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

[2021] AATA 3040

Fejzic and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3040 (24 August 2021)

Division:GENERAL DIVISION

File Number(s):      2021/3857

Re:Mr Armin Fejzic

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mr Rob Reitano, Member

Date:24 August 2021

Place:Sydney

I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Armin Fejzic’s Refugee (Class BA) (Subclass 200) visa.

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

Mr Rob Reitano, Member

CATCHWORDS

MIGRATION – mandatory cancellation of visa – where visa was cancelled under section 501(1) because applicant did not pass character test – substantial criminal record – drug related offences – Ministerial Direction No. 90 – primary considerations – protection of the Australian community – supply of methamphetamine – consequence and risk of reoffending – network of support – best interests of minor children – expectations of the Australian community – ties to the Australian community – impediments if returned  – decision set aside and substituted

LEGISLATION

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

Drug Misuse and Trafficking Act 1985 (NSW) s 23A

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Hands v Minister for Immigration and Border Protection [2018] FCAFC 225

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Direction No. 90 – 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

Mr Rob Reitano, Member

24 August 2021

1. On 15 May 2020 the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Minister) was required by s 501(3A) of the Migration Act 1958 (Cth) (the Act) to cancel Armin Fejzic’s (Mr Fejzic) Refugee (Class BA) (Subclass 200) visa (visa) because Mr Fejzic was in a custodial institution, serving a three year full-time sentence because he had committed an offence involving the ongoing supply of methylamphetamine.

2. On 18 May 2020 taking up the Minister’s invitation which had been made only a few days before, Mr Fejzic made representations to the Minister about why the Minister should revoke the visa cancellation. Those representations were considered by a delegate of the Minister who on 7 June 2021 decided to refuse to revoke the cancellation.

3. Again, only a few days later Mr Fejzic applied to the Tribunal asking the Tribunal to review the delegate’s decision, requesting the Tribunal to set aside the delegate’s decision and make in its place a decision revoking the cancellation.

4. I have decided to set aside the delegate’s decision and to revoke the cancellation of the visa because I am satisfied that there is another reason why the cancellation of the visa should be revoked. It is necessary to explain my decision.

   BACKGROUND

5. Mr Fejzic was born in Visoko in Bosnia and Herzegovina in 1984. In about 1992 he and his family left Bosnia and Herzegovina for Croatia. In early 2000, when he was only 15 years of age, he came to Australia. He came to Australia with his mother (Hanifa), older brother (Mahir), younger sister (Ajla) and younger half-brother (Ajdin). His father had died by suicide before the family came to Australia. After arriving in Australia, his mother had two daughters (Neda and Anna-Maria) and a son (Damir) from another marriage. His mother and all of his siblings are Australian citizens except for Mahir and Ajla. Mahir and Ajla are permanent residents of Australia. Mr Fejzic has six nieces and nephews, the sons and daughters of his siblings who live in Australia and who are all Australian citizens.

6. About ten years after he arrived in Australia Mr Fejzic took up with Ms Crystal Lamont. Ms Crystal Lamont is an Australian citizen and has a daughter, Ms Shaylee Frost, and a son, from a previous relationship. They are now 18 and 14 years of age. They too are Australian citizens. Mr Fejzic took on the role of parent for both of them, as the relationship with Ms Crystal Lamont developed. Together, Ms Crystal Lamont and Mr Fejzic had four sons who are now 9, 8, 4 and 2 years of age. In these reasons I will refer to Mr Fejzic’s biological children from oldest to youngest as ‘first child’, ‘second child’, ‘third child’ and ‘fourth child’. I will refer to Ms Crystal Lamont’s son from her previous relationship as ‘the oldest child’. No disrespect to anyone is intended by doing that, I am simply mindful of the fact that they are children.

7. Mr Fejzic worked fulltime as a forklift driver and machine operator until about the time his second son was born in April 2013 when he ended his time as a fulltime employee to take up the role of fulltime carer for the children. This was a consequence of Ms Crystal Lamont’s mental illness: she was suffering from depression. At some stage after Mr Fejzic became a house husband, Ms Crystal Lamont developed an addiction to methamphetamine. A consequence of her addiction was that she would often go out late at night apparently in search of or to take drugs, or perhaps rather obviously do both those things. 

8. In the four weeks or so after 18 June 2019, Mr Fejzic supplied on 23 separate occasions a total of 244gms of methylamphetamine. Over the same period on about eight occasions, he also supplied a total of 163gms of cannabis. When he was arrested on 15 August 2019, the police found he had $810 in cash which was some of the  proceeds of his illegal drug supply activities, two tasers which are were probably associated with such activities and some scales and bags relevant to the preparation for drug supply. There was also found some smaller quantities of cannabis, methylamphetamine and MDMA. He was arrested, went into custody on 15 August 2019 and has not since then been released.

9. Ms Crystal Lamont was also arrested and she too it seems was detained in custody on the same day. I do not know a great deal about what she was charged or convicted of, but it is clear that they too were drug related offences and most likely similar offences to those with which Mr Fejzic was charged and eventually convicted. She was imprisoned although recently has been released and is, because of the pandemic, in quarantine. I was told that she will move to a rehabilitation centre shortly for about six months. It is not known presently what her plans for the future are once she has completed her rehabilitation.

