FCFY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case •

[2020] AATA 3092

•

21 August 2020

FCFY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3092 (21 August 2020)

Division: General Division

File Number(s):      2018/4893

Re:FCFY

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President J W Constance
Mr S Evans, Member

Date:21 August 2020

Place:Sydney

The reviewable decision made 17 August 2018, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa, is affirmed.

................................[SGD]........................................

Deputy President J W Constance

CATCHWORDS

MIGRATION – mandatory cancellation – where offending very serious – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – international non-refoulement obligations – strength, nature and duration of ties to Australia – impediments to return – decision affirmed 

LEGISLATION

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

CASES

DKXY v Minister for Home Affairs [2019] FCA 495

FYBR v Minister for Home Affairs [2019] FCAFC 185

Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548

Uelese v Minister for Immigration and Border Protection (2016) 248 FCR 296

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President J W Constance
Mr S Evans, Member

21 August 2020

A. INTRODUCTION

  1. The Applicant was born in 1971 in the United Kingdom and is a UK citizen. In 1972 he migrated to Australia with his parents. He has lived in Australia ever since.

  2. In 2017, the Applicant was convicted in the NSW Local Court of several offences including dishonestly obtaining property by deception, larceny and shoplifting. The Court imposed concurrent sentences of 12 months imprisonment for each offence. The Applicant unsuccessfully appealed the severity of the sentences in the NSW District Court.

  3. By reason of his being sentenced to imprisonment for 12 months, the Applicant’s Class BF Transitional (Permanent) visa was cancelled in accordance with subsection 501(3A) of the Migration Act 1958 (Cth) (the Act). This decision is referred to in the Act as “the original decision”.

  4. On 17 August 2018, a delegate of the Minister decided not to revoke the original decision. The decision of 17 August 2018, referred to as the “reviewable decision”, is the subject of this application for review.

  5. The reviewable decision was made on the basis that the delegate was satisfied that the Applicant did not pass the “character test” set out in the Act, and that there was not another reason why the original decision should be revoked.

  6. At the time of the hearing of this application, the Applicant was being held in immigration detention.

  7. For the reasons which follow, the reviewable decision will be affirmed.

    B. BACKGROUND

  8. Unless otherwise stated, the findings of fact in these reasons are based on the evidence of the Applicant. He gave evidence at the hearing, appearing by video in accordance with the COVID-19 Special Measures Practice Direction issued by the President of the Tribunal. He provided a statement filed on 24 July 2018[1] in which he described his childhood.

    [1] Exhibit RR1, 103-108.

  9. The Applicant is the eldest of seven siblings. As a child, over several years, the Applicant was sexually molested by his father and later his step-father. He was taught to steal by his step-father and if he did not do so he was beaten. His step-father was a big man who would “flog” the Applicant and his brothers if they did not steal as they were instructed. As the eldest of the children the Applicant suffered the worst of the abuse. He witnessed violence perpetrated on his mother and younger brother. He left home when he was 13 years old and lived on the streets. He began using drugs, including heroin, speed and marijuana.

  10. In an undated statement provided to the Minister in July 2018,[2] the Applicant said:

    I’m 48 yr old I came to Australia when I was 1yr old with both of my parents. Recently immigration contacted me to give me 14 days to respond to a few items they may use to decide my visa status.

    I came to Australia before I could even walk I took my first steps in Australia everything I know and have been taught I learnt here in Australia. I’ve never left Australia not even for a holiday and I’ve never held a passport of my own. In my eyes I am Australian and proud to be. I know I have a long criminal past and I am not proud of it at all in fact I’m ashamed of it and that I let drugs ruin my life for that long. And for the hurt & pain I’ve caused to the victims and my love ones. I know I’ve made a lot of mistakes in my life and I’ve paid my debt to the community by way of jail. The government wants me to explain myself why I’ve committed some of these offences well I’ll give it a go. But I think it is only right to start from the start as a child … my mum married 3 times and there was 8 children in the house by the 3rd marriage 4 to mum 4 [Mr J’s].

    Anyway my childhood was a nightmare that I couldn’t wake from. The men that was suppose to love & protect me DID the total opposite. He beat me my mother and baby brother. And also at his hand he molested me over & over for too many painstaking years. I was scared to tell anyone what was going on because he always said over & over if I ever told anybody I’d be left all alone he threatened to kill my mother I lived in this fear for most of my life till the day he died. I believed he would do it because I know what beading we would all get including my mum. We had to watch her get used for a punching bag over & over& until she finally had the courage to leave him. But my brother and I had to go stay with him every 2nd weekend half holidays etc. well that’s when the worst of it came. He hit me that hard across the head one visit I ended up in hospital for a week. Mum met [Mr E] … and ended up marrying him…he was a good man to start with teal mum had my sister… And that’s when things changed. My mother and I would get floged for the slightest thing we did wrong all because he hated us because we were not his children I would often take the blame for something my brother did just so he wouldn’t get the flogging and these were happening daily. [Mr E] was that bad with drinking that he smashed the family car into a truck at 10:30am on a Sunday morning drunk as a skunk with both mum & my brother in it. I came close to loosing them both that day. Emergency crews say it’s a miracle anyone survived my brother ended up with severe brain damage as a result he had to learn how to do everything all over again walk- talk- eat etc so I became even more protective of him because of the way he was always up to something he shouldn’t have been which resulted in more & more beating for me. For taking the blame for being he did & mum finally left him. And we thought yes no more beating.

    She meat a man called [Mr J] and ended up marrying him he had four kids of his own so 8 kids in one house trying for any mother. Again all was well to start with and he turned mean mean as hell at the age of about 10 he had asked still from shops houses cars anywhere he wanted… If we didn’t we got a flogging for it so we soon learnt to just do it. If we got what he wanted we got rewarded for instance desert at dinner or cordial or soft drink instead of water but if we came back empty handed all we got cought well that was it we were in for the flogging of a life time… I was petrified of him and my brother & mother’s welfare.

    All my life I was bashed molested and treated like a piece of shit. I ended up running away from home at about 12 years old living on the streets sleepin on park benches, churches, under houses were ever I could just to keep warm and safe. I turned to drugs at 12 ½ yr old because when I was high I didn’t have a care in the world then came the alcohol as well so at 13 yr I was doing drugs drinking anything and stealing to get buy just after my 13th birthday I had my first shot and that is what was the start of my life going downhill. While I was high & had no pain & no worries & was free from everything did have a care in the world. Drugs are a very evil think. It destroys lives familys everything it came in touch with it destroyed my life but I have it back now. Drug free I became clean & sobber for the first time in my life after I got my notice from you guys in 2012. We are all only human I relapsed on the drugs witch lead me to make some more stupid things and ended up me going back to jail. I’ve been clean since Feb. 2017 since I went back to jail I’ve addressed my problem & I do N/A and A/A weekly and I will continue to do so on release from detention. I have three children and three grandchildren that I love unconditionally, I spend all my time with them instead of my old crowd of friends we do everything together I’m teaching them not to follow the path I did with drugs my life is all about them only them and to be a better man than the man I was. There is NO excuses for any of my criminal past nor am I trying to make any. Since being released from jail in 2017 I have tried really hard to better the person I am I was volunteering 2 days a week at Wollongong Salvos. And also help serve dinner for the homeless Friday-Sat-Sun nights… I’m ashamed I let drugs get the better of me again and relapsing but at the end of the day we are only human soon as I got to jail I put down to do N/A even though I wasn’t qualified for course. Welfare could see I was being honest and wanted to help so let me do the class of the books I’ve been clean again since Feb 2017 not because I was in jail because I wanted and needed to. Drugs are easier to get hands on in jail I just choose not to have them. I know how evil drugs become first hand especially crystal meth. Just unfortunately at a age of 12 - 13 I was easily lead and wanted to fit in. And drugs would help me forget everything that is and was going on in my life…

    [errors in original]

    We accept this evidence of the Applicant. It was not challenged by the Minister.

