Carter and Minister for Home Affairs (Migration)
[2019] AATA 242
•27 February 2019
Carter and Minister for Home Affairs (Migration) [2019] AATA 242 (27 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7421
Re:David Carter
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy OAM QC, Deputy President
Date:27 February 2019
Place:Sydney
The decision under review is affirmed.
..........................[sgd]...........................................................
The Hon. Dennis Cowdroy OAM QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – substantial criminal record – Direction No. 65 – best interests of minor children – other considerations – strength, nature and duration of ties to Australia – impact on family members – extent of impediments if removed – impact on victims – protection of Australian community – expectations of Australian community – unacceptable risk of harm – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 501, 501CA
CASES
Ahori and Minister for Immigration and Border Protection [2017] AATA 601
Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728
DND and Minister for Home Affairs (Migration) [2018] AATA 2716
Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562
Secretary to the Department of Justice and Regulation v LLF [2018) VSCA 155YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy OAM QC, Deputy President
27 February 2019
The applicant seeks review of a decision made by a delegate of the Minister dated 12th of December 2018. Such decision found that the applicant did not pass the character test as defined in section 501 of the Migration Act 1958 (Cth) (the Act) and represented an unacceptable risk of harm to the Australian community. The delegate considered whether there was another reason why the mandatory visa cancellation should be revoked under section 501CA(4)(b)(ii), but found that the protection of the Australian community outweighed the best interest of his child as a primary consideration and other countervailing considerations. Accordingly the delegate determined not to revoke the mandatory cancellation of the applicant’s Class BF transitional visa (“the visa”). The mandatory cancellation took effect on 16 June 2017.
FACTS
The applicant was born in the United Kingdom in November 1973. He is now 45 years of age. The applicant entered Australia as a child in April 1978 accompanied by his mother, father and brothers. The applicant attended primary and secondary schools in Australia. The applicant has had three relationships with partners during his lifetime. The applicant has a 21 year old daughter, an 18 year old son, and a 16 year old daughter living in Australia. His mother and two of his brothers reside in Australia and the applicant has several nieces and nephews living in Australia.
The applicant has an extensive criminal record. The National Police Certificate (NPC) records the offences of which the applicant has been convicted. A summary of the offences and the dates of the offences is as follows:
Date Offences of which the applicant was convicted Sentence imposed 02.03.2018 - Released from custody (into immigration detention) In custody 10.06.2015 to 02.03.2018 (32 months and 21 days) 12.04.2016
Assault occasioning actual bodily harm, domestic violence
Taken into account for 5 year, 4 month sentence of imprisonment for aggravated break and enter charge
08.04.2016
Common assault, domestic violence
Conviction, no penalty
Armed with intent to commit indictable offence
Taken into account for 5 year, 4 month sentence of imprisonment for aggravated break and enter charge
Destroy or damage property less than $2,000
Taken into account for 5 year, 4 month sentence of imprisonment for aggravated break and enter charge
Common assault, domestic violence
Taken into account for 5 year, 4 month sentence of imprisonment for aggravated break and enter charge
Aggravated break and enter, serious indictable offence
Imprisonment 5 years and 4 months, non parole period of 2 years and 10 months
13.10.2015
Contravene AVO
Fined $800
In custody 03.12.2013 to 31.07.2014 (7 months and 29 days) 04.02.2014
Possess/attempt to prescribe restricted substance
Imprisonment 1 month
2 counts, goods in personal custody suspected of being stolen
Imprisonment 2 months
2 counts, goods in personal custody suspected of being stolen
Imprisonment 3 months
