Davis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 774
•6 April 2021
Davis and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 774 (6 April 2021)
Division:GENERAL DIVISION
File Number(s): 2021/0168
Re:Robert Aotoa Davis
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal: Mr S Evans, Member
Date: 6 April 2021
Place:Sydney
The reviewable decision not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth) is affirmed.
..................................[sgd]......................................
Mr S Evans, Member
Catchwords
MIGRATION – non-revocation of mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – Ministerial Direction No. 79 – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children - other considerations – decision under review affirmed.
Legislation
Migration Act 1958 (Cth) ss 501, 501CA, 500(1)(ba), 499.
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Secondary Materials
Migration Act 1958 – Direction No. 79 – Direction under s 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (instrument made on 20 December 2018, commenced 28 February 2019)
REASONS FOR DECISION
Mr S Evans, Member
6 April 2021
The Applicant, Robert Aotoa Davis (“Mr Davis”) seeks review of a decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) not to revoke the mandatory cancellation of his visa.
INTRODUCTION
Mr Davis is a 43 year-old New Zealand national who first arrived in Australia on 8 August 1981. Mr Davis was the holder of a Special Category (Class TY) (subclass 444) visa (“the visa”) which was mandatorily cancelled on 5 December 2019 under subsection 501(3A) of the Migration Act 1958 (Cth) (“the Act”). Mr Davis sought revocation of the mandatory cancellation on 19 December 2019. On 30 December 2020, a delegate of the Minister decided under subsection 501CA(4) of the Act not to revoke the mandatory cancellation and Mr Davis was notified of the delegate’s decision on 12 January 2021. On 13 January 2021, Mr Davis applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of the delegate’s decision.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel Mr Davis’s visa pursuant to subsection 501CA(4) of the Act.
The Tribunal may revoke the original decision if the Tribunal is satisfied:
(a) that the Applicant passes the character test as defined by paragraph 501(6)(a) and subsection 501(7) of the Act; or
(b) that there is another reason why the original decision should be revoked: paragraph 501CA(4)(b).
DOES MR DAVIS PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Under subsection 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in subsection 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 19 August 2019 Mr Davis was convicted of offences including break and enter for which he was sentenced to a term of 18 months imprisonment. On the basis of this conviction, Mr Davis’s visa was mandatorily cancelled under section 501(3A) of the Act on 5 December 2019.
On the basis of this conviction, I am satisfied that Mr Davis does not pass the character test and consequently Mr Davis cannot rely on subsection 501CA(4)(b)(i) for the revocation of the mandatory cancellation of his visa.
As Mr Davis does not pass the character test, and he has made representations of the kind referred to in paragraph (a) of subsection 501CA(4), it is necessary to decide whether there is another reason the original decision should be revoked.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 79
Section 501CA of the Act applies if the Minister decides under subparagraph 501(3A)(a)(i) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Paragraph 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Paragraph 501(7)(c) further provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(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.
Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which must be complied with by decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”).
The Direction
Paragraph 6.2 of the Direction is entitled ‘General Guidance’ and relevantly provides:
1. The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles [in paragraph 6.3] 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.
…
2. The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA. The relevant … factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 relevantly provides:
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 women or children or vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to 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 considerations 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.
Part C of the Direction identifies the considerations that decision makers must have regard to when determining whether to exercise the discretion to revoke the mandatory cancellation decision. The primary considerations provided in subparagraph 13(2) should generally be given greater weight than the other considerations.
The Direction also states that one or more primary consideration(s) may outweigh the other considerations.
The “primary considerations” are:
(a) protection of the Australian community from criminal or other serious conduct;
(b) the best interests of minor children in Australia; and
(c)expectations of the Australian community.
The “other considerations” are:
(a) international non-refoulement obligations;
(b) strength, nature and duration of ties;
(c) impact on Australian business interests;
(d) impact on victims; and
(e) extent of impediments if removed.
The Tribunal is to consider each of the primary considerations and, as relevant, the other considerations.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
Background
Mr Davis was born in Auckland, New Zealand and first arrived in Australia on 8 August 1981 as a three-year old child with his mother and father. Mr Davis is the father of six children, all of whom live in Australia. Mr Davis’s father and two sisters also reside in Australia. The only time Mr Davis has left Australia as an adult was when his mother passed away in 1999 and he travelled to New Zealand for her funeral.
In an undated written submission to the Tribunal, Mr Davis writes in part:
I believe my past experience and being in addiction has cause my predicament, heartache from family and guilt from myself.
