Done Romanov and Minister for Immigration and Citizenship
[2013] AATA 63
[2013] AATA 63
Division GENERAL ADMINISTRATIVE DIVISION File Number
2012/5461
Re
Done Romanov
APPLICANT
And
Minister for Immigration and Citizenship
RESPONDENT
DECISION
Tribunal Deputy President RP Handley
Date 8 February 2013 Place Sydney Decision Summary
The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Romanov’s visa.
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Deputy President RP Handley
CATCHWORDS
IMMIGRATION – Visa cancellation – Direction No 55 – Character test – Substantial criminal record – Primary considerations – Other considerations – Decision under review set aside and substituted
LEGISLATION
Migration Act 1958 (Cth)
SECONDARY MATERIALS
Direction No. 55 – Visa refusal and cancellation under s 501
REASONS FOR DECISION
Deputy President RP Handley
Mr Romanov has applied to the Tribunal for the review of a decision of a delegate of the Minister for Immigration and Citizenship (the Minister) to cancel his visa on the ground that he does not pass the character test because of his substantial criminal record.
BACKGROUND
Mr Romanov is aged 38 and was born in January 1975 in Bitola, formerly in what used to be the Republic of Yugoslavia and which is now in the Republic of Macedonia. He is a Macedonian citizen. Mr Romanov first arrived in Australia in February 2005, aged 30, and, at the time his visa was cancelled, was the holder of a Class BC Subclass 100 (Spouse) visa. Since February 2005, Mr Romanov has been overseas on two occasions: from 24 May 2007 to 13 August 2008, and from 5 August 2010 to 3 September 2010. Mr Romanov states that he stayed on in Macedonia in 2007 because his father was being treated for cancer.
Mr Romanov is married with two children, aged seven and four, both of whom were born in Australia and are Australian citizens. His wife was also born in Australia and is an Australian citizen.
On 11 November 2011 in the District Court of NSW, Mr Romanov was convicted of the offences of ‘Supply Prohibited Drug – Commercial Quantity’ and ‘Possess Prohibited Drug’ to which he had pleaded guilty. The relevant drug was cocaine upon which, he says he was dependent at the time. Mr Romanov was sentenced to four years imprisonment with a non-parole period of two years commencing on 8 December 2010, the date he was arrested and remanded in custody. He was released on parole on 7 December 2012 and taken into immigration detention at Villawood. Mr Romanov has no other convictions either in Australia or Macedonia.
By letter dated 26 March 2012, the Department of Immigration and Citizenship (the Department) notified Mr Romanov of its giving consideration to the cancellation of his visa, and invited him to respond. Mr Romanov acknowledged receipt of this notice, responded by letter dated 3 April 2012 and enclosed a completed ‘Personal Details Form’. The Department subsequently sent him a copy of Direction [no. 55] - Visa refusal and cancellation under s 501 (Direction 55) inviting him to comment on its application in his case, which he did by letter dated 17 November 2012.
By letter dated 30 November 2012, a delegate of the Minister advised Mr Romanov that his visa had been cancelled and provided him with a Statement of Reasons for the cancellation under s 501(2) of the Migration Act 1958 (Cth) together with a Departmental Submission relating to his visa cancellation. On 4 December 2012, Mr Romanov applied to the Tribunal for a review of this decision.
On 19 January 2011, Mr Romanov’s wife (Ms C) and children departed Australia temporarily and are currently living with Mr Romanov’s mother in Macedonia pending Mr Romanov’s release from custody. The Tribunal was provided with a statement from Ms C filed on 25 January 2013 and a letter from a teacher at her and Mr Romanov’s older son’s school, dated 23 January 2013. Ms C gave evidence by telephone from Macedonia. Ms C’s uncle also provided a statement dated 25 January 2013 and gave evidence at the hearing. Two of Mr Romanov’s friends provided statements of support, dated 21 January 2013, and the Director of a bricklaying company provided a letter dated 21 January 2013 stating that he would provide Mr Romanov with employment as a bricklaying labourer on his release from detention.
RELEVANT LAW AND POLICY
Section 501(2) of the Migration Act provides that the Minister may cancel a visa if “the Minister reasonably suspects that the person does not pass the character test” and “the person does not satisfy the Minister that the person passes the character test”. Section 501(6)(a) provides that a person does not pass the character test if the person has a substantial criminal record. ‘Substantial criminal record’ is defined in s 501(7) as, among other things, having been sentenced to a term of imprisonment of 12 months or more, or to two or more terms of imprisonment where the total of those terms is two years or more.
