CPWL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2022] AATA 4318

CPWL and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4318 (16 November 2022)

Division:GENERAL DIVISION

File Number(s):      2022/7086

Re:CPWL

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

Decision

Tribunal:Senior Member Dr N A Manetta

Date:16 November 2022

Date of written reasons:        14 December 2022

Place:Adelaide

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

...................[sgnd]..................................................

Senior Member Dr N A Manetta

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – serious offending – lengthy offending history including offences against young females – history of domestic violence – whether “another reason” for revocation of cancellation decision – Direction 90 – risk of reoffending if alcohol consumed – applicant has chronic alcoholism – serious impediments on removal – spousal and other family support in Australia – decision set aside

Legislation

Migration Act 1958 (Cth)

Cases

Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286

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

Secondary Materials

Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member Dr N A Manetta

14 December 2022

1. After I delivered my oral reasons, I received a request for written reasons, which I now publish.  These are the reasons I read out to the parties with some amendments.

2. This is an application by “CPWL”, whose name is subject to a confidentiality order and to whom I shall refer in these reasons as “the applicant”. The applicant seeks a review in this Tribunal of a decision of the respondent’s delegate dated 22 August 2022. By this decision the delegate affirmed an earlier decision taken in the respondent’s department to cancel the applicant’s visa. This earlier decision was taken mandatorily under section 501(3A) of the Migration Act 1958 (“the Act”) after the applicant was sentenced to a term of imprisonment exceeding 12 months, part of which he was required to serve on a full-time basis in gaol. I shall describe the relevant offending in due course. On the evidence before me, the initial decision to cancel the applicant’s visa was mandated by the Act and therefore appropriate.

3. The applicant made a timely application for an internal review. The delegate responsible for the determination of the internal-review application was required to address two questions by section 501CA(4)(b). The first question was whether the applicant passed the so-called “character test” elaborated in section 501(6). The second question arose if the answer to the first question was “no”, and it was whether there was “another reason” for the cancellation decision to be revoked. In respect of this second question, the delegate was required to apply Direction no. 90 issued under section 499 of the Act.[1]

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

4. The delegate decided, in answer to the first question, that the applicant did not pass the character test. On my review, this decision was clearly correct. A person who has been sentenced to a term of imprisonment of 12 months or more is taken to fail the character test: see section 501(6)(a) and (7)(c).  In addressing the second question, the delegate identified and weighed the various considerations under the Direction and concluded that, on balance, they did not favour revocation of the cancellation decision. Accordingly, the delegate did not find that there was “another reason” for the cancellation decision to be revoked; and, as a consequence, the applicant’s visa remained cancelled.

   TRIBUNAL’S TASK

5. Hearing the matter afresh on the evidence adduced before me, I must address the same two questions.  I have already indicated that the first question was correctly answered by the delegate.  In matters like this, the Tribunal conducts a hearing on the merits, reaching the correct or preferable decision on the evidence before it.[2] It hears oral evidence and submissions, receives written documents and written submissions, makes findings of fact, and draws its own conclusions. The Tribunal does not merely review the delegate’s decision for error. This manner of proceeding implies that I may affirm the decision under review notwithstanding the presence of an error in the delegate’s reasons if that is the correct or preferable decision on the evidence before me.  Equally, I may set aside the decision under review notwithstanding the absence of any discernible error in the delegate’s reasons if that is the correct or preferable decision on the evidence.   At the hearing before me, Mr Simmons appeared for the applicant; Ms Luu, for the respondent.

   [2] See, for example, Shi v Migration Agents Registration Authority [2008] HCA 31; 235 CLR 286 at [98] and [141].

   STATEMENT OF CONCLUSION

6. I have decided to set aside the decision under review and to substitute a decision that the cancellation of the applicant’s visa be revoked. I now turn to set out the background facts and to explain my reasons for this conclusion.

   BACKGROUND FACTS

7. The applicant is a citizen of Poland, born on 2 January 1960. As at the date of my oral decision, he was almost 63 years of age.  The applicant emigrated to Australia in 1987.  It would appear that he had a difficult and impoverished life in Poland. It would also appear that he began drinking in Poland as a teenager.

8. Having emigrated to Australia in 1987 at the suggestion of his uncle, the applicant began a new life here. The evidence before me suggests that he has returned to Poland only once in the 35 years he has lived in Australia. The applicant married his wife, an Australian citizen, to whom I shall refer as “Ms K”, in November 1988, not long after his arrival. The marriage bore the couple two daughters, who are now adults. 