Goods in personal custody suspected of being stolen
5 months imprisonment
Custody of knife in public place
Imprisonment 4 months
Possess housebreaking implements
Imprisonment 12 months, 6 month non parole period
Fail to appear in accordance with bail
Conviction, no penalty
Rider not wear approved bicycle helmet
Conviction, no penalty
2 counts possess prohibited drug
2 months imprisonment
Possess prohibited drug
3 months imprisonment
29.07.2013
Never licenced person drive vehicle on road (2nd offence)
Bond (12 months); amended to disqualification 3 years following breach of bond on 04.02.2014
Possess or use a prohibited weapon
Bond (12 months)
Drive unregistered vehicle on road
Conviction, no penalty
Possess prohibited drug
Bond (12 months)
Never licenced person drive vehicle on road (1st offence)
Conviction, no penalty
03.07.2013
Never licenced person drive vehicle on road
Fined $500
Uninsured motor vehicle
Fined $500
Unregistered motor vehicle
Fined $500
24.04.2013
Possess prohibited drug
Fined $500
10.05.2011
3 counts, goods suspected stolen
6 months imprisonment to be served by way of an intensive corrections order
Possess/attempt to prescribe restricted substance
Conviction, no penalty
2 counts, possess prohibited drug
Conviction, no penalty
Use concession ticket when not entitled
Conviction, no penalty
19.08.2009
Goods in personal custody suspected of being stolen
Imprisonment 4 months, suspended on entry to 6 month bond
18.08.2009
and 10.05.2011
Possess housebreaking implements
Imprisonment 6 months, suspended on entry to 6 month bond (converted to 6 months imprisonment to be served by way of an intensive corrections order due to breach of bond on 10.05.2011)
Formal Counselling letter received 7 May 2008 In custody 06.02.2008 to 04.06.2008 (3 months and 30 days) 08.02.2008
Shoplifting, value less than
$2,000
Imprisonment 4 months
Goods in personal custody suspected being stolen
Imprisonment 4 months
01.09.2006
Make/furnish a statement which is false/misleading
Fined $100
2 counts, possess prohibited drug
Imprisonment 4 months, suspended on entering a bond for 4 months and attending any programs/counselling deemed appropriate by probation and parole
Goods in personal custody suspected of being stolen
Imprisonment 4 months, suspended on entering a bond for 4 months and attending any programs/counselling deemed appropriate by probation and parole
07.07.2006
and 01.09.2006
(appeal)
Common assault
Imprisonment 8 months, non-parole period of 6 months overturned on appeal. New sentence on appeal, imprisonment 8 months suspended, bond for 8 months, required to continue with treatment and remain under rehabilitation processes undertaken within justice health system; attend drug and alcohol rehabilitation.
20.02.2006
Destroy or damage property (less than $2,000)
Bond (12 months), compensation of
$149.90
Stalk/intimidate with intent to cause fear physical/mental harm
Bond (12 months)
27.07.2005
Unlicensed driver/rider
Fined $1,000
In custody 09.07.2001 to 08.10.2003 (27 months) 08.11.2001
Robbery armed with offensive weapon
Imprisonment 4 years and 3 months, non-parole period 2 years and 3 months
07.06.2000
Enter inclosed land without lawful excuse
Fined $400
In custody 07.10.1998 to 12.11.1999 (13 months and 6 days) 04.03.1999
Unregistered vehicle
Fined $350
Uninsured vehicle
Fined $350
Disqualified driver
Periodic detention 6 months. Disqualification concluding 12.11.2001
10.02.1998
2 counts, driving while disqualified from holding licence
Fine $500 one count; Recognisance ($1,000) one count. Disqualified 6 months
12.11.1997
2 counts, drive vehicle which is unregistered
Fined $300
Exceed speed limit
Fined $300
Driver state false name
Fined $300; disqualified 12 months
Driver never held licence (2nd offence) with intent
Fined $300; disqualified 12 months
Use uninsured motor vehicle on road
Fined $300
Drive without licence on road
Fined $300
Drive unregistered vehicle with number plates to deceive
Fined $300; disqualified 12 months
13.05.1997
Attempt to steal from motor vehicle
Fined $300, compensation $90
Carry implements used to enter conveyance
Recognisance ($1,000) and required to attend drug and alcohol counselling
20.12.1996
Breach domestic violence order
Recognisance ($500)
Malicious damage
Recognisance ($500)
06.12.1996
Assault
Community service order, 150 hours
2 counts, malicious damage
Recognisance ($1,000) each count.