On 11 November 2011, Chief Judge Blanch of the District Court of NSW sentenced Mr Romanov to four years’ imprisonment with a non-parole period of two years in respect of the offences of ‘Supply Prohibited Drug – Commercial Quantity’ and ‘Possess Prohibited Drug’. Thus, he does not pass the character test. It was therefore open to the Minister to cancel Mr Romanov’s visa. In exercising this discretion, the decision-maker must apply Direction 55. Direction 55 requires the Tribunal to take into account primary considerations and other considerations relevant to the individual case. The Preamble sets out the Objectives of the Direction, General Guidance for decision-makers and the Principles that provide a framework within which decision-makers should approach their task. In the case of serious criminal or other misconduct, when determining the risk of future harm the decision-maker should balance the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community (Section 2, paragraph 7(1)(b)).
Paragraphs 9 and 10 of Direction 55 set out a number of ‘primary’ and ‘other’ considerations to which the decision-maker must have regard when considering whether to exercise the discretion to refuse or cancel a visa. The ‘primary considerations are set out in paragraph 9(1):
9. Primary considerations – visa holders
(1) In deciding whether to cancel a person’s visa, the following are primary considerations:
(a) Protection of the Australian community from criminal or other serious conduct;
(b) The strength, duration and nature of the person’s ties to Australia;
(c) The best interests of minor children in Australia;
(d) Whether Australia has international non-refoulement obligations to the person.
The ‘other considerations’, set out in paragraph 10(1) (see below), must be taken into account where relevant. Subparagraphs 8(4) and (5) state:
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Under this heading, the Tribunal is required to give due consideration to the Government’s “Objectives”, “General Guidance”, and “Principles” set out in Section 1, paragraph 6 of Direction 55 under the heading ‘Preamble’. The ‘Principles’ referred to in paragraph 6.3, which provide a framework for decision-makers in approaching their task, include the following:
6.3(1) …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) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) …
(4) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. ...
(5) …
(6) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1) of Direction 55 states that, informed by the principles in paragraph 6.3, a decision-maker:
(a) …
(b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.
Paragraph 9.1 of Direction 55 states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also give consideration to:
(a) The nature and seriousness of the person’s conduct to date; and
(b) The risk to the Australian community should the person commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
Paragraph 9.1.1(1) of Direction 55 states:
(1) In considering the nature and seriousness of the person’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)…
b)The principle that crimes committed against vulnerable members of the community … are serious;
c)…
d)The principle that any conduct that forms the basis for a finding that a person does not pass the character test under s 501(6)(b) or (d), or is not of good character under s 501(6)(c), is considered to be serious;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
…
Mr Romanov has committed and been convicted of the serious offence of ‘Supply Prohibited Drug – Commercial Quantity’ and the offence of ‘Possess Prohibited Drug’ for which he was sentenced to four years’ imprisonment with a non-parole period of two years. Such crimes are viewed very seriously by the Australian community, especially the offence of ‘supply’, since this impacts on vulnerable members of the community. However, those are Mr Romanov’s only convictions and, as Chief Judge Blanch recognised, committed while Mr Romanov was addicted to cocaine. While this does not in any way excuse his conduct, it suggests that if he is no longer addicted, the risk of his reoffending is less. Mr Romanov has not previously received a formal warning that further misconduct could lead to his visa being cancelled.
In his sentencing remarks on 11 November 2011, Chief Judge Blanch noted that Mr Romanov was not the main supplier of cocaine involved in the particular incident. His part was to facilitate the supply of cocaine (251 grams) from a major dealer to a purchaser who was, in fact, an undercover police officer. Chief Judge Blanch said:
It is also apparent from his own possession of 4.4 grams of cocaine (found when Mr Romanov’s house was searched) that he was using cocaine at the time and his involvement in the offence was no doubt significantly for the purpose of getting drugs for himself. The Probation report also indicates that he was heavily reliant on cocaine at the time of the commission of the offence.
Because of the limited part that he played in the offence in my view the offence falls at the bottom end of the scale. But of course the scale that we are talking about is a significant scale because it is a commercial quantity even though it is only just in the commercial quantity range.
