Donevski and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration)
[2024] AATA 2945
•5 August 2024
Donevski and Minister for Immigration, Citizenship, and Multicultural Affairs (Migration) [2024] AATA 2945 (5 August 2024)
Division:GENERAL DIVISION
File Number: 2024/3174
Re:Dean Donevski
APPLICANT
AndMinister for Immigration, Citizenship, and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Burford
Date of decision: 5 August 2024
Date of written reasons: 20 August 2024
Place:Perth
The decision of the delegate of the Respondent dated 13 May 2024 not to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa is affirmed.
.......................[Sgd]..............................
Deputy President
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 53 year old citizen of North Macedonia – extent of impediments if returned to North Macedonia – Non-Revocation Decision is affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 15, 34, 34(2), 189, 196, 197C, 198, 499, 499(1), 499(2A), 500, 500(1)(BA), 501, 501CA, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501E, 501F, 503
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Khalil and Respondent for Home Affairs [2019] FCAFC 151
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
ReHarrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
SECONDARY MATERIALS
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 9.1.2(2)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3, 5, 5.1, 5.2, 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 7(2), 8, 8(1), 8.1, 8.1(1), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(h), 8.1(2), 8.1(2)(b), 8.1.2, 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.4, 8.4(4), 8.4(4)(a)-(h), 8.5, 8.5(1), 8.5(2), 8.5(3), 8.5(2)(a)-(f), 8.5(3), 9, 9.1.2(3), 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3
Permanent Missions of North Macedonia to the OSCE, UN and Other International Organisations in Vienna, Information Exchange on the Code of Conduct of Politico-Military Aspects of Security, dated May 2021
REASONS FOR DECISION
Deputy President Burford
20 August 2024
THE DECISION IN THIS MATTER WAS MADE AND PROVIDED TO THE PARTIES ON 5 AUGUST 2024 WITH A NOTE THAT WRITTEN REASONS WOULD BE PROVIDED WITHIN A REASONABLE TIME. THESE ARE THOSE WRITTEN REASONS.[1]
THE APPLICATION
[1] See Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].
The Applicant seeks review of a decision of a delegate of the Respondent (the Minister) dated 13 May 2024 not to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa (visa) under section 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act).
BACKGROUND
The Applicant is 53-year-old citizen of North Macedonia. He arrived in Australia on 13 December 1972 from the former Yugoslavia at the age of one year old.[2] He returned to Yugoslavia in 1976 and 1986 but has otherwise remained in Australia since arriving.[3]
[2] R1, G18, page 145.
[3] R1, G18 and G19.
From 1 September 1994 the Applicant held a Class BF transitional (permanent) visa by operation of law under the Migration Reform (Transitional Provisions) Regulations (the visa).[4]
[4] R1, G21, page 150-155; Section 34 of the Migration Act 1958 (Cth) provides criteria by which a person is deemed to have been granted a permanent visa known as an absorbed person visa. If the requirements in s 34(2) are met, the visa is taken to have been granted on 1 September 1994. The visa has a ‘stay’ component only and does not allow for travel, including re-entry, into Australia. The visa is granted by operation of law.
The Applicant was convicted of several offences in 2014 including for ‘Possession of a prohibited drug with intent to supply (methylamphetamine)’ on 17 June 2014 for which he was sentenced to a term of 2 years imprisonment. While serving that sentence he was notified on 9 October 2014 that consideration was being given to cancelling his visa. He made representations through his then representative and on 20 November 2014 was notified by a delegate of the Minister that they had decided not to cancel his visa. He was warned that any future offending may impact his migration status.[5] He signed for receipt of that notice on 24 December 2014.[6]
[5] R1, G18, pages 138-139.
[6] R1, G17, page 137.
On 14 August 2020 the Applicant was convicted in the District Court of Western Australia of a further offence of ‘Possession of a prohibited drug with intent to sell or supply (methylamphetamine)’, for which he was sentenced to a term of imprisonment of 3 years and 3 months.[7]
[7] R1, G6, page 37.
On 5 November 2020 the Minister cancelled the Applicant’s visa under s501(3A) of the Migration Act on the basis that the Applicant 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). The Applicant was originally notified of that decision by letter dated 5 November 2020. However, following Federal Court decisions suggesting that notice did not comply with the requirements of the Migration Act,[8] the Applicant was renotified of the decision by letter dated 19 January 2022. That letter indicates the notice was hand delivered to the Applicant in Acacia Prison.[9]
[8] EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.
[9] R1, G21, page 150.
On 18 February 2022, the Applicant made representations to the Minister requesting revocation of the Cancellation Decision under section 501CA of the Act.[10] Further representations were made to the Minister in December 2023.[11]
[10] R1, G10, pages 69-118; G11, pages 119-130.
[11] R1, G12, pages 131-133; G14, page 134; G15, page 135; G17, page 136.
On 13 May 2024 a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision.[12] This is the reviewable decision before the Tribunal.[13] The Applicant lodged his application for review of the decision with the Tribunal on 22 May 2024.[14]
[12] R1, G3, page 15.
[13] s 500(1)(BA) of the Migration Act.
[14] R1, G2, page 4.
THE HEARING AND THE EVIDENCE
The hearing was held on 22 and 23 July 2024 at the Tribunal’s Perth Registry. The Applicant attended the hearing in person. He was not represented. The Minister was represented by Mr Fyfe of Minister Ellison who also appeared by MS Teams from Sydney.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from:
·Tenzen Dean McCallum, the Applicant’s son; and
·Shanlei George, the Applicant’s son’s partner.
All the witnesses appeared in person.
The Applicant filed an ‘Outline of Submissions’ (ASFIC) dated 12 July 2024 and the Respondent filed a Statement of Facts, Issues and Contentions (RSFIC) dated 5 July 2024.
The Tribunal notes the Applicant indicated at the hearing that a friend at the detention centre assisted him in preparing his ASFIC.[15] That friend was not identified. As discussed with the Applicant at the hearing there were some errors in the ASFIC, including references to a return country that did not relate to the Applicant, however the Minister did not seek to make any issue of errors in the ASFIC and the Tribunal accepted that the ASFIC represented the general contentions the Applicant sought to make in support of his application.[16]
[15] Transcript, page 5.
[16] See transcript, page 104.
The Tribunal was mindful of the Applicant’s lack of representation in the conduct of the proceedings. The Tribunal provided an opportunity at the hearing for the Applicant to respond to matters put by the Respondent in written submissions and in oral closing submissions and to provide answers to questions asked by the Tribunal which were directed at relevant considerations under Direction no. 110.
The following documents were marked as exhibits:
·Collection of Photographs (Exhibit A1);
·Letter from Holyoake dated 2 July 2024 (Exhibit A2) (Exhibit A2);
·Medical Records from International Health & Medical Services (Exhibit A3);
·Article Euro News dated 14 June 2023 (Exhibit A4);
·Article US State Department Report North Macedonia (Exhibit A5);
·Character Reference from Tenzen Dean McCallum (undated) (Exhibit A6);
·Character Reference from Vanessa McCallum (undated) (Exhibit A7);
·Character Reference from Shanlei George (undated) (Exhibit A8);
·Character Reference from Tammy Phillis dated 17 June 2024 (Exhibit A9);
·Character Reference from Capa Caperelli (undated) (Exhibit A10);
·Character Reference Ali Bouquey-Murray dated 6 December 2023 (Exhibit A11);
·Letter from Corey-Dean McCallum (undated) (Exhibit A12);
·Letter from David Murray dated 5 December 2023 (Exhibit A13).
·G - Documents (G1 - G22)) (Exhibit R1);
·Supplementary T documents (S1 - S35) (Exhibit R2);
·Further supplementary T documents (S36 - S38) (Exhibit R3);
·Summons Material from Corrections the Department of Justice of Western Australia (Exhibit R4).
REFUSAL AND VISA CANCELLATION ON CHARACTER GROUNDS
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 provides 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.[17] 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.[18]
[17] Migration Act s 501CA(3).
[18] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[19]
[19] See s 501CA(4) of the Migration Act.
For the reasons below, the Tribunal has decided that the Non-Revocation Decision should be affirmed.
THE APPLICANT’S CONDUCT AND OFFENDING
The Applicant has been convicted and sentenced for various offences between 1990 and 2020.[20] A summary of the Applicant's criminal offending is provided in Annexure A.
[20] R1, G6, pages 37-38.
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’.[21] Failure to pass the character test arises as a matter of law.[22][21] Migration Act s 501(7)(c).
[22] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
As noted above, on 14 August 2020 the Applicant was convicted in the District Court of Western Australia of ‘Possession of a prohibited drug with intent to sell or supply (methylamphetamine)’, for which he was sentenced to a term of imprisonment of 3 years and 3 months.[23]
[23] R1, G6, page 37.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[24]
[24] See Migration Act s 501CA(4)(b)(i).
