GQVS and Minister for Home Affairs (Migration)
[2018] AATA 2562
•17 July 2018
GQVS and Minister for Home Affairs (Migration) [2018] AATA 2562 (17 July 2018)
Division:GENERAL DIVISION
File Number:2018/2353
Re:GQVS
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Dr Damien Cremean, Senior Member
Date:17 July 2018
Place:Melbourne
The Tribunal affirms the decision under review.
........[sgd].........................................................
Dr Damien Cremean, Senior Member
Catchwords
MIGRATION – decision not to revoke mandatory cancellation – long history of offending – protection of community and community expectations – best interests of minor children – strength nature and duration of ties with Australia – international non-refoulement obligations – decision affirmed
Legislation
Migration Act 1958 (Cth) ss 499; 501; 501CA
Cases
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135
Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349
Minister for Immigration and Multicultural Affairs v Ali (2000) ALD 673NDRW and Minister for Home Affairs [2018] AATA 2144
Secondary Materials
Ministerial Direction No. 65
REASONS FOR DECISION
Dr Damien Cremean
17 July 2018
Background
GQVS (the Applicant) makes application for review of a decision of a delegate of the Respondent Minister for Home Affairs (the Minister). The decision was made on 24 April 2018 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to refuse his application to revoke the mandatory cancellation of his Class BA Subclass 200 Refugee visa under s 501(3A) of the Act.
The Minister refused to revoke GQVS’s visa cancellation on the basis that he failed the character test under s 501(6)(a) of the Act as he has a substantial criminal record within the meaning of s 501(7)(c), and he was not satisfied that there was another reason why the original decision should be revoked. The Minister found that there was an ongoing risk to the Australian community of GQVS re-offending, that the Australian community could be exposed to harm should GQVS re-offend in a similar fashion, and that the Australian community would expect that his visa would remain cancelled.
The discretion to cancel GQVS’s visa is guided by Ministerial Direction No. 65 (the Direction), which the Tribunal is bound to apply in accordance with s 499(2A) of the Act.
Paragraph 8(1) of the Direction specifies that primary and other considerations must be taken into account when considering whether to exercise the discretion. Paragraph 13 of the Direction provides that the Primary considerations are:
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.
These primary considerations should generally be given greater weight than other considerations (para 8(4)).
Paragraph 8(2) of the Direction specifies that in applying primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
As regards the risk of future criminal conduct, paragraph 6(2) of Annex A of the Direction states the grounds are enlivened if there is evidence suggesting that there is more than a minimal or remote chance that the person would engage in such conduct if allowed to remain in Australia.
Other considerations are set out in paragraph 14(1) of the Direction, and include, but are not limited to:
·International non-refoulement obligations;
·The strength, nature and duration of ties;
·The impact on victims; and
·The extent of impediments if removed.
GQVS
GQVS is a national of an African country. GQVS is one of a family of 10 and he is the eldest brother of the siblings. One brother died earlier this year. GQVS‘s biological mother died in about 2006 but his father and step mother are both alive and living in Victoria.
He arrived in Australia on 2 October 2001 aged 15, having been granted a Class BA Subclass 200 (Refugee) visa. He has remained in Australia since then.
GQVS went to school in NSW but left at age 17, having completed Year 10. He has worked several jobs, both prior to and since leaving school.
On 23 October 2015 GQVS was sentenced to 7 years imprisonment by the Downing Centre District Court of NSW (District Court). On 26 October 2017 GQVS was released on parole but was immediately placed in detention.
On 13 April 2017, GQVS’s visa was cancelled under s 501(3A) of the Act and he was invited to make representations to the Minister to seek revocation of that cancellation decision. GQVS made representations to the Minister in accordance with the invitation and s 501CA(4)(a). GQVS is seeking a review of the decision to not revoke the decision to cancel of his visa.
Since leaving school, and from the age of 18, GQVS has engaged in various criminal activities. His National Police Certificate is as follows:
COURT COURT DATE OFFENCE COURT SENTENCE Downing Centre District Court 23 Oct 2015 Sp agg b&e & commit serious indictable offence-weapon-si 14. H 195438596: imprisonment: 7 years commencing 27/04/2014 concluding 26/04/2021 non parole period with conditions: 3 years
and 6 months commence 27/04/2014 conclude 26/10/2017. Release subject to supv court case reference num ber 2014/00125274
Parramatta Local Court 20 Nov 2014 Stalk/intimidate intend fear physical etc harm (domestic)-t2 H 51977838: (call up) imprisonment: 3 months commencing 20/11/2014 concluding 19/02/2015 Bankstown Local Court
21 Jan 2014
15. Fail to appear in accordance with Bail Granted undertaking (conviction – 62701403)
Fail to appear in accordance with, Ball Granted undertaking (conviction - 62712441)
16. Fall to appear in accordance with Bail Granted undertaking (conviction - 62724613)
17. Destroy or damage property (dv)
18. Stalk/intimidate intend fear physical etc harm (domestlc)-t2
19. H 51977838: lmprisonment : 1 month commencing 17/12/2013 concluding 16/01/2014
H 51977838: imprisonment : l month commencing 17/12/2013 concluding 16/01/2014
20. H 51977838: Imprisonment: 1 month commencing 17/12/2013 concluding 16/01/2014
21. H 51977838: imprisonment; l month commencing 17/12/2013 concluding 16/01/2014
H 51977838: band s9 : 2 years supv nsw prob service
Parramatta Local Court 02 Oct 2013 Possess prohibited drug H 203593195; fine : $300 drug to be destroyed Pending Charges 05 April 2013 Recklessly cause Injury
Intentionally cause Injury
Wilfully trespass in a public place
Unlawful assault
22. At the date of issue, these charges have not
been determined by a court. This cannot be regarded as a finding or guilt against the Individual named above.
