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

[2020] AATA 2452

Francisco and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2452 (24 July 2020)

Division:GENERAL DIVISION

File Number(s):      2020/2808

Re:Marcio Rogerio Francisco

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Deputy President B W Rayment OAM QC

Date:24 July 2020

Place:Sydney

The Tribunal decides that the decision under review is set aside and that in substitution, the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is revoked.

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Deputy President B W Rayment OAM QC

CATCHWORDS

MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) – where offending relating to destruction of property and assault – whether to exercise discretion under Direction No. 79 – primary considerations – protection of the Australian community – where history of offending involved drugs – where applicant is no longer influenced by drugs – where applicant has showed signs of rehabilitation – where likelihood of reoffending is low – best interests of minor children – where applicant has multiple minors that would be affected – other considerations – strength, nature and duration of ties – where applicant’s extended family is in Australia – where mother and father would not be able to visit applicant if deported – where applicant has support of large family, friends and workmates – extent of impediments if removed – where applicant’s future country where he would be deported to is uncertain – decision set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) s 501

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Deputy President B W Rayment OAM QC

24 July 2020

1. The applicant is aged 40. He is part of a large and close family hailing from Madeira, Portugal. His entire family now lives in Australia, mostly around the Wollongong area. He arrived here as a six year old. He did not apply for Australian citizenship and held a Class BB Subclass 155 Five Year Resident Return Visa, which was the subject of a mandatory cancellation. He applied for revocation of the cancellation, which was refused by the Minister’s delegate. He then applied to the Tribunal for review of that decision.

2. The question is whether there is another reason why the mandatory cancellation ought to be revoked. There is no doubt that the applicant does not pass the character test under s 501 of the Migration Act 1958 (‘the Act’). This question is one to which Direction No. 79 (‘the Direction’), made under s 499 of the Act, makes a non-exhaustive list of matters mandatory for a decision-maker, including this Tribunal, to take into account when considering whether to revoke the cancellation. The Tribunal must also take into account any representations made by the applicant, either in writing made to the Department or in writing or orally made to the Tribunal, and any other matter which appears to the Tribunal to be relevant. As it happens, I think the discussion of the considerations in the Direction will deal with all relevant representations and considerations in this matter.

3. The Tribunal has had the assistance of Mr Loukas of counsel for the applicant and of Ms Ng, a senior Australian Government Solicitor lawyer who appeared for the Minister.

   DIRECTION NO. 79

4. Among the principles stated in paragraph 6.3 of the Direction, sub-paragraphs (5) and (7) were stressed by the applicant. They are in the following terms:

   (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.

   …

   (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.

   Primary Considerations

5. The Direction specifies as “primary” considerations, which “generally” prevail, three matters, namely the protection of the Australian community from criminal or other serious conduct, the best interests of minor children in Australia, and the expectations of the Australian community.

   Protection of the Australian community

6. I will begin with his personal circumstances, then discuss his drug use, offending, and steps taken towards his rehabilitation.

7. The applicant arrived here in 1986 with his parents Victor and Dorita, and his three elder siblings. They are all still here, as is the applicant’s grandmother, now aged 97. In addition, the applicant has aunts, and cousins living in Australia. I was also told that all of his extended family lives here.

8. The applicant and his siblings each have their own children. His sister Mirta, is now a grandmother of two minor children. Their mother Brooke, and her husband watched the hearing (which was conducted by Microsoft Teams) from Adelaide, accompanied by their two small children. The applicant’s mother, father, sister, one of his brothers and his wife, and his grandmother watched the proceedings from Warrawong. The applicant’s mother and father gave evidence from that place.

9. The applicant attended primary school and high school in Warrawong, and left school at the end of year 9. He then became an apprentice carpenter. He worked as a carpenter for a short time with Lewis (or Luis) Constructions, and then for 14 years with Wideform Constructions as a qualified carpenter. For the next four years he worked as a part-time painter and decorator with Elite Painting and Decorating Solutions. He was therefore in employment from 1996 until 2016 and a short time after. In his employment he was a health and safety representative and a CFMEU union delegate.

