Dobrosavljevic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 4046 (28 November 2022)
Division:GENERAL DIVISION
File Number: 2022/7239
Re:Peter Dobrosavljevic
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
REASONS FOR Decision
Tribunal:Senior Member S Burford
Date:28 November 2022
Place:Perth
On 23 November 2022, I made the following 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 affirmed.
These are my written reasons.
................[Sgd]........................................................
Senior Member S Burford
Catchwords
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – long history of criminal offending – Direction No 90 – 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 – expectations of the Australian community – strength, nature and duration of ties to Australia – international non-refoulement – Other consideration absorbed person claims – Applicant is a 63 year old man who arrived in Australia as an 11 year old – extent of impediments if returned to Serbia – Non-Revocation Decision affirmed
Legislation
Migration Act 1958 (Cth) ss 34(1), 34(2), 36(1C), 36(2C), 36A, 36(2)(a), 36(2)(aa), 189, 197C, 197C(3), 198, 348(1), 414(1), 499, 499(1), 499(2A), 500(1)(ba), 500(6B), 500(6L), 501, 501(1), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(3)(a), 501CA(3)(b), 501CA(4), 501CA(4)(a), 501CA(4)(b)(i), 501CA(4)(b)(ii)
Migration Amendment Act 1983 (Cth) s 8(3)
Migration Amendment (Clarifying International Obligations for Removal) Act 2021 (Cth)
Migration Legislation Amendment Act 1994 (Cth) ss 8, 83
Migration Reform (Transitional Provisions) Regulations 1994 (Cth)
Migration Regulations 1994 (Cth) regs 2.52, 2.52(2)(b), 2.55
Cases
BDS20 v MICMSMA [2020] FCA 1176
BDS20 v MICMSMA [2021] FCAFC 91
MICMSMA v BFW20; BGS20 v MICMSMA [2020] FCAFC 121
EPL20 v MICMSMA [2021] FCAFC 173
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
Sillars v MICMSMA [2020] FCA 1313
Sillars v MICMSMA [2021] FCAFC 174
Stewart v MICMSMA [2020] FCAFC 196
Yong v MIEA (1996) 67 FCR 566
Secondary Materials
Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, opened for signature 10 December 1984, 1465 UNTS 85 (entered into force 26 June 1987)
Convention relating to the Status of Refugees, opened for signature 28 July 1951, 189 UNTS 137 (entered into force 22 April 1954)
International Covenant on Civil and Political Rights, opened for signature 16 December 1966, 999 UNTS 171 (entered into force 23 March 1976)
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration and Border Protection (Cth), Direction No 75: Refusal of Protection Visas Relying on ss 36(1C) and 36(2C)(b) (6 September 2017)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), 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) – paras 4(1), 5.1, 5.1(3), 5.2, 5.2(4), 5.1(4), 6, 7, 8, 8(1), 8(4), 8.1(1), 8.1(2), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(1)(a)(iii), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3, 8.3(1), 8.3(4), 8.4(1), 8.4(2), 8.4(2)(a), 8.4(2)(b), 8.4(2)(c), 8.4(2)(d), 8.4(2)(e), 8.4(2)(f), 8.4(3), 8.4(4), 9, 9(1)(a), 9.1(1), 9.1(2), 9.1(5), 9.1(6), 9.1(7), 9.2, 9.3, 9.4.1, 9.4.2
Protocol Relating to the Status of Refugees, opened for signature 31 January 1967, 606 UNTS 267 (entered into force 4 October 1967)
Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty, GA Res 44/128 (15 December 1989, entered into force 11 July 1991)
REASONS FOR DECISION
Senior Member S Burford
28 November 2022
INTRODUCTION
The Applicant is a 63-year-old citizen of Serbia. He first arrived in Australia on 3 March 1971 with his parents and brother, when he was 11 years old.[1] On 1 September 1994, the Applicant was granted a Class BF transitional (permanent) visa.[2]
[1] R1, G17, page 95.
[2] R1, G23, page 133.