Sunshine Magistrates Court 14 Jan 2013 23. Contravene community correction order
24.
25. Breach re 22/05/2012
26. assault police (2 charges)
27.
28. drive motor vehlde without licence
29.
resist police
fail to give way to vehicle- turn at intersection
30. Original order has been
31. varied. Convicted and
a community correction order for 6 months, Unpaid community work, to perform 50 hours of community work. This condition starts on 14/01/2013 and goes for 6 months.
Pending Charges 01 January 2013
32. Exceed prescribed concentration 3hrs breath-drive vehicle
33.
34. drive motor vehicle without licence
35.
36. use unregistered motor vehicle- highway
37.
theft of motor vehicle
At the date of issue, these charges have not been determined by a court. This cannot be regarded as a finding of guilt against the Individual named above. Sunshine Magistrates Court 22 May 2012 38. Assault police (2 charges)
39.
resist police
40.
41.
42.
43.
44.
45.
46. Drive motor vehicle without licence
Fail to give way to vehicle- turn at intersection
47. Convicted and a community correction order for 6 months. Unpaid community work, to perform 50 hours of community work. This condition starts on 22/05/2012 and goes for 3 months. Also 1Mth conviction, adjourned to 23/05/2013
Convicted and a community correction order for 6 months. Unpaid community work to perform 50 hours of community work. This condition starts on 22/05/2012 and goes for 3 months.
Pending Charge 21 May 2012 Theft At the date of issue, this charge has not been determined by a court. This cannot be regarded as a finding of guilt against the individual named above. Liverpool LocaI Court 02 Sep 2010 Enter inclosed land not presc premises w/o lawful excuse H 40160861: fine: $550 costs - court: $79 Parramatta Local Court 30 Apr 2010 Destroy or damage property 48. H 39675986: (call up) bond s9: 12 months supv nsw probservice comply with all reasonable direction of the
49. probation and parole service for as long as deemed necessary. To obey all reasonable directions for counselling, educational development
50. or drug and alcohol rehabilitation to report to probation and parole at liverpool community offender services thin 7 days.
(est 3857)
51. Parramatta
Local Court
08 Jul 2009 52. Behave in offensive manner in/near public place/school
53.
Destroy or damage property
54. H 39675986: bond s9 : 12 months supv nsw probservice to accept probation service supervision for as
55. long as considered necessary, obey all reasonable directions for counselling, educational development or drug and alcohol rehabilitation and
56. report to the FairfieId probation office within 24
hours of his release
Campbeltown Local Court 03 June 2009 Common assault (dv)-t2
Contravene prohibition/restriction in avo (domestic)
H 36246030: Imprisonment: 3 months commencing 03/06/2009
H 36246030: Imprisonment: 3 months commencing 03/06/2009
Campbeltown Local Court 03 September 2009 Common assault-t2 H 36072680: Imprisonment: 2 months commencing 18/06/2008 Parramatta 29 Jan 2008 Larceny value
<=$2000-t2
Behave In offensive manner in/near public place/school
H 27494407: {call up) bond s9 : 12 months (eeco4461)
57. H 30379123: bond s9 : 12 months supv nsw prob service report to probation & parole service fairfield
office within 24 hours of release from custody
Parramatta Local Court 26 Nov 2007 Use offensive language in/near public place/school
Drink alcohol in zone on same day as warning given
Resist or hinder police officer in the execution of duty
H 31961105: fine : $440
H 31961105: fine : $110
H 31961105: bond s9 : 12 months supv nsw prob service obey all reasonable directions for counselling, education development of drug and alcohol rehabilitation and report to Fairfield probation office within 7 days
Parramatta District Court 02 Nov 2007 Receive/dispose stolen property-min. Indict. Off. <=$5000·t2 H 28165520: conviction confirmed : sentence to commence 021107 & conclude 010208 (District Court 90011750) court case reference number 07/22/0272 Burwood Local Court 14 May 2007 Receive/dispose stolen property-min. Indict. Off <=$5000-t2 H 28165520: imprisonment: 3 months commencing 14/05/2007 severity appeal without stay lodged Parramatta Local Court 14 Feb 2007 Larceny value
<=$2000-t2
Fail to appear in accordance with Bail Granted undertaking(conviction- 61415787)
H 27494407: bond s9 : 6 months supv nsw prob service obey all reasonable directions for counselling educational development drug & alcohol rehabilitation report to the parramatta probation office within 7 days costs- court $67 (eeco 3660)
H 27494407: dismissed sl O
Penrith Local Court 10 Jan 2007 Intimidate police officer in execution of duty w/o abh·t2
58. Use offensive language in/near public place/school
H 29078940: Imprisonment: 3 months commencing 25/11/2006
H 29078940: fine : $100v
Parramatta Local Court 10 May 2006 Behave In offensive manner in/near public place/school
Assault police officer in execution of duty w/o abh·t2
59. H 25981962: imprisonment: 3 months suspended on enter bond sl2 : 3 months supv nsw prob service
60. to accept probation service supervision for as long as considered necessary, obey all reasonable directions for counselling, educational
development, drug and alcohol rehabilitation and anger management and report to the abnkstown.n probation office within 7 days
61. H 25981962: imprisonment: 6 months suspended on enter bond sl2 : 6 months supv nsw prob service
62. to accept probation service supervision for as long as considered necessary, obey all
63. reasonable directions for counselling , educational
development, drug and alcohol rehabilitation and anger management and report to the bankstown probation office within 7 days.