His Honour stated that the maximum penalty for the ‘supply’ offence was 20 years with a standard non-parole period of 10 years. He noted that Mr Romanov had no prior criminal history, was remorseful for his conduct and had entered a guilty plea at the earliest opportunity. He considered there were special circumstances “to disturb the statutory ratio” and took these matters into account in sentencing Mr Romanov to four years’ imprisonment with a non-parole period of two years, noting that Mr Romanov “has had a significant drug problem and he will need supervision when he is released from custody because of the drug problem”.
Mr Romanov said he first took cocaine about four years ago because of pain in his lower back following his having undertaken heavy work while a fork lift driver in 2007. At that time, he was also under a lot of stress as a result of his father’s death in Macedonia. Mr Romanov said he only ever used cocaine and only over a period of about two years until his arrest (on 8 December 2010). At the time he used cocaine, he had five or six friends who were involved in taking drugs and he knew two drug dealers. Taking cocaine – at weekends and occasionally during the week – developed into a habit and he became dependent on the drug. He last took cocaine before he was arrested and taken into custody. Mr Romanov said being in prison has changed him. He took courses about drugs, he stopped smoking, he learned English and he worked in prison. He realises where taking drugs took him to, that it was a terrible mistake and he will never repeat this mistake. If he is released into the Australian community, he will do his best to obtain employment and to support his family, and he will return the trust that the community has placed in him. He has friends who will help him find employment, he will be a good worker and citizen, and will give his family a better future.
I note that Mr Romanov has one prison disciplinary charge for smoking in a non-smoking area on 14 August 2011 for which he was reprimanded and cautioned. Mr Romanov’s evidence is that he has since stopped smoking. The documents provided under summons by the NSW Department of Corrective Services indicate that he was otherwise compliant with the prison regime, undertook rehabilitation courses while in prison and had a good work record. He was released on parole at soon as his non-parole period was completed.
Mr Kochardy, for the Minister, pointed to Mr Romanov’s association with those who were involved in criminal conduct and to his apparent loyalty to those friends, referred to a Department of Corrective Services ‘Case Note’ dated 4 September 2012, which had led to his introducing the undercover police officer to his supplier. However, Mr Romanov’s evidence indicates that he now recognises that such loyalty, where it involved criminal conduct, was misplaced and that he would now avoid any contact with those involved in drug use. The same Case Note also records that when one of his co-offenders (a former associate) was moved to the same prison, Mr Romanov avoided contact with that person, something which, it is reasonable to assume, is not easy in the prison environment.
The risk to the Australian community should the person commit further offences or engage in other serious conduct
Paragraph 9.1.2(1) states that, in considering whether a person represents an unacceptable risk of harm:
… decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. 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. In making this assessment, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct; and
b)The likelihood of the person engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the person 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Mr Romanov stated that he completed a number of courses while in prison: ‘Enough is Enough’; ‘English as a Second Language’; and the ‘12 Step Program (AA, GA and NA)’. He said he has also overcome his former cocaine addiction and has “quit smoking”. The Department of Corrective Services case note dated 4 September 2012 states that Mr Romanov:
... demonstrated sound insight into the effects drug supply have (sic) on the community and individuals. He was able (sic) relate this to how he would feel as a father if his children were using drugs later in life. He showed good knowledge of the effects cocaine has on the brain.
As mentioned above, Mr Romanov told me that prison has changed him, he recognises the terrible mistake he made by getting involved in drugs and will never do so again. Two of Mr Romanov’s friends have provided statements of support, as has Ms C’s uncle. All say that they have visited Mr Romanov while he has been in custody and that he deeply regrets his involvement with drugs and is remorseful. Mr Romanov has also been offered employment as a bricklaying labourer, and another friend has offered him short term accommodation on his release, which has been approved by the Probation and Parole Service. For the longer term, Ms C’s uncle, the principal of a real estate agency, has offered to find the family suitable rental accommodation.
Mr Romanov said he is not taking medication regularly for back pain, just sometimes when the pain becomes worse. He acknowledged that working as a labourer could make his back pain worse but said that if this happened, he would try and find other work, for example as a fork lift driver, which he has done in the past. This earned him a weekly wage of about $900.
