Batson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2343
•29 June 2021
Batson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2343 (29 June 2021)
Division:GENERAL DIVISION
File Number: 2021/2271
Re:Ashley Charles Batson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date:29 June 2021
Date of written reasons: 9 July 2021
Place:Brisbane
The decision under review is affirmed.
...........................[sgd]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class VE subclass 176 visa (Skilled Sponsored) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Migration Act 1958 (Cth)
Cases
DLJ18 v Minister for Home Affairs (2019) 273 FCR 66
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628
Jagroop and Minister for Immigration and Border Protection (2016) 241 FCR 461
JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1293
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Saleh and Minister for Immigration and Border Protection [2017] AATA 367
Tabag v Minister for Immigration and Ethnic Affairs (1982) 70 FLR 61Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Reasons For Decision
Background
Issues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
General overview of the Applicant’s offending
Application of Factors in Paragraph 8.1.1(1) of the Direction
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Professor Freeman’s Evidence
Factors propounded on behalf of the Applicant militative of a low and acceptable risk of recidivism
Factors propounded by the Respondent as militative of a “real risk of the Applicant re-offendingConclusions on risk
Conclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Who are members of the Applicant’s family?
Did any of the Applicant’s conduct constitute family violence?
Pre-2019 incidents (punching of hole in wall and threat to burn house down)
17 February 2019
6 March 2020
21 March 2020Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: The Best Interests of Minor Children in Australia
Identification of relevant children
Consideration of factors
The position with the Applicant’s two cousins
Conclusion: Primary Consideration 3
Primary Consideration 4: The Expectations of the Australian Community
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
Other Considerations
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community
Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian communityA further “Other Consideration” propounded by the Applicant
Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
Reasons For Decision
Senior Member Theodore Tavoularis
9 July 2021
Background
Ashley Charles Batson (“Applicant”) is a citizen of the United Kingdom (“UK”) who is 24 years old. His visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”) on 15 May 2020 under s 501(3A) of the Migration Act 1958 (Cth) (“Act”).
He made representations to have the mandatory cancellation of his visa revoked as required by s 501CA of the Act. The delegate decided not to revoke the mandatory cancellation of the Applicant’s visa on 6 April 2021.[1]
[1] G, 11.
A hearing was held before me in this Tribunal on 22 and 23 June 2021. The hearing received both written and oral evidence. The written evidence was described in an agreed Exhibit List, a true and correct copy of which is marked Annexure A.
Due to the proximity of the completion of the hearing (23 June 2021) to the 84th day applicable to this case (29 June 2021), the Tribunal required additional time to formulate and finalise detailed written reasons. Accordingly, on 29 June 2021, to ensure the Tribunal discharged its statutory function on or before 29 June 2021 in accordance with s 500(6L) of the Act, I caused the Tribunal to publish my decision in this matter in short-form.[2] A copy of the short form decision is attached to these reasons and marked Annexure B.
[2] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered at a later time): See [41]–[48].
I now publish my detailed reasons for that short-form decision.
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[3]
[3] (2018) 267 FCR 320, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[4] I will address each of these grounds in turn.
[4] [2018] FCAFC 151 [21].
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 11 May 2020, the Applicant was sentenced to a term of imprisonment of 12 months for the offence of “unlawful use of motor vehicles, aircraft, or vessels”.[5] Therefore, he satisfies the definition in s 501(7)(c) of the Act and thus fails the character test. The Applicant does not cavil with this finding.[6]
[5] G, 36–40.
[6] A1, [16].
It follows that he cannot rely on s 501CA(4)(b)(i) of the Act for the revocation of the mandatory cancellation.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 90”) has application.[7] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[8]
[7] Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[8] Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[9]
[9] Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[10]
[10] Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to 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.”
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
General overview of the Applicant’s offending
The Applicant has an extensive criminal history. He does not seem to cavil with the nature and extent of his adult criminal history which runs (in sentencing terms) from 23 November 2015 until 11 May 2020. In summary, he has committed something in the order of 74 separate offences that have seen him before lawful authority on 15 sentencing episodes.
Application of Factors in Paragraph 8.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
I will consider each paragraph in turn, citing specific offences relevant to the operative effect of each applicable sub-paragraph in paragraph 8.1.1(1) of the Direction.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
As best as I understood the Applicant’s criminal history, there is no record of any conviction or commission of any sexual crime.
There are however at least three references in the material to the commission of crimes of violence relevant for the purposes of paragraph 8.1.1(1)(a)(i). First, on 17 March 2016, while waiting for a bus at a bus stop in Mandura, Western Australia, the Applicant became involved in a conversation with a person who eventually became the victim of violent offending. The victim himself was waiting for a bus to arrive. During the conversation, the Applicant “[…] became angry and began punching [the Victim] multiple times to the face and causing [the Victim] to fall backwards onto the ground causing minor injuries.”[11]
[11] R2, 25.
Upon apprehension and questioning by the police, the Applicant made full admissions about this offence. His purported explanation at the time went no further than “I don’t know what I was doing, it was stupid.”[12] In his evidence, the Applicant suggested that the reason for the altercation was that the victim “attempted to sexually assault [the Applicant’s] friend, who – she was only 16 at the time.”[13] The Applicant further explained that the confrontation became physical because “he said something along the lines of, “And I will do it again” or something like that.”[14]
[12] R2, 25.
[13] Transcript, 9, lines 12–13.
[14] Transcript, 9, lines 15–18.
The Applicant was sentenced in the Bunbury Magistrates Court for common assault. He was ordered to pay a $1,200 fine. Whatever the Applicant’s motivation was during the confrontation, I am of the view (and I find) this is a crime of violence falling squarely within the ambit of paragraph 8.1.1(1)(a)(i) of the Direction.
Second, on 17 April 2017 the Applicant became involved in what can coarsely be described as a purported drug deal. The relevant police “statement of material facts” discloses that at 7:50pm on that day, the Applicant approached a parked vehicle in the township of Busselton.[15] The vehicle was occupied by another person who eventually became the victim. While occupying the front passenger seat of the vehicle, the statement of material facts notes the following exchange:
“The Accused asked the Victim if he was “the guy with the drugs?” and the Victim replied “I think you have the wrong guy”. The Accused and the Victim conversed further before the Accused asked the Victim if he could use his phone. The Victim refused and fumbled his phone, at which time the Accused has grabbed the iPhone 5 from the Victim's lap where he had dropped it.”[16]
[15] R2, 622.
[16] R2, 623. See R2, 3.
A physical struggle then ensued between the Applicant and the victim. The relevant police statement records the Applicant committing and threatening to commit the following acts of violence:
“The Victim has tried to prevent the Accused from exiting the vehicle with his phone by grabbing the Accused jumper [sic]. The Accused has then bit the Victim on the left arm and punched the Victim in the head before exiting the vehicle.
The Victim has also exited the vehicle and confronted the Accused telling him to give his phone back and trying to grab the phone from the Accused's hands.
The Accused kept hold of the phone and punched the Victim several times to the left side of his face causing him to fall to the ground. The Victim got back to his feet and grabbed the Accused, at which time the Accused said, “I will kill you” and “I have a knife and I will stab you”.
The Accused and the Victim continued to struggle over the phone, with the Victim taking the Accused to ground in an effort to get the Accused to release his phone. The Victim again asked the Accused for his phone.
The Accused got back to his feet and fled from the area with the complainant's phone in his possession.
The Victim got back into his vehicle and drove to the Busselton Police Station for assistance.”[17]
[17] R2, 623.
The violent nature of this offending by the Applicant is readily apparent from the nature of the injuries suffered by the victim. The Applicant experienced bruising and swelling to the left side of his face and right cheek bone area. There was a bite mark to his left arm and a laceration and swelling to the back of his head.[18] The laceration at the back of his head required a medical gluing procedure.[19]
[18] R2, 697.
[19] R2, 697.
I am of the view (and I find) that this offence constitutes a violent crime falling squarely within the ambit of paragraph 8.1.1(1)(a)(i) of the Direction.
Third, on 1 September 2019 the Applicant was involve in the commission of violent conduct towards police officers. The offending occurred at the Valley Metro Shopping Centre in Fortitude Valley, Brisbane. In the course of engaging with the Applicant, the two police officers requested that he provide them with his full and correct name. The Applicant refused to do so.
The two police officers then placed the Applicant under arrest and sought to take him to the nearest police station known as “Fortitude Valley Police Beat”. The court brief summarises the incident thus:
“Sergeant [redacted] and Senior Constable [redacted] moved in to accompany the defendant to the Fortitude Valley Police Beat. At this point the defendant violently tensed up and wilfully resisted both Sergeant [redacted] and Senior Constable [redacted]. Police eventually transitioned the defendant to the ground as so handcuffs could be applied however the defendant was aggressively thrashing his body resisting this.
Once on the ground, the defendant aggressively and wilfully removed his arm from the grasp of police and attempted to grab Sergeant [redacted] behind the head. Senior Constable [redacted] regained grasp of the defendant’s arm however this proved ineffective as the defendant had returned to his feet and was still aggressive.
The defendant was again transitioned back to the ground and continued to aggressively grunt and growl at police, along with aggressively flailing his legs around. It required the assistance of a further four (4) officers to gain control of the defendant due to the displayed excited delirium, along with the deployment of OC Spray.
The defendant was subsequently transported to the Brisbane City Watchhouse where bail was refused.”[20]
[20] R2, 202.