costs - court : $65
Burwood Local Court 12 April 2006 Drive while disqualified from holding a licence 64. H 22666526: (call up) fine : 500 costs · court
: .$65 bond s9 : 2 years (eeco 3041)
Parramatta Local Court 07 Sep 2005 Possess prohibited drug
65. Goods in personal custody suspected being
stolen (not m/v)
H 24758038: fine : $200 costs· court: $65
H 24758038: fine : $200 costs • court : $65
Liverpool Local Court 14 Jun 2005 Larceny value
<=$2000·t2
H 23606343: fine : $300 costs - court : $63 Liverpool Local Court 18 Mar 2005 >=3 people use violence
cause fear
H 22762315: fine : $800 costs -court : $63 Downing Centre Local Court 08 Mar 2005 66. Goods in personal custody suspected being
stolen (not m/v)
67. Shoplifting value
<=$2000·t2
68. Receive
69. property-theft=serious Indictable offence
<=$5000-t2
H 23902686: bond s9 : 3 months
H 23902686: fine : $150
70. H 23902686: bond s9 : B months supv nsw prob service obey all reasonable directions for counselling,
educational development or drug and alcohol rehabilitation and report to the Bankstown probation office with 7 days
Burwood Local Court 19 Jan 2005 Drive while disqualified from holding a licence
Driver/rider state false name or address
Drive while disqualified from holding a licence
H 22666526: community service order: 150 hours disqualification : 2 years commencing 02/12/2006
H 22666526: fine $600 costs- court : $63
71. H 22969643: imprisonment: 6 months suspended on enter bond s12 : 6 months supv nsw prob service
obey all reasonable directions for counselling educational development or drug and alcohol rehabilitation and report to the Bankstown probation office within 7 days. Disqualification : 2 years commencing 02/12/2008
Burwood Local Court 23 Nov 2004 Drive while disqualified from holding a licence 72. H 22742442: fine : $1,000 costs ·court: $63 disqualification : 12 months
cumulative (eeco 2040}
Burwood Local Court 09 Nov 2004 Drive while disqualified from holding a licence
73. Use unregistered vehicle on road area (not a
trailer)
Use uninsured motor vehicle
H 89950593: fine : $800 costs - court : $63 disqualification : 12 months commencing 06/03/2005
H 89950693: fine : $300 costs • court : $63
H 89950693: fine : $300 costs - court : $63
Issues and Contentions
GQVS concedes, in both the written and oral submissions of his legal representatives, that he does not meet the character test in s 501(6) of the Act. I am satisfied that he fails the character test in s 501(6) of the Act as a result of his substantial criminal record as defined under s 501(7). The central issue in this matter is therefore, whether there is another reason the cancellation of his visa should be revoked.
Mr Sharpe, of Minter Ellison, for the Minister contends that the considerations of the protection of the community and the community expectations outweigh the other considerations, and submitted that the decision under review should be affirmed.
Ms Skvortsova of Counsel for GQVS, on the other hand, contends that, considering all the evidence before the Tribunal, the decision under review should be set aside, and the discretion in s501CA(4) should be exercised in GQVS’s favour on the basis of the relevant considerations.
Hearing
At the hearing the Applicant gave sworn evidence. Sworn evidence also was given by two of his brothers (who will be referred to later in this decision as Brother One and Brother Two), and also by Ms Pamela Matthews, forensic psychologist.
The Minister called no witnesses.
By way of documentary evidence the Tribunal had before it the G-Documents and Supplementary G-Documents submitted by the Respondent, which were received into evidence.
Two bundles of supporting documents were also filed by the Applicant, and were received into evidence. These bundles include, among other things, statements by a number of GQVS’s other siblings and information about the state of affairs in the African country from which GQVS originates. There is also a reference from the Chairman of a community group of the African country dated 22 June 2018. The report of Ms Matthews dated 2 July 2018 and supplementary documents provided by her were also received into evidence.
EVIDENCE
GQVS
The Applicant, who is currently in detention, confirmed the contents of his Statutory Declaration, declared on 5 July 2018 (the Declaration).
In his Declaration, he says that he takes complete responsibility for his actions in April 2014 which led to his imprisonment by the District Court. He says I knew the victim and where he lived – he owed me some money. At the time, he says I had not slept for 11 days and was high on ice.
In oral evidence he recounted the times in the African country where as a young boy he had witnessed much street violence, including one occasion when a man was stabbed to death with a sword.
