GNZQ and Minister for Immigration and Border Protection (Migration)

[2018] AATA 426

GNZQ and Minister for Immigration and Border Protection (Migration) [2018] AATA 426 (8 March 2018)

Division:GENERAL DIVISION

File Number:           2017/7597

Re:GNZQ  

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Deputy President K Bean

Date:8 March 2018

Place:Adelaide

The decision under review is affirmed.

..............[Sgd]..........................................................

Deputy President K Bean

CATCHWORDS

IMMIGRATION – Cancellation of visa on character grounds under s 501 – Consideration of principles under Ministerial Direction 65.
CONSTITUTION – Whether unconstitutional or unlawful for Minister to detain the application prior to removal.

PRACTICE AND PROCEDURE – Whether appropriate to set aside the decision under review and remit the matter to the Minister with directions – Whether direction should be made that the Minister not exercise the discretion until the applicant has served his sentence of home detention – Decision under review affirmed.

LEGISLATION

Migration Act 1958, ss 499, 501
Administrative Appeals Tribunal Act 1975, s 43
Direction No. 65 – Migration Act 1958

CASES

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

REASONS FOR DECISION

Deputy President K Bean

8 March 2018

1. The applicant is a 34-year-old Albanian citizen who has resided in Australia since June 2004, when he was 21.[1]

   [1] Exhibit 1, D1/21.

2. On 18 November 2011, he was granted a Class BB Return (Resident) Subclass 155 (Five Year Resident Return) visa.[2]

   [2] Exhibit 1, D1/31.

3. The applicant seeks review of a decision of a delegate of the Minister for Immigration and Border Protection made on 21 December 2017[3] to cancel his visa under s 501(2) of the Migration Act1958 (the Act).

   [3] Exhibit 1, D1/5.

4. That decision was made on the basis of the applicant’s criminal history and a determination by the delegate that he did not pass the character test and his visa should be cancelled.

   THE APPLICANT’S CRIMINAL HISTORY

5. The applicant has been convicted of the following offences in Australia:[4]

   [4] Exhibit 1, D1/28-29

Court	Court Date	Offence	Outcome
District Court of SA	13 Oct 2016	Traffic in commercial quantity of controlled drug – basic (4) traffic (type unknown) in a controlled drug – basic (2)	Sentenced to 5 years 5 months imprisonment (non-parole period 3 years). Home detention order.
Adelaide Magistrates Court	24 Nov 2009	Enter an intersection or marked foot crossing (red light). Fail to comply with breath analysis directions. Drive under disqualification or suspension. Fail to comply with Bail Granted Agreement	Convicted fined $1500. Driver’s license disqualified for 2 years. Convicted 21 days imprisonment. Suspended sentence bond $200, 1 year Convicted, discharged without penalty.
Holden Hill Magistrates Court	29 Oct 2009	Cultivate a controlled plant	Convicted. Good behaviour bond $500, 2 years.
Pt Adelaide Magistrates Court	11 Jun 2009	Drive under disqualification or suspension	Convicted, 14 days imprisonment suspended sentence. Bond $200, 12 months.
Holden Hill Magistrates Court	20 Jan 2009	Possess article to commit offence (suspicious circumstances)	Convicted. Discharged without penalty.
Elizabeth Magistrates Court	31 Oct 2007	Drive under disqualification or suspension	Convicted. 7 days imprisonment. Suspended sentence bond $100, 12 months.
Pt Adelaide Magistrates Court	29 Sept 2006	Unauthorised person drive motor vehicle on road Drive under the influence, unauthorised person drive motor vehicle on road.	Convicted. Dismissed without penalty Convicted. Fine $800.00 Driver’s license disqualification 12 months from 3/10/06.
Pt Adelaide Magistrates Court	14 Sept 2005	Unauthorised person drive motor vehicle on road drive unregistered motor vehicle on a road	Convicted. Fine $50.

1. The circumstances of the applicant’s most recent offending are described in the sentencing remarks of Judge Brebner of the District Court of South Australia.[5] The applicant pleaded guilty to four counts of trafficking in commercial quantities of a controlled drug and two counts of trafficking.

   [5] Exhibit 1, D1/34-37.

2. The sentencing remarks are accurately summarised in the respondent’s Statement of Facts and Contentions as follows:

   [The] applicant procured cannabis and methylamphetamine on behalf of the principals of a drug ring which was trafficking in the Iron Triangle;

   His offending occurred over approximately a six week period;

   He would receive orders for drugs from a person and would fill these orders and deliver the consignments to that person;

   On four separate occasions in September and October 2013, the applicant procured four separate commercial quantities of cannabis which weighed a total of 13 pounds. During the same period, he also procured a non-commercial quantity of one pound of cannabis and 1.75 grams of methylamphetamine for the same person.[6]

   [6] Respondent’s Statement of Facts, Issues and Contentions at [10].

   STATUTORY FRAMEWORK AND ISSUES

3. Section 501 of the Act relevantly provides as follows:

   (2)  The Minister may cancel a visa that has been granted to a person if:

   (a)  the Minister reasonably suspects that the person does not pass the character test; and

   (b)  the person does not satisfy the Minister that the person passes the character test.

