Dobrosavljevic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 775 (18 April 2024)
Division:GENERAL DIVISION
File Number:2022/7239
Re:Peter Dobrosavljevic
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member S Burford
Date:18 April 2024
Place:Perth
The decision of the delegate of the Respondent dated 31 August 2022 not to revoke the cancellation of the Applicant’s Class BF transitional (permanent) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under
s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth)............................[Sgd].............................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test –Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed - Applicant is a 63 year old man who arrived in Australia as a 12 year old – extent of impediments if returned to Serbia – Non revocation decision is set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)– s 15, 34, 34(2), 36(1C), 36(2C), 189, 196, 197C(3) , 198, 201, 348(1), 414(1), 499, 499(1), 499(2A), 500(1)(ba), 500 (6B), 501, 501(3A), s501 (6)(a), s501(7), 501(7)(c), 501CA, 501CA(3)(a), 501CA(3)(b), 501CA(4),501CA(4)(a), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501F, 501E, s 501E(2), 503.
Migration Amendment Act 1983 (Cth) – s 7(4), 8(2)
Migration Reform (Transitional Provisions) Regulations 1994
Migration Regulations 1994 (Cth) regs 2.52, 2.52(2)(b), 2.55
Migration Legislation Amendment Act 1994 (Cth) ss 8, 83
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
BDS20 v MICMSMA [2020] FCA 1176
BDS20 v MICMSMA [2021] FCAFC 91
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Crisp v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 252
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 (6 March 2024)
MICMSMA v BFW20; BGS20 v MICMSMA [2020] FCAFC 121
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; 97 ALJR 488
NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Sillars v MICMSMA [2020] FCA 1313
Sillars v MICMSMA [2021] FCAFC 174
Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196
Yong v MIEA (1996) 67 FCR 566
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(4), 6, 7(2), 8, 8(1), 8.1(1), 8.1(2)(a), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(g), 8.1.1(1)(f)(h),8.1(2), 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.2(2), 8.3(1), 8.3(2)(3), 8.3(4)(a)(ii)), 8.4, 8.4(1), 8.4(4), 8.5 (1), 8.5(2), 8.5(2)(a)–(f), 8.5(3), 9, 9.1, 9.1(7), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4.
REASONS FOR DECISION
Senior Member S Burford
18 April 2024
INTRODUCTION
The Applicant is a 65-year-old citizen of Serbia. He first arrived in Australia on 3 March 1971 with his parents and brother, when he was 12 years old.[1] On 1 September 1994, the Applicant was granted a Class BF transitional (permanent) visa.[2]
[1] RB1, G17, page 95.
[2] RB1, G23, page 133.
On 6 September 2019, the Applicant was convicted in the Joondalup Magistrates Court of eight offences: ‘Home burglary with intent’, two counts of ‘Home burglary and commit’, ‘Burglary and commit’, ‘Burglary and commit offence in dwelling’, four ‘Stealing’ offences, ‘Possess a prohibited drug (methylamphetamine)’ and ‘Carried a controlled weapon’.[3] For one of the ‘Home burglary and commit’ offences, the Applicant was sentenced to two years and six months’ imprisonment. For each of the other ‘Home burglary and commit’ offence and the ‘Home burglary with intent’ offence he received two years imprisonment to be served concurrently. He was sentenced to a further cumulative term of 12 months’ imprisonment for the ‘Burglary and commit offence in dwelling’ offence taking his total effective sentence to three years and six months’ imprisonment. He received no penalty for the stealing offences and fines for the possession and weapons offences.[4]
[3] RB1, G4, page 31.
[4] RB1, G4, page 31.
On 22 January 2020, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[5] The Applicant requested revocation of the Cancellation Decision on 24 February 2020.[6]
[5] Migration Act ss 501(6)(a) and 501(7)(c); R1, G3, pages 11-30.
[6] R1, G17.
On 31 August 2022, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[7] The Applicant was notified of the decision by hand at Wooroloo Prison Farm on 31 August 2022.[8]
[7] RB1, pages 9-29.
[8] RB1, page 11.
The Applicant lodged his application for review of the Non-Revocation Decision on 5 September 2022.[9] The application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.
[9] RB1, pages 3-8.
On 15 November 2022, the Tribunal as currently constituted held a hearing on the Application in Perth. The Applicant was not represented and on 23 November 2022 the Tribunal affirmed the Non-Revocation Decision. The Applicant sought a review of that decision to the Federal Court of Australia.
On 23 June 2023 the Federal Court of Australia remitted the decision to the Tribunal, by consent, on the grounds that the Tribunal’s reasoning that the risk of the applicant relapsing into drug use or engaging in criminal offences (Identified Risk) if he returned to Serbia was:
a. an impediment that weighed in favour of revoking the decision to cancel his visa; and
b. was not an impediment,
was inconsistent and therefore illogical.[10]
[10] RB1, page 776-777.
The orders noted it was not possible to determine if and how the Tribunal weighed the Identified Risk when deciding whether there was another reason to revoke the cancellation of the Applicant’s visa under s 501CA(4)(b)(ii) of the Migration Act and therefore it was accepted the error was material and amounted to jurisdictional error. The matter was remitted to the Tribunal for determination according to law.
The Tribunal is now reconsidering the matter on remittal, according to law.
BACKGROUND
As noted above, the Applicant came to Australia in 1971 with his parents and brother when he was 12 years old.[11] The Applicant has been married and divorced twice and has one 25-year-old son who resides in Australia.[12]
[11] RB1, ExA2, page 544.
[12] RB1, G22, page 128.
The Applicant has a lengthy history of criminal offending as an adult which began in 1977.[13] He has been convicted of a broad range of offences including property offences, drug offences, traffic offences, assault and weapons offences.[14]
[13] RB1, G4, page 34.
[14] RB1, G4-5.
As noted above, on 6 September 2019, the Applicant plead guilty to and was convicted in the Joondalup Magistrates Court of home burglary for which he was sentenced to two years and six months imprisonment.[15] He was also sentenced to a cumulative term of 12 months imprisonment for the burglary and commit offence in dwelling offence.[16] The details of these offences are discussed below.
[15] RB1, G4, page 31.
[16] RB1, G4, page 31.
The Cancellation Decision was made on 22 January 2020[17] and the Applicant was notified of the decision on the same date and advised that he could make representations to seek revocation of the Cancellation Decision.[18] Representations seeking revocation of the decision were made by the Applicant on 24 February 2020.[19]
[17] RB1, G23, pages 133-139.
[18] RB1, G3.
[19] RB1, G17.
On 31 August 2022, the delegate decided not to revoke the Cancellation Decision.[20]
[20] RB1, G3.
JURISDICTION
As noted earlier, on 22 January 2020, the Applicant’s visa was cancelled under s 501(3A) of the MigrationAct.[21] The Applicant’s request for revocation of the Cancellation Decision was received by the Department on 24 February 2020.[22]
[21] Migration Act ss 501(6)(a) and 501(7)(c); RB1, G3, pages 11-29.
[22] RB1, G17.
The Non-Revocation Decision was made on 31 August 2022, under s 501CA(4) of the Migration Act.[23] The Applicant was notified of the decision by hand at Wooroloo Prison Farm on 31 August 2022.[24]
[23] RB1, G3.
[24] RB1, G3, page 11; G2, page 4.
The Non-Revocation Decision includes the following note:[25]
On 24 February 2020, Mr DOBROSAVLJEVIC made representations seeking revocation of the cancellation decision …. These representations were not made within the period and in a manner set out in the regulations, however on 2 March 2020, the Department made a decision to accept Mr DOBROSAVLJEVIC’s request as valid. Thus, I conclude that Mr DOBROSAVLJEVIC has made representations in accordance with the invitation, as required under s501CA(4)(a) of the Act.
[25] RB1, G3, page 16.
On the material before the Tribunal, the Applicant signed the request for revocation on 14 February 2022.[26] A copy of a handwritten envelope stamped as received on 24 February 2022 was also provided to the Tribunal appearing in the materials with the request for revocation document.[27] The personal circumstances form was not signed or dated.[28]
[26] RB1, G17, page 93.
[27] RB1, G17, pages 100-101.
[28] RB1, G18.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice setting out the decision and particulars of the relevant information, and invite the person to make representations about revocation of the original decision.[29] The Migration Act requires notification to be given ‘in the way that the Minister considers appropriate in the circumstances’.[30] This is only concerned with the method of delivery and request rather than the content.[31]
[29] s 501CA(3).
[30] This wording does not appear elsewhere in the Act, in relation to other decision notification provisions.
[31] MIBP v EFX17 [2021] HCA 9 at [25].
Section 501CA(3) also requires representations to be made within the period and in the manner set out in the regulations.[32] Relevantly, reg 2.52(2)(b) stipulates a 28-day period within which representations must be ‘made’. The period is calculated with reference to when the person is given the notice and the particulars of relevant information under s 501CA(3)(a).[33] Where the 28 day period expires and a person has not made representations for revocation of the cancellation, the power to revoke the cancellation given by s 501CA is spent and cannot be revived by the lateness of submissions being overlooked or by the Minister giving another invitation.[34] If the power to revoke the cancellation is not engaged, because, for example, representations to revoke the cancellation were not made within the 28 day period, the cancellation cannot be revoked by the Minister.[35] Without the revocation power being properly engaged, there can be no AAT reviewable decision.[36] However, the revocation power under s 501CA(4) will be enlivened, and the Tribunal on review will have jurisdiction, if an applicant gives the relevant representations under s 501CA(4)(a) to prison authorities for dispatch within the 28-day period for making such representations, regardless of when the representations are received by the Minister.[37]
[32] See reg 2.52 for manner; reg 2.55 for deemed receipt.
[33] In MIBP v EFX17 [2021] HCA 9 at [41]-[42].
