Clark and Minister for Immigration, Citizenship and Multicultural (Migration)
[2024] ARTA 330
•5 December 2024
Clark and Minister for Immigration, Citizenship and Multicultural (Migration) [2024] ARTA 330 (5 December 2024)
Decision and Reasons for Decision
Affairs
Applicant/s: Christopher Patrick Clark
Respondent: Minister for Immigration, Citizenship and Multicultural
Affairs
Tribunal Number: 2024/7372
Tribunal: Senior Member K Raif
Place: Sydney
Date: 5 December 2024
Decision:The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Transitional (Permanent) visa.
................[SGD]................................................
Senior Member K Raif
Catchwords
MIGRATION – mandatory Cancellation of visa – Class BF Transitional (Permanent) visa – Ministerial Direction No. 110 applied – failure to pass the character test – whether another reason mandatory cancellation should be revoked – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class BF Transitional (Permanent) visa previously held by the Applicant.
The Applicant is a national of the United States of America, born in January 1963. The Applicant travelled to Australia around 1970 with his mother and siblings. The Applicant has multiple convictions. In June 2022, he was convicted of offences and was sentenced to a term of imprisonment of 12 months. On 2 February 2023, the Applicant’s visa was mandatorily cancelled under s 501(3A). In February 2023, the Applicant made a request to
revoke the cancellation and on 18 September 2024 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant seeks review of that decision.
The Applicant appeared before the Tribunal on 3 December 2024. He was assisted by his brother and the Tribunal took oral evidence from the Applicant’s sister and former partner. For the following reasons, the Tribunal has concluded that the decision dated 18 September 2024 not to revoke the cancellation of the Applicant’s Transitional (Permanent) visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(i)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(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.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(6)For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7))…
Paragraph 501(7)(c) relevantly 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.
On 7 June 2024, Direction No. 110 Visa refusal and Cancellation under s 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 110’) was signed, coming into effect on 21 June 2024. Direction 110 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 110 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principles set out at paragraph 5.2 of Direction 110 states 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.
At Paragraph 5.2(2), the Direction provides that the safety of the Australian community is the highest priority of the Australian government. Further, at Paragraph 5.3(3) the Direction provides that:
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
The primary considerations which are set out in clause 8 of Direction 110 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 110:
1)Legal consequences of the decision;
2)extent of impediments if removed;
3)impact on Australian business interests.
Paragraph 7(2) of Direction 110 states that the primary consideration of [protection of the Australian community] is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) 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.
The Tribunal has been provided with the Criminal Intelligence Commission Check Results Report. Information before the Tribunal indicates that the Applicant had been convicted of the following offences.
28/11/22
· Breach of probation order imposed in June 2022
· Common assault
· Unlawful stalking
· Sexual assault
Conviction recorded.
6 months imprisonment
Imprisonment 9 months
17/06/22
· Breach of probation order
· Serious assault person over 60
· Stealing
· Sexual assaults
6 months imprisonment
12 months imprisonment
18/08/21
· Sexual assaults
· Trespass – entering or remaining in dwelling
18 months probation
26/08/20
· Possession of a knife in a public place or school
· Commit public nuisance
No conviction recorded, fine
$350 (disregarded for the purpose of the present review)
03/08/18
· Drive vehicle under influence of alcohol
· Resist officer in execution of duty
· Common assault
· Drive under influence of alcohol
Imprisonment 6 months
Imprisonment 4 months
Imprisonment 4 months
Imprisonment 9 months
08/11/17
· Drive under the influence
· Resist officer in execution of duty
· Common assault
· Use offensive language in / near public place / school
· Drive under influence of alcohol
Imprisonment 6 months
Imprisonment 4 months
Imprisonment 4 months
s. 10A conviction
imprisonment 9 months
24/07/17
· Drive under influence of alcohol
· Drive under influence of alcohol
Imprisonment 6 months
Imprisonment 9 months
22/03/17
· Common assault
· Stalk / intimidate intend fear physical harm
· Use offensive language in / near public place / school
· Drive under influence of alcohol
Imprisonment 1 month
Imprisonment 1 months
Imprisonment 6 months
Imprisonment 6 months
12/11/15
Stalk / intimidate intend fear / physical etc harm
s. 9 bond – 12 months (disregarded for the purpose of the present review)
08/08/05
Drive with low range PCA
Fine $350 and disqualification 6 months
27/05/92
Cancelled driver
80 hours CSI disqualification
21/11/88
· DUI
Disqualification 6 months
· Unlicensed driver
· Fail to stop accident
Fine $100 Fine $200 13/04/88
Stealing
$400- or 8-days hard labour
04/05/84
Stealing
$150- or 6-days hard labour
08/03/84
· Middle range PCA
· Unlicenced driver
3 months hard labour disqualified 3 years.
