Bristowe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1217
•7 May 2020
Bristowe and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1217 (7 May 2020)
Division:GENERAL DIVISION
File Number: 2020/0983
Re:Lyrick Adrian Bristowe
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs And
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:7 May 2020
Place:Brisbane
The decision under review is affirmed.
.............................[SGD]...........................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
7 May 2020
INTRODUCTION AND BACKGROUND
Mr Lyrick Bristowe (“the Applicant”) is a 21 year old citizen of New Zealand.[1] Movement records indicate that the Applicant first arrived in Australia on 10 December 2004 and has left Australia on 11 occasions with his most recent arrival date being 23 April 2014.[2] Since the date of his initial arrival in December 2004, the Applicant has been absent from Australia for a cumulative period of approximately 16 months.[3] He resided in Australia on a Class TY Subclass 444 Special Category (Temporary) Visa (“the visa”).[4]
[1] Exhibit 2, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 1.
[2] Exhibit 1, s501 G-Documents, G27, Applicant’s Movement Record, pages 254- 256.
[3] Ibid.
[4] Ibid, G28, page 257.
The Applicant has, in terms of the period over which he has been committing offences, a relatively short offending history. That history (in terms of appearances in courts for sentencing) spans the period July 2016 to August 2019. His offending commenced in July 2016 as a child offender aged 17. For that offending as a juvenile, he was dealt with at the Campbelltown Children’s Court (in July 2016). There followed appearances for further sentencing as a juvenile at the Parramatta Children’s Court in September 2016, the Hornsby Children’s Court in October 2016, the Campbelltown Children’s Court in December 2016 and the Picton Children’s Court in March 2017. As an adult, the Applicant’s history reveals sentencing episodes in May 2018 at the Campbelltown Local Court and August 2019 at the Parramatta District Court.[5]
[5] Ibid, G2, Attachment A: National Criminal History Check Report, pages 22-23.
In August 2019, the Applicant was convicted of the offence of supplying a prohibited drug in a commercial quantity and sentenced to a head custodial term of two years and nine months with a non-parole period of one year and six months. At the conclusion of the non-parole period (18 January 2020) and upon the Applicant’s release from criminal custody, he was taken into immigration detention.
While serving his term of imprisonment (i.e. criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 26 September 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]
[6] Exhibit 2, Respondent’s SFIC, page 2, see also Exhibit 1, s501 G-Documents, G12, pages 164-170.
On 14 October 2019, the Applicant made representations to the Minister’s Department seeking revocation of the mandatory visa cancellation decision.[7] The delegate of the Minister decided on 13 February 2020, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[8]
[7] Exhibit 1, s501 G-Documents, G2, Statement of reasons, page 13.
[8] Ibid, G2, pages 9–29.
The Applicant lodged an application with this Tribunal on 21 February 2020 seeking a review of the abovementioned decision dated 13 February 2020 not to revoke the cancellation of his visa.[9] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[10]
[9] Ibid, G1, pages 3-8.
[10] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded before me on 27 April 2020 and received oral evidence from the Applicant as well as from his grandmother, his former employer and the Psychologist, Dr Jacqui Yoxall. The Tribunal also received written evidence. This written evidence was categorised into an agreed exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[13] I will address each of these grounds in turn.
[13] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 8 August 2019, the Applicant was sentenced at the Parramatta District Court, New South Wales (“NSW”), to a head term of imprisonment for two years and nine months, commencing on 19 July 2018 and concluding on 18 April 2021.[14] The sentencing court imposed a non-parole period of 18 months commencing on 19 July 2018 and concluding on 18 January 2020.
[14] s501 G-Documents, G2, Attachment A: National Criminal History Check Report, pages 22-23..
As mentioned, the Applicant’s criminal history is relatively short in terms of its span of time, but nevertheless well populated with a list of offences. The totality of the custodial time of his sentencing is two years and nine months. From the date of his arrival in Australia (December 2004) until his removal from the Australian community in July 2018 comprises a period of approximately 13 and a half years. Taking into account the approximate year and a half that the Applicant spent outside Australia, the two years and nine months of custodial time he received for the supply prohibited drug (commercial quantity) offence in August 2019 comprises approximately 23% of his time in the general community of this country.
In his written material, the Applicant did not deny his offending, and said:
“3. The Applicant concedes that:
(a) the decision to cancel his visa under s 501(3A) was made according to law; and
(b) he does not satisfy the character test as prescribed by s 501 of the Migration Act 1958 for the purposes of s 501CA(4)(b)(i)
4. The Applicants concedes that, as at the date of the Original Decision, he:
(a) had a substantial criminal record as defined through s 501(7)(c);
(b) did not pass the character test as prescribed by s 501(6)(a);
…”[15]
[15] Exhibit 5, Applicant’s SFIC, pages 1-2.
At the hearing, the Applicant’s representative[16] did not appear to cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of “a substantial criminal record”.
[16] Ms Jennifer Samuta, Director, Samuta McComber Lawyers.
