Dzik and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3498
•3 September 2020
Dzik and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3498 (3 September 2020)
Division:GENERAL DIVISION
File Number(s):2020/3639
Re:Robert Dzik
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member Rebecca Bellamy
Date of decision: 3 September 2020
Date of written reasons: 10 September 2020
Place:Brisbane
The decision under review is affirmed.
...........................[SGD].............................................
Member Rebecca Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (Permanent) Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs [2019] FCA 500; FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Pitcher v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 999.
Suleiman v Minister for Immigration and Border Protection: [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Member Rebecca Bellamy
10 September 2020
THE ISSUE BEFORE THE TRIBUNAL
The Applicant is a 50 year old citizen of Poland who has lived in Australia since he was 12 years old.
In August 2019, a delegate of the Minister (“the Respondent”) mandatorily cancelled the Applicant’s Class BF Transitional (Permanent) Visa (“visa”) under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that he did not pass the character test and he was serving a full time custodial sentence.[1] The Applicant subsequently asked the Respondent to revoke the cancellation of his visa (“revocation request”).[2]
[1] Exhibit G1, section 501 G-Documents, G3, pages 9 to16.
[2] Ibid,G4, page 30.
On 11 June 2020, the Respondent decided not to revoke the cancellation. The Applicant subsequently lodged an application for review in this Tribunal. The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
The hearing of this application proceeded on 18 and 21 August 2020. The Applicant gave evidence by video conference as did his sister and mother. His ex-partner and a friend gave evidence by telephone. The Tribunal also received the written evidence that is listed in the attached exhibit list, marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
The Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[3]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[4]
[3] [2018] FCAFC 151.
[4] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[5]
[5] Ibid.
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant has been sentenced to a term of imprisonment of 12 months or more – in 2014 he was sentenced to 12 months imprisonment, and in 2017 he was sentenced to imprisonment for two years and nine months.[6] What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[7] Accordingly, there is no doubt that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. He cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[6] Exhibit G1, section 501 G-Documents, G16, page 87 to 92.
[7] Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, pp.415-416.
Is There Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 6.3 of the Direction contains several principles that must inform a decision maker’s application of the considerations in paragraphs 7 and 8.
Paragraph 7(1) of the Direction provides that:
Informed by the principles in paragraph 6.3 above, a decision-maker:
…
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.[8]
[8] The Direction, sub-paragraph 7(1)(b).
Paragraph 8(1) of the Direction provides that:
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 or grant a visa to a visa Applicant, cancel the visa of the visa holder, or revoke the mandatory cancellation of the visa. These different considerations are articulated in Parts A, B and C...
Part C of the Direction provides for the decision-maker to take into account “Primary Considerations”[9] and “Other considerations”.[10] The Primary Considerations are set out in paragraph 13.(2) of the Direction (contained in Part C) and they are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
[9] The Direction, paragraph 13.
[10] The Direction, paragraph 14.
The Other Considerations are set out in paragraph 14(1) of the Direction (contained in Part C) and they are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[11]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[12]
[11] [2018] FCA 594.
[12] Ibid, [23].
The principles set out in paragraph 6.3 of the Direction, that should inform the decision-maker’s application of the primary considerations and other considerations are summarised as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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;
(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;
(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 be allowed to come to or remain permanently in Australia; and
(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 for determining whether to exercise the discretion.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant moved to Australia with his mother and sister in 1982 when he was 12 years old. His father was already in Australia.[13]
[13] Exhibit G1, Section 501 G-documents, G21, page 119.
He committed his first criminal offence eight years later in 1990 when he was 20 years old. He was sentenced to 60 hours of community service for false pretences.[14] He also committed the first of many traffic infringements in 1990, being driving at between 15 to 29 km/h over the speed limit.[15]
[14] Ibid, G16, page 91.
[15] Exhibit R2, Respondent’s Tender Bundle, TB4, page 174.
In 1992, the Applicant started using methamphetamine recreationally - around three or four times per year.[16] It was not until many years later that his use of methamphetamine escalated and became an addiction following the break-up of his long-term relationship and his involvement in a subsequent relationship (addressed in further detail later in these reasons).[17]
[16] Transcript page 60.
[17] Transcript, pages 60 to 61.
Between 1990 and 2015, the Applicant committed some 45 traffic infringements,[18] that can be grouped as follows:
· Driving at less than 15 km/h over the speed limit x 5;
· Driving at more than 15 km/h but less than 30km/h over the speed limit x 11;
· Driving at more than 20 km/h but less than 30km/h x 3;
· Driving at more than 30 km/h;
· Fail to keep left of continuous double lines;
· Disobey “no right turn” sign;
· Unlicensed or disqualified driving x 14; and
· Drug driving.
[18] Exhibit R2, Respondent’s Tender Bundle, TB4, pages 167 to 174.
Between 1990 and 2006, the Applicant committed some 12 criminal offences including:[19]
·Seven offences arising from dishonesty (e.g. false pretences) or possession (or attempted possession) of stolen property;
·Three offences relating to drug use (possession of drugs or drug related paraphernalia);
·One offence of supplying dangerous drugs (a small amount of cannabis[20]); and
·One offence of serious assault.
[19] Exhibit G1, Section 501 G-documents, G16, page 91.
[20] Transcript, page 68, lines 13 to 35.
The serious assault was an assault against a police officer when the Applicant was in custody. I do not have any sentencing remarks before me; however, the Queensland Police records indicate that the applicant grabbed a police officer “very hard on the upper right arm causing bruising and abrasion”.[21] The Applicant was fined $600. The Applicant told the Tribunal that in fact the police officer assaulted him. He said he did not assault any police officer, that he was sitting on a chair with his hands handcuffed behind his back and he ended up on the floor.[22] He said his lawyer told him he did not “have a leg to stand on” and advised him to plead guilty on the basis that he would not go to gaol.[23] A fine of $600 is substantial. It suggests that the court did not fond significant mitigation. I do not consider there to be sufficient reliable evidence to make a make a finding inconsistent with the conviction or to accept that the Applicant was himself assaulted.
[21] Exhibit R2, Respondent’s Tender Bundle, TB1, pages 11 to 12.
[22] Transcript, page 35.
[23] Transcript, page 35.
For the other offences listed above, the Applicant was given the benefit of non-custodial sentences, including fines, community service orders and a good behaviour bond.
There were some gaps in the applicant’s offending during this period: he did not offend between 1992 and 1995 or between 1997 and 2000.
The Applicant began a serious relationship with Janice in 1993. In 2002 they had a son, their only child. In 2007, the family moved to Mount Isa for the Applicant’s work. Janice subsequently ended the relationship and moved back to Brisbane. There was some conflicting evidence about exactly when this happened. The Applicant told the Tribunal he thought the relationship ended around 2011 when his family were living in Mount Isa.[24] However, Janice said that the relationship ended in 2008.[25] The Applicant said he moved back to Brisbane some months after his partner ended the relationship,[26] and said he ceased employment with his Mount Isa employer in 2009.[27] The evidence in relation to two stalking offences the Applicant committed in 2012 indicates that he was in a relationship with someone else, [Ms M], in 2009. I find that the Applicant’s relationship with Janice ended in 2008, and that the Applicant was mistaken about that in his representations to the Respondent and the Tribunal.
[24] Transcript, page 60. See also Exhibit G1, Section 501 G-documents, G41, page 188.
[25] Exhibit G1, Section 501 G-documents, G25, page 149.
[26] Transcript, page 11, lines 11 to 35
[27] Transcript, page 30, line 6.
In a written statement, the Applicant explained how the break-up with Janice and his subsequent relationship with Ms M impacted on his substance abuse:
“I never had issues with alcohol until 2011 when Janice separated from me.
I was having about six alcoholic drinks a day, and this then turned into using methamphetamine (meth) around this time to help block my emotions.
I started using drugs in 1992, but it was limited to cannabis and methamphetamine (meth) but only on occasion recreationally….
