DBWG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 4800
•27 November 2020
DBWG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4800 (27 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5394
Re:DBWG
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr S Evans, Member
Date:27 November 2020
Place:Sydney
The decision under review is affirmed.
............................[sgd]........................................
Mr S Evans, Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass character test – whether there is another reason why the decision-maker should exercise its discretion to revoke the original visa cancellation decision – consideration of Direction No. 79 – protection of the Australian community – expectations of the Australian community – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth), s 18B
Migration Act 1958 (Cth), ss 499, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction No. 79 – 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
REASONS FOR DECISION
Mr S Evans, Member
27 November 2020
The Applicant seeks review of a decision of the delegate of the Respondent (“the Minister”) made on 3 September 2020 not to revoke a decision made under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) to cancel the Applicant’s Class CD Subclass 851 Resolution of Status visa (“visa”) (“the reviewable decision”).
BACKGROUND
The Applicant is a 43-year-old citizen of Russia who first arrived in Australia on 12 February 2004 aged 26.
The Applicant initially travelled to Australia on a false Spanish passport. An International Treaties Obligations Assessment (“ITOA”) dated 17 August 2016 records that he applied for a Class XA Subclass 866 Protection Visa on 11 March 2004, which was refused by the Department later that month. The decision to refuse his application was affirmed by the Refugee Review Tribunal (“RRT”) on 7 June 2005. Following judicial appeal, the second RRT remitted the case and the Applicant was issued a Class XA Subclass 785 (Temporary Protection) Visa on 28 August 2006, due to his arrival in Australia on a false passport. He was granted a Class CD Subclass 851 Resolution of Status Visa on 29 November 2009.
On 23 August 2019, the Applicant was sentenced in the District Court of New South Wales (“NSW”) to three years imprisonment with a non-parole period of 1 year and 7 months following a conviction for reckless wounding.
On 29 August 2019, the Applicant’s visa was cancelled under section 501(3A) of the Act. This decision was made on the basis that the Applicant had been sentenced to a term of imprisonment of 12 months or more and therefore had a “substantial criminal record” as defined in subsection 501(7) of the Act.
The Applicant requested revocation of the mandatory cancellation of his visa on 12 September 2019.
On 3 September 2020, the Minister decided not to revoke the mandatory visa cancellation decision. The Minister notified the Applicant of that decision on 4 September 2020.
The Applicant subsequently applied to the Administrative Appeals Tribunal (“the Tribunal”) for review of that decision on 7 September 2020.
Hearing
At the time of the hearing, the Applicant was being held in immigration detention. The Applicant was assisted by a Russian interpreter, had legal representation and provided evidence under affirmation. The matter was heard over two days, on 12 and 13 November 2020, and all participants appeared via videoconference in accordance with the COVID-19 Special Measures Practice Direction issued under section 18B of the Administrative Appeals Tribunal Act 1975 (Cth).
The Applicant’s criminal record
The Applicant has a substantial criminal record having been convicted of 15 offences in Australia between 2008 and 2018, resulting in 4 custodial sentences. The Applicant’s Conviction, Sentences and Appeals report by the NSW Department of Corrective Services (“Corrective Services”) report details the following convictions:
·6 convictions for assault (including one assault occasioning actual bodily harm, two assaults of officers in the execution of duty and 1 assault with an act of indecency) and 1 conviction for reckless wounding;
·1 conviction of resist officer in execution of duty;
·1 conviction of behave in offensive manner in/near public place/school;
·2 convictions of contravene prohibition/restriction in order (domestic)
·1 conviction of possess unregistered firearm in public place, which was later called up for breach of a community service order and the Applicant was resentenced to a term of imprisonment of 6 months, and 1 conviction of have an offensive implement in a public place; and
·2 convictions of destroy or damage property.