The custodial sentence imposed on the Applicant involved his early release on parole after serving a custodial period of 18 months. I note that what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[17]
[17] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2 terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test, the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[18] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[19]
[18] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[19] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[20]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[21]
[20] [2018] FCA 594.
[21] Ibid, [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
We will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s criminal history in Australia commenced as a juvenile in July 2016. On that day he appeared before the Campbelltown Children’s Court and was convicted of “Larceny – T2”. He received a fine in the sum of $200. His juvenile offending continued, primarily in the realm of property offending, throughout 2016. He appeared in the Parramatta Children’s Court in September 2016 for being in possession of a knife in a public place. The Hornsby Children’s Court dealt with him in October 2016 for a conviction of destroying or damaging property of a value of less than $2,000.
His further juvenile offending was dealt with at the Campbelltown Children’s Court in December 2016, whereupon he was convicted for (1) “Larceny – T2”; (2) “Larceny value less than $2,000”; and (3) “Intentionally mark premises etc without prescribed consent”. For this offending, the court imposed fines and a good behaviour bond.
His juvenile offending continued into 2017, but, significantly, the nature of the offending changed from property-type offences and, for the first time, entered the realm of illicit drugs. On 28 March 2017, he was dealt with at the Picton Children’s Court on two counts of possession of a prohibited drug. For each of those convictions, the court imposed a bond with a duration of 12 months.
His offending as an adult first saw him before a sentencing court on 31 October 2017. On that day, the Campbelltown Local Court convicted and sentenced him on one count of possession of a prohibited drug. The court fined the Applicant the sum of $400. The same court dealt with the Applicant on 4 December 2017 and convicted him on one count of “Never licensed person drive vehicle on road – first offence”. The court imposed a fine against the Applicant in the sum of $800.
In 2018, the Applicant found himself again before the Campbelltown Local Court, specifically on 7 May 2018, and was dealt with on two (called up) counts of possessing a prohibited drug and a further count of “Never licensed person drive vehicle of road – prior offence”. For the called up offences, the court imposed respective fines of $100. For the unlicensed driving offence, the court imposed a fine of $600 and disqualified the Applicant from driving a motor vehicle for three months.
In 2019, the Applicant’s offending reached its crescendo of seriousness, which saw him involved in very serious offending in connection with illicit drugs. On 8 August 2019, the Parramatta District Court dealt with the Applicant on for respective counts of: (1) “Supply prohibited drug greater than or equal to a commercial quantity”; (2) “Deal with property proceeds of crime less than $100,000 – T2; and (3) “Possess prohibited drug”. The sentencing regime imposed by the Parramatta District Court consequent upon these three convictions involved the imposition of a head custodial term of two years and nine months, with a non-parole period of 18 months.
The material discloses an “Agreed Statement of Facts” detailing the Applicant’s offending conduct involving illicit drugs that came before the Parramatta District Court in August 2019.[22] His unlawful conduct was detected by an undercover police operative who acted as a buyer of the drugs. It would appear from the Agreed Statement of Facts that the Applicant came into contact with the undercover operative on five occasions or, as they are described in the Agreed Statement of Facts, “Deployment 1-5”. These engagements between the Applicant and the undercover operative involved him meeting up with the undercover operative (“Lexi”), usually by way of a precursor telephone call by him to her. They would then meet, whereupon the money-for-drugs exchange occurred.
[22] Exhibit 4, Summonsed material from the Parramatta District Court.
Those respective deployments are described in the material as follows. The reference to date refers to the date of each deployment, while the second column describes the drug weight and its relative purity:[23]
[23] Ibid.
Date
Drug weight (MDMA) & purity
7/6/2018
6.45 grams 69%
20/6/2018
56.1 grams 53%
25/6/2018
55.6 grams 64%
2/7/2018
55.9 grams 44%
8/7/2018
(Agreed to supply) 84 grams
In summary, the agreed statement of facts says:
“…
37 When asked by police what he had done with the money he received from ‘Lexi’ the accused told police he had only kept about $1,500-2000. In relation to the final supply the accused told police he was trying to push the deal to five ounces as he was planning on robbing her.
38 In total the accused supplied UCO ‘Lexi’ with 258.05 grams of MDMA. This includes the actual supply of 174.05 grams of MDMA between 7 June and 2 July for $12,050 and the agreement to supply 84 grams of MDMA on 8 July 2018 for the price of $5,250.
…”[24]
[24] Ibid.
Application of Paragraph 13.1.1(1) of the Direction
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
(a) …
(b) …
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)…
(i)…
Sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant’s criminal history is not redolent of a propensity towards violence. This sub-paragraph (a) is not relevant to determination of this Application.
Sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. Here, there has been no violent conduct towards women and/or children and this sub-paragraph (b) is thus not relevant to determination of this Application.
Sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” There is evidence in the material that this Applicant has been responsible for conduct, while in criminal custody, that could have been punished as a crime. For the purposes of these reasons, while this conduct may not be directly relevant to this sub-paragraph (c), I will discuss this conduct when I refer to the Applicant’s “other conduct” that can be taken into account in assessing the nature and seriousness of his offending to date. Thus, this sub-paragraph (c) is not relevant to determination of this Application.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are also viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
This Applicant’s history of offending in Australia starts in July 2016, as a juvenile. In terms of its recorded history, the Applicant’s offending culminated in the imposition of a head custodial term of two years and nine months. This sentence was imposed upon him in August 2019.
