Downing and Minister for Home Affairs (Migration)
[2018] AATA 4592
•12 December 2018
Downing and Minister for Home Affairs (Migration) [2018] AATA 4592 (12 December 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/5485
GENERAL DIVISION )Re: Martyn Downing
Applicant
And: Minister for Home Affairs
RespondentDIRECTION
TRIBUNAL: Member S Burford
DATE OF CORRIGENDUM: 18 April 2019
PLACE: Perth
The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:
- The date of ‘25 August 2015’ in line six at paragraph [24] is to be changed to ‘25 August 2005’.
................................................................... Member
Division: GENERAL DIVISION
File Number: 2018/5485
Re:Martyn Downing
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:12 December 2018
Place:Perth
The Tribunal affirms the decision under review.
...........[sgd].............................................................
Member S Burford
CATCHWORDS
Migration – decision not to revoke mandatory cancellation of visa – two-day rule – character test – substantial criminal record – methylamphetamine – Ministerial Direction no. 65 – primary and other considerations – protection of the Australian community – best interests of minor children – expectations of the Australian community – nature and seriousness of criminal offending – risk of engaging in future criminal conduct – strength, nature and duration of ties to Australia – impact on Australian business interests – extent of impediments if returned to United Kingdom – decision under review affirmed
LEGISLATION
Acts Interpretation Act 1901 (Cth) – s 36(1)
Administrative Appeals Tribunal Act 1975 (Cth) – s 43
Migration Act 1958 (Cth) – s 499(1), s 499(2A), s 500, s 500(1)(ba), s 500(6B), s 500(6H), s 500(6J), s 500(6L), s 501, s 501(2), s 501(3)(a), s 501(3A), s 501CA, s 501CA(4), s 501(3A), s 501(6), 501(6)(a), s 501(7), s 501(7)(c), s 501(7)(d), s 501(7A), 501G(1),
Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (Cth)CASES
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421
Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Lau v Minister for Immigration and Border Protection [2017] AATA 138
Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509
Nguyen and Minister for Home Affairs [2018] AATA 3726
Nigro v Secretary of the Department of Justice (2013) 41 VR 359
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Zyaran and Minister for Home Affairs [2018] AATA 3785SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, (Department of Immigration and Border Protection, 22 December 2014) – paras 6.1, 6.1(3), 6.2, 6.3, 6.3(2), 7(1)(b), 8, 8(3), 13(1), 13(2), 13.1, 13.1(1), 13.1(2), 13.1.1, 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(g), 13.1.2, 13.1.2(1), 13.1.2(2), 13.1.2(2)(a), 13.1.2(2)(b), 13.2, 13.2(4), 13.2(4)(a), 13.2(4)(b), 13.2(4)(c), 13.2(4)(d), 13.2(4)(e), 13.2(4)(f), 13.2(4)(g), 13.2(4)(h), 13.3, 13.3(1), 14, 14.1, 14.2(1), 14.2(1)(a), 14.2(1)(a)(i), 14.2(1)(a)(ii), 14.2(1)(b), 14.3, 14.3(1), 14.4(1), 14.5(1), Part C
REASONS FOR DECISION
Member S Burford
12 December 2018
APPLICATION FOR REVIEW
This is an application for review of a decision by a delegate of the Respondent dated
4 September 2018 (the Reviewable Decision) not to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa (the visa) pursuant to
s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). The mandatory cancellation occurred by virtue of s 501(3A) of the Migration Act.
The Applicant, Mr Martyn Keith Downing was born in the United Kingdom in 1972. He is 46 years old. He first arrived in Australia on 7 December 1972 with his parents and sister when he was 5 months old (G11, page 74). He has lived in Australia continuously and, according to Departmental movement records, has departed Australia on two occasions since his arrival (G11, page 74-78).
On 20 October 2017, the Respondent mandatorily cancelled the Applicant’s visa under
s 501(3A) of the Migration Act (G3, page 11). On 24 October 2017, the Applicant requested that the mandatory cancellation of the visa be revoked (G15, page 122-137). On 4 September 2018, following consideration of the Applicant’s request, a delegate of the Respondent decided, under s 501CA(4) of the Migration Act, not to revoke the mandatory cancellation of the Applicant’s visa (G9, page 53-67). On 21 September 2018, the Applicant lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (Tribunal) (G2, page 4).
A decision by a delegate of the Respondent not to revoke the cancellation of a visa under s 501CA(4) of the Migration Act is reviewable by the Tribunal under s 500(1)(ba) of the Migration Act.
For the following reasons, the Tribunal has concluded that the cancellation of the Applicant’s visa should not be revoked.
ISSUES
The Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act on the grounds that he did not pass the character test as defined in s 501(6)(a) of the Migration Act. Under s 501(CA)(4)(b) of the Migration Act, the Tribunal may revoke the mandatory cancellation of a person’s visa where:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The issues for determination by this 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 there is another reason why the cancellation decision should be revoked (s 501CA(4) of the Migration Act).
BACKGROUND
Applicant’s offending history and warnings
The Applicant commenced offending as a juvenile at the age of 14 (G5, page 44). He has been convicted of 97 offences since 1986 (G5, pages 32-44; Exhibit R2, para [6]; Exhibit A2, para [3]).
On 27 August 2001, the Applicant was convicted of grievous bodily harm, assault with intent to cause grievous bodily harm and attempt to defeat/pervert the course of justice. The Applicant was sentenced to six years imprisonment for these offences.
On 23 August 2007, the Respondent wrote to the Applicant (G28, page 162-163), advising that a delegate of the Minister had exercised their discretion and decided not to cancel his visa under s 501(2) of the Migration Act. Issues concerning the delivery of this letter are dealt with further below.
At the time this warning letter was issued, the Applicant had been convicted of a total of 62 offences (G5, page 36-44).
Following the issuing of the warning letter in August 2007 and his release from prison, between September 2007 and March 2012 the Applicant was convicted of a further nine offences including: possessing stolen property, stealing and aggravated burglary. On
16 March 2012 the Applicant was convicted of attempting to manufacture a prohibited drug (methylamphetamine). He received a sentence of two years and eight months imprisonment for this offence.On 13 July 2012, the Respondent wrote to the Applicant (G27, page 159-160), advising that a delegate of the Minister had again considered the Applicant’s visa for cancellation but had to decided not to cancel his visa and instead was issuing a “formal warning”. The letter stated:
Please note that the visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
(Original emphasis.)
It does not appear that the Applicant signed the acknowledgement which accompanied the letter of 13 July 2012. However, the Applicant acknowledged in cross-examination that he recalled receiving the warning whilst in prison (Transcript, page 25-26).
The Applicant was sentenced on 24 March 2017 in the Perth District Court of Western Australia to three years imprisonment for manufacturing a prohibited drug (methylamphetamine) and two years imprisonment for attempting to manufacture methylamphetamine (G10, page 69). The sentences were to be served cumulatively, bringing the total effective sentence to five years imprisonment.
On 27 March 2017 the Applicant was convicted of further offences, including: possession of a prohibited drug (cannabis), attempting to gain benefit by fraud, stealing and burglary. He received concurrent prison sentences for a number of these offences including an additional 15 months for the burglary offence.
On 20 October 2017, the Respondent mandatorily cancelled the Applicant’s visa under
s 501(3A) of the Migration Act (G3, page 11). The visa was cancelled because the Applicant had a “substantial criminal record” within the meaning of s 501(6)(a) Migration Act (based on s 501(7)(c) of the Migration Act) because his convictions on 24 March 2017 carried a cumulative sentence of five years imprisonment. Section 501(7)(c) of the Migration Act provides that a person has a “substantial criminal record” if they have “been sentenced to a term of imprisonment of 12 months or more” (G3, page 12). The Respondent was also satisfied that, at the time of decision, the Applicant was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory (G3, page 12). The decision was delivered to the Applicant by hand in Acacia prison (G3, page 31).
On 27 October 2017, the Applicant was convicted of a further offence, being possession of a prohibited drug with intent to sell or supply (methylamphetamine), for which he was sentenced to six months imprisonment to be served concurrently. The Applicant committed this offence on 4 March 2015.
The letter of 20 October 2017 invited the Applicant to make representations about the revocation of the mandatory cancellation of the visa, which the Applicant did in a “Request for Revocation of a Mandatory Visa Cancellation under s 501(3A)”, signed on 24 October 2017 (G17, page 122-137). The Applicant’s representations were summarised by the delegate as follows (G9, page 57):
othe best interests of his son and extended family would not be served by his return to the United Kingdom
ohe will have no family or support networks to rely on in the United Kingdom and he fears what will happen if his depression returns
othere is no likelihood of him reoffending; he has attended rehabilitation courses and is looking forward to getting on with his life.
Following consideration of the Applicant’s representations, on 4 September 2018 a delegate of the Minister made the Reviewable Decision. (G9, page 53-67). The Reviewable Decision was sent to the Applicant by registered mail at Woorooloo Prison Farm by letter dated 5 September 2018 (G9, page 53).
