BFQX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3406 (27 September 2022)
Division:GENERAL DIVISION
File Number(s): 2022/5699
Re:BFQX
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 27 September 2022
Date of Written Reasons: 7 October 2022
Place:Brisbane
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 5 July 2022, to not revoke the mandatory cancellation of the Applicant’s visa.
.......................[SGD]..................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of a mandatory cancellation of a Class XA Protection visa – where Applicant does not pass the character test – where there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – non-refoulment obligation (People’s Republic of China) – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ali v Minister for Home Affairs [2020] FCAFC 109FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Home Affairs v Omar (2019) FCR 589
M1/2021 v MHA HCA [2022] 17
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No.79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Table of Contents
Decision
REASONS FOR DECISION
Introduction and background
Legislative framework
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
The nature and seriousness of the non-citizen’s conduct to date
Overview of the Applicant’s offending – the stabbing incident
Overview of the Applicant’s offending – supply of significant amounts of methylamphetamine
Overview of the Applicant’s offending – offending after receipt of formal warning
Overview of the Applicant’s offending – kidnapping offence
Release from custody, cancellation of visa, grant of protection visa
Overview of the Applicant’s offending – involvement in very high-level drug trafficking
Overview of Applicant’s offending history – concessions rightfully made by his representative
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
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 (paragraph 8.1.2(2)(b))
Summary of the evidence about risk – claimed protective factors against recidivism
The Evidence of Dr Paul Pusey – Clinical and Forensic Psychologist
Summary of findings around recidivist risk
Conclusion: Primary Consideration 1
Primary consideration 2: family violence
Primary consideration 3: the best interests of minor children in australia
Primary consideration 4: expectations of the australian community
Conclusion: Primary Consideration 4
Other considerations
Other Consideration (a): International non-refoulement obligations
Applicable Law
A Summary of the Applicant’s Claims
Findings and allocation of weight to Other Consideration (a)
Other Consideration (b): Extent of impediments if removed
Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) 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
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australia community
Further Other Consideration (e): Prolonged or Indefinite Detention
Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
DECISION
REASONS FOR DECISION
SM Tavoularis
7 October 2022
introduction and background
BFQX (‘the Applicant’) is a 37-year-old male, born in Shanghai, China in December 1984. On 14 March 1999, he arrived in Australia as the holder of a UH subclass 450-Resolution of Status (Temporary) visa. His movement history[1] in and out of Australia then proceeds thus:
·Departs Australia on 27 December 1999;
·Returns to Australia on 21 February 2000;
·Departs Australia on 16 September 2002;
·Returns to Australia on 21 October 2002;
·Departs Australia on 6 April 2003;
·Returns to Australia on 20 April 2003.
[1] R1, pp 246-247.
He has not departed Australia since 20 April 2003. During the period November 2003 to October 2015, the Applicant has compiled an utterly appalling and extremely serious offending history. I will deal with the nature of the offending later in these reasons but it suffices to say that his offending in this country has seen the imposition of something in the order of 23 years of cumulative head custodial terms. It is a history involving the commission of some six offences that were dealt with at seven separate sentencing episodes. There are two appeal events apparent from the history. The first of those quashed the head custodial sentence of four years and substituted it with a term of six years. The second involved the dismissal of an application for leave to appeal.
The Applicant’s visa history culminating in the instant proceeding can be summarised thus:
·on 18 November 2010, the Applicant’s abovementioned UH subclass 450-Resolution of Status (Temporary) visa was cancelled pursuant to section 501(2) of the Migration Act (1958) (Cth) (‘the Act’). He was unsuccessful in setting aside that cancellation decision;
·on 23 October 2012, he lodged an application for a Protection (Class XA) visa;
·on 9 January 2013 the Department of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (‘the Minister’ or ‘the Respondent’) provides the Applicant with a Notification of refusal of application for Protection (Class XA) visa;
·on 8 October 2013, the Applicant is granted a Protection (Class XA) visa;
·on 8 August 2019, the Respondent’s Department issued the Applicant with a notice of visa cancellation pursuant to section 501(3A) of the Act; and
·on 5 July 2022, the Respondent’s Department provides the Applicant with a notification of a decision not to revoke the cancellation of the Protection (Class XA) visa (‘the visa’); and
·on 12 July 2022, the Applicant sought review of the immediately preceding refusal decision made on 5 July 2022.
The Hearing of this Application proceeded before me, by videoconference, on 8 and 9 September 2022. The Hearing received both oral and written evidence. The two witnesses providing oral evidence comprised the Applicant and the clinical and forensic psychologist, Dr Paul Pusey. The written material was reduced to an agreed Exhibit List, a true copy of which is attached to these Reasons and marked ‘Annexure A’. At the commencement of the Hearing, I sought and obtained the parties’ approval to this Exhibit List.[2]
[2] See generally, Transcript, p 2, lines 14-47; p 3, lines 1-7.
legislative framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
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.
I am satisfied that the Applicant made the 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:[3]
‘…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…’[4]
[3] [2018] FCAFC 151.
[4] Ibid, para [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, para [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
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 defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
There is a ready concession in the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) that he does not pass the character test.[5] This concession parallels a contention expressed in very similar terms appearing in the Respondent’s SFIC.[6] I am therefore satisfied (and I find) that the Applicant has a, substantial criminal record. Accordingly, he does not pass the character test. He therefore cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[5] A1, p 3, paras [17].
[6] R2, p 6, para [8].
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 (“Direction” or “Direction 90”) has application.[7]
[7] Direction No 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
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]
[8] Direction No 90, para [6]. See also Direction, para [4(1)] which provides that a, “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’ by which I must be guided 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 No 90, para [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] Ibid, para [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.’
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 consider:
(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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
Overview of the Applicant’s offending – the stabbing incident
The Applicant’s history of offending can – mainly for ease of comprehension and ease of reference – be referred to in terms of specific ‘incidents’. The first of those is the stabbing incident that occurred in 2002 at which time the Applicant had not yet attained the age of majority of 18 years. The facts of this offending need not be recounted in detail here. It suffices to say that the Applicant was aware of an argument going on between other people. He went to that argument armed with a knife and was fully aware of the purpose for which that knife would be deployed. At the direction of another person the Applicant did, with that knife, stab another person twice in the back and once in the lower abdomen.
Such conduct can only be construed as extremely serious offending. It is so for a number of reasons. The Applicant arrived at the scene of the crime duly armed; he was under the influence of methylamphetamine at the scene of the crime and; he was prepared to follow the direction of others in the infliction of very serious and dangerous harm to a victim by using the knife that he (the Applicant) had brought to the crime scene.
Overview of the Applicant’s offending – supply of significant amounts of methylamphetamine
The second incident refers to the Applicant’s initial engagement with very significant amounts of methylamphetamine. Once again, his conduct has not occurred by chance. It cannot be construed as, for example, an unfortunate, ill-considered and spontaneous reaction to a given situation. On the contrary, the Applicant knowingly and voluntarily attended a premise which he knew to be a place used by those involved in the illicit drug trade. After leaving that house he was apprehended by police and was found to be in possession of nearly a kilogram of methylamphetamine.
Once again, on any objective view, this must be regarded as extremely serious offending. This is not conduct referable to small-time dealings by the Applicant. Otherwise, a much smaller amount of drugs would have been in his possession. It is not an unusual or unreasonable inference for the Tribunal to draw in terms of being apprehended with almost a kilogram of methylamphetamine must surely indicate that the Applicant was knowingly involved in a much broader and significant criminal enterprise. This was duly recognised by the Criminal Appeal Court which quashed the first-instance head custody term of four years and, in its place, ordered a head custodial term of six years.
As validly submitted by the Respondent, this extremely serious offence and significant sentence was the Applicant’s first as an adult. To be clear, his first offence as an adult involved the imposition of a head custodial term of six years, with a non-parole period of three years.
Overview of the Applicant’s offending – offending after receipt of formal warning
The third incident occurred shortly after his release from serving the respective sentences for (1) the abovementioned stabbing incident and (2), the abovementioned incident involving him being found in possession of almost one kilogram of methylamphetamine. He was released back into the community in or about the middle part of 2007 and in less than one calendar year had relapsed into extremely serious offending. It is important to note that during the intervening period between completion of serving these sentences until commission of this next third offence, the nature and extent of the Applicant’s conduct must have come to the attention of the Respondent. This is because the Minister issued the Applicant with a formal warning about the possible consequences his further offending may have on his visa status to remain here.
Overview of the Applicant’s offending – kidnapping offence
The Applicant took nothing from this warning. The next incident which has been referred to in the submissions can be described as ‘the kidnaping incident’. This is the conduct described in the criminal history as ‘Take/detain person in company w/i obtain advantage’. While at first blush opaque, the evidence around this offending bears the obvious hallmarks of a henchman knowingly involved in the prosecution of a criminal enterprise. The Applicant was clearly known to a group of individuals in an apartment and he knew they were involved in the illicit drug trade. They told him that a particular individual (the victim) owed money to the criminal enterprise conduct by these people. For the purposes of ‘squaring the ledger’ with the individual, the Applicant was instructed to personally attend upon the victim and to peacefully bring him to the group in the apartment.
I say ‘peacefully’ because the victim was apparently known to the Applicant and it was thought he would not resist the Applicant’s request because the Applicant was known to him. In other words, both the Applicant and those instructing him knew the victim would more likely yield to a request from the Applicant rather than from someone the victim did not know either very well or at all.
The position taken by the Applicant in his evidence is that he was somehow taken by surprise in as much as he thought he was bringing the victim to little more than a discussion about how to resolve the issue around the drug debt and that they were otherwise going to resolve things in some kind of amicable and commercial way. This evidence is fanciful and must be rejected for a couple of reasons.
First, if the discussion about the drug debt was to be resolved in amicable and commercial terms, there would have been no need for the Applicant’s criminal gang colleagues to use him to lure the victim into a mature and sensible discussion. The Applicant’s services would have been unnecessary because the victim could quite easily make his own way to such an amicable meeting.
Second, it is verging on the absurd for the Applicant to tell this Tribunal that he was involved with a group of people in the trafficking of very significant amounts of methylamphetamine and correspondingly serious amounts of money, yet the conduct of those individuals in seeking to resolve the debt issue with the victim, took the Applicant by surprise and that it was otherwise something that he was otherwise not expecting. The more likely explanation for this conduct is to be found in the sentencing remarks of the learned Judge, His Honour Judge Hughes who sentenced the Applicant. After describing him as a ‘henchman’, his Honour noted the Applicant ‘…turned on his friend…a friend who he has known for six to eight years, apparently and led him into this extortion event that occurred at Campsie’.[11]
[11] R1, p58.