CONSIDERTION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
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.[25] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[25] 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].
Direction no.110
On 7 June 2024, the Minister made ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction no. 110) under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No 99.[26]
[26] Direction no. 110 sections 2-3.
The Tribunal notes that the previous direction, Direction No 99, was in force at the time the Non-Revocation Decision was made. Following the making of Direction no. 110, the Tribunal held a directions hearing on 14 June 2024 during which it discussed the new Direction with the parties and explained that the Tribunal would now be deciding the matter applying Direction no. 110. A copy of Direction no. 110 was provided to the parties, the Tribunal adjusted the timetable for submissions and evidence to allow time for the parties to take account of the new Direction in the evidence and submissions.
An objective of Direction no. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[27] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction no. 110 where relevant to the decision.[28]
[27] Direction no. 110 para 5.1(4).
[28] Direction no. 110 section 6 referring to sections 8 and 9.
Paragraph 5.1 of Direction no. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a fulltime basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction no. 110 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) The safety of the Australian Community is the highest priority of the Australian Government.
(3) 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.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) 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.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[29]
(a)the protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged by the Applicant (if any);
(c)the strength, nature and duration of the Applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
[29] Direction no. 110 section 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the application, include (but are not limited to):[30]
(a) the legal consequences of the decision;
(b) the extent of impediments if removed; and
(d) the impact on Australian business interests.
[30] Direction no. 110 section 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction no. 110 can be found in section 7, which provides that:·Information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations.
·The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations and primary considerations should generally be given greater weight than the ‘other considerations’.
·One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
The Applicant submitted that there were several reasons why the Cancellation Decision should be revoked. In his application for review, the Applicant claimed that Minister’s decision was wrong for the following reasons:[31]
1. Direction No 99, in its perspicacious articulation, emphatically underscores the imperative that individuals with long term residence, whose temporal sojourn within the Australian dominion has transpired over a protracted temporal arc, ought to be accorded judicious and
distinctive contemplation. Regrettably, it has been ascertained that the Adjudicative Tribunal in question, in flagrant disregard of the explicit guidelines espoused by the Minister, failed to align its adjudicative stance in accordance with the aforesaid directives.
3. Excessive fervor [sic] was exhibited in handling my case, with insufficient regard for the paramount welfare of my children.
[31] R1, G2, page 11. Note there is no point 2 in the original.
He detailed the reasons why he considered there was another reason why the cancellation decision should be revoked in his ASFIC and in oral submissions to the Tribunal. In summary the Applicant claimed:[32]
[32] ASFIC pages 25-27; R1, G2 pages 10-11.
·He is remorseful for his offending;
·He has undertaken rehabilitation in the prison context and in detention and was assessed as a low risk of reoffending in the prison context;
·He is now drug free and has maintained this in his current term of imprisonment and detention;
·He has cut ties with anti-social peers and has the prosocial support of his family and friends;
·He has a plan for housing, employment and ongoing rehabilitation in the community which will act as protective factors against reoffending;
·He is committed to not reoffending to support his children and build relationships with his current and future grandchildren;
·The best interests of his youngest son, who is still under 18 years old, his granddaughter and his nephews were that he remains in Australia to support them and build relationships with them noting his family bonds are important in his culture;
·His support from family and friends if allowed to remain in Australia;
·The length of time he has lived in Australia, which is effectively for his whole life;
·His lack of family ties and social supports in North Macedonia and his unfamiliarity with the country including its language and employment environment;
·His ongoing health issues treatment for which may not be available in North Macedonia;
·The hardship caused by separating him from his family noting such separation would effectively be permanent.
The Respondent submitted, in summary, that the considerations weighing against the Cancellation Decision being revoked and outweigh those considerations weighing in favour of revocation noting:[33]
[33] RSFIC.
·The Applicant’s overall conduct should be viewed very seriously noting he has been sentenced to multiple terms of imprisonment which is a last resort in the sentencing hierarchy;
·In addition to numerous drug offences the Applicant has been convicted of multiple driving and weapons offences;
·The seriousness of his overall conduct increased by the fact he was previously formally warned of the consequences of further offending;
·Illicit drugs inflict devastating consequences on the community and were the Applicant to reoffend considerable physical, psychological and economic harm would be caused to the members of the community;
·The Applicant continues to represent an unacceptable risk of reoffending noting that previous prosocial supports were not sufficient to prevent prior offending. There is limited evidence of the effectiveness of any recent rehabilitation efforts which have not been tested in the community;
·Rehabilitation previously undertaken in prison did not prevent the Applicant from committing further drug offences on release;
·The Minister acknowledged the Applicant’s ties to Australia and his contributions through employment and community activities however these ties are outweighed by other considerations;
·The Applicant’s son is nearing 18 years of age and has the care and protection of his mother. His best interests should be given some weight but not significant weight. The Applicant does not have a parental relationship with the other children and there was limited evidence going to their best interests. Their interests should be afforded limited weight;
·The community would expect the Applicant would not continue to hold a visa;
·No-non refoulement issues do not arise with respect to the Applicant’s return and to the extent protection claims are raised they could be dealt with through an application for a protection visa;
·While the Applicant faces some practical, financial and emotional hardship if removed to North Macedonia due to separation from family and his health these impediments are not insurmountable and should be given limited weight;
·There is no evidence to suggest the Applicant’s visa cancellation would impact Australian business interests.
Having regard to these considerations it was contended by the Minister that the Tribunal should not be satisfied that there is another reason why the decision to cancel the Applicant's visa should be revoked.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction no. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end 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.[34]
[34] See also Direction no. 110 para 8(1).
As noted earlier, Direction no. 110 provides that the protection of the Australian community is generally to be given greater weight than other primary considerations.[35]
[35] Direction no. 110 para 7(2).
Paragraph 8.1(2) of Direction no. 110 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 must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[36] In doing so, paragraph 8.1.1(1) of Direction no. 110 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The Direction also provides that certain other crimes or conduct are considered to be ‘serious’. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[37]
[36] Direction no. 110 para 8.1(1).
[37] Direction no. 110 para 8.1.1(1)(a).
In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, the Tribunal must have regard to the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness; the cumulative effect of repeated offending; whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour). In addition, Direction no. 110 introduced a requirement under this section that the Tribunal consider the impact of the offending on any victims and their family, where information regarding this is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness as part of its consideration of the nature and seriousness of the Applicant’s offending and other serious conduct.[38]
[38] Direction no. 110 para 8.1.1(1)(d).
The Applicant contended that he is remorseful and will not reoffend. He contended he was not a violent offender and has been drug free for a significant period. He submits there is no risk he will reoffend. The Minister contends that the Applicant’s offending was very serious and he represents an ongoing risk of reoffending. The Minister contended this factor weighs determinatively against revocation.
The Applicant has been convicted of more than 40 offences between November 1990 and August 2020. These include:[39]
·Numerous drug offences including two separate counts of possession of methylamphetamine with intent to sell or supply, possession of drug paraphernalia, possession of prohibited drugs (cannabis and methylamphetamine);
·Firearms offences including three separate counts of possessing an unlicenced firearm;
·Driving offences including driving with a prescribed illicit drug, multiple counts of driving under suspension and driving without authority and suing an unlicenced vehicle; and
·Property and dishonesty offences including stealing, knowingly obtaining a payment not payable, damage and possession of stolen or unlawfully obtained property.
[39] R1, G6.
He has received, fines, licence disqualifications, bonds in addition to terms of imprisonment (suspended and unsuspended) totalling more than 6 years.
The Tribunal notes it is required, pursuant to Direction no. 110, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’. While none of the Applicant’s offending falls within the conduct described in these provisions, it is clear that there will be crimes or other conduct which can properly be characterised as serious or very serious, but which are not specifically mentioned in this part of Direction no. 110. In the Tribunal’s view, such crimes would include serious drug offences. Notwithstanding none of the Applicant’s offending falls within the categories outlined in par 8.1.1(1)(a) or 8.1.1(1)(b) of Direction no. 110, in the Tribunal’s view the Applicant’s record of offending is serious for the reasons detailed further below.
The offence which gave rise to the mandatory cancellation of the Applicant’s visa was committed in February 2017. The Applicant was convicted of the offence on 14 August 2020. The Applicant was convicted of possession of a prohibited drug with intent to sell or supply (methamphetamine), which carried a maximum penalty of 25 years' imprisonment or $100,000.00 fine, or both. On the same occasion he was also convicted of possession of $650 cash which was reasonably suspected of being unlawfully obtained,[40] an offence which carried a maximum penalty of seven years.[41] The charges arose from a police search of the place the Applicant was staying at the time (in 2017) where a total of approximately 17.3 grams of methamphetamine were located in addition to cash, scales, clip seal bags and smoking implements.[42] He plead not guilty and was convicted by a jury.
