Zyaran and Minister for Home Affairs (Migration)

[2018] AATA 3785

Zyaran and Minister for Home Affairs (Migration) [2018] AATA 3785 (11 October 2018)

Division:GENERAL DIVISION

File Number(s):      2018/4178

Re:Patrick Zyaran

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:11 October 2018  

Place:Sydney

The reviewable decision made 18 July 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection, not to revoke the decision made 1 September 2017 to cancel Mr Zyaran’s Class BB Subclass 155 Five Year Resident Return visa, is affirmed.

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

J W Constance
Deputy President

Catchwords

MIGRATION - mandatory cancellation of visa - failure to pass character test - substantial criminal record - whether the discretion to revoke the cancellation should be exercised - Ministerial Direction No. 65 - primary considerations - protection of the Australian community from criminal or other serious conduct - nature and seriousness of conduct - robbery - assault of an officer in the execution of duty - assault of taxi driver - property offences - possession or use of a prohibited weapon without a permit - nature of future harm - likelihood of engaging in further criminal or other serious conduct - expectations of the Australian community - risk to the Australian community - impediments if removed from Australia - decision affirmed

Legislation

Migration Act 1958 (Cth)

Cases

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014

REASONS FOR DECISION

J W Constance

Deputy President

Introduction

[1]

Background

[7]

Relevant Legislation  

[16]

Direction No. 65

[21]

The Issue for Determination  

[30]

Reasoning

[33]

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

[33]

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

[68]

Primary Consideration 3: Expectations of the Australian community

[70]

Other considerations

[73]

The Balancing Exercise

[88]

Conclusion

[97]

PART A: INTRODUCTION

1. Mr Zyaran is a 32-year-old citizen of Fiji. He was aged five in 1990 when he migrated to Australia with his mother. Immediately prior to 6 July 2017 he held a Class BB Subclass 155 Five Year Resident Return visa.[1]

   [1] Exhibit R1 at 13.

2. On 21 February 2017 Mr Zyaran was sentenced to imprisonment for an aggregate term of four years and six months for a number of related offences.[2] The offences included aggravated take and drive a motor vehicle for which he was sentenced to four years imprisonment.

   [2] Exhibit R1 at 19.

3. On 1 September 2017 a delegate of the Minister for Immigration and Border Protection cancelled Mr Zyaran’s visa (“the original decision”).[3] This decision was made on the basis that the delegate was satisfied that Mr Zyaran did not pass the character test set out in the Migration Act 1958 (Cth) and that he was serving a term of imprisonment on a full-time basis in a custodial institution.[4]

   [3] Exhibit R1 at 123.

   [4] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.

4. In accordance with the procedure set out in the Act, Mr Zyaran made representations to the Minister seeking to have the original decision revoked. On 18 July 2018 a delegate of the Minister for Home Affairs and the Minister for Immigration and Border Protection decided not to revoke that decision.[5] The decision of 18 July 2018, referred to as “the reviewable decision”, is the subject of this application for review.

   [5] Exhibit R1 at 9.

5. At the time of the hearing of this application Mr Zyaran was being held in immigration detention.

6. For the reasons which follow, the reviewable decision will be affirmed.

   PART B: BACKGROUND

7. Unless otherwise stated, the following findings of fact are based on the evidence of Mr Zyaran.

8. Mr Zyaran’s parents separated shortly after he was born. He was raised by his mother. Apart from two years in High School in New Zealand he attended school in Australia.

   Mr Zyaran’s criminal record

9. A National Police Certificate issued in respect of Mr Zyaran[6] shows that he has been convicted of numerous offences in Australia. A copy of the entries relating to his appearances in Courts as an adult is attached as “Annexure A” to these reasons.

   [6] Exhibit R1 at 19-24.

10. The offences in respect of which a term of imprisonment was imposed are as follows:

Court Date	Offence and term of imprisonment
21 February 2017	Aggravated take and drive a motor vehicle with a person in/on it; inflict actual bodily harm; fail to stop in police pursuit; drive recklessly: aggregate 4 years and 6 months imprisonment
30 September 2014	Custody of knife in public place: 40 days imprisonment
17 December 2010	Robbery in company: 5 years and 6 months imprisonment

Courts’ Sentencing Remarks as to the circumstances of the offences

February 2017 – aggravated take and drive motor vehicle and offence relating to police pursuit

1. The Court described the circumstances of the offences as follows:

   On 12 November 2015 at approximately 2am the victim, a taxi driver, was waiting for a passenger at Lidcombe train station. The offender exited the train station and entered the back seat of the taxi and asked to be driven to Liverpool. During the trip the offender asked the victim whether he wanted drugs. From this point onwards the victim’s memory of the offence is sporadic as a result of the assault. However, he remembers that he replied with words to the effect that he was going to take the offender to the police station or was going to call the police.

