2408427 (Migration)

[2024] AATA 4337

2408427 (Migration) [2024] AATA 4337 (5 September 2024)

DECISION RECORD

DIVISION:Migration & Refugee Division

REPRESENTATIVE:  Mr Dushan Nikolic

CASE NUMBER:  2408427

MEMBER:Denis Dragovic

DATE:5 September 2024

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

Statement made on 05 September 2024 at 11:15am

CATCHWORDS
MIGRATION – cancellation – Special Category (Temporary) (Class TY) visa – Subclass 444 (Special Category) visa – risk to safety of Australian community – drug dependency, lengthy violent criminal history and imprisonment – early guilty plea, remorse and self-insight, rehabilitation and vocational courses and emotional and behavioural changes – long residence in Australia – partner and children – family and community ties in Australia and none in home country – non-parole likely due to lack of visa – decision under review set aside

LEGISLATION
Migration Act 1958 (Cth), s 116(1)(e)

CASE
Gong v MIBP [2016] FCCA 561

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to an order under section 70 of the Administrative Review Tribunal Act 2024 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision dated 16 March 2020 made by a delegate of the Minister for Home Affairs to cancel the applicant’s Subclass 444 (Special Category) visa under s 116 of the Migration Act 1958 (Cth) (the Act).

2. The delegate cancelled the visa under s 116(1)(e) having identified the applicant’s presence in Australia ‘is or may be’ a risk to:

   (i)the health, safety or good order of the Australian community or a segment of the Australian community.

   The evidence included the applicant’s past convictions and then pending charges arising from a violent home invasion.

3. The issue in the present case is whether that ground for cancellation is made out, and if so, whether the visa should be cancelled.

4. The applicant appeared before the Tribunal on 23 August 2024 to give evidence and present arguments. The Tribunal also received oral evidence from Latisha Sale, the applicant’s partner, and mother of his four children.

5. The applicant was represented in relation to the review. The representative attended the Tribunal hearing.

6. For the following reasons, the Tribunal has concluded that the decision to cancel the applicant’s visa should be set aside.

   CONSIDERATION OF CLAIMS AND EVIDENCE

7. Under s 116 of the Act, the Minister may cancel a visa if he or she is satisfied that certain grounds specified in that provision are made out. Relevantly, to this case, these include the ground set out in s 116(1)(e). If satisfied that the ground for cancellation is made out, the decision maker must proceed to consider whether the visa should be cancelled, having regard to all the relevant circumstances, which may include matters of government policy.

   Does the ground for cancellation exist?

8. A visa may be cancelled under s.116(1)(e) if the Minister is satisfied that the presence of the visa holder in Australia is or may be, or would or might be, a risk to: the health, safety or good order of the Australian community or a segment of the Australian community; or the health or safety of an individual or individuals. There does not have to be any direct, solid or certain foundation before the power can arise. It can arise on the possibility that some event occurred in the past: Gong v MIBP [2016] FCCA 561, at [41].

9. The applicant’s visa was considered for cancellation in the Notice of Intention to Consider Cancellation (NOICC) in which the basis for finding that the applicant was a risk to the health and safety of the Australian community was reasoned.

10. The grounds for finding that the applicant was a risk included a list of convictions that began while the applicant was a minor and continued through to June 2019. It appears that this list was compiled from the Australian Criminal Intelligence Commission report dated November 2019.

11. In addition, the NOICC relies on information provided by Victoria Police to the Department regarding the charges arising from what were then alleged offences from [August] 2019. The NOICC lists the charges as:

    ·Home invasion (imitation firearm produced)

    ·Prohibited person possess imitation firearm

    ·False imprisonment (3 charges)

    ·Common law assault (2 charges)

    ·Unlawful assault

    ·Theft

12. The NOICC outlines what Victoria Police alleged occurred that night:

    Victoria Police allege that you and a co-accused made plans to attend an unknown address in order to steal money, methyl-amphetamine and items of value from the premises. Victoria Police allege that the co-accused brought an imitation firearm consisting of two tubes taped together to have the appearance of a shotgun. Victoria Police allege that about 2.30am on [Date] August 2019 you and the co-accused approached the front door of the address and that you had in your possession the imitation firearm. It is alleged that victim one opened the front door, but that the security door remained locked, and that the co-accused asked victim one to borrow $20 for petrol. It is alleged that victim one refused this request and stated that you and the co-accused were not permitted to enter the address. Victoria Police allege that you then produced the imitation firearm and forced open the security door and you and the co-accused entered and made your way to the first bedroom where victim two was present. It is alleged that at this time you pointed the imitation firearm at victim two and demanded that both the victims lay face down on the floor. Victoria Police allege that you then punched victim two to the head and kicked victim one several times. It is alleged that you then located an extension lead and a towel in the bedroom and with the assistance of the co-accused proceeded to tie victim one’s hands behind his back causing victim one to become incapacitated, and allegedly proceeded to search through the room for items of value to steal.

