Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3363
•13 September 2024
Gray and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3363 (13 September 2024)
Division:GENERAL DIVISION
File Number(s):2024/4253
Re:Floyd Stanton Gray
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President O'Donovan
Date of Decision: 13 September 2024
Date Reasons Published: 23 September 2024
Place:Sydney
The decision under review is affirmed.
.....................[SGD]...................................................
Deputy President O’Donovan
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant is not a citizen of Australia – arrived in Australia at very young age – long history of criminal offending – driving offences – property offences – violent offences – drug offences – failure to pass the character test – whether there is another reason to revoke the visa cancellation – Direction No. 110 – protection of the Australian community –best interests of minor children – expectations of the Australian community – strength, nature and duration of ties – extent of impediments if removed – protection of Australian community government’s highest priority – clear risks to Australian community – decision under review affirmed
Legislation
Migration Act 1958 ss 501, 501(3A), 499, 501CA
Cases
Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337
LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Secretary to the Department of Justice and Regulation v LLG [2018] VSCA 155
NZYQ v Minister for Immigration Citizenship and Multicultural Affairs [2023] HCA 37Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Secondary Materials
Direction No 110: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (7 June 2024)
REASONS FOR DECISION
Deputy President O'Donovan
23 September 2024
The Applicant was born in Calgary, Canada in 1965. He arrived in Australia with his family in 1969. He has lived in Australia ever since but never became an Australian citizen. Until last year he held a Class BF Transitional (Permanent) visa.
During his time in Australia, the Applicant has committed a very long list of criminal offences. Despite serving a number of lengthy prison sentences the Applicant’s visa status was never scrutinised by the Respondent. In 2023 the Applicant’s luck ran out. On 21 April 2023, the Applicant’s visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (Migration Act). The delegate was satisfied that the Applicant did not pass the character test because he had a substantial criminal record. The delegate was obliged to cancel the Applicant’s visa because he was serving a sentence of imprisonment on a full-time basis.
The Applicant applied to have that decision set aside. On 18 June 2024 a delegate decided not to set aside the visa cancellation. The Applicant seeks review of that decision.
The Applicant concedes that he does not pass the character test. The only question in issue is whether there is another reason why the original cancellation decision should be revoked.
In recent Federal Court cases a question has arisen as to whether, in determining if there is another reason why the cancellation decision should be revoked, I am exercising a discretion concerning the cancellation.[1] While the question does not appear to be finally settled,[2] I have approached this matter on the basis that:
(a) The decision-making process is a single stage process: if I am satisfied that there is another reason why the cancellation decision should be revoked I do not have a discretion to nonetheless refuse to revoke it;
(b) Section 501CA(4)(b)(ii) requires me to examine the factors for and against revoking the cancellation. If satisfied following an assessment and an evaluation of those factors, that the cancellation should be revoked, I am obliged to act on that view.[3]
[1] See for example Au v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 125.
[2] See Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 at [22], LPDT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2024] HCA 12 at [35] .
[3] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 (Gaspar); (2016) 153 ALD 337, at [38], cited with approval by the Full Court in Minister for Home Affairs v Buadromo [2018] FCAFC 151. See also ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
In considering whether there is another reason why the cancellation decision should be revoked, the Tribunal must have regard to the matters contained in a ministerial direction issued under section 499 of the Migration Act. The relevant direction is Direction No 110 which was executed on 7 June 2024 and commenced on 21 June 2024 (the Direction). Informed by the principles identified in the Direction, I must take into account the considerations identified in sections 8 and 9 when I am determining whether there is another reason why the cancellation should be revoked.
The Direction is divided into ‘Primary’ and ‘Other’ considerations. In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The protection of the Australian community consideration should generally be given greater weight than other primary considerations and primary considerations should generally be given greater weight than ‘other’ considerations. There is however scope to weight ‘other’ considerations more highly in appropriate circumstances[4] and similar flexibility is available in the relative weighting of primary considerations
[4] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
The primary considerations are:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
The other considerations are:
(a) The legal consequences of the decision;
(b) The extent of impediments to the Applicant establishing and maintaining basic living standards if removed from Australia;
(c) The Impact on Australian business interests.
I am also required give consideration to any other considerations raised by the applicant.
Having considered each of the considerations and weighed them appropriately, I have decided that the decision under review should be affirmed. Consequently, the visa cancellation decision stands.
My reasons for that decision are set out below.
Evidence before the Tribunal
The following material was taken into evidence in the course of the hearing:
(a) G-Documents filed with the Tribunal on 12 July 2024 (G-Docs);
(b) Applicant’s tender bundle filed with the Tribunal on 7 August 2024 (Exhibit A1;
(c) Applicant’s Supplementary Tender Bundle field with the Tribunal on 19 August 2024 (Exhibit A2);
(d) Respondent’s Tender Bundle filed with the Tribunal on 15 August 2024 (Exhibit R1);
(e) Respondent’s Chronology of Events, as colour coded filed with the Tribunal on 15 August 2024 (Exhibit R2); and
(f) Respondent’s Supplementary Tender Bundle filed with the Tribunal on 27 August 2024 (Exhibit R3).
The following witnesses gave oral evidence and were cross-examined:
(a) The Applicant;
(b) Ms Kellie West;
(c) Mr Marcus Andrews; and
(d) Mr Guy Coffey (Clinical Psychologist).
Fact finding principles
In reaching my findings on the primary facts I must apply the principle, clarified by the Full Court of the Federal Court in HZCP v Minister for Immigration and Border Protection (HZCP),[5] that '…relying on evidence contrary to the essential conviction or sentencing facts would in itself be an error'. The Court made clear that a person who makes representations to revoke the cancellation of a visa cannot advance a factual position that undermines the relevant convictions and sentences as 'another reason' why the original decision to cancel should be revoked.
[5] [2019] FCAFC 202 at [68].
I do note however that the Applicant is entitled, subject to some qualifications, to seek different findings from the Tribunal in relation to any criminal convictions which did not form the basis of the decision to cancel his visa. The principles to be applied by the Tribunal when considering evidence of this nature were comprehensively summarised by Justice Bromberg in HZCP. The principles are stated concisely in the following passage from Secretary to the Department of Justice and Regulation v LLG, cited with approval by Justice Bromberg:
The authorities distinguish between cases where a previous conviction is the basis for a decision-maker or reviewing tribunal's jurisdiction and those where it is not. In the former case, the essential factual basis of the conviction (or sentence, as the case may be) is not able to be reviewed, but the circumstances of the conviction can be reviewed for a purpose other than impugning the conviction itself. In the latter case, the essential facts underlying the convictions are not immune from challenge and the conviction is conclusive only of the fact of the conviction itself, but there is a heavy onus on a person seeking to challenge the facts upon which the conviction is necessarily based.[6]
[6] [2018] VSCA 155, at [42].