A timeline of the Applicant’s convictions is below:
Date
Conviction
Penalty
23 August 2019
Reckless wounding
3 years imprisonment (with a non-parole period of 1 year and 7 months)
27 June 2018
Assault with act of indecency & Assault police officer in execution of duties
3 months imprisonment for each offence (served concurrently)
27 June 2018
Destroy or damage property and have custody of an offensive implement in a public place
Section 10A conviction (with no other penalty) for both offences
7 March 2016
Behave in offensive manner in/near public place/school
Fined $700
17 February 2016
Destroy or damage property
Section 9 bond (6 months)
14 May 2014
Resist officer in execution of duty
6 months imprisonment
14 May 2014
Common assault
9 months imprisonment (with a non-parole period of 6 months)
4 March 2014
Common assault
8 months imprisonment (with a non-parole period of 6 months)
10 September 2013
Possess unregistered firearm in public place
Community service order (“CSO”) for 500 hours (later called up for breach of the CSO with a resentence on 14 May 2014 of 6 months imprisonment)
22 February 2008
Assault officer in execution of duty
Fined $200
22 February 2008
Contravene prohibition/restriction in order
Fined $300
22 February 2008
Contravene prohibition/restriction in order
CSO for 50 hours
22 February 2008
Assault occasioning actual bodily harm
Section 9 bond (12 months)
2015 notice of intention to consider cancellation
The Applicant’s visa was previously considered for cancellation under section 501(2) of the Act in February 2015, following a conviction in March 2014 for common assault, resist officer in the execution of duty and possess unregistered firearm.
ISSUES TO BE DETERMINED
The issue for the Tribunal to consider is whether to revoke the original decision to cancel the Applicant’s visa pursuant to section 501CA 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 section 501(6)(a) and 501(7) of the Act; or
(b)that there is another reason why the original decision should be revoked: subsection 501CA(4)(b).
It is clear that the Applicant does not pass the character test as the Applicant has a “substantial criminal record” as defined by the Act.
The only relevant issue is, therefore, whether there is another reason to revoke the original cancellation decision.
RELEVANT LAW AND MINISTERIAL DIRECTION NO. 79
Section 501CA of the Act applies if the Minister decides under subsection 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).
Subsection 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. A person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more: subsection 501(7)(c).
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.
Subsection 500(1)(ba) of the Act provides the Tribunal 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.
…
3. 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 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 paragraph 13(2) should generally be given greater weight than the other considerations.
The Direction also states that one or more primary consideration 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 as follows:
(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.
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. Sub-paragraph 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 the Applicant’s conduct to date
As outlined above, the Applicant has a substantial criminal record. Having arrived in Australia in February 2004, he was soon after sentenced following a conviction for assault occasioning actual bodily harm relating to an incident which occurred in August 2007.
On 23 August 2019 the Applicant pleaded guilty and was convicted of reckless wounding following an incident which occurred on 4 February 2018. He was sentenced in the District Court of NSW to a prison term of 3 years, with a non-parole period of 1 year and 7 months.
The agreed facts in that matter, as reported in the sentencing remarks, are that the Applicant went to his friend’s residence and they drank a large volume of alcohol together. The Applicant accused his friend of sleeping with his girlfriend and attacked him on the face with his fists and by kicking him. When police arrived, the Applicant was too intoxicated to be interviewed.
The victim was taken to hospital and admitted to intensive care and treated for a lacerated forehead, two lacerations to his right forehead and right eyebrow, six fractured ribs, fracture to the left nasal-bone, severe eye injuries, bruising to his left cheek, abrasion to his right shoulder and a thumb splint.
Regarding the seriousness of the Applicant’s offending, the sentencing remarks of Judge Traill are instructive as to the Applicant’s criminal record of violent offending. Her Honour said in part:
The offender [the Applicant] has a criminal record of violence dating back to before 2007. He was convicted of assault occasioning actual bodily harm and received a s 9 bond.
In 2008 he was convicted of assault a police officer. He received a fine of $200. In 2012 he was convicted for the offence of possess unregistered firearm in a public place for which he received a community service order of 500 hours. He was later called up for the breach of that order and was resentenced to a term of imprisonment for six months.
In 2017 he also has convictions for destroy or damage property, assault police officer in execution of duty. He received a term of imprisonment for three months. He also has a conviction for assault with act of indecency for which he received a sentence of imprisonment for three months.
In 2013 he has a conviction for common assault, for which he received a sentence of imprisonment for eight months. In 2013 he has two convictions for common assault and resist officer in the execution of duty for which he received sentences of six months and nine months imprisonment, respectively.
In a previous incident which occurred on 31 December 2017, the Applicant approached a 56-year-old woman on the street and slapped her on the bottom. The Applicant was convicted of assault with act of indecency for which he received a term of three months imprisonment (which was served concurrently with an assault on an officer in the execution of duty, mentioned below).
