Duar Te Do Pateo Fernandes and Minister for Immigration and Border Protection (Migration)

[2018] AATA 348

Duar Te Do Pateo Fernandes and Minister for Immigration and Border Protection (Migration) [2018] AATA 348 (28 February 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7309

Re:Pedro Duar Te Do Pateo Fernandes

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance

Date:28 February 2018

Place:Sydney

The reviewable decision made 6 December 2017, being the decision of the delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of Mr Fernandes’ Class WE Subclass 050 Bridging E General (Temporary) visa, is set aside.

In substitution it will be decided that the decision to cancel Mr Fernandes’ Class WE Subclass 050 Bridging E General (Temporary) visa, made 2 June 2017, is revoked.

......................................[sgd]..................................

J W Constance
Deputy President

CATCHWORDS

MIGRATION – visa – non-revocation of cancellation – character test – substantial criminal record – serious conduct to date – low risk of re-offending – best interests of minor children in Australia – seven year-old daughter – Australian community would not expect the applicant to be deported – decision set aside and decision made in substitution

LEGISLATION

Migration Act 1958 (Cth) ss 499, 500, 501, 501CA

CASES

Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66

SECONDARY MATERIALS

Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President J W Constance

28 February 2018

PART A:  INTRODUCTION

1. Mr Fernandes is a 27 year old citizen of Brazil. He was 14 in 2004 when he migrated to Australia with his family.  He has resided here continuously since.  Prior to 2 June 2017 he held a Class WE Subclass 050 Bridging E General (Temporary) visa.[1]  

   [1] Exhibit R1 p.210.

2. On 19 September 2013 Mr Fernandes was sentenced to an aggregate of four years and two months imprisonment for the offences of robbery armed with an offensive weapon and shoplifting.  The indicative sentence for armed robbery was four years.[2]

   [2] Exhibit R1 p.83.

3. On 2 June 2017 a delegate of the Minister for Immigration and Border Protection cancelled Mr Fernandes’ visa (“the cancellation decision”).[3]  The delegate was satisfied Mr Fernandes did not pass the character test set out in the Migration Act 1958 (Cth) and was serving a term of imprisonment on a full-time basis in a custodial institution.[4]

   [3] Exhibit R1 p.210.

   [4] The cancellation was mandatory in accordance with the provisions of subsection 501(3A) of the Act.

4. In accordance with the procedure set out in the Act, Mr Fernandes made representations to the Minister seeking a revocation of the cancellation decision.  On 6 December 2017 another delegate of the Minister decided not to revoke that decision.[5]  The 6 December 2017 decision, referred to as “the reviewable decision”, is the subject of this application for review.

   [5] Exhibit R1 p.14.

5. At the time of the hearing of this application Mr Fernandes was being held in immigration detention. 

6. For the reasons which follow the reviewable decision will be set aside and in substitution it will be decided that the cancellation decision is revoked.

   PART B:  BACKGROUND

7. Unless otherwise stated the following findings of fact are based on the evidence of Mr Fernandes.

8. Mr Fernandes was born in 1990. Until he was 14 he lived in Brazil with his parents and sister.

   Mr Fernandes’ criminal record

9. A National Police Certificate issued in respect of Mr Fernandes[6] shows that he has been convicted of several offences in Australia.  They are: 

   [6] Exhibit R1 pp.83-84.

Court Date

Offence

27 Jul 2016

Affray

19 Sep 2013

Robbery armed with offensive weapon

Shoplifting

15 Aug 2012

Destroy or damage property <=$2000

Common assault (dv)

Contravene prohibition/restriction in avo (domestic)

Shoplifting value <=$2000

Destroy or damage property <=$2000

Shoplifting <=$2000

18 Apr 2012

Drive with middle range Prescribed Concentration Of Alcohol

14 Sep 2011

Common assault (dv)

Contravene prohibition/restriction in avo (domestic)

19 Apr 2011

Destroy or damage property <=$2000

Destroy or damage property <=$2000

The offences

Destroy or damage property

1. Mr Fernandes’ first court appearance was in 2011.  At the time he was 20 years old.

2. Mr Fernandes was placed on a bond requiring supervision in respect of each of the offences.  I do not have the benefit of any sentencing remarks.  Mr Fernandes says that during an argument with a mate over his girlfriend (who later became his wife) he damaged the door and mirror of his friend’s car.  In a related argument he pushed his girlfriend which resulted in an apprehended violence order being taken out against him.  She did not suffer any physical injuries during the incident.  I accept Mr Fernandes’ evidence in this regard.  It was not challenged by Counsel for the Minister.

