Bobbe and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 47
•22 January 2024
Bobbe and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 47 (22 January 2024)
File Number: 2023/1621
Re:Mahmudul Hasan Bobbe
APPLICANT
And Minister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:22 January 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 21 February 2023 to not revoke the cancellation of the Applicant’s visa.
.............[SGD]..............
Member D. Cosgrave
Catchwords
MIGRATION – Mandatory visa cancellation – Bangladeshi citizen – Class VB Subclass 885 – Skilled Independent visa – failure to pass good character test – criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – where Applicant has left Australia voluntarily – decision under review affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir V Minister For Immigration, Citizenship And Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
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
Member D. Cosgrave
22 January 2024
INTRODUCTION
Mr Bobbe seeks review of the Respondent’s delegate’s 21 February 2023 decision not to revoke the mandatory cancellation of his Class VB, Class 885 Skilled Independent visa (Visa).[1]
[1] G documents (bookmarked G1-G27), G1, page 1. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held by video from the Tribunal’s Brisbane Registry on 25 and 26 September 2023. Mr Bobbe represented himself. The Respondent was represented by Mr Morris, a legal practitioner with Clayton Utz Lawyers.
The Tribunal commends Mr Morris for his professional bearing, his elucidation and clarification of evidence in cross-examination and his approach to Mr Bobbe as a self-represented applicant.
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Bobbe is a 36-year-old Bangladeshi citizen (born September 1987). He arrived in Australian on 8 April 2007 and last departed Australia on 28 July 2022.[2]
[2] G10, pages 220-221.
Mr Bobbe’s offending in Australia is summarised below:
(a)He was convicted in January 2014 of using a carriage service to menace/harass/offend and released on a $500.00 good behaviour bond.
(b)He was convicted in November 2016 of driving with low range prescribed concentration of alcohol. He was disqualified from driving for three months and fined $500.00.
(c)He was convicted in October 2017 of driving a motor vehicle while suspended. He was fined $700.00 and disqualified from driving for a further 12 months.
(d)He was convicted in July 2018 of five counts of driving a motor vehicle while disqualified and was fined $100 in respect of each count and disqualified from driving for a further 6 months. Mr Bobbe appealed against these convictions, but the appeal was dismissed.
(e)He was convicted in April 2020 of four counts of assault with an act of indecency, taking a person with intent to commit a serious indictable offence, driving with a middle range prescribed concentration of alcohol, and of engaging in a police pursuit, after not stopping and driving off at speed from police.
(f)Following his conviction, he was sentenced to a total aggregate sentence of 6 years(commencing 19 August 2018 and concluding 18 August 2024) and was given a non-parole period of 3 years and 6 months (concluding on 18 February 2022).[3]
[3] Exhibit R1: G2, pages 26-30.
Mr Bobbe’s Visa was mandatorily cancelled in September 2020.[4]
[4] Exhibit R1: G2, pages 64–69.
He sought revocation of the mandatory cancellation decision on the grounds that he was not guilty of the April 2020 offences[5] and that he was appealing those convictions.[6]
[5] Exhibit R1: G2, page 72, point 7.
[6] Exhibit R1: G2, pages 72-74.
In March 2021 he sought bail as part of his application for leave to appeal his April 2020 convictions. The NSW Court of Criminal Appeal unanimously rejected his bail application.[7]
[7] Bobbe v The Queen [2021] NSWCCA 44.
In July 2021, the NSW Court of Criminal Appeal unanimously dismissed his application for leave to appeal both his convictions and his sentences.[8]
[8] Bobbe v R (No 2) [2021] NSWCCA 150.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Section 501(3A) of the Act, read with sections 501(6) and 501(7), oblige the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in Section 501(6) of the Act. A person fails the test if they have a ‘substantial criminal record’ as defined by section 501(7) of the Act.
Section 501(7)(c) of the Act defines a ‘substantial criminal record’ as including the situation where a person is sentenced to a term of imprisonment of 12 months or more.
Under Section 501CA(3) of the Act, the Minister is obliged to give notice of a cancellation decision as soon as practicable after it is made, and to invite the affected person to make representations about revocation.
Under s 501CA(4) of the Act, the Respondent Minister may revoke the original decision if:
(a)representations have been made by the person in accordance with the invitation[9]; and
(b)the Minister is satisfied that:
(i)the person passes the character test:[10] ; and if not
(ii)whether there is another reason why the original decision should be revoked.[11]
MATTERS FOR CONSIDERATION
[9] Section 501CA(4)(a) of the Act.
[10] Section 501CA(4)(b)(i) of the Act.
[11] Section 501CA(4)(b)(ii) of the Act.
Character test
Mr Bobbe’s Visa was mandatorily cancelled in September 2020 on the basis that he had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory.[12]
[12] Sections 501(6)(a) and 501(7)(c) of the Act.
Consequently, he does not pass the character test due to the operation of ss 501(6)(a) and 501(7)(c) of the Act.
This means that s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the mandatory cancellation decision.
The remaining issue for the Tribunal to consider, under s 501CA(4)(b)(ii) of the Act, is whether the Tribunal is satisfied of there being another reason to revoke the mandatory cancellation decision.[13] The Tribunal “stands in the shoes of the original decision-maker” but with regard for the situation as at the time of its consideration.[14]
[13] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
[14] Nathanson v Minister for Home Affairs [2022] HCA 26 (“Nathanson”); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
Is there another reason why Mr Bobbe’s visa cancellation should be revoked?
The Full Court of the Federal Court in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172, approving the reasoning in Viane,[15] identified the following principles as relevant to the statutory task conferred by Section 501CA(4) at [27]:
‘If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.…’
[15] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
When the Tribunal assesses and considers the factors weighing for and against revoking a visa cancellation, Section 499(2A) of the Act requires it to comply with Direction 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[16]
[16] See Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 at para [38].
The Direction
The Direction contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[17]
[17] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The following principles in paragraph 5.2 of the Direction inform the decision-making process:[18]
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 noncitizens 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.
6Decision-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 measureable risk of causing physical harm to the Australian community.
[18] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a
decision-maker must take into account the primary and other considerations described in Paragraphs 8 and 9 of the Direction in determining whether to set aside or affirm the delegate’s non-revocation decision.
Paragraph 8 of the Direction provides the following primary considerations:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·expectations of the Australian community.
Paragraph 9 of the Direction identifies the following non-exhaustive list of other considerations to be considered where relevant:
·legal consequences of the decision;
·extent of impediments if removed;
·impact on victims; and
·impact on Australian business interests.
Paragraph 7(1) of the Direction provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources.’
Paragraphs 7(2)-(3) of the Direction state that ‘Primary considerations should generally be given greater weight than the other considerations,’ and ‘One or more primary considerations may outweigh other primary considerations.’
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on the specific circumstances of each case.[19] The weighing process is determined by decision-makers exercising the relevant power under the Act.[20]
[19] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[20] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
PRELIMINARY MATTERS
On 28 June 2023 Mr Bobbe attended the initial directions hearing in this matter and was provided with the timeline to issue summons.
Relevantly, the Tribunal made the following direction on that date:
‘2. On or before 10 July 2023, all parties must file with the Tribunal any requests for summons.’
