Blair and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 4154
•1 December 2023
Blair and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4154 (1 December 2023)
Division:GENERAL DIVISION
File Number: 2023/6756
Re:Raymond Blair
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 1 December 2023
Date of written reasons: 18 December 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside decision made on 7 September 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa.
.......................[SGD].........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BF transitional visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where ties to minor children, links to the Australian community and impediments outweigh considerations not in favour of revocation- Tribunal finding there is another reason to revoke the mandatory cancellation of the Applicant’s visa- decision under review set aside and substituted
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Khalil v Minister for Home Affairs (2019) 271 FCR 326
PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162Walker v Minister of Home Affairs [2020] FCA 909
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
18 December 2023
INTRODUCTION
Mr Raymond Blair (‘the Applicant’) is a 43-year-old man born in the United Kingdom on
8 December 1980. He first arrived here in June 1988 as a seven-year-old and has never departed Australia.[1] He has spent something in the order of 85 percent of his life in this country.
[1] R1, p 98.
The Applicant was granted a Class BF transitional visa (‘Visa’) in September 1994. This Visa was mandatorily cancelled by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’ or ‘the Minister’) on 6 January 2023 pursuant to
s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’).[2]
[2] Ibid, pp 99-105.
The mandatory cancellation of the Applicant’s Visa was the result of him failing the character test[3] because on 25 June 2013 he received a head custodial term of imprisonment of four years and three months upon a conviction for one count of ‘commit theft using force (aggravated offence)’.[4] Following the mandatory cancellation of his Visa, the Applicant was invited to make representations to the Respondent’s Department in order to seek revocation of the mandatory cancellation decision.
[3] Pursuant to ss 501(6)(1) and 501(7)(c) of the Act.
[4] R1, p 26.
On 29 January 2023 the Applicant made the necessary representations[5] and on
7 September 2023 a delegate of the Respondent decided not to revoke the mandatory cancellation decision.[6] This non-revocation decision was hand-delivered to the Applicant on 8 September 2023 for which he signed a receipt.[7] For the purposes of these Reasons, the delegate’s non-revocation decision made on 7 September 2023 will be referred to as the ‘Decision Under Review’.
[5] R1, pp 48-67.
[6] Ibid, p 5.
[7] Ibid, p 162.
The instant hearing proceeded before me by video on 29 November 2023 (‘the Hearing’). The Hearing received both oral and written evidence. The written evidentiary material was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked ‘Annexure A’.[8] The Hearing received oral evidence from: (1) the Applicant; (2) the Applicant’s partner, Ms Jessica Walker; and (3) the Applicant’s father, Mr Raymond Blair Senior.
[8] Transcript, p 2, lines 12-36.
There is a notable procedural element referrable to this matter. On 1 November 2023 I conducted the usual review of the matter to ensure it was ready to proceed to a hearing on the originally-listed dates being 20 and 21 November 2023. During this review, it transpired that due to information technology difficulties at the detention centre where the Applicant was being held, he would not be able to file his material for the instant Hearing and would likely fall foul of the ‘two business days’ rule [9] compelling him to file and serve his material two business days prior to commencement of this Hearing as originally-listed.
[9] Sections 500(6H) and (6J) of the Act.
During the review, the Respondent’s representative did not take any issue with the Applicant’s inability to file and serve his material as a result of his abovementioned information technology difficulties. The Tribunal was thereby compelled to vacate the originally-listed hearing dates and, with the agreement of the parties, I ordered the re-listing of this Hearing for 29 and 30 November 2023. Mindful of the 84 day paradigm governing the conduct of these expedited applications,[10] this meant the hearing would proceed on the 82nd and 83rd days of the statutory day 84 paradigm.
[10] Section 500(6L)(c) of the Act.
I told the parties at the review and at the conclusion of the instant Hearing that as a result of circumstances beyond anyone’s control causing the Hearing to proceed so deeply into the 84 day paradigm, I would most likely be issuing a short-form decision to ensure the Tribunal met its statutory obligation to have ‘made a decision’ by the 84th day[11] and to publish detailed written reasons thereafter as it is entitled to do pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326[12] ('Khalil’).
[11] Section 500(6L)(c) of the Act.
[12] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–[48].
In accordance with the authority of Khalil, I did, on the 84th day cause a short-form decision to be made and published to the parties. A true and correct copy of that short-form decision is attached to these Reasons and marked ‘Annexure B’. My detailed written Reasons for that short-form decision now follow.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. There remain two issues presently before the Tribunal. They are:
(a)whether the Applicant passes the character test; and if not
(b)whether there is another reason why the decision to cancel the Applicant’s Visa should be revoked.
Does the Applicant pass the character test?
The Applicant fails the character test as a matter of law.[13] It is plain from his criminal history that he has received a sentence of imprisonment of 12 months or more[14] and thus has a ‘substantial criminal record’[15] which compels this Tribunal to find that he is a person who does not pass the character test. The threshold giving rise to such a finding is comfortably met as a result of the imposition of a head custodial term of four years and three months imprisonment upon the Applicant by the District Court of South Australia on 25 June 2013 for the conviction referred to earlier in these Reasons.[16]
Is there another reason why the decision to cancel the Applicant’s Visa should be revoked?
[13] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].
[14] Section 501(7)(c) of the Act.
[15] Section 501(6)(a) of the Act.
[16] See [3] of these Reasons.
For present purposes in reviewing a non-revocation decision pursuant to s 501CA(4) of the Act, the Tribunal must have regard to ‘Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (‘the Direction’).
For the purposes of deciding whether or not to revoke the mandatory cancellation of a
non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:
1Australia 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.
2Non-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.
3The 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.
4Australia 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.
5With 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.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia:
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to
keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
(h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
An overview of the Applicant’s offending history in Australia
The Applicant’s history of criminal offending in this country is both lengthy and substantial.[17] In terms of sentencing episodes it is a history that runs from 29 February 2000 to
20 December 2022, a period of almost 23 years. He has convictions for some 134 offences and has found himself before lawful authority for sentencing on 36 separate occasions. He has been committing offences for a period exceeding half his age. The offending pattern is redolent of a person whose capacity to moderate their behaviour and control their moral compass has been very significantly impacted by a persistent and seemingly unresolved predisposition towards the abuse of illicit substances in the main and, to a lesser extent, alcohol. As the Applicant confirmed in his own evidence, his criminal history is that of a person compelled to offend because of his unresolved difficulties with substance abuse.
[17] R1 pp 23-26.
In terms of offending modalities, the Applicant has convictions for (1) breaches of bail; (2) drug possession; (3) other drug offending primarily in the realm of possession of paraphernalia for the consumption of such substances; (4) violent offending; (5) drink driving; (6) traffic offences; (7) property offences; (8) offences resulting from disorderly and anti-social behaviour; (9) breaches of previously-imposed bonds; (10) breaches of community service orders; (11) possession of a weapon in public places; and (12) offences of dishonesty.
His offending has been punished by the imposition of sentences spanning virtually the full range of sentencing options including, but not limited to, (1) fines; (2) disqualification of his driving privileges; (3) good behaviour bonds; (4) the imposition of a conviction but with the court discharging him without penalty; (5) actual imprisonment; (6) suspended custodial terms in whole or in part; (7) community service orders; and (8) where multiple custodial terms were imposed, the serving of those terms on a concurrent basis.
Paragraph 8.1.1 Considerations
Paragraph 8.1.1(1) (a): the chapeau to paragraph 8.1.1(1)(a) of the Direction stipulates that conduct described in its three sub-paragraphs is viewed very seriously by the Australian Government and the Australian community. There is little or nothing to cavil with the proposition (and finding) that the Applicant has committed an offence of violence falling within the auspices of paragraph 8.1.1(1)(a)(i) of the Direction. This conduct also falls within the auspices of paragraph 8.1.1(1)(a)(ii) because it was a crime of violence committed against a woman.
The circumstances arising from his conviction on 25 June 2013 on one count of ‘commit theft using force (aggravated offence)’ is, without question, an offence of violence and one committed against a woman. During the Hearing the Applicant did not cavil with the violent nature of this offending and it squarely engages the auspices of paragraph 8.1.1(1)(a)(i) and (ii) of the Direction in favour of a finding that the totality of the Applicant’s offending has been ‘very serious’. I so find.
While there is reference to the Applicant being convicted for breaches of a previously-made domestic violence order, I will not make a finding that the conduct giving rise to those specific convictions necessarily involved the commission of a violent crime against a woman pursuant to paragraph 8.1.1(1)(a)(ii) of the Direction. However, the Applicant cannot escape a finding that his conduct giving rise to the making of a domestic violence order against him must be found by this Tribunal to constitute an ‘act of family violence’ regardless of whether he was convicted for actual domestically violent conduct against a relevant victim.
Harsh though it may seem, this Tribunal is compelled to apply the terms of paragraph 8.1.1(1) (a)(iii) of the Direction in favour of a finding that the totality of his unlawful conduct in this country has been of a ‘very serious’ nature. I so find.