   …

   Character test

   (6) For the purposes of this section, a person does not pass the character test if:

   (a)  the person has a substantial criminal record (as defined by subsection (7)); or

   …

   Substantial criminal record

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   (a) …

   (b) …

   (c) the person has been sentenced to a term of imprisonment of 12 months or more; or

   (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

4. It follows that the issues for my determination are as follows:

   (a)Whether I am satisfied that the applicant passes the character test; and, if not

   (b)Whether his visa should be cancelled.

   DOES THE APPLICANT PASS THE CHARACTER TEST?

5. There is no dispute between the parties that the applicant has a “substantial criminal record” as defined in the Act on account of his criminal history, given that he has been sentenced to two periods of imprisonment totalling more than 12 months. It is accordingly clear and not disputed by the applicant that he does not pass the character test and the discretion to cancel his visa is invoked. The next issue for the Tribunal is whether in the exercise of that discretion, the visa should be cancelled.

   SHOULD THE APPLICANT’S VISA BE CANCELLED?

   The legal context

6. In considering whether to cancel the applicant’s visa, the Tribunal must comply with Ministerial Direction No. 65 as required by s 499(2a) of the Act. Direction No. 65 was issued by the Minister on 22 December 2014 and is binding on the Tribunal from that date.

7. Paragraph 6.2 of the Direction provides “General Guidance” to the Tribunal in relation to the exercise of the Tribunal’s discretion. It provides:

   (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

   (2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.

   (3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

8. Paragraph 6.3 of the Direction then sets out a number of “Principles” to be applied by the Tribunal, including the following:

   (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 vulnerable members of the community such as minors, 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)…

   (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.

9. Paragraph 7(1)(b) of the Direction provides guidance as to how the discretion is to be exercised:

   7.How to exercise the discretion

   (1)    Informed by the principles in paragraph 6.3 above, a decision-maker:

   (a)…

   (b)    must take into account the considerations of Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa.

10. Paragraph 8(1) of the Direction states:

    8.Taking the relevant considerations into account

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case.  There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

11. Paragraph 9 of the Direction sets out the primary considerations that a decision-maker must take into account in deciding whether to cancel a non-citizen’s visa:

    9.Primary considerations – visa holders

    (1)In deciding whether to cancel a non-citizen’s visa, the following are primary considerations:

    (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.

12. Further, there are other considerations that are also to be taken into account that are set out in paragraph 10. They are:

    1.International non-refouelment obligations;

    2.Strength, nature and duration of ties to Australia;

    3.Impact on Australian business interests;

    4.Impact on victims; and

    5.Extent of impediments if removed.

    PRIMARY CONSIDERATIONS

    Protection of the Australian Community

13. With respect to this consideration, the Direction relevantly provides as follows:

    9.1Protection of the Australian community

    (1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

    (2)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.

    The nature and seriousness of the applicant’s conduct

14. With respect to this consideration, the Direction relevantly provides:

    9.1.1     The nature and seriousness of the conduct

    (1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:

    …

    (e)    The sentence imposed by the courts for a crime or crimes;

    (f)     The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

15. The Minister relies in particular on the applicant’s 2016 convictions in relation to drug trafficking offences, which resulted in him being sentenced to five years and five months imprisonment to be served on home detention.[7]

    [7] Exhibit 1, D1/28.

16. The nature of this offending was described by Judge Brebner in his sentencing remarks as follows:

    You were procuring significant quantities of cannabis and also a quantity of methylamphetamine on behalf of the principals of a drug ring which was trafficking in the Iron Triangle.

    Your crimes amount to a course of conduct which extended over a period of about six weeks. One Whitaker was the person with whom you were dealing, he would give you orders for drugs and you would fill his orders from sources around Adelaide and deliver the consignments to him, either in Adelaide or at Stirling North, near Port Augusta. You received very little for your efforts, in that Whitaker paid you a mere $50 for each pound of cannabis you procured, plus petrol money. You were not the only person who was procuring drugs for Whitaker and his accomplices.

    On four separate occasions in September and October 2013 you procured four separate commercial quantities of cannabis for Whitaker, which weighed 3 lb, 4 lb, 3 lb and 3 lb respectively. During the same period you also procured a non-commercial quantity of cannabis for him which weighed a pound. The cannabis you procured weighed a total of 14 lb and at the then prevailing prices it would have been worth a total of between about $32,000 and $34,000 if it were to be sold in pound lots, and significantly more if it were to be sold in smaller amounts at street level.

    Finally, and also during the same period, you procured 1.75 g of methylamphetamine for Whitaker which, and again at the then prevailing process, could have realised up to about $1,400 if sold at street level and again significantly more if it were to be cut and sold in smaller amounts.[8]

    [8] Exhibit 1, D1/34.

17. The Judge also noted:

    You were a solid citizen up until you were introduced to methylamphetamine about eight years ago by a female with whom you were infatuated, however, the relationship only lasted a matter of months and by the time it was over you were addicted and destitute. You remained addicted for about five years until you ultimately renounced drugs after you were arrested for your current crimes and you have remained drug-free ever since.[9]

    [9] Exhibit 1, D1/35.

18. The Minister also relies upon the great harm caused to the Australian community by drugs and illicit substances such as those trafficked by the applicant and refers to the matters recorded in the Illicit Drug Data Report 2015-16 prepared by the Australian Criminal Intelligence Commission.[10]

    [10] Exhibit 2, Supplementary Documents, SD1.

