Butko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2022] AATA 217

Butko and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 217 (10 January 2022)

Division:GENERAL DIVISION

File Number(s):      2021/7792

Re:Alen Butko

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Dr N A Manetta

Date:10 January 2022

Date of written reasons:        2 February 2022

Place:Adelaide

For the reasons given orally at the conclusion of the hearing of this matter, the Tribunal sets aside the decision under review and substitutes a decision that the cancellation of the applicant’s visa be revoked.

....................[Sgnd]......................

Senior Member Dr N A Manetta

MIGRATION – mandatory cancellation of applicant’s visa – substantial criminal record – primary considerations including interests of minor children – drug-related offences – on balance revocation of cancellation decision preferable decision on evidence adduced before Tribunal – decision under review set aside

LEGISLATION

Migration Act 1958 (Cth)

CASES

Rai and Minister for Immigration, Migrant Services, and Multicultural Affairs (Migration) [2021] AATA 2119

SECONDARY MATERIALS

Direction No 90 – Visa Refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 8 March 2021

REASONS FOR DECISION

Senior Member Dr N A Manetta

2 February 2022

1. Following delivery of my oral reasons on 10 January 2022, I received a request for written reasons. The reasons I gave on 10 January 2022 follow, with minor alterations only.

2. This is an application by Mr Alen Butko seeking a review of a decision of the respondent’s delegate dated 20 October 2021. By this decision the delegate declined to revoke the mandatory cancellation of Mr Butko’s visa, which had earlier taken place. The mandatory cancellation had been required under s 501 of the Migration Act 1958 (“the Act”), which I need not set out. It suffices to observe that the cancellation took place because Mr Butko had been sentenced to a term of imprisonment of at least 12 months, part of which he was required to serve on a full-time basis in a custodial institution: see s 501(3A).

3. I am satisfied that the mandatory cancellation of Mr Butko’s visa was appropriate, and the contrary was not submitted by either party. The only question for the delegate was whether there was “another reason” – that is, a reason other than Mr Butko satisfying the so-called “character test” – warranting the revocation of the cancellation: see s 501CA(4)(b)(ii). In deciding that there was no such “other reason”, the delegate exercised a discretion. The exercise of the discretion was informed and guided by Direction No 90, issued under s 499 of the Act[1].

   [1] “Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA”.

   TRIBUNAL’S TASK

4. Hearing the matter afresh on the evidence adduced before me, I must also decide whether there is another reason justifying the revocation of the cancellation. In this sort of case, the Tribunal conducts what is known as a de novo hearing on the merits. This means that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me; equally, I may set aside the decision under review notwithstanding the absence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me. At the hearing before me, Dr Haines appeared for Mr Butko; Mr Ellison, for the respondent. I am grateful for their assistance.

   STATEMENT OF CONCLUSION

5. I have decided to set aside the decision under review and substitute a decision that the cancellation of Mr Butko’s visa be revoked. I now set out the background facts and the reasons for my conclusion.

   BACKGROUND FACTS

6. Mr Butko was born on 7 June 1982 in what was then Yugoslavia, and was, therefore, 39 years of age at the time of the hearing before me. He arrived in Australia in 2000, together with his parents, as a refugee following the extended civil war in that country. He is an only child.

7. Mr Butko completed Year 12 in South Australia. He has a work history commencing in 2003, first as a labourer (until 2005), then as a cabinetmaker (from 2005 to 2009), and finally as a painter (from 2012 to 2017). His life in war-torn Yugoslavia is referred to in the support letter written by his parents dated 20 July 2021 (which was in evidence before me[2]) and is also adverted to in certain sentencing remarks[3]. I accept that Mr Butko endured hardship as part of his experience of the civil strife in Yugoslavia, and no doubt he witnessed a great deal of suffering.

   [2] Ex R1, at p 82.

   [3] Ibid, at p 43.

8. When war broke out, the family was forced to leave Croatia and seek temporary refuge in Serbia. The parents’ letter refers to 5 years of war and the family having to live in different places “quite often”. There is also a reference, which I accept, to Mr Butko only having the basic necessities of life in this period. Mr Butko’s maternal uncle and grandmother died during this time. The letter refers to the parents’ belief that the hardship in Yugoslavia left “scars” on their son. I accept that observation.

9. I accept also that when the parents came to Australia they suffered from post-traumatic stress disorder and continue today to receive psychiatric treatment. These facts are also referred to in their support letter. I accept also the submission in the letter that Mr Butko assisted his parents after they arrived in Australia and while he was a young man.

