Dharma and Minister for Home Affairs (Migration)
[2019] AATA 4065
•3 October 2019
Dharma and Minister for Home Affairs (Migration) [2019] AATA 4065 (3 October 2019)
Division:GENERAL DIVISION
File Number(s): 2018/2730
Re:Sena Aji Dharma
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:3 October 2019
Place:Sydney
The Tribunal affirms the decision under review.
.....................[sgd]...................................................
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION – mandatory visa cancellation – citizen of Indonesia – Transitional (Permanent) (Class BF) visa – criminal offending since 1994 – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Reform (Transitional Provisions) Regulations 1994 (Cth)
Migration Regulations 1994 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757
Dharma v Minister for Home Affairs [2019] FCA 431
DKXY v Minister for Home Affairs [2019] FCA 495
Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333
FYBR v Minister for Home Affairs [2019] FCA 500
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
LCNB and Minister for Immigration and Border Protection [2015] AATA 463
Minister for Immigration and Citizenship v Obele (2010) FCA 1445
Minister for Immigration and Ethnic Affairs v Guo and Another (1997) 191 CLR 559
Minister for Immigration, Local Government and Ethnic Affairs v Batey (1993) 112 ALR 198
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Umi v Minister for Home Affairs [2019] AATA 2316
Vargas v Minister for Home Affaira (Migration) [2019] AATA 3409
ZNBG and Minister for Home Affairs [2019] AATA 1872
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Mahendradhata, Yodi (et. al.), The Republic of Indonesia Health System Review (2017) Asia Pacific Observatory on Health Systems and Policies
< for Economic Co-operation and Development (OECD), Social Protection System Review of Indonesia (2019) OECD Development Centre
< Lauren, Indonesia’s universal health scheme: one year on, what’s the verdict? (15 May 2015) The Guardian
<
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
3 October 2019
The Applicant, Mr Sena Aji Dharma, seeks review of a decision by a delegate of the Minister for Home Affairs, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), refusing to revoke the mandatory cancellation of his Class BF transitional (permanent) visa (“the visa”).
The hearing was held in Sydney on 25 and 26 July 2019. The Applicant was self-represented. The Minister was represented by Mr Hutton from the Australian Government Solicitor.
For the reasons that follow the Tribunal affirms the decision under review.
FACTUAL BACKGROUND
The factual background to this application follows:
(a)Mr Dharma is a 43-year old citizen of Indonesia.[1] He first came to Australia in 1991 at the age of 14 to live with his father, step-mother and younger half-brother.[2] He returned to Indonesia briefly in February 1994[3] before resuming his residence in Australia in July 1994,[4] and has lived here ever since;
[1] Exhibit R1, 1.
[2] Ibid, 77; 114.
[3] Ibid, 114.
[4] Ibid.
(b)After September 1994, as a result of the Migration Reform (Transitional Provisions) Regulations 1994, the permanent entry permit Mr Dharma was granted in 1992 continued in effect as a Class BF transitional (permanent) visa;
(c)Mr Dharma is the biological father of three children in Australia, who are currently 18, 16 and 7 years old respectively;[5]
[5] Ibid, 77.
(d)Mr Dharma’s National Police Certificate discloses an extensive record of convictions commencing in 1994 when he was 17 years of age. He was 40 when convicted of his most recent offences in 2017;[6]
[6] Ibid, 33-40.
(e)Mr Dharma’s criminal history has brought him to the attention of immigration authorities on previous occasions, resulting in two formal warnings:
(i)In April 2009, while imprisoned, Mr Dharma was issued with a Notice of Intention to Consider Cancellation (“NOICC”) of his visa.[7] After considering Mr Dharma’s response,[8] a delegate of the Minister advised Mr Dharma on 29 May 2009 that his visa would not be cancelled. He was instead issued with a formal warning,[9] which Mr Dharma acknowledged receipt of on 5 June 2009;[10] and
(ii)In November 2010, while again imprisoned, Mr Dharma received a second NOICC.[11] After considering Mr Dharma’s response, a delegate of the Minister again advised Mr Dharma his visa would not be cancelled, but he would be issued with a formal warning.[12]
(f)On 25 August 2017, as a consequence of his conviction and subsequent sentence in the Liverpool Local Court on 3 April 2017, Mr Dharma’s visa was cancelled under s 501(3A) of the Act.[13] He was at that time serving a fulltime sentence of imprisonment;
(g)On 18 September 2017 Mr Dharma made representations to have the visa cancellation revoked under s 501CA(4) of the Act, within the period and in the manner specified under the Act;[14]
(h)On 7 May 2018, after considering Mr Dharma’s revocation request, a delegate of the Minister decided not to revoke the cancellation;[15]
(i)By application dated 16 May 2018, Mr Dharma applied to this Tribunal for a review of the delegate’s decision;[16]
(j)On 20 July 2018 the Tribunal, differently constituted, affirmed the cancellation decision;[17] and
(k)Mr Dharma sought judicial review in the Federal Court of Australia, which set aside the Tribunal’s decision on 1 April 2019,[18] giving rise to these proceedings.
[7] Ibid, 94-99.
[8] Ibid, 100-101.
[9] Ibid, 102-103.
[10] Ibid, 104.
[11] Ibid, 82-87.
[12] Ibid, 91-92.
[13] Ibid, 115-120.
[14] Ibid, 64-79.
[15] Ibid, 17-26.
[16] Ibid, 1-9.
[17] Dharma and Minister for Home Affairs (Migration) [2018] AATA 2757.
[18] Dharma v Minister for Home Affairs [2019] FCA 431.
STATUTORY FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act, are the source of the Tribunal’s jurisdiction to review decisions of a delegate of the Minister under s 501CA(4) not to revoke a visa cancellation.