    Victoria Police allege that you then left this bedroom and entered victim three’s bedroom at the rear of the house while still holding the imitation firearm. Victoria Police allege that victim three was laying on the bed and asked who you are. It is alleged that victim three rose from the bed and walked towards you when you allegedly struck him to the face twice causing victim three to fall to the ground. Victoria Police allege that victim three rose from the ground and attempted to walk towards the front door in retreat and that you allegedly followed him which resulted in a physical fight between you and victim three. It is alleged that you then made demands for victim three to lay on his stomach to which victim three complied for fear of further assault. Victoria Police alleged that you located victim three’s bedsheet which you allegedly used to tie victim three’s arms behind his back and his legs together causing victim three to become incapacitated.

    Victoria Police allege that you then went to victim four’s bedroom, while still in possession of the imitation firearm, and demanded that victim four exit the bedroom. It is alleged that you then demanded victim four lay on his stomach in the lounge room while you then returned to the bedroom in search of items of value to steal. Victoria police allege that about ten minutes later you returned to the lounge room and took possession of a flat screen television and took it to the front door.

    Victoria Police allege that you then proceeded to the garage where you took possession of a glass cleaner and began pouring the glass cleaner over the lounge room stating you were trying to cover your tracks. Victoria Police allege that you and the co-accused then left the premises.

    Victoria Police further advise that victim one was conveyed to [Hospital 1] with visible grazes to his elbows, knees and claiming to feel dizzy and lightheaded. Victoria Police allege that victim three was conveyed to [Hospital 2] with visible bruising to his left forehead and cheekbone and claimed to be suffering from a mild headache.

    Victoria Police allege that at approximately 1.30pm on [Date] August 2019 you were arrested and conveyed to [a] Police Station. Victoria Police allege that during an interview you made frank admissions to the allegations. Victoria Police further allege that on this same day they attended your address and retrieved several items allegedly stolen from the property of the victims.

13. The applicant remained in remand and then in prison serving his sentence since being taken into custody on the [Date] August 2019. He pled guilty ‘at the earliest opportunity’ according to the sentencing judgement.

14. The Minister’s delegate found that the applicant had a ‘lengthy and a consistent criminal history’, ‘persistent criminal behaviour and disregard towards your victims’ safety,’ ‘little regard for the serious psychological and physical impact of your prolonged harassment and threatening behaviour on your victims and their safety.’ The delegate concluded by finding that the applicant exhibited ‘a pattern of criminal behaviour that is continual and escalating in seriousness’ and a ‘sustained disregard for Australian laws and values.’ Upon this basis the delegate found that the applicant is or maybe a risk to the safety of the Australian community.

15. The NOICC was dated 10 February 2020. The applicant responded to the NOICC by way of a handwritten note making the following key points:

    a.Australia has become his home. In New Zealand he’d have little to no support.

    b.Since being in prison he has come to realise what he stands to lose. He has ‘kids and a fiancé’. He would ‘love to stay in Australia for them’ and it would make it hard for his partner and children if he was sent back to New Zealand.

    c.Being released into the community will give him an opportunity to show that he has turned away from criminal activity and can focus on becoming a better father and better person. He was [an occupation 1] before with his own business and returning to this work would keep him out of trouble.

    d.He is no longer dependent on ICE. He plans to engage in some rehabilitation if released from prison. He wrote that his dependency on ICE started at a young age. While committing offences he was not targeting anyone but had his judgement clouded by ICE. But now he regrets his actions.

16. The delegate cancelled the applicant’s visa on 16 March 2020.

17. The applicant was re-notified of the cancellation on 5 April 2024 because the earlier notification was not undertaken correctly.

18. In a submission dated 16 August 2024 the applicant’s representative provided the following information:

    ·The applicant was convicted and sentenced to six years and 3 months imprisonment for the 22 August 2019 offences.

19. The applicant appeared before the Tribunal by video from prison on 23 August 2024.

20. In considering whether the applicant is or may be a risk to the safety of the Australian community, which is the first of the two stages in this process, I will engage with each of the preventive factors identified by the applicant in his written submission in response to the NOICC as outlined at [15] as well as those that arose through the hearing.

