Da Costa Junior and Minister for Immigration and Multicultural Affairs (Migration)
[2025] ARTA 116
•24 February 2025
Da Costa Junior and Minister for Immigration and Multicultural Affairs (Migration) [2025] ARTA 116 (24 February 2025)
Applicant/s: Nei Lima Da Costa Junior
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/10203
Tribunal:Deputy President Britten-Jones
Place:Melbourne
Date:24 February 2025
Decision:The Tribunal affirms the decision under review.
..................[SGD]......................................................
Deputy President Britten-Jones
Catchwords
MIGRATION – Non-revocation under s 501CA(4) of the Migration Act 1958 of the mandatory cancellation of Applicant’s Partner (Subclass 100) Visa – where the Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation – culpable driving causing three fatalities and serious injuries – protection and expectations of the Australian Community – best interests of daughter favours revocation – conduct and harm so serious that even strong countervailing considerations are insufficient to justify revocation - decision affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Secondary Materials
Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Statement of Reasons
This is an application for review of a decision to not revoke the mandatory cancellation of the Applicant’s Partner (subclass 100) visa (the visa) under s 501(3A) of the Migration Act 1958 (Cth).[1]
[1] All references to legislation are to the Migration Act 1958 (Cth) unless otherwise stated.
THE DECISION TO CANCEL THE APPLICANT’S VISA
On 25 June 2020 the Applicant’s visa was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment of over 12 months.
The Applicant sought revocation of the cancellation decision on 20 July 2020 and made representations in support of revocation dated 23 July 2020, 16 May 2021, and 11 November 2024.
On 4 December 2024, a delegate of the Minister decided not to revoke the cancellation decision (the non-revocation decision). The Applicant applied to the Tribunal for review of the non-revocation decision on 5 December 2024. The Tribunal heard the matter on 17 and 18 February 2025.
LEGISLATIVE FRAMEWORK
Under s 501(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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
The character test referred to in s 501(3A) is outlined in s 501(6). Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by sub-s (7)). For the purposes of s 501(6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
Where a visa has been cancelled as set out above, the Minister has a power under s 501CA(4)(b) to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked:
501CA Cancellation of visa—revocation of decision under subsection 501(3A) (person serving sentence of imprisonment)
(1) This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2) For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3) As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i)a written notice that sets out the original decision; and
(ii)particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(Emphasis in original)
Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.
ISSUES BEFORE THE TRIBUNAL
The Applicant concedes appropriately that he does not pass the character test prescribed under s 501(6)(a) as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has a ‘substantial criminal record’ as defined under s 501(7). It follows that the Applicant cannot rely on s 501CA(4)(b)(i) to have the mandatory visa cancellation revoked.
Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is ‘another reason’ why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which I am required to ‘read, identify, understand and evaluate’.[2] As held in Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane, ‘deciding whether or not to be satisfied that ‘another reason’ exists might be the product of necessary fact finding, or the product of making predictions about the future, or it might be about assessments or characterisation of an applicant’s past offending’.[3]
[2] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [22], [36].
[3] [2021] HCA 41, [14].
BACKGROUND
The Applicant is a citizen of Brazil. He was born in Salvador on 26 January 1984 and grew up with his parents and older brother. His parents still live in Brazil. His older brother lives in Switzerland. He has a 23-year-old daughter living in Brazil who was born on 20 July 2001. He maintains contact with this daughter and his parents in Brazil but it is difficult because of the time difference. In 2010 he married an Australian citizen who he had met whilst travelling in England. She sponsored him on a Partner visa and he came to Australia in April 2012 when he was 28 years old. They lived together in St Kilda and Richmond and she became pregnant in early 2013. Their daughter was born on 5 November 2013. He became concerned about his ability to provide for his family as he had limited English at the time and was unable to secure consistent employment.
