BJKY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2024] AATA 1000

BJKY and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1000 (8 May 2024)

Division:GENERAL DIVISION

File Number:          2024/0938

Re:BJKY  

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Ms A E Burke AO, Member

Date:8 May 2024  

Place:Melbourne

Pursuant to section 43(1)(c)(i) of the Administrative Appeals Act 1975, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal finds there is another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of BJKY’s visa.

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

Ms A E Burke AO, Member

Catchwords

MIGRATION – applicant is a citizen of Albania – applicant held a Class BC Subclass 100 Spouse (Permanent) visa – visa mandatorily cancelled under Migration Act – substantial criminal record – delegate of Minister decided not to revoke mandatory cancellation – serious offence – consideration of the Ministerial Direction 99 – primary considerations – protection of the Australian community – nature and seriousness of the conduct – conduct found to be very serious – risk to the Australian community – expectations of the Australian community –  links to the Australian community – best interests of minor children in Australia –  extent of impediments if applicant removed to Albania – decision under review set aside and new decision substituted that there is another reason for visa not be revoked.

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Cases

Ali v Minister for Home Affairs [2020] FCAFC 109
FYBR v Minister for Home Affairs [2019] FCAFC 185
Irving v Minister for Immigration & Multicultural Affairs (1996) 68 FCR 422
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Nunez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 809
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497

RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27

Secondary Materials

Migration Act 1958 – direction under s 499 – Direction No. 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)

REASONS FOR DECISION

Ms A E Burke AO, Member

8 May 2024

1. On 28 July 2021 a delegate of the Minister, administering the Migration Act 1958 (Cth) (the Minister), cancelled BJKY's Class BC Subclass 100 Spouse (Permanent) Visa under section 501(3A) of the Migration Act 1958 (Cth) (the Act). On 25 August 2021 BJKY's legal representatives provided a response to the decision requesting revocation of the decision to cancel his visa for other reasons.

2. On 3 July 2023, BJKY was granted parole and on 25 July 2023 he was placed in the custody of the Australian Border Force and transferred from South Australia to the Broadmeadows Detention Centre in Melbourne.

3. On 13 February 2024 a delegate of the Minister made a decision not to revoke the cancellation of BJKY's visa. The delegate found that:

   I have found that the best interests of BJKY's minor child and other minor relatives, as a primary consideration, weigh in favour of revocation of the cancellation of BJKY's visa. I have placed significant weight on the best interests of BJKY's son, while limited weight on the best interests of other minor relatives given the non-parental type relationship that exists.

   I have also found that BJKY's ties to Australia, as a primary consideration, weigh moderately in favour of revocation, noting in particular the negative impact of my decision on BJKY's wife and son. However, I also note that BJKY has spent the majority of his formative years in Albania, and I have given less weight to BJKY's ties to Australia for this reason.

   In addition, I have found that another factor also weighs, albeit slightly, in favour of a decision to revoke, that being the impediments BJKY may face if removed from Australia to Albania, including in establishing himself and maintaining basic living standards.

   However, I have also given significant weight to the crimes committed by BJKY in Australia that includes aggravated blackmail and cultivating/trafficking a commercial quantity of drugs, namely cannabis.

   Furthermore, I have considered that the Australian community, as a norm, expects the Government not to allow non-citizens who have engaged in violent offences such as aggravated black mail, and serious drug offences to enter or remain in Australia. I give this primary consideration significant weight as well against revocation of the visa cancellation.

   I am cognisant that where significant harm could be inflicted on the Australian community, any risk of reoffending may be considered unacceptable.

4. On 16 February 2024 BJKY applied to the Administrative Appeals Tribunal (the Tribunal) under section 501 of the Act seeking review of the decision to refuse to revoke the cancellation of his visa, stating:

   I do not believe that the assessment as to my character today is correct. I do not dispute that I do not meet the character test as defined by s501 of the Migration Act. I feel, however, that the Decision-maker did not place enough emphasis on the rights of my Australian Citizen wife and our son nor on the effects of non-revocation on my Australian Citizen mother and siblings as well as on their children. I maintain that my past association with members of an outlaw motorcycle gang weighed heavily against me without appropriate consideration of my detailed submissions as to my past association and my present repudiation and abhorrence of them and all they stand for / stood for. I also do not think that the remarks of the sentencing judges were given appropriate consideration by the delegate. I am sincerely remorseful for my past actions, and I maintain that I will not offend again. I am not a danger to the Australian community.

5. At the hearing of his application on 22 to 24 April 2024 BJKY was represented by Ms Marion Le, migration agent and Mr Keith Sypott, solicitor advocate of the Australian Government Solicitor appeared for the Respondent. The Minister lodged a set of paginated G-Documents. BJKY provided numerous references from family members and friends, relevant newspaper articles as well as making written and oral submissions. BJKY’s wife, mother and sisters also gave oral evidence at the hearing. BJKY submitted and relied upon two psychological reports, however neither psychologist was available to provide evidence at the hearing and the Tribunal does not draw any inference from their failure to appear.

   BACKGROUND

6. BJKY is a 33 year old Albanian citizen, who arrived in Australia as a 17 year old in 2009 on a sponsored visa with his mother and two sisters, following his mother’s marriage to her deceased husband’s older brother, who is a dual Albanian and Australian citizen. BJKY first settled in Sydney with his family but moved by himself to South Australia in 2010 at the behest of one of his cousins. Following his mother’s divorce in 2012, she and his sisters moved to South Australia to be closer to BJKY.

7. BJKY grew up in a small village in rural Albania, describing his circumstances as “poor but okay life”. When BJKY was 7 years of age, his father, the village police officer and head of the village council, was killed in a politically motivated attack.

8. BJKY completed his education in Albania and has worked in Australia on and off as a painter, general labourer, undertaking plaster board repairs and gyprocking. He also ran his own business from 2017 until 2019 when his bail was revoked.

9. BJKY is married to an Australian citizen; they have been together for over 9 years and married for 6 years. They have one son who is 4 years of age; the day after his birth, BJKY was taken into custody.

10. Dr Loraine Lim, Psychologist, in a Psychological Pre-sentence Report dated 31 January 2020 outlined BJKY’s account of his offending:

    BJKY became acquainted with a group of Albanians who were members of an outlaw motorcycle club a short time after he came to SA in 2010. He told me that he had had no comprehension of the concept of a “bikie” or an outlaw motorcycle club until after he was arrested for blackmail and sent to jail. Such constructs and social group structures did not exist in Albania. According to BJKY, he had considered the individuals he was associating with, prior to 2012, as “my fellow Albanians. They were my friends. I didn’t know I was in the club. I was never a patched member. I only drink with them in restaurants and pubs. I never go to their clubhouse. Sometimes I go with them to their meetings, but I always sit in the car to wait”. On the occasion that he was arrested for blackmail, he said that he was socialising with this group of peers at a “coffeeshop” when one of them asked him to “do a favour” for them. The next thing he knew, he was being arrested for “blackmail” by police. He said he did not understand what the word meant and had initially thought it was all a mistake because he was not associated with any “black man”. He eventually came to understand the ramifications of his actions including the significance of his association with members an outlaw motorcycle club. He said he thus decided he no longer wanted anything to do with them after he was released from custody in 2014.

    BJKY told me that he was told to “go to the Comancheros clubhouse” when he repeatedly failed to respond to their phone calls after he was released into the wider community in 2014. That was his first visit to the clubhouse. When he got there, he recalled that he was given a t-shirt with the Comancheros’ logo to wear. He remarked, “That’s when I got scared. I was shocked. They were people I never met before.... In jail, I learnt what a bikie club was and I didn’t want to be in it. But I took the shirt. I was scared to say no. So I took it and I hid it from my wife and my family...I wanted to run away, but I was on a good behaviour bond. I couldn’t leave the state”.

    BJKY said he subsequently tried all sorts of strategies to avoid the members. He changed his mobile number and residences on several occasions. He stuck to his job and with socialising with his family only. However, one of the members spotted him on the street one day and approached him, and insisted that he go with him to the clubhouse. At the clubhouse, BJKY was stripped of his jewellery. He was also informed that he could “leave” the club only after he paid a $10,000 fine. He did not possess that amount of money, so he went home and took approximately $1500 worth in cash that he kept for emergencies and gave it all to them. However, they continued to insist on more money, threatening his and his family’s lives if he did not pay up. On one occasion, he said he was “grabbed off the street” and taken to their clubhouse and “bashed”. As he was “very scared”, he refused to go to the police or to get help from a medical facility after they released him.

    The threats and pressure on him from members of the Comancheros persisted until BJKY said he randomly bumped into an old acquaintance who was also Albanian, former associate at [location]one day. He decided to confide in this individual about his predicament, and afterwards he said this individual loaned him $3000 to put towards his “debt” to the Comancheros. However, he was told that amount of insufficient and that his debt had increased by another $10000. He was assaulted again, before they reportedly told him that his debt would be wiped out if he “start doing crime for them”. BJKY said he refused that offer. He then went back to his former associate to borrow more money, but the same thing happened again. He was informed by the Comancheros that the money was “not enough”, that his “debt” had increased yet again, and was “bashed up”. This pattern of behaviour repeated itself a few more times before former associate finally told BJKY that he “couldn’t keep on giving me money for nothing”.

    The former associate apparently told BJKY that in order for him to keep giving him money towards his debt to the Comancheros, he would have to earn it by “finding houses for him” and act as former associate’s translator, as the latter could not speak English. It was against this background that the current drug offences occurred. He was apparently naïve as to what former associate needed those “houses” for at first, but over time, he came to realise it was for the cultivation of cannabis plants. He subsequently became involved in the setting up of those properties to cultivate the plants, apparently because he felt significantly obligated to former associate by that stage. He said, “I knew it was wrong, but I didn’t feel I had a choice by then. I was scared to go to the police station. All I wanted was to pay off my debt to bikies and leave the state with my wife. I thought to myself, maybe it will all be okay. I am not really involved. They are former associate’s plants not mine. I’m just looking after them for him. And he’s helping me also”. Over the entire period of the offending, former associate was reportedly giving him “$1000 to $2000 often” to pay the Comancheros. In total, he estimated that he had been given approximately “$70000 or $80000” in cash from the former associate.

    ISSUES

11. In his Statement of Facts, Issues and Contentions filed on 25 March 2024 BJKY conceded that he did not pass the character test for the purposes of section 501CA(4)(b)(i) of the Act and he confirmed this at the hearing. The Tribunal is satisfied that BJKY does not satisfy the character test under section 501 on account of his substantial criminal record as defined under section 501(7), that being sentenced to a term of imprisonment of 12 months or more.