[Ms M] was the first relationship I had after the breakdown of my marriage with Janice and I had moved down to Brisbane.
I met [Ms M] through mutual friends shortly after moving to Brisbane. I was on the rebound from my failed marriage, and we began dating.
On reflection I would describe this relationship as a chemical relationship. We took drugs together and our relationship was intense.
Within 6 months we were exclusive.
However, things took a drastic turn when I discovered that [Ms M] had slept with one of my mates.
I confronted her about her cheating and after a number of exchanges our relationship ended, but we continued to sleep with each other.[28]
[28] Exhibit G1, Section 501 G-documents, G41, page 189.
In the hearing, he told the Tribunal:
“… my drug use began - it escalated a lot more while I was with [Deanne]… but it started when I came back from Mount Isa and I was spending time with and entered a relationship with [Ms M], which is the person we brought up before in relation to the stalking charge.”[29]
[29] Transcript, page 61, lines 16 to 20.
I accept that the Applicant was devastated by the break-up of his long-term relationship with Janice. However, based on his evidence and his offending post-2006, it appears that his increased drug use and resumption of offending had more to do with his new relationship with Ms M than to the break-up with Janice.
For instance, the Applicant’s criminal history shows a “contravene direction of requirement” in November 2010, another “contravene direction or requirement” in February 2011, and a “fail to appear in accordance with bail undertaking” in September 2011. The facts of these are not before me but the very small penalties imposed,[30] suggest that they were very minor offences. The first significant post-2006 offending occurred in July 2012 in the context, or the aftermath, of the Applicant’s relationship with Ms M. Between 6 and 9 July 2012 he committed two offences of unlawful stalking.
[30] Very small fines and the mere recording of a conviction without further punishment.
The facts of that offending that I am able to glean from the police court brief,[31] and the remarks of the learned Magistrate who ultimately re-sentenced the Applicant in relation to the offences (after he breached his original sentence – see below)[32], are as follows. The victim, Ms M, had been in a casual relationship with the applicant for around six months before she broke it off in late 2009. The Applicant then continually harassed Ms M to resume the relationship. There were explicit images of Ms M stored on her home computer that was password protected. The password was kept in Ms M’s diary. Ms M recalled seeing a photo on the Applicant’s mobile phone of the page of her diary with the password on it. Since the end of the relationship, the Applicant had sent copies of the images to Ms M’s mother and tried to upload them to Ms M’s Facebook page, with threats that the learned Magistrate said were to the effect of “If you don’t go out with me, I’m going to show everyone your dirty photos”. He also threatened to distribute leaflets with the images in an attempt to force her to resume the relationship.
[31] Exhibit R2, Respondent’s Tender Bundle, TB1, page 14.
[32] Exhibit G1, Section 501 G-documents, G17, page 92.
Early on the morning of 8 July 2012, the Applicant texted Ms M: “Saturday mail has been delivered to whole street again – 200 this time” and later that morning he texted her: “Are you ready for Round 2, Tonight?”.
The Applicant had in fact, that morning, delivered a number of flyers showing naked photos of Ms M along a street in the suburb where she lived. He had also stuck several of the flyers to the front door of her workplace and they were found by a colleague arriving for work. The flyers said on them:
“Hi my name is [victim’s name]. I live at [victim’s address]. I love to have sex for speed my number is [victim’s phone number] I work at [victim’s workplace]”
The learned Magistrate who re-sentenced the Applicant made the following comments in relation to these offences:
“Now, when I look at the re-sentencing for the two stalking, it’s a very serious matter, given the intensity of the feelings. The fact that a woman’s password-protected images had been extracted from the computer and then had been transformed into flyers, as they call it, or placards, to be placed in critical positions throughout this woman’s community. They were placed on the front door of the woman’s address. It identified her by name, her address, her phone number and her place of employment. Her character was besmirched by the fact that this was a woman who was inviting sex. For whatever reason, the defendant took it upon himself to send a photo of the image to the girl’s mother and then embark upon a campaign where these fliers (sic) were distributed quite generally throughout the community. The only reason that someone would do such a thing would be to completely annihilate or decimate any character or reputation that a person may have in regard to her position in the community, in the workplace and amongst her family and friends. Now, when one considers the sustained attack on this woman’s reputation and the persistence, it’s serious to warrant a term of imprisonment.”[33]
[33] Exhibit G1, Section 501 G-documents, G17, page 97, lines 15 to 30.
While the Applicant had been on bail for the stalking charges, he had committed further offences. In August 2012 he was caught in unlawful possession of suspected stolen property (vehicle registration plates found in the boot of his car – he told police a friend had put them there[34]) and he committed a traffic offence. In October 2012, the Applicant contravened a direction or requirement and he breached a bail undertaking.
[34] Exhibit R2, Respondent’s Tender Bundle, TB1, page 19.
In November 2012, the Applicant was convicted of the stalking offences and with failing to appear in accordance with a bail undertaking. He was sentenced to two years of probation. He began failing to report for probation in June 2013, and he failed to report on at least 11 more occasions.[35]
[35] Exhibit G1, Section 501 G-documents, G17, page 93, lines 25 to 30.
While on probation, he was caught stealing in July 2013. The facts of that offence are not before the Tribunal.
He told the Tribunal that in 2013 he was in a relationship with Deanne and that his drug use escalated even further while he was with her. They used to use methamphetamine together and would use three to four times per day. He did this for between 18 months and two years.[36]
[36] Transcript, page 61, lines 25 to 30.
On 8 August 2013, he was caught driving a stolen vehicle that had registration plates on it that had been stolen from a different vehicle. The car had extensive damage to the inside of the doors, the back windscreen was missing, and the ignition barrel was missing. The Applicant told police he bought the car, and when asked for details he provided several different versions of the events. He also told police he did not know the plates were stolen.[37] Given the condition of the car, and the missing ignition barrel, I am satisfied that the applicant knew the car was stolen.
[37] Exhibit R2, Respondent’s Tender Bundle, TB1, page 32.
On 10 August 2013, the applicant was caught driving with methamphetamine in his saliva.[38] The police facts state that he admitted to recent drug use. However, the Applicant told the Tribunal that he had used methamphetamine five days previously.[39] This is not consistent with evidence he gave earlier that he was taking methamphetamine multiple times, on a daily basis, in 2013. When this was put to him, he said:
“I wouldn’t say as in daily, every day, there was [indistinct words] of my time where obviously if you use daily you don’t sleep a lot so there are times or there are spaces in between where I would recover and sleep for a few days prior to participating in taking more drugs on a daily basis.”[40]
[38] Exhibit R2, Respondent’s Tender Bundle, TB1, page 23.
[39] Transcript, page 56, lines 36 to 39.
[40] Transcript, page 69, lines 11 to 15.
There is no evidence before me about how recently a person must have used methamphetamine for it to be detectable in their saliva. Even if I accept that the Applicant sometimes abstained to recover and sleep, it seems implausible that he would have done that for four days running, given his addiction and the frequency with which he used methamphetamine throughout each day. I reject his evidence in favour of the police facts that record him as having admitted to recent drug use.
On 28 August 2013, while on bail, and also still on probation, the Applicant failed to appear in accordance with his bail conditions.
In March 2014, having breached his probation, he was resentenced for the stalking offences and the fail to appear in accordance with a bail undertaking. He was sentenced to 12 months imprisonment and ordered to serve nearly three months of that sentence before being released on parole. He was also convicted and sentenced for all of the offences that he had committed while on probation as follows:
·Unlawful use of motor vehicles aircraft or vessels (the stolen car) – nine months imprisonment;
·Fail to appear in accordance with bail undertaking – two months imprisonment;
·Receiving tainted property (the registration plates) – one-month imprisonment; and
·Stealing (not known) – one-month imprisonment (all concurrent)
In September 2015, the Applicant was intercepted in a vehicle. In his jacket pocket the police found what they described as a steel item measuring approximately 12cm that could be unscrewed to reveal a knife blade that could be affixed to the steel item, making a knife approximately 17cm long.[41] The Applicant told police he thought it was “cool” and he used it to clean his nails. He told the Tribunal the same thing.[42] I find it implausible, and I do not accept, that the Applicant was carrying a concealable knife for the sole purpose of cleaning his nails. While on bail for this offence, he failed to appear in court in breach of his bail undertaking. He was ultimately fined for these offences.