    [2] Exhibit RR1, 103-108.

  11. The Applicant has not received counselling or any other form of treatment for the abuse that he suffered as a child. He spoke to his mother about what took place many years after the events.

    Statement of Mrs JC, the Applicant’s maternal aunt

  12. Mrs JC provided a statement dated 19 March 2018.[3] She did not give evidence.

    [3] Exhibit AA2.

  13. Mrs JC stated, in part:

    [The Applicant] came to Australia from England with his parents… and his two half siblings when he was approximately two years old. [The Applicant’s parents] had another child together before divorcing. His father went back to England with his half siblings. His half sister died of a childhood disease then his father committed suicide. No contact has ever been made to his half brother or his father’s family.

    His mother went on to have two more children to her second husband.

    [The Applicant’s] mother divorced her second husband and married a [Mr J] who did not treat [the Applicant] and his 3 younger siblings well.

    [Mr J] taught all four children how to steal. If they bought home “the good stuff” they were praised. Bringing home worthless items would mean a beating. So their future seemed grave from the onset.

    All four children grew into a life of crime and drugs.

    ….

    … [The Applicant] has never really had anyone there for him and no parental guidance.

    The Applicant’s criminal record[4]

    [4] Exhibit RR1, 29.

  14. A National Police Certificate issued in respect of the Applicant shows that he has been convicted of more than 100 offences in Australia since his first conviction as an adult in 1989. He has been sentenced to terms of imprisonment for 35 separate offences, some of which were served concurrently.

  15. The offences for which terms of imprisonment were imposed are as follows:[5]

    [5] Exhibit RR1, 29.

Court date

Offence and term of imprisonment

21 February 2017

Intimidate police officer in execution of duty, have custody of an offensive implement in a public place, dishonestly obtain property by deception, larceny, shoplifting: concurrent prison sentences, longest 12 months

29 January 2013

Drive while disqualified from holding a licence: 6 months imprisonment

22 June 2011

Drive while disqualified from holding a licence, destroy or damage property: longest sentence 8 months imprisonment

12 August 2009

Fail to appear in accordance with bail granted undertaking, assault occasioning actual bodily harm: longest sentence 16 months imprisonment

24 November 2006

Common assault: 6 months suspended sentence

4 October 2005

Steal property in dwelling-house: 12 months imprisonment

13 September 2004

Drive while disqualified from holding a licence: 18 months imprisonment

18 July 2002

Fraudulent appropriation with no original fraudulent intent: 18 months imprisonment

3 May 2002

Drive while disqualified from holding a licence: 6 months imprisonment

12 April 2002

Drive while disqualified from holding a licence and obtain money by deception: 9 months imprisonment

6 October 2000

Drive while disqualified from holding a licence, breach of community service order: longest sentence 6 months imprisonment

  1. A copy of the National Police Certificate dated 9 April 2018 in respect of the Applicant appears in Schedule 1 to these reasons.

    Courts’ Sentencing Remarks

  2. In August 2009 His Honour Judge Guy, sitting in the NSW Local Court, sentenced the Applicant for offences including assault occasioning actual bodily harm and driving while disqualified. His Honour said, in part:

    The defendant is for sentence in relation to essentially three sets of assault matters and one matter involving driving while disqualified. I have read the records, both traffic and criminal record of the defendant, there are many, many entries involving driving offences. I think his present disqualification has blown out to about 2038, it becomes almost academic but the legislation is there. He was put off the road for a purpose and has continued to offend. I suppose it is up to him whether he wants to do that but unfortunately for him that means further periods of imprisonment.

    But equally it is not a case of increasing it each and every time you turn up. It is a case of looking and standing back and saying what at the end of the day is an appropriate sentence for all the criminality involved. The other aspect is that because there are essentially multiple sets of matters it is not a case of looking at one in isolation, again it is a total picture. To that extent the drive while disqualified sentence has been reduced a little bit other than what it would normally be because of the fact that there are other matters to be taken into account. And in many ways I must say I view one of the assault matters more seriously than the driving matters.

    There are three sets, really there is not a great deal that can be said in terms or reasons why the defendant reacted in the way he did. There is a major problem as indicated in terms of alcohol, anger management, other issues. One of them involved punches and pushing, that was the matter involving the father of the partner. The other matter involved… punching to the face of the victim and striking the person with an aluminium can of drink causing a split across the forehead. The other matter involved use of a bat and hitting the bat [stet] on a number of occasions with it. It is just good luck that the person was hit in the area that he was, as it was he ended up with bruising the sides of his upper torso, bruising to his left arm, not really acceptable behaviour.[6]

    [6] Exhibit RR1, 40.

  3. When sentencing the Applicant in February 2017 for offences including obtaining property by deception, larceny, intimidating police, shoplifting and possessing a prohibited drug, the Court said, in part:

    There is a certain theme going through [the Applicant’s] record; obtain money by deception, that went back a little while but it seems to be one thing after the other and if they were taken separately then in my view that would not be at the higher offending, it would not warrant a custodial sentence, but the Court when sentencing has to take into account the effect of these matters on the community. They have not just been one-off offences, it is one after the other as I have said [the Applicant] has shown no indication that things are going to be on the improve, if I can put it that way, both for himself and the benefit of the community.[7]

    [7] Exhibit RR1, 47.

    Previous warning

  4. On 7 March 2012 the Applicant was notified that his visa may be cancelled by the Minister pursuant to section 501 of the Act. He was issued a formal warming on 21 May 2012 that his visa may be cancelled should he commit further offences.[8] The Applicant signed an acknowledgement stating that he understood that he may again be considered for refusal or cancellation of his visa.[9]

    [8] Exhibit RR1 p.99.

    [9] Exhibit RR1, 101.

    Failure to pass the character test

  5. It is not in dispute that, by reason of his criminal record, the Applicant does not pass the character test set out in the Act.

    C.   THE RELEVANT LEGISLATION

  6. Subsection 501(3A) of the Act provides:

    (3A) The Minister must cancel a visa that has been granted to a person if:

    (a)  the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii)paragraph (6)(e) (sexually based offences involving a child); and

    (b)  the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

  7. Paragraph 501(7)(c) provides:

    (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 …

  8. Subsection 501CA(3) provides:

    (3)  As soon as practicable after making the original decision, the Minister must:

    (a)give the person, in the way that the Minister considers appropriate in the circumstances:

    (i)     a written notice that sets out the original decision; and

    (ii)    particulars of the relevant information; and

    (b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.