The Applicant has a lengthy history of a broad range of offending including property offences, drug offences, traffic offences and assault and weapons offences.[3]
[3] R1, G4-5.
On 6 September 2019, the Applicant was convicted in the Joondalup Magistrates Court of the following 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’.[4] 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] R1, G4, page 31.
At the time of the hearing, the Applicant was at Wooroloo Prison Farm. At the hearing he told the Tribunal he was due to be released on 21 November 2022, at the conclusion of his sentence.[5] The Tribunal was notified by the Respondent by email on 21 November 2022 that the Applicant was to be moved to Yongah Hill Immigration Detention Centre on that date.
[5] R1, G12, page 77.
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).[6] 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.[7] The Applicant’s request for revocation of the Cancellation Decision was received by the Department on 24 February 2020.[8] The issue of whether that request was validly made is dealt with further below.
[6] Migration Act ss 501(6)(a) and 501(7)(c); R1, G3, pages 11-29.
[7] R1, G3.
[8] R1, G17.
On 31 August 2022, the delegate decided not to revoke the Cancellation Decision (the Non-Revocation Decision).[9]
[9] R1, G3.
The issues for determination by the Tribunal are whether it is satisfied that the Applicant passes the character test (as defined by s 501(6) of the Migration Act)[10] and, if not, whether it is satisfied that there is another reason why the decision to cancel the Applicant’s visa should be revoked.[11]
[10] Migration Act s 501CA(4)(b)(i).
[11] Migration Act s 501CA(4)(b)(ii).
Pursuant to s 500(6L) of the Migration Act, the 84-day timeframe for the Tribunal to make a decision on the application for review ended on 23 November 2022.
For the reasons below, the Tribunal decided on 23 November 2022 that the correct and preferable decision is that the Non-Revocation Decision be affirmed.
JURISDICTION
As noted earlier, 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).[12] The Applicant’s request for revocation of the Cancellation Decision was received by the Department on 24 February 2020.[13]
[12] Migration Act ss 501(6)(a) and 501(7)(c); R1, G3, pages 11-29.
[13] 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.[14] The Applicant was notified of the decision by hand at Wooroloo Prison Farm on 31 August 2022.[15]
[14] R1, G3.
[15] R1, G3, page 11; G2, page 4.
The Non-Revocation Decision includes the following note:[16]
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.
[16] R1, G3, page 16.
On the material before the Tribunal, the Applicant signed the request for revocation on 14 February 2022.[17] 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.[18] The personal circumstances form was not signed or dated.[19]
[17] R1, G17, page 93.
[18] R1, G17, pages 100-101.
[19] R1, 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.[20] The Migration Act requires notification to be given ‘in the way that the Minister considers appropriate in the circumstances’.[21] This is only concerned with the method of delivery and request rather than the content.[22]
[20] s 501CA(3).
[21] This wording does not appear elsewhere in the Act, in relation to other decision notification provisions.
[22] 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.[23] 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).[24] 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.[25] 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.[26] Without the revocation power being properly engaged, there can be no AAT reviewable decision.[27] 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.[28]
[23] See reg 2.52 for manner; reg 2.55 for deemed receipt.
[24] In MIBP v EFX17 [2021] HCA 9 at [41]-[42].
[25] 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.
[26] BDS20 v MICMSMA [2020] FCA 1176 at [53].
[27] 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].
[28] 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.[29] 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.[30]
[29] CHVS v MICMSMA [2022] FCA 34 at [71]–[74].
[30] 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 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.[31]
[31] Transcript, 10 November 2022.
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 for 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. 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.
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) 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.[32] 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.
[32] R1, G2.
THE HEARING
The hearing was initially scheduled to be held on 9 November 2022 at the Tribunal Registry in Perth. The Applicant was scheduled to appear by MS Teams from Wooroloo Prison Farm. The Respondent was represented by Mr Burgess of Sparke Helmore Lawyers. Mr Burgess was also scheduled to appear by MS Teams.