In a separate incident which occurred in November 2013 the Applicant walked up behind a woman he did not know and placed his forearms around her shoulders. Following resistance from the victim, the Applicant kicked her to the lower back knocking her to the ground. Whilst she was on the ground the Applicant attempted to kick the victim in the head, but he missed. The Applicant was convicted of common assault for which he received a term of eight months imprisonment.
Crimes committed against government officials in the performance of their duties are viewed as serious. In February 2008, the Applicant was convicted of assaulting an officer in the execution of duty for which he received a fine. In May 2014, he was convicted of resisting an officer in the execution of duty for which he received 6 months imprisonment. In June 2018 the Applicant was convicted of assaulting an officer in the execution of duty for which he received a term of three months imprisonment.
The nature of the Applicant’s offending is very serious, and this is reflected in the sentences imposed on him, which notably have included multiple custodial sentences. In considering the nature and seriousness of the Applicant’s offending I note also that crimes of a violent nature, particularly those against women, are viewed very seriously.
In considering the frequency of the Applicant’s criminal offending it is apparent he has offended regularly and frequently as demonstrated by the convictions detailed earlier in these reasons. It is also of concern that he has re-offended on multiple occasions since being issued the written notice of intention to cancel his visa in February 2015.
Conclusion as to the nature and seriousness of the Applicant’s conduct to date:
The Applicant’s offending has been frequent and has incrementally shown signs of increasing seriousness as reflected in the sentences imposed upon him. Collectively, the nature, frequency and seriousness of the Applicant’s offending reflects poorly on the Applicant and demonstrates a disregard for the law and authority which is a matter of concern.
Accordingly, I am satisfied that the nature and seriousness of the Applicant’s offending weighs heavily against revoking the cancellation of his visa.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing whether the Applicant represents an unacceptable risk to the Australian community, decision makers should have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
In addressing this consideration, the Tribunal is directed to consider the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
If the Applicant were to reoffend it is clear that there is a significant risk of physical harm to members of the Australian community. His crimes frequently involved aggressive behaviour and violence directed at strangers. It is also of serious concern that the victims of his crimes included women, and police officers performing their duty.
The Applicant expressed remorse for his offending and said that he was sorry for what he had done. These sentiments are admirable, but they were mitigated by his testimony regarding the 2019 reckless wounding conviction for which he was sentenced to three years imprisonment. Recounting this most recent offence, the Applicant explained to the Tribunal that he had not wanted to drink alcohol with the victim but had visited him to assist him by buying him food and cigarettes. He said that the victim had insisted that they drink together and was relentless in insisting that he purchase alcohol. The Applicant claimed that eventually he relented and purchased a bottle of whisky for them. He also said that the victim had ‘kissed and hugged him’ whilst he was asleep. This account of the incident is inconsistent with the written material before the Tribunal, which indicates that the Applicant arrived at the victim’s residence with a bottle of vodka in hand. It was also apparent that, in describing the incident in those terms, the Applicant was seeking to relinquish some responsibility for his crimes by shifting some of the blame to the victim for pressuring him to drink and making unwanted sexual advances.
Turning to the likelihood of the Applicant reoffending, the Applicant told the Tribunal that he was aware that his alcohol consumption was problematic and led to his offending. This correlation was observed in the court’s sentencing remarks of 27 June 2018, where Magistrate Richardson said in part:
Whilst I do not know I would suspect that alcohol has been part of his offending behaviour for some time and the assaults particularly, the offence behaviour, those kind of offences, it may well be the case that they are motivated by the consumption by him of excessive amounts of alcohol.
…
… I do not think that that said that given his circumstances he is a person who needs to be dealt with harshly because the concept of specific deterrence to [the Applicant] should he continue to be an excessive drinker has no apposite, it not efficacious at all. It is likely to fall on deaf ears, so probably from a rehabilitation point of view the only hope he has got of living a life outside of gaol is to come to terms with his propensity to drink alcohol and if he does not do that like so many people who come before this Court he knows where he is going to spend the rest of his life.
There is you know it is not probably the first time this has been said to him and he has probably had many opportunities.
