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

[2020] AATA 5183

Bates and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5183 (22 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5982

Re:Tony Patrick Bates

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:22 December 2020

Place:Sydney

I affirm the delegate’s decision refusing to revoke the decision to cancel Tony Patrick Joseph Bates’ Class BB, Subclass 155 Five Year Resident Return visa.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – cancellation of Applicant’s Class BB, Subclass 155 Five Year Resident Return visa – Applicant is a citizen of the Republic of Ireland – failure of the character test – whether there is another reason to revoke the visa cancellation – Direction No. 79 – protection of the Australian community – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – another ‘other consideration’ – loss of sporting opportunity to the Applicant – loss of sporting contribution to Australian community – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Direction No 79 – Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA

REASONS FOR DECISION

Mr Rob Reitano, Member

22 December 2020

1. On 7 January 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) cancelled Tony Patrick Joseph Bates’ Class BB, Subclass 155 Five Year Resident Return visa (visa) because s.501(3A) of the Migration Act 1958 (Cth) (Act) required that to be done as Mr Bates had been sentenced to a term of imprisonment of more than 12 months and was then serving that sentence. The practical effect of that decision was to withdraw Mr Bates’ permission to remain in Australia, meaning that he would need to return to his country of citizenship, the Republic of Ireland.

2. On 8 January 2020, following the Minister’s invitation to do so, Mr Bates made a request in writing to the Minister asking the Minister to revoke the decision cancelling the visa. That request was made in accordance with the requirements of s.501CA(4)(a) of the Act.

3. On 28 September 2020, a delegate of the Minister decided to refuse Mr Bates’ request to revoke the decision cancelling the visa because the delegate was not satisfied that Mr Bates passed the character test referred to in s.501CA(4)(b) or that there was ‘another reason’ to revoke the decision cancelling the visa, which are the two alternate bases in s.501CA(4)(b) for revoking a decision to cancel a visa.

4. On 30 September 2020, Mr Bates filed an application with the Tribunal in which he has asked the Tribunal to review the delegate’s decision refusing to revoke the decision cancelling the visa.

5. I have decided to affirm the delegate’s decision refusing to revoke the decision cancelling the visa and what follows are my reasons for that decision.

   ISSUE

6. The issue is whether the Tribunal is satisfied that there is ‘another reason’, as those words are defined by s.501CA(4)(b) of the Act, to revoke the decision cancelling the visa.

7. This is because Mr Bates made representations to the Minister seeking revocation of the decision cancelling the visa under s.501CA(4)(a) and because he cannot pass the character test as a result of his being sentenced to a term of imprisonment of more than 12 months. To have the decision cancelling the visa revoked, Mr Bates must make good the pre-requisite to the exercise of the power to revoke the decision cancelling the visa in s.501CA(4)(b): he must satisfy the Tribunal that there is another reason why the mandatory cancellation should be revoked.

   FACTS

8. Mr Bates first arrived in Australia on 26 June 2008. The visa was last granted to Mr Bates on 2 December 2019, but he had held earlier visas to stay in Australia since his first arrival.

9. Mr Bates is 32 years of age. He was born and educated in Dublin. He is a citizen of the Republic of Ireland as are his mother and father, his four sisters, three uncles, aunt and two brothers in law. Those members of his family all live in the Republic of Ireland except for one of his uncles who lives in the United Kingdom and another uncle who lives in the Netherlands. Mr Bates has eight nieces and nephews who all live in the Republic of Ireland and 44 cousins who live in the Republic of Ireland or in Europe.

10. He has maintained contact with his family, and in particular his nephews, since he came to Australia having returned to the Republic of Ireland for about three weeks in late 2018 or early 2019. He says that though he is ‘to a certain degree’ close to some of his sisters ‘it does not mean that at this present stage… they are capable/willing to support me in any way e.g. (financially/accommodation) other than emotionally supporting me’. Mr Bates paid for his mother and father to come for Australia for five weeks some years ago. Mr Bates says that the last thing his parents would want in their ‘glory years/retirement is me after 11 years in Australia’. Mr Bates has no family living in Australia.

11. Since arriving in Australia, Mr Bates has worked as a shotcreter, electrician, labourer, farmhand and most notably a professional boxer. Mr Burke, who I will refer to later, was the General Manager of an electrical company that employed Mr Bates for very many years. He spoke highly of Mr Bates’ work as an electrician. Mr Hussein, Mr Bates’ boxing trainer, spoke highly of Mr Bates’ capacity as a professional boxer.

12. Mr Bates is, and is entitled to be, very proud of his achievements as an amateur, and after 2011 a professional, boxer. He started as a young boxer in the Republic of Ireland and won a number of titles during his teenage years having represented the Republic of Ireland. Mr Bates provided a detail of his boxing career which included references to his international fights and his appearances at events and on television. At some stage, he was invited to train at the Australian Institute of Sport with a view to him representing Australia. He has competed against New Zealand and Tongan champions at an international level. He boasts a professional boxing record of 13 fights, 12 wins and one draw.