On 15 September 2023 – some 66 days after 10 July 2023 - Mr Bobbe sought to issue nine summons. Only one summons, directed to ‘NSW Police’, contained a statement of reasons for requesting information.[21] One of the subpoenas was directed to the NSW Court of Criminal Appeal and was consequently invalid.
[21] This summons sought “Forensic report (DNA Test) conducted by NSW Police on 18/08/2018 This report will show the false information was provided before court. It will also support my statement”.
On 22 September 2023 the Tribunal heard an interlocutory hearing in relation to what action the parties wanted taken about the subpoenas. Mr Bobbe did not provide an adequate answer as to why there was the delay between the initial directions hearing and his request to issue the subpoenas.
As Mr Bobbe acknowledged that he had attended the 28 June 2023 initial directions hearing and was aware of the timing of the case management of this matter, the Tribunal decided to proceed with the hearing as set down.
EVIDENCE
The following is a summary of the evidence before the Tribunal, including Mr Bobbe’s oral testimony. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, documents tendered by the Respondent and the Applicant and evidence given by Mr Bobbe at the hearing in response to questions in examination-in-chief, re-examination, under cross-examination and from the Tribunal.
Documentary evidence
The hearing received written evidence, which is attached to this Decision and marked ‘Annexure A’.
Her Honour Judge Huggett of the NSW District Court’s April 2020 sentencing decision formed part of the written evidence.[22]
[22] G2, pages 31-56.
Relevant parts of her decision are quoted below:
Mr Bobbe’s background
‘The offender was born in Bangladesh in 1987 and is now aged 32. He reported a very good childhood, although described a somewhat strained relationship with his father. He is a practising Muslim. His parents remain married and his siblings reside overseas. He completed primary and high school to the equivalent of Year 12 in Bangladesh. He was a good student with no behavioural issues.
He came to Australia in 2007 on a Student Visa and completed an Advanced Diploma in Business Administration and a Certificate III in Hospitality. He has had numerous semi-skilled jobs while in Australia and has also been unemployed at times, receiving government assistance.
He reports that he is a permanent resident in Australia. However, according to the Sentence Assessment Report, the Department of Homes Affairs has indicated his visa may be liable to cancellation depending on the outcome of these proceedings. While that potential consequence is one I must disregard, the offender does not want to be deported and any suggestion that that might occur causes him distress and anxiety.
His grandmother passed away in 2018 whilst he was in gaol. He reports being close to her and is apparently grieving her passing.
The offender has reportedly maintained regular contact with his parents while living in Australia and they have visited him here a few times prior to him committing these offences. In terms of visitors to gaol, the offender has some friends who have visited him when he has been imprisoned in Sydney. One of those friends has provided a written testimonial and has offered him temporary accommodation on his release.
The offender has had four relationships since being in Australia. He married in 2011 but that marriage dissolved after a few years. He has no children but reports hoping to have a family one day. Prior to being incarcerated, he resided with his most recent partner in Wolli Creek, but that relationship has since ended.’[23]
[23] G2, pages 46-48.
Health
‘In November 2009 he was involved in a motorbike accident. He suffered a number of injuries including a broken leg, fractured shoulder and fractured skull. He describes waking up two or three days later and not recalling much, but states “something happened to my brain and memory”. Medical reports indicate he had surgical open reduction and internal fixation and had bleeding in his brain. He was hospitalised for around a month and was in a wheelchair for close to a year and was prescribed painkillers for a lengthy period of time.
He reports difficulty arose with his memory and hearing following this incident, which has deteriorated over time. He also reports that ongoing pain from this accident led to extended use of pain relief drugs such as Endone as well as regular consumption of excess amounts of alcohol apparently to deal with ongoing pain. He reports that following this accident he was unemployed for around two years.
In March of 2017 the offender was assaulted in a road rage incident. The hospital discharge papers indicate he was punched to the face and suffered swelling to the bridge of his nose without displacement and suffered a minor laceration requiring no intervention. The medical evidence before me suggests that this incident did not cause any significant brain injury, however the offender reports this incident exacerbated his short term memory problems - at which time he was still abusing alcohol and pain relief medication. The offender reports that following this incident his work performance deteriorated resulting in the loss of his then job which caused financial pressure. He reports that he eventually returned to work in 2018 for around four to five months until suffering a workplace injury prior to the commission of the present offences.
I note that the offender said in his evidence before me that although he used alcohol and pain relief medication for many years to assist with pain relief, he reports that since being in custody he has done exercises recommended by a physiotherapist and reports an alleviation of his pain, stating he no longer requires any pain relief medication.
A suggestion is raised in the reports of Ms Cortes, Psychologist, that either or both of these incidents 2009 and 2017 may have led to a brain injury. The high point in this regard is that in Ms Cortes’ opinion the offender reports significant impairments which seem to have impacted his overall cognitive behavioural and social functioning. However, no neurological testing has ever been conducted in this regard and other evidence from Dr Elliott, Psychiatrist, is to the effect that his presentation and abilities do not conclusively suggest a brain injury.
A suggestion is also raised by Ms Cortes, but not in any conclusive way, that the offender might be suffering symptoms of post- traumatic stress disorder as a result of either or both of these incidents. The symptoms he describes includes intrusive nightmares, fear/anxiety of further attacks and avoidance of certain places and activities.
The offender gave evidence that he has been “bashed” once whilst being in custody. No further information is before me regarding this alleged event. He describes that he finds custody very hard and struggles with low mood, anxiety and feelings of depression. I accept this evidence and further accept that he is struggling in custody and that he has had psychological issues which require treatment.
As mentioned, the offender has significant problems in relation to alcohol and was intoxicated at the time he committed the present offences. He does not appear to have a history of drug abuse, reporting only having tried cannabis two or three times.
He has been diagnosed with Alcohol Use Disorder. He has acknowledged his problematic use of alcohol and reports a willingness to participate in alcohol treatment. Whilst being on remand he has been able to participate in one alcohol related program - the Save-a-Mate Alcohol and Other Drugs Emergency Course with CPR demonstration over a two week period in early 2019.
It is accepted the offender was intoxicated at the time of his offending. It is also accepted that he well understood that what he was doing was wrong.’ [24]
[24] G2, pages 47-50.
Previous Offending
‘Stated simply, he has an appalling driving record given his age and the relatively short time he has been licensed. Having been first licensed in New South Wales in 2008, he has been convicted of a large number of traffic offences including speeding offences, disobeying traffic signal offences and a low range PCA offence. In addition, in 2013 he committed one offence of using a carriage service to menace/harass/offend.’[25]
[25] G2, page 50.
Rehabilitation
‘Evidence also suggests he has done some charity work, although the nature and scope of that work is not apparent and that he has been a blood donor.’ [26]
and
‘He states a willingness to participate in any program or treatment plan that will assist his rehabilitation. Whilst he has only engaged in two courses to date that is because he has been on remand that was all he was able to do.’[27]
Risk of reoffending
‘In terms of his risk of reoffending, the assessments before this Court are mixed. In the Sentence Assessment Report he is assessed as being Medium- High. In contrast, according to Ms Cortes, his risk of sexual recidivism is low to moderate and his risk and needs assessment also Low-Moderate.