19. On the other hand Ms McGrath, who appeared for the applicant, has directed my attention to the fact that:

    The maximum penalty for a conviction of Traffic in commercial quantity of controlled drug (cannabis) under the Controlled Substances Act 1984 (SA) is a fine of $200,000 or imprisonment of 25 years, or both s 32(2), for trafficking a controlled drug 10 years or $50,000 or both s 32(3).[11]

    [11] Applicant’s Statement of Facts, Issues and Contentions, p 5.

20. She also relied upon the fact that:

    [The applicant’s] offences during the period 2008 to 2009 occurred at a time when he was suffering from addiction to methylamphetamines. The addiction severely impaired his judgement. It is widely accepted that amphetamine increases risk-taking type behaviours.[12]

    [12] Applicant’s Statement of Facts, Issues and Contentions, p 6.

21. Ms McGrath also relied upon the fact that all of the applicant’s offending from 2008 onwards occurred in the context of a drug addiction and should be seen in that light.

22. Having regard to all of the matters I have referred to, I consider the applicant’s offending to be of a relatively serious nature and of a kind which poses a significant risk to the community. Having said that, his offending was not of the most serious kind and did not involve the infliction of any form of direct physical harm on other individuals. By far the most serious offending he has been involved in concerns the drug trafficking offences which occurred over a limited period of time at a time where the applicant was in the grip of a drug addiction. I also accept that while his role was important in facilitating the activities of the relevant trafficking network, he was not an instigator of, or key player in, that trafficking, and played a limited role in the nature of being a courier. These matters are reflected in the fact that the sentence he was given was well below the maximum sentence available for offences of the kind he committed.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

23. The Direction provides with respect to this consideration as follows:

    9.1.2The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

    (1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    i.information and evidence on the risk of the non-citizen reoffending; and

    ii.evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).

1. It is clear that if the applicant were to engage in further drug trafficking activities, this would result in some harm to the community. However, the real issue is the likelihood of the applicant engaging in further such offending.

2. The applicant relies upon the fact that he has undergone significant rehabilitation since his offending in late 2013, and has been substantially drug-free since then, as reflected in the remarks of the sentencing Judge:

   You are remorseful. You are employed and you are valued by your employer. You have been provided with references and between them your referees speak well of you, your work ethic and your determination to rehabilitate yourself. You thus appear to have turned your life around in the three years since your arrest.

   You have been on supervised bail for a very long time and your compliance with bail has been exemplary. You have been tested for drugs on several occasions with negative results. You did, however, return a positive result to one test but the prosecution do not dispute your explanation as to how this occurred innocently. You are motivated, you have travelled a significant distance along the road to complete rehabilitation and your future prospects appear to be good.

   You have a criminal record but it has been largely overtaken by your recent progress.

   …

   You no longer appear to pose any threat to the safety of the community and you otherwise satisfy the criteria for a home detention order.[13]

   [13] Exhibit 1, D1/35.

3. However, the applicant has acknowledged that, approximately a year after these remarks were made in October 2016, he had a very serious lapse in October last year, when he took cocaine in breach of his home detention conditions. I note this also occurred after the applicant had been issued with a notice of intention to consider cancelling his visa, which was dated 4 August 2017.[14]

   [14] Exhibit 1, D31.

4. On 5 October 2017, a random drug test revealed the result that the applicant had taken cocaine.[15] The applicant acknowledged and explained this in his Statutory Declaration of 5 February 2018 as follows:

   However eventually I got so lonely that I paid for a call girl to visit me. She brought cocaine with her. I felt so ashamed of giving in. I then continued with the OARS counselling, I was really upset when the October 2017 test result came back positive. I was so upset that I had failed myself. OARS was very supportive and gave me additional support and counselling.[16]

   [15] Exhibit 1, D2/282.

   [16] Exhibit 3, [42].

5. He elaborated on this during his oral evidence, indicating that at the time this occurred he had had a dental procedure and was not working due to pain resulting from this. He also said he had taken large amounts of Panadeine Forte which impaired his judgment. As he was lonely, he contacted Adelaide Escorts and asked for a call girl, who then visited him. It apparently turned out that she had been at a “buck’s show” at Moonta, and had cocaine with her. He acknowledged asking her if “he could have a line too”. A random drug test was then undertaken the following day, which resulted in the positive test.

6. With respect to the risk of the applicant engaging in further drug-related offending, the respondent points to the fact that his good behaviour has not been tested outside of the controlled environment of home detention, and even in that context he has succumbed to further drug taking, in breach of home detention conditions. As I have noted above, this also occurred at a time when he was at risk of having his visa cancelled. The respondent contends, “accordingly, it is submitted that the Tribunal cannot be satisfied that the applicant will not relapse into drug addiction and criminal offending, and that he has yet to be rehabilitated”.[17] The respondent has also drawn my attention to the applicant’s admission that he was apparently taking Panadeine Forte well in excess of the prescribed dose at the time he then proceeded to take cocaine as well.

   [17] Respondent’s Statement of Facts and Contentions, [26].