Paragraph 8.1.1(1) (b): the Applicant has no conviction arising from him causing a person to enter into a forced marriage or as a result of him otherwise being a party to a forced marriage.[18] Neither does the Applicant have any conviction for crimes committed against vulnerable members of the community or government representatives or officials in the performance of their duties.[19]Given the formulation of the character test referable to the instant decision, which test the Applicant fails as a matter of law,[20] I am not required to make any finding about whether any of his conduct forms the basis for a finding that the he does not pass an aspect of the character test that is dependent on my opinion.[21] The material contains no reference to any crime committed by the Applicant during his time in immigration detention.[22]
[18] Pursuant to paragraph 8.1.1(1)(b)(i) of the Direction.
[19] Pursuant to paragraph 8.1.1(1)(b)(ii) of the Direction.
[20] See [12] of these Reasons.
[21] Pursuant to paragraph 8.1.1(1)(b)(iii) of the Direction.
[22] Pursuant to paragraph 8.1.1(1)(b)(iv) of the Direction.
Paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women and children;[23]
(ii)acts of family violence;[24] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[25]
[23] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[24] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[25] Paragraph 8.1.1(1)(b)(i) of the Direction.
As mentioned, the Applicant has no convictions for offences committed within the realm of paragraph 8.1.1(1)(b)(i) of the Direction. I am precluded from taking into account any sentence the Applicant may have received for crimes of a violent nature committed against women or children. Likewise, I am prohibited from taking into account any sentences imposed by the courts consequent upon the Applicant’s commission of acts of family violence regardless of whether a conviction and / or a sentence ensued.
That said, it is not possible for the Applicant to escape a finding that this sub-paragraph 8.1.1 (1) (c) of the Direction must be applied to any analysis of the nature and seriousness of his remaining conduct. There are something in the order of 41 entries in his criminal history stipulating the imposition of a fine, the making of an order for compensation, the amount of a bond into which the Applicant was ordered to enter and orders for estreatment consequent upon his numerous breaches of bail. The numerical totality of those ‘money-type’ convictions exceeds $14,500. He was the recipient of these types of sentences from a beginning to end of his offending history.
Custodial terms of imprisonment have also been imposed on this Applicant. Such terms were imposed on:0
·25 June 2013: head custodial term of four years and three months with a non-parole period of two years;
·22 August 2014: head custodial term of nine months to be suspended for 15 months;
·5 December 2016: sentenced to three months and one week imprisonment;
·15 August 2017:
osentenced to a custodial term of two months and 24 days;
osentenced to a custodial term of one month and one week.
·6 July 2018: sentenced to one-month imprisonment;
·31 July 2020: sentenced to five days imprisonment;
·7 September 2020:
ohead custodial term of four months and two weeks imprisonment, to be released after serving one month and two weeks imprisonment;
osentenced to six weeks imprisonment;
osentenced to three months imprisonment.
·20 December 2022: sentenced to 10 months and 19 days imprisonment.
The Applicant’s history of criminal offending has attracted the imposition of head and other custodial terms totalling some seven and a third years. It is well-established that sentences involving the imposition of terms of imprisonment represent the last resort in the sentencing hierarchy.[26] Likewise, the imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offences involved.
[26] PNLB v Minister for Immigration and Boarder Protection (Migration) [2018] AATA 162 at [22].
Taken in total, the Applicant’s ‘money-type’ sentences totalling some $14,500 and the totality of custodial terms totalling some seven and a third years comprise a regime of sentences that most certainly speaks to the very serious nature of his offending. I so find.
Paragraph 8.1.1(1)(d): this sub-paragraph of the Direction poses two questions. The first, is whether the Applicant’s offending has been frequent? There is no requirement to repeat the numerical details inherent in the Applicant’s offending. It is an almost 23 year history involving the commission of something in the order of 134 offences that were dealt with at 36 sentencing episodes. He has offended at the rate of over six offences per year. He has appeared before lawful authority for sentencing at an average of over one and half times per year. There can only be one finding: the Applicant’s offending has been frequent.
The second question posed by this particular sub-paragraph is whether the offending contains any trend of increasing seriousness? The first 12 years of the Applicant’s offending involved unremarkable convictions for breach of bail, drink driving, disorderly behaviour and relatively minor traffic offending. By its 13th year, the Applicant had committed his very serious unlawful conduct resulting in a conviction for ‘commit theft using force (aggravated offence)’ which involved the Applicant entering a Caltex Service Station staffed by a sole female attendant. After some initial small talk with her, the Applicant pointed a 10-inch knife at the attendant and said ‘…do you really want to die for your till? Just give me the money.’ The Applicant was sentenced to a head custodial term of four years and three months for this conduct which is plainly of a significantly higher level of seriousness than the offending preceding it.
The remaining nine years of the Applicant’s offending involved the commission of very serious offences in the realm of:
(i)[in 2014] three convictions for ‘enter premises and commit indictable offence by break’ which attracted a head custodial term of nine months;
(ii)a plethora of repeatedly committed offences, albeit not very serious, which would usually be sentenced by way of a non – custodial punishment but that, due to the very high-level of re-commission of such offences, the sentencing judicial officer was left with no alternative but to impose custodial terms ranging from five days, one month, two months, three months, four months and 10 months.
Therefore, one can readily reach a state of satisfaction about the Applicant’s offending pattern demonstrating an obvious trend of increasing seriousness. It derives from a reality that (1) the abovementioned conduct at the Caltex Service Station in the 13th year of the history was at a significantly higher level of seriousness than what preceded it during the 12 year period beforehand; and (2) the remaining nine years of the offending history involved very serious ‘break and enter’ convictions that were populated by a stupidly persistent rate of commission of perhaps less serious offences that would usually be punished non-custodially but which did attract custodial terms due to their rate of re-commission during this nine year period.
I am therefore satisfied that the Applicant’s offending has been frequent and that it contains a trend of increasing seriousness. I also therefore reach a state of satisfaction that this sub-paragraph 8.1.1(1)(d) most certainly speaks to the very serious nature of the totality of the Applicant’s offending in this country.
Paragraph 8.1.1(1)(e): this sub-paragraph looks for any cumulative effects to be taken from an unlawful non-citizen’s offending. To my mind, this Applicant’s almost 23 year criminal history in this country gives rise to the following cumulative effects. First, the sheer volume of offences committed across the 23 year period of offending, when conjoined with the astonishing number of repeated offences in the realm of (1) breaches of bail; (2) breaches of bonds; (3) a refusal to provide personal particulars upon lawful request; (4) repeated offences involving the unlawful carriage of an offensive weapon; and (5) repeated drug possession offending, makes it clear that this Applicant has totally failed to experience any form of deterrent effect from the sentencing regime that has been progressively applied against him in an effort to curb his predisposition to offend.
One can almost hear the exasperation of judicial sentencing officers, particularly in the latter half of the offending history, during which the Applicant committed well over 100 of the totality of his 134 offences. As mentioned earlier, much of this offending in the second half of this history would not have attracted custodial time, but such was the persistence with which the offending was committed that judicial sentencing officers had no option but to place the Applicant in actual custody.
A second cumulative effect is that substantially most, if not all, of the Applicant’s offending has been committed as a result of his very significant involvement in illicit substance abuse. This was a proposition with which he did not appear to cavil during the Hearing. It is not trite to suggest that his difficulties with illicit drugs have consumed his life across the approximate period of the last decade and a half. His moral compass became so significantly skewed-particularly from 2011-2012 onwards-that his offending occurred on a virtually unregulated basis. This was not offending involving the commission of ‘one-off’ offences such as to give rise to a particular sequence of offending. Rather, it was heavily repeated unlawful conduct committed without a capacity to pause and consider whether his conduct was rational or lawful. I will have more to say about the Applicant’s very long and adverse relationship with illicit drugs later in these Reasons. But for the purposes of this paragraph 8.1.1(1)(e) there is no cavilling with the proposition (and finding) that the Applicant’s seemingly unresolved difficulties with illicit drugs have comprised a cumulative effect of his repeated offending.
Third there is surely little or nothing to cavil with the proposition and finding that (1) a criminal offending history involving the commission of some 134 offences across almost 23 years that were dealt with at 36 separate sentencing episodes has consumed more than its fair share of the community’s law enforcement and judicial sentencing apparatuses. The level of such resources required to detect and regulate unlawful conduct involving the commission of over six offences per year has surely been significant. Similarly, for one offender to compel sentencing courts to deal with him on between one and two occasions per year is an unreasonable impost on the judicial sentencing resources of the community.
Fourth
, another undeniable cumulative effect of the Applicant’s repeated offending is that the sheer extent and volume of his history is that he has developed little or no respect for the lawful authority governing the Australian community back into which he seeks
re-admission. He has repeated offences for drink driving which is indicative of a person unable to comprehend the danger resulting from the impairing effects of alcohol on a person’s capacity to operate a motor vehicle. He seems to have almost no respect or regard for a lawfully made order such as bail, a community service order, a bond that compels him to do or refrain from doing something. His property offences are indicative of a person who seems to have little or no respect for other people’s right to enjoy their lawfully acquired property as and how they see fit. He has little or no respect for people in lawful authority requesting his personal details during an interception for the commission of a suspected offence(s).