2 counts, breach AVO
Community service order, 150 hours (cumulative) each count
Breach AVO
Recognisance ($1,000)
Unlawful entry
Fined $300
27.11.1996
Drive with plates calculated to deceive
Fined $400
Driving unregistered
Fined $400
Driving uninsured
Fined $400
Unlicensed driver
Fined $200
24.9.1996
Unlicensed driver
Fined $500
Driving unregistered
Fined $350
Driving uninsured
Fined $350
Plates calculated to deceived
Fined $300
In custody 20.04.1993 to 14.01.1994 (8 months and 25 days) 15.04.1993
Robbery whilst armed and in company
Imprisonment Minimum term 9 months, additional term 2 months
The offences of which the applicant has been convicted are serious. On 16 June 2017 the Department of Home Affairs (“the Department”) mandatorily cancelled the applicant’s visa pursuant to section 501(3A) of the Act, because the applicant, in view of his substantial criminal record, did not pass the character test as defined in section 501(6)(a) of the Act and was serving a full-time custodial sentence. On 12 December 2018 a delegate of the Minister decided not to revoke the original decision to cancel a visa under section 501(CA)(4) of the Act. It is from this decision that the applicant seeks review.
DIRECTION 65
Direction 65, made pursuant to section 499 of the Act provides guidance to decision-makers in assessing the exercise of powers under section 501 of the Act. As provided by clause 6.2, the first consideration under the heading of “General Guidance”, is the protection of the Australian community from harm “as a result of criminal activity or other serious conduct by non-citizens”.
Under the heading “Principles”, it is stated in clause 6.3(1) that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. It continues:
“Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community”.
The Principles confirm that a non-citizen who has committed a serious crime can generally be expected to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia and that, in some circumstances, criminal offending or other conduct, and “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”.
The principles also state that Australia has a low tolerance of any “criminal or other serious conduct”. And 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 should be allowed to come to, or remain permanently in, Australia”.
It is mandatory that decision-makers take into account the Primary and Other Considerations relevant to the individual case. The Primary Considerations are the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community: see Part C of the Direction. Pursuant to clause 13.1.1, the nature and seriousness of the conduct is to be considered including sentences imposed by the courts and the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.
In Part C of the Direction it is reiterated that there is to be a low tolerance for non-citizens who have previously engaged in criminal or other serious conduct and the decision-maker is required to give consideration to the nature and seriousness of the non-citizen’s conduct to date; and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct: see clause 13.1(2)(a) and (b). In assessing the nature and seriousness of the conduct, the Tribunal must consider, inter alia, “the cumulative effect of repeated offending”: see clause 13.1.1(1)(e).
Clause 13.3 makes provision for consideration of the expectations of the Australian Community. Clause 13.3(1) provides inter alia:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person”.
Direction 65 is made under section 499 of the Act and is a guide for decision makers in respect of the exercise of discretion under section 501 of the Act. The Direction does not dictate the manner in which the discretion is to be exercised, but instead creates a framework within which the discretion vested in the decision maker is to be lawfully exercised: see Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141; (2014) 227 FCR 562, Perry J at [80]. See also DND and Minister for Home Affairs (Migration) [2018] AATA 2716 at [82].
It is also established that the Australian Community “expects” non-revocation of a decision to cancel where the subject person has been convicted of serious crimes: see YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
In applying the Direction, the decision maker must have regard to clause 6.2, general guidance, which reaffirms 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.
Part C relates specifically to revocation of a mandatory visa cancellation. In particular, clause 13.1.1 refers to the very serious view that is taken of non-citizens who commit violent and/or sexual crimes. Specifically, where there is repeated offending, the cumulative effect must be taken into consideration: see clause 13.1.1(1)(e). Sentences of imprisonment imposed by courts for a crime or crimes is also to be considered in viewing the seriousness of conduct: see clause 13.1.1(1)(c).