This betrayal resulted in the victim suffering very significant physical harm at the hands of the Applicant’s colleagues. The sentencing remarks say the following about what was done to the Victim:
‘A short time later a male described as being a westerner, attended the unit. When this person came in, [Victim’s name redacted] further feared for his safety, causing him to stand up. This man had a brief conversation with [another member of the group – name redacted] and then approached [the Victim], grabbing around the neck. This man then used a short knife to cut [the Victim]’s left ear causing excessive blood to come from the wound. Shortly after this when other threats were mentioned, [the Victim] was allowed to freely leave the location.’[12]
[12] Ibid, p56-57.
There seems to little to cavil with this Tribunal’s willing agreement with the sentencing remarks of Judge Hughes who, in describing the nature and seriousness of the Applicant’s offending said the following:
‘The crime itself, this extortion and kidnapping is a horrific crime in my opinion, and Parliament agrees, making the penalties a maximum of twenty years. It puts an individual in fear of his life or maybe that is so, but in this case it does, to extort money, and if he does not, then he was told in no uncertain terms that personal injury could occur to him. So it is a threat that hangs over until terms of the extortion are met, and even so, once the person has acceded to the matters of extortion, there is no reason why that should stop until the person who is extorted is completely out of any assets at all. It has that potential, so it is a very serious crime and the legislation says so.’[13]
[13] Ibid, p60.
Judge Hughes also took into account the fact that the Applicant was on conditional liberty when he committed this offence. His Honour noted:
‘The Crown has drawn my attention to the fact that at the time of the offence, [the Applicant] was on conditional liberty and indeed Mr Hancock has pointed out, this young man, he is twenty-four now, since the age of eighteen and a half when he first went into custody, he has only been out on liberty for eight months. That is a terrible thing to think of in the six years to date, over six years to date, he has only been at liberty for eight months. This is a consistent record of criminality.’[14]
[14] R1, p57.
Release from custody, cancellation of visa, grant of protection visa
Upon completion of this sentence and release from prison in 2010 what then befell the Applicant was that his then-held UH subclass 450-Resolution of Status (Temporary) visa was cancelled. He successfully challenged that cancellation decision. In turn, the initial unsuccessful outcome (i.e in this Tribunal) for the Applicant was set aside by the Federal Court and remitted to this Tribunal. That particular remittal hearing proceeded before SM Toohey of this Tribunal in January 2012. The Tribunal affirmed the original cancellation decision on the basis of ‘…the need for protection of the Australia community from the risk from serious harm that [the Applicant] would represent if he remains in Australia’.[15]
[15] R3, p57, para [74].
Following a further period in immigration detention, the Applicant eventually made an application for a protection visa citing his Catholic religious beliefs as a protection characteristic pursuant to the applicable Refugee Convention. There followed an initial refusal of that protection visa, but that refusal decision was set aside by this Tribunal and, in October 2013, the Applicant was eventually granted the Protection (Class XA) visa which is the visa sought by the Applicant via this application.[16]
[16] In paragraph [3] of these reasons I have allocated the nomenclature of ‘the visa’ in paragraph [3] to this Protection (Class XA) visa.
Overview of the Applicant’s offending – involvement in very high-level drug trafficking
The Applicant then returned to the Australian community consequent upon the grant of the visa to him. He did not desist from offending. On the contrary, the offending escalated in severity and seriousness and developed into quite high-level drug trafficking activity. The Applicant’s return to such offending occurred barely four months after the grant of the visa to him. He remained addicted to illicit drugs at this time and by February 2014 he was again very deeply involved in the illicit drug trade. In the first three-six months of 2014, the Applicant became involved in the supply of an extraordinary amount of methylamphetamine. The factual circumstances around this extremely serious offending were described in quite logical detail (if I may respectfully so observe) by His Honour Acting Judge Hosking:[17]
[17] District Court of NSW, Criminal Jurisdiction.
‘Between 5 February 2014 and 11 April 2014 the offender supplied various amounts of methylamphetamine he obtained from [Associate A] to undercover operatives using [Associate B] to carry out the actual deliveries. There were the following transactions:
On 5 February 2014 the offender supplied through [Associate B] one ounce, that is to say 27.9 grams of methylamphetamine to an undercover operative for $7,500 at Croydon Park.
On 5 March 2014 there was the same transaction but this time involving five ounces of methylamphetamine which [Associate B] obtained from the offender and which he exchanged with an undercover operative for $36,000.
On 26 March 2014 there was a further supply by [the Applicant] and then [Associate B] for $36,000.
In this instance, unlike the earlier ones the facts do not make any reference to [the Applicant] previously meeting with [Associate A] and in this instance it is said that [the Applicant] took that particular methylamphetamine from his own premises, a unit in Campsie, he may have obtained previously from [Associate A], the facts do not reveal that.
On 8 April 2014 there was a negotiation for the supple via [Associate B] and the offender to an undercover operative for 10 ounces of methylamphetamine for $6,900. [Associate B] introduced the undercover operative and the offender and what in fact happened, according to the statement of facts was that [the Applicant] was about to supply only eight ounces of that agreed amount and a further 11 grams. On my understanding of the facts the remaining agreed amount does not appear to have been supplied.
On 11 April 2014 [the Applicant] discussed with an undercover operative the possibility for further supplies to the undercover operative. The undercover operative told [the Applicant] that he was interested in obtaining two kilograms of methylamphetamine and the offender said that he could source one kilogram and two kilograms next time. A price for one kilogram of $180,000 was discussed.
[The Applicant] and the undercover operative discussed the possible locations for the transaction, the offender expressed a preference for the deal to take place indoors as he said he in effect he did not want to be seen in the street.
On 16 April 2014 a further meeting took place between the offender [Associate B] and two undercover operatives at the Krispy Kreme premises at Mascot. It was there agreed that the offender and [Associate B] would supply two kilograms to the undercover operatives, the $360,000 and that supply was to take place at Lilyfield. That afternoon the police surveillance showed the offender again to visit [Associate A] residential premises at Campsie.
At about 3.35pm on that date [Associate B] arrived by taxi at Lilyfield and me [sic] the two undercover operatives who were waiting in their vehicle. [Associate B] told the undercover operatives that the offender wanted the exchange done not there at Lilyfield but at Bunnings at Ashfield.
The undercover operatives said they were not prepared to change the location and they showed [Associate B] the $360,000 in cash. [Associate B] asked of the undercover operatives whether they trusted him to take the bag of money away. They replied in the negative. [Associate B] then called the offender and arranged to meet him.
Paragraph 75 to 81 of the agreed facts then read in this way:
“[75][18] At about 4.17pm [Associate B] returned to the undercover operative’s vehicle and got in. [Associate B] indicated that [the Applicant] had ‘decided to come down’. They discussed arrangements with the money, confirming a total price of $360,000 where [20 thousand] was taken out for [Associate B] to keep for the three participants in the transaction.
[76] [Associate B] then left the vehicle and returned shortly afterwards with [the Applicant]. Bot [sic] got into the undercover operative’s vehicle and had a short conversation. [The Applicant] then got out of the vehicle and walked away while [Associate B] remained.
[77] A black Mazda registration number given then pulled up in the parking space next to the undercover operative’s vehicle. [The Applicant] got out of the passenger’s side. The driver [Associate C] So remained in the vehicle.
[78] [The Applicant] got into the undercover operative’s vehicle, he and both undercover operatives then got out. One of the undercover operatives got in the front passenger seat of the Mazda while the other undercover operative and [the Applicant] went to the driver’s side window.
[79] After a short conversation with [the Applicant], [Associate C] handed the undercover operative a green Enviro bag which contained a white plastic bag containing in turn three clear resealable bags containing crystalline substance. So said ‘so you already go t the paper?’ To which the undercover operative relied ‘yeah, yeah, yeah’. So then said ‘Guarantee anything wrong…tell him come back to me it’s all good guaranteed’. The undercover operative then took the bag to the boot of their vehicle.
[80] Police from the tactical operations unit then moved to arrest [the Applicant], [Associate B] and [Associate C]. In the course of the arrest [the Applicant] sustained some injuries to his face and left shoulder which received treatment at Royal Price [sic] Alfred Hospital.
[81] When conveyed to Surrey Hills police station [the Applicant] was offered the opportunity for an electronically recorded interview during which he declined to answer questions.”
They then in short are the relevant facts.’[19]
[18] This paragraph number is missing in the original, but I have inserted it for present purposes given that it is referred to in the lead-in sentence.
[19] R1, pp 41-44.
To be clear: this sequence of offending occurred little more than five months after the Applicant’s release from detention and the grant of a protection visa to him. Yet even within this very short time frame, the Applicant committed the above extremely serious offences. The Respondent’s representative, during closing submissions, aptly summarised this offending as a ‘…serious supply of a serious drug for serious money.’[20]
[20] Transcript, p 132, line 19.
The further important point to note about the sequence of the above-described offending is that it can be readily concluded that the Applicant was no bit-part player in these transactions. There were three offenders and he was obviously the middle-ranking one of the three. It is notable that [Associate B] told the undercover operatives – after they refused to trust him to take the money to the Applicant – that he, [Associate B], would go and fetch the Applicant, bring him to the scene of the transaction so that it could proceed to finality.
A further notable aspect of this particular sequence of offending is to be found in the manner in which the Applicant again became involved in gang-related drug trafficking after his release from prison. There is nothing to suggest he was coerced or unduly induced to again become involved. According to his own evidence given at the hearing, the Applicant was invited to a party where some of the guests were using methylamphetamine. His evidence was that while at the party, he could not resist partaking in this substance and promptly did so.
One wonders about the value of whatever evidence he gave at previous hearings – particularly, that before SM Toohey of this Tribunal – when she spoke of being rehabilitated and of wanting to make a change in his life. He might have said those things to SM Toohey but barely six months post-release from detention he re-offended in the extremely serious way described above. Acting Justice Hosking must have had similar thoughts about this particular offending by the Applicant and duly sentenced him to a head custodial term of 10 years in prison with a non-parole period of seven years.
Overview of Applicant’s offending history – concessions rightfully made by his representative
During the hearing before me, there was an appropriately made concession by the Applicant’s representative that his offending should be viewed as very serious and that it has been of such a magnitude as to attract operation of paragraph 8.1.2 of the Direction which relevantly provides that “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.” As correctly noted by the Respondent’s representative during closing submissions:
‘In my submission, any one of the applicant’s offences would attract the operation of that principle. To stab a person would attract the operation of that principle. To be involved in a kidnapping would attack the operation of that principle. To be involved in either almost a kilogram or indeed two kilograms of methamphetamine – a notoriously dangerous drug – would attract the operation of that principle.’[21]
[21] Transcript, p 132, lines 44-47; p 133, lines 1-2.
This then is a summary of the Applicant’s offending history. I will now proceed to apply the factors at paragraph 8.1.1 of the Direction to ascertain the nature and seriousness of the conduct according to the Direction.