At the date and time of the scheduled hearing, the Tribunal was unable to make contact via Teams with Wooroloo Prison Farm. Tribunal records indicated that several attempts were made to connect the prison to the hearing conference, but these were unsuccessful.
In light of the technical difficulties the hearing was vacated, and the Tribunal arranged for the Applicant to appear in person at the Perth Registry the following day, 10 November 2022.
At the hearing, on 10 November 2022, both the Applicant and Mr Burgess appeared in person. The Applicant was again self-represented. At the commencement of the hearing, the Respondent informed the Tribunal that it had become aware that due to an administrative oversight its supplementary tender bundle had not been filed with the Tribunal with other documents on 3 November 2022 as intended. The Respondent sought to tender the documents which included summons material from authorities in several jurisdictions where the Applicant had been convicted of offences. A short adjournment was taken for copies of the document to be provided to the Applicant and Tribunal.
Following the adjournment, the Tribunal explained to the Applicant that it was inclined to admit the document into evidence as material included in the tender bundle appeared relevant to the matters to be considered by the Tribunal on the application, but that the Tribunal considered if it did so the hearing should be adjourned. The Applicant indicated he was not contesting that his offending was serious and therefore wanted to continue with the hearing that day.
The Tribunal explored with the Applicant the reasons he wished to proceed on that day. He said his parents were ready to give evidence and that he was asking the Tribunal for compassion. The Respondent indicated they did not seek to cross examine the Applicant’s parents and did not object to their statement being submitted on that basis.
The Tribunal explained to the Applicant that even if he accepted his offending was serous, there were a range of matters the Tribunal needed to consider in determining whether there was another reason for the cancellation of the visa to be revoked, this included the nature and seriousness of his offending and the risk of reoffending. The Tribunal explained that in order to make a decision on his application the Tribunal needed to consider the primary and other considerations in Direction 90 in the context of all the information before it. The Tribunal noted that it considered in all the circumstances that an adjournment until the following Tuesday would be appropriate. The hearing was adjourned until the following Tuesday.
On 15 November 2022, the hearing recommenced. The Applicant and Respondent attended the hearing in person. The Applicant made submissions, gave evidence, and was cross-examined. No other witnesses gave evidence. The Applicant’s parents were not called.
Following an earlier request from the Applicant, an interpreter fluent in the Serbian and English language was present to assist the Tribunal at the hearing. However, as was the case in the earlier directions hearing, the Applicant confirmed that he did not need the assistance of the interpreter, but that his parents may need the interpreter for their evidence. The interpreter’s services were not called upon during the hearing.
The following documents were marked as exhibits:
·Applicant’s statement titled ‘Bullet points for Peter Dobroslavjec’ filed 12 September 2022 (Exhibit A1);
·Applicant’s letter (or statement) filed 26 October 2022 (Exhibit A2);
·Copy of a Certificate of Title, Transfer of Land Act, Victoria, Vol 8739 (4 pages) (Exhibit A3);
·Copy of Pathways Program Completion Certificate for Peter Dobroslavic dated 18 August 2021 (Exhibit A4);
·Copy of a letter (and translation) from Zarko and Mileva Dobrosavljevic dated 21 October 2022 (Exhibit A5);
·Death Certificate of Tomislav Dobrosavljevic, dated 29 February 2020 (Exhibit A6);
·C.63 Request to transfer cash form (Exhibit A7);
·Section 501G documents, labelled G1 to G25, comprising pages 1 to 163 (Exhibit R1);
·Respondent’s Tender Bundle (Exhibit R2);
·Respondent’s Statement of Facts, Issues and Contentions, dated 7 October 2022, including Annexure A ‘Summary of Criminal History’ (Exhibit R3); and
·Respondent’s Supplementary Tender Bundle (Exhibit R4).
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.[33] 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.[34]
[33] Migration Act s 501CA(3).
[34] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 90
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.[35] By reason of s 499(2A) of the Migration Act, in doing so it must comply with written directions about the performance of its functions or the exercise of those power which are given by the Minister pursuant to s 499(1) of the Migration Act. With respect to the exercise of power under s 501 and 501CA the current written direction given by the Minister is Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (Direction No 90) which was made on 8 March 2021.[36]
[35] 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].