10. So far as Mr Butko’s present-day personal circumstances are concerned, he is partnered and has four children. His partner gave evidence on his behalf at the hearing and wrote a letter in support[4]. It would appear two of the couple’s children are presently stranded in Thailand with Mr Butko’s mother-in-law because there are insufficient funds to bring them back to Australia.

    [4] Ex R1, pp 83-84.

11. I turn now to consider Mr Butko’s criminal convictions. It is an undoubted fact that Mr Butko began to offend soon after his arrival in Australia. In these reasons I intend to canvass only in brief terms the more minor offending, but I record that I have considered all of Mr Butko’s offending, which is set out at pp 39-40 of Exhibit R1.

12. The first set of offences, for larceny, all date from 2002, but none resulted in a conviction. This tends to indicate that the offences were of a minor nature only. Nevertheless, the offending was somewhat persistent even at this early stage.

13. I would note here that I accept that from a young age, Mr Butko had drug and alcohol dependence issues that influenced his behaviour from about this time. After the initial offending, there was a break, until 2006, when there was an estreatment of bail and relatively minor offending involving excessive speed.  In 2007, Mr Butko was again convicted and fined for providing false information or documents to a second-hand dealer and dishonestly taking property without consent. Pausing here, I note that from 2002 to 2007, Mr Butko had appeared before the Courts on a number of occasions although none of them had resulted in a sentence of imprisonment, and there was a period where he was of good behaviour.

14. In 2009, however, Mr Butko was convicted in the District Court of South Australia of the very serious offence of possessing an illicit drug for sale. He was sentenced to four years six months’ gaol with a non-parole period of two years[5]. The sentence was suspended. For a period of some five years thereafter, there is no recorded conviction against Mr Butko’s name. In 2014, however, there are two convictions involving motor vehicles. These resulted in convictions and fines only. In 2017, he was found guilty of relabelling merchandise so as to obtain the goods fraudulently at a cheaper price, which resulted in a conviction and fine. In 2018, there are a number of offences involving possession of illicit drugs, one of which involved a finding of guilt without conviction, while the others involved a conviction but a discharge without penalty.

    [5] The sentencing remarks appear at Ex R1, at pp 41ff.

15. In 2018, Mr Butko was convicted of unlawful possession and was sentenced to six months’ imprisonment with a suspended sentence. He was also sentenced to six months’ imprisonment, suspended, in relation to a number of offences involving interference with a motor vehicle, dishonestly taking property without consent, being unlawfully on premises, making off without payment, deception, possessing housebreaking implements, driving under disqualification or suspension and use or possession of a prohibited weapon as well as unlawful possession and failure to comply with a bail agreement. It may be noted that these sentences reflect serious offending and involve prison terms although they were suspended in the event.

16. Of some concern is that Mr Butko had by now had leniency (in the form of suspended sentences) repeatedly shown to him, but without this leniency leading to any fundamental change in behaviour.

17. On 11 January 2021, Mr Butko was convicted of a number of offences involving possession of drugs, deception, dishonesty, and failing to comply with the bail agreement which led to convictions. The sentences are set out in the sentencing remarks[6]. On that occasion the bond which Mr Butko had earlier entered in relation to the 2018 offences was estreated, and he was required to serve that sentence. On 6 April 2021, Mr Butko was convicted of a further offence involving deception and was sentenced to one month and thirteen days in prison.

    [6] Ex R1, at p 48.

18. I also accept that Mr Butko has been guilty of domestic violence in his relationship, and I accept the police report that was in evidence before me referring to the factual aspects of the event in 2013.[7] I accept Mr Ellison’s observation that it appears to be an isolated, or at least relatively isolated, incident, and it is some years old; but it was nevertheless a very serious one as it involved an assault and a significant threat to his partner’s welfare. I do not accept any of Mr Butko’s denials or qualifications about factual aspects of the event.

    [7] Ex R2, at p. 520.

19. I accept also that Mr Butko has lied on incoming passenger cards about his past convictions[8]. I found his denials before me of an intention to deceive unimpressive and self-serving.

    [8] Ex R1, at pp 98ff.