[34] BDS20 v MICMSMA [2020] FCA 1176 at [52]. In this case the Court found that once the invitation had been given and the time had commenced, the later sending of another invitation did not re-commence the timeframe: at [46]. The Court in Sillars v MICMSMA [2020] FCA 1313 followed BDS20 v MICMSMA [2020] FCA 1176, noting that it was not plainly wrong: at [74] and [77]. On appeal in BDS20 v MICMSMA [2021] FCAFC 91 the Court upheld the judgment at first instance.
[35] BDS20 v MICMSMA [2020] FCA 1176 at [53].
[36] If the Minister erroneously makes a decision not to revoke the cancellation, consistent with reasoning in MHA v CSH18 [2019] FCAFC 80, it could be reviewed by the AAT, but potentially must be set aside as the Minister never had the power to make it. In MHA v CSH18, the Full Federal Court held that by s 414(1) of the Act ([Part 7]; s 348(1) [Part 5]), the Tribunal must review a purported decision made by a person who lacked the requisite delegation if a valid application for review is made: at [63], [65], [67].
[37] Stewart vMICMSMA [2020] FCAFC 196 at [43], [50], [55]. In Sillars v MICMSMA [2021] FCAFC 174, where the notification incorrectly stated the Minister must receive submissions on revocation within 28 days, the Court found that notification must be dispatched within 28 days: at [48]-[49].
Where the Minister has issued an invalid invitation and representations were made out of time, the statutory pre-condition for the exercise of the power in s 501CA(4)(a) is never enlivened, and therefore the only relief possible is the setting aside of the delegate’s decision (to refuse to consider the representations) by judicial review.[38] This denies the Tribunal jurisdiction to review the decision. However, the Tribunal may have ‘authority to review’ an invalid decision where representations were in fact considered by the delegate.[39]
[38] CHVS v MICMSMA [2022] FCA 34 at [71]–[74].
[39] CHVS v MICMSMA [2022] FCA 34 at [75]–[79].
No material on the file indicated on what basis the Department had made a decision to accept the Applicant’s request as valid, when it was received several days after the date by which representations had to be made. In light of this, at the previous hearing on 10 November 2022, the Tribunal requested the Minister make further submissions on the issue of the validity of the request prior to the resumption of the adjourned hearing, in particular to clarify the basis on which the request was determined to be valid. The Tribunal explained to the Applicant that it would likely ask him questions at the resumed hearing about how he had filled out and dispatched his request for revocation, including whether and when he gave the document to prison staff to dispatch for him.[40]
[40] Transcript, 10 November 2022; RB1, page 615-617 and 620-623.
On 15 November 2022, the Minister made written submissions indicating that:
The cancellation decision was made on 22 January 2020 which we note is before the Full Court’s decision in Stewart v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCAFC 196 (Stewart). That decision held that there was no requirement for representations to be received by the Minister within 28 days of the cancellation decision, but rather than representations needed to be made by that date. The effect of the Full Court decision was that a prisoner makes representations for revocation when they do all that was reasonably in their power to “make” the representations within the prescribed period of 28 days after being given the notice of revocation, and this includes giving the document to a prison guard to be sent to the Minister.
In light of the judgments in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 (EPL20) and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174 (Sillars), the cancellation letter which refers to the need for representations to be received is an invalid invitation. However, even where an invitation under s 501CA(3) is invalid, the power to make a decision under s 501CA(4) may nonetheless be validly invoked where a person in fact makes representations and they are considered as satisfying s 501CA(4)(a). This is so whether the representations were received within 28 days or not.
If not, then the Tribunal will not have jurisdiction and the applicant may need to be renotified.
In the present matter, the request f revocation was signed by the applicant on 14 February 2020. The representations needed to be made by 20 February 2020 and they weren’t received until 24 February 2020. If the representations were made by 20 February 2020 (in light of Stewart, that would include being given to a prison guard with the understanding that they would be sent to the Department), then the power to make a decision under s 501CA(4) will be invoked and the Tribunal will have jurisdiction to review that decision.
The Department has been unable to obtain or locate any evidence which can definitively confirm the date the applicant gave the representations to the prison guard.
(Original emphasis.)
At the resumption of the adjourned hearing the Applicant indicated he had seen the submissions from the Minister but had no submissions to make in reply. After the Applicant was sworn in, the Tribunal asked him when and how he had made the request to the Department. He said he had signed the document on 14 February 2020 and on the same day he had taken the document to the prison office and handed it and the addressed envelope to prison authorities. He told the Tribunal he had filled out a form to request the cost of express postage be deducted from his prison stipend account.[41] While there were no documents available recording the handing of the document to prison authorities on 14 February 2020, the Tribunal found the Applicant’s evidence on this point to be credible and consistent with the fact that the request was signed on 14 February 2020, well before the 20 February deadline for representations to be made.
[41] Transcript 15 November 2022; RB1 pages 627-628.
Based on the evidence before it, the Tribunal finds that the Applicant made representations to the Minister regarding revocation on 14 February 2020 which was within the period stipulated by the regulations. The Respondent conceded that such a finding was open to the Tribunal on the evidence. Further, the Tribunal finds that as the Applicant made representations, notwithstanding the invitation issued to the Applicant was invalid for the reasons submitted by the Respondent, the power to make a decision under s 501CA(4) of the Migration Act is invoked on the making of representations within the statutory timeframe.
The Applicant lodged his application for review of the Non-Revocation Decision on 5 September 2022.[42] The application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act, and that the Tribunal has jurisdiction to review the Non-Revocation Decision.
[42] RB1, G2.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[43]
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
[43] s 501CA(4) of the Migration Act.
THE HEARING AND THE EVIDENCE
The hearing on remittal was held on 15 November 2023 at the Tribunal Registry in Perth.[44] The Applicant appeared in person and was self-represented. The Respondent was represented by Ms Daphne Jones-Bolla of Sparke Helmore Lawyers. Ms Jones-Bolla appeared in person.
[44] Transcript 15 November 2023 page 1.
At the hearing on remittal, the Applicant made submissions, gave evidence, and was cross-examined. The Tribunal also took evidence at that hearing from the Applicant’s Mother and Father via telephone from Melbourne. Those witnesses were assisted by a Serbian interpreter.
The Tribunal notes that the remittal bundle included the transcript of the previous Tribunal hearing at which the Applicant gave evidence in support of the Applicant’s request for revocation.[45] The Tribunal has had regard to the evidence provided at the previous hearing and in statements previously provided by the Applicant, as well as the material submitted at the time of the remittal.
[45] RB1, page 625-688.
The following documents were marked as exhibits:
·Remittal Bundle of Documents, comprising of pages 1 – 778 (Exhibit G1 (referred to as RB1 in this decision));
·Respondent’s Amended Statement of Facts, Issues and Contentions, dated 23 October 2023 (Exhibit R1);
·Tender Bundle of Documents comprising of pages 1-248 (Exhibit R2);
·Statement of Peter Dobrosavljevic received on 15 September 2024 (Exhibit A1);
·Letter from Marianne Fernando dated 14 September 2023 (Exhibit A2);
·Letter from Dr Ranko Cosie dated 3 July 2023 (Exhibit A3);
·Letter from Sam Ianches, Tax Affairs Accountants dated 7 July 2023 (Exhibit A4);
·Letter and Translation from Applicant’s Parents dated 21 October 2022 (Exhibit A5);
·Statement of Attainment Apply Workplace Health and Safety Concepts dated 9 July 2019 (Exhibit A6);
·Statement of Attainment - Apply Workplace Health and Safety Concepts dated 15 April 2020 (Exhibit A7);
·Medical Discharge Summary Report for Zarko Dobrosavljevic dated 12 August 2023 (Exihbit A8);
·Email from Lily Obradovic dated 22 September 2023 (Exhibit A9); and
·Certificate of Completion by the Applicant in Anger Management Course by Mindstogether Counselling dated 13 September 2023 (Exhibit A10).
On 31 August 2023, a directions hearing was held to program the matter for hearing. During which the Tribunal discussed with the parties matters arising for consideration under Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) (Direction No 99) and the filing of evidence and submissions, noting that previous consideration by the Department and Tribunal applied Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021) (Direction No 90). With the agreement of the parties, the Tribunal also directed that the Respondent file their RSFIC first to assist the Applicant to understand the points at issue and to prepare submissions and evidence in response.
The Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 2 October 2023, and later filed a Statement of Facts, Issues and Contentions (RSFIC) dated 23 October that was intended to replace their prior RSFIC. The Applicant did not file a Statement of Facts, Issue and Contention but filed evidence and statements on 15 September 2023.
The Respondent requested time to make post hearing submissions regarding the impact of the High Court’s decision in NZYQ v Minister for Immigration, Citizenship and Multicultural Affairs & Anor [2023] HCA 37 (NZYQ) those submissions were provided on 5 December 2023. The Applicant did not make any further submissions in response. However, the Tribunal notes the submissions contented in the Applicant’s circumstances could be distinguished from those in NZYQ and that the legal consequence of a non-revocation decision by the Tribunal was not affected by that decision because s 198 of the Act would continue to require the Applicant’s removal, and the Applicant was a citizen of Serbia and can be removed there. The Tribunal notes the decision was discussed at the hearing and the Applicant did not claim he would be subject to indefinite detention or that there was no prospect of him being removed to Serbia.[46]
[46] Transcript, 15 November 2023, page 14-17.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Respondent in written and oral submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction No 99. The Tribunal considered the Applicant was provided with a fair opportunity to give evidence and present arguments in support of the application and to respond to issues raised by the Respondent.
Where issues were raised by the Applicant in the previous hearing but not raised on remittal the Tribunal has addressed those issues in this decision. This includes with respect to his claims to be an ‘Absorbed person’.