10. The applicant has three children, the first, a daughter born in 2007, now aged 13. The second child is a son born in 2009, now aged 11. Those two children now live with their mother in Queensland. The applicant has telephone contact with those children. The third child, another son, was born in 2017 and is now almost 3. He lives in Sydney with his mother, and proceedings between the applicant and the mother of the third child for access have been finalised for the time being. However, the applicant may seem to continue to seek access to the third child. The applicant’s relationship with both mothers of his children broke down, due to the applicant’s drug taking.

11. He has cousins aged 16 and 11, and nephews and nieces aged 17 (about to turn 18), 16, and 14. As mentioned, his two aunts also live in Australia.

12. He also has a grand-niece and a grand-nephew of tender years living with their parents in Adelaide. All of his children, nieces, nephews and the cousins referred to in evidence were born in Australia.

13. Many of his extended family wrote references on his behalf in support of the revocation of the cancellation of his visa. They include his aunts Lidia and Adelina, his sister Mirta, his brother Emanuel, his sisters-in-law Susan and Chantelle, his brother Nelson, his nephew Dylan, his niece Brooke, his uncles Jose and Antonio, his cousins Fabio, Gliberto, Dayana, and Jake, his workmate Aurellino, his neighbour Borce, his friends Silvia, Leslie, Shane, Arthur, Robert, Christine and Bonnie, neighbours of his brother Emanuel, his workmate Francisco, and a some 14 other friends and workmates. They all speak well of the applicant, including of his caring nature, and the good they have seen in him. The family members and their close friends speak very well of his relationships within the family. Brooke speaks of him as a father figure in her life. She visited him in Villawood with her eldest child last year. The applicant has not met her second child but saw him for the first time during the Microsoft Teams hearing before the Tribunal. There was also circulated and sent to the Minister a petition signed by many other friends and workmates asking that he not be deported.

14. With the exception of his mother and father, none of those persons who wrote references were called to give evidence. I will return to the evidence of his mother and father below.

15. The applicant’s offending began in 2003 with a series of driving offences. There were other matters prior to 2013 which resulted in fines, driving suspensions, or bonds accompanied with s 10 dismissals. He was not sentenced to any term of imprisonment prior to 2015.

16. He says that he answered questions on immigration forms from 2006 to 2012 to the effect that he had no criminal convictions, because he had never been sentenced to imprisonment at that time. Some persons would not regard a fine as involving a criminal conviction, and I do not know whether the applicant is such a person.

17. His drug use seems to have started in 2012 with recreational cocaine and Xanax. In 2015, he was introduced to methamphetamines, which he smoked. On three occasions in late 2015, he was admitted to a mental health unit in Shoalhaven. He and his partner (the mother of his two elder children) broke up as a result of his methamphetamine use. He was depressed and attempted suicide. His drug use spiralled out of control.

18. On 18 March 2015, the applicant committed an offence of assault in company and intimidating the victim with the intention of causing the victim fear, physical and mental harm.

19. In 2017, he was sentenced for those offences by Judge Hunt in the NSW District Court. He was then no longer in custody and was sentenced to imprisonment for 18 months on the assault offence, and to imprisonment for six months on the other offence. Both sentences were suspended by His Honour, who expressed the view that the applicant’s prospects of rehabilitation were reasonably good. The result was that he remained at liberty. However, he offended again, and the sentencing was reconsidered last year as discussed below. Judge Hunt referred to the applicant having mental health problems at the time of the offending. However, the psychologist’s report put before the judge referred to his drug use.

20. The applicant said, when giving evidence, that the victim, his co-offender, and he himself were all drug takers. He was under the influence of methamphetamines and Xanax.

21. In January 2016, he was drunk and had been taking methamphetamines. He stood outside his then partner’s house shouting and waving a pole. He was demanding to see his children. One of his brothers arrived and tried to subdue him and the police were called. There was a non-violent altercation with a police constable. He pleaded guilty to the offences of assaulting an officer in the performance of his duty, resisting an officer in the performance of his duty and behaving in an offensive manner.

22. The applicant said that he did not recollect the offence, or even remember his brother being there. He attributed that fact to him taking methamphetamines heavily. He said he pleaded guilty because his brother told him what had happened. The applicant was taken into custody on 3 January 2016.