In this matter I am therefore bound by the essential findings made in relation to the stealing offence, that led to the sentence which became the foundation of the visa cancellation. In relation to the Applicant’s other convictions, I do have some freedom to depart from the findings made in relation to the many other crimes which the applicant has been convicted of, but it would be unusual to do so.
A significant issue has also arisen in relation to what is described as ‘serious conduct’ in the Direction. This is conduct which is treated as highly relevant when weighing a number of considerations under the Direction, but which has not been the subject of a criminal conviction. ‘Serious conduct’ can be established by other evidence. The Respondent has tendered material which is taken from a database of the NSW Police. Respondent’s Supplementary Tender Bundle filed with the Tribunal on 27 August 2024 is made up entirely of this material.
The documents record details of incidents which the police have attended including what they have been told and what they have observed. Some of the reports relate to incidents where family violence has been reported. The Applicant’s representative did not object outright to the tender of the material but pointed out that the documents contain unverified hearsay and on that basis should be given little or no weight.
The Respondent did not call any witnesses to attest to the veracity of the reports. A witness called for the Applicant was identified as the victim of one of the reported assaults. Her evidence was that she had no memory of the incident. The Applicant, when asked about one record said the incident described never happened. In relation to a number of the other incidents of alleged family violence, he claimed to have no memory of them.
The Respondent was supportive of the approach urged upon me by the Applicant. He contended that it would be unsafe for me to rely upon the documented reports of the police. I have largely accepted that submission. A finding that the Applicant has committed acts of family violence would have very adverse consequences in the analysis of relevant considerations. It should not be made lightly and on the basis of evidence which may not fully reflect what occurred. However, I have relied upon the police reports to provide contextual information that is not, in and of itself, adverse to the Applicant and which is consistent with other evidence - information such as where and with whom he was living and in what circumstances.
In treating the information in the police reports in this way, I am not laying down any general rule that police reports do not provide a proper basis for the making of findings of fact concerning serious conduct. In many cases it will be appropriate to do so, but much will depend upon the content and the credibility of the reports in the context of the other evidence available to the Tribunal.
So, notwithstanding that there are incidents reported to the police where the Applicant had engaged in family violence, I have made no affirmative findings that he did. I have assessed his case on the basis that the Family Violence consideration is neutral because I am not satisfied that he ever engaged in conduct meeting that description.
Facts
My findings of fact are set out below. Where a finding is controversial, I have referenced the evidence on which the finding is based.
As noted above, the applicant was born in Calgary, Canada in 1965. He arrived in Australia with his family in 1969. He arrived by boat which had departed from Genoa in Italy. Ireland was identified as the country of most recent permanent residence on the incoming passenger card. The Applicant believes that his mother was an Australian citizen and that his father may have been a US citizen. The parties are in agreement that the Applicant is not an Australian citizen. There is however no consensus about what citizenship the applicant actually holds.
When he arrived, the Applicant’s family consisted of his mother and father and three siblings. By the time the applicant was six years old his parents had separated. His mother was awarded custody of the children. However, his father never respected the court orders. As a consequence, the children were often removed from their mother’s care by the father and taken to live somewhere else until the police caught up with them. The result was an extremely chaotic childhood which resulted in the Applicant attending multiple schools in various parts of Australia. The Applicant’s father was a strict disciplinarian who used forms of corporal punishment that would leave welts on the Applicant. The Applicant’s mother appears to have limited interest in her children after she re-partnered.
The Applicant left school in year 9. When he was 16, for reasons which I haven’t explored, the Applicant was placed in Mount Penang Training School. The Applicant was sexually abused there.
When he was released from Mount Penang the applicant was 17. He returned to Sydney and got a job painting ships at Cockatoo Island. He lived with his girlfriend at her father’s house. Soon after his release he began using marijuana, and shortly after that began using heroin.
At age 18 he had his first child with his first long term partner Sharen. His second child was born when he was aged 20.
The Applicant’s criminal offending as an adult began on 12 September 1983. He was convicted of driving without a licence and speeding and fined a total of $400 and disqualified from driving for 12 months. Multiple driving offences were committed over the course of 1983 and 1984. None were terribly serious but showed a disregard for the law that could not be tolerated by the courts. The Applicant was sentenced to four months imprisonment on 7 August 1984 for driving while disqualified. On the same day, he was sentenced for being in possession of property likely to have been stolen (described as ‘goods in custody’ and abbreviated to GIC in the Criminal History) and sentenced to four months in prison to be served concurrently with his driving offence. He was also fined for using a prohibited drug (heroin).
Upon release the Applicant immediately resumed offending and was imprisoned for driving whilst disqualified and was sentenced to six months imprisonment. He was also sentenced for being in possession of property likely to have been stolen; an offence he repeated shortly after leaving prison in the second half of 1985. Minor offending continued throughout the remainder of 1985 and into 1986. In March 1987, he was charged with breaking and entering with intent. He wasn’t dealt with by the courts for that offence until May 1988.
Following that charge the Applicant was convicted of failing to appear on a first instance warrant and in relation to a break, enter and steal charge in July 1987. He was given a four month custodial sentence.
In May 1988, he was charged with ‘being carried in a conveyance’ which is an available charge when a person is riding in a car taken from the owner without consent. The applicant was convicted and sentenced to 4 months in prison.
On 8 September 1988 he was convicted on 2 counts of break, enter and steal (having been charged with that offence in May 1988) and sentenced to 12 months in prison from 14 July 1988 with a non-parole period of 6 months and 16 months in prison from the same date with a non-parole period of 10 months.
Within weeks of his release from prison the Applicant was offending again. The charges he racked up in 1989 included motor vehicle theft, breaking and entering, larceny and failure to appear in court. The sentence handed down resulted in the applicant serving time from 12 July 1989 to 12 January 1995.
A month after release he was charged with refusing a breathalyser. He was convicted and fined.
In May of 1995 the Applicant was involved in a motor vehicle accident. He was charged with 2 counts of dangerous driving occasioning grievous bodily harm. He was convicted of both and given a minimum sentence of one year and nine months on each count.
The police reports of the accident, which I have no reason to doubt, record that the Applicant was driving a vehicle which veered onto the incorrect side of the road, crossing unbroken centre lines. He collided head on with a vehicle travelling in the opposite direction. The driver and passenger in the other car were trapped in the front of their car and suffered serious face and leg injuries.
The Applicant remained free in the community until he was sentenced. In the week prior to his sentencing for the driving offences the Applicant was charged with stealing, receiving and other driving offences. He received prison sentences for all of the charges.
The Applicant was released on parole in August 1997 and had resumed his offending by the start of 1998. He was charged with breaking and entering a building to commit a felony, driving while disqualified (for which he received home detention), exceeding the speed limit, breach of home detention and possessing implements to enter and drive a vehicle. He re-entered prison in August 1998 and was released in December the same year.