Curiously Ms Cortez opines that he does not have any criminogenic needs. However, the Sentence Assessment Report notes, and I agree, that he does have risk factors, including intimacy deficits, self-regulation, social rejection and loneliness.
Mr Buckman contends, in effect, that I would find that he does have good prospects of rehabilitation and that he presents as a low risk of reoffending. Putting to one side his driving offences - for which I consider there is a real risk of reoffending - this is the first time he has committed sexually related offending. These offences arose in a context where to an extent there was some planning and where he determined to assault each victim, who he knew was not interested in sexual contact with him. These offences are very concerning, particularly given their close proximity and they represent a serious escalation in his criminal conduct, which was also contrary to his religious beliefs. He has abused alcohol and pain relief medication for many years. He has been involved in several failed relationships and has moved from job to job, many being relatively unskilled and he has had some lengthy periods of unemployment. He has no family here but has some friends and support. While I appreciate he has stated he is motivated to make changes to address the issues in his life that led to his offending, in my view it would be naive to find he has good prospects of rehabilitation. The best that can be said is that his prospects are guarded. One thing that I can say with confidence however, is that he will require significant assistance to assist in his reintegrating into the community.’ [28]
[26] G2, page 50.
[27] G2, page 51.
[28] G2, pages 51-52.
Oral Testimony
Mr Bobbe was the only witness during the hearing of the matter.
Mr Bobbe’s evidence
Relevant aspects of Mr Bobbe’s evidence are summarised below:
Examination-in-chief by the Tribunal
Mr Bobbe affirmed his 19 September 2023 statement.[29]
[29] Transcript, page 4, lines 14-19.
He described his current state of impairment due to a motorcycle accident, assaults he experienced in prison and assaults he experienced at the Villawood Detention Centre:
‘Tribunal: Do you say in this that you have excruciating pain and difficulties and you received these health problems and disabilities from a motorbike accident, assaults you experienced in prison, and assaults you experienced at the Villawood Detention Centre, is that correct?
Mr Bobbe: Yes, correct.’[30]
and
‘Tribunal: Right, then you describe the injuries and disabilities you experienced from the assault at the Villawood Detention Centre, and you list those as ‘cervical spine fracture, nasal tip fracture with a comminated fracture, brain injury, fractured fingers, broken ribs, head and facial injuries’. Is that correct?
Mr Bobbe: Yes, correct.’[31]
and
‘Tribunal: And you’re at Villawood Detention Centre and the border force have booked your flight on 28 July. You have learnt from the AAT that you need more information in order to finalise your application. And then you restate that you were assaulted twice on 9 March 2022, so we have a date, I apologise there. Hospitalised from three days, and this is in your email, ‘I have sustained the following injuries and now live with excruciating pain and fear without proper treatment: cervical spine fracture, nasal tip fracture, a comminuted fracture, brain injury, fractured fingers, broken ribs, head and facial injuries’. Do you recall that email, Mr Bobbe?
Mr Bobbe: Yes, I do, Mr Member.’ [32]
[30] Transcript, page 4, lines 25-29.
[31] Transcript, page 4, lines 43-47.
[32] Transcript, page 6, lines 40-47.
He admitted his convictions:
‘Tribunal: And you were convicted on 20 January 2014 of using a carriage service to menace, harass, and offend. Do you recall that?
Mr Bobbe: Yes, Mr Member.
Tribunal: On 5 January 2016 you were convicted of driving with a low range of prescribed concentration of alcohol, do you recall that?
Mr Bobbe: Yes, Mr Member.
Tribunal: Right, I appreciate these are some time ago, that’s why I’m checking. 25 October 2017 you were convicted of driving a motor vehicle whilst suspended, do you recall that?
Mr Bobbe: I really don’t recall, but I saw it on the document, yes.
Tribunal: Right, on 16 July 2018 you were convicted of five counts of driving a motor vehicle whilst disqualified?
Mr Bobbe: Yes, sometimes – yes, 2016 or 17. I don’t remember – recall the exact date, but I remember like I was charged at least of driving without license, yes.
Tribunal: Right, then on 15 April 2020 you were convicted of four counts of assault with an act of indecency, taking a person with intent to commit a serious indictable offence, driving with a mid-range prescribed concentration of alcohol and engaging in a police pursuit after not stopping and driving off at speed from police. Do you recall that?
Mr Bobbe: Yes, Mr Member.
Tribunal: Then on 8 September 2020 your visa was mandatorily cancelled as a result of your conviction, and on 17 September 2020 you asked the department to revoke that cancellation. Do you recall that?
Mr Bobbe: Yes, Mr Member.
Tribunal: Yes, and then in March 2021 you sought bail in relation to your application for leave to appeal your convictions, but on 24 March 21 the Court of Criminal Appel in New South Wales rejected that. Do you recall that?
Mr Bobbe: Yes, Mr Member.
Tribunal: Now on 7 July 21 the Court of Criminal Appeal also dismissed your leave for appeal on your convictions, do you recall?
Mr Bobbe: Yes, Mr Member.
Tribunal: And then I’m not sure of the date, I believe it would be on or about or prior –immediately prior to 10 March 2022 you were assaulted in the Immigration Detention Centre?
Mr Bobbe: Yes, Mr Member.
Tribunal: And then on 28 July 2022 you departed Australia?
Mr Bobbe: Yes, Mr Member.’[33]
[33] Transcript, page 5, line 20–page 6, line 11.
He gave evidence of rehabilitation:
‘Tribunal: Right, thank you. Now you also completed a form known as the ‘Personal Circumstances Form’?
Mr Bobbe: Yes.
Tribunal: And in that the question is asked ‘If you have completed any courses or programs that will help you to avoid further offending, provide details of these’, and you listed the EQUIPS Foundation Program, the Save-A-Mate Alcohol and Other Drugs Emergency Course with CPR. Do you recall those or writing that answer?
Mr Bobbe: Yes.’ [34]
[34] Transcript, page 6, lines 23-30.
Cross-examination
Mr Morris conducted a thorough and considerate cross-examination of Mr Bobbe.
Addressing Mr Bobbe’s 2016 driving conviction:
‘Mr Morris: And this appears to relate to ‘Drive with low-range PCA, first offence’, and PCA, just to help you understand, refers to a ‘prescribed concentration of alcohol’. Do you remember this offence?
Mr Bobbe: Drive with low-range PCA’ – what is PCA? Is it (indistinct) the alcohol, or?
Mr Morris: Yes, so just to help you understand that PCA stands for ‘prescribed concentration of alcohol’. So to put in ordinary terms, it’s low-range drink driving?
Mr Bobbe: Yes, like only once when I was in Australia, I was charged with drink driving low-end PCA. Yes, I do remember.
Mr Morris: All right, and can you explain what happened in that incident?