The Tribunal notes that the issue raised in the remittal was relatively narrow. Where new issues or additional evidence were raised at the hearing on remittal these are reflected in the decision record. The Tribunal also notes that on remittal it is applying a different direction (Direction No 99) which impacts the Tribunal’s consideration of the application and the weighing exercise. However, with respect to some matters, including the Applicant’s offending history, the evidence relied on was essentially the same as that presented previously and the prior summary and analysis of those matters has not changed significantly.
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and essentially deems that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(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)); …
(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; …
(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be serving a ‘sentence of imprisonment’, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[47] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[48]
[47] Migration Act s 501CA(3).
[48] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[49] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[49] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
As noted above, on 23 January 2023, the Minister made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced Direction No 90 which was in place when the previous Tribunal decision was made.[50] The Tribunal is required to apply the Direction in place at the time of this decision, which at the time of this decision is Direction No 99.
[50] Direction No 99 paras 2-3.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[51] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[52]
[51] Direction No 99 para 5.1(4).
[52] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:[53]
[53] Direction No 99 para 5.2.
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2)[54](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[54] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in paragraph 8, and the other considerations listed in paragraph 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[55]
[55] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[56]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[56] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[57]
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) impact on Australian business interests.
[57] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations. please
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 17 October 2023,[58] and the Western Australia Police Force ‘History For Court’,[59] compiled on 28 September 2022 and the Queensland Police ‘Queensland Court Outcomes’[60] dated 4 October 2022. A detailed list of the Applicant’s Adult offences is provided in Annexure A to this decision. The Tribunal notes there was no information before the Tribunal to suggest any additional offences had been recorded since the previous Tribunal hearing in 2022, noting the Applicant has been in prison or detention since that time.[61]
[58] R2, TB1, pages 1-6.
[59] RB1, R7, page 432-441.
[60] RB1, R4, page 335-336.
[61] RB2, TB1, pages 1-6.
The Applicant has been convicted of a large number of offences in several states of Australia including:[62]
(a)Property offences: Home burglary with intent (6/9/2019), Burglary and commit offence in dwelling (6/9/2019), Home burglary and commit (two counts) (6/9/2019), Burglary and commit (6/9/2019), Stealing (four counts) (6/9/2019), Attempted Burglary (three counts) (17/10/2014), Go equipped to steal/cheat (two counts) (17/10/2014), Intentionally damage property (17/10/2014), Burglary (three counts) (18/8/2014), Theft (three counts) (18/8/2014), Enter premises with intent to commit indictable offence (28/3/2014), Enter premises and commit indictable offence by break (20/6/2007), Possess tainted property (12/8/2004), Receiving property obtained by a crime (two counts) (19/10/2001), Enter or in premises and commit indictable offence (19/10/2001), Building breaking and felony (25/11/1992), Burglary (18/5/1992), Break enter and steal (1/12/1987), Willfully damage property (26/3/1986), Burglary (three counts) (22/6/1982), Attempted burglary (22/6/1982), Burglary (five counts) (22/6/1982), Possess house breaking implements (22/6/1982), Burglary (27/4/1981), Burglary (10/10/1980), Unlawfully on premises/precinct (10/10/1980), Burglary (19/8/1980),
(b)Assault offences; Unlawful assault (4/7/1986), Unlawful assault (26/3/1986),
(c)Driving and traffic offences: No authority to drive (6/11/2018), Provided false and misleading personal details (6/11/2018), No authority to drive (never held) (6/11/2018), No authority to drive (never held) (14/7/2016), Unlicenced vehicle (not owner) (1/11/2011), False number plate (not issued for that vehicle) (1/11/2011), No authority to drive (never held) (1/11/2011), Unlicenced vehicle (permit use) (21/10/2011), No authority to drive (never held) (28/9/2011), Unlicenced vehicle (not owner) (28/9/2011), Drive while disqualified (26/3/1986), Drive in a manner dangerous (26/3/1986), Unlicenced driving (22/6/1982),
(d)Drug offences: Possess a prohibited drug (Methylamphetamine) (6/9/2019), Possess cannabis (three counts) (17/10/2014), Possess Methylamphetamine (17/10/2014), Supplying dangerous drugs specified in schedule 1 (two counts) (20/6/2017), Possessing dangerous drugs (20/6/2007), Possess utensils or pipes etc for use (20/6/2007), Possession dangerous drug (8/8/1997), Possession dangerous drug (21/7/1997), Possession dangerous drug (11/9/1996), Possession pipe used in connection with smoking dangerous drug (11/9/1996),
(e)Weapons offences: Carried a controlled weapon (6/9/2019), Possess controlled weapon without excuse (17/10/2014), Firearm possessed – no licence (12/11/1999),
(f)Offences involving public officers and police and court orders and public order offences: Fail to answer bail (two counts) (17/10/2014), Breach Bail Act (contempt) (14/7/2000), Breach of probation (16/11/1999), Assault public officer (12/11/1999), Amphetamine possess with intent (12/11/1999), Obstruct police (8/8/1997), Estreatment of bail (6/4/1994), Bribery (8/7/1988), Use threatening words in public place (26/3/1986), Behave in an offensive manner in public place (3/8/1982).
(Dates indicate recorded dates for convictions)
[62] Not all offences listed.
Records indicate the Applicant also has a number of pending charges including property offence charges and bail related charges. He had an outstanding charge in Brisbane Magistrates Court for ‘Possess utensils or pipes etc for use’ for which he failed to appear and a warrant had been issued.[63] Pending charges in Victoria are recorded for ‘Burglary’, ‘Theft’, ‘Failure to answer bail’, ‘Going equipped to steal/cheat’, ‘Contravene a conduct condition of bail’ (three counts), ‘Attempted burglary’, ‘Possess housebreaking implements’, ‘Deal property suspected proceed of crime’, ‘Burglary’ (three counts) and ‘Theft’ (three counts).[64] These are also detailed in Annexure A.
[63] R2, TB1, page 3.
[64] R2, TB1, pages 2-3.
The Tribunal notes that the most recent ‘Check Results Report’[65] does not include records of several convictions in 1984 which had appeared in an earlier report included in the G-Documents[66] but which the Applicant claimed at the previous hearing had been quashed. This evidence was supported by the WA Police Force ‘History For Court’ which records that these offences were the subject of an appeal and were quashed by the Victorian Criminal Court of Appeal on 24 April 1985.[67] While there was no information to explain the discrepancy in the reports, the Tribunal finds the convictions were quashed and disregards them for the proposes of assessing the Applicants conduct and offending. The quashed convictions are set out in Annexure B. The later record also does not include a May 1992 conviction for ‘Burglary’ in the Kalgoorlie Court of Petty Sessions which appeared in the 2022 report.[68] No explanation for this change was given, however the Tribunal considers it appropriate to rely on the later record and disregards that offence for the purposes of its consideration.
[65] R2, TB1, pages 1-6.
[66] RB1, G5, pages 36-42.
[67] RB1, R7, page 432-441.
[68] RB1, G4, page 32; R2, TB1, page 5.
The records also indicated the Applicant had a number of convictions in Victoria in the 1970s as a juvenile.[69] These are set out in Annexure C. The Respondent submitted that authorities dealing with the treatment of offences as a juvenile[70] did not apply to convictions from Victoria. The Respondent submitted that in any event the Tribunal is able to take into account the underlying conduct where probative material exists of that conduct aside from the finding of guilt itself. However, the Tribunal is not required to resolve that question for the purpose of determining the issues before it and the Minister does not place significance on the Applicant’s conduct that was dealt with by the Melbourne Children’s Court.[71]
[69] RB1, G4; R7, page 439.
[70] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; 97 ALJR 488 (Thornton) and see later application for NSW offending in Crisp v Minister for Immigration, Citizenship and Multicultural Affairs [2024] FCA 252 Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6 (6 March 2024).
[71] R1, page 6-7.
Consistent with the approach taken previously by the Tribunal, given the Applicant’s age at the time of the juvenile offences and the nature of the offences as recorded, the Tribunal does not consider that they contribute to any assessment of the Applicant’s offending and conduct. The Tribunal places no weight on those offences and has no further regard to them.
The details of the Applicant’s offending are considered further below.
Property offences
The Applicant has been convicted of a significant number of property related offences over a 40 year period. As Attachment A details, some of his convictions for those offences were recorded several years after the recorded dates for the offences. When asked about the reason for this discrepancy at the hearing, the Applicant indicated that he thought the old offences were where he had been identified via DNA evidence.[72] This is consistent with the incident reports and charge sheets for those offences where they were included in the material before the Tribunal. The Applicant has recorded convictions for property offences in Western Australia, Victoria, Queensland and South Australia.
[72] TB1, page 662.
As noted above, the offence giving rise to the mandatory cancellation of the Applicant’s visa was a conviction for ‘Home burglary and commit’ for which the Applicant was sentenced to a term of imprisonment of two years and six months.[73] The Applicant was convicted and sentenced of this offence on 6 September 2019.
[73] RB1, G3, page 16; RB1, G23, page 134.
On the same date the Applicant was convicted of a number of other property offences including a ‘Home burglary and commit’ offence and ‘Home burglary with intent’ offence for each of which he received terms of imprisonment of two years to be served concurrently. He was also convicted of one count of ‘Burglary and commit’ for which he received a term of imprisonment of six months (concurrently) and a conviction for ‘Burglary and commit offence in dwelling’ for which he received a term of imprisonment of 12 months to be served cumulatively with his other sentences. On the same date, he was also convicted of four ‘Stealing’ offences, receiving no sentence for those offences. This brought his total effective sentence on that date to three years and six months’ imprisonment.