13. Mr Bates qualified as an electrician in the Republic of Ireland. Mr Bates has completed a Diploma of Business since he has been in Australia. Most recently whilst incarcerated, he has completed a course in drug and alcohol abuse. Mr Bates is a shareholder and director of a company that invented and markets a unique piece of boxing or sporting/fitness equipment.

    Record of criminal offending

14. Mr Bates’ criminal offending commenced on 24 May 2011 when he was convicted of four offences that he committed on 29 November 2010: driving whilst unlicensed, escape police custody, resist or hinder a police officer in the execution of his duties and stopping on or near a pedestrian crossing. He received convictions, fines and bonds for those offences.

15. The general detail of the offences involved a refusal to stop at a police random breath testing site and a subsequent attempt to escape police custody. Mr Bates says the reason he attempted to escape police custody was because of an incident that happened a few months before involving the police where he was injured. He said he had a ‘trust issue’ with the police following the earlier incident. Mr Bates said he had been drinking at the time but does not think he would have ‘blown over’.

16. On 25 January 2014, Mr Bates was issued with a Field Court Attendance Notice for driving whilst unlicensed. He said that at the time he had an international licence but did not have a New South Wales driver’s licence.

17. On 4 February 2014, nine days later, he was again discovered to be driving whilst unlicensed. He said in his evidence when he was pulled over the second time, he knew what he was doing, driving without a New South Wales driver’s licence, was wrong because of what had happened just a little over a week earlier. He received a bond for both offences.

18. On 27 May 2015, he was convicted of the offences of common assault and stalk and intimidate with intention to cause physical or mental harm which happened on 2 and 3 January 2015. The facts concerning those offences involved violence by Mr Bates against his former female partner in a public place by ‘slapping her across the face’ and then, the following day, sending her intimidating telephone messages. He was ordered to perform 100 hours of community service in relation to both of those offences.

19. Mr Bates says that these offences happened at the ‘lowest point of [his] life’. He said he had a beautiful relationship with his partner who he loved very much and was intending to marry. He said their relationship turned ‘sour’ when she began blaming him for the miscarriage she had when she was six months pregnant. Mr Bates turned to drinking, drugs and gambling when he and his partner decided to have a break. He says his behaviour was a response to his discovery that his former partner was seeing another man.

20. In May 2017, Mr Bates attended a rehabilitation program over 28 days at a place called Foundation House. It was a drug, alcohol and gambling rehabilitation program.

21. On 13 June 2017 and 18 October 2017, Mr Bates was convicted of a variety of offences involving three counts of larceny, having goods in custody suspected of being stolen, possessing housebreaking implements, possessing identification information with intent to commit an indictable offence, resisting or hindering a police officer in the execution of his duty, not paying his fare when hiring a vehicle and some traffic offences. They were offences all committed on 20 January 2017 and 31 March 2017. All of these offences attracted, by way of penalty, small fines and, in the case of the offence of possessing housebreaking implements, a good behaviour bond for 12 months.

22. On 27 June 2018, Mr Bates was convicted of another 14 offences which were committed on a number of different days during the period of 31 March 2016 to 21 December 2017. Four of the offences involved a failure to appear in accordance with bail conditions.

23. The most serious of these appear to be the offences of assault occasioning actual bodily harm and common assault which both followed an incident on 31 January 2016. Those two offences involved Mr Bates punching a man in the mouth causing him to fall to the ground and then saying ‘fuck you, I will fucking kill you’, making a slashing motion with his hand across his throat and running off. The man had come to the assistance of a woman who was ‘distressed’. Mr Bates explains his conduct in relation to this offence as being a result of him being drunk and seeing the woman being distressed, he believed she was being intimidated by the man. Mr Bates did not realise the man had come to her aid. Mr Bates said that what he did was completely ‘out of order’. He claimed in his evidence that he apologised to the man after he ‘came out of prison’ even though he had never referred to that previously.

24. The other offences dealt with on 27 June 2018 involved dishonestly obtaining a benefit by deception, shoplifting, three counts of stealing from a house, dealing with identity information to commit an indictable offence and having goods suspected of being stolen in custody.

25. It is significant that, before the Magistrate sentenced him, Mr Bates told the Magistrate that he had been 138 days ‘clean and sober’ and had been attending Alcoholics Anonymous and Narcotics Anonymous. He told the Magistrate that he had had ‘a bad breakup and I didn’t take it too well’. This was a reference to the break up with his former partner that had happened some time in or around May 2015. He also told the Magistrate that he was ‘sorry and ashamed of what I did and I’m, every day, trying to better myself’.

26. Mr Bates was placed on a two-year good behaviour bond for the assault occasioning actual bodily harm and a 12-month good behaviour bond for the common assault. Most of the other offences were dealt with by simply having convictions recorded although for the shoplifting and goods in custody offences, he received a three-month good behaviour bond on each charge.