Section 501(3A) states that the Minister must cancel a visa which had been granted to a person if: (a) the Minister is satisfied that the person does not pass the character test; and (b) the person is serving a sentence of imprisonment on a full-time basis.
The character test is set out in section 501(6) of the Act and includes matters relevant to the current application. Namely, a person has a substantial criminal record (as defined by subsection 7 thereof). Section 501(7) provides that a person has a “substantial criminal record” if:
“The person has been sentenced to a term of imprisonment of 12 months or more”.
APPLICATION OF PRINCIPLES
Principle 6.3 of Direction 65, states, inter alia,
“(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to 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. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age”.
The offences which have resulted in jail sentences from the applicant’s conduct have been especially serious. The list includes common assault, breaching an apprehended violence order, malicious damage, maliciously setting fire to motor vehicle, breach of a domestic violence order, robbery armed with offensive weapon (on two separate occasions), stalk/intimidate with intent to cause physical harm, possessing prohibited drugs, having goods suspected of being stolen in his possession (more than six offences), having custody of a knife in a public place, armed with intent to commit indictable offence and assault occasioning actual bodily harm.
On Friday, 8 April 2016 the applicant pleaded guilty to breaking and entering a dwelling, knowing a person was inside the dwelling and assaulting a female. The applicant was sentenced to a term of imprisonment of five years and four months with a non-parole period of two years and 10 months.
On 8 November 2001 the applicant pleaded guilty to armed robbery committed on 26 June 2001. The offence related to the applicant entering a neighbourhood store and threatening a female shop assistant with a long bladed knife while the applicant demanded money from the cash register. For this offence the applicant was imprisoned for four years and three months with a non-parole period of two years and three months.
The applicant does not challenge any of the convictions, nor does he seek to dispute the essential facts upon which the convictions are based: no challenge can be made to the convictions or sentence, nor to the essential facts on which they were based: see Secretary to the Department of Justice and Regulation v LLF [2018) VSCA 155. One of the longest sentences of imprisonment imposed upon the applicant was a period of four years and three months arising out of his robbery of a convenience store. In the sentencing remarks of Judge Sides delivered on 8 November 2001 in the District Court Of New South Wales Criminal Jurisdiction her Honour stated the critical events as follows:
“After he entered the store he produced a long bladed knife, pointed it at the female shop assistant and demanded that she open the cash register. The owner of the store and his wife were in the rear of the premises. The owner came to investigate. When he did so the Offender demanded that he give him money. The owner feared for his own safety and did as he requested. He opened the cash register and removed the notes from it. The Offender demanded the fifties from the till. When the owner informed him that there wasn’t any the Offender reached over and tried to remove the cash register. However, it was secured to the counter. He then took a coin tray from the cash register, and left.
At the time of this offence he was wearing a top with a hood and sunglasses. Nonetheless a substantial portion of his face was still visible”.
On Friday, 8 April 2016 Acting Judge Marien in the District Court of New South Wales Criminal Jurisdiction sentenced the applicant in respect of his break and enter into a dwelling of a former partner and her assault by the applicant to a sentence of five years and four months imprisonment with a non-parole period of two years and 10 months commencing on 23rd of July 2015 and expiring on 22 May 2018. The sentencing remarks of the trial judge record violent incidents between the applicant and his former partner on 22nd of January 2015, 16 February 2015, and on 17th of February 2015 during which the victim was intimidated by the applicant holding a steak knife, and one occasion where a telephone was thrown at her. The victim was also punched and scratched. His Honour stated:
“Those facts clearly disclose the commission of a number of very serious offences by the offender. The courts have made it abundantly clear that in sentencing for offences of this kind particularly involving domestic violence offences, specific and general deterrence assume particular importance as does the necessity that the sentence imposed be both protective of the community and a powerful denunciation by it of the offender’s conduct, see R v Hamid [2006] NSWCCA 302 at [65] – [88] and Shaw v R [2008] NSWCCA 58 at 24”.