I am satisfied that Mr Romanov has a close relationship to his wife and wants to be with her and their children. He has provided evidence of rehabilitation, community support and reasonable prospects of employment. If released into the community, he will remain on parole until 7 December 2014, subject to parole conditions including undertaking drug testing if directed and not associating with his two co-offenders.
In conclusion, I am satisfied from the evidence that while Mr Romanov committed two serious offences, the risk of his reoffending is minimal. Mr Romanov remains untested in the Australian community since the time of his offending and, for that reason, given his prior criminal conduct, the protection of the Australian favours the cancellation of his visa. Nevertheless, in my view, given the evidence of rehabilitation and the minimal risk of his reoffending, this primary consideration must be carefully weighed in the balance with the other primary and ‘other’ considerations.
STRENGTH, DURATION AND NATURE OF THE PERSON’S TIES TO AUSTRALIA
The second primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the strength, duration, and nature of Mr Romanov’s ties to Australia. Paragraph 9.2(1) states that decision-makers must have regard to:
a)How long the person has resided in Australia, including whether the person arrived as a young child, nothing that:
i.Less weight should be given where the person began offending soon after arriving in Australia; and
ii.More weight should be given to time the person has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family, social and/or employment links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Mr Romanov first arrived in Australia on 12 February 2005 at the age of 30. He is now aged 38 and has been in Australia for nearly seven years, taking into account his absence from Australia of over 14 months between 24 May 2007 and 13 August 2008. During this period, he returned to Macedonia while his father was being treated for cancer. His father subsequently died on 14 September 2009 (a certificate confirming this was provided) about a year after Mr Romanov returned to Australia. Mr Romanov’s only convictions in Australia are those for which he was sentenced on 11 November 2011 in respect of conduct that took place on 17 June 2010 (the supply of drugs) and 8 December 2010 (the possession of drugs). Thus, the offending took place five years after Mr Romanov first arrived in Australia.
The evidence indicates that Mr Romanov is a loving and caring father who has a close relationship with his wife to whom he has been married for eight years and nine months. The statements provided by his friends and his wife’s uncle and the offer of employment indicate that Mr Romanov has good links with the Australian community. As noted, his wife and children are Australian born and Australian citizens. His wife’s parents, who are also citizens, are presently in Macedonia caring for her elderly grandfather but, according to her uncle’s evidence, will return to Australia in due course. While Ms C and the children are currently in Macedonia, Ms C’s evidence is that she took the children to Macedonia to protect them from the emotional consequences of their father’s imprisonment and for her to have the emotional and financial support of their families in Macedonia. This was corroborated by Ms C’s uncle’s evidence. Ms C gave evidence of the poor living conditions in Macedonia and her wish to be reunited with her husband and for them to be living together with their children as a family in Sydney. Mr Romanov also spoke of this and of his aim of contributing to the Australian community.
Mr Romanov has been employed during his time in Australia and has supported his family. He worked as a fork lift driver for about two years and then as a flooring installer for about three years prior to his being arrested and remanded in custody. He also worked while in prison for which, as mentioned, he is recorded in a Department of Corrective Services Case Note dated 9 March 2012 as having received “favourable comment”.
Mr Kochardy pointed out that Mr Romanov first came to Australia as a mature adult aged 30, has spent a considerable period outside Australia since then as well as two years in prison, and still has limited English skills which necessarily constrain his ability to integrate into the Australian community. The evidence indicates, as stated, that Mr Romanov’s offending was connected with drug addiction and his absence from Australia, while his father was receiving treatment for cancer, has been explained. I also note that Mr Romanov has undertaken an ‘English as a Second Language’ program in prison to improve his language skills and he told me at the hearing that he understands English reasonably well but is still a little hesitant in his spoken English.
I am satisfied from the evidence that, on balance, this consideration, favours Mr Romanov’s visa not being cancelled, albeit not strongly given the factual circumstances.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The third primary consideration that paragraph 9(1) of Direction 55 requires the Tribunal to consider is the best interests of minor children in Australia affected by the decision. This consideration only applies where the child is, or will be, under 18 years old at the time the decision to cancel Mr Romanov’s visa is expected to be made. Where there is more than one child under 18 years old, paragraph 9.3(3) states, “[i]f there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ”.