7. The applicant contends that he is “now by and large rehabilitated from his drug addiction”[18] and relies upon the fact that, in an almost five year period, he has had only one relapse when he was depressed and feeling isolated. He explained in his evidence that since then he has sought and obtained extra support from his drug rehabilitation service provider, OARS Community Transitions. He also explained that aside from the other factors operating at the time, his relapse occurred in the aftermath of the breakdown of a relationship with a partner he had been hoping to marry in March this year.  He said that “by early 2017 she found she could no longer cope with the confined living circumstances of home detention and we broke up”.[19]

   [18] Applicant’s Statement of Facts and Contentions, p 6.

   [19] Exhibit 3, [40].

8. But for the instance of further drug taking in October last year, I expect I would have concluded that the applicant now presented a very low risk to the community. However, this very recent lapse significantly undermines my confidence in the extent and durability of the applicant’s rehabilitation.

9. As I have alluded to, there are a number of aspects of this incident which are concerning. It is of concern that prior to taking cocaine, the applicant had already taken pain-killers in excessive amounts, showing a propensity to resort to intoxication when under stress. He also took cocaine despite being aware that it was a breach of his home detention conditions and could, if discovered, lead to him being sent to prison, something which ordinarily would be expected to operate as a significant deterrent. In addition, he took cocaine despite being on notice that the Minister was considering cancelling his visa, again something which might have been expected to act as a significant deterrent, and in circumstances where his behaviour was not explained by addiction. Although I have no evidence of other incidents of this kind, I also note the applicant’s evidence that the drug testing to which he is currently subject is random in nature. In these circumstances, it is not possible to be certain that there have not been any other instances of drug taking since 2013, and I do not have the benefit of a professional opinion as to the likelihood of the applicant engaging in further drug taking, or the circumstances in which this could occur.

10. While I acknowledge that the applicant has made substantial efforts to rehabilitate himself, which have been largely successful, it is apparent that he is still susceptible to resorting to drug use when stressed and isolated. In my assessment, this has the consequence that there remains some risk that he will use drugs again while on home detention. I consider there is no real risk of him lapsing into addiction and possible drug trafficking while he remains on home detention and subject to imprisonment for further episodes of drug taking. However, on my assessment, there remains some risk that having completed his sentence and no longer being subjected to drug testing and other forms of supervision, the applicant would once again lapse into drug taking and that this could in turn lead to some form of involvement in drug dealing or trafficking. That risk is contributed to, in my view, by the fact that, for reasons I will go on to describe later in my reasons, the applicant remains at risk of significant social isolation both during and after his current period of home detention. 

11. Having regard to all of the matters I have referred to including the commitment to rehabilitation and to his employment he has demonstrated to date, in my view the risk of the applicant once again becoming addicted to drugs is low, and the likelihood of him engaging in further drug-related criminal conduct is lower still. However, particularly in view of his recent lapse, I consider there remains a meaningful risk of him engaging in further drug taking leading to criminal conduct and resultant harm to the community.

12. Accordingly, I consider that this consideration militates in favour of cancelling the applicant’s visa, as that would eliminate what I have found to be a small but meaningful risk of the applicant committing further offences, in particular drug-related offences, if he were to remain in Australia.

    Best interests of minor children in Australia affected by the decision

13. It is acknowledged by the applicant that there are no minor children in Australia who will be affected by the cancellation of his visa.

    Expectations of the Australian community

14. With respect to this consideration, paragraph 9.3 of the Direction provides as follows:

    (1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision makers should have due regard to the government’s views in this respect.

15. The respondent contends that:

    The applicant’s actions in procuring drugs for drug gangs to sell to vulnerable members of the community shows a clear disregard for Australian laws, and the serious impact of ice addiction in particular on the Australian community. Further, his repetitive driving offences also demonstrate a disregard for the adverse impact of his behaviour on the Australian community.

    The applicant’s offending would cause the community to expect that the applicant should not continue to hold a visa. This factor should also be given significant weight in favour of cancelling the applicant’s visa.

16. In his Statement of Facts, Issues and Contentions, the applicant has contended as follows:

    It is submitted that the Australian community would have regard to the length of time that [the applicant] has resided in Australia and the sentence imposed on him.

    … the Ministerial Direction states that Australia has a low tolerance of criminal or other serious conduct by people who have been participating in and contributing to the Australian community for only a short period of time. However, it is submitted that tolerance may be moderated by the severity of the criminal conduct and circumstances in which [the applicant] was participating in the activity.

    …

    The Australian community would have regard to [the applicant’s] work ethic and desire to live a stable life. Until his work rights were cancelled … he had been engaged in gainful employment. From his employment income, [the applicant] managed to meet the costs of living and was also actively putting aside $200 per week into a dedicated savings account to purchase his first home. …

    Given these circumstances, it is submitted that the Australian community would accept that [the applicant] should be given a second chance. He has demonstrated a strong work ethic, community profile, and is respected by his peers in Australia. … [The applicant] is well regarded and his character endorsed by those who know him personally and professionally.[20]

    [20] Applicant’s Statement of Facts, Issues and Contentions, p 8.

17. I accept that opinion may well be divided within the Australian community as to whether the applicant’s visa should be cancelled. His offending is not at the more serious end of the scale and his more recent offending is explained, if not excused, to a large extent by his drug addiction. He has made significant efforts to rehabilitate himself and appears to have been largely drug free since 2013, albeit he has been subject to supervision since commencing his sentence of home detention in October 2016.