[36] Direction No 90 commenced operation on 15 April 2021, replacing the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA which was revoked on the same date; Direction No 90 paras 2-3.
The purpose of Direction No 90 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[37] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 90 where relevant to the decision.[38]
[37] Direction No 90 para 5.1(4).
[38] Direction No 90 para 6.
Paragraph 5.1 of Direction No 90 sets out ‘[o]bjectives’, with para 5.1(3) being relevant to the Non-Revocation Decision currently before the Tribunal:
(3)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 full time 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 90 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:
(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 engage 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 any other non-citizens who have been participating in, and contributing to the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(5)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 8.4(2) (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.
Informed by the principles set out in para 5.2 of Direction No 90, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 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’.[39]
[39] Direction No 90 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 90, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[40]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the best interests of minor children in Australia; and
(d)expectations of the Australian community.
[40] Direction No 90 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):[41]
(a) international non-refoulement obligations;
(b) extent of impediments if removed;
(c) impact on victims;
(d) links to the Australian community, including:
(i)strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
[41] Direction No 90 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 90 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.
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant’s offending history is set out in the Australian Criminal Intelligence Commission ‘Check Results Report’ dated 21 March 2022,[42] and the Western Australia Police Force ‘History For Court’,[43] compiled on 28 September 2022. A detailed list of the Applicant’s Adult offences is provided in the Annexure A to this decision.
[42] R1, G4.
[43] R4, R7.
The Applicant has been convicted of a large number of offences in several states of Australia including:[44]
(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)
[44] Not all offences listed.
He 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.
The ‘Check Results Report’ also records pending charges in Victoria 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).[45] These are also detailed in Annexure A.
[45] R1, G4.
The Tribunal notes that the ‘Check Results Report’ records several convictions in 1984. However, at the hearing the Applicant indicated those convictions 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.[46] 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. These are set out in Annexure B.
[46] R4, page 5.
The records also indicated the Applicant had a number of convictions in the 1970s as a juvenile.[47] These are set out in Annexure C. Given his age at the time of those offences and the nature of the offences as recorded, the Tribunal does not consider that they contribute to any assessment of the overall seriousness of the Applicant’s offending and conduct. The Tribunal places no weight on those offences.
[47] R1, G4; R4, page 8.
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.[48] 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.
[48] Transcript, page 38.
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.[49] The Applicant was convicted and sentenced of this offence on 6 September 2019.
[49] R1, G3, page 16; R1, G4.
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.
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 offences as an adult were 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’. 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.[50] 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[51]. 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.[52] 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.[53]
[50] R4, R8, page 67.
[51] R4, R8, pages 49-50.
[52] R4, pages 68-69; R1, G4.
[53] Transcript, page 27.
In May 1992, the Applicant was convicted of ‘Burglary’ in the Kalgoorlie Court of Petty Sessions and received a sentence of two years’ probation.[54] 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.[55] Limited details of these offences are available in the material.
[54] R1, G4.
[55] R1, G4.
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[56].
[56] R2, page 189-190; R2, 257-261.
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:[57]
…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 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 o 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.
[57] R1, G8, pages 58-59.
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).[58] In August 2004, he was convicted and received a fine and sentence of seven days’ imprisonment for ‘Possessing tainted property’.[59]
[58] R2, G4, page 33.
[59] R2, G4, page 33.
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.[60] 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:[61]
‘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.’
[60] R1, G7, page 49.
[61] R1, G7, page 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.[62]
[62] R1, G7, page 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.
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 relatively minor as reflected in their respective sentences of a fine and 14 days’ imprisonment.
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. 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’.[63] The Applicant was also convicted for assault on that occasion with respect to pointing the gun ‘in the general direction’ of a police officer.
[63] R4, page 110.
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.
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.
He has also been convicted of bribery in 1988 which he testified was with respect to a police officer during an arrest.