3 months hard labour (concurrent), disqualified 6 months
09/02/84
· Middle range PCA
· Unlicenced driver
$300- or 12-days hard labour, disqualified 12 months
$100- or 4-days hard labour
27/09/82
Serious affront on enclosed land
$75- or 3-days hard labour
The Tribunal finds that in June 2022 the Applicant has been sentenced to a term of imprisonment of 12 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
The Applicant acknowledges that he has done ‘wrong’ in the past but submits that the risk of reoffending is lower, as he no longer uses alcohol, and if he receives appropriate treatment, structure and support from his family. The Applicant states that he has lived in Australia his whole life and has substantial family ties in this country. The Applicant submits that he would experience significant hardship if he is removed from Australia and has to live in an unfamiliar country. He believes the cancellation of his visa should be revoked.
The Respondent submits that the Applicant does not pass the character test. The Respondent acknowledges that some factors weigh in favour of revocation, most notably the Applicant’s ties to Australia, but submits that the offending and the risk of reoffending are such that the factors that weigh in favour of revocation outweigh other factors.
The Tribunal’s considerations are set out below with regard to Direction 110.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
Paragraph 8.1 of Direction 110 provides in part as follows:
8.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian government… Decision makers should have particular regard to the principle that entering or 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.
(2)Decision-makers should also 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 Direction provides that violent and/or sexual crimes; crimes of a violent and / or sexual nature against women or children (regardless of the sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of certain crimes or conduct) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. Subparagraph (e) requires the decision maker to have regard to the frequency of the non-citizen’s offending and /or whether there is any trend of increasing seriousness.
The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets and the sentencing remarks.
The Tribunal has considered the description of the circumstances of offending that was provided to Acting Magistrate Stark in relation to the sentencing proceedings in June 2022. The brief facts in relation to the offences are described as follows. The victim, a female over the age of 60, stopped outside a store. The Applicant walked to the victim and stepped between her and her vehicle, preventing her from returning to her vehicle. The Applicant placed his arms and took hold of the victim’s waist, pulled her towards him and said words to the effect of “Hello darlin. Aren’t you beautiful. I would marry you.” The Applicant held the victim and repeated these words. The Applicant later pulled the victim’s body towards his, fondled, rubbed and massaged her breasts and stomach area and pressed his body against hers. The Applicant said "Do you like sex? Do you want to have sex?” and continued to invite the victim to have sex with him. Eventually the victim drove off in her car. The Applicant went to the store, loaded his vehicle with produce worth about $60 and drove off without paying.
It is stated, in relation to the drinking offence, that around 3am the police attended a disturbance at a McDonalds. The police spoke to the Applicant who stated that he had driven from his home in search of a ‘whorehouse’. He submitted to a breath test and there was a reading of 0.108 grams of alcohol.
In relation to the public nuisance and knife possession offences, it is noted that the Applicant was standing on a footpath, he appeared agitated and began loudly yelling abuse towards a police officer and a paramedic, berating officers and calling them vulgar names. Others were intimidated by this behaviour. It is reported that the Applicant took a knife and withdrew the blade, which was about 20 cm in length, before replacing the knife in his pocket.
In relation to the common assault conviction, it is stated that the Applicant had approached the victim, a 59-year-old manager of a hotel from behind, grabbed her around her waist and pulled her into his body. After the victim said “don’t touch me”, the Applicant became irate and aggressive, yelling and swearing at the victim. He picked up two glass bottles, wielding them as though he intended to use these as weapons, and he continued his rant for a few minutes before leaving the store.
In relation to the stealing offence, it is stated that the Applicant took a shopping trolley around the IGA store, selecting various items to the value of $17.40.
In relation to the sexual assault, it is stated that on 18 December the Applicant was inside a store and when he crossed paths with the victim, he reached out to the victim’s buttocks, physically rubbed, grabbed and massaged the victim’s buttocks and said words to the effect “how about a pash, love”. It is stated that as a result of the incident, the victim suffers from PTSD, which was triggered by this offending, has withdrawn herself from work and no longer feels comfortable going out in public.
In relation to the common assault, it is stated that around December 2021 the Applicant attended a bottle shop and took hold of the victim’s wrist, he ran his finger along the victim’s arm in a sexual motion and said words to the effect “you know I love you”. The Applicant held the victim’s wrist tightly to stop her from pulling away, then mouthed, licked and lightly bit the skin on the victim’s arm.