  9. Subsection 501CA(4) provides:

    (4)  The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

  10. The power of the Tribunal to review the decision to refuse to revoke the cancellation of the Applicant’s visa is provided by section 500 of the Act.

    D. DIRECTION NO. 79

  11. Pursuant to subsection 499(1) of the Act, the Minister has given written directions as to the exercise of the power to revoke a mandatory cancellation, and thus the Tribunal’s power on review. The relevant direction is Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction), which commenced on 28 February 2019. Pursuant to subsection 499(2A) of the Act, the Tribunal is bound to comply with the terms of the Direction.

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

    Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

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

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

    The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

  4. Paragraph 7 of the Direction sets out how the discretion is to be exercised. “Informed by” the principles in paragraph 6.3, we must “take into account” the considerations in Part C in order to determine whether the mandatory cancellation of the Applicant’s visa should be revoked. A copy of Part C is set out in Schedule 2 to these reasons.

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

    (1)  Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)  The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

    (3)  A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (4)  In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)  Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

    (6)  Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

    (7)  The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

  6. The Direction requires the decision-maker to take into account the primary and other considerations relevant to the individual case.[10] Primary considerations should generally be given greater weight than the other considerations.[11]

    [10] Direction at [6.2(3)] and [8(1)].

    [11] Direction at [8(4)].

  7. Paragraph 13(2) provides:

    In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:

    a)Protection of the Australian community from criminal or other serious conduct;

    b)The best interests of minor children in Australia;

    c)Expectations of the Australian community.

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

    In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    a)International non-refoulement obligations;

    b)Strength, nature and duration of ties;

    c)Impact on Australian business interests;

    d)Impact on victims;

    e)Extent of impediments if removed.

    E. THE ISSUES FOR DETERMINATION

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

  10. It is not in dispute that the Applicant has made representations of the kind referred to in paragraph (a) of subsection 501CA(4). It is also not in dispute that he does not pass the character test in subparagraph (b)(i) of the subsection. Therefore, it is necessary to decide whether “there is another reason [i.e., other than the Applicant passing the character test] why the original decision should be revoked”.

  11. It we are satisfied of all the relevant requirements of paragraph 501CA(4)(b), then the cancellation must be revoked. To this extent, “may” in the subsection means “must”.[12]

    [12] Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 at [31].

    F. REASONING

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

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

  12. We must have regard to matters set out in paragraph 13.1, which include:

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

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

    o[t]he risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.[13]

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

    The nature and seriousness of the Applicant’s conduct to date

  13. The Applicant does not dispute his criminal record.

  14. The Applicant’s conduct involves frequent offending resulting in over 100 separate offences committed since 1989. His difficult upbringing and addiction to drugs may explain, but do not excuse, his conduct. His conduct includes the violent crimes of assault occasioning actual bodily harm, common assault, domestic violence and intimidating a police officer in the execution of duty.

  15. In view of the number of offences committed by the Applicant, the length of time during which those offences were committed and the fact that some involved physical harm or threats of physical harm to others, the Applicant’s conduct to date has been extremely serious. In the hierarchy of sentencing options, imprisonment is the most serious. It has been imposed on the Applicant on at least 35 occasions. In addition, the Applicant continued to offend after he was warned that his visa may be cancelled.

    Risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

  16. The Direction states that we “should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.”

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

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

    [t]he likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).[14]

    [14] Direction at [13.1.2(1)].

    The nature of future harm

  18. In view of the seriousness of the Applicant’s conduct and in line with the principles stated above, we are satisfied that the Australian community’s tolerance for the risk of any harm which may result from future misconduct by the Applicant would be low.

  19. Should the Applicant further engage in such conduct, there would be a significant risk of serious physical and/or psychological harm to members of the community arising from offences such as assault and driving whilst disqualified. There is also the risk of financial harm arising from offences such as stealing, larceny and obtaining money/property by deception. In addition, significant public resources would be expended in dealing with his anti-social conduct.

    The likelihood of the Applicant engaging in further criminal or other serious conduct

    Evidence of the Applicant

  20. In a written statement dated 14 March 2012, provided to the Minister in response to earlier advice to the Applicant that cancellation of his visa was being considered, the Applicant said:

    I had a real hard upbringing as a child I was molested by my father for many years and at the age of 13yrs I left home and lived on the streets I started useing drugs at a early age and I also had a very bad attitude problem witch leed to me getting into trouble with the law. I know I have a lengthy criminal record but I just need the Dept to know that I have addressed my drug and anger issues since I was in prison I have under gone anger management and drug and alcohole consoling I have a defacto partner that has one child and I also have three children all born in Australia that I have contact with all the time and I also have a grandson. All of my family is here in Australia I have no one back in England. I am not proud of my past and I’m doing everything in my power to make myself a better person. I’m asking the Dept to give me a chance to prove that I am a changed person that is going to be law-abiding and a better person in the comunity. Like Ive said Im ashamed of my criminal past and doing everything in my power to change from the person I was. My children + de facto partner need me here in Australia for we are a very close family and it will destroy them if I am sent back to England. So I am asking please don’t cancel my visa and let me stay in Australia because Australia has been my home for 40 yrs. all I am asking for is a chance to prove I can change for the better. [Errors in original][15]

    [15] Exhibit RR1, 97.

  21. On 13 July 2017, in response to the notice of intention to consider cancellation of his visa which led to these proceedings, the Applicant said, in part:

    I honestly think the likleyhood of me reoffending is very very low. I’ve addressed my drug problem by doing N/A [Narcotics Anonymous]. Before these charges I was out of jail 4 years. And clean also for 4 yrs.[16]

    ……….

    In recent times I’ve gone about things. Really wasn’t putting my family first. Myself having done almost 4 years in N/A successfully for so I long I find only myself getting strength from doing well. I had a slip up and was incarcerated for 12 mth for a non serious crime. I took a silly option to use and put myself in trouble which I responded to immediately. Whilst in jail I’ve been back in N/A and church groups as well as working in a dispatched food handler in [gaol] this job is one many would love to be doing with high pay level and huge responsibility my turning up 7 days a week and doing N/A as well as dealing with my helping my partner & our kids & grandchildren it keeps my busy. I’ve not thought about using. Is a wrong in my life and lasted nearly 4 yrs and I did a silly non harmful crime it was a normal approach and with respect of law I ask for another chance as I’ve been in contact with community health and they will see me on a weekly basses for counselly sessions. It really is a systematic approach. I will give it 100% and find with a stigma purposing my life with an endurance and level of consistency. I have so much to be loving and happy for in life and wouldn’t take that chance again and again was silly. I have nothing to live for without my partner our kids and grandchildren I’m a role model. I finaly have to acknowledge my hardest truth, surpassing being a leader I am a good father and grandfather and have abberatted thought about doing some great things whilst being a resident in Australian I will be living with my family leading to be a greater role model I just have a couple of thing to work on I’m not … and I’ll approach these with a respect and purpose of all good things.[17]

    [errors in original]

    [16] Exhibit RR1, 82.