In 1999 the Applicant continued his offending. He was convicted of larceny, using an unregistered vehicle, giving a false name, having goods on premises reasonably suspected of being stolen, driving while disqualified, break enter and steal.
In April 2000, the Applicant was charged with breaking and entering. He was sentenced in February 2001 with a non-parole period of 12 months. As he had been remanded in custody since August 2000 (following another break and enter offence) he was released on parole in August 2001.
The Applicant did not return to prison until June of 2005. He was imprisoned for driving while disqualified having been given a 6 month sentence and a 16 month sentence on two separate counts. He also received a 2 year sentence with a non-parole period of 12 months for breaking and entering. The sentence was handed down on 2 November 2005. He was released from prison on 1 November 2006.
In 2009 the Applicant was again convicted of driving while disqualified and given a sentence of two years with a non-parole period of 12 months. He was incarcerated from April 2009 to October 2010.
The Applicant was convicted again of driving while disqualified in August 2012 but was given an intensive corrections order rather than prison time.
The next serious offence committed by the Applicant was reckless wounding in company. He was sentenced to 3 years in prison with a non-parole period of 2 years. The offence was committed on 29 March 2016. The Applicant admits that he assaulted the victim when he was in the company of his brother in law and another person. The reason for the assault was that the Applicant had been led to believe that the victim had assaulted a female friend of his. During the preparation of the pre-sentencing report for the offence the applicant said that he agreed with the police facts.
The judge in his sentencing remarks made on 24 May 2019 described the offence as follows:
…the victim went to sleep on a lounge in the lounge room of his home at approximately 2am. Sometime later, the victim is unsure of the exact time, the victim woke to being punched repeatedly in both the head and the torso region. He fell onto the lounge room floor and crawled away attempting to avoid the punches and ended up near the front door on the floor. The victim could also feel blood running down his body from the back of his neck.
The victim heard a male voice say words similar to “you fucking woman bashing cunt, you deserve this cunt”. The victim also saw Payne standing about 3 metres from him. Payne said, “Floyd, look at his leg.” Floyd said, “I know I know”. The victim had a 25-centimetre cut to his leg calf….
As a result of the assault upon him the victim suffered a right-hand laceration, a 10-centimetre laceration on his right wrist with tendons showing, a right leg laceration 25-centimetres long with a 4 centimetre cut, lacerations to the head including bruising and swelling to the eyebrow, bruising on his neck and soft tissue swelling of the nose. The victim was required to undergo surgery to repair the tendons of the right hand and to suture the laceration of the right leg. The victim was hospitalised for more than a week.
The Applicant was sentenced to three years in prison with a non-parole period of 2 years commencing on 9 March 2017. The result was that on the date of sentencing the Applicant was entitled to parole immediately and was entitled to be released on the day he was sentenced (24 May 2019).
However, the applicant had committed a common assault on 2 March 2018. He was convicted on 13 February 2019 and sentenced to 6 months in prison.
The circumstances of that assault were as follows. A 13 year old boy approached a woman on the street and made a sexual comment to her. A male friend of her’s began arguing with the boy. The boy spat in the direction of one of the Applicant’s associates and threw a number of punches. The Applicant intervened and the boy then ran away. The Applicant then chased the boy down the street and up a flight of stairs and into the rear of a hotel. CCTV captured an associate of the Applicant striking the boy with a chair, followed by the Applicant punching the boy 5 or 6 times in the face while his co-accused held him by the hair. The boy then dropped to the ground.
He was sentenced in relation to that offence on 13 February 2019.
The following year the Applicant was convicted of contravening an AVO. The Applicant was evasive in his evidence concerning this breach. He remembered it was in favour of someone called Kirsty who he described as ‘just this sheila’ who he didn’t really know but who ‘wouldn’t leave me alone’. Police records suggest a stronger association than that but not much turns on it.
On the applicant’s account, despite not knowing Kirsty well she had taken out an AVO against him. Following a random encounter at the shops, the police caught them together at a bus stop. Consequently any breach of the AVO was just a technical breach.
While I am sceptical about whether this is the full picture of the relationship with Kirsty, I do accept that the breach of the AVO was minor in the sense that there was no violence associated with the breach and it occurred with the protected party’s consent. I note also that the Applicant denied the conduct which led the police to seek the AVO in the first place and the prosecution was abandoned due to lack of co-operation from the witness. In these circumstances I make no finding about whether or not the applicant committed violence against Kirsty.
The Applicant was also found to be in possession of cannabis when he was searched at the bus stop. He was charged and found guilty in relation to the matter.
The applicant spent the first nine months of 2020 in prison.
On 3 April 2021 the applicant was involved in a high speed police pursuit. The police description of the chase is as follows. I am satisfied that it is accurate. The applicant did not suggest otherwise:
About 3:30 on Saturday 3rd April 2021 police were conducting stationary random breath testing on Central Coast highway Erina heights targeting westbound traffic. At this time the accused was directed and stopped and requested to produce his drivers licence. The accused was unable to produce the licence upon request and was directed to park on the shoulder where police conducted further inquiries. The accused was requested to state his name and warned that providing false information was an offence where he provided police with the details of Lee Grey with date of birth 22/12/1969 unable to locate the details of the accused he was asked again to provide his particulars and again where he provided Lee Homer of 22/12/1967 police checked the identification and the photo did not match the accused. At this stage police told the accused to step out of the vehicle and attempted to open the drivers door. The accused has moved the vehicle into gear and accelerated away from police and back onto Central Coast highway and entered lane 3 of 3 and accelerated away. Police at this stage still not knowing who the driver was initiated pursuit. The accused travelled westerly along Central Coast highway reaching speed between 100 kph to 131 kph in the signposted 60 kph speed zone, the accused was changing lanes between 1 and 2 as he passed a number of vehicles. Upon reaching the intersection of Terrigal Drive the accused has slowed and made a left turn onto Terrigal Drive and travelled Easterly towards Terrigal. The accused accelerated to speed up-to 128 kph in the sign posted 70kph speed zone changing from lanes 1 and 2 as he approached the intersection of Chetwynd Road which is controlled by a roundabout. The accused merged between two vehicles in lane 1 and 2 and travelled through the roundabout at a speed of about 50 kph. The accused has then accelerated along Terrigal Drive reaching speeds up-to 128 kph in the sign posted 70 kph as he passed the Hammond Care Erina centre the offside vehicle crossed over the double dividing lines as he looked at oncoming traffic which was approaching and blocking his path, his speed at this stage was 90 kph as he re-entered the correct side of the road to avoid a collision and was forced to slow to 60 kph. The accused continued easterly along Terrigal Drive where he then overtook a vehicle at 60 kph onto the incorrect side of the road over double white lines and re-entered the correct lane and accelerated and reached speeds between 100 and 122 kph as he passed cars in painted islands and merge lanes before he was slowed by heavy traffic at the intersection of Serpentine Avenue where he was slowed to 60 kph. The accused has then crossed onto the incorrect side of the road crossing double white lines at a speed of about 70 kph on a bend, at the time 1 vehicle was oncoming and he re-entered the correct side of the road and was held up by further vehicles ahead of him. Upon reaching the intersections of Duffys Road which is controlled by a roundabout, Lane 1 being for eastbound traffic and lane 2 being a designated right turn only lane for the roundabout into Duffys Road, The accused has entered lane 2 and accelerated to 80kph as he travelled straight through the roundabout and rejoin onto Terrigal Drive travelling east, now reaching speeds up-to 110 kph in the sign posted 60 kph zone. The accused approached the intersection of Charles Kay Drive which was fully blocked by stopped traffic at the red traffic control lights. The accused has diverged left and entered the narrow bike lane and passed a number of vehicles to the left as he entered the intersection failing to stop at the stop line at the red light: and made a right turn against that red light now travelling Southerly up Charles Kay Drive. The accused now reached speeds up-to 140 kph in the sign posted 60 kph zone passing a number of vehicle at the time. As the accused approached the intersection of Scenic Hwy he has diverged left into a wide shoulder and passed a number of vehicles to the left at a speed of 80 kph and turned left onto Scenic Hwy and accelerated up-to 100 kph in the sign posted 60 kph zone. The accused has then crossed over double white lines at the stated speed of 100 kph at a bend in the road at which point an oncoming vehicle was approaching which the accused had to swerve left back into the correct lane moments before colliding with the oncoming vehicle. At this stage due to the extreme danger to the public the pursuit was terminated by police as he continued travelling Easterly towards Terrigal at speed of 100 kph.