10. After their parents were arrested, the four young boys were placed in the care of Mrs Vicki and Mr Gary Lamont who are Ms Crystal Lamont’s parents. At some stage the Department of Communities and Justice (DCJ) prepared care plans for each child and applied for guardianship orders. On 24 April 2020 orders were made appointing Mrs Vicki and Mr Gary Lamont as guardians of the children until the children turn 18 years of age. The care plans for the children provided that the children were to have a minimum of four supervised visits with Mr Fejzic each year. I will say something more about the orders and the care plans later. After the arrest of their mother and Mr Fejzic, Shaylee Frost and the oldest child went to live with their biological father.

11. On 23 April 2020 Mr Fejzic was convicted of an array of offences that related to his drug supply activities. The most serious of his convictions was for the supply of 244gms of methylamphetamine on an ongoing basis contrary to s 23A of the Drug Misuse and Trafficking Act 1985 (NSW). Mr Fejzic was sentenced to three years full-time imprisonment for that offence which sentence took into account the other drug related offences that concerned the equipment and other drugs and money he had in his possession. He received a one month sentence for each of the two offences that related to the possession of the tasers. I will return to say a little more about Mr Fejzic’s convictions and what the sentencing Judge had to say when I consider matters relevant to his criminal offending.

12. And so, once Mr Fejzic found himself in Dawn de Loas Correctional Centre serving that sentence and the matter was looked at by the Minister, his visa was cancelled as it was required to be because of the length of his sentence and the fact of his then serving it on a full time basis.

    THE TRIBUNAL’S ROLE

13. The Tribunal is required to consider whether it is satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’ because s.501CA(4)(b)(ii) provides that as the only basis available for revocation of the cancellation for Mr Fejzic. The only other basis upon which the decision to cancel the visa could potentially be revoked, passing the character test in s.501, is not available to Mr Fejzic  because he has a ‘substantial criminal record’ as a result of his sentence to three years imprisonment which on its own and without more means he fails the character test in s 501 the Act.

14. I am required to be satisfied that there is another reason to set aside the cancellation of the visa which involves making an evaluative judgment. I must be satisfied about the existence of ‘another reason’ which, in general terms, requires identification of a rational or reasoned basis or justification for undoing the visa cancellation. In simple terms, the issue the Tribunal is required to address is whether it is satisfied that there is such ‘another reason’.

    DIRECTION 90

15. To assist in deciding about whether there is ‘another reason’ the Minister issued Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Direction). The Direction commenced on 15 April 2021. The Tribunal is required by s 499(2A) of the Act to comply with the Direction when it performs its functions and exercises its powers.

16. The purpose of the Direction is to provide guidance to decision-makers. The Direction identifies principles which provide a framework to decide whether a decision to revoke a mandatory cancellation should be made. The Direction also refers to considerations which are matters that must be considered. The principles inform the matters to be considered. I will refer to the principles where it is necessary, but I will not set them out here.

17. The Direction refers to two categories of matters the Tribunal must consider: ‘primary considerations’ and ‘other considerations’. The ‘primary considerations’ are:

    ·the protection of the Australian community from criminal or other serious conduct;

    ·whether the conduct engaged in constituted family violence;

    ·the best interests of minor children in Australia; and

    ·the expectations of the Australian community.

18. The ‘other considerations’ include:

    ·international non-refoulement obligations;

    ·the extent of impediments if a non-citizen is removed from Australia;

    ·the impact on victims;

    ·links to the Australian community including the strength, nature and duration of ties to Australia; and impact on Australian business interests.

19. Other matters may be relevant so that they may be ‘other considerations’ although they are naturally enough constrained to things that rationally inform the evaluation to be made about whether there is ‘another reason’.

20. The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’ The use of the word ‘generally’ self-evidently contemplates cases where things might be different’.[1] The inquiry is:

    ‘whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.’[2]

    [1] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).

    [2] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].

21. The Direction says that ‘one or more primary considerations may outweigh other primary considerations.’ These are all matters for the decision maker acting rationally and reasonably to assess in making a decision.

22. The obligation to consider carries recognition that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[3]  ‘Consideration’ is important because of the subject matter with which the decision is dealing which potentially involves the exclusion from Australia of someone who may have lived here for many years and has spent most of their life in Australia. A decision to exclude them from Australia not only has ramifications for the former visa holder but also their family and others in the community with whom they are engaged which is especially important where the visa holder has been in Australia for a long time. Likewise, ‘consideration’ is important where the conduct to be addressed is serious conduct of a criminal kind which may, if the person is to stay in Australia have a potentially significant adverse effect upon the community generally.

    [3] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].

23. I will address the relevant considerations having regard to the fact that they are the considerations which both parties treated as relevant and which I too consider relevant.

    PROTECTION OF THE AUSTRALIAN COMMUNITY

24. The Direction says that I must ‘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’. It says I must have regard to the fact that remaining in Australia is a privilege that confers the expectation that non-citizens will obey and respect Australian law and institutions and will not harm the community. There are two aspects to this consideration: the nature and seriousness of the conduct of an applicant and the risk the community faces should that applicant re-offend. I will consider them separately.

    THE OFFENCES ARE SERIOUS

25. The main offence which Mr Fejzic was sentenced for was the supply of methamphetamine on an ongoing basis, but it should not be forgotten that there were a number of related offences that were committed by him that were taken into account when he was sentenced. The other offences involved the supply of cannabis, MDMA and a smaller quantity of methamphetamine, having in his possession proceeds of crime, tasers and equipment relevant to the supply of illicit drugs.