In relation to the wilful damage and common assault offences, it is stated that the victim is 58 years of age, employed by IGA. The Applicant entered the store, removed a Santa head from the display and carried it out of the store before discarding it on a store shelf. The Applicant approached the victim and placed his hands on her face. He attempted to hold her around the waist, but she walked off and the Applicant was ejected from the store.
It is stated that in his interview with the police the Applicant claimed that he was drunk all weekend. Subsequently the Applicant pleaded guilty to these offences.
The Tribunal has been provided with the transcript of proceedings before Magistrate Shephard in November 2022. Her Honour describes the offending that was the subject of those proceedings. It is stated, in relation to common assault and sexual assault, that the victim, who was 59 years old, was working as a volunteer at the local op shop. The Applicant asked her if she would marry him, got down on his knee and reached out and grabbed her hand. As the victim walked away, the Applicant took hold of her, picked her off the ground and walked her about the store. The Applicant then grabbed hold of the victim, placed his arms around her lower waist and placed his hands on her buttocks, pulled her towards him and began to massage her buttocks with his hands.
Her Honour stated that in her view, the Applicant’s behaviour was a serious example of common assault where he picked up the victim off her feet and walked her around the shop.
Her honour states that the sexual assault is not at the bottom end of the scale in terms of seriousness as it was not a fleeting touch.
With respect to unlawful stalking, it is stated that the victim was an elderly, 72-year-old woman who was a volunteer at an op shop. As the Applicant entered the store, he attempted to kiss the victim on her lips. A week later, the Applicant returned to the store and presented her with a love heart magnet, which she declined. The Applicant again entered the store a week later with a dog and when asked to remove the dog, became argumentative. It is noted that on another occasion, the Applicant filled his bag with items from the store and left without paying. As he was asked to pay, the Applicant returned to the store and paid some money. It was noted that the Applicant’s conduct made the victim feel uncomfortable, intimidated and unwilling to attend work.
Her Honour referred to the earlier sexual assault offending when the Applicant grabbed his neighbour’s breast and another sexual assault when he placed his hand on a neighbour’s crotch and told her he would like to “f…k up”.
Her Honour refers to the Applicant’s conduct during probation. It is noted that the Applicant was referred to a female counsellor with Drug ARM who had to stop counselling as the Applicant told her he wanted to talk about the colour of her underpants. It is noted that the Applicant had little insight into the effect of his behaviour, stating it was a joke. It is noted that Community Corrections took the view that the Applicant was not suitable for further probation. Her Honour notes that the Applicant is someone who needs professional counselling and the support of a psychologist or a psychiatrist.
Her Honour acknowledged the submission that the Applicant had been involved in a car accident around the age of 17, claiming that he received damage to his brain which affected his behaviour, noting, however, that there was no testing and no evidence of any connection between the brain injury and the Applicant’s offending behaviour. It is also noted that the Applicant referred to having a longstanding problem with alcohol.
The Tribunal has been provided with the incident report relating to the period of the Applicant’s detention. It refers to an incident in November 2023 when the Applicant is alleged to have committed verbal sexual assault against Programmes and Activities officer.
It is reported that the Applicant asked the officer “can you be my girlfriend?” It is noted that the officer reported she did not feel threatened or intimidated during the conversation.
The report refers to an incident in September 2023 when contraband (metal rod bucket handle) was found in the Applicant’s room. Another report refers to the Applicant being in possession of makeshift rope made from clothing.
The Tribunal finds that the Applicant had engaged in multiple offending. Significantly, several of his offences included sexual crimes against women and the Direction provides that these are considered to be of serious nature. The Applicant also engaged in multiple drink-driving offences which had the potential of causing harm to others. The Tribunal has formed the view that the offending was serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that in considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some of the conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non- citizen engage in further criminal or other serious conduct;
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the non-citizen re-offending; and
ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of the Applicant’s offending to date, including any escalation in the offending.
This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
The Tribunal has considered the likelihood of the Applicant engaging in further criminal or other serious conduct.
In the revocation request, the Applicant’s brother Mr Sean Clark stated that at the age of 17, the Applicant was involved in a vehicle accident and suffered head injuries, affecting his mental capacity, which is exacerbated by the use of alcohol, and it is stated that the Applicant’s offending started after this incident. Mr Sean Clark stated that the Applicant is a helpful and productive person in society and needs psychological evaluation and counselling to address his behaviour, but he has never received proper treatment. Mr Sean Clark reiterated that evidence in his oral submissions to the Tribunal and, as noted below, several of the Applicant’s family members provided similar statements.