The Applicant had taken drugs (cocaine and cannabis) recreationally in Brazil but his drug use increased, including ice, following his arrival in Australia and the period leading to and after the birth of his daughter. In June 2012 his licence was cancelled and he was disqualified from driving for 6 months for drink driving. In April 2013, he was detected exceeding the speed limit by 47 km/h in the Burnley Tunnel for which he was convicted and fined $1,000. On the evening on 12 January 2014, he caused a massive tragedy by driving after taking ice. Three people were killed, three others seriously injured and one other’s life was endangered. He pleaded guilty to the offences for which he was charged and was sentenced to a total effective term of imprisonment of 16 years with a non-parole period of 11 years.[4] The Applicant appealed the severity of the sentence but was unsuccessful.
[4] Section 501G G-Documents, G3 (‘G-Documents’).
The Applicant gave oral evidence and provided written statements dated 20 July 2020, 24 July 2024 and 28 January 2025. There was written and oral evidence from his wife from whom he is now divorced. The Applicant relied upon numerous letters from an Associate Professor of Criminology and Justice who also gave oral evidence. Written and oral evidence was also given by a friend who has offered the Applicant accommodation if he is released into the community. There are numerous other letters of support.
Direction 110
The Tribunal is bound by s 499(2A) to comply with any directions made under the Migration Act. In this case, Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) has application.[5]
[5] Direction No. 110 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘the Direction’).
For the purposes of deciding whether to refuse a non-citizen’s visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision-maker’s application of the Primary and Other Considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the noncitizen does not pose a measureable risk of causing physical harm to the Australian community.
Informed by the principles in paragraph 5.2 above, I must take into account the primary and other considerations in the Direction.
The primary considerations are:[6]
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
[6] Ibid at 8.
The other considerations are:[7]
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on Australian business interest.
[7] Ibid 9(1).
The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations.[8]
CONSIDERATION
[8] Ibid 7(2).
Protection of the Australian community – 8.1 of Direction 110
When considering the protection of the Australian community, I have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity. Entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[9] As required by paragraph 8.1(2) of the Direction, I give consideration below to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
[9] Ibid 8.1(1).
The nature and seriousness of the non-citizen’s conduct – 8.1.1 of Direction 110
When considering the nature and seriousness of the Applicant’s conduct, I take into account his criminal activity and other serious conduct. The Applicant’s most serious driving offences occurred on the evening of 14 January 2014 and resulted in the death of three people and serious injuries to three others. However, there was a history of earlier driving offences which were referred to by the sentencing Judge on 17 September 2014 who said:[10]
[30] You have no criminal convictions although your driving history includes a traffic infringement notice on 18 June 2012 for exceeding the permitted concentration of alcohol. On that offence your blood alcohol concentration was between 0.07% and 0.099%. Accordingly, your license was cancelled and you were disqualified from obtaining a licence for a period of 6 months. You were only to be re-licensed by order of a Magistrate.
[31] Further, as part of that history, on 27 April 2013 at 8.27pm, a vehicle driven by you was detected by a speed camera in the Burnley Tunnel as travelling at a speed of 130 km/h. The alleged speed was 127 km/h. You were therefore 47 km/h over the speed limit of 80 km/h. As part of this sentence and by agreement I will deal with you for that offence. That offence occurred some eight months before these matters but demonstrates that you were by no means adverse to travelling at extremely high speed on public roads. Of course I cannot speculate whether you drove like that on other occasions when you were not detected, but this matter demonstrates a previous willingness by you to drive in an extremely dangerous manner. You were spoken to by police about that matter a few weeks later and whilst admitting you were the driver, you offered what could only be described as an inadequate excuse or explanation for your conduct.
[10] G-Documents (n 4) G5, 77.
On the summary charge of exceeding the speed limit on 27 April 2013, the Applicant pleaded guilty and was convicted and fined $1,000 by the sentencing Judge on 17 September 2014.[11] The drink driving on 18 June 2012 and the speeding on 27 April 2013 constitute serious conduct which reflects very poorly on the Applicant and suggests he had a disregard for laws relating to driving. In his most recent statement to the Tribunal, the Applicant said that these driving incidents ‘should have been red flags for me about my driving. Unfortunately, I did not see them this way at the time.’ Instead, he went on to commit the most serious offences on 14 January 2014. The Applicant had attended a court hearing for his speeding offence only days before on 10 January 2014.[12]
[11] Ibid 69 [4] and 82 [50].