[41] Exhibit R2, Respondent’s Tender Bundle, TB1, page 45.
[42] Transcript, page 40, line 5.
In December 2015, police conducted a search of the Applicant’s home. They found three clip seal bags containing small amounts of methamphetamine in the Applicant’s bedroom. He denied any knowledge of them and stated that that they were not his.[43] Police also found two rounds of ammunition. The Applicant said he had purchased them from a market and did not realise they were live or that it was illegal to possess them.[44] I note that no firearms were found.
[43] Exhibit R2, Respondent’s Tender Bundle, TB1, page 49.
[44] Ibid.
In January 2016, police conducted a search of the Applicant’s home and found a small quantity of methamphetamine, which the Applicant admitted was his. Police also found a glass pipe that the applicant admitted was his.[45]
[45] Ibid, page 57.
In March 2016, police conducted a search of the Applicant’s home, and they found eight clip seal bags containing a total of 11.6 grams of methamphetamine, a glass pipe, a home-made bong, a Taser, a baseball bat with a number of nails embedded in it, and a box of fireworks. In the yard, police found a stolen boat. Police also found a camera that had been stolen in a break-in in 2015, an iPad screen and laptop that had been stolen in a separate break-in, and a laptop that was stolen in a third break-in.[46]
[46] Ibid, page 70.
In relation to the stolen boat and other items the Applicant told the Tribunal:
“Obviously when the police executed the search warrant, the boat came up as stolen. I had probably another 10 cars there that I bought and sold and worked on. And the boat was the only one that came up with a stolen boat. I spoke with [Deanne] in relation of it. Her friend – I was not aware that the boat was stolen until it came up stolen and, yes, ended up being charged with it. I, you know I did not participate in any of these items being stolen, or anything like that. [Deanne] – we used to go to the markets a fair bit. She did buy couple of items on Gumtree and stuff. Some of the items obviously came up stolen.”[47]
[47] Transcript, page 45, line 42; page 46, line 2.
In April 2016, the Applicant was found in possession of dangerous drugs and drug related utensils. In June 2016, police intercepted the Applicant in a vehicle with Deanne and another person, and concealed in the vehicle was a quantity of methamphetamine.[48] In August 2016, the Applicant breached his bail, and when police located him in relation to that they found that he was carrying 4 grams of methamphetamine. In relation to each of these episodes, the Applicant was charged with possession of dangerous drugs “exceeding schedule 3 but less than schedule 4”.
[48] Exhibit R2, Respondent’s Tender Bundle, TB1, page 86.
On 20 March 2017, the Applicant was convicted (having pleaded guilty) and sentenced in relation to all of the offences from December 2015 to August 2016. For the possession of dangerous drugs “exceeding schedule 3 but less than schedule 4” he was sentenced to imprisonment for two years and nine months with a parole release date of 18 July 2018.
In passing sentence, the learned Judge made the following remarks:
“The offending on the 2nd of June is, by far and away, the more serious of the charges before me and what I intend to do is impose one sentence on that charge that will reflect the criminality of the two possession charges on indictment, as well as the bench charges. In that respect, I think it is fairly clear, as the Prosecutor said, that, really, there was six months, beginning in November 2015, where, really, you were, really, just out of control due to your use of methylamphetamine and committing crimes frequently. I take that into account in assessing the overall criminality, and I also take into account that the second possession charge on indictment was committed while you were on bail, and, I think, in particularly acute circumstances, which I will come to…
The offending on the 2nd of June 2016 saw you in possession of 52 grams of powder…It was of 75 per cent purity, which meant that you had 39 grams of pure drug. The Crown material is that would cost somewhere between 10 and 16 thousand dollars to buy. It is conceded that part of your possession was commercial, that is, it is conceded, and I think properly so, that on the evidence, the possession of that amount of drug must have been for not only your own personal use, but all for sale
….
You were arrested and spent 58 days in jail. You were then granted bail in the Magistrates Court when the matter came before a Magistrate for committal. It was a pretty disastrous outcome in that you spent two or three days on bail. You were to reside at a rehabilitation centre where, apparently, you did attend, but you failed to report, and when you were apprehended by police at the rehabilitation centre on the 2nd of August, you had 3.5 grams of powder in your possession…So, as I say, the 58 days in jail has done nothing to dampen your addiction
…
The criminal history is a long criminal history from 1991. The first offending was in 1990, when you were 20 years old. I accept what the Crown Prosecutor says. There are gaps in the criminal history but, at the same time, the offending is regular enough and the thing, I think, that is most disturbing is that the offending worsens as you get older and particularly from 2012 onwards, the offending gets worse. Your first custodial sentence was 2014.
And I note, really, same sort of attitude is reflected in the Court report. Your compliance with supervision in the community for the first two times you will put on it was actually good compliance. The third time was described as poor and the last time was described as superficial only, with a reluctance to address the real issue, and that real issue is your drug offending. So overall, I must say it is not a good picture, and the traffic history is a shocking traffic history. And it really indicates, I suppose, how great a grip the drug addiction has on you, but it indicates a lawless attitude….by offending, you have put yourself in a position where you may well be deported from Australia, and that is because you have never become a citizen. That must be a very significant risk, I think, to you, to your nuclear family and to your own family. Very significant and very serious risk.”[49]
[Underlining added]
[49] Exhibit G1, Section 501 G-documents, G18, pages 101 to 102.
The Applicant told the Tribunal that he did not, in fact intend to sell any of the 52 grams of methamphetamine. He said he, Deanne, and “a couple” of her friends had pooled their money to buy the methamphetamine for their own use, not to sell.[50] The Applicant was represented by a solicitor and a barrister in the criminal proceedings. I am not prepared to accept, contrary to the Judge’s finding, that none of the methamphetamine was intended for sale. I do, however, accept the Applicant’s evidence that the value of the drugs as stated in the sentencing remarks was the street value – and not what the Applicant and his associates had paid for it.
[50] Transcript, page 42, lines 13 to 20.
The weapons found at the Applicant’s home are of concern. He told the Tribunal that a friend had left the taser there and he had no intention of ever using it to harm anyone.[51] He said the bat with nails embedded in it was a small ornamental wooden bat that was on the wall inside a picture frame, and that he had no intention of using it to harm anyone.[52] The police report said the bat was in the loungeroom but it did not say it was on the wall inside a frame. It is difficult to see how a bat with nails embedded in it is worthy of being framed and placed on a wall, but I do not have a photograph or pictorial representation of this item before me so I am prepared to accept that the Applicant had it to display. However, it must have been abundantly clear to the Applicant that such an object could be used as a weapon and was capable of inflicting quite horrific injuries. The same can be said of the taser that was found at in the Applicant’s home.
[51] Transcript page 46 lines 30 to 31.
[52] Transcript page 47 lines 1 to 6.
In April 2017, the Respondent cancelled the Applicant’s visa under s 501(3A) of the Act. The Applicant requested revocation of the cancellation and made representations in support of that (“the first revocation request”). In answer to the question: “What do you think is the likelihood that you may re-offend now? Please give reasons for your answer” the Applicant responded, “No risk”’.[53] He also said the following in a statement:
“If I was to be removed and sent to Poland, I have no family members that I am aware of in Poland. I would have no networks to assist me to find work. My Polish is no longer fluent as I have been mainly an English speaker since coming to Australia in 1982.
I have no intention of using drugs when I am released from prison. I will be on strict parole conditions and I will be drug tested. I am aware that if my permanent visa is revoked, I am aware that any further offence would mean almost certain removal from Australia. As I do not wish to be separated from my parents and my current partner or my son, I have a very strong incentive to not be involved in drug use again.”[54]
[53] Exhibit R2, Respondent’s Tender Bundle, TB5, page 182.