The Tribunal has been provided with a copy of communication from Wolston Corrections Centre, dated 19 April 2023, which states that during the term of the Applicant’s imprisonment, there had been no reportable / notifiable prison related incidents. It is stated that the Applicant had engaged in 5 short education courses in April 2022 and commenced individual intervention to address sexual offending but did not complete this. Notes from 3 October 2024 indicate that the Applicant denied mental health concerns but reported insomnia. A risk assessment indicates NIL risk of self-harm or harm to others. These reports do not offer any diagnosis.
The Applicant told the Tribunal that he had previously completed some rehabilitation courses. These include a lengthy period of participation at AA and other programs relating to alcohol dependence. The Tribunal has also been provided with evidence of the Applicant’s attendance and participation in the SMART Recovery Australia program. The evidence indicates the Applicant attended several sessions between January and October 2024. IHMS notes indicate that the Applicant has participated in the SMART recovery group and the goals of that group.
The Applicant told the Tribunal that in the past he used alcohol to deal with grief and when asked if he has developed any strategies to deal with alcohol in the future, the Applicant states that he would rely on his siblings, although he also stated that they tell him not to drink but he drinks anyway. The Applicant told the Tribunal that he could ‘try’ AA again but there is no evidence to suggest that the Applicant has made any arrangements to engage in supporting services in the future and the Tribunal is not satisfied that the Applicant has a genuine desire to deal with his alcohol addiction.
The Applicant repeatedly told the Tribunal that he made mistakes and will not behave in the same way in the future. He states that he has not had to deal with possible removal from Australia in the past. Despite these assurances, the Tribunal has formed the view that the Applicant has little insight into his behaviour. With respect to the possession of a knife, the Applicant told the Tribunal he was “just mucking around”, he was drunk and was wielding a knife that he used for house painting, but the police was not interested in his explanations. With respect to another incident resulting in the conviction for sexual assault, the Applicant stated that he “just gave her a hug” but acknowledged that the victim told him she did not want him to and acknowledged that she may have felt harassed. With respect to another occasion, the Applicant told the Tribunal that it was Christmas time, and he was happy and he “did not mean anything by it” when he kissed the victim. The Applicant told the Tribunal that he was ‘just joking’ with the counsellor when asking her about her underwear. The Applicant told the Tribunal that it was not his fault another victim suffered from PTSD. The Applicant repeatedly told the Tribunal that he engaged in some of his behaviour because he was drunk and suggested that everyone makes mistakes. The Tribunal is not convinced that the Applicant appreciates the effect of his conduct on others.
The Tribunal has been provided with a pre-sentence report by Dr Karen Brown, dated 18 July 2023. Dr Brown states that the Applicant self-reported the use of alcohol over the years which progressed to daily drinking and binges, and past use of cannabis, which he claims to have stopped. It is stated that the Applicant gave vague (and at times dismissive) account of his offending. Dr Brown refers to the diagnosis of acquired brain injury, stating that the combination of disinhibition, impulsivity, poor judgement, inability to read and respond to social queues, Witzelsucht, Moria and hypersexuality, are consistent with frontal lobe impairment secondary to a head injury. These symptoms may have been exacerbated by alcohol use and he may have deficits in other cognitive domains. Dr Brown refers to the diagnosis of alcohol use disorder currently in remission in a controlled environment, noting
that some of the past offending has been associated with alcohol intoxication. Dr Brown states that the Applicant is unlikely to remain abstinent from alcohol use and the prognosis for this disorder is poor. Dr Brown states that the Applicant may have some personality disturbance and antisocial traits, but she was unable to make a diagnosis. It is stated that the Applicant’s personality deficits, and in particular lack of empathy, may be secondary to cognitive / frontal lobe impairment. Dr Brown has conducted a risk assessment, noting that it is a preliminary one. The assessment indicates the risk of sexual offending in the well above average or high range. Dr Brown concluded that the Applicant is at high risk of committing another sexual offence, most likely of a similar nature, and also at a high risk of committing further public nuisance and violence offences, particularly in the context of alcohol intoxication. (These diagnoses are noted as provisional).
The Tribunal has had regard to a report by Dr Victoria Barclay-Timmis, clinical psychologist, dated 16 June 2022. The report outlines the Applicant’s background and the circumstances surrounding his offending behaviour. It is stated that the Applicant described long standing issue with substance abuse. Dr Barclay-Timmis states that, after careful consideration of the specific factors of this case, a moderate to high risk of recidivism was identified. The author refers to protective factors and states that the risk of reoffending would significantly ease with continued abstinence from substance use and long-term engagement in appropriate services.