[12] Applicant’s statement dated 28 January 2025 at 4 [28].
The circumstances of the most serious offending were described by the Court of Appeal:[13]
[13] G-Documents (n 4) G4, 49-52.
[4] On 12 January 2014, the applicant was driving east at high speed along Dandenong Road when he caused a fatal accident at the intersection of Dandenong Road and Warrigal Road. The applicant’s vehicle entered the intersection on a red light, fatally struck a pedestrian and collided with a southbound vehicle through the intersection. This vehicle contained five people and, as a result of the impact with the applicant’s vehicle, spun and struck a pole on the centre median strip. As a result of the impact with the applicant’s vehicle and the pole, two of the occupants were killed and the three others were seriously injured. The applicant’s vehicle, following the impact of the first collision, also collided with a second vehicle.
[5] In the days prior to the offending, the applicant had used an unknown quantity of methylamphetamine (or ‘ice’). At approximately 8.08 pm on 12 January 2014, the applicant drove into the Crown Casino car park at Southbank. He remained in the car, apparently sleeping, until he was spoken to by a casino official at 11.18 pm. The applicant was asked to move away from the area. The applicant said he had been tired and had been having a nap. There was then discussion about whether he should be driving. The applicant drove out of the car park at about 11.23 pm.
[6] The applicant’s vehicle was observed driving on Queens Road (away from the casino) at a high speed. He was then seen driving erratically on Dandenong Road, changing from lane to lane, as the vehicle approached the intersection with Chapel Street. Continuing along Dandenong Road, the applicant failed to stop at a red light at the intersection of Dandenong Road and Glenferrie Road and was observed failing to stop at a further red light near the intersection of Tooronga Road and Dandenong Road.
[7] At the intersection of Dandenong Road and Belgrave Road, the applicant’s vehicle activated a speed camera which recorded its speed as 122 km/h. The camera was activated at 11.34 pm. The applicant’s vehicle passed Chadstone shopping centre, where it was observed travelling at high speed, and approached the intersection of Dandenong Road and Warrigal Road.
[8] The applicant’s vehicle struck the pedestrian, Mr Anthony Parsons, at 11.35 pm. At the time the vehicle entered the intersection, the light had been red for at least 18 seconds and his vehicle was travelling between 118 and 124 km/h. The speed limit was 80 km/h. Mr Parsons and his wife had been walking south along the western side of the intersection. The pedestrian lights they faced were green. Mr Parsons walked across the first lane of Dandenong Road and had just begun to cross the second lane when he was struck by the applicant’s vehicle. Mr Parsons’ wife was walking behind him, and it is she who was the victim in respect of Charge 7.
[9] When Mr Parsons was struck by the applicant’s vehicle, he was thrown just over 52 metres to the eastern side of the intersection. The applicant had taken no evasive action. Mr Parsons suffered terrible injuries, including the severing of his right arm, and died either upon impact or shortly afterwards.
[10] Having struck Mr Parsons, the applicant’s vehicle continued through the intersection, narrowly missing a number of cars. It then collided at right angles with a vehicle driven by Menelaos Menelaou. Mr Menelaou’s vehicle was travelling in the left hand lane of the southbound carriageway of Warrigal Road. As the applicant’s vehicle struck Mr Menelaou’s vehicle, it lifted off the ground and hit the front passenger side of another vehicle being driven by John Young, who was in the right lane of the southbound carriageway of Warrigal Road. Upon being struck, Mr Menelaou’s vehicle rotated and the rear of the vehicle struck a light pole in the centre median strip of the intersection.
[11] In addition to Mr Menelaou, the people travelling in the vehicle driven by him were his parents, Savvas Menelaou (aged 67) and Ismini Menelaou (aged 59), as well as Elias and Maria Mesaritis. Maria Mesaritis was the sister of Ismini Menelaou. Savvas and Ismini Menelaou were in the rear centre and rear driver’s side seats in the vehicle. Both died at the scene. Elias and Maria Mesaritis were seriously injured, as was Menelaos Menelaou, who became wedged in his seat following impact. All three were taken to hospital.