Very ashamed of my actions and apologise to the community and or anyone I have wronged or hurt due to my poor choices and actions. I do not shy [away] from my offending and honestly work hard this time, to get it right and ask for help and be a role model I am supposed to be.
…
I am ready to achieve and move forward. I have employment apon release and a plan for once with back up. A final chance to turn my life around, prove myself in time and give back to family, community my baby son, partner Michelle, grandchildren and children that are young adult’s, sibbling, cousin’s uncle and aunty’s, [and] my loving father…
[errors in original]
Mr Davis has struggled with a drug addiction for most of his adult life. He contends that the addiction was related to the passing of his mother in 1999. In relation to his drug addiction, Mr Davis is confident that “this time” he has taken the necessary steps to succeed in his goals and “stay abstinent” and be “prosocial and respect everyone in my community”. He writes that the past 18 months, during which he has been in prison and immigration detention, have been useful for him and he has completed courses and programs to overcome his addictions. He now owns his wrongs and apologises sincerely for his past actions. He is confident that in the past two years he has been able to put his addictions behind him through treatment, being honest with his family and his partner and no longer avoiding his problems or hiding them from his support network.
Witnesses and character references
In addition to Mr Davis, the Tribunal heard from the following witnesses who gave evidence under affirmation:
Statement of Raelane Mealey dated 12 March 2021
Raelane Mealey is Mr Davis’s sister-in-law and she writes that in the three years she has known Mr Davis, he has been supportive and is looked up to by her son and Mr Davis’s son. She notes that Mr Davis is “easy going” and finds time to spend quality time with the children. She said that her son loves Mr Davis.
Statement of Tiara-Marie Mini Davis dated 3 March 2021
Tiara-Marie Mini Davis is Mr Davis’s daughter. She does not condone her father’s offending but believes his crimes are not a full representation of him as a person. She writes that putting aside his offending, she has always looked up to her father. She feels lost without him and notes that her father has a large “support system” to assist in his recovery. She believes that her father is a “changed man” and that prison and detention have made him reconsider his life. She is confident that he will remain sober “for the sake of himself and our family”.
Undated statement of Kaylan-Joe Davis
Kaylan-Joe Davis is Mr Davis’s eldest son who writes that he misses his father. He acknowledges that Mr Davis has done the wrong thing but believes his father has “come a long way from his drug driven criminal past”. He writes that Mr Davis has many friends and family who can help lead his father in the right direction and ensure he stays on the right path should he be released back into the community. He values his father’s presence and has great confidence in him. Kaylan-Joe Davis told the Tribunal that he and his father were inseparable and that Mr Davis taught him about life.
Statement of Ian Davis dated 3 March 2021
Ian Davis is Mr Davis’s father and he writes that his son is a “good man” who “shouldn’t be deported” as there is nothing in New Zealand that would “keep him on the right path”. He notes that Mr Davis’s children and grandchildren all reside in Australia. Ian Davis believes that his son has kept his emotions and difficulties “bottled up” and this has hampered his recovery, but now that he is honest and has plans to stay clean and in therapy. He confirmed that the passing of his wife, Mr Davis’s mother, was a significant loss for Mr Davis.
Ian Davis confirmed that he suffers from macular degeneration, is legally blind and needs Mr Davis to look after him. He states that Mr Davis is also required to look after his sister who is suffering ill health.
Ian Davis also writes that he is an Australian citizen and that Mr Davis is an Australian citizen by descent.
The following individuals provided written statements in support of Mr Davis’s application.
Statement of Cameron Murupaenga made 13 March 2021
Cameron Murupaenga writes that he knows Mr Davis has struggled with addiction and has been in trouble with the law. He knows Mr Davis as a loving and humble person who prioritises the welfare of his family. He is confident that should Mr Davis be released back into the community he is being open enough about his challenges with drugs that he will redeem himself. He also states that there is work available for Mr Davis should he be released.
Statement of Michelle Cooper Mealey dated 23 February 2021
Michelle Cooper Mealey is Mr Davis’s partner. She writes that she and Mr Davis met between 2016 and 2017 and are romantic and supportive of each other. Ms Mealey writes that her and Mr Davis “share three children” and that prior to imprisonment and detention, he was providing for her and the children and that she has struggled financially without him. In reference to Mr Davis’s drug abuse, Ms Mealey believes she can support Mr Davis in his recovery from substance abuse and recommends a local service that can assist with drug and alcohol recovery. She opines that Mr Davis “wants to stop the cycle of recidivism” and now knows what is at stake and he will not reoffend. Ms Mealey is unable to relocate to New Zealand as she has children who she shares with her previous partner and her support network is located in Australia.