Mr Bobbe: Yes, I was driving motorbike and, of course, I had some alcohol. And when I was coming back home – or yes, when I was coming back home then the police stopped me, and I don’t remember the exact location. And they did the breath testing and they said that I’m driving influence of the – under the influence of the alcohol, so they stopped me driving and they did a test, and they said, ‘You’re going to do the test’. There was an option. I remember like you can do the test in the police station and allow me, or I can have the test done in the hospital. I said, ‘I want to take the second option. I want to done it in the hospital’. Then they did the hospital, and the report is not ready with that time, so they said, ‘Okay go. When the report comes, we’ll let you know’. They say something like that. They say that when I go back home, but they give me still the – what’s it called – the thing to go to the court. And when I go the court, the medical record also was ready. And during that time I think I was driving. Anway, like then when the medical record come then I gave it to the court, but still that report says – the medical hospital test done, it just said I was driving at the .049. The limit was I think 0.5 is what’s the limit – 0.05, sorry, 0.05 was the limit – the legal limit of driving motor vehicle. And my limit – I was under the limit; 0.049 my limit was. But still I get fine from the court. They said I was driving influence of the drugs, but I give this medical record to the court, but I don’t know like because I don’t have a lawyer for some technical things, still the court found me guilty. And they gave me the – what’s it called – they didn’t give me any final sentence. They gave me something – different things. I don’t remember what was the outcome, like the punishment. Like it was bond or good behaviour, something, but they didn’t impose any fine or something, but still they found me guilty. How, I don’t understand.
Mr Morris: All right, well just pausing there, do you say that you were not guilty of that offence?
Mr Bobbe: Yes, I say that I am not guilty, and I have the medical. The police did the test from the hospital, and the test says that I was under the limit, and they mentioned the test result. You can find it, but the police still, they have that report. It’s just 0.049, and then I said, ‘Yes, I’m not guilty’.
Mr Morris: Well Mr Bobbe, if the hospital conducted the test sometime after you were driving, is it not reasonable to assume that they back-calculated it to determine that you were over 0.05 at the time you were driving?
Mr Bobbe: Yes, I understand like what you’re saying, but if it is the – if it is the result, then the law system should not have that option exist. They have this option exist to get this done in hospital. There was a reason the lawmaker make this law, so they should exercise on (indistinct) because if they say, ‘Okay, we will not count that result, drinking impairing’, then what is the point they take this test.’ [35]
[35] Transcript, page 9, line 41–page 10, line 46.
Addressing Mr Bobbe’s 2018 Class A M/V exceed speed more than 20 km/h LIDAR conviction:
‘Mr Morris: All right, that’s okay. I’ll move on then to the fifth one from the bottom, and you’ll see this one says Downing Centre Local Court 16/07/2018. It says Class A M/V exceed speed more than 20 kilometres an hour, (indistinct), do you see that?
Mr Bobbe: Yes.
Mr Morris: All right, and do you remember this offence?
Mr Bobbe: I remember the incident, but I don’t remember the exact date or thing on the paper, the identity number, yes.
Mr Morris: Okay, you said you remembered the incident, what happened in this incident?
Mr Bobbe: This one says exceed the speed limit. Yes, I was driving and a couple of times I was – I think it’s with the speed camera. There was one located under the – what’s it called – I was living in the (indistinct) – sorry, I was living in the (indistinct), and I was going to work in Mascot at that time, like 2018 I was working in the Blue Collar Recruitment Agency and they have one office in the Mascot and another one in the – like down near Tempe or somewhere. So under the tunnel there is a speed camera, and I never knew there is a speed camera. Like do you know which one I’m talking about, like under the runway – the airport runway – there is a tunnel and there is – from Botany to go to the M5 there is a tunnel, and there is a speed camera in both directions, I think. So that camera like – that road, the speed change, sometimes it says 80 kilometres and sometimes it changes to 60, sometimes it becomes 40 when it is school time zone. And most of the time it comes – it is really 80 – normal 80 zone – but sometimes it comes to the 60. And for me I found some like my phone – like I have sometimes problem with the focus on something or concentrate on something, but I forget to check the display or I – most of the times I miss the display that it is now changed to 60 and I should drive 60. I knew this is 80 zone, so I always drive 80, and because the time I was driving it changed to 60, so many times I get caught with the same camera. And another one was located on the corner of Botany Road and Gardiners Road. There is a school zone, and there was a camera also, and I get caught many times with the same camera because the school time zone changed and I – because of my problem with the concentration or focusing on something, I missed many times the same camera and I get caught with the same camera.
Mr Morris: Mr Bobbe, is it fair then to say that you basically weren’t paying attention to the road sings, is that a fair summary?
Mr Bobbe: Like if you say that I’m not paying – I’m paying attention, but there was (indistinct words) came over to that Main Street. I think because of my medical conditions, that’s why I couldn’t focus properly. Otherwise I don’t see any other reason or why I should not see something and what is located right in front of me.
Mr Morris: Mr Bobbe, if you have a medical condition that means you’re unable to pay attention to road sings, do you think it’s still safe for you to drive?
Mr Bobbe: Look like after the accident – what’s it called – the one (indistinct) authority, they take it – conducted test back in 2009 or something and they said I am safe to drive, and they gave me license back. And I was driving very few when it was extremely necessary. Extremely necessary or when it’s really necessary that I have to go to work, only to that location I drove. And if I have to do some grocery shopping and I have lifting problems on the occasion I was driving. And I checked, like they said like with the – (indistinct) name. They gave me the – what’s it called – they conducted test with the (indistinct). It’s like people coming from hospital and after that they do conduct this test for suitable to drive. And they gave me license and I was driving. I never feel it is unsafe to drive for me otherwise I would never drive motor vehicle. I think it is – I don’t know, maybe because of my like injury problem. I can’t explain it to you properly. If you said, yes, I was not focusing on the road, then I’m not suitable for driving motor vehicle, yes, in that way it was very bad that I was driving car. It looks like I can hit anytime anyone. During more driving if there is accident happened, it will be bad, but it’s not that way because – I can’t explain and say – like it’s not that I am not focusing. I am focusing, but I missed it. I missed the sign that it is now changed to 60.’[36]
[36] Transcript, page 13, line 20-page 14, line 34.
Arising from this line of questioning, Mr Bobbe’s apparent difficulty in understanding road signs:
‘Mr Morris: I’ll ask it a different way or maybe I’ll ask it in an entirely different way. Do you have any medical evidence at all that would indicate you would have difficulty understanding road signs?
Mr Bobbe: No, I don’t have any difficulties understanding road signs.
Mr Morris: Well do you have any medical evidence at all that would indicate that you have difficulty noticing or paying attention to road signs?
Mr Bobbe: Noticing things, yes, before when – like just before they incarcerated, a doctor they gave test and they also – I was awaiting to see the neurosurgeon or neuro-something. One of the doctors from the Ashfield Medical Centre, they recommended me to see the doctor because last time I explained saying more forgetful. Forgetfulness means like I many times I forget many things, and it was happening very frequently. Like I always forget where I kept my keys or wallet, or sometimes I go shopping and I bought things, but I forget the things shopping and I left it in the shopping centre. I’m having this issue – problems – and it became more serious that I talk to the doctor, and he sent me to see a think neurosurgeon or neurologist, I’m not exactly sure, but before I see that doctor I get arrested and get incarcerated.