9. The applicant has had a very limited work history in Australia, and I need not refer to it in detail.  For some time now he has relied upon a disability support pension, necessitated, as I understand the evidence, by his alcoholism, to which I now refer.

10.  It is clear from the evidence that the applicant had at the time of his most recent offending, and has had for some considerable time, what is known as a “substance abuse disorder”: more plainly, the applicant is addicted to alcohol. His misuse of alcohol, which appears to have begun in Poland, led to difficulties, predictably, in the marriage. There is no doubt on the evidence before me that the applicant has repeatedly abused his wife verbally and assaulted her physically.  A number of intervention orders have been issued, but the applicant has repeatedly broken them.

11.  The applicant has a long and serious criminal record. It was before me in evidence at Exhibit R1, pp 27–29.  It is summarised helpfully in tabular form at paragraph [6] of the respondent’s Statement of Facts, Issues and Contentions: see Exhibit R3. It is clear that from 1995 onwards at least, there have been domestic-violence assaults.  In 2000 there was a serious failure to comply with a domestic-violence restraining order that led to a sentence of three months (suspended in the event for 12 months). In 2008 there were three counts of failing to comply with a domestic-violence restraining order and a bail agreement as well, and an aggravated assault against his spouse in relation to which the applicant was sentenced to three months’ imprisonment (suspended for 18 months). In 2010 there were failures again to comply with domestic-violence restraining orders (two counts), a failure to comply with a bail agreement, and a breach of bond all leading to a sentence of one month’s imprisonment. There were numerous offences in 2018 involving breaches of intervention orders.

12.  So far as the breach of intervention or domestic-violence orders is concerned, I note that these instances could not have been the only occasions of violence. Ms K gave evidence before the Tribunal. She is now separated from her husband although they are not divorced. Her evidence was quite clear that her husband would frequently drink too much and return home in an unfit state.  Predictably, arguments would ensue. It would strain credulity to suggest that the applicant, who has had at all relevant times an entrenched alcoholic dependence, would not have abused and assaulted his wife on more than an occasional basis.  I proceed on the basis that the domestic violence in the household was persistent and a longstanding problem.

13.  I turn now to consider certain serious offences in more recent times that have concerned female members of the public.  In 2014 I note the first conviction for offensive behaviour.  This conviction arose from events in 2013 where the applicant grabbed and touched a woman at the Findon Shopping Centre.  He received a 14-day suspended sentence.  In 2017, the applicant, whilst drunk, approached some young females on a train, blew kisses at them, and made offensive gestures towards them: see Exhibit R2, pp 114.  He touched one of the girls on the arm on that occasion.  In sentencing remarks in relation to another offence, the Court refers collectively to the victims of this earlier offence as “young women” but then immediately refers to “the girls”: see Exhibit R1, p 30. I assume the victims were still minors. 

14.  The next offence occurred on 9 January 2018.  The offending occurred while the applicant was on a good behaviour bond and is all the more serious for that. The applicant was at the North Haven Shopping Centre. He grabbed the hand of a 13-year-old female stranger, told the child that she was beautiful and asked her to come with him. The sentencing remarks (Exhibit R1, pp 30ff) record that it was a confronting and frightening experience for the victim. The Court found that there was minimal physical contact: the assault was brief. There was no indecency.  But the Court recorded that the applicant was significantly intoxicated at the time of the offending and was, accordingly, disinhibited.

15.  It is, of course, not possible to discern exactly what the applicant’s intentions were. Fortunately, matters stopped where they did. But it is clear that there was a strong element of disinhibition in this offending, and it would appear that the behaviour may well have been impulsive since the victim was a complete stranger and the offending occurred in a public place. 

16.  A psychological report given by a Mr Reid was provided to the sentencing Court.  The Court made the following observations among others (see Exhibit R1 page 31):

“You have been placed on suspended sentence bonds in the past. Some of these bonds have contained specific conditions relating to alcohol treatment and therapy. It appears you have not undertaken any courses or inpatient rehabilitation.