27. On 29 June 2018, two days after receiving the benefit of fines and good behaviour bonds and proclaiming to the Magistrate that he was 138 days ‘sober and clean’ and that he had future intentions to better himself, Mr Bates was in an elevator ‘staring and grunting at people using the elevator’. He was discovered by police standing in the elevator half slumped against the corner of the elevator. He was affected by drugs or alcohol. His 138 days ‘clean and sober’ had come to an end. He was found with two credit cards in his possession which were not his.

28. On 23 November 2018, Mr Bates was convicted of an offence of having suspected stolen goods in his custody and was placed on a six-month conditional release order which is effectively a term of imprisonment that is served in the community so long as the conditions attaching to the order are satisfied. He was also then convicted of an offence of entering enclosed lands without lawful excuse but received no penalty for that offence other than a conviction. These offences related to what happened on 29 June 2018.

29. On 11 January 2019 when he re-entered Australia after a trip to the Republic of Ireland, Mr Bates ticked ‘No’ alongside the question: ‘Do you have any criminal conviction/s?’. That answer was rather obviously, by then, not correct.

30. On 24 July 2019, Mr Bates was dealt with in relation to 13 offences which involved three counts of dishonestly obtaining a financial advantage by deception, one count of dishonestly taking or concealing a mail receptacle, three counts of breaking and entering a house and stealing, two counts of having suspected stolen good in custody, one count of entering enclosed lands without permission, possessing prohibited drugs and four counts of failing to appear in accordance with bail acknowledgement. The offences occurred on quite a few different days over the period of 1 May 2016 to 3 May 2019. For all these offences, Mr Bates received convictions and an aggregate sentence of 18 months imprisonment with a non-parole period of 12 months.

31. On the same day, Mr Bates was sentenced in relation to the offences of assault occasioning bodily harm and common assault which were the offences for which Mr Bates received the benefit of good behaviour bonds on 27 June 2018; because he breached the condition of the bond that required him to be of good behaviour, the bond was called up and he was sentenced for those offences. He was sentenced to four months and three months imprisonment respectively for each of those offences.

32. The sentencing Magistrate noted at the time what was by then rather obvious, namely that Mr Bates had been given ‘every opportunity.’ The Magistrate noted references in a pre-sentence report dated 23 June 2019 that referred to Mr Bates’ problems during his upbringing and his problems with drugs and alcohol. The pre-sentence report identified Mr Bates’ likelihood of re-offending on the Level of Service Inventory – Revised as being a Medium Low risk of re-offending. The basis on which that assessment was made was not in evidence, but it is something that provides some guidance as to matters concerned with the risk of re-offending.

33. On 4 November 2019, Mr Bates was convicted of four offences involving three counts of having stolen goods in custody and one of possessing prohibited drugs. For those offences, he was placed on conditional corrections orders with the exception being that he received no penalty for possessing prohibited drugs.

34. On 27 November 2019, all of the offences dealt with by the Magistrate on 24 July 2019 were subject to an appeal to the District Court of New South Wales and the sentences imposed were confirmed. Mr Bates says that the Judge hearing his appeal was considering ‘bailing’ him to a rehabilitation centre of some kind but was not able to do so because of Mr Bates’ immigration status. There was no evidence such as a transcript of the sentencing remarks about this before the Tribunal. In any event, it probably is not all that relevant; what is relevant is the actual sentence that was imposed. This is because, as will be seen later, I am required to have regard to the sentence imposed.

35. It should be noted that, before he served his most recent term of imprisonment of 12 months which ended on 2 June 2020, Mr Bates was imprisoned at various times during the time of his offending presumably because he was refused bail at various times. Most notably, he was incarcerated for about six weeks between 10 September 2016 and 25 October 2016 and for about four weeks between 31 March 2017 and 4 May 2017. So, by the time he came to be imprisoned on 3 June 2019, he had some idea of what life in prison would be like.

    Remorse

36. Mr Bates has apologised to the Minister for ‘his wrongdoings and heinous acts’ which he was ‘convicted of’ for which he is ‘deeply ashamed of and embarrassed and remorseful for’. Mr Bates says that he will not offend again, and that the Australian community will have no concerns in that regard in the future. He says being ‘clean and sober’ whilst incarcerated has made him realise that he must stay ‘sober’ when released. He says that he has undertaken a rehabilitation course whilst in detention called Drug & Alcohol Abuse 101. He says he intends to do more courses in the future. He says he has an exemplary record during his incarceration and in detention.

37. He says that what he did was uncharacteristic of him and that he wants to be a role model for youth and those in need. Mr Bates says his criminal offending started when his relationship with his former partner broke down following a miscarriage. He also says it was then that he took up drugs and turned to alcohol and gambling.

38. He says he wants to fulfil his potential and become a good member of the Australian community and represent Australia as a professional boxer.

    The effect of non-revocation

39. Mr Bates says that if the decision cancelling the visa is not revoked and he is deported back to the Republic of Ireland, he will not be financially capable of putting a roof over his head and his family will not be able to financially support him. Mr Bates said he feared for his safety if he returned to the Republic of Ireland because he would be left to live on the streets. However, in oral evidence, he also said that one of his sisters would probably provide him with a roof over his head for a ‘short period of time’.

