GKQK and Minister for Home Affairs (Migration)
[2019] AATA 614
•1 April 2019
GKQK and Minister for Home Affairs (Migration) [2019] AATA 614 (1 April 2019)
Division:GENERAL DIVISION
File Number:2019/0225
Re:GKQK
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:1 April 2019
Place:Sydney
The decision under review is affirmed.
..........................[SGD].............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – NON-REVOCATION OF MANDATORY CANCELLATION OF VISA ON CHARACTER GROUNDS – expedited matter – Class CD Resolution of Status Visa – where visa was mandatorily cancelled and cancellation was not revoked – where Applicant does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – considerations in Direction 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
1 April 2019
BACKGROUND
GKQK (“the Applicant”) arrived in Australia in 1997 as the holder of a UC-456 Business (Temporary – short stay) visa. On 24 November 2015, his then visa[1] was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment for more than 12 months and was serving a full-time term of imprisonment. The Applicant subsequently applied for this cancellation to be revoked. On 22 November 2016, a delegate of the Minister for Home Affairs (“the Respondent”) refused to revoke the cancellation of the Applicant’s visa.
[1] Class CD Resolution of Status visa.
The Applicant applied to the Federal Court of Australia for a review of the delegate’s non-revocation decision dated 22 November 2016. On 30 April 2018, the Federal Court of Australia set aside (by consent) the delegate’s decision not to revoke the cancellation of the Applicant’s visa because at the time of that decision, there was an error in the decision proceeding only on the basis of a “possibility” that the Applicant might be owed protection obligations, when in fact the Tribunal had earlier found (in 2005) that protection obligations were (at that time) owed.[2]
[2] Exhibit 5, section 501 G-Documents, G3, page 25.
On 18 January 2017, the Applicant lodged an application for Protection (Class XA) subclass 866 visa, which was refused by a delegate of the Minister on 15 June 2017.[3]
[3] Ibid, G48, pages 339-353.
On 20 October 2017, the Tribunal affirmed that refusal decision[4] and a subsequent judicial review of that decision was also unsuccessful.[5]
[4] Ibid, G49, pages 359-369.
[5] Ibid, G2, pages 19-20.
On 7 January 2019, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa.
There followed the filing of the present application for review in this Tribunal on 13 January 2019.
ISSUES
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.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[6]
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…[7]
[6] [2018] FCAFC 151.
[7] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & 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:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8] I will address each of these grounds in turn.
[8] Ibid.
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)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant’s first language is not English and his evidence at the hearing before me was provided with the able assistance of a Mandarin interpreter. Suffice it to say that there was no apparent resistance from the Applicant to a suggestion that he does not pass the character test as he has a substantial criminal record. The Applicant’s position on this point was, to my mind, appropriately taken because on 24 April 2013, the Applicant was sentenced to an aggregate custodial period of six years and four months’ imprisonment for various, serious offences.[9] Although these sentences contained certain stipulations about release on parole, what matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[10]
[9] Exhibit 5, section 501 G-Documents, G6, pages 29-32.
[10] See Drake v Minister for Immigration and Ethnic Affairs (1979) 76 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) applies.[11] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[12]
[11] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79. Direction 79 is a Ministerial direction made pursuant to s 499 of the Act and must be applied by decision makers, including this Tribunal, on and from 28 February 2019.
[12] The Direction, paragraph [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[13]
Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[14]
[13] [2018] FCA 594.
[14] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)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 forfeit the privilege of, staying in Australia;
(iv)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;
(v)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;
(vi)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 be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also 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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s extensive offending can be readily gleaned from two principle documents contained in the material. His extensive criminal history numbers some six pages and is contained in his National Police Certificate.[15] His visa history is summarised as part of a protection visa decision record dated 18 June 2017.[16] The visa history is important because it demonstrates, in chronological terms, how the Applicant’s criminal offending has directly impacted on visa decisions that have been made in relation to him.
[15] Exhibit 5, section 501 G-Documents,G6, pages 29-34.
[16] Ibid G48, pages 339-340.
His criminal offending is particularized in his aforementioned National Police Certificate.[17] The offending seems to have two primary periods. The first period relates to mainly driving and licensing offences. The second period is of a significantly more serious nature devolving, as it does, into very serious drug offending.
The first period of the offending
[17] Ibid G6, pages 29-34.
Court
Court Date
Offence
Court Result
Newtown Local Court
7 March 2000
Use of an unregistered vehicle on a road area
Fined $400 plus required to pay court costs in the sum of $54
North Sydney Local Court
21 March 2000
Driving on road while licence suspended
Fined $700 plus payment of court costs ($54) plus disqualified from driving for 12 months
Use unregistered vehicle on road area
Fine $407
Use uninsured motor vehicle
Fined $407
Burwood Local Court
28 November 2005
Drive with middle range prescribed concentration of alcohol
Fine $400, plus payment of court costs ($65) plus disqualification from driving for two years
Drive on road etc. while licence suspended
Fine $600 plus payment of court costs ($65) plus disqualification from driving for 3 years
Drive with low range prescribed concentration of alcohol
Fine $400 plus payment of court costs ($65) plus disqualification from driving for six months
Ryde Local Court
12 September 2007
Drive while disqualified from holding a licence
Imprisonment for six months and disqualified from driving for two years
Possess an Australian driver’s licence without authority/excuse
Fine $200 plus payment of court costs ($70)
Driver/rider state false name/address
Fine $200 plus payment of court costs ($70)
Parramatta District Court (Appeal from immediately preceding sentence imposed by the Ryde Local Court)
12 December 2007
Driving while disqualified from holding a licence
Conviction confirmed, in lieu, entered into a nine month bond in the sum of $1000
Downing Centre Local Court
04 May 2009
Driving while disqualified from holding a licence
Imprisonment six months, suspended from entering a bond; six months to accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and report to the Burwood probation office within seven days. He is to continue with psychological counselling as may be directed by probation service.