    [17] Exhibit RR1, 86-87.

  22. At the hearing the Applicant was asked to clarify if he had been “clean” by not using illegal drugs for four years prior to 2017 as he stated, he replied:

    “I wouldn’t say stopped taking them, but I wasn’t doing what I was usually doing, like, every day”.[18]

    He said that he has not taken any illegal drugs since his imprisonment in 2017. While in prison he had taken sleeping tablets and pain medication not prescribed for him as he had difficulty sleeping and suffered pain following dental treatment.

    [18] Transcript, 9 June 2020, 130.

  23. The Applicant intends to recommence the MERIT drug and alcohol program should he be released back into the community. He described the program, which aims to address drug and alcohol problems, as being an opportunity for him to seek support and counselling over his childhood abuse. He previously participated in the MERIT program for about two months before relapsing into drug use.[19]

    [19] Transcript 9 June 2020, 148.

  24. The Applicant said that he stopped taking part in the MERIT program in 2016 as he decided to relocate to another area in regional New South Wales in order to “clean himself up”.[20] He says that in addition to participating in the MERIT program if he is released, he plans to move out of the Illawarra region where he “will be away from old influences” and he and his partner would be closer to two of her children and grandchildren.

    [20] Transcript, 9 June 2020, 149.

  25. When he was in prison in 2017 the Applicant took part in an anger management and EQUIPS drug and alcohol management course.[21] He did not receive any counselling or course training the first time he was imprisoned[22] or previously.[23]

    [21] Transcript, 9 June 2020, 105.

    [22] Transcript, 9 June 2020, 108.

    [23] Transcript, 9 June 2020, 103.

  26. During his most recent time in prison and in detention, the Applicant participated in a methadone program. He took Suboxone for approximately six months before the hearing as an alternative to methadone which made him ill. He said that that Suboxone removes his temptation to take drugs.[24]

    [24] Transcript, 9 June 2020, 102.

  27. If he is free to do so, the Applicant plans to seek employment. He understands there may be positions vacant at a sawmill near where he plans to live.[25]

    [25] Transcript, 9 June 2020, 118.

  28. During the hearing the Applicant was asked why he considered he would not re-offend if released into the community. He replied, in part:

    After being in here [immigration detention], I know within my own heart there’s not a hope in hell that I’m going to go back in there and reoffend in any which way. Because I know if I did, well I’m not going to get another chance whatsoever. I’ll be out of the country and I am not willing to take that chance.[26]

    [26] Transcript, 9 June 2020, 110

    Statement of Ms JB, the Applicant’s partner

  29. Ms JB provided an undated statement which was attached to the Applicant’s request for revocation of the mandatory cancellation of his visa dated 4 July 2017.[27] She did not provide another statement to the Tribunal and did not give evidence.

    [27] Exhibit RR1, 71.

  30. Ms JB stated, in part:

    I am aware that [the Applicant] has a lot of trouble with the law. [The Applicant] has had issues with drug addiction. Leading up to the crimes for which he is now imprisoned he was free from drugs for three years. He attended Narcotics Anonymous regularly. Unfortunately [the Applicant] relapsed which resulted in him being arrested. Since he has been in prison [the Applicant] has personally addressed his drug problem and is again free from drugs.

    I have recently relocated to [redacted] N.S.W. This is still close enough to visit our families …… but far enough away from a life of drugs and crime. We have a great support network here consisting of family and friends. We are looking forward to starting our new life.[28]

    [28] Exhibit RR1, 88-89.

    Reports

  31. The Applicant was released from prison in November 2002. A Breach of Parole report dated July 2003[29] states that he had not attended drug and alcohol abuse programs as directed by his supervising officer. The Probation and Parole Officer recommended that:

    Due to [the Applicant’s] failure to attend for substance abuse and grief counselling as directed and as a condition of his Parole Order, his continued illicit drug use and his failure to notify this Service of his current address, revocation is recommended. [30]

    [29] Exhibit RR2, 262.

    [30] Exhibit RR2, 264.

  32. A Probation and Parole Service Immigration Report[31] dated 20 April 2012 was prepared prior to the June 2012 expiry of the non-parole period imposed on the Applicant. The Probation and Parole Officer wrote, in part:

    [The Applicant] has been in contact with offender services and programs on an individual basis and has been referred to the programs, ‘Getting SMART’ and ‘Managing Emotions’ and has completed the compulsory ‘Health Survival’ program. On 16 April 2012 [the Applicant] accepted a place on the Alcohol and Other Drug program ‘Getting SMART’; however this was only after contact with this Service regarding his immigration report. He had initially refused to do the program on 23 March 2012.[32]

    [31] Exhibit RR2, 304.

    [32] Exhibit RR2, 305.

  33. A pre-sentence report prepared for the Wollongong Local Court in October 2016[33] refers to the Applicant’s conduct in relation to a MERIT plan which was then in place:

    [The Applicant] was assessed by MERIT on the 29 August 2016 and formally accepted by the court on 30 August 2016.

    I advise that since commencing treatment with MERIT [the Applicant] has only attended one of the three scheduled appointments. MERIT have been unable to contact [the Applicant] since his initial appointment and he has not made contact with MERIT. His poor attendance and lack of communication are indicative of low motivation to make change.

    At assessment [the Applicant] signed a treatment agreement where he agreed to attend regular appointments and maintain contact with MERIT for the course of treatment. It is recommended [the Applicant] be removed from the MERIT program for non-compliance with the treatment agreement.

    [33] Exhibit RR3, 1032.

    Convictions involving violence

  34. The Applicant agrees that the convictions recorded in the National Police Certificate are accurate.

  35. In 2009 the Applicant was convicted of assault occasioning actual bodily harm during which he threatened the victim with a beer bottle and then struck him four times with a baseball bat. The Applicant said that he assaulted the victim in retaliation for an assault on himself by the victim; he claimed the victim had bitten his nose off. The Applicant said he was under the influence of painkilling medication when he assaulted the victim and that he was angry at the time.[34]

    [34] Transcript, 9 June 2020, 123-124.

  1. In the same year the Applicant was again convicted of assault occasioning actual bodily harm. The Applicant and another male with whom he shared a house, were involved in a fight. The Applicant was affected by alcohol. He says that he was “easily provoked” and “anger took over”.[35]

    [35] Transcript, 9 June 2020, 124.

  2. In 2015 the Applicant was convicted of assault occasioning actual bodily harm arising from an incident which occurred in January of that year. The Applicant pleaded guilty to the offence. The Police Facts stated that the assault was unprovoked.[36] When he gave evidence before us the Applicant said that the victim threw the first punch and that he pleaded guilty because he wanted “it over and done with and get it out of there”.[37] He acknowledged that he was wrong and should not have fought with the victim.

    [36] Exhibit RR2, 30.

    [37] Transcript, 9 June 2020, 126.