    The character evidence and ties to Australia

40. Mr Bates called some evidence from various people, three of whom provided written testimonials and gave evidence before the Tribunal and several others who provided testimonials in writing.

41. Mr Gary Burke, who is the General Manager of an electrical company, has known Mr Bates since 2008. Mr Bates worked as a casual electrician for Mr Burke’s company ‘on and off’ for a period of about eight years. Mr Burke found Mr Bates to be honest, reliable and hardworking. Mr Burke considered that Mr Bates had ‘great potential in bettering his life in Australia’. He said Mr Bates had a full time position as an electrician waiting for him should he remain in Australia. Mr Burke knew about Mr Bates’ criminal history but said that his experience of Mr Bates has always been as an honest person.

42. Mr Andrew Hopkins, who has known Mr Bates since August 2017, gave evidence about his strong friendship with Mr Bates. They met through work and formed their friendship through living together. Mr Hopkins described Mr Bates as resilient, reliable, compassionate, creative and having a commitment to life. After March 2019, they had little or no contact with each other. Mr Hopkins was not aware of the full extent of Mr Bates’ criminal offending when he lived with Mr Bates. Although, by the time he came to give evidence, he had become aware that it involved ‘an assault charge’, some ‘credit card stuff’ and ‘theft’. He was aware of Mr Bates’ drug use and gambling. Mr Hopkins spoke highly of Mr Bates’ role as a role model for people, described as ‘kids’ training at the gym Mr Bates trained at. Mr Hopkins said he has a room available for Mr Bates to live in should he remain in Australia.

1. Mr Hopkins also gave some evidence about his knowledge of Mr Bates’ relationship with his sisters being aware that Mr Bates spoke to his sisters on the phone and said that at least one of them provided emotional support to Mr Bates and had ‘sent money’ on at least one occasion. The money was repaid to Mr Bates’ sister as far as he knew.

2. Mr Billy Hussein has trained Mr Bates since 2010. Mr Hussein is a gym owner, trainer and boxing promoter. He has trained and travelled with Mr Bates in his boxing career. He says that Mr Bates has always led a positive lifestyle and is a ‘very devoted selfless young man who puts other people before himself’. He considered that if Mr Bates were permitted to stay in Australia there is a ‘strong potential, he could sign up to fight for the world title representing Australia’. Mr Hussein was aware of Mr Bates’ criminal offending. He knew Mr Bates had a ‘record of offending’ but did not know the detail or number of the offences. Nonetheless he considered that those offences were ‘out of his character.’ He was aware that Mr Bates had a drug and alcohol problem but had no first-hand experience of it in the gym or in training camps because Mr Bates did not use drugs or alcohol at those times.

   IS THERE ANOTHER REASON FOR REVOCATION?

3. I am required, when considering whether ‘there is another reason why the original decision should be revoked’, to be informed by the Direction because s.499(2A) of the Act requires the Tribunal, in exercising its functions and powers under the Act, to comply with any written directions given by the Minister under ss.499(1).

4. The purpose of the Direction is ‘to guide decision-makers performing functions or exercising powers under section 501 of the Act… to revoke a mandatory cancellation under section 501CA of the Act’.[1] Its object is to provide ‘a framework within which decision-makers should approach their task of deciding whether… to revoke a mandatory cancellation under section 501CA’. The Direction identifies ‘factors that must be considered in making a revocation decision’.[2]

   [1] Cl.6.1(4)

   [2] Cl.6.2(3)

5. The Direction contains both ‘principles’ and ‘factors that must be considered’ that are required to be applied in a particular way. The ‘principles’ and the ‘factors that must be considered’ condition or regulate the satisfaction, or evaluative judgment, that a decision-maker is required to have, or make, under s.501CA(4)(b)(ii) of the Act.

   The principles

6. The principles ‘inform’ a decision-maker about the matters that must considered in determining whether the mandatory cancellation of a visa will be revoked.[3]

   [3] Cl.7(1)

7. The first of the principles records the sovereign right of Australia to determine whether non-citizens of ‘character concern’ are allowed to ‘remain in Australia’.[4] It records the fact that being in Australia is a privilege that is conferred in the expectation that non-citizens are ‘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’.

   [4] Cl.6.3(1)

8. The second principle refers to the expectation of the Australian community 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.’[5] This principle is reiterated later in the factors that must be considered, but it is important that it is the ‘expectation’ of the Australian community that is relevant.

   [5] Cl.6.3(2)

9. The third principle refers to ‘[a] non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to… forfeit the privilege of staying in, Australia.’[6] This operates on the premise of a ‘general’ expectation or rule and not one that is to be applied in every case. The word ‘generally’ suggests that in a given set of circumstances the ‘general’ might give way to the specific. Further, a non-citizen who relies upon an expectation can be afforded no comfort at all that their expectation will be accorded any significance in the framework because of this principle; the logical extension of this is that a decision-maker should expressly act on the basis that there is no such expectation that can be afforded any relevance in the decision-making process.

