Cortes and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 284
•1 March 2023
Cortes and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 284 (1 March 2023)
Division:GENERAL DIVISION
File Number: 2022/9801
Re:Gilberto Cortes
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
Reasons for Decision
Tribunal:L M Gallagher, Member
Date:1 March 2023
Place:Perth
On 16 February 2023, I made the following decision:
The Reviewable Decision, being the decision of the Delegate dated 24 November 2022, not to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
These are my written reasons.
..............[Sgd]..........................................................
L M Gallagher, Member
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantive criminal record – Direction No. 90 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – Applicant is a 43-year-old man who came to Australia as a 5-year-old – extent of impediments if returned to Chile – reviewable decision affirmed.
Legislation
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Criminal Code Act Compilation Act 1913 (WA) – ss 391(a)(i), 392
Migration Act 1958 (Cth) – ss 48A, 48B, 189, 197AB, 197C, 198, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6H), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3)(b), 501CA(4), 501CA(4)(a), 501CA(4)(b)(ii), 501E
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Berryman and minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6
CPCF v Minister for Immigration and Border Protection (2015) 255 CLR 514
CZCV and Minister for Home Affairs [2019] AATA 91
DOB18 v Minister for Home Affairs [2019] FCAFC 63
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection[2018] FCA 7
Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 188
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
HRZN v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 133
Jagroop and Minister for Immigration and Border Protection [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kanara and Minister for Immigration and Citizenship [2011] AATA 132
Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Minister for Home Affairs v Omar (2019) 272 FCR 589
MJNN and Minister for Home Affairs (Migration) [2019] AATA 3205
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1143
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23
WAD 230/2014 v Minister for Immigration and Border Protection (No 2)[2015] FCA 705
Wang and Minister for Immigration and Border Protection [2017] AATA 89
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1208
YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366
Secondary Materials
Mental Health Policy Responses in Chile to Challenges posed by the COVID-19 Pandemic, IACAPAP Bulletin Issue 63 at for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation Under s501 and Revocation of a Mandatory Cancellation of a Visa Under s501CA (20 December 2018)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No. 90: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (08 March 2021) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(4), 5.2(5), 6, 7, 8(1), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(2)(c), 8.4(2)(d), 8.4(4), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4, 9.4.1, 9.4.1(2)(a)(i), 9.4.1(2)(a)(ii), 9.4.1(2)(b), 9.4.2
REASONS FOR DECISION
L M Gallagher, Member
1 March 2023
The Applicant seeks review of a decision made by a delegate of the Respondent
(the Delegate) on 24 November 2022 not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act), the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa (the Visa) under s 501(3A) of the Migration Act (the Reviewable Decision).[1]
[1]R1, G3.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal) on 30 November 2022,[2] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
[2]R1, G2.
The hearing was held on 2 February 2023 at the Tribunal in Perth. The Applicant was self-represented. The Respondent was represented by Mr Chris West of Sparke Helmore Lawyers. The Applicant appeared via Microsoft Teams and his witnesses by telephone. The Respondent’s representative appeared via Microsoft Teams.
background facts
The Applicant is a 43-year-old citizen of Chile, who first arrived in Australia on 1 March 1985 when he was five years old.[3] The Applicant was granted the Visa by operation of law on 1 September 1994.[4] The Applicant has remained in Australia since his arrival.
[3]R1, G15, p 117; G23.
[4]R1, G24, p 152.
The Applicant has immediate family in Australia, including his mother, brother, sister and nieces.[5] The Applicant’s grandmother and extended family live in Chile.
[5]The Applicant has three nieces, who are his sister’s children. They are E (21 years old), K (15 years old) and A (12 years old).
Applicant’s offending
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, dated 16 July 2021 and a History For Court report by the Western Australian Police Force, compiled on 28 December 2022.[6] The Applicant’s criminal history is extensive and his record is set out in Annexure A.
[6]R1, G4; R2 pp 163-181.
The Applicant’s criminal record includes a broad range of offences, namely: [7]
(a)Drug offences (possession of drugs and smoking implements);
(b)Traffic offences (driving recklessly or dangerously, driving without a licence, driving under the influence);
(c)Breaching Court orders;
(d)Dishonest offences (fraud, stealing, robbery, providing false details to police); and
(e)Violent offending (assault, assault public officer, assault occasioning bodily harm).
[7]See also R3 [6]–[17].
The Applicant has no other known criminal history in Australia or Chile.
The Applicant has been to prison on nine occasions, including a three-year term of imprisonment for “robbery in company”[8] on 5 February 2002, committed on 11 September 2001 and most recently for a number of offences committed from 4 February 2019 for which he was convicted on 19 February 2021.[9]
[8]Under section 392 and section 391(a)(i) (circumstances of aggravation) of the Criminal Code Act Compilation Act 1913 (WA) (the Criminal Code).
[9]R1, G4.
The Applicant is currently detained at Yongah Hill Immigration Detention Centre in Western Australia.
history of proceedings
In March 2003, September 2007, April 2008 and April 2019, the Department[10] warned the Applicant that his visa may be cancelled under s 501 on character grounds should he commit further criminal offences.[11]
[10]The Department of Immigration and Citizenship and later the Department of Immigration and Multicultural and Indigenous Affairs, as it was known at those times.
[11]R1, G20-G22; R2, TB 3, pp 481-482.
On 25 May 2021, the Visa was cancelled by the Delegate under subsection 501(3A) of the Migration Act (the Cancellation Decision).[12] The Visa was cancelled on the basis that the Applicant did not pass the character test in s 501(7)(c) of the Migration Act by virtue of his having been sentenced to a term of imprisonment of 12 months or more. [13]
[12]R1, G24.
[13]R1, G24. See sections 501(6)(a) and 501(7)(c) of the Migration Act.
Pursuant to paragraph 501CA(3)(b), the Applicant was invited to make representations about why the decision to cancel his visa should be revoked.[14]
[14]R1, G24.
On 21 June 2021, the Applicant requested the Cancellation Decision be revoked under s 501CA of the Migration Act and made representations in that regard.[15]
[15]R1, G15.
As noted above,[16] on 24 November 2022, the Delegate made the Reviewable Decision.[17] The Applicant was notified of the Reviewable Decision on the same day.[18]
[16]See [1] above.
[17]R1, G3.
[18]R1, G26.
On 30 November 2022, the Applicant lodged an application in the General Division of the Tribunal for review of the Reviewable Decision.[19] Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the Migration Act.
[19]R1, G2.
In his application for review, the Applicant stated that he was seeking review of the Reviewable Decision because he has lived in Australia for 38 years and he believes that the decision-maker has “not considered many of the factors and grounds that would have given [the Applicant] the chance to revoke the original cancellation decision”.[20]
[20]R1, G2, p 8.
ISSUES
The Applicant does not dispute that he does not pass the character test.[21] The Tribunal, in any event, so finds: s 501(6)(a) and 501(7)(c) of the Migration Act preclude a person from passing the character test if they have a “substantial criminal record,” which includes a person who has been sentenced to a term of imprisonment of 12 months or more.
[21]Transcript, p 10 [45] and p 57 [5].
On the basis that on 5 February 2002, the Applicant was sentenced to a term of imprisonment of three years[22] for the offence of “robbery in company”[23] he has a substantial criminal record as defined, and therefore does not pass the character test.
[22]See [9] above.
[23]Pursuant to section 392 and section 391(a)(i) (circumstances of aggravation) of the Criminal Code.
Accordingly, the remaining issue is whether the Tribunal should exercise the power in s 501CA(4) of the Migration Act to revoke the Cancellation Decision.[24] That will require determination under s 501CA(4)(b)(ii) of the Migration Act, as to whether there is “another reason”[25] why the decision to cancel the Visa should be revoked,[26] having regard to the primary and other considerations in Direction No. 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No. 90).[27]
[24]Direction No. 90 para 5.1(3).
[25]See BVLD v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 6 at [19] and [21].
[26]The Tribunal notes that the Applicant made representations in accordance with the invitation to do so.[27]Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), (08 March 2021).
The Tribunal’s decision must be made within the 84-day period after the day on which the Applicant was properly notified of the Reviewable Decision, in accordance with s 501G of the Migration Act. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed, under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (pursuant to s 500(6L) of the Migration Act).
The 84-day period for the Tribunal to decide this matter ended on 16 February 2023.
legislative framework
Migration Act
Mandatory cancellation of a visa under s 501(3A) of the Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)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
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test
Section 501(6) of the Migration Act provides that:
(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));…
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of
12 months or more;[28] or …(Original emphasis.)
[28]A term of imprisonment of 12 months or more must be for a singular offence, rather than an aggregate term for multiple offences: Pearson v Minister for Home Affairs [2022] FCAFC 203 at [47].
Power to revoke cancellation decision
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(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.
(Original emphasis.)
Direction No. 90
Pursuant to s 499(1) of the Migration Act, the Minister may give written directions to a person or body exercising powers under the Migration Act if those directions are about the performance of those functions or the exercise of those powers. Further, s 499(2A) of the Migration Act provides that a person or body must comply with such a direction.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (as he then was)[29] made Direction No. 90 under s 499 of the Migration Act. Direction No. 90 commenced operation on 15 April 2021, replacing the previous Direction No. 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (Direction No. 79), which was revoked on the same date.[30]
[29]From 1 July 2022, the title has changed to Minister for Immigration, Citizenship and Multicultural Affairs.
