Dalley and Minister for Home Affairs (Migration)

Case [2019] AATA 3738

Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019)

Division:GENERAL DIVISION

File Number:           2019/3957

Re:Carlos Dalley  

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:20 September 2019

Place:Brisbane

The decision under review is affirmed.

............................[SGD]............................................

Senior Member Theodore Tavoularis

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of visa –expedited matter – Special Category Class TY Subclass 444 visa – where visa was cancelled under s 501(3A) because Applicant had a substantial criminal record and was serving a full-time term of imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 79 – risk of re-offending – risk of harm to Australian community – best interests of minor children – expectations of Australian community  – decision under review affirmed

LEGISLATION

Criminal Code Act 1899 (Qld)

Migration Act 1958 (Cth)

CASES

Afu v Minister for Home Affairs [2018] FCA 1311

DKXY v Minister for Home Affairs [2019] FCA 495

Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409

ETWK and Minister for Immigration and Border Protection [2017] AATA 228

FYBR and Minister for Home Affairs [2019] FCA 500

Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166; 153 ALD 337

Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; 250 FCR 548

Minister for Home Affairs v Buadromo [2018] FCAFC 151

Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

TGXY and Minister for Home Affairs [2019] AATA 757

Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIAL

Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA

REASONS FOR DECISION

Senior Member Theodore Tavoularis

20 September 2019

INTRODUCTION AND BACKGROUND

  1. Mr Carlos Dalley (“the Applicant”) is a 32 year old New Zealand citizen. Movement records indicate that the Applicant was granted a Class TY, Subclass

    [1] Exhibit 5, s 501 G-Documents, G23, page 162. Note: the Applicant was also granted an identical Class TY Subclass 444 Special Category (Temporary) visa upon his initial arrival in Australia on 19 June 1997.

    444 Special Category (Temporary) visa (“the visa”) upon his most recent arrival into Australia on 6 March 2014.[1]

  2. The Applicant has a criminal history in Australia which commenced on 17 December 2006 and ran until 22 January 2017.[2] His first sentencing episode came before the courts on 8 January 2007 while his final sentencing episode occurred on 2 May 2018. His offending was both multi-faceted in nature and committed with relative frequency and consistency during its 11 year duration. The offending culminated in him being sentenced to a term of two years’ imprisonment on 2 May 2018.…

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AGLC
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738
Case
[2019] AATA 3738
Decision Date

CaseChat Overview and Summary

This matter concerned an application by Mr Dalley for the revocation of the mandatory cancellation of his Special Category Class TY Subclass 444 visa. The visa had been cancelled under section 501(3A) of the Migration Act 1958 (Cth) because Mr Dalley possessed a substantial criminal record and was serving a full-time term of imprisonment. The Minister for Home Affairs opposed the revocation.

The court was required to determine whether the discretion conferred by section 501CA of the Migration Act 1958 (Cth) to revoke the mandatory cancellation of Mr Dalley's visa should be exercised. In making this determination, the court was bound to consider the considerations outlined in Direction No 79, including the risk of Mr Dalley re-offending, the risk of harm to the Australian community, the best interests of his minor children, and the expectations of the Australian community.

The court reasoned that Mr Dalley's offending, particularly the 2008 conviction for intentionally causing serious injury, was very serious and involved extreme physical violence. Despite Mr Dalley's claims of reduced alcohol consumption and participation in rehabilitation programs, the court found that there was insufficient evidence to demonstrate that he had overcome his tendency towards binge drinking and consequential violent offending. The court noted that any rehabilitation efforts had occurred within the confines of criminal custody or immigration detention, and insufficient time had elapsed in an unsupervised community setting to test the efficacy of these efforts. Consequently, the court concluded that the likelihood of Mr Dalley re-offending remained unresolved and a live possibility.