I have had regard to Mr Reid’s careful assessments and conclusions. You do not suffer from any psychotic disorder or a mood disorder such as depression. There is no psychiatric history. It is unclear if you suffer from a borderline personality disorder. You clearly suffer from a substance abuse disorder. You have been assessed as fit to instruct your lawyers and enter not guilty pleas. You were assessed as being mentally competent to commit the offence. There are indications of mild cognitive and memory deficits, probably due to prolonged alcohol abuse.

[CPWL] you are a highly vulnerable man. You are an alcoholic. You have very limited social and familial supports. You are not working and you are dependent on the disability support pension. You do not have stable accommodation upon your release. You have trouble managing your finances. It is critical that my sentence allows for some structured rehabilitation. This will help you and will consequently help reduce your risk of reoffending and protect the community.”

17.  The total sentence imposed in this case was some five months: one month approximately for breach of a bond and four months for the offence.  Three months approximately had to be served in custody with the remaining two suspended on the applicant entering into a good behaviour bond for 18 months. 

18.  In my opinion, it is quite clear that at least at this point, although probably much earlier, the seriousness of the applicant’s ongoing situation ought to have been appreciated by him.  At this point in his life, he was entering gaol for a relatively long period for what appeared to be an impulsive and disinhibited offence induced by a substantial degree of intoxication.  In short, the applicant’s alcoholism was leading him into pointless crimes that would see him lose his liberty and go to gaol.

19.  The applicant was formally sentenced on 14 February 2019, but the sentence was backdated to 16 November 2018, when he was first taken into custody. He must have been released shortly after 14 February 2019.

20.  It is clear that upon release from gaol, the applicant ought to have taken the opportunity to make a serious and deliberate effort to free himself from alcohol dependence. I note again the sentencing Court’s remarks on this occasion concerning the applicant’s failure, up to that point of his life, to undertake any courses or inpatient rehabilitation.

21. On 7 December of that same year, however, the applicant committed a further crime. The Court found the applicant guilty on his own plea of one count of indecent assault. This offending was also in breach of the 18-month good behaviour bond that had been imposed earlier that year. The sentencing remarks appear at Exhibit R1, pp 33ff. The offence involved a female café worker who had finished work and was waiting on Semaphore Road. The applicant touched her inappropriately and indecently on her bottom and her breasts, both times over her clothing. The applicant touched her skin on her stomach under her shirt. The touches were brief. Again, the applicant was intoxicated when he was arrested. The victim is described in the sentencing remarks as a young woman who was a stranger to the applicant going about her business. The Court noted that there was no apparent reason or explanation for the offending behaviour. The Court further noted that the applicant had not undertaken any courses or in-patient rehabilitation in respect of his alcoholic disorder, but he had at least obeyed the condition of the bond to consult regularly with his GP: see Exhibit R1, at p 34. The Court, which comprised the same magistrate as had earlier sentenced the applicant, repeated in his remarks the passages that I have extracted above at [16]. The early guilty plea meant that the sentence for the indecent assault was reduced to 12 months and two weeks from 18 months.

22.  The applicant was also convicted on this occasion of three breaches of an intervention order against Ms K: in November 2019 (on two occasions) and in February 2020.  On all occasions the applicant had come home drunk although the Court observed that there was no violence or abusive behaviour. I shall not set out the other sentences imposed: they are recorded in the Court’s reasons.

23.  The applicant had been taken into custody on 12 February 2020 and was sentenced on 11 June 2020.  The applicant’s visa was mandatorily cancelled on 23 July 2020 given the sentence of just over 12 months that had been imposed.  That decision was clearly correct.

24.  I understand that the applicant was invited to seek a review of that mandatory cancellation. The invitation was subsequently viewed by the Department as legally defective and a new invitation was issued on 3 December 2021, to which the applicant made a timely response on 20 December 2021. The decision not to revoke the cancellation was reached by the delegate on 22 August 2022, some eight months later.

25.  The applicant has been in one form of detention or another since 12 February 2020.  I am satisfied that during this time there has not been any abuse of alcohol by him. That represents a significant break in the cycle of abuse; but I bear steadily in mind that the applicant has had decades of drinking, beginning from his teenage years in Poland.

REASONS

26. With that summary of the facts in mind, I now turn to consider Direction no. 90. The explicit purpose of the Direction is expressed to be the guidance of decision-makers in performing their functions under the Act: see paragraph 5.1(4). I frequently refer to certain earlier prefatory remarks I made in the matter of Re Rai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2119 at [32]ff. I usually set these paragraphs out, and I do so again here:

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

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

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

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

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

27.  I further note that the decision-maker is directed by paragraph 5.1(3) to consider the specific circumstances of the case when considering whether to exercise the power to revoke the cancellation decision.