   [6] Cl.6.3(3)

10. The fourth principle opens with the words ‘In some circumstances’, indicating that there will be specific cases that attract its attention.[7] The ‘some circumstances’ are those where ‘criminal offending or other conduct… may be so serious, that any risk of similar conduct in the future is unacceptable’ and it is ‘[i]n these circumstances’ that ‘even other strong countervailing considerations may be insufficient to justify not cancelling… the visa.’ This principle leaves open two possibilities: namely, that where criminal offending or other conduct is not so serious that ‘strong countervailing considerations’, or even countervailing considerations alone, might justify not cancelling a visa; and that ‘strong countervailing considerations’ may be sufficient to justify not cancelling a visa.

    [7] Cl.6.3(4)

11. The fifth principle is that:

    ‘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’.[8]

    So far as this principle is concerned, living in the Australian community for most of their life, or from a very young age, is not at all qualified by the words ‘participating in, and contributing to’ as applies in the case with those who have only been in Australia for a short time.

    [8] Cl.6.3(5)

12. The sixth principle refers to Australia’s ‘low tolerance of any criminal or other serious conduct’ such that those who hold a limited stay visa can have no expectation that they may remain here permanently.[9]

    [9] Cl.6.3(6)

13. The seventh principle, like the fifth, refers that the ‘length of time a non-citizen has been making a positive contribution to the Australian community, and the consequence of a visa… cancellation for minor children and other immediate family members’ are considerations.[10] The use of the conjunction ‘and’ suggest that positive contribution is not relevant to the issue of consequences for minor children and family members so that, so far as consequences for minor children and family members are considered, time is immaterial. These are perhaps among the countervailing considerations referred to in the fourth principle.

    [10] Cl.6.3(7)

    The primary and other considerations

14. The Direction requires that the above principles inform the decision-maker’s consideration of the matters referred to in Part C.[11]

    [11] Cl.7(1)(b)

15. Part C contains ‘primary considerations’ and ‘other considerations.’ Both types of considerations may weigh in favour of, or against, revocation of the mandatory cancellation of a visa.[12] Of course, rationally some of them, like in this case, might be entirely neutral or even irrelevant.

    [12] Cl.8(3)

16. Primary considerations should ‘generally be given greater weight than other considerations.’[13] Again, the use of the word ‘generally’ suggests that there may be circumstances where that is not so. The inquiry is ‘whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[14] That raises a question about what ‘the circumstances that generally apply’ might be. That issue as to when special consideration should be given to a factor or other factors is left to the good sense of the decision-maker.

    [13] Cl. 8(4)

    [14] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23]

17. The ‘primary considerations’ are protection of the Australian community from criminal or other serious conduct,[15] the best interests of minor children in Australia[16] and the expectations of the Australian community.[17] The best interests of minor children in Australia is not relevant in this case as there are no minor children in Australia who are relevant.

    [15] Cl.13.1

    [16] Cl.13.2

    [17] Cl.13.3

18. The ‘other considerations’ include, noting that the class of other considerations is not closed, international non-refoulement obligations,[18] the strength, nature and duration of ties,[19] the impact upon Australia business interests,[20] the impact on victims[21] and the extent of impediments if a non-citizen is removed from Australia.[22] I note that international non-refoulement obligations, the impact on victims and the impact upon Australian business interests are not relevant considerations in this case because nothing has been identified that engages any of those considerations.

    [18] Cl.14.1

    [19] Cl.14.2

    [20] Cl.14.3

    [21] Cl.14.4

    [22] Cl.14.5

19. It is necessary to consider each of the considerations informed by the principles referred to earlier. It is convenient to record, consider and deal with each of the primary and other considerations in turn, dealing with the facts relevant to each of them as they are considered.

    Protection of the Australian community

20. I am directed to give consideration to: ‘the principle that the Government is committed to protecting the Australia community from harm as a result of criminal activity or other serious conduct by non-citizens’; and that ‘[r]emaining in Australia is a privilege that Australia confers on non-citizens’ in the expectation that they will obey the law, will respect Australia’s institutions and will not cause or threaten harm to individuals or the community.[23] I am required to consider the nature and seriousness of the conduct and the risk to the Australian community should further offences or other serious conduct be engaged in.

    [23] Cl.13.1(1)

21. The Direction details nine matters I must have regard to in assessing the nature and seriousness of the offence. The use of the word ‘including’ in the introduction to the sub-paragraphs means that I may consider other matters. The phrase ‘nature and seriousness of the offence’ is redolent of the kinds of things routinely considered in criminal sentencing, but the use of that phrase should probably not be interpreted strictly in a criminal law sense because the sub-paragraphs which follow require consideration of matters that strictly are not relevant to the nature and seriousness of the offence.