26. The offence of the supply of methamphetamine on an ongoing basis is objectively a serious criminal offence attracting a maximum penalty of 20 years imprisonment. The other offences are less serious attracting lesser penalties. The sentence of three years imprisonment was imposed for the supply on an ongoing basis offence but took into consideration all of the other offences, but that in no way detracts from the seriousness of that offence. The serious social consequences of supplying methamphetamine and other illicit drugs which are well well-known involving death, serious injury, emotional trauma and social dislocation, the removal of large social resources away from others in need reflect to some degree the seriousness of the offending.

27. The supply on an ongoing basis offence was committed over about one month. It was planned as the existence of the equipment and the tasers suggest. It involved 23 separate instances of supply (and eight instances of the supply of other drugs). There was no evidence when Mr Fejzic was sentenced about the value of the methamphetamine or other drugs that Mr Fejzic was involved in supplying. I had some evidence that at the time of Mr Fejzic’s offending methamphetamine sold for about $250 a gram which puts the value of Mr Fejzic quantity at about $60,000. Mr Fejzic said he thought the price was more like $150 a gram when he was selling which would value what he was selling at something like $40,000. It is not clear from the material how much Mr Fejzic stood to gain, that is whether he kept all of that money or some of it was to be passed on to others who had supplied to Mr Fejzic. The amount of money involved was significant.

28. There were two file notes recording some information provided to the Minister about Mr Fejzic’s offending which were dated 26 February 2021 and 8 April 2021, that is about 18 months after the offences were committed. They were said to contain police information about Mr Fejzic’s offences. The second file note suggested that Mr Fejzic was ‘the leader who made contact with the supplier in Melbourne’ and a ‘significant supplier for the regional area of Albury/Wodonga’. It was also said that ‘his arrest saw an immediate drop in the level of drugs available in the area and that there was a significant reduction in the amount of the drug being available both because Mr Fejzic was no longer supplying and other suppliers became worried that they might be targeted by police’.

29. Those facts were not in evidence when Mr Fejzic was sentenced. There was no firsthand evidence about them. I would not act on the untested evidence in a file note generated well after the offending conduct and the police investigation because I simply have no way of knowing whether the information is accurate or not. The fact that there was a decline in drug related offending after Mr Fejzic’s arrest is a little unsurprising given the evidence that the arrest of Mr Fejzic and Ms Crystal Lamont was across the newspapers on the days after his arrest. In any event, the information in the file notes would only add incrementally to the seriousness of Mr Fejzic’s offending which I am satisfied was serious.

30. There were some mitigating factors that affected the sentence imposed. The context was of a person who had no previous record at all of criminal offending. The motivation for his offending was, he told the District Court, to help fund Ms Crystal Lamont’s drug habit and keep her at home. The sentencing Judge was sceptical about that. I am too. At the time Mr Fejzic was receiving only Centrelink benefits and was the carer for six young children, the youngest who had only been born a month or so earlier. Money was more likely than not scarce. It is likely to have been the most significant and obvious reason for the offending.

31. The sentencing Judge considered that the matter fell below the midrange of seriousness but well above the low range because of the other offences that were taken into account. That assessment reflects that the offences are serious especially the supply on an ongoing basis offence but not the most serious of their kind. I proceed on the basis that Mr Fejzic’s offences are to be regarded as serious.

    THE CONSEQUENCE AND RISK OF REOFFENDING

32. The Direction says that I am required to consider the risk to the community should Mr Fejzic be permitted to remain in the community and if he were to engage in further offending. There are two aspects to this: first, the nature of the harm to individuals or the Australian community should Mr Fejzic engage in further offending and, second, the likelihood of Mr Fejzic engaging in further criminal offending, having regard to information and evidence concerning that and evidence of rehabilitation. 

33. The harm resulting from further offences is likely to be very serious. The personal and the social ramifications for members of the community, not simply those participating in the use of methamphetamine and other illicit ‘recreational’ drugs, is well known and well documented even if regard is limited to decisions of this Tribunal. It affects the participants in illicit drug use for whom there are often serious, even catastrophic consequences. Their families and friends are very often left to deal with the aftermath. Those families and others who are more often than not the innocent victim of crimes associated with drug use. Those crimes often involve personal violence or death which is simply the product of their taking drugs of addiction or from the never ending search for resources to aid them in satisfying their addiction. The other spectre is that of death or serious injury from things like motor vehicle accidents and the like which are the result of inebriation. There was evidence that the consequences are greater in regional and outlying centres because of the greater prevalence of methamphetamine use in regional centres.

1. I am satisfied that the consequences of any like offences which if committed by Mr Fejzic in the future would be substantial, long lasting, and most likely will be very serious.

2. The other aspect of this part of this consideration is the likelihood of reoffending. There are very many matters that point in the direction that the likelihood of Mr Fejzic re-offending is not high at all.

3. First, is a matter which I give some considerable weight is the sentencing Judges assessment that ‘it is highly unlikely that he will come back before a Court’. That assessment by a Judge well skilled and knowledgeable in criminal sentencing and offending carries weight. It is not just the sentencing Judge’s experience that counts, but also that there seems to be a firm basis upon which he formed that view which I deal with next.