The Applicant is now 21 years of age. In terms of weight attributable to this sub-paragraph (d), it cannot be ignored that his offending has been punished by a head custodial term of two years and nine months, which represents almost 23% of his time in the mainstream Australian community for the approximately 13 years preceding his entry into criminal custody/immigration detention. This sub-paragraph (d) militates in favour of a finding that the Applicant’s offending is of at least a serious, more likely very serious, nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal firstly with the frequency of the Applicant’s offending. He is presently 21 years of age. His offending spans the period July 2016 to August 2019. Although not necessarily lengthy in terms of its timespan, the Applicant’s offending history, viewed fairly and reasonably, nevertheless contains a long list of offences.
With reference to any discernible trend of increasing seriousness in the Applicant’s offending history, it can be fairly said that his offending commenced with the commission of predominantly property-related offences as a juvenile in 2016. In 2017, again as a juvenile, his offending graduated into the realm of illicit drugs, involving respective convictions for two counts of possessing a prohibited drug. There followed, in 2017, two additional convictions for possession of a prohibited drug and his first offence of unlicensed driving.
2018 saw him (as an adult offender) before the Campbelltown Local Court on two called up counts of possession of a prohibited drug and a fresh count of unlicensed driving. In 2019, he was dealt with at the Parramatta District Court for his three most serious offences involving the supply of a prohibited drug (of greater than or equal to a commercial quantity), dealing with proceeds of crime (of less than $100,000) and a further conviction for possession of a prohibited drug. The commission of these very serious 2019 offences culminated in the imposition of a head custodial term of almost three years.
There is, thus, a clearly discernible trend in the seriousness of the Applicant’s offending that came before the courts between 2016 and 2019. An application of this sub-paragraph (e) leads to a finding that both the frequency of his offending, as well as its increasing level of severity, must attract a finding that his offending has been of at least a serious, more likely very serious, nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
Three observations can be made from the Applicant’s offending history. First, the Applicant has received the benefit of non-custodial terms for his offending, particularly when committed as a juvenile, through the years 2016 and 2017. During these years, the Applicant appeared before lawful authority on seven occasions and was sentenced for the commission of 10 offences. All of those sentences were non-custodial in nature, consisting of fines, bonds, “Youth Conferencing” and probation. Looking further into the year 2018, the Applicant was dealt with (on a called up basis) for two previous convictions of possessing a prohibited drug and was again fined for the offending. Further, he committed a second unlicensed driving offence for which, again, he was fined and disqualified from driving for three months.
None of these non-custodial sentences resonated with the Applicant or convinced him to moderate his conduct. Despite this relatively moderate approach by the law enforcement authorities towards him, the Applicant nevertheless committed the very serious drug offences that came before the Parramatta District Court in August 2019, which saw him sentenced to a custodial term of almost three years. Thus, the first notable cumulative effect of the Applicant’s offending is an abject failure to experience any deterrent effect from non-custodial terms imposed upon him during the evolution of his offending history.
Second, when viewed in its totality, the Applicant’s conduct during his time in the mainstream Australian community from 2016 until 2019 is demonstrative of a failure within him to develop any measurable level of respect for lawful authority. His early offending is demonstrative of a failure to respect the property rights of others and to respect the lawful authority governing the use of motor vehicles on Australian roads. This failure to respect lawful authority reaches its zenith in his very serious drug offending that came before the Parramatta District Court in August 2019. It is clear from the circumstances of his detection for this latest phase of his offending that the Applicant was actively involved in the illicit drug trade as a means of earning his livelihood.
Third, another cumulative effect of the Applicant’s offending can be found in his unresolved issues with illicit drugs. He purports to attribute much of his offending to an involvement with a female domestic spouse who, herself, was heavily involved in and addicted to illicit drugs. I will speak about the Applicant’s level of rehabilitation from his previous addiction later in these reasons. For the purposes of this sub-paragraph (f), it seems that, much of his offending has been committed under the influence of illicit drugs. It can be fairly said that the Applicant’s moral compass and capacity to distinguish right from wrong becomes askew under the influence of those substances.
In his oral evidence, the Applicant sought to suggest that he would be no longer predisposed to offending due to his self-imposed abstinence from partaking in illicit drugs. For reasons I will mention later, this propounded strategy for addressing the factors predisposing him to offend is not corroborated by any contemporary and independent expert medical opinion. Without the benefit of such medical evidence, there can be no certainty that any of the factors predisposing him to offend have been resolved or are otherwise under some kind of remedial management and control. Were he to offend again, he could cause very serious and, indeed, catastrophic harm. This is another very adverse cumulative effect of his offending.
The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this sub-paragraph (f) in favour of a finding that his offending has been of at least a serious, more likely, very serious nature.
Sub-paragraph (g) of Paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. The material does not disclose any instance of the Applicant providing false information to the Respondent.