[40] Note while the Applicant was charged with possession $1,940.00 cash, the sentencing remarks indicate the amount with respect to which the Applicant was found guilty was $650; R1, G7, page 40.
[41] R1, G7, page 40.
[42] R1, G7, page 40
The seriousness of the Applicant’s offending was reflected in the sentencing remarks of the sentencing judge who highlighted that drug offences of this kind were ‘so serious that the overriding consideration was the need for general deterrence’.[43] His Honour observed that he did not form the view the Applicant was deliberately breaching the law but that he could not rid himself of drug addiction.[44] His honour was satisfied that the Applicant was a ‘user/dealer’ and that he was intending to sell some of the drugs to fund his own habit. He accepted that at the time the Applicant was a ‘heavy user of methamphetamine’ and observed that with respect to the impacts of the Applicant’s drug use that:[45]
When you are using methylamphetamine it does affect you in one of four ways at least. It quite often affects your health, it affects your relationship with other people, it affects your ability to work and it ultimately affects your relationship with the criminal justice system.
[43] R1, G7, page 41.
[44] R1, G7, page 41.
[45] R1, G7, page 42.
In sentencing the Applicant to more than three years imprisonment, his Honour noted that:[46]
'the offence is so serious that imprisonment is the only appropriate disposition. The need for general deterrence, the need for specific deterrence, is so high that a period of imprisonment is required'.
[46] R1, G7, page 42.
The Applicant’s 2020 conviction was not his first resulting in a term of imprisonment. In June 2014 the Applicant was convicted and sentenced to imprisonment for a term of 2 years in relation to another charge of possession of methamphetamine with intent to sell or supply. That offence occurred in January 2012 when police executed a search of the Applicant’s home in which a total of 5.48 grams of methylamphetamine were found.[47] The drugs were secreted in various locations in the home along with several MDMA tablets, a quantity of MDPV (another prohibited drug), cannabis, dexamphetamine and a quantity of a crystal substance used as a drug bulking agent. He plead not guilty and was convicted by a jury.
[47] R1, G8, pages 46-47.
The Tribunal notes the sentencing judge did not accept the Applicant’s explanations for the offences and found he was not a credible witness.[48] In particular, the sentencing judge noted the Applicant’s claim to have commenced drug use in around May 2012 when his long term relationship broke down contradicted his conviction in January 2012 for driving with a prescribed illicit drug (methamphetamine). Her Honour was satisfied that the Applicant had been dealing in methamphetamine for some time for financial gain[49] indicating that the offending was not isolated or out of character. She noted the Applicant’s offending history did not entitle him to leniency for good character.[50] Her Honour found the Applicant minimised the offending.
[48] R1, G8, page 48.
[49] R1, G8, page 57.
[50] R1, G8, page 60.
Her Honour noted the serious impacts of methamphetamine for users and the people who ‘become victims of the aggressive behaviour of people who use this drug’ noting that methamphetamine ‘leads through addiction to the majority of the criminal offences’ coming before the courts in Western Australia.[51] Her Honour considered the offence was so serious that the only appropriate penalty was an immediate term of imprisonment[52] imposing a term of 2 years for that drug offence.
[51] R1, G8, page 61.
[52] R1, G8, page 63.
The sentencing judge considering the 2020 offences noted that they were the most serious of the Applicant’s offences to date.[53] However, the Applicant has been charged and convicted of a further 8 offences relating to possession of drugs[54] between 1998 and 2020. This included one conviction for the possession of drug paraphernalia on which there was a prohibited drug following his arrest and charge for the 2017 offence of possession with intent to sell or supply and while he was awaiting trial in the community.
[53] R1, G7, pages 40-41.
[54] R2, S7, pages 25-28; S11, pages 45; S22, page 72; S23, page 73; S24, pages 78–79; S27, pages 89-90.
The Minister submitted, and the Tribunal accepts, that the Applicant's 14 August 2020 conviction for possession with intent to sell or supply demonstrated an escalation in the seriousness of his offending over time.[55] This is not only because of the amount of drugs involved but also the relatively close proximity of that offence to his release from prison for the earlier possession with intent to sell or supply conviction.
[55] Direction no. 110 para 8.1.1(1)(e).
The Tribunal also considers that the two custodial sentences imposed on the Applicant for the separate possession with intent to sell or supply offences reflect the seriousness of those offences, noting the sentencing judges’ comments about the offending and the fact that sentences of imprisonment are a sentencing of last resort in the sentencing hierarchy.
These were not the Applicant’s only custodial sentences noting he was convicted of knowingly obtaining payment not payable in 2004 and sentenced to 6 months imprisonment of that offence. Further, the Applicant was sentenced to imprisonment with respect to some of his driving offences in 2001. The Applicant been convicted of numerous driving (14)[56] and weapon offences (5) spanning across the period 1990 to 2020. A number of the driving offences and one of the firearms offences occurred after the Applicant had been charged with the 2020 drug offence and was awaiting trial. While these offences were not generally as serious as the drug offences detailed above, they contribute to the overall assessment of the Applicant’s offending as serious. The Tribunal considers such offending to contribute to the overall assessment of the Applicant’s conduct and offending as serious.
[56] R2, S1, page 1; S6, page 23; S12, page 48; S25, pages 82–83; S26, pages 86–87; S29, pages 94 and 96.
The Minister contended that in the context of his total criminal history the Applicant’s driving record demonstrated ‘a blatant disregard for Australian law’. The Tribunal tends to agree, noting in particular the driving offences which occurred despite the serious pending charges for drug offences and the Applicant’s lack of satisfactory explanation for that subsequent offending.
A similar consideration arises with respect to the firearm offences[57] noting that although the Applicant had been convicted in 2014 for possessing an unlawful firearm he was charged again in 2018 and 2019 with similar firearms offences demonstrating of a disregard for the law and an inability or unwillingness to refrain from unlawful activity.
[57] R2, S4, page 15; S24, page 75; S27, page 92; S27, page 90.
Further contributing to the overall assessment of the seriousness of the Applicant’s conduct and offending is that he committed a number of further offences, including the 2020 drug offences, after he was formally warned by the Minister of the consequences of further offending on his visa status. There was no dispute that on 20 November 2014, following his conviction for the 2012 drug offences in 2014, the Minister warned the Applicant that further offending conduct would affect his migration status.[58] This followed consideration of cancellation of the Applicant’s visa and a decision by the Minister in the Applicant’s favour not to cancel the visa at that time. The Applicant accepted he was aware of the letter and the warning but noted that because the process had been straightforward on that occasion he did not appreciate his visa remained at risk if he reoffended.[59] The Tribunal does not accept this explanation, and considers it demonstrates the Applicant’s failure to heed the warning issued by the Minister and reflects poorly on the Applicant. The Tribunal considers this contributes to the overall seriousness of his conduct and offending.
[58] R1, G13, pages 137-138.
[59] Direction no. 110 para 8.1.1(1)(h).
Indeed, the Tribunal considers that the failure to refrain from further serious offending in the face of a clear warning regarding the impact of further offending on his visa status was conduct which must be viewed seriously.
In the Tribunal’s view having regard to the evidence and the comments and assessment of the offending by the courts, the Applicant’s offending was very serious and weighs against revoking the cancellation of his visa.
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 should the Applicant commit further offences. Paragraph 8.1.2 of Direction no. 110 states, in part:[60]
[60] See also Direction no. 110 para 8.1(2)(b).
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should 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. 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.
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[61] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[62] There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[63]
[61] Direction no. 110 para 8.1.2(2)(a).
[62] Direction no. 110 para 8.1.2(2)(b).
[63] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
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.[64]
[64] Direction no. 110 para 8.1.2(2)(a).
As noted above, the sentencing judge observed in 2014 that drug use and sale, in particular methamphetamine, has detrimental impacts on the community including perpetuating crime in the community. While the victims of the Applicant’s offences may not be identified, it does not follow that were he to offend in a similar manner in the future harm would not be caused to members of the community.
It is clear that the sale and distribution of illicit drugs causes widespread harm in the community. Were the Applicant to commit further serious drug offences, serious physical, psychological and economic harm would be caused to those who purchase and consume those drugs, and to those members of the Australian community who suffer as a result of the criminal conduct which is caused by drug use.
Further, the Applicant’s repeated driving and firearms offences place members of the community at risk of physical, psychological and financial harm. Were such offences to be repeated the harm which would be caused is also serious. Similarly, the Applicant’s dishonesty and property offences cause financial loss to the community and undermine the integrity of our welfare system and further offending of a similar kind would cause similar harm to the community. Such harm is serious.