There is before the Tribunal a statement by Dr Ewen Cameron dated 14 October 2024. Dr Cameron refers to the Applicant’s visits in 2020, the past history of motor-vehicle accident resulting in significant head injury and noting changes in his behaviour following the accident. Dr Cameron states that it seems ‘very likely’ that the Applicant had suffered from a significant traumatic brain injury that had affected his personality and social functioning. it is stated that loss of inhibitions after alcohol would be consistent with the probable diagnosis of traumatic brain injury with frontal lobe involvement. Dr Cameron has expressed the view that, given appropriate family and social support, [the Applicant] can contribute to family and society in a positive way. Dr Cameron states that the family is keen to support the Applicant and are committed to encouraging abstinence from alcohol and professional help.
The Applicant, and others on his behalf, seek to establish a link between the brain injury arising from a car accident, and the Applicant’s offending. However, as was noted by the sentencing judge recently, there is no probative evidence to establish the link between the
Applicant’s behaviour and the claimed damage and, indeed, the brain damage has not been professionally diagnosed nor determined through any testing. Rather, the various reports confirm the possibility of the link between the acquired brain injury and disinhibition resulting in offensive behaviour.
It is significant, in the Tribunal’s view, that if the behaviour was in fact caused by the brain damage, the Applicant has not sought, and has not been prescribed any treatment. The Applicant told the Tribunal that he “could give it a try” but he also said he does not want to be dependent on drugs, suggesting he would be reluctant to engage in treatment that involved pharmacological intervention. That is, if it is the case that the Applicant displays sexual disinhibition and engages in anti-social or criminal behaviour due to the acquired brain injury and because he is unable to understand the consequences of his actions, in the absence of any treatment (and none has been arranged to date), it would seem that there remains a strong possibility that the Applicant will continue to engage in the same behaviour in the future.
Also significantly, while many statements before the Tribunal indicate that the Applicant and his family recognise the need for professional support, there is no evidence that meaningful arrangements have been made for such support to be provided. Mr Sean Clark told the Tribunal that he did not know he could put the supports in place and was expecting the Government to do so. Mr Sean Clark confirmed that he is willing to put supports in place but is not sure he is capable of doing that. He told the Tribunal that the Applicant requires a ‘structure’ in his life and the family will support him in having the right environment. Ms Wyatt in her evidence to the Tribunal also referred to the possibility of the Applicant engaging with the local support services but, again, there is no evidence to indicate that firm arrangements have been made for the Applicant to receive the requisite support and treatment. Even if such arrangements were put in place, given the Applicant’s past disengagement with supports, the Tribunal is not satisfied the applicant will continue with the treatment and engage in supports on a longer-term basis when living in the community.
The Tribunal places weight on the assessment by Dr Brown who has indicated in her report that the prognosis for the disorder is poor. That is, even if treatment is arranged and if the Applicant does decide to engage in treatment in the future, that does not necessarily mean that he will be effectively able to manage his behaviour and avoid the repeat of the same
behaviour. It is notable that the two health professionals have identified the risk of reoffending as moderate or high.
The Tribunal also notes the Applicant’s oral evidence that he had in the past completed rehabilitation courses to manage his alcohol addiction but despite those, he continued to use alcohol and continued to offend. In referring to the future plans and his undertaking to avoid reoffending, the Applicant stated that his plan is ‘not to drink’. Having regard to the totality of the Applicant’s circumstances, his past history and past engagement in programs that had not altered his behaviour, the Tribunal is not satisfied this is necessarily a realistic or an effective undertaking.
The Tribunal finds that there remains at least a moderate risk of the Applicant engaging in further offending, which is likely to include sexual offending against women. This is consistent with the professional opinions of Dr Brown, who has identified the risk of reoffending as above average or high, and of Dr Barclay-Timmis, who also refers to the risk of reoffending as moderate to high. There are no more recent assessments before the Tribunal. There is a likelihood, in the Tribunal’s view, that the Applicant will resume the consumption of alcohol, once he is no longer in a ‘controlled environment’. The Tribunal acknowledges that this possibility may have been diminished due to the Applicant’s recent engagement in the SMART Recovery program but in the Tribunal’s view, that possibility remains, given the Applicant’s long term alcohol addiction and his admission that the past engagement in programs such as AA had been ineffective. The Tribunal is also of the view that, even without the alcohol consumption, there remains at least a moderate risk of the Applicant reoffending.
Having regard to the nature of the Applicant’s past convictions involving sexual offending towards women, and the Tribunal’s view that there remains at least a moderate risk of reoffending, the Tribunal has formed the view that the protection of the Australian community weighs very heavily against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.
The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
At Paragraph 5.2(8) the Direction states that
The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
There is no evidence before the Tribunal to indicate that the Applicant engaged in family violence offending. This consideration is neutral.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non- citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen’s visa or revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non- citizen has to the Australian community. In doing so, decision-makers must have regard to
a.How long the non-citizen has resided in Australia including whether the non-citizen arrived as a young child, noting that
i.Less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and / or people who have an indefinite right to remain in Australia.