   The victim then remembers being outside the taxi and seeing the taxi rolling away with no one inside it. He does not remember how he came to be outside the taxi. The offender removed an object from underneath his shirt and used it to hit the victim on the head, throat and chest. The offender put his hands around the victim’s throat and tried to choke him. The victim tried to get back inside the taxi, as he tried to do so the offender repeatedly hit him on his back and tried to close the car door on him. The victim’s body was half inside the taxi with his feet still on the road. The victim was in pain and started vomiting. The offender drove away in the taxi.

   Immediately following the assault the victim called triple-0, after speaking to the operator he lost consciousness. The police attended to the victim passed out on the side of the road. He started coughing and appeared to have a seizure. He was taken to hospital for treatment. Fortunately, the victim’s injuries were not significant in that he sustained a small cut to his forehead as well as pain in his neck and back.

   The offender drove the taxi through a number of streets. He was intercepted by police in Hereford Street. Upon sighting police the offender drove the taxi onto a wide median strip in the middle of the road and accelerated across the grass area. The taxi drove at speed towards a marked police car that was parked across the entry to the street.

   At the last minute the offender veered around the police car and onto a footpath. The offender drove at approximately 60 kilometres an hour around a bend in the road. Before the offender reached the end of the road he slowed the taxi’s speed and opened the driver’s side door. Before he could just out [sic] of the moving taxi the car mounted the gutter and travelled across the grass onto another road. The offender’s body was partly handing out of the taxi. The taxi continued to veer across the road until it collided with a parked car and then a tree.

   At this time the offender jumped out of the taxi and ran directly towards the police car. He was hit by the police car. The police observed the offender lying on the roadway having a seizure. They placed him in the recovery position and waited for an ambulance. He was taken to hospital for treatment. The next day he was discharged into the custody of Corrective Services.[7]

   [7] Exhibit R1 at 30-32.

   December 2010 – robbery in company

2. The Court set out the following facts of the offence:

   Shortly after 9pm on Sunday, 10 January 2010 the offenders Biu, Peyroux-Dean and Zyaran entered the Green Valley hotel through the front car park entrance of the hotel situated on Cartwright Avenue, Miller. All of the offenders approached the entrance of the hotel wearing hooded jackets, bandanas and gloves. The offender Zyaran was carrying a long-bladed machete whilst the offenders Biu and Peyroux-Dean were armed with screwdrivers.

   On the way into the hotel the offender Biu grabbed the victim […] who was standing outside the hotel waiting for a taxi. [The victim] was lifted up by the offender who said ‘Don’t do anything or I will stab you’. [The victim] was dragged into the hotel where he fell over inside the entrance door area. Further threats were made for [the victim] to get up and he was walked towards the bar area where he was pushed onto a lounge chair.

   The offender Zyaran approached the main bar area whilst holding the machete towards the bar and demanded money from the bar manager […]. The offenders Peyroux-Dean and Biu approached the victim […] who was employed as the hotel security guard in the dining room area of the hotel. [The victim] was forced to the ground where he was held down with a screwdriver at his back.

   [The bar manager] stood near the cash register as the offender Zyaran reached in and grabbed various notes and coins from the register, placing them into a black backpack. The offender Zyaran then asked [the bar manager] to open the safe located underneath the poker machine till. [The bar manager] told the offender he was unable to open the safe as it was operated on a time delay mechanism.

   Green Valley Police were alerted to the robbery by a hotel patron who had managed to exit the hotel without being seen. Police attended the hotel where all offenders were arrested without incident. All of the offenders were conveyed to the Green Valley Police Station. The money stolen from the hotel was found on the offender Zyaran and also in his backpack. The total amount of money stolen in the robbery was $6,303.70. All three offenders declined to participate in a record of interview.[8]

   [8] Exhibit R1 at 43-44.

   Warning that visa may be cancelled

3. On 28 March 2013 the Department of Immigration and Border Protection notified Mr Zyaran that his visa may be cancelled on character ground by reason of his prior convictions.

