Franklin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 77
•21 January 2022
Franklin and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 77 (21 January 2022)
Division:GENERAL DIVISION
File Number: 2021/8251
Re:Tony Graeme Franklin
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:21 January 2022
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 October 2021.
..................SGD......................................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class TY Subclass 444 Special Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review affirmed
LEGISLATION
Crimes (Sentencing Procedure) Act 1999 (NSW)
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162Tara Euna and Minister for Immigration and Border Protection [2016] AATA 301
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Contents
Decision
REASONS FOR DECISION
INTRODUCTION AND BACKGROUND
LEGISLATIVE FRAMEWORK
Does the Applicant pass the Character Test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
The nature and seriousness of the non-citizen’s conduct to date
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s position - written material
The Respondent’s position - written material
The Applicant’s Oral Evidence
Conclusions on risk
Conclusion: Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The Applicant’s Written Material
The Applicant’s Evidence in Cross-Examination
The Respondent’s Written and Oral Submissions
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Conclusion: Primary Consideration 3
PRIMARY CONSIDERATION 4: Expectations of the Australian Community
Conclusion: Primary consideration 4
OTHER CONSIDERATIONS
(a) International non-refoulement obligations
(b) Extent of Impediments if Removed
The Applicant’s Written Submissions
The Applicant’s Oral Evidence
The Respondent’s Written Submissions
(c) Impact on victims
(d) Links to the Australian Community
(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian community
Findings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
21 January 2022
INTRODUCTION AND BACKGROUND
Tony Graeme Franklin (“the Applicant”) is a 58-year-old male, born in New Zealand. He turns 59 next month. His movement records indicate an initial departure date from Australia on 17 April 1984, however his first “arrival” in Australia occurred on 21 January 1986. There are approximately 12 arrival/departure events in the movement records after 21 January 1986. He spent something in the order of 2.5 years outside of Australia from 12 December 1995 to 31 May 1998. His most recent arrival to this country occurred on 2 October 2014 and he has not departed since that date.
The Applicant has compiled a significant list of offences and sentencing episodes in this country. Stated broadly, his offending history (in terms of sentencing episodes) runs from February 1986 to January 2021, a period of some 35 years. His sentencing episodes number 23 and they have dealt with the commission of something in the order of 38 individual offences.
On 18 May 2021, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the Applicant did not pass the character test and was serving a full-time custodial sentence. On 31 May 2021, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”). On 29 October 2021, the Respondent decided not to revoke the cancellation.
He was notified of this non-revocation decision on 29 October 2021, and, on 4 November 2021, the Applicant made the necessary application to this Tribunal seeking to set aside that non-revocation decision. It is the non-revocation decision of 29 October 2021 that forms the subject matter of the instant application. This application was heard before me on 6 January 2022. The hearing received both written and oral evidence. The written evidence was particularised into an agreed Exhibit List[1], a true and correct copy of which is attached hereto and marked “Annexure A”. The hearing also received oral evidence from the Applicant.
[1]See generally, Transcript, page 2, lines 11-45 and page 3, lines 1-5.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[2]
[2][2018] FCAFC 151.
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[3]
[3]Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a “substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
“…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…”
On 12 April 2005, the Applicant was sentenced to a term of imprisonment of six months.[4] In addition, on 6 December 2017, he was sentenced to a term of six months imprisonment.[5] Further, on 18 January 2021 the Applicant was sentenced to a custodial term of seven months and 15 days.[6] What matters for present purposes is that the cumulative term imprisonment to which this Applicant has been sentenced must equate to or exceed 12 months. What does not matter for present purposes, is the amount of time the Applicant has actually served.[7]
[4]G3, page 31, suspended upon the Applicant entering into a bond for a period of six months pursuant to Section 12 of the Crimes (Sentencing Procedure) Act 1999.
[5]G3, page 26, suspended upon the Applicant entering into a bond for a period of six months pursuant to Section 12 of the Crimes (Sentencing Procedure) Act 1999.
[6]With a non-parole period with conditions of five months and 18 days.
[7]See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
There does not seem to be any dispute between the parties that the Applicant fails the character test and, thus, the only issue before the Tribunal is whether it should exercise its discretion pursuant to s 501CA(4) of the Act to revoke the delegate’s refusal to set aside the mandatory cancellation of the visa. Specifically this is the abovementioned refusal to revoke decision made on 29 October 2021.
I am therefore of the view (and I find) that the Applicant has a “substantial criminal record” and, accordingly he does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[8] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
[8]Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[9]
[9]Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, 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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens 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 by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[10]
[10]Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[11]
[11]Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. This Applicant has compiled a very comprehensive offending history in Australia. The offending history runs for over four pages of single-spaced text.[12] The offending has consumed more than fair share of Australia’s law enforcement and judicial sentencing apparatus.
[12]G3, pages 24-28.
As I have alluded to earlier, the history of criminal offending is of impressive length, running for some 35 years from (in terms of sentencing episodes) February 1986 to January 2021. The totality of his offences have been dealt with at some 23 separate sentencing episodes involving the commission of some 38 offences. The nature of the offending appears to be one having its roots in unresolved issues with either or both alcohol and illicit substance abuse. The history is predominated by offending involving the management and control of a motor vehicle while the Applicant was under the influence of intoxicating liquor. Its other predominant theme involves conduct arising from a severe distortion of the Applicant’s moral compass as a result of the adverse effects of alcohol and/or illicit substances on his demeanour.
This disorientation of the Applicant’s capacity to moderate his behaviour has seen him repeatedly commit thoughtless and petulant offences against laws governing: (1) the peace and good order of the community; (2) the consumption of alcohol and the driving of a motor vehicle; (3) compliance by community members with the lawful dictates of government officials going about their business; (4) the personal property of other members of the community; and (5) the personal safety of other community members.
While the offending is not necessarily extraordinary in terms of its seriousness, it is nevertheless impressive because of its repeated regularity, petulance and duration, running for some 35 years. It is also significant from the perspective of demonstrating the Applicant’s repeated failure to come to grips with and adequately address his substance abuse issues. He will turn 59 next month. He has compiled this 35-year criminal history between the ages of 23 and 57. This is not the offending of irresponsible and irrational youth. It is offending that commenced well into his 20’s and has been consistently committed throughout the mature adult years of his life until his very late 50’s.
At the hearing, the Respondent’s representative ably and methodically took the Applicant through the virtual totality of his offending history. To the Applicant’s credit, he did not cavil with either: (1) his commission of the offences; or (2) the recorded details referable to his offending.[13]
[13]See generally, Transcript, page 13, lines 25-44, page 14, lines 1-47, page 15, lines 1-45, page 16, lines 1-46 and page 17, lines 1-40.
Paragraph 8.1.1(1)(a)(i)
The Applicant has convictions for malicious injury[14] and common assault.[15] These sorts of offences are viewed “very seriously” by the Australian government and the Australian community for the purposes of this sub-paragraph. He has not committed sexual crimes referable to the terms of this sub-paragraph. This sub-paragraph endorses a finding that the violent crimes of this Applicant must be found to be very serious.
[14]G3, page 28, Batemans Bay Local Court, 27 February 1986.
[15]G3, page 27, Downing Centre Local Court, 7 September 1993.
Paragraph 8.1.1(1)(a)(ii)
I have carefully perused the written material and the transcript from the hearing and cannot find any reference to crimes of a violent nature against women or children regardless of whether or not a sentence was imposed. This sub-paragraph is not relevant.
Paragraph 8.1.1(1)(a)(iii)
I have carefully perused the written material and the transcript from the hearing and cannot find any reference to the Applicant’s commission of acts of family violence, regardless whether there is a conviction for an offence or whether a sentence has been imposed. This sub-paragraph is not relevant.
Paragraph 8.1.1(1)(b)(i)
The next component of paragraph 8.1.1(1) of the direction refers to the range of conduct referable to an Applicant that may be regarded as ‘serious’. The first category of an Applicant’s such conduct involves an enquiry into whether it has caused a person to enter into, or become a party to, a forced marriage, regardless of whether there is a conviction for such an offence or whether a sentence is imposed for it. To the best of my understanding of the material, I cannot find any reference to any such conduct referable to this Applicant. This sub-paragraph 8.1.1(1)(b)(i) is not relevant.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph involves an enquiry into whether the Applicant has committed crimes against either vulnerable members of the community or against government representatives or officials in the performance of their duties. There are multiple entries in the Applicant’s history engaging the language of this sub-paragraph. They comprise convictions for:
·Resist arrest on 24 December 1987 at the Perth Court of Petty Sessions. He was fined the sum of $80;[16]
[16]G3, page 27.
·Assault police officer in execution of duty w/o abh-T2 on 21 October 1999 at the Sutherland Local Court. He was fined the sum of $250 and ordered to pay costs of court in the sum of $52;[17]
[17]Ibid.
·Resist officer in execution of duty-T2 on 21 October 1999 at the Sutherland Local Court. He was fined the sum of $100;[18]
[18] Ibid.
·Resist officer in execution of duty-T2 on 12 April 2005 at the Gosford Local Court. He was imprisoned for six months, suspended upon him entering into a s 12 bond;[19]
[19]Ibid.