12. Accordingly, the issue for consideration by the Tribunal is whether the cancellation of BJKY’s visa should be revoked, taking into account the relevant considerations in Ministerial Direction No 99 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under section 501CA. In essence, the Tribunal must be satisfied there is another reason why the original decision should be revoked.

    LEGISLATIVE FRAMEWORK

13. The Tribunal operates under the Administrative Appeals Tribunal Act 1975 (the AAT Act). Section 25 of the AAT Act allows the Tribunal to conduct a review of decisions made under other pieces of Commonwealth legislation, including the original decision made concerning BJKY. Under section 43(1) of the AAT Act, when making a decision, the Tribunal may exercise all of the powers of the original decision-maker. The Tribunal must review the merits of the matter under review and come to the correct or preferable decision.

14. Visa cancellation on character grounds is established in section 501 of the Act. Under section 501(3A)(a)(i) the Minister must cancel a visa if satisfied a person has a substantial criminal record. This requirement is provided for in section 501(6)(a), and a substantial criminal record comprised of a sentence to a term of imprisonment of 12 months or more is provided for in section 501(7)(c).

15. The power to revoke (or reverse) this mandatory cancellation is found in section 501CA of the Act. The mandatory cancellation may be revoked if a person either passes the character test, or the Minister is satisfied that there is another reason why the original decision should be revoked (section 501CA(4)(b)).

16. A Direction has been made under section 499 of the Act that provides guidance a decision-maker must take into account when considering revocation under section 501CA. This document is known as Direction No. 99, issued on 23 January 2023, which came into effect on 3 March 2023 (the Direction). Part 2 of the Direction sets out ‘primary’ and ‘other’ considerations that must be considered, and each one is accompanied by specific factors that inform the making of a decision.

17. Part 1 of the Direction includes a Preamble, that identifies Objectives and Principles. The Principles (5.2) provide the framework for decision making and are as follows:

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

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to 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 engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies 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.

    (5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    (6)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 8.55(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.

    EVIDENCE

    BJKY’s Offending

18. The following table has been derived from a national criminal history check (NCHC) relating to BJKY produced by the Australian Criminal Intelligence Commission on 29 November 2022:

19.     COURT DATE	OFFENCE	COURT RESULT
15 Feb 2021	1.     Possess prescribed equipment Abstract or divert electricity from power system Cultivate a commercial quantity of controlled plant - basic 2.     Cultivate a commercial quantity of controlled plant - basic (3) Cultivate a controlled plant - basic offence Possess prescribed equipment (4) Abstract or divert electricity from power system (4) Traffic in large commercial quantity of controlled drug 3.     Application for enforcement of breached bond	1.     Sentenced 2 years 8 months 13 days imprisonment concurrent 2.     Sentenced 4 years 6 months 19 days imprisonment 3.     Found proved 4 years imprisonment concurrent Head Sentence 7 years 8 months 26 days imprisonment Non Parole Period 3 years 5 months 24 days from 24/09/19
17 Dec 2020	Fail to comply with bail agreement	Convicted Discharged without penalty
27 Feb 2017	Drive with excess blood alcohol	Convicted Fined $900 Driver`s licence disqualification 7 days from 6/3/17
8 Sep 2015	Drive under disqualification or Suspension	Convicted Fined $150
18 Dec 2014	Drive under disqualification or Suspension	Convicted 7 days imprisonment Suspended sentence bond $100 12 months
26 Feb 2014	Blackmail (aggravated offence) (2)	Convicted 4 years imprisonment Non parole period 2 years Suspended sentence bond $500 3 years
13 May 2010	Unauthorised person drive motor vehicle on road	Convicted Driver`s licence disqualification 5 days

1. In his sentencing remarks on 15 February 2021 his Honour Judge Burnett described BJKY’s offending:

   BJKY, you have pleaded guilty to 16 separate offences relating to the cultivation of cannabis at five grow houses and including one count of trafficking in a large commercial quantity of cannabis. The offences occurred in the period between 2 December 2015 and 22 May 2017.

   In addition, you have come before me on an application for the enforcement of a breached bond. On 26 February 2014, you were sentenced following an appeal to the Court of Criminal Appeal to a term of imprisonment of four years with a non-parole period of two years for two counts of aggravated blackmail. That sentence was suspended on you entering into a bond for a period of three years expiring on 26 February 2017. One of the conditions of the bond was that you be of good behaviour.  You were you in custody in the period from 13 September 2012 to 20 September 2013 in relation to those charges. I will take that time into account.

   The circumstances of that offending involved threats of violence against two victims if they did not pay large amounts of money. Your role was lesser than your two co-accused. You have admitted that by your offending for which I am to sentence you today, you have breached the bond by failing to be of good behaviour.

   These charges were in respect of five grow houses located at [location]. You were also charged with associated offences in respect of each of the grow houses, namely the diversion of electricity from a power system, contrary to s.85(1)(a) of the Electricity Act 1996 (SA) and the possession of prescribed equipment, contrary to s.33LA of the Controlled Substances Act.

   …

   Across the five houses, it is estimated that the plants would have yielded between 22.25 kg and 30.35 kg of fully dried cannabis. With the additional 6.6 kg of fully dried cannabis that it is estimated would have been obtained from the 25 kg of fresh cannabis from the [location] property, the estimated total quantity of dried cannabis that would have been obtained from the enterprise is between 28.85 kg, which is equivalent to 63.6 pounds, and 39.95 kg, which is equivalent to 81.5 pounds.

   As at May 2017, the cannabis price was:

   (1)       for a J-bag, $25 to $30;

   (2)       for an ounce $200 to $300;

   (3)       for a pound, 454 g $2,000 to $3,000.

   Therefore, if sold by the pound, the estimated value of the dried cannabis would have been between $127,200 approximately (on the lowest yield estimate and at $2,000 a pound) and $244,500 (in the highest yield estimate and at $3,000 a pound).

   On any view, you stood to obtain a significant reward from the cultivation of the cannabis crop.

2. In their remarks in the Supreme Court on 26 February 2014 on the application by the Director of Public Prosecutions for permission to appeal against three sentences imposed in the District Court by The Honourable Chief Justice Kourakis, the Honourable Justice Gray and The Honourable Justice Nicholson described BJKY’s offending:

   The defendants and respondents, Mr P, BJKY and Mr T, each pleaded guilty to two counts of aggravated blackmail.

   …

   Between 2004 and 2006, two men had invested monies in a company associated with B. As a consequence, it was said that they had lost approximately $900,000.00. Apparently the two men were upset about the loss, however, they had not made any claim that any debt was owed to them by B. On 9 August 2012, one of the men met with B and told him that he was under pressure to obtain $100,000.00 of the money that had been lost.

   On 30 August 2012, B received a telephone call from Mr P who identified himself as “Frank Albanian”. He said he wanted to see B about some business and asked B to meet him that evening. B refused to meet, saying he did not know who Frank Albanian was.

   On 31 August 2012, the defendants, together with five or six other men, attended business premises at [location] operated by B. Mr P spoke to B outside his shop and then in a car park adjacent to the shopping centre. At this time, the defendants and the other men surrounded B. Mr P informed B that he was something like the “head senior” of the Comanchero Motorcycle Club in Sydney. He claimed to have taken over a debt so that the debt was now owed by B to Mr P. At the time, Mr P was wearing a jacket, to which there appeared to be attached a Comanchero badge. Mr P showed B a slip of paper which had words to the effect of “My dad is owed 600k and I am owed 750k” handwritten on it. The words “total 1.35 million” were also written on the paper. B was threatened that if he did not pay, he and his family, including his elderly mother, would be dealt with violently. Mr P said he would take over B’s business and make life very hard for him. He threatened to kill B’s mother. Mr P said words to B to the effect of, “I know where you live in North Adelaide” and “you can sell your home and pay us”. Mr P demanded that some of the debt be repaid. He informed B that if no payment was made, B would be put in the boot of a car and taken away.

   Mr P demanded B’s car and B handed the keys to Mr T. The vehicle was later driven away. Mr T provided B with a phone number to contact him. Mr P told B to contact “Tee” on that number to work out payment of the money. B was further threatened that if payment was not made, the men would return to his business and take his property.

   Some days later, Mr P, Mr T and two other unidentified men went to B’s business premises, but B was not in attendance that day. By this time, B had reported the offending to the police and an undercover operation had commenced. Three undercover police officers played the part of associates of B. On 7 September 2012, B contacted Mr P by telephone. The call was recorded. In the course of the call, Mr P made a reference to B owning a house worth $1.5 million. Repeated references were made concerning B’s children and of Mr P coming to B’s residence. B was further threatened that if the money was not paid, “the boys” would come and “destroy everything in [his] life”.

   On 9 September 2012, B made a further telephone call to Mr P in response to a missed incoming call from Mr P. During this call, Mr P repeated his threat to “come and visit you with my boys”, adding that they would come at night and put him in the boot of a car.

   On 10 September 2012, an undercover police officer, using B’s mobile telephone, attempted to engage Mr P in conversation. Mr P refused and insisted on speaking with B. Shortly thereafter, Mr P contacted B by telephone. B missed the call and called Mr P back. Mr P threatened to put him in a coma. The undercover police officer then spoke with Mr P to discuss the payment of cash in exchange for the return of the vehicle. On 12 September 2012, further negotiations occurred and by 13 September 2012, it was arranged between the undercover police officer and Mr P that a payment of $20,000.00 would be made in exchange for the return of the vehicle.

   On 13 September 2012, telephone calls were made between an undercover police officer and Mr P to arrange a meeting which ultimately took place at a Café in [location]. The undercover police officers were in attendance at the Café with the $20,000.00 cash. Mr P and BJKY were in the vicinity of the café and Mr T was bringing B’s vehicle. A conversation took place between Mr P and the undercover police officer, in the course of which Mr P represented himself as having 700 Comanchero members behind him and the capacity to arrange for someone to shoot B.

   At one point during the conversation, Mr P had a handheld electronic device and moved it around the body of the undercover police officer, asking if he had anything on him. Mr P directed the cash to be handed to BJKY, who admitted that he then handed it to a third party who disappeared. The cash has not been recovered. After the deal had been concluded, Mr P wiped a glass he had been handling, presumably to remove fingerprints. Following the handing over of the money, Mr P walked to a motor vehicle being driven by Mr T and, at that time, the defendants were arrested.