4. By letter of 2 October 2013 Mr Zyaran was advised that his visa would not be cancelled at that time. The letter contained the following warning:

   Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered [emphasis in original].[9]

   [9] Exhibit R1 at 199.

   Failure to pass the character test

5. It is not in dispute that, by reason of his criminal record, Mr Zyaran does not pass the “character test” set out in the Migration Act 1958 (Cth).[10]

   [10] Applicant’s Statement of Issues, Facts and Contentions dated 15 June 2016 at [3].

   PART C: RELEVANT LEGISLATION

6. Subsection 501(3A) of the Migration Act 1958 (Cth) provides:

   (3A)The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)     paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)    paragraph (6)(e) (sexually based offences involving a child); and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

   This mandatory cancellation decision is referred to later in the Act as “the original decision”.

7. Subsection 501(7)(c) provides:

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more

8. Subsection 501CA(3) provides:

   (3)  As soon as practicable after making the original decision, the Minister must:

   (a)give the person, in the way that the Minister considers appropriate in the circumstances:

   (i)     a written notice that sets out the original decision; and

   (ii)    particulars of the relevant information; and

   (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

9. Subsection 501CA(4) 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.

10. The power of the Tribunal to review the decision to refuse to revoke the cancellation of Mr Zyaran’s visa is provided by section 500 of the Act.

    PART D: DIRECTION NO. 65

11. Under subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 23 December 2014.

12. Subparagraph 6.1(3) of the Direction provides, in part:

    Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

13. Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction.”

14. Under the heading General Guidance, subparagraph (1) provides:

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

15. Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of Mr Zyaran’s visa will be revoked.

16. In paragraph 6.3 the Minister sets out the principles that provide the framework with which the task of exercising the discretion to revoke the cancellation of a visa is to be approached. The principles include the following:

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

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

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

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

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

17. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[11] Primary considerations should generally be given greater weight than the other considerations.[12]

    [11] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [6.2(3)], [8(1)].

    [12] Ibid at [8(4)].

18. Paragraph 13(2) provides:

    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

19. Paragraph 14(1) sets out other considerations to be taken into account where relevant. It provides:

    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties;

    c)Impact on Australian business interests;

    d)Impact on victims;

    e)Extent of impediments if removed.

    PART E: THE ISSUE FOR DETERMINATION

20. I have set out subsection 501CA(4) of the Act earlier in these reasons (see paragraph 19). Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met.

21. It is not in dispute that Mr Zyaran has made the representation referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. It is, therefore, necessary to decide whether “there is another reason [i.e. other than Mr Zyaran passing the character test] why the original decision should be revoked.”[13]

    [13] Migration Act 1958 (Cth) s 501CA(4)(b)(ii).

22. If I am satisfied of all the relevant requirements of subsection 501CA(4)(b) then the cancellation must be revoked. To this extent “may” in the subsection means “must”.[14]

    [14] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].

    PART F: REASONING

    F1: Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct

1. I must have regard to matters set out in paragraph 13.1, which include:

   ·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;

   ·[t]he nature and seriousness of the non-citizen’s conduct to date;

   ·[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[15]

   [15] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.

   F1.1: The nature and seriousness of Mr Zyaran’s conduct to date

2. Mr Zyaran’s conduct includes violent offending (including robbery, assaulting an officer in the execution of duty and the assault of the taxi driver), property offences, and possession or use of a prohibited weapon without a permit. In addition, he was involved in violence while in prison.

3. Despite the clear warning given to Mr Zyaran in October 2013, he continued to offend as appears from the National Police Certificate.[16]

   [16] Exhibit R1 at 29.

4. Mr Zyaran’s conduct must be regarded as extremely serious.

   F1.2: The risk to the Australian community should Mr Zyaran commit further offences or engage in other serious conduct

5. Direction No. 65 states that I “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.”[17]

   [17] Minister for Immigration and Border Protection (Cth), Direction [No 65] – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under section 501CA, 22 December 2014, at [13.1.2(1)].

6. There are also considerations to which regard must be had cumulatively:

   (a)[t]he nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

   (b)[t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[18]

   [18] Ibid at [13.1.2(2)].

   The nature of future harm

7. In view of the seriousness of Mr Zyaran’s conduct and in line with the principle stated above, the Australian community’s tolerance for the risk of any harm which may come of future misconduct by Mr Zyaran would be low. Should Mr Zyaran further engage in such serious conduct, there would be a significant risk of physical harm to members of the community and loss of property arising from offences such as burglary. The offences would cause uncertainty and concern in the community in which they were committed.