Undated statement of Jessica Davis
Jessica Davis is Mr Davis’s eldest child. She writes that it has been very difficult for her to come to terms with her father’s absence but that Mr Davis played a major role in her life even when he was not physically present. As she has matured, she has come to understand why Mr Davis committed the crimes he did. She notes that Mr Davis has a great deal of family support as he works towards sustained sobriety.
Statement of Ms JM dated 14 March 2021
Ms JM is the mother of four of Mr Davis’s children and she wrote a reference for him which is before the Tribunal. It is noted that the handwriting and general appearance of the reference is almost identical to that of the written reference provided by Jessica Davis. Ms JM acknowledges that she and Mr Davis have had difficulties in the past and “complications in our relationship”, which she attributes in part to being a young couple who did not have their parent’s support. She writes that their “co-parenting” has worked successfully as they have both grown as individuals. She notes that her relationship with Mr Davis was damaged by drug use and believes that Mr Davis now has the support he needs to “push him out” of “this negative cycle”.
She expresses confidence that should Mr Davis be released back into the community he will be able to “turn his life around for the better”. She writes that he has always been there for their children and that Mr Davis is remorseful for his actions.
Statement of Tui-Davis Wang dated 12 March 2021
Tui Davis-Wang is Mr Davis’s sister and she has written that she needs him to support her and her father given that her health has been poor and she has been admitted to hospital on many occasions in the past two years. She also writes that their father has molecular degeneration and is “almost legally blind”. She opines that their family are “not perfect but we are close”.
I will now turn to the considerations set out in the Direction.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Subparagraph 13.1(2) of the Direction further provides that decision-makers should consider:
(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.
The nature and seriousness of Mr Davis’s conduct to date
Mr Davis’s extensive criminal history is set out in the Australian Criminal Intelligence Commission report. His first offence was recorded when he was 15 years of age.
In July 1999, Mr Davis appeared in the Lidcombe Local Court and was fined for assault. In 2003, he was fined for driving with an expired license in the Sutherland Local Court.
Domestic violence offences
Mr Davis appeared in the Kogarah Local Court where he was found guilty of maliciously inflict grievous bodily harm and contravene apprehended domestic violence order in August 2003. He was sentenced to 13 months imprisonment for the offences, the details of which are recorded in a NSW Police Facts Sheet.
The victim of his offending was Ms JM who is also the mother of four of Mr Davis’s children and had been in a domestic relationship with Mr Davis from February 1995. At 6pm on the night of the offending Mr Davis was at his home when Ms JM dropped their four children off at his residence and stayed for dinner. The Police Facts Sheet states in part:
During the course of the evening, [Mr Davis] and victim became engaged in a number of verbal arguments in relation to their children and previous discord between them…
A further verbal argument has then ensued between the victim and [Mr Davis], who was at that time a short distance away from the victim. The victim turned her head slightly, and could only see [Mr Davis] coming towards her from her right side, as she had turned her head to check on her children.
At that time [Mr Davis] has advanced towards the victim, and struck her with a fist to the left side of her head.
The victim has immediately felt pain to the right side of her head, and stated as though she felt her left eye had “come out of its socket”. Further she dropped to the ground, grabbing her left eye, which at that time was bleeding, and lost her vision from the eye.
Ms JM’s injures were serious and she suffered permanent damage to her central vision as a result of the assault.
It is recorded that subsequent to the assault on Ms JM, Mr Davis was fined on two occasions for contravening an apprehended domestic violence order.
Theft and related offences
Mr Davis’s criminal history includes involves an extensive history of theft and related offences. Break and enter offences were committed in May 1993, April and November 2004, July 2008, May and August 2010, August 2013, July 2016 and March 2019.
Notably in April 2009, Mr Davis was sentenced in the Sutherland Local Court to 12 months imprisonment with a non-parole period of 9 months for steal property as a clerk/servant. The offending took place whilst he was working as a forklift driver for a shipping company. The agreed facts state that Mr Davis assisted in the theft of tobacco from a shipping container with a retail value of $918,000 by providing access to the containers in which the tobacco was held.
Mr Davis told the hearing that at the time of the offending he had accumulated a gambling debt and that he “took the fall” for the theft of the tobacco and lost his job as a result of it. He told the Tribunal he had borrowed $10,000 to fund his gambling and was required to repay the debt plus and the additional $5,000 interest.