[30]Direction No. 90 paras 2–3.
The Tribunal notes that the Reviewable Decision was made by the Delegate applying Direction No. 90, which was the Ministerial direction in force at the time that the decision was made. As there are no transitional provisions in Direction No. 90, all decisions made on or after 15 April 2021 must apply that direction, as the Tribunal must apply law and policy in place at the time that it makes a decision.[31]
[31]See the discussion of the application of previous directions made under Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 upheld on appeal in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461.
The purpose of Direction No. 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[32] In exercising the power under s 501CA(4) of the Migration Act, the Tribunal must have regard to the primary and other considerations set out in Direction No. 90.[33]
[32]Direction No. 90 para 5.1(4).
[33]Direction No. 90 para 6.
Paragraph 5.1 of Direction No. 90 sets out “[o]bjectives”, with para 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 90 sets out “[p]rinciples” which must be taken into account by decision makers under ss 501 and 501CA of the Migration Act. These principles “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA” and are expressed as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. 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.
(2)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.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engage in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by any other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in para 5.2 of Direction No. 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[34]
[34]Direction No. 90 para 6; see also the definition of “decision-maker” in para 4(1) of Direction No. 90, which includes the Tribunal.
The primary considerations in Direction No. 90, in deciding whether to revoke the refusal or cancellation of a non-citizen’s visa, are:[35]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia; and
(4) expectations of the Australian community.
[35]Direction No. 90 para 8.
Paragraph 9 of Direction No. 90 sets out other considerations that the decision-maker must take into account. It relevantly provides that:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in para 7, “[t]aking the relevant considerations into account”, which provides:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
evidence
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant also called the following witnesses to give evidence:
(a)HC (the Applicant’s sister) (HC);[36] and
(b)FC (the Applicant’s brother) (FC).[37]
[36]HC gave evidence by telephone and her statements appear at A2; R1, G16 pp 129-133 and R2, TB4, pp 441-442.
[37]FC gave evidence by telephone and his statements appear at A3 and R2, TB4, pp 435-436.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s handwritten statement, filed on 30 January 2023 (A1);
(b)Statement of HC, filed on 1 February 2023[38] (A2);
(c)Statement of FC, filed on 1 February 2023[39] (A3);
(d)Respondent’s G-Documents, being a 182-page set of documents provided under s 501G of the Migration Act numbered G1 to G26, filed on 16 December 2022 (R1);
(e)Respondent’s Tender Bundle, being 590-page set of documents numbered TB1 to TB14, filed on 12 January 2023 (R2); and
(f)Respondent’s Statement of Facts, Issues and Contentions (SFIC), dated and filed on 12 January 2023 (R3).
[38]See transcript p 7 [20] regarding the Minister’s treatment of the two-day rule in s500(6H) of the Migration Act in this respect.
[39]See transcript p 7 [20] regarding the Minister’s treatment of the two-day rule in in s500(6H) of the Migration Act in this respect.
The Tribunal has taken into account the letters of support and statutory declarations of the Applicant’s family and friends who did not give evidence at the hearing.[40]
[40]See R1, G16, p 134; R1, G17; R1, G18; R2, TB4.
The Applicant
The Applicant provided evidence in his statements[41] and orally at hearing.[42]
[41]See A1; R1, G15; R2, TB3, pp 438-440.
[42]Transcript, pp 15-38 and pp 55-59.
The Applicant said he lived in Chile with his parents and his siblings until his arrival in Australia.[43]
[43]Transcript, p 15 [35]-[45].
The Applicant said that his maternal grandmother, uncle, two male cousins (being the children of one his aunties) and aunties (he thinks he has two) live in Chile.[44] The Applicant said he does not know where in Chile these relatives live.[45] The Applicant said that he thinks his mother is in contact with her mother (his grandmother).[46]
[44]Transcript, p 16 [10]-[35].
[45]Transcript, p 16 [40]-[45].
[46]Transcript, p 17 [5].
The Applicant said that he communicates with his mother in Spanish but is unable to read Spanish.[47]
[47]Transcript, p 17 [15]. .
The Applicant said he last saw his mother, sister and nieces in person in 2020, just prior to his incarceration.[48] The Applicant said he has not seen his brother in person “for about five years now – four years – personally.”[49]
[48]Transcript, p 17 [45] and p 18 [5]-[10].
[49]Transcript, p 18 [5].
The Applicant said that if he remained in Australia, his family would like him to live with his brother in New South Wales.[50]
[50]Transcript, p 18 [10]-[20].
The Applicant said he has never held an Australian drivers licence,[51] has not worked since 2018[52] and doesn’t have “any real training or qualifications.”[53]
[51]Transcript, p 18 [25].
[52]Transcript, p 18 [35].
[53]Transcript, p 18 [35].
As to the four formal warnings he received from the Department[54], the Applicant said he was aware from those notices (but not prior) that his visa could be cancelled if he committed offences,[55] yet continued to offend.[56]
[54]See [11] above.
[55]Transcript, p 18 [45]; p 19 [5]-[10].
[56]Transcript, p 19 [25].
When taken to his letter to the Department dated 23 March 2008 where he states:[57]
I could honestly say that I would not squander what would be my final chance to remain in Australia, which is the only country I call home.
The Applicant said having said that, his visa wasn’t cancelled at that time and he still continued to offend[58] although “[he] really thought that…[he] wasn’t going to re-offend.”[59]
[57]R2, TB3, p 439.
[58]Transcript, p 20 [30].
[59]Transcript, p 20 [45].
As to his drug use, the Applicant said he started using drugs when he was 15 years old.[60] The Applicant said that over the course of his life he has used LSD, cannabis, speed, methamphetamines and heroin.[61] The Applicant said he had used cannabis the most frequently[62] and nearly every day[63] from the age of 15 to 18.[64] The Applicant said that he was using heroin weekly from 2016 to 2020 other than when he stopped using for a three to four-month period in 2018.[65]
[60]Transcript, p 21 [40].
[61]Transcript, p 21 [40]-[45].
[62]Transcript, p 21 [40]-[45].
[63]Transcript, p 22 [5].
[64]Transcript, p 22 [5].
[65]Transcript, p 22 [5]-[30].
The Applicant said he was using methamphetamine most frequently in 2000 and 2001, when he was using between three and five points, monthly.[66]
[66]Transcript, p 22 [35]-[40].
The Applicant said that he used speed in 1999 or 2000, and he could “count it on…one hand how many times [he] used [it].”[67]
[67]Transcript, p 23 [5].
When asked, the Applicant said that at his peak drug use, he was spending between $100 and $200 on drugs per week[68] and that looking back his drug use “was a problem from the beginning.”[69]
[68]Transcript, p 23 [10].
[69]Transcript, p 23 [15].
When taken to a prison record of his having tested positive for cannabis and “others” in prison on 5 May 2003,[70] the Applicant said he did not recall this and thought he had never used drugs in prison.[71]
[70]R2, TB1, p 140.
[71]Transcript, p 23 [20]-[40].
As to his statement that he had “been drug free since September 2020,” but did “have one relapse in nearly three years,”[72] the Applicant said he had used suboxone in immigration detention in approximately August 2022.[73] The Applicant said he had also used Suboxone in about 2012 or 2013 “on the outside,” although it had not been prescribed to him at the time.[74]
[72]Transcript, p 24 [5].
[73]Transcript, p 24 [5]-[15].
[74]Transcript, p 24 [20]-[25].
When asked about his having been charged in June 2021 with having secreted some of his medication, the Applicant said he had given out his sleeping tablets on one occasion, for which he was sent to four days’ solitary confinement.[75]
[75]Transcript, p 24 [30]-[40].
The Applicant said that he was diagnosed with schizophrenia in 2007.[76] The Applicant said he takes antipsychotic and antidepressant medications including a depot injection every three weeks.[77] The Applicant said that in the past, there had been a couple of periods of time where he stopped taking his medication, including in 2021, for a period of less than 14 days. [78]
[76]Transcript, p 24 [45].
[77]Transcript p 25 [5].
[78]Transcript, p 25 [5] – [40].
When asked about his role in riots that occurred at Casuarina prison in 1998, for which he was convicted of criminal damage, the Applicant said he was 19 years old, he was very vulnerable and that he had thrown pool balls at the control room and ended up breaking the glass.[79]
[79]Transcript, p 26 [40]-[45]; p 27 [5].
The Applicant said that when he and the co-accused robbed the bank in Myaree in 2001, he had approached the teller, swore at her, demanded money, which she placed in a bag, grabbed the bag and ran off.[80] The Applicant said he later handed himself in to police and fully cooperated with them.[81]
[80]Transcript, p 27 [10]-[20].
[81]Transcript, p 27 [25].
When taken to the following representation the Applicant made in 2003 in response to the earliest notice of intention to consider cancelling the Visa:[82]
I promise the Immigration Department, that I Will [sic] not offend again.