23. Judge Lakatos SC resentenced the applicant for those offences, on appeal from a magistrate. The effect of the resentencing, ordered on 20 May 2016, was that he was released on parole on the following day. His Honour found that the applicant had serious mental health issues, which needed to be attended to. His Honour took the view that his planned rehabilitation should commence as soon as possible.

24. He was treated by a psychologist, Mr Di Martino, and for a time did not relapse in his drug use. There were parole breaches involving drug use later in 2016, the second which resulted in a bond for a period of 15 months.

25. Another bond was put in place in October 2016, in circumstances described by a magistrate in colourful language, but treated as a minor offence.

26. By August 2017, the applicant had completed 10 sessions with Mr Di Martino.

27. Also in that month, the applicant’s third child was born. His relationship with the mother of that child also broke down, also due to the applicant’s drug use. An apprehended violence order was taken out against the applicant and there were non-violent breaches of that order.

28. The applicant was denied access to his son. On 18 May 2018, again under the influence of drugs, he went to the house of the mother of his child and set fire to her father’s truck. He was taken into custody on that day and bail was refused. He came before Magistrate McGowan for sentencing on the matter related to the burning of the truck and related matters on 14 August 2019. He was sentenced to 18 months imprisonment back dated to 17 March 2019, with a non-parole period of 6 months, meaning that he was eligible for parole on 16 October 2019.

29. By 16 October 2019, the mandatory cancellation of his visa had occurred, and he was taken into immigration detention on the same date.

30. From May 2018, to date the applicant has been drug-free. That seems to have been the longest period since 2015 that he has abstained from drugs.

31. While in prison, including at the John Morony Correctional Centre near Windsor, which is a medium security prison for male offenders, he undertook a number of courses aimed at his rehabilitation. He successfully completed the Managing Emotions Workshop, Impact of Dependence, the Domestic Abuse Program, the 12 Step Narcotics Anonymous Program, the Health Survival Program, the 12 Step Alcoholics Anonymous Program, the SMART Program, the Emmaus bible program, and was awarded a certificate of Acknowledgement for demonstrating a positive attitude with a willingness to participate in a polite respectful manner.

32. Three things stand out about the applicant’s current prospects of rehabilitation. First, he has ceased taking drugs and has been drug free for more than two years. All of his offending since March 2015 were fuelled by drug taking. Second, he has demonstrated a clear intention to reform by attending and successfully completing the courses to which I have referred to above. I also take into account the evidence of his parents referred to in more detail below, who have followed his progress in gaol and noticed the positive changes in him.

33. Third, he has been fortunate to retain the strong support of his siblings, his parents, and other close members of his extended family. He well knows that if he offends again, his deportation would mean that regular contact with his family would essentially come to an end. That would hurt him, and he knows it would hurt them. He clearly desires to maintain regular contact with his children, and he has no reason to expect to obtain face-to-face contact with any of those children if he is deported.

34. Offending under the influence of a harmful drug such as methamphetamines has a different quality to premeditated offending, as I think has been recognised by those who sentenced him. Magistrate McGowan, who sentenced him in August 2019 was impressed by the courses he had undertaken to that time in gaol.

35. His parents have been told that there is a job waiting for him with Wideform Constructions if he is released into the community.

36. His past crimes have included at least one violent assault in 2015, and damage to property in 2018. Both those crimes were serious. His long residence in Australia since he was aged six, means that Principle 6.3(5) of the Direction has application in his favour.

37. The three matters I have mentioned in [‎32] and [‎33] above suggest to me that the likelihood of his reoffending is low. The risk that he will reoffend cannot be denied, in view of his earlier relapses from freedom from drugs. I formed the clear impression that his intention not to offend again is genuine.

38. Ms Ng, for the respondent, carefully cross-examined the applicant about some Serco reports concerning the applicant’s conduct in detention. The end result of the answers she elicited did not satisfy me of any matters of concern about his conduct in detention.

    The best interests of minor children in Australia

39. The applicant clearly loves the children in his family including his own. His nieces, nephews and cousins seem to reciprocate that affection. The parents of the nieces and nephews would be very distressed if he were deported, and that may well be apparent to their children, including infant children. His influence on his niece Brooke was plainly beneficial to her, as her character evidence indicates. She is now 21, but his attitude to her when she was younger is a good illustration of the care which he is likely to give to minor children.