It was very hard he said, coming to Australia and not speaking the language.
After leaving school (where he was the subject of racist jokes) he says he was drinking heavily and started taking drugs. He wanted to block out the thoughts of his mother who he found out had died. He fell in with a group of bad friends.
The drugs he took included “ice” and cannabis. His consumption of ice was at its highest in 2014, but he said he cannot say exactly how much he was taking. He last took ice he says on 21 April 2014 when he was arrested for an offence of breaking and entering a dwelling house and committing the serious offence of robbery armed with a dangerous weapon.
GQVS said that in 2014 he also lost his best friend, who was like a brother to him, in a car accident.
GQVS said he agreed that the summary in a Facts Sheet in the Supplementary G-Documents was an accurate description of what happened in an incident on 18 June 2013 (‘Quaker’s Hill incident’) when he threw a brick through the window of a suburban house. He denied he made any threats to kill. He said he threw the brick to release my anger but I should not have done it. He said I would react differently, now, he said, I think before I act.
GQVS said the judge’s sentencing remarks at pp 35-46 of the G-Documents give an accurate summary of what happened in an incident on 21 April 2014 (‘Bass Hill incident’). In this incident he broke into and entered a dwelling house and armed himself with a baseball bat. He was in the company of another individual who was armed with a gun. He said he has not seen either this person or the occupant of the house since this time. He said he would act differently now and by this he meant he would walk away.
Before he was sentenced for this crime he spent over a year in custody.
In prison GQVS completed a number of programs including on anger management; drugs and alcohol; and reading and writing. These were all programs he chose to do voluntarily; he did not have to do them he emphasised. Nonetheless the programs gave me something to do, he said. He said he is so proud of himself having done these courses. He said he is a changed man now. He said I am thinking properly. He said he has learnt to walk away from trouble.
GQVS said he was granted parole on 27 April 2017 but was immediately placed in detention. If released into the community, he said he would like to work in the construction industry.
In prison he said he managed to keep in touch with his siblings with twice-weekly telephone conversations. He said he is now healthy and drug free and wants to be a good role model for his brothers and sisters. Under cross-examination, GQVS admitted he had had minimal contact with nieces and nephews.
GQVS said he has a son, whom he last saw in 2012. His son and his son’s mother had visited him once while he was in prison. He said he wants to be a good father and a good role model for him also. He agreed he had seen his son only once since his birth. But he said I would like to be a father in his life.
He said he does have family in the African country—a grandmother who he has never met and some half brothers and sisters who he has also never met. But he said if he went back to the African country he would be targeted in that he would experience difficulties with the tribes due to his being of a certain tribe, a fact he says is easily distinguishable from his name. He also stated that if he went to a neighbouring country he would be a Catholic would be living in a Muslim land. Further, if he returned to the African country there would be concerns about him being conscripted for military service.
GQVS indicated however that he suffers from hepatitis B and was diagnosed in 2008. A medical report on file confirmed this. He said he did not know whether or how he would get access to the medical system in the African country, and did not know how to navigate the system.
GQVS said that his father had gone to the African country only a while ago and had stayed there for 3 months.
GQVS said he knew of the civil war in the African country and had heard about this from his parents, and also from his own research on the computer.
GQVS said that his information about being conscripted into the army in the African country came from people he knew, a few friends who had returned there a couple of years ago. It was most likely the case he would be conscripted.
He admitted he had a number of convictions for assault but said he could not remember the details of many of them because he was intoxicated at the time.
As regards an assault conviction recorded on 3 June 2009, for which he received 3 months imprisonment, he recalled this involved him pushing his ex-partner away. The same circumstances arose in the assault conviction recorded on 3 September 2008 for which he had earlier received a sentence of 2 months imprisonment.
In the assault police conviction recorded on 10 May 2006 for which he received 6 months imprisonment, he said that at the police station he was bashed and abused while in handcuffs. Nonetheless, he pleaded guilty. As regards an assault police conviction recorded on 22 May 2012, he said he cannot remember the details of what took place, but pleaded guilty at court just to get it out of the way.
As regards the Quaker’s Hill incident he said he denied throwing three bricks and only threw one. He denied also saying words to the effect I will kill you.
As regards the Bass Hill incident GQVS denied he armed himself with a gun. In answer to a question by me he said he got the baseball bat from inside the premises he entered. GQVS was asked what he took full responsibility for in the Bass Hill incident but gave no answer.
He said it was around July 2016, while in prison, that he stopped taking drugs. GQVS admitted that in 2010 in Victoria he had undertaken a detox program for alcohol which worked for a while but then he went back to drinking excessively.
Ms Pamela Matthews
Ms Matthews, who is a forensic psychologist, confirmed the contents of her report dated (in error) 17 June 2016. It was clarified at the hearing that the report was finalised on 2 July 2018. She said in sworn evidence she had had a lengthy consultation on 21 June 2018 with GQVS by telephone, as well as a copy of the G documents to enable her to prepare such report.
In her report Ms Matthews said that GQVS presented as a 32-year-old man with a long history of offending beginning in 2004 and escalating over a 10-year period until 2014, at which time he was remanded on a lengthy sentence.
