Curran and Minister for Home Affairs (Migration)
[2018] AATA 1314
•16 May 2018
Curran and Minister for Home Affairs (Migration) [2018] AATA 1314 (16 May 2018)
Division:GENERAL DIVISION
File Number(s): 2018/0904
Re:Teak Curran
APPLICANT
Minister for Home AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:16 May 2018
Place:Sydney
The reviewable decision made 20 February 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of Mr Curran’s Class BB Subclass 155 Five Year Resident Return visa, is set aside.
In substitution, the decision to cancel Mr Curran’s Class BB Subclass 155 Five Year Resident Return visa, made on 16 February 2017, is revoked.
........................[SGD]................................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – five year resident return visa – mandatory cancellation – revocation – failure to past the character test – Ministerial Direction 65 – serious criminal convictions – Applicant’s responsibility and remorse – risk of reoffending – time in prison and immigration detention – future plans – protection of the Australian community – nature and seriousness of conduct to date – risk to the Australian community – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed from Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
CASES
Candemir v Minister for Immigration and Border Protection (Migration) [2017] AATA 531
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66
Uelese v Minister for Immigration and Border Protection [2016] FCA 296; 348 FCR 296YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
16 May 2018
BACKGROUND
Mr Teak Curran (the Applicant) was born in Honolulu, Hawaii, in the United States of America (US) on 15 May 1989. He first arrived in Australia with his mother on
20 July 1992 at the age of 3 years. Prior to its cancellation, the applicant held a Class BB Subclass 155 Five Year Resident Return visa.
In addition to his mother who is a US citizen, his family members in Australia include three brothers, all of whom are Australian citizens.
The Applicant has a lengthy criminal history. His first conviction was in January 2007 when he was 17 years old. On 2 May 2012 he was sentenced to 10 years imprisonment for the offences Robbery with offensive weapon and Break and enter steal value <$60,000 which he committed in December 2010 and January 2011. The full range of the Applicant’s offences are detailed below.
On 16 February 2017 the Department of Immigration and Border Protection
(the Department) issued the Applicant with a Notice of Visa Cancellation (the Mandatory Visa Cancellation Decision) under s501(3A) of the Migration Act 1958 (Cth) (the Act). On this date the Applicant was serving a sentence of full-time imprisonment at Wellington Correctional Centre in New South Wales.
On 17 February 2017 the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision, and made representations to the Minister in support of his revocation request on 7 March 2017, 13 March 2017, 30 August 2017 and 25 September 2017.
On 20 February 2018 a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act and the applicant was notified of the decision on 21 February 2018.
On 26 February 2018, the Applicant lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.
The Applicant was released on parole from Wellington Correctional Centre on
21 July 2017 and is currently detained at Villawood Immigration Detention Centre (VIDC).
The matter was heard in Sydney on 3 May 2018. The Applicant attended the hearing in person and was unrepresented.
THE RELEVANT LEGISLATION
Section 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(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) …; 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.
Subsection 501(6)(a) relevantly provides that a person does not pass the character test if the person has a substantial criminal record. Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Subsection 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Section 501CA(4) provides:
(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.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Administrative Appeals Tribunal (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.
MINISTERIAL DIRECTION NO. 65
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the Government’s policy on visa cancellations and contains a number of introductory statements, including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[1]
[1] Direction No. 65 at para 6.1(1).
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
The following Principles are set out in paragraph 6.3:
(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) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing consideration may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(c)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(d)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[2] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
[2] Direction No. 65 at para 8(1).
Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include Primary considerations and Other considerations. The Primary considerations are:
(e)Protection of the Australian community from criminal and other serious conduct;
(f)The best interests of minor children in Australia affected by the decision; and
(g)Expectations of the Australian community.
Other considerations are:
(h)International non-refoulement obligations
(i)Strength, nature and duration of ties [to Australia];
(j)Impact on Australian business interests;
(k)Impact on victims
(l)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[3] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary consideration may outweigh other primary considerations.[4]
[3] Direction No. 65 at para 8(2).
[4] Direction No. 65 at paras 8(4) and 8(5).
THE ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant does not pass the character test in subparagraph (b)(i) of the subsection. It is therefore necessary to decide whether in accordance with subparagraph (b)(ii) of the subsection, “there is another reason why the original decision should be revoked.”[5]
[5] Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].
Subsection 501CA(4)(b)(ii) has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection:[6]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …[7]
[6] [2016] FCA 1166
[7] Ibid, at [38]
Therefore, the sole issue before the Tribunal is whether there is another reason, pursuant to subsection 501CA(4)(b)(ii), why the Mandatory Visa Cancellation Decision should be revoked. This requires consideration of any mitigating or extenuating factors favouring the Applicant which might militate against the cancellation of his visa.