There can be no cavilling with my finding that this offence of a serious assault against a police officer also falls fairly within the definitional ambit of a “violent crime” for the purposes of paragraph 8.1.1(1)(a)(i) of the Direction.
Having regard to the nature and circumstances of the three abovementioned offences of violence, I am of the view (and I find) that they are strongly militative in support of a finding that the Applicant’s conduct must be found to be “very serious”.
Next, it is necessary to ascertain whether any aspect of the Applicant’s offending engages paragraph 8.1.1(1)(ii). On 20 February 2019, a domestic violence order was made which named the Applicant as respondent. The aggrieved named on the order included the Applicant’s mother. One of the conditions of the order prohibited the Applicant from entering, attempting to enter or approaching where the aggrieved lives (“non-approach condition”). On 6 March 2020, the Applicant attended his mother’s house, in contravention of the non-approach condition. It does not appear from the police statement of facts that he was violent. However, the Applicant was convicted of contravention of a domestic violence order for his actions. Viewed objectively, this does not amount to a “crime of a violent nature” against a woman or child. Therefore, it does not engage paragraph 8.1.1(1)(a)(ii) of the Direction.
There are, as I explain in paragraphs [130]–[162] of these reasons, instances of family violence committed by the Applicant. Some of the family violence (such as the threat to burn a house down with his mother and sister in it) clearly drew women (his mother) and children (his sister) into their orbit. But these are not “crimes” of a violent nature as the Direction requires me to consider – he was not charged or convicted for this unsavoury behaviour. Therefore, I am not satisfied that any of the Applicant’s family violence conduct amounted to a crime of a violent nature against a woman or a child.
There is nothing else in the material which appears to involve violence against women or children. Therefore, this sub-paragraph (a)(ii) is of neutral weight to determination of the instant application.
It is also necessary to ascertain whether any aspect of the Applicant’s offending engages paragraph 8.1.1(1)(iii) of the Direction. In paragraphs [131]–[163] of these reasons, as part of my consideration of Primary Consideration 2, I set out the Applicant’s family violence conduct in detail. Having regard to the nature of that conduct, I am of the view (and I find) that the Applicant’s perpetration of family violence is strongly supportive of a finding that his conduct must be found to be “very serious”.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
As best as I understood the material, there is no contention from the Respondent that the Applicant’s conduct attracts the operative effect of the abovementioned sub-paragraphs (i) or (iv).
I will now proceed to consider the extent to which sub-paragraphs (ii) and (iii) have application and, consequently, the weight (if any) allocable to these two sub-paragraphs.
Paragraph 8.1.1(1)(b)(ii) contains two separate questions. The first is whether the Applicant has committed crimes against vulnerable members of the community. The material does not appear to disclose any such offending.
The second question in paragraph 8.1.1(1)(b)(ii) is whether the Applicant has committed crimes against government representatives or officials due to (a) the position they hold or (b) in the performance of their duties. The Applicant’s criminal history contains a number of offences committed against police officers in the performance of their duties.
I have identified the following offences of the Applicant committed against police officers in the performance of their duties. Stated chronologically, those offences comprise:
·Between 17–24 June 2019, the Applicant contravened a direction or requirement of a police officer made pursuant to s 791(2) of the Police Powers and Responsibilities Act 2000 (Qld) (“PPRA”). The relevant Bench Charge Sheet discloses that the Applicant:
o“[…] without reasonable excuse contravened a requirement given by a Police Officer [name redacted] under the [PPRA] namely to attend Caboolture Police Station to obtain identifying particulars.”[21]
[21] R2, 429.
·On 1 September 2019, the Applicant obstructed a police officer in the course of their duty, pursuant to s 790(1)(b) of the PPRA. Note: at [35]–[38] of these reasons, I have already discussed the factual circumstances of this offence.
·On 18 August 2019, the Applicant committed the offence of obstruct police, with the aggravating circumstances of committing that offence on licensed premises, in contravention of ss 790(1)(a) and 790(b). A Queensland Police Service “Sentencing Schedule” discloses the following facts:
“At approximately 10:25pm on the 18th day of August 2019 police located the defendant walking on Charlotte Street, Brisbane City directly outside the Stock Exchange Hotel. Police have stopped the defendant and had a conversation with him. Throughout the conversation the defendant was evasive and attempted to walk away from police.
[…]
The defendant has struggled violently with police as police have attempted to retrieve the bag from his mouth. This has caused three police officers to fall heavily onto Charlotte Street whilst attempting to restrain the defendant. The defendant was warned multiple times to stop struggling with police however continued to resist violently ([the relevant charge]). Police have been able to successfully restrain the defendant in handcuffs and retrieve the clip seal bag from the defendant's mouth.”[22]
·On 8 March 2020, at 6:40pm, the Applicant committed the offence of contravening a direction made under s 791(2) of the PPRA. This offence involved a “Constable R” who “[…] gave [the Applicant] a requirement to state his full and correct name and address in accordance with the PPRA.” The Applicant chose to remain silent and to refuse to engage with police. He was “[…] warned multiple times that it was an offence to fail to comply with the requirement without reasonable excuse and given multiple opportunities to comply with the requirement […]” The sentencing schedule then notes that the Applicant “[…] chose to remain silent.”[23]
·On 8 March 2020, at 8:30pm, the Applicant was released from the police station after the incidents earlier that day. He then walked to a nearby petrol station and got into the car of two people who were apparently strangers. Police intervened. As things transpired, the Applicant committed two counts of the offence of obstruct police officer, in breach of s 790(1)(b) of the PPRA. The relevant police sentencing schedule discloses that:
othe first count was committed against a “Senior Constable S” who asked the Applicant to stop several times. Senior Constable S “[…] spoke to [the Applicant] and asked him to stop several times so he could speak with him and [the Applicant] failed to comply and continued walking […]”; and
othe second count was committed against a “Senior Constable W”. According to the factual narrative in the Queensland Police Service sentencing schedule, the Senior Constable “[…] went to place handcuffs on the defendant and the defendant has not complied and resisted being placed under arrest obstructing Senior Constable [W] and Constable [M]”.
[22] R2, 313–315, items 18 and 20.
[23] R2, 570–571.
I am mindful that this sub-paragraph (ii) refers to “crimes committed against […] government representatives […] in the performance of their duties”. On any reasonable view, the above recounted offending episodes fall within this definition. That said, it cannot be safely found that this aspect of the Applicant’s offending constitutes an overly serious challenge to the lawful authority represented by the police officers. Of course, it is conduct that involved the police in unnecessary trouble and effort. Were the Applicant to engage more meaningfully with the police officers, none of these charges would have ensued. However, I must find that this sub-paragraph (ii) does, to a moderate extent, militate in favour of a finding that the Applicant’s offending has been, at the very least, “serious”.
In relation to sub-paragraph 8.1.1(1)(b)(iii) of the Direction, I am mindful of the reference to “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion”. The Respondent has not propounded this component of the Direction in its written material. I have also checked the Transcript. There is nothing propounded by either party about this specific sub-paragraph in any of the oral submissions. Accordingly, this sub-paragraph is not relevant.
Sub-paragraph 8.1.1(1)(c) of the Direction requires me to consider the sentence imposed by the courts for a crime or crimes. It is initially important to note the structure of this sub-paragraph. I must not take into account sentences the Applicant has received for offences captured by the following sub-paragraphs: 8.1.1(1)(a)(ii)–(iii) and (b)(i).
As I understood the Applicant’s sentencing history, the sentences imposed by the courts for the balance of his offending are as follows:
·at least 20 fines ranging from $100–$1,200;
·seven terms of imprisonment (one conditionally suspended) ranging from 3 months–18 months (for a total of four and a half years in total head custodial sentences), many of which were ordered to be served concurrently;
·at least 40 instances of the imposition of non-custodial penalties in the form of (1) “no conviction recorded”, (2) “conviction recorded and not further punished”, (3) a conditional suspended imprisonment order, and (4) probation.
The Applicant first arrived in Australia in March 2010. In an adult offending period running from November 2015 to May 2020, the Applicant has committed offences attracting approximately four and a half years of cumulative custodial sentences. This represents virtually one half of his time in the Australian community. What is even more notable about the Applicant’s sentences is that they have been imposed on a relatively young offender. He commenced offending as an adult in 2015 when aged 18 years. He is now only aged 24. He has compiled these sentences in a relatively short offending timeframe.
Custodial terms feature within six months of the commencement of the Applicant’s offending. As mentioned, his first sentencing episode occurred in November 2015. By May 2016, the Bunbury Magistrates Court saw fit to impose respective custodial terms of three months and six months for various offences committed while he was in control of a motor vehicle. Those offences included “driver failed to stop (circumstances of aggravation)” (x2) and “Reckless Driving – Inherently Dangerous (to escape pursuit by police)” (x2).[24]
[24] R2, 6.
It should also be noted that the imposition of a custodial term is regarded as the last resort[25] in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[26] Despite his relative youth, judicial sentencing officers have obviously formed the view that the level of his offending was of such a nature as to require the imposition of custodial terms. The imposition of these custodial terms also occurred after he had repeatedly had the benefit of sentencing regimes that did not attract the imposition of custodial time.
[25] See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[26] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
The sentences imposed on the Applicant merit the allocation of a significant level of weight in favour of a finding that the totality of his offending has indeed been very serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Turning first to the question of frequency, I have prepared the following table that seeks to annualise the rate of this Applicant’s offending based on (1) the first and most recent of his court sentencing dates; and (2) the first and last dates on which he committed offences.