·Assault officer in execution of duty-T2 on 28 April 2009 at the Gosford Local Court. He was ordered to perform 150 hours of community service and was also ordered to pay costs of court in the sum of $73;[20]
[20]Ibid.
·Intimidate police officer in execution of duty w/o abh-T2 on 14 December 2015 at the Gosford Local Court. He was ordered to perform 60 hours of community service;[21] and
[21]G3, page 26.
·Driver or rider state false name or home address on 20 August 2020 at the Newcastle Local Court. He was fined the sum of $300.[22]
[22]G3, page 25.
I am of the view (and I find) that the Applicant’s abovementioned convictions arising from unlawful conduct against government representatives or officials in the performance of their duties is such as to militate in favour of a finding that this aspect of his offending can, at the least, be found to be serious.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph refers to conduct that may be serious which is referable to “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-makers opinion”. The Respondent has not propounded this component of the Direction in either its written or oral submissions. The transcript demonstrates that neither party said anything about this particular sub-paragraph at the hearing. This sub-paragraph is not relevant to determination of the instant application.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph captures as serious any crime committed by a non-citizen in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention or any of the other componentry appearing in this sub-paragraph. It was not propounded by the Respondent in either its written or oral submissions. This sub-paragraph is not relevant to determination of the instant application.
Paragraph 8.1.1(1)(c)
Any application of this paragraph to the instant facts necessarily precludes me from taking into account the sentences imposed on the Applicant for: (1) any violent offending he may have committed against women;[23] (2) acts of family violence;[24] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[25]
[23]Paragraph 8.1.1(1)(a)(ii)
[24]Paragraph 8.1.1(1)(a)(iii)
[25]Paragraph 8.1.1(1)(b)(i)
The Applicant has not received any sentences for violent offending against women nor do any of his sentences result from acts of family violence. Further, none of his sentences related to conduct involving him forcing or causing a person to become involved in a forced marriage. Be that as it may, the Applicant’s offending history contains multiple instances of the imposition of custodial terms. Relevantly, they comprise:
·Resist officer in execution of duty-T2: on 12 April 2005 at the Gosford Local Court, the Applicant was sentenced to a term of imprisonment for six months that was suspended upon him entering into a bond;
·Drive with high range PCA: on 12 April 2005 at the Gosford Local Court, the Applicant was sentenced to a term of imprisonment for nine months that was suspended upon him entering into a bond;
·Drive with high range PCA – 1st off: on 16 December 2013 at the Gosford Local Court, the Applicant was sentenced to a custodial term to be served by way of an intensive correction order for a period of six months;
·Refuse or fail to submit to breath analysis – 1st off: on 22 March 2016 at the Gosford Local Court, the Applicant was sentenced to a custodial term to be served by 12 months in home detention with a non-parole period of six months;
·Drive motor vehicle during disqualification period – 1st off: on 22 March 2016 at the Gosford Local Court, the Applicant was sentenced to a custodial term to be served by 12 months in home detention with a non-parole period of six months;
·Drive motor vehicle during disqualification period – 2nd+off: on 6 December 2017 at the Wyong Local Court, the Applicant was sentenced to a term of imprisonment of six months that was suspended upon him entering into a bond for a six-month period;
·Drive motor vehicle during disqualification period – 2nd+off (2 charges): on 1 July 2020 at the Wyong Local Court, the Applicant was sentenced to an aggregate custodial term of imprisonment of 14 months to be served by way of an intensive correction order; and
·Drive motor vehicle during disqualification period – 2nd+off: on 18 January 2021 at the Newcastle Local Court, the Applicant was sentenced to a term of imprisonment of seven months and 15 days.
It is well established that the imposition of terms of imprisonment are seen as the last resort in the sentencing hierarchy. Further, the imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offences being punished.[26] The point to be made about the nature of the sentences imposed on this Applicant is that where they have involved the imposition of custodial time, he has been given the benefit of not serving actual time in custody because those custodial terms have been ameliorated by: (1) him entering into some type of bond in lieu of actual custody; (2) him serving the custodial term by way of intensive correction order; and (3) him serving the custodial term by way of home detention.
[26]See PNLB and Minister for Immigration and Border Protection [2018] AATA 162 [20].
As best as I understood the sentencing history, the only occasion on which he served actual prison time as a result of an imposed custodial term occurred at the sentencing episode at the Newcastle Local Court on 18 January 2021 where it was ordered that he be imprisoned for seven months and 15 days.
I am satisfied that the sentences imposed by the courts for the crimes of this Applicant across his 35-year history of offending are militative of a finding that his offending has been of a serious nature.
Paragraph 8.1.1(1)(d)
This sub-paragraph refers a decision-maker to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness. First, there is little to cavil with the proposition that this Applicant’s offending history is of a frequent nature. As mentioned, it has run for something like 35 years, it involves 23 sentencing episodes that dealt with the commission of something in the order of 35-40 offences. We are talking about an Applicant who commits, on average, one offence per annum across a given offending history and who finds himself before lawful authority for sentencing, on average, once every 18 months or so across that history. I find that there is an undeniable frequency to this Applicant’s offending.
Second, is there an increasing trend of seriousness to the offending? Often, a person’s history of criminal offending involves the commission of low-level summary or misdemeanour-type of offending, usually committed during an offender’s formative years, often as a juvenile. Here, the Applicant did not begin his offending as a juvenile. It began in his early to mid 20’s. His earliest offence involved conduct perpetrated by him having a higher than lawful prescribed amount of alcohol in his system. This offence was, unfortunately, an eerie precursor to much of the rest of his offending which, on any objective analysis, has involved driving and other offences committed under the adverse influence of alcohol.
From the earliest phases of this Applicant’s offending history, one can see the commission of virtually the full range of themes that subsequently became redolent in his offending pattern. In its first five to 10 years, the offending history contains offences relating to: (1) offences against the person; (2) offences against property; (3) offences involving driving a vehicle while under the influence of alcohol; and (4) a stubborn and irrational refusal to accept and follow the requirements of lawful authority. This “pattern” was to be repeated for the remaining 25 to 30 years of the offending history. Thus, there cannot be said to have been a graduated increase in the seriousness of the offending. Rather, the serious nature of the offending was established in the first quarter to one third of the history and simply repeated itself for the balance of the history.
I am satisfied that this Applicant’s offending has been serious virtually from its beginning and that it has maintained an unacceptable consistent level of seriousness through the course of its 35-year history. I am also of the view that my findings about: (1) the frequency of the offending; and (2) the consistently maintained level of seriousness through its history, that are both elements militating strongly in favour of a finding that the totality of the Applicant’s unlawful conduct in this country has been of a serious nature.
Paragraph 8.1.1(1)(e)
A number of cumulative effects can be gleaned from the Applicant’s offending. First, his abovementioned offences against government officials charged with responsibility for maintaining peace and good order in the community is very strongly suggestive of him having failed to develop any measure of respect for the lawful authority that governs the Australian community.
Second, in a similar vein, he has failed to grasp the significance of sentences designed to give him the benefit of not spending time in actual custody. He has repeatedly missed the significance of the benefit of: (1) the imposition of a bond or fine or intensive correction order or home detention in lieu of actual custody; (2) a term in actual custody being suspended in his favour; (3) the requirements of laws and regulations governing the ownership, management and control of a motor vehicle on Australian carriageways; and (4) the requirements of a recognisance requiring him to do or refrain from doing something.
Third, his unresolved issues with alcohol and illicit substances have caused him to repeatedly fail to resist the compulsion to physically impose himself in what he perceives to be a difficult situation and to physically interfere with the personal rights of people in lawful authority and/or members of the general community. Both of those categories of people have a right to go about their business – be it in a private or official sense – without the physical interference that this Applicant’s offending has previously caused.
Fourth, people are entitled to feel that they safely own and can safely utilise items of their own personal property. They should not be expected to tolerate an offender who is incapable of drawing the line between what belongs to him and what belongs to others. This Applicant has convictions for damage to the property of others as well as being found guilty of an offence involving being in possession of goods suspected of being stolen.
Fifth, on any objective analysis, a consistently committed 35-year offending history must, in and of itself, be found to have consumed more than its fair share of the community’s law enforcement and judicial sentencing apparatus. The cost to the community compelled by this Applicant’s long history of offending is both inordinate and extraordinary. Allied to this finding is the reality that, but for their resources committed to this Applicant’s offending, the police could have dealt with other crime and performed other law enforcement responsibilities. Similarly, the courts could have addressed other cases in the never- ending effort to deal with lengthy court lists.
Therefore, the above-described cumulative effects of the Applicant’s repeated offending must, to my mind, strongly militate in favour of a finding that the totality of his offending in this country has indeed been serious.
Paragraph 8.1.1(1)(f)
As mentioned earlier, the Applicant’s movement records confirm a level of travel in and out of Australia. This has necessitated the completion of incoming passenger cards upon his re-entry into Australia in 2003, 2006, 2010, 2011, 2012 and 2014. On each of those cards, the Applicant was asked “Do you have any criminal conviction/s?”. On each and every one of those cards, the Applicant marked the “No” answer, meaning that he did not have any criminal convictions in Australia at the point at which each of the cards was completed. These answers were, of course, all incorrect because the offending history runs from 1986 to 2021 and thus encompasses each of the years in which the Applicant completed these cards upon re-entry to Australia.