Mr Morris: Let me put the question more directly. What I am suggesting to you is that you simply weren’t paying attention, and the story that you’re telling the tribunal about your medical condition is simply your attempt at an excuse?
Mr Bobbe: No. No, it’s not an excuse. If you contacted the Ashfield Medical Centre, it is on my record like which doctor I see. I can’t remember the name. And he prescribed me. He knew my condition and he gave me the letter to see the specialist. If you contact to the doctor, you can find out. I’m not making any excuse.
Mr Morris: All right, just finally on that offence, do you accept that driving more than 20 kilometres over the speed limit is dangerous?
Mr Bobbe: Yes, it is dangerous, of course.’[37]
[37] Transcript, page 15, lines 1-31.
Mr Bobbe’s 2019 traffic offending:
‘Mr Morris: So just to clarify then, your evidence is that the reason for all of these offences of drive a motor vehicle during disqualification period or whilst suspended, your evidence is simply that you thought you were allowed to drive at that time?
Mr Bobbe: Yes. Yes, Mr Morris.
Mr Morris: You appealed a large number of those sentences, and I’ll ask you to look at the top four entries of page 30 and the bottom two entries of page 29. Do you see those?
Mr Bobbe: Yes, 29 bottom and 2019, yes.
Mr Morris: That’s right. So this was in the District Court. So this was your appeal from the Local Court, but the District Court dismissed your appeal. Do you see that, it says ‘Order confirmed’?
Mr Bobbe: Yes, like because I failed to bring the evidence as I was incarcerated, so they just dismiss by application.
Mr Morris: What do you mean you failed to bring the evidence?
Mr Bobbe: Like at that time I had the paper I wanted – the medical test report from the police department when they charged me for driving while under the influence of low range PCA. So I had that certificate with me, and I appealed to the District Court, but before the District Court hearing start I get incarcerated, and I didn’t have any evidence available with me. And the District Court, the judge asked me what I can give them in support, but I say I’m incarcerated, and I don’t have any evidence available with me. So they dismissed my application, like my application for appeal, yes.’ [38]
[38] Transcript, page 17, lines 14-36.
and
‘Mr Morris: So if the court had not quashed the decision below and that decision below disqualified you from driving what made you think that that disqualification was no longer enforced?
Mr Bobbe: That time I read the law like the appeal application is accepted automatically I get my license back. My license suspension really start after the court hearing if the decision comes against me.
Mr Morris: All right. Well in any event your understanding was obviously wrong because you were found guilty of driving while disqualified. You would accept that, wouldn’t you?
Mr Bobbe: (Indistinct) you can see the difference. Why the same offence. Why (indistinct) because the one I challenged, and he gave me six months good behaviour and rest of the other five things they gave me what’s called – they gave me $500 each and first time I challenge that they didn’t give me fine. There was something and I can’t explain and now I can’t remember exactly everything. The thing I say to the court there was something and (indistinct) the court I gave I don’t know what in one occasion (indistinct) exist here. No. That was different. Okay. Sorry. I’ll not mention that on here. If they’ve got something different, I’m trying to understand but I do not because as I said I don’t have any solicitor that time with me and I have represented myself. If the system, make me guilty I get fined. I found guilty because it is the system particular way. It is not that I have a lawyer and I found guilty because of the offences. It is my misunderstanding. If it the law says I’m not allowed to drive during that time, yes, I was wrong. But there was something the judge understood. That’s why he gave me six months bond there and rest of the things they gave me $100 fine.
Mr Morris: But, Mr Bobbe, unless you were guilty you could not have been given a six-month good behaviour bond or a $100 fine so you must have been guilty. Is that correct?
Mr Bobbe: I don’t know. Like, all the time is (indistinct) why it is they are different. One is six-month bond, another is the same offence. It’s the same offence driving while disqualified (indistinct) second offence. Why they gave me first one six-month good behaviour bond and second one $100 fine?
Mr Morris: Well I’m not going to answer that question, Mr Bobbe. All I’m putting to you is do you or do you not accept that the court found you guilty of these offences?
Mr Bobbe: Yes. The court found me guilty. Yes, I say of course.
Mr Morris: And do you accept that you were guilty of these offences?
Mr Bobbe: I knew that I was allowed to drive otherwise I would not drive.’[39]
[39] Transcript, page 18, line 39-page 19, line 31.
DOCUMENTARY EVIDENCE
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’. The following documents were tendered into evidence and considered by the Tribunal:
(a)G Documents;[40]
(b)Mr Bobbe’s Bundle of Court Documents;[41]
(c)Mr Bobbe’s statement;[42] and
(d)the Respondent’s Statement of Facts, Issues and Contentions (SFIC).[43]
[40] Exhibit R1: G-Documents.
[41] Exhibit A1: Applicant’s Bundle of Court Documents.
[42] Exhibit A2: Applicant’s statement.
[43] Exhibit R2: Respondent’s Statement of Facts’ Issues and Contentions.
THE TRIBUNAL’S ASSESSMENT OF THE EVIDENCE
The Tribunal found Mr Bobbe’s oral evidence to be very self-aware, at times extensively minimising his responsibility for or knowledge of his offending and conduct, and at other times giving implausible answers to questions. Overall, the Tribunal is reluctant to accept his evidence unless it is corroborated by independent documentary evidence.
The Tribunal will now consider the oral testimony, together with the documentary evidence and the Respondent’s submissions against the Direction’s requirements to address the key issues in this matter.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian 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 with 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 applicable to 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.
Tribunal consideration: The nature and seriousness of Mr Bobbe’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, 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 197 A 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 reoffended 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 conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered Mr Bobbe’s oral and written evidence and the Respondent’s submissions about Paragraph 8.1.1 of the Direction.
Summarising the Respondent’s contentions:
(a)If Mr Bobbe continued to offend in the way he has to date, it would cause the Australian community extreme harm, including physical and psychological harm.
(b)The Tribunal is entitled to have regard to the damage already caused by Mr Bobbe's offending in assessing what future harm may be occasioned by the repetition of that conduct, which includes the traumatisation of two vulnerable young women.
(c)There is nothing in the Direction or in any authority that suggests the Tribunal is limited, in its assessment of the potential magnitude of future harm, to assessing the harm that has been caused previously.[44]
(d)The Tribunal is also entitled to have regard to the harm that could have been caused by Mr Bobbe’s offending, including his traffic offending. The Respondent respectfully adopts Her Honour Judge Huggett’s sentencing remarks[45] and notes that Mr Bobbe's repeated drink-driving, his conduct in engaging in a police chase, driving at extreme speed, weaving in and out of traffic, turning his lights off at night to evade police, driving on the wrong side of the road and turning the wrong way down one-way streets, exposed members of the Australian community to the risk of serious injury or, as her Honour observed, death.
(e)There can be no minimisation of the degree of harm that the community may suffer if Mr Bobbe were to reoffend as he has done previously.
(f)In the Respondent's submission, the nature of the harm posed, and the nature of the harm already inflicted, is so serious that any material risk that Mr Bobbe might reoffend in a manner comparable to his previous offending should be considered to be one which is unacceptable.
[44] See generally: Minister for Home Affairs v Stowers [2020] FCA 407, [58]; BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181, [68].