Paragraph 8.1.1(1)(a)(i)
I am satisfied (and I find) that the Applicant’s conduct clearly involves the commission of violent crimes and, as such, squarely engages this particular paragraph. Accordingly, offences of violence are viewed very seriously by the Australian Government and the Australian community and I have no hesitation in attributing a description of ‘very serious, more likely extremely serious’ to this Applicant’s violent offences.
Paragraph 8.1.1(1)(a)(ii)
The Applicant’s offending history does not record the commission of crimes of a violent nature against women or children. This paragraph is not relevant to determining this application.
Paragraph 8.1.1(1)(a)(iii)
Similarly, there is no reference in the Applicant’s offending history of any conviction for acts of family violence. As best as I understood the material before the Tribunal, there is no reference to any police report (or similar document) detailing the Applicant’s involvement in domestically violent conduct which was looked into by the police but not taken further by way of the making of a domestic violence order or, for example, a charge for an offence involving harm to another person. This paragraph is not relevant to determining this application.
Paragraph 8.1.1(1)(b)(i)
There is no oral or written evidence before the Tribunal talking about the Applicant’s commission of any offences in the realm of causing a person to enter into or being a party to a forced marriage. There is no formally recorded conviction for such offending nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This particular paragraph is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(ii)
The Applicant has not committed a crime against vulnerable members of the community or government representatives or officials due to the position they hold, or in the performance of their duties. This paragraph is therefore not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iii)
This paragraph refers to serious conduct involving, “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”. There is no reference in either SFIC (or any other oral or written submission) propounding or mentioning this component of the Direction. I therefore find that this paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
As best as I understood the material, there is nothing before the Tribunal to suggest the Applicant has committed a crime while in immigration detention or in any of the other circumstances described in this paragraph relating to immigration detention. This paragraph is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(c)
In applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[22] (2) acts of family violence;[23] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[24] As mentioned earlier, the Applicant does not have any convictions and/or sentences for offending in any of these categories.
[22] Direction No 90, para [8.1.1(1)(a)(ii)].
[23] Ibid, para [8.1.1(1)(a)(iii)].
[24] Ibid, para [8.1.1(1)(b)(i)].
He most certainly has very significant sentences imposed for his drug offending, the stabbing of a victim and the kidnapping offence. His head custodial terms can be described thus:
·Supply prohibited drug>= large commercial quantity – 10 years imprisonment;
·Supply prohibited drug >= commercial quantity-SI – 6 years imprisonment;
·Take/detain person in company w/I obtain advantage (DV)-SI – 4 years imprisonment; and
·Maliciously wound in company-T1 – 2 years and 8 months imprisonment.
The imposition of a custodial term represents the last resort in the sentencing hierarchy. The logical extension of that premise is that a given sentence must be viewed as a reflection of the objective seriousness of the offences involved.[25] The sentences imposed upon this Applicant are very significant. We are talking about something in the order of 23 years of head custodial time for a sentencing history that runs for approximately 11-12 years and involves the commission of some six offences dealt with at eight separate sentencing episodes, two of which were unsuccessful appeals.
I have little difficulty or hesitation in concluding that the sentences imposed upon this Applicant very strongly militate in favour of finding that his offending has been “very serious, more likely extremely serious”.
Paragraph 8.1.1(1)(d)
This paragraph deals with (1) the frequency of a person’s offending and (2) whether there is any trend of increasing seriousness in that offending. First, it should be noted that this Applicant has a criminal history that runs for something in the order of 11-12 years and involves the commission of some six offences. While not overly frequent, he is responsible for the commission of approximately two offences (and, indeed, extremely serious offences at that) per year of the offending history.
Second, it is not difficult to reach a state of satisfaction about a finding that his offending demonstrates a trend of increasing seriousness. The offending history commences with a conviction for supplying a prohibited drug in a not insignificant amount that graduates into very serious offences against a person such as stabbing and kidnapping and then evolves into very high-level drug trafficking involving the movement of significant levels of methylamphetamine for significant amounts of money.
This particular paragraph militates very strongly in favour of finding that the nature and seriousness of the Applicant’s offending has been ‘very serious, more likely extremely serious’.
Paragraph 8.1.1(1)(e)
This paragraph looks for any cumulative effects resulting from a non-citizen’s offending and how those effects are now informative of the level of seriousness of that person’s offending in Australia. Reference to the features of the Applicant’s offending readily demonstrates the cumulative effects of his repeated offending. His respective convictions for the stabbing and kidnapping offences are clearly indicative of offences involving very serious violence. That comment should be tempered by saying that the Applicant did not himself perpetrate violence on the victim of the kidnapping offence but was clearly and knowingly involved in conduct that can only be described as extortion in circumstances of violence.
The Applicant’s offending in the realms of illicit drugs reached a crescendo of seriousness in 2014. Barely a third of a year after his release from custody and restoration of his visa status to remain in Australia, one would have thought he would have been grateful for both of those developments. But instead, he re-engaged in the illicit drug trade and was responsible for offending involving the movement of very significant levels of methylamphetamine in the community. We are all only too familiar with the dreadful impact of illicit drugs on our community. It effects not only individual users but also draws other family members and loved ones into its orbit by virtue of how their lives are impacted by another person’s addiction. The drug trade places an inordinate burden on the community’s public health, law enforcement and judicial sentencing resources as well.
As noted by the Respondent’s representatives in closing submissions, a cumulative effect can be seen in the little, if any, impact that criminal custody and claimed rehabilitation have had on this Applicant’s propensity to offend:
‘Put in very simple terms, between 2003 and 2014, 11 years passed and much rehabilitation was undertaken with many years spent in prison, but the only thing that materially changed is that the quantity of methamphetamine doubled from a little under a kilogram to two kilograms.’[26]
[26] Transcript, p 133, lines 11-15.
I am therefore satisfied that the abovementioned cumulative effects of this Applicant’s repeated offending cause this paragraph 8.1.1(1)(e) to very strongly militate in favour of a finding that the totality of his offending in this country has been ‘very serious, more likely extremely serious’.
Paragraph 8.1.1(1)(f)
This paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. This paragraph most commonly has application when an Applicant leaves from and returns to Australia. I have already referred to the Applicant’s offending history which does involve some travel in and out of Australia during the period March 1999 to April 2003. No doubt upon re-entry into Australia, the Applicant would have been required to complete an incoming passenger card and most likely did so.
His most recent arrival in Australia occurred in April 2003. His first conviction in an Australian court occurred in November 2003. It therefore follows that this Applicant could not have misrepresented his offending history in any incoming passenger card because of the time of his most recent arrival he did not have any convictions in Australia. I am not aware of any other reference in the material to the Applicant providing false or misleading information to the Respondent’s Department on any other issue. This paragraph should therefore be put to one side and my finding should be that it is not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here. As I have alluded earlier, this Applicant has twice offended following the above-mentioned warning issued to him by the Respondent in 2007 about the consequences that further offending would have on his visa status to remain here. This warning should have resonated with the Applicant to the extent that (1) the Australian authorities were aware of the extent of his unlawful conduct at the time of providing him with the notice – hence, the production of the notice to him – and (2) he should have grasped the reality (that he must surely have known from others) that further offending would have involved the very realistic prospect of his removal from Australia.
This Applicant has been through a number of stages and phases referrable to his visa status: (1) he was issued with the above-mentioned warning; (2) he had his UH subclass 450-Resolution of Status (Temporary) visa cancelled; (3) he unsuccessfully appealed that particular cancellation to this Tribunal before SM Toohey; (4) he applied for a protection visa and was initially refused; and (5) he challenged that refusal decision and, eventually, was granted a protection visa in October 2013. I will not get into a discussion about whether the within-described items (2)-(5) (inclusive) constitute a ‘warning’ for the purposes of this paragraph. There is absolutely no doubt that the warning described at (1) that he received in 2007 most certainly does constitute a ‘warning’ for the purpose of this paragraph.
He took absolutely nothing from either the 2007 formal warning or any of the other milestone events particularised at (2)-(5) (inclusive) of the immediately preceding paragraph. Nothing from officialdom seems to resonate with this Applicant. Upon return to the community, he simply returns to very/extremely serious offending as if he is practising some kind of profession or working in some kind of trade. He seems to know nothing else and the moment he is back in the community seems to have no conception about how to earn a livelihood other than by involvement in very high-level and organised drug trafficking activity. This paragraph 8.1.1(1)(g) accordingly militates very strongly in favour of a finding that this Applicant’s unlawful conduct in Australia has been ‘very serious, more likely extremely serious’.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have sought to apply each of the relevant paragraphs appearing at paragraph 8.1.1(1) of the Direction. Having regard my findings about the relevant and applicable paragraphs of this part of the Direction, I am of the view that the totality of this Applicant’s unlawful conduct in Australia has been truly dreadful. There is only one characterisation for it and that is that it has been of a ‘very serious, more likely extremely serious’ nature. I so find.
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 of it being 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
I have recounted the circumstances of this Applicant’s offending. There is surely little or nothing to cavil with the proposition that were he to re-commit any of the offences he has committed to date, there will result physical, psychological, economic and/or financial harm to the Australian community, most certainly to a substantial level and, quite conceivably, to a catastrophic level.
I am mindful of the significant harm that has already resulted from this Applicant’s very/extremely unlawful conduct. One cannot reach any other conclusion about the Applicant’s conduct to date. But in assessing the nature of the harm that would result from further offending by the Applicant, the Tribunal is not limited to only making reference to what he has done in the past and the resultant harm therefrom. The Tribunal can take into account what he has done in the past and extrapolate the circumstances of that already-done harm into harm of an even greater magnitude into the future.
For example, his conduct of being involved in the movement of ever-increasing quantities of methylamphetamine into the community could be repeated by him in circumstances where he moves not just one or two kilograms of the substance but even greater amounts. It is not unfair or unreasonable to find that were he to do so, there would be an exponentially greater level of harm visited upon the community’s public healthcare resources, its law enforcement resources and its judicial sentencing resources.
By way of further example, were he again to become involved in the kidnapping and/or violent extortion of victims, it is not an unreasonable stretch of the evidence before the Tribunal to suggest (and find) that any such future unfortunate victim could well suffer fatal consequences from such conduct. The victim I have referred to above required hospital treatment for what was done to him. How is it unreasonable to suggest that such conduct would not extrapolate into more serious and permanent injury to a victim or, indeed, the death of that victim as a means of one criminal enterprise “sending a message” and/or “marking a territory” against another?
I agree with the Respondent’s submission ‘…the nature of the harm posed is so serious that any material risk that the Applicant might re-offend in a manner comparable to his previous offending should be considered to be one which is unacceptable.’[27] Pursuant to paragraph 8.1.2(1) of the Direction, I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
[27] R2, p 16, para [48].