Plus disqualified from driving for two years
The second period of the offending
Court Court Date Offence Court Result Sydney District Court 27 April 2012 Possess precursor intend to use in manufacture/production Qualified finding of guilt – limiting term; two years commencing 10/11/2009 Knowing deal with proceeds of crime Qualified finding of guilt – limiting term; two years commencing 10/11/2010 Use false instrument with intent Qualified finding of guilt – limiting term; one month commencing 10/05/2009 Manufacture prohibited drug Qualified finding of guilt – limiting term; three years commencing 10/11/2010 Possess unauthorised pistol Qualified finding of guilt – limiting term; two years commencing 10/05/2009 Have false instrument with intent to use Qualified finding of guilt – limiting term; one month commencing 10/05/2009 Possess drug manufacture apparatus to make prohibited drug Qualified finding of guilt – limiting term; one year commencing 10/11/2009 Possess precursor intend to use in manufacture/production Qualified finding of guilt – limiting term; two years commencing 10/11/2009 Possess precursor intend to use in manufacture/production Qualified finding of guilt – limiting term; two years commencing 10/11/2009 Supply prohibited drug in a commercial quantity Qualified finding of guilt – limiting term; six years commencing 10/05/2011
Sydney District Court 24 April 2013 Use false instrument with intent Imprisonment; one month commencing 10/05/2009 concluding 09/06/2009 Manufacture prohibited drug (8 Counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013 Knowingly deal with proceeds of crime (8 counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013 Possess precursor intend to use in manufacture/production (8 counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013 Have false instrument with intent to use Imprisonment; one month 10/05/2009 concluding 09/06/2009 Supply prohibited drug in a commercial quantity (8 counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013 Possess unauthorised pistol (8 counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013 Possess precursor intend to use manufacture/production (8 counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013 Possess precursor intend to use manufacture/production (8 counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013 Possess drug manufacture apparatus (8 counts) Imprisonment; six years and four months commencing 10/05/2009 concluding 09/09/2015, non-parole period with conditions; four years commencing 10/05/2009 concluding 09/05/2013
Further period of the offending – not captured by National Police Certificate
There is a slight disparity between the Applicant’s National Police Certificate and his visa history. The former is current to 12 February 2016 and ends with the sentencing episode at the Sydney District Court on 24 April 2013. The latter is dated 15 June 2017 and records a further offending episode by the Applicant after his release from criminal custody;
Date
Offence – Result
14 April 2016
Arrested by AFP and charged with possess controlled drug
29 August 2016
Convicted of possess controlled drug - Sentenced to 5 months’ imprisonment[18]
[18] Exhibit 5, s 501 G-Documents, G48, page 340 – Protection visa decision record, part 3: Migration History and Identity Assessment. See also Exhibit 6, Respondent’s Tender Bundle, page 92-93.
The Nature and Seriousness of the Applicant’s Conduct to Date
At the hearing, there was a contention put on behalf by the Respondent that it is simply impossible to say that the crimes for which the Applicant has convicted are not serious.[19] I agree entirely with that contention. It is undeniable that criminal offending punished by lawful authority by way of imposition of a six year term of imprisonment cannot be regarded as anything other than serious offending.
[19] See also Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”) dated 8 March 2019, page 6.
The Applicant commenced his offending conduct in this country in March 2000 and such conduct ran until 2016. As noted by the Respondent’s representative in her oral submissions, the Applicant’s offending is clearly serial in nature. His offending first came to the attention of lawful authority in 1998 when police acted on a complaint/report by a woman to the effect that she had been assaulted by the Applicant. While police made a report of the incident, it would appear that no charges or convictions followed.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b) The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
…
d) Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
e) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f) The cumulative effect of repeated offending;
...
i) Where a non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after escaping immigration detention but before being taken back into immigration detention;
…”
Sub-paragraph (a) of 13.1.1(1) of the Direction provides that crimes of a violent nature are viewed very seriously. While I accept that the Applicant’s offending history does not include offences of violence per se, there can little or no argument with the proposition that the Applicant’s possession of an unauthorised pistol in the milieu of offending as part of a criminal enterprise to manufacture methyl amphetamine cannot be described as anything other than indicative of a significant level of seriousness behind that offending. While there is no evidence of the commission of a violent offence arising from the Applicant’s possession of an unauthorised weapon, it is difficult to accept that there was not a clear and obvious “enforcement” purpose (or, at the very least, some related purpose) behind his possession of that firearm in circumstances where (1) he was apprehended with something in the order of $1.14 million[20] in cash and (2) police found him in possession of approximately 50kg of precursor chemicals for the manufacture of methyl amphetamine.
[20] The material contains reference in the Judge’s sentencing remarks to the Applicant being found in possession of $858,151.00 (Exhibit 5, s 501 G Documents, G11, page 55). At the hearing, the Applicant sought to correct that figure to the sum of $1.14 million.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are to be viewed very seriously, regardless of the sentence imposed. At the hearing, the Respondent’s representative propounded a contention that this factor should be taken into account in any assessment of the nature and seriousness of the Applicant’s conduct. According to that contention, while there is no evidence in the material of any violence against a child, there is a report of alleged violence against women on two specific occasions in 1998 and 2001.[21] The Respondent’s representative accepted that neither of those reported incidents resulted in any charge or conviction but, despite that, it was contended that it is never the less open to the Tribunal to take into consideration the fact that those two reports were made.