Similarly, in sentencing the Applicant for common assault on 14 May 2014, Magistrate Farnan observed:
Clearly you have got an alcohol problem. I hope that when you get out of gaol and while you are on parole you will be able to do something about your alcohol problem. If you do not do something about it with your record you will be going back to gaol if you commit further offences. So it is in your interests to use your time in gaol thinking about how you are going to cope without drinking too much when you get out.
Based on the Applicant’s criminal history, his own testimony, and the observations reproduced above, the Tribunal is satisfied that there is a strong causal relationship between the Applicant’s offending and consumption of alcohol.
The evidence before the Tribunal indicates that the advice to the Applicant by the courts, in part reproduced above, was supplemented by other interventions.
Entries in a Corrective Services Offender Case Plan report dated 10 November 2014 note that ‘[the Applicant’s] aggressive behaviour appears to be related to his use of alc[ohol]’ and that the Applicant ‘has not shown any insight’ into his alcohol and offending issues. That entry continues:
His criminal history is related to aggressive behaviour whilst under the influence of alc. He has a hx. of binge drinking, however, when that has been challenged, [the Applicant] has claimed that his is now abstinent and intends to be until the end of his parole order and beyond.
A pre-sentence report dated 25 February 2014, prepared by Corrective Services for a March 2014 court appearance, notes:
[The Applicant] stated that he had attended a Christmas party leading up to the current offence. By his own recollection he consumed three schooner size glasses of vodka, but beyond that cannot recall his behaviour, until he woke up in hospital. He continues to assert however that he does not have a problem with alcohol.
Another pre-sentence report dated 25 June 2018, prepared for a 27 June 2018 court appearance, sets out clearly the extent to which the Applicant’s offending is related to his alcohol consumption. The author writes in part:
[The Applicant] stated that he was intoxicated by alcohol when he committed the index offence…
…
[The Applicant] described a long standing history of consuming alcohol that commenced soon after the death of his parents. His alcohol consumption soon became problematic and he developed a dependency on the substance. [The Applicant] claimed that his drinking pattern over the past several years has been that of continuously consuming alcohol over a period of one day and sometimes two, the sleep it off and start again. [The Applicant] added that when he would wake he often had no memory of what had transpired. [The Applicant] further added that once he is intoxicated with alcohol he is prone to become angry, aggressive and dis-inhibited; he stated “when I drink I think I’m superman”. [The Applicant] stated that in the past year he has on several occasion ended up in hospital as a result of a drinking episode, hospitalised for a few days then discharged. Perusal of Justice Health medical records have noted a history of alcohol induced auditory and visual hallucinations and suicidality.
[The Applicant] acknowledged his need to address his problematic alcohol consumption. [The Applicant] attended a weekly addiction recovery support group facilited at an inner city hospital from August 2017 to October 2017. He admitted that on occasions at the conclusion of the group he would purchase alcohol. [The Applicant] communicated that he is considering admission into a residential drug rehabilitation facility.
In a written submission on behalf of the Applicant it was stated that he is positive that he is fully rehabilitated from alcohol dependency and now has ‘full control’ of his actions. The Applicant told the Tribunal it has been almost three years since he last took a drink and that during this time his character had changed. He observed that his progress was slow, but he was now more balanced and quieter. By way of example, he recalled that when he was recently assaulted whilst in immigration detention, he did not respond by fighting back at his assailants.
The Applicant told the Tribunal that in the Remand Addictions group he attended whilst in gaol he learned about patience, respect for others and the need to be fair and understanding of other people. Asked specifically what he had learnt, he gave the example of using deep breathing exercises and involving himself in other activities such as chess when experiencing stress.
At hearing the Applicant stressed that he began his recovery on his own initiative whilst in the community and prior to his most recent offending. He argued that he would have stopped drinking alcohol even if he had not been sent to prison. He noted also that during his recent time in gaol and then immigration detention he has not used alcohol. He said that this has given him the chance to reflect. He believes that should he drink again it will destroy his entire life and that he should have stopped drinking alcohol earlier.
The Applicant is now confident that he no longer craves alcohol and that he will not drink again if released back into the community. He pointed out that he was released on parole and not required to do any further alcohol recovery. He claimed that if he still had an issue with alcohol, he would have been ordered to do more treatment for alcoholism prior to his release.