THE EVIDENCE BEFORE THE TRIBUNAL
Criminal history
A National Police Certificate dated 8 August 2017 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia.
Court date Offence Sentence 15.01.07 Assault occasioning actual bodily harm Bond s33(1)(b): 6 months supervised
juvenile justice
Contravene
violence order
apprehended domestic Dismissed with caution Fail to appear in accordance with Bail
Granted undertaking (conviction)
Dismissed with caution 03.05.07 Fail to appear in accordance with Bail
Granted Undertaking (bench-non conviction)
Dismissed with caution 15.05.07 Steal property in dwelling-house > $15000 Probation s33(1)(e): 12 months supv
nsw prob service
Escape police custody Bond s 33(1)(b): 6 months Contravene
violence order
apprehended domestic Community service order: 50 hours Fail to appear in accordance with Bail
Granted Undertaking (bench-non conviction)
Bond s 33 (1)(b): 6 months juvenile justice supervision for such time as
deemed necessary
Use offensive place/school language in/near public Bond s 33 (1)(b): 6 months juvenile justice supervision for such time as
deemed necessary
Assault officer in execution of duty Community Service Order: 25 hours Person under 18 possess liquor in public
place
Fine: $20 Resist officer in execution of duty Bond s 33 (1)(e): 6 months juvenile justice supervision for such time as
deemed necessary
21.08.07 Assault occasion actual bodily harm Bond s 9 20.11.07 Destroy or damage property Fine: $100
06.03.08 Common assault Bond s 9 Use offensive language in/near public
place/school
S 10a conviction 12.05.08 Break and enter with intent (steal) Probation s33(1)(e): 12 months supv
nsw prob service
Break and enter building (steal) value >
$15,000
Probation s33(1)(e): 12 months supv
nsw prob service
19.03.10 Recklessly wound any other person Imprisonment: 33 months Assault occasioning actual bodily harm Imprisonment: 6 months Affray Taken into account on form 1 02.05.12 Assault officer in execution of duty- t2
(x2)
Taken into account on form 1 Assault person with intent to resist/prevent
apprehension
Taken into account on form 1 Robbery armed with offensive weapon Taken into account of form 1 Robbery with offensive weapon Imprisonment: 10 years Robbery with offensive weapon Imprisonment: 10 years Robbery with offensive weapon Imprisonment: 10 years Robbery with offensive weapon Imprisonment: 10 years Robbery with offensive weapon Imprisonment: 10 years Robbery with offensive weapon Imprisonment: 10 years Be carried in conveyance taken w/o
consent of owner
Taken into account on form 1 Break and enter house etc steal value <=
$60,000
Imprisonment: 10 years Robbery armed with offensive weapon
(x3)
Taken into account on form 1 Robbery armed with offensive weapon Imprisonment: 10 years Break and enter house etc steal value <=
$60,000
Taken into account on form 1 13.08.12 Assault law officer (not police officer) 6 months imprisonment
The Applicant told the Tribunal that he does not dispute the charges and convictions in the National Police Certificate.
The circumstances of the commission of the more serious of the Applicant’s offences are detailed below.
Reckless wounding and Assault occasioning actual bodily harm – June 2008
On 19 March 2010 the Applicant was convicted of the offences Recklessly wound any other person and Assault occasioning actual bodily harm in the District Court of New South Wales and sentenced to 33 months and six months imprisonment. Both offences were committed while the Applicant was on parole for offences of assault and assault occasioning bodily harm. He was released on the basis of time served.
The sentencing remarks of Judge Sweeney record that the Applicant’s offences were committed during an incident at the Greenwood Hotel, North Sydney. There was an argument between the victims and another group of men, in which the Applicant was not involved. He became involved in another incident that occurred a short time after the first incident. The Applicant punched one of the victims twice to the face while he was holding a screwdriver with a sharpened point in his hand. The victim suffered a five centimetre cut to his left chin, a 10 centimetre vertical cut to the left side of his neck and a scratch to his left wrist. The victim did not seek medical treatment for these injuries. The Applicant stabbed the second victim to the back and chest with the screwdriver causing him a severe injury to his front chest, and shallow wounds to his rear shoulder blade, rear midline, right arm and back side of his neck. His lung collapsed on the front right side which affected his breathing and required a chest drain but not surgery.
In his evidence to the District Court and to the Tribunal, the Applicant said he carried the screwdriver to clean out the pipe he used for smoking ice which, at the time of the offences, he was smoking daily. He told the Tribunal that on the day of the offence he had smoked ice, taken ecstasy and consumed alcohol. He did not know the victims of his crimes. An altercation broke out on the dance floor of the hotel and he became involved, leading to the offences for which he was convicted.