[12] Whilst being treated by ambulance officers at the scene, the applicant claimed he had been travelling at 80 km/h. He said that, upon seeing a turning vehicle, he had applied the brakes but could not stop. The applicant later told a paramedic that he did not know how fast he had been travelling. When told that the speed limit was 80 km/h, he said that he must have been doing that speed. The applicant also told police at the scene that he had been travelling at 80 km/h.
[13] A preliminary breath test was administered at the scene and the applicant tested negative. A blood sample taken at hospital was also negative for alcohol. The blood sample did, however, reveal methylamphetamine at a concentration of 0.07 mg/litre and amphetamine at a concentration of 0.03 mg/litre. Also revealed to be in the applicant’s system was metoclopramide, an anti-nausea medication.
[14] The prosecution informed the sentencing judge that Dr Maurice Odell from the Victorian Institute of Forensic Medicine had considered the drug levels found in the applicant’s system and concluded that they were quite low. Nevertheless, Dr Odell said, any concentration of those drugs was likely to produce symptoms inconsistent with safe driving.
[15] According to Dr Odell, the applicant’s speedy and risky driving was what would be expected from someone in a stimulated state due to intoxication with amphetamines. But his tiredness and the relatively low blood concentration of methylamphetamine were ‘more suggestive of a fluctuating state of rebound fatigue from use of stimulants in the preceding day or two’. Whilst not able to be certain to what extent drug intoxication and/or fatigue had contributed to the applicant’s behaviour, Dr Odell concluded that he was adversely affected by stimulant drugs at the time of the collision. This conclusion was accepted by the sentencing judge.
[16] Menelaos Menelaou spent two weeks in intensive care at the Alfred Hospital, as a result of the extensive fractures and other life-threatening injuries he suffered. Without extensive medical treatment, the injuries he suffered would have been fatal. He underwent a rehabilitation programme at the Acquired Brain Injury unit at the Epworth Hospital and received further treatment for his injuries and complications arising from them. He was discharged after three months. His rehabilitation was expected to continue.
[17] Elias Mesaritis suffered fractures and lacerations to one of his kidneys and his liver. He spent two days in hospital. He now suffers from post-traumatic stress disorder.
[18] Maria Mesaritis suffered very serious fractures and other life-threatening injuries. She spent 12 days in hospital initially and was hospitalised in one form or another for just under two months, undergoing intensive care and management. Mrs Mesaritis also suffered a mild traumatic brain injury.
With respect to the seriousness of the offending, I adopt what was said by the Court of Appeal:[14]
[66] Each of the individual offences of culpable driving, negligently causing serious injury, and reckless conduct endangering life is a serious example of that offence. The applicant’s behaviour showed complete disregard for the safety of other road users. It is especially serious that that the collision occurred after a sustained period of driving at life-threatening speeds, during which the applicant must have realised that sooner or later he would encounter cars or pedestrians crossing at an intersection.
[14] Ibid 67.
The sentencing judge accepted that the Applicant’s consumption of methylamphetamine was ‘a contributing factor’ to his conduct, but concluded that the conduct:[15]
[35] … was also entirely conscious and deliberate. That is the most aggravating feature of what you have done.
[15] Ibid G5, 78.
The sentencing judge described the gravity of the offending as follows:[16]
[39] The driving you engaged in over a significant distance before the horrific collision at the intersection of Dandenong Road and Warrigal Road was perhaps an indication that something catastrophic was going to occur. It was inevitable that if you maintained that manner of driving along busy roads in a built up area, as you did, death and serious injury would result. You are not charged in relation to that part of the narrative but it is part of the background to the charges you do face and demonstrates why your offending is so culpable.
[16] Ibid 79.