Offences relating to domestic violence are treated seriously by the courts: see Ahori and Minister for Immigration and Border Protection [2017] AATA 601 at [53]; Leau and Minister for Immigration and Border Protection (Migration) [2017] AATA 918 at [48]; Divane and Minister for Immigration and Border Protection (Migration) [2016] AATA 728 at [57].
In addition to the events of domestic violence, the applicant has committed numerous other offences as set out in his criminal record against strangers. The applicant does not pass the character test contained in section 506(1) of the Act. Accordingly the Tribunal must consider whether there is another reason why the cancellation of the applicant’s visa should be revoked (section 501CA(4)(b)(ii)) and so now addresses the considerations referred to in Direction 65.
Primary Consideration – Best interests of minor children
Direction 65 requires decision-makers to have regard to the question of whether revocation of a visa cancellation is in the best interest of any child: see clause 13.2(1); or where there is more than one child, the best interests of each child is to be given individual consideration: clause 13.2(3). The particular matters to be considered are set out in clause 13.2(4).
The applicant has a daughter, TL, born in September 2002, whilst the applicant was in custody. Her mother is N. The applicant had a relationship with N over a number of years and it has now concluded. The applicant has lived with TL for eight years and states that he had been in contact with her all his life. The applicant has provided child support for TL (until he was detained), who resided for an unspecified period with her grandmother. TL is now living with her stepsister and her husband. TL provided oral evidence to the Tribunal as well as a written letter. The evidence suggests that TL has spent some time in an institution. She will achieve 18 years of age in September 2020.
TL displayed affection for her father and stated that she had visited him three times whilst he was detained in Villawood Detention Centre. TL suffers from depression and is in receipt of medication for such condition. She pleaded for the applicant to remain in Australia, stating that she relied greatly upon him for support. However her stepsister, ALB, is able to provide support for TL if the applicant is removed from Australia. It seems that ALB, whose age is 37, is already providing support as a parent in relation to TL and is acting in a parental role to TL.
It seems that the applicant also has several nieces and nephews, being children of his brothers. No evidence exists concerning them, nor whether the applicant has any relationship with them.
The Tribunal considers that it would be in the best interest of TL for the mandatory visa cancellation to be revoked so that she can have a continuing relationship with the applicant.
Other consideration – Strength, nature and duration of ties
The applicant has resided in Australia since his arrival in this country. The applicant attended primary school and high school to year nine. He held employment in Australia as a diesel mechanic’s assistant in his father’s business. That business consisted of a mobile servicing unit for diesel engines. The applicant also worked as a forklift driver between 2011 and 2012; as a labourer from 2010 to 2012, and again as a labourer from 2005 to 2010.
Impact on family members
The applicant has adult children residing in Australia. TJ, at 21 years of age, is his eldest daughter. TJ provided both oral and written evidence to the Tribunal.
The applicant has a son, DJ, who is now 18 years of age. His mother is N. DJ left school at the beginning of year 10. The evidence establishes that in 2006 an Apprehended Violence Order was obtained on the application of the NSW Department of Youth and Community Services against the applicant to protect N and her children (TL and DJ). DJ suffers from learning difficulties and has not been employed in the five years since he left school. DJ is unable to read or write. He lives with his stepsister, ALB. The evidence concerning his relationship with the applicant is negligible and it is not possible to determine the support, if any, which the applicant has ever provided to DJ.
The applicant has an adult daughter, ALB, who is aged 37 years. She is a stepsister to TL and to DJ. ALB has a strong relationship with her father, although his incarceration has made it difficult to maintain personal contact. ALB was an impressive witness, who clearly would be able to provide moral and other support for her stepbrother and stepsister.
The applicant has two brothers who reside in Australia. The evidence establishes that he has had no contact with his brothers at least in recent years although a younger brother, S, indicated that he would provide oral evidence. When the Tribunal attempted to contact S to take his evidence, no response was received.