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 one of the assault offences and fines for the other offences.
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.
His more serious drug convictions were in 1999 and 2007. In 1999, he was convicted of one count of possessing methamphetamine with intent. 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.’[64] He received a cumulative sentence of two years’ imprisonment for the possession with intent offence.
[64] R4, page 110.
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. [65] 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. 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:[66]
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.
…
[65] R2, page 202.
[66] R1, 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.
Pending charges
In addition to the convictions detailed above, the documents before the Tribunal indicate 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[67]. 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. 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.
[67] R1, G4.
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’.[68]
[68] Migration Act s 501(7)(c).
The Tribunal finds that on 6 September 2019 the Applicant was convicted of the offence of ‘Home burglary and commit’ in Joondalup Magistrates Court for which he was sentenced to a term of two years and six months’ imprisonment.[69] As a result, the Applicant 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.
[69] R1, G4.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[70]
[70] See Migration Act s 501CA(4)(b)(i).
IS 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 90, 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[71], personal circumstances form[72], supporting and supplementary statements[73], his application for review[74] and his statements to the Tribunal[75]. They were supported by oral submissions and testimony to the Tribunal[76]. The Applicant’s submissions were, in summary:
[71] R1, G17
[72] R1, G18
[73] R1, G19-21.
[74] R1, G2.
[75] A1-A5.
[76] Transcript pages 14, 17, 36, 49, 51, 59-61.
·The Applicant 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 recently 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.
·He has reformed including undertaking the Pathway’s Program. This combined with his age and his responsibility for caring for his parents will prevent him from reoffending.
·The Applicant wished to be buried with his family members in Australia.
·The Applicant’s 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 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.
Although some documents submitted by the Applicant in support of his request suggested the bulk of his offending was not serious, the Applicant stressed before the Tribunal that he accepted his offending was serious and that he had reformed and was seeking compassion in light of his circumstances.
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:
·The Applicant’s criminal history was lengthy and included offending which occurred after formal warning 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 Applicant has failed to cease offending in the past despite significant prison sentences and treatment programs. His rehabilitation has not been tested in the community and there is an ongoing and unacceptable risk he will reoffend.
·The protection of the Australian community weighs in favour of the visa remaining cancelled.
·Likewise, 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.
·Intentional non-refoulement considerations do not weigh in favour of revoking the cancellation having regard to the general nature of the Applicant’s claims, 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 extent of impediments if removed and the Applicant’s ties to Australia weighting in favour of revocation, they do not outweigh the primary considerations of protection of the Australian community and the expectations of the Australian community in the Applicant’s circumstances.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community and 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.[77]
[77] See also Direction No 90 para 8(1).
Paragraph 8.1(2) of Direction No 90 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.
Nature and seriousness of the conduct
The Tribunal has summarised the history of the Applicant’s conduct and offending above.
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date. In doing so, paragraph 8.1.1(1) of Direction No 90 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. These include “violent crimes and/or sexual crimes” (para 8.1.1(1)(a)(i)) and/or “crimes of a violent nature against women” (para 8.1.1(1)(a)(ii)). The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious, it does not limit the range of conduct that may be considered very serious.[78]
[78] Direction No 90 para 8.1.1(1)(a)(i)-(iii), See also Direction No 90 para 8.1(2)(a).
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 Tribunal, the Respondent contended this should be characterised as a ‘violent crime’. 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 the offence and given the Applicant’s very young age at the time (around 14 years old) the Tribunal places no weight on that offence in its assessment.
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. 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.[79]
[79] R4, page 110.
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 90 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.[80] One of those relates to crimes committed against Government representatives or officials in the performance of their duties.[81] The Applicant has been convicted of assault on a public officer. He also has convictions for bribery and obstructing police. Applying the Direction, the Tribunal considers those offences to be serious.
[80] Direction No 90 para 8.1.1(1)(b)(i)-(iv).
[81] Direction No 90 para 8.1.1(1)(b)(ii).
In any event, the list is not exhaustive of the types of offences which may be considered to be serious.