Ms Matthews in her report expresses the view that GQVS’s offending has its basis in both his illicit substance use and attachment disturbance arising out of the loss of his primary attachment figure, his mother, at an early age and as evidenced by relapses into offending coinciding with either relationship breakup or distress over the absence of his mother in his life and then her death.
Ms Matthew’s goes on to say that GQVS’s current risk of re-offending against the Australian public in similar manner is low, with that estimate elevated by historical factors and lowered by current clinical factors and progress in maintaining change.
Dealing with GQVS’s relationship with his son, she spoke of a door of opportunity (opened by the visit of the child with his mother while GQVS was in prison) as closed if [he] was no longer living in Australia. In her oral evidence she explained that by a door of opportunity she meant a possibility GQVS could enter his son’s life.
Ms Matthews in her oral evidence reaffirmed her assessment of GQVS’s risk of re-offending as low, arrived at by assessing him as at moderate risk becoming low risk by virtue of protective factors.
Under cross-examination Ms Matthews said that she cannot rule out the risk of GQVS re-offending, and she said that people do at times lapse or relapse in the course of or after change in their lives. In his case there would be a concern he would re-offend if he were to become homeless or living on his own and not seeing his family because transient living had been a problem for him in the past.
As to a plan for the future, Ms Matthews said GQVS if released intended to live with family members; approach the Salvation Army; engage in Church activities; and become a plumber or builder. She said he had good family and relational support.
Brother One
Brother One, a brother of GQVS, in sworn evidence said that he was aged 6 or 7 when he came to Australia in 2001. He said he had no memories of the African country.
Brother One said GQVS fell in with a group of bad friends at about the age of 18.
Brother One said GQVS had said he wished he could take it all back and reverse what he had done. He regarded himself as having let the family down. He said this was particularly so due to the cultural expectations placed on the eldest son, that he would act as a role model and show the other siblings the way forward. He had not seen him since 2016 but since being in custody GQVS had been willing to change. Brother One said he was confident GQVS could do so.
Brother One in cross-examination said he had visited GQVS in prison in 2016 but had maintained phone contact with him a few times since.
He said he did not know the reason why GQVS was in prison between 2014 and 2017 but he did know that before that time GQVS had committed various traffic offences. He said he did not want to know about the offending and that at the time he was stressed with university work and that his mind was elsewhere.
By consent, a Statutory Declaration of Brother One made on 25 June 2018 was received into evidence.
Brother Two
Brother Two, another brother of GQVS, gave sworn evidence confirming a statement made by him in June 2018.
Brother Two oral evidence he indicated that their biological mother’s death in 2006 in the African country had had a particularly bad effect on GQVS. The recent death of their brother in a stabbing had also affected the family in a very significant way. Sometimes, he said I do not feel like living any more.
Brother Two said there would be times early on when he was living in Sydney that GQVS would be looking after his (Brother Two’s) son a lot. He would bathe him; take him out in a pram; and take him to a nearby park.
He said he had maintained contact with GQVS nearly every week by telephone and that GQVS is very remorseful and talks of how much he regrets how he has been. He said GQVS wants to be a family man and get married. However, he said GQVS had not had much contact with (Brother Two’s) children who were now living with his ex-wife.
Brother Two said if GQVS were to go back to the African country his children would miss him.
He said his parents have a close relationship with all the children.
PRIMARY CONSIDERATIONS
Protection of the Australian community
The Direction relevantly provides at paragraph 13.1(2) that when considering the protection of the Australian community, decision-makers should have regard 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.
Nature and seriousness of the conduct
As mentioned previously, it was conceded by Ms Skvortsova in her opening that GQVS failed the character test in s 501(6) of the Act. Her position, in summary, was that he is not the man now that he was before, he is a changed man, and that there are factors in this case justifying an exercise of discretion in his favour to set aside the decision under review.
I am satisfied that GQVS’s lengthy criminal history constitutes a substantial criminal record as defined in s 501(7) of the Act; which in turn is constituted by serious offending which, by the Direction (paragraph 13.1.1(1)(a)), must be viewed very seriously. I am able to accept that GQVS now regrets his actions that have led to his criminal history but that does not mean that his conduct should now be excused.
Of particular concern is that GQVS’s conduct over a 10-year period is constituted by at least four occasions of assault including domestic violence, assault police (on one occasion in a police station), resist police and intimidate police. Over that same period there are also various convictions for theft, destroy or damage property, drug and alcohol offences, driving offences including driving while disqualified, and offensive behaviour or offensive language.
Perhaps the most concerning offence committed by GQVS is the one I have referred to as the Bass Hill incident where he was sentenced to a total term of 7 years imprisonment on 23 October 2015 by the District Court for the serious indictable offences of breaking and entering and robbery in circumstances of special aggravation in that he was armed with a dangerous weapon.
His evidence to me was that on that occasion, as on others, he was heavily affected by the consumption of ice and had not slept for 11 days. This is also in his Statutory Declaration. He said drugs were driving me. That would be little comfort to Mr Batty, the victim, or to any other of his victims, including police officers, affected by his conduct over the years after consumption of drugs or alcohol.