In April 2012, Mr Davis was sentenced in the Sutherland Local Court to 34 months imprisonment for two break and enter offences committed in 2010 during which he forced his way into people’s homes and stole property.
In November 2013, Mr Davis was sentenced to an aggregate term of imprisonment of 20 months for offending which involved forced entry into a café in a shopping centre where he and a co-offender stole goods.
In April 2014, Mr Davis was sentenced to an aggregate prison term of three years and six months for offending that involved his fraudulent use of credit cards. Mr Davis and a co-offender purchased alcohol and cigarettes from a range of retail shops to the sum of over $43,000 in December 2013. The sentence also took into account driving offences which are detailed below.
On 8 August 2016, Mr Davis appeared in Sutherland Local Court and was found guilty of break and enter house steal value less than $60,000 and resist officer in execution of duty. When he was arrested for these offences on 21 July 2016 he was on parole.
On 15 May 2019, Mr Davis appeared in the Waverly Local Court and was found guilty of enter enclosed land not prescribed premises and possess prohibited drug charges, for which he was fined. On 14 May 2019, he appeared in the Sutherland Local Court where he was sentenced to an 18 month community corrections order for having custody of suspected stolen goods and driving related offences including drive motor vehicle while licence suspended.
As mentioned previously, on 19 August 2019, Mr Davis was sentenced in the Sutherland Local Court to 18 months imprisonment for break and enter.
Driving offences
In addition to the offences mentioned above, Mr Davis’s criminal history includes a number of driving and traffic related offences including use of an unregistrable vehicle in July 2005, drive while license suspended in 2005, drive while disqualified in 2006, and drive a motor vehicle while suspended and use of an uninsured motor vehicle in May 2019.
Mr Davis was also convicted in the Parramatta Drug Court of police pursuit – not stop – drive dangerously in April 2014. The charges relate to the fraudulent credit card use outlined previously.
The Police Facts Sheet records that when police attempted to apprehend Mr Davis following the December 2013 credit card fraud incident, Mr Davis did not stop the vehicle he was driving. A police pursuit followed during which police activated their sirens. During the pursuit, Mr Davis’s vehicle mounted the gutter and drove near the footpath, coming extremely close to striking pedestrians on the side of the road. Police estimated that his vehicle “came less than one (1) metre from striking these pedestrians in an attempt to avoid police apprehension”.
Warnings and previous cancellation
As recently as 24 October 2019 Mr Davis wrote to the Respondent to the effect that both his parents were Australian citizens and having been in Australia since he was a child, he was of the understanding that he was also an Australian citizen. During the hearing, Mr Davis told the Tribunal that after receiving an earlier notice of intention to cancel his visa, he discussed his citizenship with his father, who he maintains assured him that he was an Australian citizen.
On 17 December 2009, Mr Davis was first notified that his visa may be liable to cancellation under section 501 of the Act. After Mr Davis made representations, a delegate of the Minister decided not to revoke his visa but did issue a formal warning. The warning was clear and unequivocal that his visa status may be reconsidered should he breach the character test in the future.
On 5 October 2012, Mr Davis was once again notified that his visa may be cancelled on character grounds. He was again issued a warning, which he acknowledged receipt of. He told the hearing that as he was not placed in detention at that time, he had still not accepted that he was not an Australian citizen.
Following further offending, on 6 June 2017, Mr Davis’s visa was cancelled under section 501 of the Act. Prior to the cancellation being revoked on 13 February 2018, Mr Davis was taken into immigration detention. Whilst in detention, Mr Davis was rehoused at the Christmas Island detention facility. He told the hearing that he lost hope when he was relocated to Christmas Island. Although he had not been using drugs whilst in prison and up to that point in detention, he began taking drugs again whilst being detained at Christmas Island. He said that by the time his visa cancellation was revoked, with reference to his drug use he had “already spiralled out of control”.
Conclusion as to the nature and seriousness of Mr Davis’s conduct to date
Based on the materials before the Tribunal, and with due regard to the evidence presented at the hearing, I am satisfied that the nature of Mr Davis’s offending is very serious.
The Direction specifically states that the Tribunal should consider the frequency of an applicant’s offending when considering the nature and seriousness of their conduct. In this regard Mr Davis has consistently offended since his first court appearance as an adult in 2003. His offending also includes a crime of violence against women and crimes of this nature are viewed particularly seriously.