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.[82] These factors are considered further below.
[82] Direction No 90 para 8.1.1(1)(c)-(e).
Paragraph 8.1.1(1)(b)(iv) of Direction No 90 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) of Direction No 90 does 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, while the Applicant’s offending on the whole was not marked by violence it is, on any proper assessment, very serious. This is the case both considering individual instances of his property offending and in considering his conduct and offending 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.[83]
[83] R4, page 110.
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, he has nevertheless received multiple lengthy prison sentences.[84] 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. This is reflected in the remarks of some of the sentencing judges whose comments were before the Tribunal.[85]
[84] Para 8.1.1(1)(c) of Direction No 90.
[85] R1, G8, page 62.
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 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 as an adult,[86] the Tribunal considers that although there are periods where the Applicant had no recorded offences, these 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.
[86] Para 8.1.1(1)(d) of Direction No 90.
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.[87] In the Applicant’s case, that burden has been borne by four separate jurisdictions, requiring additional resources for 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.
[87] Para 8.1.1(1)(e) of Direction No 90.
It is also relevant that the Applicant has re-offended after being formally warned on at least one occasion.[88] The Respondent submitted that the Applicant was previously warned on a number of occasions, on 3 August 1981, 12 November 1982 and 24 September 2007. The evidence of the first warnings was an unsigned file note dated 18 May 2022 noting that Departmental records indicate that on 3 August 1981, the Applicant acknowledged a written warning arising from a conviction in 1981 and that on 12 November 1982, he was warned in person and by letter signed and acknowledged at Won Wron prison. However, at the hearing, the Applicant said he could not recall receiving these warnings and as there was no supporting evidence from the Departmental files to substantiate the claims in the file note, the Tribunal does not place significant weight on that file note as evidence that the Applicant was formally warned in 1982 and 1981. Based on the evidence before it, the Tribunal does not accept that he was.
[88] Para 8.1.1(1)(g) of Direction No 90.
However, on 24 September 2007 the Applicant was informed by the Department in writing that consideration was being given to the cancellation of his visa.[89] That letter was not before the Tribunal, however the Applicant’s response to it[90] and the letter dated 26 November 2007 notifying the Applicant of the decision not to cancel his visa at that time[91], were before the Tribunal. The Applicant signed acknowledging receipt of that notification on 5 December 2007 and acknowledged at the hearing that he had received that warning. The letter advised that a delegate of the Minister had decided not to cancel his visa on that occasion. The letter warned: [92]
Please note that visa refusal or cancellation may be reconsidered if fresh information comes to notice or if you incur a liability on new grounds. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Emphasis in original)
[89] R1, G14, page 83.
[90] R2, pages 267-268.
[91] R1, G14, pages 83-84.
[92] R1, G14, page 83.
Following this warning there appears to have been a break in the Applicant’s offending, however he commenced reoffending with traffic offences in 2011 in Western Australia and burglary, possession and other offences in Victoria in 2014. He was also charged with offences in Brisbane Magistrates Court in 2014 for which he failed to appear and a warrant was issued and had three counts of burglary and three counts of theft for which charges remain pending.
In mitigation for his offending, the Applicant points to his difficult childhood initially as a migrant and compounded by abuse at the hands of a priest into whose supervisory care he was placed as a young teenager. Those claims have been made consistently by the Applicant over time and for the purposes of this application the Tribunal accepts them. However, in the Tribunal’s view, having regard to the very lengthy period over which the Applicant has offended, including with the benefit of age and maturity, the Tribunal does not accept that those personal factors reduce the overall assessment of his conduct as very serious.
The Applicant’s offending ranges from minor offending through to more serious offending. Taking the Applicant’s offending as a whole and having regard in particular to the length and frequency of his criminal offending, the serious sentences he has received on several occasions and the fact he has continued to offend, despite receiving a formal warning of the potential immigration consequences of that offending, the Tribunal considers the Applicant’s offending to be very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 90 requires the Tribunal to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It directs that some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[93]
[93] See also Direction No 90 para 8.1(2)(b).