The Applicant’s brother Sean Clark completed the revocation request and stated that the Applicant’s elderly mother and siblings reside in Australia. He also has two siblings residing overseas. Mr Clark identified other relatives, such as siblings-in-law and fourteen nieces
and nephews, who reside in Australia. The delegate notes in the primary decision that the Applicant’s mother (aged 104), five siblings and two sons (aged 35 and 41) live in Australia.
Mr Sean Clark stated in the revocation request that the Applicant does not have any relatives living close, but he always keeps contact with the relatives by phone and has recently moved to Queensland to be closer to his family and he visits regularly and has a good family connection. In a further correspondence to the delegate Sean Clark states that he believes the Applicant is capable of fitting back into the Australian society. He has made ‘terrible choices’ especially when consuming alcohol and understands he needs help.
Mr Sean Clark provided a written statement to the Tribunal, repeating much of the information contained in his earlier statements. Other relatives also provided statements in support of the revocation request and to the Tribunal outlining the hardship they would experience if the Applicant was required to leave Australia. Mr Sean Clark states in the revocation request that the Applicant has always been a helpful community member, helping neighbours and friends as a handyman, with gardening, mowing and small repairs.
The Tribunal has had regard to a statement from Kathleen Clark made to the delegate. She refers to the Applicant being a loving, compassionate, quiet, happy and helpful young man, being patient and calm. Ms Clark states that at the age of 17, the Applicant sustained a critical head trauma during a car accident and was in a coma for a month. He began to show signs of changes in his behaviour but had not sought medical care. Ms Clark refers to the Applicant’s past relationships and the deaths of his partners from cancer. Ms Clark states that the Applicant does not have the ability to understand and respond appropriately in social interactions as a result of his brain injury and needs professional help. Ms Clark states that the Applicant grew up in Australia, has siblings, children and a grandchild here and owns a home and he has no one and does not have the ability to survive overseas.
Ms Kathleen Clark made a further written statement to the Tribunal in October 2024. She refers to the Applicant’s brain injury impacting his behaviour, stating that the symptoms include lack of inhibition impulsive behaviour, failure to recognise the consequences of his actions, altered social behaviour, poor judgment, substance abuse, euphoria, hypomania or grandiosity. Ms Clark refers to lack of treatment or medication following the car accident and states that her brother needs help. Ms Clark refers to the Applicant’s ties in Australia and states that the family will assist and support him. Ms Clark suggests that the Applicant
needs to be examined by appropriate medical expert to provide the link with the offending and so that the appropriate medical treatment and support services can be arranged. Ms Kathleen Clark provided another statement to the Tribunal dated 25 November 2024, with substantially the same claims. Ms Clark states that the Applicant will not be able to survive in a new, unfamiliar country if he is removed from Australia.
In oral evidence Ms Clark also spoke about the effect of the car accident on the Applicant’s functioning and ability to manage his urges. Ms Clark spoke about a program that the family has arranged for the Applicant to engage in once he is released from detention and the family support that the Applicant will enjoy. She stated that she is “willing to do what she can” to support her brother. Ms Clark told the Tribunal that to be able to access help in the US, the Applicant would need the US health insurance, which is expensive, and he does not have any connections with the relatives there and will not be able to get any support, so he will likely end up as a homeless person.
The Applicant’s sister Colleen Cherry provided a written statement in which she refers to a close-knit family and their migration to Australia in 1970. Ms Cherry refers to the car accident in 1980 resulting in the Applicant suffering permanent head and brain injuries. Ms Cherry refers to the Applicant’s past relationships and his caring for his partners and other relatives. Ms Cherry states that the Applicant has two children and two grandchildren, all of whom live in Australia. Ms Cherry states that the Applicant would not cope at his age to be taken away from his family and home and he would not cope mentally and emotionally if removed from the people who love and care about him. Ms Cherry refers to the Applicant being trusting and vulnerable as a result of his head trauma. Ms Cherry provided a further written statement to the Tribunal which substantially repeats the information in her earlier statement to the delegate.
There is before the Tribunal a statement from the applicant’s former partner, Ms Kay Wyatt to the delegate. Ms Wyatt refers to the Applicant being a kind, loyal and caring man. She states that their son Mitchell and grandchildren need a grandfather in their lives. She states that the Applicant should have the opportunity to be surrounded by his family. Ms Wyatt also provided a statement to the Tribunal stating that the Applicant has been a friend for 50 years and states that it would be best for him to remain in Australia closer to his family and environment. Ms Wyatt states that she could arrange professional help for the Applicant’s
underlying issues, trauma, grief and behaviour and with support, he would be able to deal with his behaviours and would be a trustworthy and happy member of the community.