[45] Exhibit R1: G2, pages 31-56.
Mr Bobbe was at pains in cross-examination to qualify his offending, making observations about mitigating details in a way that indicated a conscious effort to minimise the seriousness of his offending and his responsibility for it.
Paragraphs 8.1.1(1)(a)(i) 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
These paragraphs require the Tribunal, when considering this matter, to have regard to, and acknowledge that, violent and/or sexual crimes, crimes of a violent nature against women and acts of family violence are viewed very seriously.
The Tribunal concludes, based on both Mr Bobbe’s admissions under cross-examination and his offending history and convictions[46], that Mr Bobbe has committed crimes of a sexual nature against women.
[46] Exhibit R1: G2, pages 26–56.
The Tribunal considers that this paragraph carries substantive and significant weight in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Bobbe’s Visa.
Paragraph 8.1.1(1)(b)(i), (ii), (iii) and (iv)
These paragraphs are not relevant as there is no reference in the evidence before the Tribunal that Mr Bobbe has committed any of the specified offences.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on Mr Bobbe for:
(a)any violent offending that he may have committed against women or children[47],
(b)acts of family violence[48]; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage. [49]
[47] Paragraph 8.1.1(1)(a)(ii).
[48] Paragraph 8.1.1(1)(a)(iii).
[49] Paragraph 8.1.1(1)(b)(i).
Mr Bobbe was found guilty of using a carriage service to menace/harass/offend and released on a $500 good behaviour bond.
He has been convicted on multiple occasions between 2016 and 2020 of serious traffic offences, including driving with a low range prescribed alcohol concentration, driving with a middle range prescribed alcohol concentration driving while suspended and engaging in a police pursuit. [50]
[50] See Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561, [43] - [45].
The Tribunal considers that this paragraph carries significant weight in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Bobbe’s Visa.
Paragraph 8.1.1(1)(d)
This paragraph addresses two specific aspects of a non-citizen's offending: its frequency and/or whether there is any trend of increasing seriousness.
Frequency
Mr Bobbe’s criminal history demonstrates the relatively high frequency of Mr Bobbe’s offending since arriving in Australia, especially between 2015 and 2020. [51]
[51] Exhibit R1: G2, pages 26–56.
Trend of increasing seriousness
Mr Bobbe’s criminal history[52] shows, despite the acknowledged very serious nature of Mr Bobbe’s index offending, that the pattern of his offending is not necessarily one of increasing seriousness but more in the way of a sustained period of very serious offending.
[52] Op Cit.
Considering the totality of Mr Bobbe’s criminal history [53] it is reasonable to state that this history demonstrates a trend of consistency in terms of very serious conduct and offending rather than a trend of increasing seriousness.
[53] Op Cit.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of Mr Bobbe’s repeated offending.
The cumulative effects of his offending against women likely weighs both heavily and detrimentally on the two women involved.
Considered holistically, the cumulative effects of Mr Bobbe’s offending can be characterised as imposing significant externalities and costs on his victims and the Australian community and a financial imposition on the policing, judicial and jail systems.
Paragraphs 8.1.1(1)(f), (g) and (h)
In the absence of evidence from Mr Bobbe or the Respondent that enlivens these paragraphs, they are not relevant to any assessment of the nature and seriousness of Mr Bobbe’s conduct.
Tribunal finding: The nature and seriousness of Mr Bobbe’s conduct.
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the applicable paragraphs addressed above, the Tribunal finds, after holistically synthesising the relevant evidence, that the totality of Mr Bobbe’s unlawful conduct in Australia should be characterised as exceptionally and extremely serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
This aspect of the Direction requires the Tribunal to assess the risk Mr Bobbe poses to the Australian community if he reoffends, taking into consideration the nature of any harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the 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; and
(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.
In assessing the risk to the Australian community, the Tribunal has considered the oral testimony, the documentary evidence and the Respondent’s submissions in relation to paragraph 8.1.2.
The Tribunal’s Consideration: The nature of the harm to individuals or the Australian community were Mr Bobbe to engage in further criminal or other serious conduct.
Mr Bobbe’s prior criminal conduct covers an extensive and deep range of physical, psychological and financial effects as well as having an adverse social impact.
If Mr Bobbe were to engage in further criminal or other serious conduct, whether it is the same as his prior criminal conduct or as severe as it, the dismaying prospect of the nature of the potential harm to the Australian community, if Mr Bobbe was to re-offend in the manner of his prior offending, is apparent to the Tribunal.
The Tribunal’s Finding: The nature of the harm to individuals or the Australian community were Mr Bobbe to engage in further criminal or other serious conduct.
The Tribunal finds that the nature of harm to either individuals or the Australian community should Mr Bobbe engage in further criminal or other serious conduct in the circumstances of paragraph 8.1.2(2)(a) to be extremely serious.
The Tribunal’s Consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has synthesised and then holistically considered the totality of the evidence addressing the likelihood of Mr Bobbe engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under Section 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[54]
[54] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
The Full Court of the Federal Court in Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187, 194 stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
[56] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
The clear legislative intention is that the threshold is whether there is ‘a’ risk.[55]
The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[56]
On this occasion the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[55] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48]–[52].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal (FC)), the Full Court of the Federal Court (Perram, Murphy and Lee JJ) stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’In Sabharwal (FC) the Full Court noted that the Minister said he ‘could not rule out the possibility of further offending by Mr Sabharwal.’[57] The Full Court, citing Justice Moshinsky’s decision in Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588, 608 [62], found that the Minister’s statement was, in substance, also a finding that there was a risk of Mr Bobbe re-offending.
[57] Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160, [58] (“Sabharwal (FC)”).
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows (at 574-575): [58]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’ (Added emphasis)
[58] QKVH and the Minister for Home Affairs (“QKVH 2020”) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924, [37], where Her Honour noted:[59]
‘That is, part of the Tribunal’s task was to decide not only whether Mr Bobbe might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[59] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Engaging in the task described by Justice Mortimer and applying the reasoning in Guo regarding past events, their regularity and the advent of new events, the Tribunal acknowledges:
(a)Mr Bobbe’s offending between 2012 and 2019.
(b)His repeated sexual offending.
(c)His diagnosis of alcohol use disorder which Judge Huggett identified as a driver of his offending.
(d)His participation in the EQUIPS and other courses.
(e)His oral testimony.
Considering the above and applying the reasoning set out respectively in Sabharwal FC and Guo, there is “a risk” or a likelihood of Mr Bobbe engaging in further criminal or serious conduct.
That risk can be dissected as the product of the nature of any further criminal or other serious conduct that Mr Bobbe may engage in future if returned to the community and the likelihood of that criminal or other serious conduct happening.
The nature of any further criminal or other serious conduct that Mr Bobbe may engage in in the future is considered above.
A consideration of the likelihood of Mr Bobbe engaging in further criminal or serious conduct should encompass the factors that facilitate the risk or, conversely, hinder or retard the risk. Doing this enable the Tribunal to consider Justice Mortimer’s question as to “whether the risk should be “tolerated”.”
In considering the likelihood, and applying Guo, Mr Bobbe’s prior criminal offending and conduct suggests that there is a strong likelihood that Mr Bobbe would reoffend in ways that are similar to his past offending.