The Applicant said that he did in fact go on to re-offend.[83]
[82]R2, TB9, p 498.
[83]Transcript, p 27 [40].
The Applicant said that he undertook a number of rehabilitative courses in prison in 2003, although he could not remember them all.[84]
[84]Transcript, p 27 [45]; p 28 [5].
When taken to a number of his other offences and related documents, the Applicant said:[85]
(a)When he was pulled over by police on 21 February 2005, he was charged for not having a drivers’ licence and he has never held one.[86]
(b)When he gave a false name to police on 12 October 2005,[87] it was because he knew he did not have a drivers’ licence and if police knew who he was he would be in trouble for driving a motor vehicle.
(c)When he stole a motor vehicle in 2007, and later used that vehicle in a number of “ram raids,”[88] he had no intention to commit these raids at the time he first took the car. Rather, the idea to do so “came up later on.”
(d)He did not really recall having punched a stranger in the face when riding the train in April 2007,[89] but “remember[ed] it happening.”
(e)When he was released on parole in April 2009, he breached the conditions of his parole by returning a positive urinalysis test result.[90]
(f)When he was stopped by police on Boxing Day 2015 with a stolen Fitbit fitness watch,[91] he told the police he had bought it the previous day, then told them someone had given it to him, to try to avoid himself getting into trouble.
(g)During his parole interview in May 2021, he did not recall saying that he mostly attributed his offending behaviour to drug use, nor that he advised that he “liked the rush” from offending/taking risks.[92]
(h)As to his comment to the Pathways Program facilitator that his relationship with his mother was dependent on his continued abstinence,[93] the Applicant said this mother was “not going to put up with nonsense.”
[85]Transcript, pp 28 to 33.
[86]See R2, TB2, p 320.
[87]See R2, TB2, p 309.
[88]See R2, TB2, p 286.
[89]See R2, TB2, p 293.
[90]See R2, TB1, p 19.
[91]See R2, TB2, p 258.
[92]See R2, TB2, p 116.
[93]See R2, TB1, p 45.
When asked, the Applicant said that when he was offending over the years, he was under the influence of substances “most of the time.”[94] The Applicant said that he continued to offend over the years in order to support his substance use, and:[95]
And the lifestyle too, you know, like not just drugs but like just to be able to go out and it was - it was just a real selfish ambition…
…
We used to use the car to go out to, you know… well, I couldn’t afford to buy a nice car … and I’ve been charged with stealing many motor vehicles, more than maybe three or four times. I don’t know how to steal a motor vehicle. The only time I ended up driving the car is when I get a hold of the keys. I wouldn’t know how to start a car without the keys. It’s just - you know, it’s just - at the time it’s just impulsive and opportunistic…
…
I think I stole the cars to show off…
…
To say, like, I’ve got a bit of money. You know, I’ve got $500 in my pocket or $1000 in my pocket and I’ve also got the car to go with it. Like, it was just to show off, just to say - to look on the outside - to look successful…
I continued to offend because I was just immature. I was just - you know, I just - I never - I didn’t take it seriously… And by me going to prison, like I was saying, it’s kind of like I’ve paid my debt and that should be sufficient enough, but it’s not. And now I’m in a scary position.
[94]Transcript, p 34 [30].
[95]Transcript, pp 35, 36 and 38.
HC - the Applicant’s sister
HC gave evidence that:[96]
[96]See fn 36 and transcript, pp 39 to 43.
(a)Her maternal grandmother, her two aunties and one uncle live in Chile. Both aunties have children that her family in Australia do not know.
(b)Their relatives in Chile are of very low income and would not be able to support the Applicant if he returned to Chile.
(c)Her mother speaks to her grandmother, but not all the time.
(d)Her mother speaks Spanish and she communicates with her mother in Spanish.
(e)She has not visited the Applicant since he was most recently in prison (in 2020).
(f)As time has passed the Applicant’s offending seems to have escalated.
(g)She thinks the Applicant has been charged with stealing and robbery, but that is as much as she knows in terms of his offending.
(h)She knows the Applicant has been charged “a lot” but he never really told the family what his charges were.
(i)She knew the Applicant was taking marijuana and drinking.
(j)She was never there when the Applicant was doing “hard drugs,” but believes that he “did that.”
FC - the Applicant’s brother
FC gave evidence that:[97]
(a)His family in Australia is not in contact with family members in Chile other than his grandmother.
(b)The Applicant’s drug use consists of his medication for his mental health.
(c)He is aware that the Applicant experienced “difficulty with [the] law” that led him to “live in detention.”
(d)The Applicant has not taken other drugs for the last few years as it will affect his mind.
(e)If the Applicant were to remain in Australia, he would like the Applicant to stay with him in Sydney so that he could look after him and for their mother’s wellbeing.
[97]See fn 37 and transcript, pp 44 to 46.
discretion to refuse to grant the visa
Having determined the Applicant does not pass the ‘character test,’ the Tribunal must determine whether the discretion should be exercised to revoke the Cancellation Decision.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Applicant does not pass the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No. 90, there is another reason why the Cancellation Decision should be revoked.[98]
[98]Pursuant to s 501CA(4)(b)(ii) of the Migration Act.
While the Applicant makes no specific submissions regarding the considerations before the Tribunal, it is clear that the Applicant is broadly of the view that:
(a)He is a very low risk of reoffending;
(b)He would face hardship in re-establishing himself in Chile if removed; and
(c)He has strong familial ties in Australia and is largely unfamiliar with extended family in Chile.
The Respondent is of the view, however, that the protection of the Australian community and the expectations of the Australian community weigh very heavily against revocation and outweigh the considerations that fall in the Applicant’s favour, namely:
(a)The best interests of minor children;
(b)The extent of impediments if removed; and
(c)The Applicant’s links to the Australian community (being the strength, nature and duration of the Applicant’s ties to Australia).[99]
First primary consideration: Protection of the Australian community (paragraph 8.1 of Direction No. 90)
[99]See, for eg, transcript, p 12 [10].
Paragraph 8.1(1) of Direction No. 90 provides that:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, 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.
Paragraph 8.1(2) of Direction No. 90 then provides:
(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.
Nature and seriousness of the conduct (para 8.1.1 of Direction No. 90)
Paragraph 8.1.1(1) of Direction No. 90 provides:[100]
[100]See also Direction No. 90 para 8.1(2)(a).
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(Emphasis added.)
The Applicant made no specific submissions regarding the nature and seriousness of his offending conduct. However, the Tribunal understands the Applicant accepts that he has committed serious offences over the years.[101]
[101]Transcript, p 29 [20].
The Respondent contended that the nature and seriousness of the Applicant’s conduct should be viewed as very serious, and weighs heavily against revocation, because:[102]
[102]R3 [33]-[39].
(a)The Applicant has committed numerous violent offences, including two “ram raids” where a vehicle was rammed into two different electronics stores so that the Applicant could loot from them.[103] Those ram raids caused extensive structural damage.[104]
[103]R2, TB2, pp 286 to 290.
[104]R2, TB2, p 287 and p 290
(b)The Applicant has also committed “assault occasioning bodily harm” by:
(i)Punching a security officer in the face who confronted him for stealing;[105]
(ii)Punching a stranger in the face completely unprovoked while commuting on a train;[106] and
(iii)Spitting on and pushing a police officer when that officer tried to restrain him for acting aggressively.[107]
(c)Violent offences are viewed very seriously by the Australia Government and the Australian community.[108] As one of the violent offences was against a public official in the performance of his duties, that adds to the seriousness of the Applicant’s offending.[109]
(d)The Applicant has been sentenced to numerous terms of imprisonment for his offending.[110] Between 1997 and 20211, the Applicant has been sentenced to terms of imprisonment totalling almost 20 years.[111] Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[112] Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.
(e)The Applicant has repeatedly committed offences in the past 25 years. This behaviour must be seen as cumulatively having a deleterious impact on the Australian community.[113]
(f)Significantly, the Applicant has continued to offend despite being formally warned on multiple occasions that further offending could result in visa cancellation.[114] His brazen disregard for those warnings adds to the seriousness of his offending.[115]
(g)The Applicant has also engaged in serious conduct even as a youth, including burglaries and stealing which resulted in proceedings in the Children’s Court.[116]
[105]R2, TB2, p 257
[106]R2, TB2, p 293.
[107]R2, TB2, p 296. The Tribunal notes that on this occasion, the Applicant was recorded as having sworn at the police officer (and as a result, sprayed the officer with bloodied spital) and having pushed the police officer.
[108]Paragraph 8.1.1(1)(a)(i) of Direction No. 90.
[109]Paragraph 8.1.1(1)(b)(ii) of Direction No. 90.
[110]Paragraph 8.1.1(1)(d) of Direction No. 90.
[111]R1, G4, pp 30 to 36.
[112]Citing PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
[113]Paragraph 8.1.1(1)(d) and 8.1.1(1)(e) of Direction No. 90.
[114]R1, G20 to G22.
[115]Paragraph 8.1.1(1)(g) of Direction No. 90.
