behaviour.  He was fined on those occasions.  On 17 May 2017, Mr Zoing was again convicted of contravening a prohibition or restriction in an AVO.

13. He was also convicted in 2017 of driving a motor vehicle while his licence was suspended. So far as the decision I must make is concerned, I do not think anything turns on this.  Mr Zoing was also convicted in 2017 of the unlawful possession of marijuana, which he said he had obtained from a girl he was living with in a caravan park.  

14. Pausing here, I would note that these offences, taken as a whole, are not overly serious, and none resulted in a term of imprisonment; but the six convictions do show that Mr Zoing had begun to find himself in trouble with the law on a regular basis.  He needed to stop his illegal behaviour.  He needed also to stay well clear of Ms Connors’ mother’s premises.

15. On 26 April 2018, Mr Zoing was convicted of a number of offences. The three offences were: destroying or damaging property under $2000, resisting or hindering a police officer in the execution of his or her duty, and contravening an AVO. So far as the first and last offences are concerned, Mr Zoing gave evidence that he had been at Ms Connors’ mother’s premises, wrongfully, and had begun arguing with her.  When the police attended, he resisted arrest.  Once again, fines were imposed.

16. I now turn to two sets of offences which led to the imposition of jail sentences.  Part of the first set of offences stems from an argument Mr Zoing had with Ms Connors in October 2018.  Ms Connors had left the scene of the argument− which I understand from Mr Zoing’s evidence was a park or open area− and gone to a women’s refuge.  Ms Connors said in her evidence that she had decided not to return home (as her mother had told her that she would not open the door to her at that time of night).

17. Rather than let matters be, Mr Zoing attended the refuge, broke the front gate, and bent the front screen door after he banged on it[2] asking that Ms Connors come out to speak with him.

    [2] Ibid, at 31.

18. The offences of which Mr Zoing was convicted on this occasion also involved an event at Ms Connors’ mother’s home in August 2018.  He attended the premises and sought to grab Ms Connors and remove her from the home contrary, apparently, to the mother’s wishes.[3]

    [3] Ibid, at 32.

19. As part of the first set of offences, a number of AVOs were also breached.[4]  I would note at this point that Mr Zoing’s grandfather gave evidence that he had told Mr Zoing that he ought not to ignore an AVO because AVOs were a serious matter.  He advised Mr Zoing that if he needed to attend his girlfriend’s mother’s house for any reason, he ought to ask the police to take him to the premises, but not otherwise attend them. It would appear that Mr Zoing did not take this advice.

    [4] Ibid.

20. The second set of offences arose out of incidents that began in a public street in January 2019 where Ms Connors and Mr Zoing were arguing heatedly and yelling abuse at one another. Mr Zoing was found guilty of assaulting Ms Connors by pushing her to the ground.  He kicked her and also yelled in her ear.[5] In his evidence to me, Mr Zoing denied that he had kicked Ms Connors but he did accept that he had yelled at her (although not in her ear) and he also accepted that he had thrown her to the ground, which caused her to sustain facial lacerations.  I proceed on the basis that the offending took place as described in the sentencing Judge’s remarks.

    [5] Ibid, at 34.

21. On this occasion also, Mr Zoing trespassed into the property of a female neighbour, who was trying to protect Ms Connors according to the sentencing judge.  He intimidated the neighbour.[6]

    [6] Ibid.

22. The sentences that were imposed in respect of the two sets of offending were as follows. In respect of the first set of offences, which was dealt with in the Local Court at Griffith, her Honour Magistrate Boulos imposed an aggregate sentence of one year with a non-parole period of six months to commence on 24 January 2019.[7]

    [7] Ibid, at 33.

23. In respect of the second set of offences, which was dealt with in the Local Court at Goulburn, her Honour Magistrate Beattie sentenced Mr Zoing in respect of the assault upon Ms Connors to a sentence of 16 months with a non-parole period of six months. In relation to the intimidation of the neighbour, a fixed-term sentence of six months was imposed, which was to run at the same time as the non-parole period of six months.[8]

    [8] Ibid, at 35.

24. I would note at this point that in his years in Griffith leading up to this offending, Mr Zoing had not, on his evidence, sought to make contact with his grandfather to explain to him that he faced multiple difficulties; namely, that he had lost his job at the poultry farm, that he had been intermittently homeless, and that he was in repeated legal problems arising from his relationship with Ms Connors, where he found himself in conflict with Ms Connor’s mother and with Ms Connors herself. I also note that Mr Zoing’s grandfather gave evidence that he did visit his grandson and Ms Connors in Griffith, whom he found living in a motel.  Mr Zoing’s father said he did not consider that particularly unusual. 