The custodial sentence of 16 years with a non-parole period of 11 years reflects the seriousness of the offending. I conclude as to the nature and seriousness of the Applicant’s conduct that it was extremely serious. It is a very significant factor in terms of whether I am satisfied that there is ‘another reason’ to set aside the non-revocation decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 8.1.2 of Direction 110
In considering the need to protect the Australian community from harm, I have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were repeated, is so serious that any risk that it may be repeated may be unacceptable.[17] As required by paragraph 8.1.2(2) of the Direction, I also have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non- citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[17] The Direction (n 5) at 8.1.2(1).
In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J (as she then was) in Tanielu v Minister for Immigration and Border Protection.[18] Her Honour said that, to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future. It is my view based on the following reasons that the Applicant’s 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 is unacceptable.[19]
Nature of harm if further criminal or other serious conduct – 8.1.2(2)(a) of Direction 110
[18] (2014) 225 FCR 424.
[19] The Direction (n 5) 8.1.2(1).
If the Applicant were to engage in further similar criminal offending, the nature of the harm would be extremely serious because of the likely injuries, or even death, to innocent persons from driving in such a manner.
Likelihood of further criminal or other serious conduct – 8.1.2(2)(b) of Direction 110
The Applicant has expressed remorse for his offending and says that he will not re-offend because he is, and will remain, drug free and because he intends to not drive again. In these circumstances, the Applicant submits that he is a low risk of re-offending. He does not say that there is no risk, but rather, that the risk is so low it is negligible.
The Applicant submits that all the relevant indicators suggest that he is fully rehabilitated. He has been a model prisoner and has undertaken appropriate rehabilitative programs that have addressed the factors, such as drugs, that contributed to his offending.
I accept that the Applicant is genuinely remorseful. He expressed his remorse in a meaningful way in his oral evidence and in his statement in which he said:
[40] I take full responsibility for my actions and the unimaginable harm I caused the victims, their families and my own family. Although I never meant to hurt people, I recognise that my choices to get behind the wheel in the state of mind that I was in, and to speed and drive in an unsafe way were extremely reckless. My choices directly caused the deaths of three people, injured others, and deeply hurt so many of their loved ones. I am the only one to blame for my choices. What happened is completely my fault.
[41] I am extremely sorry to the victims, their families and my own family for all the harm that I have caused. After the accident I spoke to my lawyer about writing a letter to the victims apologising, but my lawyer told me they do not want to hear from me. I completely understand why they would feel this way, and that no apology from me could ever give them back what they have lost, so out of respect to them I have not made any attempt to reach out.
[42] I am so traumatised by the accident that I don’t know if I will ever drive again. It is not that I don’t trust that I could drive safely. I have been sober for 11 years now and I know that I will remain sober. It is more that the thought of getting back behind the wheel after what has happened is so painful to me now, I don’t know if I could do it. I also feel that out of respect for the victims it is better that I don’t drive again.
I also accept that since being in prison, the Applicant has taken every opportunity to rehabilitate and improve himself by engaging in appropriate rehabilitative and developmental programs. I accept what the Applicant said in his statement about addressing his mental health issues through counselling and attending vocational programs. The extent of his rehabilitation is reflected in his commitment to working in prison and his appointment as a Peer Support worker in 2019 which was upgraded to Peer Listener in February 2023. His participation with RMIT University in prison programs further reflects the extent of his rehabilitation and should be commended. Dr Martinovic, an Associate Professor in Criminology and Justice, provided written references and gave oral evidence in support of the Applicant. She said that due to his exceptional contributions in all her programs she has invited the Applicant to join a community based think tank if he is released. She is also willing to provide transitional support to him which will assist his reintegration into the community. I consider that these all very positive factors which reduce the risk of him reoffending.