18. In addition, the applicant has formed meaningful social connections in Australia and has made a positive contribution through his work as a tiler, in particular, whilst working for Mr Fortunato Scarfo as a tiler in his business, Inline Tiling. Mr Scarfo has provided a Statutory Declaration[21] and also gave evidence at the hearing. He said the applicant was a very hard worker and a highly valued and trusted employee. He said that the applicant had become his most senior and valued tiler and had become a leader and mentor within the business. He said that he went overseas on holiday for seven weeks in May 2017, essentially entrusting the business to the applicant while he was away. He said, “I received exceptional reviews from clients upon my return from overseas”.

    [21] Exhibit 6, Statutory Declaration of Mr Fortunato Scarfo dated 5 February 2018.

19. Mr Fortunato further explained that his plan had been to transition the business into bathroom renovations, with the applicant “to look after the staff and builders of Inline Tiling”.[22] However, he had not been able to fully implement this plan since the applicant’s visa was cancelled and he lost his work rights. Mr Fortunato stated:

    Since [the applicant] has not been able to [work] with me, I have lost work. I had six staff including [the applicant]. Now I have two. I relied heavily on [the applicant] to supervise a lot of work. Now I have to do the day to day tiling myself.[23]

    [22] Exhibit 6, [13].

    [23] Ibid [15].

20. A substantial proportion of the Australian community may consider that, having made such a positive contribution to Australia, and made such significant efforts and progress toward rehabilitating himself since falling victim to ice addition, the applicant deserves to remain in Australia. On the other hand, as I have explained above, the applicant’s recent lapse into further drug taking is a complicating factor. It suggests there remains some risk that the applicant will engage in further drug taking, and perhaps further offending.  In addition, it is relevant that the applicant engaged in prior criminal conduct commencing in 2005 and was convicted for cultivation of drugs in late 2009, although there were no convictions between 2010 and 2016, and it seems likely that if the applicant had not become addicted to ice, his offending would have been relatively minor and would not have persisted.

21. It appears that social isolation is a factor in the applicant’s drug taking and, as I will address further below, there is no reason to expect that the applicant will become significantly less socially isolated in the near future, although I expect he would become less socially isolated once he is no longer on home detention.

22. Having regard to the applicant’s further drug taking in October 2017, which I note was in breach of his conditions of home detention and occurred after he had been notified of the Minister’s intention to cancel his visa, I consider that while many would be sympathetic to his circumstances, a majority of the community would also be concerned by the applicant’s history of failing to comply with Australian laws, and the fact that even in his current circumstances he has continued to act in contravention of those laws.  In my view, a majority of the Australian community would also be sufficiently troubled by his conduct, and concerned about the risk of him reoffending, that they would expect his visa to be cancelled. Accordingly, this consideration also militates in favour of the applicant’s visa being cancelled, although not heavily so.

    OTHER CONSIDERATIONS

23. As alluded to above, paragraph 10 of the Direction states:

    (1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (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.

    International non-refoulement obligations

24. In the applicant’s Statement of Facts and Contentions, it was suggested that he was at risk of persecution should he be returned to Albania as a member of a particular social group, namely former drug addicts. There was also some suggestion early in the hearing that the applicant may be at risk at the hands of his father (because of behaviour on his part which had angered his father), and/or from other family members in the context of a family dispute over land.

25. However, in the course of his evidence, the applicant frankly conceded that he did not fear physical harm or persecution should he be returned to Albania. This was consistent with details he provided on a “personal circumstances form” on 21 August 2017. On that form he was asked, “do you have any concerns or fears about what would happen to you on return to your country of citizenship?” and he answered, “No” by checking a box. He agreed at the hearing that this answer was correct.[24]

    [24] Exhibit 1, D1/73.

26. Accordingly, in her closing submissions, Ms McGrath did not contend that the applicant was owed protection obligations and I conclude that there is no relevant non-refoulement obligation.

27. For abundant clarity, on the material before me, I do not consider that protection obligations are owed to the applicant, either:

    (a)because he is a refugee; or

    (b)because there are substantial grounds for believing that, as a necessary and foreseeable consequence of his removal from Australia to Albania, there is a real risk that he will suffer significant harm of the kind described in s 36(2A) of the Act.

    Strength, nature and duration of ties to Australia

28. Paragraph 10.2 of the Direction provides as follows:

    (1)Reflecting the principles at 6.3, decision-makers must have regard to:

    a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    b)     The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of cancellation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

29. In addition to the evidence of Mr Fortunato I have referred to, written and oral evidence was given by the applicant’s friends Ms Manjola Merolli and Ms Debra Rushani.

30. In her statement,[25] Ms Merolli indicated she had known the applicant for about four or five years, having met him when he came to her café to install some new tiling. She said, “since that first job, I see [the applicant] every now and then”.  During her oral evidence at the hearing she indicated she had not been aware of the applicant’s drug trafficking charges but said this did not change her opinion of him, which was that he was “honest, trustworthy, respectful and an all-round good guy”.[26]

    [25] Exhibit 5, Statutory declaration of Ms Minjola Merolli dated 5 February 2018.

    [26] Ibid [5].