[54] Ibid, page 188, paragraphs 25 to 26.
On 3 January 2018, the Respondent revoked the cancellation. The notice that was sent to the Applicant advising of the revocation contained the following warning:[55]
Please note: the decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
[55] Exhibit G1, Section 501 G-documents, G48, page 245.
The Applicant signed an acknowledgement of having received the notice on 3 January 2018.[56] He confirmed before the Tribunal that he knew at that time that if he re-offended his visa could be cancelled again.[57]
[56] Ibid, page 247.
[57] Transcript, page 64, lines 18 to 20.
The Applicant had commenced taking medication for depression and anxiety while incarcerated. His father had passed away during this time and he was not able to attend the funeral. He had maintained his relationship with Deanne however, after he was released, it fell apart because, according to the Applicant, Deanne wanted to keep participating in criminal activity. When asked what the criminal activity was, the applicant said:
“My – my ex-partner was - she was buying, selling drugs, basically. Stolen cars, various different items, and I didn’t - I didn’t really ask that - I could see from the - what was going on around the house, and there was (sic) strangers and people I didn’t even know and they weren’t friends or anything like that. I expressed my concerns and I - I told her that I didn’t really want to pursue, or go down that path, along the same way that she was…Next I ended up - honestly, I ended up going to my mum’s and my family house and I stayed there for, you know, a little bit. And I then, you know, I was a little bit disturbed by the relationship and she (sic) choosing to -choose the life of crime. And I lapsed and I started using drugs again.
…
So then I stayed at my parents, my parents’, my mum’s house, for about a month and I relapsed and I then got prosecuted of possession yet again of 4.7 grams of methamphetamines.”[58]
[58] Transcript, page 19, line 33 to page 20, line 2; page 20, lines 37 to 43.
The Applicant partly attributed his relapse to his father’s death and his inability to attend the funeral.[59] It emerged in oral evidence that he had stopped taking his medication after he was released. This also appears to have contributed to his relapse.
[59] Transcript, page 48, lines 38 to 40.
On 22 March 2018, less than two months after the Applicant’s visa was restored, he was found in unlawful possession of a weapon (flail) and suspected stolen property (car key). The police had attended a residence and found him and others there. Numerous weapons such as knives, hammers and samurai swords were found. A flail, made of a billiard ball inside a sock, was found in the Applicant’s possession, and a car key that was suspected of being stolen was found in his backpack.[60] The Applicant told the Tribunal that the other weapons were not his. He said his friend had put the billiard ball inside the sock, tied a knot in it and given it to him.[61] He said he was surprised it was classified as a weapon, and they were not hitting anyone with it. He later described it as “just a makeshift weapon” that they “mucked around with”.[62]
[60] Exhibit R2, Respondent’s Tender Bundle, TB1, page 109.
[61] Transcript page 52 lines 35 to 40.
[62] Transcript, page 53, lines 30 to 40.
On 27 March 2018, the Applicant was found in possession of dangerous drugs “exceeding schedule 3 but less than schedule 4”, a additional smaller quantity of dangerous drugs and drug related paraphernalia. The police facts indicate that the Applicant was stopped for a drug search. He took a bag of drugs from his clothes and threw it onto of a car park roof.[63] He then struggled with police who transitioned him to the ground. The Applicant admitted to the Tribunal that he had drugs on him and that he threw them onto a car park roof. However, he denied struggling with, or otherwise obstructing police,[64] (although he had pleaded guilty to obstruct police).
[63] Exhibit R2, Respondent’s Tender Bundle, TB1, page 113
[64] Transcript page 51.
On 29 March 2018, the Applicant contravened a direction or requirement.
On 8 May 2018 the Applicant was apprehended by police walking with a friend. The key to a stolen car was in the Applicant’s pocket. The stolen car was nearby, and some of the Applicant’s belongings were in the stolen car. The stolen car also contained two stolen registration plates. The Applicant told police the key came to be in his jacket because his friend had worn his jacket and that he was unaware there were registration plates in the car.[65] He told the Tribunal that his friend had picked him up in the car, which his friend had said was his mother’s car. He reiterated that he was not aware of the stolen plates inside the car,[66] and that his friend had been wearing his jacket which is how the car key was in it. He conceded that he should have realised the car was probably stolen given what he knew about his friend. The Applicant was returned into custody on that day, his parole having been suspended on 3 April 2018, presumably because of his offending in March 2018.
[65] Exhibit R2, Respondent’s Tender Bundle, TB1, page 126.
[66] Transcript page 64 lines
The Applicant was subsequently dealt with for all of these offences in four separate sentencing episodes as follows, in chronological order:
· Contravene a direction or requirement – fined $500;
· Unlawful use of motor vehicle (8 May) – six months imprisonment, possess tainted property (8 May) – no penalty;
· Possess dangerous drugs “exceeding schedule 3 but less than schedule 4” (27 March) – 10 months imprisonment (with an immediate parole eligibility date);
· Unlawful possession of suspected stolen property (22 March) – one month imprisonment, the rest of the offences – not further punished.
When passing sentence for possession of dangerous drugs, the learned Judge made the following remarks:
“…you pleaded guilty today to one count of possession of the dangerous drug methylamphetamine, where the quantity exceeded two grams. The offence was committed on 27 March 2018 when police observed you put some property inside a vehicle, and the police had an interest in that particular vehicle. It seems to have had nothing to do with you, but they decided to do a search. You removed an item from your right pocket, and threw it on top of a nearby car park roof. The police located the package and found it to contain 6.356 grams of crystal substance that, on analysis, contained 4.811 grams of pure methylamphetamine.
Obviously, because you were on parole at the time, that explains why you were not cooperative with the police search, but this sentencing is proceeding on the basis that your guilty plea today to that offence is a timely guilty plea, as the factual basis on which the sentencing is proceeding is one that was only recently negotiated with the prosecution. It seems that this offence is far less serious than the one for which Justice Dalton sentenced you on 20 March 2017, as the sentencing is proceeding today on the basis that the methylamphetamine that was in your possession was for your personal use, and not a commercial purpose.
…
Since you were returned to custody on 8 May 2018, you have had almost another year in custody. You have been at Borallon, and you instruct your lawyers that you have managed to stay clear from drugs. For your sake, I hope that is the case
…
You have commenced your own path to rehabilitation by remaining abstinent for almost one year, and that gives some hope for the future, but I think you probably realise more than anyone else what a precarious situation you are in.”[67]
[67] Exhibit G1, Section 501 G-documents, G19.
The Applicant’s visa was subsequently cancelled a second time in August 2019.
Effect of the revocation of the previous visa cancellation
The previous revocation decision forms part of the factual background to this review. The Applicant, through his legal representative, advanced an argument to the effect that the previous revocation decision fetters the Tribunal’s function in relation to the decision under review. In the Applicant’s Statement of Facts, Issues and Contentions it was contended that:
“The Tribunal is bound to accept that the Respondent’s decision dated 3 January 2018 was conclusive and final and therefore, that there did exist ‘another reason’ for the purposes of s 501CA(4)(b)(ii) at the time of the Respondent’s previous revocation decision dated 3 January 2018”.[68]
[68] Exhibit A1, Applicant’s Statement of Facts, Issues and Contentions, paragraph 21.
In oral submissions it was contended, in relation to the previous revocation decision:
“…because it is a privative clause decision, the earlier revocation decision has to be taken to be the preferable and correct decision.”[69]
and that it:
“…should inform the way the tribunal views the offending up until that date in the sense that the applicant’s offending through to that date in the mind of the Delegate did not stand in the way of a revocation decision being made.”[70]
[Underlining added]
[69] Transcript, page 5, lines 16 to 17.
[70] Transcript, page 5, lines 32 to 36.
The thrust of the Applicant’s argument was that the previous revocation decision places a limit on the weight that the Tribunal may allocate to the nature and seriousness of the Applicant’s offending prior to 3 January 2018.