Sub-paragraph (h) of Paragraph 13.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I am not able to glean any such letter or other communication containing any such formal warning from the Respondent or any other element of lawful authority. This sub-paragraph (h) is not relevant to determination of this Application.
Sub-paragraph (i) of Paragraph 13.1.1(1) of the Direction refers to a non-citizen who has committed a crime while in immigration detention in Australia. Subject to my following comments about the chapeau to Paragraph 13.1.1 of the Direction, there is no evidence of this Applicant having committed a crime while in immigration detention in Australia. This sub-paragraph (i) is not relevant to determination of this Application.
The chapeau to the factors at Paragraph 13.1.1 of the Direction reads as follows:
“(1) In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including: …”
[My underlining]
There are several further aspects to the Applicant’s conduct which, although not directly captured by the nine factors at Paragraph 13.1.1(1) of the Direction, nevertheless constitute “other conduct” relevant to an assessment of the nature and seriousness of the Applicant’s conduct.
In his written statement, the Applicant said:
“…
66. While I was incarcerated I had three incidents between September 2018 and June 2019. They included:
a. Create possess prohibited goods;
b. Disobey direction; and
c. Fight or other physical contact.
67. As a consequence, I received various in-prison punishments, including 28 days of good behaviour and 28 days of having no contact visits by my family.
68. This was particularly tough because I really miss my family, and I would normally see them very frequently – especially my mum.
69. For the first incident, there was a USB in my cell that wasn’t supposed to be there. It was my cellmate’s USB, and I knew he was about to get found out. If he got found out, he would not be able to see his kids and family – and I knew he had a visit coming up very soon. Therefore, I took the blame for the USB and pretended it was mine so that my cell mate could see his family.
70. For the second incident, I was walking next to a guard who did not want me walking next to him. He probably thought I was walking alongside him to go outside the gate, where he was going, but I was actually going to the phone. I explained this to him and kept walking, but he charged me.
71. For the third incident, I had just been eating lunch, then turned around and saw someone hit my friend. A fight started and I pushed the guy who had hit my friend out of the way. Initially, they thought I started it, but when they checked the camera they realised someone had hit my friend a couple of times and I had just pushed the attacker out of the way.
…”[25]
[25] Exhibit 6, Applicant’s Further Evidence, Item 1, page 6.
The Applicant was cross-examined about his abovementioned conduct while in criminal custody. The following exchange transpired:
MR RAY:[26] ‑ ‑ ‑ you have broken the rules while in gaol, haven’t you?
[26] Mr Adam Ray, Senior Associate, Clayton Utz, Representative of the Respondent.
APPLICANT: Yes, and that was 10 months ago, 11 months ago. Yes, of course, of course I broke the rules. Of course I did, yes. I will admit to that, I’m not going to – I can’t lie about that, yes. And that was very stupid ‑ ‑ ‑
MR RAY: And the most ‑ ‑ ?
APPLICANT: ‑ ‑ ‑ of me.
MR RAY: The most recent way that you broke the rules was to engage in a fight or other physical altercation?
APPLICANT: Yes. That’s right, yes.
…
MR RAY: You got into a fight while in gaol?
APPLICANT: I didn’t get into a fight. Of course, yes, what happened was I had a friend that I knew from the outside. Anyways, long story short, there was this guy, I was eating lunch, I turned around cos I heard arguing. As I turned around, my friend, he got hit, bang, bang, bang. He dropped to the floor, and my first instinct – cos he was my friend – my first instinct is help. So what I done is, I hit the guy in the back of the head and that was it. They took me into the office, they tried to charge me for starting the fight, for initiating the fight or whatever. Yes, I’ll admit, I did – I hit him. It was – it was just – it was just my first instinct. My first instinct was, see your friend in need, need help he’s – he’s getting bashed, he’s getting bashed on the floor too, my first thought was just, “back him up, back him up”. So I just hit him across the head once, and that was it. But yes, of course, that was stupid of me, I let – I let that get the best of me. I let it get the best of me, of course, yes. That was very stupid of me, but ‑ ‑ ‑
MR RAY: So you - you ‑ ‑ ?
APPLICANT: But ‑ ‑ ‑
MR RAY: You punched the guy ‑ ‑ ?
APPLICANT: ‑ ‑ ‑ it was just my first ‑ ‑ ‑
MR RAY: Sorry?
APPLICANT: Yes.
MR RAY: Go on?
APPLICANT: I – yes, I – yes, I hit the guy, yes. Yes, I did.
MR RAY: You punched him with your fist?
APPLICANT: I did, and – yes, and my – yes, yes, yes. With – yes, with my fist, yes. Yes.
MR RAY: You (indistinct)?
APPLICANT: Sorry?
SENIOR MEMBER: Go again, Mr ‑ ‑ ‑
MR RAY: In the back of his head, you punched him with your fist in the back of his head?
APPLICANT: Yes. To – to the side, yes, to the back side, yes. Yes, I did, yes. Yes.
MR RAY: In your statement, which you signed last week in this matter, at ‑ ‑ ?
APPLICANT: Yes.