The abovementioned four cumulative effects of the Applicant’s offending thereby cause this sub-paragraph 8.1.1(1)(e) to volubly speak to the very serious nature of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1 (1) (f): this Applicant has never departed Australia since his initial arrival as a seven year old in June 1988.[27] He has thus not had an opportunity to commit any offence or to demonstrate any other inappropriate conduct involving the provision of false or misleading information to the Respondent’s Department by not, for example, disclosing his past convictions in Australia on an incoming passenger card. The Applicant has convictions for (1) ‘provide false information on a bail application’ (x3); (2) ‘state false personal detail’ (x2); and (3) ‘false information or document to second hand dealer’. However, none of these offences involved the provision of ‘…false or misleading information to the [Respondent’s] Department…’ and it would thus be an unfair stretch of the ambit of this sub-paragraph to purportedly encompass such conduct. This sub-paragraph 8.1.1 (1)(f) should be put to one side and rendered neutral for present purposes.
[27] See [1] of these Reasons.
Paragraph 8.1.1(1)(g): the material has nothing to say about the Applicant receiving any formal warning from either the Respondent’s Department, or any other source, about the impact of any subsequent offending thereby imperilling his Visa status to remain here. This sub-paragraph should be put to one side and rendered neutral for present purposes.
Paragraph 8.1.1(1) (h): the Applicant came here as a seven year old in June 1988 and, of course, had not compiled any criminal history in his country of origin. He has not left Australia since arriving here and has thus not had any opportunity to engage in any unlawful conduct abroad which could be classified as an offence in Australia. This sub-paragraph can be put to one side and rendered neutral for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
As I have outline earlier, the Applicant’s offending, in terms of the nature of offences committed, has been quite diverse. In terms of the nature of harm that would be experienced by any future victim, it seems clear that re-commission of violent conduct would have a quite conceivable physical, psychological and potentially catastrophic impact on a victim.
When sentencing this Applicant for his violent offending involving his commission of the offence of ‘commit theft using force (aggravated offence)’ on the sole female attendant inside the Caltex Service Station in May 2012, the learned sentencing judge[28] reviewed the Applicant’s conduct and said the following by way of sentencing remarks:
‘As her [i.e. the sole female attendant inside the Caltex Service Station] victim impact statement makes clear, she is suffering post-traumatic stress disorder as a result of your crime. The effects are likely to be long-term. Although I think there was a real degree of desperation about your commission of the crime, you caused a lot of harm to someone else.’[29] [My emphasis]
[28] His Honour Judge Barrett, District Court of South Australia.
[29] R1, p 28.
The Applicant has a range of convictions for offending against the property of others as well as for fraudulent conduct intended to unlawfully deprive victims of funds or to otherwise materially damage them in financial terms. Were the Applicant to re-commit such offending there is little or nothing to cavil with the proposition (and finding) that victims of such conduct would suffer material and quantifiable harm.
Any future commission of offending in the realm of driving while under the influence of alcohol could quite conceivably result in harm, potentially catastrophic harm, to other road users. I have previously written of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle. [30]
[30] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].
I have had regard to the nature and extent of this Applicant’s unlawful conduct in this country. I am satisfied that re-commission of any part of it has the potential for the occasioning of physical, psychological, measurably material and even catastrophic harm to its victims. I so find.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
I will firstly review the evidence adduced by the Applicant around recidivist risk. I will then address the factors propounded by the Respondent in support of its contention that the Applicant represents a ‘significant and unacceptable’[31] level of recidivist risk. Finally, I will list my findings about recidivist risk as a precursor to reaching a concluded finding about the actual risk represented by this Applicant.
Review of the evidence adduced by the Applicant
[31] R3, p 10, [33].
The Applicant’s evidence
The Applicant’s latest written statement is dated 10 November 2023 and appears in the material.[32] He attributes his offending to a melange of mental health issues, substance abuse issues and symptoms of Post-Traumatic Stress Disorder (‘PTSD’). In this written statement, he says:
‘I have made some serious regrettable mistakes and I've lost my issues I intend to address with you namely mental health and addiction abuse and pushed traumatic stress.
A lot of my behaviour and actions have brought me great shame and embarrassment and I can see with confidence for the first time in my life that I've finally got these issues under control and also for the first time in at least ten years I have a clear perspective of how to become a responsible member of the community again.’[33]
[Errors in original]
[32] A1.
[33] A1, p 1.
Further in this statement the Applicant refers to rehabilitative therapy which he has commenced and intends to continue upon a return to the community. He says:
‘I've begun treatment working with a psychiatrist weekly appointments using cognitive behavioral therapy which I will go through with you and I've also been attending the change on the inside classes in my unit I've also in bit by bit rebuilding for fractured Family ties over the past 20 months I also started medication and which I continue on to help to stop with relapsing and I've already reached out to the chemist which is right next to my partners house on the outside for have a referral also to continue my cognitive therapy that I will pass on to my doctor Benny Tang my GP on the outside and to continue psychiatric therapy.’[34]
[Errors in original]
[34] Ibid.
The Applicant also provided oral evidence at the Hearing. He accepted that the abuse of alcohol and illicit drugs was ‘100 per cent’ at the centre of his past offending:
‘MS LIDDY: Mr Blair, did – some or all of your criminal offending was alcohol a contributor to that?
APPLICANT: ---Alcohol or drugs, yes. Yes, 100 per cent, there’s quite a lot of this, I can probably go through it and I can’t really remember a lot of it. And that’s a copout but, yes. I used to drink to the point where I was just basically – yes, you couldn’t get through to me. I was just - yes, so I couldn’t think and I didn’t think on a regular basis. As you can probably see by my record there’s a lot of it like damaging property – yes, stupid. I’ve wasted almost 15 years of my life.
MS LIDDY: And you’ve mentioned drugs. What drugs were you using?
APPLICANT: ---Mainly ice and meth, occasionally heroin, but it was mainly ice (indistinct).’[35]
[35] Transcript, p 13, lines 38-45; p 14, lines 1-2.
He spoke of dabbling in illicit drugs as a teenager but that he started to experience a problematic relationship with illicit drugs during the period 2010-2011.[36] He also spoke of his involvement in the abuse of illicit drugs being the result of negative peer groups and how it caused him to become a regular consumer of methylamphetamine and heroin:
[36] Ibid, p 14, lines 4-6.
‘APPLICANT: I started when I was – I was 15 and I was in a car up at Hackham in South Australia, and I hadn’t even started smoking it at that stage, really. I hadn’t smoked cigarettes, I wasn’t drinking, and I was in a car with a mate, and he said, ‘look over there and don’t move’, I said ‘what’, and he just grabbed my arm and shot me up, and that was my introduction to drugs. It’s hard to say. And yes. And I enjoyed it. I should have hated him for that, but I never did, but – and that became a bit of a problem, and that’s what brought me to leaving Adelaide and going to Perth initially, to just – well, it was a circuit-breaker to stop it.
MS LIDDY: How often were you using ice when it was a problem for you?
APPLICANT: ---Every day.
MS LIDDY: How much would you use daily?
APPLICANT: ---(Indistinct). Between half a gram and a gram. Yes. (Indistinct).
MS LIDDY: What about heroin? How - - -?
APPLICANT: ---Sorry?
MS LIDDY: Heroin, how often were you using that?
APPLICANT: ---I was lucky enough that heroin didn’t really become a big problem. It was just once or twice. It was more a – yes. It was every so often, but the ice was the main problem.’[37]
[37] Transcript, p 14, lines 10-29.
The Applicant gave evidence of currently being on a methadone program which he said ‘It stop me, it actually keeps me straight from the ice’.[38] He acknowledged that he developed an addiction to the drug Suboxone in 2014 while serving a terms of imprisonment.[39] However, upon release from prison he said that while he used Suboxone to satiate his need for illicit drugs while in prison, he had not, since his release, re-used Suboxone and that a recent drug test he undertook confirmed there was no Suboxone in his system:
‘MS LIDDY: So you used contraband Suboxone to get your drug fix whilst in prison. Is that correct?
APPLICANT: ---Yes, I did for a long time. Yes. (Indistinct) - - -
MS LIDDY: So, Mr Blair, do you - - -?
APPLICANT: ---Sorry, I was going to say, I had a drug test here recently. It should be in my medical records, and I passed it, so I’ve been clean the past – ever since I started on the methadone program, I’ve been clean, so.
MS LIDDY: When you were not in prison or not in detention and you were using ice, were you committing the crimes to support your drug addiction?
APPLICANT: ---That’s exactly what I was doing, yes.’[40]
[38] Ibid, line 34.
[39] Ibid, lines 35-36.
[40] Transcript, p 15, lines 13-23.
The Applicant then spoke of going on a Suboxone program upon his release from Port Augusta prison on 21 December 2021 and that he remained on that program until his further offending saw him taken back into criminal custody in February 2022:
‘APPLICANT: ---Well, I was started on Suboxone on the outside. I switched over to methadone once I got locked up.
MS LIDDY: So you’ve been on methadone since you were in prison [in February 2022]. Is that correct?
APPLICANT: --Yes. I was on the Suboxone. I was on was two strips. But then, because Suboxone is such an abused drug in jail, they don’t leave you on it. They swap you over to the methadone. It’s basically, I would say, the same thing. It’s just liquid and it can’t be diverted, pretty much, so. And I wouldn’t anyway because I wouldn’t share. But yes, so within the first week or two of coming back into prison [in February 2022], they swapped me over to methadone and I stayed on it, and yes.’[41]
[41] Ibid, p 15, lines 45-47; p 16, lines 1-5.
The cross-examination was then oriented towards the extent of drug and alcohol counselling undertaken by the Applicant. He had this to say on this issue:
‘MS LIDDY: Mr Blair, have you ever undertaken any drug and alcohol counselling?