The authority cited by the Applicant for the proposition that the Tribunal is bound to accept that the previous revocation decision was “final and conclusive” is s 474(1)(a) of the Act. The relevant parts of s 474 are:
(1) A privative clause decision:
(a) is final and conclusive; and
(b) must not be challenged, appealed against, reviewed, quashed or called in question in any court; and
(c) is not subject to prohibition, mandamus, injunction, declaration or certiorari in any court on any account.
(2) In this section:
"privative clause decision" means a decision of an administrative character made, proposed to be made, or required to be made, as the case may be, under this Act or under a regulation or other instrument made under this Act (whether in the exercise of a discretion or not), other than a decision referred to in subsection (4) or (5).
[Underlining added]
A privative clause is one that seeks to deprive courts of jurisdiction, and that is clearly the intent of s 474. Section 474(1)(a) does not provide that the merits of a decision made under s 501CA cannot be called into question. If it did, the Applicant could not challenge the decision currently under review which was made under that provision.
As it happens, the decision made by the Respondent on 3 January 2018 was in the Applicant’s favour and, for obvious reasons, it was not challenged. The Applicant contended that it must therefore be taken to be the correct and preferable decision.
In support of its position, the Applicant referred the Tribunal to the decision by Logan J in Pitcher v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Pitcher”)[71] particularly to His Honour’s observation in paragraph 17, set out below with the preceding paragraph which I include for context:
“16. It was put on behalf of Mr Pitcher that the decision made by the Tribunal in this case was made pursuant to the same statutory power as had earlier been exercised on that earlier occasion in Mr Pitcher’s favour in relation to revocation of cancellation. It is true that the decision in each case was made under s 501CA but what was radically different were the underlying circumstances. As Davies J observed in Jebb v Repatriation Commission [1988] FCA 105; (1988) 80 ALR 329, administrative decision-making is a continuum. That description has many applications. One, though, is that whilst the Tribunal sits in place of the primary decision-maker, it does not do so in a vacuum, when it comes to exercise its merits review jurisdiction.
17. Part of the continuum in relation to the Tribunal’s exercise of its jurisdiction was the earlier administrative decision made to revoke the cancellation. The Tribunal’s reasons disclose that the Tribunal member was well aware of that. That decision formed part of the background facts against which the Tribunal came to exercise its review jurisdiction. I can accept, as was put on behalf of Mr Pitcher, that the Tribunal could not contradict an earlier revocation decision but that is not the nature of the jurisdiction here being exercised.
[Underlining added]
[71] [2020] FCA 999.
It is helpful to set out the paragraphs that follow:
18. Where the facts are different, as they are here by effluxion of time, there is no inconsistency between an earlier decision to revoke cancellation and a later decision not to revoke cancellation. I can readily see how there may be an arguable case in relation to findings by an earlier ministerial decision-maker on the same material as is before a later decision-maker. At the very least, there may be an expectation of consistency in administrative decision-making or it may be that it is unreasonable to depart from an earlier finding of fact, but those are questions for another day.
19. The particular burden in relation to the first proposed ground of review is that the facts were different. There had been further offending conduct. That conduct, as well as the later development of family or other ties with Australia, all had to be considered in the context of the Tribunal’s exercising its review jurisdiction. The Tribunal was in no way bound by the earlier decision to revoke cancellation. However one approaches ground 1, my firm view is that it just does not enjoy sufficient prospects of success to warrant the granting of an extension.”
[Underlining added]
I do not take His Honour’s remarks, read as a whole, to support the Applicant’s position. I am not persuaded that, as a matter of law or logic, the Respondent’s earlier revocation decision fetters the Tribunal’s function in relation to the decision presently before the Tribunal which is an entirely separate decision. I note that the previous revocation decision was made in the context of the information that was available to the decision maker at the time, which may not have included the information about the prior offending that is now available to the Tribunal and which did include forecasts about the Applicant’s future conduct that proved to have been incorrect. I respectfully reject the contention that the Tribunal must proceed on the basis that the Applicant’s offending up until 3 January 2018 was not such that it precluded revocation of the mandatory cancellation of the Applicant’s visa. The Tribunal is not concerned with evaluating the Applicant’s offending up to any particular point in time except the present. The Tribunal must apply the Direction taking into account the totality of the Applicant’s offending, and the circumstances of the offending, according to the available evidence at the time of the decision.
As Logan J articulated in Pitcher, the earlier revocation decision is part of the factual continuum and it should be taken into account. The relevance of the earlier revocation decision is, broadly, that the Applicant’s visa was mandatorily cancelled in 2017, the Applicant made representations to the Respondent including that he would not reoffend and that he would face difficulties if returned to Poland, the cancellation was revoked in 2018, the Applicant was on notice that further offending could result in his visa being cancelled, and he re-offended.
PRIMARY CONSIDERATION A – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
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 Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of 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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as 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;
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)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);
(i)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.
The Applicant’s criminal history starts when he was 20 years of age and spans 28 years. It includes property and dishonesty offences, unlawful possession of weapons, offences arising from assaulting or obstructing police, stalking, supply dangerous drug (cannabis) and possession of drugs (methamphetamine) with a commercial purpose. His traffic history spans 25 years and includes:
·driving while a drug is present;
·disqualified driving x 3;
·driving while unlicensed x 11; and
·speeding x 20.
The Applicant committed numerous offences - including property offences, drugs offences and a serious assault - before the break-up of his long-term relationship and the escalation in his drug use. He also committed numerous traffic infringements before the break-up.
The Applicant’s offending includes a serious assault and two stalking offences. In accordance with the Direction violent crimes and sexual crimes are viewed very seriously. Adding a dimension of seriousness to the serious assault is the fact that the victim was a police officer acting in the performance of their duties. The stalking offences required effort and planning and targeted a female victim. The Applicant was ultimately sentenced to 12 months imprisonment for the stalking offences (and failing to appear) after breaching the probation order that was initially imposed for those offences. This is a substantial length of time and reflects the learned Magistrate’s assessment of the seriousness of the offending, as His Honour made apparent in the following remarks:
“The only reason that someone would do such a thing would be to completely annihilate or decimate any character or reputation that a person may have in regard to her position in the community, in the workplace and amongst her family and friends. Now, when one considers the sustained attack on this woman’s reputation and the persistence, it’s serious to warrant a term of imprisonment.” [72]
[72] Exhibit G1, Section 501, G-documents, G17, page 97, lines 25 to 30.
This was not the only sentence of imprisonment imposed on the Applicant. In the same sentencing episode, he was sentenced to nine months imprisonment for unlawful use of a motor vehicle, two months imprisonment for failing to appear in accordance with a bail undertaking, and one month imprisonment each for receiving tainted property and stealing.
The Applicant was subsequently sentenced to imprisonment for two years and nine months for possession of methamphetamine on the basis that there was a commercial purpose. The Applicant re-offended while on parole and after his visa had been cancelled and then returned to him. He was sentenced to periods of imprisonment of six months for unlawful use of a motor vehicle, 10 months for possessing dangerous drugs (methamphetamine) and one month for various other drug related offences. The numerous substantial periods of imprisonment imposed on the Applicant reflect sustained serious offending over the period from 2012 to 2018. There is a frequency and a general trend of increasing seriousness to the Applicant’s offending. The Applicant’s traffic offending is also frequent, although his most recent traffic offence was in 2015.
In terms of the cumulative effect of repeated offending, the Applicant has involved himself in a culture of drug abuse, property crime, and dysfunctional behaviour that led him to illegally and maliciously publish private photographs of Ms M. He has used motor vehicles in an unlawful and irresponsible manner many, many times. He has consistently demonstrated a lack of respect for Australian law and the criminal justice system.
In 2018, after the Applicant’s visa had been cancelled and then returned to him, he received the following written warning:
Please note: the decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
The Applicant understood that his visa could be cancelled again if he re-offended.