28.  I now turn to apply the substance of the Direction.  The first primary consideration I must consider is the protection of the Australian community from criminal or other serious conduct.  I will not recapitulate what appears in subparagraph (1) of paragraph 8.1 but I bear its contents in mind.

29.  I note that I am to give consideration under subparagraph (2) to two matters; namely, the nature and seriousness of the applicant’s conduct to date and the risk to the Australian community should the applicant commit further offences.  In assessing the nature and seriousness of the applicant’s conduct to date, I am to have regard to a number of matters specified in subparagraphs (a) to (g).   I am required by paragraph 8.1.1(1)(a) to consider a number of crimes very seriously. There have been a number of acts of family violence directed towards Ms K, and I regard these very seriously.  I note that I am also to have regard to acts of family violence whether or not they have led to a criminal charge.  I do so. There have been multiple instances of family violence.  There has been one crime involving brief violence against a child and that is to be taken very seriously. There has also been a sexual crime against the café worker on Semaphore Road and again this is to be taken very seriously.

30.  There is no doubt that under the Direction the conduct of the applicant, judges as a whole, is to be regarded very seriously. I have taken into account the sentence imposed in respect of the café worker but I note that I am directed by subparagraph (c) that I need not have regard to the sentences imposed in relation to the other crimes. Whatever the sentence imposed in respect of these crimes, I am to regard the offending as very serious. I do so.

31.  So far as the violent offence against the child is concerned, the offence was very serious precisely because it involved a child and it would appear that the applicant had a deviant intention, not fulfilled in the event, when he grabbed her hand.  The applicant was not sentenced on the basis of having committed an indecent assault because the actus reus of such an assault had not been committed.  Nevertheless, the words the applicant used (namely, that he found the victim beautiful and wanted her to accompany him) clearly indicated a deviant intention.

32.  So far as the family violence is concerned, the relationship between the applicant and Ms K has been marred by repeated acts of abuse, both verbal and physical, over many decades.  I must regard that offending very seriously, and I do so.

33.  I must have regard under subparagraph (d) to the frequency of the applicant’s offending. There has been a significant history of repeated offending and of multiple suspended sentences and bonds that have been ignored.  I must also have regard to any trend of increasing seriousness. I think there is a clear trend of increasing seriousness. The family violence  continued unabated for many years; and for that reason alone, it constitutes a criminal history of increasing significance because, whether or not the violence, considered as individual episodes, has escalated in severity, there has been a single victim of the offending. The repeated abuse of the same victim does give rise to a trend of increasing seriousness in my opinion.

34.  I believe also that there is a trend of increasing seriousness in that the applicant, when intoxicated, is largely unable to control his behaviour, and this has led him to the opportunistic assaults first against the child and more latterly against the café worker.  Moreover, the assault against the child was preceded by the offensive behaviour on the train and the subsequent assault was found by the Court to be factually consistent with that earlier offending.  The assault represented a more serious offence, however, and so there is clearly an escalation in seriousness.  The last sentencing remarks indicate explicitly the Court’s view that the applicant’s inappropriate and indecent behaviour was getting worse: see Exhibit R1, p 34.

35.  I must take into account the cumulative effect of repeated offending, and I do so, particularly in relation to the applicant’s spouse, Ms K.

36.  I turn now to the assessment of risk as required by the Direction. I bear in mind what appears at paragraph 8.1.2(1); namely, that the Government is of the view that the Australian community’s tolerance for any risk becomes lower as the seriousness of the potential harm increases.  Furthermore, some conduct, and the harm that would be caused if it were repeated, is so serious that any risk of repetition may be unacceptable.

