Giorgio Vincenzo Leotta And Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

Leotta and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4536 (11 November 2020)
Division:GENERAL DIVISION
File Number(s): 2020/5076
Re:Giorgio Vincenzo Leotta
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:11 November 2020
Place:Sydney

The Tribunal decides that the reviewable decision is set aside and that in substitution, the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is revoked.
...................................[sgd].....................................
Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION – mandatory cancellation of visa on character grounds under s 501(3A) – where offending was non-violent – whether to exercise discretion under Direction No. 79 – protection of the Australian community – where history of offending involved drugs – where applicant is no longer influenced by drugs – where likelihood of reoffending is low – best interests of minor children – where applicant has multiple minors that would be affected – other considerations – strength, nature and duration of ties – where applicant’s extended family is in Australia – extent of impediments if removed – where applicant has better prospects of rehabilitation in Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) s 499
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
11 November 2020

The applicant is a German and an Italian citizen, now aged 41, who has resided in Australia since he was three years old. He lived and was schooled in Sydney.
He is married with two children, a son aged 13 and a daughter aged 12, and has a step-son who is now an adult. He met his wife in 2004 and married in 2010. From 2004 until 2016, he was convicted of only certain minor traffic offences and did not take any drugs.
Until 2016, the applicant and his wife contributed to their church and community in both Tasmania and Melbourne. Their community work included acting as foster and respite carers, and extensive volunteer work with vulnerable members of the community.
The applicant has worked as a skilled tiler and stonemason for over 25 years. He has worked on large contracts around Australia.
In 2016, while he was in Sydney, his employer left him with unpaid wages of some $20,000, and he and his wife, who had remained in Melbourne, fell on very hard times. His car was repossessed, and his work tools were stolen, causing a loss of his livelihood. He became homeless and began to take drugs and steal. From 2016, he remained separated from his wife, who refused to have him return to the children since he was taking drugs. His drug taking led to a string of offences committed over the three years from 2016 to 2019.
His offending prior to 2016 and from 2016 to 2019 is described as follows in his Statement of Facts, Issues and Contentions (‘SFIC’):
In 1999, the Applicant was ordered to complete 100 hours community service for the offence of steal from person.
In 2003, the Applicant received a 12-month bond for a charge of common assault. The Applicant recalls he had a fight with his brother Samuel and was required to attend court.
Between 2008 and 2010, the Applicant had a number of traffic offences.
In 2016, the Applicant was apprehended by police after breaking into and stealing the contents of letterboxes. On 24 June 2016, the Applicant was convicted of possess prohibit drug, goods in personal custody, and armed with intent to commit indictable offence. The Applicant received section 9 bonds for the latter two offences. These bonds were called up on 16 March 2017.
On 16 August 2017, the Applicant was convicted of a number of offences, including larceny, possess prohibited drug, goods in personal custody, dishonestly obtain property by deception, aggravated break & enter, and armed with intent to commit indictable offence. The Applicant’s offending related to a large number of letterbox thefts, credit card fraud, shoplifting, and stealing other person’s belongings.
The Applicant was sentenced to 2 years imprisonment with a 12 month non-parole period. The non-parole period was reduced to 8 months and 15 days on appeal.
On release, the Applicant sought entry into various rehabilitation facilities with no success due to a lack of social supports and continued homelessness. The Applicant remained drug dependent.
On 18 April 2018, the Applicant pleaded guilty to a breach of family violence order after leaving an abusive voicemail to his wife.
On 23 August 2018, the Applicant was convicted of drive vehicle, illicit drug present in blood. He received a conviction with no other penalty and his licence was disqualified for 3 months.
On 12 September 2018, the Applicant was sentenced to 3 months imprisonment for larceny, dishonestly obtaining financial advantage by deception, and goods in custody suspected of being stolen. On appeal, orders were varied. The Applicant received a section 10A conviction with no other penalty for the charges of larceny and dishonestly obtaining financial advantage by deception and received an 18 month community correction order for the latter charge.
(footnotes omitted)
On 3 October 2018, the applicant’s Class BB Subclass 155 Resident Return visa was the subject of mandatory cancellation and the applicant sought revocation of that cancellation. The applicant was taken into immigration detention. A delegate decided to revoke the cancellation on 15 January 2019, warning him that if he ‘engaged in further criminal or other serious conduct, this may result in your visa being cancelled on character grounds.’ The applicant was then released from detention.
The applicant’s story continued as set out at [28] and [29] of his SFIC:
On release from immigration detention, the Applicant was again left with no social supports and limited finances. He remained homeless and drug dependent. The Applicant again sought to enter rehabilitation with limited success.