The court affirmed the decision to refuse to revoke the mandatory cancellation of Mr Dalley's visa.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

First, his offending in 2008 in Melbourne resulting in his sentencing to an 18 month custodial term for intentionally cause serious injury is both very serious and could quite conceivably have been – indeed, almost was – catastrophic. The extreme level of physical violence is shocking. It should be noted that the Crown sought to appeal the sentence imposed upon him at first instance on the basis that the sentence was manifestly inadequate. In dismissing the appeal, the Victorian Supreme Court of Appeal summarised the circumstances of the offending as follows:“The background2 On the evening of Monday 7 August 2006, the respondent [i.e. the Applicant, for present purposes], then aged 19 years, was drinking with a friend, [name redacted], at the respondent’s uncle’s home in Sunshine. At around midnight [name redacted – aforementioned friend of the Applicant] and he decided to go for a walk. He [the Applicant] had concealed in his trousers a metal shopping trolley handle which he later told police he carried as a precaution against any trouble that they might encounter.3 A short time later, they were walking in Anderson Road when they came upon the victim, [name of victim redacted] and his companion [name of victim’s companion redacted], both of whom were obviously intoxicated, staggering and drinking from a wine cask. 4 As the men approached each other, words were exchanged and the respondent struck [name of victim redacted] twice to the head with his fist and then twice in the same area with the shopping trolley handle, knocking him to the ground. 5 When the unfortunate man regained his feet, the respondent struck him once more with the handle again causing him to fall. When he returned to his feet on this occasion, he was dealt another such blow.6 The respondent then grabbed [his aforementioned friend – name redacted], who was fighting with [the victim’s companion – name redacted], and they fled the scene. 7 [The victim – name redacted] was found by police wandering a short distance from the scene, and taken by ambulance to the Royal Melbourne Hospital. On examination, he was found to have suffered: an open wound to the head requiring sutures; a small subdural hematoma; bilateral cerebral contusions; traumatic subarachnoid haemorrhage; a laceration to the left parietal area of the scalp; an extension commuted fracture of the left maxillary antrum and left orbit; and a soft tissue injury to the right knee. He was admitted to the intensive care unit were he was kept in an induced coma until 8 August 2006, remaining in hospital until 15 August 2006 when he was transferred to the Royal Talbot Rehabilitation Centre where he underwent rehabilitation. He has virtually no recollection of the incident.”[22][22] Exhibit 5, s 501 G Documents, G20, pages 138-139. During the hearing before me, the Applicant’s responses to questions put to him in cross-examination about this offending episode were both tepid and unconvincing. Ultimately, his answers to those questions, like much of the rest of his evidence, gave the impression of an air of indifference and a lack of perspective about the quite dangerous consequences that could have resulted from his offending behaviour. This is borne out from the transcript detailing his cross-examination:“…MR HAWKER[23]: We see that in that page that we had open, the criminal history. If we turn over the page, and the third entry from the bottom on page 122 of the G documents, which is the second page of the criminal history, you’ll see there that’s the Melbourne County Court, 7 March 2008, intentionally cause serious injury?[23] Mr Matthew Hawker, Partner, Sparke Helmore Lawyers, the representative of the Respondent.APPLICANT: M’hmm.MR HAWKER: And the sentence there, 18 months’ imprisonment, 12 months of sentence suspended for two years. Do you have a recollection of the criminal court process and that sentencing process at the time that you went through them?APPLICANT: No, not really.…MR HAWKER: And then in broad terms, the facts – if you continue down the page on numbered paragraph 4, the paragraph that starts, “As the men approached each other,” and that’s that broad summary of the facts. So you’re walking with a friend. There are other unknown members of the public that you come into contact with?APPLICANT: But where I lived there, it’s – that wasn’t a pretty place. Like, I’ve been a victim. I’ve been bottled, kicked in the face, kicked in the ribs. It was a couple of months before this, hence why I had that pole. So it’s – the story’s about- it’s completely different.MR HAWKER: The members of the public that we’re talking about for this night were unknown to you though, correct?APPLICANT: Yes, they were.MR HAWKER: Yes?APPLICANT: They were unknown, yes.MR HAWKER: So you wouldn’t have known if they had families at home, what their intentions were. As far as you’re aware, they were unknown to you on that night?APPLICANT: Yes, they were.…MR HAWKER: But on numbered paragraph 12, you’ll see various factors, “A plea of guilty, good prospects of rehabilitation and genuine remorse.” So these notions of rehabilitation, remorse, were things that were taken into account, and…APPLICANT: 19 years old, you know. There’s a difference. I had no – what, any responsibilities, priorities. I had nothing back then.MR HAWKER: But nevertheless, this was just an incident…?APPLICANT: But now there’s – it’s not just me getting affected by this.MR HAWKER: Well this was an incident that led you…?APPLICANT: 19 years old, mate, still growing up.”[24][My underlining][24] Transcript, page 13, lines 42-46, page 14, lines 1-4 and lines 31-47, and page 15, lines 37-47.