[21] Exhibit 6, Respondent’s Tender Bundle, pages 101-102.
I accept the basic tenor of that contention but adopt a cautious approach in basing any assessment of the seriousness of the Applicant’s offending pursuant to this sub-paragraph (b) to any significant extent. This is because of the words “… regardless of the sentence imposed;” appearing in the text of the sub-paragraph. In other words, for this sub-paragraph (b) to have any significant bearing on such an assessment, it is necessary for there to be a “crime” for which a “sentence [is] imposed”. Here, no such crime was found to be committed and no sentence was imposed consequent upon the respective reports of the Applicant’s conduct in 1998 and 2001. Therefore, this sub-paragraph (b), as was the case with sub-paragraph (a), ought to only be utilised as factors indicative of the seriousness but not conclusively determinative of that seriousness.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. Even a cursory review of the Applicant’s National Police Certificate and visa history demonstrates he has an offending history that runs from March 2000 and until 2016. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
In the early phases of his offending history, the Applicant (in my view) rightly received the benefit of non-custodial penalties in the form of, for example, monetary fines, the imposition of good behaviour bonds and disqualification from driving for a defined period. As outlined earlier in the summary of the Applicant’s offending history, there are two phases to it. It is clear that little or no deterrent effect was achieved by the imposition of non-custodial terms for his offences in the first period. This, in turn, compelled the sentencing courts to impose significant custodial terms for his offending. Viewed on a cumulative basis, the totality of the custodial terms imposed upon him since April 2012 comprises a very significant period of custodial time.
Those custodial terms (in bold) expressed on a cumulative basis for only the sentencing event that occurred in the Sydney District Court on 24 April 2013, are as follows:
·24 April 2013:
o Use false instrument with intent; 1 month
o Manufacture prohibited drug; 6 years and 4 months
o Knowingly deal with proceeds of crime; 6 years and 4 months
o Possess precursor intend to use in manufacture/ production; 6 years and 4 months
o Have false instrument with intent to use; 1 month
o Supply prohibited drug of a commercial quantity; 6 years and four months
o Possess unauthorised pistol; 6 years and 4 months
o Possess precursor intend to use in manufacture/production; 6 years and 4 months
o Possess precursor intend to use in manufacture/production; 6 years and 4 months
o Possess drug manufacture apparatus to make prohibited drug; 6 years and 4 months
I am thus of the view that upon an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction, the sentences imposed by the Courts for the crimes of this Applicant are clearly supportive of a finding that his offending is to be assessed as very serious.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. Looking at the two above mentioned periods of the Applicant’s offending, it appears he has committed something in the order of 12 offences in the first period and at least 10 in the second period.[22] On one view, absent the two reported incidents against a female in 1998 and 2001 for which the Applicant was not charge or convicted, his offending (that was actually dealt with by lawful authority) may not necessarily have been serious from its commencement in 2000. However, it is undeniable that it has evolved to a very serious level. For present purposes, my assessment of this Applicant’s offending is (1) that it is undeniably frequent and (2) it is escalating in seriousness.
[22] It must be noted that the Applicant was sentenced in 2012 to a qualified finding of guilt-limiting term for these offences and a term of imprisonment was imposed for such offences in 2013.
The Applicant arrived in this country in 1997. He has been in this country for approximately 21 - 22 years. Giving him the benefit of the time he has spent in criminal custody and/or immigration detention during his time here (circa seven years),[23] he has been dealt with by lawful authority – in the form of individual sentencing episodes – on no less than 9 occasions. This equates to a sentencing episode approximately every one year and eight months. Viewed another way, he has been in this country for 21 - 22 years and has committed at least 23 offences since 2000. Adopting the figure of 23 and dividing it by say, the 21 - 22 years he has been here, results in at least one offence committed each and every year of the totality of his time in this country. If one discounts his time in this country by the amount of time he has been out of the community as a result of finding himself in criminal custody and/or immigration detention, these ratios are even more sobering.
[23] For present purposes, I note that the Applicant was incarcerated in criminal custody for at least 5 years and in immigration detention for at least two years (probably longer).
In terms of making a finding about any trend of increasing seriousness in the Applicant’s offending, one need look no further than two things. First, the Applicant’s history of offending, where it is clearly escalating in terms of the seriousness of the actual offences and the resulting sentences. Second, the comments of the learned sentencing judge who sentenced the Applicant at the Sydney District Court on 24 April 2013, which are as follows:[24]
“…During the period August 2008 to May 2010, [the Applicant] was involved in a commercial enterprise involving the manufacture of the prohibited drug methamphetamine... He himself had control, perhaps with others, of a storage unit which other material the subject of the counts now before me, were stored. On his person and in that storage unit was approximately $850,000, which was clearly the proceeds of crime. It should not need repeating but I perhaps must, that the illicit trade in drugs causes considerable harm to those who ingest and use such drugs, but also significant cost to the community; costs in terms of the harm drugs caused; costs related to the sale of drugs; costs to law enforcement; costs to the insurance industry; costs to the courts; Those who are caught participating in this terrible trade should expect significant penalties. The penalties fixed by Parliament indicated that Parliament too takes a very serious view of such offences.
…
In this matter a firearm was found. It was not found in a situation where it could be readily accessed to harm another individual immediately, but the facts that drugs and firearms are kept in the same area is a matter of deep concern.”[25][My underlining].
[24] His Honour, Judge Haesler SC.