The offences were all committed in Western Australia between January 2011 and May 2019. The ‘Home burglary and commit’ offence which gave rise to the cancellation was committed on 21 May 2019. The other two ‘Home burglary’ offences were committed on 9 October 2016 and 18 March 2019.[74]
[74] R2, TB1, page 2.
Prior to the convictions on 6 September 2019, the Applicant had a significant number of prior convictions for property offences of a similar nature. The Tribunal has not detailed all those convictions here but has focussed on offences for which the Applicant received prior custodial sentences.
The Applicant’s earliest recorded property offence as an adult was for ‘Robbery’ in 1977 when the Applicant was 18 years old. He received a sentence of 12 months in a youth training centre for that offence. In the early 1980’s, he was convicted in Victoria of several counts of ‘Burglary’ and ‘Attempted burglary’ and ‘Possess house breaking implements’. He received sentences of nine months’ imprisonment for several of those offences, to be served concurrently. His first sentence of imprisonment was in 1980 (three months’ imprisonment to be served by way of an attendance centre order).
In December 1987, the Applicant was convicted of three counts of ‘Break, enter and steal’.[75] The Applicant was convicted with another person with respect to three separate incidents. According to the sentencing judge in at least two of those occasions, alarm systems were deactivated and considerable amounts of property were stolen.[76] The sentencing judge recorded that the offences were carried out in a ‘professional manner’ with ‘foresight and care’. One charge involved a break-in at a Bunnings store and the theft of cash ($2,000) and property. Another involved a break-in at Barnett Brothers with the theft of cash ($586.90). The third was a break-in at Mitchell’s Jewellers involving the theft of cash ($3,000) and jewellery valued between $300,000-$350,000.[77] He received a sentence of one year imprisonment for the theft at Bunnings, one year imprisonment with respect to the theft at Barnett’s and four years’ imprisonment for the theft at Mitchell’s Evington to be served cumulatively for a total sentence of six years’ imprisonment.[78] He appealed against this sentence, and this was dismissed in June 1988. In connection with this offence, the Applicant was also convicted in July 1988 of ‘Bribery’ and received a sentence of six months’ imprisonment. In evidence before the Tribunal, he testified that this offence related to an attempt to pay the arresting officer who apprehended him for the ‘Break, enter and steal’ offences.[79]
[75] RB1, G4, page 34.
[76] RB1, R8, page 498.
[77] RB1, R8, pages 480-481; 492-500, 510.
[78] RB1, R8, pages 492-500, 510; R2, TB1, page 5.
[79] RB1, page 651.
In November 1992, the Applicant was convicted of ‘Building breaking and felony’ in South Australia. He received a sentence of one year imprisonment for this offence.[80] Limited details of these offences are available in the material.
[80] R2, TB1, page 5.
In October 2001, he was convicted of a number of offences including ‘Receiving property obtained by crime’ (two counts) and ‘Enter or in premises and commit indictable offence’. These offences related to a break and enter to a store in June 1998 where the Applicant cut open the roof of the store and entered and stole $30,000 in cigarettes. Telstra lines to the property were cut prior to entry and alarm systems where disabled. The Applicant was apprehended by Police in a vehicle with two other people. A large quantity of cigarettes was found in the vehicle along with cutting equipment.[81]
[81] TB1, R4, page 352-353; TB1, R5, page 395, 420-424.
On the same occasion, the Applicant was also convicted of several counts of ‘Receiving property obtained by crime’ on an unknown date between September 1997 and June 1998 and on an unknown date between May 1998 and June 1998 with respect to property including coins and jewellery located at the Applicant’s home which had been stolen in two earlier break-ins. According to the sentencing judge, the circumstances of the offences were:[82]
…on 25 September 1997 a clothing store in Stanley street, Woolloongabba, in Brisbane, was broken into. It was a forced entry where a security panel was smashed and telephone lines were disarranged. Property stolen from the store was a quantity of clothing and accessories valued at $488,810. You had received part of this clothing and accessories having a wholesale value of $4,000.
…
On 7 May 1998 the house was broken into. Again, a very substantial effort was made to break into these premises and gain entry to the safe. The safe was cut open after this forced entry and coins, notes and opals to a value of $400,000 were stolen. You received property from this break and enter to a value of $60,000. The alarm system again in these premises was disabled, as were the telephone lines…it is also a serious offence in this instance because the value of the property the police recovered from you was $60,000.
With respect to count 3, the complainant conducts a Cut Price store in Emerald. On 6 June 1998 the store was closed and sometime thereafter entry was gained to the store through the roof. Again, a sophisticated security system was disabled. Safes in the premises were also damaged. Tobacco products were stolen to a value of $26,861.04. The salvage value of cigarettes is $14,500. The loss of the tobacco products therefore is $11,500. However, $23,006.32 was also stolen, as were $1,459 in cheques. The roof required repairs of $901.50. The large safe required repair at a cost of $1,000 and a small safe again required repairs at a cost of $312. The security system required $560 to repair. Consequently, those are substantial losses.
[82] RB1, G8, pages 58-60.
The Applicant was on bail for these offences when he absconded to Western Australia. He failed to appear with respect to the offences in January 1999. The Applicant received two sentences of four years’ imprisonment and one of four years and six months to be served concurrently and with time served in pre-sentence custody (388 days).[83]
[83] R2, TB1, page 4.
In August 2004, he was convicted and received a fine and sentence of seven days’ imprisonment for ‘Possessing tainted property’.[84]
[84] R2, TB1, page 4.
In June 2007, the Applicant was convicted of ‘Entering premises and commit indictable offence by break’ along with drug supply charges. With respect to that break and enter offence, the sentencing judge noted that an aggravating feature of the offence was that the Applicant was on bail for the drug offences at the time and also breached parole.[85] The sentencing judge noted that the circumstances of the offence were similar to the offence committed by the Applicant and his co accused in June 1998. The judge noted that:[86]
‘it was a sophisticated offence and it shows that neither of you [the Applicant and his co accused] gained any benefit from the sentence that had been imposed on you for the similar offending previously.’
[85] R2, G7, pages 46-56.
[86] R2, G7, pages 50.
The Applicant received a term of five years’ imprisonment which was suspended for five years after the Applicant served 768 days of imprisonment. He also received two years’ probation. The sentencing judge commented that she hoped the parole and suspended sentence would provide an incentive for the Applicant to stay offence free.[87]
[87] R2, G7, page 52-53.
In 2014, the Applicant was convicted for a number of further property offences, including three counts of ‘Attempted burglary’ and two counts of ‘Going equipped to steal/cheat’ for which he received an aggregate concurrent term of imprisonment of 147 days.[88]
[88] R2, TB1, pages 2-3; RB1, R2, page 177, 188-189.
Weapons offences
The Applicant has been convicted on several occasions with weapons offences. Two of those, a 2019 conviction for carrying a controlled weapon (pepper spray) and a 2014 conviction for possessing a controlled weapon without excuse were at the lower end of seriousness for offending of this type as reflected in their respective sentences of a fine and 14 days’ imprisonment.[89]
[89] R2, TB1 pages 2-3.
Another conviction in 1999 for possessing a firearm without a licence was regarded as more serious by the Courts and attracted a six-month imprisonment sentence.[90] On that occasion, the Applicant was in possession of an (unloaded) semi-automatic pistol which the sentencing judge noted was ‘very easy to conceal’ and had been designed so it could not be traced. His Honour considered the mere possession of that weapon to be ‘an extremely serious matter’.[91] The Applicant was also convicted for assault on that occasion with respect to pointing the gun ‘in the general direction’ of a police officer.[92]
[90] R2, TB1.
[91] RB1, R8, page 540-541.
[92] R2, TB1, page 4.
Offences involving public officers and police orders, violence, or public order offences
As noted above, the Applicant has been convicted of ‘Assault public officer’ in November 1999 for which he received six months’ imprisonment. He was also convicted of obstructing police on that occasion.[93]
[93] R2, TB1, page 4.
He has been the subject of a number of court-imposed bail orders and probation orders which have been breached or not being complied with, for which he has received terms of imprisonment.[94]
[94] See R2, TB1.
He has also been convicted of bribery in 1988 which he testified at the prior hearing was with respect to a police officer during an arrest.[95]
[95] RB1, page 651.
The Applicant was convicted of unlawful assault on several occasions in 1986. He was also convicted of several counts of using threatening words and wilful damage. He received sentences of two months’ imprisonment for two of the assault offences and fines for the other offences.[96]
[96] R2, TB1.
Driving, traffic and drug offences
The Applicant has a significant number of driving and drug related convictions recorded.
With respect to the drug offences, his first recorded offences were for possession in 1996 and 1997 for which he received fines and short prison terms of between one month and two days. He was also convicted of possession offences in 2014 for which he was sentenced to a community corrections order.[97]
[97] R2, TB1; RB1, pages 182-187.
His more serious drug convictions were in 1999 and 2007. In 1999, he was convicted of one count of possessing methamphetamine with intent.[98] The offence occurred in June 1999 outside a nightclub in a suburb of Perth. The Applicant was apprehended in possession of 16.8 grams of ‘low grade’ methamphetamine which in the sentencing judges’ words was ‘the sort of grade that would be sold or you would sell in a nightclub’. As noted above, the Applicant was also in possession of an unloaded semi-automatic pistol at the time. The Applicant’s plea in mitigation was that the drugs were not to be supplied but were to be shared with friends with whom he had purchased the drugs. He also claimed the pistol was not his. The sentencing judge noted that ‘even allowing for that, these are extremely serious offences.’[99] He received a cumulative sentence of two years’ imprisonment for the possession with intent offence.[100]
[98] R2, TB1, page 4.
[99] RB1, R8, page 541.
[100] R2, TB1, page 4.