   On 31 August 2012, following the offending at [location], the defendants and a number of men proceeded to business premises at [location]. Shortly after 7.00 pm, S was closing his business at [location]. The defendant and the other men arrived in two motor vehicles. Mr P, Mr T and BJKY entered the premises. S left the premises and walked to a pizza shop, where others were present. Mr P, Mr T and BJKY followed and made threats to S in the pizza shop. Mr P presented S with a piece of paper with the amount of $10,500.00 written on it. Mr P pointed to a ring he was wearing and asked S whether he knew who he was. The ring bore a crest which S took to refer to a bikie club. Mr P told S that the $10,500.00 was a debt owed to him and threatened S that if the debt was not paid, he would be shot or put into the boot of a car. The defendants encouraged S to return with them to his business premises. At those premises, S handed Mr P $690.00, being the business takings of that day. At this time, Mr P struck S to his neck. Mr T then took S outside of the premises to the rear car park and continued discussions as to how the debt could be paid. At this time, Mr P made further threats of an indecent nature. S was informed that the debt had been purchased by Mr P from a person that S understood to be a reference to one of the two earlier referred to men. S attested that he owed nothing to him. In the course of the discussion, Mr T agreed that S could have 14 days in which to gather the money. There was no further contact between the defendants and S prior to the defendant’s arrest on 13 September 2012.

   The offending was well-planned. Both B and S were approached at their respective business addresses on the same day. At the time of the approach, in addition to the defendants, arrangements had been made for some five or six other men to attend. Mr P had gathered information about B, including his residence and its value, and B’s family. Mr P attended on 31 August 2012 with pieces of paper recording the suggested debts and showed this paper to both B and S. The defendants were in a position to take possession of B’s motor vehicle and to store it prior to its return. These were premeditated offences. As noted above, arrangements for the meeting on 13 September 2012 were discussed on a number of occasions. Mr P had with him a device to check whether the undercover police officer was wearing a wire. Arrangements were in place for the cash, once handed over, to be immediately removed from the scene. The return of B’s vehicle was organised and the getaway vehicle was in place.

   PRIMARY CONSIDERATIONS

   Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct (paragraph 8.1)

3. The Direction requires the Tribunal to keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens (8.1(1)). The Tribunal must have particular regard to the principle that remaining in Australia is a privilege given the expectation that non-citizens are law-abiding, respect important institutions and will not cause or threaten harm to individuals or the Australian community.

4. This primary consideration also requires the Tribunal to consider two specific elements: the nature and seriousness of a non-citizen’s conduct to date; and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct (8.1(2)(a)-(b)).

   The nature and seriousness of the conduct (paragraph 8.1.1)

5. BJKY did not contest he had committed serious crimes and accepted that he failed the character test.

   Submissions

6. BJKY submitted he accepts that:

   ·he does not pass the character test under section 501(2) as defined by section 501(6) and section 501(7) of the Act.

   ·he has a substantial criminal record under section 501(7)(c) which provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

   ·the other matters as recorded in the NCHC are matters of fact.

   ·the crimes for which he was convicted, are extremely serious and involve violence.

   ·in the past, he was associated with members of the Comancheros Outlaw Motorcycle Gang (OMCG) and has never denied this association and the facts stand for themselves.

   ·he has not acted in accordance with the legally stated values of the Australian community and the finding of the delegate that: the Australian community, as a norm, expects the Government not to allow non-citizens who have engaged in violent offences such as aggravated blackmail, and serious drug offences, to enter or remain in Australia and where significant harm can be inflicted on the Australian community, any risk of reoffending may be considered unacceptable.

7. BJKY’s representative submitted BJKY was aware that the term "good character" is not defined in the Act. BJKY’s representative submitted the Federal Court of Australia (FCA) and the AAT have used the ordinary meaning of the words and have made reference to dictionary definitions. BJKY’s representative noted most cases have adopted the definition from the Full FCA in Irving v Minister for Immigration & Multicultural Affairs (1996) 68 FCR 422 at 431 - 432:

   ” ... Unless the terms of the Act and the regulations require some other meaning to be applied, the words 'good character' should be taken to be used in their ordinary sense, namely a reference to the enduring moral qualities of a person, and not the good standing, fame or repute of that person in the community. The former is an objective assessment apt to be proved as a fact while the latter is review of subjective public opinion ... A person who has been convicted of a serious crime and thereafter held in contempt in the community, nonetheless may show that he or she has reformed and is of good character ... conversely, a person of good repute may be shown by objective assessment to be a person of bad character [emphasis mine].”

8. Additionally, BJKY’s representative noted the Citizenship Policy (CPI) 15 states that the phrase 'enduring moral qualities' encompasses the following concepts:

   ·Characteristics which have endured over a long period of time;

   ·Distinguishing right from wrong; and

   ·Behaving in an ethical manner; conforming to the rules and values of Australian society.

9. Therefore, BJKY’s representative contended that whilst BJKY does not dispute he fails the character test as defined in the legislation, that the Tribunal should not consider BJKY is a bad person. BJKY’s representative contended BJKY has reformed, learnt from his experiences, matured, and does not present a risk to the Australian community.  BJKY’s representative contended the mandatory cancellation of his Visa should be revoked as the Tribunal can be satisfied that there is another reason why the original decision should be revoked (section 501CA(4)(b)).

10. The Respondent submitted that BJKY has committed 24 criminal offences and summarised them as follows:

    (i)Unauthorised person drive motor vehicle on road – in the Magistrates’ Court on 13 May 2010, he was convicted and his driver’s licence was disqualified for 5 days.

    (ii)Blackmail (aggravated) (2 counts) – he was convicted in the District Court. A prosecution appeal against his sentence was allowed on 26 February 2014, and the Court of Criminal Appeal sentenced him to 4 years’ imprisonment, with a non-parole period of 2 years. That sentence was suspended for a period of 3 years upon BJKY entering into a bond. The sentencing remarks of the Court describe BJKY as being involved in “serious criminal offending”, where he, together with two co-offenders, demanded large sums of money from two men, including by threatening violence against them, took one of the victim’s cars and suggested that he and his co-offenders were affiliated with the Comancheros OMCG. The Court rejected BJKY’s submissions that his culpability was less than his co-offenders, noting that he was the recipient of a payment of $20,000.00 in connection with the offending and that he had given that money to a third person who had disappeared.

    (iii)Drive under disqualification or suspension – in the Magistrates’ Court on 18 December 2014, he was convicted and sentenced to 7 days’ imprisonment, suspended for a period of 12 months.

    (iv)Drive under disqualification or suspension – Magistrates’ Court on 8 September 2015, he was convicted and fined $150.00.

    (v)Drive with excess blood alcohol – in the Magistrates’ Court on 27 February 2017 he was convicted fined $700.00 and his driver’s licence was also disqualified for 7 days.

    (vi)Fail to comply with bail agreement – in the Magistrates’ Court on 17 December 2020 he was convicted and discharged without further penalty.

    (vii)Possess prescribed equipment (5 counts), abstract or divert electricity from power system (5 counts), cultivate a commercial quantity of controlled plant (basic) (5 counts), and traffic in large commercial quantity of controlled drug – in the District Court on 15 February 2021 he was convicted of this offending and received a head sentence of 7 years, 8 months and 26 days’ imprisonment, with a non-parole period of 3 years, 5 months and 24 days. The suspension of the sentence of 26 February 2014 was also revoked. The sentencing remarks of the Court disclose that this offending involved the Applicant cultivating cannabis plants for sale at 5 grow houses. The sentencing judge found that the Applicant stood to obtain a “significant reward” from an “extensive… well-planned and ongoing commercial enterprise”. The sentencing judge rejected BJKY’s suggestions that his offending occurred as a result of a debt owed to a former associate or that the Applicant was subservient to the former associate’s enterprise.

11. The Respondent submitted that BJKY’s criminal history is very serious for the following reasons:

    (a)His blackmail offending included the threatened use of violence and resulted in the imposition of a lengthy sentence of imprisonment.

    (b)He played an important role in the cultivation of a commercial quantity of drugs offending, from which he stood to make a significant financial gain. The offending also resulted in the imposition of two lengthy sentences of imprisonment.

    (c)Although his traffic offences are less than his other offending, when that offending is viewed in its totality, it reflects a disregard for Australian road rules that potentially placed members of the public at risk.

    (d)He has committed 24 offences since his arrival in Australia, which has had a cumulative effect.

12. The Tribunal when considering the nature and seriousness of BJKY’s offending must have regard to numerous aspects as set out in the Direction. In respect of BJKY’s offending the Tribunal finds it is undoubtedly serious, his participation in the blackmail offending was violent and threatening, resulting in great distress to the victims; his actions in the commercial cultivation of cannabis has resulted in great harm to the Australian community and his disregard for the road rules also put at risk the broader Australian community.

13. Paragraph 8.1.1(1)(a) requires that the Tribunal must have regard to the types of crimes committed and consider that the Australian Government and the Australian community view violent crimes very seriously.

14. The Tribunal finds that BJKY’s criminal offending involved violence.

15. Paragraph 8.1.1(1)(c) requires that the Tribunal must have regard to the sentence imposed by the court for a crime or crimes.

16. The Tribunal finds there is no dispute that BJKY has received considerable custodial sentences and finds the sentences imposed by the courts is indicative of the seriousness of his actions. The length of his sentences also indicates the gravity of his actions as viewed by the Australian public.

1. Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of the offending or whether there is any trend of increasing seriousness.

2. The Tribunal finds BJKY’s offending was escalating and his direct involvement in criminal behaviour was increasing.

3. The Tribunal did find the evidence indicated BJKY was young, naive, and adopting to his new home in Australia when he fell in with fellow Albanians who happened to belong to an OMCG.  

4. BJKY in a statutory declaration of 10 January 2023 submitted:

   I have never been a sworn / patched member of any bikie group or gang. Rather, I was "stood over" by older men - namely Mr P and Mr G - and used by them as a driver to take them places and drop them off. I dared not refuse. I was very frightened of both men. I understand that both men have been deported to Albania. I am very afraid of returning to Albania because they are there. I do not have any knowledge of the whereabouts of Mr T who was a co-offender in my criminal matter. I was also scared of him.

5. BJKY’s evidence to the Tribunal was:

   ·When he started his first job as a painter in South Australia through his Albanian cousin, he met Mr P at the job site as he was related by marriage to other men working at the site.

   ·He did not know Mr P was a criminal or involved with an OMCG.

   ·At the time BJKY did not know many people and spoke little English so he was happy to have someone to hang out with, who spoke Albanian and who knew their away around.

   ·Mr P was 10 years older than him, but they hung out together, going for coffee and drinks.

   ·Mr P would ask him to drive him places. At first he was happy to help as he liked having a friend but over time he was being asked more and more to take him and other people places, often he drove them to things and waited in the car for them.