[25] Exhibit 5, Section 501 G-Documents, G11, pages 56-57.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the frequency of the Applicant’s offending and its increasing severity is such as to render his offending as very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The Applicant’s offending is broad in its scope. It demonstrates a lack of capacity to distinguish right from wrong. It has no respect for the harm that such very serious offending in relation to illicit drugs can cause the community. For present purposes, the most critical result of the cumulative effect of the Applicant’s offending is that it demonstrates that he is not respectful of the lawful authority governing the Australian community to which he seeks to be readmitted.
As noted by His Honour Judge Haesler SC at a sentencing episode on 27 April 2012, the cumulative effect of the Applicant’s offending is such that little or no rationalisation or explanations can now be accepted for it:
“A number of rationalisations for his offending behaviour were put forward. I cannot put any weight on them. What I can say is that he could not be sentenced on the basis he was simply warehousing for others or making unsuccessful attempts to make “Ice”. His involvement was too long, too involved, and he had access to too much money for him to be viewed as other than a principal in the matters which come before the court. I am quite convinced that others were also involved in this operation but he is as responsible as anyone for the matters which bring him before the court.”[26]
[26] Exhibit 5, section 501 G-Documents, G12, pages 87-88.
The further cumulative effect of the Applicant’s offending has culminated in him being removed from the mainstream community either through criminal custody or immigration detention. His offending also seems to have estranged the Applicant from his wife, who has been in China for something like a year. It has also estranged him from both his family and his wife’s family who, as I understood the evidence, all reside in China. The application of this sub-paragraph (f) leads to a finding that the cumulative effect of the Applicant’s offending and its increasing seriousness is clearly indicative of its very serious nature.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction concerns itself with whether the Applicant has committed any offences while he was in immigration detention, during an escape from immigration detention, or after escaping immigration detention but before being taken back into immigration detention.
While there is no evidence that the Applicant had escaped from immigration detention, there is evidence that the Applicant did commit an offence while in immigration detention. The Respondent’s Tender Bundle recorded an entry from the NSW Police on 14 April 2016, which indicates the Applicant was charged with two offences of possession of a controlled drug (methamphetamine) while he was residing at the Villawood Immigration Detention Centre.[27] As mentioned above, the Applicant was sentenced to five months’ imprisonment for these offences.[28]
[27] Exhibit 6, Respondent’s Tender Bundle, page 92-93.
[28] Exhibit 5, section 501 G-Documents, G48, page 340.
I am of the view that while the offence the Applicant committed is not as severe in magnitude as his principal offences of manufacturing drugs and possession of an unauthorised pistol to which he was sentenced in 2013, it is nevertheless an offence that is within the ‘realm’ of the Applicant’s offending and is, when viewed in conjunction with the Applicant’s history of offending, a serious offence. This 2016 offending is readily capable of falling into the ambit of sub-paragraph (i) of paragraph 13.1.1(1) of the Direction and as such, I find that it is capable of being categorised as serious.
I have regard to sub-paragraphs to (c), (g), and (h) of paragraph 13.1.1(1) of the Direction and do not consider those factors have application to the factual matrix presently before me.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e), (f) and (i) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. The Applicant’s criminal history is not a short one and his appearances before lawful authority are indeed quite numerous. On any reasonable view, the Applicant’s difficulties with lawful authority have dominated his time in this country. The most ominous factor militating against his immediate to short term prospects were he to be released into the community arises from his virtual, immediate return to drug offending in 2016 while he was in immigration detention.
Upon an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history, I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(2)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(2)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
To my mind, any meaningful assessment of the nature of any harm that could be occasioned to the community were the Applicant to reoffend can be readily seen from his almost immediate return to drug offending in 2016 while he was in immigration detention. No deterrent effect can be seen on the Applicant given that his offending was committed after his period of incarceration in criminal custody and then in immigration detention. He is clearly someone with unresolved substance abuse issues who has also been seduced by and lured into the false perception of “easy money” and “big money” apparently available to those who participate in the drug trade.
Although the Applicant has obtained a significant level of tertiary education and is qualified as an engineer, there is scant or no evidence of him ever having worked in a legitimate field of engineering in this country. Any prospect of him earning a living from such legitimate means in this country have, on the basis of the criminal offending which has dominated his life here, been long abandoned. I cannot recall any aspect of the Applicant’s evidence that spoke of wanting to re-establish his life in this country and to earn income by legitimate means for a commendable purpose such as making a life in Australia with his wife who would, presumably, want to return here to live with him.
At the hearing, the Applicant made no reference to any aspirations for obtaining legitimate, remunerative employment. He gave his evidence as if participating in a police record of interview or criminal trial following his apprehension for a serious offence. His evidence was oriented towards trying to make some kind of “deal” with the Tribunal by giving purported exculpatory evidence about knowledge he says he has about other “drug syndicates” operating in the particular area of Sydney where he previously operated.
In the absence of any convincing evidence either from the Applicant or, for example, an employer in the construction or engineering field that could offer him ongoing employment were he to returned to the Australian community, I am of the view that the Applicant will most likely return to his offending ways and, if so, such offending would, at the very least, be of a similar nature and severity as the offending which brought him before lawful authority in 2012 and 2013. Although perhaps a presumptive stretch, I think that given the escalating nature of his offending, the nature of harm arising therefrom could well be very serious.
This is an Applicant who was sentenced to a custodial term of six years and four months for offending involving an unholy concoction of illegal drugs, possession of the means to produce illegal drugs, circa $1.14 million in cash and possession of firearms. Were he to reoffend with even one of those components present in any future offending, then the nature of the harm to individuals or the Australian community could clearly be very serious.