In my view the criminal record of GQVS speaks for itself, and his offending to date has been appalling. There is no minimising it, as GQVS sought to do at times. Also concerning is the repeated nature of the offending, as well as the general trend of increasing seriousness of that offending, from driving offences to assaults to the offending as described at the Bass Hill incident. This is also reflected in the increasing severity of the sentences imposed over time.
I am asked, however, to see GQVS in a different light based on the evidence presented to me such that despite what the National Police Certificate says there is more to this than meets the eye as Counsel submitted.
Indeed GQVS tried to explain away aspects of the judge’s sentencing remarks over the Bass Hill incident. At one point he even sought to advance a defence to his conviction on that occasion stating that he was not at the premises when the crime was committed, although he did say in evidence he had been there 2 days before.
This was a curious position for GQVS to adopt because he had agreed in evidence that relevant paragraphs of the judge’s sentencing remarks gave an accurate summary of what happened on the occasion and those remarks of her Honour firmly place him at the premises armed with a baseball bat. There were also his clear admissions in his Statutory Declaration.
Regardless, while the Tribunal can consider all the evidence before it in an assessment of the circumstances surrounding the commission of the offence, as held by the Fisher and Lockhart JJ in Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, it cannot question the propriety of a conviction. Further, the essential facts of an offence as found by a sentencing judge must be accepted by the Tribunal, as held in Minister for Immigration and Multicultural Affairs v SRT (1999) 56 ALD 349. In my view GQVS was simply hoping to put himself into a more favourable light. The judge’s sentencing remarks are to be preferred and this is all the more so when he has agreed to them being an accurate summary. See also the discussion by Branson J in Minister for Immigration and Multicultural Affairs v Ali (2000) ALD 673 at [41]-[45].
GQVS’s position calls into question how far I should place reliance on his evidence. Consequently it also calls into question his Counsel’s submission that I should now see him as a changed man. I am quite satisfied that I cannot place much reliance upon his evidence. Having seen him give evidence and having observed his demeanour and having listened carefully to him, I consider he is prepared to avoid the truth if he thinks it will advance his cause.
One particular instance was in relation to the Bass Hill incident when I asked him where he got the baseball bat from and he said it was inside the house, that is, the house he broke into. This account of the events was not recorded anywhere in the documentation. In fact the sentencing judge in her summary, which he accepted as accurate, said he went to the premises armed with a dangerous weapon. And it would be absurd to say the baseball bat was in the house he broke into. How could GQVS know where it was and if it was there why did not Mr Batty, the victim, arm himself with it? It was clear to me that the answer GQVS gave me was one thought up on the spot.
It is to be noted moreover that he did not deny in answer to my question ever being at the premises. Nor was any baseball bat ever mentioned to Ms Matthews in her interview with him. I consider this a significant omission.
In relation to the Bass Hill incident his Counsel submitted that GQVS accepts that his conduct on that occasion was clearly deserving of the sentence of imprisonment that was imposed on him by the court. In evidence he said he took full responsibility for the night in question. But this was not the impression he actually gave me and when pressed by Mr Sharpe as to what exactly it was he took responsibility for he was unable to provide any answer and fell silent.
Another incident I should wish to mention is the Quaker’s Hill incident. In that incident GQVS was convicted of throwing a brick through the window of a house. He says it was only one brick he threw but the police report states 3 bricks were thrown. He says there was a man in the house (who he did not actually see) along with his ex-partner Rose but the police report Fact Sheet states that she was home alone. His evidence was that he believed she had been seeing another man and GQVS believed him to be in the house at the time.
In addition, GQVS received not one, but two warnings advising him that if he engaged in any further serious conduct his visa could be cancelled under s 501 of the Act. He received a letter from the then Department of Immigration and Citizenship in 2007, and another in 2013, confirmation of the receipt of which also in the G documents.
Risk to Australian community of re-offending
Drug and alcohol use appear to be a common factor in much of GQVS’s more serious offending, as does anger management and impulse control. He acknowledged as much in his evidence before the Tribunal. While in prison he has undertaken a number of courses, including but not limited to drug and alcohol, anger management and reading and writing programs. He expressed pride in his accomplishments in completing those courses and his efforts in this regard must be commended.
However, in GQVS’s evidence before the Tribunal he stated that he stopped taking drugs while in prison around July 2016 and that he has been clean since October of that year. But this is not consistent with the known facts. As recently as February 2017, while GQVS was in prison, it is recorded that he failed a prescribed drug test for which he was punished by 42 days off contact visits.
I am quite unable in the circumstances to place any reliance on assurances from GQVS that he is a changed man and that given the right circumstances he would walk away and not re-offend. I can accept that he regrets his actions over the years, but I regard this as so because they have gotten him into trouble and into his present predicament.
In her assessment of the Applicant’s risk of re-offending, Ms Matthews concluded that the risk was low. This was based on the use of two scales, the Historical, Clinical, and Risk Management version 2 (HCR-20v2) (with some terminology used from version 3) and the Structured Assessment of Protective Factors for violence risk (SAPROF). On application of the HCR-20v2, Ms Matthews concluded that there was a moderate risk of the Applicant re-offending. This was lowered to a low risk on application of the SAPROF scale. However, there were things she was not told by GQVS which affect the degree of accuracy of her conclusions. For example she was not told GQVS had gone armed with a baseball bat to the Bass Hill incident, and there is no reference to a firearm in her notes, which formed part of the judge’s summary which he accepted as accurate. Moreover, one of the factors she mentioned as a protective factor was good family support. But I am left in doubt about that despite having heard evidence from two of his brothers. It was remarkable, for example, that I heard nothing in evidence from his father who had actually experienced living in the African country for 3 months and who would be, I would have thought for that reason, a most important witness to call.