25. I mention these matters because although Mr Zoing’s grandfather was undoubtedly well intentioned, he had limited involvement with his grandson after the latter moved to Griffith.  He did not know of, or failed to appreciate the significance of, warning signs in his grandson’s life (including the imposition of AVOs by the police, various court appearances, and uncertain accommodation with his girlfriend).  I do accept, however, that if Mr Zoing were now to live with his grandfather as he wishes, his grandfather would exercise a greater deal of supervision.[9]

    [9] As indicated in his statement (Ex A1).

26. Ms Connors submitted a statement[10] and gave evidence to the Tribunal. She has now left her mother’s household and lives some distance away, where she is pursuing a TAFE course.  Even though she has had quite some time to reflect on the deficiencies in her relationship with Mr Zoing, she remains committed to it notwithstanding the violence she has suffered.  She candidly put to me that, if invited by Mr Zoing, she would return to live with him. I note her evidence that she has no friends at the moment and is subject to racist insults at TAFE.

    [10] Ex A2.

27. For his part, Mr Zoing wishes, sensibly, to move away to live with his grandfather and his grandfather’s partner at Broadwater, outside Eden. He hopes to be able to take time there to reflect carefully on his life and, with his grandfather’s help and encouragement, to enrol in a TAFE course to improve his technical qualifications.[11]  Importantly, however, he has not ruled out a resumption of his relationship with Ms Connors, whom he described in his evidence to me as “my missus”.

    [11] Ex A1.

    RE-EXERCISING THE DISCRETION

28. The delegate was required to apply Direction 79,[12] and similarly I am required to apply the Direction. There is no doubt Mr Zoing does not satisfy the so-called “character test”. He has been sentenced to a term of imprisonment of at least 12 months and was serving part of the sentence in jail on a full-time basis.[13]  The question before me is whether there is a another reason[14] to revoke the mandatory cancellation decision. 

    [12] Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018

    [13] See s 501(3A) of the Act.

    [14] That is, apart from an Applicant satisfying the delegate or this Tribunal that he or she passes the character test: see s 501CA(4)(b) of the Act.

29. I recently considered the Direction in Ung v the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AAT 112. I repeat paragraphs [26] to [32] of that decision as follows:

    “[26] I now turn to the re-exercise of the discretion in accordance with Direction 79.  The Direction is divided into parts. Paragraph 6 contains a preamble which sets out the “objectives” of the direction, “general guidance”, and “principles”.

    [27] Paragraph 6.1(1) notes that the objective of the Act is to regulate in the national interest the presence in Australia of non-citizens. The purpose of the direction is to guide decision-makers performing functions including the revocation of a mandatory cancellation order. It is further noted that where the discretion in question involves the revocation of a mandatory visa cancellation, the decision-maker must consider the specific circumstances of the case. 

    [28] I would emphasise that the specific circumstances of an individual case must be addressed and weighed up.  This is, of course, consistent with the rules governing the exercise of discretion under administrative law principles.

    [29] General guidance” is articulated in paragraph 6.2.  Subparagraph (1) notes that the Government is committed to protecting the Australian community from harm as a result of criminal activity. 

    [30] The principles are set out in paragraph 6.3 and may be summarised, so far as they are relevant to this case, as follows:

    (i)Australia has a sovereign right to determine whether a person should remain in Australia. Remaining in Australia is a privilege conferred on noncitizens in the expectation that they will respect Australia’s law-enforcement framework and will not cause or threaten harm to individuals or the Australian community;

    (ii)The Australian community expects that the Australian Government should cancel visas if a person commits serious crimes in Australia. A non-citizen who has committed a serious crime including of a violent nature should generally expect to be denied the privilege of staying in Australia;

    (iii)The criminal offending may in some circumstances be so serious that any risk of its repetition would be unacceptable;

    (iv)Australia has a low tolerance of criminal conduct by people who have been participating in, and contributing to, the Australian community for a short period of time but Australia may afford a higher level of tolerance of criminal 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;

    (v)The length of time a non-citizen has been making a positive contribution to the Australian community and the consequences of a visa cancellation for minor children and other immediate family members in Australia are considerations that are relevant when determining whether that non-citizen’s visa should be cancelled.

    [31] Section 2 of the Direction requires me to be “informed” by the principles in paragraph 6.3 and to take into account the considerations set out in Part C in order to determine whether the mandatory cancellation of Mr Ung’s visa should be revoked. 

    [32] I note that there are so-called “primary” and “other” considerations listed in Part C. In weighing the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. I note that both primary and other considerations may weigh in favour of, or against, revoking a mandatory cancellation of a visa, but primary considerations should generally be given greater weight than other considerations. It is also recorded that one or more primary considerations may outweigh other primary considerations.”

    PRIMARY CONSIDERATIONS

30. The primary considerations I must consider are set out in Part C at paragraph 13 of the Direction.  So far as the protection of the Australian community is concerned, I must weigh up the nature and seriousness of Mr Zoing’s conduct to date and the risk to the Australian community should he commit further offences or engage in other serious misconduct.[15]

    [15] Paragraph 13.1(2) of the Direction.