Paragraph 8.1.2(2) relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence…
Nature of the harm
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[94]
[94] Direction No 90 para 8.1.2(2)(a).
The Applicant has engaged in a broad range of offending including property offences against businesses and private homes, drug offences, traffic offences and assault and weapons offences. Should the Applicant reoffend, the harm which would be suffered by individuals and the Australian community includes private and commercial property loss, damage to property, physical harm from unauthorised weapons and the damage caused by illicit drug use including physical damage to individual users, and damage to the community through the social and financial impacts of dealing with drug related crime.
If the Applicant were to engage in further dishonesty offences against individuals and businesses, this would cause harm, including financial loss to the members of the community whose property is stolen. In the Tribunal’s view, the fact that such loss is financial does not diminish the serious nature of that harm, however, it accepts that such harm may be regarded as less serious than the harm caused by violent crimes. While offences against property are generally less serious than offences against persons, such offences can also result in psychological and financial harms to victims, as well as contributing to increased costs for businesses including insurance premiums which are ultimately passed onto consumers.
The harm caused by disregard for driving laws is also self-evident and serious. The Applicant has engaged in a broad range of traffic offences including repeatedly driving without a licence over an extended period and in contravention of court orders, driving in a dangerous manner and driving unlicenced vehicles. The Applicant has committed a series of driving offences and has persistently driven without being licenced to do so. Were the Applicant to reoffend in a similar manner in the future, there is a risk that members of the public would suffer serious harm as a result, including by being harmed by being injured by an unlicenced driver in an unregistered vehicle.
Similarly, the Applicant has shown disregard for the orders of the Courts and authorities. He has failed to comply with court orders including bail orders, probation and licence suspensions. These offences cause public harm by undermining the authority of the Courts and public confidence in the justice system, and placing strain on the public resources required to maintain the justice system.
The Applicant has also committed offences including ‘Assault public officer’, ‘Obstruct police’ and ‘Provided false or misleading personal details’. He has had numerous breaches of bail, bail undertakings and community-based orders. Whilst these offences are less serious, they make it more difficult for Police to perform their functions, undermine confidence in the justice system and consume the time and resources of Police and the Courts, which can detract from their service to the Australian community.
Overall, the Tribunal considers that should the Applicant reoffend, the harm which would be suffered by individuals and the community is serious.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[95]
[95] Direction No 90 para 8.1.2(2)(b).
As noted above, the Respondent submitted that there was limited evidence to conclude that the Applicant had rehabilitated and that his rehabilitation had not been tested in the community. The Respondent submitted that given the Applicant’s offending history, prior unsuccessful attempts at drug rehabilitation, repeated reoffending after serving significant prison sentences and a warning of the risk of immigration consequences, the Applicant represents an unacceptably high risk of reoffending.
With respect to the risk of reoffending, the Applicant submitted that he was remorseful, has reformed during his latest prison sentence and will not reoffend.[96] In his request for revocation the Applicant stated:[97]
At 61 years of age and with a Medical Condition (Stomach Alcers [sic] and heart problems) and with the help of Courses I have recently done I feel responsibility for Careing [sic] for my Parents in their later years.
(Error in original.)
[96] A1
[97] R1, G17, page 95.
In his personal particulars form, in explaining his offending the Applicant stated that:[98]
After my marriage breakdown in 2000 I found it very difficult, it led to my use of Alcohol and Drugs wich [sic] was a major factor in my offending.
(Errors in original.)
He also submitted that drug and alcohol use were a factor in his offending[99] and that he was no longer using either.
[98] R1, G18, page 112.
[99] R2, page 268; R1, G18, page 112.
The Tribunal was not satisfied on the evidence that an issue of non-refoulement obligations arises with respect to the Applicant’s return to Serbia. In any event, the Tribunal found it would be open to the Applicant to make an application for a protection visa and that any claims for protection can be assessed at that time. Accordingly, the Tribunal has afforded this consideration neutral weight in the Applicant’s circumstances.