4. Second, is the range of matters that are likely to have informed that assessment: Mr Fejzic’s contrition and remorse, the fact that the offences were his first offences of any kind, the fact that he was about 35 years of age, a late age for the commencement of a criminal career, and in particular the fact of the children he wished to care for upon his re-entry to the community. That last factor would not of itself be so weighty had it not been the case that for the six or so years leading up to offences he was the children’s primary carer.

5. Third, Mr Fejzic had some understanding of what he did that was wrong and took responsibility for his actions. He described his offences as involving a ‘stupid and dumb act’. He said in his representations to the Minister ‘I’ve made some very dumb mistakes in a very short amount of time’. His actions spoke consistently with his words when he pleaded guilty to the charges with which he was confronted.

6. Fourth, his time whilst in prison tells firmly in favour of his intentions to be reintegrated into the community. He engaged himself whilst in custody in employment as a sweeper, he put his hand up for vocational training in forklift driving, chainsaw work and traffic control. He was trusted and, it would appear, highly regarded by custodial staff. The fact that he did not qualify for courses of rehabilitation whilst incarcerated should be considered with the sentencing Judges view that he was, in any event, unlikely to reoffend. The fact that he did not undertake any courses is not something that runs against him because on its face there does not appear to be any reason why a man with such contrition and remorse who has been in prison for more than two years would need to undertake such courses.

7. Fifth, there are things that are most likely to be in place upon his release that point in favour of him having a strong network of support: his mother, his parents in law, his brothers and sisters, in particular his sister Ajla who gave evidence who is the centre of the co-ordination of family efforts to assist her brother, and his brothers and sister in law have all expressed support for him. His network of support through these people was evidenced by a large number of letters and statements all of which powerfully suggest that there will be a very strong network of support for Mr Fejzic if he stays in Australia. It is important to point out some particular things about some of these people.

8. Mr Fejzic described his parents in law in his representations to the Minister as his ‘rock’. It is not difficult to understand why. Mrs Vicki Lamont has cared for the children since Mr Fejzic went to prison. She said in her evidence that she and her husband would offer Mr Fejzic and the children ‘all of the emotional, physical and financial support they might need’. That statement is supported by the position she has taken since Mr Fejzic’s imprisonment as one of the children’s primary givers. I accept her evidence and accept that she will deliver on her word. I do so not only because I have no reason to doubt her word, she was an honest, frank and very matter of fact witness, but also because her actions in caring for the four young boys in the past and her views about them needing Mr Fejzic in their lives in the future are only consistent with her doing so. The fact that Mr Fejzic intends to live close to Mrs Vicki Lamont is important not simply because he will be able to have the positive influence of seeing and caring for his children but also because she is likely in my assessment of her, to pay close regard to his welfare. She has the benefit of having a daughter, Amanda Lamont who is likely to help if necessary.

9. Ms Amanda Lamont said that she would provide Mr Fejzic with somewhere to live if he were to stay in Australia. She now owns a house close to where her parents live and intends to make it available to Mr Fejzic. She intends in the near future to move from there to Albury which she said was about three and one half hours away. She said she is ‘looking forward to him being released and being able to give all the children all the help and support they require’. That statement has a ring of reality about it in the context of her detailed exposition of her and the children’s relationship with Mr Fejzic and her desire to help him and the children. I accept her evidence.

10. There was some suggestion that the fact that Ms Amanda Lamont and her family intended somewhere in the future to move to another town detracted from the support she was prepared to offer. That may be relevant but contextually it is to be remembered that Mr Fejzic will be living close to his parents in law, with his oldest daughter, who will have contact with Amanda Lamont  and, of course Mr Fejzic will have contact with her himself  by phone as well. She gave evidence that if Mr Fejzic required, she would make the three and one half hour trip for him. Mr Fejzic will have her and her family support him in one way or another.

11. I have no reason to doubt the overwhelming evidence before me concerning the support Mr Fejzic will have available to him which I consider to be a significant and a vitally important prosocial factor that points very much against the prospects of re-offending. The fact that his mother and siblings live a little distance away does not in this day and age prevent them from providing the support emotionally, financially or otherwise that they have promised. This is particularly relevant in circumstances where that network of people is in contact with one another and especially with Mrs Vicki Lamont who will be nearby for Mr Fejzic.

12. Sixth, and relatedly Mr Fejzic will be living near his four sons where he will be able to see and care for them, which is something I refer to in more detail when I consider the children’s best interests. Being near his children will be a strong prosocial factor. His love for his children and his desire to care for them again was obvious from the way in which he referred to them in his evidence as well as from the many statements made by those who provided evidence about his relationship with them. Again, I refer to the fact that that it is not something new for Mr Fejzic given his having given up work to care for them in 2013, but what is new for him is that he now will now have the constant reminder of two years separation from them as well.

13. Seventh, one matter that I consider to be very important is Mr Fejzic’s understanding about the influence of Ms Crystal Lamont upon him and his need to be cautious about associating with her again. In his evidence he frankly acknowledged that resuming an association with her would be a risk to him re-offending. His frank acknowledgment of that was in the same context that he considered it important for his children to maintain some relationship with their mother. That level of insight is in my assessment an important factor that counts in favour of Mr Fejzic’s being unlikely to re-offend, namely his identification of the risks that present themselves to him in that regard.

14. Eight, as Mr Fejzic acknowledged in his evidence, he is thoroughly aware that future offending will see him leave Australia. This is a case where not simply the specific deterrent effect of two years in custody operates as an incentive to refrain from offending again, but so too does that prospect of being excluded from Australia and from playing a part in his children’s lives.