    Australia has become his home

21. In summary the applicant is suggesting that his desire to live in Australia and the risk he faces of being deported to New Zealand were he to re-offend in the future would act as a strong deterrent to future offending.

22. The applicant was born in Tonga and moved to New Zealand in 2002 when he was five years old. He lived in Auckland, New Zealand, for ten years before moving to Australia in 2012 at the age of 15. He sees Australia as his home.

23. The applicant explained that he met his partner in Australia when they were young and still at school in Melbourne. He became a father at 18 years of age and has had three further children in Australia.

24. The father of the applicant’s partner is claimed to welcome receiving the applicant into his household if he were released into the community and that he considers him as his son according to the applicant’s partner. 

25. The applicant described establishing a family home, a business and having four children in Australia as ties that bind him to this country and would deter him from re-offending.

26. The applicant claimed that the situation in New Zealand and the risk of being returned there is also a deterrent. This is because a return to New Zealand would lead to considerable hardship to him and his family. While the applicant has family there, he said that many are planning to come to Australia and others are still at school. He said that he hasn’t kept in touch with his former school friends. He claims not to have a network in New Zealand.

27. He said that he has spoken to some people who have gone back, and they said that the support the government provides is limited, and that it is hard to find employment with a criminal record. He claims that the places where they are given temporary accommodation are bad and that they are full of gangs and drug use. The applicant said that the minimum wage in New Zealand is lower and that he wouldn’t be able to earn as much and as such support his family as well if he was living and working in New Zealand.

28. The applicant variously expressed on numerous occasions a sense of home in Australia. He has spent his adult live in Australia where he met his partner, established community roots, started work and built a family.

29. For the reason that the applicant has exhibited a self-awareness having engaged with the consequences of return and noting that it would disrupt what he sees as his hopes and aspiration for himself and his family, I find that this will weigh heavily in minimising the risk of the applicant re-offending.

    Since being in prison he has come to realize what he stands to lose

30. The applicant has four children. He said that he lost the opportunity to watch them grow and the opportunity to be with his partner. He described them as lost years.

31. The applicant met his partner while in high school. They have been together since then having broken up on two occasions. The first in 2019 prior to going to prison and the second time while in prison. The applicant said that a major reason for breaking up with his partner was his drinking and drugs.

32. He recalled that while in prison he was angry, which he associated with experiencing drug withdrawal, and that he said a lot of things then because he was mad. He blamed her for a lot of what happened. He said that this caused the breakup. He recalled that about a year ago, while still in prison they agreed to get back together. He said that he wanted to start the relationship again as his head was clearer, he was talking a lot more with his wife, and she would visit. He said that he wasn’t angry anymore, just sad that he had pushed the person who he cared for away from him.

33. Despite their breakup the applicant’s partner continued to facilitate communication between the applicant and his children.

34. The applicant sees his children physically twice a month as the drive from their home is a substantial distance and often speaks to them twice every day, once in the morning and once after school. He spoke about each child at the hearing:

    ·Phoenix Aneterose Sale Pua (DOB: 29/10/2015) He described Phoenix as being at an age when he was starting to pull away from the close relationship that he used to have. He said that he is now growing up doing his own thing. When they talk, he is often playing games or playing with his siblings.

    ·Elayna Olovehi Ki Velata Sale Pua (DOB: 08/01/2017) He said that she is a caring and loving girl, ‘like her mum’. He said that when he speaks to her, she is brutally honest, and she would point out everything. He said that she tells you hard truths. When it comes to talking about him, he said that she believes that ‘daddy will be home soon’. She chooses not to believe that he has taken drugs or committed offences. But he acknowledges that she may not fully understand. I note that the mention of this child brought a spontaneous smile to the applicant’s face.

    ·Akapei Josiah Sale Pua (DOB: 01/01/2018) He said that everyone calls him AJ, and that he is named after him. He described AJ as a bubbly kid, and that AJ is always happy when the applicant speaks to him. The applicant recalled that when he left home, AJ was barely talking, and so now he is trying to build a relationship with him.

    ·Alazeya Elisi Moana Sale Pua (DOB: 03/04/2019). He described her as the funny one. She is loud and likes to have fun. She was 3 months old when he was arrested and taken into custody.

35. The applicant provided other detailed descriptions of his children in his 2024 written statement.

36. The applicant identified his children as being at a critical stage of their development and that they needed a stable family home. The applicant believes that his children’s lives will be ‘significantly affected’ if he is not around in Australia.