Mr Davis has been sentenced to terms of imprisonment in 2003, 2005, 2006, 2009, 2012, 2013, 2014, 2016 and 2019. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offence involved. I note also that the frequency of the offending adds to the seriousness of his offending to date.
Mr Davis’s continued offending despite frequent imposition of terms of imprisonment accentuates the objective seriousness of his offending. The seriousness of his persistent offending is compounded by his continuing to offend having been issued two formal warnings and having had his visa cancelled and the cancellation then revoked. Mr Davis’s contention that he was uncertain of his citizenship, at least until his visa was cancelled and he was placed in immigration detention in 2017, is not accepted as plausible. On three separate occasions between 2009 and 2017 Mr Davis was given clear indication by way of notice of intention to cancel, formal warnings and then cancellation, subsequently revoked, that his visa may be cancelled should he continued to offend.
Mr Davis’s continued offending in light of multiple terms of imprisonment and warnings his visa may be cancelled reflects poorly on him. It demonstrates the extent to which he was prepared to consistently and over an extended period of time prioritise his offending with little regard for the consequences.
Having regard to Mr Davis’s criminal offending and the nature of his offences, I find that his conduct is to be viewed very seriously. His offending spans over 25 years and his repeated disregard for the law is concerning. I find that the nature and seriousness of Mr Davis’s criminal conduct is to be viewed seriously.
The risk to the Australian community
In considering the risk to the Australian community, subparagraph 9.1.2 of the Direction provides that 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 decision should not be delayed in order for rehabilitative courses to be undertaken).
The nature of future harm
In assessing whether Mr Davis represents an unacceptable risk to the Australian community, the Tribunal 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.
The assessment of the nature and harm to individuals or the Australian community were Mr Davis to engage in further criminal or other serious conduct is properly informed by the nature of his offending to date and the relevant provisions in the Direction.
Should Mr Davis engage in further criminal conduct, the likely harm to the community may include physical, psychological and economic harm. The use of significant resources in the criminal justice system in also a likely outcome of future offending.
The likelihood of Mr Davis engaging in further criminal activity
Mr Davis submits that his offending is related to his drug use. This insight into his offending is supported by the observations of the courts which have provided him opportunities to seek treatment to address his drug addiction. His son Kaylan also writes that Mr Davis’s criminal past was “drug driven”.
Mr Davis told the hearing that his drug use began following the death of his mother in 1999. Whilst this factor may have altered his substance use or dependence on drugs, the evidence which follows suggests that Mr Davis was using drugs prior to 1999. I note also that Mr Davis’s first recorded offence occurred in 1993, some time prior to the passing of his mother.
Mr Davis told the Tribunal that as he is not “in addiction” and has been sober since being imprisoned in 2019. He submits that he now has a “clear head” and firm understanding as to the seriousness of his circumstances.
Mr Davis contends that he is confident that he can maintain sobriety should he be released back into the community on account of using medicated opioids to treat his drug dependency, having undertaken programs and courses to assist in his rehabilitation, his strong support network, particularly his family, and his honesty about the nature and extent of his addiction.
The Respondent submits that the Tribunal cannot have any confidence as to the efficacy of Mr Davis’s rehabilitative efforts, particularly in light of his use of similar medicated opioid substitutes suboxone and methadone from 2013 through until 2016, his prior completion of vocational and rehabilitative courses and his unsuccessful participation in the NSW drug court program in 2014 and 2016 which is detailed below.
A 10 March 2016 pre-release report from the Compulsory Drug Treatment Correctional Centre is in evidence. The report records that Mr Davis’s first contact with the service was by way of his pre-sentence report for his October 2003 appeal following his conviction maliciously inflict grievous bodily harm and contravene apprehended domestic violence order offences.
The report’s author states that Mr Davis met the DSM-5 criteria for drug dependency and his primary drugs of concern were opioids and methamphetamine. Mr Davis is reported as having commenced using heroin when he was 18 years old and was smoking up to $600 worth each day by age 19. He would use methamphetamine in the morning and then heroin at night. Mr Davis said that each time he reoffended, he was using methamphetamine and heroin and acknowledged that his offences have been related to his long-term substance abuse and dependency.
In regard to rehabilitation, it is written that Mr Davis was participating in individual counselling, NA, MERIT or SMART programs at that time. Mr Davis reported that he commenced an Adult Drug Court Program in 2013, leaving after reoffending three months later. He engaged in a residential rehabilitation program in 2010 but left the program on account of family problems and relapsed immediately. He was receiving Buprenorphine Maintenance Treatment (BMT) from October 2013 to January 2014 and stated that he reoffended and then ceased to collect his dose and was subsequently removed from the program.