[116]R2, TB2, p 181. As to whether the Applicant’s offending conduct as a juvenile ought to be taken into consideration in this context, the Tribunal notes the Respondent’s submissions relating to the decision of the Full Federal Court in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (see R3, [38], [39]). In the circumstances, namely that the Applicant’s juvenile offending occurred over 27 years ago and that the Applicant has since accrued an extensive, lengthy and very serious criminal history, the Tribunal has disregarded his juvenile offending out of an abundance of caution. In any event, the Tribunal is of the view that any consideration of the Applicant’s juvenile offending would not be determinative, particularly given the limited evidence available to it (which excludes the statements of material facts relating to each of the offences).
The first primary consideration, “Protection of the Australian community from criminal or other serious conduct”,[117] requires the decision-maker to look at “the non-citizen’s criminal offending or other conduct to date”. [118] For completeness, the Tribunal notes there is no “other conduct” to date that falls for consideration in this matter.
[117]Para 8(1) of Direction No. 90.
[118]Direction No. 90, para 8.1.1(1).
In assessing the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction No. 90, the Tribunal has regard to the fact that the Applicant has been in Australia for 38 years, having come to Australia as a five-year-old. In that time, the Applicant has engaged in serious offending on a frequent basis. The Tribunal notes the facts and circumstances of the Applicant’s offending and the convictions imposed.
The Tribunal has regard to the fact that the Applicant has committed violent offences.[119] The Tribunal is disturbed by the fact that the Applicant’s violent offences were against strangers and member of the public going about their daily lives. In the context of the Applicant’s violent offending, these members of the public are vulnerable members of the community.[120]
[119]Paragraph 8.1.1(1)(a)(i) of Direction No. 90.
[120]Paragraph 8.1.1(1)(b)(ii) of Direction No. 90.
Similarly, the Tribunal has regard to the fact that the Applicant’s driving and traffic offences are clearly serious crimes against other road users. The Tribunal has previously cited the seriousness of driving related offences such as those committed by the Applicant.[121] In particular, as noted by Senior Member Evans in MJNN:
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community.’ Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle…can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Emphasis added.)
[121]Citing MJNN and Minister for Home Affairs (Migration) [2019] AATA 3205 (MJNN), at [54]-[55] per Senior Member Evans; Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561, at [43]-[45] per Senior Member Tavoularis; Wang and Minister for Immigration and Border Protection [2017] AATA 89, at [7] per Senior Member Bell; Zaya and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 366, at [54] per Deputy President Kendall; Apire and Minister for Immigration and Border Protection [2014] AATA 193, at [16] per Member Webb; Kohli and Minister for Immigration and Border Protection (Migration) [2017] AATA 1326, at [20] per Senior Member Poljak; Berryman and minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 421, at [80]-[81] per Deputy President Boyle.
Again, in the context of the Applicant’s offending, these road users are vulnerable members of the community and these offences add to the overall seriousness of the Applicant’s criminal conduct.[122] The Tribunal notes the Applicant’s driver’s licence suspensions totalling approximately eight years, which is significant in terms of duration, but also due to the fact that the Applicant has never actually held a driver’s licence.
[122]Paragraph 8.1.1(1)(d) of Direction No. 90.
The Applicant’s victims also include a police officer who was performing his duties at the time of the Applicant’s offending.[123]
[123]See [73(b)(iii)] above. Paragraph 8.1.1(1)(b)(ii) of Direction No. 90.
The Applicant’s evidence was that he was under the influence of substances while he committed these (and other) offences, which increases the potential for catastrophic harm. The Tribunal has previously recognised that drugs ‘cause[s] real and serious harm to the Australian community.’[124]
[124] Kanara and Minister for Immigration and Citizenship [2011] AATA 132 at [32] per SM Toohey.
Exacerbating this conduct is that the Applicant has continued to use drugs following periods in prison and after having been formally warned on four occasions that the Visa may be cancelled if he continued to offend.[125] This evidences a continued disregard for the law and a lack of rehabilitation, particularly in circumstances where the Applicant’s evidence is that he understood the effect of these letters of warning.
[125]Paragraph 8.1.1(1)(g) of Direction No. 90.
The Applicant has also been found in breach of his parole as a result of returning positive urine samples for ongoing drug use. These matters serve to highlight the severity of the Applicant’s offending.
The Applicant’s offending also involved conduct that formed the basis of the finding that he did not pass the character test[126] and resulted in a three-year term of imprisonment.[127]
For completeness, a prison sentence is the last resort in the sentencing hierarchy and in the Applicant’s case, his sentence of imprisonment follows being afforded leniency on several occasions and indicates the overall seriousness of the Applicant’s offending. Further, the Tribunal notes that the Courts have sentenced the Applicant to numerous terms of imprisonment over a 25-year period, with those terms totalling approximately 20 years and approximately seven years served.
[126]Paragraph 8.1.1(1)(b)(iii) of Direction No. 90.
[127]Paragraph 8.1.1(1)(c) of Direction No. 90.
The Applicant’s frequency of offending has been consistently high for a sustained period of time (the last 10 to 15 years)[128] such that the cumulative effect is to be viewed seriously.[129] This also adds to the seriousness of the Applicant’s offending in circumstances where the Applicant has spent a significant time in custody.[130]
[128]As opposed to having increased in seriousness over the years. See paragraph 8.1.1(1)(d) of Direction No. 90.
[129]Paragraph 8.1.1(1)(e) of Direction No. 90.
[130]Paragraph 8.1.1(1)(d) of Direction No. 90.
In summary, for the reasons given above, the Tribunal is satisfied that having regard to the evidence to which the sub-paras of 8.1.1 of Direction No. 90 are relevant, the nature and seriousness of the Applicant’s conduct is such that it ought to be viewed very seriously and weighs very strongly against the revocation of the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2 of Direction No. 90)
Paragraph 8.1.2 of Direction No 90 states, in part:[131]
[131]See also Direction No. 90 para 8.1(2)(b).
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)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; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
(Emphasis added.)
The Tribunal in CZCV and Minister for Home Affairs[132] (CZCV) summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice…(2013) 41 VR 359 , [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “… there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[132][2019] AATA 91 [56]–[57]. The Tribunal in CZCV and the Courts referred to in the related cited cases were considering visa cancellation in the context of predecessors to Direction No. 90. Given the similarity in wording, the same considerations and principles apply to the present matters. The Tribunal therefore follows the approach in these cases.
Nature of the harm (para 8.1.2(2)(a) of Direction No. 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct.
This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct.[133]
[133]Paragraph 8.1.2(2)(a) of Direction No. 90.
The Applicant made no specific submissions regarding whether his offending conduct has the potential to cause physical, psychological and/or financial injury to members of the Australian community. At hearing, the Applicant appeared to accept that his offending may have an impact on or cause harm to the Australian community.[134] However, the Applicant did not elaborate on the type of harm that could be caused or how this would impact a member of the community or the community at large. Rather, the Applicant was focused on how his offending had impacted his immediate family and his relationships within it.
[134]For example, the Applicant stated that his having approached the bank teller, sworn at her and demanded money would have “probably scared” her (transcript, p 27 [15]-[20]).
The Respondent submitted that the present matter is one where the risk of harm is so serious that any risk of reoffending is unacceptable,[135] because if the Applicant were to reoffend by committing further violent offences including by ram raiding other stores, the nature of the harm that may result includes significant physical, psychological and financial harm.[136] The Respondent submitted further that:[137]
(a)The financial harm will be readily apparent given the Applicant has stolen cars, bikes and electronic goods. The combined value of those stolen items adds up to tens of thousands of dollars.[138]
(b)As described by the sentencing judges, pervasive theft leads to a sense of unease and insecurity in the community.[139]
(c)Where stealing occurs in the context of a threat, such as against the bank teller who the Applicant demanded put money in a bag, it can cause significant distress.[140]
[135]R3 [41]. Paragraph 8.1.2(1) of Direction No. 90.
[136]R3 [41].
[137]R3 [41].
[138]R2, TB2, pp 286 to 291.
[139]R1, G11, p 79.
[140]R1, G5, p 39.
Should the Applicant commit further similar offences, this would clearly result in further harm that may cause considerable physical, psychological and economic harm to members of the Australian community.
As such, the Tribunal finds that the nature of the harm to individuals or the Australian community if the Applicant were to engage in further criminal or other serious conduct to be objectively high.
Likelihood of the non-citizen engaging in further criminal or other serious conduct (para 8.1.2(2)(b) of Direction No. 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence.[141]
[141]Paragraph 8.1.2(2)(b)(i) of Direction No. 90.
At hearing, the Applicant submitted that he believes himself to be a very low risk of reoffending, given his generally good conduct in prison and his time in detention having woken him to the risk of removal.[142] The Applicant stated he believes he has sufficiently recovered from his drug addiction,[143] having completed the Pathways program which was “really intense.”[144]
[142]Transcript, p 56 [25]-[30].
[143]Transcript, p 57 [35].
[144]Transcript, p 58 [5].