APPLICANT: ---Yes, I have. I actually – I just realised I said that I was enrolled in Change on the Inside. That was wrong. It’s SMART Recovery I was doing on the inside, and that’s in my medical records. I noticed that in your statement of facts, you said that my counselling sessions hadn’t been substantiated. But if you look at my medical record, the pages 13, 5 and 3 are the first – these were the first three psychiatric appointments that I had.
…
MS LIDDY: And, Mr Blair, when have you started this treatment, SMART recovery, and engagement with a psychologist?
APPLICANT: ---Well the SMART recovery they do – once a month they come into the unit so it’s a group thing so it’s the past couple of months I’ve done that and the psych character appointments we started at 10 – pardon me, no the cognitive behavioural therapy initially is a 10 week program and so that would – eight weeks ago I started the first 10 week but then there’s further programs you can do with it and whatnot. So I was trying to – so I got a referral there for – to see a psychiatrist on the outside if I get the opportunity to and – yes, like I said, this is the first time in my life I’ve been able to face life straight, sober and deal with everything…’[42]
[42] Ibid p 16, lines 7-13; lines 26-35.
The Applicant was then asked whether he had undertaken any drug and alcohol counselling prior to his time in immigration detention, that is, prior to January / February this year:
‘MS LIDDY: Mr Blair, prior to this engagement whilst you’ve been in detention, have you had any drug and alcohol counselling prior to that?
APPLICANT: ---Nothing that has stuck out, no. I admit – yes, like I said, this is the first time I’ve actually been focussed and motivated and – but, again, it’s – I want to be able to give it a miss as well.
…..
MS LIDDY: Mr Blair, I just wanted to confirm that since being in detention this is the first time you’ve really taken up the opportunity to engage in treatment or programs; is that correct?
APPLICANT: ---Well, yes, it is the first time I’ve stuck at it. Yes, and like you said, but it was something I’d been thinking – I was motivated to do….’[43]
[43] Transcript, p 17, lines 22-26; p 18, lines 21-25.
It was then suggested to the Applicant that he has had numerous opportunities to address his addiction issues with illicit drugs and alcohol. He responded in these terms:
‘MS LIDDY: Mr Blair, do you agree that you’ve had numerous amounts of opportunity over the years to address your drug and alcohol issues?
APPLICANT: --Yes. Yes. I’ve never – I can’t deny that. Like it’s – as I said it ridiculous. I should have - (indistinct) never happened, I should have started then but – and I’ve lost so much now because of it and then lost how many years of my son’s life and then – like my mum’s – my parents are both getting on a bit now, like they’re both 65, and so she said to me ‘I think it’s long enough to see you back on the straight and narrow, Raymond.’’[44]
[44] Ibid, p 19, lines 15-22.
An assurance was sought from the Applicant about him not relapsing into the abuse of illicit drugs or alcohol if returned to the community. He spoke of not wanting to return to a scenario where he was the subject of a serious physical attack while at Port Augusta prison and not allowing substance abuse issues to effectively rule him out of any role in the life of his 16 year old son. He denied that he had returned to abusing illicit drugs on the most recent occasion he found himself in the Australian community:
‘MS LIDDY: Mr Blair, how can you guarantee that you wouldn’t relapse into drug or alcohol use if you were released into the community?
APPLICANT: ---Just like you said, this was my idea. For the first time I had started putting this in place before I came to detention and before I lost my visa - I got stabbed, it took 27 minutes for the ambulance to get there, I was flat-lined - and then luckily (indistinct), I don’t want to be in a position like that again. I’m no good to [Child C] – [Child C] and my family. No good to any of them (indistinct) and life’s a struggle. So that’s why I – I this time. I admit I was – I’m not going back to that. I can’t. I won’t survive it.
MS LIDDY: But, Mr Blair, is it true that last time you were in the community you were using drugs?
APPLICANT: ---No, I wasn’t. I was – I was going to get my dose every day and that was it. That’s all I did.
MS LIDDY: Your dose of Suboxone, is that correct?
APPLICANT: ---Correct. That’s right and up to the chemist and – yes, that’s all I did.’[45].
[45] Transcript, p 19, lines 24-39.
The Applicant was asked about his employment history. He spoke of working in the mining industry in Western Australia during the period 2002 until about 2007. He said ‘…I went into one of those labour hire companies and I sort of went around the place.’[46] He said this casual-type employment gradually evolved into full-time work with quite decent remuneration.[47] He confirmed that this employment in the mining industry ended in about 2007 and that the only remunerative work he has done since then involved him working intermittently as a kitchen hand during the period 2010-2012:
‘MS LIDDY: And you said that employment ended in approximately 2007. Have you worked since then?
APPLICANT: ---No. Just like I said I worked as a bit of a kitchen hand for maybe a year on and off at the Cumberland Hotel and the Osko(?) Hotel in Semaphore. But that was it, yes, just working at – that was in 2010, ‘11, ‘12, yes.
MS LIDDY: But since you worked as a kitchen hand have you done any other work?
APPLICANT: ---No.’[48]
[46] Ibid, p 27, lines 14-15.
[47] Ibid, lines 15-41.
[48] Ibid, p 28, lines 15-22.
The Applicant was then taken to his relationship with Ms Jessica Walker and he confirmed that they had known each other eight years[49] and that they have been together in a relationship ‘…for, what, three years, except obviously the six months she found out that I’d been running around doing crime..’[50] He acknowledged that he continued to commit criminal offences during the relationship.[51] He also confirmed that he was using methylamphetamine during their relationship and that she was aware of that but that she did know the extent of his illicit drug use:
‘MS LIDDY: What about drug use, Mr Blair? Were you still using ice whilst you were in a relationship?
APPLICANT: ---Yes. Well, basically up until I went into Port Augusta. So, right up until the – yes, the stabbing which was only two or three weeks before, which was September 2021, obviously. Sorry, the dates – yes.
MS LIDDY: And was Jessica aware of your drug use?
APPLICANT: ---Yes. She’s probably a casual user. She obviously wasn’t aware of how bad – yes. Like I said I hid it from her until when I got arrested and I had to come clean about everything. And hence why she – I gave her the time. She wouldn’t answer me for a long time until she decided that she does love me and she will sit down and listen to what I’ve got to say.’[52]
[49] Ibid, p 22; line 14.
[50] Ibid, lines 5-6.
[51] Ibid, lines 23-29.
[52] Ibid, lines 31-41.
The evidence of Applicant’s father, Raymond Blair Senior
Mr Blair Senior provided both oral and written evidence to the instant proceeding. His written evidence comprises a jointly written statement with his wife, Christine. In the written statement, the Applicant’s parents say:
‘We are the parents that brought this then 7 year old to Adelaide South Australia, he found his way to Western Australia and during the ups and downs of his lifestyle, after 24 years we sacrificed our own lifestyle and moved to WA to continue our family support of his son [Child C] our grandson, to this end we have been present at the growth of his son [Child C] now 16 and we have assisted getting him a part time job in Kmart. He is a fine young man. We have currently been working to a reconciliation of Raymond and [Child C] who has been interested in his father’s recovery.
We would also like you to take into consideration a reconnection with his younger brother a who will make the effort when he is released and he has rehabilitated.’[53]
[53] A4.
The statement concludes with the words that ‘If Raymond [the Applicant] is given the opportunity for counselling in combination with his medication we will continue to support and help give him [sic] where we can’.[54]
[54] A4.
Mr Blair Senior also provided oral evidence to the instant Hearing. It transpires that he has the capacity to expose the Applicant to a range of employment options if the Applicant returns to the community and resides with or near his parents:
‘SENIOR MEMBER: Thank you. And during his evidence your son spoke about going back to work in the mines and in particular two mines which are situated in, I think it’s the northern parts of Perth at a place called Wanneroo. And there’s another mine that he’s worked at previously called Gingin, I think. And are you confident that he will be able to find work in that sort of industry which he used to do before?
MR BLAIR SENIOR---Well, there’s an awful lot – any other options for him. Because I work in the industry and I manage people to go to the mine sites. And I manage them here. So, in my employ [sic] here there’s even a possibility here. But it is a long travel, I’m 60 kilometres from home to my job. But I work in the mining industry. I’ve built BHP contracts for this business. I work for a company called HWC Hydraulics. And you can look at it on their website. And I manage the service department which is internal, external. So we’ve got mine sites Kalgoorlie, the Pilbara. So, we’ve got all sorts of options. And there’s plenty of jobs there for anybody that wants to work. And even in Perth there’s other good motivational areas that you can get jobs here in Perth now. So there’s – for that industry, I work in it. And that’s what I would obviously be trying to do given that circumstances arose for sure.’[55]
[My emphasis]
[55] Transcript p 47, lines 42-47; p 48, lines 1-12.
I then asked the Applicant’s father about the extent of support the Applicant would expect to receive from his parents in the event he returns to the community but goes to Perth so he is under the purview of his parents as opposed to remaining in Adelaide where much of his difficulties with illicit drugs and consequential offending occurred:
‘SENIOR MEMBER: All right. And so, I think what your evidence might be, and please correct me if I’m wrong, I think your evidence is this, that if the tribunal gives him a visa and he comes back into the community and he stays in Adelaide, if he stays in Adelaide there’s a bigger chance that he’ll go back to his old ways and get back into the drugs and being in trouble with the law compared to him coming to Perth where he will have the greater oversight of his family looking over him and making sure he stays on the straight and narrow. Is that what you’re evidence is?