40. Of his three children, the elder two have had contact with him by telephone before he went to Villawood, and if he were released into the community, there would no doubt be a future opportunity for some personal contact. Subject to orders which may be made by the Family Court in any future proceedings, the same may be true of his youngest son. I find that it is in the best interests of his own children and of his infant nephews and nieces and grand-nephew and grand-niece for the cancellation of his visa to be revoked.

    Expectations of the Australian community

41. This factor is one that has recently been discussed in cases. Speaking generally, it is to be interpreted without the Tribunal examining the matter of community expectations for itself, but rather by accepting the statements of the Direction as statements by the government of what it takes community expectations to be. That statement would generally not support revocation of the cancellation of the applicant’s visa.

    Other Considerations

    Strength, nature and duration of ties to Australia

42. The applicant has the benefit of Principles 6.3(5) and (7) as mentioned above.

43. He has, as emphasised above, a very large and close family, who stand by him. To deprive the applicant and each of them of continuing personal contact would be a very serious thing. He and his family members also have many friends and former workmates who have urged the respondent and the Tribunal to revoke the cancellation of his visa.

44. The applicant’s mother and father gave evidence before me. Mrs Francisco said that she came here in 1986 with her four children. She has nine grandchildren and two great grandchildren, all in Australia. She is aged 63. The applicant’s sister and two brothers all live in the Illawarra area. When she arrived, her mother and two sisters were already here and are all still here. Her husband’s parents passed away in Portugal.

45. She first became aware of her son’s drug use around 2015. He was depressed and had been depressed in 2012 as well, when his first and second children moved away from him. He was suicidal in 2015 and she left work to look after him. Before 2015, she said he was a hard worker and was “the life of the family”. He made everybody laugh. When she was sick with cancer some years ago, the applicant was working in Queensland and came home to be with her in the hospital. She said that when Brooke had trouble with her father, the applicant was like a dad to her. He was always happy in those days. She has been to see him a lot in gaol. He told her that he is very sorry for what he did.

46. There is no one he knows or is in contact with in Portugal. He has been there once with a friend in 2001. She worries if she becomes sick when she is older, the applicant would not be here if he is deported. She said that would be very hard on her and on him. She also said her husband has blood clotting in his veins and is being treated for that here. He would have difficulty travelling by plane to Portugal if his son were deported. Wideform Constructions, which her husband retired from two weeks ago, told them that the applicant would have a job there. She said that if the applicant is not deported, she and his brothers and sister would assist him in any way to stay straight, and to keep any psychiatric appointments he needs. She said that she had arranged a place for him in Odyssey House if he were released from gaol last year.

1. The applicant’s father also gave evidence and said, amongst other things, that he believes the applicant will be drug free because “I have seen he is different”. In other respects, he confirmed some aspects of his wife’ s evidence.

   Extent of impediments if removed

2. The applicant’s spoken Portuguese is largely confined to communication with his father, whose English is limited. He may be regarded to some extent as a foreigner in Portugal. He has no family or contacts there. He has had depression, and that ailment may affect him again in Portugal, without all of his family and friends. While he has a trade, his employment prospects may be more limited there than they are in Australia. His future in Portugal is quite uncertain in my opinion.  

   EXERCISING THE DISCRETION

3. The applicant presented in the witness box as an ordinary member of the Australian community, with close ties to Australia. In ordinary parlance, he would not be described as a non-citizen. He has had, as many citizens have had, very unfortunate experiences with harmful drugs, for which he has been punished in the criminal courts. His deportation would be injurious to himself and to all members of his close and loving family. It is more likely than not that he will be able to remain drug-free. Drugs are available in gaol and in detention and he has shown over more than two years that he can resist them. His family will also support him.

4. In my opinion, balancing the favourable and unfavourable matters to which I have referred, the correct or preferable decision in this matter is to revoke the cancellation of the applicant’s visa.

I certify that the preceding 50 (fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

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Associate

Dated: 24 July 2020

Date(s) of hearing:	13 and 14 July 2020
Date final submissions received:	17 July 2020
Counsel for the Applicant:	Mr B Loukas
Solicitors for the Respondent:	Ms G Ng, Australian Government Solicitor