The object of the statute of which s 501(3A) is a part, is to regulate, in the national interest, the presence in Australia of non-citizens, and the removal or deportation from Australia of non-citizens whose continuing presence is not permitted by the Act (ss 4(1) and 4(4)). As the High Court stated in Falzon v Minister for Immigration and Border Protection (2018) 262 CLR 333 at [45]:
Section 501(3A) constitutes a legislative judgment that a class of persons identified by two features – offending and imprisonment – are not to remain in Australia. This is consistent with the object of the Migration Act, namely, to regulate the coming into and presence in Australia of non-citizens.
(Footnote omitted).
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test by virtue of having a substantial criminal record and the person is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to refuse or cancel a visa (or revoke a mandatory cancellation of a visa). Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
a)the person has a substantial criminal record (as defined by subsection (7)); or
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision if the person whose visa has been cancelled makes representations in accordance with the invitation and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that a body having functions or powers under the Act, such as the Tribunal, must comply with the Direction.[19]
[19] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, at [9] per Collier, Flick and Perry JJ. See also: Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591, per Katz J.
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Paragraph 6.1 of the Direction sets out a number of objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, paragraph 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(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 principles referred to under the General Guidance are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(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 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.
Paragraph 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’ The following primary considerations at paragraph 13(2) of the Direction must be applied in determining whether to revoke a mandatory visa cancellation:
(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.
Paragraph 14(1) of the Direction requires that other considerations must be taken into account in deciding whether to revoke the mandatory cancellation, which include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Paragraph 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Paragraph 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Paragraph 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another (2016) 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR DHARMA PASS THE CHARACTER TEST?
Mr Dharma has been sentenced to several terms of imprisonment of 12 months or more, most recently on 3 April 2017. Because of the combined effects of ss 501(6)(a), and 501(7)(c) of the Act, the Tribunal finds Mr Dharma has a substantial criminal record and does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation decision.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the original visa cancellation decision should be revoked. This involves an evaluative process consistent with the reasoning of North ACJ in Gaspar v Minister for Immigration and Border Protection,[20] which the Tribunal adopts:
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…”
[20] [2016] FCA 1166 at [38].
EVIDENCE BEFORE THE TRIBUNAL
Mr Dharma gave oral evidence at the hearing. He called his former partner and his two eldest children (“Son A” and “Son B”) to give evidence. Son A is now an adult and Son B is currently 16 years of age.
Documents taken into evidence at the hearing were:
(a)“G-documents” numbering 154 pages;[21]
(b)A 150-page bundle of documents tendered by the Respondent;[22]
(c)A seven-page handwritten statement from Mr Dharma dated 20 June 2018, which he adopted as his statement for this proceeding;[23]
(d)A bundle of four medical records filed by Mr Dharma on 19 June 2018;[24]
(e)A media article dated 15 May 2015 relating to Indonesia’s universal health scheme;[25]
(f)A 2017 journal article by the Asia Pacific Observatory on Health Systems and Policies titled ‘The Republic of Indonesia Health System Review;’[26] and
(g)A 2019 review by the Organisation for Economic Co-operation and Development titled ‘Social Protection System Review of Indonesia.’[27]
[21] Exhibit R1.
[22] Exhibit R2.
[23] Exhibit A1.
[24] Exhibit A2.
[25] Exhibit T1, < Exhibit T2, Mahendradhata, Yodi (et. al.). The Republic of Indonesia Health System Review [online], Health Systems in Transition, Vol. 7 No. 1, 2017. Availability: < T3,
< Police Certificate and Sentencing Remarks
Mr Dharma does not dispute essential elements of the information in his National Police Certificate (“NPC”).[28] Given that the NPC was dated 4 December 2017, however, and to avoid any doubt, the Tribunal asked the Respondent to provide a more recent NPC. On 12 September 2019, the Respondent lodged an updated Criminal History for Mr Dharma dated 5 September 2019, which the Tribunal has taken into account.
[28] Exhibit R1, 33-40.
Expert Medical Evidence
The Tribunal notes four medical records submitted by Mr Dharma on 19 June 2018, relating to wrist pain and a two-page medical chart from the International health and Medical Services (IHMS) dated May 2018.[29] Key aspects of this material follows:
[29] Exhibit A2.
Wrist pain
The medical records tendered by Mr Dharma encompass the period 17 November 2017 to 22 March 2018. They relate to X-ray and MRI results of his right wrist and subsequent examinations by two orthopaedic surgeons:
(a)A medical report by orthopaedic surgeon Dr Jay Dave, who examined Mr Dharma’s right wrist on 25 January 2018, recommended a wrist brace and physio ‘in the first instance’;
(b)A medical report by orthopaedic surgeon Dr Agus Kadir, who examined Mr Dharma’s left wrist on 22 March 2018, recommended a cortisone injection and if necessary in the future, an ‘ulnar shortening osteotomy.’
Mr Dharma’s oral evidence at the hearing was that his wrists were not currently an issue for him. In response to questions about whether his wrists might affect his capacity for work, he responded: ‘so far so good’ and they would not prevent him from working. Mr Dharma’s wrist issues are therefore not considered further.