Summary of the evidence about risk – claimed protective factors against recidivism
In the Applicant’s SFIC, there is a contention to the effect that any assessment of recidivist risk this Applicant represents to the community upon his return to it is something ‘…best addressed by the criminal justice system…’.[28] I fundamentally disagree with any such proposition and reject it accordingly. I reject it for two reasons: (1) while the sentencing process obviously and necessarily involves an assessment of an offender’s recidivist risk, that is not the only forum in which recidivist risk is to be assessed. There is no statutory or other provision confirming any such position; and (2) assessment of a person’s recidivist risk is precisely what is compelled by paragraph 8.1.2(2) of the Direction. More broadly, Primary Consideration 1 is concerned with protection of the Australian community from criminal or other serious conduct. How can this Tribunal make any such assessment without assessing the Applicant’s recidivist risk based on the material before it? The submission that such an assessment must be left to ’the criminal justice system’ is misconceived and, were I to follow it, would lead to jurisdictional error. I will not do so and I entirely reject the submission.
[28] A1, p 9, para [25.7].
In submissions put on his behalf, the Tribunal was referred to a number of now-claimed protective factors which, it was contended, would have the effect of reducing the Applicant’s likelihood of re-offending. I will address each of these so-called protective factors in turn:
·1. Abstinence from partaking in illicit drugs: the gist of this submission was that the Applicant has been abstinent for the past eight and a half years (or thereabouts) which is a period that traverses his non-parole period arising from the sentence applied to his most recently punished offending plus his time in immigration detention. The Tribunal had the benefit of the evidence of Dr Paul Pusey, clinical and forensic psychologist. I point out, with respect, that I found Dr Pusey to be a knowledgeable and erudite witness who knew his way around the report he prepared and which was tendered into evidence..[29] Dr Pusey placed great store in this particular claimed protective factor. To my mind, there is a fundamental difficulty in placing any great reliance on this particular factor when assessing the Applicant’s current recidivist risk. This is because the Applicant has been abstinent before for two quite significant periods, they being from 2003 to 2007 and 2008 to 2013 when the Applicant was in criminal custody. Upon returning to the community, he almost immediately returned to offending and doing so at a very serious or even extremely serious level.
[29] See A3.
Any contention that this approximate eight and a half year period of abstinence is longer than his previous abstaining periods and that it somehow now militates more strongly in favour of a lower recidivist risk than it did in the past, must be rejected. Although propounded by Dr Pusey – in terms of him suggesting that a longer period of abstinence is most probably more effective than a shorter such period upon a person’s recidivist risk – Dr Pusey conceded in cross-examination that the nature of the abstinence was, in and of itself, a significant factor. That is, it is one thing for an addict to be forced to abstain due to being in prison, for example. It is an entirely different thing for that addict to, as it were, self-impose their own course of rehabilitation, abstinence and ultimate recovery from an addiction to illicit substances.
The abstinence now relied upon by the Applicant as a protective factor occurred in the closed confines of criminal custody and/or immigration detention. Abstinence in such an environment is one thing. Abstinence in the unregulated environment of the general community is entirely something else. We have seen his appallingly low levels of success in resisting the lure of illicit drugs in the past when he has returned to the community. In the past, the return to illicit drug abuse was swift and almost unhesitating. There is little to suggest abstinence in custody/detention now militates in favour of abstinence in the community any more than it did in past occasions.
As, to my mind, validly submitted by the Respondent’s representative, the previous periods of abstinence were for respective approximate periods of four years and five years. While eight and a half years is a longer period than the previous two periods of abstinence, where is the evidence to convince this Tribunal that a longer period of abstinence is now a more reliable predictor of the Applicant’s recidivist risk? The answer, of course, is that such evidence is not before the Tribunal. I am therefore not convinced that this latest period of abstinence is any more a protective factor for the assessment of the Applicant’s recidivist risk than was the case previously.
·2. Courses of rehabilitation: once again, this is a protective factor the Applicant has alluded to in previous iterations of this proceeding. While incarcerated between 2003 to 2007, he refers to his completion of a relapse prevention program. During his second period of incarceration, he apparently participated in and completed the Getting Smart program. In a case note report prepared by the NSW Department of Corrective Services dating from 31 August 2010, the Applicant told the author of that report that this Getting Smart program had made him “…able to analyse his typical patterns of [drug] use in the past, which included using substances when feeling depressed to “make myself happy” (regarding his parents relationship breakdown) as well as when bored usually in company of his negative associates (involved in his historical/current offence)”.[30]
[30] R4, p 251.
He also told this report writer that “…he “learned a lot” in the program regarding…ways of overcoming these problems by being aware of his risk factors. He stated that he had also developed insight in regards to the correlation between his offending and his use of substances, which involved acting on impulse and not weighing up short term outcomes vs long term outcomes.”[31] Despite this claimed insight (in 2010) into causative factors behind his propensity to abuse illicit drugs, one wonders where that insight was when he very/extremely seriously offended only several months after his release from custody in October 2013. Much of the narrative that is recorded in this report seems, to my mind at least, to comprise words which the Applicant intended to appear in the report as a means of influencing and convincing others about his claimed rehabilitation. The words caused to be recorded are self-serving and speak to very serious misgivings about whether the Applicant was being genuine with the report writer in expressing these words.
[31] Ibid.
This report goes on to talk about the Applicant’s links to “anti-social individuals”. He told this report writer that “…he no longer has ties to same and that upon his release there is no obligation to return to associates. In this regard, [the Applicant] appeared positive in his ability to maintain a steady lifestyle without drug use. He reported his plans of furthering himself in a vocational capacity engaging in TAFE for personal training and small business and long-term plans or [sic] entering real estate…”.[32] Once again, one wonders about whether the Applicant was being genuine with the report writer or whether he was just telling him words deliberately intended to appear in a report. Upon his release from criminal custody in October 2013, he went straight back into the clutches of those “anti-social individuals”. He did not maintain any modicum of a “steady lifestyle without drug use”. There is little or nothing before the Tribunal indicative of him becoming involved – even tentatively – with lawful vocational employment.
[32] R4, p 251.
Even a cursory review of the Applicant’s evidence before this Tribunal confirms that the same themes and elements that he referred to in 2010 are now propounded again before this Tribunal. Even if one accepts that the Applicant genuinely believed what he told the report writer in 2010, the claimed benefits he says he experienced from the Getting Smart program did absolutely nothing to prevent his very/extremely serious offending in 2014 which was so serious that it was punished by a head custodial term of 10 years with a non-parole period of seven years.
·3. Employment: there is evidence before the Tribunal from an individual named [Interpreter K] who works as a professional Mandarin interpreter. He met the Applicant at the Villawood Immigration Detention facility in the course of doing his interpretation work. [Interpreter K] has provided an affidavit which appears in the material.[33] He claims to have made an offer of employment to the Applicant “…to work as a Sales Representative/Education Consultant with my business.” It should also be noted that [Interpreter K]’s offer of employment to the Applicant has been put forward on a couple of earlier occasions “…to the Minister in 2019 and again in 2022.”[34] There are some fundamental difficulties with the evidence of [Interpreter K] around this claimed offer of employment.
[33] See A5.
[34] A5, p 1, para [4].
First, [Interpreter K] was not called to give evidence at the hearing and the Respondent’s representative did not get the opportunity to test his claimed offer(s) of employment in cross-examination. Second, we do not know the extent to which the offer of employment comprises a firm “walk in and start” opportunity for the Applicant or whether it is a well-intended suggestion by someone who wants to assist the Applicant. [Interpreter K] could have clarified this for the Tribunal by giving oral evidence. He did not do so. Third, if the offer of employment was genuine and real, then one would have reasonably expected the putative employee – the Applicant – to be aware of the terms of his engagement including hours of work, conditions of work, expected tasks and duties and, of course, remuneration. The Applicant was demonstrably unable to provide any such details during cross-examination and the obvious conclusion is that this “offer” of employment is little more than a well-intended, but not substantial, means of assisting the Applicant and/or a preliminary offer, at best.
Perhaps most significantly, there is evidence before the Tribunal that the Applicant had the benefit of employment with [Interpreter K] upon his release from criminal custody in October 2013 yet (1) it did little or nothing to prevent him from relapsing into illicit drug abuse and (2) committing very/extremely serious offences in the early part of 2014. One wonders why [Interpreter K] feels inclined to re-employ a person who has betrayed his trust so badly. He could have explained that conundrum by giving oral evidence. He did not do so.
·4. Religious beliefs: there is little or nothing new about the Applicant’s claim that adherence to a religious creed somehow acts as a factor militating against his recidivist risk. In his statement made on 5 September 2022 he said “I plan to attend church as it has given me deep reflection and faith.”[35] He said exactly the same thing to SM Toohey at a prior iteration of this proceeding in 2012. This evidence to SM Toohey at that hearing was augmented by two Sisters belonging to the same denomination to which the Applicant said he belonged. This claimed protective factor has little or no traction because it did absolutely nothing to prevent the Applicant from returning to very/extremely serious offending upon his release from criminal custody in October 2013;
·5. Claimed responsibility to look after his parents: in the material/submissions, this particular protective factor was referred to as “filial piety”. In his statement made on 5 September 2022 he said “I’ve worked too hard over the past 8 years to turn my life around. I want to look after my parents as they grow older and frailer…”[36] The significant difficulty with this submission was that it was also ventilated before SM Toohey during the hearing in this Tribunal in 2012. It went nowhere then in terms of speaking to a lower recidivist risk for this Applicant. I am of the view that it goes nowhere now;
·6. Educational courses: at the hearing before me the Applicant spoke of having undertaken certain self-betterment courses during his most recent stint in prison and that these now stand him in good stead in terms of him representing a lower recidivist risk. In his statement of 5 September 2022, he said “When I was in prison I studied, took numerous courses. I worked everywhere from a kitchen hand to having the responsibility of being in the office doing clerical duties that required responsibility integrity, honesty, and diligence.”[37] This is what he has told earlier decision-makers and there is nothing new in the submission. For example, in its judgment made on 11 May 2004, the NSW Court of Criminal Appeal observed that “While in custody the respondent had acquired a number of certificates of achievement for a variety of courses, which were primarily directed to information technology applications.”[38]
Similarly, in her Reasons for Decision made on 17 January 2012, SM Toohey noted that “[the Applicant] has done a number of courses while in detention. In December 2008 he was awarded a Statement of Attainment in Small Business Management through TAFE. In February 2009, he obtained a certificate in word processing as part of a certificate in information technology. In December 2009, he completed a Getting Smart program which apparently aims to help offenders with alcohol and drug problems and, in April 2010, he completed a program for problem gamblers.”[39]
None of these courses worked to lower the Applicant’s recidivist risk. The very/extremely seriously offended after the NSW Court of Criminal Appeal’s judgment in 2004. He did exactly the same thing after SM Toohey’s decision in January 2012. Put simply, courses seem to have little to no effect on this Applicant’s recidivist risk.