In considering this risk and the possible level of violence, the Tribunal notes that a common element in much, if not all, of Mr Bobbe’s offending seems related to the consumption of alcohol.
Mr Bobbe presents with several static risk factors including the consumption of alcohol, and his capacity to seek to diminish accountability and responsibility for his actions.
Notwithstanding his educational and employment history while in Australia,[60] the Tribunal struggles to identify any significant static protective or risk management factors such as family, friends or other relationships or activities. If Mr Bobbe were to be returned to the Australia community, he would have access to alcohol with the risk of his reoffending increasing as a result.
[60] Exhibit R1: G2, page 96.
The Tribunal does not have the benefit of an expert risk assessment to assist its consideration of this issue.
The Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should Mr Bobbe commit further offences or engage in serious conduct both clearly exists and is a significant material risk with scant mitigation.
Conclusion: Primary consideration 1: Protection of the Australian community
This consideration weighs very heavily and substantively in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Bobbe’s Visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN.
There is no evidence that Mr Bobbe has engaged in conduct which would attract the operation of this consideration.
This consideration has a neutral weight.
PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA.
Paragraph 8.3 of the Direction provides:
1Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
3The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
4Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
(a)the length of time the non-citizen has resided in the Australian community, noting that:
(i) considerable weight should be given to the fact that a noncitizen has been ordinarily resident in Australia during and since their formative years, regardless of when their offending commenced and the level of that offending; and
(ii) more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
(iii) less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the noncitizen began offending soon after arriving in Australia.
Mr Bobbe has undertaken several tertiary courses[61] in Australia and has an employment and volunteering history in Australia which evidences a modest but material level of ties and linkage to the Australian community.
[61] Exhibit R1: G2, pages 96-97.
He came to Australia as an adult in 2007 and spent no formative years here.[62]
[62] Exhibit R1: G10, pages 220-221.
He was in a relationship with a Ding Wanling, who had returned to China prior to November 2020.[63]
[63] Exhibit R1: G2, page 89.
Based on an examination of Mr Bobbe’s 5 November 2020 Personal Circumstances for, his family – including his current wife and newborn daughter[64] – reside in Bangladesh or France except for one unnamed cousin in Australia.[65]
[64] Transcript, page 63, lines 5-13 and page 68, lines 2-17.
[65] Exhibit R1: G2, page 94.
He has not resided in Australia since July 2022.
Mr Bobbe has not provided any other evidence of friends or employers in Australia.
The Tribunal’s Consideration
The Tribunal is required to give more weight to a non-citizen’s ties to their children or children who are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely, such as occurs in this matter.
The Tribunal must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community, have regard to the length of time they have resided in the Australian community, whether they have been resident here during their formative years, whether they have contributed positively to the Australian community and correspondingly less weight should be given where they were not resident in Australia during their formative years or began offending soon after arriving in Australia.
Mr Bobbe’s daughter is not an Australian citizen, nor does she hold an Australian visa.
While he resided in Australia between 2007 and 2022 – 15 years – he did not reside here in his formative years.
He claims to have some modest contributions to Australian society, based on his statements in Personal Circumstances form, but these claims are not independently corroborated.
Conclusion: Primary consideration 3: The Strength, Nature and Duration of Ties to Australia.
The material before the Tribunal does not provide information relevant to this primary consideration. Hence this consideration is to be treated as irrelevant and is of neutral weight.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION.
Paragraph 8.4 of the Direction requires decision-makers to determine, where relevant, if revocation is in the best interests of any minor children in Australia.
On the evidence before the Tribunal, the only minor child involved in this matter is Mr Bobbe’s daughter. She resides in Bangladesh, not Australia. Consequently, this consideration does not apply in this matter.
Conclusion: Primary consideration 4: Best interests of minor children in Australia affected by the decision.
This consideration has a neutral weight.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.5(1) of the Direction provides:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns because of conduct in Australia or elsewhere, of the following kinds:
(a)acts of family violence;
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties;
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery;
(f)worker exploitation.
Paragraph 8.5(3) of the Direction provides that the above expectations apply, regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
As with Paragraph 8.5(4) of the Direction, this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in the particular case.
Clause 8.5(4) of the Direction correlates with the reasoning of the Full Court of the Australian Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (“FYBR”).
Notwithstanding the different pathways in judicial reasoning, the plurality of the Court in FYBR held that “Expectations of the Australian community” is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[66]
[66] FYBR (2019) 272 FCR 454 (“FYBR”), at 471–2 [66] (Charlesworth J), and 476 [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[67]
[67] Ibid at 473 [75]– [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[68]
[68]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal now considers the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
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 measureable 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 noncitizens 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 cancellations of a visa, However, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens 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.
6Decision-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) 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
The Tribunal has found that Mr Bobbe has committed acts of serious sexual violence against women.[69] Paragraph 8.5(2) of the Direction is consequently enlivened.
[69] Paragraph 8.5(2)(c) of the Direction.
The next question for consideration is whether there are any factors in Mr Bobbe’s case which modify the Australian community’s expectations.
Assessing this question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
(b)The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
(c)In relation to decisions to refuse, cancel and revoke cancellations of visas, 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.
(d)The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(e)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.
(f)In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(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 measureable risk of causing physical harm to the Australian community.
Paragraph 8.5(3) provides that the Australian community's expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Direction further explains at Paragraph 8.5(4):
‘This consideration is about the expectations of the Australian community as a whole, and in this respect, decision – makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case.’
Tribunal’s Consideration
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act.
Mr Bobbe held a Class VB Subclass 885 - Skilled Independent visa. This was a permanent visa allowing the visa holder to travel to and enter Australia for 5 years after it is granted.[70]
[70] Migration Regulations 1994 (Cth) and
This implies that sub-paragraph 5.2(4)’s lower tolerance does not apply.
Mr Bobbe has lived in Australia since he was 19 which suggests a higher tolerance from the Australian community.
Mr Bobbe claims that he has worked in a series of jobs in Australia between 2008-2018, completed a Diploma in Business Administration and a Certificate III in Hospitality, enrolled in (but did not complete) a Commercial Pilot Licence course, has volunteered for the Australian Labor Party in Auburn, raised charity funds and is a registered organ donor.[71] There was no evidence disputing these claims. Taken at face value, they represent a contribution to the Australian community.
[71] Exhibit R1: G2, pages 96-97.
The Tribunal has also found Mr Bobbe’s offending conduct to be exceptionally and extremely serious, incorporating crimes of a sexual nature and crimes against women.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a
non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that Mr Bobbe poses a risk of re-offending.The Tribunal is satisfied that, notwithstanding the higher tolerance to be accorded to Mr Bobbe, he has breached the Australian community’s expectations by the specific nature of his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
Conclusion: Primary consideration 5: Expectations of the Australian community
This consideration weighs significantly in favour of affirming the delegate’s decision not to revoke the cancellation of Mr Bobbe’s Visa.
OTHER CONSIDERATIONS
It is necessary at this point to consider the Other Considerations listed in paragraph 9 of the Direction. The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations.
