Farrugia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 1345
•3 June 2024
Farrugia and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 1345 (3 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1555
Re:Kevin Andrew Farrugia
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Professor Ann O'Connell, Senior Member
Date:3 June 2024
Place:Melbourne
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision of the delegate of the Respondent dated 12 March 2024 and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s Transitional (Permanent) (Class BF) visa under section 501CA(4) of the MigrationAct 1958 (Cth).
...............................[SGD].........................................
Professor Ann O'Connell, Senior Member
Catchwords
MIGRATION – Mandatory visa cancellation – citizen of Malta – Class BF Transitional (Permanent) visa – substantial criminal record – failure to pass character test – whether another reason to revoke visa cancellation – Ministerial Direction No. 99 applied – decision set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Corrections Act 1986 (Vic)
Corrections Regulations 2019 (Vic)
Migration Act 1958 (Cth)
Cases
BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 585
CKL21 v Minister for Home Affairs (2022) 293 FCR 634
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dzik and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
FBLQ v Minister for Immigration, Citizenship and Multicultural Affairs[2024] FCA 397
FYBR v Minister for Home Affairs(2019) 272 FCR 454
HZCP v Minister for Immigration and Border Protection[2018] FCA 1803
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs[2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 473
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6
Minister for Immigration, Citizenship and Migrant Services v Thornton (2023) 276 CLR 136
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599
Murphy v Minister for Home Affairs [2018] FCA 1924
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs (2022) 275 CLR 582
Shi v Migration Agents Registration Authority [2008] HCA 31, (2008) 235 CLR 286
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under s 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (commenced 3 March 2023)
REASONS FOR DECISION
Professor Ann O'Connell, Senior Member
3 June 2024
INTRODUCTION
The Applicant has asked the Tribunal to review the Respondent’s decision, on 12 March 2024, not to revoke the mandatory cancellation of his Class BF Transitional (Permanent) Visa.
The hearing was held at the Tribunal’s Melbourne Registry on 21, 22 and 24 May 2024. The Applicant was represented by Mr Mathew Kenneally of Counsel. The Respondent was represented by Ms Olivia Cameron of Counsel.
For the following reasons the Tribunal sets aside the reviewable decision and substitutes a decision that there is another reason for revocation.
LATE TENDER OF DOCUMENTS
On the first hearing day, the Applicant informed the Tribunal, and the Respondent, of a report by a forensic psychologist that had been received by the Applicant’s representatives late on the previous day. The Applicant sought to have the report admitted into evidence and for the report’s author, Dr Michael Davis, to be called to give evidence relating to the report and be available to be cross-examined on it on the final day of the hearing. There was concern about the 2-day rule in section 500(6H) Migration Act 1958 (Cth) (‘the Migration Act’). The Tribunal was referred to the High Court decision in Uelese and Minister for Immigration and Protection,[1] which overturned the previously held view in Goldie and Minister for Immigration and Multicultural Affairs,[2] that the 2-day rule meant any evidence must be set out in a written statement and given to the Minister at least 2 business days before the commencement of the first day of the hearing. In Uelese, the High Court rejected the view that section 500(6H) imposed a rigid limit upon the otherwise flexible power of the Tribunal to ensure the proceedings before it are conducted fairly to all parties.[3] The Court also noted that where new evidence arises, including after the hearing has commenced, the Tribunal could exercise its power of adjournment under sections 33 and 40 of the Administrative Appeals Tribunal Act 1975 (Cth) (‘the AAT Act’), to address any disadvantage.[4] Nettle J, in a separate judgment, was explicit in noting that the 2-day rule did not necessarily mean two days before the first day of the hearing.[5] As it happened, there was a scheduled adjournment on 23 May, which meant that the Respondent had two full business days to consider the report. Having considered the report, the Tribunal formed the view that it was probative and should be admitted into evidence.
[1] [2015] HCA 15.
[2] [2001] FCA 1318.
[3] [2015] HCA 15, [73].
[4] Ibid [74].
[5] Ibid [112].
The Applicant asked the Tribunal to disregard reports – 6 in total – that were prepared by a forensic psychologist in the period 11 August 2018 to 25 July 2023, that were included in the documents lodged by the Respondent (‘the G-Documents’).[6] The reason given was that the reports referred to a period of abstinence from drug use between 2015 and 2018 which the Applicant accepts was not correct. In any event, the more recent report by Dr Davis was relied on as being the most recent assessment. The Respondent did not object to the reports being disregarded.
[6] G-Documents at pp 458-522.
BACKGROUND
The Applicant is 51 years old, born in December 1972 in Malta. He came to Australia at the age of 17 months in May 1974. His parents and at least two of his three siblings are Australian citizens. He has a 15-year-old daughter with his long-term partner (both of whom are Australian citizens).
The Applicant spent his formative years in Australia. He attended school in Australia and completed an apprenticeship here. Apart from a 3-month family holiday to Malta in his teenage years, he has spent his whole life in Australia.
The Applicant has a long criminal history. Considered from the date of his first offence as an adult in November 1993,[7] he has been sentenced in respect of more than 50 offences and has been convicted on more than 40 charges. His most serious offences include kidnapping and reckless conduct endangering life (2003), trafficking a commercial quantity of pseudoephedrine (2008), assault by kicking (2009), and being a prohibited person in possession of a firearm (2000 – 2 offences, 2004, 2008, 2009 – 2 offences and 2023).[8]
[7] Minister for Immigration, Citizenship and Migrant Services v Thornton (2023) 276 CLR 136; Lesianawai vMinister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6.
[8] G-Documents G6.
The Applicant has spent a considerable period of his adult life in prison. Prior to his current sentence he had spent more than 12 years in prison.
10. His most recent offence was for being a prohibited person in possession of a firearm relating to conduct in 2018. He was released on bail in 2019 and spent the period 2019 to 2023 in the community. He was sentenced on 25 May 2023 to 39 months imprisonment.[9]
[9] Ibid.
11. On 4 July 2023, while the Applicant was serving a full-time sentence of imprisonment, his visa was mandatorily cancelled.
12. The Applicant made representations to have the cancellation of his visa revoked but on 12 March 2024 a delegate of the Minister declined to do so (‘the non-revocation decision’).
13. On 18 March 2024, the Applicant asked the Tribunal to review the non-revocation decision.
Pursuant to section 500(6L) of the Migration Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the non-revocation decision. Failure to do so results in the reviewable decision being affirmed by operation of law. The 84th day in this matter falls on 4 June 2024.
LEGISLATIVE FRAMEWORK
15. The Tribunal’s jurisdiction to review a non-revocation decision by a Ministerial delegate is enlivened by section 500(1)(ba) of the Migration Act read in conjunction with s 25(1)(a) of the AAT Act. Section 25(1)(a) of the AAT Act provides that an enactment may provide for applications for review of decisions made under the enactment. Section 500(1)(ba) of the Migration Act provides that applications may be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under section 501.
16. Section 501(3A) of the Migration Act obliges the Minister to cancel a visa granted to a non-citizen if the Minister is satisfied the person does not pass the ‘character test’ (as set out in subsections (6) and (7)), and the person is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
17. The character test is defined in subsections 501(6) to 501(12) of the Migration Act and refers to a range of matters a decision-maker may have regard to in deciding whether to refuse, cancel, or revoke a mandatory cancellation decision. Section 501(6) of the Act provides that:
(6) For the purposes of this section, a person does not pass the character test if:
(a) the person has a substantial criminal record (as defined by subsection (7)) …
Section 501(7) of the Act provides that:
(7) For the purposes of the character test, a person has a substantial criminal record if:
…
(c) the person has been sentenced to a term of imprisonment of 12 months or more; or
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or
...
18.Under section 501CA(3) of the Migration Act the Minister must provide notice of the cancellation decision as soon as practicable, and invite the affected person to respond. Section 501CA(4) of the Migration Act confers a power on decision-makers to revoke a visa cancellation decision if satisfied the person passes the character test, or there is ‘another reason’ to revoke the original decision.