Paragraph 9.3(4) sets out a number of factors that must be considered (where relevant) in ascertaining the best interests of the child. These include: the nature and duration of the relationship between the child and the person; the extent to which the person is likely to play a positive parental role in the future, taking into account the length of time remaining until the child turns 18, and any Court orders relating to parental access and care arrangements; the impact of the person’s prior conduct and any likely future conduct, and whether that has, or will have, a negative impact on the child; the likely effect that any separation from the person would have on the child; whether there are other persons who already fulfil a parental role in relation to the child; any known views of the child; evidence that the person has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and evidence that the child has suffered or experienced any physical or emotional trauma arising from the person’s conduct.
Mr Romanov has two children, aged seven and four who are currently in Macedonia with Ms C. On 19 January 2011, they departed Australia with their mother on a temporary basis pending Mr Romanov’s release from custody. Mr Romanov said that while he was in prison, he kept in touch with his wife and children by telephone and now that he is Villawood, they speak almost daily. Because the children are Australian citizens and have a right to return to Australia, the Minister accepts that it open to consider the children’s best interests even though they are currently not in Australia.
In her statement filed on 25 January 2013, Ms C said that she and her husband decided that they should leave Australia,
… in order to protect our sons from emotional and psychological trauma. The children around them and their friends were constantly talking about what happened which according to us had (sic) neggative (sic) impact on our older son who went to school.
Ms C told me that she did not want her sons to see their father in prison and needed the support of their families in Macedonia while her husband was in prison.
Ms C said the house in which they are living in Macedonia is in a very poor state:
I am scared for my sons’ lives here because the house is not safe but we do not have any other choice. Macedonia is a very poor country with a very high unemployment rate, the average salary is 150 Australian dollars a month in Bitola, where we are. We did not see any chance of a bright future for our children here in Macedonia and that is why we decided and we wanted and want to come to Australia because we do not have any conditions to educate our children here.
Ms C’s uncle, the principal of a real estate agency, who gave evidence at the hearing, said he was in Macedonia in July 2012 and visited Ms C and her children on many occasions:
After witnessing and seeing with my own eyes how and where these two kids live with their mother you would be shocked, our garages are of better quality. The home they share is of poor quality, very old and falling apart (sic) there is no hand rails on stairs (sic), broken windows …
Ms C’s uncle described the house as of two storeys, with the ground floor intended for stock, and the upper floor, accessed by external stairs, with the living quarters. He said the house is of one and a half to two bedrooms and needing major repairs, with the external staircase being without handrails and very unsafe. One of the children has fallen on the stairs and hurt his leg. Mr Romanov’s mother, with whom Ms C and the children are living, receives a pension of about 100 dollars a month, and this is the only financial support the family have at present.
The Tribunal was provided with a statement dated 23 January 2013 from the person who has been Ms C and Mr Romanov’s older son’s teacher for the past two years. She described the son as a very bright child who,
… is unhappyin (sic) these surroundings, he still sees this as a foreign country and constantly talks about going back to his country. I see his eyes light up when he talks about it.
The teacher says she is “worried for the future of this family living in this poor country”. A United States Department of State ‘Country Report on Human Rights Practices for 2011’ in Macedonia states that “[t]he country’s schools suffered from chronic underfunding and insufficient classroom space”.
Mr Kochardy said the Minister concedes that it is in the children’s’ best interests to live with their parents in Australia. However, he submitted that if Mr Romanov were to return to Macedonia, he would be reunited with his children and Ms C, he would be able to provide them with adequate support, and the children would receive an adequate education. Mr Romanov would hopefully find employment to enable him to support his family and repair the house in which they are currently living. The children would be remaining in the country where they have lived for the past two years, where they are familiar with the culture, and where their parents have friends and family support. Moreover, the children could always visit Australia with their mother.
Mr Dobbie, for Mr Romanov, said Ms C only took the children to Macedonia temporarily while their father was in custody to avoid the shame associated with their father being in prison and to receive emotional and financial support from their families. Mr Dobbie said the Minister accepts that it is in the children’s best interests to be reunited with Mr Romanov and to live with their parents in Australia. The evidence of the older son’s teacher and the Country Report for Macedonia supports the other evidence that the children’s quality of life, including their education, will be superior in Australia.