8. I conclude that the nature of future harm should Mr Zyaran continue to engage in conduct such as that in which he has already engaged, is serious.

   The likelihood of Mr Zyaran engaging in further criminal or other serious conduct

   Mr Zyaran’s evidence

9. Mr Zyaran says that he has been successfully rehabilitated and will not re-offend. He attributes his having become “a whole new person”[19] to:

   ·the benefit he has received from undertaking rehabilitation courses while in prison in 2017;

   ·the accident involving the police vehicle and the time spent in gaol and detention having “opened my eyes”;[20]

   ·his understanding and acceptance of his past mistakes;

   ·the support of his family;

   ·his regular consultations with a psychologist.

   [19] Transcript 25/09/2018.

   [20] Transcript 25/09/2018.

10. In his statement made 13 September 2017[21] he said, in part:

    [21] Exhibit R1 at 72-73.

    During my time in jail I have completed the following courses:

    ·         Addictions 12-step programme

    ·         Aggressions/Calm programme

    ·         Equips Foundation

    ·         Equips Aggression

    Throughout these courses I have learnt how to deal with my emotions in a more positive way and how to make better choices when faced with difficult life situations. I have always held a job in jail where possible and believe that the work ethic I have developed will continue when I am released. I have good job prospects for when I am released.

    I admit to having made stupid mistakes whilst growing up resulting in convictions and eventually my incarceration. I believe that the time spent in jail has opened my eyes to the wrongs I have committed and the harm I have caused other people and society at large. I also feel that this time away has led to a strong sense of soul searching and I have found a new purpose in life. I would like to be a contributing member to society and make my family proud of the person I know I can be. I feel that I am on the road to rehabilitation and would like the chance to spend the rest of my life in Australia with my family, whom I love very much.

    Evidence of Ms Adams, Mr Zyaran’s mother

11. Ms Adams provided a statement dated 27 June 2018[22] and gave evidence at the hearing. She impressed me as an honest witness who gave her evidence to the best of her recollection. I accept her evidence.

    [22] Exhibit R1 at 103.

12. In her statement Ms Adams said, in part:

    I provide this reference in full knowledge of Patrick’s past convictions. Patrick has pleaded guilty and is genuinely remorseful for his actions. Drugs also contributed to his behaviors and judgments. Most of our conversations during the many visits and numerous phone calls he has continuously acknowledged that he has to change his ways and get rid of the so called people that he thought were his friends. Patrick has taken responsibility for his actions and owns it. I know he has taken a lot of steps during his time in jail to change his attitude since the crime occurred. I believe and know that he is willing to change his ways and behaviors. I strongly believe the [sic] Patrick needs a second chance and support from everyone to redeem himself as an outstanding individual and become a role model for others who may go into the wrong paths as he did so he can let them know from his past life and experiences to better themselves.

    …

    I know all this negative experiences [sic] has taught hum a valuable lesson and all we need to do is to support him to bring out the good and the best out of this man.[23]

    [23] Exhibit R1 at 103.

13. When she gave evidence Ms Adams said that Mr Zyaran now has a better understanding of his situation and now knows that he has a lot of support from others. She said that he realizes that he has mainly hurt her and himself.

14. Ms Adams attributes Mr Zyaran’s re-offending after his first time in prison to his difficulty in obtaining sufficient identification to gain employment as his passport was lost after it was held by a Court in Queensland.

    Evidence of Mr Sterjovski, Mr Zyaran’s step-father

15. Mr Sterjovski provided an undated statement[24] and gave evidence at the hearing.

    [24] Exhibit R1 at 104.

16. In his statement Mr Sterjovski said, in part:

    I have been together with Patrick’s mum Marilyn for the past 20 years.

    Together we have raised, educated and nurtured Patrick through his Primary to High School years.

    …

    Patrick has realised and fully accepts that some choices with the wrong associations had led him astray of what path in life he needed to take and cherish.

    A good job opportunity, work placement or trial and to enrol in some courses would be valuable for his self-esteem and confidence for him to settle back into a stable routine in life and become a good community citizen.

    …

    I thank you for this opportunity to allow me to express my feelings towards a young man that I believe in and will continue to support.