31. In her statement,[27] Ms Rushani indicated she had known the applicant for 12 years, having met him through her husband. She said that since the applicant had been on home detention, she and her husband visit him at least once a week.[28] She also stated that the applicant had been part of the Albanian/Australian society for many years “supporting the community when support is needed”.[29] She said:

    [The applicant] is always there for his friends, … they know that they can turn to him when life can get a bit hard. He is well liked and respected by his peers, and loved by his family and friends.

    [The applicant] is a very caring person and will always offer his help and support if it is wanted or needed.[30]

    [27] Exhibit 7, Statutory declaration of Ms Debra Rushani dated 5 February 2018.

    [28] Ibid [4].

    [29] Ibid [7].

    [30] Ibid [11] - [12].

1. She also stated:

   I know that after [the applicant’s] marriage broke down he did not cope with life very well for a period of years. He turned to drug taking. I am aware of [the applicant’s] criminal history.

   In my opinion, when [the applicant] got charged for his crimes, it was then that he started to turn his life around. I believe [the applicant’s] earlier behaviour is certainly a thing of the past. [The applicant] has settled down, he is working hard in his job as a tiler, working all the hours that he can. Long gone are the days of drug taking and criminal behaviour.[31]

   And:

   The impact on me will be significant if [the applicant] has to leave Australia. He has become a part of my own family. We all love, care for and respect him. My son and daughter have seen how someone they care for can fall, but also how [the applicant] picked himself up and changed for the better. [The applicant] has taught them that even good people make mistakes, but can overcome those mistakes and be a better person because of it.[32]

   [31] Ibid [14] - [15].

   [32] Ibid [22].

2. In her oral evidence, Ms Rushani conceded that she did not know any details of the applicant’s drug history and criminal convictions and did not know why he was currently on home detention.

3. The applicant also provided a number of other statements and references to the delegate in response to the Notice of Intention to cancel his visa. Most of these statements refer to him being a hard-working person of good character and a good friend. Many of the statements also express confidence that the applicant will not reoffend, although in many instances it is not apparent that the person making the statement is fully aware of the nature or extent of the applicant’s drug taking and offending. Many of those who have provided “references” for the applicant know him through his work, which has clearly been a central part of his life for the last few years.

4. The applicant has also provided a reference from the Honorary Consul-General for Albania based in Adelaide, Mr Rauf Soulio.[33] In his letter of 1 September 2017, Mr Soulio indicates that he has known the applicant “for some years”. Mr Soulio also stated:

   In the past, he has been a contributor to the community here, having assisted in the presentation of the local radio program, and assisted in the staging of community activities.

   I rarely would provide a reference in such circumstances, but consider that [the applicant] is unlikely to ever re-offend, and to the contrary, will be a positive, constructive contributor to the Australian community, in the event that his application is allowed.[34]

   [33] Exhibit 2, D1/134.

   [34] Ibid.

5. During his oral evidence however, the applicant acknowledged that he was not currently in an intimate relationship and had few close friends. He frankly conceded that he did not have friends that were close enough to make a significant request of them, such as to lend him money or come and collect him after the hearing. He said the people he sees most regularly were two male friends who visit him every fortnight on a Sunday. The effect of his evidence was that he was lonely and felt socially isolated.

6. I have concluded that the applicant is part of the Albanian community in Adelaide, and has formed some reasonably strong connections with others, in particular through his work. However, he has no family in Australia and no particularly strong or close social ties. I consider there would be minimal impact on others lawfully residing in Australia in the event that the applicant’s visa was to be cancelled.

7. In addition, I note that the applicant arrived in Australia in 2004 and committed his first offence in 2005, albeit his early offences were relatively minor.

8. In my view, overall this consideration is relatively neutral and does not militate significantly against or in favour of cancelling the applicant’s visa.

   Impact on Australian business interests

9. Paragraph 10.3 of the Direction provides as follows with respect to this consideration:

   (1)Impact on Australian business interests if the non-citizen’s visa is cancelled, noting that an employment link would generally only be given weight where visa cancellation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

10. It was clear from Mr Fortunato’s evidence that the applicant was an asset to his business and that as at the date of the hearing, it had not been possible to replace him. The effect of Mr Fortunato’s evidence was that by virtue of his skills, experience, personality and attributes, the applicant was a particularly good “fit” with Mr Fortunato’s business and not someone he could easily replace. Mr Fortunato explained the adverse impact on his business following the applicant’s visa being cancelled, and I accept that it would be extremely beneficial for Mr Fortunato’s business, Inline Tiling, if the applicant was able to remain in Australia and continue working whilst on home detention, as he did between October 2016 and December 2017.

11. Whilst Mr Fortunato’s business does not involve the delivery of a major project or an important service in Australia, I accept that this is nevertheless a relevant consideration which weighs against cancelling the applicant’s visa, albeit it does not outweigh the primary considerations.

    Impact on victims

12. The respondent did not contend that there were victims who would be adversely impacted if the applicant remained in Australia.

    Extent of impediments if removed

13. Paragraph 10.5 of the Direction provides as follows:

    (1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintain basic living standard (in the context of what is generally available to other citizens of that country), taking into account:

    a)    The non-citizen’s age and health;

    b)    Whether there are substantial language or cultural barriers; and

    c)    Any social, medical and/or economic support available to them in that country.