I have difficulty in accepting any submission to the contrary. In this regard, I am mindful of the principle that the community’s tolerance for any risk of re-offending becomes lower as the seriousness of potential harm increases. Were this Applicant to re-offend, the resulting harm would be very serious and could conceivably involve the occasioning of very serious and even catastrophic physical or psychological harm to members of the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Any assessment of the likelihood of the Applicant reoffending and/or otherwise engaging in further serious unlawful conduct must commence with an examination of the extent to which the Applicant has insight into what he has done wrong in the past. His sentencing history is, to an extent, unique in the sense that he initially came before the District Court of New South Wales on 27 April 2012 for sentencing. That sentencing hearing was adjourned for the purposes of certain psychiatric evidence being received by the sentencing court as to the fitness of the Applicant to stand trial or to be dealt with for the various offences.
The medical evidence was eventually forthcoming and it culminated on a further hearing on 5 April 2013 to determine whether the Applicant was fit to have the charges tried or to otherwise please guilty to them. The findings of His Honour Judge Haesler SC on the question of fitness are as follows:
“The opinions of Dr Furst and Dr White do fit with the evidence before me and that which I have set out in my previous decisions in this matter … They also accord with the finding of the Mental Health Tribunal and the submissions of both Counsel.
When I apply those opinions to the matters of fact disclosed within them and then undertake my own independent consideration of the fitness – unfitness criteria noted above, I have no hesitation in concluding that [the Applicant] is now fit to be tried.”[29]
[29] Ibid G11, page 80.
Following this finding, the Applicant was then dealt with by the NSW District Court on 24 April 2013. This resulted in a sentencing regime containing the above head sentence of six years and four months.
There appears to be a contradiction in the evidence when one looks at the Applicant’s history with illicit drugs. On one hand, the Applicant says that he has no history of involvement with drugs as a user, but on the other hand, there are records indicating that he has failed at least 3 urinalysis tests while on parole. In its report of 24 March 2015, the NSW Justice and Corrective Services Commission notes the following:
“3. Urine test results
Nil recorded while in custody.
While on parole [the Applicant] has undergone urinalyses with the following results:
·3 March 2014 – drug detected (amphetamines and methamphetamine);
·7 April 2014 – drug detected (amphetamines and methamphetamine);
·15 May 2014 – drug detected (amphetamines and methamphetamine).
On 21 March 2014 [the Applicant] was issued with a formal warning from the State Parole Authority (SPA) that his parole would be considered for revocation due to his drug use. Community Corrections request the SPA time for [the Applicant] to address diagnosed is ongoing mental health and related drug use issue.”[30]
[30] Ibid G13, page 93.
This Commission also took note of earlier records that:
“…indicate [the Applicant’s] current attendance at the drug and alcohol counselling is irregular. He either failed to attend for urine testing or failed to produce a sample for urinalysis on 20 February 2015, 4 March 2015 and 5 March 2015. On 19 March 2015 [the Applicant] was subject to random urinalysis, the result of which is not yet available.”[31]
[31] Ibid G13, page 94.
In terms of the Applicant’s risk of reoffending, the Commission made the following assessment:
“5. Assessments as to the risk of recidivism
[the Applicant] has been assessed as being at a medium risk of reoffending.”[32]
[32] Ibid.
To my mind, the critical point about this finding is that it is made in a report dated 24 March 2015. The seminal question is what kind of finding the Commission would now make armed with the knowledge that;
a.the random urinalysis undertaken by the Applicant on 19 March 2015 (the result of which the Commissioner did not have for the purposes of its report) which produced a positive result;
b.the Breach of Parole Report dated 10 July 2015 which noted;
“RECOMMENDATION
[The Applicant] refuses to acknowledge his illicit drug use. He has been breached on four previous occasions, for illicit drug use, with warnings given to him by the State Parole Authority. It seems evident that the parolee’s use of illicit drugs is ongoing and he has failed to accept the warning given by the State parole Authority. It is therefore recommended that [the Applicant’s] Parole Order be revoked.”[33]
c.the fact that the Applicant reoffended in 2016 – yet again, involving illicit drugs – barely 12 months after its report; and
d.while in criminal custody in 2016, there is a Misconduct Report indicating that the Applicant verbally abused a correctional officer, shouting these words at him “You fucking stupid idiot … You stupid fucking dog, do your job serve me.”[34]
[33] Exhibit 6, Respondent’s Tender Bundle, page 3.
[34] Ibid page 1.
At the hearing, the Applicant’s evidence about his use of illicit drugs took on a tone of denial. He gave the impression of that he does not take drugs yet was prepared to be less than truthful about that issue in the past in order to receive a reduced sentence or a sentence that did not involve incarceration or psychiatric institutionalisation.
His apparent denial about any consumption of illicit drugs runs parallel to any acceptance or insight he may have for his culpability for any of the drug-offences that he has committed. It is difficult, indeed dangerous, to attribute any measure of weight (i.e. in favour of the Applicant) to the medical evidence received by the NSW District Court during the “Fitness Hearing” conducted on 5 April 2013. This is because, ultimately, His Honour Judge Haesler SC concluded that “…I have no hesitation in concluding that [the Applicant] is now fit to be tried.”[35] Based on this finding, the Applicant was eventually dealt with and sentenced by the NSW District Court on 24 April 2013, as detailed in the first four pages of his National Police Certificate.[36]
[35] Exhibit 5, section 501 G-Documents, G11, page 29.
[36] Ibid G6, pages 29-32.
The state of the evidence before the Tribunal is suggestive of the Applicant not having addressed the issues that have caused him to commit his very serious offences to date. Were he to be released back into the community at this juncture, I have a firmly held apprehension that there would be a convincing likelihood of the Applicant re-offending and, would most likely, cause serious and potentially catastrophic harm to other members of the Australian community.