The applicant was sentenced on 23 September 2022 to a term of imprisonment of 18 months with a non-parole period of 12 months.
On 10 December 2021 the Applicant was sentenced to 20 months prison with a non-parole period of 6 months in relation to supplying a prohibited drug less than a commercial quantity.
On 23 March 2023 the Applicant was dealt with by the court in relation to two offences. The first involved resisting arrest for which he was fined $800 and the second was stealing property worth more than $2000. He was sentenced to two years in prison with a non-parole period of 1 year. The Applicant stole jewellery from a woman he knew. He said he did it because he had put a car into her name and she was refusing to acknowledge his ownership of it.
While the Applicant was serving his sentence his visa was cancelled. When he was granted parole on 20 May 2023 he was removed to immigration detention.
This summary of the Applicant’s offending gives a sense of its span scope. It is however not a full recount of all of the Applicant’s offending.
Family Relationships and Children
The Applicant has a large number of family members in Australia. His father has passed away. His mother is still alive but he is estranged from her. He has a brother Jason but gave no evidence about him. The Applicant has another brother Lee and two sisters Debbie and Lisa. The Applicant gets on well with his sister Lisa and they are in regular phone and Facebook contact. The Applicant is not in regular contact with his other siblings Lee and Debbie.
The Applicant has seven children. His first two children he had with Sharen. His relationship with Sharen broke down around 1990. The applicant’s evidence is that it ended because of his drug issues. At the time he was only focused on feeding his addiction and was not a good partner.
In 1995 the applicant commenced a relationship with Kerin. He had four children with Kerin – MG, DG, FG and JG. Their ages currently range from 18 to 23. The children have indigenous heritage on their mother’s side.
The relationship with Kerin was a durable one. In 2001 Kerin developed agoraphobia and on the Applicant’s evidence is that she was unable to leave the house. The Applicant says that he took on more practical parental duties as a result when they occurred outside the home. This included:
(a)Taking the kids to school;
(b)Taking kids to football games and training; and
(c)Doing the shopping; and
(d)Any sort of task that required attending an office or location outside the home.
His current girlfriend Kellie, who has known the Applicant for a long time says that because of Kerin’s health issues the Applicant did all of the work around the house. She says she knew Floyd as a family man who was a good dad to his kids and loved them. Similar versions are given by the Applicant’s children. In light of this evidence, I am prepared to accept that there were periods, particularly in the early 2000s when the Applicant was a good dad. It is clear that all of the children played sport and the Applicant had some role in getting them involved in it. I am prepared to accept, as he says, that he volunteered at the local Rugby League football club, the Entrance Tigers around 2003.
The children the Applicant had with Kerin gave statements when the Applicant was seeking to have the Minister’s delegate overturn his visa cancellation. The statements were however only in very general terms and gave no description of each child’s closeness (or otherwise) with their father growing up. Further statements were tendered from some of the children as part of the Tribunal’s review. Those statements support the conclusion that there were some periods where the applicant did perform an important parental role in their lives.
However, there is also evidence that indicates for extended periods he was not fulfilling his responsibilities in that regard while Kerin was alive.
The Applicant was in prison for almost a year from August 2000, in prison again between June 2005 and November 2006, in prison again between April 2009 and October 2010, in prison again for a month in 2013, again from April 2016 to August 2017 and from May 2018 to June 2019. His mother in law looked after Kerin and the children while he was in prison.
He commenced an intimate relationship with Kellie, the mother of his youngest daughter Breanna, in 2017. Kellie gave evidence that while she and the Applicant were involved, he would ‘go back and forth’ between her house and Kerin’s house. At that time his children’s ages ranged from 11 to 16 years of age.
Looking at the evidence as a whole I am willing to accept that the Applicant was for a period from 2001 to 2003 performing carer responsibilities for his family. However, from 2004 onwards I am not satisfied that the Applicant was at any time after that integral to the functioning of the household where his children were living. He was absent in prison for extended periods, he had a relationship with another woman which took him away from the family home, he concedes that in 2004 he relapsed into hard drugs and began committing further criminal acts, and the glimpses of his life which the police reports provide are of a seriously drug affected person whose demeanour was inconsistent with a family man with an interest in looking after his sick wife and young children.
In August 2018 Kerin died of kidney failure. The Applicant was in prison and was unable to attend the funeral.
Kerin’s mother looked after the children after Kerin’s death and while the Applicant was still in prison. During his time in prison the Applicant expressed concern about the care of his children to the prison psychologist and expressed a desire to live with them when he was released. The Applicant was released from prison in June 2019.
He was back in prison soon after for the following periods - January 2020 to July 2020, on remand from July 2020 to September 2020, in prison from June 2021 to December 2021 and finally March 2022 to 20 May 2023 following which he was in immigration detention.
It is unclear where the Applicant lived when he was released in June 2019. Following his release in September 2020 he was living with his sister in a spare room at her home. He lived there until January 2021 when the Applicant met Sharon who he had a relationship with. He began to spend less time at his sister’s house and by February 2021 had moved out completely. It is unclear where he moved to and whether it involved much contact with his children.