In his sentencing remarks, Judge Sweeney noted that prior to the commission of these offences the Applicant had been diagnosed with a psychotic disorder related to his abuse of drugs and had been prescribed an anti-psychotic medication, which he had stopped using without his doctor’s approval. His Honour assessed the offence “as in the midrange of seriousness, though at the low end of the midrange of seriousness.”
Robbery with offensive weapon and Break and enter steal value <$60,000 – December 2010 and January 2011
On 2 May 2012 the Applicant was convicted in the District Court of New South Wales of eight counts of Robbery with offensive weapon and one count of Break, enter and steal value <$60,000 arising from offences he committed in December 2010 and January 2011 while he was on parole for the conviction of 19 March 2010. He was sentenced to 10 years imprisonment for each offence. The Applicant was questioned about these offences at the Tribunal hearing.
On 1 December 2010 the Applicant entered a 7-Eleven convenience store and threatened the owner with a knife, stating “give me your money, open the safe or I will kill you”, and robbed him of goods and money. When questioned about this offence in the Tribunal hearing the Applicant said that he did not know why he had a knife but he remembers pointing it at the owner and making threats. He said he committed this crime to support his drug habit.
On 4 January 2011, the Applicant grabbed a female courier transporting foreign currency as she was arriving at a City Exchange Mart booth located within the entry to a 7-Eleven convenience store in George Street. He forced her through the open security door and into the booth. He produced a Taser and caused it to arc, and ordered the counter clerk and courier to the floor. He reached into the counter and placed $10,000 in a small black handbag he was carrying and commanded the counter clerk to “open the safe”. The Applicant also threatened another employee of the convenience store with the Taser and stole a large amount of funds. The Applicant was assisted by a male co-offender who acted as a lookout.
On 20 January 2011, the Applicant and two co-offenders entered an Officeworks store in Glebe, armed with a Taser. The Applicant, whose face was concealed, threatened the customers and employees of the store and, according to the sentencing remarks of Judge Garling, “demanded that the staff open the tills whilst he activated the Taser causing sparks and an arching noise. He then lunged forward with the Taser in an attempt to strike one of the staff.” The Applicant stole approximately $3,640 in cash.
On the same day, the Applicant, whose face was concealed, entered the gaming room of the Crystal Palace on George Street and threatened employees with a Taser. He demanded that the female victim open the till and when she was unable to do so the Applicant applied the Taser to her arm and activated it and discharged it for two seconds causing her immediate pain. He emptied the till and took $1,330 in cash. At the hearing, the Applicant said that this was a ‘spur of the moment robbery’ and that he did not intend to Taser the victim although he was aware that the Taser worked.
Again, on 20 January 2011, the Applicant with a co-offender held up a 7-Eleven in Paddington, armed with a Taser. He immediately activated the Taser onto the victim, and continued to do so, according to the sentencing remarks, “over five times before the victim fell to the floor.”13 The Applicant used the device on the victim another two times while he was lying on the floor. The Applicant then forced the victim to his feet, and proceeded to force the victim to open the cash register, while pointing the Taser at him. The Applicant told the Tribunal that he does not remember this incident or the offence.
On 21 January 2011, the Applicant forced open a door and entered the City 4X Money Exchange in George Street, armed with a Taser and demanded money of the victim. He activated the Taser and the victim handed over money and screamed loudly. Police patrolling the area heard the screams and ran to the area where they saw the Applicant and challenged him at gunpoint. He continued to activate the Taser towards the police in a threatening manner and eventually dropped it and was arrested.
On 23 December 2010, the Applicant entered the City Convenience Store and grabbed hold of the victim’s shirt whilst holding a knife in the other hand pointing it at the victim’s neck. He pushed the victim towards the sales counter and took cash and cigarettes.
On 29 December 2010, the Applicant approached a City 4X and followed the victim inside and produced a knife and ordered her to the floor. He threatened to kill the victim and took an amount equivalent to AUD $28,000.
The Applicant told the Tribunal that he could not remember why he carried a weapon during the commission of these offences. At the time of the offences he was “in a state” and “did not know what was going on”. His intention was not to hurt the victims but to scare them and make them comply with his demands.
In his sentencing remarks, Judge Garling stated, “these are most serious crimes. There are a large number. The victims would have been absolutely terrified and will carry that with them.” The Judge further noted that the weapon could inflict serious injury, there was some degree of planning, there was some violence, the victims were in vulnerable positions and the amounts taken in the robberies were not small. He noted that the medical evidence showed that the Applicant had a heroin problem and he had drug debts and “that it was as a result … that he was committing these offences”.