Ms Matthews was clear in any event that she could not rule out the possibility of GQVS re-offending or suffering a lapse or relapse, particularly if he was to fall into transient living arrangements again or living on his own. I regard GQVS as more than a remote or distant risk of re-offending given his history and his tendency to not be fully frank.
Of considerable concern is the risk of GQVS re-offending because, as was pointed out to me, if he is released into the community he must return to NSW due to the conditions of his parole but his family is living in Victoria. So he would be living on his own in NSW. Ms Skvortsova mentioned the possibility of a parolee being transferred to Victoria but, without being fully informed in the matter by her, that may be problematic. Ms Matthews stated in her evidence that it was important for GQVS to have good family support…good friends…to be working or engaged in study and [to be given] financial support. She also added that if he were living in his own accommodation, that could be ok but he would need to have very regular contact with family, but if he was living alone and not seeing family that would be a concern.
It is of great concern that the possibility of GQVS re-offending cannot be ruled out given the nature of the offending which has characterised his criminal career. He has engaged in numerous acts of violence, dishonesty and anti-social conduct over a 10 year period fuelled by drug and alcohol addiction and abuse, including the use of ice which is very troubling indeed.
Even assessing his risk of re-offending as low I do not accept that that means the risk is remote and I am satisfied that GQVS is a danger to the community.
For the reasons set out above, I consider the protection of the Australian community to be a consideration which weighs strongly against the revocation of the cancellation of GQVS’s visa.
Expectations of the Australian community
Paragraph 13.3 of the Direction relevantly states:
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 not revoke the mandatory visa cancellation of such a person. Non-revocation 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 hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
As outlined above, there is a general expectation of the community that non-citizens will obey Australian laws while in Australia.
Given the repeated nature of the offending of GQVS from 2004 to 2014, the escalation in seriousness over that time from various driving offences to assaults (including against police officers) to breaking and entering and robbery in circumstances of special aggravation (being armed with a dangerous weapon) and the fact that the Applicant had received two warnings from the relevant Department of the potential consequences of his offending, I find that the consideration of the expectations of the Australian community weigh against revocation of the cancellation of GQVS’s visa. In reaching this conclusion, I have taken into account the Applicant’s contributions to Australia working as he did in the construction industry, as well as the fact that he has been residing in Australia since 2001.
In my view, the Australian community is entitled to expect, and would expect, protection from GQVS, and that his visa would remain cancelled.
Best interests of minor children
I am asked to find that it is in the best interests of minor children in Australia to affirm the decision under review despite GQVS’s criminal record. My understanding is that the minor children referred to are his son and his nieces and nephews.
As regards his son, the claim of GQVS in evidence is that he wants to be a good father and a good role model. He said I have always wanted to be with him. While this is a commendable statement to make, his actions while in the community prior to his incarceration have not reflected this desire.
The fact is that GQVS has only seen his son once since his birth some six years ago. He had the opportunity to pursue a relationship with his son before going to jail and did nothing about it. The notion of a door of opportunity advanced by Ms Matthews is in such circumstances a door that existed before, and on which GQVS has not acted.
GQVS said he wants to be a good role model for his son –to set him a good example---but this in my view is simply a ridiculous claim in the circumstances given GQVS’s history. I agree that generally it is good for a child to have both parents available but in this case GQVS is a person with a long criminal record, including for assaults in a domestic setting. Nonetheless I do acknowledge Ms Matthews evidence about a father’s presence being an important factor for identity formation in a child.
I note that at the hearing no evidence was given by his son’s mother, and no evidence was produced from the son himself to see what his wishes are (admittedly being six years of age his capacity to articulate his wishes may be limited). I have no idea whether they would say it is in the son’s best interests for him to have GQVS as any or no influence in his life. I have no report of a psychologist or similar on the point.
Similar considerations apply to the nieces and nephews of GQVS. There is some evidence that GQVS has spoken to them on the phone on occasions from jail or in detention. There is also some evidence that he had direct dealings with one or two of them, when he might walk them in the pram or go to the park with them or even bathe them.
In my view GQVS’s dealings with his nieces and nephews is too distant or remote to enable me to find it is in their best interests for GQVS to remain in Australia. I cannot see where I have information enough to enable me to find that he has been a positive influence in their lives.
Indeed, if I have regard to the family tree which was presented to me at the hearing, then it seems that GQVS has been in jail for the whole or a major part of the lives of his nieces and nephews. When that is so I cannot see how it is in their best interests for him to remain in Australia. Surely they must barely know him.
Again I note that no evidence was called from any of GQVS’s nieces or nephews (who may be too young) and there is no report of a psychologist who has spoken to them about this matter.
For these reasons I have little basis to make a finding that is in the best interests of minor children in Australia for GQVS to remain here.