The Minister contended that the harm that could be caused from future similar offending by the Applicant is so serious that even countervailing considerations are insufficient to justify revoking the mandatory cancellation. The Tribunal accepts the harm which would be caused is serious. However, the Tribunal does not accept the harm is so serious that this alone would outweigh any countervailing considerations.
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.[65]
[65] Direction no. 110 para 8.1.2(2)(b).
The Applicant claimed he was rehabilitated and presented no risk of reoffending. The Minister contended that having regard to the factors in para 8.1.2(2)(b) of Direction no. 110 there is also a very real ongoing risk that the Applicant will reoffend, weighing heavily against revocation and outweighing other primary considerations.
Before the Tribunal the Applicant claimed he has abstained from drugs for more than 5 years. He testified that the trigger from his abstinence from drugs was the death of his father in 2017 which brought home to him the consequences of his drug use and the impact on his family.[66] Further, the Applicant claimed that he has prosocial family support which was not present at the time of his most recent offending, has cut ties with anti-social peers and has a plan for rehabilitation in the community.[67] He contended he has an offer of accommodation and employment outside the Perth metropolitan area which will enable him to successfully maintain a drug-free lifestyle in the community and avoid anti-social peers in Perth. The Applicant contended that he was remorseful for his conduct and offending and wished to make amends supporting his children and grandchildren.[68] He contended that the risk of alienating his children again by reoffending and of deportation from Australia had caused him to realise what was at stake and that he was not willing to risk those consequences going forward. This has made him realise 'everything I have to lose if I was to be deported from Australia'.[69]
[66] R1, G10, page 83; G11, page 119; Transcript, pages 36-37.
[67] R1, G10, page 83.
[68] Transcript, pages 58-59.
[69] R1, G11, page 120.
The Minister contended the following factors highlighted the unacceptable risk to the Australian community posed by the Applicant:
·The Applicant's past previous convictions and the presence of family and children in his life have not been sufficient to deter the Applicant from offending in the past. The Minister noted that in sentencing remarks regarding the Applicant's drug possession with intent to sell or supply offending in 2014 the sentencing judge accepted that 'since being charged with this offence which you describe as a wake-up call, you have now ceased using this drug',[70] yet the Applicant continued to commit drug related offences after his conviction in 2014 and following his release from prison.[71]
·The Applicant claims that he ceased using drugs when his father passed in 2017[72] and has been drug free for 5 years and has tested negative while in jail,[73] however his criminal convictions indicate that he continued his drug related offending ‘well after 2017’.[74]
·There is no evidence of the nature and frequency of the Applicant's engagement with Beyond Blue and Narcotics Anonymous as claimed[75] and the Applicant's abstinence from drugs is yet to be tested in the community.[76] The Minister contended that the evidence was insufficient for the Tribunal to be confident that the Applicant is likely to be able to refrain from further substance use if released into the Australian community.
[70] R1, G8, page 59.
[71] R1, G6, page 37.
[72] R1, G11, page 120
[73] R1, G10, page 83; G11, page 119.
[74] R1, G6, page 37.
[75] R1, G10, page 83.
[76] Direction no. 110 para 8.1.2(2)(b)(ii).
The Minister further contended that having regard to the ongoing risk and the potential for similar offending to cause harm, this primary consideration weighs heavily in favour of non-revocation of the visa cancellation. Further, applying para 7(2) of Direction no. 110, this consideration should be given greater weight than other relevant primary considerations.
There was limited evidence before the Tribunal assessing the Applicant’s risk of reoffending in a similar manner. Information contained in the Individual Management Plan (IMP) for Applicant from the prison dated 1 February 2023 indicated that the Applicant was assessed as ‘low risk/need’ in the prison context in the context of access to prison rehabilitation programs for general reoffending in August 2020.[77] There was no information regarding the basis for this assessment however the Tribunal understand is it an assessment for the purposes of determining access to rehabilitation courses. The Applicant told the Tribunal that while he was in Acacia, he did not have an IMP done until 2023. He said he when he asked about ‘programs or anything voluntary’ he was told he was a low risk of reoffending ‘due to my age’ and that he didn’t need to do any programs. He said he did ‘NAs [Narcotics Anonymous]’ and that was it but other programs ‘they wouldn’t allow me to do, or wouldn’t sign me up for it as they said it wasn’t in my IMP’.[78] The Tribunal accepts the prison rehabilitation programs available to the Applicant during his most recent term may have been limited given the assessment recorded in the IMP. However, the Applicant accepted that voluntary programs such as NA were available to him however, he only accessed those on a limited basis in prison.[79]
[77] R4, pages 18-22.
[78] Transcript, page 91.
[79] Transcript, page 41.
The Minister accepted that the evidence supported the proposition that the Applicant poses a low risk into the future, but that this must be viewed with some caution given the length of the Applicant’s criminal history and the fact that he reoffended numerous times after having been sentenced to prison for the 2014 drug offence, including with further drug offences, firearm offences and traffic offences. The Minister accepted that while these were less serious they reflect a continued pattern of criminal behaviour and do not demonstrate a significant level of rehabilitation.[80]
[80] Transcript, page 89.
The Tribunal accepts the IMP records reflect an assessment that the Applicant represents a low risk of general reoffending in the context of access to prison rehabilitation programs. However, as discussed at the hearing, as there was little information regarding the basis and scope of the assessment the Tribunal places more limited weight on the reference to that assessment in the context of its task of assessing the likelihood of reoffending than might otherwise be the case with a detailed risk assessment.
The Tribunal also accepts the Applicant’s desire not to reoffend was genuine. The Tribunal accepts he regrets his past offending and in particular the impact that offending has had on his family and on his migration status.
However, the Tribunal has concerns regarding the Applicant’s insight into his offending and his ability to maintain his commitment to not reoffending noting in particular that his current commitment is untested in the community and that he had previously failed to maintain a commitment to remining drug free and not reoffending despite the benefit of intensive rehabilitation courses in prison. In this regard the Tribal notes that Applicant had access to prison rehabilitation programs during his period of incarceration commencing in 2014. This included completion of the Pathways rehabilitation program and Prison Cognitive Brief Intervention (CBI).
Pathways is a 100 hour structured program providing treatment to individuals who have a history of offending and substance use problems.[81] The Pathways Completion Report, dated 15 September 2015, noted that the Applicant’s offending appeared to have been influenced by a number of factors ‘but mainly his alcohol and other drug (AOD) use’. The report noted the Applicant claimed to have been clean for a year prior to his incarceration (in 2014). He had committed to continuing with Narcotics Anonymous and Drug and Alcohol Through-care Service (DATS) on his release from that sentence. It was observed that ‘given the appropriate support’ and following his risk management plan, the Applicant ‘could successfully reintegrate into the community’.[82]
[81] R4, page 13.
[82] R4, pages 13-17.
The CBI program was completed in August 2014. The report reflected positively on the Applicant’s participation in the program noting his relapse prevention program demonstrated ‘as sound understanding of control’. The Applicant was also observed in prison records as having a positive attitude and engaging respectfully with staff in prison.[83] This is to his credit.
[83] R4.
The Tribunal notes that notwithstanding prior indications the Applicant had ceased taking drugs, had rehabilitated and had demonstrated positive behaviour in prison, the Applicant offended again following his release from prison. He was charged again with possessing methamphetamine with intent to sell or supply in 2017. While the Applicant claimed he commenced taking drugs again in 2017 when his drink was spiked at a party, the Tribunal considers that explanation provides little confidence in the Applicant’s capacity to resist illicit drug taking in the community or to maintain a pro-social lifestyle. In this regard the Tribunal notes in particular the insight the Applicant was reported to have gained into the importance of avoiding anti-social peers in rehabilitation reports from his 2014-2016 term. According to the Pathways report, this was a reported feature of his relapse prevention program. Further, the Applicant committed a number of offences, albeit less serious, after having been charged again with the possession offence which led to the 2020 conviction. In the Tribunal’s view this cast significant doubt on his claimed insight into his offending behaviour and his capacity to remain law abiding.
The Tribunal considers that the Applicant’s reoffending within a relatively short time after his release from prison in June 2016[84] and following completion of the rehabilitation programs offered to him in prison demonstrates any hoped-for positive gain from those programs were not achieved. The Applicant has not undertaken any rehabilitation programs designed to address the underlying causes of his offending since he recommenced drug use and offending in 2017.[85] This causes significant concerns about his claimed rehabilitation and his capacity 2017 to maintain a prosocial lifestyle in the community, noting the very limited rehabilitation he has undertaken since his most recent offences.
[84] While records indicate the Applicant was granted parole in October 2015, it appears he was not released until June 2016. The reasons for this are not evident.
[85] Transcript, page 29.