The Reviewable Decision was hand-delivered to the Applicant, in prison, on
19 September 2018 (G30, page 198).
A decision must be made by the Tribunal within the period of 84 days after the day on which the Applicant was notified of the Reviewable Decision, being 12 December 2018. If the Tribunal does not deliver a decision by this time, the Reviewable Decision will be taken to be affirmed under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) (pursuant to s 500(6L) of the Migration Act).
Warnings issued to the Applicant
As noted above, two warnings have been issued by the Department of Immigration and Citizenship (as it then was) to the Applicant prior to his visa being cancelled: 23 August 2007 (the 2007 warning) and 13 July 2012 (the 2012 warning). Before the Tribunal the Applicant stated he had received two warnings, though his recollection of when the first warning was issued differed from the Respondent’s timeline (Transcript, pages 27, 30, 31 and 33).
However, the documentary evidence provided does not establish that the Applicant received the 2007 warning. A copy of the 2007 warning letter, which was included with the G documents, attached a copy of an envelope which appeared to have been sent to an address in Bull Creek and was marked as “Not at this address - return to sender”. (G28, page 162-163). The 2007 warning refers to the fact that the “Notice of intention to consider cancellation”, which had been dated 25 August 2015, had been sent to an address in Hocking and had been returned to sender. In his statutory declaration, the Applicant appeared to acknowledge receipt of the warning letter of 23 August 2007 (Exhibit A1, Annexure 12, para [19]-[20]). This was repeated in submissions from the Applicant (Exhibit A1, page 7, para [4.7.13]). During cross-examination he confirmed that he received the 2007 warning letter, however, he thought that he had received it earlier than 2007 (in 2000) (Transcript, page 30). When questioned by the Tribunal about the returned envelope, the Respondent indicated that it was possible that the version that had been eventually received by the Applicant had been renotified by the Department when the letter was returned (Transcript, page 74). The Respondent did not offer any evidence to support this.
Although the Applicant did not sign the acknowledgement of the 2012 warning, he made a written submission to the Respondent in May 2012, following the issuing of the second “Notice of intention to cancel”, making submissions as to why his visa should not be cancelled. Accordingly, the Tribunal is satisfied that the Applicant received the 2012 warning.
While the Tribunal regards it as likely that the Applicant received both warnings, the documentary evidence in relation to the 2007 warning is inconclusive. The Applicant conceded he had received two prior warnings. He provided explanations as to why he had not changed his behaviour as a result of those warnings. The first was because he was under the misapprehension his visa would not be cancelled because he was a permanent resident (Exhibit A1, Annexure 12, para [20]) and the second was because he had a drug problem and he had not addressed it (Transcript, page 33).
However, the Applicant was confused about the dates of the warnings and the documents provided by the Respondent to the Tribunal do not show when or how the Applicant received the 2007 warning. The Tribunal is of the view that Applicant should be given the benefit of any doubt. In such circumstances, the Tribunal is not satisfied the 2007 warning was received by the Applicant and has proceeded on the basis that the Applicant received his first warning that his visa may be cancelled in 2012.
The Tribunal notes that no warnings are required for the visa to be cancelled under
s 501(3A) of the Migration Act. Further paragraph 3.1.1(1)(g) of Direction no. 65 states that in considering the nature and seriousness of the non-citizens’ offending, decision makers must have regard to:(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
The Tribunal is satisfied that the Applicant was warned in 2012 that his visa may be cancelled if he continued to reoffend and that he understood that warning (Transcript, page 30). The Tribunal is also satisfied that he continued to commit serious offences following this formal warning, something he acknowledged in testimony before the Tribunal (Transcript, page 33).
JURISDICTION
This application is made pursuant to s 500(1)(ba) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent not to revoke a decision to cancel a visa.
The Reviewable Decision of 4 September 2018 was communicated to the Applicant on
19 September 2018 and, as noted above, he lodged his application for review on
21 September 2018. The Applicant is in detention and is in the migration zone. He therefore lodged his application for review by the Tribunal within the nine day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.The Tribunal is, therefore, satisfied that the application was lodged within time and that it has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The application was heard by the Tribunal on 23 November 2018. The Applicant appeared in person. He was represented at the hearing by Counsel, Ms Rondik Mizori of Rothstein Lawyers. The Respondent was represented by Mr Ashley Burgess of Sparke Helmore Lawyers, who also appeared in person. The Applicant gave evidence and was cross-examined. Dr Philip (Phil) S Watts, a Clinical Psychologist, Ms Angela Downing, the Applicant’s sister, and Mr Robert Evans, the Applicant’s uncle, also gave evidence and were cross-examined.
The Tribunal had the following documents before it:
(a)the Applicant’s Statement of Facts, Issues and Contentions dated 31 October 2018 (including Annexures 1 to 12 (Exhibit A1);
(b)the Applicant’s Submissions in Reply to the Respondent’s Statement of Facts, Issues and Contentions dated 21 November 2018 (Exhibit A2);
(c)the Applicant’s Hearing Certificate (Exhibit A3);
(d)the s 501 documents (G documents) from G1 to G30 (Exhibit R1);
(e)the Respondent’s Statement of Facts, Issues and Contentions dated 15 November 2018 (Exhibit R2);
(f)documents produced on summons from Perth District Court (Exhibit R3);
(g)documents produced on summons from Central Law Courts (Exhibit R4);
(h)documents produced on summons from the Western Australia Police Service (Exhibit R5); and
(i)documents produced on summons from the Joondalup Magistrates Court (Exhibit R6).
On 21 November 2018, at 9:30am, the Applicant served on the Respondent a copy of the Applicant’s parole order dated 16 November 2018. The document was filed the same day with the Tribunal. On the morning of the hearing the Respondent raised an objection under s 500(6J) of the Migration Act to the parole order being tendered as evidence by the Applicant. The basis for the objection was that the document had not been provided to the Respondent at least two business days before the hearing. This is known as the “two-day rule”.
The two-day rule was considered by the Full Court of the Federal Court in Goldie v Minister for Immigration and Multicultural Affairs (2001) 111 FCR 378 at 389-390 (Goldie). The Full Court explained:
The scheme for dealing with applications for review under s 500 of the Migration Act has at its heart subss (6H) and (6J). These subsections impose serious restrictions on an applicant for review. The Tribunal is obliged not to have regard to any information presented orally, or to any documents submitted, in support of the applicant’s case unless the Minister has had two business days’ notice of the information or the document before the hearing. The purpose of these drastic provisions is apparent. The Minister is to be given an opportunity to answer the case to be put by the applicant for review without the necessity of an adjournment of the hearing. The purpose of the scheme in s 500 is that an applicant for review should not be able to change the nature of his or her case, catching the Minister by surprise, and forcing the Tribunal into granting one or more adjournments to enable the Minister to meet the new case put. If this purpose were not sufficiently apparent from the terms of the legislation, it is apparent from the second reading speech in relation to the bill by which the provisions were introduced. That bill became the Migration Legislation Amendment (Strengthening of Provisions Relating to Character and Conduct) Act 1998 (No. 2) (Cth). The expressed intention of the bill was to prevent the use of the procedure of merits review to prolong the stay in Australia of a person denied a visa by the application of the character test. Crucial to the scheme is the 84 day time limit for the whole process, laid down in subs (6L).
The Applicant’s representative indicated that they had assumed that the two days ran from the scheduled hearing day and time, requiring service 48 hours prior to the scheduled hearing time. The Applicant’s representative submitted that this meant the documents could be served on the Minister before 10am two days prior to the hearing, which they submitted would have been 10am on Wednesday 21 November 2018.
However, the Respondent drew the Tribunal’s attention to the decision of the Federal Court of Australia in Mordechai v Minister for Immigration and Citizenship (2011) 196 FCR 509 (Mordechai), where the Honourable Justice Bennett considered the operation of the two-day rule and held that the date of the hearing “is the date from which compliance is measured, it is thereby not included as a ‘business day’ pursuant to s 36(1) of the Acts Interpretation Act [1901 (Cth)]”.[1] Her Honour found that two clear days prior to the hearing were required.
[1] At para [44]. Her Honour noted the decision of the High Court in Forster v Jododex Australia Pty Ltd (1972) 127 CLR 421, where Gibbs J stated:
…Where an instrument prescribes that a period of time must elapse between one event and another, the words ‘at least’ or ‘not less than’ should, unless the context or the subject matter reveals a contrary intention, be regarded as indicating that a clear or full period of time must expire between the two events…
Following Mordechai, the requirement for two business days before Friday
23 November 2018 means that service of documents by the Applicant had to be effected no later than Tuesday, 20 November 2018. Accordingly, the document served on the Minister on Wednesday 21 November 2018 did not comply with the requirements of
s 500(6J) of the Migration Act and the Tribunal could not have regard to the document. Accordingly, it was not admitted into evidence.