The Applicant does not cavil with the finding that the cards were incorrectly completed. As I understood his evidence, he denies trying to deceive anyone as a result of doing so. In his written material, he made reference to these incorrectly completed cards and said this:
“I own the fact the arrival cards were incorrect and take full responsibility for my actions. Between 2003 and 2014 I had never been to prison, I realise I had been in trouble with the law but I did not consider this was recognised as criminal convictions.”[27]
[27]A1, item J, first page.
This explanation for the incorrectly completed cards is, with respect, simply not plausible. He acknowledges that he “had been in trouble with the law” but that this did not equate to “criminal convictions” such as to require him to answer “Yes” to the relevant question on each of the incoming passenger cards. I cannot accept his now-purported belief that not being placed in actual custody did not amount to a “conviction” per se. The Applicant is a man with English as a first language. He has a first-rate level of cultural familiarity with Australia, including its judicial system with which he is well familiar. It is not credible for him to suggest that after something like 23 sentencing episodes in Australian courts, he did not understand the nature of a conviction and/or the difference between a conviction and serving a sentence of imprisonment.
The Applicant’s conduct in falsely responding to this question in the incoming passenger cards on at least six occasions militates in favour of a finding that the totality of his unlawful conduct in Australia has been serious.
Paragraph 8.1.1(1)(g)
This sub-paragraph compels an enquiry into whether the Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain in Australia. I have checked the written and oral submissions and cannot locate any reference to any such warning. The language of this sub-paragraph makes it clear that the absence of any such warning should not be considered to be in the Applicant’s favour.
Overall, this sub-paragraph is not relevant to the determination of the instant application.
Conclusion about the nature and seriousness of the Applicant’s conduct
56.I have had regard to each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant sub-paragraphs to which I have referred, I am of the view that the totality of this Applicant’s offending can be readily characterised as “serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. I am satisfied that, were this Applicant to re-commit offences in any of the realms in which it has been committed thus far, individual victims and/or the Australian community could quite conceivably suffer physical harm and damage. Were he to again unlawfully interfere with the property rights of other people, those victims would suffer measurable material damage arising from the loss/damage to their property.
Were he to again refuse the dictates and requirements of lawful authority, be they in the form of oral directions to him from a government official acting in the course of their duty or in the form of a duly issued order of a court, his offending would, once again, consume a disproportionate level of the community’s police and judicial sentencing resources in their efforts to regulate his unlawful conduct.
Were he to again drink to excess and assume control of a motor vehicle on Australian carriageways, it is not at all beyond the realms of possibility that he could find himself primarily responsible for a catastrophic incident at the wheel of a car that could end or adversely impact his own life or the lives of other road users.
In the final analysis, I am of the view (and I find) that were this Applicant to re-offend, the nature of the harm would be serious and could involve physical, psychological and material harm to members of the Australian community including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant’s position - written material
In his Personal Circumstances Form (“PCF”), the Applicant was asked to outline any factors he believed would help to explain his offending. He responded thus: “I believe my offending driving while disqualified was a result of my business failure. My drinking didn’t help and that is why I have been dry for 12 months now and I have full focus on my metal [sic] and physical rehabilitation. My physical rehabilitation will be funded by Accident Compensation.”[28]
[28]G10, page 67.
The Applicant was also asked in his PCF about whether he had completed any courses or programs that will help him avoid further offending. He responded thus: “I’ve made myself available with Connects for drug and alcohol courses. I will live under the direction of my community service officer until 18/1/2022. Have completed Drug and Alcohol, Anxiety and Depression courses.”[29]
[29]Ibid.
Further in his PCF, he was asked to provide information on what he believed his future risk of offending would be. He responded thus: “I will make changes in my life due to my age. I believe I have my depression and anxiety under control. I will seek employment which will take the stress of my own business away.”[30]
[30]Ibid.
In his written statement of 21 September 2021, the Applicant addressed his mental health issues and how they are referable to his chronic difficulties with the abuse of illicit substances and alcohol. He described a level of engagement with the rehabilitative process during his time in the community, while he was in prison and while he was at the Villawood Immigration Detention Centre. He also spoke of becoming engaged with a psychologist since his arrival at the Christmas Island facility:
“…In recent times, I have been experiencing mental health issues. I sought to address them with counselling and completing courses including Anxiety and Depression and Drug and Alcohol. I engaged with counselling services when I was living in community and when I was in prison and in Villawood Immigration Detention Centre. I have engaged with a psychologist since arriving at Christmas Island and plan to continue to use this support so I can develop positive coping strategies for when I am feeling depressed or stressed. I have previously been diagnosed with depression. I believe through engaging with mental health support and from completing above courses I have a greater understanding of my mental health and how my substance use behaviours have impacted my personal life, my family’s life and my greater community.”[31]
[31]A1, item J, first page.
Later in this document, the Applicant spoke of an intention to, upon release back into the community, re-engage with a rehabilitative process. He described this intention thus:
“On my release, I will be required to complete community corrections order. I have volunteered for rehabilitation course in drug and alcohol. I will continue to address my depression and anxiety with ongoing counselling and mental health support.”[32]
[32]Ibid, first and second pages.
Towards the end of this document, the Applicant makes reference to a certain work injury he has suffered which, according to him, has adversely impacted his capacity to remain active and physically fit, which in turn, has directly impacted his capacity to work and enjoy his social life. The statement also makes reference to the Applicant’s embarrassment and remorse for his offending:
”…This situation has had a direct impact on my mental health as it has left me feeling dis-illusioned. My anxiety has increased as there were no clear communication or answers to my concerns before I received treatment…
As for my offending I take full responsibility for my actions. I am remorseful and embarrassed for the damage I have caused my family and community…”[33]
[33]Ibid, second page.
The Respondent’s position - written material
In its Statement of Facts, Issues and Contentions (“SFIC”), the Respondent makes the contention about there being a serious risk of the Applicant committing further offences, particularly driving offences, and that this risk is compounded if he fails to resolve his ongoing difficulties with alcohol.[34] In its SFIC, the Respondent, to my mind quite correctly, asserts that the Applicant’s criminal history is redolent of his long-term abuse of alcohol. Much as I have found in these reasons thus far, the Respondent is of the view that the Applicant’s long history of an adverse association with alcohol is, for all intents and purposes, the root cause of his offending.[35]
[34]R3, page 7, para [43].
[35]Ibid, para [44].
The Respondent acknowledges the Applicant’s completion of online rehabilitative programs in the areas of drug and alcohol abuse, depression, decision making and anxiety. The point sought to be made by the Respondent is that this asserted rehabilitation is quite recent and that the Applicant’s history of alcohol-related offending stretches back to 1986. Allied to this submission, the Respondent, to my mind correctly, notes that a number of sentences previously imposed on the Applicant – with the express purpose of assisting him to address and overcome his difficulties with alcohol – have not proven to be effective. In other words, the Respondent is saying that if rehabilitative measures have had little or no impact on the Applicant over the past 30-35 years of his offending history, there are unconvincing prospects of such interventions having any positive effect on him now. I agree.
The Respondent’s position can be crystalised in the following contention appearing in its SFIC:
“Given the applicant’s persistent recidivism over a very long period, it would be open to the Tribunal to find that the very recent steps taken by the Applicant are insufficient to reduce his risk of re-offending to an acceptable level.”[36]
[36]Ibid.
In terms of an assessed recidivist risk, the Respondent contends thus:
“The Tribunal can have no confidence that the Applicant would not reoffend. The potential risk to the public in this eventuality, specifically that he continues to drive without a licence and while intoxicated, is considerable, and the nature of the harm that may be caused to members of the Australian community extends from property damage through to death in a motor vehicle accident.”[37]
[37]Ibid, page 8, para [47].
The Applicant’s Oral Evidence
In the course of his cross-examination, the Applicant was asked about his rehabilitation. This is what transpired between him and the Respondent’s representative:
“Ms NG: I’m now going to ask you a few questions about your rehabilitation?
Applicant: Yes, certainly.
Ms NG: So you agree that alcohol has been a major factor in your offending?
Applicant: Oh, major.
Ms NG: You’ve used cocaine as well?Applicant: Yes, any sort of drug that would keep you awake or kick you on or kill the pain, I tried it.
Ms NG: Was the last time you used cocaine the middle of 2020?
Applicant: I recently lost a friend in suicide. So I was – he was addicted, and I was – I was trying to get myself straight too, and that sort of thing, and he came to my house on a Friday night and wanted to go to Darwin. And he knew I was pretty down and weren’t feeling the greatest. We had lost a friend some 12 months before. He said to me, ‘Let’s go to Darwin.’ It’s one of those things you – I said, ‘I got to think about it. I’ll talk to you on Sunday’ or something. And, anyway, I was too late. He – he hung himself on – on the Sunday night. So, yes. That’s what sort of what tipped me over the edge.
Ms NG: Are you okay to continue Mr Franklin?
Applicant: Sorry?
Ms NG: Are you okay to continue?
Applicant: I can’t hear you, sorry?
Ms NG: Are you all right to continue?
Applicant: I - give us a minute.
Ms NG: Sure?
Applicant: Yes, right.
Ms NG: Have you also used marijuana in the past?
Applicant: Yes.
Ms NG: You said that you’ve had access to alcohol and drugs while in prison?