IHMS Medication Chart
A two-page medical chart dated April and May 2018 refers to Mr Dharma’s regular medications at that time as:
(a)Diclofenac sodium tablets, which Mr Dharma received via daily doses of 25mg to 50mg. The Tribunal notes from publicly-available information that this drug is a nonsteroidal anti-inflammatory.[30] Mr Dharma’s oral evidence was that he no longer took this medication;
(b)Methadone Hydrochloride Oral Liquid 5mg / ml, which Mr Dharma received via a daily dose of 35mg / 7ml. Mr Dharma’s oral evidence was that he continued to take a daily dose of Methadone at about the same dosage to deal with his heroin addiction;
(c)Ranitidine tablets 150mg, which Mr Dharma received via twice daily doses of 150mg. The Tribunal notes from publicly-available information that this drug is used amongst other things for heartburn relief, but also to treat ulcers of the stomach and intestines, including preventing them from reoccurring after they have healed.[31] Mr Dharma submits he has previously been diagnosed with a stomach ulcer and takes Ranitidine when required, but is not currently taking this medication; and
(d)Sertraline tablets 50mg, also known as Zoloft, were given to Mr Dharma daily. The Tribunal notes from publicly-available information that this drug is used to treat a number of conditions, including depression.[32] Mr Dharma’s oral evidence is that he no longer takes this medication.
[30] See, for example, < See, for example,
< See, for example, < and Pre-Sentence Reports
Mr Dharma submitted in his most recent Personal Circumstances Form that he is currently being treated by a psychologist.[33] The section of the form in which he makes that claim invites applicants to provide a report from treating physicians. Following a Telephone Directions Hearing conducted by the Tribunal on 14 May 2019, Mr Dharma was afforded opportunities to lodge further evidence on which he intended to rely by 17 June 2019 and any final materials by 22 July 2019. Mr Dharma did not lodge any medical evidence prior to the hearing. The Tribunal searched for the psychologist he refers to on the Australian Health Practitioner Regulation Agency website,[34] but no results were returned. In light of Mr Dharma’s evidence at the hearing that he could access further records about his diagnosed medical and psychological conditions, the Tribunal gave leave for any such records to be lodged with the Tribunal and provided to the Respondent by 4pm on 15 August 2019. At Mr Dharma’s request, an extension was provided until no later than 4pm on 29 August 2019. On 3 September 2019, Mr Dharma advised the Tribunal that he had been unsuccessful in obtaining further medical evidence, stating that he ‘was unsuccessful because I cannot find someone who could go there to act on my behalf during weekdays’.
[33] Exhibit R1, 75.
[34] Australian Health Practitioner Regulation Agency, <>
The Tribunal notes a number of references to a pre-sentence report and psychologist’s report in the 2008 sentencing remarks of the District Court of New South Wales:[35]
[35] Exhibit R1, 54-60.
‘The subjective circumstances of the offender, all of which have been taken into account are contained in a pre-sentence report and in a psychological report.
…
…
…the offender does not believe that he would benefit from a residential rehabilitation programme, but acknowledges that he would require support, focussing particularly on drug relapse prevention.
…the offender does not believe that he experiences unresolved anger management issues, however he did acknowledge that there were situations when he felt stressed and frustrated and further that his illicit drug use over many years may have suppressed these feelings…
…
Significantly in the psychological report the offender told the author of that report that when the present offence was committed he was not under the influence of drugs at the time and was not significantly intoxicated. Indeed in all the circumstances I am satisfied that that in fact is the true position, namely that when the present offence was committed he was not acting under the influence of either drugs or alcohol.
According to the…psychological report, the offender stated that he knew that his co-offender was going to commit the offence and he should not have become involved…the offender presents as a person of average intellectual ability. According to that report the history the offender provided together with the results of psychometric tests administered indicate that he developed a conduct disorder during his teenage years. However the report notes that present test results do not allow him to be diagnosed with having a personality disorder, although he was found to have some instability in his personality adjustment, which included inadequate impulse control and above average tolerance for legal violations and a substance abuse disorder.
At the time of the assessment…the offender was not experiencing any significant symptoms of any emotional disorder and did not have any thought processes or thought content disorder nor did he have any perceptual disturbances.
According to the psychological report the offender has a low to moderate risk of recidivism…
…
In the psychological report, the author of the report states that the offender’s rehabilitation will be assisted if he is able to maintain his current attitudes towards leading a responsible family life and remain free of substance abuse. The report also notes that the offender needs to be able to develop vocational skills and have considerable vocational preparation to increase his chances of leading a stable and productive life once he is released from gaol. Following his release from gaol…the offender would also benefit from counselling to assist in relation to substance abuse relapse prevention.
…
If the offender is able to abstain from using illicit substances and alcohol and maintains present motivation, I am satisfied that his prospects of rehabilitation are reasonably good. However, I am unable to conclude that he is unlikely to reoffend in the future.’
Mr Dharma’s evidence
The Tribunal has considered Mr Dharma’s statement and his other written submissions in evidence. These include written responses to the 2009 NOICC,[36] the 2010 NOICC,[37] and in requesting revocation of his visa cancellation in 2017.[38]
[36] Ibid, 100-101.
[37] Ibid, 88-90.
[38] Ibid, 64-81.
In his oral evidence, Mr Dharma referred on a number of occasions to the difficulties he encountered after the divorce of his parents in approximately 1980. He lived with his mother following the divorce for approximately a decade, and she remarried during this period. Mr Dharma refers to a difficult relationship with his step-father, which caused him to move to Australia in 1991 to be with his biological father, step-mother and step-brother. Mr Dharma states he completed Year 9 schooling in Australia.
Mr Dharma says he returned to Indonesia with his father in February 1994, while his stepmother and step-brother remained in Australia. He disagreed with his father’s decision to abandon his stepmother and step-brother in Australia and re-marry in Indonesia. Such was his disappointment with his father, Mr Dharma submits he returned alone to Australia about four months later in July 1994. He claims this travel was funded by his Indonesian grandmother and he lived for a brief period with an aunt and uncle in Australia before moving out to live with friends. Mr Dharma submits that soon after moving out, negative peer influences led him into persistent drug-taking and offending. He did not maintain contact with his aunt and uncle because of embarrassment and because they ‘were not close anyway.’ Mr Dharma said the last time he saw his aunt and uncle was in 2007. He tried to contact his step-brother in Australia, but his step-brother’s grandmother told him not to call again.