MR BLAIR SENIOR: ---Absolutely. I think it’s – I think he’s learned all of this, this past little while, how important it is. And now that he’s in a better place altogether I think there’s an opportunity to do that. And it’s a very good opportunity and that. And I think it’s important. And it’s definitely good for him. And I think it’s good for all of the family as well. And we can manage that. We don’t consider ourselves stupid people. We can manage that whole circumstance and help and we can help him as best we can like we currently do to be honest with you. And it’s been all these years, so yes absolutely I would agree with that. Yes.’[56]
[My emphasis]
[56] Ibid p 48, lines 26-42.
Mr Blair Senior was also cross-examined. He was asked about his reaction in the event the Applicant abusing illicit drugs again. He responded in these terms:
‘MS LIDDY: And if your son was to be released back into the community, how would you feel if he started using drugs again?
MR BLAIR SENIOR: ---It certainly wouldn’t be the best thing that we would want. We’re always going to be there to help. And that’s always what we’re going to do. And I actually never deviated from that, and never have deviated from that. And where we can help, we will help. We hope. And we have seen it differently this time, that he is in a better, different place, when you talk to him. And now I Facetime him all the time, it’s actually much better to communicate with him because then you see people’s faces then, you’re not (indistinct). But without communication it’s different. But it would be desperately disappointing but at this point in time I don’t see that from the previous history.’[57]
[My emphasis]
[57] Transcript, p 50, lines 24-34.
The evidence of Applicant’s partner, Ms Jessica Walker
Ms Walker has provided three written statements. The first two of them were made in July of this year as part of the Applicant’s representations to the Respondent’s Department seeking revocation of the mandatory cancellation of his Visa. Those statements are respectively dated 7 and 24 July 2023.[58] While the Applicant has been in immigration detention, she says ‘…I miss him greatly.’[59] She thinks the Applicant ‘…has done a complete 360 turn around!’.[60] She confirms they have known each other for eight years and that they have been ‘very happy together’[61] for three years. She speaks of being ‘… impressed and inspired by [the Applicant]’s…willingness to change.’[62]
[58] R1, pp 86-89.
[59] Ibid, 87.
[60] Ibid.
[61] Ibid, p 89.
[62] Ibid.
In terms of support mechanisms around the Applicant she says:
‘So the man you see today is a man who has big dreams and I believe he will achieve these dreams. I'm abig [sic] part of these plans in his and our future as we will pick up from wer [sic] we left off and re start our lifes [sic] together. With his parents and his son. They are great supports for [the Applicant] and they live here in Australia also.’[63]
[63] R1, p 89.
Her most recent statement is dated 14 October 2023 and appears in the material.[64] In this statement she says ‘I am so impressed with the effort [the Applicant] has been putting into his mental health and his drug rehabilitation. I am looking forward to having him home and picking up were [sic] we left off [sic] in our lifes [sic] together with a healthier Ray [the Applicant] and a healthier relationship.’[65] In terms of acting as a rehabilitative support for the Applicant, she says ‘…we will begin our days with going to the pharmacy to continue Ray’s methadone treatment Which [sic] my local pharmacy has agreed for him to continue with his treatment there.’[66]
[64] A3.
[65] Ibid, p 1.
[66] Ibid, p 2.
In terms of what she can offer the Applicant upon his return to the community she notes that the Applicant ‘….has done olot of reflecting on his life and I cant wait to hae him home with me.I have been preparing a olready stayable home for Raymond to come back to. Please send him back to me I miss him so much and the though of loosing some one else I love sceares me to no end’[67] [Errors in original]
[67] Ibid.
Ms Jessica Walker also provided oral evidence. During cross examination she agreed that she had been aware of the Applicant’s involvement with illicit drugs ‘..but not to the extent that he’s told me about now’.[68] She said the Applicant had never used methylamphetamine or heroin around her.[69] She is now aware of the totality of the Applicant’s criminal history.[70] She was asked about how she would feel in the event the Applicant returned to the community and started using illicit drugs again. She responded in these terms:
‘MS LIDDY: And if Mr Blair was to come back into the community how would you feel if he started using drugs again?
MS WALKER: ---It would really hurt me. It would hurt me deeply. But he won’t be and I know he won’t be. So, yes it would hurt me a great deal but I don’t (indistinct) I’m not concerned about it. But I have got that slight reservedness in me, obviously. I’m being realistic but I don’t think that that will happen.’[71]
[68] Transcript, p 41, lines 36-37.
[69] Ibid, lines 39-40.
[70] Ibid, p 42, lines 10-11.
[71] Transcript, p 42, lines 13-18.
Ms Walker was asked about whether or not she would relocate with the Applicant to Western Australia in the event he went to live there upon his return to the community and she responded in these terms:
‘MS LIDDY: Okay. And Mr Blair has advised the tribunal today that you are intending to move to Western Australia. Is that correct?
MS WALKER: ---Yes. That’s the plan.
MS LIDDY: And do you have family members yourself in Western Australia?
MS WALKER: ---Sorry?
MS LIDDY: Do you have any family members in Western Australia?
MS WALKER: ---No. I don’t. I don’t. And I’m fine with that because I lost my mum this year and my closest brother to me too. I have other siblings, but not the ones that I’m (indistinct words). I don’t mind moving away, fresh start sort of thing, a fresh start type thing (indistinct) for, like, a transfer.’[72]
[72] Transcript, lines 24-33.
The International Health and Medical Services (IHMS) records
During his time in immigration detention the Applicant has been the subject of regular monitoring and examination by IHMS staff. The IHMS records[73] are before the Tribunal and they provide a running narrative of the Applicant’s care and observations about his symptomatology for the period 9 January 2023 to 11 October 2023. I have read through the totality of these records and refer to the following specific entries that, in my view, speak to the Applicant’s level of recidivist risk:
[73] A2.
·record dated 9 January 2023: the General Practitioner who made this record noted the Applicant presented for admission into immigration detention with a diagnosed ‘drug addiction’ and this was being dealt with by ‘therapy-methadone (regime/ therapy).’ It is further noted that ‘…writer found a nearby pharmacy with methadone license. talked to pharmacist Emily. They have axcpted new patient to dispense methadone daily from Tuesday’;[74]
[74] Ibid, p 67.
·record dated 9 January 2023 made by a primary health nurse wherein it was noted that the Applicant ‘…is on regular Methadone 5 mg OD’;[75]
[75] Ibid, p 62.
·record dated 10 January 2023 made by primary health nurse noting the Applicant ‘…states he is well…Went out to pharmacy for his Methadone and returned to the room…’;[76]
[76] A2, p 59.
·record dated 10 January 2023 made by a General Practitioner noting the Applicant remains on ‘…methadone daily (serco to take off site pharmacy as planned)..’;[77]
[77] Ibid, p 54.
·record dated 10 January 2023 made by a General Practitioner who recorded an observation that in terms of the Applicant’s ‘Alcohol status’, he was recorded as a ‘Non Drinker’;[78]
[78] Ibid, p 53.
·record dated 24 January 2023 made by a primary health nurse who noted that in terms of ‘Risk Assessment’ there was ‘Nil safety risk evidence cross-sectional’. Further, the following was noted with regard to:
‘Protective Factor
14 year old son
Future-focus’;[79]
[79] Ibid, p 40.
·record dated 2 February 2023 made by mental healthcare nurse which notes the following:[80]
[80] Ibid, p 35.
‘Risks
Denies risks of SH/Suicide -LOW (Hx of hanging in 2006)
Denies risks of Violence -LOW;
….
Impression:
10-30 MHA /K10 completed
Nil imminent risks identified .’;
·record dated 26 June 2023 made by a primary healthcare nurse which notes:[81]
[81] Ibid, p 16.
‘Nil psychotic symptom was evident from review….;
Risk Assessment
Nil safety risk concern evident from review;
Protective Factor
Family
14 year old son;’
·record dated 3 August 2023 by a D&A[82] Psychologist who noted: [83]
[82] Presumably ‘Drug and Alcohol’.
[83] A2, p 13.
oClient reported Nil suicidal ideation or thoughts of harming others.
….
oAssessment:
Protective factors. Friendship in MITA, Gym, activities, family, future focussed
Client presents on OSTP[84] methadone. Significant PTSD symptoms. Anxiety. Mirtazapine. Detention fatigue.’;
[84] Opioid Substitution Therapy.
·record dated 28 September 2023 by a D&A Psychologist who noted:
‘Mr. Blair presented neatly dressed. He was alert and orientated. He engaged well with writer. Presented with euthymic mood and reactive affect. Linear thought-form. ; Nil delusions reported. Client reported Nil suicidal ideation/ Self harm/ No thoughts of harming others, and no thoughts of harm from others upon questioning ATOR[85]. Introduced CBT with examples.
[85] At the Time of Review.
…
Impression:
Ray is coping well in detention. He has regular social connection and is engaging in activities. He is hopeful and future oriented.
Plan:
Learn and practice CBT for coping strategies. PTSD diagnostic test.’;[86]
[86] A2, p 5.
·record dated 10 October 2023 by a D&A Psychologist who noted:
‘Mr. Blair was dressed neat casual with good self-care. He was alert and orientated. He engaged well with writer. Presented with euthymic mood and reactive affect. Linear thought-form. ; Nil delusions reported. Client reported Nil suicidal ideation/ Self harm/ No thoughts of harming others, and no thoughts of harm from others upon questioning ATOR.