22. The specific matters I must consider are: ‘[t]he principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously’[24]; ‘[t]he principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed’[25]; ‘[t]he principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious’[26]; ‘the sentence imposed by the courts for a crime or crimes’[27]; ‘the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness’[28]; and ‘[t]he cumulative effect of repeated offending’.[29] It will also be necessary to consider Mr Bates’ failure to disclose his offences on his boarding card when he re-entered Australia as that concerns providing ‘false or misleading information to the department, including by not disclosing prior criminal offending’.[30]

    [24] Cl.13.1.1(1)(a)

    [25] Cl.13.1.1(1)(b)

    [26] Cl.13.1.1(1)(c)

    [27] Cl.13.1.1(1)(d)

    [28] Cl.13.1.1(1)(e)

    [29] Cl.13.1.1(1)(f)

    [30] Cl.13.1.1(1)(g)

23. It is plain enough that at least two of the offences committed by Mr Bates are particularly serious because they involve personal violence and, in one case, violence against a woman. The offence committed in early 2015 involved Mr Bates striking his former partner with his hand across her face. The offence in early 2016 involved punching someone to the head such that they fell to the ground. That offence also involved threatening someone’s life. The kind of violence that is involved in striking a woman and punching a man to the ground is particularly serious.

24. Next, custodial sentences in respect of the two assaults on 31 January 2016 of four and three months also reflect an objectively serious offence although it should be noted that this was in the context of maximum penalties of five and two years’ imprisonment. They were obviously not considered by the Court as being at the high end of seriousness albeit they were serious enough to warrant terms of imprisonment, the penalty of last resort in criminal sentencing.

25. The sentence of 18 months imprisonment for the other offences is a significant sentence, and probably reflects more about the large number of offences than anything else. Nonetheless, an aggregate term of imprisonment which is the last and most serious level of punishment in the criminal justice system reflects objectively serious offending.

26. Two of the offences involved resisting or hindering a police officer in the exertion of her or his duty. They are offences against government officials. They too are to be regarded seriously.

27. The most outstanding feature of Mr Bates’ criminal offending is its recurrence and frequency over a period of about eight years during which something like 53 offences have been committed. The fact that large numbers of offences are dealt with on only a few occasions should not distract attention from the fact that the offences were, in many cases, committed on a number of different days or occasions. The frequency of offending as well as the sheer number of property related offences, and offences concerning dishonesty, is something that gives those offences an increased complexion of seriousness that they would not otherwise have. This aspect, together with the cumulative effect of the re-offending, renders Mr Bates’ criminal offending, when viewed overall, as being very serious.

28. Finally, there is Mr Bates’ failure to complete the boarding card correctly. In the scheme of things, especially considering Mr Bates’ record of criminal offences, the seriousness of some of the specific offences, as well as his record more generally, that matter is not at the forefront of the considerations that are important to Mr Bates’ record of offending and so I do not give it any weight in my consideration of Mr Bates’ record of offending.

29. Next, I must consider the risk to the Australian community should further offences or other serious conduct be engaged in. I am required to have regard to, cumulatively, ‘the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct’,[31] and ‘the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending’.[32]

    [31] Cl.13.1.2(1)(a)

    [32] Cl.13.1.2(1)(b)

30. The nature of the harm resulting from personal violence to members of the Australian community is likely to be serious. So far as is apparent from the evidence before the Tribunal the outcomes of the two assaults could have been far more serious than they were. In ordinary circumstances, the effect of property related, and dishonesty offences are usually not to be considered as detrimental as offences against people, but here where the offences are repeated, continuous and ongoing, the cumulative distraction of valuable resources towards law enforcement and the personal loss likely to be suffered by people is significant. The harm to the community generally which is likely to result from re-offending is significant.

31. The more difficult issue concerns the risk of Mr Bates engaging in further criminal conduct based upon the available information and evidence on the risk of his re-offending. I consider the risk of Mr Bates’ re-offending in the future to be in the middle of the range of likelihoods. I certainly consider his risk of reoffending to be real. There are several matters that lead me to this conclusion.

32. First, the Level of Service Inventory – Revised test referred to in the pre-sentence report of 23 July 2019, placed Mr Bates in the Medium Low risk of re-offending category. Mr Bates referred to two ratings that were conducted whilst he was incarcerated as assessing his likelihood of reoffending as low although those reports were not produced in any evidence. I do not have any of the detail about how any of those assessments were arrived at or the expertise of those involved in completing those assessments. These reports confirm, at least, the existence of a low risk of re-offending.

33. Second, there is the frequency of his offending over a period of something in the order of eight years. Despite the benefit afforded to him of offences for which no penalty other than a conviction was recorded and others where he received the benefit of bonds, fines or corrections orders, Mr Bates remained undeterred. The fact that being penalised, and being incarcerated for some periods of up to a month or slightly more, did not deter Mr Bates from re-offending suggests that there is a real likelihood that he will offend again in future.

34. Third, there is the fact that little else appears to have changed for Mr Bates so far as his circumstances on release are concerned. He will remain without the benefit of a network of support underpinned by his family relationships as he has no family in Australia. It is true that those who gave evidence about his character have indicated that they will support him on his release. That perhaps moderates the significance of this factor, but it is to be remembered that the presence of those ties did not abate Mr Bates’ offending in the past.