On 29 January 2020, the Applicant was sentenced to 4 months imprisonment for shoplifting, larceny, and goods in personal custody. The Applicant received a s10A conviction for enter enclosed lands not presc premises w/out lawful excuse. The Applicant also received a s10A conviction with no other penalty for contravene prohibition/restriction in AVO (domestic) having deposited money into his wife’s bank account for their children.
(footnotes omitted)
The 29 January 2020 conviction related to offending that occurred in late 2019. Parole was granted in February 2020. On 20 February 2020, the applicant’s visa was cancelled again, and this review relates to the delegate’s refusal to revoke the cancellation. Since February 2020, the applicant has been in immigration detention. Shortly before the hearing before me, the applicant was moved from Villawood to Christmas Island.
I heard evidence from the applicant, his mother, and his wife, and have letters written by his children and other members of his family. I also heard evidence from a consultant psychologist who interviewed the applicant.
The applicant will no longer be homeless if he is released from detention. His wife’s brother‑in‑law will accommodate him in Melbourne, where he hopes to reunite with his children. He hopes to complete his rehabilitation from drugs and return to his trade. There is reason to hope that he will be reunited with his wife.
Mr Watson-Munro, the psychologist who interviewed the applicant by audio-visual means, expressed the view that the applicant has considerable potential in life. He said:
There is a clear nexus between his emotional deterioration during the period of the breakdown of his marriage, his escalating drug use and attendant cognitive decline and his offending behaviour. It is apparent that the confluence of his drug use and in particular, his addiction to crystal methylamphetamines (ice), coupled to his reduced capacity to work and generally function, substantially impacted upon his judgment, impulse control and capacity for consequential thinking. It was essentially against this backdrop that he broke the law.
On a more positive note, Mr Leotta has now detoxified, his judgment has been restored and he has empathy and insight concerning his behaviour, attendant to his expressions of remorse. He has the support of his family in the community, is willing to undertake treatment to reinforce the progress he has made in terms of his drug use and is no longer using drugs nor associating with the criminal milieu. Arising from these considerations, I believe that he can be considered to be low risk of reoffending, if he is given the opportunity to resume his life in the Australian community.
He diagnosed the applicant as suffering from a Depressive Disorder (moderate and recurring). If he continues to remain drug-free, Mr Watson-Munro believed that the applicant has a low risk of reoffending.
He has now been drug-free for thirteen months. Mr Watson-Munro commented that, in general, if a patient is drug free for two or three years, he would be regarded as being in complete remission. The ‘low risk’ estimate was predicated upon continuing treatment and abstinence from drugs, and family support.
His period of offending coincided with the separation from his wife and children, and significant stressors. I am persuaded by Mr Watson-Munro’s view that those things had a clear nexus to his offending.
During his wife’s evidence, it became clear that she now thinks that the steps she took in 2016, of keeping him away from the children, had an unintended adverse effect and may well have contributed to his offending history. One got the impression that if the applicant recovers, she will contemplate resuming married life with him, which seems likely to assist him not to reoffend, as it no doubt did between 2004 and 2016.
During his cross-examination, the applicant explained difficulties he had while at liberty in the 2016 to 2019 period due to his homelessness and lack of income, being unable to afford bus fares at all times, or eat from time to time. He said that he asked to be referred to residential rehabilitation to assist him to rid himself of drugs, with no success.
He did not accept a suggestion made to him in cross-examination that he failed to co‑operate sufficiently with corrective services, although to the extent that he did fail to co‑operate, it seems that his depressed state and failure to recover from his drug addiction at the time were contributing factors.
The applicant appeared to me to be making a deliberate effort to tell the truth in his cross‑examination. I accept that he has insight into his offending and is remorseful about it.
The applicant’s mother said that if the applicant were returned to Germany, her mother, who lives there, is elderly and unwell. She also said that she no longer has contact with her two brothers, who also live there. She maintains contact with the applicant, who also has contact with his brother, by telephone.
In her statement, the applicant’s wife referred to the good years she and her husband shared with the children, including with her first born son and the applicant’s step-son. She expressed for herself and her children full support for the applicant. In evidence, she said that she probably managed it poorly. She once came to Sydney looking for him without success. She said that the applicant was unaware that she came to Sydney looking for him. For her part, she did not know at the time of his offending that he was making attempts to be admitted to rehabilitation. She said that until the program had been completed, he won’t be coming home, but that after it is completed, she said ‘we all have high hopes that he’ll be able to come home.’
Asked in re-examination whether she feared for the safety of herself or her children, she replied ‘[n]o. Not at all.’
I endeavoured to make more precise the evidence about the applicant’s plans if he were released. A Senior Alcohol and Other Drugs Counsellor from Uniting Re-Gen in Melbourne said that the applicant had been accepted into a six-week non-residential rehabilitation program which was to start on 9 November 2020, failing which he can start in early 2021.