Mr Dharma’s submissions centred predominantly on the interests of his children, who he claimed still needed him. He has continued to interact with his children, even after breaking up with his former partner in 2014. He said they would regularly stay with him on weekends and he would take them ‘fishing, window-shopping or go out to eat.’ Mr Dharma agreed he was in prison when his youngest child was born, submitting he had lost too many years from their lives, which was something he wanted to rectify. Mr Dharma said that just because he was addicted to heroin, didn’t mean that he neglected his children. He claimed to have ‘used drugs discretely and tried to separate that from my children.’ Mr Dharma said he did not deserve to be deported, because ‘it’s not just punishing me, it’s punishing my kids and taking away their rights to be with their father.’
Mr Dharma expressed pride in his children’s achievements, for which he gives ‘most of the credit to their mother.’ He says she has been their primary carer since 2014, but submits he has also played a significant role in their development: ‘I must have done something right in guiding them, bringing them up in the way they’ve turned out to be.’ Mr Dharma acknowledges, however, that his ability to play a parental role has been impeded by imprisonment and then immigration detention for ‘six or seven out of the last 12 years.’ He speaks to his children frequently by telephone and claims his former partner and the children had visited him ‘a couple of times’ while he has been in immigration detention. When Mr Hutton referred Mr Dharma to a single visit on 15 December 2018 noted in detention centre records, Mr Dharma stated: ‘no it was twice – the last time was three to four months back.’
Mr Dharma contends that although he and his partner separated in 2014 after a 15-year relationship, reconciliation remained in prospect, providing he remained abstinent from illicit drugs. He characterised the decision to separate from his partner as linked to a number of factors, particularly his drug-taking. Mr Dharma stated: ‘She had enough with my behaviour – with my drug use,’ but claims she also suspected him of infidelity. He says they argued ‘on a daily basis’ about ‘money things’ and him ‘not spending enough time with her and the children.’
When asked if he had ever been violent towards his former partner, Mr Dharma said ‘No – we just swear at each other.’ When pressed, he said there was one occasion when he had pushed her. In response to questions from Mr Hutton, Mr Dharma agreed the pushing incident he referred to was what caused his conviction for ‘Common assault (dv)’ on 14 October 2014. When asked by Mr Hutton if the ‘dv’ stood for domestic violence, Mr Dharma replied: ‘I don’t think that was domestic violence, but the police charged me with that – I only pushed her away a bit.’ When asked by Mr Hutton to elaborate on how he had pushed his former partner, Mr Dharma became agitated, stating: ‘I didn’t push her, I only brushed past her.’ When it was pointed out by the Tribunal that Mr Dharma’s evidence had appeared to change, his interruptions required an adjournment. On resumption of the hearing, Mr Dharma elaborated on the incident with his wife:
‘After we finished arguing I tried to walk outside to the balcony and she was blocking my way and I sort of asked her if she can move. I pushed her on her shoulder and she fell.’
Mr Dharma agreed that police attended his residence and he was taken into custody as a result of this incident. He said that he pleaded ‘not guilty’ but was convicted and an Apprehended Violence Order (“AVO”) was issued. Mr Dharma could not recall the specific conditions of the AVO, but thought it may have included conditions that he could not contact his former partner or ‘approach [her] for six or 12 months.’ He subsequently did not see her again until the relationship ended, which he said had occurred ‘on the phone.’ He could not recall how many times he had seen his former partner since this incident. He had maintained contact with his children, however, which he says was facilitated through the ‘two older ones.’ Mr Dharma submits there was no court order or other impediment prohibiting access to his children and they could come and visit him at any time.
Following evidence from Mr Dharma’s former partner on day two of the hearing, the Tribunal recalled Mr Dharma to afford him an opportunity to address his former partner’s evidence about the domestic violence incident. Her evidence to the Tribunal that Mr Dharma had ‘pushed [her] around,’ had ‘held a knife’ to her, and she had cut her finger on the knife during the incident. She also claimed Mr Dharma had threatened her by saying: ‘he may as well get rid of me,’ and that their children were present during the incident. She said an AVO was subsequently issued for ‘more than six months’ preventing Mr Dharma from coming into contact with her or attending her home.
Mr Dharma’s initial response to the evidence of his former partner was ‘I still stick to my story.’ In response to further questions, he claimed to have been under the influence of Xanax at the time of this incident:
‘I wasn’t myself – I wasn’t in the right state of mind. Gradually I accepted what she said…It doesn’t look good in my defence, but I’m not a violent person and I do regret that to the present day.’
It was put to Mr Dharma that during his evidence in chief he claimed to have only ‘pushed’ his partner once, then submitted he had only ‘brushed past her,’ but had made no previous reference to a knife. Mr Dharma submitted that he had been charged with ‘Assault occasioning bodily harm’ as a result of this incident, but the offence had not been proven and he was only found guilty of ‘Common assault.’ He claimed to have omitted any reference to the knife in his earlier evidence because no conviction had resulted because of the involvement of a knife and he did not think it was relevant to mention it. In response to further questions, Mr Dharma conceded he did not dispute what his former partner told the Tribunal:
‘I can’t be sure who had the knife first, but there was a knife involved. I was under the influence of Xanax – I wasn’t myself…I thought I was grabbing it from her, but she said she was grabbing it from me. What she said is more likely the truth. It hurts me to be able to do that and that’s why I chose to move out from the house.’
When asked if he recalled threatening his former partner by saying he ‘may as well just get rid of’ her, Mr Dharma responded: ‘I can’t recall but I believe what she’s telling.’ Mr Dharma said this was the only domestic violence he had ever committed and ‘even when I was sobering up I couldn’t remember it.’ He had asked his former partner for some years to forgive him for this incident.