I do not consider factors (g) or (i) of paragraph 13.1.1(1) of the Direction apply to the Applicant’s offending or circumstances, so they do not require consideration.
The rest of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction, in their totality, weigh heavily against revocation of the cancellation of the Applicant’s visa.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker must have regard to the two following factors on a cumulative basis:
·paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending.
As to risk of re-offending, there is no independent or expert evidence before the Tribunal in that regard. The Applicant stopped using illicit drugs when he was imprisoned in 2017 and he was of good behaviour while incarcerated. When his visa was cancelled the first time in 2017, he made representations to the Respondent that life would be hard for him in Poland and he said he would not re-offend or take drugs again. He did both very soon after being released from Immigration Detention. He had not undertaken rehabilitation courses during that period in custody.
When the Applicant was asked at the hearing if he thought he would be able to return to the community without reoffending, he said:
“Yes, I have learnt my lesson. I have productively applied myself in all the courses, in all the drug courses I could possibly do, in relationship courses. I attended those classes while I was in detention. I do counselling here on a weekly basis. I believe I have talked and corrected my lapsing in relation of drugs. I believe I have learnt all about drugs and how they have controlled me, and I believe that I became a more knowledgeable person in relation of drugs. And I have seen at first-hand how much trauma and damage it has done to me, to myself, to my family members, to my friends, and I have seen how much damage it causes to other members of the society. You know what I mean, all I can do is provide you with the evidence of all the courses and counselling. And, you know, I believe I have made a difference from last time when I was in detention. I’ve basically put myself in the deep end and have learnt and tried to fix myself in relation to the drugs, and I believe I - you know, I’ve been drug-free, and I believe I can get released into the community without any further offending, and I believe I can get a job, look after my mum, re-establish my connection with my son and become a productive member of society.”[73]
[73] Transcript, page 22, lines 12 to 30.
I am satisfied that the Applicant has abstained from drug use and been of good behaviour during this most recent period of incarceration. While in prison, he completed a drug rehabilitation course. In Immigration Detention, he completed the “Do It” program which is another drug rehabilitation course.[74] Also while in Immigration Detention, the Applicant completed the Circuit Breaker relationship and anger management course.[75] The course facilitator, Ms Stanley, provided a letter for the purpose of these proceedings. In that letter, Mr Stanley indicated that the Applicant applied himself diligently and seemed to genuinely want to change.[76] I also have before me a letter from Ms Burton of Pacific Connect & Support Inc.[77] Ms Burton indicated that the Applicant had learned a lot from the Circuit Breaker course and that he was “willing to seek out ways to further benefit his rehabilitation”. The Applicant was attending a 15 week “Man Up” program that he was due to complete on 30 August 2020. A letter from the course facilitator, Ms Puru, described Man Up in the following terms: “We are a free non-judgemental support network that help (sic) men overcome struggles in their lives such as addiction, anger, domestic violence, depression, relationship breakdowns and much more.”[78] The Applicant has resumed taking the medication he needs for depression and anxiety, and he sees a counsellor regularly in Immigration Detention.[79]
[74] Exhibit A3, Applicant’s Amended Bundle of Documents, A14, pages 39 to 41.
[75] Ibid, A26, pages 86 to 87.
[76] Ibid, A27, pages 89 to 90.
[77] Ibid, A28, pages 91 to 92.
[78] Ibid, A29, page 93.
[79] Exhibit G1, Section 501 G-documents, G41, page 192.
I am satisfied that the Applicant has done what he can, in terms of rehabilitation, while in custody and that he has sincerely applied himself. This is in marked contrast to his “superficial” compliance with supervision in the community[80] prior to his most recent prison sentence. The Applicant’s efforts while incarcerated, and the fact that he has made contact with Lives Lived Well (a not for profit organisation that provides drug and alcohol rehabilitation and support services) with respect to support in the community in the event that his visa is returned to him,[81] are promising. However, his commitment to continuing with his rehabilitation if he is returned to the community is untested. Further, his evidence in the hearing gave cause for concern that he has not yet identified and found a way to manage the various underlying issues that led to his offending – discussed in more detail below.
[80] See sentencing remarks reproduced at paragraph 52.
[81] Exhibit A3, Applicant’s Amended Bundle of Documents, A32, page 97.
The Applicant has committed several types of offences, each potentially harmful in different respects. I will address these and the risk of further similar offending in turn.
The Applicant’s traffic offences include offences of a kind that potentially increase the risk of a collision with other road users or pedestrians. Those include driving at speeds significantly above the speed limit, drug-driving and crossing continuous double lines. The Applicant told the Tribunal that he is a good driver and that he has never hit anybody or been in an accident with another vehicle while driving.[82] It is not known how much of that is down to luck or the skill of other road users. The risk of further offending of this kind causing harm or death to another road user of pedestrian is real and not insignificant.
[82] Transcript, page 57, lines 13 to 14.
The Applicant attributed his traffic offending to being “irresponsible”.[83] However, he was committing traffic offences into his late 30’s and early to mid-40’s. He said he was not proud of his traffic history and he was embarrassed by it.[84] However, initially the Applicant seemed attempt to justify his traffic offending on the basis that he had never harmed anyone and that he is a very good driver.[85] When it was put to the Applicant that his driving history gave the appearance that he did not respect the law and he was asked if he had done any courses or counselling to address his attitude to the law, he said he had completed a drug program that showed him how to change his behaviour. He said, among other things, that he had learnt to:
“… take five and take a good hard look at what you’re about to do, whether it is in the best interests of yourself or anybody else around you, and making sure that members of the family and passengers or any members of the public are safe. And, yes, I’m terribly sorry about my traffic history.”[86]
[83] Transcript, page 54, line 42.
[84] Transcript, page 58, lines 24 to 25.
[85] Transcript, page 57, lines 20 to 30.
[86] Transcript, page 58, lines 7 to 11.
When the Tribunal observed:
“Okay. Well, you still - you haven’t really touched on the fact that it’s - the law is the law, so it’s not really for you to judge whether it safe for you to speed, is it?”[87]
the Applicant replied “No, it’s not”. He then said that one of his unlicensed driving offences arose from him driving to the shop for milk, and that if he were in that situation again, he would walk to the shop instead.[88]
[87] Transcript, page 58, lines 13 to 15.
[88] Transcript, page 59, lines 1 to 11.
It appears that the Applicant is developing insight and learning to make better decisions, however it is concerning that he sought to excuse or justify his extensive traffic offending on the basis that he had not physically harmed anyone. It seems that the Applicant still has some way to go in terms of developing respect for the rules that govern the roads. I cannot be satisfied that there is not a substantial risk that the Applicant will commit further traffic offences of the type that tend to increase the risk of accidents if he is allowed to return to the wider community.
The Applicant committed some property and dishonesty offences, and assaulted a police officer, before the escalation of his drug use. He said some of that offending was drug related and some was not.[89] He put his past offending down to “Irrational decisions, irresponsible decisions. Peer pressure. Influence of others. Friends”.[90] Consistent with my finding in relation to the Applicant’s traffic offences, this offending reflects an underlying disregard for the law. I am not satisfied that this has been fully resolved. Accordingly, there remains a risk of further lawless conduct including conduct that could potentially cause physical injury to police officers in the execution of their duty.
[89] Transcript, page 26, lines 24 to 28.
[90] Transcript, page 59, lines 33 to 35.