37.  in assessing risk, I must have regard to, “cumulatively”, two matters; namely the nature of the harm to individuals or the Australian community should a non-citizen engage in further criminal or other serious conduct and the likelihood of his or her engaging in that criminal or other serious conduct taking into account the matters listed in subparagraphs (i) and (ii). The harm that might be suffered by community members who are subjected to assaults with a sexual overtone is very serious. It is important, in my opinion, not to view these episodes solely through the narrow prism of the actus reus of the offence charged.  I believe I should take a wider of view of where these assaults, left uninterrupted, might have led.  There have been three occasions now where female victims have been involved. All members of society, but more particularly female members of society who might otherwise be fearful of using public spaces, have an entitlement not to be assaulted or put in fear by another community member with indecent intentions. The harm that can be caused to a victims on an ongoing psychological basis can be severe.  Moreover, unless these victims are strong enough to resist, the acts perpetrated by the applicant may extend to even more serious acts in the absence of external intervention. I bear in mind that the applicant was intoxicated on each occasion, and so his ability to restrain his self-evidently indecent desires was substantially impaired.  He was quite brazen.  That makes the nature of the harm all the more potentially dangerous.

38.  The risk to Ms K of further domestic assault is linked very much to the applicant’s presence in her home.  As will become clear, she has indicated that she plans to accept the applicant back into her home for a limited period if he is released to the community.  Again, it is clear that she may suffer quite significant harm if the applicant assaults her again. 

39.  I must also have regard to the likelihood of the applicant engaging in further criminal or other serious conduct. Here, I would regard the risk as very real. I accept that the applicant has genuinely expressed a desire to stay away from alcohol and there is no doubt that alcohol has lain at the root of his offending.   Moreover, a desire by the applicant to improve himself was noted by the sentencing Court on the last occasion: see Exhibit R1, at p 34.

40.  But a desire, even a strong resolution, to reform a substance abuse disorder and the achievement of that goal are two very different matters.  Alcohol dependence extending over many decades is very difficult to eradicate.  There have been many occasions now where the applicant has appeared before South Australian courts  These appearances were repeated “wake-up” calls, so to speak, showing unambiguously where his behaviour was finally leading him.  There has been a repeated failure to honour bonds, which are a formal promise to be of good behaviour, and failures to comply with court-imposed conditions requiring his active engagement in rehabilitation.  These are all very serious matters.

41.  Furthermore, on the evidence before me, I cannot say that the applicant will necessarily be deterred from alcohol abuse by the prospect of deportation to Poland.  I must say that the impression I was given by the applicant when he gave evidence was one of detachment from the seriousness of his predicament. This may well be the product of some degree of cognitive impairment brought on by decades of alcohol abuse. Certainly, the applicant appeared to me to be somewhat slow in giving his evidence and, in fact, some of his responses made little sense.  Some degree of cognitive impairment would not be surprising and would be consistent, I note, with the Court’s observations in the most recent sentencing remarks. But, whatever the cause, I did not discern in the applicant’s evidence an appreciation by him of the risks he might face on being deported to Poland.  I note also that gaol experiences have not persuaded him to seek help to cure his addiction.

42.  I am also required to have regard to family violence committed by a non-citizen. I note what appears in subparagraph (1) of paragraph 8.2; namely, that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia.

43.  The seriousness of family violence in this case is very high given its persistence. I have had regard to the matters listed in subparagraph (a) to (d) of subparagraph (3). As I have said, I believe there has been a great frequency over many years in the applicant’s misconduct, and there has been a trend of increasing seriousness because the misconduct has persisted for so long. The cumulative effect of repeated acts of family violence is self-evident, and in this case the acts have been committed over decades. I do not believe the applicant has accepted responsibility for his family-violence related conduct. Although I accept that he may not remember all details of the assaults because of his state of intoxication at the relevant time, he did not accept in his evidence that the acts alleged by Ms K against him most probably occurred. The applicant did not demonstrate any understanding of the impact of his behaviour on his victims (including the witnesses of that abuse).  These witnesses included his children when they were still minors and living at home. The efforts the applicant has taken to address the factors that have contributed to his violence (namely, his alcohol dependence) have been poor. He has been repeatedly warned in the courts that the consequences of further breaches would include gaol, but these warnings have proved largely futile.  All this makes the family violence very serious.

44.  I am to have regard to the best interests of minor children in Australia under the Direction.  I am not satisfied that any real weight should be attached to the interests of the applicant’s grandchildren in his favour. There are two such grandchildren, one born in February 2019 and the second in April 2020. The applicant has had no meaningful interaction with them. Moreover, there is something to be said for the view that the grandchildren may well be better off being spared any interaction with the applicant while there is a risk that he will become intoxicated and abusive.  But, in any event, the result of this case does not turn on the interests of the grandchildren.  This is a consideration to which I attach neutral weight.