19.Subsections 33(1)(a)–(b) of the AAT Act provide that the procedure of the Tribunal is within the discretion of the Tribunal and ‘shall be conducted with as little formality and technicality, and with as much expedition, as the requirements of [the AAT Act] and every other relevant enactment and a proper consideration of the matters before the Tribunal permit’. Subsection 33(1)(c) of the AAT Act states that ‘the Tribunal is not bound by the rules of evidence but may inform itself on any matter in such manner as it thinks appropriate’.
ISSUE TO BE DETERMINED
20.The Applicant does not pass the character test by reason of his criminal convictions whereby he has been sentenced to terms of imprisonment of more than 12 months. Accordingly, section 501CA(4)(b)(i) of the Migration Act is not a valid basis for revocation. It remains to be determined under section 501CA(4)(b)(ii) of the Act whether the discretion to revoke the cancellation decision is enlivened by the Tribunal’s satisfaction that there is ‘another reason’ to do so.
21.In Plaintiff M1/2021 v Minister for Home Affairs,[10] the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is ‘another reason’ why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is ‘another reason’ for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is ‘another reason’ for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations ... the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged ‘to make actual findings of fact as an adjudication of all material claims’ made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[10] [2022] HCA 17.
DIRECTION 99
22. In making its decision, the Tribunal must comply with a ministerial direction made under section 499(1) of the Migration Act, known as ‘Ministerial Direction 99’ (‘the Direction’). The Tribunal is said to ‘stand in the shoes of the original decision-maker’ and must make ‘the correct or preferable decision’[11] based on the material currently before it.[12]
[11] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68; Shi v Migration Agents Registration Authority [2008] HCA 31, (2008) 235 CLR 286, 314 [96]-[98] (Hayne and Heydon JJ) and 324 [134] (Kiefel J).
[12] Dzik and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10] per Logan J.
23. The following principles at clause 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.5(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
24. Clause 6 of the Direction provides that, informed by the principles in clause 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision.
25. Clause 8 of the Direction identifies the following five ‘primary considerations’:
(1)Protection of the Australian community from criminal or other serious conduct;
(2)Whether the conduct engaged in constituted family violence;
(3)The strength, nature, and duration of ties to Australia;
(4)The best interests of minor children in Australia;
(5)Expectations of the Australian community.
26. Clause 9(1) of the Direction sets out a non-exhaustive list of ‘other considerations’:
(1)Legal consequences of the decision;
(2)Extent of impediments if removed;
(3)Impact on victims; and
(4)Impact on Australian business interests.
27. Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
28. Clause 7(2) states that ‘[p]rimary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’consideration the equivalent of or greater weight than a primary consideration.[13]
[13] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 [23].
29. Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[14]
EVIDENCE BEFORE THE TRIBUNAL
[14] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 473 [57].
Documentary evidence
30. The following documents were taken into evidence during the hearing:
a. documents lodged by the Respondent (referred to as G-Documents) numbering 779 pages (Exhibit R1);
b. a Statement of Facts, Issues and Contentions by the Applicant dated 29 April 2024 numbering 9 pages (Exhibit A1);
c. a Statement of Facts, Issues and Contentions from the Respondent dated 15 May 2024 numbering 11 pages (Exhibit R2);
d. the Applicant’s Reply dated 16 May 2024 numbering 3 pages (Exhibit A5);
e. a bundle of documents from the Applicant dated 29 April 2024 numbering 39 pages (Exhibit A2). This bundle comprised of witness statements from the Applicant’s parents, older brother, sister, 2 nieces, mother of his partner and 3 friends. It also included an offer of employment for the Applicant if he is allowed to remain in Australia;
f. a second bundle of documents from the Applicant dated 16 May 2024 numbering 69 pages (Exhibit A3). This bundle comprised further witness statements from the Applicant and his partner, a letter from his daughter, a letter from CatholicCare Victoria, updated witness statements for the 3 friends, a school plan for the Applicant’s daughter and some family photos;
g. a third bundle of documents from the Applicant dated 16 May 2024 numbering 49 pages (Exhibit A4). This bundle comprised extracts from the Corrections Act 1986 (Vic) and Corrections Regulations 2019 (Vic) and information from the Parole Board;
h. a bundle of documents from the Respondent dated 15 May 2024 numbering 139 pages (Exhibit R3). This bundle comprised, inter alia, details of prison incidents;
i. a document from the Respondent dated 16 May numbering 2 pages (Exhibit R4). This was a separate prison incident report;
j. a report from Dr Michael Davis, forensic psychologist, dated 20 May 2024 and briefing letter, numbering 112 pages (Exhibit A6); and
k. a one page signed statutory declaration of the Applicant’s father dated 29 May 2024 (Exhibit A7).
31. As noted previously, the Applicant noted that he no longer relied on reports, included in the G-Documents,[15] from a forensic psychologist who had provided reports to various courts etc in the period 2018 to 2023.
[15] G-Documents at pp 458-522.
Witnesses
32. The Applicant gave oral testimony and called a number of witnesses, namely his:
i.partner;
ii.mother;
iii.older brother;
iv.sister; and
v.daughter.
33. Two friends of the Applicant also gave oral evidence. One friend gave evidence that she would offer the Applicant full-time employment if he was released from custody.
34. There were also written witness statements from the Applicant’s father and 2 nieces (daughters of his older brother).
35. There was also an expert report tendered into evidence from Dr Michael Davis and he was called to give evidence about that report.
Applicant’s evidence
36. The Applicant’s oral testimony is summarised as follows:
(i)The Applicant adopted his written statements dated 14 February 2023 and a further statement, unsigned and undated, but lodged on 16 May 2024.
(ii)The Applicant did not deny his criminal record, or his drug use which started at a very young age – about 11 or 12. However, he stated that he had not used drugs since 2019 (when he was on bail prior to his most recent conviction). He stated that he had continued to be abstinent while in prison, despite the ready availability of drugs.
(iii)He spoke about taking part in a program called the High Intensity Violence Offending Program which he said had helped him deal with emotions such as anger and feeling under threat. He also spoke about attending a drug and alcohol course in Port Phillip prison.
(iv)He also spoke about spending much of his time in prison in isolation – in one case, because he would not remove a crucifix he was wearing. He said that this meant he was not able to engage in rehabilitation courses and also made it harder to re-adjust to life in the community when he has been released.
(v)He spoke about being sexually abused as a young boy by a friend of the family. He also said that he understood that the perpetrator now lived in Malta and that this impacted on him not wanting to return to Malta.
(vi)He spoke about witnessing a car accident about 16 or 17 years ago and trying to help two young children who later died of their injuries. He said that this had impacted his ability to sleep and that he still had flashbacks.
(vii)He spoke about his relationship with his daughter, and in particular his role in her life while he was on parole in the period 2019-2023. During this period, he was involved in taking her to and from school and in assisting her while she dealt with some health problems. He said it would obviously be difficult to be separated from her if he was deported.
(viii)He spoke about his relationship with his partner who he met in 2007. He described their relationship as close. He said that she visits him regularly and that they speak on the phone almost daily.
(ix)He spoke about his relationship with his parents, his older brother (who has 3 daughters, including one who is autistic), his younger sister, who he lived with from May 2019 to December 2020 (with his partner and daughter) and who has a daughter born in January 2023. He said that he is very close to all of them and does not believe that he will see them again if he is deported.
(x)He spoke about his younger brother who he says struggles with drug use and criminal behaviours. The Applicant said that he had effectively cut ties with this brother but would be there to support him if he wants to rehabilitate.
(xi)The Applicant spoke about only having visited Malta once as a teenager and said that although he has uncles and aunts (and cousins) living there, he does not know them and believed they could not offer him any support. He said that he knew a little Maltese.