It is noted that, in applying the two-day rule, the Tribunal must be mindful not to fall into jurisdictional error by failing to consider a primary consideration. The two-day rule does not prevent the matter from being adjourned to ensure that the Tribunal’s “review is conducted thoroughly and fairly” (Uelese) v Minister for Immigration and Border Protection (2015) 256 CLR 203 at 223 (Uelese). Further, information which is elicited under cross-examination which may support an applicant’s case is not excluded (Uelese).
The Applicant was provided with an opportunity to produce evidence in support of his application and he provided testimony at the hearing. The Tribunal indicated to the Applicant’s representative that, in order to consider the primary considerations under Direction no. 65,[2] the Tribunal would be exploring the Applicant’s rehabilitation efforts whilst serving his current sentence and his current custodial status with him during questioning and potentially with other witnesses. In those circumstances, and where the Applicant’s rehabilitation programs had been documented in his statutory declaration and in supporting material served in compliance with the requirements of the Migration Act, the Tribunal was confident that it could conduct the hearing thoroughly and fairly without an adjournment to enable this material to be tendered.
[2] Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, (Department of Immigration and Border Protection, 22 December 2014)
The Tribunal deemed it appropriate in the circumstances to proceed with the hearing, as contemplated above by the Full Court in Goldie.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act 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 defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
Section 501(7A) of the Migration Act provides clarification when a person is sentenced to concurrent sentences of imprisonment:
(7A)For the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Ministerial Direction No. 65
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
a. the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1).”
On 22 December 2014, the Minister for Immigration and Border Protection made a direction under s 499 of the Migration Act, named “Direction no. 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA” (Direction no. 65). Paragraph 6.1 of Direction no. 65 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision which is currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction no. 65 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 65 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction no. 65, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction no. 65, with regard to the specific circumstances of the case (paragraph 13(1) of Direction no. 65). Specifically, paragraph 13(2) of Direction no. 65 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 14 of Part C of Direction no. 65 lists other considerations as follows:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction no. 65 outlines how a decision-maker is to exercise its discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 65 can be found in paragraph 8 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
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”. Section 501(7) of the Migration Act provides that a person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c)) or if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more” (s 501(7)(d)).
As noted above, on 24 March 2017 the Applicant was convicted of “manufacturing a prohibited drug (methylamphetamine )” and “attempting to manufacture a prohibited drug’’ in the Perth District Court of Western Australia. He received sentences of three years and two years respectively for these offences. The sentences were to be served cumulatively, bringing the total effective sentence to five years imprisonment.
Consequently, the Applicant does not pass the character test pursuant to s 501(6)(a) and s 501(7)(c) of the Migration Act.
The Applicant did not seek to challenge the Reviewable Decision on the basis that he passed the character test. However, the Applicant contends that, although he does not pass the character test based on his offending history, there are other reasons why the discretion in s 501(CA)(4) of the Migration Act should be exercised to revoke the Reviewable Decision (Exhibit A1, para [4.1] and [4.2]). These arguments are considered below.
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian Community (13.1)
Paragraph 13.1(1) of Direction no. 65 provides that when decision-makers are considering the protection of the Australia community they:
… should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
Decision-makers should also give consideration to (paragraph 13.1(2) of Direction no. 65):
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Applicant’s representative made a number of submissions in relation to his offending and the protection of the Australian community. In summary, these submissions were that:
(a)the Applicant is not a violent person and his violent offences were one-off events which were out of character;
(b)the Applicant’s violent offences should be viewed in isolation from his drug offences as they reflect a time in the Applicant’s life when he was experiencing mental health issues and was under immense stress due to a combination of circumstances in his personal life;
(c)the Applicant did not take heed of the Respondent’s warnings because he was under the impression that as a permanent resident who had lived in Australia for most of his life he would not be the subject of a visa cancellation. Had the Applicant fully appreciated the implications of his further offending he would have been inclined to be more cautious about his behaviour;
(d)the Applicant has deep remorse for his actions and now appreciates the grave effects illicit drugs have on the Australian community. His acknowledgement of the factors which contributed to his offending lessen his risk of re-offending in the future;
(e)being involved in the day-to-day care of his mother, who had been diagnosed with breast cancer sometime before, triggered depression and resulted in the Applicant returning to offending;
(f)the Applicant’s employment status was connected to his offending and his intention to return to employment will help to reduce the risk of recidivism, as will the support of the Applicant’s family;
(g)the Applicant understands that he has previously failed to seek assistance in relation to mental health issues which contributed to his offending. His recognition of these issues and willingness to seek help reduces the risk of his re-offending;
(h)the Applicant has undertaken a number of courses while in prison which better equip him to avoid drug use and re-offending. The Applicant’s enthusiastic and voluntary participation in rehabilitative courses shows a previously unseen degree of determination on his part to turn over a new leaf and prevent any further negative encounters with the justice system; and
(i)the Applicant’s family intend to take steps to address problems and support the Applicant. Therefore, these protective factors should be given more weight in terms of the Applicant’s likelihood of re-offending.
The Applicant submitted that, as a result of these factors, if the Reviewable Decision was revoked, the risk of the Applicant re-offending would be diminished and the protection of the Australian community would not require the cancellation of his visa.
Nature and seriousness of the conduct (13.1.1(1))
Paragraph 13.1.1(1) of Direction no. 65 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
Since arriving in Australia in 1972, the Applicant has been convicted of over 90 offences in the Australian courts (G5, page 32-44).
These offences include (but are not limited to):
·Grievous bodily harm;
·Manufacture of prohibited drugs (methylamphetamine);
·Stealing and burglary;
·Sell/supply, possession and prohibited use of drugs;
·Criminal damage;
·Unlicensed driving, driving an unlicensed vehicle, using a false number plate;
·Gaining benefit by fraud;
·Hindering police, providing false particulars, providing a false statement, attempting to pervert the course of justice; and
·Breaches of bail and bail undertakings.
(Exhibit R2, para [6])
For these offences the Applicant has received a range of penalties, including being sentenced to terms of imprisonment totalling over 26 years (of which two years of prison sentences have been suspended)[3] and driving suspensions totalling 225 months (Exhibit R2, para [7]; Exhibit A2, para [3]).
[3] The Applicant contends the total imprisonment is 26 years and three months (Exhibit A2, para [3]). The Respondent contends the total is 26 years and six months (Exhibit R2, para [7]). The difference has no impact on the Tribunal’s decision.
The Respondent submitted that the nature and seriousness of the Applicant’s offending was such that the protection of the Australian community weighed heavily against the exercise of power under the Migration Act in favour of the Applicant because (Exhibit R2, para [33]-[42]):
·the Applicant has an extensive offending history, including numerous terms of imprisonment for separate offences. Sentences involving prison terms are the last resort in the sentencing hierarchy and reflect the seriousness of the offences committed. The number and length of the prison sentences that the Applicant has been sentenced to reflect the objective seriousness of his offending;
·the Applicant’s offences relating to the manufacture and supply of methylamphetamine are particularly serious due to the “devastation” such activity inflicts on the community (Exhibit R2, para [36], citing Deputy President Kendall (as he then was) in Lau v Minister for Immigration and Border Protection [2017] AATA 138) (Lau));
·the Applicant has committed violent offences which must be viewed very seriously and that the circumstances of these offences “indicated that the Applicant had a serious disregard for the lives and safety of people whom he has altercations with” (Exhibit R2, para [38]);
·the totality of the Applicant’s traffic offences should be viewed very seriously as laws protecting road safety “go to the essential safety of the community” (Exhibit R2, para [40], citing Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett )); and
·the Applicant committed numerous offences following being warned on two separate occasions that doing so would likely result in his visa being cancelled.[4]
[4] As noted above, the Tribunal has found on the evidence that the Applicant has only received one warning.
In relation to the Applicant’s history of offending, the Respondent submitted that:
…the objective seriousness of the applicant’s offending weighs heavily against the revocation of the visa cancellation.
(Exhibit R2, para [33])
In particular, the Respondent submitted that the seriousness of the offences was demonstrated by the Applicant’s most recent convictions on 24 March 2017, 27 March 2017 and 27 October 2017. These convictions and penalties included:
(a)Manufacturing a prohibited drug (methylamphetamine) – three years imprisonment;
(b)Manufacture a prohibited drug – two years imprisonment;
(c)Gaining benefit by fraud (11 counts) – 30 months imprisonment (total);
(d)Burglary and commit offence in place – 15 months imprisonment;
(e)Possessing a prohibited drug with intent to sell or supply (methylamphetamine ) – six months imprisonment; and
(f)Possession of stolen or unlawfully obtained property and stealing (two counts) – six months imprisonment.