37. I asked the applicant how he would deal with his children thinking worse of him when they learn of his past behaviour. He said that he made a point of starting to speak of how he feels about certain behaviours and that he can teach his children about right and wrong. He recalled that he never had that instruction when he was growing up. He hopes that they will be able to respect that. He said that he knows how to deal with difficult situations and so he will be able to teach them from his experiences.

38. He wrote that being able to see his children grow up is his biggest motivation. He added that ‘he lives in constant stress all the time about things going wrong for them, and not being able to be there for them.’ He added that ‘there is nothing I want more in the world’ than to see his children running to the front door to greet him when he is home from work.

39. The applicant’s partner said that her children get excited with the video calls with their father although they easily get distracted. She said that when they hear their dad’s voice, they will run to hear him and start telling him about their day. They fight over who will speak to him first. And when it’s time to end the call they all shout out ‘bye daddy’.

40. The applicant wrote in his 2024 statement that he has ‘missed countless significant milestones in the lives of my children, and forced my partner to be in a position where she has to provide four our four children on her own.’

41. His partner wrote:

    Another reason I don’t believe he will reoffend if his visa is reinstated, is the knowledge that if he does, he will lose me and the children. I believe that he will do everything in his power to hold down a steady job, provide for us, and make up for lost time with me and our children.

42. The applicant’s sister noted that when they visit the applicant in prison together with the children, he is,

    really fighting not to break down. [The applicant’s partner] and I often have to tear the children off his lap when we leave. Even when we leave the prison, on the car drive back home, he will call because he knows the kids are really struggling after seeing him, especially his oldest daughter [redacted], she is the biggest daddy’s girl. Whenever we are on the phone, he constantly expresses how he wishes he could go back in time and change what he did.

43. The applicant’s partner noted that she used to work-day and night shifts but had to move part-time to provide the children the necessary support. But this shift has led to her struggling financially listing her expenses as school uniforms, general clothes, her own phone bills, children’s lunches, and contributing to the household family groceries (she lives with her extended family). These financial difficulties would be multiplied was she to follow him to New Zealand.

1. Due to his partner’s family being established in Australia with support networks which allow them to manage, she would not move to New Zealand. The applicant added that it would be unfair of him to uproot the family because of his mistakes. He doesn’t believe that his partner would be able to find work and that the quality of life there isn’t as good.

2. He believes that his children would be affected emotionally if he was living in New Zealand, and they were living in Australia. Whereas now he is a few hours away but physically close, were he living in New Zealand he would be one or two flights away and distant. He added that his children now think of him coming home one day but if he were returned to New Zealand and unable to come to Australia it would be different.  

3. The applicant provided deeply thought through answers about his hopes and aspirations for his life. They centred around his family. It was clear through the applicant’s responses that he had reflected on what was important to him and the evidence of the applicant’s partner reinforces a view that the applicant has insight into his priorities and the risk he faces in losing what is important to him.

4. I accept the applicant’s evidence which can be summarised as his children and his partner being the most important things in his life. I find that his deeply held desire to build a relationship with his children, support his partner and establish a family life, will be a very significant protective factor against re-offending.

   Becoming a better father and person

5. The applicant comes from a Christian upbringing although he is not a practicing Christian. He said because of his faith he was able to get through all the troubles he has faced. He believes that this is his test in his life, just as others go through their own tests. He spoke proudly of having gone through what he has and come out the other end but noted that his test is not over.

6. The applicant’s partner wrote that she goes to church every Sunday and that she’ll encourage him to come and reconnect with his faith and that this will have a positive effect, helping him with his mental health.

7. The applicant’s partner said at the hearing that she has seen a big change in the applicant. When they broke up while he was in prison, he was having drug withdrawals and couldn’t keep a conversation. The call would end quickly. It was then that she decided not to pursue a relationship. But when they started speaking again, about a year later, and they started having normal conversations she would hear a difference in his voice. She then agreed to video visits with the children. She said that she saw a change in his body language too, the conversations would last longer and there were no arguments. Gradually they started speaking about giving it another shot, especially for their children.

8. She wrote in her 2024 statement:

   I think that Akapei has changed, and he is genuinely remorseful. He used to be hot headed and impatient. Now he has a calm tone, and he expresses how much he wishes that he would’ve kept his head down and did his best for us. He has missed out on so much time in terms of his own life, as well as ours and our kids’ lives. He tells me that he would change it all if he could go back.

   …

   I believe that Akapei is a changed man who will no longer commit crimes. When he went into prison, he was a boy. Akapei is now a man, a man who is calm and collected. He is looking forward to being a family man, a father and a hard worker, if he is given his visa back and allowed into the community.