Offending in Australia First court date Last court date Timespan Court date count Frequency
(court dates/year)23 November 2015 11 May 2020 4yrs 6mo 15 3.36 First offence Last offence Timespan Offence Count Frequency (offences/year) 17 October 2015 8 March 2020 4yrs 5mo 74 16.85
The Applicant’s offending history – certainly insofar as it is expressed in terms of the abovementioned “timespans” is undoubtedly of a frequent nature. Expressed in another way not expressed in the table above, and perhaps slightly more favourably for the Applicant, for the approximate decade he has been here he has committed over seven offences per year. On any view, the Applicant’s offending history is clearly a frequent one.
The next question posed by this sub-paragraph involves ascertaining whether the Applicant’s offending involves any trend of increasing seriousness. As mentioned, the Applicant was first dealt with by lawful authority in November 2015 for unauthorised driving as a learner driver. This unremarkable offending attracted a fine of $50. The notable feature of this Applicant’s offending history is that within six months it had dramatically escalated in seriousness such that by the second time he was before lawful authority (May 2016), his offending attracted cumulative custodial terms totalling 21 months or almost two years.
The further notable aspect of the Applicant’s offending is that the nature of the offending both changed and became more serious. His initial offending phase predominantly involved motor vehicle offences. By 2017, the conduct had escalated to aggravated armed robbery and offences involving illicit drugs. By 2020, the Applicant was being dealt with for offences including burglary, further drug possession offences, possession of a knife in a public place or school on multiple occasions, wilful damage, and unlawful use of a motor vehicle (for which offence alone he was imprisoned for 12 months). This is an offending history that, put at its highest, was not all that serious for its first six months (November 2015–May 2016) but then dramatically escalated in seriousness thereafter and has remained at that level ever since, right up to as recently as March 2020. On this basis, I am of the view that any holistic analysis of the Applicant’s offending clearly demonstrates a trend of increasing seriousness and, indeed, sustained seriousness.
I have found that the Applicant’s offending has been of a frequent nature. I find there to be a trend of increasing seriousness in his offending as well. Accordingly, this sub-paragraph 8.1.1(1)(d) weighs in favour of a finding the Applicant’s offending conduct has been very serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. To my mind, there are four cumulative effects discernible from the Applicant’s repeated offending.
First, the nature of his offending has been such as to demonstrate an abject failure to develop any measure of respect for the lawful authority governing the community back into which the Applicant seeks re-admission. Even a cursory review of his offending history will reveal repeated challenges or refusals to accept a lawful direction from a police officer or to otherwise obstruct those officers in the performance of their duties. He does not understand the requirements of duly and lawfully imposed orders such as bail or even probation. He has re-offended while on probation for like offending,[27] and while subject to a suspended imprisonment order.[28]
[27] G, 69.
[28] G, 39. See the offence dealt with on 6 May 2019 which is recorded as a “Breach of Conditional Suspended Imprisonment Order 84J”.
Second, the sheer volume of offences he has committed make it clear that his offending has consumed more than its fair share of the community’s law enforcement and court resources. His is an offending history that runs for less than five years. Yet it is a history that has seen him before the courts on multiple occasions, and caused police to deal with him numerous times across each of those years.
Third, perhaps not all but certainly some of the offences the Applicant has committed have exposed the public to significant risk and danger. The citing of two examples will suffice.
·The circumstances of the Applicant’s conviction for armed robbery on 1 November 2017 are as follows:
“The Victim has tried to prevent the Accused from exiting the vehicle with his phone by grabbing the Accused jumper. The Accused has then bit the Victim on the left arm and punched the Victim in the head before exiting the vehicle.
[…]
The Accused kept hold of the phone and punched the Victim several times to the left side of his face causing him to fall to the ground. The Victim got back to his feet and grabbed the Accused, at which time the Accused said, "I will kill you" and "I have a knife and I will stab you".
[…]
As a result of the incident, the Victim suffered bruising and swelling to the left side of his face and right cheek bone area, a bite mark to his left arm and a laceration and swelling to the back left of his head.”[29]
[29] R2, 15.
·The circumstances of the Applicant’s conviction for “Reckless Driving – Inherently dangerous (to escape pursuit by police)” on 19 May 2016 are as follows:
“This vehicle turned right onto Baroy Street which is a 50 kph zone and it was observed this vehicle did not have any rear registration plate attached, the driver (accused) has then travelled in a westerly direction reaching a speed of 70 kph before Police activated their emergency lights.
The accused has then accelerated heavilly reaching a speed of 80 to 90 kph before he has attempted to brake heavilly as he turned left onto Spinaway parade which is a 50 kph zone.
The accused has lost control of his vehicle as he turned left and has crossed to the wrong side of the road before fishtailing about 30 to 40 metres before regaining control of his vehicle and speeding off in a southerly direction.
The accused has reached speeds of 100 kph along Spinaway Parade crossing to the wrong side of the road on several bends before going back onto the correct side of the road. (Distance approx 550 metres)
The accused has approached Panamuna Drive which has a sharp left hand turn, he has entered the turn under heavy brakes at a speed of about 60 kph losing control and ending up on the wrong side of the road and again fishtailing his vehicle for some 40 to 50 metres up the road before regaining control.
The accused has reached speeds of approx 120 kph in the 50 kph zone along Panamuna Drive moving to the inccorect side of the road on several occasions, Panamuna Drive takes a sharp left bend whereby the accused has entered the bend to fast again losing control of the vehicle and sliding onto to the wrong side of the road and onto the dirt verge, the accused has then hit a wooden bollard on the wrong side of the road at low speed. (on later inspection of the vehicle the hand brake has been found to be pulled as far as it can go which has slowed the vehicle) and the vehicle has become bogged in soft sand. (distance along Panamuna Drive approx 850 metres)”[30]
[Errors in original; my emphasis and underlining]
[30] R2, 41.
It is not at all a stretch of the evidence to safely find that a member of the public could have been seriously or even catastrophically injured from the circumstances of either of these offences.
Fourth, the Applicant has failed develop any measure of respect for the personal and property rights of others. His history contains numerous convictions for “stealing” and “possession of stolen or unlawfully obtained property” and at least one conviction for common assault. The circumstances of the Applicant’s conviction for aggravated armed robbery and certain of his offences involving police officers in the course of their duties have clearly involved direct challenges to the personal rights of others.
Taken in total, these four cumulative effects, to my mind, strongly militate in favour of a finding that the totality of the Applicant’s offending has been very serious.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. Having regard to the material, I am of the view that any discussion about this sub-paragraph (f) must be approached with caution. There is no mention of weight allocable – either way – in either the Applicant’s or the Respondent’s Statement of Facts, Issue and Contentions (“SFIC”). I have checked the transcript and can find no reference – either in submissions or in questions put to the witnesses – about incorrectly completed incoming passenger cards such as to attract operation of this sub-paragraph.
However, the material discloses that this should not be the end of the enquiry. The Applicant’s criminal history commences (in terms of a sentencing episode) on 23 November 2015 when the Applicant was 18 years of age. This reference is deceptive because the Applicant’s offending did not commence at that time. He has a record of convictions as a juvenile in 2011 (two offences) and in 2012 (three offences).[31] The offending, as it is described in the material, appears to be serious.
[31] R2, 7–8.
I am not certain whether, as a 16–17 year old, upon entering re-entering Australia on 16 March 2013 the Applicant would have been provided with an incoming passenger card for completion. If so, it stands to reason that his juvenile convictions in 2011 and 2012 should have been recorded on that card. Given the absence of any submission or contention by the Respondent about this item, and, given also that no incoming passenger cards appear in the material, the safest way to proceed is to refrain from allocating any weight – either way – to this sub-paragraph (f). It is therefore of neutral weight.
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I have checked the written material, including the Transcript. I can find no reference to either party propounding the application of this sub-paragraph (g). I cannot find any warning letter from the Respondent warning the Applicant about the impact of his offending on his migration status to remain here.
While the Applicant may well have received oral warnings from judicial sentencing officers, such warnings do not comprise “formal warnings […] in writing” as required by this sub-paragraph. From the sentencing remarks appearing in the documentary record before the Tribunal, there does not appear to be any reference to the Applicant’s migration status being affected by his offending. Accordingly, this sub-paragraph (g) is of neutral weight.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs (a)(i), (a)(iii), (b)(ii), and (c)–(e) inclusive, I am of the view that the Applicant’s offending can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The Respondent has conveniently identified four themes arising from the Applicant’s offending. He has committed violent and reckless offences; property offences; traffic offences; and multiple breaches of lawfully made orders and directions.
He has convictions for common assault, aggravated armed robbery, multiple convictions for a failure to take reasonable care and precautions with regard to drug paraphernalia, together with a conviction for being in possession of a knife in a public place. There is little to cavil with the finding that such inherently dangerous offending has, in the past, exposed members of the Australian community to significant risk of physical and emotional harm and, if re-committed, will very likely do so in future.
His property offences involving the theft of motor vehicles, burglary, and otherwise being found in possession or unlawfully obtained property will, if re-committed, result in material loss of property lawfully belonging to members of the Australian community.
His traffic offences, if re-committed, will undoubtedly expose members of the Australian community to palpable risk, indeed, potentially catastrophic risk. His convictions for reckless driving of an “inherently dangerous” nature to avoid pursuit and apprehension by the police as well as his driving while under the influence of illicit drugs could result in physical harm, emotional harm, or death to members of the Australian community.