….
Impression: ; Raymond is managing well ATOR. He is engaging in activities particularly gym which helps him manage a difficult situation. He wants to engage SMART recovery and pursue other self-development /rehabilitation activities. He reports no use of contraband. ; ;
Plan: Appointment scheduled for 11 10. Continue engaging Raymond with CBT D&A rehabilitation. Discuss trauma processing. Writer interested in whether assessment for ADHD/ADD may be helpful.’;[87]
·record dated 10 October 2023 by a D&A Counsellor who noted:
‘Client presented today for ;Routine UDS[88].
Procedure explained to client - verbal consent ;obtained.
Stated he has nil use ;of illicit substances in the compound;
Specimen collected;
…..
Nil other concerns reported.’ [89]
[87] A2, p 3.
[88] UDS: Urodynamics
[89] A2, p 2.
Recidivist risk factors propounded by the Respondent
I will now address factors propounded by the Respondent in relation to the Applicant’s recidivist risk.[90] The extent of the Applicant’s criminal history is undeniable and I have sought to summarise it in relatively detailed terms earlier in these Reasons. But the extent of a person’s past offending should not, in and of itself, be accepted as a reliable indicator of that person’s level of recidivist risk.[91]
[90] R3, p 10 [33(a)-(e) inclusive].
[91] Ibid, [33(a)].
The Applicant openly acknowledged that issues with uncontrolled and unrestrained abuse of illicit drugs and alcohol were at the front and centre of his history of criminal offending, particularly since 2010 and that this recourse to substance abuse had been primarily driven by the breakdown of his martial relationship with the biological mother of his now 16 year old son, Child C. The Respondent contends that while the Applicant seeks stabilisation of his propensity to abuse illicit drugs via participation in an OSTP methadone program, his capacity to refrain from opioid substance abuse in the broader community remains untested and cannot be safely known without a supportive opinion from an independent clinician.[92]
[92] Ibid, [33(b)].
True it may be that there is no such independent clinical reporting before the Tribunal, but what we do have is a series of historically progressive IHMS clinical records running from early - January 2023 to mid - October 2023 indicating the Applicant’s consistent engagement in the OSTP methadone program, nil reporting about any suicidal ideation or any predisposition towards harming others as well as repeatedly recorded protective factors comprising (1) participation in fitness/gym activities; (2) ‘Family’; (3) his son, Child C; (4) a ‘Future-focus’; and (5) the Applicant being a ‘Non-Drinker’. These independently - recorded IHMS factors were corroborated by the evidence of the Applicant’s father, Mr Blair Senior and the Applicant’s partner, Ms Walker.
The Respondent contends the Applicant’s propensity to reoffend despite the imposition of non-custodial terms points to a finding that he has failed to address precursory factors behind his offending despite having been given every opportunity to do so.[93] Much, if not all, of the Applicant’s offending has occurred with virtually no support mechanisms around him. When he offended he was not engaged in remunerative employment; he was not engaged in any meaningful and supportive relationship with his parents; and he appears to have concealed the extent of his illicit drugs and his offending from Ms Walker. True it may be that the Applicant has not yet grasped opportunities presented to him as a result of progressively-applied deterrent sentences. But this behaviour has occurred in circumstances where he has, for all intends and purposes, dealt or associated with few people other than the negative peer influences that led him to illicit drug use and addiction and to consequential very serious offending.
[93] R3, [33(c)].
The difference now is that upon a return to the community, he has genuine prospects of (1) engagement in remunerative employment by his father; (2) a supportive parental structure around him; (3) a domestic relationship with Ms Walker where everything is ‘out in the open’ in so far as the extent of his past drug use is concerned; and (4) the availability of engagement in ongoing OSTP therapy in the community. In addition, there seems little to cavil with the proposition that the Applicant has come to the brutal realisation that his Visa status to remain in Australia is at existential risk as a result of his history of criminal offending in this country and that any future offending will very likely place him in the same position he currently finds himself with realistically lower prospects of restoring his Visa status than is presently the case.
The Respondent makes the contention that even though the Applicant has engaged in some rehabilitation including attending a certain number of weekly appointments with a psychiatrist, ‘Little weight should be placed on this evidence, noting it turns on the applicant’s assertions unsupported by any independent records which verify his attendance or articulate the objective and purpose of the classes and sessions.’[94] The nub of the contention is that one cannot be clear about how the Applicant’s engagement with rehabilitation thus far can now be found to mitigate his recidivist risk.
[94] R3, p 10 [33(d)].
This contention can and should be met with the extent of the Applicant’s involvement with therapy as evidenced by the IHMS records. I will say two things about rehabilitation. First, predicting recidivist risk based on the nature or extent of an offender’s claimed level of rehabilitation from predispositive factors behind their offending is, and has always been, an uncertain and largely predictive exercise. Second, while an offender may talk about the extent of rehabilitative benefit they may have experienced from participation in such courses or therapy, such lay evidence can only be reliably referenced against expert clinical opinion.
As mentioned, no such evidence is before the Tribunal. That said, there is the historicity of the Applicant’s engagement in a rehabilitative process described in the IHMS documents which are before the Tribunal. Those documents may not tell us precisely what rehabilitative effect(s) the Applicant took or experienced from January to October 2023. But what they do tell us is that expert clinician(s) and attendant staff working under their direction consistently monitored the Applicant and ensured his likewise consistent adherence to a pattern of rehabilitation while at the same time taking a careful note of other psychopathological factors speaking to the overall state of his mental health.
What those IHMS records also tell us - and I think this is the clearest thing these records, tell us, is that the Applicant himself has come to the realisation that his past predisposition and weakness towards illicit substance abuse can only be addressed by a strictly observed adherence to OSTP therapy and an otherwise consistent engagement with clinicians involved in the administration of such therapy. It does not matter whether the Applicant is in detention or in the community. If he was not involved in OSTP therapy while in detention from January to October 2023, it is more likely than not that he would have found a way to relapse into a dreadful pattern of illicit substance abuse in detention, in prison or wherever else he may have found himself. I am satisfied that if the Applicant has taken nothing else from rehabilitation thus far, he has understood that OSTP therapy does get his cravings and addiction for illicit drugs under a reliable measure of control. In the context of this Applicant’s circumstances, it is not insignificant that he has no history of offending or reportable conduct while incarcerated when he follows a rehabilitation program.
Finally, the Respondent puts the contention about the Applicant’s capacity to refrain from the abuse of illicit drugs and/or alcohol remaining untested in the community and that he is thereby at risk of relapsing into substance abuse and, in turn, at risk of committing further offences. This relatively simplistic contention can be addressed in terms of (1) the Applicant’s demonstrated pattern of engagement in OSTP therapy (and engagement with ancillary clinical involvement) evident in the IHMS records; (2) his consequential realisation that this pattern of rehabilitative engagement has brought his propensity towards illicit substance abuse under some measure of remedial management and control; (3) the availability of familial support upon return to the community; (4) the opportunity of reliably available remunerative employment upon return to the community; and (5) the opportunity to re-commence a domestic relationship with Ms Walker.
Findings about risk
My findings about the recidivist risk represented by this Applicant will, to a large extent, involve a synthesis of my above narrative responding to the Respondent’s contentions about recidivist risk. Succinctly stated, they are:
·
while it may assist with an assessment of the nature and seriousness of a person’s pattern of offending, a significant criminal history is not, by its very nature, a reliable predictor of a person’s recidivist risk. A criminal history is a
backward looking compilation of unlawful acts committed by, and convictions applied against, an offender;
·the Applicant has acknowledged the front and centre role played by a repeated pattern of illicit substance and/or alcohol abuse in his history of offending. I am satisfied he has come to the realisation that a consistent pattern of engagement with OSTP therapy (and ancillary clinical involvement with the provision of such therapy) has brought his propensity for illicit substance abuse under some form of remedial management and control and that he must maintain this pattern of engagement in the broader community to avoid any relapse;
·true it may be that no corroborative independent clinical opinion is before the Tribunal in this regard. As against that, the Tribunal has copies of IHMS records providing a 10 month narrative of the nature and extent of the Applicant’s engagement with a rehabilitative program which has succeeded in addressing his past predisposition towards illicit substance abuse. Those records (made by independent clinicians and supporting clinical staff) have also noted ‘protective factors’ consistently reported by the Applicant that positively speak to his recidivist risk. Those ‘protective factors’ were, to my mind, corroborated by the evidence of the Applicant’s father and Ms Walker;
·the Applicant does not appear to have experienced much of a deterrent effect from the progressively applied sentencing regime imposed on him during the course of his offending. I am of the view that much, if not all, of his past heavy involvement with illicit drugs and consequential offending was committed in relative isolation with little or no disclosure of it to his domestic partner or his family. Perhaps by virtue of the existential risk now presented to his Visa status via this proceeding, all of this is now ‘out in the open’ and fully-known by his family and Ms Walker. The reality of this disclosure does, to my mind, militate against the Applicant relapsing into a pattern of drug use and consequential offending committed in isolation;
·I am also satisfied the Applicant has now reached a state of realisation that his Visa status to remain here is, and can in future be, at existential risk. In the past, such was his reliance on illicit drugs that he ignored that risk (or perhaps never made it his business to find out anything about it) and that he also ignored the protective factors now around him in the form (1) supportive family; (2) the reliable availability of remunerative employment; (3) a supportive domestic partner; and (4) the availability of ongoing OSTP therapy (and any other necessary therapy) available to him in the community. His realisation of his past ignorance towards (1) the risk to his Visa status and (2) the protective factors that have been around him does, in my view, speak positively to the level of his future recidivist risk;
·true it may be that the Applicant’s claimed state of rehabilitation is not corroborated by independent clinical opinion in terms of a specific medico-legal report prepared for a hearing like this. But I think there is a reliable, independent and clinically recorded historicity of the Applicant’s engagement in the rehabilitative process inherent in the IHMS documents now before the Tribunal. Those records make it plain that the Applicant has participated in a defined program of rehabilitation in the form of OSTP therapy and that clinicians have made a careful summary of other psychopathological factors referrable to the overall state of the Applicant’s mental health;
·the Applicant has, in my view, arrived at a realisation that his past propensity towards abusing illicit substances can be managed and controlled. That realisation plus the confirmed supportive elements of his family and domestic partner together with reliable prospects of employment do, as a collective of factors, bode well towards his level of recidivist risk if returned to the community.