   …

   We decided to get back together after a long discussion, he begged me to give him another chance, I could see that he was doing his best to change his ways and had learned his lesson. I have decided to give him a chance and he promises to be a family man and support us, and I genuinely believe that he will. He made mistakes in his past as a youth but I believe that he has grown into a man, and has learned his lesson.

   …

   Another reason I feel that Akapei has changed is that he has a genuine intention to help people in need. Akapei talks about wanting to get involved in a project I have with my siblings to feed the homeless. My siblings and I often get together and make sandwiches to distribute to the homeless, along with cheeseburgers we purchase from McDonalds. I am proud of his development, and I think that he has genuinely changed as a person.

9. The applicant’s partner doesn’t believe that he would reoffend. If he did, she said that it would be his choice and he should face the consequences. She said that he has served five years in jail, and during that time he has done a lot for himself. She said that she has heard from others that he has accomplished a lot of good things including for example that he opens up emotionally with some of his friends that he is still in touch with. She noted how he had never done so before, as he would usually hide that side. She believes this to be an important step that he has taken because if he needed help, he would reach out.

10. I asked why she thought she could help him this time around when she couldn’t previously. She said that this time is different. She said that they were young before. She said that now she is more confident in being helpful and convincing him to do the right thing. Being immature and having children at a young age wasn’t helpful. She said that she wasn’t equipped to make the choices that she can make now.

11. The applicant said that he wants to become a better father and a better person. He gave the examples of working in a [workplace] as a means of achieving this by earning a wage and taking the pressure off his partner. His partner noted that when he was working, he was making ‘a lot of money’ and that bills would be paid.

12. The applicant’s partner has described the applicant’s demeanour as changed. He is calmer and more expressive of his emotions. Her recollection that others have similarly described changes is noted. I also acknowledge that the applicant and his partner were much younger when he began his offending and that the guidance and support that she can provide to him would be markedly greater now over what she had provided before. Based on the changes the applicant has seen through to date as described by his partner, I find that the applicant’s demeanour will contribute positively to avoiding factors that would contribute to his re-offending.

    No longer ICE dependent, ongoing rehabilitation, remorse.

13. The applicant has had a long history with drugs. The applicant provided extensive details of his childhood circumstances that culminated in being on the Melbourne Storm development roster, completing Year 12 but having a falling out with his father and stepmother such that it forced him to leave their home. He started to live rough along with staying with friends. It was during this period that he was introduced to drugs.

14. The applicant said that looking back at his drug use, he can’t believe that he did what he did.

15. He said that he would get caught up with work, and when he’d come home all he could do was sleep. But sometimes he would take drugs at work. He said that there were a few others who would smoke cigarettes and then occasionally someone would use marijuana then afterwork start drinking, which in turn led to methamphetamine and cocaine use before coming home.

16. He described his state of mind while on drugs as his entire mindset being driven by getting his next fix and that he didn’t feel happy unless he was taking drugs. He described his decision-making at the time as being affected by his drug use.

17. His family would tell him to get his act together. It worked for a couple of days, but he found that when he wasn’t on drugs life got harder and that he didn’t know how to cope. He believes that if he wasn’t on drugs, even surrounded by those friends, he would have made better choices.

18. He wrote in his 2024 statement and reaffirmed at the hearing that he has remained drug free since he entered remand in 2019 before beginning his sentence.

19. The applicant completed a number of rehabilitation courses while in prison. These include:

    a.Substance Use Program

    b.Healthy Lifestyle Plan Program

    c.On Track: 2 Hour Peer-Led Support Program (Emotional regulation)

20. The applicant said that these courses were hard at the start, being in denial that he had a problem with drug use, and discussing everything leading up to it and after, but then the facilitators working with them sat with him until he admitted that he had a problem. After this, he began to reflect on the things he was doing and the impact it had on his partner and their children and the victims.

21. It is not in dispute that the applicant has had a long and varied history of drug use. The applicant, though, has claimed to have not used drugs since being in prison. The Tribunal was provided with the applicant’s incident reports covering the five years that he has been in prison. These reports do not show that he had returned a positive drug test despite being tested regularly. They show an inconclusive incident with three buprenorphine ‘deals’ being found in his cell that is alleged to have been his cell mate’s. Buprenorphine is described as a drug used to treat pain and opioid addiction, but it can also be abused.

22. The applicant wrote in his 2024 submission that he was seeing a psychologist ‘who assisted me in understanding the severity of my offending. I have gained insight into how the victims must feel and I understand that my actions would have caused them to genuinely fear for their safety.’