Ms Wyatt provided a statement to the Tribunal on 24 November 2024. In it, Ms Wyatt undertakes to provide the Applicant with the assistance he requires and outlines the support that would be available to him. Ms Wyatt also refers to the presence of close and supporting family in Australia. Ms Wyatt gave oral evidence and spoke about the support that would be available to the Applicant in the local area upon release. Ms Kay Wyatt told the Tribunal in oral evidence that she would be willing to support the Applicant, take him to appointments, set up appoints, and ‘put him on the right track’. Ms Wyatt states that both she and her son would love for the Applicant to be a member of her family and her son’s family. She spoke about the Applicant’s past alcohol consumption and the strategies he would need to employ to avoid alcohol in the future.
There is before the Tribunal a statement from the Applicant’s son Mitchell Wyatt who states that he and the Applicant understand that he has broken the law and must help himself by abiding the law if given a chance. Mitchell Wyatt states that with family support and professional help, this would be achievable. Mr Wyatt states that he wants to give his father the support he needs, and he can maintain and build a relationship with the grandchildren and the family. The Applicant told the Tribunal that he has had only limited contact with Mitchell.
Mr James Wyatt (the Applicant’s stepson) provided a statement in which he made an offer of employment to the Applicant in his business, stating this would enable the Applicant to have direction, a goal, and a sense of achievement.
The Minister accepts that the Applicant has extensive family connections in Australia, His immediate family members are able to remain in Australia permanently. including his mother, siblings and adult children and two grandchildren. The Tribunal accepts that these family members have undertaken to support the Applicant. The Tribunal also accepts that these family members may experience emotional hardship if the Applicant is removed from Australia.
The Applicant has been residing in Australia for over 50 years, arriving as a young child of 7 or 8. He began offending when young, but not soon after arriving in Australia.
In oral evidence the applicant spoke about his past relationships and past employment in Australia. The Tribunal accepts that, given the length of his residence in Australia, the Applicant would have formed strong social and employment links in this country, in addition to his family links. The Tribunal finds that this consideration weighs heavily in favour of the revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
In his written communication to the Tribunal the Applicant states that he has two children and one of his sons has two children, who are his grandchildren. The Applicant states that he would like to be in the same country as them to see them grow up and t have them in his life. The Tribunal has also had regard to the statements by the Applicant’s (adult) children.
The Minister accepts that the best interests of the two grandchildren would be served by the Applicant remaining in Australia but submits that in the circumstances where the Applicant has been absent for long periods given his incarceration and immigration detention, his questionable positive role in relation to the grandchildren if he continues the use of alcohol, limited evidence about any contact and no evidence of any parental responsibilities, only limited weight should be given to this consideration.
While the Applicant’s children are adults, the Tribunal accepts that the Applicant has two minor grandchildren resident in Australia, aged about 1 and 4. Ms Kay Wyatt in her statement refers to a relationship between the Applicant and the two grandchildren and the need for the grandchildren to be close to their grandfather but the Applicant told the Tribunal
that he has not met either of his grandchildren due to the distance and his recent incarceration.
The Tribunal is of the view that the Applicant would be able to maintain a meaningful relationship with the grandchildren even if he does not reside in Australia. There is no evidence before the Tribunal to indicate that the Applicant has had a close relationship with these grandchildren or that he has provided physical support to them. The applicant’s evidence is that he has not met his grandchildren and that it is only his desire (and the hope of others) that he will be able to establish a relationship with the children in the future). In the Tribunal’s view, if the Applicant has been able to maintain a meaningful relationship with the grandchildren while not living in close proximity in Australia, he will be able to do the same if he was to reside in another country.
The Tribunal notes that the children live with their parents and receive parental support from them. There is no suggestion that such parental support has been provided by the Applicant (as note above, the Applicant’s oral evidence is that he has not met his grandchildren in person). That is, if the Applicant does not live in Australia, there may not be a significant difference in his relationship with the grandchildren, although the Tribunal accepts that the Applicant will have very limited (if any) opportunity for personal interactions. The Tribunal also accepts the Minister’s submission that the applicant’s positive contribution to the children’s welfare is predicated on the applicant’s future abstinence from alcohol.
In the circumstances where the applicant has no present relationship with his grandchildren and where the establishment of a future relationship is merely an aspiration, the Tribunal does not consider that the best interests of the grandchildren will be adversely affected if the applicant’s visa remains cancelled. The Tribunal has formed the view that this consideration is neutral.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 110 provides that the Australian community expects non- citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian
community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,1 which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.2
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct, which on many occasions involved sexual misconduct against women, the community expectations would weigh very heavily against the revocation.