17. Mr Sterjovski is willing to further assist Mr Zyaran to gain employment and undertake training such as TAFE courses.

18. I am satisfied that Mr Sterjovski was an honest witness. I accept his evidence.

    Evidence of Ms Mansweto, Mr Zyaran’s Partner

19. Ms Mansweto provided a statutory declaration made 24 August 2018[25] and gave evidence at the hearing. I am satisfied that she was an honest witness and I accept her evidence.

    [25] Exhibit A3.

20. In her statutory declaration Ms Mansweto stated, in part:

    I have known Patrick for about 3 years

    …

    Patrick and I have always had a very close friendship, and we were planning to get more serious with our relationship once he had completed his sentence, with dreams of getting married and eventually starting a family together. This has been put on hold due to Patrick’s detainment which has been emotionally and mentally devastating not only on myself, but also his family.

    …

    I believe Patrick’s [sic] needs family to support him through this new chapter of his life. If deported to Fiji, I feel that this would put copious amounts of stress on Patrick and effect [sic] his wellbeing as he would have no money, no family to turn to and be homeless. Patrick being deported back to Fiji, not only effects [sic] him but also effects [sic] myself and his family. I believe if given the opportunity, Patrick can prove that he can be a contributing member of the Australian society.

    Evidence of Mr Strickland, family friend

21. Mr Strickland provided an undated statement[26] and gave evidence at the hearing.

    [26] Exhibit R1 at 105.

22. Mr Strickland is a family friend who has known Mr Zyaran for 25 years. He is of the view that the circumstances which caused Mr Zyaran to offend no longer exist. He is prepared to assist Mr Zyaran to gain employment in the construction industry should he return to live in the Australian community.

23. I am satisfied that Mr Strickland was an honest witness. I accept his evidence

    Availability of support from Transition Reintegration and Community Connection Program (OnTRACC)

24. On the basis of letters each dated 16 February 2018[27] from Ms Keesing-Styles, an Intake and Assessment Worker with this Program, I am satisfied that Mr Zyaran is eligible for support from the Program should he be able to remain living in Australia.

    [27] Exhibits A1 and A2.

25. Ms Keesing-Styles advised as follows:

    This letter is to confirm that Mr Patrick Zyaran has been referred to the OnTRACC (Transition Reintegration and Community Connection) program whilst in custody. OnTRACC is a 12 month voluntary program delivered in partnership with Corrective Services NSW, which supports medium to high risk (LSI-R) parolees in the Sydney Metro region to successfully reintegrate into the community and reduce their risk of reoffending.

    The OnTRACC program provides support to Parolees, subject to an individual’s needs, in the following areas:

    -    securing housing

    -    scheduling and attending appointments

    -    assistance with referrals and paperwork

    -    seeking employment or training opportunities

    -    legal support with fines and/or debt

    -    strengthening a client’s formal and informal supports in the community

    -    supporting integration with pro social networks

    The Courts’ Sentencing remarks as to prospects of rehabilitation

26. In 2010, when sentencing Mr Zyaran for the offence of robbery in company, Judge Keleman said, in part:

    His mother believes that he was disadvantages by not having a father figure in his life during his earlier years, however, the offender is fortunate to have a good relationship with his stepfather over the past twelve years.

    According to the pre-sentence report he appears to have a close and supportive relationship with his mother. His mother has indicated that he is welcome to return to live with her and her husband when he is released from custody provided he behaves himself.[28]

    [28] Exhibit R1 at 47-48.

27. In February 2017, Judge Yehia observed in relation to the offences involving the taxi driver:

    I am somewhat guarded about the offender’s prospects of rehabilitation and the likelihood of his re-offending. He does have a record of previous convictions and committed these offences only four months after the expiration of his last parole period. He appears to have an unresolved substance abuse problem that contributes to his offending conduct.

    The offender does enjoy the support of his mother, stepfather and extended family. I have also had regard to the references tendered on his behalf that he is deeply sorry for his actions. I am not satisfied that he fully appreciates the seriousness of his actions and the underlying factors giving rise to his criminal behaviour. It may well be that as a result of the difficulty he has remembering the circumstances relating to the offences, he is unable to fully appreciate the extent of his wrongdoing. However, I accept that he has expressed some remorse for his actions, a factor that is relevant to his prospects of rehabilitation.

    …

    This is not a case where it can be said that there is no prospect of rehabilitation. I am prepared to find that he has some prospects of rehabilitation. Furthermore, I note that when the offender was released from custody in 2015 he had no form of identification which would have no doubt hindered his prospects in the community. I accept that since that time his mother has located his birth certificate and an expired Fijian passport which will allow him to apply for further forms of identification will be significantly enhanced by a period of supervised parole.[29]

    [29] Exhibit R1 at 38-39.