·7. Regular reporting for parole: one of the newly-claimed protective factors against the Applicant’s recidivist risk is put thus: “I will also have the benefit of parole and regular reporting and support from Probation and Parole until April 2024…I fully understand the details of my strict parole conditions that I will have to report regularly, undergo drug and alcohol testing, stay away from negative criminal associations and places that they frequent, along with all of the standard parole conditions.”[40] To my mind, the fatal difficulty with this submission is that the Applicant has re-offended while on condition liberty. He does not have a history of respecting the benefit of an early release from a custodial term. This is confirmed by his pattern of emerging from one stint in prison only to promptly re-commence committing very/extremely serious offences.
·8. Claimed maturity: in his abovementioned statement of 5 September 2022, the Applicant points to a claimed and newfound maturity as a factor militating against his recidivist risk. According to him, there is no option but to turn his life around: “I have no other option but to turn my life around, this time I have had long enough time to process that and I am mature enough now, to fully understand that. To return to prison and/or to remain in immigration detention indefinitely, is a life sentence for which I can no longer begin to contemplate. I am so ready to [sic] whatever it takes to become a positive contributing member of the Australian community and loving, supporting member to my family, if I am given the opportunity.”[41]
This claimed protective factor can be safely rejected. In the past, the Applicant has been in similar “no other option” positions involving a return to prison if he re-offended. Lengthy terms out of the community do not deter him from re-offending. He has previously had an opportunity to do “whatever it takes to become a positive contributing member to the Australian community”. That contribution took the form of very/extremely serious incidents in the form of kidnapping, stabbing and very high-level drug trafficking activities. For all intents and purposes, he has never made a positive contribution to the Australian community.
[35] A6, p 3, para [14].
[36] A6, p 3, para [14].
[37] Ibid, p 2, para [10].
[38] R3, p 3, para [13].
[39] Ibid, p 49, para [33].
[40] A6, p 4, para [18].
[41] Ibid, p 49, para [19].
The Evidence of Dr Paul Pusey – Clinical and Forensic Psychologist
I have earlier referred to both the impressive professional credentials of Dr Pusey together with his steady and reliable demeanour when giving oral evidence. In the final analysis, all Dr Pusey has to work with is the nature, disposition and symptomatology of the Applicant/patient before him and the material with which he is briefed. His report appears in the material.[42] In his comprehensive written report dating from 20 August 2022, Dr Pusey’s report contains respective summaries about his behavioural observations about the Applicant, the Applicant’s current situation as well as his past criminal history.
Dr Pusey also made a detailed ‘psychosocial history’ of the Applicant that included his family history, his migration to Australia at the age of 14, his developmental, education and vocation history, his social and intimate relationships as well as his substance abuse history. Dr Pusey also performed respective psychological screening assessments for (1) mood and anxiety pathology; (2) personality functioning and psychological adjustment; (3) screening assessment from impulsive behaviour; and (4) screening assessment for anger. In terms of a diagnosis, Dr Pusey thought the Applicant ‘…meets the threshold required for a mental health diagnosis according to the DSM 5. It is therefore my opinion that a diagnosis of a Major Depressive Disorder would be appropriate in relation to explaining the psychology which he currently describes experience of.’[43] Dr Pusey also referred to ‘An appropriate differential diagnosis…is one of a Persistent Depressive Disorder according to the DSM 5.’[44]
[42] See A3.
[43] A3, p 11, para [78].
[44] Ibid, para [79].
In terms of a concluded finding about the Applicant’s recidivist risk, Dr Pusey said this:
‘[93] Based upon [the Applicant’s] current presentation at his assessment in addition to a review of the background information provided, it is my view that his current risk of recidivism would be viewed as being low. This opinion is based upon the extensive period of abstinence from substances which he has undertaken. The fact that he has been in immigration detention and criminal detention during this time must be acknowledged as contributing to this period of abstinence, however it must also be acknowledged that it is entirely possible to obtain substances during episodes of incarceration if one is motivated enough to do so. [the Applicant’s] his disclosures made during his clinical interview, suggest that he has developed a good level of insight not only into his substance use, but also the factors which have contributed to his engagement in this behavioural choice. It is my view that these factors are positive prognostic indicators with respect to his ability to maintain his abstinence from substance use in the community.’[45]
[45] A3, p 13, para [93].
Earlier, I referred to the scope of Dr Pusey’s knowledge of the Applicant’s symptomatological history being limited to whatever documents had been briefed to him. Something that emerged during his oral evidence was that he did not have material that allowed him to review and understand the Applicant’s previous psychological assessment. He did not have details of the assessment of Dr John Jacmon, the consulting psychologist who saw the Applicant for three hours for the purposes of preparing an assessment in November 2011. Dr Jacmon had formed the view that the Applicant’s (then) daily functioning was markedly impaired by borderline personality disorder which Dr Jacmon described as a serious mental illness and a lifetime disorder for which there is no lasting effective treatment other than management.
One further shortcoming apparent from Dr Pusey’s report is that he had a relatively incomplete knowledge of each factual matrix surrounding each of the Applicant’s offending episodes. To my mind, the Respondent’s representative convincingly challenged Dr Pusey’s evidence on the question of the Applicant’s claimed level of insight into his past offending. This occurred on the basis of Dr Pusey not being able to dispel the suggestion that any evidence around the Applicant’s claimed level of insight was little more than him self-reporting such a claim. Dr Pusey agreed that apart from this self-reporting there is no independently identified or applied reference point that can now be utilised to measure the Applicant’s claimed level of insight. Accordingly, Dr Pusey’s evidence about the Applicant’s claimed level of insight boils down to one derived from the Applicant’s own self-reported claim that he has gained such insight.
Similar misgivings can be raised with reference to Dr Pusey’s concluded view about the Applicant’s low risk of re-offending. Those misgivings derive from the contingent basis upon which that opinion is expressed. Dr Pusey makes it clear that ‘It is of the utmost importance that [the Applicant] be provided the opportunity to develop alternate strategies with coping with negative mood states which have a minimal basis in the use of avoidance based emotional and behavioural decision making.’[46] Dr Pusey says that the development of such alternate strategies must be formulated with the assistance of a clinician and ‘…will need to be reviewed on a basis not exceeding 3 months in order to ensure that the treatment and the manner in which it is provided to him remain an effective method of meeting the underlying criminogenic and clinical need.’[47] Further, Dr Pusey is of the view that, in overall treatment terms, ‘The duration of treatment should be a period of at least 6-12 months duration…’[48]
[46] A3, p 14, para [98].
[47] Ibid.
[48] Ibid.
The Applicant’s poor record of failing to comply with psychological treatment plans was put to Dr Pusey in cross-examination, in particular, the plan proposed to the Applicant by Dr Jacmon over a decade ago. In submissions put on behalf of the Applicant, it was suggested that the Applicant was now able and willing to become involved in a defined plan of psychological treatment and management of his symptoms. But his history does not support that contention. At the hearing before SM Toohey in 2012, the Applicant had the benefit of Dr Jacmon’s report and opinion and must surely have been aware that Dr Jacmon was of the view that without engaging in prolonged treatment, the Applicant’s recidivist prospects were “not good”. Dr Jacmon was completely correct: the Applicant did not engage with treatment, did not take any step to change his ways and within a matter of months after his release in October 2013 he was very/extremely seriously offending.
It is difficult to see how the Applicant’s present position is any different to that of his past. There is no treatment plan defined or otherwise available to the Applicant to do. Dr Pusey thinks this is essential to maintain his recidivist risk as ‘low’. All too often in matters of this type, an Applicant will say that he/she could not obtain such treatment because they did not know how to obtain or source such treatment. Such a contention can only travel so far. In at least one past proceeding, the issue of treatment has been one of the pivotal elements around the Applicant’s claimed levels of insight and lowered recidivist risk. It seems he is prepared to put and rely on such a contention to reach an outcome at a given decision-making event but does not follow up with such treatment upon a return to the community. Instead, he almost immediately returns to very/extremely serious offending.
It may sound trite to say, but the surest guide of what someone will do about a particular thing or issue in future is what that person has done about that thing or issue in the past. Here, we have an Applicant who seems to assemble an all-too-familiar series of protective factors but who does nothing to follow or abide by them in the community.
Summary of findings around recidivist risk
The evidence of Dr Pusey can, to my mind, be validly challenged on the basis of (1) the incomplete state of the material before him when assessing and reporting on the Applicant; (2) his primary reference point for the Applicant’s claimed levels of insight into the causative factors behind his offending was based on the Applicant’s self-reporting and no other independent reference or data point; and (3) his assessment of the Applicant representing a low recidivist risk was heavily conditionalized upon the Applicant – if returned to the community – immediately engaging with rehabilitative treatment involving frequent review and which should ‘be for a period of at least 6-12 months duration’.
The Applicant’s past abject failures to engage with any meaningful form of rehabilitation must be viewed and assessed on the same basis as I have analysed his other claimed protective factors. That is, none of those protective factors have served as moderating or other positive influences on his recidivist risk in the past and there is little or nothing in the evidence to suggest the position will be any different in the future. The same can be said of the Applicant’s engagement with rehabilitative treatment. To my mind, these protective factors (including rehabilitative treatment) have proven to be a convenient script the Applicant repeats and relies upon at specific decision-making milestone events in his life – whether those milestones relate to his visa status or a sentence about to be imposed on him.
On the specific issue of rehabilitative treatment, we have little more than Dr Jacmon’s report and observations which is now over a decade old and which was followed by the Applicant significantly more in the breach than in the observance. What we then have is the abovementioned report of Dr Pusey whose findings about low recidivist risk must be received with great caution and who, in the final analysis, very heavily conditionalizes his low recidivist risk finding. The net effect of the psychological evidence before the Tribunal is that there is no current (or pending) modality of treatment which the Applicant will follow and which, in turn, will (1) provide any reliable guide that the Applicant’s causative symptomatology is under any sort of remedial management and control such that (2) a prognostic analysis about those symptoms could be relied upon as a means for more reliably defining his recidivist risk. There is nothing like that before this Tribunal.
The only logical conclusion about the Applicant’s recidivist risk yielded by the evidence before the Tribunal is that this Applicant’s recidivist risk cannot be found to be anything different to what it was at the time of his most recent removal from the Australian community.