   ·They paid for his petrol, drinks and sometimes bought him drugs.

   ·When he found out Mr P was involved in an OMCG he didn’t really understand what it meant, but knew they were up to illegal things and he did not want to get involved but they kept calling demanding he pick them up, he tried to say he couldn’t because he was busy with family, but they did not let up and said he had to go.

   ·Over time he found out things about Mr P, that he was a dangerous, risky person, he was afraid of him and afraid to say no to him.

   ·When he was at the first blackmailing incident, he was not the person doing the threatening and was just hanging out with friends, but he pled guilty because he knew he should not have been there, and he was charged with joint enterprise.

   ·At the second blackmailing incident he knew they were going to intimidate someone and he was there to take the money and pass to another man, he pled guilty as he knew he had done the wrong thing.

6. But the Tribunal was not persuaded by BJKY’s protestations that he had continued down a path of criminal behaviour out of fear of reprisal from his former co-accused and their associates at the Comancheros. BJKY’s own evidence had been that he had visited the Comancheros club house after getting out of prison, which led to him being given a t-shirt to show his association to the club, being beaten and required to pay escalating fines. The Tribunal found BJKY’s evidence on this point confusing at best and not entirely credible. An individual who has learnt from his mistakes and is looking for a better life would have stayed away from anything to do with a criminal enterprise, not gone to a party at their club.

7. BJKY’s evidence to the Tribunal was he met his former associate randomly at a petrol station and as they both spoke Albanian; he assisted him with getting settled in Australia. This act of kindness led to him borrowing money from his new friend to pay off his old friends. BJKY’s evidence to the Tribunal was:

   ·He had been involved with his former associate in setting up and running five rental properties to grow cannabis and that he had involved a friend of his in the enterprise.

   ·That he had gotten involved with his former associate after meeting him at a petrol station, the man didn’t know anyone in Adelaide so they started going out for coffees. At the time BJKY was experiencing pressure from the Comancheros and it came up in their conversation, thatthe former associate was asking him why he didn’t just leave South Australia, but he couldn’t as he was on the good behaviour bond (GBB) for the suspended sentence for the blackmail charges.

   ·His former associate said he could help him with money, loaning him $3,000, and he then asked for help finding a house for him.

   ·He didn’t know it was to grow marijuana but as soon as he got the house for him, he put the lights in the house.

   ·He told his former associate he didn’t want to be involved in this as he was on GBB and he wanted out of this but instead he got more and more involved, going to the hardware shop, and installing the water for the houses.

   ·Originally his former associate helped him to repay his loans, and he was motivated to clear his debts to the Comancheros as it kept growing. But over time he starting to get more involved in the cannabis production, his former associate was paying him more, and he was more motivated by the profit he was making.

   ·He did not agree with the remarks of the sentencing judge that he was using the crimes to fix his situation. He was trying to pay back all the debts as the OMCG wanted $10,000 but it kept going up.

   ·He was trying to get money so when his GBB ended he could leave it all behind and start afresh with his wife and baby away from Adelaide. He was in Sydney when his former associate was arrested on different charges, and called him asking for help with getting a lawyer. Not long after that, his former associate was deported.

8. However, the Tribunal did consider that the evidence from BJKY, corroborated by his wife, mother and sisters did indicate that BJKY had not been able to completely extricate himself from the OMCG. The evidence to the Tribunal from all the witnesses was consistent that BJKY had been badly beaten and men on bikes had come to the family home demanding money and terrorising the family.

9. The Tribunal could not however reconcile that BJKY, having already spent time in jail, was so easily persuaded to engage in more criminal activity and concurred with the presiding Judge that BJKY was not a mere patsy in the cannabis cultivation.

10. The Tribunal concurred with his Honour’s sentencing remarks of 15 February 2021:

    As I have said, you have not established that you are entitled to rely upon the non-exculpatory duress as a mitigating factor in sentence. I therefore do not accept that your offending occurred as a consequence of any obligation to pay back former associate for his help in raising money for any fines imposed upon you by an outlaw motorcycle club, and that, as a consequence, you held fears of suffering violence from that outlaw motorcycle club for yourself and your family if you did not assist former associate. Therefore, I also do not accept that you were acting upon a fear that if you did not assist former associate, he would cease assisting you in dealing with the problems you had with the outlaw motorcycle club, with the consequence that the outlaw motorcycle club would then perpetrate violence upon you or your family.

    …

    You were motivated by profit. … The value of the cannabis therefore was estimated to be between about $96,140 and $185,790.

    The enterprise was extensive. The enterprise was a well-planned and ongoing commercial enterprise. The profits to be gained from the enterprise were substantial.

11. Paragraph 8.1.1(1)(f) requires the Tribunal to consider if false or misleading information has been provided to the Department, including not disclosing prior criminal offending.

12. The Tribunal finds BJKY did provide misleading advice to the Department of Immigration when he failed to declare his driving offences on his arrival boarding card. However, the Tribunal places limited weight on this as it accepts that this was not a deliberate act of BJKY to deceive the Department but a lack of understanding of English and the Australian criminal justice system at the time.

13. Overall, the Tribunal found that the nature and seriousness of BJKY’s conduct weighs heavily against the revocation of the cancellation of his Visa.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)

14. This part of the primary consideration requires the Tribunal to 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’ (8.1.2(1)).

    Submissions

15. BJKY submitted he was young, immature, and very easily influenced and was also threatened by very serious criminals, older than himself, which led to much of his offending. BJKY submitted whilst he did not seek to diminish at all the crimes for which he was convicted, he could assure the Australian people he would never offend again.

16. BJKY in a statutory declaration of 10 January 2023 submitted:

    I am extremely sorry for my past behaviour. I realise the harm I have brought to others and to my family as a result. I am aware of the fear and harm suffered by the victims and I deeply regret being part of the serious matters that brought that suffering to them and their families. I also acknowledge the sorrow and hurt I have brought to my mother and sisters.

    I have no intention of being involved in any way at all in criminal activities in the future. I know that if I was to do so, my wife will leave me and I will lose everything I care about. The harm done to my son is obvious and I can only try to make it up to him and his mother, my wife, by being the best husband and father possible in the future

    If my visa is restored, once I have completed my parole, my wife and I intend to move interstate with our son and start a new life away from Adelaide. I do not intend to associate in any way with criminals or people with criminal associations. I do not believe that I am any threat to the Australian community.

17. BJKY submitted he has come a long way emotionally since he arrived in Australia and has gained considerable maturity and insight into himself since being in prison. BJKY submitted he was deeply remorseful for his past actions having hurt not only the community and those who suffered directly from his past actions but also those who love him,in particular, his wife, his young son, mother, sisters and deceased mother-in-law.

18. BJKY submitted he accepted he had provided untruthful information to the Department on several boarding cards when he had returned to Australia from overseas but submitted in his statutory declaration of 10 January 2023:

    After I first arrived in Australia to live, I travelled overseas on three occasions only - twice in late 2010 and once in 2011. The copies of the two passenger cards as provided by the DOHA are for the trips in 2010. There is no copy of the 2011 incoming passenger card and I think should have also been provided to me. I cannot recall the details on that card.

    In reference to the two cards dated 2010 I note that these are dated 31 July 2010 and 7 December 2010 and I do not dispute that those cards are signed by me and that in answer to the question "Do you have any criminal convictions?" on both cards there is a tick against NO as the answer.

    I do not remember filling in those cards but I accept that they have been completed, at least on my behalf, and signed by me.

    There are two matters I want to talk about in this Statutory Declaration: firstly whether the offence as recorded is correct and secondly the incorrect completion of the two passenger cards.

    According to the NCHC, I was convicted in the Magistrates Court (MC) on 13 May 2010 for "Unauthorised person drive motor vehicle on road" and received, as penalty, "Driver's licence disqualified 5 days" - this conviction is therefore the reason why I should have answered YES for the answers to the questions on the two passenger cards. I may have answered YES on the third - I do not know.

    I do not think that the NCHC record is correct as I recall it differently.

    This is what I remember of what happened in SA which led to me coming to the Adelaide MC for sentencing on 13 May 2010;

    I believe that I was arrested by SA police for drinking and driving. I accept that I am admitting here to a more serious offence than that which appears on the record but that's what I thought at the time - because I had been drinking and then I drove.

    At that time I was living in [location], in Sydney (as stated on the 2 passenger cards) and I went to Adelaide for a visit. I had not been in Australia very long and I spoke only a very little English. I was asked for my licence and I gave the Adelaide police my Albanian Driver Licence.

    The police took me to the watchhouse where the next day I was fined (I can't remember how much but I paid it) and I was released.

    I was given a piece of paper with English writing which I could not read. I was told I could not use my Albanian licence and I should get an Australian one within 5 days. I paid the fine and left, thinking that was the end of the matter. I did get an Australian licence.

    Some time later, after I had returned to Sydney, the NSW police came to my uncle's house in Sydney looking for me. They said they had been asked by the SA police to find me because I had not gone to Court in Adelaide and that there was a new date for me to go there.

    My uncle rang me and told me. I spoke to the police and they gave me the new Court date. I explained I thought that everything was over because I had paid the fine and been told I could go. I did not know that I had to go back to appear in Court.

    I went to Adelaide and appeared in Court there, seemingly on the 13 May 2010 according to the NCHC. I did not understand on that day that I was convicted of a criminal offence then, though I now understand that I was convicted.

    My memory is unclear after 12 years about what happened in 2010 and it seems the charge was not as I remember but I agree that I was driving on an Albanian licence, told to get another one and told to return to Court at a later time which I did. I had also been drinking at the time.

    I am retelling this story, not to argue the conviction, but to show that I was confused at that time, had only a little English and no real understanding of the processes.

    I did not intend to evade the Court and I did not intend to complete the passenger cards incorrectly - both errors were a mistake and not done deliberately. I will definitely make sure that in future I declare that I have criminal convictions when filling in answers to that question on passenger cards or elsewhere.

19. BJKY submitted he had not previously received any warnings from the Department of Immigration in writing or otherwise.

20. BJKY submitted he did not dispute he had been convicted of serious crimes and had breached the conditions of his bond in respect of his blackmail charges but submitted in his statutory declaration of 10 January 2023:

    I have never ridden on a powerful motorcycle of the type used by so called bikies or criminal bikie gangs. In Albania, and here, I owned, and rode sometimes, a scooter. I did not ride it often in Adelaide.

    On one occasion I was stopped by the police for driving my mother's car a very short distance when I did not have a licence. The police wanted to impound the car but when I said it was my mother's and that she and my sister needed it the police decided to impound my scooter instead. They came to my house in Adelaide and took my scooter - I have never reclaimed it.