(xii)The Applicant was asked about his criminal record, including the 2003 conviction for kidnapping and recklessly endangering life, and his 7 convictions relating to possession of a firearm. The Applicant did not make excuses but did say he had made bad choice at a time when he was under the influence of drugs.
(xiii)The Applicant was also asked about the 2 warnings he had received in 2005 and 2011 from immigration authorities. Again, he said that he had been under the influence of drugs and had not taken the warnings as seriously as he should have.
Other evidence
37. The Applicant’s partner gave evidence and adopted a letter dated 16 April 2023 to the presiding judge in the Applicant’s criminal trial in 2023, her statement dated 8 February 2024, and a statement that is unsigned and undated but lodged with the Tribunal on 16 May 2024. She gave evidence that the Applicant was a supportive partner and father and had assisted their daughter in the period 2019-2023 while he was on bail in dealing with some health issues. She stated that she was the primary caregiver for their daughter with help from his family. She stated that she was qualified in accounting and held a team leader position, and that she had worked full-time since their daughter was 2.5 years old. She stated that she had suffered a brain haemorrhage in 2020. She also stated that the Applicant had no real ties to Malta and would struggle to find work and support himself. She stated that the Applicant has a close and loving relationship with his family.
38. The Applicant’s daughter, aged 15, gave oral evidence. She adopted her letters dated 8 February 2024 and 15 May 2024 (unsigned). She gave evidence that her father had been a support to her in the period 2019-2023 as she struggled with some health issues. She also spoke about the strain on her mother of coping alone. She said that she loves her father and hopes that he can come home to be with her and her mother.
39. The Applicant’s mother gave oral evidence. She adopted her statement dated 26 April 2024 which she noted had been dictated to her daughter. She said that she was aware of her son’s criminal record but believed that he had rehabilitated. She stated that her husband worried about the Applicant’s situation, and she worried about her husband’s mental health. She said she and her husband had put up a surety against the family home to secure her son’s release on bail in 2019. She said that she had spoken a mix of Maltese and English when the children were growing up. She and her husband had been back to Malta about 4 times, and each had living siblings and nieces and nephews, but she was only close to one sister. She stated that none of the relatives would be able to support the Applicant if he was deported there. She referred to her youngest son who had been living at home but said that he comes and goes.
40. The Applicant’s older brother gave oral evidence. He adopted his statements dated 8 February 2024 and 26 April 2024. He stated that he had a close relationship with the Applicant and the Applicant’s partner who had acted like a mother to his 3 daughters (now aged 20, 24 and 26) after he separated from their mother in 2006. He stated that his 3 daughters have a close relationship with the Applicant and his family. He also stated that he has a close and loving relationship with the Applicant’s daughter. He has been the full-time carer since 2010 for his (now) 24-year-old daughter, who he described as having ‘low functioning autism’. He said that he received NDIS funding but that, particularly in the period 2019-2023, the Applicant had helped him look after his daughter and had provided respite care. He said that he and his daughter would not be able to visit Malta if the Applicant was deported.
41. The Applicant’s sister gave oral evidence. She adopted her written statements dated 8 February 2024 and 26 April 2024. She gave evidence that she had a close relationship to the Applicant and that he (and his partner and daughter) had initially lived with her while he was on bail in 2019. She stated that during this period she observed that the Applicant tried really hard to build relationships with his daughter and extended family and did not associate with prior criminal or drug contacts. She stated that she had visited Malta 4 or 5 times and, unlike her siblings, did speak some Maltese. She said that her experience of the extended family suggests that they would not be able to assist the Applicant if he was deported. She stated that she was a dual resident and although she had stayed with family a couple of times, she did not believe they would be in a position to support the Applicant.
42. A friend of the Applicant gave oral evidence by telephone. She adopted her written statement dated 29 April 2024. She gave evidence that she met the Applicant approximately 5 years ago, while he was on bail, and that he had given her assistance with household tasks since her husband died in 2020. She also stated that he had a good relationship with her grandson who lives with her and is now about 4 years old.
43. Another friend of the Applicant gave oral evidence by telephone. She adopted her letter which she noted should have been dated 26 April 2024.[16] She gave evidence that if the Applicant is allowed to remain in Australia, she would offer him full-time employment in her fruit wholesaling business. She noted that there is a variety of work, namely, forklift driving, fruit packing and other general labour duties, and that she would be willing to provide training to enable the Applicant to work and acquire skills.
[16] Exhibit A2, p 30.
Expert evidence
44. The only expert evidence was a report from Dr Michael Davis, forensic psychologist, dated 20 May 2024.[17] The report was based on a 379-minute interview and psychological testing session with the Applicant on 24 April 2024. Key aspects of the report are as follows:
[17] Exhibit A6.
i.Dr Davis carried out 3 types of psychological tests: a Paulhus Deception Scale test to ascertain whether the Applicant was either deliberately trying to manage impressions, or was engaging in distortion in the form of self-deception (‘the PDS test’); a Personality Assessment Inventory: Short Form to assess the Applicant’s current mental state and personality features (‘the PAI-SF test’); and a Trauma Symptom Inventory – 2 test to assess the extent and degree of the Applicant’s post-traumatic stress (‘the TSI-2 test’);
ii.In relation to the PDS test Dr Davis concluded that although some impression management was not unexpected, it was within the range that would suggest other self-report testing was likely to be valid;[18]
[18] Ibid, [121].
iii.In relation to the PAI-SF test Dr Davis concluded that the results were not indicative of a major mental illness or personality disorder, they did suggest considerable difficulties with substance misuse. There were also indications of generally supportive friends, a friendly submissive interpersonal style and recognition of the need to make some changes in his life;[19]
[19] Ibid, [130].
iv.In relation to the TSI-2 test Dr Davis concluded that while the Applicant may still have some post-traumatic symptoms, these were not currently at problematic levels;[20]
v.Dr Davis also administered a number of tests aimed at assessing the risk for future offending and violence. Those tests were: the Hare Psychopathy Checklist – Revised test to identify traits of psychopathy – a form of personality disorder characterised by various difficulties, including anti-social behaviour and criminality (‘the PCL-R Test’); the Level of Service/Risk, Need, Responsivity test an offender classification that covers a number of predictors of general criminal conduct (‘the LS/RNR test’); and the HCR-20 test for assessment of risk for violence (‘the HCR-20 test’);
vi.In relation to the PCL-R test Dr Davis concluded that the Applicant ‘has had some problematic personality features throughout his adult life, he has an average number of overtly psychopathic features, but a preponderance of antisocial behavioural features that reflect a lengthy history of lifestyle impulsivity and versatile criminal behaviour’.[21] He did note, however, that the Applicant appeared to have experienced some degree of personality maturation in recent years.[22] He also noted that this test needed to be supplemented by a consideration of other relevant risk factors;[23]
vii.In relation to the LS/RNR test Dr Davis concluded that there were a number of risk factors for general criminal recidivism that were problematic, for instance criminal history and education/employment, but also a number of factors demonstrating strength, namely family/marital and companions – reflecting the Applicant’s close family bond and positive friendships, and alcohol/drug problems, presumably reflecting the fact that he has been drug free since 2019. He also notes that it is very positive that the Applicant spent four years in the community offence-free while subject to bail;[24]
viii.In relation to the HCR-20 test, which assesses risk factors related to general violence by reference to three domains: historical (past); clinical (present) and risk management (future), Dr Davis concluded that the Applicant has considerably more static historical risk factors than current concerns, reflecting ‘a more settled presentation in prison and that when recently in the community he removed himself from his previously antisocial milieu and lifetime of substance abuse’. He described his substance use disorder as currently being ‘in sustained remission’.[25]
ix.In conclusion, Dr Davis gave what he described as an ‘admittedly cautious opinion’ that the Applicant poses ‘a moderate risk for violence… at least until he can demonstrate further behavioural stability in the wider community post-release’.[26]
PRIMARY CONSIDERATIONS
[20] Ibid, [135].