    DIRECTION 90

20. I turn now to apply Direction 90. In Rai and Minister for Immigration, Migrant Services, and Multicultural Affairs (Migration) [2021] AATA 2119, I set out the background to Direction 90 at [32]ff as follows:-

    “32. I first make some prefatory remarks about Direction 90. It is clear that the Direction is framed against the stated objective of the Act which is to regulate in the national interest the coming into and presence in Australia of noncitizens: see paragraph 5.1(1). The decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case in deciding whether to exercise the discretion to revoke the cancellation decision. The explicit purpose of the Direction is to guide decision-makers in performing their discretionary functions under the Act: see paragraph 5.1(4).

    33.  I have considered the principles that appear under paragraph 5.2 of the Direction. These principles provide the framework within which decision-makers should approach their task. These principles are set out against paragraphs numbered (1) to (5). I set out some of the salient features of these principles without setting them out in exhaustive detail.

    34.  First, remaining in Australia is a privilege conferred on noncitizens in the expectation that they are law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Secondly, noncitizens who engage in criminal or other serious misconduct should expect to forfeit the privilege of remaining in Australia. Thirdly, the Australian community expects that the Australian Government should cancel visas where noncitizens have engaged in conduct that raises serious character concerns. This expectation arises regardless of whether the noncitizen poses a measurable risk of causing physical harm to the Australian community. Fourthly, Australia has a low tolerance of any criminal or other serious conduct by noncitizens who have been participating in and contributing to Australia for a short period of time only. A higher level of tolerance of criminal or other serious misconduct is extended to those who have lived in Australia for most of their life or from a very young age. Fifthly, the nature of the noncitizen’s conduct and the harm that would be caused if the conduct were to be repeated may be so serious that even strong countervailing considerations may prove insufficient to revoke a mandatory cancellation. In particular, I note that the inherent nature of certain conduct such as family violence or conduct mentioned in paragraph 8.4 (2) is so serious that even strong countervailing considerations may be insufficient in some circumstances to warrant revoking a mandatory cancellation even if the noncitizen does not pose a measurable risk of causing harm to the Australian community.

    35.  I have had regard to these principles and accept them as the framework within which I must approach my task of deciding whether to revoke the mandatory cancellation of Mr Rai’s visa.

    36.  Informed by these principles, I am required under Part 2 of the Direction to take into account the considerations identified in sections 8 and 9. I add here that section 7 directs me to give appropriate weight to information and evidence from independent and authoritative sources. Section 7 also directs me to give greater weight ‘generally’ to primary considerations over other considerations.”

    Primary Considerations

21. There are a number of primary considerations to which I must have regard. The first is the protection of the Australian community from criminal or other serious conduct. I bear steadily in mind what appears in paragraph 8.1(1) about the significance of the Government’s commitment to protecting the Australian community.

22. I must give consideration to the nature and seriousness of the noncitizen’s conduct. In considering the nature and seriousness of Mr Butko’s conduct I must have regard to the matters listed in paragraphs (a) to (g) of paragraph 8.1.1(1). I do so. I accept that any behaviour involving domestic violence is very serious and must be treated as such, whether or not it had led to criminal proceedings. I accept that Mr Butko’s violence extended to his female partner. I am prepared to accept Mr Ellison’s observation in his oral submissions that it appears to be a relatively isolated incident that took place some years ago, but it is nevertheless a serious one.

23. I accept that Mr Butko’s offending has been persistent since his arrival in Australia or soon thereafter. It has been frequent and has escalated. Leniency has been extended to him on a number of occasions in the form of suspended sentences.

24. I have considered carefully the two sets of sentencing remarks[9] and accept the statements of the offending and of the background to the offending therein given. I shall not recapitulate or summarise the remarks.  I accept the observation in the 2009 remarks of an untreated post-traumatic stress disorder concerning Mr Butko’s experience of the civil war in Yugoslavia. I note also the reference in the remarks from 2021 to a “voracious drug habit”[10] that was linked to the commission of the crimes under consideration on that occasion. There was, however, an acceptance by the Court on that same occasion that Mr Butko genuinely wanted to overcome his drug addiction.

    [9] Ex R1 at pp 41-45 and 46-49.

    [10] Ibid, at p 47.

25. So far as the nature and seriousness of Mr Butko’s conduct are concerned, I have considered and taken into account the sentences that have been imposed. I have also taken into account what I consider to be a persistent and strongly anti-social aspect to Mr Butko’s offending.