As part of his parole suitability assessment, the Applicant was assessed in October 2023 and again in October 2024 as a low risk of reoffending. However, the 2023 report described the Applicant as lacking insight into his substance abuse because he appeared to minimise his addiction during the interview. In response, the Applicant said that the interview was not very long and that he had provided further information subsequent to the report. In his evidence to the Tribunal, the Applicant did not minimise the seriousness of his past drug problem and he expressed an understanding of how it contributed to his offending. He explained how his drug use had increased around the time of the birth of his daughter in Australia because he felt financially insecure and that he was letting down his family. He admitted he had a drug problem in the past but said that it was not a problem now. My view is that the Applicant does have appropriate insight about his past drug use and its contribution to his offending. This suggests that the Applicant is likely to not relapse if released. Further, if released, the Applicant will be in a supportive and stable environment because he has a place to live with a friend and he has support from his ex-wife and Dr Martinovic. His daughter will provide a real incentive for him to not reoffend because he does not want to risk being separated from her again. The Applicant has done all he can for now and there are positive signs for the future based on his conduct in prison and future plans, but I note that in the past, when in the community, he has resorted to drug use during difficult times. Despite the abovementioned positive factors, there remains a low risk that if he is released into the community he will again resort to drug use as a coping mechanism to deal with the undoubted stress that he would face in the community.
I note that in the material before the Tribunal is a psychological assessment by a registered psychologist dated 29 October 2024.[20] The Applicant does not wish to rely upon the report and did not call the author. The respondent said that in any event minimal weight should be given to the report because of various deficiencies in it. The author said that the Applicant’s previous history indicates his chances of reoffending are ‘about 0 out of 10’.[21] However, the Applicant did not submit that there is no risk of reoffending but rather has submitted that the Tribunal should find a low risk of reoffending which is so low as to be negligible.
[20] G-Documents (n 4) G15, 139-51.
[21] Ibid 147.
I would conclude that the likelihood of the Applicant engaging in further criminal or other serious conduct is low. This is consistent with the assessment made recently when considering his parole suitability. It reflects the extent of the Applicant’s rehabilitation but takes into account his past drug problems and the fact that the Applicant has not been tested in the community. I would not describe the risk of reoffending as negligible; the risk is material, albeit low.
Conclusion as to protection of the Australian community – 8.1 of Direction 110
There is both a backward and forward looking assessment to be made when considering the protection of the Australian community. It requires a consideration of the Applicant’s past conduct, namely his driving offences, and a consideration of the risk of further offending. Further, it is the Government’s view expressed in paragraph 8.1.2(1) of the Direction that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I believe that this is a case where the Applicant’s 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 is unacceptable. I conclude that the protection of the Australian community is a factor that weighs very heavily against revocation of the cancellation decision.
Family Violence – 8.2 of Direction 110
The Applicant has not committed family violence. The respondent accepts that this factor is neutral.
Strength, Nature and Duration of Ties to Australia – 8.3 of Direction 110
This primary consideration provides at paragraph 8.3 of Direction 110:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
If the Applicant were removed to Brazil, it would have a significant negative impact upon his daughter and his ex-wife. Although the Applicant and his ex-wife have recently divorced, they remain close friends. The Applicant’s ex-wife gave written and oral evidence in support of the Applicant. She and their daughter have kept up regular contact with the Applicant since he was imprisoned in January 2014. Through their monthly visits to the prison, weekly video calls and daily phone calls, the daughter has maintained as good a relationship as possible with her father in the circumstances. The ex-wife and their daughter want the Applicant to be released so that he can assume the role of a parent and provide much needed support to his ex-wife. They would both be devastated if he were returned to Brazil.
The Applicant arrived in Australia in April 2012 on a partner visa sponsored by his ex-wife. He was 28 years old. He worked in a range of different jobs including as a valet and doorman at a hotel, a masseur, a painter, and a dog groomer. He had difficulties finding a job that he enjoyed and that would provide a consistent income to support his family. His daughter was born on 5 November 2013. The Applicant resided in the community until 14 January 2014 which represents a period of less than two years. The Applicant’s work and parenting duties during this period represents a positive contribution to the Australian community but it was for a limited period and I give it less weight under paragraph 8.3(2)(a)(i) of the Direction because he committed the speeding offence on 27 April 2013 and the more serious offences on 14 January 2014, both of which were soon after arriving in Australia. The Applicant has also been a model prisoner and has contributed by working and by engaging with and helping other prisoners.
The Applicant has developed social links with his ex-wife’s family and some friends who provided statements in his support. A friend of the Applicant also gave oral evidence and confirmed his offer of accommodation for the Applicant.