    I have never been a sworn / patched member of any bikie group or gang. Rather, I was "stood over" by older men - namely Mr P and Mr G - and used by them as a driver to take them places and drop them off. I dared not refuse. I was very frightened of both men. I understand that both men have been deported to Albania. I am very afraid of returning to Albania because they are there. I do not have any knowledge of the whereabouts of Mr T who was a co-offender in my criminal matter. I was also scared of him.

    In relation to my criminal conviction, I pled guilty so did not have the right to challenge any of the allegations made against me. The record stands as it is. I do not have anything more to say about my involvement in that matter except that I sincerely regret it.

    The Court of Criminal Appeal Judgment [R v Mr P; R v BJKY; R v Mr T [2014] notes that both Mr P and Mr T had previous criminal records involving firearms but that I "had no criminal antecedents and an unblemished record". The Decision also took into account my youth and the fact that the Court found I played a "lesser role" in the criminal activities.

    I am older now, and more mature. If, in future, anyone threatens me or my family, or tries to get me involved in Criminal activity, I will inform my lawyer and inform the police.

    In relation to the Pre-sentence Report (PSR) (1 November 2019), I note that it records that during the entire period when I was on the Home Detention Bail Order from 27 May 2017 to September 2019 I returned negative test results on every occasion I was subjected to drug and breath testing. The Report also noted that I " . . . was compliant in relation to attending for supervision appointments as it appears that [I] attended all [my] scheduled appointments as directed."

    The Report also refers to a period of 12 days (after two years of compliance) when "deviations were noted to have occurred" in my work movement records and I was unable to provide employment records for that period. I agree that is correct - I was not mentally very well at the time as my wife was about to deliver our son - and I did not provide the records completely. I remember providing the address of a place I went to collect a cot for the expected baby but this was not work related so I was in breach. I was sub-contracting and the stress was enormous as I knew I was about to go to prison and my wife would be left with a baby to care for by herself. I did not do anything criminal during that period of 12 days but definitely I breached the terms of my permanent work pass and it was terminated by the Court.

21. BJKY submitted he has undertaken all available courses and counselling whilst in prison to assist with his rehabilitation, to avoid further offending and to continue to work on his intrinsic character. BJKY submitted an email from the RPB Administration, Offender Rehabilitation Services - Offender Development Directorate, Department for Correctional Services, Government of South Australia, which states:

    I can confirm that BJKY DOB: [date] commenced group sessions of the Living Without Violence Program on 20/10/2022. The program will run for approximately 4-5 months and is currently scheduled to finish on 25/2/2023.

22. BJKY’s representative contended the Tribunal should place considerable weight on the report of Dr Lim who opined that BJKY was at low risk of reoffending, as he has learnt his lesson, matured and had a number of protective factors in his life to mitigate against the risk of reoffending.

    OPINION AND RECOMMENDATIONS

    Based on my assessment of BJKY, I do not believe that he was suffering from a significant mental health issue or a formal psychological disorder, including a substance use disorder, at the time of this current drug-related offences. His developmental and psycho-behaviour trajectory also do not support the diagnosis of a personality or a conduct disorder. His current offending appears to have been driven primarily by his stressful psychosocial circumstances at the time (including financial difficulties and threats towards his and his family’s personal safety), which were being perpetuated by members of an outlaw motorcycle club, as well as his friendship with a fellow Albanian, former associate, whom he appears to have become significantly indebted to after this individual repeatedly loaned him money to pay off his monetary “debt” to the outlaw motorcycle club.

    If BJKY’s recounting of his personal experiences since his arrival in this country are true, then it would appear that he has been a victim of significant exploitation by many individuals from his own cultural background. They appear to have taken advantage of his vulnerabilities, such as his youth, his social naivety, and his poor understanding of the Australian legal system, in order to compel him into engaging in a range of dysfunctional and unlawful conduct on their behalf.

    I believe that BJKY has learnt his lesson and has become a more mature and less socially and legally naïve individual as a result of his experiences with the criminal justice system in recent years. In my opinion, he is appropriately contrite and remorseful for his actions. I would estimate his current risk of re-offending in a drug-related manner to be ‘Low’. Furthermore, he has a number of protective factors in his life which would likely continue to militate against his risk of reoffending over the foreseeable future, involving his supportive wife and family, his desire to be a positive role model for his infant son, and his commitment to disengage from all his previous negative associates. He is also amenable to receiving psychological counselling. These are therefore positive factors which bode well for his prognosis and prospects of rehabilitation.

1. BJKY’s representative contended the Tribunal should place considerable weight on the positive aspects of the Report of the Department for Corrective Services and the evidence of BJKY’s serious attempts to be housed separately from his former OMCG associates. BJKY’s representative referred the Tribunal to various entries from the Department for Correctional Services Offender Case Notes:

   26/12/2021 13:29: Prisoner BJKY has not come to the attention of the writer, he appears to mix well in the unit and has not raised any issues with the unit staff.

   18/12/2021 10:35: BJKY has attended work this week in textiles as required, cell and hygiene good, NTR.

   13/11/2021 13:39: Prisoner BJKY works in textiles, has not come to the attention of staff, polite to staff and complies with unit regimes, nil issues raised at this time.

   08/06/2021 08:47: BJKY is transferring to PTA today and has approached me in the holding cells stating that he has many enemies from his Ex OMCG-club Commanchero and raised this when doing his IDP, He will not place enemies on his list. Can this be forwarded to PTA management for possible placement issues there. He says they are in all units!

2. BJKY’s representative contended the Tribunal should place considerable weight on the Parole Board of South Australia decision which determined:

   Interviewed 28/06/2023. The Parole Board noted submissions and resolved to release BJKY onto parole on 25/07/2023 into Australian Border Force custody, subject to his continued good behaviour…

3. BJKY’s representative contended the Tribunal should place considerable weight on the fact early parole was granted to BJKY with stringent conditions and submitted these conditions will not only assist BJKY to readjust to life on the outside but act as a protection to the community.

4. BJKY’s representative submitted that if BJKY’s visa is restored, he will have an additional incentive not to reoffend, knowing that his visa, and his parole, will be immediately subject to cancellation.

5. BJKY’s representative submitted that BJKY had done everything he could whilst in prison and detention to assist with his rehabilitation and to ensure he will never turn to crime again. BJKY’s representative submitted that whilst in detention in Melbourne, BJKY has occupied his time reading and considering the Migration Act, specifically in relation to section 501 character cases. BJKY’s representative submitted this was a new experience for him because his reading level before he went to prison was poor and now he was reading and understanding complex issues which has given him new insight into the value of education.

6. The Respondent submitted that further offending by BJKY in the form of blackmail or involvement in a commercial drug enterprise could result in very serious financial, physical or psychological harm to members of the Australian community.

7. The Respondent submitted that the risk of such reoffending by BJKY was real, and unacceptable as:

   (a)First, he has a lengthy criminal history, having committed 24 offences over a 15 year period in Australia. Neither community-based orders nor a period of incarceration (between 13 September 2012 to 20 September 2013) have resulted in improved behaviour.

   (b)Second, by engaging in the cultivation of a commercial quantity of drugs, he breached the conditions attached to the suspended sentence bond he received on 26 February 2014. Further, while on bail for the cultivation of a commercial quantity of drugs offending, he attended numerous unauthorised locations between 26 August 2019 and 8 September 2019, which resulted in the revocation of his bail. Such conduct, while the subject of a bond or bail condition, should give the Tribunal little confidence that he will not further offend whilst in the community on parole.

   (c)Third, he has previously been associated with members of the Comancheros OMCG, and members of that gang have been co-offenders in his most serious offending.

   (d)Fourth, in his September 2022 submission to the Parole Board of South Australia, BJKY suggested that his involvement in the cultivation of a commercial quantity of drugs was at the direction of his co-offender and that he was involved in this criminal enterprise in order to repay his co-offender and avoid being harmed by the Comancheros. Such claims were rejected in their entirety by the sentencing judge, who found that BJKY was not subservient to his co-offender, that the offending did not occur as a consequence of the Applicant needing to repay his co-offender, or that the Applicant held fears of violence from the Comancheros if he did not assist his co-offender.

8. The Respondent contended the Tribunal should be sceptical of BJKY’s claims to have disassociated from the Comancheros, noting that he did not disassociate from them after his offending which resulted in him being sentenced on 26 February 2014 and the fact that he has spent much of his time since 2019 in custodial settings.

9. The Respondent submitted BJKY presented a real and unacceptable risk of reoffending having regard to a number of factors:

   ·his lengthy criminal history of committing 24 offences over 15 years in Australia.

   ·he was previously the beneficiary of community orders granted to him to demonstrate he has cleaned his act up and to regain the trust of the community, but these were unsuccessful.

   ·he was also subject to an early term of imprisonment for serious offending and it too failed to result in positive change in BJKY’s behaviour.

   ·he has also breached his bond order for the blackmail charges and his grant of bail for his drug cultivation charges.

10. The Respondent submitted these factors should give the Tribunal little confidence BJKY will not reoffend again particularly in light of the fact he breached his bail conditions when his wife was heavily pregnant knowing this would lead to immediate incarceration. The Respondent submitted BJKY had a tendency to associate with anti-social elements in the community. The Respondent accepted the evidence did indicate BJKY had distanced himself from the Comancheros however he had a tendency to gravitate to undesirable types and there was no way of knowing if they approached him  he would not again get involved in their various enterprises.

11. The Respondent submitted BJKY’s actions in prison also demonstrated he had a tendency to associate with anti-social types by taking the blame for a fellow inmate’s contraband and accepting drugs from another inmate.

12. The Respondent submitted BJKY’s evidence demonstrated his lack of insight into his offending, continuing to try to paint himself as a patsy, easily stood over by others and led into crime. The Respondent contended the Tribunal should reject this evidence outright.

13. The Respondent submitted the Tribunal should reject the evidence put forward by BJKY that he would not reoffend because of his numerous protective factors: that of his mother and sisters, his wife and son, that he had employment waiting, had undertaken rehabilitation courses in prison and the report of Dr Lim. The Responded submitted all these factors were previously present when BJKY offended: his family were very protective of him and he had previously been employed and this had not stopped him offending, and the courses he had undertaken in custody were superficial and could give no comfort to the Tribunal. Additionally, Dr Lim’s report was based on a false premises that BJKY had offended out of fear of reprisal by the Comancheros and should be rejected by the Tribunal.

14. The Respondent submitted BJKY poses an unacceptable risk of reoffending particularly in light of the seriousness of the harm that would be caused to the Australian community by his reoffending, as well as the risk of harm that he poses.