Breanna
Breanna, the Applicant’s youngest child, was born while the applicant was in prison. Kellie, Breanna’s mother, ended her relationship with the Applicant soon after she fell pregnant in early 2018. She moved to Newcastle. After Breanna was born, Kellie left Breanna with her Auntie while she took steps to deal with her drug addiction. She never informed the Applicant that she had had a baby. The Applicant was unaware that Kellie had given birth, although there is some evidence that he was aware she was pregnant in the early part of 2018.
Kellie and the applicant re-established contact through Facebook about 7 months ago. Kellie now calls the applicant on a daily basis. The Applicant has met Breanna twice in person, once in immigration detention and once at the Tribunal hearing. Breanna is now five. She also has indigenous heritage on her mother’s side.
Kellie has known the applicant for around 30 years. When they were teenagers he used to live across the road from Kellie. Kellie and the Applicant have discussed recommencing a de facto relationship if he were to be granted his visa again. In the long-term, Kellie hopes to get married to the Applicant. Kellie and the Applicant have ‘committed to live together if he were to be given a visa and able to live in the community’. This will bring the Applicant for the first time into close proximity with Breanna.
Family relationships
For completeness, I note that the Applicant’s evidence about his family relationships included the following:
I have a close relationship with all of my children. They are the most important part of my life.
I try and reach out to my children on a weekly basis.
If I am to be released, I want to be there for my children. Particularly for Breanna, I want to be present in her life as a father.
I regret my previous actions – particularly because they meant that I wasn’t able to be there for my children. I feel responsible for the time that I was locked up and being there in their lives.
…
I have two grandchildren:
a.Layla Gray; and
b.Brodie Gray
They are both Dean’s kids.
I talk to them sometimes when I am speaking to Dean and I hope to continue to be involved in their lives. I think it will be very difficult to be involved if I am deported.
…
I don’t have a great relationship with my mother. I rarely am in contact with her.
I have a good relationship with my sister Lisa. She’s regularly in contact with me over phone and Facebook. She lives on the Central Coast. I hope to be able to visit her in person if I am [released]
I am not in regular contact with my other siblings. I am not sure where Lee and Debbie are currently living.
I accept that evidence.
Employment history
The Applicant does not have much by the way of an employment history. He has held three jobs in his entire life. One as a painter and docker at Cockatoo Island in Sydney, as a cleaner at Chickadee Chicken and as a labourer at Nanna’s Apple Pies. He has been on unemployment benefits or the disability support pension since at least 2004.
Psychology Report
The Applicant saw psychologist Guy Coffey on 19 August 2024 for the purposes of this application. He interviewed Mr Gray on 13, 14 and 16 August 2024. He concluded that the applicant was suffering from Posttraumatic Stress Disorder (DSM-5), Substance Use Disorders related to longstanding use of heroin, methamphetamine and cannabis which were at that point in time in abeyance. He was not suffering from depression and he did not have a personality disorder.
Dr Coffey stated that he did not believe that Mr Gray’s approach to living is irredeemably fastened to criminality. His pro-social tendencies could gain ascendancy if were to accept a comprehensive program of rehabilitation. Without such a program, and especially if he lapses back into heavy drug use, I think it is likely he will reoffend, most probably in the form of property or driving offences.
A comprehensive program of rehabilitation would have the following elements:
(a)An evidence based psychological treatment for PTSD with weekly sessions for at least nine months to a year or until any residual symptoms are subclinical and do not cause significant distress or functional impairment with the provision to recommence treatment should symptoms re-emerge;
(b)Pharmacotherapy for PTSD where necessary, as indicated by a psychiatric evaluation;
(c)A comprehensive program for substance abuse consisting of pharmacotherapy including the current buprenorphine regimen; individual counselling for at least a year and recommencing immediately at signs of relapse; and a group program (such as Narcotics Anonymous) for at least three years, commencing with initial weekly attendance. A significant relapse during the course of treatment may require that he enters a residential AOD program for a period;
(d)A medical service managing chronic health needs and ongoing pain (for example, cervical vertebrae damage, foot injury, respiratory illness) and involving specialist care as required;
(e)Case management and supportive counselling to ensure services are adequately coordinated, a meaningful and structured daily routine is established, and there is access to vocational training, educational courses and employment opportunities as required.
Dr Coffey expressed the view that if Mr Gray were to adhere strictly to such a program, there is a reasonable chance that the risk of recidivism could be brought to a low level.
In his oral evidence Mr Coffey accepted that if the Applicant returned to drugs violent offending was more likely to occur.
Drug use
The Applicant’s drug use is entrenched. In his twenties he was a daily user of heroin and he stole in order to fund his addiction. He had an extended period in the early 2000s where he was not using but he returned to the use of heroin. In 2016 the Applicant was introduced to methamphetamine. Kerin’s brother was a heavy user who introduced him to the drug. He has also been a cocaine user at times.
He never got his drug habit under control in the community after being introduced to methamphetamine.
He has accessed methamphetamine and misused buprenorphine while in detention. The last established use was September 2023.
Other lay witnesses
Two non-relatives have provided statements supportive of the Applicant. The first, in the context of the delegate’s review, was provided by Robert Turton. He had known the applicant for a period of 20 years and described him as a good friend and a good father. He described Mr Gray’s family as a good family and stated that his kids needed their father as their mother had passed away.
Marcus Andrews, another friend, gave evidence at the hearing. He had lived near the applicant during his teenage years growing up in Ultimo. They lost touch when the Applicant moved to the central coast. The Applicant called Mr Andrews in 2023 when the Applicant was in Villawood detention centre. He has offered to be a mentor to Mr Gray when he gets out of prison and to connect him with the local Aboriginal community.
Indigenous Heritage
All of the Applicant’s children from his relationships with Kerin and Kellie are Aboriginal. The Applicant is not Aboriginal.
Attempts at Drug Rehabilitation and Counselling
The Applicant has had limited interventions to address his drug use and PTSD. In around 2017 he underwent six sessions with a psychologist but without much benefit.
In immigration detention he has attended the Smart Recovery Program on several occasions and has also had some treatment for his PTSD with a psychologist. The applicant had undertaken the Smart Recovery Program in 2010 but without success.
CONSIDERATION
Primary considerations
Protection of the Australian Community
When examining this consideration I am required to keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, 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.
I need also to give specific consideration to:
(a)The nature and seriousness of the applicant’s conduct to date; and
(b)The risk to the Australian community, should the applicant commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
In considering the nature and seriousness of the conduct there are factors to which I must have regard specified in paragraphs 8.1.1(1)(a)-(h).
When these factors are applied to the Applicant’s circumstances, the result is that I must approach the applicant’s case on the basis that his crimes are viewed very seriously by the Australian Government and the Australian Community. His crimes include violent crimes and one of those crimes was an assault against a child resulting in a substantial sentence being imposed by the courts (factor (a)).