In conclusion, I consider that this factor weighs in favour of revocation of the cancellation decision, but I would give it less weight because the Applicant has only spent about 21 months in the Australian community and he began offending soon after his arrival.
Best interests of minor children – 8.4 of Direction 110
I must determine whether the visa refusal and the non-revocation of the cancellation of the Applicant’s visa is, or is not, in the best interests of a child who is affected by the decision. The following factors that I must consider where relevant to this application include:[22]
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or non-citizen's ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[22] The Direction (n 5) 8.4(4).
The Applicant has an eleven-year-old daughter with his ex-wife. The daughter was only two months old when the Applicant went into prison but she has had meaningful contact with her father by regular visits to prison and daily contact by phone. I accept the evidence from both the Applicant and his ex-wife that there is a loving relationship between the daughter and the Applicant as her father and that he would play a very positive parental role in the future if he were released. The Tribunal was provided with cards and drawings from the daughter in which she expressed her love for her father and her hope that he will be released. If the Applicant were returned to Brazil and separated from his daughter, it would have a devastating impact on her because their relationship would not be able to develop as it would if he were physically present with her in Melbourne. Their relationship would be limited to contact by phone which is difficult due to the time difference and because the daughter does not like talking on the phone. I accept the Applicant’s submission that telephone and video communication would not be a meaningful way of maintaining a father-daughter relationship. Any physical contact would be limited to when the daughter could go to Brazil which would not be often, perhaps once every few years depending on the ex-wife’s ability to finance the expensive overseas trip. The daughter will soon be a teenager and separation from her father would have a very negative impact on her during those critical years. It is in the best interests of the daughter for the cancellation decision to be revoked so that upon his release from prison the Applicant can resume his parental role with his daughter in Melbourne. This weighs very heavily in favour of revocation of the cancellation decision.
The Applicant has also referred to three cousins of his daughter who he said are aged about 13, 8 and 5. The Applicant is their uncle and has had some contact with them whilst in prison. The Applicant said that his daughter sees her cousins regularly so he would expect to do the same. If released into the community, the Applicant would be able to play a positive role in the lives of these three other children, but I give this less weight because the relationship is non-parental and there have been long periods of absence due to his time in prison.
I conclude that the best interests of minor children is a factor that weighs very heavily in favour of revocation of the cancellation decision.
Expectations of the Australian community – 8.5 of Direction 110
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[23] The Applicant has failed to obey the laws of Australia and has engaged in seriously reckless driving which caused three innocent persons to die and another three to be seriously injured. He would therefore be expected to be removed from the community. Given the seriousness of the Applicant’s criminal conduct, there is an unacceptable risk of further re-offending.
[23] The Direction (n 5) at 8.5(1).
I conclude that the Australian community expects that the Australian government should cancel the Applicant’s visa. This expectation of the Australian community applies regardless of whether the Applicant poses a measureable risk of causing physical harm to the Australian community.[24] This is a factor that weighs heavily against revoking the cancellation decision.
[24] Ibid at 5.2(4).
Other Considerations
In deciding whether there is ‘another reason’ to revoke the cancellation of the Applicant’s visa, I must also take into account the ‘other considerations’ listed in the Direction, where relevant, but these are not exhaustive.[25]
[25] SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395, 409 at [86]; [2014] FCA 303.
The Applicant has expressed a fear of harm if returned to Brazil because Salvador, where his family lives, is a most dangerous city with organised crime, robberies, murders, and gang related violence. I accept the Applicant’s concerns and that he may be targeted by criminals because of a perception of wealth. However, I note that this type of fear did not prevent the Applicant’s ex-wife and daughter from visiting his family in Salvador twice when the Applicant was in prison. Therefore, I give limited weight to these concerns. They are factors that are relevant to the extent of impediments the Applicant would face if removed to Brazil.
Legal Consequences of Decision – 9.1 of Direction 110
As a consequence of affirming the decision under review, the Applicant will be detained upon completion of his sentence and will be liable to be removed from Australia as soon as reasonably practicable. He will not be able to apply for another visa (except for a protection visa). The Applicant has raised no claim of non-refoulement obligations.