[21] Ibid, [140].
[22] Ibid.
[23] Ibid, [141].
[24] Ibid, [144].
[25] Ibid, [150].
[26] Ibid.
Protection of the Australian community from criminal or other serious conduct
45. The first primary consideration relates to protection of the Australian community. Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also 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 conduct
46. Under clause 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) 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;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, 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, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g) whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h) where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Direction indicates that violent crimes are viewed very seriously. The Tribunal must also consider the nature and seriousness of the Applicant’s ‘conduct to date’. This involves a consideration of the Applicant’s criminal record (including crimes of violence and repeat offending), other conduct (including while incarcerated) and re-offending after being formally warned about the consequences in terms of the Applicant’s migration status.
The Applicant has an extensive criminal record commencing in 1993 when the Applicant received his first conviction as an adult[27] for the offence ‘use of cannabis’. His convictions include the following:[28]
i.Conviction for kidnapping and reckless conduct endangering life in 2003;
ii.A conviction for assault by kicking in 2009;
iii.Multiple convictions for being a prohibited person in possession of firearm in 2000 (2 offences), 2004, 2008, 2009 (2 offences) and 2023;
iv.Convictions for handling/receiving/retention or disposing of stolen goods in 1999 and 2000; and
v.Multiple drug related offences from 1993 to 2022, including trafficking a commercial quantity of pseudoephedrine in 2008.
[27] Minister for Immigration, Citizenship and Migrant Services v Thornton (2023) 276 CLR 136; Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 6.
[28] G-Documents G6.
49. Two of these offences involve violence. In April 2003 the Applicant was convicted of kidnapping and reckless conduct endangering life for which he received a total sentence of 4 years and 9 months imprisonment. The sentencing judge, Judge Sexton, described the facts of the case as ‘most serious’, with aggravating aspects including the degree of planning and the use of firearms to maintain and ‘subdue' the victim.[29] The Applicant was described as having ‘the major role’ in relation to the offences which was said to involve a drug debt. Two co-accused received slightly lower sentences. In 2009, the Applicant was convicted and sentenced to 6 months imprisonment for an assault by kicking (to be served concurrently). This incident occurred while the Applicant was incarcerated and is discussed below.
[29] G-Documents G11.
50. The Tribunal must also have regard to the frequency of offending, whether there is any trend of increasing seriousness, and the cumulative effect of repeated offending: clause 8.1.1(d)-(e). The Applicant has a long criminal history, but it must be acknowledged that until his most recent offence relating to events in 2018, there is no charge or conviction since 2009. The most recent offence arose when police conducted a search of the home of the Applicant’s brother and discovered a firearm and ammunition in the boot of a car on the premises. DNA evidence pointed to the Applicant handling the firearm. The Applicant denies that the firearm was his but accepts the conviction recorded. The fact that there are 7 convictions for being a prohibited person in possession of a firearm is objectively serious, but there is no evidence of escalating seriousness.
51. The seriousness of the Applicant’s offending is reflected in the punishments imposed. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and are viewed as a reflection of the objective seriousness of the offences involved.[30]
[30] Pavey and Minister for Home Affairs [2019] AATA 4198 [44].
52. In addition to the Applicant’s criminal history, the Tribunal can consider ‘other conduct to date’.[31] This includes conduct in custodial settings. One of the Applicant’s convictions relates to an assault on a prison officer in 2008 that included kicking him in the head. The Applicant stated that this occurred after his partner, infant daughter and mother were subject to strip searches during a non-contact visit to the prison. He was convicted and sentenced to 6 months imprisonment to be served concurrently with his existing sentence. The Tribunal notes that crimes committed against ‘government representatives or officials due to the position they hold, or in the performance of their duties’ are regarded as very serious in subclause 8.1.1(b)(ii) of the Direction. The Respondent noted that there have been a number of other incidents, including during the current period of imprisonment. One incident involved an assault of another prisoner, although the Applicant notes that no charges were laid. There was also an incident where a home-made weapon was found in the Applicant’s cell although he claimed that he had only moved to the cell 2 days prior and that it was not his. He also notes that the other incidents have only resulted in reprimands or no consequences and are therefore of no real significance.
[31] The Direction at clause 8.1.1(1).
53. In this regard, the Applicant contended that prison records are inherently unreliable and noted that there were discrepancies in the reports of several prison incidents. In HZCP v Minister for Immigration and Border Protection,[32] Colvin J noted that an administrative decision-maker does not undertake a fact-finding task of the same character as is undertaken by a court; in the Tribunal, evidence is simply the material before the Tribunal, however received. The Tribunal may act on any probative material, and it need not reason from that material in the way a court would reason.[33] In this regard, it appears that there is some doubt about a recent incident where the Applicant was said to have a home-made weapon in his cell although he claims to have only moved into the cell two days before it was found. The fact that the consequence of this incident was a reprimand also tends to suggest it was not viewed seriously. There were also two incidents where the Applicant did not comply with directions from prison officers to return to his cell, but this does not appear to have resulted in any disciplinary action.
[32] [2019] FCAFC 202; 273 FCR 121 at [184].
[33] See BKX23 v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 585 [29].
54. The Tribunal must also take into account that the Applicant has re-offended since being formally warned about the consequences in terms of the Applicant’s migration status. In February 2005, he was sent a letter from the Minister’s department notifying him of the Minister’s decision not to cancel his visa under section 501, but noting that if his past criminal conduct continued, he would not be permitted to continue living in Australia. Since that warning the Applicant did continue to re-offend and has been convicted of a further 13 offences. In February 2011, the Applicant was issued with a second warning under section 501 after committing firearm offences while on bail for drug trafficking offences. The most recent conviction in 2023 for being a prohibited person in possession of a firearm is the only conviction since that second warning.
55. The Applicant’s convictions, his conduct in prison and his re-offending after receiving formal warnings about his visa status are collectively very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
56. Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
57. Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, cumulatively:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
58. This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[34]The notion of risk and its nexus to future possibility were explored by Justice Mortimer, as her Honour then was, in Murphy.[35] She stated:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be ‘tolerated’.
I do not accept the [comments in the decision] involved the drawing of an inference which was not open to the Tribunal. Much of the task of the Tribunal involved speculation about the future, because it was required to assess what the applicant’s behaviour might be if he were permitted to remain in Australia, in order to decide whether he posed a risk to the Australian community in the future, what kind of risk that might be, and whether it was a risk that the Australian community should be expected to ‘tolerate’.[36]
[34] CKL21 v Minister for Home Affairs (2022) 293 FCR 634 at [74], citing the High Court’s decision in Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 599 at 574-575.
[35] Murphy v Minister for Home Affairs [2018] FCA 1924.
[36] Ibid, [37]-[38].
59. The risk of future harm should the Applicant repeat his offending is potentially very serious. Apart from the kidnapping in 2009 and the assault on the prison officer, the offences committed by the Applicant have not involved violence per se. However, possession of firearms clearly has the potential for violence, and drug trafficking imposes significant costs on the Australian community.
60. In terms of recidivism risk, the report of Dr Davis assesses the risk of re-offending as ‘moderate’. Although he spoke positively about the protective factors present including a strong and loving relationship with his partner and daughter and the love and support of his family. Dr Davis also spoke of the maturation of the Applicant in recent years and the cessation of illicit substance use. He also said that the four years spent in the community offence-free was significant.
61. Another protective factor is that the Applicant has an offer of employment should he be allowed to stay in Australia.
62. Dr Davis also noted that the Applicant had suffered significant trauma in his life. This included his allegation of childhood sexual abuse which he did not disclose to anyone until he was 30, losing a young man he regarded as a stepson who died in a tragic accident and witnessing a prison assault on an associate and holding his head in his lap until the ambulance came. Although none of these factors excuse his serious offending, Dr Davis suggested these features resulted in ‘antisocial behavioural features’.[37] However, he also noted a certain maturation in recent years[38] suggesting a greater ability to deal with life.