   Common assault and contravention of prohibition in Apprehended Violence Order

3. In September 2011 Mr Fernandes was convicted of contravening the Apprehended Violence Order by contacting his girlfriend by telephone.  In addition he was charged and convicted of the assault which gave rise to the Order.  On each matter he was ordered to perform 150 hours of community service.[7]

   [7] Exhibit R1 p.84.

   Driving with middle range prescribed concentration of alcohol

4. This conviction was a result of a random breath test.

   Shoplifting

5. The two offences of shoplifting of which Mr Fernandes was convicted in August 2012, were for stealing food.  Mr Fernandes says that at the time he was homeless, his parents and sister were overseas, he had separated from his partner and was unemployed. He pleaded guilty to the charges. He acknowledges that his circumstances were no excuse for his offending.  I accept his evidence which was not challenged by Counsel for the Minister.

6. The shoplifting convictions caused Mr Fernandes to be called before the Court for breaching the bonds which had been imposed in relation to his earlier offences.  Mr Fernandes conceded the breaches.

7. In sentencing Mr Fernandes Magistrate Williams said, in part:

   In this matter the Court must be concerned about your attitude in relation to compliance with the laws of this country. You are before the Court now on, well there are five matters that the Court must look at as to what is an appropriate penalty. You have only been in this country a short while and you already have committed various matters where custodial sentences can be applied. So the Court must express its concern in relation to your behaviour to date in being able to properly comply with the laws of this country.

   In dealing with this matter, the Court must look at all of the appropriate sentencing principles and it does note and accepts that there must be some difficulties occasioned by you in your day to day living in this country. It is noted that you have a poor financial situation. It is noted that you were subject to a breach or a break up of a relationship and they are taken into account.

   The Court must be concerned that community service was ordered and there were a number of attempts made to get you to complete the community service orders. You failed to do so. That has to be coupled with the uncertainty as to your position in and around that time. But basically, every attempt should have been made to comply with those orders.

   The Court notes that there have been recent offences which may be associated with all those other matters which have affected you. But realistically at this stage, you should be aware that you must comply with the laws of this country.

   In dealing with this matter, the Court has considered whether it would be appropriate to impose a custodial sentence as a deterrent to you and to other members of the community, in relation to your continued re-offending. The Court has considered that that would not be appropriate.[8]

   [8] Exhibit R1 pp.99-100.

   Robbery armed with an offensive weapon and shoplifting

8. Mr Fernandes’ most serious offending occurred in May 2012 and led to his appearance in the District Court on 19 September 2013.  On that occasion he pleaded guilty to one count of robbery armed with an offensive weapon and one count of shoplifting.  He was convicted of both offences.

9. The circumstances of these offences are set out in the Sentencing Remarks:

   In relation to Mr Fernandes, at about 1.08pm on 31 May the offender Fernandes entered a Reject Shop located on level 3 at East Gardens Shopping Centre, wearing dark jeans, a white T-shirt with some images on the T-shirt and some white joggers.  He took a grey coloured Hendley(?) brand duct tape and a pair of Wicked brand ladies stockings and hid them down his pants.  He walked out of the shop without paying for those items.  He walked to the front counter of the Franklin’s shopping centre where he obtained an empty plastic bag and placed the items that he had stolen from the Reject Shop into the bag. The whole of that incident was captured on closed-circuit television from the Reject Shop and also from the East Gardens Shopping Centre.

   In relation to both of the offenders the facts of the robbery armed with an offensive weapon are that about 9.45pm on 31 May 2012 the victim…..occasional duty manager at the Randwick Golf Club in Malabar, activated the alarm and locked the doors of the club.  He was the last employee to leave the club that night.  As [the victim] was walking towards his motor vehicle, which was parked in the car park of the club, he was approached from behind by both of the offenders. Mr Fernandes said “This is an armed robbery, all we want is the money.”  [The co-offender] said “We just want the money, we don't want to hurt you” and then later he pulled out a large knife and said he would not hesitate to use it.

   Mr Fernandes was wearing gloves, a black coloured jumper and had white stripes down the outside of each arm, black tracksuit pants and runners. He also had a stocking over his face and spoke with an accent and was holding a small silver coloured replica firearm.….