Asked what had prompted him to address his drinking, the Applicant told the Tribunal that a colleague, also Russian and a heavy drinker, had died in miserable circumstances following a fall whilst drunk at home in 2017. He explained that it frightened him at a time when he was finding it increasingly difficult to stay on top of his obligations at work. He needed to find ‘a way out’ but up until that time had been too ashamed to ask for help.
After seeing his doctor, the Applicant says that he began to treat his alcoholism. The evidence before the Tribunal relating to treatment for alcoholism includes a record of attendance from SMART Recovery confirming that the Applicant attended four sessions in August 2017, which I note the Applicant suggested does not reflect the full extent of his work with SMART Recovery. Also before the Tribunal are letters confirming that the Applicant saw a clinical psychologist on seven occasions between 21 August and 18 October 2017.
The Applicant also completed Remand Addictions training provided by Corrective Services NSW and has provided evidence which demonstrates attendance between May and July 2019 whilst in gaol.
In a written submission it is stated that he was ‘able to beat his alcohol dependency with the assistance of his friends in Australia’. Notwithstanding his confidence that he will not drink again, the Applicant submits that he ‘will definitely be affected by this terrible habit should he be returned to Russia where he quickly [will] become homeless and jobless’. The Applicant’s account of his sobriety was also challenged by other evidence before the Tribunal.
At the hearing, the Applicant maintained that he ceased drinking sometime in 2017, though he could not be certain of the date. Following this assertion, it was pointed out that his most recent offending occurred while he was affected by alcohol on 4 February 2018. He conceded that on that particular day he had been drinking but maintained he had not been drinking in January 2018. Asked why he decided to drink on 4 February 2018 he said that his friend had called and asked him to lend him some money. He said that he went to his friend’s residence and saw that his friend was drinking, and he said that he would not give him money for alcohol but that he would take him to buy food and cigarettes. Contrary to this account, the agreed facts record that the Applicant arrived at his friend’s residence with a bottle of vodka.
The Applicant was taken to the New South Wales COPS report which records police interactions with the Applicant, one of which states that he appeared intoxicated on 25 January 2018 The Applicant recalled the incident in question and explained that he may have had some ‘shots’ and was a little bit drunk. He later altered his evidence to say that he had been drinking the night before the incident and the police could still smell alcohol on his breath.
He was then taken to details of further incidents recorded in the COPS report, one on 3 January 2018 and another on 11 January 2018, both of which record that the Applicant was intoxicated. The Applicant did not challenge the veracity of the reports but did say that he regrets his behaviour. Asked once again if he had been abstaining from alcohol during January 2018, he observed that it was shortly after he began treating his alcoholism and he was still struggling to manage his drinking. He said that it was in gaol following the completion of the Remand Addiction program that he was able to overcome his alcoholism.
The Tribunal notes that the Corrective Services report states that the Applicant attended four sessions of SMART Recovery. Regarding the Remand Addiction group, it is recorded on 21 August 2019 in the NSW Department of Corrective Services Report:
[The Applicant] consistently attends and just sits in group. He asks for attendance certificates but actively refuses to participate in group activities or discussions when asked, and presents as disinterested in the group, looking away or up and unresponsive when people are speaking. Was told today that he needs to participate in the activity, or he can leave. He left.
The Applicant maintains that he would not have completed the course if it was not of benefit. It was submitted that leaving one session as reported does not undermine the totality of his recovery and his positive and self-motivated attitude towards it.
The Respondent argues that the Applicant’s sobriety has not been tested in the community as he has been in gaol or detention since he has been sober.
It was submitted on behalf of the Applicant that his memory is ‘affected significantly as a result of alcoholism’. The Applicant also submits that he has had ‘tragic events’ happen in his life which have caused him to use alcohol excessively to cope with post-traumatic stress disorder (“PTSD”) and major depressive disorder.
By his own account, the Applicant was drinking ‘four to five’ bottles of vodka each week. There is no medical evidence before the Tribunal which provides a useful insight into the extent that alcohol may have had an impact on the Applicant’s memory or cognitive abilities. That said the Tribunal has made some allowance for the impact that heavy alcohol consumption may be reasonably expected to have on his capacity to recall with accuracy events and the timing and sequence at which they occurred.