35. Fourth, I am unable to put a great deal of store in the fact that Mr Bates has, whilst in detention, completed courses in drug and alcohol abuse. While he attended one month of rehabilitation in May 2017, it appears to have achieved little. He has, in the past, relied upon support through rehabilitative efforts, Alcoholics Anonymous, Narcotics Anonymous, and Foundation House, with little apparent effect. He told the Magistrate in June 2018 that he had been 138 days, nearly five months, clean and sober and that he had attended rehabilitation. Even so, only two days later he offended again. That fact makes it difficult to accept Mr Bates’ word that he will not offend again in future.

36. Fifth, I accept that Mr Bates has some level of remorse for his offending. However, his tendency to ‘blame’ his offending on his relationship breakdown and his drug and alcohol abuse casts a little doubt over his acceptance of responsibility for his offending and whether it is genuine.

37. Sixth, Mr Bates’ claim that being incarcerated for 12 months has substantially changed him needs to be measured against the fact the two periods of incarceration of approximately a month each appears to have had little effect on him in the past. The fact that he has been drug and alcohol free during his most recent period of incarceration needs, of course, to be assessed against the background of the structured and controlled environment of prison life. The fact of incarceration prevents any meaningful assessment being made about how Mr Bates will fare once released into the community.

38. Finally, I am unable to accept Mr Bates’ word that he has changed and will not offend again. Putting to one side the self-serving nature of his statement, it also flies in the face of the objective evidence. I have already recited what he told the Magistrate in the Local Court about his 138 days ‘clean and sober’ and his intention to live a better life only two days before he offended again. This causes me to exercise some caution in proceeding on the basis of accepting Mr Bates’ word about the likelihood of him re-offending. In the absence of things corroborating his stated intention not to re-offend again in the future, I am unable to put much store in what Mr Bates says in that regard. The objective evidence and his history point firmly in the other direction.

1. These factors mean that I assess Mr Bates’ risk of reoffending as being real and in the middle of the range of likelihoods.

2. In light of the seriousness and nature of Mr Bates’ criminal conduct, the likely harm to the community should he re-offend and the real risk of him re-offending, the protection of the Australian community weighs firmly against revocation of the decision to cancel the visa.

   Expectations of the Australian community

3. The third primary consideration is that found in cl.13.3(1) which provides:

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

4. This primary consideration imputes to the Australian community the expectation that those who have permission to remain in Australia will obey Australian laws. I am not required to consider what or what not the Australian community expects because that is normatively expressed in the consideration itself. The inquiry is whether it is appropriate to give more or less weight to a deemed community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[33]

   [33] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J)

5. Mr Bates has been in Australia for about 12 years since he was 20 years of age. He has not been here from a very young age or for most of his life. He has, nonetheless, in the time that he has been in Australia contributed to the Australian community through his efforts as an amateur and professional boxer and through his contribution in paid employment in various occupations.

6. I consider that the contribution Mr Bates has made to the Australian community, albeit over a period of slightly more than a decade, means I should accord slightly less weight to this consideration than I might otherwise accord it. Even so, it weighs firmly against revocation especially when the frequency of offending is considered over much the same period.

   Strength, nature and duration of ties

7. The Direction requires that attention be paid to the strength, nature and duration of ties in Australia.[34] I am first required to address the issue of how long Mr Bates has resided in Australia, but give it ‘less weight’ where the offending started ‘soon after’ arrival in Australia[35] and ‘more weight’ where ‘time has been spent positively contributing to the Australia community’.[36] Second, I must consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.[37]

   [34] Cl.14.2

   [35] Cl.14.2(a)(i)

   [36] Cl.14.2(a)(ii)

   [37] Cl.14.2(b)

8. Mr Bates arrived in Australia on 26 June 2008. The conduct giving rise to his first conviction took place about two and one half years later. His offending commenced only a short time after he came to Australia. It might be thought that his early offences were not all that serious and so should be viewed less seriously but offences involving escaping police custody and hindering or resisting arrest are hardly trifling matters involving, as they do, offences against government officials. They show a demonstrable disrespect for law enforcement and those charged with that responsibility. I do not consider they should be overlooked, and, in many respects, those offences were the forerunners of what was to follow.

9. Against this, Mr Bates’ contributions to the Australian community through his participation in the sport of boxing should be balanced. That contribution, both in terms of his achievements and his contribution to many others, including young boxers and others who attended the gym where he trained, are important as are his contributions through paid employment. The relative strengths of his continued criminal offending on the one hand and, in particular, his sporting achievements on the other, tend to negate one another such that the weight to be ascribed to this aspect of this consideration is fairly neutral.

10. Mr Bates has no immediate or extended family in Australia. He is a single person. As such he has no relevant familial ties in Australia. I accept that he has a number of close personal friends in Australia, some of whom prepared testimonials for use in this matter and some of whom also gave evidence. They were all Australian citizens with whom Mr Bates has strong personal ties. He was also a member of the boxing community and the community associated with his gym and no doubt the prospect of cancellation will affect the Australia citizens and residents amongst his peers. It can be given that those people would be disappointed to see Mr Bates leave Australia.