Were the Applicant to again breach or contravene lawfully made orders and directions such as orders for the prevention of domestic violence, undertakings as to bail, or failure to observe the terms of a suspended imprisonment order, such conduct will again unnecessarily consume this country’s law-enforcement and judicial resources.
It therefore follows that were the Applicant to re-commit any of his past offences, within any of the categories or themes attributable to his past offending, the impact on the Australian community could range from (at one level) the loss of property or other material loss to very serious physical or psychological harm including to a potentially catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I will approach the assessment of the Applicant’s risk of recidivism by a review of (1) the findings of the independent expert and forensic psychologist, Professor James Freeman; (2) the factors propounded on behalf of the Applicant as being suggestive of a low and acceptable risk of recidivism; (3) the factors propounded by the Respondent as militative of a “real risk of the Applicant re-offending”; and (4) a summary of my findings based on the evidence now before the Tribunal.
Professor Freeman’s Evidence
Professor James Freeman is a very experienced forensic psychologist. He personally attended upon the Applicant on 5 May 2021 for 1.5 hours. He was comprehensively briefed with material about the Applicant, his offending, and the procedural history of this matter involving the subject visa. Following a psychological examination, Professor Freeman conducted his usual thorough and comprehensive review of a number of relevant aspects informative of the Applicant’s likely risk of recidivism. Those elements included (1) expressions of remorse; (2) a summary of the Applicant’s criminal history; (3) a summary of the Applicant’s relationship history; (4) a summary of the Applicant’s drug and alcohol use; and (5) a description of the Applicant’s psychological/psychiatric history.
Professor Freeman’s clinical assessment of the Applicant caused him to arrive at two identified conditions or symptomatologies comprising (1) Drug Induced Psychosis (in remission) and (2) Methamphetamine Dependency (in partial remission in a controlled environment).[32] Professor Freeman was of the view that the Applicant did not meet the criteria to have a personality disorder. Professor Freeman did not consider that the Applicant has been consistently engaged in violent offending. He was of the view that the Applicant’s “offending history is likely to be better explained by: (a) methamphetamine dependency; and (b) alignment with a negative peer-support group that promoted or condoned such drug use.”[33]
[32] A4, 4[10.2].
[33] A4, 4[10.5].
Professor Freeman identified the following protective factors said to guard against the Applicant’s return to an offending lifestyle:
“If his visa is returned, Mr. Batson’s release plans focus on: (a) initially residing with his brother at Caboolture, (b) working with his brother as a brick layer and (c) engaging in additional drug treatment programs to enhance his relapse prevention skills e.g., Lives Lived Well service at Redcliffe. He also wants to continue the relationship with his fiancée and provide parental assistance for her 3 year old daughter.”[34]
[34] A4, 5[11.2].
Professor Freeman conducted an actuarial risk assessment on the Applicant in the form of the “Hare Psychopathy Check List (PCL-R)”. He opined that the Applicant received a total raw score of 12 which equated to a percentile rank of 9.0. According to Professor Freeman, the average inmate usually obtains a total score of around 23.6 and a percentile ranking of 46.3. This finding caused Professor Freeman to opine that the Applicant’s “[…] score is below the average prisoner’s ranking, and also falls below the cutoff raw score of 30 in order to be classified as suffering from psychopathy.”[35] He was of the opinion that the Applicant displayed no evidence of a person of a psychopathic personality.
[35] A4, 5[12.2].
In terms of a clinical summary, risk assessment and concluding remarks, Dr Freeman opined thus:
“The origins of Mr. Batson’s offending history can be directly attributed to his methamphetamine dependency. That is, he accepts engaging in a range of impaired behaviours in order to fund the addiction. It is noteworthy that methamphetamine consumption promotes maladaptive decision making and response inhibition and elevated risk taking propensities.
The risk of recidivism relates primarily to him avoiding relapsing into methamphetamine use and contact with a negative peer support group (that promotes such usage). Encouragingly Mr. Batson has a sufficient level of insight into the extent of his substance abuse, recognises the link between his substance abuse and offending, as well as his past poor mental health e.g., drug induced psychosis. He also articulates a strong commitment to avoid relapse and contact with his past support group. This capacity has likely been strengthened through his enrolment in multiple drug treatment interventions and he presents as eager to utilise protective factors e.g., brother, employment, etc. Furthermore, the applicant’s first lengthy period of incarceration and the matter before the tribunal (e.g., visa cancellation) are reportedly significant deterrents against relapse”[36]
[Internal citations omitted]
[36] A4, 6[13.2]–7[13.3].
Professor Freeman considered the Applicant to be a young man “who has been considerably destabilised by methamphetamine use.”[37] As best as I understood Dr Freeman’s report, the Applicant’s risk of recidivism is principally predicated on his capacity to avoid a relapse back into the abuse of methamphetamines:
“[…] if he can avoid the above mentioned risk factors, then his prospects for the future can be considered more optimistic.”[38]
[37] A4, 7[13.4].
[38] A4, 7[13.4].
Finally, Professor Freeman made reference to the difficulties likely to be faced by the Applicant upon a return to the UK. He thought that the Applicant would, in such a scenario, be exposed to extreme hardship which, in turn, could expose the Applicant to “[…] prolonged stressors in a foreign environment which could exacerbate either latent symptomatology (associated with his past perceptual disturbances) or relapse vulnerabilities.”[39]
[39] A4, 7[13.5].
On this basis, the contention is put on behalf of the Applicant that “[…] his risk is sufficiently low so as not to be unacceptable.”[40]
[40] A1, [54].
Factors propounded on behalf of the Applicant militative of a low and acceptable risk of recidivism
First, the Applicant submits that his most important factor against a risk of recidivism is his insight and completion of relevant drug counselling. There is a ready acknowledgment that the Applicant’s previous attempts at drug abstinence have failed. The reasons for that failure were said to be attributable to the imposition of “life stressors” in the form of (1) loss of employment, (2) the breakdown of an interpersonal relationship, and (3) the loss of stable accommodation. It was submitted that in the past, the Applicant has lacked “both the insight, protective tools, and the incentive to maintain a drug-free lifestyle.”[41]
[41] Transcript, 149, lines 19–20.
The Applicant submits he has accepted and understood the requirement to be vigilant against a relapse and, in particular, to exercise that vigilance against “high risk situations and warning signs.”[42] It is further contended on behalf of the Applicant that his completion of drug counselling represents a “very significant” milestone in his rehabilitative process.[43] It is said that this counselling is indicative of a willingness in the Applicant to better himself and, in addition, a willingness to have a higher awareness of his risk factors and to develop strategies preventing the recurrence of those risk factors and any consequential re-offending.
[42] Transcript, 149, line 32.
[43] Transcript, 149, line 39.
Second, It is contended on behalf of the Applicant that there now can be said to be specific risk-minimisation factors both known to him and operating on his life’s circumstances (in the event of his return to the community) that would militate in favour of a lower risk of recidivism. Supportive evidence for this contention appears in the oral evidence provided by the Applicant’s father who spoke of the following factors as now being militative of a lower risk of recidivism: (1) the availability of employment; (2) the availability of further counselling with “Lives Lived Well” in the Redcliffe area which is proximate to the area of Caboolture to which the Applicant will return to reside with his brother upon release; (3) the support and encouragement of his partner with whom he appears to have re-kindled a previously extant domestic relationship; and (4) safe and secure residential arrangements with his younger brother, where his on-going rehabilitation and reformation is to be overseen.
Augmenting the factor about employment was the evidence about random drug testing being applied by the Applicant’s employer to guard against any relapse into drug abuse. One of the difficulties I found with the element relating to safe and secure residential arrangements related to the capacity of the Applicant’s 20 year old brother to oversee the Applicant’s rehabilitation and ongoing abstinence from illicit drugs. The Applicant’s brother gave helpful evidence at the hearing. On any reasonable view, the brother has led a significantly more responsible life than the Applicant in terms of (1) consistent engagement in remunerative employment and (2) complying with Australian laws. But it is, to my mind, an unreasonable and, ultimately, unreliable prospect to expect the Applicant’s 20 year old brother, who has his own work and domestic responsibilities, to accept primary responsibility for keeping the Applicant on the straight and narrow.
I accept the Applicant’s younger brother does love and is very devoted to his brother, the Applicant. But there is only so much the brother can do to maintain a protective environment around the Applicant to prevent any relapse by him into the abuse of illicit drugs. I note, with some concern, the evidence of Professor Freeman when asked about the likely consequences and outcomes for the Applicant in the event that one or more of the protective factors fall away or are otherwise not available to him. Professor Freeman was forthright enough to say that the removal of one or two of those factors might not necessarily be fatal for the Applicant (in terms of a return to abusing illicit drugs) but he did say that the loss of “a number of protective factors” at the same time would be of concern to him insofar as the Applicant’s risk of recidivism is concerned. Professor Freeman commented that such loss would be “a high risk situation” and the Applicant’s risk of recidivism would “depend on his ability to seek other protective factors and restabilise his life.”[44]
[44] Transcript, 137, lines 35–42.
With reference to the propounded protective element of a rekindled domestic relationship acting as a protective factor, it is important to review the evidence regarding the Applicant’s relationship with Ms Rhyannah Woodham. It is contended that this apparently now re-kindled relationship is one of the protective factors militating against the Applicant’s recidivist risk. Ms Woodham and the Applicant have known each other for three years. They were previously in a year-long relationship during the period 2018–2019. The relationship ended in January 2019, some two and a half years ago at or around the time the Applicant lost his job. She says the loss of his job caused the Applicant to go downhill and turn to drugs.[45]
[45] A2, 1.