Whilst acknowledging his positive intention not to drink, bolstered by a considerable period of sobriety in prison and detention, the Tribunal has serious reservations about the Applicant’s ability to maintain his abstinence from alcohol should he be released back into the community. I base this finding on:
·the nature and frequency of his past criminal conduct;
·the limited engagement he has had with recovery programs relative to the seriousness of his addiction;
·his sobriety has not been tested in the community;
·the fact that he drank and offended after his participation in SMART Recovery and treatment by a psychologist; and
·that he has continued to drink and offend in spite of previously acknowledging the link between his drinking and offending and being warned by the courts about his drinking as early as 2014.
Conclusion as to the protection of the Australian community:
The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Given the serious nature of the harm that flows from offences of the nature committed by the Applicant, I consider that there is a moderate risk of further harm of a similar nature and that risk is unacceptable.
Overall, the Tribunal cannot accept the Applicant’s contentions that his character has been reformed following the limited alcohol treatment and counselling which has been described. For the reasons set out above, on any objective consideration it must be concluded that there is a high probability that the Applicant will reoffend, which in the context of this consideration of the Direction, must weigh heavily against him.
PRIMARY CONSIDERATION 2: THE BEST INTERESTS OF AUSTRALIAN CITIZEN CHILDREN
The Applicant does not have any minor children and did not submit that any minor children would be affected by the reviewable decision. This consideration is therefore not relevant.
PRIMARY CONSIDERATION 3: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3 of the Direction provides:
(1) 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. 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 sub-paragraph 13.3(1) of the Direction.
Having regard to sub-paragraph 13.3(1) and the principles set out in paragraph 6.3 of the Direction, I am satisfied that the Australian community expects that a non-citizen “will obey Australian laws” while living in Australia and will generally “forfeit the privilege of staying” in Australia if they frequently commit serious crimes of a violent nature.
Considering the extent, frequency and nature of the Applicant’s offending, set out in this decision, in the Tribunal’s opinion this consideration weighs heavily against revoking the cancellation of his visa.
OTHER RELEVANT CONSIDERATIONS SET OUT IN THE DIRECTION
I now turn to considering the other relevant considerations set out in the Direction.
Other consideration - international non-refoulement obligations
Paragraph 14.1 of the Direction provides a list of factors to be considered in determining international non-refoulement obligations.
As mentioned, the Applicant initially travelled to Australia on a false Spanish passport. An International Treaties Obligations Assessment (“ITOA”) dated 17 August 2016 records that he applied for a Class XA Subclass 866 Protection Visa on 11 March 2004 which was refused by the Department later that month. The decision was affirmed by the Refugee Review Tribunal (“RRT”) on 7 June 2005. Following a judicial appeal, the second RRT remitted the case and the Applicant was granted a Class XA Subclass 785 (Temporary Protection) Visa on 28 August 2006, due to his arrival in Australia on a false passport. He was granted a Class CD Subclass 851 Resolution of Status Visa on 29 November 2009.
In a letter requesting the revocation of the cancellation decision, the Applicant submitted that he will ‘face persecution in Russia should he return there in the same or higher degree as he was persecuted before he left Russia’.
In an undated statement submitted as part of his 2004 application for protection, the Applicant detailed the abuse and bullying he received whilst at school in Russia due to his Jewish background. He writes that during a physical education lesson a fellow student pushed him off a ladder calling him a ‘dirty Jew’ and that he broke his hand and was taken to hospital. Local Cossacks, he writes, were the main threat to the Krasnodar Jews, and they told his parents and he that they would not tolerate Jews on ‘the Russian Land’. He recounts being beaten by skinheads and forced to dig a grave after he moved to the city of Riazan (Ryazan). In 2003 he and his sister were taken to the outskirts of the city by ‘young Cossacks where she was raped and I was beaten’. Following this incident his parents decided to sell their possessions and help the Applicant leave Russia.
The Respondent contends that the basis for which the Applicant applied for a protection visa in Australia, his Jewish heritage, was found by the ITOA in 2016 to no longer invoke international non-refoulement obligations due to the change in circumstances in Russia since the Applicant’s departure from Russia. The Tribunal also has before it a United States Department of State Country Report on Human Rights Practices for 2019 for Russia which confirms that antisemitism is not currently widespread.