In 2007, the Applicant was convicted of possessing and supplying dangerous drugs, as well as possessing utensils or pipes for use. Those convictions arose from a joint Queensland Police and Australian Crime Commission investigation into the Applicant and another person commenced which in May 2004.[101] The convictions related to the supply of methamphetamine between July and August 2004 in Brisbane. According to the Court briefs before the Tribunal, the Applicant and another person were involved in the possession and distribution of methamphetamine to ‘wholesalers and street dealers’ in Southeast Queensland. He received a sentence of five years’ imprisonment on the supplying dangerous drugs charges together with the break and enter conviction on the same date.[102] The sentence was suspended for five years with two years’ probation taking account of the 768 days that the Applicant had already served in prison. The sentencing remarks contained the following detail of the applicant’s offending:[103]
You were caught in telephone intercepts speaking to one Neil Leitter on a couple of occasions and this has resulted in the two counts of supply in mid-2004. The gist of the conversations suggested supplies that had taken place previously and arrangements to make other supplies. The monetary amounts that Mr Leitter has suggested to the police was involved puts the supplies at a less serious end of that offending, but when it is taken in conjunction with your criminal history, they are still serious offences.
…
[101] RB1, R4, page 365.
[102] R2, TB1, page 3-4.
[103] RB1, G7, pages 49-50.
The Applicant has also been convicted of a number of traffic and driving offences, including repeatedly being convicted for driving without a licence, driving unlicenced vehicles and driving in a dangerous manner. His first driving disqualification appears to have been for driving in a manner dangerous in 1986. His most recent conviction for driving without a licence was in November 2018.[104]
[104] R2, TB1.
Pending charges
In addition to the convictions detailed above, the documents before the Tribunal indicated the Applicant has pending charges for a range of offences in Victoria including burglary, theft, going equipped to steal/cheat, possessing housebreaking implements and dealing in property suspected of being the proceeds of crime.[105] There are also two listed warrants for outstanding charges in Queensland for entering premises with intent to commit an indictable offence and possessing utensils or pipes for use. At the hearing, the Applicant said he knew about pending charges as Police had approached his parents about them, but he was not aware of the details and did not know if he would be transferred into Victorian Police custody on release from prison in Western Australia to face those charges.[106] For the reasons outlined below, the Tribunal considers the existence of pending charges does not add to the overall assessment of the seriousness of the Applicant’s conduct and offending.
[105] R2, TB1; RB1, G4.
[106] RB1, page 666-668.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case,
a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[107]
[107] Migration Act s 501(7)(c).
The Tribunal finds that the Applicant was sentenced to a total term of imprisonment of three years and six months for the burglary offences stated above and, as a result, has a ‘substantial criminal record’ as defined in s 501(7) of the Migration Act. Therefore, he does not pass the character test under s 501(6)(a) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[108]
[108] See Migration Act s 501CA(4)(b)(i).
THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked.
The Applicant’s core contentions with respect to the reasons why the Cancellation Decision should be revoked are set out in his request for revocation[109], personal circumstances form[110], supporting and supplementary statements[111], his application for review[112] and statements submitted to the Tribunal.[113] They were supported by oral submissions and testimony to the Tribunal[114]. The Applicant’s submissions were, in summary:[115]
[109] RB1, G17, pages 95-97.
[110] RB1, G18, pages 102 – 115.
[111] RB1, G19-21, pages 117-127.
[112] RB1, G2.
[113] RB1, pages 543-555; A1-A10.
[114] RB1, pages 683-686; Transcript, pages 18-19, 62-63.
[115] RB1, G17, G18, G21, ExA1 page 543, ExA2, page 545.
·He came to Australia as a young child. He has no family in Serbia and has not returned there or lived there since coming to Australia.
·His brother has died, and he needs to be with his elderly parents who are Australian citizens to care for them and support them as they are his remaining family. His parent’s health is declining, and they do not want to enter a nursing home so are in need of home care. He is the only person who can provide that care. His father has Chronic Lymphatic Leukemia and Lymphocytosis and his mother has memory/cognitive changes.[116]
·He has reformed including undertaking the Pathway’s Program and an Anger Management course.[117] This combined with his age and his responsibility for caring for his parents will prevent him from reoffending. He has been engaging in detention with the Psychologist and psychiatrist for PTSD, depression and anxiety.[118]
·He has no adverse incidents recorded against him since entering detention.[119]
·He wished to be buried with his family members in Australia.
·His only son lives in Australia and is an Australian citizen and while he has not had contact with him in many years, he wished to reconcile with him, and this would be better able to be achieved if he remains in Australia.
·The Applicant is of poor health, including stomach ulcers, Hodgkin’s lymphoma in remission and heart issues. He is reliant on medical care in Australia to maintain his health. He would not be able to access medical services, or adequate medical services in Serbia.
·He was a victim of child sexual abuse and has been included in the National Redress Scheme.[120]
·He has not lived or worked in Serbia and would not be entitled to social security supports.
·He would be persecuted in Serbia because he never undertook compulsory military service.
·He is an ‘absorbed person’ in Australia and should not be deported. His offending was caused by early problems as a migrant, his abuse by a priest as a child and drug use. These are problems he suffered because he was in Australia, and he should be treated compassionately because of them.
[116] A4, A8, A9.
[117] A1, A2, A10.
[118] A1.
[119] A1.
[120] A1.
The Applicant stressed before the Tribunal that he had reformed and was seeking compassion in light of his circumstances.[121]
[121] Transcript, page 19.
The Respondent submitted that the Applicant had a lengthy criminal record with multiple prison sentences, including lengthy sentences which reflected the seriousness of his offending. The Respondent submitted in summary:[122]
·The Applicant’s criminal history was lengthy and included offending which occurred after formal warnings regarding potential immigration consequences had been issued. His offending was objectively very serious.
·The nature of the harm which would be caused if the Applicant were to reoffend was serious including financial harm from property offences and drug related harm. The nature of the harm is so serious that any risk of reoffending is unacceptable.
·The Applicant has failed to cease offending in the past despite significant prison sentences and treatment programs. His rehabilitation during his most recent sentence has not been tested in the community and there is an ongoing and unacceptable risk he will reoffend. He has unmet treatment needs and was denied parole.[123]
·The protection of the Australian community weighs against revocation.
·The Applicant’s immediate family is limited to his parents and his son. He has not seen his son in more than 15 years. His parents have professional and family support to assist with their care and there is no evidence they would not continue to receive this if the visa remains cancelled. There is limited evidence from his extended family. While he has lived in the community for an extended period less weight should be placed on this where there is limited evidence of any positive contribution to the Australian community.
·Notwithstanding the length of time the Applicant has been in Australia, the expectations of the Australian community weigh heavily in favour of the visa remaining cancelled.
·Legal consequences of the decision do not weigh in favour of revoking the cancellation having regard to the general nature of the Applicant’s concerns regarding return to Serbia which are unsupported by evidence or country information and the fact an examination of any claims for protection can be deferred to a protection visa application if one was to be made.
·While the applicant may face some difficulty establishing himself in Serbia he would have the same access to social, medical and economic supports as other citizens of Serbia. While this consideration weighs in the Applicant’s favour it does not outweigh other considerations.
[122] RSFIC.
[123] RB1, page 669.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind 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 this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[124]
[124] See also Direction No 99 para 8(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to 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.
The Applicant submitted that if the Cancellation Decision was revoked, he would not reoffend, and the protection of the Australian community did not require that his visa remain cancelled.
The Respondent contended that the protection of the Australian community weighed very heavily against revocation of the Cancellation Decision.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[125] In doing so, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[126]
[125] Direction No 99 para 8.1(2).
[126] Direction No 99 para 8.1.1(1)(a) and See also Direction No 90 para 8.1(2)(a).
Paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to:[127]
[127] See also Direction No 99 para 8.1(2)(a).
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i. violent and/or sexual crimes;
ii.crimes of a violent nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. 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;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, 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, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)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);
h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has summarised the history of the Applicant’s conduct and offending above.
In the Tribunal’s view, none of the Applicant’s crimes or offences as an adult and as evidenced before the Tribunal are properly characterised as “sexual crimes” or ‘’crimes of a violent nature against women or children”. The Tribunal notes that the delegate ‘note[d] with concern’ that the Applicant had a recorded offence as a juvenile for ‘Indecent assault on a female’ in 1973. In submissions before the previous Tribunal, the Respondent contended this should be characterised as a ‘violent offence’.[128] Those submissions were not pressed on the remittal[129] and while the Tribunal accepts an indecent assault against a woman may be characterised as a sexual crime or a ‘crime of a violent nature against a woman’ there was very little information before the Tribunal regarding the circumstances or nature of that offence and given the Applicant’s very young age at the time (around 14 years old) the Tribunal does not consider it would appropriate to place and weight on that offence in its assessment.
[128] RB1, page 562.
[129] RSFIC, at [30].
In the Tribunal’s view some of the Applicant’s offences may be characterised as ‘violent crimes’ including his convictions for assault, unlawful assault and assault on a public officer. Some of these convictions were minor, attracting only fines. Two attracted prison sentences of between two to six months. With respect to the most serious of those, the assault on a public officer, the assault involved pointing an unlicenced semi-automatic pistol (albeit not loaded) at a police officer.[130] The sentencing judge considered the possession of the firearm to be ‘an extremely serious matter’ and the matters for which the Applicant was convicted arising from that incident to be ‘extremely serious matters’, notwithstanding the Applicant’s plea in mitigation.[131]
[130] R2, TB1.
[131] RB1, R8, page 541.
While the Tribunal considers these crimes can be characterised as ‘violent crimes’, the Tribunal finds that in the Applicant’s case the assault offences are at the lower end of seriousness for violent offending and that violence does not feature strongly in the Applicant’s conduct or offending. However, it does contribute to the overall assessment of the seriousness of his offending or conduct, and to the assessment of the nature of harm which might be caused should he reoffend in the future (below).