[37] Exhibit A6 [156].
[38] Ibid, [158].
63. One issue of concern related to the fact that the Applicant’s younger brother has issues with drug use and criminal associations. Indeed, the Applicant was at his brother’s house when he was apprehended with a firearm in 2018. Initially, the evidence appeared that the younger brother lived with his parents, meaning that the Applicant was likely to have interactions with him at family gatherings. The Applicant’s mother gave evidence that the younger son was not currently living at home although she said ‘he comes and goes’. The Applicant stated ‘I no longer have contact with the social circles that I had before. I have cut all ties from them and [my younger brother]’.[39] Dr Davis was asked about the risk to the Applicant of meeting up with his younger brother. In his view, it was not problematic to have contact in the context of family gatherings, but he said he would be more worried if there were interactions away from family gatherings.
[39] G-documents G54 [89].
64. In terms of rehabilitation, in 2023 the sentencing judge, Judge Marich, made a number of comments about the Applicant’s prospects for rehabilitation. She stated:
Since being granted bail, you have managed to overcome your need for drugs of dependence, and your spate of offending. This is to your enormous credit. I have read the various references tendered on your behalf, including from [the Applicant’s partner], that speak so favourably as to your progress.[40]
…
As I have said, to your enormous credit, you report …that you have been abstinent from drug use since you were first remanded for these charges in 2018. Also, to your credit, you have not re-offended since this incident….I am prepared to infer that you have rehabilitated from the drug use which appears to underpin your offending and leads to poor choices.[41]
…
As I have mentioned, I have had full regard to your successful rehabilitation since committing the offence and, notwithstanding your appalling history, I am prepared to infer that your prospects for rehabilitation continue to be fair to good, depending on whether you continue to abstain from your drug use when you are released after this sentence.[42]
[40] G-Documents G7 [40].
[41] Ibid [51].
[42] Ibid [67].
65. Dr Davis also provided his opinion on the Applicant’s risk of re-offending. He stated:
… The bulk of [the Applicant’s] identified risk factors was comprised of relatively static items that reflected his lengthy history of criminal behaviour and lifestyle impulsivity. In contrast, [the Applicant] has considerably less dynamic or changing risk factors, which reflects his considerably more settled behaviour in recent years. Indeed, it is very positive, the [the Applicant] recently spent 4 years in the community offence-free whilst subject to bail. Accordingly, it is my admittedly conservative opinion that that he currently poses a moderate risk for general offending behaviour (i.e., comparable to the average general offender, at least until he can demonstrate further behavioural stability in the wider community.[43]
[43] Exhibit A6 at [160].
66. When asked about the risk of the Applicant engaging in further violent offending, Dr Davis stated:
… [H]e clearly has more static historical risk factors than current concerns. This reflects his more settled presentation in prison and the fact that, when recently in the community, he removed himself from his previous antisocial milieu and lifetime of substance misuse. In addition, [the Applicant] recently spent four years in the community without any substance use or offending of any kind. Lengthy periods offence-free in the community are a powerful protective factor.[44]
[44] Ibid at [161].
67. The Applicant has expressed remorse for his offending and claims to be rehabilitated. He stated:
As I have explained, I have a lengthy criminal record. I have made a lot of mistakes in the past and I am very sorry for that. There is nothing I can say, or want to say, to try to justify or excuse my behaviour. I did the wrong thing, and I am sorry for that. My criminal offending has negatively impacted the victims of my crimes, the community, the justice system, my family, [my partner] and my daughter, and myself.
I am sure I will not engage in further criminal conduct. I have left all of that behind me. I am 51 years of age and my focus and priority is on my partner, our daughter and my extended family in Australia. I want to spend time with them and make up for the time that I have wasted and been absent in their lives. I am not spending my time with bad characters and anti-social activities.
I am sure I will not fall into the same behaviours as the past. I am just not that person anymore.
I have been focussed on my rehabilitation for many years. I am very proud to say that I have overcome my addiction and successfully been rehabilitated. I have shown that I can live successfully in the community, having been tested in the community whilst on bail and when I was not on bail. I have shown that I can live a pro-social, family oriented life.
I have explained the rehabilitation that I have undertaken in my [2010 statement] to the Department. In that statement, I also explained that I have found the prison environment very difficult. I have been placed in isolation in maximum security. That means that I have not had access to programs and rehabilitation, like the general population does in prison.
I have been very focussed on my rehabilitation despite that, both in jail and in the community. That has been a long journey for me to finally be at a position where I am drug free. I have been abstinent since 2019. I have continued to remain drug free in the community, where drugs are readily available, and in prison, where drugs are available.
The program that taught me a lot was the High Intensity Violence Offending Program. It taught me how to be very mindful of emotions and have positive self-thought. With that Program, it changed the way that I think when I feel the emotion of anger or feel under threat. Instead of instantly reacting and escalating the situation, I stop and think about what is happening and the consequences of the decisions that I could make before I make them. I can then think about how I want to react, before reacting. I want to be able to de-escalate the situation and remove myself from any situation where conflict could arise. I never had been able to do this before.[45]
…
I feel like I am no longer a ticking timebomb. I have my emotions in check and under control.[46]
[45] G-Documents G54 at [49]-[55].
[46] Ibid [63].
68. Members of his family also gave evidence about the Applicant’s rehabilitation. His partner stated:
While [the Applicant] was on bail, he complied with all his bail conditions. [The Applicant] is a changed man. I have seen that over the last 5 years he has gotten older and just wants to be settled with his family. He is not a threat to the community in anyway at all. He is just a man that is really trying to move on with his life and concentrate on his family life.[47]
[47] G-Documents G55 at [25].
69. His brother stated:
In the last 5 years [the Applicant] has been on bail within the community and has remained drug free with the assistance of medical rehabilitation. [The Applicant] has helped [his partner] through a brain haemorrhage in 2020, during this time he became the main carer for [his daughter] while she was receiving treatment for [a medical condition], as [his partner] had to remain working in her new position at work. [The Applicant] has always been a strong support for all our family. If [he] comes back into the community, I will continue to support him in any way I can.[48]
[48] G-Documents G58 at [11].
70. His sister noted that the Applicant, his partner and daughter lived with her initially when he was released on bail in 2019. She also noted that while on bail the Applicant ‘was working hard to stay drug free with the support of his doctor and other programs he could access’.[49] She stated:
I believe [the Applicant] with the right support in place has the ability to continue to move forward with his life, being sentenced now was a step backwards for him and his family, they just settled into a new house. [His daughter] is settled in her school and [his partner] has a very secure job, [the Applicant] will have all the support to rebuild his life when he gets home. I will be there, along with my family to provide that support to him.[50]
[49] G-Documents G59 at [16].
[50] Ibid, [17].
71. His mother stated:[51]
[The Applicant] has learnt from his punishment. He feels that every day because he is missing out on supporting his family, especially his daughter and nieces. He is very remorseful and would not reoffend.
I feel that he is different now by seeking help from his partner, sister and his doctor. I know that her will keep up his treatment if released. I am sure he will do the right thing if he is given another chance. He has a bright future to look forward to, seeing his daughter graduate and growing into a lovely woman.
[51] Exhibit A4 p 6 [14],[15].
Conclusion on protection of the Australian community
72. The Applicant’s criminal history, his conduct while incarcerated and his offending despite receiving warnings about his visa status are very serious. The nature of harm from a repeat of the Applicant’s offending is also very serious. However, despite Dr Davis assessing the risk of re-offending as ‘moderate’, there are a number of protective factors including a reasonable period in the community drug and incident free, as well as the strong networks of a loving and supportive partner, daughter, parents, brother and sister as well as their extended families in Australia. The fact that there has only been one conviction since 2009 is also significant. On that basis, the prospect of reoffending on current facts, appears to be lower than the Applicant’s history would suggest. However, on balance this primary consideration weighs moderately against revocation.