The Tribunal acknowledges the Applicant has undertaken counselling in detention and has attended Narcotics Anonymous meetings. He has also explored options for rehabilitation in the community, including with Holyoake’s rehabilitation program. He has secured an offer of employment from his friend, Mr Caperelli, and secured accommodation with Ms Phillips whom he met through Mr Caperelli. He contended these arrangements would also enable him to separate from anti-social peers by living outside the Perth-metro area. These plans are to his credit. However, in the light of the failure of previous rehabilitation programs which were reported to have had successful rehabilitative effects and the fact the previous threat of visa cancellation did not have a deterrent effect in the Applicant’s case, the Tribunal considers there remains a real risk the Applicant’s commitment to abstaining from drug use will not be maintained in the community and that he may engage in similar offending in the future.
The Tribunal also had concerns regarding the Applicant’s insight into the extent of his prior drug use, noting that he gave different accounts of when and why he ceased taking drugs. The Applicant contended that he ceased taking drugs when his father died in 2017. However, in several statements, including that of Mr Bouquey-Murray, his father’s death is cited a reason for his making of ‘bad choices’.[86] This creates some uncertainty over the degree and timing of the Applicant’s sobriety. In this regard the Tribunal notes that the Applicant continued to deny or minimise aspects of his offending, including his responsibility for the events leading to the convictions in 2020 which he claimed were the fault of his co-accused. The Tribunal did not consider the Applicant’s explanations for his offences to be credible and notes he continued to deny elements of the offending notwithstanding his conviction by a jury for the 2014 and 2020 offences. The Tribunal considered the explanations offered by the Applicant caused concerns regarding his minimisation of his offending and his insight into its seriousness and underlying causes. This was particularly the case with respect to explanations offered for offences committed while awaiting trial for the 2020 offences where the Applicant blamed his offences on his need to drive due to his diabetes, a lack of knowledge that cars he drove were unregistered and the effects of Covid.[87] That in turn causes concerns regarding his capacity to change that behaviour and avoid a repeat in the future.
[86] A11.
[87] Transcript, page 99.
The Tribunal also considers that there is a risk that offending which occurred when the Applicant claimed to have been drug free, including repeated driving offences, would reoccur. While that offending was less serious, it represents a risk to the community and demonstrates a disregard for the laws put in place to ensure the safety of the community.
Having regard to the information before it, the Tribunal considers that while the Applicant’s commitment to remaining drug-free and not reoffending are commendable, his ability to maintain that commitment is untested and prior efforts have been unsuccessful despite considerable rehabilitation support. This creates a real and ongoing risk of reoffending including of serious drug offending.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs heavily in against revocation.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction no. 110 provides that the Tribunal must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
There is no evidence before the Tribunal to suggest that the Applicant has engaged in acts of family violence. Accordingly, the Tribunal considers that this consideration is not relevant in the Applicant’s case.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3 of Direction no. 110 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
As outlined above, the Applicant has resided in Australia effectively his whole life, since arriving as a 1-year-old. His first recorded offences in Australia were in 1990 for contravening a red traffic signal, failing to provide or providing a false name or address and providing a false name and address.[88]
[88] R1, page 38.
The Applicant submitted he has ties to Australia though his family and friends, in particular his mother, sisters, three sons and their families including his grandchild. His family all live in Australia and he knows no other country. He is expecting another grandchild early next year and wants to be present to support his son, Tenzen, and his son’s partner, Shanlei. He has contributed to the community through work and community activities and plans to continue to do so in the future.[89] Based on the Applicant’s history and the evidence before it the Tribunal accepts, for the purposes of this application, that the Applicant’s family members are citizens or permanent residents in Australia.[90]
[89] R1, G10, page 77; G11, pages 120,129; G13, page 133; G14, page 134; G17, page 136.
[90] R1; G11, page 123-125; A7.
The Minister accepted that the Applicant has family in Australia, has resided in Australia for an extensive period of time, and has made some positive contributions to the community in the past through his employment and volunteering in community sport. However, the Minister contended that this consideration should not attract significant weight in favour of revocation and does not outweigh primary considerations weighing against revocation.
In the Tribunal’s view it is evident that the Applicant’s ties to Australia are strong. The Applicant’s immediate family, his three children, mother and sisters and grandchild reside in Australia. His father is buried here. A number of members of his extended family, including his sibling’s families, also reside in Australia.
Statements provided by the Applicant, his friends and his family members confirmed his close relationship with this family members and the strain which his return would place on them.[91] Several also speak to his positive qualities, work ethic,[92] rehabilitation and the contribution they believe he will make to the community.[93]
[91] A6; A7; A8; A9; A10; A11; A13.
[92] A6; A9; A13.
[93] A6; A12.
The Applicant’s son and his son’s partner testified at the hearing about their close relationship with the Applicant. The Tribunal found their evidence to be frank and credible. It was clear they are close to the Applicant, value his presence in their lives, desire him to be present for the birth of their child and believe he is rehabilitated. Ms George spoke of the fact the Applicant was like a father figure to her and that they were relying on him to support them when their first child is born. She said she did not have a strong relationship with her own father but her relationship with her partner’s family including the Applicant and his former partner is very strong and described the impact on her and her partner if the Applicant were removed in the following terms:[94]
A huge part would be support. Obviously, we’ll have a newborn baby in January, so I don’t have a lot of family involved. So it is predominantly Tenzen’s family, and his father is a huge part of that. And having a grandfather around to help, so give advice. To help. Just be a first-time parent. We don’t know what we’re doing, you know, so to have that father figure around is massive.
[94] Transcript, page 76.
She said she was also in close contact with her partner’s mother and grandparents saying all the family lived nearby. She said the Applicant was very important to the whole family and while ‘his past is not great’ during the previous 5 years he had ‘significantly improved his attitude, his behaviour, his weight – thinking, even’.[95]
[95] Transcript, page 76.
The evidence of the Applicant’s son Tenzen, was in similar terms. He told the Tribunal he wasn’t sure what he would do if the Applicant were removed. He said he called his father all the time and that:[96]
It would just be very hard. I wouldn’t know what to do. Particularly, having a baby and he’d be a good fucking help for me. My little brother still needs to get his licence, so he could be a good help with that when he gets out and what-not. Trying to give that push to get his licence because he doesn’t really want to get it, so hopefully he’s – some more people out there trying to help him. Make him try to get it.
Phone records from Acacia prison from June 2021 submitted by the Applicant to the Department demonstrate the Applicant was in regular contact with Tenzen in prison.[97]
[96] Transcript, page 72.
[97] R1, G10, pages 88-90.
The Applicant’s other adult son, Corey-Dean McCallum, submitted a statement to the Department in support of revocation.[98] This statement was also submitted to the Tribunal.[99] In his statement, Corey-Dean states the Applicant was a good father who went ‘down the wrong path’. He states his believe that ‘his time in incarceration has provided him with the necessary tools to walk on the path of rehabilitation and work on himself to become the man he used to be’. He states he believes he would be better supported in Australia to achieve this and would have little support in North Macedonia. He states that the Applicant ‘is renowned for helping others’.
[98] R1, G13, page 133.
[99] A12.
With regard to his children, the Applicant accepted his drug use has caused damage to his relationship with his eldest and youngest son. He said his younger son has gone through a difficult period and he wants to stay to help him get his driver’s licence and set an example for him losing weight.[100] The Applicant’s former partner, and the mother of his three children, submitted a statement to the Department and to the Tribunal.[101] She states she supports the Applicant remaining in Australia ‘where he can stay connected to his 3 boys and grandchild’. She states:[102]
My boys have been separated from there dad for some time now. But they still crave that fatherly love, only he can give them.
Not many of us Parents are Perfect, but that doesn’t mean you’d never want to see them again. Its been very hard on our boys just with Dean being in lockup. He has hopefully learned by his mistakes and is ready to stay on track and be a great father (like he has always been) and citizen.
[100] Transcript, page 52.
[101] A7.
[102] A7.
Tenzen’s earlier statement also notes that it has been difficult for his younger brother growing up without a father figure around.[103] While there was no evidence from the Applicant’s youngest child, however his mother and brother provided evidence regarding his circumstances and the Tribunal and accepts his children and former partner desire him to remain in Australia. The Tribunal accepts that the Applicant’s ties to Australia through his children and their families are strong.
[103] R1, G14, page 134.
The Tribunal also accepts the Applicant’s former partner would suffer some financial hardship if the Applicant’s visa remains cancelled as he may be less able to contribute to his youngest sons care if returned to North Macedonia where he would need to find employment and establish himself. However, the evidence suggested the older children are financially independent and there was no evidence they would be financially impacted by the Applicant’s removal.