15. The Respondent contends that Primary Consideration 1 weighs heavily against the revocation of the cancellation of BJKY’s visa given the very serious nature of his previous criminal offending, coupled with the real risk of his reoffending, and the serious harm that may flow from such reoffending.  The Respondent contended that this supported a conclusion that the protection of the Australian community weighed heavily against revocation of the visa cancellation.

    Findings

16. BJKY asked to be given a second chance to demonstrate he had learnt from his mistakes. BJKY’s evidence in the hearing was that he now had the support of his wife and family to ensure he did not offend again. BJKY’s evidence was he now realised he had everything to lose if he reoffends – his mother and sisters would abandon him, his wife would leave him, he would likely lose contact with his son and he would definitely be sent back to Albania.

17. The Tribunal observed that sadly it would seem these protective factors did not assist him on the previous two occasions when he offended and served lengthy prison sentences. The Tribunal noted during the hearing BJKY had already been given a second chance after his first custodial sentence to learn that turning to crime was not a way to resolve his problems. BJKY was also given the opportunity to demonstrate he had rehabilitated whilst he was on his good behaviour bond for his blackmail offences. Whilst BJKY clearly understood the order required him to stay in Adelaide and report his whereabouts, he did not seem to appreciate that to be of good behaviour, he was not to engage in serious crimes. This was a factor his lawyer conceded at his sentencing for his cannabis offences, where his Honour on 15 February 2021 observed:

    I turn now to sentencing and deal first with the suspended sentence bond.

    Your counsel has properly accepted that there are no proper grounds upon which your failure to comply with the conditions of the bond to be of good behaviour should be excused and that I should therefore refrain from revoking the suspension.

    The offending, on any view, is too serious to excuse the failure to comply with the conditions of the suspended sentence bond to be of good behaviour.

    I revoke the suspension.

18. However, the Tribunal did concur with his Honour that it would now appear BJKY is genuinely remorseful for his actions:

    I accept that you are remorseful and contrite for your offending as you now realise the effect that your incarceration and possible deportation will have on your wife and children.

    I am prepared to accept that a sentence of imprisonment would operate more harshly on you because of the high risk of deportation and the consequent separation from your family. I also recognise that you have significant ties in Australia because of your marriage and young son and your mother and sisters residing here. Otherwise your risk of deportation is not relevant to the sentence I impose.

19. The Tribunal found  all of BJKY’s family to be credible witnesses, who are all law-abiding Australian citizens working hard to provide a better life for themselves and their children in Australia. The Tribunal doubted their protestations that this was the last time they would tolerate BJKY’s criminal behaviour, and they would not support him if he offended again.

20. Whilst the evidence indicates BJKY’s family were not completely aware of the details of his actions in his various offences they did appreciate it was very serious and he had been associating with some very undesirable individuals. His mother and sisters were shocked by his involvement in such activities, could not really comprehend why he had been involved and certainly did not condone BJKY’s criminal activity in any way.

21. The Tribunal accepted that BJKY’s family were genuine in their need and desire to support him in any way and ensuring every way possible that he never turned to crime again. His mother would be providing stable accommodation, he had employment organised as soon as he was allowed back into the community, they all observed he had matured and now knew he could turn to them for help instead of trying to protect them and do it all himself. The Tribunal did not doubt any of their sincerity but observed BJKY’s mother and sisters would continue to protect him no matter what. The bond they had from their shared trauma, their culture and love meant they would never abandon him.  

22. The Tribunal found the one genuine new prosocial factor in BJKY’s life is his wife and child. The Tribunal found BJKY’s wife to be a compelling and credible witness. The Tribunal did not doubt the one fact that would ensure BJKY never offended again was the support of his wife and the genuine desire he has to be a good father to his son. The Tribunal found that BJKY’s wife had remained with her husband through all his tribulations out of a genuine belief in the person he could be.

23. The Tribunal placed some weight on the report of Dr Lim of 31 January 2020, as her report echoed much of the evidence before the Tribunal: that BJKY has no underlying anti-social behaviours, has matured and learnt from his mistakes, has many pro-social factors supporting him including his close family, and his wife and son are his biggest incentives to never offend again:

    BJKY was a forthcoming historian, which further reinforced the rapport building process. He displayed a good understanding of the purpose of this assessment with associated good insight into the nature of his psychological problems, stating when asked that “I think I need to be assessed for what I been through and to help Judge understanding how I end up here”.

    Based on my assessment of BJKY, I do not believe that he was suffering from a significant mental health issue or a formal psychological disorder, including a substance use disorder, at the time of this current drug-related offences. His developmental and psycho-behaviour trajectory also do not support the diagnosis of a personality or a conduct disorder.

    I believe that BJKY has learnt his lesson and has become a more mature and less socially and legally naïve individual as a result of his experiences with the criminal justice system in recent years. In my opinion, he is appropriately contrite and remorseful for his actions. I would estimate his current risk of re-offending in a drug-related manner to be ‘Low’. Furthermore, he has a number of protective factors in his life which would likely continue to militate against his risk of reoffending over the foreseeable future, involving his supportive wife and family, his desire to be a positive role model for his infant son, and his commitment to disengage from all his previous negative associates. He is also amenable to receiving psychological counselling. These are therefore positive factors which bode well for his prognosis and prospects of rehabilitation.

    I believe that BJKY is currently experiencing an Adjustment Disorder with mixed Anxiety and Depression as a result of his incarceration and protracted separation from his wife and newborn son. This condition should resolve independently over time once his legal matters have concluded. Nevertheless, he should still be encouraged to seek professional assistance via the SA Prison Health Service if his mental health was to deteriorate further during his time in custody, and, seek psychological intervention to overcome his unresolved past issues, including for loss and grief counselling relating to his father’s death following his release into the wider community. This would help to safeguard his psychological functioning and support him to continue making healthier and more constructive decisions in regards to his life, moving forward into the future

24. The Tribunal finds that BJKY knowingly took part in a relatively large drug enterprise and did so willingly in order to improve his financial circumstances. BJKY has clearly breached the overarching expectation that non-citizens be law-abiding while in Australia and that his drug-related crimes are very serious. However, the Tribunal did not concur with the Respondent that BJKY poses an unacceptable risk or that he will continue his association with an OMCG but does accept that if BJKY did return to such associations or criminal endeavours it would be so serious to be unacceptable.

25. However, the Tribunal finds BJKY is at low risk of reoffending given his general lack of any substantive underlying risk factors that might raise concern, the professional opinion about the low risk of reoffending, the prospect of losing his wife and child and fear of returning to Albania. The Tribunal found these incentives  more than enough  for BJKY not to offend again.

26. The Tribunal also considered that BJKY had undertaken a course whilst in prison to assist with his rehabilitation, had concentrated on improving his reading and writing, had no major reports of breaches of prison rules and been granted parole at the earliest time.

27. The Tribunal considered the nature and seriousness of BJKY’s offences, weighs against revoking the mandatory cancellation of the visa.

    Primary Consideration 2: Family violence committed by the non-citizen (paragraph 8.2)

28. The Direction requires the Tribunal to consider whether a non-citizen has been convicted of any offence or had charges proven that involve family violence.

    Submissions

29. BJKY submitted he has never been convicted or engaged in any acts of family violence. BJKY submitted he was loved by his family and friends, and he loved them.  

30. The Respondent submitted that the material before the Tribunal does not indicate that BJKY has committed any acts of family violence. Accordingly, they contended that this consideration was not engaged.

    Findings

31. The evidence before the Tribunal was of a man deeply loved and cherished by his wife, mother and sisters. All his female family members testified that BJKY was a loving, generous, kind, supportive son, husband, brother, father and uncle, who played an integral role in the family and who had grown and matured over time.

32. The Tribunal finds there is no evidence that this primary consideration is engaged.

    Primary Consideration 3: Strength, nature and duration of ties to Australia (paragraph 8.3)

33. There are several elements to this consideration. It requires consideration of any impact of a decision on a non-citizen’s immediate family members in Australia who are citizens or have a right to permanently reside (8.3(1)). The Tribunal should give more weight to ties where they have a child who is a citizen, or resides here permanently, and consideration to family or social links more generally (8.3(2)-(3)).

34. The Tribunal must also give consideration to a non-citizen’s ties to the community more broadly, having regard to the length of residence in Australia (8.3(4)). The Tribunal must give considerable weight to the fact that a non-citizen has resided in Australia during and since their formative years, regardless of when their offending commenced or its severity, with more weight given to any positive contribution to the community in this time (8.3(4)(a) (i-iii)).

    Submissions

35. BJKY in his original request for revocation of his mandatory visa cancellation dated 3 August 2021 stated:

    ·He belonged to a close-knit family, all of whom reside in Australia, the majority being Australian citizens and a negative revocation decision outcome would be devasting for them all.

36. BJKY’s representative contended the Tribunal should place considerable weight on this consideration as:

    ·BJKY has lived more than half his life in Australia having spent all his adult life here.

    ·His entire extremely close-knit family all live in Australia and are Australian citizens. The trauma of his early life in Albania following the murder of his father had made his family extremely concerned for each other’s well-being.

    ·His wife is an Australian citizen who does not intend to relocate to Albania with her husband, as she does not believe it is safe place to live nor that it will provide the same opportunities to her family that they enjoy in Australia.

    ·His entire family will be distraught at the prospect of him having to return to Albania.

    ·His wife has endured enough in her short life, has no close relatives outside of her in-laws and the prospect of losing her husband would greatly add to her many stressors – it would take away her financial, emotional and physical support to her and their son.

    ·He has a network of friends not associated with his criminal past who are willing and ready to support him with work in Australia.

1. BJKY’s representative submitted BJKY’s family all accepted that he had committed serious crimes which they do not condone, indeed were horrified he was involved in, but all strenuously assert he will never do again. BJKY’s representative contended that whilst his family of strong women are undoubtedly biased, they were not stupid and on the balance of probabilities the Tribunal should find it was highly unlikely BJKY would ever reoffend.

2. BJKY’s representative contended the Tribunal should accept the evidence demonstrated BJKY will not reoffend as he now has strong protective factors. BJKY no longer has any contact with his former criminal associates and has no desire to do so, he has matured and now has more to lose, particularly his wife and son.

3. The Respondent submitted BJKY has previously failed to obey Australian laws, breaching the Australian community’s expectation in this regard through the commission of very serious criminal offences. The Respondent submitted there is an unacceptable risk of BJKY committing further offences of that nature and in such circumstances, the Australian community’s expectation is that the visa cancellation should not be revoked.