The applicant’s mother and cousin reside in Australia. There is no evidence concerning any degree of communication between the applicant and his mother. She provided a written reference. Other evidence suggested that the applicant and his mother had had no contact for many years. There is no evidence concerning the cousin.
The applicant has been in a relationship with Ms B for a period of approximately five years. The evidence establishes that Ms B has served some time and rehabilitation for drug addiction and that she has had fraud charges laid against her relating to the use of a credit card. The applicant referred to Ms B as his fiancé; however the last assault charge for which the applicant was convicted was against Ms B.
The applicant states that his mother would be adversely affected if he were removed from Australia. The applicant also states that his children would be placed under strain if he were removed from Australia.
The Tribunal accepts that there will be an emotional impact upon the members of the family if the applicant were removed from Australia in view of the length of time that he has resided in this country.
Community involvement
The applicant claims to have made a positive contribution to the community through gaining his bronze medallion, undertaking Duke of Edinburgh Award volunteer work and community service. He stated that he also regularly attended church and Sunday school and was involved in the club and Scout movements. No detail has been provided of such activities and it appears that they are essentially historical and occurred whilst he was a school student.
Other consideration – Impact on Australian business interests and non-refoulement
There is no evidence that there is any impact on Australian business interests if the applicant were to be removed from Australia. Further, the issue of non-refoulement is not relevant to the applicant.
Other considerations – Extent of impediments if removed & Impact on victims
The relocation of the applicant to the country of his birth would be disruptive to him. However there is no reason why he could not be assimilated if he were returned to the same country. There is evidence of the fact that he has held several jobs involving labouring or forklift driving. There are no social, medical or similar facilities which are not available to the applicant if he were removed from Australia. The applicant is of an age where he should be able to find employment, and the evidence shows that the National Health Service is available to all residents in the United Kingdom. Should he require mental health treatment or other medical treatment, it will be readily available to him. There is no substantial difference between the language and cultural background which he has enjoyed in Australia compared to that prevailing in the United Kingdom.
Pursuant to clause 14.4 of the Direction, the decision-maker must consider the impact not to revoke the mandatory cancellation on victims and victim’s family members. In respect of Ms B, if the cancellation were revoked, she could be again exposed to risk of harm by the applicant.
Primary considerations – Protection and Expectations of the Australian community
The Australian community expects that non-citizens will be law-abiding, as is stated in clause 13.3(1) of the Direction; see also the observations of Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
Part C of Direction 65 requires consideration of the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community. Clause 13.1(1), states, inter alia:
“Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community”.
Pursuant to clause 13.1.1, the nature and seriousness of the conduct engaged in by the applicant must be considered; subclause (1) provides:
“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:
(a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b) The principle that crimes committed against vulnerable members of the community (such as minors, 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…”.
Other considerations are set out in clause 13.1.1 such as the sentence imposed by the courts for a crime or crimes; the frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness; the cumulative effect of repeated offending; and whether the non-citizen has re-offended since being formally warned or otherwise been made aware of in writing about the consequences of further offending in terms of the non-citizen’s migration status.
Clause 13.3 of the Direction states the expectations of the Australian community as follows:
“(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect”.
Applicant’s Criminal History
The Tribunal observes the many years of criminal offending engaged in by the applicant and summarises much of it below. In the District Court in 1993 he was sentenced to imprisonment for nine months with an additional term of two months. In December 1996 he was ordered to complete community service for breaches of an apprehended violence order and assault. He was also placed on a good behaviour bond for further offences for breach of domestic violence orders and malicious damage.
In November 2001 the applicant was sentenced in the District Court to imprisonment for four years and three months, with a non-parole period of two years and three months for armed robbery. Members of the public, were victims of this crime.
In February 2006 he was placed under a section nine bond in the Local Court for stalk/intimidate and destroy/damage property convictions. In July 2006 the applicant was sentenced in the Local Court to imprisonment for eight months, with a non-parole period of six months for common assault. However on appeal the sentence was quashed and instead a bond was ordered conditional on the applicant continuing treatment in a rehabilitation process to attend drug or alcohol rehabilitation.