Applicant: In prison? Did you say in prison? Prison?
Ms NG: Yes.
Applicant: Yes, partly in Glen Innes Correctional Centre.
Ms NG: What about while in immigration detention?
Applicant: Yes, there’s - yes, there’s access to that here.Ms NG: Would you agree that you use drugs and alcohol as a way to cope with depression and anxiety?
Applicant: Yes, I didn’t - yes, to cope with life.
Ms NG: Have you - you’ve previously had a psychiatrist?
Applicant: Yes.
Ms NG: And that was in Gosford, I think?
Applicant: Yes, actually on - - -
Ms NG: Did you complete your treatment with that psychiatrist?Applicant: Yes, I did some treatment with them and, I don’t know, I should have continued I suppose but once again you think you’re all right and then you take another hit and - yes, it’s pretty hard to respond really.
Ms NG: Is it right that when you were subject to home detention you had to abstain from alcohol?
Applicant: Yes.
Ms NG: Did you also have counselling or psychological intervention as a part of that?
Applicant: Yes.
Ms NG: I just want to take you also to the most recent ICO that you were subjected to?
Applicant: Yes.
Ms NG: Intensive corrections order, is it right that you were subject to supervision but that was suspended because of your low risk? That was on 28 July 2020? I’m looking at page 77 of the tender bundle if that help?
Applicant: I didn’t realise they had the ICO, I thought they just suspended the parole, and I was to continue the ICO till the 18th of this month.
Ms NG: All right?
Applicant: That’s under my assumption that I didn’t have to attend - I thought they suspended parole and I was just going to straight ICO. And I’d applied to do rehabilitation though Connects once I was released from prison, but obviously I was taken to Villawood.”[38]
[38]Transcript, page 17, lines 42-46, page 18, lines 1-45 and page 19, lines 1-16.
There followed some questions from me about the state of the Applicant’s rehabilitation and, in particular, whether it could in any way be regarded as complete or whether it remained a work in progress:
“Senior Member: All right. Now, I just had a question for you in relation to your rehabilitation. In your letter of 21 September 2021, you say that on your release –
‘On my release I will be required to complete a Community Corrections Order. I have volunteered for a rehabilitation course and drug and alcohol. I will continue to address my depression and anxiety with ongoing counselling and mental health support.’
Senior Member: You remember saying that, in that letter?
Applicant: Yes, sir.
Senior Member: All right. So it’s fair to say, isn’t it then, from what you’ve said there, that you’ve got an intention to get involved with the rehabilitative process if your visa is given back to you and you return to the community, that’s right, isn’t it?
Applicant: Yes, 100 per cent, sir.
Senior Member: All right. And the flow-on effect from that, of course, is that you accept, don’t you, that your rehabilitation is obviously not complete and that it remains a work in progress?
Applicant: Yes, sir. I also have a – did you get the referral for Odyssey House for the residential - - -
Senior Member: Yes. I’ve seen that. I’ve seen that.
Applicant: Yes.Senior Member: So the real state of your rehabilitation is that I suppose you could say you’ve made a start and you want to carry on from that start, but that you’ve got to get to the end, and as such your rehabilitation, as I said, is a work in progress. Would you agree with that?
Applicant: Yes. I think I’m in a – in the frame of mind that it will take me through till the end.
Senior Member: Okay. But you agree that you’ve got to get to the end?
Applicant: Yes, yes.”[39][39]Transcript, page 21, lines 5-47.
Conclusions on risk
My understanding of the evidence has led me to the following conclusions that I consider to be principally informative of the Applicant’s recidivist risk. It can be accepted that the Applicant has shown a level of insight to the effect that alcohol has been the principal driver behind the predominant part of his offending. This insight is consistent with the findings of judicial sentencing officers and report writers attached to the Department of Corrective Services.
At face value one can take the Applicant’s evidence evincing an intention to improve himself and the circumstances of his unfortunate and damaging involvement with alcohol and/or illicit substances. The number of courses he has completed in detention, evidenced by the certificates in the material confirming completion of those courses, goes some way in convincing me that he has an intention to self-improve. He spoke of resisting any return to abuse of either or both illicit drugs or alcohol during his time in prison and immigration detention.
At first blush, one may regard these developments as promising and indicative that the Applicant may have taken steps to overcome his problematic relationship with alcohol. Be that as it may, the stark reality for this Applicant is that he has, for many years now, been aware of his difficulties with alcohol and/or illicit substances and how such substance abuse has been at the heart of his pre-disposition to offend. He cannot escape the finding that, across this lengthy previous period where alcohol and/or illicit substances caused him to seriously offend, there have been sustained efforts by the courts and corrective services authorities to assist him with addressing those substance abuse issues.
He has been the subject of supervision orders, home detention orders and intensive correction orders, virtually all of which were predicated upon a genuine effort to assist the Applicant with his substance abuse difficulties. Viewed historically, none of those interventions have succeeded and it is thus safely open to the Tribunal to now cast doubt on the capacity of the current, or any future, interventions to achieve anything different.
As noted by the Respondent during closing submissions, while external agencies that have dealt with his offending have sought to impose supports and rehabilitative processes to assist him, he “has not always held up his end of the bargain”.[40] In the hearing before me he spoke about establishing some kind of connection with clinicians who could assist him with his substance abuse issues. This stated intention should be received with caution in circumstances where, for example, part of the sentencing regime for one of his offences for drink driving required him to fit an alcohol interlock device to his vehicle yet he failed, or refused, to do so.[41]
[40]Transcript, page 24, line 13.
[41] R2, page 42.
The unfortunate reality from the evidence is that, in the history of this Applicant’s difficulties with alcohol and/or illicit drugs, only a prison or detention environment has been effective at properly severing the link between him and those substance abuse issues. On that basis, I have little confidence that things will be any different upon a return of this Applicant to the community. The further point – and as he confirmed during his oral evidence – is that his rehabilitation remains as something he is yet to do and that he is certainly nowhere near completing it.
He agreed that he was essentially at the start of his rehabilitation process and it was necessary for him to see it through to its conclusion. The further stark reality for the Applicant is that the state of the expert evidence now before the Tribunal is of such an incomplete and inconclusive nature that no safe finding can be made about him having any lower recidivist risk now than what he had prior to his most recent removal from the Australian community. No clinician was produced to reliably tell this Tribunal that they have: (1) diagnosed the Applicant’s psychological symptomology behind his offending; (2) established any discernible pattern of rehabilitation to deal with those symptoms; and (3) formed any prognostic opinion about the Applicant’s prospects of successful rehabilitation.
The totality of the evidence is thus not helpful in terms of safely making any finding about any improved level of recidivist risk inherent in this Applicant. I am satisfied (and I find) that the evidence points to the Applicant representing, at best, a recidivist risk in the medium range, more likely in the medium-high range. Were he to be returned to the community, there are unconvincing prospects of him either successfully engaging with, or deriving any discernible benefit from, the rehabilitative process. On that basis, there is a likelihood of him relapsing into a pattern of alcohol and/or illicit substance abuse and consequently resuming a pattern of serious to very serious offending. I am of the view (and I find) that his recidivist risk is no different now to what it was at the time of his most recent removal from the Australian community.
Paragraph 8.1.2(2)(c):Out of an abundance of caution and for the sake of completeness, I make reference to paragraph 8.1.2(2)(c) of the Direction. This matter does not involve a “refusal to grant a visa to a non-citizen”. It involves an application for the “revocation” of a decision to mandatorily cancel the Applicant’s visa. This specific paragraph is not relevant to the determination of the instant application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been “serious.”
(b)I have found that if he were to re-offend, in the forms in which he has offended thus far, it would, more likely than not, result in physical, material, psychological and potentially catastrophic harm to members of the Australian community;
(c)I have assessed his recidivist risk now to be no different to what it was at the time of his most recent removal from the Australian community.
My analysis of the material before me leads me to the finding that this Primary Consideration 1 carries a heavy weight against the revocation of the mandatory cancellation of this Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
The material contains no reference to the commission of any acts of domestic violence by this Applicant. He certainly does not have any convictions for offending deriving from an incident of domestic violence. At the hearing, the Respondent’s representative said “There is no evidence of family violence in this case, so that’s not relevant in this matter”.[42] This Primary Consideration 2 is not relevant to the determination of the instant application.
[42]Transcript, page 24, lines 27-28.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under s 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant’s Written Material
In his PCF, the Applicant makes no mention of any connection, parental or otherwise, biological or non-biological, he may have with a minor child (i.e. a child under the age of 18 years).[43] In his abovementioned letter dated 21 September 2021[44] the Applicant says “I had a partner for 20+ years and have a 26yo son, currently studying in NSW. I would like to spend time with him again.”[45] Of course, this 26-year-old son is beyond the age of 18 years and is not relevant for the purposes of Primary Consideration 3. Elsewhere in the PCF, the Applicant refers to two nieces – child S and child H. The PCF also refers to “Number of nieces/nephews 8”.[46]
[43]G10, page 62.
[44]A1, item J.
[45]Ibid, first page.
[46]G10, page 66.
The Applicant’s Evidence in Cross-Examination
The Applicant was asked at the hearing about any parental or other connection he may have with any minor child or children in Australia. This is what transpired during cross-examination:
“Ms NG: One of the things the tribunal will need to consider is if there are any children, so people under 18 who are in Australia and who might be affected by the decision relating to your visa. Now as I understand your son is an adult, your niece is an adult?