31. The criminal offending that was the subject of the sentences imposed by Magistrates Boulos and Beattie is very serious. The assault upon Ms Connors must be considered very serious: it is a crime of violence against a woman. The Direction makes it clear that such crimes are always regarded seriously irrespective of the sentence imposed.[16] I have also had regard to the intimidation of the neighbour. This did not involve physical violence as such but it did involve a degree of intimidation towards a woman in the front garden of her home.  Overall, I note there have been repeated breaches of AVOs and that is an important part of the background to the offending.

    [16] Paragraph 13.1.1(1)(a).

32. In my opinion, Mr Zoing has not demonstrated in this time an adequate respect for the AVOs.  They serve to protect victims and are a part of the way our society (through the police) seek to prevent anti-social behaviour.  This lack of respect for the orders is a serious matter. I refer again to Mr Zoing’s grandfather’s evidence that he had advised Mr Zoing not to ignore the AVOs.

33. On the other hand, I do accept that there were other factors operating in Mr Zoing’s life at the time. He said he had been finally stood down from his casual job at the poultry farm and was for a time homeless. He was very young, and, I believe, he had found himself at a young age drawn into an already dysfunctional household where both his girlfriend and his girlfriend’s mother abused alcohol regularly.  I refer again in this connection to Ms Connors’ inviting Mr Zoing to move in with her the very day after their first sexual encounter.  That encounter had taken place after they had both met for the first time and had been drinking.  A wiser man would not have accepted the invitation. I also take into account that there would also appear to have been a degree of hostility towards Mr Zoing from Ms Connors’ mother.[17]  All that said, however, the offences were serious.

    [17] See for example Ex R2 at 27.

1. I also regard Mr Zoing’s aggressive attendance at the women’s refuge as a serious matter.  Mr Zoing attended private premises, damaged property, and disturbed those who were staying there.

2. I must take into account the sentences imposed by the Courts.[18]  So far as the offending against Ms Connors is concerned, the Direction requires me to regard it very seriously regardless of the sentence imposed.[19]  The other sentences reflect serious offending, but when judged against a scale of such offences, they are moderately serious only.  I note also the short non-parole periods, which were given to assist Mr Zoing.[20]

   [18] Paragraph 13.1.1(1)(d).

   [19] Paragraph 13.1.1(1)(b).

   [20] Exhibit R1 at 34.

3. I must also have regard to the frequency of Mr Zoing’s offending, and whether there is a trend of increasing seriousness.[21]  Mr Zoing committed a large number of offences in Griffith with the most recent offences being more serious and leading to jail terms. Before the more serious offending, the criminal behaviour had reached a point where Mr Zoing, although young, had found himself often before the courts, particularly in relation to AVO breaches.  The offending, even at this stage, shows that Mr Zoing did not accept that he needed to bring himself into line with the requirements of the AVOs even if it meant terminating finally the relationship with Ms Connors.  The two sets of offences in relation to which Mr Zoing received jail sentences represent a serious escalation of his offending.

   [21] Paragraph 13.1.1(1)(e).

4. I am required to have regard to the cumulative effect of repeated offending and I do so.  It cannot be said that the offending comprises an isolated offence.

5. The remaining factors specified in the paragraph are not relevant.

6. In respect of the risk to the Australian community should there be further offending, I accept Ms Dejean’s submission that the most likely risk to the Australian community is to Ms Connors and to any other person who has an intimate relationship with Mr Zoing.

7. Mr Zoing’s overall immaturity in respect of his relationship with Ms Connors was clear at the hearing.  In his evidence to me, Mr Zoing only appreciated partially, I believe, that he had a violent, and therefore harmful, relationship with Ms Connors and that the relationship had been marred by alcohol.  Mr Zoing did not accept that the relationship was definitely at an end from his perspective, although he needed time away. Ms Connors, for her part, is clear that she would like to resume the relationship despite its difficulties and despite her own problems with alcohol.

8. In my opinion, it is foreseeable that the relationship might resume, and if it were to resume, there could be difficulties, especially if there is any alcohol misuse. Resumption of the relationship is not a matter I can exclude on the evidence of both Mr Zoing and Ms Connors. 

9. At the present time, Mr Zoing also poses, in my opinion, a risk to other women with whom he might have a relationship in the future.  Although Mr Zoing has undertaken some domestic violence training in jail− and I give him full credit for that− he will need further training and counselling in respect of his alcohol misuse, his lack of respect for women, and his lack of respect for the law, including AVOs.  I do accept that as a young offender, jailed for the first time, Mr Zoing will have had a very chastening experience[22] that will act as a strong deterrent in the future.  That said, the need for the training and counselling to which I have just referred remains in my opinion. 