In September 2006 he was sentenced to four months imprisonment, suspended, for offences of possessing a prohibited drug and having goods in custody suspected of being stolen. He received further suspended sentences of four and six months imprisonment in August 2009 for possessing housebreaking implements and a further goods in custody offence.
In May 2011 he was called up for breach of the six month bond and sentenced to six months imprisonment to be served by way of intensive correction in the community. A further intensive correction order was made for three offences of goods in custody, each resulting in a sentence of imprisonment for six months but to be served by way of intensive correction in the community.
In February 2014 the applicant was sentenced in the Local Court for a number of offences including possession of a prescribed restricted substance, possess prohibited drug, goods in custody and possess housebreaking implements. The applicant was sentenced to full-time custody for such offences, the longest of which was 12 months imprisonment, with a non-parole period that expired on 30 July 2014.
The applicant was arrested on 27 February 2015 and on 10 June 2015. He was found to have committed the offence of contravening an apprehended violence order and on 13 October 2015 was fined $800.
The applicant claims that his offences have resulted from mental health issues such as bipolar disorder, anxiety, depression. The applicant has a history of consuming prohibited drugs namely ice before committing some of the offences.
Psychological evidence
In the sentencing remarks of Judge Sides delivered on 8 November 2001, her Honour referred to a psychologist, Dr Lennings who had conducted an assessment of the offender. Dr Lennings stated relevantly as follows:
“It is likely that his main diagnosis is that of a severe and prolonged adjustment disorder. The interpretation in Mr Carter’s profile is that he reveals a characteristically dysfunctional personality, that his personality is unlikely to moderate in the short or medium term unless he receives considerable and long-term therapeutic input”.
Dr Lennings continued:
“Mr Carter is a young man of good intellectual ability and shows evidence of a learning disorder. His adjustment as a child and adolescent was probably affected by this learning disorder, and from an early age he demonstrated an over sensitivity to others and inability to form satisfactory relationships. As he entered adulthood, his behavioural disruption worsened, and his involvement in substance abuse further disturbed his personality. Although he shows signs of a mixed personality disorder, it is probable that Mr Carter is an immature young man suffering from a severe adjustment disorder. It is possible that over the next five to ten years he will begin to mature. Long-term abstinence from substance abuse is also likely to help him develop more mature ways of acting, and, hopefully, giving him an opportunity to reform his character”.
In 2015, a staff member of the Correctional Centre in which the applicant was incarcerated carried out a psychological assessment. She reported:
“Mr Carter lacked genuine insight into his criminal lifestyle though maintained that he was ageing (turning forty two) and had to make changes in his life… He maintained that he had adopted the “jail mentality” due to extended periods in custody and that he was unable to overcome this. He stated whilst in the community he was engaged in the same routine he had in jail including going to bed early and waking up early. Mr Carter continued to highlight the difficulties of adhering to parole conditions including their home visits and regular appointments; though it is evident that without supervision he is unable to live a crime free life”.
In the sentencing remarks of Acting Judge Marien delivered on 8 April 2016 his Honour referred to the report of a psychologist, Ms Marlene Headington dated 29 February 2016. That report indicated that the applicant was harshly punished by his mother by way of discipline; that physical abuse made a large impact on him and he had no contact with his mother since 2003. His father died in 2003 and thereafter when he was 16 he moved to live with his grandmother and resided with her for a number of years. Ms Headington reported that the relationship with the grandmother was strong and supportive and that she was a positive influence on his life. The grandmother died in 2010.
Ms Headington reported that the applicant had received an inheritance of $40,000 from his father but that such monies had been spent largely on drugs.
The applicant commenced his first relationship with his partner when he was 16 years of age and they had a baby which died from Sudden Infant Death Syndrome at age 3 months. They had a second child, a daughter (already referred to above as TJ) but following separation and as the daughter was six months old she remained with her mother. The applicant maintained consistent contact with TJ.