Family violence committed by the non-citizen
73. The second primary consideration relates to family violence. Direction 99, paragraph 8.2(1) states:
The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
74. This consideration is not engaged in this matter.
The strength, nature, and duration of ties to Australia
75. The third primary consideration relates to ties to Australia. Clause 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Ties to Australia
76. The Applicant, now 51, was born in Malta and moved to Australia with his parents and older brother when he was 17 months old. He attended primary and secondary schools in Australia and completed a boiler-maker apprenticeship. Apart from a holiday trip to Malta while he was a teenager, he has not been outside Australia. The Applicant has been ordinarily resident in Australia during and since his formative years.
77. The Applicant has suffered trauma during his lifetime in Australia. This includes his report of child sex abuse by a family friend from about the age of 8 that continued for about 2 years. He only disclosed the abuse in 2003 at age 30. This was commented on by Dr Davis who thought there may have been a link between the abuse and the Applicant’s use of cannabis and alcohol soon after.[52] The Applicant also referred to being present at a road accident in 2008 where he tried to lend assistance but ultimately 2 children and their grandmother died of their injuries. He also referred to the fact that the son of one of his previous partners had died aged 21 as a result of an accident. He also stated that he was traumatised by witnessing a prison assault on an associate holding his head in his lap until the ambulance came. Despite this history, Dr Davis concluded that the Applicant was currently only suffering mild post-traumatic stress symptoms.[53]
[52] Exhibit A6 at [152].
[53] Ibid at [135].
Family ties
78. The Applicant has all of his immediate family living in Australia. His partner was born in New Zealand but is an Australian citizen. His daughter was born in Australia. The Applicant’s parents are Australian citizens, as are his older brother and his sister (who was born in Australia). No direct evidence was provided about the citizenship status of the Applicant’s younger brother, but he was born in Australia in 1981. The Applicant also has 4 nieces: 3 daughters of his older brother, all born in Australia who are now in their twenties, and a daughter of his sister, born in Australia in 2022.
79. The Applicant does have extended family in Malta on both his mother’s and father’s side. However, the Applicant does not know them and does not believe they would be in a position to provide assistance to him if he is deported.
Impact on immediate family
80. Members of the Applicant’s family gave evidence that they would be devastated if he was to be deported. Members of his family who gave oral evidence were:
i.His partner;
ii.His daughter;
iii.His mother;
iv.His older brother; and
v.His sister.
Other family members (the Applicant’s father and 2 nieces) provided written statements, and the Tribunal accepts there are likely to be other family members and friends in Australia who would be upset by a non-revocation decision.
81. The Tribunal has considered the Applicant’s submissions that it would be hard for him to re-establish himself in Malta because of a lack of family support, his criminal history, and likely separation from his partner and daughter who would most likely remain in Australia. Although the Applicant stated that he does not speak Maltese, it seems likely that he understands it at some level. Culturally, Malta is a developed country and is part of the European Union. However, the Tribunal accepts that it would be difficult for the Applicant to obtain employment, at least initially. No evidence was provided to the Tribunal about the social security system in Malta. The Tribunal accepts that a non-revocation decision would pose very difficult choices for the Applicant and his partner to consider. Their lives would be significantly disrupted irrespective of the decision made. If his partner remained in Australia this would cause family separation. If she accompanied the Applicant to Malta this would cause disruption to their daughter’s education and loss of their social and support networks. It would also have an impact on his partners employment prospects given that she does not have any Maltese language skills.
Contribution to the Australian community
82. In terms of positive contributions in Australia, the Tribunal notes that the Applicant has not had a consistent employment record, at least in part due to the fact that he has spent so much time in prison. The Applicant gave evidence about assisting at a fatal vehicle incident in 2008 where he tried, unsuccessfully, to save 2 young children. His partner also gave evidence that, particularly, in the period while he was on bail in 2019-2023, he had been a great support to her in providing care and assistance with their daughter while she had some health issues, particularly in 2020 when his partner suffered a brain haemorrhage. His older brother also gave evidence that the Applicant has been a source of support in looking after his autistic daughter (now aged 22), had developed a good bond with her and was able to provide respite for him as her sole carer. A family friend gave evidence that the Applicant had provided assistance to her with household tasks such as lawn-mowing since her husband died in 2020, and that he had been a support to her grandson, who lives with her.
83. The decision in FCFY v Minister for Home Affairs (No 2)[54] indicates how this factor should be considered. In that case, the Tribunal had said that, given that there was limited positive contribution, less weight should be given to the primary consideration relating to ties to Australia. Thawley J, referring to an earlier version of the Direction that was in similar terms, held this was not the proper construction. He stated:
The Tribunal’s language, read fairly in accordance with the principles earlier identified, indicates that the Tribunal misunderstood cl 14.2(1). The Tribunal thought that paragraph (a)(ii) required it to give less weight to how long a non-citizen had resided in Australia if there had been limited positive contribution to the Australian community. Paragraph (a)(ii) does not operate in that way. It provides that, where there was positive contribution to the Australian community, there should be an increase in the weight given to ‘how long the noncitizen has resided in Australia, including whether the non-citizen arrived as a young child’. Paragraph (a)(ii) did not require a decrease in the weight to be given to the length of residence where a positive contribution was limited or absent.[55]
[54] [2019] FCA 1990.
[55] Ibid [59].
Conclusion on strength, nature and duration of ties to Australia
84. On balance, this primary consideration carries substantial weight in favour of revocation, particularly given that the Applicant has spent almost all his life in Australia. The Applicant has a very close relationship with his partner and daughter and with members of his immediate family, who all spoke strongly about the changed behaviour of the Applicant since he had ceased drug taking while on bail. He has also developed a number of other social relationships and appears to have left behind contacts who might have drawn him back into offending. All of his relationships are in Australia and although he does have extended family in Malta, there is unlikely to be significant familial, social, or other support from them given his lack of contact and unfamiliarity with the culture. There would be a significant adverse impact on his partner and daughter if he was repatriated, irrespective of whether they chose to accompany him or not.
Best interests of minor children in Australia
85. The fourth primary consideration is concerned with the interests of minor children in Australia. Clause 8.4 of the Direction provides:
(1) Decision-makers must make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
(2) This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to refuse or cancel the visa, or to not revoke the mandatory cancellation of the visa, is expected to be made.
(3) If there are two or more relevant children, the best interests of each child
should be given individual consideration to the extent that their interests may
differ.
(4) In considering the best interests of the child, the following factors must be
considered where relevant:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the
relationship is non-parental, and/or there is no existing relationship
and/or there have been long periods of absence, or limited meaningful
contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future
conduct, and whether that conduct has, or will have a negative impact
on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due
weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or
exposed to, family violence perpetrated by the non-citizen, or has
otherwise been abused or neglected by the non-citizen in any way,
whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
86. The Applicant has one minor child – his daughter aged 15 (born August 2008). The Tribunal was also asked to consider the interests of his niece, aged 16 months.
87. In relation to his daughter, she was born while the Applicant was incarcerated and he was released when his daughter was 7 years old. He spent the period 2015 to 2018 and 2019 to 2023 living with his partner and daughter. Although he has not been present for about half of his daughter’s life, he was present during her formative years, namely from the time she was 7 to 10 years and from 11 to 14 years.
88. The Applicant gave evidence that he has a close and loving relationship with his daughter. He spoke about helping her with some mental and physical health problems in the period 2019-2023.
89. The Applicant’s partner gave the following evidence:[56]
[56] G-Documents G55 [18]-[21].