The Applicant has also committed crimes against government officials in the performance of their duties by resisting arrest which I must treat as a serious crime (factor (b)).
The Applicant has had custodial sentences imposed for many of his offences. On 8 occasions he has been sentenced to more than two years in prison which indicates the seriousness with which the courts regard the offending (factor (c)).
There is no evidence before me concerning the impact of the Applicant’s offending on his victims (factor (d)).
Further, the Applicant’s offending has persisted over a long period of time and increased in seriousness over time. The Applicant’s most violent crimes (the 2016 assault in company and the 2019 assault of a juvenile) occurred relatively recently in the context of a criminal history of more than 30 years. His most deliberate dangerous driving offence, the high speed police pursuit, took place in 2021 - again more than 30 years after his first adult driving offence. I am satisfied that the Applicant’s offending has increased in seriousness over time (factor (e)).
I have also given attention to the cumulative effect of the Applicant’s repeated offending. Over time he has stolen regularly from other members of the Australian community. His repeated offending has left sentencing judges with no alternative but to impose jail sentences, repeatedly absorbing community resources in the management of his behaviour. Over time he has had many different victims who have been cumulatively harmed in a variety of different ways (factor (f)).
The Applicant has never provided false or misleading information to the Department. Indeed, the Applicant has never been aware that his immigration status might be affected by his criminal conduct. The Applicant has never been warned about the risk of visa cancellation if he re-offends. At the hearing he was adamant that now that he knows the consequences, his behaviour will be different in the future (factor (g)).
The Applicant has never committed an offence in another country (factor (h)).
The risk should the non-citizen commit further offences
In considering the need to protect the Australian community I must have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable. The Applicant’s criminality is not conduct of that kind, but the seriousness of the potential harm to the community from the Applicant’s driving and violent behaviour is such that the community has a very low tolerance for the risks which they pose.
In assessing the risk to the community, I have had regard to the factors identified in paragraph 8.1.2(2) of the Direction. I must have regard to the nature of the harm to individuals or the Australian community should the Applicant engaged in further criminal or other serious conduct and the likelihood of the non-citzen engaging in further criminal conduct taking into account of the Applicant’s risk of reoffending and evidence of rehabilitation achieved by the time of the decision giving weight to time spent in the community since the most recent offence. My analysis is as follows.
Nature of the harm from further criminal conduct
The harm to others should the Applicant engage in further conduct of a criminal or serious nature includes death or serious injury in a traffic accident, serious injury following an assault, an injury to an official performing their duty, harm associated with the use of hard drugs and loss of property.
The dangers of the Applicant’s driving conduct have been amply demonstrated by the accident which he caused in May 1995. The resulting accident caused injuries to the applicant and to innocent road users. The Applicant’s relatively recent high speed car chase following routine police engagement was fraught with risk. It could easily have ended with an innocent member of the community being killed or maimed as a result.
The applicant’s other serious assaults resulted in significant injuries to the victims.
Likelihood of further criminal conduct
I am satisfied that the risk of the Applicant engaging in further criminal or serious conduct should be assessed as a medium risk of re-offending within 2 years of release into the community. I accept the opinion of the Applicant’s psychologist Mr Coffey that violent offending is unlikely if the Applicant remains clean. However, I consider it very likely that the Applicant will relapse into drug use. Given that there have been only a couple of extended periods where the Applicant has remained drug free in the community, I am not optimistic that he will be drug free for any significant period. His opiate addiction seems to be able to be controlled with the assistance of methadone and injections, but I am not optimistic that the Applicant will be able to resist the use of other drugs like methamphetamine. Since he commenced using methamphetamine in 2016 his behaviour has deteriorated. He has used methamphetamine in immigration detention. He seems to have been clean for a year (which is greatly to his credit) but his ability to resist the drug has not been tested in the community. It is reasonable to expect that the Applicant will be using again within two years and will pose a moderate risk of violent behaviour in those circumstances.
Similarly, if the Applicant resumes the use of drugs then it is reasonable to expect that his stealing and unlawful use of motor vehicles, which facilitates his drug use, will resume. When he uses methamphetamine his judgment is impaired and has in the past shown that he can be violent.
Mr Coffey was of the view that the Applicant could make progress if a particular program of therapy and rehabilitation was embraced. However, he also accepted that progress required real commitment. The Applicant has never made a serious attempt in the past to address his behaviour. I consider it unlikely that the Applicant will take the necessary steps to stay clean for an extended period and it is similarly unlikely that he will cease committing crime in the medium term. The support services which he identified as being available to him near where he lives have been available to him in the past and have failed to have any protective effect.
I do not regard the Applicant’s proposed living arrangements on release as protective. The Applicant intends to move in with Kellie and Breanna if he is released. Kellie is now clean and doing well and gave evidence that she would be firm in her resistance to the Applicant using drugs. However, I have assessed a moderate likelihood that the Applicant will resume using drugs, if he does so I do not see any barrier to the Applicant changing his living arrangements to facilitate his drug use. There is also a risk that the Applicant will be a corrupting influence on Kellie. They have used drugs together in the past and as Kellie described it in her evidence ‘they encouraged one another’ in their drug use. This history suggests that the living arrangements that the applicant has planned are far from ideal if he wishes to remain clean.
The Applicant submits that he is motivated to rehabilitate by the desire to remain in Australia with his children, in particular his daughter Breanna, and his partner. I don’t doubt that these factors do provide motivation for him, I am not satisfied that they are likely to be sufficient to keep the applicant away from drug use which has been an entrenched problem since the applicant’s use.
In circumstances where the kinds of crimes which the applicant may commit could result in death or serious injury to a member of the Australian community, and the likelihood of further offending is moderate, this consideration weighs very strongly against the applicant having his visa restored to him.
Family violence committed by the non-citizen
This consideration is neutral as there are no incidents of family violence which I am reasonably satisfied took place.
There are police reports available to me which record incidents of family violence. None of those incidents have ultimately been the subject of a conviction. Many of the incidents record reports of violence by clearly drug affected witnesses who may not be reliable and on their face the reports provide a reason for thinking that they are not. The Applicant for the most part denied or could not remember any of the incidents recorded in the police reports. He gave more general evidence that he had never laid hands upon a woman. Notwithstanding the serious reservations I have about the truthfulness of that evidence, both representatives urged me not to make adverse finding of family violence. I am satisfied that is appropriate in this case.
Strength, Nature and Duration of Ties to Australia
This consideration weighs very strongly in favour of revoking the visa cancellation.
The Applicant came to Australia with his nuclear family as a young child. He has spent 55 years in Australia, including his formative years. He has had a number of relationships here and fathered many children. He has grandchildren here.