MR RAY: At paragraph 71, you’ve said:
‘The fight started and I pushed the guy who had hit my friend out of the way.’
APPLICANT: No, I didn’t. The guy that I ‑ ‑ ‑
MR RAY: Why did you say (indistinct) ‑ ‑ ‑?
APPLICANT: The guy that – see, that’s the thing, I – I didn’t, because I admitted to it. I admitted to hitting him in the back of the head, I didn’t say I pushed him. I wouldn’t say I pushed him in that statement and then say I punched him here. That doesn’t make sense. That doesn’t make sense for me to say that at all. So maybe the person that I was talking to misheard it, but that doesn’t make any sense for me to lie in this and say I pushed him and tell you the truth here. That makes no sense. That makes no sense at all. It makes more sense for me to lie on the paper – sorry, to lie on – to tell the -whatever, you know, it doesn’t make sense. Sorry, I didn’t – it doesn’t make sense at all. That does not make sense at all for me to say that but then tell you here. Like, yes, it doesn’t make sense at all. And so I’m pretty sure she heard wrong because that’s not how it went, I said the truth in everything. In everything I told the truth, I did not lie. I had – I didn’t feel like I needed to – I couldn’t – I can’t lie about anything, it’s all there in proof. So I’ve – yes, I feel like, she either misheard me or, yes she (inaudible), because that’s the only thing it could be. I wouldn’t lie there and then tell you here, because you only – you only just told me that apparently I said I pushed in the statement after I admitted, so that makes no sense to me. Honestly, it makes no sense. So yes.”[27]
[27] Transcript, 27 April 2020, page 34, lines 19-27, and lines 33-46, and page 35, lines 1-47.
While sub-paragraph (i) of paragraph 13.1.1(1) of the Direction refers to “a crime committed while the non-citizen was in immigration detention;” the Applicant has nevertheless been the subject of three incidents of prison misconduct during the 18 months he spent in criminal custody from July 2018 to January 2020.
While this aspect of the Applicant’s offending does not appear in his criminal history, or may not otherwise be strictly captured by the nine sub-paragraphs in paragraph 13.1.1(1) of the Direction, I am nevertheless of the view that the totality of these particular aspects of his conduct are relevant and captured by the reference to “other conduct” in the abovementioned chapeau to Paragraph 13.1.1(1) of the Direction.
Having regard to the totality of the evidence to which the abovementioned relevant sub‑paragraphs (d), (e) and (f) of paragraph 13.1.1(1) of the Direction are relevant, as well as the conduct covered by the chapeau of paragraph 13.1.1(1), I am of the view that the Applicant’s conduct is readily capable of characterisation as, at least “serious”, more likely, “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
It is contended on behalf of the Applicant that:
“50. The Applicant contends his offending history is marked by his previous drug use.
51. With respect to the nature of future harm, the Applicant is remorseful of his past offending and has a growing insight into the causes of his offending.”[28]
[28] Exhibit 5, Applicant’s SFIC, page 7.
The Respondent contends that:
“23. … the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct weighs strongly against the revocation of the Original Decision.
24. The Applicant has engaged in the supply of a commercial quantity of a prohibited drug, and supply of large quantities of drugs to the Australian community creates a serious risk of harm to the individuals who take the drugs, and to other members of the community who may be subjected to violent and dangerous conduct by people affected by the drugs, as well as other harms. The harm which drugs cause Australian communities is well-documented.”[29]
[29] Exhibit 2, Respondent’s SFIC, page 7.
Paragraph 6.3(4) of the Direction stipulates that decision-makers should be guided by the principle that criminal offending and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. On the basis of this paragraph 6.3(4), I think the Respondent’s abovementioned submission is correct.
It is clear there has been an evolution in the Applicant’s pattern of criminal offending between July 2016 and August 2019. His early offending involved property-related offences and two instances of unlicensed driving. It is obvious from a plain reading of his criminal history that the offending then graduated into the realm of illicit drugs. That specific offending commenced with relatively straightforward possession-type offences before ultimately culminating in the very serious offences for which he was sentenced to a head custodial term of nearly three years imprisonment in August 2019.
Having regard to the trajectory of the nature of the Applicant’s criminal conduct, there is much to suggest that, were he to re-offend if returned to that Australian community, the consequences would be very serious and would, quite conceivably, involve significant, and potentially catastrophic physical, financial and psychological harm to members of that community. Put simply, having regard to the trajectory of his conduct, it would be unsafe to find that, were he to re-offend in the realm of his past offending that came before the Parramatta District Court in August 2019, the nature of the harm to any victim would be low or insignificant. Clearly, it would not.
It is, therefore, reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has a period of criminal offending running for approximately three years. In that time, he has been afforded the benefit of virtually the full ambit of deterrent sentencing regimes, ranging from (1) fines, (2) bonds, (3) probation, and (4) youth conferencing. Before his offending for which he was punished in 2019, there were nine sentencing episodes involving him being dealt with for 13 separate offences. It is thus difficult to discern any deterrent effect experienced by the Applicant up to the time he committed his most serious offences that came before the Parramatta District Court for sentencing in August 2019.