I have identified four key characteristics of the Applicant’s offending history and conduct to date that point towards the convincing likelihood of his re-offending;
(a)First, the frequency of his offending since arriving in this country in 1997 is clear and obvious. He has been in this country for 21 – 22 years and in that time he has been dealt with by lawful authority – in the form of individual sentencing episodes – on no less than 9 occasions. This equates to a sentencing episode approximately every one year and eight months, excluding the approximately seven years he has spent in either criminal custody (circa five years) and immigration detention (circa two years);
(b)Second, the Applicant’s history evinces a consistent refusal to accept and respect lawful authority and to otherwise respect certain privileges that became available to him as a member of our community. The Applicant has a less than genuine approach to the way in which he deals with lawful authority. One need look no further than the findings of His Honour Judge Haesler SC on 5 April 2013 in finding that the Applicant was fit to be tried (or sentenced) for the relevant and very serious offences. His Honour Judge Haesler SC’s finding is demonstrative of the Applicant’s lack of respect for the institution of lawful authority. The Applicant’s unresolved issues with illicit drugs have caused within him an absence of any retribution. In those circumstances, the offending conduct becomes readily available of being repeated. The stark reality of the Applicant’s involvement with the Australian community is primarily one of rejecting the lawful authority that governs it and of not applying himself to lawful remunerative employment. Instead, he has chosen to allow the world of illicit drugs to dominate his activities in this country;
(c)Third, it should be noted that the Applicant talks down his involvement, both as a user and as a participant in the drug trade. He does not do so on any rational basis referring, for example, to lawful remunerative employment that he could engage in if returned to the community. He does so on the basis of purporting to do some kind of exculpatory “deal” with the Tribunal to apparently inform on other drug trade participants in exchange for a favourable outcome. I entirely discount and reject that evidence; and
(d)Fourth, there is next to no expert or other evidence that the factors giving rise to his propensity to offend have either been conclusively diagnosed or are otherwise the subject of effective remedial treatment by suitably qualified medical professionals. Allied to this observation (and finding) is the fact that the Applicant has next to no insight into the nature of either the causative factors behind his offending or the nature and potentially catastrophic harm resulting from that offending.
Conclusion: Primary Consideration A
To summarise, my finding is that this Applicant’s demonstrated lack of insight into his offending, coupled with his history of unresolved issues with illicit drugs and the resulting frequency of his offending all point to a convincing likelihood that he will engage in further, very serious conduct if returned to the Australian community. This is despite the best efforts of sentencing courts in their respective efforts to deter him from further, unlawful conduct. Were he to re-offend, the harm that would be occasioned to others would be both physically and psychologically substantial, very serious and, quite conceivably, catastrophic. In consideration of all of the evidence, and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of non-revocation.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(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 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.
Conclusion: Primary Consideration B
The Applicant has no infant children either in Australia or in China. As best as I understood the evidence, there are no other infant children – such as nieces/nephews/step children – where Primary Consideration B could apply. Accordingly, there can be no application of this Primary Consideration to the present factual matrix and it is thus of no relevance to the determination of this application.
Primary Consideration C: The expectations of the Australian Community
I turn now to the final Primary Consideration: the expectations of the Australian community. In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect. Paragraph 13.3(1)[37] of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of an Applicant’s offending is such that the Australian community would expect that they should not hold a visa.
[37] The terms of paragraph 13.3(1) of the Direction are identical to the terms of paragraph 13.3(1) of the now revoked Direction 65.
For the purposes of considering the present matter, the essential question with respect to Primary Consideration C is whether the Australian community, as a whole, would expect that a non-citizen with the Applicant’s history of offending and his demonstrated lack of insight into that offending, should retain the right to remain in Australia. Each offender’s criminal history and circumstances of offending is, of course, different. In deciding matters such as this, the question of whether the Applicant should retain the right to remain in Australia must be broken down into a series of components so that it can be properly understood and assessed.
The essential question posed by paragraph 13.3(1) of the Direction may be stated thus: would the Australian community expect the Applicant to hold a visa to remain in Australia in circumstances where:
·He arrived in Australia in 1997 as a 29 year old and commenced offending in March 2000, barely within years after arriving here;[38]
·He has committed at least 23 offences since he was first dealt with by lawful authority in this country in March 2000. This equates to the commission of just over one offence per year for the totality of his time in this country;
·His offending is undeniably frequent and clearly escalating in seriousness. This is clear from the two “periods” of his offending outlined in these reasons. It is also apparent from the additional “possess control drug” offence he committed in 2016 while in immigration detention;
·His 21 - 22 years in this country have seen him dealt with by lawful authority on no less than 9 occasions, equating to a sentencing episode approximately every one year and eight months of his total time in this country, excluding his time he has spent in criminal custody and/or immigration detention;
·His offending has seen him removed from the Australian community on a continuous basis, be it in the form of criminal custody or immigration detention for a period of at least seven years, comprising approximately five years in criminal custody and two years in immigration detention;
·For the totality of his offending in this country, the sentencing courts have seen fit to impose a total custodial head sentence of 76 months (six years and four months). In round terms, the Applicant’s offending has caused sentencing judicial officers, together with the actions of the Respondent relating to his visa, to remove him from the Australian Community for approximately seven years of the total 21-22 years he has been here;
·I have found that his offending in this country can only be described as very serious and where I have also found that there is a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community;
·There is no definitive, independent or expert evidence before the Tribunal of (1) any diagnosis of psychological or other factors predisposing the Applicant to offend, (2) that those factors have been identified and are now the subject of remedial therapy and management, (3) that the Applicant has demonstrated any level of insight into his offending so that (4) this Tribunal can confidently find that there is no real risk of him re-offending.