Mr Dharma does not contest that he fails the character test or that his offending is objectively serious. He submits that the only aggravating factors relevant to his application are the frequency and persistence of his offending, including after two previous warnings from immigration authorities. He claimed to have meant everything he said in his previous submissions to the 2009 and 2010 NOICC’s, stating: ‘but unfortunately I relapsed and reoffended.’ Mr Dharma said the fact he was not deported after the first or second NOICC’s had given him a false sense of confidence, referring to changes in the Act in 2014 that provided for mandatory cancellation. He said this meant things were ‘different’ now and his ‘perspective’ had changed after seeing ‘people deported left right and centre’ in immigration detention. He now realised what he stood to lose.
Mr Dharma said he is disappointed in himself about how long it’s taken to realise his errant ways. He claimed, however, that his overall conduct was not as serious as what was reflected by his criminal record:
‘I was involved in one offence that caused injury…The nature of my crimes is not something the Australian community should be concerned about… They don’t need to worry. It’s not in my nature that I like to hurt people – it’s just property stuff. The stuff that I took is cheap - $50 to $100 dollars max – maybe a couple of hundred max.’
When asked about assaulting his partner, Mr Dharma stated he regrets that too. When asked if he considered that violence, he responded:
‘I don’t think its violence – she was just stubborn. I said ‘move woman’…but she still supports me and things can work out between us if I can look after myself and not do what I did before.’
Mr Dharma contextualised his life story and long-standing heroin addiction in part to the absence of a paternal ‘role model.’ He felt ‘betrayed and disappointed’ by his father’s decision to return to Indonesia and re-marry. He claims his sense of isolation was exacerbated by learning his step-mother in Australia had passed away in a car accident, claiming it had a ‘devastating’ effect on him because he had hoped to find her and live with her. He said that using heroin made everything feel ‘a bit lighter,’ but he had learned this was illusory.
In response to questions from Mr Hutton, Mr Dharma agreed he had committed offences while on conditional liberty like parole and a good behaviour bond. He explained that his offending continued over such a long period of time because of his heroin addiction. He claims to have used heroin since ‘2000 or 2001,’ with the last occasion being while he was imprisoned in 2017. Mr Dharma stated that if it wasn’t for his heroin addiction, he ‘wouldn’t have committed any crimes.’
Mr Dharma agreed he had attended a number of rehabilitative programs over the years, including Drug Court in 2003, which he said ‘really helped’ him in addressing his addiction to heroin and required him to periodically ‘provide clean urine.’ He had also attended a six-week drug and alcohol program in 2008. On reflection he agreed that he did not take these programs and counselling seriously enough. Mr Dharma said he had nevertheless learned not to be ashamed of relapsing because drug addiction was ‘like a battle and relapses do happen.’ Mr Dharma said he had also undertaken counselling with his parole officer, but no-one had directed him to attend the drug counselling required by the section 9 bonds referred to in his 2011 convictions.[39] He had not followed up on this counselling because: ‘They’re the ones who should have brought it up with me.’ As to why he had not taken prescribed medications in accordance with the bonds ordered by the court in 2016,[40] Mr Dharma said he had chosen not to take the medications because they made him hallucinate.
[39] Ibid, 37.
[40] Ibid, 34.
When referred to the Court’s observation in 2008 that he had failed a prescribed urine test despite claiming to have been abstinent from drugs while imprisoned,[41] Mr Dharma responded:
‘I couldn’t give them any urine because I couldn’t piss. They take it as a fail – it doesn’t mean I was dirty on that day.’
[41] Ibid, 58-59.
When taken through the convictions in his NPC by Mr Hutton, Mr Dharma agreed there were 45 different stealing or theft-related offences, but submitted that the items he had taken were ‘nothing significant really.’ He had stolen items from cars and properties, and had been found with tools in his possession used to break into cars. He said victims of his offending ‘suffer more financially than physically.’ He had also been found with ‘foils of heroin’ in his possession. Mr Dharma claimed that in relation to his ‘Supply prohibited drug’ conviction in February 2005, he was initially going to fight the charge, but decided to plead guilty in order to be accepted onto a drug rehabilitation program. When Mr Hutton put to him that he was supplying heroin to other people, Mr Dharma responded: ‘No – not really.’ He claimed the person he was in company with had falsely claimed to police that Mr Dharma supplied him with heroin.
When asked about his February 2005 conviction for ‘Resist or hinder police officer in the execution of duty,’ Mr Dharma said it arose from him trying to throw away a foil of heroin in his possession. When asked about his 1999 conviction for ‘Intimidate police officer,’ Mr Dharma responded:
‘I don’t think I intimidated him, I only swore at him. Plus he was bigger than me and there were three of them.’
Mr Dharma agreed that his conduct during a 2008 robbery in company was violent, but insisted he was not a violent person. When asked about his May 1995 conviction for armed robbery, Mr Dharma stated: ‘that was nothing really – we were young. One of the boys was trying to rob someone of phone cards.’ Mr Dharma stated he was not armed at the time and was convicted because he ‘was just there.’ When asked by Mr Hutton if he was denying that conviction, he responded: ‘Yes.’
Mr Dharma was asked about his 2011 conviction for ‘Commit s 114 offence, having previous conviction,’ for which he received a six-month sentence of imprisonment. He cavilled at the suggestion that he was armed to commit an offence, stating that the 2008 ‘Robbery in company’ offence was the only occasion he was ‘involved in really hurting someone.’
Mr Dharma was asked about incidents of misconduct recorded against him while imprisoned, particularly ‘assaults’ recorded on 10 December 2012.[42] He responded:
‘I had a bit of a disagreement with someone and we had a bit of a punch on and I was winning and he looked worse than me. I pleaded guilty to get it over with.’