Applicant: Yes, yes.
Ms NG:So would I be right to say that there are no children under 18 that the tribunal needs to know about?
Applicant: My brother’s two sons got two kids.
Ms NG: Sorry, your brother’s son’s kids?
Applicant: So they won’t be - - -
Ms NG: So your brother’s grandkids?
Applicant: Yes.
Ms NG: What is your relationship with them?Applicant: Purely the Christmas effect and the holiday effect, holidaying in Brisbane seeing them. Last time I saw them they were babies and what not, so that was over two years ago obviously because we can’t travel to Queensland or couldn’t.”[47]
[47]Transcript, page 13, lines 8-23.
The Respondent’s Written and Oral Submissions
In its SFIC, the Respondent makes the following submissions:
“It is not clear if the Applicant claims that the best interests of any minor children would be served by revoking the visa cancellation decision. The ‘Personal Circumstances’ form named no children (GD 62 and 64), but there are references elsewhere to nieces and nephews.
Subject to additional evidence or submissions from the Applicant detailing minor children whose best interests may be affected by the decision, the Respondent contends that this consideration should be given little to no weight in favour of revocation.”[48]
[48]R3, page 8, paras [51]-[52].
In closing submissions, the Respondent’s representative said the following:
“Turning then to the best interests of minor children. The applicant’s clear evidence is that he has no minor children of his own and the only close relative mentioned in his revocation request was a niece who is also an adult. He has today mentioned his brother’s grandsons. There is no evidence before the tribunal of his relationship with these children. It’s clear that he’s not their carer and he says he last saw them two years ago when they were babies. In our submission, it would be open to the tribunal to find that the best interests of these children are simply not affected by the decision under review.”[49]
[49]Transcript, page 24, lines 30-38.
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
I am mindful that the Applicant represented himself in the pre-hearing phase and at the hearing before me. I am therefore cautious about unfairly construing his evidence in a way that he may not have intended but may nevertheless have put on an inadvertent basis. I think it is fair to say that not even the Applicant was strongly pressing for or agitating about any connection he may have to minor children in Australia and what, if any, best interests of such children would be served in the event he were allowed to remain here. That said, I am hard pressed to identify any specific minor children referable to the language of the Direction relating to this Primary Consideration 3.
The Applicant’s son is now well past the age of 18 years and the allocation of any weight to his interests falls within the realm of Other Consideration (d) that deals with the strength, nature and duration of the Applicant’s ties to Australia. There was some scant reference to a niece, but it transpired that she too was an adult. As best I understood the material, the only minor children falling under the auspices of this Primary Consideration 3 are the grandchildren of his brother, about whom the Applicant spoke in cross-examination (as quoted above).
Sub-paragraph (a): the Applicant has only had a very limited physical presence in the lives of his brother’s two grandchildren. While we do not know how old they are, the Applicant made it clear that the last time he saw them they were babies and that he has not seen them for over two years. It is difficult to discern any nature or duration in the relationship between the Applicant and those relevant children. Their relationship is not parental and while there can be said to be an existing relationship between him and those children, there have been long periods of absence or limited meaningful contact between him and them.
This sub-paragraph (a) is of slight weight in favour of restoration of the Applicant’s visa status to remain in Australia.
Sub-paragraph (b): the Applicant’s own evidence confirms he has played little or no positive parental role in the lives of those relevant children thus far and that he is unlikely to do so in future. There is no evidence from the Applicant’s brother or, indeed any of the children’s parents to the contrary. On the other hand, there seems to be considerable cumulative time until both children attain the age of 18 years. There is no reference in the material to any court orders or other document referable to any parental role the Applicant will play, or is prevented from playing, in the lives of the relevant children.
This subparagraph (b) is of slight weight in favour of restoration of the Applicant’s visa status to remain in Australia.
Sub-paragraph (c): we do not know the extent of any impact of the Applicant’s prior conduct and any likely future conduct on the relevant children. They are most probably too young to be able to express or articulate any such past or future impact. The views of the children are not known either via their own voices or from their parents. It would be unsafe to assume that any of the children know “something” about the Applicant’s offending such that it has had, or will have, a negative impact on them.
This sub-paragraph (c) is thus of neutral value in ascertaining whether restoration of the Applicant’s visa status to remain here is in the best interests of the relevant children.
Sub-paragraph (d): this sub-paragraph is predicated with the words “the likely effect that any separation from the non-citizen would have on the child(ren)”. I have no way of knowing or gauging any such effect without any evidence from either the children, their parents or any independent observer, clinical or lay. Put simply, the state of the evidence does not facilitate any such assessment. It is not beyond the realms of possibility that he will, in future, be able to maintain telephonic and/or electronic contact with the children from New Zealand.
This sub-paragraph (d) is thus of neutral value in ascertaining whether restoration of the Applicant’s visa status to remain here is in the best interests of the relevant children.
Sub-paragraph (e): the pivotal question for this sub-paragraph is whether there are other persons already fulfilling a parental role in the lives of the relevant children. Clearly, there are. Once again, the Applicant was forthright enough in his oral evidence to confirm that the two sons of his brother have “got two kids” who are, of course, the only relevant children for this Primary Consideration 3. It is safe and logical to presume that day-to-day care for those children is performed by their current parents/guardians. There is nothing in the evidence to suggest that the Applicant will supplant or replace the parental role currently performed by the children’s parents/guardians.
This sub-paragraph (e) is thus of neutral value in ascertaining whether restoration of the Applicant’s visa status to remain here is in the best interests of the relevant children.
Sub-paragraph (f): the views of the relevant children are not known and, to the extent they are capable of being known, regard must be had to their respective ages. It is difficult to accept that children who were babies a couple of years ago are now capable of expressing any views about removal of their grand-uncle (i.e. the Applicant) from Australia. Similarly, there is nothing from any parent or guardian of the relevant children telling us about their views, nor from any other independent observer, lay or clinical.
This sub-paragraph (f) is thus of neutral value in ascertaining whether restoration of the Applicant’s visa status to remain here is in the best interests of the relevant children.
Sub-paragraph (g): there is no evidence that either of the relevant children have been exposed to family violence perpetrated by the Applicant or that he has abused or neglected them in any way. I have already found that there is nothing in the material pointing to the commission of any acts of family violence by this Applicant.
This sub-paragraph (g) is thus of neutral value in ascertaining whether restoration of the Applicant’s visa status to remain here is in the best interests of the relevant children.
Sub-paragraph (h): there is no evidence that any of the relevant children have suffered any physical or emotional trauma resulting from the Applicant’s conduct. Sub-paragraph (h) of paragraph 8.3(4) is not relevant.
Conclusion: Primary Consideration 3
I have had regard to each of the applicable factors in paragraph 8.3(4) of the Direction as they relate to each of the two relevant children. Put at its highest, with reference to both children I have only allocated slight weight in the Applicant’s favour pursuant to sub paragraphs (a) and (b). Given this dearth of weight, I find this Primary Consideration weighs, at best, only slightly in favour of revocation of the Reviewable Decision.
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[50] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case”[51]
[50]Direction, paragraph 8.4(3).
[51]Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
·breached the expectation in the immediately preceding sub paragraph (a); or
·there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Clearly, this Applicant has breached the Australian community’s expectations by his lengthy criminal record evidencing repeated breaches of Australian laws. Therefore, the Australian community “as a norm” expects the Australian government not to allow him to remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I have earlier found that the Applicant has committed offences against government representatives or officials due to the position they hold or in the performance of their duties.[52] To my mind, his convictions for these offences engage the principle in paragraph 8.4(2) which means the Australian community expects that the Australian government can and should cancel this Applicant’s visa.
[52] See paragraphs [32]-[33] of these reasons.
The final question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraph 5.2(4) and (5) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[53]
(c)Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age;[54] and
(d)the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a revocation of the mandatory cancellation.[55]
[53]Direction, paragraph 5.2(4).
[54]Direction, paragraph 5.2(4).
[55]Direction, paragraph 5.2(5).
In relation to (a), the term “limited stay visa” is not defined in the Act, but the Act does classify visas into categories. Relevantly for present purposes, s 30 of the Act contemplates both (1) “permanent” visas which permit a right to remain “indefinitely”; and (2) “temporary visas” which provide a right to remain which is conditional. “Limited stay” as used in the Direction seems to be a reference to non-permanent or “temporary” visas. This Applicant formally held a Subclass 444 Special Category visa (SCV) which, pursuant to s 32 of the Act, is deemed to fall within a class of temporary visas. A temporary visa per se, does not equate to a limited stay visa for present purposes. This component of paragraph 5.2(4) of the Direction is not applicable.
In relation to (b), the Applicant has resided in Australia since his early to mid-20s. He will be 59 next month. His involvement in conducting his own fencing business in Australia does speak favourably about his work history in Australia during his time here. He has parented one Australian citizen child.[56] He also has a commendable history of involvement in community rugby. Therefore, his participation in, and contribution to, the Australian community cannot be safely found to have been “short”. Consequently, this component of paragraph 5.2(4) of the Direction cannot be applied adversely to the Applicant in so far as the Australian community’s tolerance of his criminal and other serious conduct is concerned.