[38] As mentioned above, the Applicant’s offending conduct first came to the attention of lawful authority in 1998 when police acted on a complaint of a report by a woman to the effect that she had been assaulted by the Applicant. While police made a report of the incident, it would appear that no charges or convictions followed that reported incident.
I am mindful of the elements necessary to be balanced in any proper consideration and application of Primary Consideration C to the present factual matrix. Since the early 2000s, Courts and Tribunals have been defining formulae to assist a decision maker in reaching a decision that accords with the expectations of the Australian community.
As a general proposition, Deputy President Block, in 2003, said that one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[39]
[39] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
Deputy President Forgie of this Tribunal considered the Australian community’s expectations as part of her consideration of paragraph 13.3(1) of the Direction.[40] The learned Deputy President thought this paragraph leads a decision maker to:
102… conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…
…
103. Although ultimately a matter for judgement, the facts on which that judgement is made must be on the basis of facts established by the evidence. That evidence will not be limited to what is said in the sentencing remarks. The judgement that is ultimately made by a decision-maker must be able to be explained.
[my underlining]
[40] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
The circumspect nature of the Australian community’s expectations also seems apparent in the decision of Justice Mortimer in YNQY v Minister for Immigration and Border Protection:[41]
In substance this consideration is adverse to any Applicant…In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any Applicant who has failed the character test and has been convicted of serious crimes.
[my underlining]
[41] [2017] FCA 1466 at [76]-[77].
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
…[are] not a consideration dealing with any objective or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the Executive Government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[77] I do not consider that even if the Applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do.
[my underlining]
In Afu v Minister for Home Affairs,[42] Justice Bromwich said:
The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.
[42] [2018] FCA 1311 at [85].
The resulting question is whether an informed and reasonable member of the Australian community would consider that the Applicant has been adequately punished by serving a custodial term or terms for his very serious offending to date, such that he should now be allowed to remain in this country.
I cannot come to that conclusion in light of my findings as to:
(i)The very serious nature of his offending to date;
(ii)His demonstrated lack of insight into the nature of his offending;
(iii)My finding that the resulting frequency of his offending all point to a convincing likelihood that he will engage in further very serious conduct if returned to the Australian community;
(iv)My assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to reoffend;
(v)The Applicant’s 16 year history of offending, the escalating nature of that offending and the stark reality that judicial sentencing officers have deemed his criminal offending sufficiently serious such as to remove him from the mainstream Australian community for significant period of his time in this country;
(vi)The comments of the learned Justices Mortimer and Bromwich and Deputy President Forgie about how a decision maker applies paragraph 13.3(1) of the Direction in the current context.
I therefore find that the Australian community would consider that this Applicant, who has committed very serious offences, has breached the trust they have placed in him to obey Australian laws while in Australia. Accordingly, I find that the Australian community would expect that the Applicant should not hold a visa to remain here.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect, re-define his life and to participate as a responsible and productive member of the Australian community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[43]
[43] See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant came to Australia in 1997. He commenced offending some three years after that, in March 2000. His offending has seen him before lawful authority on the following occasions:
·March 2000;
·March 2000;
·November 2005;
·September 2007;
·December 2007;
·May 2009;
·April 2012;[44]
·August 2016.
[44] During the sentencing episode, the sentencing court imposed sentences on the basis of a “qualified finding of guilt” based on certain mental health issues propounded on behalf of the Applicant that were said to render him unfit or to be sentenced on those charges. There followed “Fitness Hearing” on 5 April 2013, at the end of which Judge Haesler SC said “I have no hesitation in concluding that [the Applicant] is fit to be tried.” Accordingly, the Applicant was sentenced, as a defendant fit to be tried (or sentenced), on 24 April 2013.
The material demonstrates a complete absence of any evidence of the Applicant’s participation in gainful employment. Tellingly to my mind, there is a total lack of any character references or letters of support, most notably from his wife.
Further, it can be fairly argued that any likelihood of him reoffending is yet to be tested in the community because he has been removed from that community on a continuous basis.
Conclusion: Primary Consideration C
Having regard to Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancelation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “Other Considerations” disclosed in the Direction:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[45]
[45] The Direction, paragraph [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
There are three relevant dates in this matter relating to this Other Consideration. They comprise:
(a)30 April 2018: The Federal Court of Australia, by consent, set aside the Respondent’s decision made on 22 November 2016 pursuant to s 501CA(4) of the Act not to revoke the cancellation of the Applicant’s visa. The Federal Court made the following notation to its Order:
“The respondent accepts that the Non-Revocation Decision was affected by error. The Reasons for Decision at [23] indicate that the respondent proceeded on the basis of only a possibility that the applicant might be owed protection obligations under the Refugees Convention, in circumstances where the Refugee Review Tribunal had found, on 22 August 2005, that the applicant was a person to whom Australia owed those obligations. In proceeding on the basis of a mischaracterization of the applicant’s history, in terms of whether there had been an express finding that protection obligations were owed to him in 2005, the respondent’s consideration of whether the cancellation of the applicant’s visa should be revoked, pursuant to s 501 CA(4) of the Migration Act 1958 (Cth), miscarried.”[46]
(b)On 18 January 2017, the Applicant had lodged an application with the Respondent (or the Respondent’s department) for a Protection (Class XA) Subclass 866 visa. That application was heard and determined on 20 October 2017, with the following outcome:
“Part 2: Assessment details.