The Applicant submitted that his mother, who is in her 70s, is not in good health and has Type 1 Diabetes and Iron deficiency.[104] There was no medical evidence regarding the Applicant’s mother’s health nor any evidence from her. The evidence from the Applicant was that his sisters live tohis mother though she complained they did not visit enough.[105] Tenzen’s evidence was she was travelling alone to visit her family in North Macedonia at the time of the hearing suggesting her health was not such that she was unable to travel independently or manage her own needs. Further, there was no evidence that the Applicant had provided significant health or carer support for his mother prior to his incarceration, noting he gave evidence he had helped with jobs around the house. The Applicant gave evidence he wanted to care for his mother if he remained in Australia in a similar way:[106]
RESPONDENT: I think you said in some of your documents, that you would play a role in helping her with that?
APPLICANT: Correct.
RESPONDENT: Have you played any role in doing that so far?
APPLCIANT: I did – I was there for you when she – when I was on the outside. I’d go – after dad passed away, I’d go and help her do – cut her lawns. Help her with her gardening. If something needed fixing around the house, I would fix it for her. But obviously, since being in jail – I found out only while I was in jail she had a type 1 diabetes, so yes, but that’s another strong point, you know. Mum, she’s been there always for me. I’m the only son. I want to be there for her, you know. She always said, ‘You done – you do wrong things. You pick – you make wrong decisions’, but this time in life – well, she always said to me, ‘Why didn’t you get your citizenship?’, and I, you know, honestly what I said to her: ‘Mum, when you got your citizenship in 1979, I was only a child. I don’t understand how the government didn’t make me a citizen when my parents become citizens’. I don’t – I still don’t know to this day. People say that as a child, you should’ve been – you should’ve become a citizen when your parents become citizens. I don’t – I don’t know, and I can’t play that card.
[104] R1, G12, page 132.
[105] Transcript, pages 59-60.
[106] Transcript, page 53.
While the Tribunal accepts his mother would be negatively impacted by his removal the Tribunal does not accept, she is dependent on him for care or support due to her health or advancing age in such a manner that she her health or ability to live independently would be significantly impacted by his absence.
The Applicant also contended his three sisters, and their families, would be impacted by his removal. There was no evidence from any of these family members. However, the Tribunal accepts they would be negatively impacted by his removal as they would lose the opportunity for regular in person contact with him were they to seek such contact.
The Tribunal notes that in one statement to the Department the Applicant mentioned a ‘current partner’, Coral Little, who the Applicant said was pregnant with his child. This reference appears to have been from 2022.[107] Later evidence suggests they were no longer together and that the child had miscarried.[108] No evidence was offered from Ms Little and no mention of her or any child with her was made by the Applicant in evidence or submissions to the Tribunal. The Tribunal is not satisfied that Ms Little would be impacted the Applicant’s removal.
[107] R1, G11, page 119.
[108] R1, G11, page 130.
There was no evidence of formal involvement with any community organisations engaged in by the Applicant however the Tribunal accepts he supported community sports activities and was employed prior to his 2014 incarceration, including as a truck driver.
Several members of the community provided statements in support of the Applicant.[109] These spoke to the Applicant’s friendship, support and prospects for rehabilitation and evidence his connection with members of the community. The Tribunal accepts the Applicant has ties in the community who would suffer from the loss of his friendship if his visa remains cancelled.
[109] R1, G15, page 135; G17, page 136.
The Applicant has close ties to the Australian community through his children, mother and other extended family members. He has been actively employed in the past and has plans to work in the future. He has had periods in the community where it appears he has maintained a prosocial lifestyle and where he has demonstrated the capacity to be law abiding. However, he has had two serious terms of imprisonment with a brief period in the community in between in which he reoffended in a similar manner. This has constrained his capacity to make a positive contribution to the community and to his family’s life in the community since at least 2014.
Noting the significant period, the Applicant has been in Australia should be given significant weight, and taking the circumstances into account overall the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia weighs heavily in favour of the revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
Paragraph 8.4 of Direction no. 110 requires the Tribunal to consider the best interests of minor children in Australia affected by the decision. Under paragraph 8.4, the Tribunal must make a determination whether cancellation or refusal under s 501, is or is not, in the best interests of children who are under 18 at the time the decision is expected to be made. Where there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests might differ.
Paragraph 8.4(4) of Direction no. 110 goes on to outline the factors that a decision-maker must consider when determining the best interests of a child affected by the decision where relevant. Those factors which include:[110]
·the nature and duration of the relationship between the child and the non-citizen, noting less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;
·the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any court orders relating to parental access and care arrangements;
·the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
·the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
·whether there are other persons who already fulfil a parental role in relation to the child;
·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
·evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally; and
·evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct.
[110] Direction no. 110 para 8.4(4)(a)-(h).
In his request for revocation and in submissions to the Tribunal, the Applicant contended the following minor children will be affected by the decision:
(a)Mstr Z (aged 17) (the Applicant’s son);
(b)Miss HM (aged 2) (the Applicant’s granddaughter);
(c)Mstr MS (aged 10) (the Applicant’s nephew);
(d)Mstr BS (aged 12) (the Applicant’s nephew); and
(e)Mstr DS (aged 15) (the Applicant’s nephew).
The Applicant indicated in his revocation request that he has a total of 11 nephews and nieces however he did not identify all of them. Before the Tribunal he indicated most of his nieces and nephews were now adults.[111] He said the only nieces or nephews who were minors were those identified above who range from 10 to 15 years old.
[111] Transcript, page 48.
As noted above, in one document submitted to the Department, the Applicant had a partner who was expecting a child, later evidence suggests that the child had miscarried.[112] As such the Tribunal is unable to be satisfied that the Applicant has any other biological minor children, other than Mstr Z, who would be affected by the decision.
[112] R1, G11, page 130.
The Applicant submitted that the best interests of the identified children and in particular his son, Mstr Z, and granddaughter, Miss HM, were that the cancellation of his visa be revoked and that significant weight should be given to this consideration having regard to the long-lasting negative effects’ on the children’s psychological and emotional development which would be caused by denying them an opportunity to have a relationship with him.[113]
[113] ASFIC, pages 5-8.
The Respondent accepted it was in the Applicant’s son’s best interests for the visa cancellation to be revoked, but given the short time remaining for the Applicant to make a positive contribution in his life before he turns 18 more limited weight should be afforded those interests in the Applicant’s case. The Minister also submitted that with respect to his granddaughter and nephews, while their best interests would be that the cancellation be revoked, as the Applicant did not play a parental role in their life and they were cared for by their parents limited weight should be afforded to those interests in the Applicant’s case.[114]
[114] RSFIC, pages 9-10.
Mstr Z
Mstr Z is 17 years old. He turns 18 late this year. Mstr Z resides with his mother, the Applicant’s former partner, Ms McCallum. As noted above, Ms McCallum provided a statement in support of the application. There was no evidence from Mstr Z.
The Tribunal also explored this issue with the Applicant at the hearing.[142]
TRIBUNAL: Is there anything else you wanted to say about concerns you might have about return to North Macedonia of any kind that you feel like you haven’t raised or haven’t had an opportunity to explain?
APPLCIANT: Like, I sent in paperwork about the medical professional and that over there. They – I don’t know how they would look at me, do you know what I mean? At the end of the day, I’ll be going back with a few illnesses and how I’ll be perceived as a person over there. Like, coming to a country that doesn’t have a lot of wealth. And then, being chucked on their doorstep with not a dollar in my pocket or nowhere to go. Is that a benefit to me or to the country? It’s not really – it’s a burden, I think. You know what I mean? And I don’t know how I’ll be perceived by them by saying, ‘Look here. Take this one back. He’s got all these illnesses and all these things wrong with him. Now, you look after him.’ You know?
I don’t think that’s a good point for me. You know? If I’m to be sent back as a healthy person and working person, maybe the government will look at me and say, ‘We can get something productive out of this person.’ But at this current state of time, I’ve got a bung knee that I need to have surgery on. It has a calcium built up in it. I’m still waiting for surgery on that. And I’ll be a lot better but, like I said to you, I’ve been Type 1 diabetes, lost 50 kilos. I was 185 when I came to jail. So I’m going on – I’m working along those pathways of making sure I can be productive and good for the Australian community, which I’d love to stay here. And to establish my top – well, establish myself back in the community.
And hopefully, in five years, like I was telling you about before, five years – like, it takes to become a proper citizen of this country, so I can always be here for my kids. Because my intentions are never to go back to Australia down that path that I led before, Senior Member. That’s – it might be – it might sound like it – seems like it – sounds like you’ve heard it from everyone, but honestly, truthfully, from the kindness of my heart. My life has changed. I don’t usually wear a cross, but I’ve got a cross around my neck. A little for – life or guidance, you know. I’m Greek orthodox, so. Mum sent this in, this bangle. That’s why I pray in church as well.