In her statutory declaration declared on 3 June 2021 Ms Woodham says, “Ashley and I have been in a serious relationship for the last six months”. There is a difficulty with this contention arising from the evidence. In cross-examination, she said the re-kindled relationship had been running since “[a]round April this year [(2021)]”.[46] She sought to clarify this evidence by saying “April or March, sorry, but yes.”[47] Either way, the reference to six months in her written statement must be wrong. Any re-kindled relationship can only have thus far had a life of two–three months and no more.[48] She described her re-connection with the Applicant thus:
“Ms White: How did it come to pass that you came to reconnect with Ashley when he was in immigration detention earlier this year? How did that occur?
Ms Woodham: I’ve just been - I was just thinking about him a lot and missing him and what we had, so I decided to contact him. I had no idea that he was in migration, so I contacted him and he told me and so we’ve just been talking and been in a relationship since then and it has gone very well so far.
Ms White: It must be difficult conducting a relationship with someone when they’re in immigration detention; how often do you speak with him?
Ms Woodham: We speak every day.
Ms White: Is that by phone, video calls, how do you contact each other?
Ms Woodham: Video calls and normal phone calls, messaging.”[49]
[46] Transcript, 54, line 7.
[47] Transcript, 54, lines 13–14.
[48] See Transcript, 54, lines 11–14 where the witness confirmed that the relationship re-commenced March or April this year.
[49] Transcript, 56, lines 39–44, 57, lines 1–6.
The further difficulty with Ms Woodham’s evidence about the nature and extent of any relationship with the Applicant can be seen in her evidence about how things will transpire between them upon his return to the community. The arrangement will be that during the week the Applicant resides at his brother’s residence but then spends weekends with Ms Woodham and her three year old child. It is not a stretch of the evidence to suggest that things are still at a formative stage between them and are very much reliant on the Applicant proving himself – in terms of staying away from drugs – if returned to the community. She said this in her evidence:
“Senior Member: All right. Well, I’ll just finish this off then. So, the best estimate you can give us, and it’s entirely reasonable for you to have this estimate, I think, is that if he comes back into the community, you will see how things go for maybe a couple of months, he lives at his brother’s house during the week and then he comes and spends weekends with you and your daughter, that’s generally the plan, right, generally?
Ms Woodham: Yes.
Senior Member: Okay. Now, you agree, don’t you, that if he comes out back into the community, there is a chance, no one knows the extent of that chance, but there is a chance that he could return to the drugs, and if he did that would be a game changer or a game breaker for you, wouldn’t it? You wouldn’t have him back then?
Ms Woodham: I - if he did I would try to support him and help him, but if my support wasn’t enough, then yes.”[50]
[50] Transcript, 68, lines 33–45.
Third, it is said that the Applicant is now in a phase of “stable mental health” given his abstinence from the abuse of methamphetamine.[51] It is also said that this factor is corroborated by the findings of Professor Freeman who confirms the Applicant has developed a heightened awareness that the state of his mental health is now directly proportional to the extent of his abuse of illicit substances. A resulting protective factor is now said to be that the Applicant has, during the time of his removal from the community in prison and immigration detention, had the opportunity “[…] to engage in a very sober period of reflection […]”[52] It is said that the Applicant has reconciled with his parents and apologised to them for the extent to which his past conduct has adversely impacted their lives.[53]
[51] Transcript, 151, lines 1–2.
[52] Transcript, 151, line 6.
[53] Transcript, 151, lines 6–7.
There are difficulties with this contended third factor. One does not have to look very far into the evidence to see previous instances where the Applicant has offended as a result of being under the influence of drugs, has had the opportunity to seek and receive treatment, and has had the love and support of those around him – principally his parents – yet has returned to re-offend and even more seriously so. In addition, while he may now say he has had time to soberly reflect on his offending history and its impact on others, the asserted benefits of those deliberations have occurred in the closed confines of criminal custody and/or immigration detention. His capacity to conduct his life in accordance with the realisations he says he has taken from those periods of reflection remains to be tested in the broader community.
As I understood Professor Freeman’s evidence, the highest this part of the evidence goes for the Applicant is to suggest (and find) that there are in fact a series of protective measures either in place or to be put in place upon his return to the community. The removal of one or two of those factors may or may not cause a relapse. However, the removal or threatened removal of all of those factors concerns Professor Freeman to the extent that he will not rule out a relapse by the Applicant back into abusing illicit drugs and consequently offending.
Fourth, it was propounded on behalf of the Applicant that the deterrent effect of a future visa cancellation will militate in favour of a lower recidivist risk. As I understood this contention, it was put on the basis that the Applicant has not previously been provided with some kind of warning that further offending would place his visa status in jeopardy. I have earlier found that no such formal warning has emanated from the Respondent or any associated entity. However, the difficulty with this contention is to be found in the evidence provided by the Applicant’s father. It transpires the Applicant has received some measure of a warning about continued offending on his visa status. The Applicant’s father was forthright enough to say the following in his oral evidence:
“Senior Member: In your evidence-in-chief, you spoke about in previous episodes of your son offending he’d come before other decision makers dealing with his criminal offending - and you mentioned the fact that he’d received warnings. And I think you said that - and correct me if I’m wrong - that he has received warnings from those decision makers, and then you said, ‘We’ - I presume the family - ‘have warned him and he never took it seriously.’ A couple of sub-questions to that. Were you in court at any stage, and did you ever hear a judge or a Magistrate sentencing Ashley give him a warning about his visa status to remain here if he kept offending. Do you recall anybody telling him that?
Mr G Batson: The last time - yes, the last time at court - I don’t think it was so much the judge so much, as maybe his lawyer. I think it was more the lawyer that was saying that - realised that if he got over, I think, 12 months, that there could be an issue with having the visa revoked if he got over 12 months, and he didn’t again - well, I can’t remember what the sentence was - but that was one of the conversations was - it was more from the lawyer and the time that he’d be given.
Senior Member: Right?
Mr G Batson: Not so much - the judge didn’t actually bring it up so much, it was the lawyer, that’s right.
Senior Member: And you heard the lawyer tell him that?
Mr G Batson: Yes.
Senior Member: Okay. So the conversation would have gone something along the lines of, ‘Let’s hope we don’t get a sentence of greater than 12 months, because if you do it will imperil your visa status’, or something like that - words to that effect?
Mr G Batson: Yes, that’s correct.
Senior Member: All right, so he’s alive to - so Ashley has been alive to the reality that if he offended and got a sentence of more than 12 months, his visa status would have been imperilled?
Mr G Batson: That’s correct, Senior Member, yes.”[54]
[My emphasis and underlining]
[54] Transcript, 119, lines 36–47; 120, lines 1–21.
As mentioned earlier, the encapsulating contention about risk put on behalf of the Applicant appears thus in the transcript:
“Ms White: Balancing all of this, I would say that while the risk of relapse can’t be discounted, it’s also not one that is unacceptable. I would say putting all of the supports in place, all of the safeguards, the insight, the deterrent effects, this is a risk that could be described as being considerably low so as not to be unacceptable.”[55]
[55] Transcript, 151, lines 29–33.
Factors propounded by the Respondent as militative of a “real risk of the Applicant re-offending
In its SFIC, the Respondent has identified six specific elements militating in favour of “[…] a real risk of the Applicant re-offending […]”[56] The Respondent makes the, to my mind, correct, initial contention that the Tribunal’s assessment of the Applicant’s level of recidivist risk must be based only on the evidence before the Tribunal at the time of the hearing and the making of its decision.[57] While the Applicant’s expressed intention to involve himself in future counselling is commendable (and tends to show a certain level of rehabilitation), the hypothetical effect of counselling completed in the future is not something that the Tribunal can take into account when assessing his recidivist risk because Direction 90 requires me to consider “evidence of rehabilitation achieved by the time of the decision”.
[56] R1, [56].
[57] See Direction, 8.1.2(2)(b)(ii) of the Direction.
I will now address each of the six specific militative factors identified by the Respondent.
Consistent history of offending
The Respondent validly notes that the Applicant has compiled a consistent history of offending for the period 2015–2020. I have earlier alluded to the extent of his offending with particular reference to his relative youth. Put simply, it is a lengthy history for a young offender to have acquired by the age of only 24 years. The Respondent describes the offending history as “prolific” and, on any reasonable view, in terms of the sheer number of offences he has committed, his offending history cannot be read and construed in any other way.
Previously failed attempts at mental health management and drug rehabilitation
I have recounted previous instances where the Applicant has sought to achieve some level of satisfactory management of his mental health symptomatology and to otherwise try to achieve a satisfactory level of rehabilitation from abusing illicit drugs, all of which have failed. These failures have occurred despite the very dedicated support and sacrifices made by members of his family – primarily his parents – who must now understandably be at the end of their tether with the Applicant. None of these familial relationships have effectively militated against his recidivist risk. Accordingly, despite the plan now propounded by the Applicant to minimise his return to drug abuse, many, if not all, of the elements of that plan have been in place in the past but have done little or nothing to prevent him from returning to offending.
There have also been previous treatment plans and rehabilitation methodologies proposed to him. His history is one of losing the intention and motivation to complete such rehabilitative measures and he has, instead, again surrendered to the negative influences of adverse peer groups and, in turn, returned to offending.