Assault law officer – March 2012
On 13 August 2012 the Applicant was convicted of the offence Assault law officer (not police officer) and sentenced to six months imprisonment. This arose from an incident that occurred on 8 March 2012 when the Applicant was in prison prior to his sentencing in May 2012. The Applicant was given a direction by a prison officer and subsequently punched the officer to the left side of his head.
Applicant’s responsibility and remorse for criminal behaviour
In the Personal Circumstances Form dated 19 February 2017 in the section titled ‘Criminal History and Risk of Reoffending” the Applicant stated:
Reading through my offences my actions at that time were appalling. I am extremely embarrassed and ashamed in how I have treated the victims in these cases and I am very sorry for the mental and physical pain that I have caused to innocent people.
In a statement dated 19 February 2017 attached to his request for revocation the Applicant stated:
Since being in jail I have addressed my problems and taken the necessary steps in being able to control my drug and anger problems by having weekly sessions with a private psychologist, by completing EQUIPS Aggression and doing EQUIPS Addiction. But most importantly wanting change for myself. I want to make amends in society and be an upstanding Australian citizen so that I can help others who are going down the same path that I did.
Risk of Reoffending
In the “Personal Circumstances Form” dated 19 February 2017 in the section titled ‘Criminal History and Risk of Reoffending” the Applicant stated:
The most common factor in all the offences has been my battle with addictions. When I was under the influence my mindset would change completely. I could lie, cheat or steal without feeling anything. I learnt later that I had drug induced psychosis. I now realise how bad my problems were and I am addressing them by being on the methadone program, doing drug programs and I was seeing a private psychologist. I feel that I have the tools to be able to be a member of the community so that I can right my wrongs and help others. I want change and for myself I don’t ever want to be that person on the drugs again.
…
The likelihood of me re-offending now is zero. I feel that I have really understood the consequences of my actions and the effects they have on my family, community and myself. I have learnt the needs and importance of education and I feel I can help steer young people away from the path. It has taken a few years but I feel very confident in myself to be able to live a normal life.
Time in Prison and Immigration Detention
The Applicant told the Tribunal that during his time in prison, he participated in a number of self-improvement programs including EQUIPS Aggression and EQUIPS Addiction. He also completed a Certificate II in Work Skills and Training, Tertiary Preparations Program, Certificate I in Aboriginal Languages, and Certificate in Workplace Hygiene Procedures.
Intentions and future plans
The Applicant told the Tribunal that he is now drug free and has been deemed fit to be released on parole. He said that at the start of his sentence he “played around” but he grew out of it and has not been in trouble in prison. He wants to undertake a Bachelor of Commerce degree. He was offered a place to study this degree at the University of Southern Queensland but was unable to commence his studies as he is not entitled to HECS assistance due to not being an Australian citizen. He has an offer of work with his brother and he wants to start “living a normal life” and “make his family proud of him”.
In a letter to the National Character Consideration Centre (NCCC) dated 4 April 2018 the Applicant stated:
I know I haven’t been an upstanding citizen in the past but I feel that I haven’t been able to adequately prove myself and show society and the community that I am a right (sic) person and I really would like to be able to help out other people that are going down the same path I did. I want to be able to work, study and live a healthy life.
As I have grown older, I realised that a lot of what I thought when I was younger was important in life, but it is not, the only things that matter to me these days are my family and the need to live life happily and to be able to help people.
I have learned so much about myself, and I have put myself out there in wanting to change by furthering my education and putting my hand up to get help with battling my drug addiction.
If I was to be released today, the only things I want to do is work and try and set up some foundation for me to move on with my life. Hopefully, one day I will have a family of my own …
I have wasted away too much of my life over a couple of bad decisions, and I feel as though I have paid the price for those and I am now about to start a new journey in life …
I know myself I have made the change, and I am so far away from the person I had become while under the influence of drugs.
All I am asking for is the one opportunity to prove myself as an adult and to help me get myself into a position where I can do good for others.
In the “Personal Circumstances Form” dated 19 February 2017 in response to the question: “Do you have any concerns or fears about what would happen to you on return to your country of citizenship?” the Applicant stated:
My concerns are I would not know what to do or where I would sleep and that America is a much more dangerous country than here.
The Applicant told the Tribunal that when he returns to the community he wants to help others. In the “Personal Circumstances Form” dated 19 February 2017 the Applicant stated:
I feel I have a lot of knowledge I can pass on to the youth of Australia to steer them clear of a life of drugs and incarceration.
…
Australia has been my home and it is all I know, my brothers and mother are here and we need to be together.