… [The Applicant] has always been a loving and caring father to [his daughter]. Even in times of incarceration, [she] had a great loving relationship with [him] and visited him every week and spoke frequently with him. She has attended court in his support and they both love each other dearly.
[The Applicant] has been a very active part of [her] life assisting with school drop offs, footy training, main support person during her [health issues]. He has always been an active parent in her life always.
[The Applicant] will continue to play a positive parental role in [her] life, and I need his help to be able to provide that to her … [The Applicant] has always been a present active father in her life, it would not be in [her] best interest to take her father away from her.
[She] has a very strong loving bond with her father. The most stress and anxiety in her life now is the fact that she may have her dad taken away from her into a country that is foreign to her. Her separation from her father has been a source of her mental health deterioration.
90. The Applicant’s daughter also gave evidence. This is significant because it means that her views are known directly. She stated:[57]
[57] Ibid G56 p 421.
During my younger years, my dad’s absence due to his incarceration was deeply felt and although we were apart during this period, he was always my biggest idol and was always a great father. Over the past five years, we have managed to build a strong and loving relationship as a family since my dad has been on bail in the community. My dad has truly turned over a new leaf and has dedicated himself to rehabilitation.
His commitment towards our family can be seen in the special bond we share. He never failed to drop me off or pick me up from school, creating a sense of stability and security in my life. He would come to school during lunches to support me [with my health problems].
We have also spent quality time together, going on drives and enjoying outdoor activities, such as riding scooters. My dad made it a priority to organise weekly family dinners, which has strengthened our bond as a family.
….
I know from my doctor’s appointments that an important part of my care is to have the love and support of both my parents. I want my dad to be with me and to continue to play a role in helping me with my care and recovery.
91. Other family members gave evidence about the nature of the relationship between the Applicant and his daughter. All confirmed that the relationship is close and loving and that his daughter would be devastated if he was deported.
92. The Tribunal is satisfied the Applicant intends to play a positive role in his daughter’s life if released. He has maintained a close and loving parental relationship with her despite incarceration and played an active role in her care while released on bail at a formative time for her. It may be that if the Applicant is deported, his partner and daughter may choose to go to Malta, but this would be extremely difficult for both of them. This is a very difficult and ultimately personal choice. There would be little, if any, prospect of the Applicant returning to Australia and, in that sense, non-revocation may result in his future relationship with his daughter being long-distance in nature, at least until she is old enough to travel overseas independently.
93. The Tribunal notes that the relationship between father and daughter can also be considered in relation to other considerations, such as the ‘strength, nature, and duration’ of ties to Australia.[58] In the context of the primary consideration of ‘best interests of minor children’, the Tribunal finds that deportation of the Applicant would weigh heavily on his daughter.
[58] Benrabah v Minister for Immigration, Citizenship, Migrant Services and Multicultural
Affairs [2020] FCAFC 4.
94. The Applicant’s relationship with his infant niece does not raise the same considerations as his daughter. She was aged 4 months when he was sent to prison and has only met him via social media. Nevertheless, the Tribunal accepts that the absence of an uncle will involve some hardship for his infant niece who will be deprived of the opportunity to have a direct and personal relationship with her uncle.
95. The Tribunal finds that the best interests of the Applicant’s daughter, and to a lesser extent, his infant niece, are therefore advanced by revocation. Significant weight in favour of revocation is attributed to this primary consideration.
Expectations of the Australian community
96. The fifth primary consideration relates to expectations of the Australian community. Clause 8.5(1) of the Direction identifies these expectations:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
(2) In addition, visa cancellation or refusal, or non-revocation of the mandatory
cancellation of a visa, may be appropriate simply because the nature of the
character concerns or offences is such that the Australian community would
expect that the person should not be granted or continue to hold a visa. In
particular, the Australian community expects that the Australian Government
can and should refuse entry to non-citizens, or cancel their visas, if they raise
serious character concerns through conduct, in Australia or elsewhere, of thefollowing kind:
a)acts of family violence; or
b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
f)worker exploitation.
(3) The above expectations of the Australian community apply regardless of
whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4) This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
97. In FYBR v Minister for Home Affairs[59] the Federal Court, dealing with an earlier version of the Direction which contained similar words, held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[60]
[59] [2019] FCAFC 185; 272 FCR 454.
[60] Ibid 473 [75]–[76] (Charlesworth J).
98. In Ismailv Minister for Immigration, Citizenship and Multicultural Affairs[61] the High Court has confirmed that this primary consideration is to be understood as ‘directing the decision-maker not to attempt to infer what the expectations of the Australian community would be ‘in the particular case’ (that is, with the knowledge of the delegate about the applicant's personal circumstances), but to proceed on the basis that the views of the Australian Government set out in [para 8.5] are the relevant norm described as the expectations of the Australian community. That norm, as applicable by reference to the terms of [para 8.5], is then to be weighed with other relevant matters as required by paragraphs 6 and 7 of [the Direction]’.[62]
[61] [2024] HCA 2.
[62] Ibid [52].
99. The Applicant has clearly acted contrary to the deemed community expectation in his offending. The offences for which he has been convicted are serious offences and, as a norm, the expectation is that the Applicant should not remain in Australia. It is a matter for the Tribunal in the exercise of its discretion to assess the weight to be attributed to this community expectation in the overall assessment of each of the relevant considerations under Direction 99.
100. In assessing the weight to give to this consideration, the Tribunal notes that there are factors which confirm the expectation expressed in paragraph 8.5(1). The Applicant’s offences were serious departures from accepted community standards. On the other hand, some matters tend to mitigate against giving the community expectation full weight. The Applicant has remained drug and incident free for a number of years and has a supporting and loving family. The expert evidence is that he has matured in recent years and he appears remorseful and committed to rehabilitation. Having regard to these various considerations, the Tribunal is satisfied that the Applicant’s circumstances warrant the expectations of the Australian community being given only limited weight in the overall assessment of the considerations in favour of not revoking the cancellation of the Applicant’s Visa, notwithstanding that it is a primary consideration under Direction 99.
OTHER CONSIDERATIONS
101. Clause 9 of the Direction sets out ‘other considerations’. There are 4 listed considerations, but the list is non-exhaustive.[63]
[63] GBV18 v Minister for Home Affairs [2020] FCAFC 17 [13]; Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17.
102. No submissions were made by the parties regarding clause 9.3 ‘Impact on victims’, and clause 9.4 ‘Impact on business interests’. Having considered the available evidence, the Tribunal agrees and does not consider these aspects further.
103. The two remaining ‘other considerations’ are:
i.The legal consequences of the decision; and
ii.Extent of impediments if removed.
Legal Consequences of the Decision
104. Paragraph 9.1(1) requires decision-makers to be:
…mindful that unlawful non-citizens are, in accordance with section 198, liable to
removal from Australia as soon as reasonably practicable in the circumstances
specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
105. International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulment claim.[64] However, claims which may give rise to international non-refoulement obligations can be raised by a non-citizen who is not the subject of a protection finding.[65] Where such claims are raised, they must be considered by the Tribunal.[66]
[64] The Direction para 9.1.1(3).
[65] Ibid cl 9.1.2(1).
[66] Ibid.
106. The Applicant is not covered by a protection finding and has not expressly raised a nonrefoulment claim in these proceedings. It is not apparent that there would be any general reason why non-refoulment would arise in the Applicant’s case given his country of citizenship is Malta.
107. Accordingly, the Tribunal is satisfied that the legal consequence of a decision not to revoke the cancellation of the Applicant’s Visa is that the Applicant would be liable to removal from Australia as soon as reasonably practicable, presumably at the end of his current sentence in May 2025, in the circumstances specified in section 198(2A)(c) of the Migration Act, with detention under section 189 pending removal.