Evidence

Evidence Before The Court

There can be little doubt that the abovementioned exchange points to a couple of realities that do impact upon a proper consideration of the factors appearing at paragraph 13.2(4) of the Direction. First, it is clear that the stepdaughter has, as could reasonably be expected of a 15 year old in today’s world, a familiarity with communicating via electronic and/or digital platforms. This is, after all, how she communicates with her mother while she (the mother) is at work. Second, the concept of relocating to New Zealand is not entirely foreign or otherwise unexpected in the mind of the stepdaughter. Unpalatable though it seemed to the Applicant, it is clear that the topic has been broached within the Applicant’s family unit and consideration has been given to the possibility of a familial relocation. The evidence of the Applicant’s wife/ mother of the stepdaughter This familiarity with the feasible possibility of both the stepdaughter and her mother relocating to New Zealand to be with the Applicant were he to be removed, was also apparent from the evidence given by his wife. The following exchange ensued between her and the Applicant’s representative, Ms Samuta[47] in evidence-in-chief:[47] Ms Jennifer Samuta, partner of Samuta McComber Lawyers.“MS SAMUTA: So what concerns do you have if Carlos isn’t able to come home and he has to go to New Zealand?THE APPLICANT’S WIFE: Concerns? It’ll be emotional, emotional concerns for myself and for our daughter. MS SAMUTA: What are you – well, let’s break that down. With [the stepdaughter] what concerns do you have for [the stepdaughter]?THE APPLICANT’S WIFE: That her behaviour – that her behaviour just might fall back, slip back a bit. When Carlos was gone earlier, you know, she went into this behaviour, this bit of a pattern where she lost enthusiasm, she lost the mental capacity as a teenager to carry on with her schooling. Her attitude and behaviour changed towards me and not only me she just wasn’t herself, she’s not herself. So that actually – that takes a quite a bit of energy to parent her well to keep her on a narrow path, to keep her doing well at school, to look after her mentally.MS SAMUTA: So do you have any other concerns if Carlos’s visa isn’t reinstated? So you’re worried [the stepdaughter’s] behaviour, do you have any other concerns about [the stepdaughter]?THE APPLICANT’S WIFE: She’ll just miss her dad.MS SAMUTA: And have you had discussions with Carlos about what will happen if his visa isn’t reinstated?THE APPLICANT’S WIFE: I have. He is my husband, so if it is not reinstated we will move to be with Carlos because I love him, he’s my husband.[48][My emphasis and underlining][48] Transcript, page 26, lines 3 – 23. A very unsavoury aspect of this case involved the quite appalling evidence surrounding the abuse[49] endured by the Applicant’s wife at the hands of her own stepfather who is currently in New Zealand. An aspect of the evidence of the Applicant’s wife involved an understandable reluctance on her part to relocate to New Zealand and to thus risk any closer proximity to her abuser than she would otherwise be compelled to experience if she remained in Australia. [49] Ibid, page 26, lines 43-46.