Evidence of Julie Anne Geddes
Julie Anne Geddes, a registered psychologist, gave evidence in person at the hearing and referred to a written report she prepared in April 2018. She first met the Applicant to provide counselling and psychological treatment when he was incarcerated at South Coast Correctional Centre in 2011. She also met with him in Parklea Correctional Centre and Wellington Correctional Centre on three occasions. In total she has provided him with 22 sessions of psychological treatment. Ms Geddes provided a report dated 11 July 2011 to the Applicant’s solicitor in his 2011 court proceedings in relation to three sessions she had with the Applicant in June and July 2011. She recently has been consulting with the Applicant via telephone and has seen him on one occasion at Villawood. Prior to these recent consultations she had not seen the applicant since 2013.
Ms Geddes told the Tribunal that the Applicant is now “very different” to when he was drug affected. In her opinion, the Applicant will have been impacted by having spent his youth incarcerated. When he was younger he had an “I don’t care” attitude whereas now he has learned he has to care. She provided him with treatment to help him cope with prison. The Applicant’s drug issues related to an underlying mental health issue, for which he requires ongoing support, including when he is released.
She states in her April 2018 report that the Applicant:
continues to express a willingness to take responsibility for the offences and has been waiting for the opportunity to be released and to show that he no longer poses a threat to the community. He was released from custody under probation and parole after being deemed safe to be back in the community.
In addition to speaking to the Applicant, Ms Geddes has spoken to his mother and three brothers. In her April 2018 report she stated:
They have all been waiting to renew their relationship with him and end their sadness at him being away for so long.
…
It is my professional opinion that these young men have suffered and will continue to suffer if [the Applicant] is deported.
Ms Geddes told the Tribunal she is willing to assist the Applicant post his release into the community and that “with the right support” she is “confident he will progress”.
Evidence of the Applicant’s mother – Tracy Jones-Curran
Tracy Curran, the Applicant’s mother, gave evidence in person at the hearing and provided a letter dated 2 April 2018.
She told the Tribunal that she arrived in Australia 27 years ago with her son. She married Joe Curran and the Applicant took his name and they lived as a family with her other sons in Canowindra. She and Joe Curran went through a “bitter” divorce and they fought over custody of the children. At one point her ex-husband was “being very difficult” and he threatened to kick her out of the house. This incident led to her taking out an AVO against the Applicant which she now regrets.
In her statement dated 2 April 2018 she stated:
His case is one of a young boy that had to deal with situations out of his control at a young age that took him down a path of using drugs, that lead to his offensives (sic) which he has and will have to live with all his life. Teak has taken responsibility for his actions and has done his time and should have the chance to rebuild his life and to serve others.
Ms Curran told the Tribunal that her family are all very close. The Applicant’s father is deceased, but the Applicant was very close to her partner of five years (Phillip) who died suddenly in May 2003 when the Applicant was in Year 8. The death of her partner caused great trauma for the family. They had lived happily together as a family with her partner’s four sons and her four sons on a farm in Crookwell. Her partner was a strong father figure for the Applicant.
She told the Tribunal that when the Applicant was incarcerated they would speak more than three times a week and sometimes every day. The Applicant did not want her to visit him in prison. Ms Curran told the Tribunal that it was difficult to get to Wellington as it is a five hour drive from Sydney.
Ms Curran told the Tribunal that she remains a US citizen but is in the process of becoming an Australian citizen. She returned to the US for an extended holiday for period of 2½ to 3 years when the Applicant was incarcerated and her youngest son was in boarding school. She lived in Los Angeles as she wanted to be close to her parents who live in Palm Springs, California.
She told the Tribunal that she does not want to leave Australia and accompany the Applicant to the United States as she does not want to be an absent parent for her other three sons. She wants to keep her family together here in Australia. They have always come together in hard times and they “want some sort of normality” in their lives. If the Applicant is released he will live with her and her youngest son at their home in Bellevue Hill.
In her statement dated 2 April 2018 she stated:
This has impacted all of our lives and if Teak were to be deported there is no where for him to go. His family, friends and support group are here in Australia. Parole has come to my home prior to Teak’s release and was more than satisfied, he will have to report weekly and follow a strict program and work which he has been offered from the Darlo Group or with his younger brother JP who lives with me.
…
Teak needs a strong family unit to make this transition and we are here. We talk daily and respect each other greatly and are looking forward to moving forward. This has put enormous strain on me as I have been carrying the load financially, emotionally and if he were to be deported it would just make no sense.
Evidence of the Applicant’s brother – Richard Curran
The Applicant’s brother, Richard Curran, gave evidence in person at the hearing and provided a statement dated 3 April 2018.