The Respondent submitted that there remains an ongoing and unacceptable risk of the Applicant reoffending because:[145]
(a)The Applicant has repeatedly re-offended over two decades despite numerous terms of imprisonment, the imposition of bail conditions and good behaviour bonds and counselling. Notwithstanding his frequent interactions with the criminal justice system, the Applicant continued to re-offend. The Applicant’s claim to have been rehabilitated or reviewed his resolve to not re-offend[146] should be rejected given he had made similar promises to not re-offend in the past[147], clearly to no avail.
(b)The Applicant has longstanding issues with substance abuse. This was emphasised by the sentencing Magistrate in November 2018 who told him that unless he addressed his drug use, he would be stuck in the cycle of re-offending and going to jail.[148] Concerningly, despite the Applicant’s participation in community programs, there has been minimal progress with the Applicant’s rehabilitation and his motivation to address his substance use was described in sentencing as “up in the air.”[149] The Applicant plainly has deeply entrenched substance abuse issues, including with alcohol, cannabis and methamphetamine.[150] The issues are so entrenched that even in the highly controlled prison environment, the Applicant has been able to source and use drugs.[151]
(c)The Applicant’s drug use has also resulted in mental health issues, such as schizophrenia.[152] It is unclear whether that condition is properly treated.
(d)The Applicant has shown little to no insight into his offending, sometimes even proclaiming that he did not commit the stealing that he pleaded guilty to, despite his fingerprint being found for instance on a stolen vehicle.[153] In a Treatment Assessment Report dated December 2021, the Applicant was recorded as displaying “minimal remorse and insight of the impact of his offending towards the victims.”[154]
(e)In December 2021, the Applicant was assessed by the Department of Justice as “a very high risk of general reoffending.”[155] The Applicant was denied parole in 2021.[156]
(f)The Applicant does not have any meaningful support network to prevent him from re-offending. Indeed, the majority of his friends also engage in antisocial or criminal activities.[157] The Applicant has not been able to maintain stable employment in the past.[158] There are therefore no protective factors which would reduce the risk of the Applicant re-offending.
[145]R3 [42].
[146]R1, G15, p 124.
[147]R2, TB4, p 439.
[148]R1, G11, p 80.
[149]R1, G11, p 80.
[150]R2, TB1, pp 32, 140 and TB2 pp 201, 244, 265.
[151]R2, TB1, p 135.
[152]R2, TB1, p 135.
[153]R1, G7, p 45.
[154]R2, TB1, p 137.
[155]R2, TB1, p 140.
[156]R2, TB1, p 141.
[157]R2, TB1, p 141.
[158]R2. TB1, p 140.
The Respondent submitted that therefore, the protection of the Australian community consideration weighs very heavily in favour of non-revocation.
The Tribunal has considered the available evidence and the parties’ submissions in relation to the Applicant’s risk of reoffending.
The Tribunal notes that the Department of Justice’s assessment of the Applicant being at a very high risk of general reoffending includes a recommendation that the Applicant complete the Pathways Program “as his offending behaviour is heavily precipitated by substance abuse.”[159] The Applicant completed this program in 2021 and continued to use drugs (namely, Suboxone) in the highly controlled detention environment and has also secreted medication in prison. On completion of the program, the Applicant stated (troublingly in the Tribunal’s view) that he did not know what he was going to do without drugs and he thought his re-entry into the community would end in relapse.
[159]R2, TB1, p 142.
Therefore, the Tribunal has considerable concern over whether the Applicant has in fact gained control over his drug use and in turn[160] whether the Pathways Program has had a positive outcome in terms of reducing the Applicant’s risk of reoffending. Certainly, the formal warnings did not result in the Applicant identifying his outstanding treatment needs or seeking out any assistance or support to rehabilitate.
[160]Given the relationship between the Applicant’s substance use and his offending.
The Tribunal also has concerns that the Applicant did not pursue counselling or other therapies prior to this time.
The Tribunal is of the view that the Applicant continues to be unable to demonstrate insight into his offending, his explanation for his offending conduct largely being his need to “show off” or obtain funds to support his drug use. The Tribunal has concerns that if released, the Applicant would continue to offend in order to support his dependency in circumstances where:
(a)His drug use and offending are inextricably linked, his drug use being the precipitant;
(b)He has, at times, been non-compliant with his treatment/medication for his schizophrenia;
(c)His claimed future support network, including his brother whom he intends to live with, have no real understanding of his offending history and the deeply entrenched nature (and extent) of his drug use. This calls into question over whether the Applicant’s family is well-positioned and sufficiently informed to serve as a protective factor;
(d)He completed the Pathways Program and lacked personal confidence in his ability to abstain from drug use in the community; and
(e)He remains unaware of the extent of his remaining treatment needs.
The Applicant stated that he is very remorseful for his offending.[161] The Tribunal accepts that this belief is genuinely held. However, the Tribunal is unconvinced that the Applicant understands that his offending conduct caused harm and had potential catastrophic consequences. This being so, the protective factors of remorse and insight are not present to any extent that they would have bearing on the Applicant’s risk of reoffending.
[161]Transcript, p 57 [5].
The Applicant continued to offend following being treated with leniency by the Courts and being given formal warnings. He was also non-compliant with his parole conditions in 2009.
Therefore:
(a)The Tribunal considers that there is a real and unacceptable risk that the Applicant will continue to reoffend; and
(b)The Tribunal finds that, on balance, paragraph 8.1.2 of Direction No. 90, being the risk to the Australian community should the Applicant commit further offences, weighs very strongly against revocation of the Cancellation Decision.
Summary on paragraph 8.1 of Direction No. 90
The Tribunal has found that, on balance, paragraphs 8.1.1 and 8.1.2 of Direction No. 90 weigh strongly against revocation of the Cancellation Decision. Thus, overall, the Tribunal finds that the primary consideration of the protection of the Australian community weighs very strongly against the revocation of the Cancellation Decision.
Second primary consideration: Whether the conduct engaged in constituted family violence (para 8.2 of Direction No. 90)
Paragraph 8.2 of Direction No. 90 provides that decision-makers must have regard to family violence perpetrated by the non-citizen when deciding whether to refuse or cancel a visa under s 501 of the Migration Act:
(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 (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non-citizen engage in further acts of family violence.
“Family violence” is defined in para 4(1) of Direction No. 90 as:
violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a)an assault; or
b)a sexual assault or other sexually abusive behaviour; or
c)stalking; or
d)repeated derogatory taunts; or
e)intentionally damaging or destroying property; or
f)intentionally causing death or injury to an animal; or
g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominately dependent on the person for financial support; or
i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
j)unlawfully depriving the family member, or any member of the family member’s family, or his or her liberty.
The Tribunal is required to consider whether family violence considerations arise on any of the submissions, materials or evidence before the Tribunal.
Neither party made any submission on this consideration other than the Respondent’s confirmation that there is no evidence the Applicant engaged in family violence and hence this factor should be given neutral weight.[162]
Third primary consideration: The best interests of minor children in Australia affected by the decision (para 8.3 of Direction No. 90)
[162]R3 [44]; Transcript, p 52 [20].
Paragraph 8.3 of Direction No. 90 provides, in part:
(1)Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3)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.
Paragraph 8.3(4) of Direction No. 90 continues to outline the factors that a
decision-maker must consider when determining the best interests of a child:
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
e)whether there are other persons who already fulfil a parental role in relation to the child;
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
(Emphasis added.)
The Applicant’s minor children
The Tribunal must make a determination about whether revocation is in the best interests of the child.[163] This primary consideration only applies with respect to children under 18 years old at the time of the decision to revoke or not to revoke the cancellation.[164]
[163]Para 8.3(1) of Direction No. 90.
[164]Para 8.3(2) of Direction No. 90.
The Applicant has no minor children. The Applicant has three nieces he claims would be affected by the Tribunal’s decision.[165] Two of the Applicant’s nieces are of minor age (15 years old and 12 years old respectively, by the Applicant’s evidence). The Applicant last saw his nieces face to face in 2020, just prior to his incarceration.[166]
[165]R1, G15, pp 121-122.
[166]Transcript, p 17 [45].
The Applicant submitted he had a close relationship with his nieces, that they “get together every so often” and that he has been there for them since birth. The Applicant also suggested that as his sister, HC, has divorced, his help will likely be needed. The Applicant said that he would love to play a role in his nieces’ lives as they grow up.[167]
[167]Transcript, p 56 [40].
The Respondent submitted that to the extent that the Applicant’s nieces are minors, minimal weight can be placed upon the best interests of those children because:[168]
(a)The precise extent of the Applicant’s relationship with the children is presently unknown and it is notable that, in light of his term of imprisonment, it is likely that there have been long periods of absence with them.[169]
(b)The children presumably live with their parents who fulfil the parental role and provide for them.[170]
(c)Given the nature of the Applicant’s offending, he is unlikely to play a positive parental role in these children’s lives unless he is able to abstain from drug use and cease offending, which is unlikely for the reasons stated above under the protection of the Australian community consideration.[171]
(d)There is no obvious impediment to the Applicant having contact with these children via electronic means.[172]
[168]R3 [47].
[169]Paragraph 8.3(4)(a) of Direction No. 90, citing Healey v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 188 at [31].