Decision

Reasons for decision

In terms of a concluded opinion, Dr Palk said these things:“13. Opinion and Conclusions13.1 Mr Dalley’s difficulties with the law occurred in the context of a long history of alcohol misuse. Despite his binge drinking episodes he has managed to maintain employment and remain supportive and loving towards his family. 13.2 Prior to his arrest on the current offences, Mr Dalley commenced reducing his alcohol intake and during his imprisonment he has completed an ‘AA’ course. He has not consumed alcohol since being imprisoned and does not plan to return to alcohol consumption. He recognises the negative impact binge drinking has had on his ability to refrain from breaking the law. He realises he may need to continue receiving support from ‘AA’ to maintain abstinence.…13.4 The risk that Mr Dalley will be involved in offences in the future is most closely linked with his ability to avoid binge drinking and preferably to abstain from alcohol use. Mr Dalley displayed the ability to recognise the seriousness of his behaviour and the impact [sic] his alcohol misuse on others. Mr Dalley impressed as being ready to act maturely and live a responsible lifestyle for the sake of his marriage and stepdaughter.[36][36] Ibid, pages 189-190. Once again, Dr Palk makes certain observations but does not engage in any predictive exercise about how any course of treatment the Applicant has undertaken, or will undertake, can be expected to minimise his risk of reoffending. With further respect, an observation that the Applicant “…has not consumed alcohol since being imprisoned and does not plan to return to alcohol consumption” does not equate to a formal finding about the Applicant’s risk of recidivism. Of perhaps greater concern is Dr Palk’s further observation that the Applicant “…realises he may need to continue receiving support from ‘AA’ to maintain abstinence.” What the Applicant thinks he “may need” to overcome a preponderance to abusing alcohol and consequential violent offending will never approach an expert’s definitive finding about (1) the extent to which a person has overcome reliance upon or a tendency to abuse a given substance and (2) how the expert reaches a reasoned and concluded prognosis about a preponderance towards such reliance and/or abuse of a given substance. Neither such finding is evident in Dr Palk’s report. In a similar vein, to simply cite “…a number of protective factors that considerably reduce…” the Applicant’s risk of recidivism, while not actually explaining how those factors reduce that risk, makes it difficult to lend any measure of evidentiary weight to the report. To say that a “protective factor” includes a “determination [on the part of the Applicant] to cease binge drinking and maintain an alcohol free lifestyle…” is merely an observation and falls way short of the predictive exercise expected from an expert. It should also be noted that there is a dearth of evidence to demonstrate that the Applicant has – in the context of participation in the broader community – developed a capacity to overcome a preponderance towards binge drinking and resulting violence. Any course of rehabilitation has been approached and undertaken in the context of his absolute removal from the broader community and has only occurred either in criminal custody or immigration detention since 2 May 2018. I therefore agree with the Respondent’s observation that insufficient time has elapsed where the Applicant has been in an unsupervised environment in the Australian community to allow any claimed rehabilitation to be tested.[37] Accordingly, the only rational finding can be that his likelihood of reoffending remains unresolved and a live possibility. [37] Exhibit 3, Respondent’s SFIC, page 7, paragraph [31]

Ratio Decidendi

Legal Principle Established

I will now turn to addressing these considerations.Primary Consideration A – Protection of the Australian Community In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions. In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:(a)the nature and seriousness of the non-citizen’s conduct to date; and(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his National Check Results Report, which appears in the material.[17] As mentioned earlier, it is an offending history that spans an 11 year period. [17] Exhibit 5, s 501 G-Documents, G18, pages 121-122.The Nature and Seriousness of the Applicant’s Conduct to Date I am of the view that the Applicant’s offending can be readily categorised as very serious. He is only a relatively young 32 years of age, yet has compiled a lengthy criminal history across an 11 year span. It is not unreasonable to say that his offending has played a quite significant role for the better part of his adult life. A careful examination of his offending history demonstrates that while his first two offences involved a summary offence (committing public nuisance) and a failure to follow the direction of lawful authority (both offences having been dealt with in January and August 2007, respectively), his subsequent offending is both demonstrably more serious and increasingly redolent of a refusal to respect lawful authority, be it in the form of a failure to respect either the personal or property rights of others. The Melbourne County Court, on 7 March 2008, sentenced the Applicant to an 18 month custodial term for the offence of intentionally cause serious injury. In Queensland, his offending moved into the realm of criminal code[18] offending in 2009, via a charge and conviction for the dangerous operation of a motor vehicle while adversely affected by an intoxicating substance. There followed additional criminal code offending[19] in 2011, for a charge and conviction of stealing. As part of the stealing offence, the Applicant was also sentenced for a breach of probation imposed for his abovementioned dangerous operation of a motor vehicle offence.[18] Criminal Code Act 1899 (Qld), s 328A(1) and (2)(A).[19] Ibid, s 398.