He told the Tribunal that he lives in country NSW and travels a lot to New Zealand, the United Kingdom and Queensland. He was unable to visit the Applicant very often in prison, but they did communicate by phone and letter. He has grown apart from the Applicant and they need to “come together and make things right”.
He told the Tribunal that his family is very close and they all suffered when his mother’s partner died. It has been very hard having the Applicant in prison. He wants him and his mother to stay in Australia. If the Applicant goes to the US he will try to offer him support but it will be difficult for him to do so. He believes the Applicant has learnt his lesson and has grown up and wants to make amends for the hurt he caused in the past.
Evidence of the Applicant’s brother – Joseph Curran
The Applicant’s youngest brother, Joseph Curran, gave evidence in person at the hearing.
He told the Tribunal that the Applicant was very supportive of him when his stepfather died. They lived together in Woollahra and he never saw the Applicant’s drug use or violence because the Applicant did not want him to go down the same path. Mr Curran stated the Applicant wants to be able to forget about the past and start afresh. If the Applicant is released he will live with him and his mother in Bellevue Hill, and he has organised a job for the Applicant at the restaurant in Surry Hills where he is the manager. The owner of the restaurant is aware of the Applicant’s criminal history but is nevertheless willing to employ him.
He told the Tribunal that he took drugs at a festival when he was 18 years old, had a psychotic episode, fell from a building and was badly injured. Following this, the Applicant gave him advice and “warned him not to go down the path he had taken”.
Other statements of support
The Applicant provided the following additional letters of support from the following:
·Michael and Helen Payton dated 27 February 2017 and 2 April 2018;
·Margaret Wallington dated 27 February 2017;
·David Larter dated 23 August 2017;
·Robert Cameron dated 25 September 2017;
·Vivienne Oxley dated 5 February 2018;
·Abby Hunt dated 5 February 2018;
·Gabriela Berger dated 29 March 2018; and
·Nicola Hunt dated 3 April 2018.
Other evidence
The Applicant provided the following academic transcripts, certificates and other evidence of personal achievement:
·Transcript of Academic Record for NSW Certificate I in Aboriginal Languages issued by Western Institute TAFE NSW – 17 December 2012
·Transcript of Academic Record for Certificate II in Skills for Work and Training issued by Adult Education and Vocational Training Institute (AEVTI) – 14 June 2013
·Certificate of Merit for Participation in ILC Education AEVTI – 27 June 2013
·Transcript of Academic Record for Statement of Attainment in Workplace Hygiene issued by Western Institute TAFE NSW – 14 June 2013
·Statement of Attainment for Follow Workplace Hygiene Procedure by TAFE NSW – 31 December 2012
·Offer from University of Southern Queensland for enrolment in Bachelor of Commerce commencing Semester 2, 2014 – 23 June 2014
·Certificate of Completion for EQUIPS Aggression Program of Corrective Services NSW – 29 September 2014
·Certificate of Completion for EQUIPS Addiction Program of Corrective Services NSW – 13 April 2017
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
The Tribunal must consider any mitigating circumstances which may militate in favour of setting aside the decision not to revoke the mandatory cancellation of the Applicant’s visa. In doing so, it must take into account the considerations in Part C of the Direction, informed by the principles in paragraph 6.3.
Primary Consideration 1 - Protection of the Australian community
Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. 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 13.1(2) directs that decision-makers should also give consideration to:
(m)the nature and seriousness of the non-citizen's conduct to date; and
(n)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeat 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);
…
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality, and the risk posed should he commit further offences, the Tribunal notes that the Applicant began offending in 2007 at the age of 17 years and his offending continued until he was incarcerated in May 2012 for his most recent offences.
Having regard to paragraph 13.1.1(1)(a) and paragraph 13.1.1(1)(b) of the Direction, the Tribunal finds that many of the Applicant’s crimes were violent in nature, were committed against vulnerable members of the community, and one of his crimes was against a prison officer. The Tribunal refers to the sentencing remarks of Judge Garling noted above in paragraph 48 above and finds that the Applicant’s conduct to date has been serious.
Having regard to paragraph 13.1.1(1)(c) and paragraph 13.1.1(1)(d) of the Direction, the Tribunal finds that the Applicant has been sentenced to terms of imprisonment on three occasions, and notes that custodial sentences are imposed as a last resort, and finds that these sentences indicate the seriousness of his conduct.
The Tribunal has had regard to the cumulative effect of the Applicant’s offending in determining the seriousness of his conduct in accordance with paragraph 13.1.1(e) of the Direction. The Tribunal finds that the Applicant’s criminal offending demonstrated a sustained pattern of offences and their cumulative effect indicates the seriousness of his conduct.