23. The applicant wrote in his 2024 statement, ‘I know I made serious mistakes in my life, and I feel intense regret every day, but I have learnt so much from being imprisoned, and I am truly sorry. I have now taken steps to ensure that I will not reoffend.’

24. The applicant’s remorse is reflected in part in the sentencing remarks by the County Court Judge, His Honour Judge Wischusen:

    [17]: You told Jayasinghe that you were sorry and that you were doing it for your kids and told him not to tell the police and that you would repay it someday.

    [25]: When interviewed you admitted that you had been at Vimini Drive that night and said that your motivation for accompanying the co-offender had been to get ice, to which you were addicted.

    [35] Your plea of guilty entered at the earliest opportunity. I have taken into account your please and your spontaneous expressions of remorse when interviewed by police, as evidence of your remorse for this offending.

25. The applicant’s past drug use was identified as a cause for the applicant departing from a promising start to his life. It was identified in the sentencing remarks as being a factor for his offending and the applicant has acknowledged the role it played in his anti-social behaviour. Noting that the applicant has broken his drug dependency, has participated and appears to have embraced the messaging from the rehabilitation courses and is aware of the trouble it has caused him, I am satisfied that the risk of the applicant reverting to drug use is low.  I also note that he has shown genuine remorse for his past actions. When considered together, I find that these circumstances strongly favour a view that he will not be a risk to the Australian community.

    Other preventive factors raised at the hearing.

26. The applicant has undertaken several courses while in prison including a kitchen operations certificate II and espresso coffee making. He said that a drive to do something new led to the diversity of learning. He said that he likes to fill his day by doing things.

27. The applicant has not been imprisoned prior to the current six-year sentence. He wrote how being imprisoned was ‘a huge wake-up call’. He added that being in prison helped him reach ‘clarity’ and could ‘think clearly’ including about his offending because he didn’t have drugs or alcohol in his system.

28. The applicant intends to return to work as [an occupation 1], a job he held for about three years prior to going to prison. At the hearing he explained that he has been [doing a job task] in the unit—using [an implement]. He obtains the [implement] set from the prison officers. He wrote in his statement that he has a job offer from a friend he named, who would employ him as soon as he left prison.

29. The applicant’s partner is a [support worker]. She works for the [Employer]. Her role is to support adults who come out of prison. She said that she engages with them as they transition to reconnect with their families. She was aware of the extent of external support available to people, including for example, rehabilitation support, and saw that this would help the applicant stay on track. She said that her job has led her to learn about people in his circumstances. She wants him to take the chance to consider such rehabilitation.

30. The partner’s family are claimed to be supportive of him returning to their household. The applicant’s partner claimed that they know of his past troubles. She said that they see it as him having served his time and having learned his lesson. She said that her father had always supported the applicant, no matter how long he was gone. She said that he had expressed the view that when he is released, he can return to their family home even if the relationship broke down as he wants to support him as he is considered ‘their son’.

31. Throughout the hearing an in material available to the Tribunal it is evident that the applicant has developed insight and a willingness to reflect on his behaviour. One example from the hearing was the applicant reflecting on his childhood behaviour. He noted that while young he stole food from shops as being something that he realises now was wrong. He explained that at the time his parents had divorced and with his father leaving and not providing any financial support his mother turned to alcohol and was often hungover. He said that when he’d return from school he’d sometimes find the fridge empty and so he would take food from shops to provide for his siblings. This narrative was supported by his sister who wrote in her statutory declaration that she remembers the applicant walking an hour to the closest McDonalds when he was 15 or 16 years old just to get them food because they were hungry. The sister added that it was the applicant who helped their mother get back on track and get her clean and that their mother doesn’t drink alcohol anymore. That the applicant no longer justified his behaviour but rather contextualised it but acknowledged that it was nevertheless wrong is an example of his insights and ability to reflect. The applicant’s partner has similarly described a more reflective and thoughtful person as noted above.

32. Each of the above mitigate the applicant’s risk to the community.

    Other considerations

33. The Tribunal requested the applicant’s representatives to obtain any professional risk assessment of the applicant that may have been undertaken before his sentencing. The representative noted that through communication with the applicant’s criminal lawyers they were told that no assessment was undertaken. This was confirmed through the Tribunal’s correspondence with the County Court.