  3. The National Police Certificate shows that the Applicant appeared in court in relation to other charges of assault. We do not have details of these incidents and we do not take them into account in this application.[38]

    [38] Exhibit RR1, 29.

    The Applicant’s conduct in prison and in immigration detention

  4. During the hearing the Applicant was questioned as to his conduct in prison, particularly in relation to his possession (on separate occasions) of prescription drugs obtained from other inmates, smoking paraphernalia and a vitamin pill. The Applicant admitted obtaining the prescription drugs from others but denied possession of the smoking equipment. He said that he told prison officers that it belonged to him to protect another inmate who was about to appear in court.[39]

    [39] Transcript, 9 June 2020, 131-138.

  5. The Applicant was asked also about the records of the Villawood Detention Centre in which officers alleged he used threatening and abusive language towards them and other inmates. The Applicant denied the accuracy of some of the reports. Further he said that although he frequently used language some would find offensive, it was his manner of speaking and was not intended to cause offence or to intimidate.[40]

    [40] Transcript, 9 June 2020, 161-166; Exhibit RR4.

    Discussion

  6. The nature of the harm which we have determined would be occasioned to the community should the Applicant be released and engage in similar conduct is significant. It would involve the risk of serious personal injury and financial loss to others.

  7. Turning to consider the likelihood of the Applicant engaging in further such conduct, we accept the evidence of the Applicant that he believes that he will not re-offend nor engage in other serious conduct. We are satisfied also that, by reason of the time spent in prison and in immigration detention since February 2017, the Applicant has been able to reduce significantly the risk of alcohol and drug addiction influencing his future conduct. We are satisfied that he genuinely wishes to support his family. He will have the support of his partner and other family members in re-establishing himself in the community should he be free to do so.

  8. Notwithstanding the Applicant genuinely intends not to re-offend, we must take into account that he has a history of physical violence spanning several years and that the Applicant was formally warned on 7 March 2012 of the consequences of further offending on his visa status. Despite the Applicant stating at that time he had ‘addressed my drug and anger issues since I was in prison’ and was ‘a changed person that is going to be law abiding’, following that warning, the Applicant continued to offend including committing the violent offences of intimidate police officer and assault occasioning actual bodily harm.

  9. Although the Applicant has had the benefit of some courses to assist him in abstaining from the use of illicit drugs and to manage his anger, unfortunately the system has not afforded him greater opportunity for rehabilitation and the Applicant has not always availed himself of the opportunities offered to him. We accept that he intends to seek further help if he is released, but we do not have the benefit of details of what he proposes or the likely effects of any such assistance.

  10. The Applicant regarded himself as “clean” of drugs for some years prior to his last time in prison; clearly this was not the case. He has only managed to resist the temptation to use illegal drugs while in prison and detention. We cannot be satisfied that he will be able to avoid this temptation if he returns to live in the community and experience the pressures of assisting his family and finding and participating in employment. The Applicant acknowledged that his previous addiction to drugs presents him with a lifelong problem.

  11. The records of the Villawood Detention Centre suggest that, even recently, the Applicant’s conduct has been aggressive and threatening. However, the Applicant has denied the accuracy of some of the records and has offered explanations for his conduct in some instances. In these circumstances, and in the absence of evidence from the Officers who prepared the records, we do not take the Applicant’s conduct while in detention into account.

  12. On the basis of the evidence we have referred to we conclude that there is a reasonable likelihood that the Applicant will engage in further criminal or other serious conduct and therefore there is a significant risk of harm to members of the Australian community should the Applicant return to live in Australia outside the confines of prison and immigration detention. Having regard to the principles set out in paragraph 13.1 we find that the protection of the Australian community weighs very heavily against the cancellation of the revocation of the Applicant’s visa.

    PRIMARY CONSIDERATION 2: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

    Evidence of the Applicant

  13. The Applicant has a son, G, aged 16, and three grandchildren, all of whom are minors.

  14. G lives with his mother in Queensland. From age three until he was five, G was in the primary care of the Applicant. This arrangement ended when the Applicant was imprisoned in 2009. Thereafter, when he was free to do so, the Applicant regularly visited G in Queensland. He last saw his son about six months before he was imprisoned in 2017. They continue to speak by telephone on a weekly basis.

  15. The Applicant’s grandchildren are the children of his daughter. They are aged 10 years (Grandson T), four years (Grandson R) and two years (Granddaughter H).

  16. The Applicant has a close relationship with Grandson T who is 10 years old. T lives with his father, who is separated from the Applicant’s daughter. The Applicant has contact with his grandson by telephone.

  17. Grandchildren R and H are in the care of NSW Department of Community Services and live with their father’s parents. The Applicant is kept informed of their progress by their father with whom he has a good relationship.

  18. The Applicant’s partner has five or six minor grandchildren who live in regional New South Wales and who are cared for by their parents. The Applicant told the Tribunal that “[t]he kids look after their own kids”.[41] The Applicant is in regular contact with his partner’s children.[42]

    [41] Transcript, 9 June 2020, 158.

    [42] Transcript, 9 June 2020, 117.

  19. While we accept that the Applicant has genuine affection for his younger son, his grandchildren and his partner’s grandchildren, by reason of his imprisonment and detention, his role in their lives has been limited. Apart from the three years when he was the principal carer of his son, we are not satisfied that the Applicant has played an active role in the upbringing of the children. Nevertheless, we are satisfied that the Applicant would have a positive role in their lives if he was able to continue to live in Australia and his contribution to their welfare would be greater than if he was living in the United Kingdom.

  20. We are satisfied that the best interests of the Applicant’s younger son and the other minor children favour the revocation of the cancellation of the Applicant’s visa. The Minister agrees.

    PRIMARY CONSIDERATION 3: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

  21. Paragraph 13.3 of the Direction provides:

    (1)  The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government's views in this respect.

  22. In YNQY v Minister for Immigration and Border Protection,[43] Mortimer J said:

    76. In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.

    [43] [2017] FCA 1466.

  23. Since the judgement in YNQY, the Federal Court delivered its judgement in DKXY v Minister for Home Affairs.[44] After referring to the relevant paragraphs of the reasons in YNQY, one of which we have set out above, Griffiths J said:

    29. These paragraphs in YNQY appear in that part of her Honour’s judgment in which she was addressing a contention that the AAT had erred by failing to make findings and/or take into account as a primary consideration the expectations of the Australian community.

    30. In my respectful view, her Honour’s reasoning in [76] and [77] of YNQY would be plainly incorrect if this reasoning is read as stating that the primary consideration of expectations of the Australian community will always weigh against revocation. The Minister contended that the reasoning simply reflected the facts in YNQY and did not purport to be a construction of Direction 65 as suggesting that the expectations of the Australian community can never weigh in favour of an applicant …

    31. As [the Applicant] here pointed out, there are numerous statements in Direction No 65 which require the primary consideration of expectations of the Australian community to be assessed in the light of all the relevant circumstances which appertain to it and it has to be weighed against all other relevant considerations (while noting that the Direction requires that primary considerations be given more weight than other considerations). In an appropriate case, and depending upon all relevant circumstances, the expectations of the Australian community may not weigh against revocation of the mandatory visa cancellation. Undoubtedly, decision-makers who are bound to give effect to the Direction are required to have due regard to the Government’s view regarding community values, standards and expectations, as set out in, for example, cll 6.2 and 6.3 of the Direction, but nothing in the Direction indicates that community expectations will always favour non-revocation. Indeed, the totality of the relevant circumstances which bear upon the assessment and weighing of all three primary considerations and other considerations need to be considered, as is made clear in many clauses of the Direction, including those which are referred to in [23] above.