Paragraph 8.1.1(1) of Direction No 99 also provides that the Tribunal must have regard to specific types of crimes or conduct which are considered ‘serious’ by the Australian Government and the Australian community.[132] One of those relates to crimes committed against Government representatives or officials in the performance of their duties.[133] The Applicant has been convicted of assault on a public officer. He also has convictions for bribery and obstructing police.[134] Applying the Direction, the Tribunal considers those offences to be serious.
[132] Direction No 99 para 8.1.1(1)(b)(i)-(iv).
[133] Direction No 99 para 8.1.1(1)(b)(ii).
[134] R2, TB1.
In any event, the types of crimes which may be considered to be serious or very serious is not limited to those specified in paragraph 8.1.1(1).
The Tribunal must also have regard to the sentences imposed by the Courts, the frequency of the offending and/or whether there is any trend of increasing seriousness and the cumulative effect of repeat offending.[135] The Tribunal must also consider whether the non-citizen has re-offended since being formally warned of the consequences of further offending for the Applicant’s migration status.[136] These factors are considered further below.
[135] Direction No 99 para 8.1.1(1)(c)-(e).
[136] Direction No 99 para 8.1.1(1)(f).
Paragraph 8.1.1(1)(b)(iv) of Direction No 99 provides that a crime committed by the non-citizen in immigration detention is another type of conduct that is to be regarded as ‘serious’. There is no information before the Tribunal that any of the Applicant’s conduct or offending falls into this category. Likewise, the Tribunal considers that additional matters in paragraph 8.1.1(1)(f) or (h) of Direction No 99 do not arise on the information before the Tribunal and are not relevant to the Tribunal’s consideration of the nature and seriousness of his conduct.
In the Tribunal’s view, the Applicant’s offending is very serious. This is the case both considering individual instances of his most serious property offending and in considering his offending record overall. The Applicant has engaged in organised and professionally executed property crimes which at times involved stolen goods of significant value. He broke into private homes and businesses. On his own evidence, he has committed crimes in every State of Australia in which he has lived. He did so alone and in concert with others. He did so despite repeatedly receiving significant prison sentences.
The Applicant has also engaged in repeated drug offending including several convictions for possession with intent for which he received custodial sentences. As observed by the sentencing judge with respect to the first of his convictions for possession of methamphetamine with intent, those offences were ‘extremely serious matters’ and the offences were ‘serious’ even having regard to the difficulties of the Applicant’s personal history as a migrant and as a victim of child abuse.[137]
[137] RB1, R8, page 541.
Considering the sentences imposed by the Courts, the Tribunal notes that the Applicant has been convicted on three occasions to effective terms of more than four years imprisonment. Although the Applicant received sentences that were significantly less than the maximum penalties available, he has nevertheless received multiple lengthy prison sentences.[138] Sentences of imprisonment are not imposed lightly and the Tribunal considers that those sentences of imprisonment are significant and reflect the serious nature of the Applicant’s offending.
[138] Direction No 99 para 8.1.1(1)(c).
The Applicant’s more serious offending is also interspersed with what might individually be considered to be less serious offences including breach of bail, breach of probation, driving offences and conduct offences. For some of these offences, the Applicant received non-custodial sentences, fines and community-based orders reflecting the less serious nature of those offences and mitigating factors considered by the courts. However, considered in the context of his long history of persistent and repeated offending, the Tribunal considers that these offences, many of them repeated over the course of 40 years, contribute to the assessment of the Applicant’s conduct and offending as very serious.
With respect to the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness in the Applicant’s offending,[139] the Tribunal considers that although there are periods where the Applicant had no recorded offences, these are the exception and those periods are significantly overshadowed by the length of his criminal history as an adult spanning some 40 years. During that period the Tribunal considers the Applicant’s offending can properly be characterised as frequent. As to the trend in increasing seriousness, the seriousness of the offending has remained consistently serious, with more serious offences interspersed with less serious offences. It might be said that his drug offending increased in seriousness from the 1999 offences to those for which the Applicant was convicted in 2004, reflected in the more significant sentence imposed for the later offences. However, in the Tribunal’s assessment, the frequency of the Applicant’s offending is more a feature of his overall offending than its increasing seriousness.
[139] Direction No 99 para 8.1.1(1)(d).
The Tribunal considers that there is a significant cumulative effect of repeated offending in the Applicant’s case, given the number of offences committed, numerous court attendances and sentences of imprisonment, including breaches of court-imposed orders. This has the effect of burdening the resources of Police, the Courts and corrective services.[140] In the Applicant’s case, that burden has been borne by four separate jurisdictions, requiring additional resources for enforcement actions including extradition proceedings and transfer between jurisdictions. It has also resulted in proceedings in some jurisdictions remaining unresolved for extended periods which places further burdens on public resources.
[140] Direction No 99 para 8.1.1(1)(e).
The Tribunal does not consider that there was any legal basis for a submission that the provisions of s 501 did not or could not apply to the Applicant because he had spent most of his life in Australia. The sources quoted by the Applicant related to suggested amendments to the Migration Act which do not form part of Australian law. The Applicant’s links to the Australian community have been considered earlier by the Tribunal and weighed in the Applicant’s favour, this includes placing weight on the length of time he has spent in Australia. The Tribunal considers that, beyond the principles outlined Direction No 99 which were considered earlier particularly under the consideration of the strength, nature and Duration of his ties to Australia and also under the consideration of the expectations of the Australian community, the Applicant’s claimed status as an absorbed person does not provide ‘another reason’ why the mandatory cancellation of the Applicant’s visa should be revoked. The Tribunal does not place any weight on this as a separate consideration in the Applicant’s circumstances.
WEIGHING AND CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason the Cancellation Decision should be revoked, having regard to the primary and other relevant considerations in Direction No 99.
Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99).[263] Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[264] While the Court was considering Direction No 90, it’s observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[265]
[263] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[264] [2023] FCAFC 138.
[265] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction No 99 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal notes that while much of the evidence was the same as that offered at the time the Tribunal last considered the application, on remittal the Tribunal is applying a different direction which included changes relevant to the Applicant’s circumstances.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs against revocation of the cancellation of the Applicant’s visa and that the consideration weighs heavily against revocation.
The consideration of family violence is not relevant in the Applicant’s circumstances and the Tribunal gives it no weight.
The strength, nature and duration of the Applicant’s ties to Australia weigh heavily in favour of revoking the Cancellation Decision.
There were no children whose best interests were identified as being impacted by the decision, and the Tribunal affords no weight to that consideration.
The expectations of the Australian community, weigh against revocation of the Cancellation Decision and the Tribunal considers the consideration carries moderate weight in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that the legal consequences of the decision weigh neutrally in the Applicant’s case. The extent of impediments if removed weighs heavily in favour of revoking the cancellation of the Applicant’s visa. The impact on the victims weighs neutrally. The Tribunal has found that the impact on Australian businesses also weighs neutrally in the Applicant’s circumstances.
The Applicant’s case is finely balanced. By any measure he has a serious and prolonged history of offending against the laws of Australia. While he has taken steps towards rehabilitation there is a significant risk he will continue to use illicit drugs and commit further offences. The Australian community would expect his visa to be cancelled and while they would have more tolerance for his offending given he came to this country as a child, his persistent offending diminishes such tolerance.
Balanced against this, it must be recognised that the Applicant has been in Australia most of his life and considers himself to be Australian. Many in the community would share this view. He has no noted family ties outside Australia and his elderly parents testified they need his assistance with their care to remain in their home. However, his offending has cost him his close ties in Australia, including with his son with whom he has not had contact for many years and now a grandchild he has never seen. He is not a young man and has had significant health challenges in the past. Some of those issues are ongoing. In addition he is receiving support to deal with the impact of historical sexual abuse as a child. He is seeking redress for this through the National Redress Scheme. Given his age, lack of work history and health issues, he faces significant challenges maintain basic living standards if removed to Serbia.
In weighing these considerations against one another, the Tribunal is mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. However, in the Applicant’s case the Tribunal considers that the primary considerations of the strength, nature, and duration of the Applicant’s ties to Australia which weighed heavily in favour of revocation and the extent of impediments if removed which also weighed heavily in favour of revocation of the Cancellation Decision, outweighed the considerations that weighed against the revocation of the Cancellation Decision. Those were the primary considerations of the protection of the Australian community which weighed heavily in favour of revocation and the expectations of the Australian community which weighed moderately in favour of revocation.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the Non-Revocation Decision and substitute with a decision that the cancellation of the applicant’s visa is revoked.
DECISION
The decision of the delegate of the Respondent dated 31 August 2022 not to revoke the cancellation of the Applicant’s Class BF transitional (permanent) visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding two hundred and ninety nine (299) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford
............................[Sgd]............................................
Associate
Dated: 18 April 2024
Date of hearing: 15 November 2023 Applicant: In person Solicitors for the Respondent: Ms Daphne Jones-Bolla, Sparke Helmore Lawyers ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING AS AN ADULT[266]
[266] For reasons outlined in the decision, the Tribunal has not included details of the Applicant’s recorded offences as a juvenile in consideration of his offending history.
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 17 October 2023,[267] and the Western Australia Police Force ‘History For Court’,[268] compiled on 28 September 2022 and the Queensland Police ‘Queensland Court Outcomes’[269] dated 4 October 2022.
[267] R2, TB1, pages 1-6.
[268] RB1, R7, page 432-441.
[269] RB1, R4, page 335-336.