15. Against these things are some matters that might be considered that operate contrary to the conclusion at which I have arrived that the risk of reoffending is a low one. One is that there was no evidence that Mr Fejzic has secured employment in Australia if he is released into the community. His evidence was that he intends to seek out employment to support himself and his children ‘at the earliest opportunity’. Having regard to the obvious difficulties that someone in prison would have in obtaining future employment on the outside, which is undoubtedly accentuated in light of the pandemic, it is not unreasonable that he does not have employment yet.

16. I accept his evidence about his intentions for work in the future and the fact that he has already discussed the prospects of employment with his family. He has already given the matter some earnest thought speaking of investigating possibilities with one of his former employers with whom he has maintained contact and who have some association with his extended family. There was some suggestion that others would help him obtain employment. He had a strong work ethic up until 2013 when he became a house husband and even after then when he cared for the children. His work ethic was evidenced by his willingness to work whilst in prison where he was employed as a sweeper. The uncertainty around this is one matter that needs to be approached carefully, but I do not think having regard to the difficulties I have referred to and the other pro-social factors that are in play it greatly detracts from my overall view about the likelihood of Mr Fejzic re-offending.

17. Another matter raised against what I consider to be the low likelihood of Mr Fejzic re-offending concerned Mr Fejzic’s stated motive for his offending, namely that he did so to help his partner by keeping her closer to home, and it would seem, financing her habit. Mr Fejzic acknowledged that this ‘may seem very strange and completely irrational’ and that ‘it makes no sense’. He explained this in his statement, by trying to put the reader in his predicament of being with a partner who would leave the house for extended periods because of her search for drugs or because she was taking them. In short, he took the view that if he was able to supply her with drugs she would not leave.

18. It was suggested that Mr Fejzic in giving this explanation was ‘minimising his responsibility’ for his offending. The issue is complex. It involves trying to understand why people do things that are silly or ‘dumb’ to borrow Mr Fejzic’s word, or, even more simply why people make mistakes. It seems to me the best that I can make of it, especially because I formed the opinion that Mr Fejzic did by his words and conduct accept responsibility for his offending, is that it was simply in Mr Fejzic’s thinking the deeply seeded root of his motivation for what he did or more likely what his thought process involved when he started out on his illegal activities. I am not persuaded that his explanation involved minimising responsibility: rather it is trying to explain why something that is objectively irrational happened. Even if he was minimising his responsibility, I do not consider, in any event, that this adds much weight in favouring the conclusion that he will offend again given the other matters to which I have referred.

19. I consider that it is very unlikely that Mr Fejzic will reoffend and even though the offences he committed are serious and would, if committed again, cause grave and considerable  harm to members of the Australian community and the Australian community more generally, the low likelihood of him reoffending means that I do not consider protection of the Australian community to be a matter that should be accorded significant weight.

    FAMILY VIOLENCE

20. This consideration directs attention to Australia’s concerns about permitting people who are not citizens who engage in family violence to remain in Australia. The Direction expressly refers to the fact that those concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

21. There was a suggestion that a hearsay record of what a counsellor had apparently reported to the police about what one of Mr Fejzic’s children had told she or he was evidence of family violence. The hearsay concerned the child saying that his older sibling had been taking photos of Mr Fejzic’s genitals and there was some reference to the child saying, ‘Dad rapes mum!’ which was clarified to mean ‘Da[d] sexing with mum!’. That appears to be the only evidence that was relied upon to support the relevance of this matter. There was no direct evidence of anything whether it be what was done or even what was said by the child.

22. It is significant that the report is not something that either the police or the DCJ considered to be something that they should act upon. In the absence of direct evidence, or at the very least evidence from the school counsellor who was claimed to have made the report, I do not consider it appropriate to act on the claims either. I would not act upon the evidence about what was claimed to have been said or done without direct evidence of those things given the seriousness of what is suggested to have been said or done.

23. In my assessment this consideration is not relevant to whether there is another reason to revoke the cancellation of the visa because there is no evidence about any conduct that would amount to family violence. I will not give any weight one way or the other.

    THE BEST INTERESTS OF THE CHILDREN

24. The Direction requires that I must make a determination about whether non-revocation is or is not in the best interest of children under 18 years of age who will be affected by the decisions. The Direction refers to particular matters that I must consider where relevant.

25. There are five children who Mr Fejzic stood in the role of father of before his imprisonment who will be affected by this decision; four of them are Mr Fejzic’s sons and the other is the oldest child who it is to be remembered in respect of whom Mr Fejzic was the child’s effective father since he took up with Ms Crystal Lamont. They are now aged 2, 4, 8, 9 and 14 years of age. His relationship with his four sons has continued despite his imprisonment for the whole of their lives and with the oldest child since he was about six or seven years of age. They all have a significant way to go before they reach 18 years of age although the oldest child is only a few years from there. I will deal with the four biological children first.

26. In 2013 Mr Fejzic gave up work to be the primary carer for the children because of Ms Crystal Lamont’s mental illness. At that time, his youngest two sons were less than two years old. Since then, until about 15 August 2019 he was the primary carer for them. So far as the two younger boys are concerned, care for them before going into prison was for a much shorter period of time. The youngest boy was only a few months old at that time.