26. The fact that the offending has been prompted by, or linked to, a serious drug habit is of real concern.

27. I must also have regard to the risk to the Australian community should Mr Butko reoffend or engage in other serious conduct. I accept and follow what appears in para 8.1.2(1) of the Direction. I must have regard, “cumulatively”, to the nature of harm to individuals and the Australian community should Mr Butko commit further offences or engage in other serious misconduct and the likelihood of his so doing taking into account information and evidence on the risk of reoffending and the evidence of rehabilitation achieved by the time of the decision.

28. I accept that the nature of harm to the community is serious in this case. There is still a risk to Mr Butko’s partner’s safety although I accept that the serious incident involving the assault and threat occurred some years ago. I accept also that Mr Butko’s offending has been persistent and seriously antisocial. His possession of drugs, and past dependence on them, are very concerning features of the offending. It is well appreciated that drug-related crime poses a pressing problem in Australian society. I accept what his Honour Magistrate Wells said when he referred to the heavy use by Mr Butko of methylamphetamine[11]. I accept that if Mr Butko were to return to methylampetamine use, the consequences to the Australian community could be very serious indeed, and to some extent dangerously unpredictable, as this drug is notorious for altering behaviours and evoking quite strongly antisocial behaviour.

    [11] Ex R1, at pp 46ff.

29. The risk of Mr Butko reoffending is not easy to assess. I do accept that Mr Butko has been deprived of his liberty since 24 September 2020, which marks a period of one and a quarter years approximately. This time represents the first extended period during which he has been deprived of his liberty.  It will have had an impressive effect upon him, and I believe it is appropriate to proceed on the basis that this experience will have had both some rehabilitative effect and a deterrent effect. There is no evidence before me that Mr Butko has misused drugs while detained although Mr Butko candidly observed that drugs are readily available. 

30. I also accept that what I have called in other cases the reality of the end of one’s life in Australia is made very real for a deportee by the decision to cancel a visa, with this Tribunal’s decision being the last opportunity for a reconsideration of the case on the merits. Mr Butko will be in no doubt that this is his last chance to lead a law-abiding life in Australia: further offending will see the imposition of longer gaol terms and his deportation.

31. I believe that the prospect of the cancellation of his visa and subsequent removal from Australia is a very real deterrent for Mr Butko. I accept that he now genuinely wishes to be an appropriate father to his four children, although he has failed in that task in the past. I accept also that Mr Butko is attached to his parents and might well be an important support to them in the future as they age. 

32. I do not believe, however, that Mr Butko yet appreciates fully the impact of his offending. He seemed to downplay some of his offending as petty or trivial before me when it was, judged overall, seriously antisocial. At points in his evidence to me, Mr Butko discounted or denied the charges that were found proven against him, and he minimised the extent of the violence he inflicted upon his wife. I do not accept, therefore, that he feels at this point genuine remorse for what he has done, in the sense of moral insight into the harmfulness of his behaviour; but I do accept that he will be genuinely deterred from further offences. 

33. I believe that the risk of his offending in the future is linked directly to any resumption of his former drug habit. I accept that Mr Butko would live with his parents on release into the community and has very good prospects of securing immediate employment (in accordance with the evidence given by Mr Ali). Mr Butko has not yet properly engaged in rehabilitative courses, which he will need to undertake to gain additional insight into his offending. There is also an untreated post-traumatic stress disorder he will also need to address if he is to minimise the chances of reoffending. 

1. All in all, I estimate the risk of recidivism to be somewhere between low and medium, and I bear in mind that under the Direction this assessment is to be considered “cumulatively” upon the nature and seriousness of the harm.

2. I must consider instances of family violence. I note the Government’s clear concerns expressed in para 8.2(1).  I regard the one event of physical violence explored in evidence before me as very serious in that it involved a direct assault upon Mr Butko’s female partner, which was accompanied by a serious threat. I do note, however, that it appears to be an isolated, or at least a relatively isolated, event: at least it was not put to me by the respondent that family violence was a frequent feature of the relationship.

3. I accept that the interests of Mr Butko’s children favour revocation of the cancellation decision. One of the children suffers from ADHD and the evidence from Mr Butko’s partner is that she wishes Mr Butko to remain in Australia to assist her in their upbringing both as a father and also financially[12]. I accept that Mr Butko’s partner does already fulfil a parental role as the children’s mother; but I also note two of the children are unable to return from Thailand (at least partly because of financial reasons). Mr Butko will assist in earning money to fund their return to Australia and to assist in the upbringing of all children, although I accept that he has court-ordered debts to meet as well. 

   [12] Ex R1, at pp 83-4.