45.  I am also to have regard to the expectations of the Australian community set out in paragraph 8.4. I note they are elaborated in subparagraph (1). I note further that acts of family violence and the commission of serious crimes against women and children or other vulnerable members of the community are listed as instances of conduct that give rise to serious character concerns that would normally result in a visa remaining cancelled: see subparagraph (2). In addition, I note that I am to apply these expectations regardless of whether the applicant poses a measurable risk of causing physical harm to the Australian community. It is also the case that I am to proceed on the basis of the Government’s views as articulated in paragraph 8.4 without independently assessing the community’s expectations for myself.  I bear all of that steadily in mind.

46.  All in all, I acknowledge that the primary considerations count substantially against the applicant. In particular, there are no primary considerations that favour revocation of the cancellation decision.

47.  I am required under paragraph 9 of the Direction to have regard to so-called “other” considerations. These are listed non-exhaustively in subparagraphs (a) to (d) of paragraph 9(1).  I do not believe that any non-refoulement obligations arise in this case. As for the impact of my decision on victims,  I do not have evidence before me of the impact of a decision to set aside the decision under review on community victims, and so I regard this consideration as neutral.

48.  Ms K is herself a victim, but her interests also fall under the rubric of links to the Australian community. Her interests do need to be addressed, and I shall do so in the context of that consideration.

49.  It is convenient to consider the impediments on removal and the applicant’s links to the Australian community together. I believe that the applicant would face substantial difficulties if he were removed to Poland.    He has not lived in Poland for some 35 years. I accept that there is no language barrier, but the applicant is now an older man, made older than his chronological age by a severe alcohol addiction that has extended over many decades.  I note that on one occasion in the past when the applicant was required to leave the marital home, he ended up in a boarding house. I further note that the sentencing judge in both 2019 and 2020 referred to the applicant having no stable accommodation at those points in his life.  The applicant has no recent work history and is, in fact, a disability support pensioner.  He has difficulty coping with life as the sentencing Court found.  Indeed, he was described in the most recent sentencing remarks I have extracted above at [16] as “highly vulnerable”.

50.  In my opinion, if I affirmed the decision under review, there is a substantial risk that the applicant would fail to reintegrate himself effectively into Polish society, would resort to alcohol there, and would find himself relatively quickly in a very risky situation where he had become physically dependent on alcohol but without any family support.  I do not think the evidence establishes that any extended family members the applicant still has in Poland would be able and willing to assist him.  In any event, they might soon reject him if he behaved inappropriately.  The applicant will require some prompting to seek the help that he needs to overcome his alcohol addiction and to live his remaining years in a quiet and decent way. Any return to alcohol will clearly be destructive for the applicant.  His addiction has, of course, not simply a physical dimension but a complex psychological one as well.

51.  It is, perhaps, an unusual feature of this case that the applicant’s wife, Ms K, supports his continued presence in Australia. She gave evidence to the Tribunal. I accept her evidence as measured and reasonable. She has a plan in mind, some of the details of which remain necessarily vague given that the applicant’s future is so uncertain at the present time.  That plan will include the applicant eventually purchasing his own accommodation from a fortuitous inheritance of some $400,000 he has come into.

52.  Ms K proposes to allow the applicant into her home to stay with her on his release from detention, but for a limited time only.  The quarters of the house that each would occupy would be functionally separate and distinct.  She is quite clear that if there were any risk to her safety or any return by him to drunkenness, she would contact the police, whatever the consequences of such a report might end up being for the applicant; namely, gaol and deportation.

53.  In other words, she is prepared to give him one last chance at rehabilitating himself.  After so many decades of unhappiness and abuse, Ms K could well be forgiven for concluding that, for all intents and purposes, her marriage is over and she does not owe the applicant any further time or consideration. But I take into account her own view of her marriage as a lifelong commitment founded on a matrimonial vow, and her view that she continues to have responsibilities towards the applicant as her husband even though the marriage will never resume its usual features of cohabitation and a shared life.

54.  The applicant is fortunate to have the support of his wife and two daughters, who, together, propose to assist him to seek the professional help he needs. There may well be questions of cognitive impairment that will need to be addressed and managed. It is quite clear to me that the applicant would not be able to manage this by himself in Poland and would be far better equipped to address any incipient cognitive impairment and his alcoholism here, in South Australia, which has been home to him for the last 35 years.