The Tribunal was also not satisfied that the claim the Applicant was an ‘absorbed person’ should be given any separate weight as ‘another reason’ why the mandatory cancellation of his visa should be revoked.
In weighing these considerations against one another, the Tribunal considers that although there are strong countervailing considerations which favour revocation of the Cancellation Decision, including the Applicant’s links to the Australian community and the extent of impediments if removed, the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those considerations in the Applicant’s case.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 90, the Tribunal is not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to affirm the Non-Revocation Decision.
Decision
The Non-Revocation Decision, being 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 affirmed.
I certify that the preceding 262 (two hundred and sixty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford
.............[Sgd]...........................................................
Associate
Dated: 28 November 2022
Dates of hearing: 10 November 2022 and 15 November 2022 Applicant: In person Solicitors for the Respondent: Mr Burgess, Sparke Helmore Lawyers Annexure A – Table of the Applicant’s Offending AS AN ADULT[173]
[173] 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[174] and the Western Australian Police Force ‘History For Court – Criminal and Traffic’ complied 28 September 2022.[175]
[174] R1, 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.
[175] R4, pages 1-7.
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[176] and the Western Australian Police Force ‘History For Court – Criminal and Traffic’ complied 28 September 2022.[177]
[176] R1, 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.
[177] R4, pages 1-7.
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[178]
[178] 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[179] and the Western Australian Police Force ‘History For Court – Criminal and Traffic’ complied 28 September 2022.[180]
[179] R1, 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.
[180] R4, page 8.
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) [2022] AATA 4046
- Case
- [2022] AATA 4046
- Decision Date
CaseChat Overview and Summary
The Tribunal was tasked with considering various factors, including Direction No 90, which guides delegates in such decisions. These considerations included the primary consideration of protecting the Australian community, the nature and seriousness of the applicant's criminal offending, the risk to the community should further offences occur, and the expectations of the Australian community. Other considerations included the strength, nature, and duration of the applicant's ties to Australia, and international non-refoulement obligations. The Tribunal also had to assess the extent of impediments the applicant would face if returned to Serbia.
The Tribunal reasoned that the applicant's long history of criminal offending, despite his significant ties to Australia and the impediments he might face upon return to Serbia, did not outweigh the paramount consideration of protecting the Australian community. The Tribunal found that the risk posed by the applicant to the community was substantial, and that the seriousness of his offending was a significant factor. The Tribunal concluded that the correct and preferable decision was to affirm the delegate's decision not to revoke the visa cancellation.
Orders
Orders of the court
Full text does not contain this section.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
As noted earlier, 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).[12] The Applicant’s request for revocation of the Cancellation Decision was received by the Department on 24 February 2020.[13] [12] Migration Act ss 501(6)(a) and 501(7)(c); R1, G3, pages 11-29.[13] 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.[14] The Applicant was notified of the decision by hand at Wooroloo Prison Farm on 31 August 2022.[15][14] R1, G3. [15] R1, G3, page 11; G2, page 4. The Non-Revocation Decision includes the following note:[16]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.[16] R1, G3, page 16. On the material before the Tribunal, the Applicant signed the request for revocation on 14 February 2022.[17] 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.[18] The personal circumstances form was not signed or dated.[19] [17] R1, G17, page 93.[18] R1, G17, pages 100-101.[19] R1, 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.[20] The Migration Act requires notification to be given ‘in the way that the Minister considers appropriate in the circumstances’.[21] This is only concerned with the method of delivery and request rather than the content.[22][20] s 501CA(3). [21] This wording does not appear elsewhere in the Act, in relation to other decision notification provisions.[22] 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.[23] 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).[24] 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.[25] 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.[26] Without the revocation power being properly engaged, there can be no AAT reviewable decision.[27] 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.[28] [23] See reg 2.52 for manner; reg 2.55 for deemed receipt. [24] In MIBP v EFX17 [2021] HCA 9 at [41]-[42]. [25] 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. [26] BDS20 v MICMSMA [2020] FCA 1176 at [53].[27] 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].[28] 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].