4. The Respondent contended that Primary Consideration 5 weighs heavily against the revocation of the cancellation of BJKY’s visa.

   Findings

5. The Tribunal defers to numerous decision-makers who have grappled with this determination, noting there is not a consistent view of the expectations of the Australian community. Most in the community would clearly consider BJKY has no right to stay in Australia because of his actions, while some may evoke the Australian notion of a ‘fair go’ noting BJKY has served his sentence, shown great remorse, and appreciates he has a lot more to lose now if he ever offended again, most critically his wife and son.

6. The Tribunal considered the matter of FYBR v Minister for Home Affairs [2019] FCAFC 185:

   64.  As Mortimer J said in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [127], the visa cancellation and refusal powers conferred by s 501 of the Act involves the evaluation of "competing and conflicting interests as between an individual who may be excluded from Australia and the interests of the Australian community". The relative weight to be ascribed to each consideration bearing on the exercise of the discretion is a question in respect of which reasonable minds may differ. The Direction generally requires the decision-maker to give relatively more weight to some considerations than to others so as to achieve like results in like cases, so far as that may be done without imposing impermissible fetters on the discretion conferred on the decision-maker. The expectations of the Australian community is one such consideration.

   …

   73.  Before proceeding further it must be emphasised that cl 11.3 does not purport to preclude the decision-maker from reaching his or her own view as to whether the non-citizen should or should not be granted a visa, as the decision-maker must necessarily do. The question that arises on this appeal is not whether the decision-maker is precluded from doing so, but whether the decision-maker's own assessment of the appropriate outcome is relevant to the task of identifying the content of the expectations of the Australian community under cl 11.3 of the Direction. The clause implicitly recognises that the decision-maker's assessment as to whether or not a visa should be granted may differ from the expectations of the Australian community, as the government has deemed those expectations to be.

   74. I have accepted the Minister's submission that cl 11.3 is intended to give effect to the principle that the Minister may make a statement of the government's views about the expectations of the Australian community, which statement may be acted on by the person conferred with the power in a particular case, as recognised in Uelese. In my view, the task of the decision-maker is to identify what is the "government's view" about community expectations in the particular case, to "have due regard" to that view and to "generally" afford that view more weight than other non-primary considerations in accordance with cl 8(4). The phrase "may be appropriate" does not permit the decision-maker to equate the expectations of the Australian community (as expressed in cl 11.3) with the decision-maker's own view as to the preferable outcome in the ultimate exercise of the discretion. To construe cl 11.3 in that way would be to ignore the fact that the clause is intended to express a consideration that is capable of being given more weight relative to "other considerations" in the exercise of the discretion, as cl 8(4) of the Direction generally requires. The primary judge was correct to say that importing into cl 11.3 all countervailing factors bearing on the ultimate decision would render cl 8(4) of the Direction unworkable.

   75.  Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen's conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

   76.  The question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government's assessment of community expectations is "generally" to be afforded greater weight than the "other considerations" listed non-exhaustively in cl 12. The word "generally" contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

   77.  In my view, the degrees of tolerance referred to in cl 6.3(5) and cl 6.3(7) are matters that fall for consideration by the decision-maker in the ultimate exercise of his or her discretion. They are factors that may be taken into account in determining whether it is appropriate to give more or less weight to a deemed community expectation of visa refusal that might otherwise arise simply because of the nature of the non-citizen's character concerns or offences.

   …

   103.The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of "what would the community expect in this case?" It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in-between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

7. The Tribunal considered that a finding proportionate to the nature and circumstances of BJKY’s offending which has resulted in serious harm to the community is that this consideration weighs heavily against revocation.

8. The Tribunal considered that BJKY has indeed clearly breached the expectation that he obey the law, and the length of the custodial sentences imposed on him clearly demonstrates the gravity of his crimes. The Tribunal finds that BJKY does however have around him a supportive network who are very eager to assure the Australian public he is not the man the Department thinks he is, a hardened criminal with links to an OMCG but a caring considerate husband, father, brother and son who has matured and will never turn to crime again. The Tribunal did not find BJKY’s offending gave rise to serious character concerns as, on the whole, it was not violent in nature, was not sexual in nature, nor acts committed against women, children or vulnerable members of the community. The Tribunal also found BJKY did not pose an unacceptable risk to the Australian community.

9. The Tribunal relied upon BJKY’s wife’s letter to the Department of Immigration dated 16 August 2023 where she stated:

   My husband is not the person you see the paper he has proven over and over again parole clearly saw the work he has done his course learning English reading writing he would of never been released if his behaviour hadn't improved he needs a chance to be with his family and show the Australian government he was young and made the worst decision of his life the regret and disappointment for his actions will never leave him or us as a family. I would hope that someone would take the time to have a interview with my husband as parole did to see him for who he really is because everyone who has met my husband including agents from immigration all say this is not the person they expect after seeing his paperwork.

10. Overall, the Tribunal found the Australian community would expect someone with BJKY’s disregard for Australian laws and conventions not to be granted a visa. Accordingly, the Tribunal found this Primary Consideration weighs strongly in favour of affirming the Reviewable Decision but did not concur with the Respondent that this consideration was therefore determinative.

    OTHER CONSIDERATIONS

11. In making a decision under sections 501(1), 501(2) or 501CA(4) of the Act, the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):

    Legal consequences of the decision (paragraph 9.1)

12. The Direction reminds decision-makers to be mindful that unlawful non-citizens are liable for removal from Australia as soon as reasonably practicable (see section 198 of the Act), noting that section 197C(1) of the Act provides that, for the purposes of section 198, it is irrelevant that Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    Submissions

13. BJKY submitted he feared the hardened criminal who had stood over and threatened him, who he asserted were well known to the Australian Federal Police, South Australia Police and Immigration Department. BJKY submitted he feared returning to Albania as he was still very afraid of these individuals who have already been deported to Albania.

14. BJKY’s representative contended that BJKY’s life was in danger if he is returned to Albania as he has in the past received threats of serious harm from his former associate while the latter was in prison and when BJKY was in home detention. BJKY’s representative submitted his family has also received threats by phone from Albania.

15. BJKY’s representative submitted that BJKY was not seeking to make any substantive claim for non-refoulment, in accordance with Australia’s obligation under numerous conventions. BJKY’s representative submitted that BJKY would seek to make a protection claim if he failed in his bid to have his visa cancellation revoked.

16. However, BJKY’s representative submitted the evidence of threatening text messages between BJKY and his former associate demonstrated clearly, he had a genuine concern for his safety if returned to Albania. Further there was compelling evidence from his mother, sisters, and wife that his former associate had threatened BJKY via phone calls to them, via phone calls from his former associate’s ex-girlfriend to them and by direct threats to his uncle in Albania.

17. BJKY’s representative submitted that if returned to Albania BJKY would face a real risk of harm from his former associate, from his co-accused in the blackmail case and from the other men connected with the OMCG he had associated with.

18. The Respondent submitted under this consideration; decision-makers should relevantly have regard to the legal consequences of a decision under section 501CA. In accordance with section 198 of the Act, unlawful non-citizens are liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section. It is irrelevant, for the purposes of section 198, whether Australia has non-refoulement obligations in respect of an unlawful non-citizen. However, section 198 does not require or authorise removal where a person has applied for a protection visa and a ‘protection finding’ has been made.

19. The Respondent submitted BJKY has made claims to the Department that, if removed to Albania, he will be harmed by the co-offenders in his blackmail offending, who now live there. The Respondent submitted BJKY and his family claimed during the hearing that he and they had also received significant threats from his former associate demanding money.

20. The Respondent submitted BJKY’s evidence about the nature of the threats from his former associate continued to be vague as BJKY could not address what the nature of any threats were, the extent of law enforcement protection available in Albania, or whether BJKY could reside in parts of Albania without facing a risk of harm.

21. The Respondent submitted it was open to BJKY to apply for a protection visa, at which stage his claims to be owed protection obligations can be properly made and assessed in detail and before consideration is given to any character concerns.

22. The Respondent submitted in those circumstances, the Tribunal should defer assessment of BJKY’s claims to fear harm, as it is entitled to do in accordance with the decision of the Court in the matter of Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [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.

23. The Respondent submitted the Tribunal is not required to speculate as to whether any application for a protection visa would be successful in accordance with the decision of the Court in the matter of RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [32] but can proceed on the basis that it is open to BJKY to make that application so that his claims can be comprehensively assessed.

    As is apparent from the extracts from the reasons previously set out, the Tribunal referred expressly to the decisions in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (“Ali”) and DOB18 v Minister for Home Affairs [2018] FCA 1523 (“DOB18”).  In DOB18 Griffiths J referred to a number of other cases in which Flick J’s reasoning in Ali has been adopted and applied.  Those decisions show that the course followed by the Tribunal in this case was open to it and that it was not required to speculate about future possibilities with respect to future visa applications or the duration of any detention to which the appellant may be subjected.

24. The Respondent submitted that absent any application for a protection visa, the legal consequence of an adverse decision in these proceedings is BJKY’s removal to Albania in accordance with section 198. The consequences of that legal consequence are considered within the strength, nature and duration of ties, best interests of minor children and extent of impediments if removed considerations.

25. The Respondent contended this consideration should be given neutral weight.

    Findings

26. The Tribunal notes the observations in Ali v Minister for Home Affairs [2020] FCAFC 109:

    23. Although the concept of non-refoulement is not defined in the Act, s contains a definition of “non-refoulement obligations” in the following terms:

    non-refoulement obligations includes, but is not limited to:

    (a) non-refoulement obligations that may arise because Australia is a party to:

    (i) the Refugees Convention; or

    (ii) the Covenant [being the International Covenant on Civil and Political Rights]; or

    (iii) the Convention Against Torture; and

    (b) any obligations accorded by customary international law that are of a similar kind to those mentioned in paragraph (a).

    24. The concept of “non-refoulement” and its relationship to the Act was recently considered by the Full Court in Ibrahim v Minister for Home Affairs (2019) 270 FCR 12 (Ibrahim) at [100] – [113]. In summary and relevantly for the purposes of this matter:

    (a) The term “non-refoulement” is derived from Art 33(1) of the Convention Relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 art 33(1) (entered into force 22 April 1954) as amended by the Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967) (‘the Convention’), which provides:

    Article 33

    PROHIBITION OF EXPULSION OR RETURN (“REFOULEMENT”)

    1. No Contracting State shall expel or return (“refouler”) a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion.

    (b) In Plaintiff M70/2011 v Minister for Immigration and Citizenship (the Malaysian Declaration Case) (2011) 244 CLR 144, Gummow, Hayne, Crennan and Bell JJ identified at [94] that Australia would contravene its non-refoulement obligations under Art 33(1), and thereby its international obligations, if it was to expel or return “in any manner whatsoever” a person with a well-founded fear of persecution to a country where their life or freedom would be threatened for one of the identified Convention reasons. The Court also identified that Australia’s international obligations would be breached if a person was returned without Australia first having ascertained whether the person is a refugee.