14. The applicant is a relatively young man, in good health, who spent the early part of his life in Albania and speaks Albanian. Although he is not on good terms with all of them, he has family in Albania including a sister who lives in the capital and also extended family. The applicant acknowledged that he would have access to the same medical and economic support available to others in Albania, albeit I accept his evidence at the hearing that the standard of support available in Albania is vastly inferior to that enjoyed by Australians.

15. I have concluded that there are no particular impediments which would face the applicant in establishing himself in Albania and this consideration does not militate against cancelling his visa.

    Additional considerations

16. Ms McGrath also raised an additional matter at the hearing which I should address.

17. Ms McGrath submitted that one of the issues for me is the question of when to exercise the discretion conferred by s 501(2). She pointed out that at the time the applicant’s visa was cancelled, he had still had one year and nine months left to serve on home detention. She contended that because the applicant can no longer work following cancellation of his visa, he currently has no income and would be unable to meet the conditions of his home detention which apparently require that he have stable accommodation. She pointed out that at the point the applicant is unable to meet the rental payments at his current property, it was likely that he would have to serve the balance of his sentence in prison. She contended that it would have been more appropriate for the respondent to allow the applicant to complete his sentence of home detention (and continue his rehabilitation) before exercising the discretion whether to cancel the visa.

18. Ms McGrath also contended that one of the possibilities facing the applicant if the Tribunal affirmed the decision under review was that he would still be required to serve the balance of his sentence, in a prison, prior to then being removed. She contended that this was an unfair and highly inappropriate outcome. She referred me to statements made by the applicant in the course of his evidence to the effect that he had been told that if his visa remains cancelled, he may have to serve the balance of his sentence in prison. She also referred to his evidence to the effect that he did not expect he would be able to maintain his current rental accommodation beyond 27 February 2018. In addition, Ms McGrath submitted that it would be unconstitutional and unlawful for the Minister to move the applicant to immigration detention prior to his removal. She contended that a court had imposed a sentence on the applicant which he was permitted to serve on home detention, and he should be permitted to serve that sentence before a decision was made about his visa. She further contended that allowing him to serve the balance of his sentence on home detention would give the applicant the best chance of full rehabilitation.

19. In reply, Ms Stokes for the respondent pointed out that, having regard to the terms of s 501(3A)(b), if the applicant had been sentenced to a term of imprisonment on a full-time basis in a custodial institution, the Minister would have been obliged to cancel his visa. However, because he was sentenced to a term of imprisonment to be served on home detention, the discretion conferred by s 501(2) was invoked. Ms Stokes submitted that the option of home detention in these circumstances had only been available in South Australia since September 2016, and there was no usual practice pursuant to which the Minister would allow a visa holder to complete a sentence of home detention before exercising the relevant discretion. Furthermore, the terms of s 501 were such that the discretion arose upon a person not satisfying the Minister that they passed the character test. Here, those circumstances arose when the applicant was sentenced.

20. As to whether it was unconstitutional or unlawful for the Minister to detain the applicant prior to removal, I note similar issues were recently considered by the High Court in Falzon v Minister for Immigration and Border Protection [2018] HCA 2, where the Court observed at [59] – [62], as follows:

    [59]Criminal detention cannot be “converted” into immigration detention. A person is imprisoned by order of the court which authorises his or her detention by the State following conviction for an offence against the laws of the State. A person so detained cannot be said to be detained by an officer acting under s 189 of the Migration Act.

    [60]The possibility that, in the circumstance to which the plaintiff refers, a person might be a prisoner serving a term of imprisonment for an offence and an unlawful non-citizen liable to be detained and removed from Australia as soon as reasonably practicable points to a possible tension between the provisions of Commonwealth, State and Territory laws and the Migration Act.

    [61]The Migration Act contains provisions intended to address that problem. The provisions of Pt 2, Div 4 permit a non-citizen to stay in Australia for the purposes of the administration of justice, which is defined to include punishment, by way of imprisonment of a person, for the commission of an offence. The focus of the Division is on maintaining the presence in Australia of persons who would not otherwise be permitted to enter or remain here.

    [62]It is not necessary to detail each of the provisions of Pt 2, Div 4. It is sufficient to observe that they involve the grant by the Commonwealth Attorney-General or an official of a State of a criminal justice certificate which has the effect that, during its currency, the person is not to be removed or deported from Australia and the issue of a warrant by a court to stay the removal or deportation of a non-citizen. If a criminal justice certificate or a criminal stay warrant is in force the Minister may consider the grant of a criminal justice visa. The possibility of the concurrent operation of the Migration Act with criminal detention does not arise in the plaintiff’s case, since it is acknowledged that he was taken into immigration detention at the conclusion of his non-parole period.

21. The Court also noted that:

    [12]A person whose visa is cancelled and who becomes an unlawful non-citizen is liable to immigration detention. Section 189(1) provides that an officer who reasonably suspects that a person is an unlawful non-citizen must detain the person. Section 196 provides for the duration of that detention. Section 196(1)(a), (b) and (c) provide generally that a person detained under s 189 must be kept in immigration detention until he or she is removed from Australia, deported or granted a visa. Section 196(4) provides, subject to s 196(1)(a), (b) and (c), that if the person is detained as a result of the cancellation of his or her visa under s 501, the detention is to continue unless a court determines that the detention is unlawful or that the person detained is not an unlawful non-citizen. Section 196(5) provides that subs (4) applies whether or not there is a real likelihood of the person detained being removed under s 198 or s 199 in the reasonably foreseeable future and whether or not the decision relating to the person’s visa is unlawful.