The Applicant did not seek to argue that his offences were not serious or that he did not have a significant offending history. He submitted that he did not seek to minimise the offences and his culpability but sought to have the offences put in perspective (Exhibit A2, para [9]). This included the Applicant’s history of drug dependency and mental health issues as a factor in his offending. The Applicant also submitted that he now recognises the seriousness of his offending and the risk that his offending posed to the community.
In considering the nature and seriousness of the Applicant’s criminal conduct to date, the Tribunal notes the Applicant’s convictions for violent offences including “grievous bodily harm” and “assault with intent to cause grievous bodily harm” (paragraph 13.1.1(1)(a) of Direction no. 65). These were very serious offences resulting from an incident where the Applicant drove his vehicle through a group of teenagers, injuring two of the group - one seriously, who sustained three fractures to the skull, a ruptured ear drum and cuts and abrasions (G15, page 119). The serious nature of the offence was reflected in the significant sentence imposed by the Court of five years for the grievous bodily harm offence and one year for the assault offence with a total head sentence of six years imprisonment. The Applicant was 28 years old at the time of sentencing.
The Applicant submitted that this offence was caused by a “mental breakdown” and did not reflect violent tendencies on his part (Exhibit A2, para [11]). This argument was supported by the testimony of Dr Watts. This issue is dealt with further below. It is sufficient to say that, in the context of an assessment of the nature and seriousness of the Applicant’s offending, these were serious offences reflected by the lengthy custodial sentence imposed by the Court. The sentencing judge described the events of the offence as follows:
You were driving a Ford sedan in Bull Creek shopping centre; you observed some 12 youths in the shopping centre; you accelerated and drove at them, narrowly missing them; driving in close proximity to them, you turned around and drove back, accelerating to a speed of 60 kilometres.
They again moved out of the way. You turned around again and drove back at the youths and swerved in the direction of the complainant … He was stuck on the left arm. You continued driving. The second complainant…chased after you on foot. When you saw him, you stopped the vehicle and reversed back at him and struck him…
The sentencing judge rejected submissions that the Applicant’s personal circumstances were to blame for the events, noting:
It is said by your counsel that it all took only a few moments but there was plenty of time for you to come to your senses. None of these people were in vehicles or had any protection at all. It was you that was driving the vehicle which caused the injuries to these complainants. It is said by your counsel that at the time these offences occurred your parents had recently separated.
You had been turfed out of the house, to use your counsel’s expression, and that although you were not affected by substances on the night in question, you were at that time taking a lot of amphetamines and you were not in a stable frame of mind. I will accept that to be the position but in my view none of those matters excuses your behaviour.
(G15, page 117) (emphasis added.)
In the Tribunal’s view, the evidence in relation to these offences is that they were serious offences involving violence towards vulnerable members of the community and should be taken into account as such.
The Respondent’s submission is that the nature and history of the Applicant’s drug offences is also very serious. The Tribunal accepts this submission. The Respondent cited Deputy President Kendall’s (as he then was) comments in Lau where he noted:
Given the well documented devastation inflicted on the community as a result of the production, distribution and use of methylamphetamine, this is a most serious crime.
The Applicant submitted that his case could be distinguished from Lau because he was an addict and was not intending to sell or supply the drugs to the community and because he had expressed remorse for his actions. In the Tribunal’s view, the comments by Deputy President Kendall regarding the serious impact of production, distribution and use of methylamphetamine have on the community remain relevant despite factual differences between the cases. The Applicant was convicted on several occasions of producing or attempting to produce methylamphetamine. His later convictions covered a period of production between 2014 and 2016. He was, on both occasions, producing methylamphetamine from a residential property in a residential area. The sentencing judge in the 2017 convictions accepted that there was a commercial element to production (G13, page 96). It is well documented that the production of this material was damaging to those who used it. However, the sentencing judge’s comments in the 2012 convictions highlighted the broader risk associated with these activities:
The manufacture or attempted manufacture of methylamphetamine in what are so-called clandestine laboratories is a very serious crime. It is more so when it is conducted on domestic premises in suburban locations to which a number of people may have access. It’s also an unfortunately prevalent crime at this time in our community.
It creates a potential danger to all people on the premises, to all law enforcement officers or emergency workers who may be called to the premises, and to neighbours and those who might come in after to occupy the same premises.
You do not appear – or do not appear to have realised the magnitude of that potential danger. The substances involved are toxic to various degrees and the gas, when used or misused, can be lethal, whether inhaled or explosion.
(Braddock DCJ, G14, page 108)
And in the context of the 2017 convictions:
The danger involved in the manufacture of methylamphetamine to those nearby and to others innocently in the vicinity is underlined by the explosion that occurred in the skip bin. Mr Downing it seems had placed the various items into that bin…
Doing so led directly to the explosion and the arrival of the Department of Emergency Services to put out the resultant fire..
I don’t accept the claim for self-medication and the claim of an absence of a commercial motive. I do accept that you had a well-established addiction and were manufacturing for your own use. Driven, no doubt, by that addiction you were also, as I mentioned earlier, supplying to others and selling. There was, I’m satisfied to the requisite standard, a degree, albeit perhaps small, of commercial gain involved. (Eaton DCJ, G13, page 96)
Production of this material was not only damaging to the Applicant, and in the instance of his later convictions one of his family members, but it presented a safety risk to the local population; particularly those in the vicinity of the “drug labs”.
The Tribunal further notes that numerous terms of imprisonment have been imposed on the Applicant by the courts, totalling over 26 years (Exhibit R2, para [7]; Exhibit A2, para [3]) (paragraph 13.1.1(1)(c) of Direction no. 65).
The Tribunal also notes the frequency of the Applicant’s repeated offending over a 30 year period, which commenced when he was around 14 years of age, and in particular, the frequency of repeat offences as an adult (paragraph 13.1.1(1)(d) of Direction no. 65). There is no doubt that the Applicant’s offending was frequent and that he has continued offending regardless of the penalties imposed on him. The Applicant has been convicted of unlicensed driving on 15 occasions, at times mere weeks after having his licence suspended for the same offence. Such was the frequency of his driving offences that he was cumulatively suspended from driving for more than 21 years since his first licence suspension in 1991 (Exhibit R2, para [39]).
In relation to the serious nature of the Applicant’s driving offences, the Respondent drew the Tribunal’s attention to the comments of Senior Member Tavoularis in Bartlett (at para [43]), where the Tribunal noted the serious effect of driving offences, including unlicensed driving, could have on the community. This included insurance implications.
The Tribunal accepts the Respondent’s submission that the Applicant’s offending has also increased in seriousness since he commenced offending as a teenager (Exhibit R2, para [34]). This offending culminated with these recent convictions in October and March 2017 where he was convicted of the offences outlined earlier and for which the Applicant received a number of significant sentences of imprisonment, ranging from six months to three years.
The Tribunal notes that the Applicant has been convicted of 25 offences involving stealing, fraud or burglary. His recent burglary and fraud offences highlight the escalation in the seriousness of his offending. On 27 March 2017 the Applicant was convicted of “burglary and commit offence in place” and several counts of “stealing” (G5, pages 33 and 34). According to the relevant “Statement of Material Facts” contained in the material produced by the Commissioner of Police for Western Australia (Exhibit R5, pages 10 and 11), this charge related to a burglary of a pharmacy in Hocking at about 5:30 AM on 19 October 2015 where:
the accused intentionally reversed his Mitsubishi utility into the farm in a pharmacy entry door, causing significant contact with the external doors. The coups repeated his ramming action a second time, causing extensive damage to the entrance doors and internal bulkhead structure of the Western Wall.
The repair damage is estimated to cost in excess of $20,000.
The queues exited his vehicle while carrying two plastic baskets. The accused forced his way to a small gap in the damaged entrance doors to gain entry without the owner’s consent.
The accused and stole a large quantity of pseudoephedrine based medication.
The sentencing judge noted that:
it was a fairly serious burglary. It was, effectively, a ram raid matter which cause quite a lot of damage.
(G12, page 80)
The Applicant’s conviction for the ram raid burglary in 2015 evidences an escalation in his criminal activity and also highlights the risks to the community that such offences pose. Not only did this offence cause significant property damage, the use of a vehicle to force entry into the building by breaking down the front doors obviously presents a risk of injury should anyone be present inside the premises at the time of the burglary.
Paragraph 13.1.1(1)(e) of Direction no. 65 requires the Tribunal to consider whether the cumulative effect of the Applicant’s repeated offending renders it serious. The Applicant has been convicted of over 90 offences in Australia over a 30 year period. These have included repeated offences against traffic laws, personal property, failure to submit to lawful authority and the possession and manufacture of prohibited substances. The scope of offending of this kind generates costs to the community in terms of police, court and correctional resources. In the Tribunal’s view, the cumulative effect of the Applicant’s history demonstrates a continued disregard for lawful authority and for the safety of the community in which he seeks to remain. The cumulative effect of the Applicant’s sentencing history also demonstrates that both the opportunities for reform afforded to him by the justice system and the penalties imposed on him have not curbed his offending.