The Report of Dr Yoxall
Dr Jacqui Yoxall is a Pychologist and Associate Professor in Allied Health. She undertook a psychological assessment of the Applicant via teleconference on 4 April 2020. Her report is dated 16 April 2020 and forms part of the material before the Tribunal.[30] Dr Yoxall also gave oral evidence at the hearing.
[30] See Exhibit 6, Applicant’s Further Evidence, Item 3, pages 16-41.
For the purposes of her report, Dr Yoxall applied “The Level of Service Inventory – Revised (LSI-R)” risk assessment methodology. The LSI-R involves the assessment of 54 items comprising “10 Static (18 Items) and Dynamic (36 Items) risk/need domains.”[31] In her report, Dr Yoxall referred to each relevant Item and allocated a certain score to the Applicant based upon her examination. Those scores – as they currently appear in the report – can be summarised as follows:
[31] Ibid, page 29, paragraph [10].
“Criminal history (score of 7)…
Education/Employment (score of 7)…
Financial (score of 1)…
Family/Marital (score of 1)…
Accommodation (score of 1)…
Leisure/Recreation (score of 2)…
Companions (score of 2)…
Alcohol/Drug Problem (score of 4)…
Emotional/Personal (score of 0)…
Attitudes and Orientation (score of 0)…”[32]
[32] Ibid, pages 29-31; see also Transcript, 27 April 2020, page 59, lines 3-12.
Dr Yoxall then notes that:
“On review of Mr Bristowe records and what he revealed in interview, it appears that he is motivated to engage in recommended treatment to ensure that his risk of general reoffending is reduced. His score on the LSI-R was 11 (10.8th %ile) and is related to static (historical and unchangeable) risk factors, and dynamic (changeable) risk factors, including a history of alcohol misuse. North American norms are commonly used in Australia for this measure. A score below 13 indicates a low risk of general reoffending and a low level of general rehabilitation needs. In the normative sample, approximately 11.7% who scores in this range reoffended (and were re-incarcerated) within 12 months.”[33]
[33] Ibid, page 31.
At the commencement of her oral evidence before the Tribunal, Dr Yoxall said:
“MS SAMUTA: I understand that you need to highlight a few points in relation to that report?
DR YOXALL: Yes, I do. In reviewing the report, in preparation for the evidence this afternoon, I’ve identified some mathematical errors that I’ve made in the LSI component of the report, section 10. It should be quite apparent to the reader, in the level of service inventory I have provided a score of 11, when, in fact, the score in each identified area is 25. I’ve gone through and assessed each of the scores compared to the other material that I have in the allocation of scores on this measure and I’ve allocated a one under family and marital, which should have been a zero, which brings the overall score to 24. That score puts Mr Bristowe on this measure at a percentile of 43.9, which means that rather than 89 per cent of individual scoring above him in the normative sample around 56 per cent scored higher than him. It moves him into the category just on to the cusp of moderate of low risk - of low moderate risk to moderate risk. So, on this measure it provides - gives him a score where he presents as a higher risk based on the weighted variables that this measure covers. So, I need to acknowledge that. That then, in consideration of my conclusion, does change my conclusion. The measures, such as the LSI, are one of the variables that are taken into account in considering the overriding clinical view of risk of reoffending. I’ve stated in section 8 that I considered his risk to be low and in 7 - section 7 of my summary, I consider his risk now to be low to moderate in - in taking into account the calculations and the - the - the actual outcome score but I still am of the very firm view that his risk of reoffending is inextricably linked to his risk of relapse to drug dependence and that rehabilitation - successful rehabilitation, if that is achieved, would result in a low risk of reoffending but, to the contrary, a relapse to drug dependence would result in a significant increase in risk of reoffending.”[34]
[My underlining and emphasis]
[34] Transcript, 27 April 2020, page 59, lines 3-29.
Having regard to the above-listed Items, the numbers change as follows (noted in bold):
“Criminal history (score of 7)…
Education/Employment (score of 7)…
Financial (score of 1)…
Family/Marital (score of 0)…
Accommodation (score of 1)…
Leisure/Recreation (score of 2)…
Companions (score of 2)…
Alcohol/Drug Problem (score of 4)…
Emotional/Personal (score of 0)…
Attitudes and Orientation (score of 0)…”
[My emphasis]
Further, the following paragraph in her report then changes to read as follows (noted in bold):
“On review of Mr Bristowe records and what he revealed in interview, it appears that he is motivated to engage in recommended treatment to ensure that his risk of general reoffending is reduced. His score on the LSI-R was 24 (43.9th %ile) and is related to static (historical and unchangeable) risk factors, and dynamic (changeable) risk factors, including a history of alcohol misuse. North American norms are commonly used in Australia for this measure. A score below 24 indicates a moderate risk of general reoffending and a low level of general rehabilitation needs. In the normative sample, approximately 48.1% who scores in this range reoffended (and were re-incarcerated) within 12 months.”
[My emphasis]
In terms of her summary and conclusions, Dr Yoxall noted the following things:
“11. SUMMARY AND CONCLUSION
…
The findings are as follows:
1. Mr Bristowe’s early years were stable in a loving home. Adolescent rebellion quickly led to substance misuse and delinquency.