[56]To the best of my understanding, the Applicant’s biological son (now in his mid-20s) was born in Australia or is otherwise entitled to remain in Australia on a permanent basis.
In relation to (c), I repeat that the Applicant resided in Australia since his mid-20s. He is nearly 59 years of age. He has clearly spent the majority of his life here. This means that the Australian community has a higher than usual tolerance of criminal or other serious conduct by the Applicant.
In relation to (d), I am not of the view that the balancing exercise between (on the one hand) the nature of the Applicant’s conduct, or the harm that would be caused if the conduct were to be repeated, and (on the other hand), whatever countervailing considerations may work in his favour, is necessarily a principle referable to the community’s expectations for present purposes. This is because I am not of the view that the Applicant’s conduct and resulting harm from that conduct (thus far) has been of a sufficient magnitude such as to dispel any applicable countervailing considerations.
I am thus of the view that the Australian community’s expectations are modified such that the community has a higher than usual tolerance of criminal conduct by the Applicant. Nevertheless, because of: (1) his breaches of the community’s expectations; and (2) his offences and conduct against government representatives in the performance of their duties, I am of the view that the community expects the government can and should cancel his visa.[57]
[57] Direction, paragraph 5.2(3).
Conclusion: Primary consideration 4
Primary Consideration 4 weighs heavily against the revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations non-exhaustively listed at paragraph 9 of the Direction.
(a) International non-refoulement obligations
In its SFIC, the Respondent notes “the Applicant has not raised any claims which would engage Australia’s international non-refoulment obligations and none is apparent on the face of material. It is therefore not relevant to the review.”[58] This written submission has its echo in the Respondent’s oral closing submissions: “I’ll say here for the record there is no submissions made as to non-refoulment so again that’s not relevant in this case”.[59]
[58] R3, page 9, para [57].
[59] Transcript, page 24, lines 41-43.
There seems to be no contrary submission by the Applicant. In these circumstances, Other Consideration (a) is not relevant for the purposes of determining the instant application.
(b) Extent of Impediments if Removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant’s Written Submissions
In written submissions he has filed, the Applicant said the following:
“I have no family in New Zealand now. I was born in New Zealand in 1963 adopted out to [parents’ names redacted]. Both parents are deceased. My parents were alcoholics and I had a violent and abusive up bringing. This is why I left home as soon as I left school and had a job. My brother moved to Brisbane soon after me and still lives there. As for returning to New Zealand, I have no family left there or any contact with friend. So not familiar with the systems or employment or accommodation. Due to my injuries I fear I won’t find employment. Due to my Mental Health I don’t think I could handle the change which could be life threating. If I stay in Sydney I will on parole till August and then be on Intensive Community Corectional Order till 18 January 2022….”[60]
[Errors in original]
[60] G9, pages 53.
In another of his written documents,[61] while making reference to his recent diagnosis of Deep Vein Thrombosis (“DVT”) notes the following:
“…I am an older man and my fitness has been impacted by the ongoing pain and it has affected my mobility where I struggle to move around easily. The medications I am administered on Christmas Island makes me feel nauseous and affects my motivation and I have decreased energy levels.
I have ongoing concerns in relation to future airline travel, what will happen if I need to be transferred off island? Will I be able to productively return to employment were I was previously employed in a physical position in fencing construction. Will I be able to return to community, be it in Australia or New Zealand as a fully fit and physically able guy? This condition is on-going and can be a lifelong condition….”[62]
[61] A1, item H, second page.
[62] Ibid.
The Applicant’s Oral Evidence
During cross-examination, the Applicant was asked about his work history and employment and his capacity to establish a new fencing business in New Zealand. He was also asked about the nature and extent of his claimed mental health symptoms and physical difficulties with particular reference to his right knee:
“Ms NG: I’m going to ask you a few questions about your work history and your employment?
Applicant: Yes.
Ms NG: So you were a fencing contractor for about 20 years?
Applicant: Yes.
Ms NG: Is it right that that was a business that you built up?
Applicant: Yes. It’s under the business name of Plus Five Proprietary Limited.
Ms NG: And you started that business after you had a workplace injury?
Applicant: Yes.
Ms NG: When was that injury? When did you sustain that injury?
Applicant: I sustained the injury on a worksite. So I was - - -
Ms NG: Do you remember what year?
Applicant: 1999.
Ms NG: And you could continue that work if you were in New Zealand?
Applicant: I don’t think so, no. Not physically, no.
Ms NG: Why do you say that?Applicant:I’m 58, nearly 59. It’s a very physical job. I could possibly set up if I could get contractors to work for me, and that sort of thing. But I – I doubt whether I could be able to do it.
Ms NG:I’m going to ask you a few questions about your health, which I think is a related - - -?
Applicant: Yes.
Ms NG: So you are on medication for your back and for your knee?Applicant:Yes – oh, predominantly – not really on medication for my back or knee. I mean, there’s not – not a lot I do in here or in jail. So I would rather not take anti‑inflammatories. They’re not – I was addicted to painkillers so I’m shying right away from it. I’m on medication for the – blood thinners for the deep vein thrombosis, clotting in my legs. And just a supplement for my stomach and for – what is it – the inflammation.
Ms NG: Are you on medication also for depression and anxiety?
Applicant:Yes. I think I sent you through a copy of the – where is it – yes.
You’ve mentioned that you expect to need - - -?
Ms NG:Applicant: Mirtazapine.
Ms NG: To need surgery?
Applicant: Yes.
Ms NG: What’s the nature of that surgery?
Applicant: Which, my back or knee?
Ms NG: Well, that’s my question?
Applicant: Right. The knee - - -
Ms NG: What’s the surgery that you expect to need?Applicant:Well, it would be up to the specialist. I’ve only got half a cartilage in my right knee. But, as he told me, the technology has advanced. Every day, it gets better. So I’m not sure what they will do, whether they – I’ve had cortisone in my knee, cortisones in my back. So the next step is basically a full-blown operation.
Ms NG:And you’ve said that you – that wouldn’t be covered in New Zealand. Why do you say that?
Applicant: Well, it’s Australian accident compensation.
Ms NG:What treatment have you had for the leg injury that you had in immigration detention?
Applicant:The treatment for my leg injury, I was talking to a doctor the whole time. Due to COVID, it was only a phone – actually, I saw her once when we came in, and then the rest, when I injured it coming down the bunk, was basically phone calls. The swelling wasn’t going down, she was going to get me into - for the pain in the foot was just not, anti-inflammatories and pain killers weren’t helping it. And I think the following week that I left she was going to get me into hospital, but obviously with COVID it was all a - she dragged it out as long as she could so, yes. So anyway and then Saturday morning I was thrown on a plane and I’m on Christmas Island now, so I didn’t get any chance to - I never saw a doctor from that point to I got to Christmas Island after numerous requests and heavy swelling on my leg.”[63]
[63] Transcript, page 11, lines 36-47, page 12, lines 1-47 and page 13, lines 1-6.
The Respondent’s Written Submissions
In its SFIC, the Respondent notes: (1) the Applicant’s claimed need for surgery which he says would not be available to him in New Zealand because its cost is only covered by worker’s compensation insurance in Australia; (2) the Applicant’s concern that his mental health will be adversely affected due to him having no friends or family in New Zealand; (3) the Applicant’s currently prescribed medication for depression and anxiety; and (4) the Applicant’s diagnosis of DVT and his resulting ambivalence about whether he will be able to work as a fencing contractor in the future.[64]
[64] R3, page 9, paras [59]-[60].
In response to these claims, the Respondent contends the Applicant’s 20 years of experience as a fencing contractor holds him in good stead with reference to establishing a fencing contracting business in New Zealand. Further, the Respondent says he will be able to receive comparable help care and social welfare support in New Zealand and that there are no obvious language or cultural barriers preventing his successful return and re-integration into New Zealand.[65]
[65] Ibid, pages 9-10, paras [61]-[62].
In the final analysis, the Respondent contends that this Primary Consideration 2 should be given only limited weight in favour of revocation of the decision to refuse to revoke the mandatory cancellation of the Applicant’s visa.[66]
[66] Ibid, page 10, para [62].
Sub-paragraph (a): the Applicant is 58 years old, turning 59 next month. He has diagnosed mental health and physical health symptoms. Both sets of symptoms are currently the subject of some measure of treatment via prescribed medication. He has been prescribed Mirtazapine for his mental health issues and blood thinning medication for his DVT. He has a history of failing to effectively engage with the rehabilitative process for the very significant majority of his offending history. That said, there is little to cavil with the proposition (and finding) that Mirtazapine and blood thinning medication will be available to him in New Zealand. Similarly, if he is genuinely motivated to rid himself of his difficulties with alcohol and/or illicit substances, it is not a stretch of the evidence to find that the same or identical rehabilitative programs that have repeatedly been made available to him in Australia will also be available to him in New Zealand. I am not of the view that the Applicant’s age and state of health represent significant or insurmountable impediments to his return and re-settlement in New Zealand.