An assessment conducted on 7 March 2016, indicated Mr Davis was a medium risk of reoffending. The author concludes that “Mr Davis has made significant progress… and successfully completed the program requirements” before observing that “[h]e has taken steps to address his drug dependency and challenge his offending behaviour”.
Before the Tribunal are certificates confirming Mr Davis’s participation in the Real Understanding of Self-Help introductory components course in October 2018, a certificate of completion for the EQUIPS Foundation Program in December 2019 and the 20 session addiction program and a certificate of completion for Getting Out, Staying Out dated December 2019. Mr Davis also completed the EQUIPS aggression Program in January 2020 and the High Intensity Program Unit that same month.
Asked during the hearing about his plans to manage his drug addiction should he be released back into the community, Mr Davis explained that his family is now aware of the “real underlying issues” and he no longer needs to hide or cover-up his addiction. He maintains that he needs to be “pro-social” and acknowledged that “he can’t go on like this”. He told the Tribunal that should he be released back into the community it is his intention to seek drug and alcohol counselling and maintain his suboxone treatment. He claims that he now understands his triggers and the importance of asking for help and taking action prior to taking drugs. Mr Davis expressed his confidence that he will be able to overcome his drug addiction.
Mr Davis has also struggled with compulsive gambling in the past. He explained that he used to gamble on horses, sports betting and poker machines. He contends that he is now confident he has addressed this issue but did not specify exactly how. Mr Davis indicated that his gambling went “hand in hand” with his drug taking and he now had a greater respect and appreciation for money. He indicated that effective management of his drug dependency would address his compulsive gambling.
A sentencing assessment report conducted prior to his appearance at the Downing Centre District Court in December 2019 assesses Mr Davis as a medium risk of reoffending according to the Level of Service Inventory.
Conclusion as to the protection of the Australian community
The evidence largely supports Mr Davis’s contention that his offending has a significant degree been driven by his substance abuse issues. As such, the efficacy of his drug rehabilitation will be a significant determinant of the risk of Mr Davis reoffending.
Mr Davis has previously been trapped in what he termed a cycle of addiction and offending repeating itself. In considering the prospects of Mr Davis reoffending, I take into account that Mr Davis has a period of sustained sobriety whilst in prison and detention and that he completed courses which would help him to maintain his sobriety if released back into the community.
However, on the available evidence, I am not satisfied that Mr Davis has adequately addressed his substance abuse issues relative to the seriousness of his addiction. I find that there is a very real risk that Mr Davis will reoffend should he be released back into the community. I base this finding on the following considerations:
·the extended period over which Mr Davis has been using drugs;
·previous unsuccessful interventions by the Drug Court;
·Mr Davis states that he is reliant on his family to support him to maintain his sobriety but his family were present and dependent on him when he relapsed back into drug use previously;
·Mr Davis is currently receiving medicated opioids to treat his addiction but on a previous occasion he ceased taking his medication when released from prison. He told the Tribunal it was difficult to fill the prescription given his work commitments and he subsequently relapsed and reoffended;
·Mr Davis was unclear about his planned accommodation if released back into the community. One option may be to live with Ms Mealey, who is also battling drug addiction;
·it is not apparent that Mr Davis has made any firm plans to seek ongoing support and treatment for his drug use should he be returned to the community. Pressed for further details during the hearing, Mr Davis spoke in vague terms of counselling, family support and ongoing medication;
·a 2019 sentencing assessment report concluded he presented a medium risk of reoffending.
In sum, these considerations lead me to conclude that there remains a considerable risk that Mr Davis may relapse and consequently I am not satisfied that Mr Davis presents a substantially mitigated risk to the Australian community.
For these reasons, the protection of the Australian community weighs heavily against revoking the mandatory cancellation of Mr Davis’s visa.
PRIMARY CONSIDERATION B - BEST INTERESTS OF MINOR CHILDREN
Subparagraph 13.2.4 of the Direction provides numerous factors that must be considered, where relevant, in considering the best interests of children affected by the decision.
Mr Davis is the father of six children. Though Mr Davis told the Tribunal that he understood one of his sons, Kaylan was 17 years old, Kaylan confirmed at the hearing that he is now 18 years of age and is therefore no longer a minor.
Mr Davis is father to two minor children, his daughter ZD and his son SD. ZD is six years old and lives with her mother. Mr Davis gave evidence that he has had a falling out with ZD’s mother and he does not see ZD often as a consequence of the poor relationship he has with her mother. He stated he has not seen ZD for “a few years” and confirmed he has been in prison for four years of her life.