   [The co-offender] was wearing gloves, dark tracksuit pants, a dark jacket and a black and white “Scream” mask over his face. He was holding a knife with wooden handle with a blade of fifteen to twenty centimetres…..

   Both of the offenders escorted [the victim] back into the club and demanded money from the safe. Fernandes said “It's not your money, just give it to us, we'll go. I have a family too, I need the money for them.” [The co-offender] said “Make sure you put the right alarm code in, don't set it off.” [The co-offender] went up a small flight of stairs into the restaurant. A few seconds later [the victim] and Mr Fernandes and [sic] went upstairs as well. [The co-offender] was behind the restaurant counter and yelled at [the victim] to open the safe and said “We know you put the money in the safe behind the bar, we've been casing the joint for ages, we know you have a safe behind the bar.”  [The victim] told them that there was no safe there and took them downstairs to the manager’s office.  [The co-offender] to [the victim] “I’m not scared to use this knife, there’s a safe behind the bar where you keep the money.” [The victim] took them back upstairs and took them over to the storeroom.  He unlocked it and the safe. Mr Fernandes then handed the replica firearm that he was carrying to [the co-offender]. Mr Fernandes entered the safe whilst [the co-offender] escorted [the victim] to the poker machine area.  [The co-offender] tied [the victim’s] hands together with a grey duct tape.  He also removed [the victim’s] mobile telephone from his pocket.

   Mr Fernandes exited the walk-in safe carrying two large sports bags. He told [the victim] to sit down on one of the chairs. [The co-offender] entered the safe and accidentally activated the distress alarm which set off a loud alarm throughout the club.  Fernandes and [the co-offender] then left the club in possession of a number of items, including eight poker machine note canisters, three sets of keys, two green Chubb branded money bags containing a total of $8,508.  The lower panel of one of the back doors to the club was also smashed during the robbery.

   Later [the victim] managed to free himself from the duct tape and contacted the police.[9]

   [9] Exhibit R1 pp.86-89.

10. Mr Fernandes says that these offences were committed in order to pay a significant drug debt.

11. Mr Fernandes was sentenced to imprisonment for six months in relation to shoplifting and four years in relation to the robbery.  The sentences were partially accumulated. A non-parole period of two years and two months was set, commencing on 15 August 2012 and ending on 14 October 2014, followed by a period of two years on parole.  The sentence was completed on 14 October 2016.[10]

    [10] Exhibit R1 p.96.

    Affray 

12. The offence of affray was committed in October 2015, 12 months after Mr Fernandes’ release from prison and while he was still on parole.  On this occasion Mr Fernandes was at a party with a group of about 30 people at an apartment. Several males followed two women from outside the apartment block to the room where the party was being held.  A brawl broke out.  The Police were called and Mr Fernandes and others were conveyed to the local Police station and charged with affray.  The males who followed the women to the party left the scene before the Police arrived and were not apprehended.[11]  

    [11] Exhibit R2 pp.54-85.

    Failure to pass the character test

13. It is not in dispute that, by reason of his criminal record, Mr Fernandes does not pass the “character test” set out in the Migration Act.

    PART C:  THE RELEVANT LEGISLATION

14. Subsection 501(3A) of the Migration Act 1958 (Cth) provides:

    (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.

15. This mandatory cancellation decision is referred to later in the Act as “the original decision”.

16. Subsection 501CA(3) provides:

    (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.

17. Subsection 501CA(4) provides:

    (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.

18. The power of the Tribunal to review the decision to cancel Mr Fernandes’ visa is provided by section 500.

    PART D: DIRECTION NO.65

19. Under subsection 499(1) the Minister has given written directions as to the exercise of the power to review the decision. Subsection 499(2A) provides that these directions must be complied with. The relevant direction is Direction No. 65 which commenced on 23 December 2014.

20. Subparagraph 6.1(3) of the Direction provides, in part:

    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.

21. Paragraph 6.2 provides general guidance and directs that “factors that must be considered in making a revocation decision are identified in Part C of this Direction.”

22. Under the heading General Guidance subparagraph (1) provides:

    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.

23. Paragraph 7 of the Direction sets out how the discretion is to be exercised.  “Informed by” the principles in paragraph 6.3, I must “take into account” the considerations in Part C, in order to determine whether the mandatory cancellation of Mr Fernandes’ visa will be revoked.

24. In paragraph 6.3 the Minister sets out the principles that provide the framework within which the task of exercising the discretion to revoke the cancellation of a visa is to be approached.  The principles include the following: 

    (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.

25. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[12]  Primary considerations should generally be given greater weight than the other considerations.[13]

    [12] Direction 65, paragraphs 6.2(3) and 8(1).

    [13] Direction 65, paragraph 8(4).

26. Paragraph 13(2) provides:

    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.

1. Paragraph 14(1) sets out other considerations to be taken into account where relevant.  It provides:

   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.

   PART E:  THE ISSUE FOR DETERMINATION

2. I have set out subsection 501CA(4) of the Act earlier in these reasons. Before the power to revoke the original decision is enlivened, it is necessary for the decision-maker to be satisfied that the conditions for the exercise of the power have been met. 

3. It is not in dispute that Mr Fernandes has made the representation referred to in paragraph (a) of subsection 501CA(4).  It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. It is therefore necessary to decide whether “there is another reason [i.e. other than an applicant passing the character test] why the original decision should be revoked.”[14]

   [14] Subparagraph 501CA(4)(b)(ii).

4. If I am satisfied of all the relevant requirements of subsection 501CA(4)(b) then the cancellation must be revoked. To this extent “may” in the subsection means “must”.[15]

   [15] Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at para.31.

   PART F:  REASONING

   Primary Consideration 1:  Protection of the Australian community from criminal or other serious conduct

5. I must have regard to matters set out in paragraph 13.1 being:

   ·…… the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community;

   ·[t]he nature and seriousness of the non-citizen’s conduct to date;

   ·[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[16]

   [16] ‘Serious conduct’ is defined in Annex B to the Direction to include conduct of concern which may not constitute a criminal offence.

   The nature and seriousness of Mr Fernandes’ conduct to date

6. Mr Fernandes’ conduct to date, involving as it does violent offending, dishonesty, domestic violence, drug use and an alcohol related driving offence, must be regarded as very serious.  His conduct has been made even more serious by his repeated disregard for the law and the commission of a further offence while he was on parole for the robbery offence.

   The risk to the Australian community should Mr Fernandes commit further offences or engage in other serious conduct

7. The Direction states that I “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.”[17]

   [17] Paragraph 13.1.2(1).

8. There are also considerations to which regard must be had cumulatively:

   (a)[t]he nature of the harm to individuals or the Australian community should the  non-citizen engage in further criminal or other serious conduct; and

   (b)[t]he 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).[18]

   [18] Paragraph 13.1.2(2).

   The nature of future harm

9. In view of the seriousness of Mr Fernandes’ conduct and in line with the principle stated above, the Australian community’s tolerance for the risk of any harm which may come of future misconduct by Mr Fernandes would be low.  Should Mr Fernandes engage in such conduct there would be a significant risk of physical harm to members of the community and loss of property arising from offences such as robbery. Offences involving loss of property and the risk of physical harm would cause uncertainty and concern in the community in which such offences were committed.

10. Although there was only minimal violence involved in the domestic violence offence and the parties have now reconciled, there is always the risk of both physical and psychological harm to the victim should such conduct be repeated.

    The likelihood of Mr Fernandes engaging in further criminal or other serious conduct

    i.    Mr Fernandes’ evidence

11. Mr Fernandes impressed me as an honest witness who was genuinely remorseful for his past conduct.  He says that he has benefitted from the courses he has undertaken in prison.  He no longer takes illegal drugs despite their ready availability in the detention centre where he has been detained since June 2017.

12. Mr Fernandes and his former wife, Ms A, have reconciled and plan to marry should he be free to remain in Australia.  Ms A was expecting his child last year but she suffered a miscarriage.

13. I am satisfied that Mr Fernandes is genuinely concerned for the well-being of his seven year-old daughter and as to the effect his deportation would have on her. He has remained in regular contact with Ms A and his daughter when in prison and immigration detention.  I accept Mr Fernandes’ evidence that he believes that if he commits another criminal offence he may lose the privilege of remaining in Australia and be permanently separated from Ms A and his daughter.  He is genuinely concerned to be able to fulfil his parental role.

    ii.Rehabilitation Programs

14. During his time in prison Mr Fernandes completed courses dealing with drug and alcohol abuse, lifestyle choices and dealing with grief.  His mother committed suicide within one or two days of his being incarcerated and he feels responsible for her death.  His mother had been suffering severe depression for many years previously.