    (c) In the Act, the concept of “non-refoulement obligations” is not limited to those obligations which arise under the Convention and includes obligations arising under other international treaties and international law. It is not confined to protection obligations which arise under s 36(2) of the Act (at [103]).

    (d) Although the term “non-refoulement obligations” has been used interchangeably with the term “protection obligations” as used in s 36(2)(a) of the Act, the two do not truly compare as Australia’s non-refoulement obligations under international law are wider and more comprehensive than those which are given domestic force by s 36(2) (at [103] to [104]).

    (e) The internal relocation principle applies in the consideration of the non-refoulement obligations, but it is not relevant to the determination of whether a protection visa should be granted under s 36(2)(a) (at [113]).

    25. In general terms, the Full Court in Ibrahim held that Australia’s international non-refoulement obligations extend to obligations under treaties other than the Refugee Convention and that the scope of protection inherent in the s 36(2)(a) criteria is narrower than that afforded by the Refugee Convention itself.

27. The Tribunal also notes the observations in Nunez and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 809:

    96. At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.

    97. The Direction divides the considerations to be applied in this paragraph into two sections:

    (1)  non-citizens covered by a protection finding; and

    (2)  non-citizens not covered by a protection finding.

    98. Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).

    99. Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.

    100. The Applicant is not subject to a protection finding and on the material before the Tribunal, there do not appear to be protection claims.

    101. In case of non-revocation, the Applicant would remain in immigration detention under s 189 of the Act, and the removal obligation in s 198 of the Act would apply.[88] The Tribunal is satisfied that detention and removal are lawful consequences in the Applicant’s circumstances.

1. The Tribunal did not have evidence before it that in Albania, BJKY would face a well-founded fear of persecution or there was a real risk that he would suffer significant harm, for example, including arbitrary deprivation of life, the death penalty, being subject to torture and other cruel or degrading punishment.

2. However, the Tribunal on the evidence before it could not determine if BJKY’s claims that he fears genuine harm if returned to Albania from known criminals could give rise to a protection claim. Both representatives have contended this matter could be ventilated elsewhere and did not seek to put such contentions before the Tribunal.

3. The Tribunal considered it may not have all the information to arrive at a conclusion that there was no legal consequence to BJKY’s removal and so determined that this consideration should be given neutral weight.

4. The Tribunal also considered that BJKY’s fear of harm from his former associates could also be considered under the impediments to removal consideration.

   Extent of impediments if removed (paragraph 9.2)

5. The Tribunal must consider the extent of impediments a non-citizen may face if removed 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)’ (9.2(1)). Specific factors to take into account are their age, health, any ‘substantial language or cultural barriers’, and any social, medical or economic help available.

   Submissions

6. BJKY submitted he will face significant difficulties if deported to Albania, as he has not lived there for a long time and all his close family members are in Australia.

7. BJKY submitted the trauma of his father’s death, and his ongoing fear of political reprisal coupled with his genuine fear of reprisal from the Albanian criminals who have already been deported were significant impediments he would face if he had to return to Albania.

8. BJKY’s representative submitted that BJKY would face significant impediment if removed as he had limited family in Albania, his employment prospects were low, he had no housing to return to and genuinely feared for his safety in Albania.

9. BJKY’s representative submitted BJKY’s fear for his safety was on two fronts: from the political tension in the country which had resulted in his father’s murder and from his former associates who were known dangerous criminals who had all been deported to Albania.

10. The Respondent accepts that BJKY will face a difficult period of adjustment upon return to Albania. However, The Respondent submitted BJKY is a relatively young man with a history of employment in Albania and Australia, is in good health, and will not confront any significant cultural or linguistic impediments upon return to Albania. Further, there is nothing before the Tribunal to indicate that he would not receive the same social, medical or economic support that is available to any other Albanian national.

11. The Respondent contended the Tribunal should place limited weight on BJKY’s claim he faced an impediment to removal because of fear of harm from former members of the Comancheros OMCG or his former associate.  The Respondent submitted there was no evidence which substantiated his claim he faced an actual threat if he returned to Albania.

12. The Respondent contended that the Tribunal should give this consideration very limited weight in favour of revocation.

    Findings

13. The Tribunal concludes that BJKY would have no practical difficulties in re-assimilating if returned to Albania as BJKY would not have any language or cultural barriers. However, the Tribunal did concur with BJKY that he would face difficulty in finding employment and housing if he was forced to return to Albania. The Tribunal also found BJKY would no longer have the protection, support and love of his close-knit family to ensure he did not simply fall back in with the wrong crowd.

14. The Tribunal also accepts that BJKY would be devastated by not having his wife and child with him as they would not relocate to Albania with him. The Tribunal accepted that BJKY’s wife did not wish to be separated from her husband nor deny her child his father but understood she was not prepared to go to Albania where the quality of life was not equal to Australia, where she would not get access to the same health care or education opportunities and where she feared for her family’s safety.

15. The Tribunal accepts that BJKY would face significant financial and emotional hardship if he were to have his visa revoked as the evidence indicated he would have no support network in Albania.

16. The Tribunal also considered that BJKY’s safety may be at risk if he were returned.

17. Overall, given that the prospects for employment, housing and financial support were low, the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.  The Tribunal considered that in particular BJKY’s wife and child children would be adversely impacted.

    Impact on victims (paragraph 9.3)

18. The Tribunal must consider any evidence of the impact of a non-citizen's offending on a member of the Australian community.

    Submissions

19. BJKY made no submissions in respect of this consideration.

20. The Respondent submitted there was no evidence before the Tribunal concerning the attitude of victims of BJKY’s offending towards the decision that the Tribunal may make in this matter.

21. Accordingly, the Respondent contended that this consideration is not engaged.

    Findings

22. Neither party contended, and nor was it apparent on the material before the Tribunal, that this consideration was of relevance in this proceeding.

    Impact on Australian business interests (paragraph 9.4)

23. The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.

24. The Respondent submitted that there is no evidence before the Tribunal that the Applicant’s removal from Australia will have an impact on Australian business interests.

25. Accordingly, the Respondent contended that this consideration is not engaged.

26. The Tribunal does not consider that there will be any impact on Australian business interests if the Applicant's visa remains cancelled or is restored. The Tribunal finds that this Other Consideration is therefore not engaged.

    CONCLUSION

27. In summary BJKY does not deny his past criminal record, submitting he was not proud of that record but contended he was never going to offend again. BJKY contended he has far too much to lose if he continues down the path he has been on, that he has matured and accepts that he alone is ultimately responsible for the choices that he makes.

28. BJKY strongly and sincerely contended that he is not a danger to the Australian community, and it was in the public interest for his visa to be restored by the Tribunal because the long-term damage to his Australian citizen son, his wife and his other very close family members is indisputable if the decision is not revoked.

29. In summation, BJKY’s representative contended that the Tribunal should determine there were other reasons to revoke BJKY’s visa cancellation. BJKY’s representative contended:

    ·Primary Consideration 1: weighs in favour of revocation.

    ·Primary Consideration 2: there was no feature of family violence in BJKY’s offending.

    ·Primary Consideration 3: weighs strongly in favour of revocation.

    ·Primary Consideration 4: weighs strongly in favour of revocation.

    ·Primary Consideration 5: weighs in favour of cancellation of BJKY’s visa however the weight of the Other Considerations outweighs Primary Consideration 5.

    ·Other reasons also weighed in his favour as BJKY would face significant impediments if removed and had a genuine fear for his safety if he had to return.

30. The Respondent contended that BJKY does not pass the character test because he has a substantial criminal record.

31. In summary the Respondent contended the cumulative weight to be assigned to the protection and expectations of the Australian community against a finding that there is another reason to revoke the mandatory cancellation decision substantially outweighs the cumulative weight to be assigned to the relevant countervailing considerations.

32. Consistent with the Direction, the Tribunal has given weight of various degrees to the primary and other considerations. In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations. However, as held in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, ‘the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501’.

33. As the Tribunal has found BJKY does not pass the character test it has carefully considered all the evidence before it and weighed up the relevant considerations as guided by the Direction in considering whether there is another reason why the cancellation of the Applicant’s visa should be revoked.

34. Of the Primary Considerations the Tribunal found:

    ·Whilst the Tribunal considered BJKY was at low risk of reoffending, his offending was of such a nature that it must be considered serious. The Tribunal therefore considered that protection of the Australian community weighs in favour of discretion being exercised to refuse to grant the visa.

    ·The evidence before the Tribunal demonstrated BJKY had no family violence convictions and found this consideration to be neutral.

    ·The strength, nature and duration of ties to the Australian community, and the best interests of minor children in Australia affected by the decision both weigh strongly in favour of granting the visa. BJKY has lived all his adult life in Australia, his wife and child are Australian citizens and would not be returning with him to Albania.

    ·The Australian community would expect someone who had committed such serious offences not to be granted a visa and found this factor weighs in favour of discretion being exercised to refuse to grant the visa.

    ·Of the other considerations, the Tribunal determined that the extent of impediments if removed, was engaged, finding that if BJKY returned to Albania this consideration weighed in favour of revocation. The Tribunal considered all the other factors were neutral.

35. The Tribunal fully appreciates that BJKY has not merely breached but violated the expectation that he be a law-abiding citizen who respects Australian institutions. As a general principle, the Direction establishes that on this basis his visa should be cancelled. However, overall, the Tribunal found BJKY’s particular circumstances and that of his wife and child satisfied the Tribunal that there is another reason why the cancellation decision should be revoked.

36. Accordingly, the Tribunal finds that there is another reason that the mandatory cancellation of BJKY visa should be revoked.

    DECISION

37. Pursuant to section 43(1)(c)(i) of the AAT Act, the Tribunal sets aside the reviewable decision. In substitution, the Tribunal finds there is another reason under section 501CA(4)(b)(ii) of the Migration Act 1958 to revoke the mandatory cancellation of BJKY’s visa.

I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Ms A E Burke AO Member

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

Associate

Dated: 8 May 2024

Date(s) of hearing:	22 - 24 April 2024
Advocate for the Applicant:	Ms Marion Le
Solicitors for the Applicant:	Marion Le Consultancy
Advocate for the Respondent:	Mr Keith Sypott
Solicitors for the Respondent:	Australian Government Solicitor