The applicant… is refused a Protection visa subclass XA – 866 Permanent Protection Visa under s 65 of the Migration Act 1958 (the Act) for the following reason/s:
The applicant is not a person in respect of whom Australia has protection obligations as outlined in s 36(2)(a) or s 36(2)(aa) and is not a member of the same family unit as a non-citizen in respect of whom the Minister is satisfied Australia has protection obligations and who holds a Protection visa of the same class as that applied for by the applicant (s 36(2)(b) and s 36(2)(c) of the Migration Act 1958 (the Act)).”[47]
(c)On 20 October 2017, the Migration & Refugee Division of this Tribunal affirmed the immediately preceding decision. The Migration & Refugee Division of this Tribunal made the following findings:
“CONCLUSIONS
[46] Exhibit 5, Section 501 G Documents, G3, page 25.
[47] Ibid, G48, page 339.
72.For the reasons given above, the Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(a).
73.Having concluded that the applicant does not meet the refugee criterion in s.36(2)(a), the Tribunal has considered the alternative criterion in s.36(2)(aa). The Tribunal is not satisfied that the applicant is a person in respect of whom Australia has protection obligations under s.36(2)(aa).
74.There is no suggestion that the applicant satisfies s.36(2) on the basis of being a member of the same family unit as a person who satisfies s.36(2)(a) or (aa) and who holds a protection visa. Accordingly, the applicant does not satisfy the criterion in s.36(2).
DECISION
75.The Tribunal affirms the decision not to grant the applicant a protection visa.”[48]
[48] Ibid, G49, page 369.
Thus the Applicant has already had his protection claims assessed by making an application for a protection visa. He was found not to be owed non-refoulement obligations in June 2017 and that decision, although challenged by the Applicant through judicial review, has not been set aside. Accordingly, little or no weight ought be allocated to this Other Consideration (a) for the purposes of this decision.
(b) Strength, nature and duration of ties
The Applicant is presently aged 51 years, having arrived in Australia as a 29 year old in 1997. While the Applicant has never left Australia, it is also notable that he has spent a significant period of time here, some 22 years. However, that consideration must be tempered by the reality that he commenced offending soon after arriving in Australia (in 2000) and, accordingly, pursuant to sub-paragraph 14.2(1)(a)(i) of the Direction, less weight should be allocated to this Other Consideration (b) in those circumstances.
Apart from the Applicant’s participation in a local soccer club and some scant evidence about his engagement in remunerative employment, there is little or no evidence about any time he has spent contributing positively to the Australian community. In those circumstances and pursuant to sub-paragraph 14.2(1)(a)(ii) of the Direction, minimal, if any, weight can be attributed to this Other Consideration (b).
(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration (c) is of relevance in determining this application. There is no evidence to suggest that the Applicant has had any link to a major project or the delivery of an important service in Australia. There is no evidence before the Tribunal indicating there would be any impact on Australian business if the mandatory cancellation decision is not revoked.
(d) Impact on victims
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 for me to enter the realm of mere conjecture and guess as to the impact this would have on such victims. Such evidence may be difficult to adduce given the nature of the Applicant’s offending. His offending relates to the production of illicit drugs and the victims of such offending would comprise those who casually consume and who are otherwise addicted to those substances and, of course, those affected by the actions of people under the influence of those drugs.
I accept the Respondent’s submission[49] that victims, in particular, drug addicts and the victims of crime associated with drug addiction, would clearly be impacted by a decision allowing the Applicant to remain in Australia. Accordingly, I find that this factor attracts a measure of weight in favour of non-revocation of the Applicant’s visa and thus weighs against the Applicant.
[49] Exhibit 4, Respondent’s Statement of Facts, Issues and Contentions dated 8 March 2019, page 9, paragraph [46].
(e) Extent of impediments if removed
As I understood the material, there are very few impediments to the Applicant returning to China. I concur with the reasons cited by the Respondent in support of such a finding comprising: (1) he maintains fluently in Mandarin; (2) he arrived in Australia as a fully qualified to tertiary level, educated adult; (3) it would appear that all of his and his wife’s family are in China and, indeed, his wife has been in China for over a year; (4) it would be reasonable to expect that his wife would follow him and would most likely remain in China were the Applicant returned to China; (5) they have no children together or at all and (6) there is little or no evidence of any real connection or other social links between the Applicant and other Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
Having regard to the specific factors in paragraph 14.5(1) of the Direction, the Applicant is a man of 51 years of age in seemingly good health.[50] There are no substantial language or cultural barriers to his return and re-establishment in China.[51] As a citizen of that country, he will have access to any social, medical and/or economic support available to him in China.[52]
[50] Sub-paragraph 14.5(1)(a) of the Direction.
[51] Sub-paragraph 14.5(1)(b) of the Direction.
[52] Sub-paragraph 14.5(1)(c) of the Direction.
Conclusion: Other Considerations
The weight attributable to these Other Considerations can be summarised as follows:
(a)International non-refoulement obligations: is of little or no weight;
(b)Strength, nature and duration of ties: is of minimal, if any, weight;
(c)Impact on Australian business interests: is of no weight;
(d)Impact on victims: weighs against the Applicant;
(e)Extent of impediments if removed: is of no weight.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke 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 I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
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 Considerations A and C weigh heavily in favour of non-revocation and outweigh all other Primary and Other Considerations (combined) that may weigh in favour of revocation.
·Primary Consideration B is of neutral weight;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them even when combined with each other, outweigh the significant combined weight I have attributed to Primary Considerations A and C.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...........................[SGD].............................................
Associate
Dated: 1 April 2019
Date of hearing: 15 March 2019 Advocate for the Applicant: The Applicant represented himself Advocate for the Respondent: Ms Hervee Dejean (Solicitor) Solicitors for the Respondent: Australian Government Solicitor
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Immigration
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Administrative Law
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