His work history is sparse and it is difficult to identify many links outside his extended family, but one person who he knew when he was much younger and who he has recently reconnected with, gave evidence on his behalf. In his submission to the Minister’s delegate the Applicant included a statement from another old friend Robert Turton.
I am satisfied that the Applicant remains close to his children. Some attended the Tribunal hearing and there are indications in police reports that when the Applicant is free in the community he lives with or in close proximity to his children from his relationship with Kerin. He was certainly worried about his children when Kerin died and he was still in prison. I accept as genuine his evidence about his family being everything to him. He had a role in raising his four children with Kerin, and Jak and Floyd Jr gave statements in these proceedings and Deanna and Jak gave statements to the Minister’s delegate indicating how affected they would be if the applicant were removed to another country.
I am not satisfied that the Applicant has much of a relationship with any of his siblings except his sister Lisa. Lisa gave a statement in these proceedings and she is clearly close to her brother. I am satisfied that he is effectively estranged from his sister Debbie, his brother Lee, his mother and his brother Jason.
He appears to have no contact with his first partner but he does have contact with the children of his first relationship.
Kellie, mother of his daughter Breanna is clearly romantically attached to the Applicant and keen to pursue a relationship with him if he is released into the community. He is also the father of Breanna, an important connection which I will discuss later in these reasons.
I have had regard to the following matters:
(a)The applicant arrived in Australia as a very young child and has resided here for 55 years;
(b)I have only had regard to his adult offending which began many years after his arrival in Australia;
(c)There was never really any time when the Applicant was contributing positively to the Australian community. In the early 2000s he had some involvement with a rugby league club that his children were involved in and he provided assistance to his children by involving them in sport. However, most of the Applicant’s adult life has been wasted on drugs and anti-social behaviour and he has spent almost half of it serving time in prison or on remand;
(d)The strength of his family links to his four children with Kerin are strong. He is the only parent those children have alive and even though the children are now adults the parental bond is a powerful one.
I accept as accurate the following submission:
Throughout his formative years in Australia, the Applicant experienced domestic violence at the hands of his father and institutional child sexual abuse in circumstances where the state had a duty to protect him. These experiences have had a significant impact on his development and mental health and contributed to his drug addiction and offending.
When these matters are taken into account this consideration weighs very strongly in favour of revoking the visa cancellation.
Best interests of minor children in Australia
I must determine whether revocation of the cancellation is or is not in the best interests of a minor child affected by the decision. I have identified three minor children affected by the decision – the Applicant’s daughter Breanna and his two grandchildren Layla and Brodie.
Breanna
Under the Direction, in considering the best interests of the Applicant’s children, specific factors must be considered if they are relevant. My consideration of the relevant factors is as follows:
Nature and duration of relationship
The relationship between the Applicant and Breanna is parental. It is however a slight one. The Applicant was unaware that he had a child with Kellie and only discovered that fact in February this year. Breanna has only recently been told that the applicant is her father. Breanna is now almost 6 years old and she has met the Applicant face to face on only two occasions. The relationship is characterised by a very long period of absence and limited meaningful contact. There has been more telephone contact this year.
Positive parental role in the future
It is very difficult to judge whether the Applicant will play a positive parental role in Breanna’s future. To date he has played no role. If the Applicant is released into the community he has indicated that he will go and live with Kellie and Breanna. If the Applicant resumes using drugs that would be a disaster for Breanna. She has to this point been raised by her Aunt for the first three years of her life, and then by her mother once her mother rid herself of her drug addiction. The introduction into Breanna’s life of a parental figure who at some point may relapse into regular drug user would be harmful to her long term interests. I am not satisfied that the Applicant would necessarily play a positive parental role in Breanna’s life in the future.
Impact of prior conduct and likely future conduct
Apart from the fact that it has led to the Applicant being entirely absent from Breanna’s life, his prior conduct has not had a direct negative impact on Breanna.
The Applicant’s drug use could have a negative impact on Breanna in the future particularly if he lives with her and her mother.
The effect of separation
Breanna and the Applicant have to date always been separated. If the Applicant were removed to another country they could keep in touch, as they do now, using phone and video calls to connect on a daily basis. Breanna’s mother has given evidence that Breanna would be heartbroken if the Applicant was removed as Breanna has only just discovered who her father is. I accept that in most cases, people want to know who their father is and have a relationship with him. But in circumstances where a child has only met a person twice and has grown and developed with their father entirely absent, the emotional impact of the removal of the applicant is towards the very lowest end of the scale for removal of a parent.
Others who fulfil a parental role
Kellie and her aunt are available to fulfil a parental role.
Views of the children
Breanna’s mother reports that Breanna would like to have the Applicant come and live with them. I do not give those views much weight given her young age and limited understanding of the kind of behaviour that the applicant has previously engaged in.
Risk of exposure to family violence or other neglect
The Applicant’s historical inability to get on top of his drug use means that there is always a risk that Breanna will be exposed to neglect, particularly if Kellie is tempted to resume drug use as a consequence of resuming her association with the Applicant.
The Applicant has shown that he is capable of committing violence in the past and his self-control has not improved over the years. There is some risk that violence may occur in the domestic setting even though to date the violence which I am satisfied the Applicant engaged in occurred out in the community.
Experience of trauma
I am not satisfied that the evidence establishes that Breanna has suffered any trauma as a result of the applicant’s conduct.
I accept as accurate the submission of the applicant that Kellie and Breanna will not leave Australia with the Applicant if he is removed because of her daughter’s connection to family, community and country. Consequently Breanna will be permanently denied the opportunity to have a meaningful relationship with her father.
However, in relation to Breanna, I am not satisfied that the Applicant remaining in Australia is in her best interests. The potential for the Applicant to disrupt the current settled care arrangements and introduce drug use into her environment which at present is drug free is considerable. While it is a very serious step to separate a child from their biological father permanently, in the present case I do think that it is in Breana’s best interests for the applicant’s visa to be cancelled. If the Applicant is released into the community Breanna’s mother plans to make the Applicant a permanent part of Breanna’s life and potentially marry the applicant. This is fraught with risk.
This does not mean that the consideration weighs against the Applicant, but at least insofar as Breanna is concerned, it does not weigh in his favour.
The applicant’s Grandchildren
In relation to the Applicant’s grandchildren, I note that there is very little evidence about the relationship and what the effect would be. Applying the relevant considerations as best I can, I note that the relationship is a non-parental one. The Applicant has had little direct contact with his grandchildren due to extended periods of incarceration. There is little to suggest that separation would significantly impact on the grandchildren. The children are in the care of their parents. If the Applicant were in his grandchildren’s lives there is a risk of exposure to drugs and violence if he returns to drug use
I am not satisfied that it would be in the Applicant’s grandchildren’s best interests if a decision to revoke the cancellation were made.
This consideration does not weigh in favour of the Applicant.