55.  It does seem to me that the applicant has a very real interest in his own well-being. In saying that, I appreciate fully that the applicant’s alcohol dependence, and any cognitive impairment he may now have, are the result of his own destructive behaviours, in which he chose to engage, and from which he chose not to disengage at multiple points when “red flags”, so to speak, were clearly being shown to him.  I refer here to his multiple appearances in court and interactions with the police.

56.  But entrenched alcoholism is also a disease, and an insidious one, even where it has followed on from deliberate choices not to disengage from dangerous behaviours as it has in this case.  If a person is to recover from a disease of this type, a supportive environment is, practically speaking, essential.  I think the plan that Ms K has in mind is reasonable and relatively prudent, and it is in the applicant’s best interests.

57.  As for Ms K’s interests, I remain very concerned about the physical risk to her of having the applicant in her home, but that concern is ameliorated somewhat by the limited time he would be there and his present sobriety.  I believe that, overall, her interests favour revocation of the cancellation decision given her stated commitment to supporting him.

58.  I accept also that the applicant’s adult daughters’ interests favour revocation of the cancellation decision. They retain an affection for their father.  I am persuaded on balance that they will be of some assistance to their mother although their own family and other commitments will, I believe, preclude a seriously active role in assisting their father. Nevertheless they will be able to support their mother as she tries to support their father.

WEIGHING THE CONSIDERATIONS

59.  I turn now to weighing the considerations.  I am conscious of the guidance in the Direction that “generally” more weight should be accorded primary considerations than other considerations.  I have already indicated that all the primary considerations favour affirming the decision under review. It is clear that under the Direction the applicant’s offending behaviour is required to be treated very seriously. There has been an indecent assault of a sexual nature on a café worker in a public place on Semaphore Road, a complete stranger. There has been the unwanted approach and touching of a person on a train accompanied by lewd gestures, and the grabbing of a child in a shopping centre, again with sexual overtones. There has been a decades-long history of family violence. There have been repeated breaches of bonds and intervention orders.   These are all extremely serious matters. 

60.  The offending has been accompanied by intoxication, which has been an uncontrolled feature of the applicant’s life for many decades.  The applicant has not made the serious rehabilitative efforts he should have.  I accept all of that, and I accept also what the Direction says about the community’s expectations as they apply to the applicant.

61.  But the individual circumstances of a case must also be weighed carefully.  I accept that there is a real risk of the applicant resorting to alcohol and, therefore, of further disinhibited and impulsive conduct.  There is at least some hope, however, that the alcohol addiction may be overcome even at this relatively late stage of his life. The applicant has broken the physical addiction by not drinking in gaol or detention, which now represents an uninterrupted period of over two-and-a-half years.  If he is to save himself from a destructive spiral that will only see him spend more and more time in gaol, he will need some positive direction and support from his family.  That family is in Australia. I agree with the sentencing Court’s observations that the applicant is “a highly vulnerable man”.  His opportunities to live the remainder of his life crime-free and free from the debilitating and damaging effects of his addiction to alcohol are substantially greater in South Australia than in Poland. 

62.  I accept that Ms K is exposing herself to some risk by accepting the applicant into her home but her plans in that regard are, as I have said, measured and to some extent at least prudent.  She made it clear that her husband will have to try to engage in rehabilitation and learn after a while, for example, to take public transport to appointments from his own place of accommodation.

63.  I accept that the result of setting aside the decision would be a return by the applicant to the community in circumstances where I am satisfied there is a risk he will revert to alcohol.  That has made the balancing exercise required of me under the Direction particularly difficult because there is a real risk to the Australian community.

FORMAL DECISION

64. I have fluctuated in my thinking, but I have decided that, on balance, the correct or preferable decision favours revocation of the cancellation decision given, in particular, the vulnerability of the applicant and his need to address what has been a chronic disease for him for many decades with the support of his family. Returning to the language of the Act, I have concluded that there is “another reason” for the cancellation decision to be revoked under section 501CA(4)(b)(ii). I shall, therefore, set aside the decision under review and substitute a decision revoking the cancellation of the applicant’s visa.

…………[sgnd]…………….

Associate

Dated: 14 December 2022

Dates of hearing:	27 & 28 November 2022
Advocate for the Applicant:	M Simmons MSM Legal
Advocate for the Respondent:	H Luu Australian Government Solicitor