Assessment of recidivist risk
Having regard to the totality of the material before me, I am led to a finding that the Applicant does represent an acceptable recidivist risk if returned to the community provided (1) he strictly maintains a defined pattern of rehabilitative engagement (as evidenced in the IHMS documents); and (2) he accepts and takes advantage of the ‘protective factors’ around him in the form of his family, his domestic partner and the reliable availability of remunerative employment in the community.
Sub-paragraph 8.1.2(2)(c)
With initial reference to Other Consideration (a), I accept that the Applicant does not claim to be owed non-refoulement obligations. To whatever extent he may contend that a legal consequence of this decision may cause him to become the subject of indefinite detention, it is safe to find that he is not a person covered by a protection finding. Consequently, were this Tribunal to affirm the Decision Under Review the Applicant would be liable to removal from Australia as soon as reasonably practical.
I am of the view that the totality of the evidence before the Tribunal does not otherwise compel ventilation or analysis of any of the three abovementioned Other Considerations (a), (c) and (d) of the Direction. I will put these Other Considerations to one side and allocate neutral weight to each of them.
Other Consideration (b): Extent of impediments if removed
The Applicant’s evidence
A common theme in the evidence is that the Applicant says (and it was also said on his behalf) he has an unfamiliarity with Scotland and, more particularly, how to live his life in Scotland if compelled to return there. This unfamiliarity seems to derive from two things: first, the sheer length of time the Applicant has spent in Australia, having arrived here as a seven year old in 1988 and never having left this country for the ensuing 35-36 years. Second, he says he was not aware that a consequence of cancellation of his Visa could involve him being removed/deported to his country of origin. For example, in a written statement contemporaneous with his PCF (i.e. 29 January 2023) the Applicant says:
‘I am nieve [presumably ‘naïve’] and I knew I was born in Scotland but because I’d been here since age 7 and never doing time for a major crime it never occurred to me I’d be sent back. Australia is my home. If I’d been warned I’d adjusted my behaviour and found a way to quit drugs sooner. This has scared me. I don’t want to go back to a place I don’t know and don’t know anyone. We have had little contact from family in Scotland since arriving here in 1988.’[167]
[167] R1, p 65.
The resulting theme in the evidence is that the Applicant has now been, for all intents and purposes, caught unaware of the possible reality of removal and, in that event, little or no contingency or preparation has been made for that risk either by him or by members of his family. During his cross-examination the Applicant was asked whether he still had or knew of any family members in Scotland and he replied as follows:
‘MS LIDDY: Mr Blair, do you still have family members in Scotland?
APPLICANT: ---Yes. But I haven’t been in contact with them. We haven’t – the only ones I kept contact with was my gran and grandad from my dad’s mum and dad. And papa died in 2000 and gran died in ‘94. But we never ever spoke to mum’s side really. Uncle David, he’s my mum’s brother, we speak to. But he’s moved to New Zealand. He lives in New Zealand now. But we never, ever spoke to my mum’s side really. It was family politics, I suppose. I was too young. I don’t know. Because we came over here because my dad was a football player. And that’s what brought us over here. But my mum loves the sun and wanted someplace nice and warm to emigrate to. I was only little when we lived in Scotland but I still remember we went to Spain one year and then the Greek Islands and then Majorca, which is Spain, and Ibiza. Every year we’d go someplace warm. So it was ironic because mum wanted us to move someplace permanently that was warm. But we – mum’s mum and dad blamed my dad because it’s his soccer that brought – his football that brought us here. So yes, we had no contact with that side of the family at all from the minute we left Scotland, apart from as I said, Uncle David. And so – and back then you never had Facebook or, yes, Instagram or anything. So you telephoned or wrote letters. And when you’re seven years old you don’t really sit down and write back home. And so, yes, I’ve got six cousins I think but yes, I haven’t had any contact like I said, since I was there. So, I could walk past them on the street and not recognise them. I wouldn’t know them from a bar of soap.’[168]
[168] Transcript p 28, lines 24-46.
He was then asked about whether his parents maintained any level of contact with family members in Scotland and he said: ‘I think my dad still speaks to his brother a little bit, but not much. Yes, like they never really given me any updates about it. I think my mum would be very surprised if I even said I remembered them. She would have – yes, she would – yes, I think really haven’t told me whether they do or not.’[169]
[169] Ibid, p 29, lines 2-5.
There followed questions about the state of the Applicant’s knowledge about how he would access health services and the like in Scotland as a citizen of that country and he said: ‘No idea. I would not have a clue. I have no – like I said, I’ve been here since I was seven. I wouldn’t even know – I wouldn’t know how anything works over there. I haven’t been in contact with anyone there since I’ve been here…’[170]
[170] Ibid, lines 22-25.
The Applicant was then asked whether he had had any discussions with his parents about the possibility of him returning to Scotland and he said ‘Yes. A little bit. They don’t believe that it could happen, but they’re pretty upset about it….i have been here since-my mum is-I don’t know-I think my mum is a bit of, “little while you have been here since you were seven. You’re Australian.”’ [171]
[171] Ibid, lines 31-34.
The resulting question then became whether, his parents had made any enquiries with any family members in Scotland to ascertain whether they could provide some short-or long-term assistance to the Applicant in the event of his removal to that country. He said:
‘Like I said, I wouldn’t know. I don’t know how much contact they have with them. I know my mum speaks – and my brother – because he’s visited here a couple of times. But he lives in New Zealand. And, yes, I only know my dad as spoken to his brother because I’ve seen a couple of posts on Facebook between them. But like I said, my uncle is having a go at me on Facebook. But you know, so, yes I wouldn’t know. And I’m not even sure, because I know four of my cousins now live in Ireland (indistinct) and there’s one in France. So I’m not actually even sure where my aunts and uncles are.’[172]
[172] Transcript, p 29, lines 39-46.
Finally, the Applicant was asked whether relocation to Scotland is something that he could discuss with his parents so that they could potentially make contact with family members in Scotland who could offer him some assistance in settling there. He replied with: ‘No, and I – it’s – I’ll cross that bridge when I come to it, I suppose, if I have to like I said. And I can’t really comment because I’ve had actually no contact with them, and like I said my parents haven’t really discussed – really discussed much of that with me.’[173]
[173] Ibid, p 30, lines 7-10.
The evidence of the Applicant’s father, Mr Blair Senior
The abovementioned joint written statement[174] of the Applicant’s parents is silent about any impediments the Applicant would face upon a return to, and resettlement in, Scotland. Mr Blair Senior was asked in cross-examination about whether he still had any family members in Scotland and he replied with: ‘Yes. Yes. We do.’[175] He was then asked whether he was in contact with any of those family members and he said:
‘MR BLAIR SENIOR: Yes. Yes. I’ve got an elder brother and sister. Talking about communication. My sister hasn’t contacted me for about four years. So I Facetime them and then they just have a laugh at it. And I think they may be keeping contact through my brother who is on Facebook. So, I do communicate that way. They’re there but they live different lives.
…..
MS LIDDY: Understand. So, Mr Blair [i.e. Mr Blair Senior], if your son was to return to Scotland, do you have any family members that you’d be able to ask for some help to help him get settled?
MR BLAIR SENIOR: ---No. I wouldn’t ask them. At this point in time - - -
MS LIDDY: You wouldn’t ask anyone to assist him?
MR BLAIR SENIOR: ---Look, it’s been an awful lot of years. To be honest it’s quite a question because I never gave that any thought to be honest with you. But my sister is older. My brother is older. Their families’ grown up an away as well. Certainly I’ve got friends and that, that I would certainly rely on to do that. And I’d certainly do that. But it’s not a preference. I’ve never, to be honest with you, I never gave it any thought.’[176]
[174] A4.
[175] Transcript, p 50, line 37.
[176] Transcript, p 50, lines 39-44; p 51, lines 6-16.
The same question was alternatively put to Mr Blair Senior such that he was asked whether he had friends or connections-who may not be family members-who could assist with the process of the Applicant re-settling in Scotland. He responded as follows:
‘Yes. We do have plenty of friends there as well as regards that. So – but there are people there, yes. And there’s always a way and different things. I’ve got a football community back there. I won two championships back there. So, there’s an awful lot of people you know that can assist in anything. But family is more important to me, as I’ve just described to the others. That community is much more important to me.’[177]
[177] Ibid, p 51, lines 23-29.