Conviction Date Court Offence Offence Date(s) Court Result 1. 1 June 1977 Melbourne County Court Robbery Unknown 12 months youth training centre 2. 19 August 1980 Melbourne Magistrates Court Burglary Unknown $500 fine, to pay $1.30 costs 3. 10 October 1980 Melbourne Magistrates Court Unlawfully on premises/precinct Unknown $200 fine, to pay $40 costs 4. 10 October 1980 Melbourne Magistrates Court Burglary Unknown Three months to be served by way of attendance centre order 5. 27 April 1981 Fitzroy Magistrates Court Burglary Unknown Four months’ imprisonment 6. 22 June 1982 Prahran Magistrates Court Unlicensed driving Unknown Seven days imprisonment concurrent 7. 22 June 1982 Prahran Magistrates Court Possess housebreaking implements Unknown Three months’ imprisonment, concurrent 8. 22 June 1982 Prahran Magistrates Court Burglary Unknown Nine months’ imprisonment 9. 22 June 1982 Prahran Magistrates Court Burglary Unknown Nine months’ imprisonment 10. 22 June 1982 Prahran Magistrates Court Burglary Unknown Nine months’ imprisonment 11. 22 June 1982 Prahran Magistrates Court Burglary Unknown Nine months’ imprisonment concurrent 12. 22 June 1982 Prahran Magistrates Court Burglary Unknown Nine months’ imprisonment concurrent 13. 22 June 1982 Prahran Magistrates Court Attempted burglary Unknown Nine Months’ imprisonment concurrent 14. 3 August 1982 Prahran Magistrates Court Behave in offensive manner public place Unknown $100 fine, pay $9 costs 15. 26 March 1986 Camberwell Magistrates Court Wilfully damage property Unknown $250 fine 16. 26 March 1986 Camberwell Magistrates Court Unlawful assault Unknown Two months’ imprisonment 17. 26 March 1986 Camberwell Magistrates Court Use threatening words in public place Unknown $100 fine 18. 26 March 1986 Camberwell Magistrates Court Drive in a manner dangerous Unknown $500 fine and disqualified for obtaining licence for 6 months 19. 26 March 1986 Camberwell Magistrates Court Drive whilst disqualified Unknown One months’ imprisonment concurrent 20. 4 July 1986 Melbourne Magistrates Court Unlawful assault Unknown $250 fine 21. 4 July 1986 Melbourne Magistrates Court Drunk in a public place Unknown $25 fine 22. 7 January 1987 Norseman Court of Petty Sessions Speeding by more than 10km/Hr but less than 20km/Hr 23 August 1986 $60 fine 23. 1 December 1987 Perth District Court of Western Australia Break enter and steal 4 September 1986 Six years’ total imprisonment for all three charges 24. 1 December 1987 Perth District Court of Western Australia Break enter and steal 4 September 1986 Six years’ total imprisonment for all three charges 25. 1 December 1987 Perth District Court of Western Australia Break enter and steal 4 September 1986 Six years’ total imprisonment for all three charges 26. 8 July 1988 Perth Court of Petty Sessions Attempted Bribery Unknown Six months’ imprisonment concurrent 27. 6 April 1994 Holden Hill Magistrates Court Estreatment of bail Unknown $1,000 fine 28. 18 May 1992 Kalgoorlie Court of Petty Sessions Burglary Unknown Two years’ probation 29. 25 November 1992 Holden Hill Magistrates Court Building breaking and felony Unknown One year imprisonment, non-parole period of nine months 30. 11 September 1996 Brisbane Magistrates Court Possession of dangerous drug (cannabis) 28 August 1996 $250 fine, in default imprisonment five days, time to pay: four months 31. 11 September 1996 Brisbane Magistrates Court Possession of pipe used in connection with smoking dangerous drug (cannabis) 28 August 1996 $100 fine, in default imprisonment two days, time to pay: four months 32. 21 July 1997 Brisbane Magistrates Court Possession of dangerous drug (cannabis) 30 June 1997 $600 fine, in default imprisonment one month, time to pay: two months 33. 8 August 1997 Brisbane Magistrates Court Obstruct Police 25 July 1997 $150 fine, in default imprisonment five days, time to pay: four months 34. 8 August 1997 Brisbane Magistrates Court Possession of dangerous drug (cannabis) 25 July 1997 $600 fine, in default imprisonment 20 days, time to pay: four months 35. 12 November 1999 Perth District Court of Western Australia Assault public officer 13 June 1999 Six months’ imprisonment 36. 12 November 1999 Perth District Court of Western Australia Firearm possessed no licence 13 June 1999 Six months’ imprisonment cumulative, three years total imprisonment 37. 12 November 1999 Perth District Court of Western Australia Amphetamine possess with intent 13 June 1999 Two years’ imprisonment cumulative 38. 16 November 1999 Perth Court of Petty Sessions Breach of probation (order of 18 May 1992) 13 June 1999 Three months’ imprisonment 39. 14 July 2000 Brisbane Magistrates Court Breach Bail Act (Contempt) 11 January 1999 Four months’ imprisonment 40. 19 October 2001 Brisbane District Court Receiving property obtained by a crime On a date unknown between 24 September 1997 and 10 June 1998 Four years’ imprisonment 41. 19 October 2001 Brisbane District Court Receiving property obtained by a crime On a date unknown between 5 May 1998 and 10 June 1998 Four years and six months’ imprisonment 42. 19 October 2001 Brisbane District Court Enter or in premises and commit indictable offence 8 June 1998 Four years’ imprisonment, non-parole period of 18 months
(Declare that time spent in pre-sentence custody be deemed as time already served)
43. 12 August 2004 Redcliffe Magistrates Court Possess tainted property 20 June 2004 $350 fine, in default imprisonment seven days 44. 20 June 2007 Brisbane Supreme Court Possession dangerous drugs (Cannabis) 13 May 2005 No further penalty imposed 45. 20 June 2007 Brisbane Supreme Court Possess utensils or pipes etc for use 13 May 2005 No further penalty imposed 46. 20 June 2007 Brisbane Supreme Court Supplying dangerous drugs specified in Schedule One (methylamphetamine) 29 July 2004 – 10 August 2004 Five years’ imprisonment, suspended for five years after serving 768 days 47. 20 June 2007 Brisbane Supreme Court Supplying dangerous drugs specified in Schedule One (methylamphetamine) 29 July 2004 – 10 August 2004 Five years’ imprisonment, suspended for five years after serving 768 days 48. 20 June 2007 Brisbane Magistrates Court Enter premises and commit indictable offence by break 8 May 2005 Five years’ imprisonment, suspended for five years after serving 768 days 49. 2 September 2009 Melbourne Magistrates Court Criminal Damage (intent damage/destroy) Unknown Without conviction, adjourned to 2 September 2010 50. 28 September 2011 Perth Magistrates Court Unlicensed vehicle (not owner) 15 August 2011 $50 fine 51. 28 September 2011 Perth Magistrates Court No authority to drive – never held 15 August 2011 $200 fine 52. 21 October 2011 Perth Magistrates Court Unlicenced vehicle (permit use) 21 September 2011 $200 fine 53. 1 November 2011 Perth Magistrates Court No authority to drive – never held 7 September 2011 $150 fine, disqualified for three months, concurrent 54. 1 November 2011 Perth Magistrates Court False number plate (not issued for that vehicle) 7 September 2011 $400 fine 55. 1 November 2011 Perth Magistrates Court Unlicensed vehicle (not owner) 7 September 2011 $50 fine 56. 17 October 2014 Melbourne Magistrates Court Fail to answer bail 4 May 2012 Community correction order for up to 12 months 57. 17 October 2014 Melbourne Magistrates Court Fail to answer bail 15 January 2014 Community correction order for up to 12 months 58. 17 October 2014 Melbourne Magistrates Court Possess cannabis 27 March 2014 Community correction order for up to 12 months 59. 17 October 2014 Melbourne Magistrates Court Possess cannabis 27 March 2014 Community correction order for up to 12 months 60. 17 October 2014 Melbourne Magistrates Court Possess cannabis 29 May 2014 Community correction order for up to 12 months 61. 17 October 2014 Melbourne Magistrates Court Posses methylamphetamine 27 March 2014 Community correction order for up to 12 months 62. 17 October 2014 Melbourne Magistrates Court Intentionally damage property 7 March 2013 14 days imprisonment concurrent 63. 17 October 2014 Melbourne Magistrates Court Possess controlled weapon without excuse 17 March 2010 14 days imprisonment concurrent 64. 17 October 2014 Melbourne Magistrates Court Go equipped to steal/cheat 29 May 2014 147 days imprisonment concurrent 65. 17 October 2014 Melbourne Magistrates Court Go equipped to steal/cheat 3 July 2014 147 days imprisonment concurrent 66. 17 October 2014 Melbourne Magistrates Court Attempted burglary 3 July 2014 147 days imprisonment concurrent 67. 17 October 2014 Melbourne Magistrates Court Attempted burglary 3 July 2014 147 days imprisonment concurrent 68. 17 October 2014 Melbourne Magistrates Court Attempted burglary 3 July 2014 147 days imprisonment concurrent 69. 14 July 2016 Perth Magistrates Court No authority to drive (never held) 27 Mat 2016 $300 fine, disqualified for three months, cumulative 70. 6 November 2018 Merredin Magistrates Court No authority to drive (never held) 25 May 2018 $400 fine, disqualified for three months, cumulative 71. 6 November 2018 Merredin Magistrates Court Provided false or misleading personal details 25 May 2018 $500 fine 72. 6 September 2019 Joondalup Magistrates Court Stealing 5 October 2016 No penalty 73. 6 September 2019 Joondalup Magistrates Court Stealing 14 January 2011 No penalty 74. 6 September 2019 Joondalup Magistrates Court Stealing 18 March 2019 No penalty 75. 6 September 2019 Joondalup Magistrates Court Stealing 21 May 2019 No penalty 76. 6 September 2019 Joondalup Magistrates Court Burglary and commit 5 October 2016 Six months’ imprisonment concurrent 77. 6 September 2019 Joondalup Magistrates Court Home burglary and commit 18 March 2019 Two years’ imprisonment concurrent 78. 6 September 2019 Joondalup Magistrates Court Home burglary and commit 21 May 2019 Two years six months’ imprisonment concurrent 79. 6 September 2019 Joondalup Magistrates Court Burglary and commit offence in dwelling 14 January 2011 12 months’ imprisonment cumulative 80. 6 September 2019 Joondalup Magistrates Court Home burglary with intent 9 October 2016 Two years’ imprisonment concurrent 81. 6 September 2019 Joondalup Magistrates Court Possess a prohibited drug (Methylamphetamine) 21 May 2019 $500 fine 82. 6 September 2019 Joondalup Magistrates Court Carried a controlled weapon 21 May 2019 $500 fine