4. I do take into account, however, that there is a risk of recidivism, as I have identified, and any return to drug dependency will impact the children adversely by creating a chaotic family household. Overall, however, I believe the children’s interests do favour Mr Butko’s remaining in Australia.

5. So far as the expectations of the Australian community are concerned, these are set out in paragraph 8.4. I note the explicit reference to family violence and also the reference to the expectations of the community applying irrespective of whether the non-citizen poses a measurable risk of causing physical harm in the community. 

6. I note further that this consideration does not require me to estimate for myself what the community’s expectations might be, but rather to accept that they are encapsulated in the Direction itself. These considerations clearly count against Mr Butko.

   Other considerations

7. I must have regard to other considerations, which, as I have observed, should, generally speaking, receive lesser weight than primary considerations. There is a non-exhaustive list of four such considerations given in the Direction at para 9(1).

8. I do not believe non-refoulement considerations arise.  I believe there Mr Butko would experience some impediments initially on his return, but they would not be prolonged or necessarily substantial given his background.  I have no evidence before me of the impact of Mr Butko’s behaviour on his victims (other than his partner).

9. So far as Mr Butko’s partner is concerned, I have already referred to the fact that she would be prejudiced by his lack of support if he left, but that she also runs the risk of being partnered to a recidivist with all the difficulties that would entail for her if Mr Butko relapsed into unlawful drug-taking and criminal behaviour. I accept overall, however, that Mr Butko’s partner’s interests favour his remaining in Australia as a support to her, although I am somewhat guarded in this view given the earlier episode of family violence and the potential for recidivism to which a resumption of drug-taking would inevitably lead.

10. I accept that Mr Butko’s parents’ interests favour revocation of the cancellation decision.  He is an only son, and although the relationship between father and son appears to have been strained in the past, I believe I should proceed on the basis that the loss of effective one-on-one contact with their son would be a considerable blow to both parents (perhaps more so to the mother); and there will be a loss of support which they may feel in the future as they age. 

11. There are no business interests to consider.

12. I accept also that Mr Butko himself has an interest in maintaining positive relationships with his children and parents and that these relationships are of real importance to him.

    WEIGHING OF DISCRETIONARY CONSIDERATIONS

13. In weighing the discretionary considerations in this case as required by the Direction, Mr Butko’s strongly anti-social and serious offending, induced by a persistent drug habit, as well as the pronged period of offending commencing soon after arrival, loom large as matters of very real concern (amongst other factors, including family violence). Community expectations clearly favour affirming the decision under review.

14. I do believe, however, that the interests of the minor children are quite substantial in this case. Children are very often innocent victims in dysfunctional families. Absent parents can impact a child’s development substantially, even where there is another loving parent involved in their upbringing as is the case here. I accept that if Mr Butko were to reoffend, the children’s interests would favour his deportation now; but overall, at this point, I believe there are grounds for cautious optimism that a productive and happy family life for the children can be salvaged from the wreckage of Mr Butko’s past offending given the strong deterrent effects to which I have referred earlier in these reasons.  I accept also that there has now been quite some time where Mr Butko has not used drugs, and so his physical dependence on them has been broken, which is a positive start, although he will need to undertake further rehabilitation (as recovery from drug dependence is a complex matter). When I add in Mr Butko’s parents’ interests and the interests of Mr Butko’s partner, I believe the factors favouring revocation of the visa-cancellation decision do outweigh in this particular case the factors, admittedly strong, in favour of affirming the decision under review. This has been very much a decision on balance, but it is the one I believe I ought to reach in this de novo reconsideration of all relevant evidence.

    FORMAL DECISION

15. To return to the relevant statutory criterion, I am satisfied that there is “another reason” for revoking the cancellation decision under s 501CA(4)(b)(ii); and, being so satisfied, I shall set aside the decision under review and substitute a decision that the cancellation of Mr Butko’s visa be revoked[13].                 

    [13] A formal decision to this effect was drawn up, signed, and forwarded to the parties in the course of 10 January 2022.

I certify that the preceding forty-eight [48] paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr N A Manetta.

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Legal Administrative Assistant

Dated:   2 February 2022  

Dates of hearing:  22 & 23 December 2021

Advocate for the Applicant:  Timothy Haines, EMULINK MIGRATION & INTERCULTURAL CONSULTANCIES

Advocate for the Respondent:  Tom Ellison, AUSTRALIAN GOVERNMENT SOLICITOR