It’s an orthodox place, like, so I can – that’s the only thing I know about that country is the religion. It’s Greek orthodox. I don’t follow it a lot, but my kids love it because at the end of the day, you get two Christmases and two Easters because they work everything by the old calendar, you know. So it’s a little bit – that’s the only thing I understand about it, but as for – I wouldn’t know how to write my – read my name or even – you know. That’s the hardest thing for me, and as for persecution, it’s like you said. It’s sending a person with all my illnesses and that back to a country, how are they – going to think am I just a burden upon them, or why we’re here.
I’m booked in for my knee. Get that sorted out. Stay on my healthy and positive lifestyle. And achieve things that I’ve set myself out and goals.
[142] Transcript, pages 62-63.
While the Applicant raised concerns about returning to North Macedonia, including with respect to his access to health services and prospects for employment due to physical disabilities,[143] before the Tribunal he did not press these as claims to be owed protection either under refugee or complementary protection grounds. In the Tribunal’s view, on the information before it, the Applicant’s circumstances are not such as would suggest a non-refoulement claim arises.[144] Rather, his concerns focused on difficulties he would have accessing comparable medical care, obtaining employment and finding accommodation and accessing services. While he submitted some evidence with his submissions regarding discrimination against persons with disabilities, he did not identify any concerns before the Tribunal about being a person who would be identified as a person with a disability or harmed for that essential or significant reason.[145] The Applicant’s claims about challenges he would face in establishing himself in North Macedonia are considered further below as impediments if removed.
[143] ASFIC; A4; A5.
[144] Direction no. 110 para 9.1.2(3).
[145] A4; A5.
In any event, the Tribunal notes that on the information before it, the Applicant has never held a protection visa or had a protection visa refused in Australia. He is not an unauthorised maritime arrival. Accordingly, he would not be the subject of the bar preventing him from making a protection visa application if his visa remains cancelled and he fears serious or significant harm on return North Macedonia. Should the Applicant have claims for protection arising from his return to that country, those claims could be raised and considered in a protection visa application process.[146] He would not be liable for removal while any such application is determined.[147] Given the limited information before the Tribunal supporting any claims for protection and the fact the Applicant had, on his own evidence, not really turned his mind to such concerns, the Tribunal considers it would be appropriate to defer consideration of protection claims to consideration in the context of a protection visa application, if any is made. For these reasons, the Tribunal considers non-refoulment obligations carry neutral weight in the Applicant’s circumstances.
[146] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17 (Keifel CJ, Keane, Gordon and Steward JJ (with whom Gageler J agreed)) at [9]; Direction No 99 para 9.1.2(2).
[147] Direction no. 110 para 9.2.
The removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of s 501. Noting its findings with respect to non-refoulement obligations, the Tribunal affords this consideration neutral weight in the Applicant’s case.
Extent of impediments if removed
Paragraph 9.2 of Direction no. 110 provides that the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of what is generally available to other citizens of that country. In doing so the Tribunal must take into account:[148]
·The Applicant’s age and health;
·Whether there are substantial language or cultural barriers; and
·Any social, medical and/or economic support available to the Applicant in their country.
[148] Direction no. 110 paras 9.2(1)(a), (b) and (c).
The Applicant is a 52-year-old man. He came to Australia as an infant. He suffers from a range of health conditions including type 2 diabetes, chronic knee injury, hypertension and obstructive sleep apnoea.[149] In addition, records indicate he suffers from hypercholesterolemia and aortic aneurysm and is on a variety of different medications.[150]
[149] R1, G7, page 40; G10, page 85, pages 91–118; G11, page 121.
[150] R2, S30, pages 99-100; S30, page 109.
The Applicant contended that if he were deported to North Macedonia, he would not have the required treatment options for these conditions due to 'financial need' and that the health system is 'not as great as Australia'.[151] There was no evidence as to what care the Applicant would need. However, the Tribunal accepts he would have ongoing medical needs and requires regular medicine which in the past has included insulin.
[151] G11, page 121; G11, page 129.
The was no evidence to suggest the Applicant would not have access to the same level of medical and economic support as what is generally available to other citizens of North Macedonia.[152]
[152] Direction no. 110 para 9.2(1)(c).
Although the Applicant indicated he had no remaining family in North Macedonia. The evidence of his son indicated his grandmother, the Applicant’s mother, was visiting her family there at the time of the hearing, which she had done several times in the past. The Tribunal prefers the son’s evidence on this point which was that there are extended family members in North Macedonia, albeit the Applicant’s son indicated that those he was aware of were elderly relatives. The Tribunal finds the Applicant does have family in North Macedonia with whom his own mother remains in contact. However, the Tribunal accepts they may be able to offer little in the way of support to the Applicant on return there.
The Applicant indicated in written submissions that people with disabilities may be discriminated against in North Macedonia.[153] However, there was no evidence to support a claim the Applicant would be regarded as a person with a disability in that country. In addition, the Applicant indicated he was not sure how he would be treated but thought they would not welcome him back to the country.[154] For the avoidance of doubt the Tribunal is not satisfied the Applicant would be regarded as a person with a disability on return to North Macedonia and be discriminated against on that basis. However, the Tribunal accepts his health issues may limit employment options available to him. However, there was no information to suggest he would be unable to pursue previous employment such as driving, which he indicated a desire to return to. The Tribunal does accept licencing and language issues may limit employment opportunities in that sector at least initially on return to North Macedonia.
[153] ASFIC.
[154] Transcript, page 62.
The Tribunal accepts the Applicant does not speak Macedonian. His mother speaks Macedonian, is familiar with the country and returns there periodically.[155] The Applicant returned there twice as a child. The Tribunal finds he would have some familiarity with North Macedonian culture but accepts his understanding of the country is limited and he does not speak the language. This is likely to cause him difficulties in establishing himself, accesses services and seeking employment.
[155] Transcript, page 72.
While the Tribunal accepts the Applicant would face significant challenges adjusting to life in North Macedonia and would suffer as a result of separation from his family in Australia, the Tribunal does not consider those challenges to be insurmountable.
The Tribunal finds that the extent of impediments if removed weighs moderately in favour of revocation in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.3 of Direction no. 110 provides that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia. Direction no. 110 notes that an employment link would generally only be given weight where it would significantly compromise the delivery of a major project, or delivery of an important service in Australia. However, the Minister submitted, and the Tribunal accepts, that decision-makers are not precluded from giving weight to impacts on business interests in other circumstances.[156]
[156] Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311 at [69]–[70] per Rangiah J. While this decision related to an application decided applying an earlier Ministerial direction, the principle applies equally to Direction no. 110.
The Applicant gave evidence that he had previously worked as a truck driver, however ceased due to his incarceration in 2014 and health issues.[157] He told the Tribunal he has not been employed in the community since then, however he had an offer of employment from a friend who runs a motorcycle repair business ‘Capas custom cycles’. He indicated he does not have any experience working with motorcycles but hopes to save enough money to eventually to return to truck driving.[158]
[157] R1, G7, page 41.
[158] Transcript, page 54.
Mr Capa Caperelli, the owner of ‘Capas customs cycles’, provided an unsigned and undated letter in support of the application before the Tribunal indicating that he has known the Applicant for almost 40 years. He confirms he has offered the Applicant a job in his business. Mr Caperelli’s letter pleads for the Applicant to be given a ‘chance to be the father he deserves to be and to become the man I know he can be’.[159] However, the letter does not indicate that if the Applicant were unable to remain in Australia this would have an impact on his business.
[159] A10.
In material submitted to the Department in support of the revocation request, the Applicant also provided a letter from Mr David Murray of Stone Ranger, who has known the Applicant for over 18 years and indicated he would be happy to offer the Applicant work after he is released.[160] At the hearing the Applicant indicated he was not currently planning to work with Mr Murray’s business but that that option was available to him if needed. Neither Mr Murray’s letter nor the Applicant’s evidence suggested that Mr Murray’s business would be impacted if the Applicant is not allowed to remain in Australia. There was no evidence to suggest any other Australian businesses would be impacted if the Applicant is unable to remain.
[160] R1, G15, page 135.
The Tribunal considers this consideration should be afforded neutral weight in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction no. 110.
Paragraph 7 of Direction no. 110 sets out the way in which the relevant considerations are to be taken into account and weighed. Paragraph 7(2) of Direction no. 110 states that primary considerations should generally be given greater weight than the other considerations. Further it states that primary consideration 8.1 (protection of the Australian community) is generally to be given greater weight than other primary considerations.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction no. 110).[161] Relevantly, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[162] While the Court was considering Direction No 90, it’s observations would apply to Direction no. 110. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction no. 110) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[163]
[161] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[162] [2023] FCAFC 138.
[163] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction no. 110. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction no. 110 and explained the basis upon which it has assessed the weight to be given to each consideration.