TABLE OF THE APPLICANT’S PENDING CHARGES
Conviction Date State Jurisdiction Offence Offence Date(s) Court Result 1. Pending charge Queensland Enter premises with intent to commit indictable offence 26 January 2014 – 29 January 2014 Failure to appear on 28 March 2014, outstanding warrant issued 2. Pending charge Queensland Possess utensils or pipes etc for use 7 March 2014 Failure to appear on 28 March 2014, outstanding warrant issued 3. Pending charge Victoria Burglary 18 August 2014 Not yet determined by a court 4. Pending charge Victoria Burglary 18 August 2014 Not yet determined by a court 5. Pending charge Victoria Burglary 18 August 2014 Not yet determined by a court 6. Pending charge Victoria Theft 18 August 2014 Not yet determined by a court 7. Pending charge Victoria Theft 18 August 2014 Not yet determined by a court 8. Pending charge Victoria Theft 18 August 2014 Not yet determined by a court 9. Pending charge Victoria Possess housebreaking implements 16 June 2015 Not yet determined by a court 10. Pending charge Victoria Deal property suspected proceed of crime 16 June 2015 Not yet determined by a court 11. Pending charge Victoria Attempted burglary 16 June 2015 Not yet determined by a court 12. Pending charge Victoria Contravene a conduct condition of bail 6 July 2017 Not yet determined by a court 13. Pending charge Victoria Contravene a conduct condition of bail 6 July 2017 Not yet determined by a court 14. Pending charge Victoria Contravene a conduct condition of bail 6 July 2017 Not yet determined by a court 15. Pending charge Victoria Going equipped to steal/cheat 15 September 2017 Not yet determined by a court 16. Pending charge Victoria Theft 15 September 2017 Not yet determined by a court 17. Pending charge Victoria Burglary 15 September 2017 Not yet determined by a court 18. Pending charge Victoria Fail to answer bail 29 December 2017 Not yet determined by a court 19. Pending charge Victoria Burglary 14 December 2020 Not yet determined by a court 20. Pending charge Victoria Theft 14 December 2020 Not yet determined by a court ANNEXURE B – TABLE OF THE APPLICANT’S OFFENCES RECORDED AS QUASHED ON APPEAL
Table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report’ run on 21 March 2022[270] and the Western Australian Police Force ‘History For Court – Criminal and Traffic’ complied 28 September 2022.[271]
[270] RB1, G4. The Tribunal notes that there were some discrepancies between this report and the earlier Australian Criminal Intelligence Commission ‘Check Results Report’ run on 9 April 2020. Comparing the records, the earlier report appeared to duplicate some offences. The Tribunal has preferred the record in the most recent report as a more accurate record of the Applicant’s disclosable court outcomes.
[271] RB1, R7, pages pages 432-441.
Conviction Date Court Offence Offence Date(s) Court Result 1. 29 May 1984 – Quashed 24 April 1985 Victoria Interstate Court Possess housebreaking implements Unknown Four months’ imprisonment 2. 29 May 1984 –
Quashed 24 April 1985
Victoria Interstate Court Possess housebreaking implements Unknown Four months’ imprisonment 3. 29 May 1984 –
Quashed 24 April 1985
Victoria Interstate Court Possess housebreaking implements Unknown Four months’ imprisonment 4. 29 May 1984 –
Quashed 24 April 1985
Victoria Interstate Court Possess housebreaking implements Unknown Four months’ imprisonment 5. 21 June 1984 –
Quashed 24 April 1985
Victoria Interstate Court Theft Unknown Two months’ imprisonment 6. 21 June 1984 –
Quashed 24 April 1985
Victoria Interstate Court Burglary Unknown Four months’ imprisonment 7. 21 June 1984 –
Quashed 24 April 1985
Victoria Interstate Court Theft Unknown Two months’ imprisonment 8. 21 June 1984 –
Quashed 24 April 1985
Victoria Interstate Court Burglary Unknown Four months’ imprisonment ANNEXURE C – TABLE OF THE APPLICANT’S JUVENILE DISCLOSABLE COURT OUTCOMES[272]
[272] For reasons outlined in the decision, the Tribunal has not included details of the Applicant’s recorded offences as a juvenile.
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report’ run on 21 March 2022[273] and the Western Australian Police Force ‘History For Court – Criminal and Traffic’ complied 28 September 2022.[274]
[273] RB1, G4. The Tribunal notes that there were some discrepancies between this report and the earlier Australian Criminal Intelligence Commission ‘Check Results Report’ run on 9 April 2020.
[274] RB1, R7, page 439.
Conviction Date Court Offence Offence Date(s) Court Result 1. 23 November 1972 Melbourne Children’s Court Protection application Unknown 52 weeks probation 2. 28 September 1973 Melbourne Children’s Court Shop break and steal Unknown 52 weeks probation 3. 14 December 1973 Melbourne Children’s Court Indecent assault on female Unknown $20 fine 4. 30 May 1974 Melbourne Children’s Court Unlawful possession Unknown 14 days youth training centre 5. 18 October 1976 Melbourne Magistrates Court Unlawfully on premises Unknown $50 fine
- AGLC
- Dobrosavljevic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 775
- Case
- [2024] AATA 775
- Decision Date
CaseChat Overview and Summary
The Tribunal was required to determine whether the applicant passed the character test as defined by section 501(6) of the *Migration Act*, and if not, whether there was another reason why the cancellation decision should be revoked. This reconsideration occurred after the Federal Court remitted the matter due to a previous Tribunal error in its reasoning regarding the applicant's risk of relapsing into drug use or engaging in criminal offences if returned to Serbia.
The Tribunal considered the applicant's extensive criminal history, which commenced in 1977 and included a range of offences such as property, drug, traffic, assault, and weapons offences, culminating in a conviction for home burglary in 2019 for which he received a significant custodial sentence. In its reasoning, the Tribunal applied Direction No 99, which outlines considerations for visa refusal and cancellation, including the protection of the Australian community, the nature and seriousness of offending, the risk of future offending, the strength and duration of ties to Australia, the best interests of children, community expectations, and impediments to removal. The Tribunal found that the risk of the applicant relapsing into drug use or engaging in criminal offences if returned to Serbia was an impediment that weighed in favour of revoking the visa cancellation.
Having regard to all the considerations under Direction No 99, the Tribunal concluded that there was another reason why the cancellation decision should be revoked. Consequently, the Tribunal set aside the delegate's decision not to revoke the visa cancellation and substituted it with a decision to revoke the cancellation of the applicant's visa under section 501CA(4)(b)(ii) of the *Migration Act*.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
On 22 January 2020, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the MigrationAct) on the basis that he had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[5] The Applicant requested revocation of the Cancellation Decision on 24 February 2020.[6] [5] Migration Act ss 501(6)(a) and 501(7)(c); R1, G3, pages 11-30.[6] R1, G17. On 31 August 2022, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[7] The Applicant was notified of the decision by hand at Wooroloo Prison Farm on 31 August 2022.[8][7] RB1, pages 9-29. [8] RB1, page 11. The Applicant lodged his application for review of the Non-Revocation Decision on 5 September 2022.[9] The application was made in accordance with s 500(1)(ba) of the Migration Act, which allows applications to be made to the Tribunal for review of decisions not to revoke a decision to cancel a visa made under s 501CA(4) of the Migration Act. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.[9] RB1, pages 3-8. On 15 November 2022, the Tribunal as currently constituted held a hearing on the Application in Perth. The Applicant was not represented and on 23 November 2022 the Tribunal affirmed the Non-Revocation Decision. The Applicant sought a review of that decision to the Federal Court of Australia. On 23 June 2023 the Federal Court of Australia remitted the decision to the Tribunal, by consent, on the grounds that the Tribunal’s reasoning that the risk of the applicant relapsing into drug use or engaging in criminal offences (Identified Risk) if he returned to Serbia was:a. an impediment that weighed in favour of revoking the decision to cancel his visa; andb. was not an impediment,was inconsistent and therefore illogical.[10] [10] RB1, page 776-777. The orders noted it was not possible to determine if and how the Tribunal weighed the Identified Risk when deciding whether there was another reason to revoke the cancellation of the Applicant’s visa under s 501CA(4)(b)(ii) of the Migration Act and therefore it was accepted the error was material and amounted to jurisdictional error. The matter was remitted to the Tribunal for determination according to law. The Tribunal is now reconsidering the matter on remittal, according to law.BACKGROUND As noted above, the Applicant came to Australia in 1971 with his parents and brother when he was 12 years old.[11] The Applicant has been married and divorced twice and has one 25-year-old son who resides in Australia.[12] [11] RB1, ExA2, page 544.[12] RB1, G22, page 128. The Applicant has a lengthy history of criminal offending as an adult which began in 1977.[13] He has been convicted of a broad range of offences including property offences, drug offences, traffic offences, assault and weapons offences.[14] [13] RB1, G4, page 34.[14] RB1, G4-5.