These are the intended consequences of a visa cancellation and therefore this consideration weighs neutrally in this matter.
Extent of impediments if removed – 9.2 of Direction 110
The Direction requires that I consider the extent of any impediments that the Applicant may face if removed from Australia to his home country in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the applicant’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to him in that country.
There would be a period of adjustment and some difficulties for the Applicant whilst he re-establishes himself in Brazil. These difficulties would be exacerbated because Salvador is a dangerous city with a significant criminal element. However, the Applicant is not old and he has no significant health issues. If he needed general or mental health care supports, the available country information suggests that they are available in Brazil. Portuguese is his native tongue and there would be no substantial language or cultural barriers for him in Brazil. His parents and his older daughter live there. The Applicant was employed in various jobs both in Brazil and in Australia so the prospects are reasonable for him finding employment. This is a consideration that weighs in favour of revocation, but I would give it limited weight because the identified impediments are not so significant as to prevent the Applicant from establishing himself and maintaining basic living standards in Brazil.
Impact on Australian business interests – 9.3 of Direction 110
There was no evidence of impact on Australian business interests within the meaning of the Direction. This factor is neutral.
CONCLUSION
I have considered the specific circumstances relating to the Applicant as part of my consideration. I am now required to carry out the evaluative exercise of weighing up the factors to determine whether I am satisfied that there is ‘another reason’ to revoke the cancellation decision.
The primary considerations of the protection and expectations of the Australian community weigh very heavily against the Applicant because of the seriousness of the offending and the unacceptable harm that would occur if it were repeated. I have given significant weight to the best interests of the Applicant’s daughter which is a primary consideration that weighs in favour of revocation. I have given limited weight to the Applicant’s ties to Australia (another primary consideration) because he has only spent about 21 months in the Australian community and began offending soon after his arrival. I consider that the primary considerations of the protection and expectations of the Australian community outweigh the other primary considerations.
In relation to the other considerations, I have given very little weight to the extent of impediments if removed because I do not consider that the Applicant would face significant impediments in Brazil where he lived for his first 28 years and where his parents and other daughter remain living.
The Applicant was born in Brazil in 1984 and he came to Australia in April 2012. Of the almost 13 years the Applicant has been in Australia, he has spent 11 years in prison. Australia has a low tolerance of any criminal conduct by a non-citizen such as the Applicant who has participated in, and contributed to, the Australian community only for a short period of time.[26] The expectation of visa cancellation applies regardless of whether the Applicant poses a measureable risk of causing physical harm to the Australian community. In this case, the Australian community would expect the Applicant, who has engaged in such serious criminal conduct, to be removed even though he has engaged in significant rehabilitation and there is a low risk of reoffending by him.
[26] The Direction (n 5) 5.2(5).
Affirming the decision under review will have very unfortunate and serious consequences for the Applicant’s daughter because she will be separated from her father during her developmental teenage years. My decision will also impact his ex-wife who will not receive the practical and financial support from the Applicant who would have been able to help her with their daughter if he remained in Australia. But this is a case where the nature of the Applicant’s conduct and the harm that would be caused if it were repeated are so serious that even strong countervailing considerations (such as the best interests of the daughter) are insufficient to justify revoking the cancellation decision. In making my decision, I take into account that the primary consideration of the protection of the Australian community is generally, and in this case should be, given greater weight than other primary considerations.[27]
[27] The Direction (n 5) 7(2).
Given that the protection and expectations of the Australian community outweigh the countervailing factors, I am not satisfied that there is another reason to revoke the cancellation decision.
Decision
The decision of the Tribunal is to affirm the non-revocation decision.
I certify that the preceding 65 (sixty-five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.
..................[sgd]......................................................
Associate
Dated: 24 February 2025
Date(s) of hearing: 17 and 18 February 2025 Applicant’s Representative: Mr Dushan Nikolic (Carina Ford Immigration Lawyers)
Solicitors for the Respondent: Ms Sarah Thompson (HWL Ebsworth Lawyers)
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