    Discussion

28. Taking all the above factors into account, I have reached the conclusion that there is a significant risk that Mr Zyaran will continue to engage in criminal conduct of the type he has engaged in previously should he return to live in the Australian community.

29. By reason of the seriousness of the potential harm to the community should Mr Zyaran re-offend, the community’s tolerance of the risk of such harm is low.

30. Mr Zyaran has been offered assistance over many years to enable him to rehabilitate himself and cease offending against Australian laws. This assistance has come from the justice system and from his family. Unfortunately, he did not take advantage of this but continued offending, culminating in the imposition of a term of imprisonment of four years and six months, with a non-parole period of two years and four months. Although a longer sentence was imposed in 2010, since that time Mr Zyaran’s offending has increased in seriousness. This indicates that attempts to have Mr Zyaran rehabilitate himself, at least until his most recent term of imprisonment, were not successful.

31. I have taken into account that as recently as February 2017 the Court was “somewhat guarded about the offender’s prospects of rehabilitation and the likelihood of his re-offending.”[30] At that time, the Court also noted that Mr Zyaran appeared to have an unresolved substance abuse problem that contributes to his offending conduct. Whilst Mr Zyaran has participated in some courses in prison to address this problem, I have no other evidence than his as to the effectiveness of these courses.

    [30] Exhibit R1 at 38.

32. I have also taken into account that Mr Zyaran was assessed as suitable for the OnTRACC program which is designed to support “medium to high risk (LSI-R) parolees.”[31]

    [31] Exhibit A2.

33. I am satisfied that Mr Zyaran will have professional assistance as well as family support should he be able to return to the Australian community. However, the effectiveness of these supports and Mr Zyaran’s resolve not to re-offend, are yet to be tested in the Australian community.

34. I note also that the warning issued to Mr Zyaran did not inhibit him from further offending.

35. In these circumstances I am satisfied that the need to protect the Australian community from the effects of serious misconduct such as that in which Mr Zyaran has engaged, weighs heavily in favour of not revoking the cancellation of Mr Zyaran’s visa.

    F2: Primary Consideration 2: Best interests of minor children in Australia affected by the decision

36. When asked as to any minor children in Australia who may be affected by a decision as to his visa, Mr Zyaran referred to a niece who was three months old at the time of the hearing. Mr Zyaran has not had contact with his niece and there is no evidence that she will be affected by my decision.

37. I am satisfied that this consideration is not relevant to this application.

    F3: Primary Consideration 3: Expectations of the Australian community

38. Clause 13.3 of the Direction provides:

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

39. In YNQY v Minister for Immigration and Border Protection[32] the Federal Court said, in part:

    In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. 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 been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is 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 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.[33]

    [32] [2017] FCA 1466.

    [33] Ibid at [76].

40. I have no evidence to enable me to determine the expectations of the Australian community in this matter. Nevertheless, for the reasons set out by the Court, I am satisfied that these expectations weigh against the revocation of the cancellation decision.

    F4: Other considerations

41. Clause 14 of the Direction provides:

    (1)  In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.

    International non-refoulement obligations

42. There is no evidence to suggest that Australia has any non-refoulement obligations which are relevant to this application. Mr Zyaran’s representative did not contend otherwise.

    Strength, nature and duration of ties to Australia

43. Clause 14.2 of the Direction provides:

    (1)  The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

1. Mr Zyaran arrived in Australia when he was only five years old. Apart from two years spent in New Zealand towards the end of his secondary schooling, he has lived in Australia since 1990. I am satisfied that he regards Australia as his home and has done so for a long time.

2. Mr Zyaran has worked in various occupations when he was not in prison or detention. In his Personal Circumstances Form dated 1 September 2017[34] he disclosed that between 2005 and 2010 he worked as a factory hand, a labourer and a kitchen hand. When working he did make a positive contribution to the Australian community by way of the services he provided and the tax he paid on his income. This contribution has been limited by reason of the time spent in prison and immigration detention. He has also had some employment while in prison.

   [34] Exhibit R1 at 67.

3. I am satisfied that Mr Zyaran has family ties with his partner, his parents and his step-father, all of whom are permanent residents of Australia. In particular, his relationship with his mother is close. Should Mr Zyaran be required to leave Australia I accept that it would be very distressing for Ms Adams and Ms Mansweto.