2. Mr Bristowe has a history, from at least the age of 15 years, of polysubstance abuse and methylamphetamine dependence, which had compromised his functioning in every aspect of his life. He has limited formal education, no qualifications and very limited work experience. He has very limited life skills including capacity for emotional regulation, impulse control, communication, critical decision making, problem solving, goal-setting and judgment.
3. In my view Mr Bristowe’s offending history is inextricably entwined with his substance misuse. As the severity of his dependence increased, so too did the severity of the offending he engaged in, primarily because the key motivation for the offending was access to money or drugs for personal use.
4. Mr Bristowe has now been in a controlled environment (remand, prison and detention) for 21 months, and as a result of this, he has been abstinent for a sustained period of time.
5. On assessment Mr Bristowe appeared to present with genuine remorse and he appears to accept responsibility for his offending. It would appear that his period of time in a controlled environment has been of benefit to him in that he has developed increased personal insight.
6. However to date Mr Bristowe has not engaged in evidence based drug rehabilitation, nor has he engaged in any substantial learning, either from a vocational perspective or from a personal development perspective. A key reason for this is limited access to same from prison or detention.
7. At the current time Mr Bristowe’s risk of reoffending, according to established methods of prediction, is low to moderate - moderate.[35] This is primarily because he had a stable upbringing, he is still young and his offending occurred in the context of a methylamphetamine dependence, which is now in remission (albeit a controlled environment) and can be treated.
8. Even though the risk of reoffending is low to moderate – moderate it is directly linked, and heavily dependent upon, his ability to maintain remission from drug dependence, if and when he returns to community. To this end, it is my view that Mr Bristowe requires the following rehabilitation and intervention:
a.A residential drug rehabilitation program for treatment of methylamphetamine dependence and poly substance abuse, including addressing of life skill deficits identified above.
b.Vocational upskilling to increase likelihood of obtaining and maintaining employment. This may include completion of Grade 10 education and industry based qualifications.
c.Continued support, monitoring and supervision, either informal (e.g. family members) or more formal.”[36]
[My emphasis and underlining]
[35] Note: This is Dr Yoxall’s amended assessment as per her evidence at the Hearing. Further details of her evidence in this regard appear in the Transcript – see footnote 34.
[36] Ibid, pages 32-33.
The reality to be taken from Dr Yoxall’s report is that she has assessed the Applicant as being within a cohort which has a 48.1% chance or re-offending and being re-incarcerated within a 12 month period of release back into the community. There is no other evidence before the Tribunal indicating the Applicant has a lower risk of recidivism than that, apart from the Applicant’s own evidence.
While I accept that Dr Yoxall’s assessment derives from the application of an assessment or statistical tool (the LSI-R), Dr Yoxall – on the basis of her professional experience and qualifications – assesses the Applicant as falling within that 48.1% cohort and, as such, it represents a quite significant risk of recidivism. I must take Dr Yoxall’s evidence about the level of that risk into account as a result of the language of paragraph 13.1.2(b) of the Direction. That paragraph requires me to assess the likelihood of this Applicant engaging in further criminal or other serious conduct “…taking into account available information and evidence on the risk of the non-citizen reoffending…” The best evidence informing the Tribunal of that risk is that of Dr Yoxall. I prefer Dr Yoxall’s evidence above any other evidence regarding recidivism presently before the Tribunal.
For the purposes of assessing the Applicant’s risk of recidivism, it is also necessary to have regard to Dr Yoxall’s three recommendations appearing at paragraph [8] of her report. First, she recommended the Applicant undergo “a residential drug rehabilitation program for treatment of methylamphetamine dependence and poly substance abuse including addressing of life skill deficits identified above.” It is not the Applicant’s evidence that he will engage in any such residential drug rehabilitation program. In cross‑examination, he said:
“MR RAY: Mr Bristowe, you have been in contact with an organisation called Odyssey House?
APPLICANT: Yes.
MR RAY: You first came into contact with them, I think, last month. Is that right?
APPLICANT: Yes. A couple of weeks ago, yes. I can’t give you exactly when, but yes, a couple of weeks ago, yes.
MR RAY: And how did you come to make contact with Odyssey House?
APPLICANT: So my mother actually found them because she was trying to find - trying to contact any courses or rehabs that are available for when I get released, and if they can help me while I’m in the detention centre, and she come across the Odyssey House and, yes, she ended up telling me to call Belle. She spoke to a lady and organised it for me. And yes, I’ve called up the lady, had the interview. I had to answer some questions and stuff, and I ended up, yes, approving for it, or whatever. And yes, that’s how I’ve started off.
MR RAY: And what do you talk about in your counselling sessions with Odyssey House?
APPLICANT: Well, with the phone calls, she says it’s normally just to check up to see how my mental game going, to see if - you know, how my feelings are, how I’ve been feeling today; have I been feeling down; you know, how have you been? Just a check-up, just a talk, just a chat to see if I’m mentally all right and physically all right. And yes, that’s - yes, that’s - yes, it’s just a check-up, see how I am, see where I’m ‑ ‑ ‑
MR RAY: And have you learned anything from those sessions?