27. There was a lot of evidence about the care and love Mr Fejzic has for the children and the love they have for their father. The evidence strongly supports the conclusion that each of the children and their father have, in the words of Mrs Vicki Lamont, ‘a strong bond and love each other dearly’. Mr Fejzic’s mother said the children ‘are incredibly close to their dad’ and that when she had them over the school holidays she saw ‘how much they miss him and the close bond that they share with their father’.

28. The relationship the children have was no doubt a product of the significant role he played in each of their lives before going to prison: he dropped the eldest children to school, he fed them, changed their nappies, played with them, put them to bed, attended to them when they woke in the night and so on. He did all of the things that primary carers of young children do for them. They have maintained that relationship whilst Mr Fejzic has been in prison through regular phone calls which were variously described as happening ‘almost every day’, ‘at least every other day’ or ‘about four times a week’.

29. There is persuasive evidence which I accept that supports the conclusion that Mr Fejzic was, in popular parlance, a ‘good father’ and would be a positive influence for the children if he were to remain in their lives. That of course, as will be seen was blemished by the risks he exposed the children to through his offences and through his inaction in a more constructive role in respect of Ms Crystal Lamont’s drug addiction and mental illness.

30. As far as Mr Fejzic’s role as father is concerned, Ms Shaylee Frost, who is not directly relevant to this consideration, recorded her views about Mr Fejzic’s role as a father in a letter. She said she had known Mr Fejzic since she was five years old (her maths appears to be a little out)  and that since then ‘he has brought nothing but happiness to mine and my brother, … life’ and that ‘I might only be Armin’s stepdaughter, but he has always seen and treated me as his actual daughter’. She described how Mr Fejzic had helped her with her mental health, her schooling, with problems, with providing for her and her siblings and how he never treated her ‘differently to [her] half-brothers’. She concluded with writing the words ‘he is an amazing stepdad’. In her evidence she said that ‘Amin is the dad you never thought you would get’. There was one thing that Ms Frost’s said in her evidence that was of particular importance which was that ‘even when my mum went through the dark places he was always there to make sure that we had everything, he took time out of his pocket to make sure that we were alright’. Ms Frost said at no time did she witness her mother’s drug use although she was present at times when her mother was affected by drugs. I will come back to Ms Frost’s evidence in a moment.

31. There was much other evidence which I accept that supports the conclusion that before going to prison, Mr Fejzic was for the most part a good and devoted father who did the very best for the five children relevant for whom he was the primary carer before his imprisonment. Nonetheless, there is no doubt that some of Mr Fejzic’s conduct especially connected to his offences but also more generally to Ms Crystal Lamont’s drug use was concerned subjected the children to ‘an unsafe and dangerous environment’. A DCJ report prepared for the Minister referred to the risk the children had been exposed to in the care of their parents. In the care plans for the children, it was said that they were exposed to risks of significant harm because of their mother’s drug use and ‘to the different people reported to be coming to the parents’ house’. The exposure of children to aspects of criminal activity involving the supply of drugs exposed them to a risk to their safety.

32. There was no evidence of any particular exposure of the children to criminal activity, but it is easy to accept the inference that they must have been especially given the evidence of people coming and going, the fact that drugs were found at least on one occasion in the house and that there were drugs in the garage adjacent to the house. The risk was perhaps slightly mitigated by those drugs being concealed although perhaps not very well. An example of this is that drugs were found by Mr Fejzic’s mother under a pillow. The tasers were found by the police in the main bedroom, one at the foot of the bed in a container the other under a pillow. Whilst there was some level of concealment they were around and about significantly enough to pose a risk, a serious risk, to the children’s welfare on the day of the arrest and more likely more often than that

33. Those risks are significant, but they should not be exaggerated and need to be placed in context. First, there was not the faintest suggestion in any of the evidence that the children ever witnessed their mother’s drug use, although Ms Frost saw her mother affected by drugs, or their father’s drug supply. Second, there was no suggestion that the risk ever came home or ever came close to coming home. In this respect, Ms Frost’s evidence that her father ‘was always there to make sure we were alright’ is important. In effect, whilst Mr Fejzic ran the risk, he also minimised it by being present. Third, Ms Crystal Lamont’s behaviour when influenced by drugs does not appear to have involved violence much beyond shouting. All of this evidence concerning Mr Fejzic’s presence was confirmed by his evidence that he did not spend a great deal of time away from home.

1. Irrespective of those things, the children were exposed to risks and some negative impacts because of Mr Fejzic’s offending and his failure to take active positive steps to prevent Ms Crystal Lamont from being around the children when she was affected by drugs. These impacts were reduced by his presence, but his failure to do anything left a risk of harm, perhaps significant harm, in play for the children.

2. I should add that it was suggested that what was said by the child in the file note I have referred to when dealing with family violence was sufficient to raise concerns about the welfare of the children or the level of care they were receiving. I reject that suggestion foremostly because there is no evidence of what the child said, but also because even if it was said, I know nothing of any context or reason why the child would have said such a thing. Children say things for lots of reasons. There is no reason to attribute the cause to Mr Fejzic and his care.

3. It was also said that because the children displayed some problems, in particular one of them had a speech problem, when they went into Mrs Vicki Lamont’s care, I should conclude the level of care that Mr Fejzic provided was, in effect, neglectful. I am not prepared to draw the conclusion that any problems the children had at the time they went into their grandparent’s care were attributable to Mr Fejzic for several reasons.