    (Emphasis in original.)

    [44] [2019] FCA 495.

  24. After referring to those paragraphs in Uelese v Minister for Immigration and Border Protection[45] relied upon by the primary Judge in YNQY to support the proposition that the primary consideration of the expectations of the Australian community will invariably weigh against revocation of a mandatory cancellation, Griffiths J continued:

    33. … There is nothing in these passages from Uelese which indicates that a primary decision-maker who is bound to apply the Direction cannot also take into account any material which is before the decision-maker which is relevant to an assessment of this primary consideration. The Government’s views have to be taken into account and given “due regard”, but so must all other circumstances which are relevant in the particular case. As Robertson J pointed out in the final sentence at [64] of Uelese, cl 9.3 of the Direction ends by stating that decision-makers should have “due regard” to the Government’s views on Australian community expectations. What amounts to “due regard” will necessarily require attention to be given to all relevant circumstances in the particular case which bear upon a general assessment of Australian community expectations.

    [45] (2016) 248 FCR 296.

  25. The Full Court of the Federal Court gave further consideration to this question in FYBR v Minister for Home Affairs and Another.[46] In that matter the Court considered clause 11.3 of Direction 65, the predecessor to the Direction which is in the same terms as clause 13.3 of the Direction currently in force.

    [46] [2019] FCAFC 185.

  26. In his reasons for dismissing the appeal, Charlesworth J said, in part:

    [61] The proper construction of cl 11.3 turns on two questions. The first is whether or not the clause expresses an expectation deemed by the government to be held by the Australian community. The second is whether the clause gives expression to an expectation that must of its nature weigh against the grant of a visa in every case.

    …

    [67] To the extent that cl 11.3 contains a statement of the expectations of the Australian community, the clause is “deeming”, in the sense explained by Mortimer J in the limited passage from YNQY upon which the Tribunal relied at [54] of its reasons (extracted at [20] above). It is not for the decision-maker to make his or her own assessment of the community expectations and to give that assessment weight as a “primary consideration”. I do not understand the judgment of Griffiths J in DKXY to differ from that of Mortimer J in YNQY in that respect. For my part, I prefer to describe the clause as imputing or ascribing to the whole of the Australian community an expectation that wholly aligns with the expectation of the executive government of the day in respect of its subject matter.

    …

    [75] Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.

    [76] 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 in the ultimate exercise of his or her discretion. Flexibility in the decision-making process is reinforced by cl 8(4), which requires no more than that the government’s assessment of community expectations is “generally” to be afforded greater weight than the “other considerations” listed non-exhaustively in cl 12. The word “generally” contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors arising for consideration under cl 12. There may be cases in which it is not appropriate to give the community expectations discerned under cl 11.3 any weight at all.

    (emphasis added)

  27. In agreeing that the appeal should be dismissed, Steward J said, in part:

    [90] However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker:…

    [91] The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.

    [92] There is also an important structural consideration, which is identified in the reasons of the primary judge (at [39]–[41]) and Charlesworth J (at [73]). It is that community expectations are to be taken into consideration (as a primary consideration) with other factors to inform the decision-maker’s decision. The consequence of that is twofold. First, not every factor relevant to the decision will inform the content of community expectations and, second, the ultimate decision may differ from the community expectations.

    …

    [102] It is difficult to conceive of a case where an unfavourable character assessment, whether on the basis of the commission of an offence or the risk that an offence will be committed, will be other than against the grant of a visa. In any particular case, the weight to be attached to that consideration because of the particular circumstances of the character assessment may be slight. In another case, because of the severity of the character assessment, the weight may be substantial. Thus, the character assessment, even through the prism of community expectations, may not be decisively against the applicant. In many cases it will not be. That is why the decision-maker must assess what is “appropriate” in the particular circumstances. Nevertheless, an adverse character assessment is necessarily against a visa applicant, to some degree or other; no one will be awarded a visa because they are of bad character.

    [103] The community expectations, as I construe cl 11.3(1), speak normatively; they are to be applied in every case but they are not expressed in relation to any particular case. This means that it would be wrong for the decision-maker to ask themselves a question along the lines of “what would the community expect in this case?” It is also incorrect to construe the community expectation as expressing or requiring, in any particular case, either the grant or the refusal of the visa. In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely, but in neither case and in all the area in – between the community expectation will not express or require one or the other. That is a matter for the decision-maker.

    (emphasis added)

    Discussion

  1. We will give further consideration to the expectations of the Australian community later in these reasons.

    OTHER CONSIDERATIONS SET OUT IN DIRECTION 79

  2. At paragraph 34 of these reasons we have set out paragraph 14 of the Direction, which mandates that we take into account other considerations as are relevant.

    International non-refoulement obligations

  3. There is no evidence to suggest that Australia’s international non-refoulement obligations are of relevance in this application or that Australia owes any such obligations to the Applicant.

    Strength, nature and duration of ties to Australia

  4. Paragraph 14.2 of the Direction provides:

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

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    More weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

  5. The Applicant’s ties to Australia are very strong. Australia has been his home since he arrived here as a very young child and has resided here permanently ever since, having never left Australia. He grew up believing he was an Australian and has always regarded Australia as his home. His partner is here, as are his adult son, adult daughter, minor son, grandchildren, four brothers, two sisters, eight uncles and aunts, 17 nieces and eight cousins.

    Evidence of the Applicant

  6. In his statement of 14 March 2012[47] the Applicant wrote:

    My children + de facto partner need me here in Australia for we are a very close family and it will destroy them if I am sent back to England. So I am asking please don’t cancel my visa and let me stay in Australia because Australia has been my home for 40 yrs. all I am asking for is a chance to prove I can change for the better.

    [47] Exhibit RR1, 97-98.

  7. The Applicant’s partner suffers from a mental illness for which she receives weekly counselling and medication. On the day of the hearing she was consulting a specialist in relation to a chest and lung condition.

  8. The Applicant and his partner are very close. He believes his partner will be unable to cope should he return to the United Kingdom. Her health has deteriorated since the Applicant has been in detention[48] and she is struggling to manage under the present circumstances.[49]

    [48] Transcript, 9 June 2020, 102.

    [49] Transcript, 9 June 2020, 159-160.

  9. In the past the Applicant and his partner took illegal drugs together but so far as he is aware, she has not used illegal drugs for the past five years. She occasionally attends Narcotics Anonymous meetings.

  10. The Applicant’s eldest son is 29 years old and is in prison. His daughter is 27 years old. He speaks to her on a weekly basis. She has drug dependency problems which the Applicant wishes to help her manage; he has persuaded her to join the MERIT program.