1 [2019] FCAFC 185 (‘FYBR’)
2 See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
OTHER CONSIDERATIONS
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding. The Applicant has not made any claims that could indicate that non-refoulement obligations arise in this case.
The cancellation of the visa under s. 501 means that the Applicant will not be entitled to be granted another visa and will not be able to return to Australia to be with his family or for any other reason.
The Tribunal is of the view that consideration weighs somewhat in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non- citizen in that country.
The Applicant is 61 years of age. He had lived in the USA until the age of approximately 7 or 8. There would be no language or cultural barriers if the Applicant was to reside in the US.
In the revocation request he refers to the brain trauma, high cholesterol and high blood pressure. He informed the Tribunal that he has been on a number of medications ‘for years’. The Tribunal accepts that the Applicant has some health issues but there is no evidence before the Tribunal to indicate that the Applicant will not be able to receive adequate and appropriate medical support in the US or that his access to treatment will be denied or withheld for any reason. In particular, the Tribunal notes the evidence of Ms Clark that the financial cost of medical treatment in the US is very high, however there is no probative documentary evidence before the Tribunal as to what may be reasonably available. There is also nothing to suggest that the social and economic support that might generally be available to the US nationals would not be available to the Applicant.
The Applicant submits that he has no connection to his country of birth and no support network there. As he has spent the majority of his life in Australia, he would be ‘incapable to survive’ in the US. It is stated that he has no means of support in the US and would be unable to navigate help with his capabilities. His family members have also stated in their respective statements and oral evidence that the Applicant would be unable to survive in a new and unknown country. Sean Clark states that his brother will not be able to survive living in the US and requires family and other support in Australia which the family will arrange for him.
While statements have been made that there will be no support for the Applicant, or that such support will be out of his reach due to its high costs, these claims are unsupported by probative evidence. There is no evidence before the Tribunal as to what support may be available to the Applicant in the US in his particular circumstances, having regard to his financial and other situation. There is no evidence to support the claim that the Applicant will be unable to navigate such supports, even if he might have to rely on the help of others.
Given the length of the Applicant’s stay in Australia and his limited (if any) links to his home country, the Tribunal accepts that the Applicant may experience some hardship if he is removed from Australia, particularly in the initial period of resettlement and re-establishment himself in the US. The Tribunal finds that this consideration weighs in favour of the revocation.
Impact on Australian business interests
Paragraph 9.3.1 of Direction 110 directs a decision-maker to take into account the following:
Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal to indicate that any Australian business would be impacted if the Applicant is not allowed to remain in Australia. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant has a lengthy criminal record and that, due to his most recent conviction, he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant’s offending has been serious as many of the offences involved sexual offending against women. It is significant that such offending was repeated and of escalating significance, noting that the most recent offending resulted in the most significant custodial sentence.
Significantly, the Tribunal has formed the view that there remains a real risk of the Applicant re offending. Despite the applicant’s engagement in rehabilitation programs in the past, the applicant continued the use of alcohol which (he claims) resulted in his offending. The Tribunal has not been satisfied that the Applicant’s past and more recent engagement in rehabilitation programs would necessarily be effective and the Tribunal is not persuaded by the applicant’s evidence that he will no longer use alcohol in the community.
As the Tribunal has found that there is a real risk of the applicant committing further offences, and given the serious nature of the offending, the Tribunal finds that the protection of the community and the expectations of the community considerations weigh very heavily against of the revocation.
The Tribunal has found that the Applicant has very significant ties to Australia, having lived here since he was a young child. The Tribunal accepts that there may be some impediment to the applicant if he is removed, as he would have to re-establish himself in a country where he has not lived for over 50 years. These circumstances, the connections with his family
members and the hardship that the Applicant’s departure from Australia may cause to him and his family, all weigh strongly in favour of the revocations.
Contrary to the parties’ submissions, the Tribunal does not consider that the best interests of the two minor grandchildren will be adversely affected if the cancellation is not revoked, as the applicant has no relationship with his grandchildren (whom he has not met), may or may not establish one in the future, has never played any parental role in relation to these children and has never been present in their lives.
Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community and the expectations of the Australian community. In the particular circumstances of this case, The Tribunal has decided that these considerations outweigh other considerations.
The Tribunal has decided that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Transitional (Permanent) visa.
Date(s) of hearing: 3 December 2024
Advocate for the Applicant: Mr S Clark
Solicitors for the Respondent: Ms A Wilford, Sparke Helmore
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