Other Consideration (a): Legal consequences of the decision
Neither party contends that this consideration is at issue.
There is no claim, and otherwise nothing on the material to suggest, that Australia’s non-refoulement obligations are enlivened in respect of Mr Bobbe.
Tribunal Finding: Other Consideration (a): Legal consequences of the decision.
The Tribunal considers that this Other Consideration (a) carries a neutral weight.
Other Consideration (b): Extent of impediments if removed.
Clause 9.2(1) of the Direction provides:
1Decision-makers must consider 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 substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
Tribunal’s Consideration
This aspect of the Direction requires the Tribunal to assess and consider the extent of any impediments that Mr Bobbe, if removed from Australia to Bangladesh, will face in establishing himself and maintaining basic living standards (in the context of what is generally available to other Italian citizens), taking the specific factors below into account.
The Respondent contends:
(a)Mr Bobbe has some medical issues following a 2008 motorcycle crash.
(b)He has also received medical attention following an assault experienced in prison.[72]
(c)He takes painkillers in respect of pain which he claims is still caused by this accident.
(d)In his request for revocation, he also referred to being seen by a pain specialist in Australia (although there is no evidence from that pain specialist).
(e)There is little to no independent corroborative evidence to support Mr Bobbe’s contention that he has any ongoing conditions, let alone that those conditions could not be (or are not being) adequately managed in Bangladesh.
(f)Mr Bobbe’s medical history should not be considered to represent a serious impediment to the Applicant returning to (or remaining in) Bangladesh.
(g)He has not highlighted any problems that he anticipates facing in Bangladesh, noting that he now resides in Bangladesh and there is no evidence of him facing any impediments.
[72] Exhibit R1: G2, pages 103-108.
Mr Bobbe contends in his 19 September 2023 statement that:[73]
‘I have received more than 15% of whole body impairment from Motorbike accident. I was prescribed Palexia 150mg and Endon 5mg to manage my pain by Dr khor. I was having these medications since 2009. Since I am in Bangladesh, I have no access to these medications as they are not available in Bangladesh. Currently having tramadol 100mg which my dad bought from India. This medicine doesn't work like Australian medicine.’
and
.‘Currently I am struggling in Bangladesh. I don't have access to any proper treatment and don't have any job. Now living on debt. I am borrowing money from my parents. My dad is on 70 and mum is almost 60 years old. Now I am experiencing extreme financial difficulties.’
[73] Exhibit A2.
There is no independent corroborating evidence of Mr Bobbe’s claims above before the Tribunal apart from the Liverpool Health Service Discharge Referral.[74]
[74] Exhibit R1: G2, pages 103-108.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
Mr Bobbe is 36 years old.
Mr Bobbe contends that he suffers from a whole body impairment resulting from his 2008 motorcycle accident.
Acknowledging his difficulties as a self-represented litigant residing overseas, the Tribunal is willing to accept this impairment and the inference in his 19 September 2023 statement that he suffers pain. The Tribunal consequently considers that he may face health issues in Bangladesh if he is not allowed to return to Australia.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that Mr Bobbe, based on his oral testimony, relationship status and current place of residence, faces few, if any linguistic or cultural barriers and difficulties in Bangladesh.
Sub-paragraph 9.2(1)(c) - any social, medical and/or economic support available to them in that country
The Tribunal considers that Mr Bobbe has access to same level of social, medical and economic support as other Bangladeshi citizens enjoy.
Tribunal’s analysis and consideration
The Tribunal has considered the extent of any impediments that Mr Bobbe, if removed from Australia to Bangladesh, will face in establishing himself and maintaining basic living standards, taking into account the specific factors set out in each of the subparagraphs to paragraph 9.2(1).
Acknowledging the Federal Court’s decision in Holloway[75]and distinguishing it on the facts of Mr Bobbe’s matter which differ somewhat from those in Holloway, the Tribunal considers that Mr Bobbe may face issues concerning treatment for his pain and impairment but that these can be resolved by the treatments available in Bangladesh.
[75] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Tribunal finding: Other Consideration (b) Extent of impediments if removed.
Having regard to the analysis referrable to each of the three sub-paragraph components of this other consideration (b), the Tribunal finds that Mr Bobbe, while arguably suffering from pain and some impairment, does not and will not face significant impediments residing in Bangladesh.
This other consideration (b) carries a slight weight in favour of setting aside of the delegate’s decision under review.
Other Consideration (c): Impact on victims
There is no evidence before the Tribunal as to the impact that this Tribunal’s decision might have upon any of the victims of Mr Bobbe's offending.
Tribunal finding: Other Consideration (c): Impact on victims.
The Tribunal considers that this Other Consideration (c) carries a neutral weight.
Other consideration (d) Impact on Australian business interests if Mr Bobbe cannot remain here.
There is no evidence before the Tribunal in relation to this consideration.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if Mr Bobbe cannot remain here.
The Tribunal considers that this Other Consideration (d) carries a neutral weight.
FINDINGS: OTHER CONSIDERATIONS
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·This consideration carries a neutral weight.
Other Consideration (b) - extent of impediments if removed:
·This consideration carries a slight weight in favour of setting aside the decision under review.
Other Consideration (c) - impact on victims:
·This consideration carries a neutral weight.
Other Consideration (d) – Impacts on Australian business interests:
·This consideration carries a neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[76]
[76] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Bobbe does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1 - protection of the Australian community from criminal or other serious conduct:
·This consideration weighs very heavily and substantively in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Bobbe’s Visa.
Primary Consideration 2 - whether the conduct engaged in constituted family violence:
·This consideration has a neutral weight.
Primary Consideration 3 - the strength, nature and duration of ties to Australia:
·This consideration has a neutral weight.
Primary Consideration 4 - best interests of minor children in Australia affected by the decision:
·This consideration has a neutral weight.
Primary Consideration 5 – expectations of the Australian Community:
·This consideration weighs significantly in favour of affirming the delegate’s decision to not revoke the mandatory cancellation of Mr Bobbe’s Visa.
The Tribunal has also set out above the weight attributable to the Other Considerations.
Synthesising a comprehensive, holistic and integrated view of this matter and considering the evidence in its entirety, the Tribunal finds that the Primary Considerations, the other considerations in the Direction, together with the additional consideration favour on balance affirming the delegate’s decision to not revoke the cancellation of Mr Bobbe’s Visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 21 February 2023 to not revoke the cancellation of the Applicant’s visa.
| I certify that the preceding 177 (one hundred and seventy-seven) paragraphs are a true copy of the reasons for the decision herein |
..............[SGD]...............
Associate
Dated: 22 January 2024
Dates of hearing: 25 and 26 September 2023 Applicant: Self-represented litigant Solicitor for the Respondent: Mr Oliver Morris (Senior Associate) (Clayton Utz Lawyers) ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
Applicant’s Submissions
A1
Applicant’s Bundle of Court Documents
A
Various
15 September 2023
A2
Applicant’s statement
A
19 September 2023
19 September 2023
Respondent’s Submissions
R1
G-Documents
R
Various
18 July 2023
R2
Respondent’s Statement of Issues, Facts and Contentions.
R
Various
27 August 2023
0
36
0