Overall, the cumulative effect of the Applicant’s offending is to reinforce the seriousness of the Applicant’s continued disregard for the laws of Australia.
There is no evidence that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 13.1.1(1)(f) of Direction no. 65). There is also no evidence of any offences being committed by the Applicant while in immigration detention.[5]
[5] At the time of the hearing the Applicant remained in the custody of corrective services, despite having recently been granted parole.
The Applicant has been convicted of several offences involving a failure to submit to lawful authority and the administration of justice, including: wilfully misleading police, failing to supply particulars, giving false name and/or address, and a conviction for “attempt to defeat/pervert course of justice”, for which the Applicant was sentenced to 12 months imprisonment. However, there is no evidence that the Applicant has been convicted of an offence against the police or other government representatives in the performance of their duties (paragraph 13.1.1(1)(b) of Direction no. 65).
The Applicant committed numerous further serious offences after receiving a warning on 13 July 2012 (G27, page 159-161) to the effect that further offending may result in his deportation or the cancellation of his visa, as detailed above (paragraph 13.1.1(1)(g) of Direction no. 65). In particular, the Tribunal notes that the Applicant has been sentenced to more than nine and a half years of imprisonment since his warning in 2012.
At the hearing when asked about why he did not respond to the warning he received, the Applicant told the Tribunal:
I had a drug problem, Member, and I hadn’t addressed it. It – it overtook me in the end and since then I’ve stopped.
(Transcript, page 33 at 40)
While the Applicant’s offending may be attributable to his drug use, this does not excuse it or his failure to recognise that his continued offending could have serious implications including the cancellation of his visa. In the Tribunal’s opinion, the Applicant continuing to offend after receiving formal warning that his visa may be cancelled if he re-offended demonstrates a lack of insight into his offending and a continued disregard for the laws of Australia.
Having regard to the above considerations, the Tribunal finds that the Applicant’s offending is of a very serious nature and weighs strongly against the revocation of the cancellation of his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction no. 65)
Direction no. 65 also requires that a decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) as follows:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 13.1.2(2) of Direction no. 65 further provides:
(2)In considering the risk 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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Victorian Court of Appeal in Nigro v Secretary of the Department of Justice (2013) 41 VR 359 considered the task of determining an “unacceptable risk” of re-offending. The Court summarised the task as (at [111], [125] and [130]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming a reality but also on the seriousness of the consequences if it does.
…..
The degree of likelihood of the occurrence of the risk, considered in conjunction with the seriousness of the consequences if the risk eventuates, and any other matter the court considers relevant, will determine whether the risk is unacceptable.
…
It is the gravity of the consequences of the offence which the offender is at risk of committing which will ordinarily be the critical factor in the assessment of whether that risk is ‘unacceptable’. That gravity will depend upon the offender’s likely conduct, which in turn depends upon an evaluation of the particular circumstances which pertain to that offender and not upon generalisations about the general character of the offence or the sentences which are attracted by a relevant offence.[6]
[6] Cited with approval in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117.
Evidence of Dr Watts
The Applicant offered expert testimony from Dr Phil Watts, a Clinical Psychologist, in support of his application.
Dr Watts is an experienced psychologist. He provided a psychological report dated
24 October 2018 based on a two-hour interview and assessment session with the Applicant at Woorooloo Prison Farm on 21 October 2018. This consisted of a detailed discussion, conducting a clinical assessment of the Applicant’s mental health and psychological functioning and the administration of standardised psychological testing (Exhibit A1, Annexure 10, page 1).Dr Watts also gave oral testimony at the hearing and was cross-examined.
In summary, Dr Watts concluded:
I am of the opinion that Mr Downing is likely to meet the criteria for Attention Deficit Hyperactivity Disorder (ADHD), but full intelligence testing would be necessary to assist in this. In addition, it is evident that Mr Downing has had longstanding depression and anxiety which has included periods of panic attacks and severe social phobia. Mr Downing has self-medicated using methamphetamine drugs and this has resulted in a number of offences.
Mr Downing has quite a long criminal record but much of it are multiple offences from particular periods of time. Mr Downing does not have any sex offences and he does not have any offence of violence. I note that he was charged with assault without intent causing grievous bodily harm related to running down two youth when he was driving a motor vehicle. I do not class that a standard violence offence in that Mr Downing indicates that he did not intend to cause harm (no intent). He does not know what possessed him at the time to make him want to do that and that he continues to feel guilty and traumatized by what occurred. It was likely to have been the product of delusions or hallucinations.
Mr Downing’s criminal record has a number of charges of driving without a licence. The Attention Deficit Hyperactivity Disorder is a disorder of the frontal lobes and essentially it stops people from thinking in a logical fashion. The history of these offences would suggest that there is an impulsive aspect to Mr Downing’s functioning.
(Exhibit A1, Annexure 10, para [34]-[36])
Dr Watts suggested that the Applicant’s offences fell into two categories:
There is the driving-type offences which are predominantly impulsive and then almost everything else is just classic of a record of people who use drugs – drug possession, drug manufacture, fraud to pay for the drugs. If the drugs are under control, all of that stuff would disappear other than possibly the possibility of the impulsive behaviour which we discussed earlier. So when I look at the record, almost all of it will appear to have – other than the driving – would appear to have a drug-related cause.
(Transcript, page 41)
When asked whether he thought the grievous bodily harm incident was a drug-related or impulsive offence, Dr Watts indicated that it was triggered by a mental health episode and was “probably more… drug” related (Transcript, page 51-52).
In answer to the question whether there was a risk to the Australian community of Mr Downing re-offending, Dr Watts noted that the Applicant:
…is adamant that when he returns to the community he is not going to do drugs and, as a result, is unlikely to reoffend.
On a positive side of this belief, Mr Downing indicated a fair degree of insight in the relationship between his drugs and offending, as well as his mental health and its impact on drug use. People with ADHD tend to mature much later in life and I believe it is possible that Mr Downing is adamant in his conviction; however, without some significant support Mr Downing’s mental health may deteriorate and despite his good resolve would start using drugs. If he uses drugs again, the risk of offending in a similar pattern to the past is likely to occur; namely, drug-related stealing and possibly manufacturing the drugs to avoid having to pay for them.
(Exhibit A1, Annexure 10, para [37]-[38])
When asked about the extent of the risk, Dr Watts noted:
There is nothing in this history to indicate Mr Downing is likely to be a risk of violence towards other people or a sexual risk. If he did reoffend it is likely to be smallscale (sic) drug charges or drug related offending.
Mr Downing’s risk area will be related to drug use which may involve stealing (fraud) to get money and if he is not getting money then he is likely to manufacture. The manufacture is likely to be very small scale enterprise and is unlikely to impact the wider community, other than the fact there is a degree of risk associated with clandestine drug labs.
(Exhibit A1, Annexure 10, para [39]-[40])
In oral testimony, Dr Watts stated that the likelihood of the Applicant’s risk of relapsing into using drugs again was:
…lower rather than higher compared to when he came out previously. As I say, there’s still a degree of risk because he does have significant mental health problems, which he’s dealing with.
(Transcript, page 43-44)
He has battled with drug for a long time. It’s not an easy path he’s on. I believe that he can continue to show improvement. There is a degree of danger of relapse but the better he has his mental health under control, the better he can manage the stress and with some of the sort of counselling to help manage these things, I believe that the likelihood of relapse will get lower. If he’s unsupported, his mental health is out of control, then there is a degree of relapse.
(Transcript, page 41)
In oral testimony, when asked about the Applicant’s willingness to seek help, Dr Watts noted:
…one of the things I look for when I talk to people is whether or not they’re doing their addiction isn’t the issue, it’s whether they have the mindset of an addict. And what I see with Mr Downing is that he’s showing some of the changes you expect to see where people are going to shift from being an addict and, particularly, he talks about in the past he would never share what his thoughts and feelings were yet he did describe having done - getting involved in counselling in a serious manner in a period of imprisonment, that he’s talking with his family, that people are aware of what’s going on for him. That sort of mindset is indicative of someone whose beliefs are changing and what happens – what underpins addiction is if you don’t have a way of dealing with your feelings, you use drugs or whatever you’re addicted to, to cope.
(Transcript, page 45)
When asked how the Applicant’s current undertakings to change his behaviour may be different to previous undertakings he had made in the past, Dr Watts stated that:
There are complicated aspects to this question in that Mr Downing has indicated that he will not do drugs again. I believe that this is something he says with conviction; however, in and of itself, conviction will not stop him from reoffending, as has been seen in the past.
What would make a difference is if he follows through with commitments to continue counselling with Holyoake and seeks to engage with a clinical psychologist to help address anxiety and depressive feelings. He indicated a willingness to do so.
Mr Downing would benefit on his release of seeing a psychiatrist for review, both in terms of ADHD and other mental health concerns and that he should seriously consider medication to help provide stability.
Mr Downing also has some more maturity which comes with age (Exhibit A1, Annexure 10, para [45]–[48]).