During the hearing, the Applicant’s representative acknowledged that the danger posed by antisemitism in Russia had ameliorated in recent years but submitted that it remained a threat and the Applicant may face persecution if returned. In addressing the issue of non-refoulement, the Applicant also raised the issue of obtaining an internal identification document known as “propiska”, which he contends would not be available to him. The Tribunal notes that this issue was considered in the 2016 ITOA report, which is before the Tribunal, and in that report it was found that Australia does not have a non-refoulement obligation to the Applicant.
The specifics of the Applicant’s experiences in Russia have changed over time. Notably a report was compiled by forensic psychologist Dr Adam Martin in which Dr Martin indicated that the Applicant moved to Australia following a tragic event in which his parents and sister were killed in a car bomb and their deaths led him to start drinking and to suffer PTSD. The report was before the courts when he was sentenced in August 2019 and June 2018.
At the hearing the Applicant confirmed that when he left Russia both his parents were in fact still alive. He said that his father told him of his mother’s passing and that he never received confirmation that his father had died. He concluded that his father had passed when he stopped returning his calls and messages and his phone was disconnected. A pre-sentence report dated 27 June 2018 prepared by Corrective Services NSW reports that the Applicant arrived six months after the death of his parents and sister in a fatal car accident and concludes that ‘the tragic nature, the suddenness of their death and being left without any family still impacts on [the Applicant]’.
At the hearing the Applicant explained the discrepancy was the result of his use of a poor analogy and the absence of an interpreter during his session with Dr Martin. It was previously submitted on his behalf that any discrepancies in his recollection of events could be attributed to his excessive use of alcohol, PTSD and major depressive disorder. I note that Dr Martin’s report was referenced by two sentencing judges and the inaccuracies were not acknowledged by the Applicant until after they were identified by the delegate in the letter refusing to revoke the mandatory cancellation of his visa.
In light of the discrepancies in the Applicant’s evidence and the absence of any new evidence before the Tribunal relating to non-refoulement obligations, the Tribunal accepts the findings of the ITOA which determined that there are no non-refoulement obligations owing to the Applicant. Consequently, this factor is afforded neutral weight.
Other consideration - strength, nature and duration of ties to Australia
The Applicant arrived in Australia as an adult and has resided in Australia for over sixteen years. He submits that he has ‘developed strong ties within Australian community as well as got stable employment working in a capacity of painter for many years’.
A letter dated 11 September 2019 from a painting company confirms that the Applicant worked as a contractor ‘on and off’ between October 2012 and January 2018.
There are no letters of support from any friends or associates of the Applicant before the Tribunal, nor were any witnesses called. The Applicant submitted that he was not aware it was open for him to do so.
The Applicant has no family here but does have a long-term partner, Ms M. She was not called as a witness and it was conceded by the Applicant’s representative that this would appear to be because the Applicant has not been truthful with Ms M. Notes of an interview with Ms M and Corrective Services is before the Tribunal. Dated June 2018, the notes record Ms M ‘confirmed that [the Applicant] had told her that he lost [his] family in a car accident… the impression she gave was that it occurred when he was a boy because when she asked who looked after him she stated that he said that some lady adopted him’. It is also noted Ms M reported the Applicant has no family in Australia and limited friends.
Nonetheless, the Applicant claims Ms M has regularly visited him in gaol and then detention when she could. She has, he said, been consistently supportive of him. They have been together for a decade and have lived together for periods. It is reasonable to expect that the Applicant returning to Russia would have some impact on Ms M, though exactly what and to what extent is difficult to quantify in light of the scarce evidence which has been provided.
The Direction states that less weight should be given to this consideration where the non-citizen began offending soon after arriving in Australia. In this regard the Applicant arrived in 2004 and began offending soon after in 2007.
His contribution to the community has been limited by his four terms of imprisonment over the time he has been in Australia, though the evidence supports that he has worked as a painter when not incarcerated.
In light of the evidence I find that this consideration weighs in favour of revocation, but I place less weight on it on account of his offending soon after his arrival in Australia.
Other consideration - extent of impediments if removed
This part of the Direction requires the Tribunal to consider the extent of impediments the Applicant may face if he is repatriated to Russia, and maintaining basic living standards, in the context of what is generally available to other citizens of that country. Factors that should be taken into account are a non-citizen’s age or health, any substantial language or cultural barriers and any social or medical support available to them in that country.