While something is sought to be made by the Applicant about an apparently sizeable gap in his criminal history between December 2017 and May 2019, the stark reality is that the “significant lifestyle stability” that he sought to achieve during this period was, unfortunately, not sustained. His history is one of repeated failures to manage negative impacts on his life such as the loss of employment or the breakdown of a domestic relationship. I am concerned that his failures to properly deal with these impacts in the past do not bode well for his capacity to do so in the future.
Minimisation of offending and blaming others for it
The material demonstrates a tendency in the Applicant to apportion responsibility for his choice to abuse illicit drugs at the foot of his peers and colleagues. In his statement before the Tribunal dated 4 December 2020, the Applicant says “it was all too easy to get into methamphetamines when someone at work offered to give it to me – even when I was trying to get on the straight and narrow, it was my friends and the people I was around that made it so much more difficult.”[58]
[58] G, 135[40].
Similarly, he purports to suggest that a lack of resources or necessary medical services have precluded him from engaging in more meaningful and effective rehabilitation. In the same statement, he said:
“I have cried out for help a few times, but every time I haven’t been able to get in contact with the right services or rehabilitation centres. I’ve found it very difficult to get into the right frame of mind to fix everything.”[59]
The strength of the Applicant’s claimed intention to maintain a drug-free lifestyle
[59] G, 135[44].
I concur with the Respondent’s analysis of the evidence: that is, I am of the view that the evidence is supportive of a finding that the Applicant’s stated intentions to better and more effectively manage his mental health, maintain a drug-free lifestyle and engage in rehabilitation are not as strong and advanced as he has contended.
The abovementioned uncle of the Applicant is actually the brother of his mother. According to the evidence of the Applicant’s mother, there would likely be some kind of resistance or resentment to that uncle taking in the Applicant and affording him any sort of safe haven were the Applicant to be returned to the UK. The Applicant’s mother said the following in her evidence in chief:
“Ms Anderson: Could [the Applicant’s uncle] provide any support to Ashley of any type if he was removed to that country?
Ms Batson: Like I say, he’s only - he hasn’t got kids, he’s - he works - he works at the steelworks, so he works - even as night shifts, he hasn’t really - I mean I haven’t asked - in all fairness, in all honesty I haven’t asked him, I haven’t even told him what’s going on with Ashley because, you know, we’re kind of embarrassed. And I know it’s sad to say, but because we made the decision to take our family away from the UK, my mum and dad followed us, and there’s kind of - sometimes there’s a bit of resentment there, it’s like, “You all think you’re better than England and better than us and you’ve gone off to do your own life and now look what has happened.” I just feel like there would be a bit of, yes, well, you know, “You shouldn’t have left” kind of thing. So I just don’t feel like he would be in a position to say, you know, “I will pick the pieces up now it has all gone wrong for you” and I don’t think he would be able to offer Ashley the support because Ashley will be in no mental state when he got to England.”[124]
[124] Transcript, 84, lines 38–47; 85, lines 1–5.
Reference should also be made to the evidence of the Applicant’s father. To my mind, it is important to any consideration of this third element of Other Consideration (b) for two reasons. First, his evidence serves to dispel any suggestion of a wholesale uprooting of the entire family and its return to the UK to be with the Applicant. Second, there is a hint in the father’s evidence of him travelling back to the UK to help the Applicant re-establish himself there. However, any possibility of this second item becoming a reality is significantly hamstrung due to its very significant financial cost to the Applicant’s parents and its adverse impact on the Applicant’s younger sister, Child J. The Applicant’s father said the following in cross-examination:
“Ms Anderson: Have you considered moving? If Ashley were to be returned to the United Kingdom, I understand that your family are British citizens, would you consider moving back with Ashley?
Mr Batson: It’s just I just don’t know. It’s just so difficult. It’s such a difficult choice. You know, realistically how can I go back? You know, I’ve got my family here, I’ve got my wife, you know, we’re not all going to go back. We just, we came to England - we left England 10 years ago for a reason and we’ve settled. This is our home now. Our daughter’s doing really well, she’s (indistinct) she’s in all sorts of sports now and she’s doing really well, in the State Futsal team. She’s got her circle of friends. We know nobody there, we’ve got no inclination to go back at all as a family to live there. So, you know, I’ve thought about going back and helping him set up but, you know, unfortunately, we’ve not got a lot of spare money, we’ve just bought a new house. Just the flight alone would - we haven’t even got money for the flight alone, let alone how do we go back and help him set up. To get accommodation you’re going to need two, three, or six months’ money upfront, that’s if you can find somewhere. What town do we even go into? You know, my contacts from the town we lived in, you know, a lot of them have moved on and I just, I don’t know. I don’t know how - I’ve no thought, I - it just it would be very difficult to go back and as a family. You know, we’re a family, we’re here now. It’s hard enough that Josh is in Queensland, you know, where it feels a little bit broken like that. But for one to be in Queensland and the other in England, it would just be horrendous for us. Yes, so, sorry I didn’t really answer the question there but, no, I don’t think. I couldn’t. We couldn’t.”[125]
[My underlining]
[125] Transcript, 116, lines 17–40. See also Transcript, 90, lines 37–39 where the Applicant’s mother says “[s]o my husband’s actually contemplating maybe even having to go back to the UK and just be there for him when he gets there as some sort of support, because we don’t know what to do.”
It is next necessary to determine the extent of medical support and economic support the Applicant will have available to him in the UK. I have already found that the UK does have close or similarly resourced publicly available mental health facilities to deal with the Applicant’s disclosed symptomatology. In his oral evidence given in cross-examination, the Applicant’s father referred to the relative equivalence of the British National Health Service (“NHS”) and social security apparatus to their Australian equivalents. He spoke about the ability of the NHS and the social security apparatus to provide the Applicant with (1) medical support; and (2) economic support upon a return to the UK. While the father contended that the NHS is “a lot worse than the Australian system”, he nevertheless conceded that he will have these medical and economic supports available to him:
“Ms Anderson: The final question, it was suggested that he could access the same sorts of medical services and social support that’s available to people in the UK. I’m assuming that’s correct for the moment. Do you agree that that is contingent on Ashley’s willingness to access that support and his motivation to gain assistance to reintegrate into the UK?
Mr G Batson: Yes. Yes, and I mean what you said the support and assistance, well, it’s just like you said, there’s Centrelink, which is the dole. [sic] Like if you can’t get work, there’s NHS system, which is as broken as what - it’s worse - it’s worse - it’s a lot worse than the Australian system as in time. Yes, drug - yes, he’s got to - to maybe help, he’d be just drugs - turn to drugs as a rehabilitation [sic]. It’s probably just as difficult to get - to get help there as what it is here. You know, there’s - there is a lot of drug issues in the UK as well and maybe the basic help would be NHS, yes, Social Security, dole, Centrelink, yes, he’d get that help but that’s not the help he’s going to need. The help he’s going to need there is finding accommodation and getting - and finding a job and trying to integrate into a group of friends, or people, anyone, which is very difficult at 24 when you don’t know anybody, you’ve got nothing - where do you start?”[126]
[126] Transcript, 119, lines 15–31.
I have had regard to the three basic components to this Other Consideration (b). I am of the view that:
(a)the Applicant’s age is not an impediment to his removal. With reference to his physical health, he appears to be a physically fit 24 year old young man who speaks of returning to manual labouring-type work in the building industry. I accept that his mental health symptomatology – to the extent he cannot readily or expeditiously find treatment for it to the same extent he has in Australia – is an impediment to his return and successful re-establishment in the UK.
(b)I am of the view that there are little or no substantial language or cultural barriers impeding the Applicant’s return to the UK. The UK and Australia share the same language and, broadly speaking, the same cultural values.
(c)The Applicant will probably experience logistical difficulty in accessing medical and economic support in the UK. As against that, he will have available to him whatever assistance can be sought and obtained from the NHS and the British equivalent of Centrelink in terms of economic support. In this way, he will have access to those things in the context of what is generally available to other citizens of that country. The Applicant’s likely difficulties in accessing social, health and economic support, while present, are not necessarily substantial. Perhaps the most significant impediment for this Applicant is his relative absence of social connectivity to a support-base or safe-haven in the UK. There are, according to his mother’s evidence, certain intra-family prejudices and ill-feelings that may impede the Applicant’s capacity to immediately find a safe place to reside. As against that, there is the evidence of the father which points to a possibility of him going to the UK with the Applicant to help him settle in there.
Overall, having regard to the relevant componentry of paragraph 9.2(1) of the Direction, I am of the view that this Other Consideration (b) is of strong, but not determinative weight, in favour of the Applicant such that his visa status to remain in Australia should be restored to him.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In the SFIC filed on his behalf, there is confirmation that this Other Consideration (c) is of no relevance to this case.[127] In its SFIC, the Respondent entertains a discussion about possible adverse weight against the Applicant being allocated to this Other Consideration. The contention runs along the lines that the victims of the Applicant’s property offending and domestic violence offending have been his parents and/or his sister. There is a simultaneous acknowledgment from the Respondent that “[…] the Applicant’s parents and sister have expressed that they would like the Applicant to stay in Australia.”[128]
[127] A1, [72].
[128] R2, [85].
In its final analysis, the Respondent contends that “neutral weight should be given to this [Other] consideration”.[129] I concur with that contention. Accordingly, the only safe finding is that a neutral level of weight is allocable to this Other Consideration.