4. In his Personal Circumstances Form Mr Zyaran responded to the request to describe the impact of the cancellation of his visa on his family as follows:

   My mum has been very stressed and has been put [sic] medication for high blood pressure anxiety. I have lived with my mother since birth without a father. She has looked after me all these years and it is now time for me to look after her as is custom to my religion.[35]

   [35] Exhibit R1 at 71.

   Impact on Australian business interests

5. I am satisfied that a decision not to revoke the cancellation of Mr Zyaran's visa will not have a relevant impact on Australian business interests.

   Impact on victims

6. I do not have sufficient evidence to assess the extent of the impact of Mr Zyaran’s behaviour on the victims of his criminal conduct, other than that I am satisfied that the victims of his crimes variously suffered physical injury, emotional distress, and financial loss.

   Extent of impediments Mr Zyaran may face if he is removed from Australia

   Health

7. Mr Zyaran suffered a brain injury when he walked in front of a police car during the pursuit in 2015. He reported a loss of memory of the events of that day, for some time previously and for two days after.

8. Mr Zyaran was assessed by Mr Stevens, Provisional Psychologist, and Ms Metcalf, Clinical Neuropsychologist, in April 2016. They reported that he had good results on cognitive testing which suggested that he was likely to return to premorbid activities without significant concern although he did have areas of mild cognitive weakness.[36]

   [36] Exhibit R1 at 78.

9. In November 2016 Mr Zyaran was assessed by Dr Nielssen, Psychiatrist.

10. In a report dated 30 November 2016,[37] Dr Nielssen stated:

    Based on his presentation in a clinical interview, Mr Zyaran was thought to have made a good initial recovery from a serious brain injury. Further improvement can be expected over the next twelve months or so. However, serious head injuries frequently result in subtly personality change, with a coarsening of pre-existing traits, reduced inhibition, increased irritability and impaired problem solving ability. Hence Mr Zyaran will probably require the support of a brain injury rehabilitation service to help him to recognise those limitations and to provide him with the support he needs to resume work and manage other social demands.

    Mr Zyaran’s prognosis is closely linked to the course of his substance use disorder. Hence he requires ongoing supervision and support to help him maintain abstinence from illegal drugs after his release, and also to minimise any alcohol use, as his tolerance to the effects of alcohol is likely to be far lower. He is also likely to derive some benefit from treatment for anxiety and depression with antidepressant medication and counselling.[38]

    [37] Exhibit R1 at 77

    [38] Exhibit R11 at 82.

11. In its Country Information Report on Fiji of 27 September 2017, the Department of Foreign Affairs and Trade reported:

    The government provides generous public health services, including free primary and secondary health care. However, x-ray and other support services are not generally subsidised.[39]

    [39] Department of Foreign Affairs and Trade, Country Information Report: Fiji 17 September 2017 at 6 at [2.24] viewed 5 October 2018.

    Employment and Housing

12. Mr Zyaran gave evidence that he would be practically homeless if deported to Fiji. He has no family there.[40] His employment prospects are uncertain.

    [40] Exhibit R1 at 72

    PART G: THE BALANCING EXERCISE

13. The nature and seriousness of Mr Zyaran’s conduct and the seriousness of the harm which would be caused to members of the community should Mr Zyaran re-offend are factors which weigh very heavily against the revocation of the decision to cancel his visa. The weight of these considerations is increased by the fact that I am satisfied that there is a significant risk of his repeating his criminal conduct.

14. Although the evidence is not clear, it may be that many of the offences committed by Mr Zyaran were in part a result of his problems with drugs and alcohol. I take into account that he has received some counselling in prison; the extent and effectiveness of this counselling in unknown.

15. Mr Zyaran’s failure to heed the very clear warning given to him in 2013 weighs heavily against revoking the cancellation of his visa. This is particularly so in light of his subsequent offending which increased in seriousness until he was imprisoned in 2017.

16. The considerations which do weigh in favour of revoking the cancellation of Mr Zyaran’s visa are his residency in Australia from a very young age, the impediments he will face if he returns to Fiji, and the effect on his immediate family members.

17. A decision not to revoke the cancellation will be very distressing for Ms Adams and Ms Mansweto. Ms Adams has cared for and supported her son through his lifetime and that this must have been extremely difficult for her.