The Tribunal has taken into account the Applicant’s criminal offences, including that his 2010-11 offences were committed when he was on parole, and finds that his behaviour demonstrates a disregard for Australian law, contrary to the Principles in paragraph 6.3(1) of the Direction.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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 considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In having regard to the nature of the harm if the Applicant were to re-offend, the Tribunal notes that the Applicant’s criminal offences involved violence and the threat and/or use of force. It finds that should the Applicant continue to engage in conduct similar to that which were the subject of his previous convictions, this would potentially cause significant harm to individuals or the Australian community.
In having regard to the likelihood the Applicant will engage in further criminal or other serious conduct, the Tribunal has noted the Applicant’s evidence to the Tribunal and in his various statements, those of his mother and brothers, and his psychologist Ms Geddes, that he has learned his lesson and will in future be a law-abiding citizen. It has also had regard to the Applicant’s when he committed his offences and to the evidence before it, particularly that of Ms Geddes, that he has matured and his understanding of his responsibilities as an adult have developed during the past six years of his incarceration.
In determining the likelihood that the Applicant will engage in criminal or other serious conduct, the Tribunal has taken into account the evidence that his crimes occurred when he was a drug addict and the Applicant’s claims that this caused him to act in an manner about which he is now ashamed.
The evidence before the Tribunal is that the Applicant has successfully completed two EQUIPS Programs for Addiction and Aggression and that he has been on a methadone program which appears to have been successful in addressing his drug addiction.
The Applicant’s resolution and commitment to live a drug free life has not been tested in the community. This is largely for reason that since his release on parole in July 2017 he has been held in immigration detention at VIDC. The Tribunal has therefore given limited to weight to this consideration in determining the likelihood the Applicant will engage in criminal or other serious conduct in future.
Based on the evidence before it, the Tribunal finds that there is a risk of the Applicant continuing to re-offend, but this risk is mitigated by the Applicant’s positive steps to address his addiction and aggression issues that significantly contributed to his offending behaviour and led to his incarceration for the past six years.
The Tribunal makes this finding also on the basis of the Applicant’s evidence to the Tribunal that indicates that he has taken full responsibility for his past criminal behaviour, and that he appreciates the significance and seriousness of the offences for which he was convicted and the consequences and impact of any future criminal offending.
In making this finding the Tribunal has had regard to evidence that the Applicant has the support of his mother and three brothers, including a place to live and a job to go to upon his release, and the positive effect this will likely have on his continuing rehabilitation and likelihood of re-offending.
The Tribunal has had regard to the other statements in support of the Applicant and notes that these do not refer to the specifics of his offences. Accordingly, the Tribunal has placed limited weight on these statements in reaching its findings in relation to the risk to the Australian community should the Applicant re-offend.
On the basis of the evidence before it, the Tribunal finds that the risk of the Applicant engaging in further criminal conduct is at the low end of the scale.
In making this finding, the Tribunal has been informed by Principle 5 which provides:
Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
The evidence before the Tribunal is that the Applicant came to Australia with his mother at a very young age and has spent his entire life in this country, including his undertaking schooling, prior to him commencing offending at the age of 17 and being incarcerated from the age of 19. The Applicant has had limited opportunity to participate in and contribute to the community during his adult life as a consequence of his offending and subsequent incarceration.
The length of time the Applicant has been living in Australia and the circumstances under which he migrated here are factors that support a finding that there is a higher level of tolerance by Australia for his serious criminal conduct than there would be for a non-citizen who has lived in the community for a much shorter period of time.
For the reasons above, and applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, Primary Consideration 1 weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 2 - The best interests of minor children in Australia affected by the decision
Primary Consideration 2 of Part C in paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[8] The Applicant does not have any minor children and his three brothers are adults.
[8] Direction No. 65 at [13.2(2)]
Primary Consideration 3 - The expectations of the Australian community
Primary Consideration 3 of Part C in paragraph 13.3(1) states:
(1) The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community: Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 (Candemir) at [61]. This is therefore a matter ultimately for the decision-maker to determine having regard to guidance found in existing jurisprudence.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Justice Mortimer observed in relation to the consideration detailed in paragraph 13.3 of the Direction:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] … It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).
Noting Her Honour’s observations that this consideration inevitably weighs against revocation in that it operates effectively as a deeming provision in relation to expectations of the community, regardless of the existence or otherwise of any objective basis for this, the Tribunal finds that the consideration weighs against revocation of the mandatory cancellation decision.
The Tribunal finds that Principle 2 of Direction 65, which recognises the expectation of the Australian community that a person who commits serious crimes should have their visa cancelled, is reflected in paragraph 13.3 and Justice Mortimer’s finding that this is effectively a deeming provision in relation to the non-revocation of a visa cancellation decision in relation to a person who fails to satisfy the character test.