Paragraph 8.1.2(2)(c): out of an abundance of caution and for the sake of completeness, I make reference to paragraph 8.1.2(2)(c) of the Direction. This matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the, ‘revocation’ of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious, more likely extremely serious’;
(b)I have found that were he to re-commit any of the offences he has committed to date, there will result physical, psychological, economic and/or financial harm to the Australian community, most certainly to a substantial level and, quite conceivably, to a catastrophic level; and
(c)I have assessed the Applicant’s recidivist risk of engaging in further criminal or other serious conduct (upon return to the community) by taking into account: (1) his claimed protective factors and how they have failed to curb his propensity to abuse illicit drugs and to very/extremely seriously offend; (2) the starkly incomplete state of his rehabilitation coupled with his failure to engage with any meaningful rehabilitative treatment such that the Tribunal can rely on some type of independent and clinical prognostic analysis of his symptoms to reliably support a low recidivist risk.
I again refer to paragraph 8.1.2(1) of the Direction and its specific reference to the notion of ‘unacceptable risk’ which is a risk that the community should not be required to tolerate regardless of other considerations. Having regard to the potential consequences of this Applicant re-committing any of his offences and the unconvincing state of the evidence about the likelihood that he will do so if returned to the community leads me to find that his offending has been so serious that any risk of its recurrence is indeed unacceptable.
My analysis of the material before me leads me to a finding that this Applicant represents an unacceptable recidivist risk and that Primary Consideration 1 thereby carries a very heavy level of weight against revocation of the mandatory cancellation of his visa.
primary consideration 2: family violence
Paragraph 8.2 of the Direction provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
(a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
(b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
(a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
(b)the cumulative effect of repeated acts of family violence;
(c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
(d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Both parties agree that this Primary Consideration 2 is not relevant to determination of the instant application.[49] I agree.
[49] See Transcript, p 138, lines 13-20; see also, Transcript, p 144, lines 24-25.
primary consideration 3: the best interests of minor children in australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under eighteen years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of minor children. Those factors relevantly comprise for present purposes:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Once again, both parties are ad idem that this Primary Consideration 3 is not relevant to determination of the instant application.[50] I agree.
[50] See Transcript, p 138, lines 13-20; see also, Transcript, p 144, lines 24-25.
primary consideration 4: expectations of the australian community
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[51] The Direction further explains:
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.’[52]
[51] Direction, paragraph 8.4(3).
[52] Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
·breached the expectation in the immediately preceding sub-paragraph (a); or
·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Without question, this Applicant has breached the Australian community’s expectations by commission of his offences appearing in his criminal history which contains very serious breaches of Australian laws. There is, to my mind, no other way of characterizing criminal conduct involving the stabbing of another, the kidnapping of another for the purposes of violent extortion and participation in a criminal enterprise involving the movement of very significant quantities of methylamphetamine into our community. Therefore, the Australian community, ‘as a norm’ expects the Australian government not to allow him to remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
While the Applicant may not have committed any of the offences stipulated in the immediately preceding categories (a)-(f) (inclusive), I have nevertheless found that his offending has been so serious that it invokes the notion of “unacceptable risk” at paragraph 8.1.2(1) of the Direction such that he represents a recidivist risk that the community should not be required to tolerate regardless of other considerations. I am of the view that the extent of the seriousness of this Applicant’s offending is such that the Australian community would expect that he should not be granted a visa to remain here.
The remaining question is whether there are any factors modifying the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4) and (5) of the Direction. In summary, the relevant principles are these:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time[53];
(c) 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[54]; and
(d)the nature of a 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 a visa outcome that is not adverse to the non-citizen.[55]
[53] Direction, paragraph 5.2(4).
[54] Ibid.
[55] Direction, paragraph 5.2(5).
In relation to sub-paragraph (a) of the immediately preceding paragraph, the term, ‘limited stay visa’ is not defined in the Act. However, the Act does classify visas into categories. Relevantly for present purposes, s 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or, ‘temporary’ visas. The Applicant had a permanent visa, so this principle does not apply.
In relation to sub-paragraph (b) at paragraph [104] of these Reasons, the Applicant has resided in Australia from the age of 14. He is currently 37 years of age and has therefore been here for about 62% of his life, a very significant portion of which has been spent removed from the Australian community either in criminal custody or immigration detention. He does not have any convincing history of engagement in remunerative employment in Australia. He has not fathered children in this country. Whatever participation in, and contribution to, the Australian community he may have made has been ‘short’. Therefore, the Australian community’s tolerance is lowered by this part of the principles in paragraph 5.1(4) of the Direction.
In relation to sub-paragraph (c) at paragraph [104] of these Reasons, I repeat that the Applicant resided in Australia from the age of 14 and that he is now 37 years of age. He has spent just over 60% of his life here but, whatever time he has spent here, has been overwhelmingly spent in either prison or immigration detention. Given the time he has spent in Australia, I would usually apply this sub-paragraph (c) towards a finding the Australian community would have a higher than usual tolerance of criminal or other serious conduct by him. However, for present purposes I am reluctant to do so because of (1) the very/extremely serious nature of his offending and (2) whatever time he has spent here has been overwhelmingly consumed by his time in prison or immigration detention and thus removed from the Australian community.
In relation to sub-paragraph (d) at paragraph [104] of these Reasons, I am of the view that the balancing exercise between (on the one hand) the harm that would be caused by him re-offending and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am of the view that the Applicant’s conduct and the resulting harm from that conduct (thus far) has been of such a magnitude such as to dispel any applicable countervailing considerations.
I therefore conclude that the Australian community’s expectations are not modified such that the community has a higher than usual tolerance of the criminal conduct committed by the Applicant. Because of his breaches of the community’s expectations as a result of his very/extremely serious breaches of Australian law, I am of the view that the community expects the government can and should cancel his visa.[56] I so find.
[56] Direction, paragraph 5.2(3).
Conclusion: Primary Consideration 4
Primary Consideration 4 carries a very heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
other considerations
It is necessary to look at the Other Considerations non-exhaustively listed at paragraph 9 of the Direction.
Other Consideration (a): International non-refoulement obligations
As best as I understood the material, the Applicant’s global contention about this particular Other Consideration is to be found in the reply to the Respondent’s SFIC, the relevant paragraph of which reads thus:
‘[29] In reply to paragraphs 67 through 77 inclusive of the Respondent’s SOFIAC in circumstances such as the Applicants, the Tribunal is required to have regard to Australia’s non refoulment obligations as the Applicant is barred from seeking another protection visa. The Applicant’s claims for protection remain, he continues to rely on the multiple arms of his protection claims such that he is a convicted criminal for a serious crime for which he could be retired and receive capital punishment, he is a practising Catholic who is not a member of a registered church under Chinese law, that he is a member of the social group of return failed asylum seekers therefore imputed dissident against the communist government, that he is not in position or possession of, and not able to seek, household registration which denies him access to social and welfare provisions, depriving him of a maintaining basic living standards. Put simply, it is realistic that the Applicant cannot and will not ever return to visit or live in China.’[57]
[57] A2, p 7.
Applicable Law
Omar
This Other Consideration involves an assessment of whether Australia owes the Applicant any non-refoulement obligations. It is contained at paragraphs 9.4(1)–(8) (inclusive) of the Direction. Until very recently, the present state of the law derived from the Full Court’s decision in Minister for Home Affairs v Omar (“Omar”).[58] This decision involved a challenge to a decision made by the then Assistant Minister for Home Affairs to not revoke a mandatory cancellation decision, pursuant to s 501CA(4) of the Act. The former visa holder in that case was a Somali national.
[58] (2019) 272 FCR 589.
In Omar, representations were made on behalf of the visa holder in respect of non-refoulement obligations, were he to be returned to Somalia. It was also contended on behalf of that visa holder that clause 14.5 of the Direction in force at that time (a precursor to Other Consideration (b) – impediments to removal) was also relevant and should be considered for similar reasons.
The question before the Full Court involved a determination of whether the Assistant Minister had made a jurisdictional error by failing to consider the concerns raised by the Respondent in his representations, made pursuant to s 501CA(3) of the Act, as being a reason for revoking the visa cancellation decision, irrespective of whether these matters engaged any of Australia’s non-refoulement obligations.
The Full Court found that the Assistant Minister’s decision was affected by jurisdictional error due to the incumbent obligation on the Minister or his delegate to give meaningful consideration to a representation of harm ‘independently’ of a claim concerning Australia’s non-refoulement obligations. That obligation, said the Full Court, requires, ‘…an active intellectual engagement with the matters raised […] relating to the risk of harm…’,[59] and the failure to consider a substantial or significant and clearly articulated claim may constitute a failure to carry out the statutory task, giving rise to jurisdictional error.[60] The Full Court found the Assistant Minister had not satisfied the requirement of the obligation.
[59] (2019) 272 FCR 589, page 607, para [40].
[60] Ibid, page 608, para [41].
I comprehend the Full Court’s decision in Omar to mean: (1) it is not sufficient for a decision-maker to merely ‘have regard to’ only some of the significant matters raised in the representations; and (2) deficiencies in the decision-making process are not overcome by the adoption of a broad statement such as ‘I have considered all relevant matters…’, or ‘Having given full consideration to all of these matters […]’. The Full Court’s decision in Omar gives rise to a requirement for a decision-maker to engage meaningfully with the significant representations on the risk of harm which have been clearly expressed. I acknowledge that this obligation is not discharged by the generalised statements as quoted in this paragraph of my Reasons.[61]
[61] Ibid, page 610, para [43](g)].
In 2020, the High Court appeared to confirm the position that there is nothing in the text of s 501CA requiring the Minister to take account of any non-refoulement obligations, if not expressly raised by an Applicant. However, as a matter of logic, it follows that where the matter is squarely raised by an Applicant, it is safest to address the issue of non-refoulement. In S270/2019 v Minister for Immigration and Border Protection,[62] the High Court (by a majority of 5–0) said:
‘[…] there is nothing in the text of s 501CA, or its subject matter, scope or purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke cancellation of any visa that is not a protection visa where the materials do not include, or the circumstances do not suggest, a non-refoulement claim.
[…] it would be contrary to the apparent scheme of the Act to construe general provisions concerning the cancellation of visas of all kinds on character grounds, or the revocation of mandatory cancellations on such grounds, as requiring consideration of non-refoulement, or at least in cases where the specific provisions concerning protection visas are available to an applicant who wishes to invoke them and non-refoulement has not been squarely raised. […]
[…]
It follows in this matter that, although the s 501CA(4) discretion is wide, it must be exercised by the Minister considering the claims and material put forward by the applicant. If no non-refoulement claim is made – as in this case – non-refoulement does not need to be considered in the abstract.’[63]
[Internal citations omitted]
[62] (2020) 383 ALR 194.
[63] Ibid, page 200, paras [34]-[35]; page 201, para [36].
I include, for completeness, a reference to the recently passed Migration Amendment (Clarifying International Obligations for Removal) Bill 2021 (Cth). The essential effect of this bill is that it requires the executive to undertake a protection assessment before considering removal of a non-citizen from Australia. Previously, Direction 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA provided something like an ‘executive promise’ that this would occur (which, to my knowledge, was never dishonoured).[64]
Plaintiff M1/2021
[64] For example, cl 10.1 of Direction No. 79 relevantly provided: “Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.”