   [22] This was confirmed by his grandfather in his evidence.

10. It was not put to me that the interests of minor children arise in this case,[23] and I do not see that they arise.

    [23] Cf paragraph 13.2 of the Direction.

11. So far as the expectations of the Australian community are concerned, I note that I am not to consider these for myself. In FYBR v Minister for Home Affairs [2019] FCAFC 185, the Full Court made it clear that the expectations of the Australian community in a case like this would be against revocation of the mandatory cancellation decision.[24]  That does not mean, I note, that other factors may not outweigh adverse primary considerations in a given case; but I proceed on the basis that the “community expectations” consideration is against Mr Zoing.

    [24] See especially at paragraphs [75] and [104].

12. All in all, the primary considerations do way heavily, in my opinion, against Mr Zoing’s continued presence in Australia.

    OTHER CONSIDERATIONS

13. The other considerations to which I must have regard are set out in a non-exhaustive list of five in the Direction.[25] International non-refoulement obligations do not arise in this case.

    [25] See paragraph 14.

14. So far as the “strength, nature and duration of ties” consideration is concerned, I believe that I should actively consider the relationship with Mr Zoing’s grandfather. Mr Zoing’s grandfather gave evidence to the Tribunal and provided a statement as well.[26] In my opinion, it is clear that Mr Zoing’s grandfather has had, and continues to have, very good intentions in relation to Mr Zoing.  He was a father-figure to Mr Zoing when the latter’s parents did not look after him as a boy. I do accept that the removal of Mr Zoing to New Zealand would disrupt their relationship, and that the relationship is important to them both.  Mr Zoing mentioned specifically that his grandfather has always supported him.  In this regard, however, I note that Mr Zoing’s grandfather still owns a home in New Zealand, and he confirmed that Mr Zoing could stay there (albeit in the company of relatives of Mr Zoing’s grandfather’s partner who are presently occupying it).

    [26] Exhibit A1.

15. I accept that removing Mr Zoing from Australia will effectively terminate the relationship with Ms Connors.   Mr Zoing said that he needs a break in the interim from the relationship, and I believe firmly that it is in the interests of both Mr Zoing and Ms Connors that the relationship should cease at this time.  I accept that Ms Connors will be upset at the prospect of Mr Zoing’s deportation; but she demonstrated in her evidence to me an insufficient appreciation of the negative aspects of her relationship with him and in particular the danger his violence poses to her.

16. I also accept that Mr Zoing has spent some time in Australia now, and it has become home.  Having left New Zealand as a teenager, he has no doubt come to regard Australia as his adopted country. 

17. I do not believe there is any impact on Australian business interests I need consider. No evidence was led with respect to an adverse impact on victims should Mr Zoing be permitted to stay and I regard it as a neutral factor.[27]

    [27] Cf paragraph 14(1)(c) and (d).

18. So far as “impediments upon removal” are concerned, I would note that Mr Zoing grew up in New Zealand and is familiar with life there. He can return to the house in which he lived until his emigration to Australia.  I accept that he will find it difficult to find work there given his lack of qualifications, and that he will lack the immediate support of his grandfather, which he would have if he stayed in Australia. I think that, all in all, Mr Zoing will face some impediments if he is removed, and I do attach some weight to these.

    RE-EXERCISING THE DISCRETION

19. I must now weigh up the considerations. I am directed to give primacy to the primary considerations “generally”.[28]  This does not exclude other factors predominating, as the Full Court in FBYR[29] made clear; but I think this is a case where the “other considerations” do not outweigh the primary ones in the particular circumstances. The primary considerations in this case, involving as they do protection of individuals and the Australian community, do weigh strongly in favour of Mr Zoing’s deportation. I do not believe that he would face especially difficult impediments were he to resettle in New Zealand, although he will undoubtedly face some.  I do accept that the relationship with his grandfather is a very important one to him, and vice versa, that the relationship will be disrupted, and that Mr Zoing will lack his grandfather’s immediate support in New Zealand.  However, Mr Zoing’s grandfather will be able to visit Mr Zoing in New Zealand at the family home and speak to him by phone from time to time.  He will not be removed entirely from Mr Zoing’s life.  All in all, I have concluded that the “other considerations” do not outweigh the primary considerations I have identified.

    [28] Paragraph 8(4).

    [29] [2019] FCAFC 185.

    FORMAL DECISION

20. The Tribunal affirms the decision under review.

54.      

55.      

56.     I certify that the preceding fifty-three (53) paragraphs are a true copy of the reasons for the decision herein of Dr N A Manetta, Senior Member

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Associate

Dated: 3 March 2020

Date(s) of hearing:

Counsel for the Applicant:

20 and 21 February 2020

In person

Counsel for the Respondent:

Ms H Dejean

Solicitor for the Respondent:

Australian Government Solicitor