Expectations of the Australian Community
As the Direction makes clear, the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, the Australian community, as a norm, expects the Government not to allow such a non-citizen to remain in Australia. Visa cancellation may be appropriate simply because the nature of the offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. The Australian community expects that the Australian Government should cancel a person’s visa if serious character concerns are raised through the commission of serious crimes of a violent nature against children.
This expectation applies regardless of whether the non-citizen poses a measurable risk of causing harm to the Australian community.
This consideration weighs heavily very against revoking the cancellation of the Applicant’s visa. The Applicant has over decades repeatedly breached Australian laws. The nature of the applicant’s offending, involving as it does violent crimes and crimes that pose a danger to life and limb are of such seriousness that it is appropriate to proceed on the basis that the Australian community would not expect a person who has done what the Applicant has done to continue to hold a visa.
I do not accept the submission that the expectations of the Australian community that non-citizens obey Australian laws and will not be allowed to remain in Australia if they don’t should be given less weight because of the time the applicant has lived in Australia and the role that his experience of childhood physical and institutional sexual abuse in Australia has played in his drug use and subsequent offending. Those factors are important matters to be considered in other contexts, but not a reason for giving a primary consideration less weight.
OTHER CONSIDERATIONS
Legal consequences of the decision
Pursuant to Direction 110 I need to be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section. Accordingly, if I do not revoke his visa cancellation he will be held in immigration detention until he can be removed from Australia.
There is doubt about whether the applicant is a Canadian citizen or a citizen of the UK (or perhaps even the USA). It may take some time to sort out that question. In the meantime the applicant will be held in immigration detention. I accept this often has adverse mental health consequences for a person.
I am satisfied that if the Applicant’s citizenship cannot be resolved he will not be held in immigration detention indefinitely. Consistent with the High Court authority in NZYQ v Minister for Immigration Citizenship and Multicultural Affairs [2023] HCA 37, the Applicant will be released into the community if his citizenship cannot be determined. This may however mean that the Applicant is held in immigration detention for a significant period of time.
If the Applicant’s citizenship is determined, it is likely that he will be found to be a citizen of either Canada, the UK or potentially the USA (as a result of his father’s citizenship). If he is determined to be a citizen of any of those three countries he will be removed there.
None of these consequences are desirable from the Applicant’s point of view. This consideration weighs in favour of revoking the visa cancellation.
Extent of Impediments if Removed
I am also obliged to consider the extent of any impediments that the non-citizen may face if removed from Australia to his home country, in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
As the Applicant is a citizen of either the US, the UK or Canada, this consideration needs to be assessed by reference to the impediments the Applicant will face if removed to one of those countries. All are developed, English speaking countries. They are sufficiently similar that the assessment does not need to be made in relation to each, but I am proceeding on the basis that it is likely that the level of social support available to the Applicant would be higher if he is deported to the UK or Canada rather than the US.
There are no substantial language or cultural barriers to the applicant establishing a basic standard of living in any of the identified countries. They speak the same language as Australia and are culturally very similar. I am satisfied that there will not be cultural or language barriers to the applicant establishing and maintaining basic living standards.
The Applicant is of working age but has poor work experience and is carrying physical and mental injuries which prevent him from working.
I do accept that, given his long criminal record, and other factors work may be difficult to come by.
If the Applicant struggled to find work due to his criminal record, a return to drugs, or his mental health deteriorating are very real possibilities. If these eventuate, he will struggle to maintain basic living standards.
Dr Coffey has, diagnosed the applicant with significant underlying mental disorders including PTSD. These will add to his difficulties.
This consideration weighs strongly in favour of revocation.
Impact on Australian business interests
I have no evidence about the impact on Australian business interests. Accordingly, I give these considerations neutral weight.
OTHER CONSIDERATIONS
Impact on children who are aboriginal
The Applicant’s representative and a witness on behalf of the Applicant noted that 6 of the Applicant’s 8 children are Aboriginal. The implication in the material seemed to be that removing the Applicant created some kind of echo of the stolen generation. I did not find this a persuasive consideration. The Applicant, who is the person subject to removal is not aboriginal.
No prior warning or consciousness that he was not a citizen
The evidence of the Applicant and his sister Lisa is that they both thought they were Australian citizens. I do not doubt that the prospect of deportation came as a significant shock to the Applicant as a consequence of that belief. However, whether he knew it or not the Applicant is a non-citizen and subject to the risk of deportation. Removal of the applicant to a country where he has never lived and has no connections, where he will be far away from his family is very tough. To suffer that removal in his late 50s with limited prospects of any visits from relatives is especially tough. These kinds of considerations are relevant and weigh heavily in favour of the applicant being allowed to stay.
CONCLUSION
Informed by the principles in paragraph 5.2 of the Direction, I have taken into account the considerations identified in sections 8 and 9 of the Direction which are relevant to this decision. I have also considered the other matters raised by the Applicant.
The following considerations weigh very heavily against a decision to revoke the cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The expectations of the Australian community.
The following considerations weigh in favour of revocation of the cancellation:
(a)The strength, nature and duration of the Applicant’s ties to Australia – this consideration weighs very heavily in favour revocation.
(b)The legal consequences of the decision are significant given that the Applicant will remain in immigration detention pending determination of his country of citizenship and then be removed from Australia, which he regards as his home. He will be permanently excluded from living here again. This weighs in favour of revocation.
(c)There are impediments which the applicant may face in establishing himself and maintaining basic living standards when he is deported. This consideration weighs strongly in favour of revocation of the cancellation.
The family violence consideration and the best interests of minor children consideration are both essentially neutral.
This decision is a difficult one. The applicant does pose a very real risk of causing death or serious injury to a member of the Australian community. Accordingly there is a very strong community interest in having him removed. On the other hand, Australia may afford a higher level of tolerance of criminal conduct by a non-citizen who has lived in the Australian community for most of their life or from a very young age. this recognises that removing a person who has never known any other country and has genuine close ties to his family in Australia is extremely harsh and will be difficult for the Applicant and the members of his family to bear.
While in many cases, given the applicant’s almost exclusive association with Australia would have the result that the visa cancellation is set aside, in this case, I have taken very seriously the inclusion in the Direction the principle that the safety of the Australian Community is the highest priority of the Australian Government. While the matter is finely balanced, there is no doubt that affirming the visa cancellation will protect the Australian community from risks of serious harm.
Consequently I am not satisfied that there is another reason to revoke the visa cancellation.
The decision under review is affirmed.
I certify that the preceding 175 (one hundred and seventy five) paragraphs are a true copy of the reasons for the decision herein of Deputy President O’Donovan.
...................................[SGD]...........................
Associate
Dated: 23 September 2024
Date(s) of hearing:
22, 23 and 27 August 2024
Solicitor Advocate for Applicant:
Mr D Pham, Legal Aid NSW
Solicitor Advocate for Respondent:
Mr J Hutton, Australian Government Solicitor
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