[170]Paragraph 8.3(4)(e) of Direction No. 90.
[171]Paragraph 8.3(4)(b), 8.3(4)(c) of Direction No. 90.
[172]Paragraph 8.3(4)(d) of Direction No. 90.
The Respondent submitted that, therefore: [173]
(a)Given the lack of evidence, this consideration is neutral or, at best, weighs only slightly in favour of revocation; and
(b)In any event, this consideration does not outweigh the other primary considerations weighing heavily against revocation.
[173]R3 [48].
The Tribunal accepts that two of the Applicant’s three nieces are minors and considers their interests together.[174] The Tribunal notes that the evidence of their relationship with the Applicant is essentially limited to the Applicant’s wish to play a role in their lives as they grow up. There is no evidence as to how these children will be impacted if the Applicant were to return to Chile, or how (if at all) they have been impacted by the Applicant’s offending, imprisonment or detention. The Tribunal also noted that the Applicant’s siblings or the children themselves have not provided any meaningful evidence in this regard.
[174]Paragraph 8.3(3) of Direction No. 90. The Tribunal considers it is appropriate to deal with the Applicant’s two minor aged nieces collectively as their interests are common and shared.
Having considered the relevant factors and available evidence, the Tribunal finds the best interests of the Applicant’s two minor nieces lie slightly in favour of the Cancellation Decision being revoked. This is because:
(a)The relationship between the Applicant and his nieces is non-parental, there is no evidence of meaningful contact and they have not seen the Applicant in person since 2020.[175]
(b)There is a reasonable amount of time until the Applicant’s minor nieces turn 18. As to the extent the Applicant is likely to play a positive parental role in the future, the Tribunal accepts the Applicant desires a relationship with them. Equally, the Applicant has unmet treatment needs and has been found to have a very real risk of reoffending. This raises considerable doubt over the Applicant’s ability at present to be a positive role model for his minor nieces.[176]
(c)HC fulfils the parental role in relation to the Applicant’s minor nieces (HC’s daughters).[177]
(d)The views of the Applicant’s minor nieces are unknown.[178]
(e)The likely effect of long-term separation from the Applicant would ultimately have a negative effect on his minor nieces.[179] While it would be possible to maintain contact via electronic means, it is not ideal.
(f)There is no evidence that the Applicant’s prior conduct, and any likely future conduct has had or will have a negative impact on his minor nieces,[180] or that:
(i)They have been or are at risk of being subject to, or exposed to family violence perpetrated by the Applicant;[181] or
(ii)They have suffered or experienced any physical or emotional trauma arising from the Applicant’s conduct.[182]
[175]Paragraph 8.3(4)(a) of Direction No. 90.
[176]Paragraph 8.3(4)(b) of Direction No. 90.
[177]Paragraph 8.3(4)(e) of Direction No. 90.
[178]Paragraph 8.3(4)(f) of Direction No. 90.
[179]Paragraph 8.3(4)(d) of Direction No. 90.
[180]Paragraph 8.3(4)(c) of Direction No. 90.
[181]Paragraph 8.3(4)(g) of Direction No. 90.
[182]Paragraph 8.3(4)(h) of Direction No. 90.
Having weighed the considerations in favour of revocation of the Cancellation Decision and the considerations against revocation of the Cancellation Decision, the Tribunal finds that the number of considerations weighing in favour of revocation are, prima facie, greater than those weighing against revocation.
There is factual material, which is slightly in the Applicant’s favour, in relation to the best interests of his minor nieces, the extent of impediments if removed and the Applicant’s links to the Australian community.
Despite these considerations weighing in the Applicant’s favour, the Tribunal is nonetheless of the exceptionally strong view that, due to:
(a)the real and unacceptable risk of harm to the Australian community; and
(b)the seriousness of the Tribunal’s concerns regarding there being any risk at all of the Applicant reoffending in a similar way,
the protection of the Australian community from future harm (from either the Applicant’s future offending, or any other serious conduct) is a primary consideration which, in addition to the expectations of the Australian community consideration, outweighs any and all considerations weighing in the Applicant’s favour.
Therefore, the Tribunal finds there is not another reason why the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of the Delegate dated 24 November 2022, not to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa pursuant to s501CA(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 173 (one hundred and seventy-three) paragraphs are a true copy of the reasons for the decision herein of L M Gallagher, Member
...................[Sgd].....................................................
Associate
Dated: 1 March 2023
Date of hearing: 2 February 2023 Applicant: In person Solicitors for the Respondent: Mr C West, Sparke Helmore Lawyers Annexure A – Table of the Applicant’s Offending
Court Court Date Offence Court Result 1. Fremantle Magistrates Court 19 February 2021 Bicycle rider fail to wear protective helmet Fine: $100 2. Fremantle Magistrates Court 19 February 2021 Bicycle rider fail to wear protective helmet Fine: $100 3. Fremantle Magistrates Court 19 February 2021 Bicycle rider fail to wear protective helmet Fine: $100 4. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 5. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 6. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 7. Fremantle Magistrates Court 19 February 2021 Stealing Imprisonment: five months concurrent from 14/09/2020 8. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 9. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 10. Fremantle Magistrates Court 19 February 2021 Stealing Imprisonment: five months concurrent from 14/09/2020 11. Fremantle Magistrates Court 19 February 2021 Stealing Imprisonment: five months concurrent from 14/09/2020 12. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 13. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 14. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 15. Fremantle Magistrates Court 19 February 2021 Stealing Imprisonment: five months concurrent from 14/09/2020 16. Fremantle Magistrates Court 19 February 2021 Stealing No sentence section 11 17. Fremantle Magistrates Court 19 February 2021 Stealing Fine: $500 18. Fremantle Magistrates Court 19 February 2021 Steal Motor Vehicle Imprisonment: six months cumulative from 14/09/2020 19. Fremantle Magistrates Court 19 February 2021 Attempted Gains Benefit by Fraud Imprisonment: two months concurrent from 14/09/2020 20. Fremantle Magistrates Court 19 February 2021 Attempted Gains Benefit by Fraud Imprisonment: two months concurrent from 14/09/2020 21. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 22. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 23. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 24. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months cumulative from 14/09/2020 25. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 26. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 27. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 28. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 29. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 30. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 31. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 32. Fremantle Magistrates Court 19 February 2021 Gains Benefit by Fraud Imprisonment: three months concurrent from 14/09/2020 33. Fremantle Magistrates Court 19 February 2021 Breach of Bail (Fail to appear soon after) Imprisonment: three months concurrent from 14/09/2020 34. Fremantle Magistrates Court 19 February 2021 Breach of Bail (Fail to appear soon after) Imprisonment: three months concurrent from 14/09/2020 35. Fremantle Magistrates Court 19 February 2021 Breach of Bail Undertaking Imprisonment: three months concurrent from 14/09/2020 36. Fremantle Magistrates Court 19 February 2021 Breach of Suspended Imprisonment Order of 20 November 2018 Imprisonment: four months concurrent from 14/09/2020 37. Fremantle Magistrates Court 19 February 2021 Breach of Suspended Imprisonment Order of 20 November 2018 Imprisonment: six months concurrent from 14/09/2020 38. Fremantle Magistrates Court 19 February 2021 Breach of Suspended Imprisonment Order of 20 November 2018 Imprisonment: four months concurrent from 14/09/2020 39. Fremantle Magistrates Court 19 February 2021 Breach of Suspended Imprisonment Order of 20 November 2018 Imprisonment: four months concurrent from 14/09/2020 40. Fremantle Magistrates Court 19 February 2021 Breach of Suspended Imprisonment Order of 20 November 2018 Imprisonment: two months cumulative from 14/09/2020 41. Fremantle Magistrates Court 19 February 2021 Breach of Suspended Imprisonment Order of 20 November 2018 Imprisonment: four months concurrent from 14/09/2020 42. Fremantle Magistrates Court 19 February 2021 Breach of Suspended Imprisonment Order of 20 November 2018 Imprisonment: four months concurrent from 14/09/2020 43. Fremantle Magistrates Court 19 February 2021 Burglary and commit Imprisonment: nine months concurrent from 14/09/2020 44. Fremantle Magistrates Court 19 February 2021 Possessed drug paraphernalia in or on there was a prohibited drug or plant Fine: $300 45. Fremantle Magistrates Court 19 February 2021 Possessed drug paraphernalia in or on there was a prohibited drug or plant Order for Destruction 46. Fremantle Magistrates Court 19 February 2021 Possession of stolen or unlawfully obtained property Imprisonment: one months concurrent from 14/09/2020 47. Fremantle Magistrates Court 19 February 2021 Possession of stolen or unlawfully obtained property Imprisonment: two months