34. Upon the request of the Tribunal the representative provided the applicant’s incident reports spanning the five years he has been in prison. The incidents are list below in chronological order including the submissions made by the representative based on the instructions of the applicant about each incident:

    [November] 2019 – [ Prison 1] - Inappropriate behaviour/good order

    [In] November 2019, the Review Applicant was involved in an incident wherein a table tennis table was placed at the entrance of a cell, which prison staff report blocked their exit from the cell. The Review Applicant, upon being identified via CCTV footage, immediately expressed his remorse for this ‘childish prank,’ explaining that he and another prisoner had been ‘having a laugh,’ not realising the serious nature of the incident at the time it occurred. He was charged and reprimanded following a General Manager’s Disciplinary Hearing (GMDH). The first 21 pages of the Freedom of Information release pertain to this incident.

    [December] 2019 – [Prison 1] – Staff located 3x bupe deals and half a cordial bottle of home brew in your cell

    [In] December 2019, the Review Applicant’s cell was being subjected to a cell clearance. Prison staff located three buprenorphine deals along with a half full cordial bottle of what appeared to be home brew. Two of the buprenorphine strips were found wrapped in paper concealed behind an education certificate pinned to the cell wall. The Review Applicant instructs that such items did not belong to him, and in fact belonged to a cellmate who had vacated the cell earlier in the day. As the Review Applicant rightfully explained to the prison officer on the day of the incident, he had not used drugs since entering prison nor had he ever returned a ‘dirty’ urine test, which the officer also confirms in their report. Nonetheless, the Applicant was fined $75 following a GMDH. Pages 149 – 186 of the Freedom of Information release pertain to this incident.

    [December] 2019 – [Prison 1] – Assault prisoner

    [In] December 2019, prior to the above incident in relation to the buprenorphine and home brew, the Review Applicant was observed exiting a cell, where a fight had taken place between other prisoners. The Review Applicant instructs that he was not involved in the fight, having only entered the cell to retrieve a chair, as he was playing a card game with a group of other prisoners, and the group was one chair short. The Review Applicant instructs that he entered multiple cells looking for a chair to borrow, when he entered a cell where a physical altercation had taken place. The Review Applicant noticed that another prisoner was injured in the cell, and instructs that prisoner then ran out of the cell. The Review Applicant also exited the cell, and was later charged with assault, though he explained to prison officers that he was not involved in the fight at all. The Review Applicant was reprimanded following a GMDH. Pages 186 – 235 of the Freedom of Information release pertain to this incident.

    [June] 2020 – [Prison 1] – Contraband – Pill

    [In] 25 June 2020, a prison staff member located a single pink tablet in a spectacle case in the Review Applicant’s cell. When questioned about the tablet, the Review Applicant explained that he had been handed this medication, namely Mirtazapine, despite advising prison staff that he did not want it, as he had noted negative side effects stemming from the use of the medication, including unwanted weight gain. The Review Applicant instructs that he was given such medication in his cell, rather than obtaining it from the prison infirmary, as there were different procedures in place during the COVID-19 pandemic, including prison-wide lockdowns where a nurse would deliver medication to the prisoners directly in their cell as opposed to the usual procedure. The Review Applicant instructs that he attempted to return the Mirtazapine to the nurse, who refused to take it back. When confronted by prison staff in relation to the pill being located in his cell, the Review Applicant immediately admitted ownership and explained that the prison nurse refused to take it back from him. Nonetheless, the Review Applicant was fined $60 following a GMDH. Pages 82 – 97 of the Freedom of Information release pertain to this incident.

    [October] 2020 – [Prison 1] – Non-compliance

    [In] October 2020, the Review Applicant’s eldest son’s birthday, he had permission to make a phone call to wish his son a happy birthday. Before the Review Applicant could make the call, he was directed to return to his cell. The Review Applicant instructs that he explained that he had permission to use the phone to telephone his son for his birthday, but the case officer proceeded to file an incident report in relation to the Applicant, accusing him of non-compliance. The Review Applicant instructs that as he had prior permission from the prison to do so, he proceeded to make the telephone call to his son, noting that he has having a really difficult day in the midst of COVID-19 lockdowns and being unable to see his son as contact visits had been suspended. The Review Applicant’s son’s birth certificate has previously been submitted to the Tribunal, which the Tribunal will note confirms the child’s date of birth as 29 October 2020. The Review Applicant was fined $25 in relation to this incident. Pages 236 – 259 of the Freedom of Information release pertain to this incident.