Mr Davis’s son SD is two years of age. He currently resides with the sister of his partner Ms Mealey. Mr Davis told the hearing that Ms Mealey’s sister is taking care of the child whilst he is in detention. SD’s mother is currently undergoing drug rehabilitation and applying for more access to SD. Mr Davis’s understanding is that Ms Mealey is slowly re-integrating towards having more care of SD. Mr Davis confirmed that he has not seen SD since 2019.
Though he does not see his minor children often, Mr Davis submits that speaks to them often and helps them financially, though he concedes that he was unable to do so whilst in prison. He told the hearing that whilst he was in prison, his father would take the children out every weekend and provide them anything that they needed.
Mr Davis also notes that SD has indigenous heritage through Ms Mealey and contends that SD is from the Wiradjuri tribe who are the “traditional custodians of the land of Redfern”. He contends that the Commonwealth has a responsibility to ensure “first nations” children have access to both parents.
Mr Davis is the grandfather to two other children, one age five and another age two. A third grandchild was born in early 2020. He is also the step-father to Ms Mealey’s son AM who is age eight and he also has a nephew of the same age.
Raelane Mealey, who is SD’s guardian, provided evidence at the hearing. She spoke of her desire for Mr Davis to resume his parental responsibilities for SD and told the Tribunal that her own son AM wishes that Mr Davis was his father. I accept that Mr Davis has performed the role of a father figure to AM and he has parental obligations which he is expected to fulfil regarding the care of SD.
It is apparent that Mr Davis has been absent from the lives of both SD and ZD for long periods whilst he has been in prison or detention. The Respondent contends that in light of Mr Davis’s extensive criminal history and ongoing substance abuse problems, it is doubtful he would play a positive parenting role in the future of the children.
At the hearing the Tribunal heard from Mr Davis’s adult children including his 25 year old daughter JD, his other daughter TD and his 18 year old son Kaylan-Joe Davis. They all spoke with great affection and love for their father. They spoke of his humility and care for his family.
I accept that it is in the interests of ZD and SD that their father is in Australia and available to be physically present with them. Should Mr Davis return to New Zealand, I would expect it would impact both his grandchildren, AM and KM and his nephew JM.
Having considered the evidence in relation to the impact a decision would have on Mr Davis’s children, this consideration weighs in favour of revoking the mandatory cancellation of Mr Davis’s visa. However, I take into account that Mr Davis has played a limited role in the lives of his two minor children, his grandchildren and step-son on account of his incarceration and in the case of his daughter ZD, his incarceration and poor relationship with her mother. For these reasons, this factor weighs in favour of revoking the cancellation decision, but not as heavily as it might on account of Mr Davis’s long periods of absence.
PRIMARY CONSIDERATION C - EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Subparagraph 13.3(1) of the Direction provides:
The Australian community expects non-citizens to obey Australian 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.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an applicant’s circumstances or evidence about those expectations. Rather, the expectations of the community that decision makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to subparagraph 13.3(1) of the Direction.
Nonetheless, the question of whether it is appropriate to act in accordance with the expectations of the Australian community is left for the decision-maker to determine in the exercise of its discretion.
Having regard to subparagraph 13.3(1) and the principles set out in paragraph 6.3 of the Direction, I am satisfied that the Australian community would have a low tolerance for Mr Davis’s offending. The Australian community expects that a non-citizen “will obey Australian laws” while living in Australia.
I note that Mr Davis has lived in Australia since he was three years of age and the principles state that Australia may afford a higher level of tolerance for criminal conduct in relation to a non-citizen who has lived in the Australian community for most of their life.
Mr Davis has not met the expectations of the Australian community that as a non-citizen he will obey the laws of this country. Whilst some tolerance is appropriate given he has resided in Australia since he was a child, this primary consideration weighs heavily against revoking the cancellation of the visa.
OTHER CONSIDERATIONS
I now turn to other relevant considerations set out in the Direction. Paragraph 14 of the Direction provides that “other considerations” must be considered by the decision-maker where relevant.
Strength, nature and duration of ties
Mr Davis arrived in Australia as a three year old and Australia has been his permanent home since. His close family members including his father, sisters, children and partner all reside in Australia. I accept that Mr Davis’s ties to Australia are very strong.
Mr Davis contends that he is his father’s carer. Mr Davis’s father Ian Davis is 80 years old and legally blind and would like his son to care for him in his old age. Ian Davis is currently cared for by one of his daughters, but his daughter is also suffering from ill health.