  11. The Applicant is afraid of the effect his deportation would have on his family. His daughter has been the victim of domestic violence and two of her children have been taken into care by the Departments of Community Services recently. She needs the Applicant’s support.[50]

    Evidence of Ms JB, Applicant’s partner

    In her statement made in 2017 in support of the Applicant’s request for revocation of the cancellation of his visa, Ms JB wrote, in part:

    I have been in a relationship with [the Applicant] for the past seven years. We have a blended family. [The Applicant] has three children and two grandchildren. He will also become a grandfather again in August 2017. He is very close to both his children and grandchildren. The would be devastated to lose their Dad and Poppy. I have six children and four Grandchildren. My youngest three consider [the Applicant] a father figure as they have very little to do with their biological father. My children and Grandchildren love [the Applicant] very much. Our families would suffer greatly as their [sic] is little chance of being able to travel to England to see him.

    …

    I have recently relocated to [redacted] N.S.W. This is still close enough to visit our families in Wollongong but far enough away from a life of drugs and crime. We have a great support network here consisting of family and friends. We are looking forward to starting our new life.

    I suffer from depression and anxiety. If [the Applicant] was to be removed from Australia I don’t know how I would cope as he is my shoulder and rock to lean on most of the time. I truly believe my condition would worsen if [the Applicant] was to leave.[51]

    [50] Transcript, 9 June 2020, 101 and 104.

    [51] Exhibit RR1, 88-89.

    Evidence of Mr RC, the Applicant’s adult stepson

  12. Mr RC provided a statement dated 15 September 2018.[52] He did not give evidence.

    [52] Exhibit AA4.

  13. Mr RC stated, in part:

    [The Applicant] has been my step father for the last seven (7) years. I see [the Applicant] as a father figure as I have no relationship with my biological father.

    It would hurt if [the Applicant] leaves as it would be like losing another father. He has emotionally helped me through life and replaces the father that I don’t have.

    If [the Applicant] is deported to England I fear I would never see him again as there is little to no chance of me being able to go and see him.

    Not only am I worried about how his deportation will affect my life, I am also worried about how it would affect my mum. My mothers’ mental health will be of concern to me if [the Applicant] is removed from Australia and she will not be able to afford to follow him across the world. His deportation will also affect our family in a negative way.

    Statement of Ms BG, the Applicant’s friend

  14. Ms BG provided an undated statement which was filed in the Tribunal 4 October 2018.[53] She did not give evidence.

    [53] Exhibit AA1.

  15. Ms BG stated, in part:

    I have known [the Applicant] for over 15yrs and in that time [the Applicant] has always been there for me as he is a kind, big hearted, genuine man.

    Through all [the Applicant’s] ups and down in life he has always cared about other people. [The Applicant] hasn’t had the easiest life but has always managed to pick himself up and tried to stay positive.

    So many people including myself and [the Applicant’s] children/grand children are absolutely devastated in that [the Applicant] could potentially be deported. It has affected both [the Applicant] and all of his loved ones gravely.

    Statement of Ms MS, the Applicant’s sister

  16. Ms MS provided a statement dated 1 September 2018.[54] She did not give evidence.

    [54] Exhibit AA3.

  17. She stated, in part:

    [The Applicant] is my brother I grew up with him all my life. [The Applicant] has been a solid support for me and my kids his nieces and nephews. I have only a handful of family members that are involved in my life & kids life. Family to me is a very special thing and to have my brother [the Applicant] taking away from us will be very devastating and to know it will be to a foreign country would make it inconsolable.[55]

    (Errors in original).

    The Applicant’s service as a volunteer

  18. The Applicant has been a volunteer worker in the Salvation Army’s clothing warehouse for 9 years when he was not in custody. In addition he assisted new volunteers who worked with him.[56]

    [56] Exhibit RR1, 83.

    The Applicant’s employment in prison

  19. While in prison the Applicant worked in the kitchen assisting in the preparation and dispatch of meals. This was a full-time job in which he performed very well. References from two Overseers of the kitchen staff confirmed this.[57]

    [57] Exhibit RR1, 90-91.

  20. Nigel Bill is the Kitchen Overseer at Goulburn jail and he writes in an undated reference that the Applicant worked in the CSI Kitchen where he “often goes beyond his role to assist others, which makes him a popular and respected team member”. Chas Ruffles, also a Kitchen Overseer, writes in similar terms noting the Applicant’s communication skills and honesty.[58]

    [58] Exhibit RR1, 89-90.

    Impact on Australian business interests

  21. There is no evidence before the Tribunal to suggest that refusing to revoke the mandatory cancellation would have a significant impact on Australian business interests.

    Impact on victims

  22. We do not have sufficient evidence to assess the impact of the Applicant’s behaviour on the victims of his criminal conduct, other than that we are satisfied that the victims of his crimes variously suffered physical harm, emotional distress and financial loss.

    Extent of impediments the Applicant may face if he is removed from Australia

  23. If the Applicant is removed from Australia he will be returned to the United Kingdom. He is a UK citizen and speaks English. Although he left that country as a very young child, he would be returning to a society very similar to that in which he has grown up.

    The Applicant’s evidence

  24. In response to a question in his Personal Circumstances form as to the problems he would face if he had to return to the United Kingdom, the Applicant said:

    No support

    No accommodation

    No employment

    No stability.[59]

    When he gave evidence the Applicant said that he was “petrified” of flying.[60]

    Statement of Mrs JC, the Applicant’s maternal aunt[61]

    [59] Exhibit RR1, 85.

    [60] Transcript, 9 June 2020, 101.

    [61] Exhibit AA2.

  25. In a statement dated 19 March 2018 Mrs JC said, in part:

    [The Applicant] has no family left in England on either side of his parents. He would be totally alone.

    Discussion

  26. Although the Applicant provided only limited information as to the impediments he would face if he returned to the United Kingdom, we are satisfied that they would be substantial. He does not have any family members in the United Kingdom and would be denied any physical contact with his family in Australia. They would be limited in the emotional support they could provide remotely, and it is unlikely they would be able to provide any financial support.

  27. Given the effects of the COVID-19 pandemic and the Applicant’s criminal record and limited work experience, we are satisfied that it would be very difficult for him to obtain employment and housing. It is likely that he would have to rely on welfare and charity support.

  28. We are satisfied that consideration of the impediments the Applicant would face if he is returned to live in the United Kingdom weighs heavily in favor of revoking the cancellation of his visa.

    G.   THE BALANCING EXERCISE

  29. In balancing the various considerations, the need to protect the Australian community weighs very heavily in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa.

  30. The Applicant has an extremely long criminal history, including convictions for violence. A term of imprisonment and a warning that he may be deported did not prevent his repeated re-offending. He has received only limited professional help to overcome his alcohol and drug abuse which raises concerns as to his ability to avoid reverting to these habits if he is released into the community. In part by reason of his being in immigration detention, his plans for further treatment are unclear.

  31. In view of the Applicant’s long list of convictions over many years and the risk of significant harm to individuals should the Applicant re-offend, it is appropriate to act in accordance with the deemed community expectation that the Applicant’s visa should remain cancelled.