Sub-paragraph (b): The Applicant was born in New Zealand and came to Australia in his early-mid 20’s. He has made a number of return trips to New Zealand. It is difficult to accept that he will face virtually any language or cultural barriers upon a return to that country. As has been found by this Tribunal (differently constituted) in a previous case: “New Zealand is culturally and linguistically similar to Australia. There are no significant linguistic or cultural barriers facing the applicant if he returns to New Zealand. […]”[67] I am therefore not of the view that the Applicant will face any significant or substantial language or cultural barriers impeding his return and re-settlement in New Zealand.
[67] Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301 (“Tera Euna”), [101].
Sub-paragraph (c): I have earlier referred to the extent to which I think the Applicant’s age and state of health may impede his return and re-settlement in New Zealand. As best as I recall his evidence, he did not seem to cavil with the proposition that medication and remedial treatment for both his mental health and physical symptoms available to him in New Zealand would be similar or identical to that which has been available to him in Australia. I again refer to the authority of Tera Euna wherein it was noted that: “New Zealand has comparable standards of health care, social welfare and housing support to those in Australia. The applicant will have access to those services as a New Zealand citizen.”[68]
[68] Ibid [101].
I am mindful of the Applicant’s contention that the surgery he says he needs for his right knee may be something capable of being covered by Australian worker’s accident insurance. Be that as it may, it is not unreasonable to find that such surgery would be available to him in New Zealand as non-elective surgery in the New Zealand public health system in much the same way as would be available to him here. It goes without saying that, as noted in Tera Euna, Australia and New Zealand have comparable standards of health care.
On the specific issue of financial support, I have carefully reviewed the Applicant’s evidence given in cross-examination about him re-establishing a fencing contracting business in New Zealand. While he expressed doubt about whether he could do so, he did not entirely rule it out either. He said that he was “…58 nearly 59. It’s a very physical job.”[69] However, he also said, “I could possibly set up if I could get contractors to work for me, and that sort of thing.”[70] Therefore, it is not outside the realms of possibility that the Applicant would be able to establish a new fencing contracting business in New Zealand and financially sustain himself. Even if he does not do so, he will be entitled to the equivalent level of subsidised social welfare and economic support as is currently available to other citizens of New Zealand.
[69] Transcript, page 12, line 6.
[70] Transcript, page 12, lines 6-8.
On the specific issue of social support in New Zealand, the Applicant said this in cross- examination:
“Ms NG: And what family do you have in New Zealand?
Applicant: One sister, which I don’t really have any contact with.”[71]
[71] Transcript, page 11, lines 33-34.
Viewed in totality, I am of the view that this Other Consideration (b) is, at its highest, of slight weight in favour of revocation of the delegate’s decision under review.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a s 501 or 501CA decision on members of the Australian community, including victims of the non- citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
The Respondent has not called any evidence relating to any impact that the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible to enter the realm of mere conjecture and guess as to the impact this would have on any victim of the Applicant’s offending. Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
Also, I cannot find any reference to a statement from a victim speaking favourably about the Applicant remaining in Australia. Such a statement could attract discussion pursuant to the authority of PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235. However, no such discussion is required for present purposes.
(d) Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
At the hearing before me, the Applicant was asked questions about his family. He confirmed that both of his parents had passed away.[72] He also confirmed that in terms of immediate family in Australia he had a 26/27-year-old son and a brother. When asked about the relationship with his son, he said this:
“MS NG: What contact do you have with your son at the moment?
Applicant:We have a fragile relationship at the present, but over the Christmas period, we text each other and, yes, he’s pretty much wanting me to give up the alcohol and – before we sort of get back together. So that’s one – the sort of what I want to do, why I want to do it and rehabilitate.”[73]
[72] Transcript, page 9, lines 28-29.
[73] Transcript, page 9, lines, lines 35-39.
He was also asked questions about his brother and he spoke of regular contact with him and that he regarded his brother as a “good support”:
“MS NG: And what about your brother? What contact do you have with him?
Applicant: Yes, regular contact. He has been a good support.”
With further reference to his relationship with his adult son, the Applicant agreed that the relationship was problematic and that he had “stuffed it up”. He also agreed that if removed to New Zealand, he would be able to keep in contact with his son.
“MS NG: And I should have asked you before, where does your son live at the moment?
Applicant: My brother lives in Cleveland in Brisbane.
MS NG: And your son?
Applicant: He lives on the Central Coast or - - -
MS NG: And you’re not in a relationship right now?Applicant:We’ve – yes, well, I stuffed it up and I’ve got to fix it. So – there is a – there is a little bit of vocab going between us.
…
MS NG:If you were removed to New Zealand, you would keep in contact with [name of adult biological son redacted]?
Applicant: Oh, yes, for sure. That’s what I want to do. I mean, I want to get back together, you know?” [74]
[74] Transcript, page 10, lines 20-27 and page 11, lines 29-31.
The Applicant was also asked about the nature and extent of any relationship he may have with his son’s mother. This is what the Applicant said:
“MS NG:Sorry, I was asking about his mother. You said you were – you had stuffed it up and you need to fix it. Were you talking about his mother?
Applicant: Yes, with my – with my son…
Senior Member: So, Mr Franklin, are you there?
Applicant: Yes.
Senior Member: Right. You can - - -?
Applicant: I can hear you clearly, but I just can’t hear, quite.Senior Member: Yes. So you’re being asked questions about your family. So you’ve been asked a question about your son. You’ve told us about that. You’ve been ask [sic] a question about your brother. You’ve told us about that. Now we’re moving towards a question with your former domestic spouse who, of course, is [name of adult biological son’s mother redacted] - - -?
Applicant: Yes. Oh, okay. [name of ex-wife/partner redacted], yes.
Senior Member: Yes. So you’re being asked questions about the relationship with [name of ex-wife/partner redacted] . So focus on that, and Ms Ng will ask you some questions about that. Thanks, Ms Ng.
MS NG: Thank you, Senior Member. So are you - - -?
Applicant: Yes, well - - -
MS NG: in a relationship – sorry – with any person?
Applicant: With [name of ex-wife/partner redacted], no.
MS NG: No?Applicant:[name of ex-wife/partner redacted] has actually left – I think it was before COVID. And she was travelling around Australia. And contact is pretty hard. But – yes, like, our relationship is over. So we’re not together.”[75]
[75] Transcript, page 10, lines 42-45 and page 11, lines 7-27.
Therefore, the extent of the Applicant’s immediate family in Australia comprises: (1) his son; and (2) his brother. As mentioned, both of his parents have passed away and the relationship with his son is, on one view, estranged but on another view, could be said to be “under repair”. The Applicant’s relationship with his son’s biological mother is at an end. The relationship with the brother seems to be based upon regular contact and the Applicant sees his brother as a source of “good support”. That said, the brother did not give any oral evidence at the hearing although there is a written statement from him in the material.[76] In this statement dated 16 August 2021 the Applicant’s brother said
“…All Tonys family and friends live in Australia and it would be devastating to us for Tony to have to leave Australia as he has all the love and support of his family here in Australia as we are a close family and are there for each other, I thank you for spending the time reading this letter…”[77]
[76] A1, item p.
[77] Ibid.
Having regard to the state of the evidence and circumstances surrounding the Applicant’s son and brother in Australia, I am of the view (and I find that) the strength, nature and duration of his ties to immediate family members in Australia carries a moderate, but not determinative, level of weight in favour of revocation. I reach this finding on the presumption that each of the Applicant’s son and brother are Australian citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long he has resided in Australia, including whether he came here as a young child. He arrived in Australia in his early to mid-20’s in 1986. There are two periods of absence from Australia of approximately three years’ each. First, he departed Australia in February 1988, returning in October 1991. Second, he departed Australia in December 1995, returning in May 1998. Apart from these two periods, he has predominantly resided in Australia since the time of his initial arrival in the mid 1980’s.
I now make specific reference to the two tempering sub-elements in paragraph 9.4.1(2)(a). With reference to the first of those tempering sub-elements, I note that the Applicant’s earliest conviction in Australia dates from February 1986 which is the month following his arrival in Australia in January 1986. It is thus safe to find that he began offending “soon after arriving in Australia”. It is therefore possible to apply this tempering sub- element against the Applicant, or put another way, it does not assist him.
With reference to the second tempering sub-element, I am required to ascertain the extent of the Applicant’s positive contributions to the Australian community. I have already found that he has operated his own fencing contracting business in Australia for something like two decades.[78] He has also parented one Australian citizen child. The material also contains reference to him having involvement in community club rugby. It is therefore safe to find that the Applicant’s business contribution to the Australian community has been a positive one via: (1) his service to the community in building fences; (2) his employment of Australian labour and/or his engagement with Australian contractors; and (3) his involvement in his local community rugby scene. This tempering sub-element can thus be applied in favour of the Applicant.
[78] G10, page 68.
To my mind, the first of these two sub-elements does not assist the Applicant. However, the second one can be applied in his favour to attract a certain, but not determinative, measure of weight in favour of the Applicant pursuant to this Other Consideration (d) on the basis of how long he has resided in Australia and his positive contributions to the Australia community.
3. Strength, nature and duration of “other ties” – family and other social links
In his PCF, the Applicant spoke of ties with other family members beyond immediate family. He was asked about these ties during cross-examination and said the following:
“MS NG: I can – if we can go to page 66 of the G documents?
Applicant: You probably have to put it up for me, Miss.
MS NG: That will be on the – yes, that’s going to be on the screen, I think?