Accordingly, the Tribunal finds that Primary Consideration 3 weighs against the revocation of the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that Other considerations must be taken into account by the decision-maker where relevant.
The five other considerations are summarised in paragraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugee Convention). Therefore, the Tribunal finds that this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
…Reflecting the principles at 6.3, decision-makers must have regard to:
(a) How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The evidence before the Tribunal is that the Applicant has substantial ties to Australia, particularly his mother who resides here and three brothers who are Australia citizens. He has other ties to Australia, including the individuals who provided letters of support.
The evidence is clear that the impact on the Applicant’s family if the Applicant returns to the United States will be very significant, particularly the emotional hardship they will endure and the impact on their lives. The family will undoubtedly be detrimentally affected by the physical separation between them and the Applicant, and the loss of the opportunity to re-establish their relationships with him.
However, there is no evidence before the Tribunal to indicate that his family would not be permitted to visit the Applicant in the US, and his mother, a US citizen would be readily able to travel to and remain the US, her work commitments permitting. The Applicant’s mother recently stayed in the US for a period of more than 2 years and this suggests that she is willing and able to spend extended periods away from Australia and her other three children.
There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and other forms of communication if he returns to the US. His mother and brothers gave evidence that during his incarceration it was primarily via phone that they maintained contact with the Applicant and that they visited him infrequently.
There is no evidence that the Applicant’s mother could not relocate to the US to join the Applicant should she wish to do so. The evidence before the Tribunal is that the Applicant’s mother’s parents live in Palm Springs, California and she lived in LA during her recent extended visit to the country of her citizenship.
The evidence before the Tribunal is that the Applicant’s mother and brothers have well-established lives and good jobs in Australia and that the likelihood is that they would not choose to regularly visit or relocate to the US should the Applicant be removed to there.
On the basis of the evidence before it, the Tribunal finds on balance that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Tribunal finds that there is no specific evidence on this issue and the Applicant does not claim that any Australian business interests would be affected by his removal to the US.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in paragraph 14.5(1) that:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The evidence before the Tribunal is that if the Applicant is returned to the US he will have no support from family and he will struggle to find somewhere to live, establish himself, and continue his rehabilitation.
The Tribunal finds that living standards in the US will not be significantly different to those in Australia and that the Applicant does have some family members, including grandparents, who reside there. The Applicant is aged 29 and has equipped himself while in prison to undertake further study, which as a US citizen will be available to him if he is able to access sufficient funds. He will not face any language or cultural barriers on his return, and he will have the same access to welfare benefits as all US citizens. It finds that the obstacles the Applicant may experience on his return are real but are not insurmountable.
The Applicant claims to have concerns about returning to the US as it is a more dangerous country than Australia. There is no evidence before the Tribunal to indicate that the Applicant would be at any greater risk than any other US citizen or that his removal to the US would put him in danger or at the risk of harm.
On balance, the Tribunal finds that the impediments the Applicant will face if he is returned to the US weigh in favour of revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, the Tribunal finds that Primary Consideration 1 weighs in favour of revocation of the Mandatory Visa Cancellation Decision. In particular, despite the nature and seriousness of the Applicant’s offences the risk of him re-offending, while not remote, is at the lower end of the scale. The Applicant clearly regrets his past criminal behaviour, and has an appreciation of the consequences of such behaviour. This coupled with the fact that he has successfully completed programs in prison to address his addiction and aggression, is continuing on the methadone program, and has a commitment to ongoing psychological treatment upon his release, support a finding that weighs in favour of revocation.
Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision for the reasons outlined above, particularly the effective deeming operation of this consideration.
In regard to the Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation of the Mandatory Visa Cancellation Decision. The extent of the impediments the Applicant will face if he is removed from Australia on balance weigh in favour of revocation.
The Tribunal finds that Primary Considerations 1 weighs in favour of non-revocation and Primary Consideration 3 weighs against revocation of the Mandatory Visa Cancellation Decision. As two of the Other Considerations weigh in favour of revocation, these tip the scales in favour of revocation of the Mandatory Visa Cancellation Decision.
DECISION
The reviewable decision made on 20 February 2018, being the decision of the delegate of the Minister for Home Affairs not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, is set aside.
In substitution, the decision to cancel the Applicant’s Class BB Subclass 155 Five Year Resident Return visa, made on 16 February 2017, is revoked.
I certify that the preceding 135 (one-hundred-thirty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.......................[SGD].................................................
Associate
Dated: 16 May 2018
Date of hearing: 3 May 2018 Solicitors for the Respondent: T Hillyard – Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Natural Justice
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Procedural Fairness
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Remedies
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Statutory Construction
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