[129] R2, [88].
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
Before doing that, I must make note of one of the legal arguments ventilated before me. The Applicant submitted that “[t]he Tribunal is required to engage with the human consequences of a non-revocation decision upon relevant family members affected by the decision.”[130] The Applicant cites the decision of a single judge of the Federal Court of Australia in JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“JKPM”) in support of this proposition.[131] The Applicant also relies on a passage in the single judge decision of the Federal Court of Australia in Tabag v Minister for Immigration and Ethnic Affairs (“Tabag”):
“The probable harmful effects of deportation on “innocent members of the … immediate family” of a person exposed to the exercise of the power conferred by s 12 [(a precursor to s 501 of the Act)] would always be, as I suppose, worthy of substantial weight in considering whether to exercise the power.”[132]
[130] See A1, [80].
[131] [2020] FCA 1293.
[132] (1982) 70 FLR 61.
As I understood the Applicant’s submission, it is argued that this Other Consideration must be given “substantial weight” because of what was said in JKPM and Tabag.
I will first briefly deal with Tabag. It pre-dates the power of the Minister to make directions under s 499 of the Act; the powers in ss 501–501CA of the Act; and their related provisions. Ministerial Direction 90 now sets out a non-exhaustive list of Primary and Other Considerations. The Primary Considerations are “generally” to be given greater weight than Other Considerations.[133] One of those Other Considerations directs decision-makers to consider the impact on members of the Applicant’s immediate family.[134] Respectfully, it is not clear to what the reference to Tabag adds to the Applicant’s case.
[133] See Direction, paragraph 7(2).
[134] See Direction, paragraph 9.4.1(1).
The portion of JKPM which the Applicant refers to is of more importance. JKPM refers to Hands v Minister for Immigration and Border Protection (2018) 267 FCR 628. In that case, Allsop CJ (Markovic J and Steward J, as his Honour then was, concurring) noted:
“Public power, the source of which is in statute, must conform to the requirements of its statutory source and to the limitations imposed by the requirement of legality. Legality in this context takes its form and shape from the terms, scope and policy of the statute and fundamental values anchored in the common law […] The consequences of these considerations are that where decisions might have devastating consequences visited upon people, the obligation of real consideration of the circumstances of the people affected must be approached confronting what is being done to people. This obligation and the expression of its performance is not a place for decisional checklists or formulaic expression. Mechanical formulaic expression and pre-digested shorthand expressions may hide a lack of the necessary reflection upon the whole consideration of the human consequences involved. Genuine consideration of the human consequences demands honest confrontation of what is being done to people. Such considerations do not detract from, indeed they reinforce, the recognition, in an assessment of legality, that those entrusted with such responsibility be given the freedom of lawful decision-making required by Parliament.”
[Internal citations omitted; my emphasis and underlining]
None of JKPM, Hands, Tabag or the cases cited in each alter the level of weight that a decision-maker should allocate to the impact on people affected by a decision under s 501. These cases are really only authority for the proposition that s 501 decision-makers must “honestly confront” the human consequences of a s 501 decision without using “decisional checklists or formulaic expression”. But that is what the decision-maker is required to do as part of the active intellectual process which I must engage in as a decision-maker.
There are two factors which I must assess in determining the level of weight to allocate to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.
Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s immediate family in Australia comprise the following:
·his mother;
·his father;
·his brother; and
·his sister (Child J).
The Applicant’s mother is obviously and deeply troubled by the Applicant’s possible removal to the UK. This troubled state derives from two principal sources. First, the Applicant’s mother is concerned about the Applicant self-harming upon any removal to the UK. She said this in her evidence in chief:
“Mrs Batson: Because to him he has put everything into staying in this country, he has got nothing over there, and he just can’t imagine going back there and he has actually told my husband that - he has actually said to my husband that, “If I have - if I can’t - I will just kill myself” because - he has actually said it. And yes.
Ms White: Sorry to upset you, Mrs Batson, but I have to ask, do you think that there is genuine concern that he could be a risk to himself in that country?
Ms Batson: Yes. Yes. He did - when he gets really down, like as a kid, I’ve witnessed him try and do it here, so I’ve got no reason to think that he wouldn’t - yes, I just think that everything that he’s got at the moment, that he’s got to live for, we would hope - he is going to have nothing.”[135]
[135] Transcript, 85, lines 10–25.
Second, the Applicant’s mother is deeply troubled by the impact any removal of the Applicant will have on his two siblings, in particular, his younger sister, Child J. The following passage from the mother’s evidence in chief is particularly compelling:
“Ms White: And if in fact the opposite were to occur, if he was deported, would you think that would have any kind of negative impact on [Child J]?
Mrs Batson: I mean a year of not seeing someone it’s bad, but, you know, but we would probably never see Ashley again. So yes, it would definitely - they wouldn’t have a relationship because [Child J] is 14 now. In a couple of years she would be - you know, she grows up, a lot will be happening in her life, her memories of her brother will diminish, she won’t have had any new memories to make with him.”[136]
[136] Transcript, 84, 17–23.
There is analogous evidence from the Applicant’s father. He speaks of the impact of any removal of the Applicant upon the broader family thus:
“If Ashley is deported back to England, it will affect all our family and jeopardise all our lives which we are currently enjoying and have worked hard to build in Australia. Soon after our arrival in Australia (Myself, Tina, Ashley, Joshua, and [Child J]}, my wife's sister Gemma, came to join us and shortly afterwards my mother and father-in-law followed. Gemma is also an Australian Citizen and has 2 young daughters who were born in Australia. My in laws own their own property and call Australia their home. They are currently on a bridging visa, awaiting permanent residency since their application under the aged parent visa. The current processing time of onshore aged parent visas are 10 years plus hence the need for the bridging visa. If Ashley were to be deported his grandparents would be devastated, they came here to keep our family together and there is no-one in England left to support him.”[137]
[137] A3, 13.
Further, the Applicant’s father identified the “devastating” effect the Applicant’s removal would have on his brother, Josh. There is no other way to read and understand the father’s evidence in this regard. He said this in cross-examination:
“If Ashley doesn’t come to Josh it’s going to absolutely - it’s going to devastate us all, but particularly it’s going to devastate Josh if he doesn’t come. Josh is banking on this. This is going to be - this is Josh’s life. He’s totally banking on Ashley coming back and helping Ashley, getting his big brother back on his feet and helping him out. It’s not going to disrupt Josh. It will disrupt Josh massively (indistinct) it will destroy Josh. I just go back on that as well. Josh was prepared to sell everything as well. When we didn’t think we had enough money for the lawyer fees Josh was prepared to sell his motorbike, his boat, everything to help his brother out. He was prepared to give up everything for him. You know, that’s how committed he is to keeping his brother here.”[138]
[138] Transcript, 110, lines 20–30.
Similar to the evidence of his parents, the Applicant’s brother also spoke of the devastation that would be experienced by the immediate and extended family upon the Applicant’s removal:
“If Ashley were deported, there are many people it would negatively impact, but it would mainly impact my younger sister, mother, father, his partner and I.
I feel as if it would break all of our hearts and life would never be the same to not have him here. He would feel the same too. We all came here as a family and my parents are devastated it has come to this. Ashley and his partner would most likely break up due to the fact England is the other side of the world and the Coronavirus travel restrictions in place. I feel as we would never be able to see Ashley ever again and it is the worst feeling in the world because we don 't have anyone back in England that we know.”[139]
[139] A3, 3.
In his oral evidence, the Applicant’s brother spoke of his “very close” relationship with the Applicant and how he regards him as his “best friend”:
“Ms White: Now, Mr Batson, how close are you with your brother, Ashley?
Mr J Batson: I’m very close with him, him being my only brother, and us two the only two boys in our family, but - apart from my dad of course. But, yes, he’s been my best friend since I can remember, and I am lucky enough to be able to talk to him every day in the situation he is in now.”[140]
[140] Transcript, 37, lines 42–46.
Similar to his parents, the Applicant’s brother spoke of the impact of the Applicant’s removal on the family with particular reference to himself and Child J:
“Ms Anderson: What impact would it have on your family if his deportation occurs?
Mr J Batson: It would have a terrible impact on my family. Because mum and dad brought us over here, I think it would hurt them terribly a lot, you know, they’re just lost, they really don’t know what to do, and they just want to see the best for Ashley and see him doing good, and they don’t - you know, it hurts to see this and there’s many good opportunities out there for him - for him - if - you know. Yes. I think it will affect my little sister a lot as well, being young.
Ms White: Is Ashley close with her?
Mr J Batson: I believe so, yes. Yes. They’re very close. More so me (indistinct) her, maybe him being the older one.”[141]
[141] Transcript, 45, lines 20–29.
I have earlier recounted the written evidence of Child J. Understandably, she did not give oral evidence at the hearing. In her written statement she starts from the basic premise that “I don’t want Ashley sent back to England. I am worried that if he does, we will have to as [well] to help him out.”[142] She is cognisant of a reality that her time with the Applicant will be severely curtailed if he is returned to England. She is troubled by that reality and notes that “he normally always spends Christmas with us if he was sent to a different country I can’t imagine him never being able to come visit.”[143] [Errors in original]. For a child of only 14 years of age, she is remarkably forward-looking and already has developed a sense of future harm/detriment in the event of the Applicant’s removal. She said “when I get older and if I have kids I would like them to meet their uncle Ashley.”[144]
[142] A3, 15.
[143] A3, 16.
[144] A3, 16.