APPLICANT: The core session of her asking how I am?
MR RAY: Is it more of just a check-up, it’s not really a course?
APPLICANT: Yes. Well, yes, they’re half an hour, 45 minute courses that she does for (indistinct) just for your mental health, just to know that I’m all right and - you know, she’s not teaching me anything out of it, like, it’s just to check how my mental game was going, you know. It’s counselling. You don’t really learn much from counselling. It’s just somebody to talk to, you know. And if I have any concerns about, you know, myself or anything, let her know, and then she will - you know, she will help me, whatever. But yes, it’s just those - those phone calls is just more of a check up to see how I’m doing (indistinct) situation that I’m in right now, that I’m in - yes, just more of a check-up, but yes. The courses ‑ ‑ ‑
MR RAY: Have you ‑ ‑ ‑ ?
APPLICANT: The courses, obviously, yes, they would help.
MR RAY: So does Odyssey House also run courses?
APPLICANT: Yes. They do the Smart Recovery, the AOD, and the, yes, mental health. I forgot the full name, but it’s mental health something. They run those courses.
MR RAY: And did you attend a Smart Recovery session?
APPLICANT: I attended one Smart Recovery session. They booked me in for 17 April. I attended that, which apparently they didn’t put in the system, but ended up getting fixed anyways. But yes, I attended one of them, and I am eligible, and they’re willing to accept me for the (indistinct) get released to, yes, just help me with rehabilitating, help me with - to plan a - like a future plan if I need one. But yes, Smart Recovery, any - all drug and alcohol course, and yes, the mental health thing. So they run that, and they are willing to let me join if I am released. They’re willing to help me with whatever I need. Yes, I only attended one video conference on Zoom, and yes, that was what I learned from that and what I got - it was only a 45-minute video chat, and what I got from that is - so what they wanted to do is they - there was about eight of us or something, maybe 10 of us in the video chat, and they went around - there was two workers, and they went around to every person, and because I only just started, I was a new one there, everybody else had already done what they asked the week before, but it was - they just asked me to set little goals during the week, like realistic goals, just little ones, just so it’s something that I can try and stick to for the week. And then as the weeks go by, fill the list up and add more stuff into it, like a routine, you know, just something to stick by; little simple goals to complete during the week; and then once you’ve completed them goals, get bigger and bigger and bigger, and make the goals bigger and bigger. It was just goal setting for - what I learned and what they told me to do for that bit. Out of that 45 minutes or hour talk that we had was, yes, just - just realistic goals for you to complete. And then eventually, gradually move up from the smaller goals to the bigger goals. So yes, that’s what I got out of that. That’s what I got out of that. And, yes, everything else they just spoke about was just asking how we were mentally and, yes.”[37]
[My emphasis and underlining]
[37] Transcript, 27 April 2020, page 41, lines 11-46, and page 42, lines 1-36.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·The combined weight of Primary Considerations A and C is of determinative weight in favour of non-revocation;
·Primary Consideration B is of neutral weight; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of those Other Considerations, even when combined with each other, outweigh the combined and determinative weight I have attributed to Primary Considerations A and C.
A holistic view of the considerations in the Direction, therefore, favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 145 (one hundred and forty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
................................[SGD]........................................
Associate
Dated: 7 May 2020
Date of hearing:
27 April 2020
Solicitor for the Applicant:
Ms Jennifer Samuta
Samuta McComber LawyersSolicitors for the Respondent: Mr Adam Ray
Clayton Utz LawyersATTACHMENT A - EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
1
Section 501 G-Documents received 9 March 2020 (Page 1 to 257)
2
Respondent’s Statement of Facts, Issues and Contentions dated 3 April 2020 (Page 1 to 10)
3
Summonsed Material, received 25 March 2020, comprising:
SM 1: Material received from Campbelltown Children’s Court
SM 2: Material received from Campbelltown Local Court
SM 3: Material received from Parramatta Children’s Court
SM 4: material received from Picton Children’s Court
4
Summonsed material from the Parramatta District Court, received 12 March 2020
5
Applicant’s Statement of Facts, Issues and Contentions dated 24 March 2020 (Page 1 to 11)
6
Applicant’s further evidence, received 22 April 2020 (Page 1 to 46), comprising:
Item 1: Statement of Applicant dated 21 April 2020
Item 2: Evidence of rehabilitation from Odyssey House (incl brochure) dated 21 April 2020
Item 3: Psychological report – Dr Jacqui Yoxall dated 16 April 2020
Item 4: Support letter from A Boutros (close friend of the Applicant), dated 20 February 2020
Item 5: Support letter from D Bristowe (Grandmother of the Applicant), dated 20 February 2020
Item 6: Support letter from J Sutton (friend of the Applicant), dated 20 February 2020
Item 7: Support letter from M Bristowe (Grandfather of the Applicant), dated 20 February 2020
Item 8: Support letter from R Bristowe (Mother of the Applicant), dated 20 February 2020
1
7
0