11. In the circumstances, when weighing these matters, this consideration weighs moderately in favour of revocation of the mandatory cancellation having regard to Mr Bates’ positive and negative contributions in the reasonably short time he has been in Australia, the impact on his friends in the boxing community and elsewhere, and given his lack of any familial ties in Australia.

    The extent of impediments if removed

12. I am required to consider the extent of any impediments that exist for a non-citizen in establishing and maintaining a basic living standard if removed from Australia. I am required to consider age, health, language and cultural barriers and social, medical and economic supports that may be available.

13. There cannot be any serious issue that there are realistic language or cultural barriers that would present themselves to Mr Bates if he were removed to the Republic of Ireland. The Republic of Ireland is, after all, the country in which Mr Bates lived for the first 20 years of his life. Mr Bates is young, apparently fit and healthy. All of his immediate family live in the Republic of Ireland as do many of the members of his extended family.

14. Mr Bates may experience some difficulties on his return to the Republic of Ireland but his skills in the construction industry as a scaffolder and shotcreter, doing farmwork and as a boxer together with the Diploma in Business he obtained whilst in Australia would serve him well in settling back into the country of his birth.

15. Although he claims his relationship with his family is ‘hot and cold’, it is apparent that there is more likely than not to be some warmth especially given that he has maintained contact with his family since his arrival in Australia and that he has remained somewhat close to some of his sisters and to his nephews. He also has a large extended family in the Republic of Ireland.

16. The fact that the Republic of Ireland is a liberal western developed country that has a developed social welfare system together with his family and work related skills makes it difficult to accept that there will be any real difficulties for Mr Bates in settling back into the country of his birth.

17. I do not consider that this consideration weighs for or against revocation mainly because Mr Bates’ family are in the Republic of Ireland, that he lived in the Republic of Ireland for the first 20 years of his life and because the Republic of Ireland is a developed first world western liberal democracy with a developed social welfare system.

    Another ‘other consideration’

18. I raised with the Minister’s representative during the hearing whether Mr Bates’ boxing achievements and ambitions in the future should constitute an ‘other consideration’ that I should consider. The Minister’s representative conceded quite fairly that even though Mr Bates had not raised the matter I should consider it at least at two levels.

19. First, Mr Bates’ evidence and that of Mr Hussein was to the effect that Mr Bates’ opportunities as a professional in Australia would be far greater than those that would present themselves in the Republic of Ireland. Second, there is the prospect that the Australian community more widely might be affected by losing the prospect of having Mr Bates’ contribution to the sport of boxing in Australia whether he rose to the heights he aspires to or not.

20. So far as these matters are concerned, they carry some weight although the second of them has already partly been considered when dealing with the strength, nature and duration of Mr Bates’ ties in Australia. The other aspect of it pertains to the wider community and it no doubt has some, albeit limited weight, because it is likely to only affect a small part of the wider community, notably those interested in sport and, more particularly, boxing.

21. So far as the former is concerned there will undoubtedly be some impact on Mr Bates so far as his professional boxing career is concerned with, on the evidence, Australia providing more opportunities to Mr Bates than elsewhere. Nonetheless, Mr Bates will be able to pursue his boxing career elsewhere albeit with more limited opportunities than might be available in Australia, in the Republic of Ireland and if not, in England or the United States of America.

22. In my assessment, although these considerations carry slight weight in favour of revocation, they are certainly not matters that should be given any significant weight.

    CONCLUSION

23. I have found that the protection of the Australian community and the expectations of the Australian community both weigh firmly in favour of the non-revocation of the mandatory cancellation of Mr Bates’ visa. As Mr Bates has no minor children with which he is concerned in Australia, it is not necessary to consider that matter. The primary considerations weigh firmly in favour of non-revocation.

24. I have found that the strength, nature and duration of Mr Bates’ ties to Australia weigh moderately in favour of revocation and that the impediments if Mr Bates is removed to the Republic of Ireland are a neutral consideration. The loss to Mr Bates of being able to pursue opportunities in professional boxing in Australia and the loss to the Australian community of Mr Bates’ contribution are matters that weigh very slightly in favour of revocation of the mandatory cancellation. The other considerations, Australia’s non-refoulment obligations, the impact on Australian business and the impact on victims do not have any weight either way in this matter and no-one suggested that they did. The other considerations weigh only moderately in favour of revocation.

25. It follows from my findings and the weight I have given to the primary considerations that favour non-revocation of the decision to mandatorily cancel the visa outweigh the other considerations so that there is not another reason why the decision cancelling the visa should be revoked.

26. I affirm the delegate’s decision refusing to revoke the decision to cancel Tony Patrick Joseph Bates’ Class BB, Subclass 155 Five Year Resident Return visa.

I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 22 December 2020

Date(s) of hearing:	9 and 10 December 2020
Applicant:	In person
Solicitors for the Respondent:	Mr J Hutton