I am satisfied from the evidence provided to me that Mr Romanov’s relationship with his children is a close and loving one. The children’s current living conditions in Macedonia are very poor and while these conditions would improve if Mr Romanov were reunited and living with his family there, I accept that the education system, the opportunities for employment and the standard of living are significantly better in Australia. The children are Australian born and Australian citizens and, while they are familiar with life in Macedonia, their interests would best be served if Mr Romanov is permitted to remain in Australia and be re-united here with his family. This primary consideration strongly favours Mr Romanov’s visa not being cancelled.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
The fourth primary consideration is whether Australia has any international non-refoulement obligations to the person. There is no evidence of any non-refoulement obligations in Mr Romanov’s case.
OTHER CONSIDERATIONS
As noted above, paragraph 10 of Direction 55 states that ‘other’ considerations, where relevant, must be taken into account. However, subparagraph 8(4) states that primary considerations should generally be given greater weight. Relevant ‘other’ considerations in Mr Romanov's case specifically referred to in Direction 55 are the effect on the person’s immediate family in Australia, if those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely; any impact on business interests the person may have in Australia; the impact of a decision not to cancel a visa on the Australian community, including victims of the person’s criminal behaviour and their family, where that information is available and the person has been afforded procedural fairness; and the extent of any impediments the person may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the person’s age and health, any substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.
The immediate effect of Mr Romanov’s visa being cancelled on his Australian citizen family – his wife and two children - has been canvassed extensively above. It would have a significant negative impact.
There is no evidence to suggest that Mr Romanov would experience any language or cultural barriers if he is returned to Macedonia. He said he had a good upbringing in Macedonia, received a High School education, and worked there before coming to Australia. He has a close relationship with his mother and his sister, and has a good relationship with his wife’s family.
Mr Romanov said he is familiar with living conditions in Macedonia, which are “very hard”. There is no assistance to do things and not much work. He acknowledged that if he has to return to Macedonia, he could help repair his mother’s house where she and his wife and their children are currently living, but said he is not qualified to undertake building work. Ms C and her uncle have also provided evidence about the difficult living conditions in Macedonia, including the difficulty of finding employment. However, Mr Romanov worked in Macedonia before coming to Australia and while finding employment may be difficult, it should still be possible.
Mr Romanov is relatively young at the age of 38, although, as noted above, he suffers from lower back pain (a report of a CT scan of his lumbar spine dated 18 December 2008 refers to “Mild spondylotic changes”), for which he takes medication if the pain flares up. He also suffers from “ulcerative colitis” for which he takes Imuran daily.
CONCLUSION
Paragraph 7(1) of Direction 55 requires the Tribunal, informed by the principles set out in paragraph 6.3, to determine whether the risk of future harm is unacceptable, balancing the likelihood of future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community. The principles in paragraph 6.3 include, relevantly, taking into consideration the length of time the person has made a positive contribution to the community and the consequences of a visa cancellation for minor children and other immediate family members in Australia.
I have had regard to the primary considerations, discussed above, as required by paragraph 9(1). I am satisfied that while Mr Romanov has committed two serious offences in 2010, his prospects for rehabilitation are excellent and the risk of his engaging in future criminal conduct is minimal. In my view, this is an acceptable risk that should be tolerated by the Australian community in the particular circumstances of this case. These circumstances include his ties to the Australian community but, most particularly, the best interests of his children, which, in my view is the weightiest primary consideration in this case, and one which strongly favours his visa not being cancelled. As noted above, the consequences of a visa cancellation for his immediate family members, his Australian citizen wife, is also a significant ‘other’ consideration favouring his visa not being cancelled, notwithstanding that Mr Romanov could re-integrate relatively easily into the Macedonian community. The balancing exercise therefore weighs in favour of the discretion in s 501(2) of the Migration Act1958 not being exercised to cancel Mr Romanov’s visa.
DECISION
The decision under review is set aside and a decision substituted that the Minister’s discretion under s 501(2) of the Migration Act 1958 should not be exercised to cancel Mr Romanov’s visa.
I certify that the preceding 52 (fifty two) paragraphs are a true copy of the reasons for the decision herein of Deputy President RP Handley.
......[sgd]..................................................................
Associate
Dated 8 February 2013
Date of hearing 4 February 2013 Date final submissions received 4 February 2013 Advocate for the Applicant N Dobbie Solicitor for the Applicant Visa Immigration Specialists Australia Pty Ltd Solicitor for the Respondent M Kochardy, Department of Immigration and Citizenship
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