OTHER CONSIDERATIONS
Strength, nature and duration of ties
There can be no doubt that GQVS has ties with Australia. He came to Australia in October 2001 and has lived here since then—that is, for nearly 17 years. He has not left Australia. His brothers and sisters and his parents live here as do his son and his nieces and nephews.
His ties with Australia are much stronger than his ties with the African country, where, as mentioned above, he has one grandmother and some half-siblings all of whom he has never met. On the other hand, in the course of living here GQVS has been educated in Australian schools and he has fathered a child who is an Australian citizen.
GQVS owns no real or other property in Australia that I was told about and has no job actually waiting for him should he be released into the community, although he has aspirations to find employment in the construction industry.
Nor was any evidence given about any ongoing or permanent romantic relationships he may have. The evidence given also indicated that the friends he had been associating with prior to his incarceration were bad friends, and people he would avoid on re-entry to the Australian community if he were afforded that chance.
The nature of GQVS’s ties with Australia seem to be therefore entirely familial, extending over a period of 17 years or so. Admittedly he has a large family, however, those familial ties are not as strong as in some cases. He had been living independently of his family for a significant portion of time and had been in conflict with his father in the past. I have already considered his relationship with his son and with his nieces and nephews.
I am unclear about the strength of his relationship with his father and step mother, neither was called to give evidence which is puzzling, and I have already said that if he is released he will need to live in NSW on parole with his family living in Victoria unless other arrangements can be made.
In the circumstances I am not satisfied I can proceed to make a finding that the strength, nature and duration of his ties with Australia are such that they outweigh considerations supporting non-revocation.
International non-refoulement obligations
In considering whether to set aside or affirm the decision under review I am asked by the Applicant’s Counsel to take into account international non-refoulement obligations.
It was argued however by Mr Sharpe that international non-refoulement obligations do not arise in this case. He referred me to the decision of Flick J in Ali v Minister forImmigration and Border Protection [2018] FCA 650 (see esp at [30]). I cannot agree that non-refoulement does not arise as an issue in this case. See the decision in NDRW and Minister for Home Affairs [2018] AATA 2144.
It may readily be acknowledged that if GQVS must return to the African country life will not be without its complexities for him.
I was provided with a DFAT country information report which describes what some of those difficulties may be. And there is an issue also about him being a Catholic against a background of Muslim culture in a neighbouring country, although in light of the DFAT material, I consider this risk was exaggerated.
I do not consider I may reasonably proceed to make a finding of fact on the basis of the materials before me that GQVS’s life will be in danger or that he will be at risk of a particular harm if he returns to the African country.
It was also submitted to me that if he returned GQVS could be conscripted into the army and could face danger or risk to life in that way. This was based on what he said in evidence—that he had heard from a few friends that this was most likely to happen and that he had done his own research in any event.
I do not consider that, on the basis of this vague evidence, I may reasonably proceed to make a finding that if he returns to the African country, GQVS will be in danger or at risk because he will be conscripted into the army. I do not consider I may make a finding, without more, that military conscription even exists in the African country. The DFAT material does not actually support a view that it does.
Extent of impediments if removed
I note that GQVS does still have a grandmother in the African country as well as half brothers and sisters, admittedly none of whom he said he has met but who has contacted on Facebook, so he will not be entirely without family contacts there. Still, the extent that they will be able or willing to assist GQVS financially is unknown. However, I note that GQVS’s father spent 3 months in the African country not long ago and nothing was said to me that he suffered any ill-affects out of doing so.
There is the issue of GQVS’s ability to access medical assistance, which as mentioned above, is problematic for GQVS given his medical condition and his ongoing need to access medication.
Nevertheless GQVS is a relatively young man who has some experience and qualifications in the construction industry. He has moved to and lived in different countries, including Egypt, and has shown himself to be resourceful. He also stated in evidence that his first language is the language of his tribe from the African country.
Ultimately this is a consideration which weighs in favour of the revocation.
CONCLUSION
I am satisfied that GQVS fails the character test as conceded and that I may view his lengthy criminal record as involving serious offending. Indeed, aspects of his criminal record I am satisfied I may view very seriously.
Given the nature of his offending I consider the Australian community is entitled to expect protection from GQVS from the kinds of conduct he has engaged in which constitute his criminal history.
Again, given the nature of his offending, I am satisfied the Australian community deserves to be and should be protected from such conduct and I am satisfied there is a risk that such conduct will or may occur again if GQVS is released into the community.
I am not satisfied any consideration is such as to reasonably require a finding that GQVS’s visa cancellation should be revoked.
In all the circumstances I am satisfied the decision under review should be affirmed.
129. I certify that the preceding 128 (one hundred and twenty eight) paragraphs are a true copy of the reasons for the written reasons herein of Dr Damien Cremean, Senior Member
........[sgd]..............................................
Associate
Dated 17 July 2018
Date(s) of hearing 5, 6 and 9 July 2017 Counsel for the Applicant
Solicitors for the Applicant
Ms Tanya Skvortsova
Refugee Legal
Solicitor-advocate for the Respondent Will Sharpe, Minter Ellison Solicitors for the Respondent
Minter Ellison
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Procedural Fairness
-
Statutory Construction
-
Natural Justice
0
3
0