15. Mr Fernandes attended Alcoholics and Narcotics Anonymous weekly meetings for 15 weeks.  He also completed the Young Offenders Program.  He was one of the six who successfully completed the course; initially there were 22 participants.  The program involved weekly meetings and three camps (outside prison) over four months and dealt with issues such as drug use, empathy and the effects of crime on victims.

    iii.The report of Mr Machlin, Clinical Psychologist

16. Mr Machlin assessed Mr Fernandes at the request of his Solicitors in July 2017 when he was still in prison.  Mr Machlin provided a report dated 31 July 2017.[19]

    [19] Exhibit R1 p.135.

17. Under the heading Conclusions Mr Machlin stated, in part:

    (a)  Character

    Pedro and his family understand the gravity of his offence in 2012. They submit that particular pressures were acting on him at the time, and plead that his character should not be judged on that instance, but rather, that he is normally of good character and will maintain better adjustment in future with the close support of his family.

    The current assessment finds that Pedro, his father, his sister and his partner give a consistent and coherent account of his difficulties leading up to that time, including the family’s extended struggle to settle in Australia, relocations from city to city, pressures of fatherhood at a young age, employment setbacks, marital separation, and drug use. His parents’ departure from Australia was a major factor in his decline, which his partner observed at the time, and which his father now realises. The armed robbery occurred when he was 22, at a time of wayward peer associations and drug use. His previous record was clean. Therefore, the offence occurred at a young age when he was using drugs and failing to cope with a severe accumulation of stressors.

    Psychometric testing identified a dependent style, which is precisely as his father and sister had described him. His insecure nature is relevant to his decline leading up to his offences. Psychometric testing did not find him to be antisocial by nature, and neither does his history suggest it.

    He has, since his offences, given appropriate expressions of remorse, as observed in the current interview and reportedly by his father. He has undertaken therapeutic courses in custody and apparently rehabilitated himself from drug use.

    In summary, Pedro’s history, psychometric test results, and demonstration of remorse, all support the notion that his offences were out of character.

    (b)  Risk of Reoffence

    He now has the stabilising influences of his family, especially with the return of his father who appears to be his closest support. Given the penalties that he has served and the changes he has effected in the five years since his offence, the chances of recidivism would appear to be very low. Still, his family need to remain alert to any further vulnerability to drug use as this would be a key risk indicator of decline.[20]

    iv.Sentencing Remarks of Judge Blackmore in the District Court[21] 

    [20] Exhibit R1 pp. 142.

    [21] Exhibit R1 pp.85-96.

18. When sentencing Mr Fernandes in respect of the armed robbery Judge Blackmore said, in part:

    When his parents left Australia the offender and his older sister stayed. His sister gave evidence in the proceedings. She is obviously still devoted to her brother and is intent on assisting him on release from custody…..

    This offender also attributed his offending to use of drugs. He started smoking cannabis at sixteen and taking party drugs at seventeen on weekends. He met a woman, who later became his wife, at a dance party and they both regularly used drugs at such parties. However, she had a baby and stopped using drugs thereafter. In 2012 that relationship broke down. Thereafter he started using Ice. As a result he accumulated a significant drug debt to a drug dealer and the offender told the psychologist that after his incarceration he has not used drugs at all and has undertaken a number of drug and alcohol courses whilst in custody. He is willing to undertake further drug counselling when released.

    The offender is now twenty-two. With the support of his sister, who is an impressive young woman, he has a good prospect of a complete rehabilitation. He also wants to stay connected with his young child which is another motivator for him to achieve rehabilitation.

    In this offender’s case he is also in need of some further drug and alcohol rehabilitation when released from custody.[22]

    v.Assessment Report by Burwood Community Corrections Office prior to making of Intensive Corrections Order [23] 

    [22] Exhibit R1 pp.94-95.

    [23] Exhibit R2 pp.4-6

19. In a report prepared for the Court on 25 July 2016 a Senior Community Corrections Officer assessed Mr Fernandes’ risk of re-offending according to an actuarial risk/needs assessment tool as “medium low”.[24]His criminogenic needs were said to be drug use and associates.

    [24] Exhibit R2 p.5.

    Consideration

20. Taking all the above factors into account, I have reached the conclusion that there is a low risk of Mr Fernandes re-offending.  I accept that there remains some risk.