[42] Ibid, 112.
When asked about a number of ‘Possess drug’ entries recorded by corrections staff, Mr Dharma said he was on a prescribed high dose of Buprenorphine at the time and had tried to divert some of his medication. When asked about an ‘Administer drug’ entry in September 2013, he said this again related to Buprenorphine, which was found in his cell during a search. When asked about a ‘Fail prescribed drug test’ in May 2017, he said this also related to Buprenorphine. When asked about a ‘Steal’ entry in July 2017, Mr Dharma said he had taken food from the kitchen while working there.
When asked about reported incidents of misconduct while in immigration detention, Mr Dharma agreed he had tested positive to Amphetamine and Buprenorphine in March 2018,[43] but insisted this was just before he commenced on the Methadone Program. Mr Dharma was referred to an October 2018 reference in his clinical records to ‘use THC occasionally.’[44] He agreed this record was correct and that he continued to use marijuana occasionally, but it was ‘not an everyday thing.’ He stated: ‘I’ve never had a problem with marijuana.’ When asked if he had used other drugs in immigration detention, Mr Dharma stated he had used ‘ice,’ but was ‘pretty sure it was only twice.’ Mr Dharma submitted that apart from a small number of occasions when he had ‘slipped up’ by using marijuana and ice, he had abstained from heroin while on the Methadone Program, which he constantly reinforced was his drug problem of greatest significance. In relation to the occasions he had used illicit drugs in immigration detention, Mr Dharma stated: ‘It’s not like I go out of my way to look for it, it just happened.’ He asked the Tribunal not to give this issue significant weight because:
‘relapsing is part of recovery. It was one or two times – it was not continually. I’m not happy about it. I wish I hadn’t. Ice or marijuana are not my drugs of choice.’
[43] Exhibit R2, 59.
[44] Ibid, 32.
When asked why, despite his stated fears about being deported, he continued to use other drugs in immigration detention, he responded:
‘There’s always relapsing, but it’s not an everyday thing like heroin in the past. It’s not like overboard…I thought it won’t hurt to smoke a bit of ice and a bit of pot – it’s depressing in there…It doesn’t prove I’m going back to using drugs daily… Relapsing - it’s like a battle every day…It’s heroin that stuffed my life for so many years…My only problem is heroin…I’ve never been addicted to any other drug.’
When asked why he would take that risk given the prospect of urine tests, Mr Dharma responded: ‘No you can refuse it if you want.’
Mr Dharma was referred to pages six and seven of his statement,[45] in which he submits:
‘I still hope that if I was to be given a last chance to remain in Australia, I will never go back to using drugs…’
[45] Exhibit A1.
When it was put to him that he still appeared to be using drugs, Mr Dharma explained that his undertaking about abstinence from drugs had been contingent on being given a ‘last chance:’
‘No, it’s if I’ve been given a second chance. Technically I haven’t been given a second chance yet. I never said I wouldn’t use drugs in Villawood.’
Mr Dharma submitted on a number of occasions that the ‘only problem’ he had ever had was with heroin. When referred to the court’s reference in October 2008 to Mr Dharma smoking cocaine since 2006 ‘on an average of about twice a week…until arrested,’ he characterised his cocaine use as ‘only experimenting.’
When asked about the multiple missed sessions with a psychologist recorded in his clinical records while in immigration detention, Mr Dharma said he did not see the benefit of such sessions. He also claimed to have declined follow-up consultations on occasions because he ‘was coping well at that time.’ He explained a reference to his non-compliance with the prescribed anti-depressant Sertraline, as choosing not to take it after conducting his own research on the internet and becoming concerned about potential side-effects. Mr Dharma said in preference to mental health consultations while in prison or immigration detention, he would go to his ‘own choice’ of mental health practitioner if released, who he ‘felt comfortable with.’
When asked about any contribution to the community during his residence in Australia, Mr Dharma stated: ‘I don’t deny I haven’t made much contribution to Australia.’ He expressed an aspiration to become a youth worker as a way of making a future contribution.
Mr Dharma highlighted what he contends are significant impediments confronting him if repatriated to Indonesia. He characterises those as ‘social, cultural and language barriers,’ as well as the practicalities of resettlement. The latter includes finding somewhere to live, accessing medical support, and daily living requirements. Mr Dharma said his ‘research’ on the internet had revealed that income and other support arrangements in Indonesia were far below that available in Australia. When asked if he spoke Bahasa Indonesia, Mr Dharma said he could but it was ‘not perfect but broken.’ He claimed not to retain any familiarity with Indonesia or contact with relatives there since 1994, which meant he could not expect any support if repatriated. Mr Dharma said that in 2018 he exchanged messages with his sister in Indonesia via a messaging application, but that had only been ‘three to four times max.’ Mr Dharma agrees that he and his sister discussed his possible return, but stated: ‘she doesn’t really want me to go back.’ Mr Dharma expressed concerns about his extensive tattoos, submitting that police in Indonesia ‘don’t look well to people with tattoos…I’m worried about stigma because of tattoos.’ In his closing submissions, Mr Dharma stated that if repatriated to Indonesia, he would lose ‘all purpose’ in his life.
In his documentary evidence Mr Dharma submitted that his risk of reoffending is ‘definitely zero.’[46] During his oral evidence he stated that his risk of reoffending was ‘close to zero.’ He expressed regret for his criminal offending, stating ‘I don’t deny what I’ve done.’ But he stated: ‘I know I am capable to abstain and not go back to how I was before…I can assure the Australian community although I said before I won’t reoffend and use heroin, this time it’s different for me’.
[46] Exhibit R1, 72.