18. There is no doubt that Mr Zyaran will face difficulties in adjusting to life in Fiji. While he has some residual effects of the injuries he received in 2015, on the basis of the medical reports I am satisfied that he will not face significantly greater impediments arising from his health issues in Fiji than he would in Australia.

19. There is no evidence to suggest that Mr Zyaran will face any substantial language or cultural barriers in Fiji.

20. Having considered all of the evidence I have concluded that the need to protect the Australian community from criminal or other serious conduct such as that in which Mr Zyaran has engaged, outweighs the considerations in favour of revoking the cancellation of his visa. The risk that he may re-offend is such that it is unacceptable.

21. There is no other reason why the cancellation of Mr Zyaran’s visa should be revoked.

    PART H: CONCLUSION

22. The reviewable decision made 18 July 2018, being the decision of the delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection, not to revoke the decision made 1 September 2017 to cancel Mr Zyaran’s Class BB Subclass 155 Five Year Resident Return visa, will be affirmed.

I certify that the preceding 97 (ninety-seven) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

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

Associate

Dated: 11 October 2018

Date(s) of hearing:	25 September 2018
Solicitors for the Applicant:	Northam & Associates
Solicitors for the Respondent:	Clayton Utz

ANNEXURE A

National Police Certificate dated 10 May 2018

Court	Court Date	Offence	Court Result
Downing Centre District Court	21 Feb 2017	Agg take/drive m/v with person in/on it-inflict abh-t1 Police pursuit – not stop – drive recklessly – 1st off-t2	H 59188624: imprisonment (aggregate): 4 years and 6 months commence 12/11/2015 conclude 11/05/2020. non parole period with conditions: 2 years and 4 months commence 12/11/2015 conclude 11/03/2018. Indicative: (h59188624) 2015/00334424-003 (003) 4 years non parole period 2 years 2015/00334424-002 (002) 13 months release subject to supv court case reference number 2015/00334424 H 59188624: imprisonment (aggregate): 4 years and 6 months commence 12/11/2015 conclude 11/05/2020. non parole period with conditions: 2 years and 4 months commence 12/11/2015 conclude 11/03/2018. Indicative: (h59188624) 2015/00334424-003 (003) 4 years non parole period 2 years 2015/00334424-002 (002) 13 months release subject to supv disqualification – driver: 2 years court case reference number 2015/00334424
Campbelltown Local Court	30 Sep 2014	Goods in personal custody suspected being stolen (not m/v) Goods in personal custody suspected being stolen (not m/v) Custody of knife in public place – first offence Possess or use a prohibited weapon without permit-t2 Custody of knife in public place – subsequent offence	H 54095335: bond s9: 12 months supv nsw prob service H 54095335: bond s9: 12 months supv nsw prob service H 54095335: bond s9: 12 months supv nsw prob service H 54095335: bond s9: 12 months supv nsw prob service H 55481745: imprisonment: 40 days commencing 21/08/2014 concluding 30/09/2014
Parramatta District Court	17 Dec 2010	Robbery in company-si	H 39699761: imprisonment: 5 years and 6 Months to commence 100110 conclude 090715 non parole period with conditions: 3 years and 6 Months release subject to supv (agd/jl 190111) (dna/rt 62910) (District Court 90016172) court case reference number 2010/8931
Bankstown Local Court	20 Aug 2009	Never licensed person drive vehicle on road-1st offence	H 38076664: fine: $200 costs – court: $76
Newtown Local Court	06 Sep 2007	Destroy or damage property	H 30918248: fine: $500 costs – court: $70
Sutherland Local Court	02 Feb 2007	Common assault-t2 Wilfully use offensive language on train/rail land/monorail	H 28684601: s10a conviction with no other penalty: (eeco 3627) H 28684601: s10a conviction with no other penalty: (eeco 3627)
Newtown Local Court	01 Dec 2005	Behave in offensive manner in/near public place/school Use offensive language in/near public place/school	H 83344998: fine: $700 costs – court: $65 H 83344998: fine: $250 costs – court: $76
Newtown Local Court	27 Jun 2005	Unlicensed for class, class c/r/lr/mr-1st offence Driver/rider state false name or address	H 23789746: fine: $300 costs – court: $63 H 23789746: fine: $200 costs – court: $63
Downing Local Court	31 Aug 2004	Assault officer in execution of duty t-2 Larceny-t2	H 21457319: bond s9: 12 months H 21457319: fine: $200 costs – court: $63