21. At the time of writing these reasons Mr Fernandes’ father is living in Brazil in order to meet the requirements of his being granted a further visa to reside in Australia.  It appears that after 12 months residence in Australia he must reside outside Australia for a period of six months.  This means that Mr Fernandes will not have the immediate support of his father if he is released from immigration detention.  He will have the support of Ms A, his sister and brother-in-law and his father at some time in the near future.  I am satisfied that this support will make it less likely he will re-offend.

22. I have also relied upon the report of Mr Malchin and the opinions expressed by him.

23. In my view the most important factor in assessing the risk of re-offending in this case is Mr Fernandes’ strong bond with his daughter and his genuine concern that he be able to take an active part in her upbringing. I accept that, despite their past difficulties, Mr Fernandes and Ms A intend to live together with their daughter should he be able to return to live in the Australian community. 

24. Considering all of the evidence I am satisfied that Mr Fernandes has matured and is now less likely to engage in the type of behaviour, and in particular the abuse of alcohol and drugs, which gave rise to his criminal behaviour in the past.  Mr Fernandes understands that should he re-offend it is very likely that he will be deported to Brazil.  I accept that he would not wish Ms A and their daughter to live with him in Brazil as he recognises that they would enjoy a better life in Australia.

25. In these circumstances I am satisfied that the need to protect the Australian community from the serious effects of misconduct such as that in which Mr Fernandes has engaged, weighs in favour of not revoking the cancellation of his visa, but that the risk is not such that this consideration should be given great weight.

    Primary Consideration 2:  Best interests of minor children in Australia affected by the decision

26. The Minister concedes that the best interests of Mr Fernandes’ daughter weigh in favour of revoking the cancellation decision. I agree.

    The evidence of Ms A

27. Ms A provided a statement dated 4 July 2017.[25]  She did not give evidence as she was not required to attend for cross-examination.  I have taken into account that her statement was not made in an affidavit.

    [25] Exhibit R1 pp.144-146.

28. Ms A said that when he has been free to do so Mr Fernandes has actively assisted in the care of their daughter and that without his assistance she finds it difficult to advance her career and earn an income to support the family.  It is her view that their daughter is used to having her father present in her life and would struggle to understand why he had to leave.  This would cause her “confusion and overwhelming sadness.”[26] 

    [26] Exhibit R1 p.145.

    Primary Consideration 3:  Expectations of the Australian community

29. Clause 13.3 of the Direction provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. 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 or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

30. It is very difficult to assess the expectations of the community in an application such as this. I have no doubt that there will be strongly differing views as to whether Mr Fernandes should be able to continue to enjoy the privilege of remaining in Australia. 

31. It is important that the views of a small but vocal section of media commentators not influence this assessment. I am not satisfied that their views reflect those of the Australian community.  Experience has shown that comments are made by those who clearly have not read the decisions of the Tribunal in their entirety, if at all, and who do not understand the law applicable to the decision-making process.  This can be very distressful for applicants who have been successful before the Tribunal and who seek to continue to make lives for themselves and their families in Australia.

32. In Mr Fernandes’ case I am satisfied that fair-minded members of the Australian community, who are apprised of all the facts of this matter and who understand the applicable law, particularly the requirements of Direction No.65, would not expect that he be deported.  Rather I am of the view that the Australian community would expect that he be given one more chance to show that he can be a productive member of society and provide the care and support his family deserves.

    Other considerations set out in Direction No.65

33. Clause 14 provides:

    (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.

    International non-refoulement obligations

34. Australia does not have any non-refoulement obligations relevant to this application.

    Strength, nature and duration of ties to Australia

35. Clause 14.2 provides:

    (1)  The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:

    (f)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.

    (g)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).

36. Mr Fernandes has lived in Australia since he was 14 years old.  Although he arrived as a young person, the significance of this factor is reduced by the fact that he started offending within a short time of his arrival.

37. Mr Fernandes has worked in various occupations when he was not in prison or detention.  It appears that he was able to find employment easily, apart from the time when he was under the influence of drugs and alcohol.  When working he did make a positive contribution to the Australian community by way of the services he provided and the tax he paid on his income. On the other hand, he has been a drain on the country’s resources during the time he has been held in prison. 

38. Should Mr Fernandes be required to leave Australia it will have serious consequences for Ms A and their daughter, both of whom are Australian citizens.  I am satisfied that Ms A and Mr Fernandes are in a relationship which has reasonable prospects of continuing and growing to provide support and nurture for their daughter.  In addition to the emotional hardship which would be caused to Ms A she would also be denied the benefit of Mr Fernandes’ assistance in the day-to-day care of their child.