  32. The considerations outlined above have to be balanced against the best interests of the minor children we have referred to, particularly the Applicant’s 15-year-old son. The interests of these children weigh strongly in favour of revoking the cancellation, although the weight to be attributed to this consideration is reduced by the fact that the Applicant has played a very limited role of parent/grandparent for some years by reason of his incarceration and detention.

  33. It is a conspicuous reality that the Applicant has almost spent his entire life in Australia.  Equally, in following the Direction, the considerations which weigh against revoking the mandatory cancellation outweigh those which support doing so.  We appreciate that following the Direction gives rise to an outcome whereby the Applicant’s risk to the Australian community is given greater weight than the community’s role in determining the course of his life. This may be the intent of the Direction, but it is arguably a sad irony that the community which failed to protect the Applicant from the abuse he suffered as a child is afforded the protection of having him removed as an adult.  

  34. We are satisfied that adult members of the Applicant’s family will be adversely affected, particularly the Applicant’s partner who is the person likely to be most affected by his deportation. Although we do not have detailed evidence, we are satisfied that she does have several health conditions which make it likely that her well-being would be adversely affected.

  35. Finally, the significance of the impediments that the Applicant would suffer if he is returned to the United Kingdom cause us to conclude that this consideration also weighs in favour of revoking the cancellation.

  36. Regrettably for the Applicant and his family, having considered all the circumstances of this matter we conclude that the risk to the Australian community which would be caused by revoking the cancellation of the Applicant’s visa is unacceptable. The need to protect the community from this risk together with the expectations of the community outweigh the other considerations to which we have referred.

    H. CONCLUSION

  37. The reviewable decision made 17 August 2018, being the decision of a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs not to revoke the cancellation of the Applicant’s Class BF Transitional (Permanent) visa, will be affirmed.

I certify that the preceding 125 (one hundred and twenty -five) paragraphs are a true copy of the reasons for the decision herein of Deputy President J W Constance and Mr S Evans, Member

..............................[SGD]..........................................

Associate

Dated: 21 August 2020

Date(s) of hearing: 9 June 2020
Applicant: In person
Solicitors for the Respondent: M Perotti, Sparke Helmore

Schedule 1

Court date

Offence and court result

21 February 2017

Intimidate police officer in execution of duty: 5 months imprisonment

Have custody of an offensive implement in a public place: 3 months imprisonment

Dishonestly obtain property by deception: 12 months imprisonment

Larceny: 12 months imprisonment

Shoplifting: 12 months imprisonment

Conviction confirmed on appeal on 4 July 2017.

4 September 2015

Assault occasioning actual bodily harm: 12 months s 9 bond

Make/furnish a statement which is false/misleading: $250 fine

25 March 2014

Custody of knife in public place: $1,000

29 January 2013

Drive while disqualified from holding a licence: 6 months imprisonment

22 June 2011

Drive while disqualified from holding a licence: 6 months imprisonment, license disqualified for 2 years

Destroy or damage property: 3 months imprisonment, $910.94 compensation

Conviction confirmed on appeal on 29 July 2011

12 August 2009

Fail to appear in accordance with bail granted undertaking: 1 month imprisonment

Assault occasioning actual bodily harm: 8 months imprisonment

Special category driver drive with special range prescribed concentration of alcohol: $500 fine

Drive while disqualified: 6 months imprisonment, license disqualified for 2 years

 Assault occasioning actual bodily harm: 16 months imprisonment

 Assault occasioning actual bodily harm (DV): 6 months imprisonment

24 March 2009: 

Special category driver drive with special range prescribed concentration of alcohol: $500 fine, disqualification 12 months

4 September 2008

Good suspected stolen: $300 fine

25 June 2007

Make/furnish statement which is false/misleading: $300 fine

24 November 2006

Common assault: 6 months suspended sentence

Destroy or damage property: $400 fine

4 October 2005

Steal property in dwelling-house: 12 months imprisonment

Larceny as bailee property value >$2,000: $500 fine

13 September 2004

Drive while disqualified from holding a licence: 18 months imprisonment

Conviction confirmed on appeal on 5 November 2004

5 July 2004

Negligent driving not occasioning death/gbh: $250 fine

18 July 2002 

Fraudulent appropriation with no original fraudulent intent: 18 months imprisonment

3 May 2002 

Drive while disqualified from holding a licence: 6 months imprisonment and license disqualified for 2 years

Destroy or damage property: rising of the court

Contravene ADVO: rising of the court

12 April 2002

Drive while disqualified from holding a licence: 9 months imprisonment and license disqualified for 6 months

Custody of knife in public place: $50 fine

Obtain money by deception: 9 months imprisonment

6 October 2000

Drive while disqualified from holding a licence: 6 months imprisonment, license disqualified for 2 years

Breach of community service order:

25 February 2000

Assault: 6 months periodic detention

Drive whilst disqualified: 3 months periodic detention

Assault: 75 hours community service

Unlicensed driver: periodic detention, licence disqualified for 6 months

Malicious damage: 75 hours community service

Uninsured vehicle: $300 fine

Unregistered vehicle: $300 fine

Common assault: 75 hours community service

23 June 1999

AVO by virtue of warrant: Order made for two years

20 April 1999

Drive without licence: $250 fine, licence disqualified for 6 months

Unlawful possession (apprehension warrant): 3 months allowed to pay

19 February 1998

Assault: $600 fine

3 April 1997

Carry cutting weapon: s 558 recognisance for 18 months, $500 fine

Assault: $400 fine

Fail to appear: $400 fine

21 January 1997

Unlawful possession: convicted and $750 fine

28 April 1994

 Breach of community service order: 200 hours community service

9 March 1994

Drive whilst cancelled: $100 fine, license disqualified for 12 months

Drive unregistered: $100 fine

Drive uninsured: $200 fine

19 October 1993

Receiving: convicted, 18 months’ probation and 100 hours community service

28 September 1993

Possession of thing used in connection with smoking dangerous drug: convicted and $150 fine

28 April 1993

Resist arrest: $150 fine

Offensive conduct: $100 fine

Carry cutting weapon: $200 fine

5 April 1993

Assault occasioning actual bodily harm: $400 fine

Malicious damage: $250 fine and $964.50 compensation

Common assault: $150 fine

17 June 1992

Drive while disqualified: $150 fine, licence disqualified for 6 months

26 February 1992

Assault: fixed term 6 months

Malicious damaged: fixed term 1 month

Conviction confirmed on appeal on 14 August 1992

17 May 1991

Mid prescribed concentration of alcohol: $500 fine, licence disqualified for 12 months

Unlicensed drier: $200 fine

4 September 1990

Offensive conduct: $500 fine

27 March 1990

Offensive conduct: $300 fine

20 February 1990

Assault police: s 558 recognisance for 12 months


Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

Legal Concepts

  • Judicial Review

  • Procedural Fairness

  • Statutory Construction

  • Standing

  • Natural Justice

  • Jurisdiction

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Cases Cited

6

Statutory Material Cited

0

Marzano v Minister for Immigration and Border Protection [2016] FCA 1180
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466