Further evidence was given about this matter and on 6 November 2020, the applicant referred to a mental health program designed with a doctor in Sydney, with whom he spoke by telephone, and to the fact that he was unable to afford to pay for a residential rehabilitation program. He will seek to obtain subsidised residential rehabilitation after his return to Melbourne which he hopes to obtain. He was told by another person in Melbourne from Caraniche that he would help the applicant get on a waiting list for residential rehabilitation. The waiting list is because of the Melbourne lockdown. Apparently, some residential rehabilitation programs accept payment out of Centrelink payments which would be payable to the applicant.
He is, in any event, due to enter the Torque program in the near future. The applicant said that residential rehabilitation is his goal, and it is something he has to do for himself and for his family, and which will enable him to see his children.
DIRECTION NO. 79
Direction No. 79, made by the Minister under s 499 of the Migration Act 1958, binds decision‑makers, including this Tribunal.
Clause 6.3 sets out a number of principles which are to guide decision-makers. It is as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non‑citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
The applicant is entitled to the benefit of subclauses (5) and (7) of the principles. He has lived here for 38 of his 41 years, and has made a positive contribution to the community, not only in his 25 years as a skilled worker but in the work he did, together with his wife, as a volunteer.
Protection of the Australian community
The criminal record of the applicant has, for the most part, consisted of stealing in order to feed a drug habit over a three year period during his homelessness from 2016 to 2019. None of his crimes involved violence and none were sexual crimes. The sentences he was given were lenient, and although he acted in disregard of a warning given to him in 2019, the offending was described as motivated by a desire to eat. It was also, perhaps, affected by drug-taking, albeit of cannabis rather than methamphetamines.
If he follows his main goal of residential rehabilitation, and abstains altogether from drug‑taking, which he is strongly motivated to do, then his risk of reoffending is low, in the opinion of Mr Watson-Munro, which I accept. There cannot be said to be any certainty about this matter because the applicant has “fallen off the wagon” in the past, although as he said, the thirteen months in which he has not taken drugs is the longest period of abstinence since 2016. He will have support from his wife’s family in the first instance and later, there is reason to hope, from his wife. He is very anxious to reconnect with his children.
Best interests of minor children in Australia affected by the decision
If the cancellation were not revoked, his son and daughter would be deprived of his company until such time as they are able to travel overseas. They miss him and want his company. He loves them and wants to participate in their lives. It is clearly in their best interests that he is not deported. As an uncle to various minor nephews and nieces, some of which were born very recently, it may also be said that he is likely to be a good uncle, so that it is also in their best interests for him to remain in this country.
Expectations of the Australian community
As construed in the courts, this consideration relates to deemed expectations stated by the government rather than any estimation by the decision-maker of the likely attitude of the members of the community. Because of the applicant’s offending, the consideration favours non-revocation of the cancellation of the applicant’s visa.
The strength, nature and duration of ties
The applicant has strong ties not only to his wife and children but to his mother, father, and his and his wife’s siblings, and as an uncle to their children. This is another consideration affected by his long period in Australia and the time he has spent positively contributing to the community.
Extent of impediments if removed
The applicant speaks neither German nor Italian and has much better prospects of rehabilitation in this country than he would likely have in Germany or Italy, simply because of his contacts here, and the fact that he has lived all his life here. Both Italy and Germany are fine countries, of course, which will offer good opportunities if he remains well enough to take advantage of them.
EXERCISING THE DISCRETION
Balancing the various considerations which I have discussed, it seems to me that it would be a very strong thing to separate the applicant from his family and send him back to Germany or Italy, after he has lived here almost all his life. The circumstances which led to his drug taking and offending were very unfortunate, and not directly his fault. There are good reasons to think that he will overcome his substance abuse, continuing his abstinence which has already endured for thirteen months. His wife and children and other members of his immediate family support him staying in Australia. For some twelve years of the last 16 years, he has been a good citizen, father and husband. He has a strong motivation not to reoffend, and to avoid deportation by undergoing rehabilitation. Deporting him would devastate those family members and would devastate him.

The reviewable decision will be set aside, and the cancellation of the applicant’s visa will be revoked.

I certify that the preceding 36 (thirty-six) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC

.................................[sgd].......................................
Associate
Dated: 11 November 2020

Date(s) of hearing:
29 & 30 October 2020

6 November 2020

Solicitors for the Applicant: Mr D Pham, Legal Aid NSW

Solicitors for the Respondent: Mr W Sharpe, HWL Ebsworth Lawyers

[2020] AATA 4536

11 November 2020

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