Applicant: I haven’t got the full copy. I think I only copied out the tender bundle.
MS NG: That’s all right. I think it’s on the screen for you?
Applicant: Yes.MS NG:So that second table there, you’ve listed three other close family members?
Applicant: M’mm.
MS NG: That’s an uncle, an aunt and a niece?
Applicant: Yes.
MS NG: How old is your niece?
Applicant: My niece? In her 30s now.MS NG:What contact do you have with Warwick, Marie or Shannon – or and Shannon?
Applicant:Not a lot, really. When I visit Brisbane, we always do the family rounds. If it’s Christmas time, you know, we will do the meet for lunch or dinner or something like that. There’s more of them - - -
MS NG: So they live in Brisbane? Yes?
Applicant: Yes – oh, on the Gold Coast now.”[79][79] Transcript, page 9, lines 44-45 and page 10, lines 1-18.
This evidence from the Applicant stands in contrast to the written evidence provided by his brother about the relationship between the Applicant and his non-immediate family members. In his written statement, the brother identifies the Applicant’s non-immediate family as “…Two Nephews and 1 great nephew and 2 great nieces, a cousin [name redacted], husband and two second cousins living in Qld. Cousin [name of further cousin redacted], husband, two second cousins and their five children living in WA.”[80] It will be recalled that the brother said they are “…a close family and are there for each other...”.[81]
[80] A1, item p.
[81] Ibid.
The material also contains references from seven people who speak positively about the Applicant:
·Mr SG is the proprietor of a carpet and vinyl installation and repair business in New South Wales. He has provided a written statement dated 20 August 2021[82] but did not give oral evidence at the hearing before me. Mr SG confirms he has known the Applicant for over 10 years. He says the Applicant has performed contract fencing work for him and that he has become a good friend of his. He acknowledges that the Applicant “has had some infringement issues” but considers that “for the most part” the Applicant is “a good man”;
·Mr RW has known the Applicant for the last 16 years. His undated statement appears in the material.[83] He did not give oral evidence at the hearing. He describes the Applicant as “a highly respected member of the community” who has “…been heavily involved with the coaching of many junior football teams on the coast…”. He describes the Applicant as taking an active role in his local community. He is willing to assist the Applicant with accommodation upon a return to the community;
·Mr BS is the proprietor of a painting and decorating business in New South Wales. He has provided a written statement dated 28 July 2021[84] but did not give oral evidence at the hearing before me. He has known the Applicant for approximately 25 years “through junior rugby league, senior rugby union and related jobs”. He speaks of the Applicant’s participation in the fabric of his local community and has, on numerous occasions, engaged the Applicant for fencing contracting work. He says that he has “found him to be hard, honest and a perfectionist at his trade, I have no hesitation in recommending him and his business”;
·Mr LE has owned and operated his own hire business since 1994. His written statement dated 13 August 2021[85] appears in the material and he did not give evidence at the hearing before me. He says the Applicant has been one of his customers since 1994 and that the Applicant has also treated him and his staff “with the utmost respect”.
·Mr PM has provided a short statement dated 25 August 2021[86] which appears in the material. He did not give oral evidence at the hearing before me. He has known the Applicant “for approximately ten years”. His statement concludes with “In that time I have found him to be a hard working, trustworthy, honest and generous acquaintance”;
·Mr HY is a customer of the Applicant’s fencing contracting business. Mr HY’s short statement appears in the material and it dates from 15 July 2021.[87] The Applicant performed the fencing work for Mr HY in the later part of 2019 and also performed repair work on a retaining wall at Mr HY’s home. He says that the work was “done well. They were on time and had a good work ethic. I am satisfied with the work done.”. His statement concludes with “I am happy to get them to do more work in the future if required”.
·Mr LM is the proprietor of his own timber business, which he has operated on the New South Wales central coast for 18 years. His written statement dated 29 December 2021[88] appears in the material and he did not give oral evidence at the hearing before me. He has known the Applicant for more than 18 years because the Applicant was a customer of his timber business. Mr LM says, “During this time Tony proved himself to be a loyal and trustworthy client and friend.”. They have developed a social friendship through playing “…oztag rugby and golf and having input in the local junior rugby league community…”. He adds that they have supported each other “in our current small business networking and sharing resources”. Mr LM concludes his statement by saying he would “no hesitation in offering Tony work if and when he returns to the Central Coast”.
[82]Ibid, item l. Note: all quotations in this bullet point sub-paragraph appear in this one-page reference of Mr SG.
[83]Ibid, item m. Note: all quotations in this bullet point sub-paragraph appear in this one-page reference of Mr RW.
[84]Ibid, item n. Note: all quotations in this bullet point sub-paragraph appear in this one-page reference of Mr BS.
[85]Ibid, item o. Note: all quotations in this bullet point sub-paragraph appear in this one-page reference of Mr LE.
[86]Ibid, item q. Note: all quotations in this bullet point sub-paragraph appear in this one-page reference of Mr PM.
[87]Ibid, item r. Note: all quotations in this bullet point sub-paragraph appear in this one-page reference of Mr HY.
[88]A6. Note: all quotations in this bullet point sub-paragraph appear in this one-page reference of Mr LM. Note also: this particular statement was sought to be filed by the Applicant in contravention of the two-day rule stipulated in ss 500(6H) and 500(6J) of the Act. This document was only able to be received into evidence because the Respondent consented to its inclusion as an exhibit filed on behalf of the Respondent. The Tribunal is accordingly obliged to the Respondent’s representative and her client.
The evidentiary differences between the Applicant and his brother about the extent of the Applicant’s ties to non-immediate family members is somewhat confusing. Be that as it may, there does seem to be some level of connectivity between the Applicant and those non-immediate family members, although it does not seem to be all that considerable. It can be accepted that he has other ties in Australia with social and business links. I think a moderate, but not determinative, level of weight can be allocated to the strength, nature and duration of ties between the Applicant and his non-immediate family members and other social links in Australia.
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration 4: links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a moderate, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a moderate, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
With reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1 and 4, each of which respectively weigh heavily in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries a slight weight in favour of revocation;
(c)impact on victims: not relevant; and
(d)links to the Australian community: carries a moderate, but not determinative, level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
163.Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
164.In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1 carries a heavy weight against revocation;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 weighs, at best, slightly in favour of revocation;
·Primary Consideration 4 carries a heavy weight against revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of weight attributable to the relevant Other Considerations (b) and (d), even when combined with the slight weight I have allocated to Primary Consideration 3, outweigh the significant, combined and ultimately determinative heavy weights I have respectively attributed to Primary Considerations 1 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 29 October 2021 to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 166 (one-hundred and sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
................[SGD]........................................................
Associate
Dated: 21 January 2022
Date of hearing: 6 January 2022 Representation for the Applicant:
Self-Represented
Solicitor for the Respondent: Ms Grace Ng (Senior Lawyer)
Australian Government Solicitor
Annexure A – List of Exhibits
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
T1
Tribunal Direction
12 November
–
R1
Section 501 G Documents (pages 1 to 130)
Various dates
16 November 2021
R2
Respondent’s Tender Bundle (pages 1 to 179)
Various dates
15 December 2021
R3
Statement of Facts, Issues and Contentions
(pages 1 to 10)15 December 2021
15 December 2021
A1
Applicant Submissions – Various:
a) Course Completion Certificate – Anxiety Therapy 101
b) Course Completion Certificate – Decision Making Skills
c) Course Completion Certificate – Depression Management
d) Course Completion Certificate – Drug and Alcohol Abuse 101
e) Course Completion Certificate – Life Coaching 101
f) Course Completion Certificate – Landlord 101: Managing Rental Properties
g) First Aid Certificate – TAFE NSW
h) Applicant Statement – Health Concerns
i) Odyssey House NSW Client Referral Form
j) Applicant Statement to Department of Home Affairs – Response to Visa Cancellation
k) Smart Recovery – Attendance Request and Participation Forms
l) Letter of Support – Mr SG
m) Letter of Support – Mr RW
n) Letter of Support – Mr BS
o) Letter of Support – Mr LE
p) Letter of Support – [Brother]
q) Letter of Support – Mr PM
r) Letter of Support – Mr HY
Various dates
9 December 2021
A2
Applicant Submissions – Medical Records (repeated in Exhibit R2)
a) IHMS Form 26
b) IHMS Health Induction Assessment (June 2021)
c) IHMS Health Transfer Summary (July 2021)
d) IHMS Health Transfer Summary (August 2021)
Various dates
16 December 2021
A3
Applicant Submissions – Psychologist and Other Medical Records
a) Psychologist Consultation –1December 2021
b) Psychologist Consultation – 9 December 2021
c) Psychologist Consultation – 25 November 2021
d) Psychologist Consultation – 18 November 2021
e) Psychologist Consultation – 10 November 2021
f) Psychologist Consultation – 3 November 2021
g) Mental Health Nurse Consultation – 27 September 2021
h) Counsellor Consultation – 21 July 2021
Various
19 December 2021
A4
Applicant Submissions – Course Completion Certificates
a) Emotional Healing 101
b) Understanding Addictions
Various
19 December 2021
A5
Applicant Submission – Human Rights Complaint Documentation
23 December 2021
23 December 2021
A6
Applicant Submission – Character Reference
29 December 2021
6 January 2021
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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