On 11 May 2022, the High Court of Australia – in its decision of M1/2021 v MHA[65] (“M1/2021”) re-visited the question of whether a decision-maker can, ‘defer’ consideration of Australia’s non-refoulement obligations to a future date or event, such as if the Applicant were to apply for a protection visa. Prevailing authority militated against any such deferral by a decision-maker even in circumstances where an Applicant were able to seek a protection visa.[66]
[65] [2022] HCA 17. Date of judgment: 11 May 2022.
The approach formulated by the High Court was expressed thus:
‘Decision-makers' approach to non-refoulement
[28] Where the representations do not include, or the circumstances do not suggest, a non-refoulement claim, there is nothing in the text of s 501CA, or its subject matter, scope and purpose, that requires the Minister to take account of any non-refoulement obligations when deciding whether to revoke the cancellation of any visa that is not a protection visa.
[29] Where the representations do include, or the circumstances do suggest, a non-refoulement claim by reference to unenacted international non-refoulement obligations, that claim may be considered by the decisionmaker under s 501CA(4). But those obligations cannot be, and are not, mandatory relevant considerations under s 501CA(4) attracting judicial review for jurisdictional error – they are not part of Australia's domestic law.
[30] Where the representations do include, or the circumstances do suggest, a claim of non-refoulement under domestic law, again the claim may be considered by the decision-maker under s 501CA(4), but one available outcome for the decision-maker is to defer assessment of whether the former visa holder is owed those non-refoulement obligations on the basis that it is open to the former visa holder to apply for a protection visa.’[67]
[My emphasis]
121.In M1/2021, the plurality clarified that consideration of non-refoulement obligations can be deferred where a non-refoulement claim is made or arises on the facts and the person is able to make a valid application for a protection visa. The decision settles the previously unsettled state of the law on this issue and, to my mind, confirms that it is permissible for a merits-based decision-maker applying s 501CA(4) to determine whether the relevant discretion can be exercised to have regard to the fact that a person may make a protection visa application.
[67] See pages 13-14 of the version of the judgment. Note: where I have inserted bold font in the quoted portion of the judgment, it appears as italics in the actual judgment.
However, I interpret the plurality in M1/2021 to nevertheless require a merits-based decision-maker’s reasons to demonstrate that non-refoulement claims have been read, identified, understood and evaluated, but does not compel that decision-maker to undertake a protection assessment before considering removal of a non-citizen from Australia. Thus, it may be necessary to take account of alleged or claimed facts underpinning such claims:
·where those alleged facts/claims are relied upon for establishing ‘another reason’ why the cancellation decision under s 501CA should be revoked; or
·where they are relied upon as any other matter relevant to the exercise of the discretion to cancel visas pursuant to s 501.
It may also be necessary to take account of claims that fall outside of the protection visa framework such as, for example, claims of generalised violence, inadequate healthcare, homelessness, and harm that is not serious or significant.
For the avoidance of doubt, I have interpreted the Applicant’s position to be such that he is making representations that do include, and/or that the circumstances of this case do suggest, a claim of non-refoulement under Australia’s domestic law. I will therefore take account of the alleged facts or claims propounded by this Applicant as engaging non-refoulement obligations Australia may owe him.
A Summary of the Applicant’s Claims
As best as I understood the submissions put on behalf of the Applicant, he contends that the following circumstances sufficiently engage whatever non-refoulement obligations Australia may owe him:
·1. Nature of his offending and how it is viewed in China: the Applicant has been convicted for very/extremely serious offending in Australia including very significant offending in trafficking illicit drugs. The Applicant says this conduct is viewed very seriously in China and he is fearful that in the event of being re-tried in China for the drug offending he has committed in Australia, he may suffer unduly harsh and degrading treatment and punishment by way of being sentenced either to death or a very punitive sentence involving the imposition of hard or forced labour;
·2. Religious beliefs: he professes an adherence to the Christian faith and, in particular, the Catholic creed of that faith. The contention is put on the basis that this particular creed is not recognised as a faith in China and, as a result, the Applicant says ‘…the Chinese government continues to include the Catholic Church in its religious crackdown.’[68] In addition, the Applicant says that denial of access to his religion in China will adversely impact his recovery: ‘My religion and my beliefs are what have sustained me in my recovery.’;[69]
·3. Identification as part of a group liable to persecution: he claims to be fearful about being typecast as a particular social group in China that he says is identified as ‘former prisoners’. The claim runs along these lines ‘…This does not even take into consideration the societal prejudice that exists making former prisoners outcasts in the community.’[70] As a consequence, says the Applicant, it will be open to the Chinese authorities to target him on the basis of his status as a former prisoner and to make a case against him that he disagrees with or disapproves of the governing political system in China;
·4. Inability to qualify for the “Hu Kou” Household Registration Scheme: this claim is put on the basis that if removed to China, the Applicant will have nowhere to live and work and will not otherwise be able to ‘navigate any of the basic living needs’.[71] The contention is further put thus: ‘There is a Household Registration Scheme call “Hu Kou”, but as I have been absent from China for more than 15 years, my “Hu Kou” has been cancelled a long time ago – without it, it is incredibly difficult if not impossible to find housing and basic employment. I will not be eligible for social benefits like health and education services.’[72]
[68] R1, p 111, para [44].
[69] Ibid.
[70] Ibid, para [47].
[71] Ibid, para [48].
[72] Ibid.
Findings and allocation of weight to Other Consideration (a)
It would, to my mind, be unsafe for this Tribunal to cavil with, respectively, findings of the delegate (who wrote the decision under review) and the protection finding made by the Refugee Review Tribunal and a further delegate of the Respondent when deciding to grant the subject visa (i.e., protection visa) to him. The delegate who wrote the decision under review did not cavil with the Applicant’s successful previous application for a protection visa which did make a protection finding in favour of him. Neither will I.
Taken in totality, the Applicant’s claimed fear(s) of harm upon a return to China cannot be dismissed as remote and fanciful. His fears – specifically, his fear of persecution as a member of the Christian faith and Catholic creed – have been found to engage whatever non-refoulement obligations Australia may owe him.[73] Thus, weight can be applied in favour of the Applicant pursuant to this Other Consideration (a). However, such weight is convincingly subjugated by the very heavy and determinative weight I have respectively allocated to Primary Considerations 1 and 4.
[73] R1, p 28, para [102].
I am of the view (and I find) that the Applicant’s claimed fear(s) of harm upon a return to China attract a moderate, but not determinative, level of weight in favour of the delegate’s decision under review.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments the non-citizen may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
In the SFIC filed on his behalf, weight is propounded to apply in favour of the Applicant pursuant to this particular Other Consideration (b):
‘[28] With regard to impediments to the Applicant if removed, the Delegate found the Applicant would face practical, financial, and emotional hardship on return to China due to his lack of family and social support, cultural barriers, and lack of economic support. Still, the Delegate maintained these impediments will not eventuate for the Applicant except in certain limited circumstances which are not presently relevant. In as much as the Applicant will not have to face these impediments if forcibly returned to China, the details of the issue of the impediments the Applicant would need not to be further examined by the Tribunal. Notwithstanding, it is the Applicant’s contention that even the existence of such impediments that he would face on return to China, go to the overall consideration of whether the mandatory cancellation of his visa should be revoked.’[74]
[74] A1, p 11.
There is a concession on behalf of the Respondent such that some weight is allocable to this Other Consideration (b) but that it does not rise to the level capable of outweighing the combined weight allocable to Primary Considerations 1 and 4.[75] I agree.
[75] R2, p 24, para [81].
Sub-paragraph 9.2(1)(a): this Applicant is now 37 years of age. He appears to be in a state of robust physical health but does have a history of psychological symptoms referrable to anxiety, depression and post-traumatic stress disorder. It can be accepted that the Applicant will experience difficulty in sourcing mental healthcare services in China for two primary reasons: (1) he has resided here since the age of 14 and will, in one way or another, have surely developed a familiarity with publicly available healthcare services in Australia. It is reasonable to conclude that the standard of such publicly available healthcare is different to what the Applicant has come to know in Australia; and (2) his inability to obtain a ‘Hu Kou’ will, in all likelihood, make it difficult for him to locate and engage with equivalent publicly available healthcare services in China.
Sub-paragraph 9.2(1)(b): the Applicant was born in China and resided there until he was 14 years of age. There is little to cavil with a finding that he will not face any substantial language or cultural barriers upon being returned to that country. He appears to have maintained a connection – albeit a predominantly criminal connection – with Chinese people in Australia, as can be seen from the abovementioned narratives descriptive of his offending appearing in the respective sentencing remarks. I am not convinced he will be confronted with ‘substantial’ language or cultural barriers in China. I make that finding on the basis that he lived there until he was 14 and, while language and cultural norms change in almost every country, there is little to cavil with the proposition (and finding) that the Applicant will be able to quickly re-familiarise himself with prevailing language and cultural norms in China.
Sub-paragraph 9.2(1)(c): it can be accepted that the Applicant has a measure of social support in Australia – primarily via his parents. The Applicant says ‘…apart from some extended family members in China who I have not had contact with in a very long time, I have no relatives in China that I know of from China’”[76] The Applicant therefore has minimal social support available to him in China. I am of the further view that his access to medical and/or economic support is also limited due to the likelihood that he will not be able to secure a ‘Hu Kou’ in that country.
[76] R1, p 110, para [36].
I am of the view (and I find) that sub-paragraphs 9.2(1)(a) and (c) of paragraph 9.2 of the Direction attract a moderate, but not determinative, level of weight in favour of revoking the delegate’s decision to refuse to evoke the mandatory cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Paragraph 9.3(1) provides that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community. This includes 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.
There is no evidence before the Tribunal regarding any impact the Applicant’s continued presence in Australia would have on any of his victims. This hearing does not have before it any specific evidence from a victim(s) that such victim(s) would experience an adverse impact as a result of the Applicant’s continued presence in Australia. No doubt, the respective victims of the stabbing and kidnapping/violent extortion incidents would have adverse things to say in any victim impact statement taken from them. However, without such evidence, it would not be safe to enter the realm of conjecture and speculate about the extent to which the Applicant’s offending has had, or would have, on any of his victims.
I am mindful of the authority of PGDX and Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs,[77] which allows a decision maker to have regard to a statement from a victim speaking favourably about the Applicant remaining in Australia. However, in the absence of such a statement in the material before me, no such discussion is warranted.
[77] [2021] FCA 1235.
As best as I understood the material before me, the parties are ad idem that this Other Consideration (c) is of no relevance to the instant determination.[78] I agree with the parties and I allocate no weight to it.