If allowed to remain in Australia, Mr Dharma said he still had a ‘few friends who don’t take drugs except alcohol.’ He would seek them out and ‘cut ties’ from people in his past ‘that do take drugs.’ But the ‘main thing’ was to ‘rectify my relationship with my children and their mum and try to make up for lost time.’
Evidence of Mr Dharma’s former partner and children
At the commencement of the hearing, Mr Dharma expressed an intention to call his former partner and two eldest children as witnesses, despite not having previously provided statements for these witnesses in accordance with a Tribunal Direction dated 14 May 2019. A Telephone Directions Hearing (TDH) was conducted on 14 May 2019, approximately ten weeks prior to the commencement of the hearing, where Mr Dharma was invited to give to the Tribunal and the respondent by 4:00pm on 17 June 2019:
(a)any witness statements and other evidence on which the applicant intended to rely at the hearing; and
(b)a Statement of Facts, Issues and Contentions (written outline of applicant’s submissions.
Mr Dharma was also advised at the TDH that he must lodge with the Tribunal and give to the respondent any further material on which he intended to rely at the hearing by 22 July 2019. After no materials were lodged by Mr Dharma, the Tribunal attempted to make contact with him on 16 July 2019 via email to the Villawood Detention Centre, but he was unavailable. A message was left for him to call back. Mr Dharma called the Tribunal at approximately 4:15pm on 17 July 2019, advising he would file witness statements as soon as possible. The Tribunal Officer provided Mr Dharma with her contact details, but no further contact was made by Mr Dharma and no witness statements or further materials were lodged prior to the hearing. The mobile telephone number Mr Dharma provided did not respond to further calls by the Tribunal Officer, despite voice messages being left for Mr Dharma to return the calls. On 24 July 2019 the Tribunal Officer contacted Villawood Detention Centre at approximately 9:55am and 9:59am to speak to Mr Dharma, but Detention Centre staff advised they were unable to contact him.
Notwithstanding the above, and in light of the references to Mr Dharma’s former partner and children in other evidence, the Tribunal decided to hear from them. The Tribunal found the evidence of Mr Dharma’s former partner and children to be truthful and heartfelt. Their submissions can be summarised as follows:
Evidence of Mr Dharma’s former partner
(a)Mr Dharma’s former partner (“S”) appeared by telephone and said their relationship commenced at the beginning of 1999 and ended in approximately 2014. She said Mr Dharma lived at his own premises after they broke up. S said that the catalyst for their breakup was a domestic violence incident, which ‘escalated’ to Mr Dharma pushing her around. She stated:
‘He held a knife to me [and said] he may as well just get rid of me.’
(b)S said their children were present during the domestic violence incident and she had received a cut to her finger. Police were called and Mr Dharma was arrested. S recalled an AVO being issued preventing Mr Dharma from contacting or approaching her or their home. S said Mr Dharma had not contacted her while the AVO was in place, which was for more than six months. The AVO did not preclude access with their children, however, and S said subsequent visitation between Mr Dharma and the children was ‘more of a weekend thing’ at Mr Dharma’s premises;
(c)S said she wanted Mr Dharma to have the opportunity for a meaningful relationship with their children. She described their current relationship as ‘civil’ and left open the prospect that their relationship ‘could progress in the future.’ When asked if that would be so if Mr Dharma continued to take drugs, S responded ‘No.’ When asked whether she was aware when Mr Dharma last took drugs, she understood he had been abstinent since entering immigration detention: ‘When we visited him in Villawood I could see he wasn’t touching it.’
(d)S said she and the children did not visit Mr Dharma while he was imprisoned, but had visited him two or three times during the last two years in immigration detention. She explained that she worked during the day, studied at night, and did not drive. She was also very busy dealing with the demands of her children.
Evidence of Mr Dharma’s two eldest sons
(a)The evidence of Son A and Son B was to the effect that they loved and continued to support their father. They recalled his previous role in their lives and wanted him to remain in Australia with them. Both referred to their youngest sibling as most in need of a paternal role model and wanted Mr Dharma to play that role.
(b)Son A said he had commenced university and his father had been a ‘huge influence’ in encouraging him to pursue tertiary study. He wanted to make his father proud and to play a meaningful role in their lives. That included assisting his youngest sibling and other family imperatives. By way of example, Son A said neither he nor his mother drove, so there were constant practical difficulties in managing the family’s schedule, which Mr Dharma could assist with.
(c)Son B said he was in high school and wanted his father in his life as a role model and to teach him ‘to be a man.’ He had seen friends develop inappropriately without a father figure and wanted Mr Dharma to remain easily accessible to him and his siblings. He recalled the things his father had done for him while growing up was to take him fishing and teach him about Islam. He referred to Mr Dharma as ‘the best father you could ask for.’
The Tribunal was impressed with the evidence of these two young men, who gave a heartfelt endorsement of Mr Dharma’s place in their lives and a desire that he continue to play a paternal role into the future.
Letters of Support
No letters of support were lodged in support of Mr Dharma’s application. When asked why Mr Dharma stated: ‘I don’t want to involve my friends or family. I don’t want to be a burden on them.’ Mr Dharma submitted however, that some would have provided letters of support if had he asked them: ‘I am sure they all be happy to write me one but I just thought that it’s enough for them…’[47]
PRIMARY CONSIDERATIONS
[47] Exhibit A1, 6.
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a) The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
Mr Dharma claims that he has ‘tried to live a straight path’ and that most of his ‘criminal records are fairly minor.’[48] He states in his Personal Circumstances Form dated 18 September 2017:
‘…For the past few years I’ve been charged mostly with minor property offences…due to my excessive drug use. The seriousness of my offences does not increase to more serious conduct or violent offence. I accept my criminal records are relatively long with aspects of violence…I am not a violent person. I have never committed sexual crimes or crimes against vulnerable members of the community such as minors, elderly and the disabled.