The Tribunal notes that, in oral testimony, Dr Watts indicated that his clinic was prepared to provide ongoing clinical psychological services to Mr Downing (Transcript, page 42).
When asked whether the Applicant’s plans to take care of his ailing father might increase the risks of his relapsing to drug use and offending, Dr Watts indicated that this plan may result in stress which would increase risk. However, Dr Watts saw it as potentially different to the circumstances where the Applicant claimed that the stress of looking after his mother when she was ill had led him to re-offend. This was because the Applicant’s mother would have been younger when she died so it was less expected, while the Applicant’s father is elderly. Dr Watts stated:
[there are a] number of factors involved which I think make it different and less stressful, but yes it would still be a stressful time. Stress will increase risk.
(Transcript, page 50)
The Tribunal notes that the Applicant’s mother died in 2017 when she was 68 years old (G23, page 156). However, the Tribunal also acknowledges that her death appeared to follow a long battle with cancer following an initial diagnosis 10 years prior to her death in 2007.
The Tribunal notes that the Applicant and the Applicant’s niece had been convicted for involvement with the Applicant’s methylamphetamine production lab, and on the basis of the sentencing judge’s comments, had also been a drug user. The Applicant’s niece had been involved in the production plan under pressure from the Applicant on whom she was dependent (G13, page 101 and 103).
Dr Watts was also asked about whether the association between the Applicant and
his niece increased the risk of returning to drug use. Dr Watts indicated that it would depend on the circumstances, “if neither of them are doing drugs, then it will probably help them both progress, ... But if either one of them relapses, [they would] pull the other one down” (Transcript, page 52-53).
The Tribunal had difficulty with some aspects of Dr Watts’ testimony, in particular his assessment that the Applicant did not have a history of violence. Dr Watts’ assessment that the Applicant lacked intent when committing the offences of grievous bodily harm and assault were significantly at odds with the comments of the sentencing judge at the time. The Tribunal notes that, according to the comments of the sentencing judge, it was submitted on the Applicant’s behalf in relation to the events which occurred, that:
…having gone to the shopping centre, on the way out it was necessary to pass these group of youths, who your counsel described as being vocal and irreverent and making it difficult to pass. You decided to give them a lesson, drove at them, your counsel says, at 30 kilometres per hour. They gesticulated at you. That annoyed you so you drove back. You mounted the kerb. You came at them again…
(G15, page 119)
The Court did not accept that any of the issues raised by the Applicant in explanation for his actions excused his behaviour. Given that that this assessment as to the Applicant’s culpability was made with the benefit of all the evidence available to the court at the time, the Tribunal accepts the sentencing judge’s assessment.
The Tribunal accepts Dr Watts’ assessment that the Applicant may not be an inherently violent person. However, the Tribunal does not accept that these were not offences of violence and were not committed with intent. To accept otherwise, the Tribunal would be effectively rejecting the conviction itself. The Tribunal can see no grounds for doing so.
Notwithstanding concerns with some elements of Dr Watts’ assessment, the Tribunal accepted and appreciated Dr Watts’ expert testimony and has had regard for his evidence in assessing the risk to the Australian community should the Applicant re-offend.
The nature of harm to individuals or the Australian community
The Applicant has a history of offending spanning 30 years, with offences including grievous bodily harm, assault, burglary and the manufacture of methylamphetamine. The Applicant has a history of increasingly serious offences including drug and traffic offences (paragraph 13.1.2(2)(a) of Direction no. 65).
The Respondent contends that:
Given the broad range of the applicant’s offences, the nature of the harm to victims if the applicant were to reoffend in the future is serious, and could involve significant physical, financial, and psychological harm to members of the Australian community (Exhibit R2, para [44]).
The Tribunal agrees with this contention. The Applicant’s offending history shows an escalation in his offending. Since 2012, the Applicant has been convicted on two separate occasions of producing methylamphetamine and these charges related to activity spanning a number of years. One of the Applicant’s recent burglary offences involved a “ram-raid” of a pharmacy using an unlicensed vehicle (Exhibit R3, page 10). The Tribunal finds that if the Applicant were to re-offend he would likely do so in a similar manner to his prior offending. This is supported by Dr Watts’ testimony, although Dr Watts took a different view to the Tribunal on whether the offences themselves were serious.
That is, the Applicant would be likely to produce methylampetamine for his own use and for distribution to others. He would also be likely to engage in offences which enable the production of methylamphetamine, including obtaining ingredients for production by theft or fraud.
As the sentencing comments from the Courts (which are noted above) demonstrate, the production of methylamphetamine is an activity which carries with it a range of serious risks to the community, not limited to only those who might consume the manufactured product. There are significant safety risks associated with clandestine drug labs, particularly those that operate in residential areas.
Given the Applicant’s serious history of repeated driving offences, the Tribunal finds it is also likely that, if the Applicant were to re-offend, his offences would include traffic offences. As noted above, the Tribunal regards the cumulative effect of these offences to be a serious risk to the safety of the Australian community.
Having regard to the Applicant’s offending history, the Tribunal regards it as less likely that if the Applicant were to re-offend he would engage in the sort of violent activity demonstrated by his convictions for grievous bodily harm and assault. However, the nature of the potential harm to the Australian community of a repeat of such offences is obvious and concerning. Further, the Applicant has shown a willingness to engage in dangerous offending such as ram-raids to facilitating his methylamphetamine production activity.
There is a real risk that should the Applicant re-offend in a manner consistent with his offending history, a member of the Australian community may be seriously injured either by the Applicant’s drug-related, burglary or driving-related offending.
Risk of re-offending
In relation to the Applicant’s likelihood of re-offending, the Applicant contends that:
Turning to the likelihood of reoffending, it is contended that the triggers of drug addiction have been overcome and are still being reinforced whilst in prison through voluntary participation in courses.…
(Exhibit A1, paragraph [4.7.25])
The Applicant drew the Tribunal’s attention to a report issued by Serco upon the Applicant’s successful completion of the “Pathways” drug use and offending behaviour program. The program was completed on 15 May 2018. The report stated:
Protective factors which may reduce Mr Downing’s risk of offending behaviour include a reported motivation to maintain abstinence, whereby he reported having ceased substance use a week prior to his most recent incarceration. He further indicated desire to lead a pro-social life and to seek employment, engage in meaningful hobbies, access pro-social supports (consisting of his sister, niece, father, and brother in law), to adhere to parole conditions and cited a promise to his since deceased mother that he would maintain a pro-social life.
..
If Mr Downing continues to recognise links between his substance use and offending behaviour, whilst maintaining his awareness and challenging entrenched thinking patterns, he may reduce his risk of relapse and reoffending.
…
He reported that a significant difference in his motivation is based on a promise he made to his now deceased mother, to live a pro-social life and that he was getting ‘too old for jail’, stating ‘jail is a young person’s game’.
(Exhibit A1, Annexure 9, page 4).
Application outside of a prison environment was not demonstrated, and so cannot be commented on. Maintenance of his motivation may also be another confounding factor to his pro-social goals.
The report also noted that:
Mr Downing’s treatment needs were assessed in his Treatment Assessment Report as being: understanding the links between substance use and offending behaviour, awareness of risk factors for illicit substance use, coping strategies, and develop relapse prevention and management plan.
He was able to demonstrate treatment related gains of pre-existing strengths in all of these areas. This demonstrated an awareness of his risks associated with both relapse and recidivism, including the factors that led him to increase his use. Further to that, he demonstrated skills that were applicable to coping with these factors.
(Exhibit A1, Annexure 9, page 5)
The Applicant points to the completion of a range of rehabilitation programs in prison which have resulted in the Applicant being “very much aware of the mental health and drug problems which have consumed his life in the past” (Exhibit A1, para [4.7.33]). The Applicant pointed to completing the following courses:
·Pathways (11-week course, completed 26 April 2013);
·Brief Intervention Cognitive Skills (two-week course, completed 17 March 2016);
·Think First Cognitive Skills (nine-week course, completed 1 September 2017);
·Pathways (five month course, completed 11 May 2018); and
·Allied Drug & Alcohol Programs & Treatment (ADAPT) Through – Care Counselling Service: Prison to Community (ongoing).
(Exhibit A1, Para [4.7.33])
In the case of YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), Mortimer J made the following comments:
[76] In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese v Minister for Immigration & Border Protection [2016] FCA 348; 248 FCR 296 at [64]–[66]).
(Emphasis added.)
In YNQY the Court was, in part, considering whether the Tribunal erred in failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.