Mr Davis has spent periods gainfully employed, notably as a forklift driver and storeman. He claims to have made a contribution to the indigenous community by conducting youth group training and football at the Redfern PCYC. He also claims to have fed homeless people in Parramatta park prior to his incarceration.
Based on their evidence I am satisfied that non-revocation would have a lasting and negative effect on Mr Davis’s four adult children, both his minor children, his father, his sister, partner and other family members.
Having regard for the evidence I find that Mr Davis has close and significant ties to the Australian community and that this consideration weighs in favour of revocation.
Extent of impediments if removed
This part of the Direction requires the Tribunal to consider the extent of impediments Mr Davis may face if he is removed.
Mr Davis is a middle aged man who has lived in Australia for his entire life as an adult and most of his childhood.
I take into account Mr Davis’s father’s evidence that in New Zealand Mr Davis would lack the family support that he has in Australian and which would assist Mr Davis in recovering from his substance abuse issues.
I also accept that Mr Davis does not have relationships with relatives or friends in New Zealand who will be able to assist with his integration. Without the support of his family and friends in Australia, Mr Davis is likely to find it challenging to establish himself and maintain his mental health if he is returned to New Zealand. However, should Mr Davis return to New Zealand, he will have access to a comparable standard of living, support for his mental health and treatment for his substance abuse issues.
Whilst Mr Davis will not face substantial language or cultural barriers in New Zealand and will have the same access to social, medical and economic support as other citizens, in light of the challenges outlined above, this consideration weighs in favour of revoking the cancellation of Mr Davis’s visa.
CONCLUSION
As mentioned earlier in these reasons, section 501CA(4)(b) of the Act stipulates two alternative conditions required to exercise the discretion to revoke the mandatory cancellation of Mr Davis’s visa: either:
(i)Mr Davis must be found to pass the character test; or
(ii)the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Mr Davis’s offending precludes him from passing the character test in section 501(6) of the Act.
I have considered the specific circumstances relating to Mr Davis as part of my consideration whether to revoke the cancellation decision. I am now required to weigh up those considerations.
Mr Davis’s offending is extensive and serious. I accept that his offending has in large part been the consequence of his drug dependency, but it is notable that Mr Davis has been afforded opportunities through the Drug Court program and other interventions to support his rehabilitation. The fact that he previously visa cancelled and the cancellation subsequently revoked yet continued to offend does not reflect well on his application. The primary consideration of the protection of the Australian community weighs heavily against revoking the mandatory cancellation of Mr Davis’s visa.
The best interests of Mr Davis’s minor children weighs in favour of revocation of the mandatory cancellation decision. However, this consideration is afforded less weight in the circumstances as Mr Davis has had very limited contact with both of his minor children for extended periods of their lives.
The expectations of the Australian community weigh against revoking the cancellation decision given the extent of his offending.
That Mr Davis has spent most of his life in Australia and his deep ties to the Australian community, most notably his family members, that the other consideration of the extent, nature and duration of ties and weighs heavily in favour of revoking the cancellation decision. I place additional weight on this consideration given the young age at which Mr Davis first arrived in the country.
The other consideration which is the extent of impediments if removed weighs marginally in favour of revoking the mandatory cancellation decision, owing to the lack of social support that Mr Davis will have in New Zealand and the need to continue his drug rehabilitation.
Having considered all these factors and the circumstances of this application, I conclude that on balance, the weight of the primary considerations of the risk to the Australian community and the expectations of the Australian community outweigh the combined weight of the primary consideration of the best interests of the minor children and the other considerations of the strength, nature and duration of Mr Davis’s ties to the community and the extent of impediments he would face in New Zealand. Consequently, the Tribunal affirms the reviewable decision.
DECISION
For the reasons outlined above, the decision under review, being the decision of a delegate of the Respondent dated 30 December 2020, not to revoke the mandatory cancellation of the Applicant’s Subclass 444 Special Category (Temporary) visa pursuant to subsection 501(3A) of the Migration Act 1958 (Cth), is affirmed.
I certify that the preceding 129 (one hundred and twenty nine) paragraphs are a true copy of the reasons for the decision herein of Mr S Evans, Member.
....................................[sgd]....................................
Associate
Dated: 6 April 2021
Date(s) of hearing: 18 - 19 March 2021 Applicant: In person Solicitors for the Respondent: Christopher Orchard, Sparke Helmore Lawyers
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