108. On the other hand, a decision to revoke cancellation means that the Applicant may soon be eligible to apply for parole. If parole is granted, the position in Victoria is that the parole board must impose mandatory conditions including supervision.[67] The Applicant asked the Tribunal to consider that this meant that there would be conditions in place to manage the risk in the Applicant’s transition from custody to the community.[68]
[67] Corrections Act 1986 (Vic) s 74(4)(a); Corrections Regulations 2019 (Vic) reg 112.
[68] Exhibit A1, [5].
109. A decision not to revoke the cancellation of the Applicant’s visa will result in deportation to Malta and continued detention pending removal. These are are matters which adversely affect the interests of the Applicant and weigh in favour of revocation, however it is not a primary consideration under Direction 99 and the Tribunal gives the consideration little weight.
Extent of impediments if removed
110. Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c) Any social, medical and/or economic support available to them in that country.
111. The Applicant is currently 51 years of age. He has a number of health issues including, as reported by Dr Davis, generalised anxiety disorder, previously diagnosed post-traumatic stress disorder as well as the possibility of mild neurocognitive disorder. His health problems appear to be related to his use of illicit drugs over a long period, although he claims that since being released on bail in 2019, he has remained drug free. The Applicant has also reported sexual abuse by a family friend when he was a young boy. He understands that the perpetrator now lives in Malta and states that this also makes him not want to return there. It seems likely that the Applicant will continue to suffer some trauma as a consequence of the childhood sexual abuse.
112. The Applicant has lived virtually all his life in Australia and, although his mother spoke to her children in a mix of Maltese and English as they were growing up, he states that he has limited Maltese language skills. Apart from a brief holiday to Malta when he was a teenager, he has had no interactions with the country or with his extended family who live there. No evidence of particular cultural barriers was put in evidence although his sister spoke of the culture in Malta as being more restrictive than Australia.
113. In terms of supports available to the Applicant should he be deported to Malta the Applicant stated that he had had no contact with his extended family since the one holiday there as a teenager. His sister gave evidence that the extended family had not been told about the Applicant’s criminal history or possible deportation because her parents were ashamed to share this information. The Applicant’s mother stated that she had recently told one sister. Both the sister and mother said the family were not well off and would not be able to provide any assistance, for instance, by way of housing. As a citizen of Malta, it is likely that the Applicant would be entitled to social security support, but no evidence was submitted as to eligibility or entitlement.
114. The Tribunal accepts that as a 51-year-old man with a criminal record, who has lived in Australia for almost all of his life, and without familial support, the Applicant will be confronted by hardship if returned in Malta. This includes unfamiliarity with services, trying to find employment, and accessing social security support. On balance, this consideration weighs in favour of revocation but is not a primary consideration under Direction 99 and the Tribunal gives this consideration moderate weight.
Other matters raised by the Applicant
115. The Applicant raised two other matters for consideration by the Tribunal, noting that the High Court has held that the considerations set out in the Direction are not exhaustive.[69]
[69] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [16].
116. The first matter raised was that the Tribunal should consider the possibility of the Applicant ‘backsliding’, presumably meaning that he may be tempted to resume drug taking if he is put in a position where he does not have familial supports. This seems to raise similar issues to the consideration ‘impediments if removed’. The lack of familial support if he is deported has already been considered.
117. The second matter raised was that the Tribunal should consider the childhood sexual abuse and its link, at least by Dr Davis, with his subsequent drug misuse. It is not clear how the Tribunal should view this matter. On the one hand, the substance abuse was clearly linked to his criminal offending and his ability to stop taking drugs since 2018 has been considered as part of ‘the risk of re-offending’. The impact of the childhood sexual abuse on the Applicant’s health more generally has been considered as part of the consideration of ‘impediments of removed’.
CONCLUSION
118. The Applicant does not pass ‘the character test’ in section 501 of the Migration Act. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason on current facts to depart from the guidance in the Direction that greater weight ‘should generally be given’ to primary considerations.
119. The Applicant’s offending is serious. He has 2 convictions for offences involving violence, the most recent in 2009. He continued to offend after receiving warnings from the Department in 2005 and again in 2011, although there has only been one offence committed since 2009. Expert evidence about the possibility of re-offending suggests, based on past behaviours, that there is a moderate risk. However, there are considerable protective factors, including the Applicant being drug-free and offence-free since 2019 when he was on bail and in the community, and the close and loving support of his partner, his 15-year-old daughter and other members of his immediate family. This consideration weighs moderately against revocation.
120. The Applicant has lived virtually his whole life in Australia. His partner and daughter and all of his immediate family are in Australia and are all Australian citizens. It would be extremely hard on his partner and daughter to relocate and it is unlikely they would accompany him to Malta because of the established nature of their lives in Australia. A non-revocation decision would therefore result in difficult choices and significant adverse effects for his family irrespective of what decisions are made. This consideration weighs strongly in favour of revocation.
121. The best interests of the Applicant’s 15-year-old daughter is that he stays in Australia. She is at a crucial time in her schooling and has some health issues that are likely to best be treated in Australia. To a lesser extent the best interests of the Applicant’s 16-month-old niece are also that he stays in Australia. This consideration weighs strongly in favour of revocation.
122. Consideration of the expectations of the Australian community involves acceptance that the Applicant’s offences were serious departures from accepted community standards. On the other hand, some matters tend to mitigate against giving the community expectation full weight. The Applicant is has remained drug and incident free for a number of years and he has a supporting and loving family. On balance this consideration weighs moderately against revocation.
123. In relation to ‘other considerations’, the legal consequences of a decision not to revoke the cancellation of the Applicant’s visa is that the Applicant would be liable to removal from Australia as soon as reasonably practicable, presumably at the end of his current sentence, in the circumstances specified in section 198(2A)(c) of the Migration Act, with detention under section 189 pending removal. This consideration carries little weight.
124. The other consideration – ‘impediments to removal’ – requires consideration of the age and health of the Applicant, language and cultural barriers and supports available in Malta. This consideration weighs moderately against revocation.
125. The two additional matters raised by the Applicant relating to the possibility of the Applicant backsliding and the impact of childhood sexual abuse of the Applicant have been taken into account as other considerations.
126. Having weighed all the relevant considerations individually and cumulatively, the Tribunal is satisfied there is another reason to revoke the cancellation decision. That is because the primary considerations ‘Strength, nature and duration of ties’, ‘Best interests of minor children’, and the other consideration ‘Extent of impediments if removed’, outweigh the countervailing primary considerations.
DECISION
127. It follows that the Tribunal sets aside the reviewable decision and substitutes a decision that there is another reason to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4)(b)(ii) of the Migration Act.
| I certify that the preceding 127 (one-hundred and twenty-seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member O’Connell |
....................[SGD]........................
Associate
Dated: 3 June 2024
Date of hearing: | 21, 22 and 24 May 2024 |
| Advocate for the Applicant: Solicitor for the Applicant: | Mr Mathew Kenneally Carina Ford |
| Advocate for the Respondent: | Ms Olivia Cameron |
| Solicitors for the Respondent: | Minter Ellison |
APPENDIX A – EXHIBIT LIST
| Party Tendering | Description | Exhibit |
| Applicant | Applicant's Statement of Facts, Issues and Contentions (9 pages) | A1 |
| Applicant | Applicant's First Tender Bundle (39 pages) | A2 |
| Applicant | Applicant’s Second Tender Bundle (69 pages) | A3 |
| Applicant | Applicant's Information Bundle (49 pages) | A4 |
| Applicant | Applicant's Reply (3 pages) | A5 |
| Applicant | Report and Briefing Letter of Dr Michael Davis (112 pages) | A6 |
| Applicant | Statutory Declaration of the Applicant’s Father (2 pages) | A7 |
| Respondent | G-Documents (779 pages) | R1 |
| Respondent | Respondent's Statement of Facts, Issues and Contentions (11 pages) | R2 |
| Respondent | Supplementary Documents (135 pages) | R3 |
| Respondent | Supplementary Documents ‘S48’ (2 pages) | R4 |
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