Factors to be taken into account
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
Paragraph 9.2(1)(a): the Applicant has recently turned 43 years of age and, in physical terms, can be safely found to be in the prime of his life. There is reference to him suffering from ‘arthritis’ in the PCF[178] but the evidence about how that affects his physical capacity is either scant or non-existent. His health difficulties primarily relate to his mental health and how his psychopathology predisposes him to anxiety, depression and a sleep disorder. He is also said to be demonstrating symptoms of PTSD as a result of a knife attack some years ago.
[178] R1, p 63.
To my mind, the critical health issue for this Applicant is the requirement for him to remain constantly engaged with an OSTP therapy program that addresses his addiction to illicit opioid substances. This issue and its criticality to the welfare of this Applicant appears front and centre in the IHMS records to which I have referred. Those records were made by independent and learned clinicians (and their ancillary staff working to them) and must be accepted as reliable and correct. I have earlier found that the Applicant has come to a realisation that his best chance of preventing a relapse is to remain engaged in this course of therapy. If he remains in the Australian community, he will re-connect with clinicians who can facilitate this treatment and he will have the support of his parents (and Ms Walker) around him to facilitate and otherwise ensure he consistently engages with such therapy.
It is trite to suggest that the Scottish public health system is or might be broadly similar to that of Australia because in the context of this Applicant, such is the criticality around a strict and vigilant adherence to an OSTP therapy program that any risk to his capacity to maintain that vigilance can have significant adverse consequences for him. Yes, he might be able to gradually come to grips with how he will be able to (1) source such a therapy program in Scotland and (2) locate clinicians in Scotland responsible for its administration, but there would be next to no ancillary support around the Applicant to ensure vigilant compliance with such a program. Put simply, there is, in my view, a significantly higher chance of this Applicant relapsing into opioid substance abuse in Scotland, even if it has a similar public health system to Australia, than would be the case if the Applicant remained here.
The Applicant’s age is not an impediment to his return and re-settlement in Scotland. However, the Applicant’s unresolved psychopathology around a predisposition to abuse illicit drugs most certainly is. This specific impediment causes this sub-paragraph 9.2(1)(a) to strongly militate in favour of allocation of a heavy level of weight to this Other Consideration (b) in favour of the Applicant.
Paragraph 9.2(1)(b): the evidence is largely silent about any substantial language or cultural barriers impeding the Applicant’s re-settlement in Scotland. He has never returned to that country since arriving in Australia as a seven year old in 1988. As against that, Scotland is not culturally or linguistically dissimilar to Australia. I am hard-pressed to identify any impediment to his re-settlement in Scotland arising from the Applicant having any significant lack of familiarity with Scottish language or cultural norms. My finding must be that the Applicant will not be impeded by any language or cultural barriers upon a return to Scotland.
Paragraph 9.2(1)(c): this sub-paragraph looks for any social, medical and/or economic support available to the Applicant in Scotland. The Applicant does have family in Scotland. However, both his and his parents’ familiarity and levels of communication with those relatives has understandably dissipated through the over-35 years the family has been in Australia. The evidence of Mr Blair Senior can be safely accepted at face value: that is, the family have enjoyed and prefer the quality of the life they have established in Australia and have no sentimental or other longing for Scotland. If they did, it is more likely that Mr Blair Senior would have taken his family back to Scotland for multiple visits across this 35 year period. But he (it would seem either him alone or with his wife) has only visited Scotland once in the late 2000’s and all that did was to further convince him of the correctness of the choice he made in 1988 to bring his family to Australia.[179]
[179] See generally, Transcript, p 50, lines 43-46.
As a result, the Applicant is now, to an extent, taken by surprise because he cannot point to any family members in Scotland who can now be safely relied on to afford him short to medium term assistance towards re-settling in Scotland. It will be recalled the evidence of Mr Blair Senior was quite coy about his capacity to make a plea for such help to relatives in Scotland and that his evidence eventually devolved into most probably canvassing his friends in the Scottish football community to see if they can provide any assistance. I accept (and find) that Mr Blair Senior’s coyness about securing family assistance for the re-settlement of the Applicant was not artificially derived from an attempt to cause this Tribunal to identify this issue as an impediment, but rather, as a result of those family connections in Scotland dissipating through the mists of the over-35 year period of time the family has been in Australia.
In terms of economic support available to the Applicant in Scotland, it is safe to find that were he to require government support or assistance in the form of social security or unemployment benefits, he would have available to him the same level of such support, assuming he qualified for it, as would be available to other citizens of that country. But I interpret ‘economic support’ to not only involve support the Applicant can obtain from either government instrumentalities or from other people, but also as ‘economic support’ that a returnee could provide for themselves. In other words, what are the prospects of this Applicant sourcing reliable and properly remunerative employment in Scotland compared to Australia? I think the gulf between those two prospects in this regard is significant.
The Applicant has very strong prospects of securing good and reliable employment in Australia both through his own past work experience but, even more significantly, via the assistance of his father. It can be safely found that Mr Blair Senior can and will place the Applicant in remunerative employment if the Applicant returns to the Australian community and does, as both the Applicant and his father said in their evidence, relocate to Perth and does reconnect with his parents. Put simply, the Applicant’s prospects of securing employment in Australia are very significantly greater than his prospects in Scotland where he is entirely devoid of contacts or any other means of securing such employment.
This sub-paragraph 9.2(1)(c) also looks for any social impediments the Applicant may confront if returned to Scotland. While he is not estranged from whatever family he has in Scotland, there is an almost a total lack of mutual familiarity between him and them. Meeting them again in Scotland would be like meeting them for the first time. There is no suggestion in the evidence that the Applicant has developed any social connections in Scotland via electronic media or otherwise be it through a mutual hobby (football, for example) or anything else of that sort. There is likewise no suggestion in any of the evidence that Ms Walker would relocate to Scotland with the Applicant in the event of his removal.
These social, medical and economic support factors cumulatively cause this sub-paragraph 9.2(1)(c) to strongly militate in favour of the allocation of a heavy level of weight to this Other Consideration (b) in favour of the Applicant.
Findings about impediments
Given the respective heavy weights I have allocated to the sub-paragraphs (a) and (c) of paragraph 9.2(1) of the Direction, I am of the view that this Other Consideration (b) confers a very heavy level of weight in favour of this Tribunal setting aside the Decision Under Review.
Findings: Other Considerations
The allocation of weight to the Other Considerations in the present matter can be summarised as follows:
(a)legal consequences of the decision: is of neutral weight;
(b)extent of impediments if removed: is of very heavy weight in favour of revocation;
(c)impact on victims: is of neutral weight;
(d)impact on Australian business interests: is of neutral weight.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the power to revoke the mandatory cancellation of the Applicant’s Visa: either the Applicant must be found to pass the character test; and if not, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted (and found) previously in these Reasons, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the power afforded by s 501CA(4)(b)(ii) of the Act to revoke the mandatory cancellation of the Applicant’s Visa, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a certain, but not determinative level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 2: carries a certain, but not determinative level of weight in favour of affirming the Decision Under Review;
·Primary Consideration 3: is of a heavy weight in favour of setting aside the Decision Under Review;
·Primary Consideration 4: is of strong weight in favour of setting aside the Decision Under Review;
·Primary Consideration 5: carries a strong weight in favour of affirming the Decision Under Review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Considerations 3 and 4 plus Other Consideration (b) are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 5.
A holistic application of the considerations in the Direction therefore militates in favour of this Tribunal finding that there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made on 7 September 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa.
I certify that the preceding 207 (two hundred and seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.................[SGD]...............
Associate
Dated: 18 December 2023
Date of hearing: 29 November 2023 Applicant: Self-represented Solicitor for the Respondent: Ms Samantha Liddy (Senior Associate) Sparke Helmore Lawyers ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
RESPONDENT’S SUBMISSIONS
R1
Section 501G documents
Various
4 October 2023
R2
Supplementary G documents
Various
9 October 2023
R3
Respondent’s Statement of Facts, Issues and Contentions (SFIC)
16 November 2023
16 November 2023
APPLICANT’S SUBMISSIONS
A1
Applicant’s signed statement
10 November 2023
12 November 2023
A2
IHMS Records
Various
12 November 2023
A3
Letter of support from Jessica Walker
14 October 2023
12 November 2023
A4
Letter of support from Raymond and Christine Blair
Undated
12 November 2023
A5
Applicant’s submissions on indefinite detention
13 November 2023
13 November 2023
A6
Applicant’s submissions regarding error in his statement (A1)
19 November 2023
19 November 2023
A7
Applicant’s reply to Respondent’s SFIC
21 November 2023
21 November 2023
ANNEXURE B
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2023/6756
GENERAL DIVISION )
Re: Raymond Blair
Applicant
And: Minister for Immigration, Citizenship and Multicultural Affairs
Respondent
DECISION
TRIBUNAL: Senior Member Theodore Tavoularis
DATE: 1 December 2023
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside decision made on 7 September 2023 by a delegate of the Respondent and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
……..................[SGD]............................
Senior Member Theodore Tavoularis
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Remedies
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Jurisdiction
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Natural Justice
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