concurrent from 14/09/2020 48. Fremantle Magistrates Court 20 December 2019 Possessed drug paraphernalia in or on there was a prohibited drug or plant Fine: $500 (global) 49. Fremantle Magistrates Court 20 December 2019 Possessed a Prohibited Drug (Cannabis) Fine: $500 (global) 50. Perth Magistrates Court 20 November 2018 Possession of stolen or unlawfully obtained property Suspended imprisonment order - Original term: six months one day suspended for eight months concurrent from 20 November 2018 51. Perth Magistrates Court 20 November 2018 Possessed drug paraphernalia in or on there was a prohibited drug or plant Suspended fine: suspended for eight months from 20 November 2018 52. Perth Magistrates Court 20 November 2018 Person who breaches CRO or community order without reasonable excuse Fine: $500 (global) 53. Perth Magistrates Court 20 November 2018 Person who breaches CRO or community order without reasonable excuse Fine: $500 (global) 54. Perth Magistrates Court 20 November 2018 Person who breaches CRO or community order without reasonable excuse Fine: $500 (global) 55. Perth Magistrates Court 20 November 2018 Person who breaches CRO or community order without reasonable excuse Fine: $500 (global) 56. Perth Magistrates Court 20 November 2018 Person who breaches CRO or community order without reasonable excuse Fine: $500 (global) 57. Perth Magistrates Court 20 November 2018 Person who breaches CRO or community order without reasonable excuse Fine: $500 (global) 58. Perth Magistrates Court 20 November 2018 Attempted Gains Benefit by Fraud Suspended imprisonment order - Original term: four months suspended for eight months concurrent from 20 November 2018 59. Perth Magistrates Court 20 November 2018 Gains Benefit by Fraud Suspended imprisonment order - Original term: four months suspended for eight months concurrent from 20 November 2018 60. Perth Magistrates Court 20 November 2018 Gains Benefit by Fraud Suspended imprisonment order - Original term: four months suspended for eight months concurrent from 20 November 2018 61. Perth Magistrates Court 20 November 2018 Gains Benefit by Fraud Suspended imprisonment order - Original term: four months suspended for eight months concurrent from 20 November 2018 62. Perth Magistrates Court 20 November 2018 Gains Benefit by Fraud Suspended imprisonment order - Original term: four months suspended for eight months concurrent from 20 November 2018 63. Perth Magistrates Court 20 November 2018 Gains Benefit by Fraud Suspended imprisonment order - Original term: four months suspended for eight months concurrent from 20 November 2018 64. Perth Magistrates Court 20 November 2018 Breach of Community Based Order of 28 November 2017 CBO expired and resentenced suspended fine: suspended for eight months from 20 November 2018 65. Perth Magistrates Court 20 November 2018 Breach of Community Based Order of 28 November 2017 CBO expired and resentenced suspended fine: suspended for eight months from 20 November 2018 66. Perth Magistrates Court 20 November 2018 Breach of Community Based Order of 28 November 2017 CBO expired and resentenced suspended fine: suspended for eight months from 20 November 2018 67. Perth Magistrates Court 20 November 2018 Breach of Community Based Order of 28 November 2017 CBO expired and resentenced suspended fine: suspended for eight months from 20 November 2018 68. Perth Magistrates Court 20 November 2018 Breach of Community Based Order of 28 November 2017 CBO expired and resentenced suspended fine: suspended for eight months from 20 November 2018 69. Perth Magistrates Court 20 November 2018 Breach of Community Based Order of 28 November 2017[i] CBO expired and resentenced suspended fine: suspended for eight months from 20 November 2018 70. Perth Magistrates Court 20 November 2018 Breach of Bail Undertaking[ii] Suspended fine: suspended for eight months from 20 November 2018 71. Perth Magistrates Court 20 November 2018 Stealing Suspended fine: suspended for eight months from 20 November 2018 72. Perth Magistrates Court 28 November 2017 No authority to drive (never held) Licence disqualified: three months concurrent; Fine: $400 73. Perth Magistrates Court 28 November 2017 Used an unlicensed vehicle Fine: $100 74. Perth Magistrates Court 28 November 2017 Stealing Community Based Order: 10 months concurrent from 28 November 2017 75. Perth Magistrates Court 28 November 2017 Stealing Community Based Order: 10 months concurrent from 28 November 2017 76. Perth Magistrates Court 28 November 2017 Stealing Community Based Order: 10 months concurrent from 28 November 2017 77. Perth Magistrates Court 28 November 2017 Stealing Community Based Order: 10 months concurrent from 28 November 2017 78. Perth Magistrates Court 28 November 2017 Assault Occasioning Bodily Harm Community Based Order: 10 months concurrent from 28 November 2017 79. Perth Magistrates Court 28 November 2017 Gains Benefit by Fraud Community Based Order: 10 months concurrent from 28 November 2017 80. Fremantle Magistrates Court 12 February 2016 Breach of Community Based Order of 21 October 2015 Fine: $500 81. Fremantle Magistrates Court 12 February 2016 Possession of stolen or unlawfully obtained property Fine: $500 82. Perth Magistrates Court 21 October 2015 Stealing Community Based Order: six months concurrent from 21 October 2015 83. Perth Magistrates Court 21 November 2013 Stealing[iii] No punishment section 46 84. Perth Magistrates Court 21 November 2013 Stealing No punishment section 46 85. Perth Magistrates Court 21 November 2013 Stealing No punishment section 46 86. Perth Magistrates Court 21 November 2013 Stealing No sentence section 11 87. Perth Magistrates Court 21 November 2013 Stealing Imprisonment: six months concurrent from 21 November 2013 88. Perth Magistrates Court 21 November 2013 Stealing Imprisonment: six months concurrent from 21 November 2013 89. Perth Magistrates Court 21 November 2013 Stealing Imprisonment: six months concurrent from 21 November 2013 90. Perth Magistrates Court 21 November 2013 Stealing Imprisonment: six months concurrent from 21 November 2013 91. Perth Magistrates Court 21 November 2013 Stealing Imprisonment: six months concurrent from 21 November 2013 92. Perth Magistrates Court 21 November 2013 Breach of Bail Undertaking No punishment section 46 93. Perth Magistrates Court 21 November 2013 Breach of Bail Undertaking No punishment section 46 94. Perth Magistrates Court 21 November 2013 Breach of Bail Undertaking Imprisonment: one months concurrent from 21 November 2013 95. Perth Magistrates Court 21 November 2013 Burglary and Commit Offence in Place Imprisonment: eight months cumulative from 21 November 2013 96. Perth Magistrates Court 21 November 2013 Breach of CBO (Order of 1 September 2012) No sentence section 11 97. Perth Magistrates Court 21 November 2013 Breach of CBO (Order of 1 September 2012) No sentence section 11 98. Perth Magistrates Court 21 November 2013 Breach of CBO (Order of 1 September 2012) No sentence section 11 99. Perth Magistrates Court 21 November 2013 Breach of CBO (Order of 1 September 2012) No sentence section 11 100. Perth Magistrates Court 11 December 2012 No Authority to Drive (Fines Suspended) Fine: $400; Licence seven day delay: six months 101. Perth Magistrates Court 11 December 2012 Driving with prescribed illicit drug Fine: $400; Licence disqualified: three months mandatory 102. Joondalup Magistrates Court 22 October 2012 No Authority to Drive – Never Held Fine: $400; Licence disqualified: three months 103. Perth Magistrates Court 1 September 2012 Breach of CBO (Order of 8 December 2011) Community Based Order: nine months concurrent from 1 September 2012 104. Perth Magistrates Court 1 September 2012 Breach of CBO (Order of 8 December 2011) Community Based Order: nine months concurrent from 1 September 2012 105. Perth Magistrates Court 1 September 2012 Breach of CBO (Order of 8 December 2011) Community Based Order: nine months concurrent from 1 September 2012 106. Perth Magistrates Court 1 September 2012 Breach of CBO (Order of 8 December 2011) Community Based Order: nine months concurrent from 1 September 2012 107. Perth Magistrates Court 1 September 2012 Person who breaches CRO or community order without reasonable excuse Fine: $50 (each charge) 108. Perth Magistrates Court 1 September 2012 Person who breaches CRO or community order without reasonable excuse Fine: $50 (each charge) 109. Perth Magistrates Court 1 September 2012 Person who breaches CRO or community order without reasonable excuse Fine: $50 (each charge) 110. Perth Magistrates Court 1 September 2012 Person who breaches CRO or community order without reasonable excuse Fine: $50 (each charge) 111. Perth Magistrates Court 8 December 2011 Stealing Community Based Order: nine months concurrent from 8 December 2011 112. Perth Magistrates Court 8 December 2011 Stealing Community Based Order: nine months concurrent from 8 December 2011 113. Perth Magistrates Court 8 December 2011 Breach of Bail Undertaking Community Based Order: nine months concurrent from 8 December 2011 114. Perth Magistrates Court 8 December 2011 Possess a Prohibited Drug (Cannabis) Community Based Order: nine months concurrent from 8 December 2011 115. Downing Centre Local Court (NSW) 21 June 2011 Possess prohibited drug Fine: $200; Drug to be destroyed; Costs to court: $79 116. Perth District Court of Western Australia 23 November 2007 Steal Motor Vehicle Imprisonment: six months concurrent; Licence disqualified: three months mandatory concurrent 117. Perth District Court of Western Australia 23 November 2007 Steal Motor Vehicle Imprisonment: six months, total: three years and six months imprisonment from 28 July 2008; Licence disqualified: three months mandatory concurrent 118. Perth District Court of Western Australia 23 November 2007 Aggravated Burglary and Commit Offence in Place Imprisonment: one year concurrent 119. Perth District Court of Western Australia 23 November 2007 Aggravated Burglary and Commit Offence in Place Imprisonment: one year and six months concurrent 120. Perth District Court of Western Australia 23 November 2007 Attempted Aggravated Burglary with intent in Place Imprisonment: two years cumulative 121. Perth District Court of Western Australia 23 November 2007 Attempted Aggravated Burglary with intent in Place Imprisonment: one year cumulative 122. Fremantle Magistrates Court 7 September 2007 Obstructing public officers Fine: $250 123. Fremantle Magistrates Court 7 September 2007 Obstructing public officers Fine: $250 124. Fremantle Magistrates Court 7 September 2007 Disorderly behaviour in public place Fine: $200 125. Fremantle Magistrates Court 17 May 2007 Assault Public Officer Fine: $750 126. Midland Magistrates Court 13 April 2007 Common Assault Fine: $1,000 127. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Imprisonment: six months concurrent (global) 128. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Imprisonment: three months concurrent (global) 129. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Imprisonment: three months concurrent (global) 130. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Imprisonment: three months concurrent (global); Fine: $600 (global) 131. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 132. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 133. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 134. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 135. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 136. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 137. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 138. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 139. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 140. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 141. Fremantle Magistrates Court 29 December 2005 Breach of ISO (Order of 9 December 2005) Fine: $600 (global) 142. Fremantle Magistrates Court 29 December 2005 Burglary and commit offence (place) Imprisonment: seven months concurrent from 20 December 2005 143. Fremantle Magistrates Court 29 December 2005 Stealing Fine: $250 (each charge) 144. Fremantle Magistrates Court 29 December 2005 Stealing Fine: $250 (each charge) 145. Fremantle Magistrates Court 29 December 2005 Unlawfully possess stolen property Fine: $200 146. Fremantle Magistrates Court 29 December 2005 Breach of suspended sentence (Order of 9 December 2005) Imprisonment: six months concurrent 147. Perth Magistrates Court 9 December 2005 Suspended imprisonment sentence breached[iv] 29/12/05 from imprisonment nine months suspended two years to imprisonment six months 148. Perth Magistrates Court 9 December 2005 No Motor Drivers Licence – Under Suspension Imprisonment: six months; Disqualified from holding/obtaining licence: nine months cumulative 149. Perth Magistrates Court 9 December 2005 No Motor Drivers Licence Fine: $300; Disqualified from holding/obtaining licence: three months mandatory concurrent 150. Perth Magistrates Court 9 December 2005 Breach of bail conditions Intensive Supervision Order: two years (adult supervision) 151. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 152. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 153. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 154. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 155. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 156. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 157. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 158. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 159. Perth Magistrates Court 9 December 2005 Stealing Intensive Supervision Order: two years (adult supervision) 160. Perth Magistrates Court 9 December 2005 Unlawfully possess stolen property Intensive Supervision Order: two years (adult supervision) 161. Perth Magistrates Court 9 December 2005 Unlawfully possess stolen property Intensive Supervision Order: two years (adult supervision) 162. Perth Magistrates Court 9 December 2005 Give false personal details to Police Fine: $100 163. Perth Magistrates Court 9 December 2005 Fraud Intensive Supervision Order: two years (adult supervision) 164. Perth Magistrates Court 9 December 2005 Fraud Intensive Supervision Order: two years (adult supervision) 165. Perth Magistrates Court 9 December 2005 Fraud Intensive Supervision Order: two years (adult supervision) 166. Perth Magistrates Court 9 December 2005 Breach of CBO (Order of 28 February 2005) Imprisonment: 12 months, suspended for two years 167. Fremantle Magistrates Court 11 October 2005 Dangerous Driving Fine: $300; Disqualified from holding/obtaining licence: three months mandatory concurrent 168. Fremantle Magistrates Court 11 October 2005 Refuse To Supply Or Provide False Name And Address Fine: $200; Disqualified from holding/obtaining licence: three months mandatory concurrent 169. Fremantle Magistrates Court 11 October 2005 Excess 0.08% Fine: $600; Disqualified from holding/obtaining licence: five months 170. Fremantle Magistrates Court 11 October 2005 No Motor Drivers Licence Fine: $200; Disqualified from holding/obtaining licence: three months mandatory concurrent 171. Fremantle Court of Petty Sessions 28 February 2005 Stealing (m/vehicle) Community Based Order: six months (adult supervision) 172. Fremantle Court of Petty Sessions 28 February 2005 No Motor Drivers Licence Fine: $150; Disqualified from holding/obtaining licence: three months mandatory concurrent 173. Fremantle Court of Petty Sessions 28 February 2005 Suspended imprisonment sentence breached[v] 29/12/05 from imprisonment 12 months suspended two years to imprisonment six months 174. Fremantle Court of Petty Sessions 11 July 2003 Fraud induce person to do unlawful act Community Based Order: six months (adult supervision); Community work: 50 hours 175. Fremantle Court of Petty Sessions 11 July 2003 Stealing Community Based Order: six months (adult supervision); Community work: 50 hours 176. Fremantle Court of Petty Sessions 24 March 2003 Stealing (m/vehicle) Imprisonment: four months; Licence disqualified: 12 months 177. Perth District Court if Western Australia 11 February 2003 Stealing (m/vehicle) Imprisonment: nine months concurrent 178. Fremantle Court of Petty Sessions 14 February 2002 No Motor Drivers Licence Fine: $200; Disqualified from holding/obtaining licence: three months mandatory 179. Perth District Court of Western Australia 5 February 2002 Robbery in company Imprisonment: three years 180. Perth Court of Petty Sessions 3 November 1999 No Motor Drivers Licence Fine: $250; Disqualified from holding/obtaining licence: 12 months cumulative 181. Perth Court of Petty Sessions 3 November 1999 Reckless Driving Fine: $1,000; Disqualified from holding/obtaining licence: 12 months cumulative 182. Perth Court of Petty Sessions 9 July 1999 Criminal damage Fine: $1,250 183. Perth Court of Petty Sessions 10 July 1998 Stealing (m/vehicle) reckless/driving Imprisonment: 18 months 184. Perth Court of Petty Sessions 10 July 1998 No Motor Drivers Licence Fine: $100; Disqualified from holding/obtaining licence: three months mandatory concurrent 185. Perth Court of Petty Sessions 10 July 1998 Fail to Stop when Called Upon Fine: $100; Disqualified from holding/obtaining licence: three months mandatory concurrent 186. Perth Court of Petty Sessions 10 July 1998 Reckless Driving Imprisonment: three months; Disqualified from holding/obtaining licence: nine months 187. Perth Court of Petty Sessions 4 May 1998 Hinder police Fine: $300 188. Perth Court of Petty Sessions 30 December 1997 Possess smoking implement Fine: $100 189. Perth Court of Petty Sessions 30 December 1997 Cannabis possess Fine: $300 190. Perth Children’s Court 19 May 1997 Burglary and commit offence aggravated (place) Community Based Order: 12 months (adult); Community Service Order: 150 hours 191. Perth Children’s Court 19 May 1997 Burglary with intention aggravated (habitation) Community Based Order: 12 months (adult); Community Service Order: 150 hours (each charge) 192. Perth Children’s Court 19 May 1997 Burglary with intention aggravated (habitation) Community Based Order: 12 months (adult); Community Service Order: 150 hours (each charge) 193. Perth Children’s Court 6 June 1996 Burglary and commit offence Youth Community Based Order: four months; Community work: 50 hours 194. Fremantle Children’s Court 10 January 1996 Receiving Community work: 45 hours 195. Perth Children’s Court 25 September 1995 Receiving $100 Good Behaviour Bond: four months 196. Perth Children’s Court 2 August 1995 Receiving $250 Good Behaviour Bond: six months 197. Perth Children’s Court 2 August 1995 Stealing $250 Good Behaviour Bond: six months 198. Perth Court of Petty Sessions 2 August 1995 Burglary and commit offence $250 Good Behaviour Bond: six months
See s 501CA(4)(a) of the Migration Act and [13]-[14] above.
[i]R2, TB2, p 169. The Tribunal notes that there were some discrepancies between the Western Australian Police Force’s “History For Court” report, compiled on 28 December 2022 and the earlier Australian Criminal Intelligence Commission’s “Check Results Report”, run on 16 July 2021. The Tribunal notes that the “History For Court” report records six counts of “Breach of Community Based Order of 28 November 2017” and the “Check Results Report” records seven counts.
[ii]R2, TB2, p 169. The Tribunal notes that the offence of “Breach of Bail Undertaking” is not recorded in the “Check Results Report”.
[iii]R1, G4, p 34. The “Check Results Report” includes one more count of “Stealing” with the Court result recorded as no punishment.
[iv]R1, G4, p 35. The Tribunal notes that the offence of “Suspended imprisonment sentence breached” is not recorded in the “History For Court” report.
[v]R1, G4, p 36. The Tribunal notes that the offence of “Suspended imprisonment sentence breached” is not recorded in the “History For Court” report.
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