22. The Court noted further that the plaintiff in Falzon made no challenge to the validity of s 189 or 196, (at [13]).

23. Ms Stokes made submissions on these issues which were consistent with the High Court’s decision in Falzon. She submitted that if the Tribunal affirmed the decision under review, the most likely scenario was that the applicant would be placed in immigration detention and then (subject to any appeal process) removed to Albania.

24. Having carefully considered the submissions made on behalf of the applicant, I have concluded that I accept the Minister’s submissions on these issues. The discretion conferred by s 501(2) was invoked once the applicant was sentenced to a term of imprisonment which had the result that he did not pass the character test. The occasion having arisen for the exercise of that discretion, it has been duly exercised by a delegate of the Minister and must now be exercised by the Tribunal. As I have explained above, the discretion must be exercised in accordance with the Direction.

25. Pursuant to s 43 of the Administrative Appeals Tribunal Act 1975, the Tribunal must affirm the decision under review, vary the decision under review or set aside the decision under review and make a decision in substitution for that decision or remit the matter for reconsideration in accordance with any directions or recommendations of the Tribunal. If I were satisfied it was appropriate to do so, it would be open to me to set aside the decision under review and remit the matter to the Minister with directions.  However I am not persuaded that a direction that the exercise of the discretion be re-visited at the end of the applicant’s sentence of home detention would be an appropriate exercise of my powers. In substantive terms, that would amount to a decision not to cancel the applicant’s visa.  In any event, such a decision could only be made on the basis of the considerations outlined in the Direction and, given the nature of the matters made relevant by the Direction, it is difficult to envisage such a decision being reached by reference to the Direction, which requires that decisions as to whether a non-citizen’s visa should be cancelled should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test.

26. As I have indicated, the discretion conferred by s 501(2) has been invoked and has been duly exercised by a delegate of the Minister. The Tribunal’s role in these circumstances is to review that decision by reference to the Direction and determine whether the applicant’s visa should or should not be cancelled. In my view, neither the statutory scheme nor the Direction contemplate the outcome contended for by Ms McGrath.

27. With respect to the risk that, if his visa remains cancelled, the applicant may be required to serve the balance of his sentence in prison of imprisonment before ultimately being removed, there is nothing before me to suggest that this is likely. I acknowledge that the applicant mentioned in his evidence that he had heard speculation that if his visa remains cancelled he may have to serve out his term of imprisonment in jail. However, he also acknowledged there was little basis for this speculation and I place no weight on it. There is nothing before me to suggest that it is likely that a criminal justice certificate or stay warrant will be issued in respect of the applicant. Accordingly, the most likely scenario is that, if his visa remains cancelled, he will be placed in immigration detention prior to being removed to Albania in accordance with the Minister’s powers under the Act (subject to completion of any appeal process and the outcome of that process).

28. As I cannot exclude the possibility that a criminal justice certificate or stay warrant may be issued with respect to the applicant, I have had regard to the risk that he may be required to serve out some or all of his term of imprisonment in a jail prior to being removed from Australia. However, as I consider this eventuality to be unlikely, I have concluded that this risk should be given minimal weight and does not outweigh the balance of the primary considerations.

    CONCLUSION

29. I note that each of the relevant primary considerations, the protection of the Australian community and the expectations of the community, weigh in favour of cancelling the applicant’s visa, although not heavily. With respect to the other relevant considerations, I have found that the impact on the applicant’s employer’s business weighs against cancelling his visa. I have also accepted that there is some risk that if his visa remains cancelled the applicant will ultimately be required to serve a period of imprisonment prior to being removed from Australia to Albania. However, I do not consider that eventuality to be likely, and therefore I have given this risk minimal weight.

30. I note that none of the other relevant considerations weigh against the applicant’s visa being cancelled, and accordingly the balance of the other considerations does not outweigh the primary considerations, which are in favour of cancelling the applicant’s visa. I have therefore concluded that, having regard to the matters made relevant by the Direction, the applicant’s visa should be cancelled and I should affirm the decision under review.

31. I acknowledge this is a finely balanced and somewhat unusual matter in some respects. While the applicant’s offending is not of the most serious kind and the primary considerations do not weigh heavily in favour of cancelling his visa, the outcome is largely a product of the fact there are few countervailing relevant considerations weighing against cancellation. If the applicant had had children or strong family ties in Australia, the outcome may well have been different. However, the conclusion I have reached is the result of the application of the Direction to his circumstances.

    DECISION

32. The decision under review is affirmed.

I certify that the preceding 91 (ninety-one) paragraphs are a true copy of the reasons for the decision herein of Deputy President K Bean

..................[Sgd]......................................................

Associate

Dated:

Dates of hearing:	15 and 16 February 2018
Advocate for the Applicant:	Ms Jane McGrath
Solicitors for the Applicant:	MSM Legal
Advocate for the Respondent:	Ms Claire Stokes
Solicitors for the Respondent:	Australian Government Solicitor