[78] See generally, Transcript, p 118, lines 9-15; see also R2, p 25, para [83].
Other Consideration (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.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature, and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, I will assess the impact of a refusal to revoke decision on the Applicant’s, ‘immediate family members’ where those people have a right to remain in Australia indefinitely. Second, I will assess the impact of a refusal decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, I will assess the strength, nature, and duration of any other 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 is an only child but both of his parents reside in Australia. There is repeated evidence in the material that his parents are aged and in declining health. His parents have provided a letter of support which appears in the material. They say that they are divorced and are both single. They also say that ‘due to our loneliness, we are more reliant on our son. As such, we long to see and talk with him especially when we are staying in hospital with nobody visiting or sending their regards.’[79] Apart from his two parents in Australia, I am not aware of the Applicant having any other immediate family members in Australia.
[79] R1, p 191.
I am of the view that this component of other Consideration (d) carries a moderate, but not determinative, level of weight in favour of revocation. I reach this finding on the basis that his mother and father are each Australian citizens and have a right to remain here indefinitely.
2. Strength, nature and duration of “other ties” – length of residence
There are two necessary enquires behind any assessment of the Applicant’s, ‘other ties’ to Australia. First, it is necessary to ascertain how long he has resided in Australia, including whether he came here as a young child. As I mentioned earlier, the Applicant arrived in this country in 1999 as a 14-year-old. Since his arrival, he has spent the predominant amount of his life in Australia, although a quite significant of that time has been spent either in criminal custody or immigration detention. It can be safely found that the Applicant has spent something like 60% of his life in Australia, but not necessarily in the mainstream community of this country.
I now make reference to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those requires me to allocate less weight if the Applicant began offending soon after arriving here. He arrived in Australia in 1999 as a 14-year-old. He commenced offending barely three years later when aged 17 and a half. Taking this first offending episode as the reference point, it can be found that he commenced offending in Australia ‘soon after arriving in Australia’. The first of these two tempering sub-elements does not assist the Applicant.
The second of the two tempering sub-elements requires me to assess the extent of the Applicant’s positive contributions to the Australian community. I have earlier found that the Applicant does not have any convincing or any other demonstrable record of engagement in remunerative employment in Australia. It is thus safe to find that the Applicant has not been engaged in remunerative employment in Australia. Given the unsatisfactory state of the evidence around [Interpreter K]’s evidence relating to an ‘offer’ of employment, I do not consider the prospects of this Applicant’s engaging in remunerative employment in Australia are all that convincing. This dearth of involvement in remunerative employment means, in turn, he has made minimal positive contributions to the Australian community in the form of taxation he may have made on legitimate earnings. His claimed community contributions comprise “donation towards Catholic Church” and “assistance for flemington Catholic Church”.[80] This second tempering sub-element is of minimal assistance to the Applicant.
[80] R1, p 106.
Even though the first of the two tempering sub-elements does not assist him, the second one can be applied – to a very moderate extent – in the Applicant’s favour to attract some limited weight to this Other Consideration (d) for the purposes of setting aside the delegate’s decision under review.
3. Strength, nature and duration of “other ties” – family and other social links
In terms of extended family, the material refers to the Applicant having a cousin, an aunt and an uncle in Australia. I am not aware of any statement(s) from the uncle and aunt. However, there is a statement from the cousin (dated 1 September 2022) in the material.[81] This cousin has resided here since 2001 and says that he has known the Applicant ‘…since he was born and we grew up together in China and are very close.’[82] He claims to be aware of the extent of the Applicant’s difficulties with lawful authority in Australia and how this has impacted on the Applicant’s visa status to remain here. The cousin goes on to say:
‘As I am in constant contact with my cousin, I can honestly say it is my firm belief and opinion that my cousin has finally found a positive way forward ding [sic] this time away from community – it has provided a “safe” place for him to find himself and to process the trauma of his past.’[83]
[81] See A4.
[82] Ibid, p 1, para [3].
[83] A4, p 3, para [15].
Subject to this cousin being an Australian citizen or Australian permanent resident or a person having an indefinite right to remain here, I am of the view (and I find) that a moderate, but not determinative, level of weight can be applied in favour of the Applicant pursuant to this component of Other Consideration (d).
(2) Impact on Australian business interests
Paragraph 9.4.2(3) requires an assessment of the Applicant’s links to Australia with particular reference to any impact his removal may have on, ‘Australian business interests’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant. To the best of my understanding of the material, neither party is contending to the contrary.
Weight allocable to Other Consideration (d): links to the Australia community
With reference to the first part of this Other Consideration (d) (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above-referred elements – that the totality of the evidence points to the allocation of a moderate, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (d) (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Further Other Consideration (e): Prolonged or Indefinite Detention
I am mindful that the circumstances of this case warrant inquiry into the legal consequences of this decision relating to the Applicant’s visa. Section 189 of the Act provides that a non-revocation result in this application will result in the Applicant’s continued detention until his removal. I also have regard to that provision in circumstances where s189 of the Act requires an unlawful citizen to be detained, and a non-revocation outcome in this application may very well extend the Applicant’s time in an immigration detention facility.
It can be accepted that the likely reality resulting from an adverse decision by this Tribunal is that the Applicant will be kept in immigration detention until another event ends that detention. Paragraph 9.1(3) of the Direction provides three possible alternatives to either refoulement or ongoing detention. They are:
·removal to another country; or
·the Minister exercising their personal discretion under s 195A to grant the Applicant, ‘another visa’; or
·the Minister exercising their personal discretion under s 197AB to make a residence determination enabling the Applicant to reside at a specified place in the community, subject to appropriate conditions.
While it can be found that (1) a possible net result for the Applicant is that he will be detained for a period with no chronologically fixed end point and (2) this prospect of prolonged or indefinite detention may weigh in favour of revocation, the weight attributable to this Other Consideration (e) should, in my view, be limited in the circumstances.
The further point is this: paragraph 9.1(3) of the Direction relevantly provides that were the Applicant able to apply for a protection visa, he would not be liable to be removed while such application is being processed and determined. In the event a ‘protection finding’ were made, the Applicant would not be liable for removal unless and until any one of the following occur:
·the decision grounding the protection finding is quashed or set aside; or
·pursuant to s 197D of the Act, the Minister forms the view that the Applicant is no longer a person in respect of whom any protection finding for the purposes of s 197C(3) of the Act applies; or
·the Applicant asks the Minister, in writing, to be removed.
However, this pathway is not open to the Applicant in the event of an adverse decision by this Tribunal. This is because he will not be able to apply for another protection visa. In the circumstances, I am of the view, and I find, that the element of prolonged or indefinite detention is of moderate, but not determinative, weight in favour of restoring the Applicant’s visa status to remain here.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (nominated in the Direction[84]) relevant to the present matter:
(a)International non-refoulement obligations: is of a moderate, but not determinative, level of weight in favour of revocation;
(b)Extent of impediments if removed: is of a moderate, but not determinative, level of weight in favour of revocation;
(c)Impact on victims: is of neutral weight;
(d)Links to the Australian community: is of a moderate, but not determinative, level of weight in favour of revocation; and
(e)Prolonged or indefinite detention: is of a moderate, but not determinative, level of weight in favour of revocation.
CONCLUSION
[84] Plus, Other Consideration (e) which I have added as part of my consideration.
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 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 very heavily against revocation;
·Primary Consideration 2: is not relevant;
·Primary Consideration 3: is not relevant; and
·Primary Consideration 4: weighs very heavily against revocation.
·I have outlined the weight attributable to the Other Considerations.[85] I am of the view (and I find) that the combined weights I have allocated to Other Considerations (a), (b), (d) and (e), respectively,[86] are not sufficient to outweigh the combined very heavy weights I have respectively allocated to Primary Considerations 1 and 4; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
[85] Including the additional Other Consideration (e) which I have identified as, “prolonged or indefinite detention”.
[86] Including weight I have allocated to Other Consideration (e): prolonged or indefinite detention.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
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 5 July 2022, to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 162 (one-hundred-and-sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.........................[SGD].................................
Associate
Dated: 7 October 2022
Date of hearing:
8 & 9 September 2022 Solicitor for the Applicant:
Ms Suzanne Castellas, Principal
Castell LawyersSolicitor for the Respondent Mr Oliver Morris, Senior Associate
Clayton Utz LawyersAnnexure A
EXHIBIT REGISTER
EXHIBIT
PARTY
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
R1 R
Section 501G Documents (G1-G42, pages 1-665)
Re-filed – 1st version received 26 July 2022
Various 24 August 2022 R2 R
Respondent’s Statement of Facts Issues and Contentions (pages 1-27) 24 August 2022 24 August 2022 R3 R
Supplementary Section 501G Documents (SG1-SG32, pages 1-369) Various 24 August 2022 R4 R
Respondent’s Summons Bundle (SB1-SB6, pages 1-582) Various 22 August 2022 R5 R
Statement in Support [Interpreter K] (pages 1-2) 1 September 2022 2 September 2022 A1 A
Applicant’s Statement of Facts Issues and Contentions (pages 1-16) Undated 10 August 2022 A2 A
Applicant’s Statement of Facts Issues and Contentions in Reply (pages 1-9) 2 September 2022 2 September 2022 A3 A
Psychologist Report (Dr Paul Pusey) (pages 1-25) 1 September 2022 2 September 2022 A4 A
Statement in Support [Mr M] (pages 1-3) 1 September 2022 2 September 2022 A5 A
Applicant Statement (pages 1-3)
Parole Documentation (pages 1-4)
5 September 2022
14 April 2021
5 September 2022
- AGLC
- BFQX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 3406
- Case
- [2022] AATA 3406
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether certain claimed protective factors, including abstinence from illicit drugs, participation in rehabilitation courses, employment prospects, religious beliefs, responsibility towards his parents, educational achievements, and adherence to parole reporting, were sufficient to outweigh the serious nature of the applicant's past conduct and the risk of re-offending. The Tribunal also had to consider Ministerial Direction No. 90, which outlines the framework for assessing character concerns, including primary considerations such as the protection of the Australian community and community expectations, and other considerations such as international non-refoulement obligations.
The Tribunal found that the applicant's claimed protective factors lacked substance and had historically failed to prevent him from engaging in very serious offending upon his return to the community. The Tribunal noted that periods of abstinence in custody did not translate to sustained abstinence in the community, and rehabilitation programs and educational courses had not demonstrably reduced his recidivist risk. The Tribunal concluded that the applicant's unlawful conduct in Australia was of a "very serious, more likely extremely serious" nature, and that the risk of future harm to the Australian community if he were to re-offend was unacceptable.
The Tribunal affirmed the decision to refuse to revoke the mandatory cancellation of the applicant's visa.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
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’ by which I must be guided 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 No 90, para [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] Ibid, para [9(1)].