The passage referred to by Mortimer J above in Uelese states as follows:
[64] In my opinion, the reference by the Tribunal to what the Australian community expected of the Australian Government was not a matter that required evidence but was a statement of the views or policy of the Government. The language in paragraph 6.3(2) of the Direction, that the Australian community expects that the Australian Government can and should cancel the visas of non-citizens if they commit serious crimes in Australia, is found in a list of seven ‘Principles’. There is a further reference to the expectations of the Australian community in paragraph 9.3 of the Direction where the statement is made that the Australian community expects non-citizens to obey Australian laws while in Australia. It states that where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate, the paragraph states, ‘simply because the nature of the character concerns or offences were such that the Australian community would expect that the person should not continue to hold a visa’. The paragraph ends by stating that decision-makers should have due regard to the Government’s views in this respect.
[65] … In my opinion it is open to the Minister to make a statement of the Government’s views as to the expectation of the Australian community and for the Tribunal to act on that statement.
Deputy President Constance in Zyaran and Minister for Home Affairs [2018] AATA 3785 at [71] and [72] and in Nguyen and Minister for Home Affairs [2018] AATA 3726 applied the reasoning of the Federal Court in YNQY. Deputy President Rayment, QC in the case of Kumeroa and Minister for Home Affairs [2018] AATA 3744 also applied YNQY.
The Tribunal notes that both Direction no. 65 and the relevant authorities make it clear that the Tribunal must take into account the primary and other considerations relevant to the individual case.[10] Direction no. 65 specifically notes that both primary and other considerations may weigh in favour of either to revoke or not to revoke a mandatory cancellation of a visa (paragraph 8(3) of Direction no. 65). While the Direction states a primary consideration should generally be given more weight than the other considerations, the authorities make it clear that this will depend on the individual circumstances and will still require the Tribunal to take into account both the primary and other considerations and to give each appropriate weight in reaching a decision.[11]
[10] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 per Colvin J (Suleiman); HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 per Bank-Smith J (HSJK).
[11] See Sulieman and HSJK.
The Federal Court’s decisions in YNQY and Uelese do not raise the expectations of the Australian community to the status of a determinative consideration. The approach outlined by the Federal Court highlights that it is open to the Minister to make a statement of the Government’s views as to the expectations of the Australian community and that Direction no. 65 makes such a statement. Applying YNQY and Uelese, the Minister makes this statement both in the principle expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 65. Applying Uelese, paragraph 13.3(1) of Direction no. 65 directs that the Tribunal should have due regard to the Government’s views in this respect.
It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view as to the expectations of the Australian community as expressed in paragraphs 6.3(2) and 13.3(1) of Direction no. 65. Those expectations remain a primary consideration to which appropriate weight must be given. As expressed by the Minister, they weigh against revocation. However, it remains for the Tribunal to determine, in all the circumstances, what constitutes appropriate weight. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
The Applicant contended that:
[M]embers of the Australian community who are aware of the applicant’s convictions and circumstances would indicate an expectation that he be given a final opportunity to remain in Australia.
The Applicant is a victim of drug addiction, and most, if not all, of his offending can be traced to his development of a drug addiction.
Whilst the Applicant should not be vindicated for developing the addiction, it is contended that mature members of the Australian community would regard drug addiction as a medical problem and not one about ‘character’.
The Applicant has held permanent resident status in Australia for virtually his entire life, demonstrating that the Australian community expects that he would remain a permanent member of the community. This is especially so because the Applicant has taken considerable and effective steps to recover from drug addiction, and has achieved measurable successes in that regard. Because of this, it is contended that the Australian community would extend significant tolerance and forgiveness in these circumstances. The Australian community expects that such rehabilitative conduct be encouraged, instead of being made the subject of adverse migration outcomes.
(Exhibit A1, para [4.9.1]-[ 4.9.4])
The Respondent cited the comments of Mortimer J in YNQY with approval and contended that (Exhibit R2, para [58]):
Paragraph 13.3 (1) of Direction 65 states that non-revocation may be appropriate simply because the nature of the offences is such that the Australian community would expect that the person should not hold a visa. Given the nature of the applicant’s repeated offending, the Minister contends that the Australian community would expect that the applicant should not hold a visa. This is particularly so in circumstances where the applicant has repeatedly offended despite previous warnings by the Department.
The Tribunal has had regard to the comments of Mortimer J in YNQY and agrees with the Respondent’s submission. The Tribunal finds that the Australian community would expect non-revocation of the cancellation of the Applicant’s visa.
In determining the weight to be applied to this consideration, the Tribunal has had regard to the Applicant’s circumstances. Having regard to these circumstances, including the history and severity of the Applicant’s offending and his continued offending after receiving and acknowledging a warning that his visa may be cancelled and the degree of risk he will re-offend, the Tribunal finds that the expectation of the Australian community weighs against the revocation of the cancellation of the Applicant’s visa. This is so, notwithstanding the Applicant’s efforts to rehabilitate in a context where such efforts have previously failed once the Applicant returns to the community and is faced with the stresses of life, such as caring for an ailing parent.
OTHER CONSIDERATIONS
Paragraph 14 of Direction no. 65:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
Non-refoulement obligations
The Tribunal is satisfied non-refoulement issues do not arise in the Applicant’s circumstances. Accordingly, the Tribunal places no weight on this factor.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction no. 65 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, 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, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
It is accepted that the Applicant has significant ties to Australia. The Applicant’s representative submitted that:
It is contended that this factor should be given weight because the Applicant has been spent (sic) significant periods of time contributing positively to the Australian community.
(Exhibit A1, para [4.10.3]
The Applicant submitted that when he was not incarcerated he has worked in several industries and has readily offered to assist others in prison with basic life skills. The Applicant submitted:
I believe I have contributed positively to the Australian community during my time here. I have always paid my taxes, worked in various industries and perhaps most significantly, I have helped people here in jail, including Aboriginal Australians with reading and writing. I have also worked as a peer support worker, where I have helped people to adjust to prison life.
(Exhibit A1, Annexure 12, para [55])
The Applicant contended that he has also volunteered with the Salvation Army and participated in local sporting teams. He also intends to volunteer at Holyoake, the counselling centre through which is currently attending sessions (Exhibit A1, para [4.10.5]–[4.10.6]).
As noted earlier in these reasons, the Applicant arrived in Australia as an infant, and has resided in Australia for almost all of his life (paragraph 14.2(1)(a) of Direction no. 65). As has also been noted above, he first offended in 1986, within approximately 14 years of arriving in Australia (paragraph 14.2(1)(a)(i) of Direction no. 65). He was 14 years old. His offending has been generally consistent since his late teen years. He has been consistently offending for the entire period of his adult life that he has resided in Australia, interspersed with periods of imprisonment (paragraph 14.2(1)(a)(ii) of Direction no. 65).
Applying paragraph 14.2(1)(b) of Direction no. 65, there is limited evidence before the Tribunal of community involvement by the Applicant and there is limited evidence before the Tribunal that the Applicant has a circle of friends or social ties other than his family members. The Tribunal notes that a number of members of the Applicant’s family made statements in support of his application for revocation of the cancellation of his visa. These included his sister, Angela Downing, and his uncle, Robert Evans, who both gave oral testimony at the hearing. The Tribunal also had before it supportive statements from Grace Anne Allia, the Applicant’s 18-year-old niece, Charlie Allia, the Applicant’s brother-in-law, Ronald Downing, the Applicant’s father, and Emma Downing, the Applicant’s older niece. The Applicant’s only son, Matthew, lives in Australia. The Tribunal noted that a number of the Applicant’s family members were present during the hearing.
Mr Evans gave evidence that the Applicant comes from a large family and that while sections of the family, including Mr Evans, have not had contact with the Applicant for many years they are ready support the Applicant and his family. Mrs Downing gave evidence that she and the Applicant have become closer since their mother’s death and that she is relying on his assistance to help care for their father on his release. The Applicant’s father is suffering from declining health and has a history of heart issues and cognitive impairment (Exhibit A1, Annexure 5).
The Applicant’s representative contended that:
All the Applicant’s closest family members were either born in Australia or have lived in Australia for most of their lives. His family all care for him deeply, as evidenced by the significant efforts that they have made to help the Applicant to continue to stay in Australia. Although the Applicant concedes he did not share a close bond with his family whilst he was younger, he has gained a newfound understanding of the importance of family and wishes nothing more than to do more for his family moving forward.
…..
The Applicant wishes to make up for lost time with his son Matthew, who prior to their most recent visitor Woorooloo Prison Farm, had not met his father for many years.
(Exhibit A1, para [4.10.7.2])
Although the Applicant’s offending has caused extended periods of separation from his family, and apparent estrangement from his more extended family, the Tribunal accepts that the Applicant has a close relationship with his family and that a significant number of his family members are permanent residents or citizens of Australia. The Tribunal also accepts that most of the Applicant’s family live in Australia. (Exhibit A1, para [4.10.7.1])
The Applicant contended that his removal from Australia would have a significant impact on his family members in Australia:
Apart from the emotional devastation the Applicant’s departure would inevitably result to his family, it is contended that his sister, Angela would suffer hardship due to her responsibility to care for their father, who suffers from a combination of deteriorating medical conditions.