The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community which it weighs against revocation. The Tribunal affords the consideration very heavy weight against revocation in the Applicant’s circumstances.
The consideration of family violence was not relevant in the Applicant’s case.
The strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation. The Tribunal finds heavy weight in favour of revocation should be afforded that consideration in the Applicant’s case.
The best interests of the children identified as being impacted by the decision weigh in favour of revocation albeit to different degrees. Overall, the Tribunal considers moderate weight should be afforded this consideration in the Applicant’s circumstances in favour of revocation.
The expectations of the Australian community, weigh against revocation and the Tribunal finds this consideration should be afforded heavy weight against revocation in the Applicant’s case.
In relation to the relevant ‘other considerations’ identified in Direction no. 110, the Tribunal finds that the legal consequences of the decision carries neutral weight in the Applicant’s case. The impact on Australian businesses also weighs neutrally in the Applicant’s circumstances.
The extent of impediments if removed weigh moderately in favour of revoking the cancellation of the Applicant’s visa.
Nothing before the Tribunal would cause it to find that the principles in section 7 of Direction no. 110 should not apply in the Applicant’s case.
Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations weighing against revocation being the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh those weighing in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children and the other consideration of the extent of impediments if removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction no. 110, 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 decision under review.
DECISION
The decision of the delegate of the Respondent dated 13 May 2024 not to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa is affirmed.
I certify that the preceding 193 (one hundred and ninety three) paragraphs are a true copy of the reasons for the decision herein of Deputy President Burford
......................[Sgd]....................................
Associate
Dated: 20 August 2024
Date of hearing: 22 and 23 July 2024 Applicant: In person Solicitors for the Respondent: Mr J Fyfe, Minter Ellison ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 6 December 2023[164] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 10 July 2024.[165]
[164] R1, G6, pages 36-38.
[165] R3, S36, pages 1-8.
| Conviction Date | Court | Offence | Offence Date(s) | Court Result | |
| 1. | 14 November 1990 | Fremantle Magistrates Court | Contravene Red Traffic Control Signal | 6 November 1990 | Fine $150 |
| 2. | 14 November 1990 | Fremantle Magistrates Court | Refuse to supply or provide false name and address | 6 November 1990 | Fine $100 |
| 3. | 14 November 1990 | Fremantle Magistrates Court | False name and address | Fine $100 | |
| 4. | 2 September 1992 | Perth Magistrates Court | Damage | Fine $300 | |
| 5. | 8 April 1993 | Perth Magistrates Court | 2 COUNTS Stealing | 3 April 1993 | $150 each charge |
| 6. | 3 January 1995 | Fremantle Magistrates Court | No motor drivers licence – Under suspension | 29 December 1994 | Fine $200 |
| 7. | 18 August 1995 | Fremantle Magistrates Court | No motor drivers licence – Under suspension | 12 August 1995 | Fine $500 |
| 8. | 19 June 1998 | Fremantle Magistrates Court | Possess smoking implement | Fine $150 | |
| 9. | 19 June 1998 | Fremantle Magistrates Court | Cannabis possess | Fine $150 | |
| 10. | 19 June 1998 | Fremantle Magistrates Court | Cannabis cultivate | Fine $250 | |
| 11. | 21 December 2000 | Fremantle Magistrates Court | Driving whilst legally disentitled | 27 November 2000 | Fine $1000 Disqualified from Driving for 9 Months |
| 12. | 10 May 2001 | Fremantle Magistrates Court | No motor drivers licence | 2 March 2001 | 6 Months suspension |
| 13. | 10 May 2001 | Fremantle Magistrates Court | No motor drivers licence | 21 February 2001 | 4 Months suspension |
| 14. | 29 March 2004 | Fremantle Magistrates Court | Knowingly obtain social security payments not payable/payable in part | 25 October 2001 – 24 April 2002[166] | Imprisonment for 6 Months Compensation amount $3,231.30 Probation period for 18 Months |
| 15. | 10 May 2012 | Armadale Magistrates Court | Driving with a prescribed illicit drug in oral fluid or blood | 17 January 2012 | Fine $200 |
| 16. | 17 June 2014 | Perth District Court | Possession of a prohibited drug with intent to sell or supply (Methylamphetamine) | 10 March 2014 | Imprisonment for 2 Years |
| 17. | 7 July 2014 | Fremantle Magistrates Court | Possessing stolen or unlawfully obtained property | 16 January 2013 | Imprisonment for 1 Month Forfeiture order $4,400 |
| 18. | 7 July 2014 | Fremantle Magistrates Court | Possess Unlicensed Firearm | 16 January 2013 | Fine $200 |
| 19. | 6 April 2018 | Mandurah Magistrates Court | Possess a Prohibited Drug (Cannabis) | 31 October 2017 | Fine $800 |
| 20. | 10 August 2018 | Perth Magistrates Court | Possessed drug paraphernalia in or on which there was a prohibited drug or plant | 18 February 2017 | Fine $500 Order for destruction |
| 21. | 10 August 2018 | Perth Magistrates Court | Possess a Prohibited Drug (Cannabis) | 18 February 2017 | Fine $500 Order for destruction |
| 22. | 10 August 2018 | Perth Magistrates Court | Possession of stolen or unlawfully obtained property | 18 February 2017 | Fine $1000 |
| 23. | 11 February 2019 | Fremantle Magistrates Court | No authority to drive (fines suspended) | 12 December 2018 | Fine $200 |
| 24. | 5 March 2019 | Armadale Magistrates Court | No authority to drive (fines suspended) | 23 December 2018 | Fine $300 |
| 25. | 5 March 2019 | Armadale Magistrates Court | Exceed speed limit in a speed zone | 23 December 2018 | Fine $250 |
| 26. | 1 October 2019 | Mandurah Magistrates Court | Unlicensed Person possess Firearm/Ammunition | 22 August 2018 | Fine $1600 |
| 27. | 1 October 2019 | Mandurah Magistrates Court | Possess a Prohibited Drug (Methylamphetamine) | 22 August 2018 | Fine $1600 |
| 28. | 1 October 2019 | Mandurah Magistrates Court | Possess a Prohibited Drug (Cannabis) | 22 August 2018 | Fine $1600 |
| 29. | 1 October 2019 | Mandurah Magistrates Court | Possession of drug paraphernalia, namely a glass smoking implement, in which there was a prohibited drug or plant | 22 August 2018 | Fine $1600 |
| 30. | 1 October 2019 | Mandurah Magistrates Court | Possess a prohibited weapon | 22 August 2018 | Fine $1600 |
| 31. | 1 October 2019 | Mandurah Magistrates Court | Drove or permitted vehicle with false plate to be driven | 13 May 2019 | Fine $1600 |
| 32. | 1 October 2019 | Mandurah Magistrates Court | Used an unlicensed vehicle on a road | 13 May 2019 | Fine $1600 |
| 33. | 1 October 2019 | Mandurah Magistrates Court | Drive whilst having no authority to drive (fines suspended) | 13 May 2019 | Fine $1600 |
| 34. | 1 October 2019 | Mandurah Magistrates Court | Exceed speed limit in a speed zone | 7 June 2019 | Fine $1600 |
| 35. | 1 October 2019 | Mandurah Magistrates Court | Used an unlicensed vehicle on a road | 7 June 2019 | Fine $1600 |
| 36. | 1 October 2019 | Mandurah Magistrates Court | No authority to drive (fines suspended) | 7 June 2019 | Fine $1600 |
| 37. | 1 October 2019 | Mandurah Magistrates Court | Driver fail to wear seatbelt | 7 June 2019 | Fine $1600 |
| 38. | 8 July 2020 | Mandurah Magistrates Court | No authority to drive (fines suspended) | 10 June 2020 | Fine $500 |
| 39. | 14 August 2020 | Perth District Court | Possession of a prohibited drug with intent to sell or supply (Methylamphetamine) | 18 February 2017 | Imprisonment for 3 Years and 3 Months |
| 40. | 14 August 2020 | Perth District Court | Possession of stolen or unlawfully obtained property | 18 February 2017 | Imprisonment for 4 Months Forfeiture order $650 |
| 41. | 28 August 2020 | Mandurah Magistrates Court | Unlicensed person possess firearm/Ammunition | 22 October 2019 | Fine $1500 |
| 42. | 28 August 2020 | Mandurah Magistrates Court | Possessed drug paraphernalia in or on which there was a prohibited drug, namely methylamphetamine | 22 October 2019 | Fine $1500 |
| 43. | 28 August 2020 | Mandurah Magistrates Court | Possess a prohibited weapon | 22 October 2019 | Fine $1500 |
| 44. | 28 August 2020 | Mandurah Magistrates Court | No authority to drive (fines suspended) | 2 January 2020 | Fine $1500 |
[166] Within RSFIC.
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