I am mindful that I have already taken Child J’s interests into account as part of my determination of weight allocable to Primary Consideration 3. I mention her evidence here if, for no other reason, than to relay to the reader the fact that Child J’s evidence is corroborative of what the Applicant’s mother, father and adult brother have to say about the impacts upon each of them in the event of the Applicant’s removal.
The impacts on the Applicant’s mother, father and adult brother will be significant in the event the Applicant is not allowed to remain in Australia. Despite his history of offending – especially against his parents and his younger sister – they nevertheless continue to love him and remain very open to the prospect of him remaining in Australia. I am of the view that the impact on the Applicant’s immediate family upon his removal militates strongly, but not determinatively, in favour of the restoration of his visa status to remain here.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long the Applicant has resided in Australia and whether he came here as a young child. There are two tempering sub-elements to be taken into account in the determination of weight allocable to this second component of paragraph 9.4.1. The Applicant arrived in Australia in March 2010 as a 13 year old. He has resided here for about a decade. I have noted that he has offending history as a juvenile from as early as November 2011.[145] His offending as an adult is recorded to have commenced in 2015.[146] I therefore find that the Applicant began offending “soon after arriving in Australia”. On that basis, I temper and limit any weight allocable to him pursuant to this component of 9.4.1(2)(a)(i).
[145] R2, 8.
[146] G, 40.
The next enquiry occurs pursuant to paragraph 9.4.1(2)(a)(ii) of the Direction and is involved with ascertaining the extent to which the Applicant can be said to have positively contributed to the Australian community. In his PCF, the Applicant recounts a history of employment in Australia from 2013–2019 in the various realms of (1) apprenticeship – bricklaying; (2) labourer; (3) asbestos removal; (4) roofer; and (5) landscaping.[147]
[147] G, 103.
There are two relevant work-related references in the material. The first of those is from a Mr Ken Wellstead who mentions that the Applicant spent a three week training period with him “for a few labouring jobs but could not get a start due to no experience.”[148] Mr Wellstead, in his undated statement, says the Applicant returned to work with him a few years later, but that the Applicant moved on because “work dried up”. Mr Wellstead says he would have “no hesitation in taking him back on if the workload was there and would recommend him to any one as a good worker”.
[148] G, 128.
There is a second work reference from a Mr Mark Woolridge who in his undated letter of reference says that he was “impressed” with the Applicant’s “determination to come to grips with the physical challenge of the job and was offered an apprenticeship in bricklaying.”[149] Mr Wooldridge felt “certain that [the Applicant] would be able to excel […]” in a trade related to the building industry.[150]
[149] G, 129.
[150] G, 129.
In terms of contributions to the community, in his PCF, the Applicant mentions “Volunteering at Salvos op shop – lifting and moving furniture.”[151] In closing submissions made on the Applicant’s behalf, the Applicant’s representative spoke of him being “equipped to engage in employment if released, and of course there’s the live offer of employment from Robin’s Building Enterprises”[152] A further contention was made along these lines:
“The point there is that while he may not have made very significant contributions to the community in the past, I think it is reasonable to infer he is in a position to make contributions in future.”[153]
[151] G, 103.
[152] Transcript, 155, line 46–47; 156, line 1. The “offer of employment” referred to is proved by an employment contract the Applicant tendered: See A3, 17–81.
[153] Transcript, 156, lines 1–3.
Based on the Applicant’s level of work contributions to the Australian community, I am of the view (and I find) that a strong, but not determinative, measure of weight is allocable to him pursuant to paragraph 9.4.1(2)(a) of the Direction.
3. Strength, nature and duration of “other ties” – family and other social links
The relevant people falling within this category of paragraph 9.4.1(2)(b) of the Direction comprise the Applicant’s:
·maternal grandfather;
·maternal grandmother; and
·maternal aunt.
The Applicant’s maternal grandparents have provided a joint statement made on 28 May 2021 which appears in the material.[154] These grandparents have, like the Applicant’s family, relocated to Australia from England. They maintain a close relationship with their children and grandchildren. Rather than directly speak about adverse impacts either or both of them will experience upon the Applicant’s removal, they express those adverse impacts in terms of the pain they feel for what will befall the Applicant’s family in the event of his removal. While not called to give oral evidence at the hearing, their joint statement says the following things:
“He is always caring and fun to be around, he has a good relationship with his younger brother, sister and nieces. He is just a troubled boy who needs to break free of the drug habit he has had for a long time now. We truly believe that if Ashley is to quit the drugs, he would not commit another offence.
[…]
We are worried about his mental health should he be deported, he is at risk of self-harm as he has low self-esteem and coping skills.
[…]
If Ashley gets deported, we are unsure what he will do, or if our Daughter and Son in Law will feel the need to return also to support him. This would have a detrimental effect on their daughter [Child J] who is doing well at school and is in a soccer team. This is a terrible time on all of us”[155]
[154] A3, 14.
[155] A3, 14.
As best as I understood the material, there is no written statement from the abovementioned maternal aunt. She was not called to give oral evidence at the hearing. Therefore, with reference to paragraph 9.4.1(2)(b) of the Direction, I am of the view (and I find) that the strength, nature and duration of the Applicant’s links with his maternal grandparents is of strong, but not determinative, weight in favour of his visa status to remain in Australia being restored to him.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
There is no reference to this component of Other Consideration (d) in the SFIC filed on behalf of the Applicant. Neither party otherwise ventilated this component of Other Consideration (d). I am not satisfied that removal of the Applicant from Australia, despite his work history in Australia, would significantly compromise delivery of a major project or an important service in Australia. Accordingly, this second part of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration 4: links to the Australian community
I refer firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia). Having regard to the three specific elements this first part of Other Consideration 4, I am of the view (and I find) the totality of the evidence points to allocation of strong, but not determinative weight, in favour of the Applicant. As mentioned, the second part of this Other Consideration (impact on Australian business interests) is not relevant to determination of the instant application. Overall the Applicant’s links to the Australian community weigh strongly, but not determinatively, in favour of a finding that the Applicant’s visa should be restored to him.
A further “Other Consideration” propounded by the Applicant
In the SFIC filed on his behalf, the Tribunal is urged to take into account what is propounded to be a further Other Consideration. The contention is put thus:
“The legal consequence that will flow from a decision not to revoke the mandatory cancellation is that Mr Batson would be forever excluded from Australia. That is because every visa for which he could conceivably apply would be subject to cl 5001(c) of Schedule 5 to the Migration Regulations 1994. This would have the effect of precluding him from obtaining any such visa.”[156]
[156] A1, [15].
Two responses can be made to this contention. First, the question of whether or not the Applicant is precluded from acquiring a visa entitling him to re-enter Australia is not a mandatory consideration contained in the Direction. Second, in any event, obiter comments of Snaden J in DLJ18 v Minister for Home Affairs make it plain that such considerations are not a pre-requisite to the exercise of the Tribunal’s power under s 501CA(4) of the Act:
“There is nothing about the subject matter, scope and purpose of the Act that requires, by implication, that the valid exercise of power under s 501CA(4) be conditioned upon consideration of the legal consequences that arise remotely, theoretically or contingently therefrom (assuming that such consequences might fairly be described as “consequences” at all).”[157]
[157] (2019) 273 FCR 66, [86] (Snaden J), [15] (Flick J).
Accordingly, I do not propose to allocate weight to this contended Other Consideration.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1, 2 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: strong, but not determinative, weight in favour of the Applicant;
(c)impact on victims: neutral; and
(d)links to the Australian community: strong, but not determinative, weight in favour of the Applicant.
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 weighs strongly in favour of non-revocation;
·Primary Consideration 2 weighs moderately in favour of non-revocation;
·Primary Consideration 3 weighs moderately, but not determinatively, in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (b) and (d), even when combined with the moderate, but not determinative, weight I have attributed to Primary Consideration 3, outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1, 2 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
The decision under review is affirmed.
I certify that the preceding 304 (three-hundred and four) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...............................[sgd]....................................
Associate
Dated: 9 July 2021
Date(s) of hearing: 22 & 23 June 2021 Advocate for the Applicant: Ms Caitlin White, Associate Solicitors for the Applicant: Fisher Dore Lawyers Advocate for the Respondent: Ms Hannah Anderson, Lawyer Solicitors for the Respondent: Clayton Utz ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (paged 1-238)
-
27 April 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (17 pages)
25 May 2021
25 May 2021
A2
Statutory Declaration of Rhyannah Woodham
(3 pages)
3 June 2021
3 June 2021
A3
Applicant’s Further Evidence Bundle
(paged 1-95)
-
3 June 2021
A4
Report of Professor James Freeman
(paged 1-9)
11 June 2021
15 June 2021
A5
Applicant’s supplementary statement (5 pages) covering attachments:
· A: BITA “Request Form” (1 page); and
· B: Relapse Prevention Plan (8 pages).
-
17 June 2021
A6
Applicant’s Reply (6 pages)
17 June 2021
17 June 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (25 pages)
15 June 2021
15 June 2021
R2
Respondent’s Material Produced Under Summons (paged 1–752)
-
15 June 2021
R3
Respondent’s Further Evidence Bundle
(paged 1–56)-
16 June 2021
ANNEXURE B
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2021/2271
General Division )
Re: Ashley Batson
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentTRIBUNAL: Senior Member Theodore Tavoularis
DATE: 29 June 2021
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 6 April 2021 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
[sgd] Senior Member Theodore Tavoularis
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