The applicant thereafter had an association with another partner, N. Thereafter he had a third association with Ms B, who has already been referred to and who was the victim of the final assault committed by the applicant.
The applicant used heroin from the age of 22 and became addicted, consuming it daily. He entered methadone programs but he continued to use heroin throughout. When incarcerated in 2009 he was placed on a methadone program. He ceased using heroine. At age 37 the applicant commenced using crystal methamphetamine (ice). By the age of 40 he had developed a daily dependency. His Honour’s remarks state:
“The offender said that he found that regular use of the drug ice exacerbated his mental health symptoms, increasing his levels of mania and anxiety in particular. He reported becoming increasingly paranoid, agitated and quick to become aggressive”.
FINDINGS
The convictions of the applicant demonstrate a long period of criminal history. They demonstrate that the applicant has little regard or respect for the Australian law. He has now served seven years and nine months in custody. Whilst the Tribunal acknowledges that there will be an emotional break from the applicant’s family, this is to be subverted to the interests of the Australian community.
The evidence shows that the applicant has undergone several rehabilitation programs namely Wayback Residential Rehabilitation Program in 2012/2013 and the Ngara Nura Therapeutic Community Program at Long Bay jail in 2003 and a detoxification in 2011.
The applicant claimed to have had no drugs and to be drug free from October 2018 and has provided evidence of completing an intensive Drug and Alcohol Treatment Program (IDAPT) on 24 May 2017, another program in 2016 and a course entitled “Health Survival Tips” on 28 March 2018. However, the applicant has tested positive for buprenorphine between 13 October 2016 and 28 December 2017.
The Australian community could be exposed to harm should the applicant reoffend, and given the long history of offending, the Australian community would expect that the applicant’s visa would remain cancelled. The risk of reoffending remains, especially if the evidence establishes that he lacks insight into his offending.
Significantly, the applicant has received a warning that conduct would place his visa in jeopardy. On 1 May 2008 the applicant was issued a formal counselling letter, which stated:
“The purpose of this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa”.
The applicant acknowledged receipt of the warning on 7 May 2008. Such warning was insufficient to alter the path of criminality adopted by the applicant. Yet this is a factor for consideration pursuant to clause 13.1.1(1)(g) of the Direction, especially since many of the applicant’s offences occurred after the date of the warning he received.
Despite the rehabilitation programs which have been made available to the applicant, and his participation in them, it is apparent that they have been unable to prevent the applicant from continuing with his law-breaking lifestyle. The record of the Community Corrections Centre at Windsor dated 18th of January 2018 refers to his drug use, and notes that in 2011 the applicant completed a detoxification. However the result of urine tests on 24 October 2016 indicate drugs, including methamphetamine and also on 25th of October 2016, 30 October 2016, 8 November 2016 and 1 December 2016. It is apparent that whilst incarcerated at Parklea Correctional Centre on 24 December 2017 the applicant admitted injecting an unknown substance in a syringe. The inference can be drawn that the applicant’s addiction to drugs remains uncured.
CONCLUSION
The applicant represents an unacceptable risk of harm to the Australian community and the protection and expectations of the Australian community outweigh the best interest of his child and other family members, and the other considerations including his aged mother, his lengthy residence and his family and social networks.
The Tribunal finds that the factors in support of revocation relating to his family do not singularly or cumulatively outweigh the Primary Considerations, and the factors weighing against the exercise of discretion under section 501CA(4) of the Act to revoke the applicant’s mandatory visa cancellation. Accordingly the Tribunal finds that the correct and preferable decision is the decision made by the delegate to refuse to revoke the mandatory cancellation of the applicant’s visa.
I certify that the preceding 73 (seventy-three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy OAM QC, Deputy President
.........................[sgd]...........................................
Associate
Dated: 27 February 2019
Date of hearing: 19 February 2019 Applicant: In person Solicitors for the Respondent: Mr J Hutton, Australian Government Solicitor
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