    [August] 2021 – [Prison 2] – Engaging in a physical fight

    [In] 21 August 2021, staff noticed two groups of prisoners congregating on the grassed area outside of a unit, in an agitated state. Upon further investigation, staff witnessed the Review Applicant in a headlock, being punched in the head repeatedly by another prisoner. Staff also note that the Review Applicant had sustained scratches to his left arm. The attacker also appeared to be bloodied, as was a third prisoner. While Victoria Police were contacted, the Applicant did not wish to speak to police. Following a GMDH, the Applicant was fined $75 and suspended from contact visits with his family for a period of two weeks, for his involvement in the fight. Pages 35 – 81 of the Freedom of Information release pertain to this incident. Based on the information contained in the file, the Review Applicant does not appear to be the aggressor in this incident.

    [March] 2022 – [Prison 2] – Observed on CCTV using a spray bottle to spray an unknown liquid on a staff member

    [In] March 2022, the Review Applicant was observed on CCTV using a spray bottle to spray an unknown liquid on a staff member. The Review Applicant instructs that at the time of the incident, he had been cleaning tables in the unit, and playfully sprayed a prison guard with whom the Review Applicant was on good terms. The Review Applicant instructs that the guard himself did not raise the incident with the prison, nor did he appear to have any issue with it whatsoever. The Review Applicant instructs that there was absolutely no malice in the incident, and that he ‘gets along very well’ with the guard in question. The Review Applicant instructs that he remains on good terms with the guard, despite currently being in a different unit in the prison. Despite no issue being raised by the guard himself, the Review Applicant instructs that during the provision of a urine sample some time after the incident, he was informed that he was going to be charged with assault on staff in relation to that incident, which shocked the Review Applicant. Following a GMDH, the Applicant was reprimanded. Pages 22 - 34 of the Freedom of Information release pertain to this incident.

    [May] 2022 – [Prison 1] – Being in an area where you were not authorised to be

    [In] May 2022, the Review Applicant was observed along with a number of other prisoners in the gym corridor. The Review Applicant instructs that he had a valid movement slip and was therefore permitted to be in the location in question, being the prison’s gym. Prison officers reported that the movements were ‘unusual,’ and directed the prisoners to separate and to return to their respective units, which they all did. Following a GMDH, the Review Applicant was fined $20. Pages 98 – 148 of the Freedom of Information release pertain to this incident.

1. The hearing was conducted in August 2024. As such the applicant has not been involved in any incident for over two years and no violence for three years. In considering the nature of the incidents and reviewing the original reports that were provided by the representative, I find that the applicant’s overall behaviour in prison reflects positively towards his claims of having turned his life around. This is on the basis that he entered prison in 2019 and was at that time dependent on drugs. As can be seen from the above, the nature of the latter offences has changed.

2. I note that the applicant was eligible for parole after four years and as such, he should have been paroled last year unless there were reasons for him not to be released into the community. The representative suggested that the most likely reason, based on his good behaviour in prison, is that as the applicant does not have a valid visa, he would simply be transferred to immigration detention. I accept this assessment of the situation as being the most likely reason.

   Conclusion

3. In considering the evidence detail above, it is important not to take the approach of questioning whether the applicant was appropriately punished for his past crimes. This is not the role of the Tribunal. It is for this Tribunal to consider whether the applicant is or may be a risk to ‘the health, safety or good order of the Australian community or a segment of the Australian community.’

4. The applicant has a history of offending. The offending has increased in severity over time which led to the applicant being imprisoned for over six years based on a violent home invasion in 2019. The offending was driven by a drug dependency. There is a risk that upon his release from prison he would revert to taking drugs which in turn would return him to the same downward spiral of offending and violence. But as detailed through this decision, there are reasons to believe that the risk of this occurring is low such that the applicant does not reach the very low threshold of ‘may be’ a risk to the Australia community.

5. Two protective factors stand out, the applicant’s realisation of what he stands to lose which appears to have emerged from a newfound maturity and a clarity of mind. He has shown an ability to reflect on his past and weigh the consequences of his actions. The second being his partner and children. His partner has what can best be described as ‘the patience of Job’. That she has remained committed to him and is willing to welcome him back into their family is a testament to her ability to provide the necessary support for the applicant to avoid regressing.

6. The applicant also provided other reasons to conclude that was he to be released he would not exceed the threshold bar of posing a risk to the Australian community. While none of these reasons, even when considered cumulatively, would suggest that there is no risk, a bar that would be impossible to achieve, I find that the applicant poses less risk than is the threshold test for the grounds for cancellation under s 116(1)(e)

7. For the above reasons, I am not satisfied that the ground for cancellation in s 116(1)(e) exists. It follows that the power to cancel the applicant’s visa does not arise.

   DECISION

8. The Tribunal sets aside the decision under review and substitutes a decision not to cancel the applicant’s Subclass 444 (Special Category) visa.

   Denis Dragovic
   Deputy President