The Applicant expressed deep shame and remorse with respect to the stalking offences.[91] There is no evidence that the Applicant engaged in similar behaviour with respect to Janice, Deanne or any other female partner. I accept that the offences were, in that sense, isolated. However, they were deliberate and carried out over a period of time. The Applicant demonstrated limited understanding of the reasons he committed those offences.[92] He described the relationship with Ms M as toxic and intense, and he identified jealousy and feelings of betrayal. He also said he acted in retaliation, as Ms M had previously done similar to him.[93] I do not accept that as there is no record of that reason having been put forward to the police or the court, and the learned sentencing Magistrate found that the Applicant had threatened to publish the explicit photos in the context of coercing Ms M to get back together with him. Had the Applicant demonstrated a good grasp of how his feelings of jealously and betrayal and the dynamics between him and Ms M had resulted in him engaging in such aberrant behaviour, and had he put forward evidence that he had taken steps to address the underlying triggers, I would have some confidence that he would not, again, engage in unlawful conduct towards an intimate partner or former intimate partner. However, he repeatedly said he did not know why he committed those offences. On the other hand, he engaged well in the Circuit Breaker course and he had nearly completed the Man Up course at the time of the hearing. It is reasonable to find that he has benefitted in a general sense from these courses and is now somewhat better equipped to deal with troubles in intimate relationships. I am not satisfied that there is a high risk that he will engage in stalking or similar unlawful conduct, but nor am I satisfied that there is no risk. I find that there is a risk, albeit low. The harm should that risk come to fruition would undoubtedly include psychological, social and possibly economic harm to the victim. Bearing in mind the ease and speed with which material can be uploaded and circulated on the internet, and the impossibility of removing or retrieving all copies of an image that has been circulated electronically, an explicit image that has been disseminated without the victim’s consent can potentially haunt her for the rest of her life. This sort of offending is potentially devastating to the victim.
[91] Transcript, page 38, lines 26 to 30.
[92] Transcript, page 38.
[93] Transcript, page 37 line 30.
It is apparent that drugs were involved in the Applicant’s relationship with Ms M. He partly attributed the escalation in his drug use to that relationship. He said his use increased even further when he was with Deanne, and that after he was released from Immigration Detention he relapsed after ending his relationship with her. He identified “relationship distress” as a “key trigger” and something he needs to be able to cope with without drugs.[94] I would add that it is apparent that being in a relationship with a drug user is also a key trigger for his own abuse of drugs.
[94] Exhibit G1, Section 501 G-documents, G41, page 192.
If the Applicant is returned to the Australian community, he plans to live with his mother, who has multiple medical conditions, and look after her. He said he is open to a relationship but only with a person who does not participate in drugs, and who is caring and loving.[95] That is a sensible approach. I tend to think that such a person would act as a protective factor as long as the relationship remained intact and healthy. The Applicant is working on his ability to deal with relationship distress in appropriate ways and by all accounts he has made a good start. However, it is only a start, and his abstinence from drugs is occurring in a structured environment. I am not satisfied, on the evidence, that there is not a significant risk that the Applicant will abuse drugs if he is returned to the wider Australian community.
[95] Transcript, page 29 line 25.
The Applicant’s drug use is associated with him receiving stolen property, using stolen vehicle, possessing unlawful weapons, and possessing a quantity of drugs with a commercial purpose. I note that the Applicant also committed property and dishonesty offences that were not drug related. Receiving and dealing in stolen property generally provides a benefit to those who steal, thus encouraging the invasion of private homes and businesses and the theft of property, causing financial and sometimes psychological harm to victims.
The Applicant said he has never attacked anybody with a weapon, and there is no evidence that he ever has. However, I found his evidence about the various weapons that were found in his possession to be somewhat disingenuous in that he sought to characterise them as something other than dangerous weapons. For example, he said he had the concealable knife to clean his nails, the bat with nails protruding from it as a wall hanging, and the flail as something he “mucked around with”. The evidence that the taser found in his kitchen had merely been left there by a friend – and obviously not returned or disposed of – suggests an implausibly casual attitude on the Applicant’s part. I do not accept that the Applicant simply happened to have these weapons around him while not really considering them to be weapons. The Applicant knew these items were weapons capable of inflicting serious physical injury or death and he chose to have them at his disposal. Apart from the knife, they were also accessible to others. The very presence of such weapons creates a risk that they could be used by the Applicant or others.
I take into account that the Applicant was not convicted of supplying methamphetamine, however he was found to have been in possession of an amount with a commercial purpose. Facilitating the use of, or circulating, an addictive and harmful drug carries the risk of harm to the health and wellbeing of users and potentially persons, such as children, for whom they are responsible.
Despite the Applicant’s recent efforts at rehabilitation, I consider that there remains at least a low risk that he will engage in offending similar to the kinds of offending that he has previously engaged in, and which have the very real potential to cause the kinds of harm that are detailed above and include serious psychological harm, physical injury or death, and social and financial harm.
Conclusion: Primary Consideration A
Primary Consideration A weighs heavily in favour of non-revocation.
PRIMARY CONSIDERATION B: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The Applicant’s biological child is 18 years old and he makes no claim that the decision could affect the best interests of any other minor child.
Conclusion: Primary Consideration B
This Primary Consideration is not relevant.
PRIMARY CONSIDERATION C – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
In making the assessment for weight to be allocated to Primary Consideration C, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. Moreover, I should proceed on the basis that the Australian community expects that the Australian government can and should cancel a person’s visa if they commit serious crimes. 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. I must have due regard to the Government’s views in this respect and any overarching principles in the Direction.
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of the community. It is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Government’s views in relation to community expectations are to be found in the Direction.[96]
[96] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
This approach was confirmed recently by the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”). In FYBR the Full Court also established that the principles in paragraph 6.3 of the Direction can inform the weight to be attributed to the expectations of the Australian community. The attribution of weight to this consideration is a matter for the relevant decision-maker.
Analysis – Allocation of Weight to this Primary Consideration C
In assessing the weight attributable to Primary Consideration C, it is necessary to have regard to the following matters:
·the Applicant moved to Australia in 1982 when he was a child of 12 years of age. He has spent over three-quarters of his life here (38 years);
·he committed his first offence eight years later when he was 20 years old. His offending spans 28 years;
·he has committed serious crimes in Australia including stalking (being a crime of a sexual nature against a woman) and possession of methamphetamine where the court found a commercial purpose;
·he has engaged in conduct – including resisting police, property offences, fail to appear and numerous traffic infringements – that indicates a lack of respect for the laws and legal apparatus that govern the community that he wishes to re-enter;
·he continued to offend despite intervention from the police and the courts, and despite his visa previously being cancelled;
·in his request to have the first cancellation revoked, he told the Respondent he would not re-offend, yet he did re-offend only two months after having his visa restored to him, thus abusing the chance he had been given;
·there is a significant risk that he will re-offend in a manner that would cause harm to members of the Australian community;
·the Applicant completed high school in Australia. At age 15 he got a part-time job, followed by seasonal work at SRC (a sugar company), followed by a job at Telstra where he worked for many years - ultimately achieving the position of systems and reporting manager. He subsequently worked as a logistics manager in a construction company.[97] His work history shows a commitment to being a contributing member of society, and for many years he has been a contributing member of society in that regard;
·he held a permanent visa before it was cancelled; and
·the cancellation of the Applicant’s visa has caused emotional hardship to his mother who will continue to be affected in that way if he is not allowed to remain in Australia. The Applicant’s removal from Australia will adversely affect his sister and his son (set out in more detail under Other Considerations).
Conclusion: Primary Consideration C
[97] Transcript, pages 9 and 10
The Applicant has repeatedly breached the trust of the Australian community, including the trust that the Respondent placed in him – on behalf of the Australian community – when it restored his visa to him in 2018. Taking all of the above matters into account, including the matters in favour of the Applicant, Primary Consideration C weighs heavily in favour of non-revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulment obligations,[98] and none arise on the evidence. This Other Consideration is not relevant.
[98] Transcript, page 99, lines 14 to 15.
(b) Strength, nature and duration of ties
The Applicant has lived in Australia for 38 years since the age of 12. He commenced offending eight years later at a relatively young age. On account of his youth when he relocated, the time he has been here, and the fact that he did not commence offending soon after arriving in Australia, he is entitled to some measure of weight in his favour under paragraph 14.2(1)(a) of the Direction.
The Applicant spent several years in gainful employment which is a positive contribution in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
With respect to paragraph 14.2(1)(b), the Applicant has some social and familial ties to the community. Numerous friends and relatives have provided letters, statements and statutory declarations in support of the Applicant. That indicates to me that there are many people in the community who care about him and regard him positively.