4. First, Ms Frost’s evidence is direct and compelling evidence about the type of carer Mr Fejzic was. Second, there is evidence of others that supports the view that Mr Fejzic was a good carer for his children. Third, there is nothing identified and certainly nothing specifically identified, other than the risks to which the children were exposed in the DCJ reports or the care plans that there was any neglect of them. You would expect to see that even if it was no more than surmise. Fourth, it is fair to say that being delivered from their home where they spent all of their lives with their father to their grandparents’ place by police officers must have had an effect or even a profound effect on the children such that it is impossible to say what, if anything, would have been the reason for any claimed problems the children had. Fifth, the generalisation with which the suggestion was made as to shortcomings of Mr Fejzic’s care is not a safe one on which to proceed.

5. In any event, all of that is concerned all with the past and it is necessary in assessing the best interests of the children to consider the future. A number of matters are significant.  First, as I have found that it is very unlikely that Mr Fejzic will offend again that necessarily means that that risk is unlikely to be present such that the children are unlikely to be exposed to anything like the sorts of risks to which I have referred.

6. Second, Ms Crystal Lamont has herself been in custody and is soon to undertake rehabilitation, but her position in the children’s lives is at present very much uncertain. She too is subject to the same conditions and court orders that Mr Fejzic will be subject to on her release. Again, because of those orders and the protective influence of Ms Vicki Lamont and her husband, she is unlikely to be in a position to expose the children to risk.

7. Third, Mr Fejzic has no intention of resuming his relationship with Ms Crystal Lamont even though he recognises the influence she has upon him and even though he wishes for the children to see their mother.

8. Fourth, if Mr Fejzic wants to resume a parental role in the children’s lives which he clearly does, he will need to, according to the court approved care plan, undertake counselling and courses concerned with their care, parenting and related matters. Mr Fejzic accepts that position and says he will take the opportunity to do those courses and receive that training. If he is to resume a role as a parent or primary carer that will need in one way or another to be approved of by a court.

9. Fifth, despite all of the things the DCJ said about the risks that the children were exposed to, its own report issued in February this year agreed with the proposition that there ‘were serious concerns on the  psychological impacts on the 2 older children, who are very close with their father, if they are not able to see him again and have their father in their life’. I should add that I do not consider the DCJ suggestion that Mr Fejzic should have a minimum of four contacts with the children each year to detract from the general view they have expressed. Prescribing a minimum number of contacts is completely consistent with the notion that DCJ consider he should remain in the children’s lives.

10. The last of the matters to which I have referred is of considerable importance because it is the view taken by the body that is ‘expert’ in matters concerned with the welfare of children. It is also an independent view although that view is coincident with the views of others, in particular Mrs Vicki Lamont who has been caring for the children.

11. I also note that Mr Fejzic will not be able to resume a parental role living with the children on his release because of some orders that are in place concerning the care of the children that say that cannot happen. Nor will he be able to live with them, at least for now. He is under the orders relating to the children entitled to a minimum of four supervised visits with them a year. It is safe to conclude from his evidence and from that of Mrs Vicki Lamont who emphatically supports the children having their father in their life that four visits is likely to be exceeded very quickly, probably in the first week or two of his release into the community. It is a minimum not a maximum. The orders of course may, if considered appropriate, be varied. They should not be considered as though they are set in stone forever. It was anticipated that at some stage Mr Fejzic might apply to have the orders varied in the future.

12. I am in no position to determine whether the orders will be varied to allow the children to live with their father and for him to take back the position of parent or primary carer in the future, but I am able to say that the evidence before me overwhelmingly supports whether in that role or in some other role it is in the best interests of the children, especially the two older boys to have him present in their lives.

13. I am satisfied that Mr Fejzic would be a very positive influence on all of the children’s lives should he remain in their lives especially in the role of either a care giver for them, or as primary care giver for them. I have already said I consider Mr Fejzic’s prospects of re-offending as very low, so the children are unlikely to be impacted in the future by any offending conduct on his part. The evidence suggests he will be someone who is likely to be a positive influence on their lives.

14. The heartbreak his wrongdoing may have caused the two eldest children is likely to be long forgotten should he return to their lives to fill the positive role the evidence suggests he will occupy. On the other hand, if he leaves Australia, it is not difficult to see that they are likely to be very deeply affected given the role he has played in their lives to date. This is all the more important in circumstances where it is not known what role their mother will play in their lives in future given her imminent period of rehabilitation and where some of her issues in the past required Mr Fejzic to occupy the position of primary carer.

15. It is true that the maternal grandparents currently fulfil and are capable of fulfilling for the future a parental role. They are not the children’s father. It is not known whether their mother will resume any part in the children’s lives, having only recently resumed contact with the children, contacting them only once a week. Although the children could maintain contact with their father by telephone and perhaps other social media means if he returned to Bosnia that is a far cry from having their father in their life in a reasonably regular way. That would not be in the children’s best interests especially having regard to the kind of father Mr Fejzic is likely to be for them.

16. Finally, I should say something about the oldest child. There was not much evidence about him principally probably because he is now living with his biological father and he is 14 years of age. It is only necessary to say that the matters I consider which are weighed so far as the other four children are concerned, also have some relevance to him even though it would seem he lives with his biological father some distance from where Mr Fejzic intends to live if he remains in Australia. It is only necessary to say that he too is likely to benefit from being able to have Mr Fejzic in his life in some capacity.

17. In my assessment the best interests of the four children weighs very strongly in favour of revocation. The best interests of the oldest child also weigh in favour of revocation.

    EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

18. I am required to weigh in the balance the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ‘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.’ There may be cases where ‘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 non-citizen should not … continue to hold a visa.’

19. Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others. This case albeit involving a serious crime does not involve a crime of any of those kinds.

20. The question for consideration is whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[4] This involves an evaluation about how strong this factor is in the particular circumstances of the case.

    [4] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).

21. The nature of the criminal offending is objectively serious. I accept the Minister’s submission that the consequences generally of his offending, but especially for regional communities mean that these considerations should be given some weight, but I do not think that weight should be considerable mainly because of the countervailing considerations.

22. There are factors that suggest that the community might be more tolerant in Mr Fejzic’s circumstances, in particular I have in mind the fact that the Judge considered that he was unlikely to re-offend. Mr Fejzic has been in Australia for more than half his life and from a reasonably young age. The countervailing factors are reasonably strong. The principles to which I referred suggest that the Australian community might be more tolerant of criminal offending in those circumstances.

23. I am satisfied that the expectations of the Australia community weigh against revocation but are such that I should only give moderate weight to this consideration having regard to the countervailing considerations that I have identified.

    TIES TO THE AUSTRALIAN COMMUNITY

24. The Direction requires that attention be paid to links to the Australian community. There are two categories: first the strength, nature and duration of ties in Australia; and second, the impact on Australian business interests. The second category is not relevant to this matter and no-one suggested it was.

25. So far as the strength, nature and duration of the Mr Fejzic’s ties to the community are concerned, I must consider how long has lived in Australia but giving it ‘less weight’ where the offending started ‘soon after’ arrival in Australia and ‘more weight’ where ‘time… has [been] spent contributing positively to the Australian community’. I must also consider the strength, duration and nature of familial and social links with Australian citizens, permanent residents and others entitled to remain in Australia indefinitely.

26. Mr Fejzic’s has been in Australia for about 21 years. His offences were after he had been here for about 18 or 19 years. He was employed in remunerative employment for the first 13 years of his time in Australia.

27. I have recorded the large number of family members, and more relevantly Australian citizens and permanent residents of Australia who are in his life: his children, all of his brothers and sisters, his parents in law, his nieces and nephews and there was some evidence  from a few of his friends as well. 

28. I consider that this consideration weighs in favour of revocation of the cancellation of the visa; in particular, having regard to the ties that the Applicant has and the fact that he has contributed to the community by paid employment for a large part of the time he has been here. He has only one blemish, a serious one but nonetheless only one, during his time in Australia.

29. Mr Fejzic’s ties to the Australian community should be given some significant weight in the overall consideration of whether there is another reason to revoke the cancellation of the visa.

    IMPEDIMENTS IF RETURNED

30. The Direction requires that I must consider the impediments that would be faced by the former visa holder if she or he is removed from Australia to their home country in establishing their life and maintaining a basic living standard. I am required to have regard to the former visa holders age, health, language and cultural barriers and social and medical and economic support available to the former visa holder.

31. Mr Fejzic has two uncles and two aunties who live in Bosnia and Herzegovina on his mother’s side and two other uncles on his father’s side. His mother gave evidence that she has had no contact with the uncles on the father’s side and did not believe that would assist her son. She said her siblings would help Mr Fejzic if he needed to return to Bosnia and Herzegovina. She said she did not think they would be able to help him much because they were all unemployed. Despite his mother’s contact with those family members, he has not had any contact with any of them for 29 years.

32. Mr Fejzic says that he is not ‘in touch’ with Bosnian culture. Mr Fejzic’s knowledge of Bosnia is limited to what he has learnt from his mother and it has been a very long time since he lived there. It is unlikely that he has much memory of his time in Bosnia and Herzegovina. Mr Fejzic does not know anyone in Bosnia and Herzegovina. He has not been back since he left in 1992 for Croatia. He speaks Bosnian. He is relatively young. He is of good health although there is some evidence that he suffered from depression whilst in prison.

33. From these things it can be concluded that Mr Fejzic will face some albeit not insurmountable difficulties in establishing himself in Bosnia and Herzegovina. I consider that this consideration weighs slightly in favour of revocation.

    THE CANCELLATION OF THE VISA SHOULD BE REVOKED

34. I have found that the protection of the Australian community weighs slightly in favour of non-revocation of cancellation of the visa because of the low risk of re-offending and that the expectations of the community weigh moderately in favour of non-revocation. I have found that the best interests of the minor children, especially the four young boys who are Mr Fejzic’s biological children, weighs very strongly in favour of revocation of the cancellation. This primary consideration involving the best interest of the children outweighs the other two primary considerations.

35. So far as the other considerations are concerned, I have found that the strength, nature and duration of his ties to Australia and the impediments to re-establishing himself in Bosnia and Herzegovina both weigh in favour of revocation although the former much more strongly so than the latter.

36. It is obvious that the primary consideration when weighed alone or even together with the other considerations soundly inform my satisfaction that that there is another reason to revoke the cancellation of the visa.

37. I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of Armin Fejzic’s Refugee (Class BA) (Subclass 200) visa.

I certify that the preceding 103 (one hundred and three) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member

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

Associate

Dated: 24 August 2021

Date(s) of hearing:	18 & 19 August 2021
Counsel for the Applicant:	J. Edis, Putt Legal Migration
Solicitor for the Respondent:	S. Valliappan, MinterEllison