Although it is accepted that the Applicant’s father could be adequately cared for in a nursing home, it is the family’s desire for him to be cared for by his own family, for both monetary and familiarity reasons. The Applicant’s sister is not in a position to provide full-time care for her father as she has to make a living and her own medical issues to attend to, among other reasons (sic). Because of these factors there is an expectation from the family that the Applicant will share caring duties with his sister upon his release from incarceration.
On the basis of the above, it is contended that the Applicant’s immediate family would suffer a substantial degree of hardship if he were forced to return to the United Kingdom.
(Exhibit A1, para [4.10.7.3])
The Tribunal notes that although there is some evidence of the Applicant engaging with the community, there is very limited independent evidence that he has spent any significant time making a positive contribution to the Australian community.
Given the young age at which the Applicant entered Australia, the length of time that he has resided here, and the extent of his family ties in Australia and the impact of his removal on some of those family members, the Tribunal finds this factor weighs in favour of the revocation of the Reviewable Decision.
Impact on Australian business interests
There was evidence that the Applicant has an offer of employment from an Australian company on his release from prison. However, there is no evidence that there would be a detrimental impact on that company should the cancellation of the Applicant’s visa not be revoked. The Tribunal is satisfied that a decision not to revoke the cancellation of the Applicant’s visa will not have a relevant impact on Australian business interests (paragraph 14.3(1) of Direction no. 65). Accordingly, the Tribunal places no weight on this factor.
Impact on victims
The Tribunal does not have sufficient information before it to assess the impact of a decision not to revoke the cancellation of the Applicant’s visa on the victims of his criminal behaviour or the family members of the victims (paragraph 14.4(1) of Direction no. 65). There is no evidence as to how other victims of the Applicant’s offending would be impacted, and based on the material available, the Tribunal finds that there is likely to be little, if any, impact. Accordingly, the Tribunal places no weight on this factor.
Extent of impediments if removed
Paragraph 14.5(1) of Direction no. 65 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
If removed, the Applicant would be returned to the United Kingdom (UK) where he was born and remains a citizen.
The Applicant contended that his rehabilitation was significantly dependent on remaining in Australia. The Applicant stated:
It is contended that should the Applicant be forced to return to a foreign land where he has little or no understanding of or familiarity with its system, it will be immensely difficult for the Applicant to seek adequate support to assist with his continued rehabilitation. This is contrasted to the commitment by his family and an established counselling centre (Holyoake Road), both of which have promised to offer ongoing support to reinforce the Applicant’s continued rehabilitation and to assist as much as is necessary with his rehabilitation and support.
…it is contended that the Applicant will face difficulty in establishing a support network in a foreign country where he does not know anyone, and to which he has never once travelled since he first arrived in 1972.
The Applicant is extremely fearful of the possibility of his mental health conditions recurring due to the shock of re-adjusting to an unfamiliar environment.
(Exhibit A1, para [4.11.1.2])
The Applicant further submitted that having responsibility for the care of his father and the Relevant Minor Child would be a motivating factor to stop him from re-offending in the future. This factor would be removed if the Applicant is returned to the UK.
The Applicant also drew the Tribunal’s attention to the comments of Dr Watts who stated:
If Mr Downing was sent to England the opposite to being able to manage his mental health is likely to take place. He would be moving into an environment where he has no accommodation, no family support and no income. As such, he is likely to rapidly deteriorate into major depression and anxiety which will then make it even harder to address health services (Exhibit A1, Annexure 10, para [49]).
The Respondent contended that:
…the Applicant would have access to the same social, welfare and medical services and state protection as other residents of the United Kingdom.
Whilst the applicant may suffer short term hardship in resettling in the United Kingdom, the respondent contends that there are no language or cultural barriers for the applicant to overcome.
(Exhibit R2, para [62]-[63])
The Applicant has lived in Australia since he was an infant. After living for such a long time in Australia, he would undoubtedly face some difficulty in re-establishing himself in the United Kingdom, but any difficulty would not be insurmountable. As noted above, he does have family members in the UK, albeit members of his family with whom he does not have a current relationship. It is, however, noted that the testimony of the Applicant’s sister is that she has reached out to those family members regarding support for the Applicant (Exhibit A1, Annexure 1, page 4). This suggests that there may be some family support available to him, albeit in a much more limited form than he would enjoy in Australia.
The Applicant is now 46 years of age. There was no evidence that he had any physical health concerns.
As the Applicant is returning to UK there would be minimal, if any, language and cultural barriers for him to overcome if he returned. The Applicant has worked in a range of industries in Australia and has undertaken training whilst in custody. While the Tribunal accepts that the Applicant may face challenges re-establishing himself and obtaining work, there is no evidence before the Tribunal to suggest that he would be unable to work on his return to the UK.
The Tribunal notes that no evidence was tendered as to the conditions that the Applicant may face on return to the UK, in particular, the availability of appropriate mental health and drug treatment programs.
In the absence of this information, the Tribunal has considered the available travel advice produced by the Department of Foreign Affairs and Trade. The Tribunal notes that travel advice from the Department of Foreign Affairs and Trade states that the standard of medical facilities in the UK is comparable to Australia.[12] In addition, UK citizens have access to the National Health Service (NHS) hospital and GP services. There is no evidence to suggest that the Applicant would not have the same access to social, economic and medical support as other UK citizens.
[12] >
The Tribunal accepts that the Applicant is likely to face impediments and hardship if returned to the UK and that he would be required to seek drug and mental health support services in that country if returned. The Tribunal accepts the evidence that his return to the UK may make his rehabilitation more challenging and may impact his mental health.
For these reasons, in all of the Applicant’s circumstances, the Tribunal accepts that there are impediments if removed and that this on balance weighs in favour of the revocation of the Reviewable Decision. However, also for the reasons outlined above, the Tribunal does not give this consideration significant weight.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
In relation to the Protection of the Australian Community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction no. 65), the Tribunal has found that the nature and cumulative effect of the Applicant’s criminal history and conduct are very serious.
There is serious frequency in his offending and a trend for his offences to become more serious. He has received significant custodial sentences totalling more than 26 years over a more than 30 year offending history.
The Tribunal has also found that, while he has taken steps towards rehabilitation, the Applicant’s current capacity to maintain his determination to remain drug free and abide by the laws of Australia is untested in the community and his history of recidivism, including following attempts at drug rehabilitation, evidences a real risk of the Applicant re-offending. On the basis of his offending history there is a likelihood that future offending would involve serious drug offences including manufacture and supply of prohibited drugs. There is also a likelihood of driving offences which present a serious risk to the Australian community. The serious consequences which would flow from the Applicant reoffending present an unacceptable risk to the Australian community. This factor weighs strongly against the cancellation decision being revoked.
The Applicant has been given many chances to reform his conduct and remain in the community and in Australia and he has consistently failed to avail himself of these opportunities. The Tribunal is not satisfied that his family’s offer of support is sufficient to lessen the risk that the Applicant will continue to offend as such support has not been effective in curbing his offending in the past.
The Tribunal has also found that the expectations of the Australian Community (paragraph 13.3 of Direction no. 65) weigh against the cancellation decision being revoked.
With respect to the primary consideration regarding the best interests of minor children (paragraph 13.2 of Direction no. 65), given the Applicant’s offending history, particularly with respect to involving his niece in serious drug offending, the Tribunal has found that, on balance, this factor weighs against revocation of the cancellation decision.
In relation to the other considerations (paragraph 14 of Direction no. 65), some are of limited or no relevance to the Applicant’s situation (paragraphs 14.1, 14.3 and 14.1 of Direction no. 65).
The Tribunal accepts the extent of the impediments the Applicant may face on return to the UK, including potential impacts on his mental health and accessing drug rehabilitation services in the short term. However, the Tribunal does not regard these impediments as insurmountable and having regard to all the circumstances, the Tribunal gives this consideration less weight than the primary considerations mentioned above.
The Tribunal also accepts that the Applicant has strong family ties in Australia and acknowledges that he has effectively spent his entire life in Australia. His separation from his family will cause the Applicant hardship and will cause hardship to his family, whom the Tribunal acknowledges have their own significant challenges. While this factor weighs most strongly in the Applicant’s favour the Tribunal gives this less weight than the primary considerations which, having regard to the extensive length and seriousness of the Applicant’s offending, outweigh the impact his removal will have on his family.
In these circumstances, having considered all the relevant factors and material before it, the Tribunal is not satisfied that it would not be appropriate to revoke the mandatory cancellation of the Applicant’s visa. The correct and preferable decision is to affirm the Reviewable Decision.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
.....[sgd]...................................................................
Associate
Dated: 12 December 2018
Date of hearing: 23 November 2018 Applicant: In person Representative for the Applicant: Ms Rondik Mizori Solicitors for the Applicant: Rothstein Lawyers Representative for the Respondent: Mr Ashley Burgess Solicitors for the Respondent: Sparke Helmore
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14
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