The Applicant’s ex-partner, Janice, was willing to provide a statutory declaration and give evidence despite the fact that she is no longer his partner. She impressed as a reliable witness. She spoke positively about the Applicant. After the Applicant’s relationship with Janice ended, their son lived with Janice. He is now 18 years old. According to the Applicant, he saw a lot of his son until Janice and his son moved to Tasmania. After that, he a kept in contact and visited occasionally. He sent money to Janice regularly.[99] Janice said that the Applicant “has done as much as he can to be a part of [their son’s] life since we separated and I know he will continue to do so”.[100]
[99] Transcript, page 12, line 38 to page 13, line 6; page 13, line 41 to page 14, line 14.
[100] Exhibit G1, Section 502 G-documents, G25, page 149.
I accept that the Applicant saw a lot of his son when he lived in Brisbane, and that he visited him in Tasmania and communicated with him long distance in the years that followed. The Applicant’s son did not know about the Applicant’s offending until the Applicant’s father’s funeral in 2017. His son found out that he was not there because he was in prison. He was, according to the Applicant, “devasted” and did not speak to the Applicant for two years.[101] They have recently resumed contact. There is a handwritten letter before me from the Applicant’s son, dated 27 May 2020. In this letter, he says he has recently made communication by phone with the Applicant and he speaks of wanting to rekindle “a normal father and son relationship after so many years wasted”.[102] I am satisfied that the Applicant’s son wishes to rebuild his relationship with the Applicant and that the Applicant’s removal to Poland would make that more difficult. However, they would be able to communicate via letters, telephone and electronic means.
[101] Transcript, page 12, lines 10 to 12.
[102] Exhibit G1, Section 502 G-documents, G13, page 66.
The Applicant’s mother and sister also provided statutory declarations and gave evidence at the hearing. I am satisfied that the Applicant has very strong ties to both his mother and sister. The Applicant’s mother has some physical ailments including diabetes, asthma, depression, psoriasis and a knee condition, and she is under the care of a cardiologist for an as-yet undiagnosed condition.[103] The Applicant’s mother said that if the Applicant were removed to Poland she could not go with him as she wishes to stay where her husband is buried (Australia). Her health conditions could also be expected to make travel difficult. I accept that the Applicant’s mother would not move to Poland with the Applicant if he were removed to Poland and that it would be difficult for her to visit.
[103] Exhibit A3, Applicant’s Amended Bundle of Documents, A33, page 99.
The Applicant’s mother became very emotional when giving evidence. I am satisfied that the Applicant’s removal to Poland would cause her great emotional hardship. The Applicant’s sister is currently unemployed and lives with her mother. She said she helps her mother by keeping her company and driving her to the shops, medical appointments and other places. She said if she did not do this her mother would be housebound. She said she did not provide any other type of assistance. The Applicant’s sister would like the Applicant to be returned to the community and to move in with their mother and look after her. She would then be able to move in with her partner. The Applicant’s mother and the Applicant would also like this. I am satisfied that the Applicant’s removal to Poland would negatively impact his sister in terms of the emotional hardship it would cause. I accept that the Applicant’s sister has chosen thus far to live with her mother so she can provide assistance to her, but on the basis of her own evidence, I do not accept that the Applicant’s mother needs his sister to live with her in order to provide that care. I do not accept that the Applicant’s sister’s own personal life will have to remain on hold unless the Applicant is able to look after their mother.
Overall, I am satisfied that the strength, duration and nature of ties to the Australian community warrants the allocation of a moderate level of weight in favour of revocation.
(c) Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. This consideration is not relevant to the determination of this application.
(d) Impact on victims
This Other Consideration (d) requires a decision-maker to assess the impact of a non-revocation decision (i.e. where the Applicant does not get his visa restored to him) upon, inter alia, the Applicant’s victim(s). There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. This Other Consideration (d), is therefore neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is a 50 year old man who is able bodied and does not claim to have any medical conditions. He takes prescription medication for anxiety and depression. He had a good employment history over many years until he succumbed to a drug addiction.
I am grateful to the Respondent for providing reliable evidence about the availability of income support and healthcare services in Poland.[104] According to that evidence, Poland has an income support system that is available to all citizens. Eligibility does not depend on having previously been employed in Poland. The evidence about the Healthcare system is less clear. Healthcare is free to those who are eligible. However, it appears that eligibility may depend on a person having insurance through employment or a family member. I am not satisfied that the Applicant would have access to free health care in Poland unless he was employed or self-employed.
[104] Exhibit R2, Respondent’s Tender Bundle, TB6 to TB7, pages 190 to 192.
The Applicant lived in Poland until the age of 12. Back then Poland was behind the “Iron Curtain”.[105] Poland is now more western. Accordingly, the Poland the Applicant remembers is not the Poland that he would be returning to. However, I am not satisfied that life in Poland would be vastly different to life in Australia or that there would be significant cultural barriers to the Applicant’s re-settlement there.
[105] Transcript, page 9, line 17.
The Applicant said he does not speak Polish very well, and that he speaks a combination of Polish and English with his mother. He scored his spoken Polish at three out of 10 and his reading and writing at one out of 10.[106] I accept this given the length of time he has been in Australia. However, he completed primary school in Poland, and he used to be able to speak Polish fluently and read and write in Polish. If he were to return to Poland, he would not have to learn a new language, but relearn a language he was once proficient in. I am satisfied that he could pick up the language at least to a working level.
[106] Transcript, page 33, lines 26 to 30.
Given that, and the Applicant’s employment history, I am satisfied that he has employment prospects in Poland. It follows that he may be able to become eligible for free healthcare on this basis.
The Applicant claimed that he does not have any relatives or friends in Poland. His mother corroborated that evidence and I accept it. I am satisfied that the Applicant will initially lack social support in Poland, and at his age, it may be more difficult to build up a social network than it would be for someone younger.
It is likely that the Applicant will face some difficulty in re-establishing himself in Poland because he does not have an existing social or support network there, he will have to secure accommodation, and he will have to obtain a job or arrange income support. He will likely have to pay for healthcare, at least initially. The language barrier will make things more difficult. However, these challenges are likely to be short-term only and would not prevent him from successfully re-settling in Poland.
Accordingly, I am of the view that this Other Consideration (e) weighs in favour of revocation of the reviewable decision to a limited extent.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)strength nature and duration of ties: weighs moderately in favour of revocation;
(c)impact on Australian business interests: not relevant;
(d)impact on victims: neutral; and
(e)extent of impediments if removed: weighs to a limited extent in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration B is neutral;
·Primary Consideration C weighs heavily in favour of non-revocation; and
·To the extent that Other Considerations (b) and (e) weigh in favour of revoking the mandatory visa cancellation decision, they cannot, even when combined, outweigh Primary Considerations A and C.
Consequently, the Tribunal cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 141 (one hundred and forty-one) paragraphs are a true copy of the reasons for the decision herein of Member Rebecca Bellamy
..........................[SGD].............................................
Associate
Dated: 10 September 2020
Date(s) of hearing:
18 and 21 August 2020
Solicitor for the Applicant:
Mr Joel McComber
Sentry LawSolicitors for the Respondent: Mr Jake Kyranis
Sparke Helmore LawyersANNEXURE A – EXHIBIT LIST
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents (G1 to G51 pages 1-282)
R
-
30 JUN 2020
R1
Respondent’s Statement of Facts, Issues and Contentions (pages 1-19)
R
-
29 JUL 2020
R2
Respondent’s Tender Bundle (TB1 to TB7 pages 1-201)
R
-
29 JUL 2020
A1
Applicant’s Statement of Facts, Issues and Contentions (pages 1 -12)
A
-
21 JUL 2020
A3
Applicant’s Amended Bundle of Documents (A1 to A41 pages 1 – 121)
A
-
12 AUG 2020
0
14
0