I was doing well in life for around 3 years 2014-2016. I had a stable job from around September 2014 to May 2015. I had an argument with my partner and hit low point emotionally that led me to make wrong judgements, surrounded myself with wrong circle of people again which led me to take drugs again to cope with my problems which eventually left me with financial pressure and committing crimes which led me to jail.’[49]
[48] Exhibit R1, 77.
[49] Ibid, 72.
In his oral evidence he contextualised his conduct as follows:
‘I was involved in one offence that caused injury…The nature of my crimes is not something the Australian community should be concerned about… They don’t need to worry. It’s not in my nature that I like to hurt people – it’s just property stuff. The stuff that I took is cheap - $50 to $100 dollars max – maybe a couple of hundred max.’
Mr Dharma’s National Police Certificate discloses that he commenced offending soon after arriving in Australia and while he was still a minor. Between 1994 and his first term of imprisonment in 2007, Mr Dharma’s offences were dealt with through fines, probation, control orders, good behaviour bonds, or other conditional liberty arrangements. Mr Dharma was sentenced to multiple subsequent terms of imprisonment, including terms of 12 months or more in 2010, 2013, and 2017.
The Tribunal accepts there are impediments confronting Mr Dharma in re-establishing himself in a country he left as a 17-year old. In the absence of family support in Indonesia, Mr Dharma would be required to locate stable accommodation, employment and basic living expenses. The Tribunal acknowledges he would lose access to Australian income support and other payments, and Medicare benefits, making it more difficult to maintain his basic living standards and to access healthcare. But he would have access to the support generally available to other Indonesian citizens. The task confronting Mr Dharma would be difficult, but not insurmountable.
On balance, this consideration it weighs in favour of revocation.
Any Other Considerations
No additional considerations were advanced by the parties or identified by the Tribunal as relevant to the specific circumstances of Mr Dharma’s application.
CONCLUSION
Mr Dharma’s persistent record of criminal offending over more than 20 years is objectively serious and reflects a blatant disregard for Australia’s law enforcement framework. He has offended while at liberty in the community, while on court-ordered conditional liberty, and after being twice warned by immigration authorities about the potentially dire consequences for his visa status if he continued to reoffend.
The Tribunal does not accept Mr Dharma’s contention that his risk of reoffending is ‘definitely zero.’ Sentencing remarks from 2008 state that his risk of recidivism was ‘low to moderate,’ and his Honour opined that Mr Dharma’s risk ‘will be significantly reduced if he is able to continue to resolve his substance abuse…’ The evidence shows that Mr Dharma has been unable to sever the link between his drug use and offending in the decade since those sentencing remarks were made, despite rehabilitative opportunities, the court’s corrective penalties and previous warnings from immigration authorities.
If Mr Dharma were to repeat his violent offences, serious physical or psychological harm may be inflicted on his victims. The Tribunal considers the category of offences he is most likely to repeat are dishonesty and destruction of property offences, which nevertheless impose psychological and financial harm on victims. Offending in other categories where he has a record of repeat offences cannot be ruled out.
The Tribunal finds Mr Dharma’s claims about rehabilitative progress to be unpersuasive. Those claims have proven illusory in the past and his continued drug-taking in immigration detention raises significant concerns. The harm that would be caused by a repeat of Mr Dharma’s offending constitutes an unacceptable risk to the Australian community and this primary consideration weighs very strongly against revoking the cancellation of his visa.
Putting all of the evidence about his two younger children in the balance, the Tribunal finds revocation is in their best interests, although for the reasons previously adduced, this primary consideration only weighs slightly in favour of revoking the visa cancellation.
The Australian community’s tolerance for any further risk of harm from Mr Dharma would be very low indeed. The broad middle ground of Australian society would expect that the visa cancellation decision would not be revoked. This primary consideration weighs very strongly against revocation.
Of the other considerations relevant in this matter, less weight is placed on the strength of Mr Dharma’s ties to Australia because his offending commenced soon after he arrived and while still a minor. It has continued for over 20 years. He has made a limited contribution at best through work. Any positive contribution is substantially outweighed by the costs and consequences of more than two decades of criminal offending. The strength and nature of his ties to Australia appears largely limited to his children and former partner. That said, what ties he has are predominantly in Australia and this consideration weighs in favour of revocation.
Mr Dharma’s evidence about the extent of impediments if removed to Indonesia came across as exaggerated and self-serving. He is a relatively young man who says there is no impediment to him returning to work. He expresses a renewed and commendable determination to return to work and live a law-abiding life. There is no evidence to suggest he could not do that in Indonesia, or that he could not access any medical treatment or prescribed medications in Indonesia. But if repatriated, there are undoubtedly impediments confronting Mr Dharma in re-establishing himself in a country he last left as a teenager. These include locating stable accommodation, employment and basic living expenses. The Tribunal acknowledges Mr Dharma would lose access to any Australian income support and other payments, but he would be entitled to the support generally available to other citizens of Indonesia. On balance, the consideration ‘Extent of impediments if removed’ weighs in favour of revocation.
Having examined the factors for and against revoking the cancellation of Mr Dharma’s visa individually and cumulatively, the weight of evidence supports a finding that there is not another reason why the decision should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very strongly against revocation. These considerably outweigh the primary consideration of ‘Best interests of minor children in Australia,’ which weighs slightly in favour of revocation and the other consideration of ‘Strength, nature and duration of ties’ and ‘Extent of Impediments if removed,’ which weigh in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.
I certify that the preceding 168 (one hundred and sixty eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
.......................[sgd].................................................
Associate
Dated: 3 October 2019
Date(s) of hearing: 25 and 26 July 2019 Date final submissions received: 12 September 2019 Applicant: In person Solicitors for the Respondent: Mr J Hutton- Australian Government Solicitor
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