39. Apart from the effect on Ms A, on the evidence available I do not consider that the strength, nature and duration of Mr Fernandes’ ties to Australia are such as to weigh significantly in favour of the revocation of the cancellation of his visa.

    Impact on Australian business interests

40. I am satisfied that a decision not to revoke the cancellation of Mr Fernandes' visa will not have a relevant impact on Australian business interests.

    Impact on victims

41. I do not have sufficient evidence to assess the impact of Mr Fernandes’ behaviour on the victims of his criminal conduct, other than it is likely that the victims of his crimes suffered distress and financial loss.

    Extent of impediments Mr Fernandes may face if he is removed from Australia

42. Mr Fernandes says that should he return to Brazil he will have nowhere to live and that the unemployment rate is such that it will be very difficult for him to find employment.  He says that he would not expect his partner and daughter to live with him in Brazil and the evidence of Ms A indicates that this would be extremely unlikely.

1. If Mr Fernandes returns to Brazil in the near future he will have the emotional support of his father who has returned there in order to be able to apply for another visa to reside in Australia.  Mr Fernandes volunteered the information that his father has indicated that he would remain in Brazil if Mr Fernandes was living there to provide him with emotional support. 

2. I accept that Mr Fernandes will be likely to suffer emotional distress if he is further separated from his family.  I am satisfied that it is likely that he would suffer financial hardship.  I have no evidence as to the government support he would receive to assist him find accommodation and employment.

   PART G:  THE BALANCING EXERCISE

3. The nature and seriousness of Mr Fernandes’ conduct and the seriousness of the harm which would be caused to members of the community should Mr Fernandes re-offend, are factors which weigh heavily against the revocation of the decision to cancel his visa.  However the weight of these considerations is significantly reduced by the fact that I am satisfied that the risk of his repeating his criminal conduct is low.

4. I am satisfied that the series of offences committed in 2011 and 2012 was in part a result of the problems being experienced by Mr Fernandes and his dependence on drugs and alcohol.  However this does not excuse his criminal conduct.

5. The fact that Mr Fernandes was involved in an affray in October 2015 caused me to consider very carefully whether I could be satisfied that the risk of his re-offending should properly be classified as low.  At that time Mr Fernandes was 25 years old and was the father of a young child.  All that can be said in his favour was that it was not a planned offence and was one which is usually regarded as being towards the less serious end of the scale of offences.

6. It is also of concern that Mr Fernandes continued to disregard the laws of this country by failing to comply with the terms of the Intensive Correction Order imposed on him by the Court on his plea of guilty to the charge of affray.  In other circumstances this repetition of past conduct could have been sufficient reason not to revoke the cancellation of his visa.  However I take into account that as a result of his non-compliance, Mr Fernandes spent further time in custody and the Court considered it appropriate to give Mr Fernandes a second chance to comply with the Order.

7. The fact that Mr Fernandes has availed himself of the counselling available to him while in prison is in his favour.  I also take into account that after he was released in 2014 he took steps to improve his ability to provide for his family by gaining qualifications as a fitness trainer.  This will help him cope with the types of stressors which preceded his criminal activity.

8. Notwithstanding the weight of considerations which indicate that the decision to cancel Mr Fernandes’ visa should not be revoked, I conclude that the primary consideration of the welfare of Mr Fernandes’ young daughter outweighs all others.  The detrimental effect on her of her father being removed from Australia causes me to be satisfied that there is a reason to revoke the cancellation of Mr Fernandes’ visa.

9. In reaching this conclusion I have not given weight to the impediments Mr Fernandes may face should he have been required to return to Brazil.  He has lived half his life in that country and I am satisfied that his father would have helped him establish himself there.

   PART H:  CONCLUSION

10. The reviewable decision made 6 December 2017, being the decision of the delegate of the Minister for Immigration and Border Protection not to revoke the cancellation of Mr Fernandes’ Class WE Subclass 050 Bridging E General (Temporary) visa, will be set aside.

11. In substitution it will be decided that the decision to cancel Mr Fernandes’ Class WE Subclass 050 Bridging E General (Temporary) visa, made 2 June 2017, is revoked.

I certify that the preceding 88 (eighty-eight) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance

....................................[sgd]....................................

Associate

Dated: 28 February 2018

Date(s) of hearing:	15 & 20 February 2018
Applicant:	Self-represented
Solicitors for the Respondent:	L Dennis, Minter Ellison