The Applicant submits that he ‘lost all ties with Russia. He has no family in Russia because all his relatives passed away long ago. He had not maintained any contact with anybody in Russia for 15 years. He will not have any social and economic support in Russia due to current economical situation there’.
He contends that he has no relatives in Russia, and he does not have any contact with any friends in Russia and all his friends are in Australia. He also argues that he will not be able to find work in Russia because his trade is as a house painter, and in Russia house painting is mainly done by women. He also submits that he will not be able to get residency registration and without it he cannot get a job. He will not be eligible for registration anywhere and he has no friends who could act as a guarantor.
Regarding his education he said he completed nine years of school and then completed trade college. He used to work repairing televisions and radios and communication hardware in a repair shop. He said he liked his job and he had that job for two or three years.
Whilst the Applicant told the Tribunal that he is in good health, and not reliant on medication of any type, he later confirmed that he was diabetic. I note also that he has lost 30 percent of his vision in one eye following an assault in which he was the victim which occurred whilst in detention. He said he was quite healthy and not taking any tablets.
The Applicant denied that he had any mental health issues. I note regarding his mental health the observations contained in the pre-sentence report prepared by NSW Justice on 27 June 2018. The report acknowledges the impact of his alcohol consumption on his mental health and notes that he was for a time taking Zyprexa, which is used in the treatment of depression and mood swings. I note also that the Applicant has been admitted to hospital following psychotic episodes which are reported to be the result of excessive alcohol consumption.
As mentioned, the Applicant has expressed concerns that he would not be able to obtain residency registration which is known as propiska. He told the Tribunal that it would be impossible for him to obtain propiska without friends or relatives and in Russia. He explained that internal registration is compulsory and necessary to become registered for a job.
The United States Department of State Country Report confirms that ‘authorities often refused to provide government services to individuals without internal passports or proper registration, and many regional governments continued to restrict this right through residential registration rules’.
As to how this might specifically impact the Applicant was in part addressed in the ITOA which was completed in 2016 following previous consideration for cancellation by the Respondent. The ITOA concluded that the Applicant can reasonably, in the sense of practicability, relocate to Moscow if he requires, upon return to Russia The Report notes that ‘registration of residence in Moscow is purely administrative for Russian citizens, regardless of their ethnic background’.
The Tribunal accepts that the Applicant may face some administrative hurdles in re-establishing himself in Russia and that he has lost contact with friends in Russia since he arrived in Australia. However, the Tribunal does not accept that it would prevent him from working as contended by the Applicant. There is no evidence before the Tribunal which supports the Applicant’s claims that he would not be able to register without a friend or relative where he wishes to register and I note the Applicant has not sought to verify his concerns with the Russia consulate or other official means.
I consider also that the Applicant has proven resourceful in the past. He was able to make his way to Australia on his own by securing a false passport and passing through Italy and then flying to Australia. He told the Tribunal that when he arrived in Australia, he knew no one in Australia and very little about the country. Nonetheless he was quickly able to connect with the local Jewish and Russian communities and establish himself relatively quickly from a position where he knew no one. Whilst there may be some inconvenience for the Applicant during the period of adjustment, there is nothing to suggest he could not be as resourceful again in Russia. He speaks the language and is familiar with the country, having resided there until 26 years of age and is still a relatively young man at 43 years of age.
This consideration weighs marginally in favour of revocation.
CONCLUSION
In terms of the Direction, two of the primary considerations weigh against revoking the mandatory cancellation of the Applicant’s visa, and one weighs neutrally.
Regarding the other considerations, I find that the Applicant’s ties to Australia and the impediments to his removal from Australia weigh marginally in his favour. I am satisfied also that international non-refoulment obligations have limited relevance to this decision for the reasons I have outlined above.
Noting that the Tribunal is not engaged in a mathematical exercise or confined to consider only those matters referred to in the Direction when considering if there is another reason why the mandatory cancellation should be revoked, on balance, I am satisfied that the preferable decision is not to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
For the reasons stated above, the decision under review is affirmed.
I certify that the preceding 112 (one hundred and twelve) paragraphs are a true copy of the reasons for the decision herein of
.................................[sgd]...................................
Associate
Dated: 27 November 2020
Date(s) of hearing: 12 & 13 November 2020 Advocate for the Applicant: Mr Y Kyselov Solicitors for the Respondent: Ms B Griffin, Australian Government Solicitor
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