Grima and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) - [2020] AATA 5074

Grima and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 5074 (16 December 2020)
Division:GENERAL DIVISION
File Number: 2020/5972
Re:Joseph Grima
APPLICANT

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

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:16 December 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.................................[sgd].......................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Malta – Class BB Subclass 155 Five Year Resident Return visa – failure to pass good character test – extensive criminal record – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Sentencing Act 1991 (Vic)
CASES
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
BXTW and Minister for Home Affairs [2019] AATA 4446
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185; 272 FCR 454
HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567; 191 CLR 559
Minister for Home Affairs v HSKJ (2018) 266 FCR 591
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
16 December 2020
INTRODUCTION

Mr Joseph Grima (the Applicant) has asked the Tribunal to review the decision by a delegate of the Minister, not to revoke the mandatory cancellation of his Class BB Subclass 155 Five Year Resident Return Visa (the visa).
The hearing was held in Melbourne on 7, 8 and 10 December 2020. Parties appeared by audiovisual link consistent with the Tribunal’s COVID-19 Special Measures Practice Direction. The Applicant was represented by Mr White of counsel, instructed by WLW Lawyers. The Minister was represented by Mr Duldig, a solicitor from Clayton Utz.
For the following reasons the Tribunal affirms the decision under review.
BACKGROUND
The Applicant parents, originally from Malta, arrived in Australia in the 1970’s and had two Australian citizen children. The Applicant is their youngest child and, at the time of his birth in 1980, his parents and siblings were temporarily living in Malta.[1] The Applicant is therefore a Maltese citizen.[2] He first arrived in Australia on 30 November 1982 when almost two years of age.[3] Apart from a three-month holiday to Malta in 1998,[4] he has resided in Australia since.
[1] Applicant’s Statement of Facts, Issues and Contentions (ASFIC) dated 20 November 2020, 2 [3].
[2] Exhibit R1, 68.
[3] Ibid, 84.
[4] Ibid.
The Applicant was educated in Australia until leaving partway through Year 10.[5] He subsequently undertook vocational training before commencing work as a storeman and truck driver. He reports uninterrupted work since 1998.[6]
[5] Ibid, 154.
[6] Ibid, 86.
The evidence discloses that the Applicant has been in four significant relationships:
(a)Relationship 1: A relationship from about 1996, resulting in the birth of his eldest son in 2002,[7] who the Tribunal will refer to as BG. The couple separated when BG was six months old.[8] BG’s mother was murdered by a subsequent partner in 2015;[9]
(b)Relationship 2: An intermittent relationship with a woman the Tribunal will refer to as DC, who gave birth to the Applicant’s youngest child in 2014.[10] The couple separated before the child’s birth and have had a tumultuous relationship since. DC has taken out several intervention orders against the Applicant and the Victorian Department of Health and Human Service (DHHS) has been involved with her;
(c)Relationship 3: A relationship with a woman the Tribunal shall refer to as MP, who was the victim of the Applicant’s violent offending in 2018;[11] and
(d)Relationship 4: A relationship with a woman the Tribunal will refer to as JA, who the Applicant claimed to have ‘entered a committed relationship’ with ‘in or around September 2018’ while imprisoned.[12] He previously said that he intended to marry JA and become stepfather to her son from a previous relationship. In his most recent statement, however, the Applicant stated he was no longer in a romantic relationship with JA.[13]
[7] Ibid, 94.
[8] Ibid 167.
[9] Ibid, 126; 129.
[10] Ibid, 177.
[11] Ibid, 126 [22].
[12] Ibid, 159 [12].
[13] Exhibit A1, 2.d.
The Applicant has two Australian citizen sons. BG is the product of Relationship 1. He is now an adult and has lived with maternal relatives since his mother’s death.[14] The Applicant’s youngest child, who is currently six years of age, is the product of Relationship 2 and has lived with DC since birth.
[14] Exhibit R1, 5 [17].
The Applicant has an extensive criminal record. His Nationally Coordinated Criminal History Check discloses multiple convictions between 2 February 2007 and 26 October 2018.[15] These encompass crimes of violence, possession of weapons, drug and dishonesty offences, breaches of conditional liberty, public nuisance, and driving offences.
[15] Ibid, 36-39.
On 15 January 2019, soon after the Applicant’s latest convictions on 26 October 2018, his visa was mandatorily cancelled on character grounds under s 501(3A) of the Migration Act 1958 (Cth) (the Act).[16] On 25 January 2019 he made representations to have the cancellation decision revoked.[17] Additional representations were made through his former legal representative on 25 October 2019 and 20 December 2019.[18]
[16] Ibid, 204-208.
[17] Ibid, 67-89.
[18] Ibid, 178-182.
On 28 September 2020 the Applicant was notified of the decision not to revoke the cancellation of his visa (non-revocation decision).[19] On 30 September 2020 he asked the Tribunal to review this, stating: ‘I believe that the effect of my deportation upon my minor children was not sufficiently taken into account…’[20]
[19] Ibid, 9-11.
[20] Ibid, 7.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function within 84 days of the Applicant being notified of the non-revocation decision in accordance with s 501G(1). The 84^th day in this matter is 21 December 2020, which is six working days after the conclusion of the hearing.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA of the Act.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if satisfied that the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act. It refers to a range of character matters that the Minister may have regard to in deciding whether to revoke a mandatory visa cancellation. Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six circumstances in which a person is taken to have a substantial criminal record, including if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg. 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that the Tribunal must comply with the Direction.[21]
[21] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.
The principles referred to in the Preamble of the Direction are reproduced below. They constitute a framework within which decision-makers apply the Direction to the specific circumstances of each case:
6.3      Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on              non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that     non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction must be applied:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations to be taken into account include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES THE APPLICANT PASS THE CHARACTER TEST?
By virtue of his convictions on 26 October 2018 and the aggregate sentence exceeding the threshold statutory period of 12 months, the Applicant does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court (FCAFC) in Viane v Minister for Immigration and Border Protection [2018]:[22]
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
[22] 162 ALD 13, per Colvin J at [64].
EVIDENCE
The following materials were tendered into evidence:
(a)Documents lodged by the respondent titled Section 501 ‘G’ Documents, collectively numbering 286 pages;[23]
[23] Exhibit R1.
(b)Documents lodged by the respondent titled Bundle of Summonsed Material, collectively numbering 210 pages;[24]
[24] Exhibit R2.
(c)Applicant’s seven-page statement dated 18 November 2020;[25]
[25] Exhibit A1.
(d)Five-page statement from the Applicant’s father dated 19 November 2020;[26]
[26] Exhibit A2.
(e)Four-page statement from the Applicant’s adult son dated 22 November 2020;[27]
(f)Report of psychologist Mr Bernard Healey dated 18 November 2020;[28]
(g)One-page letter from the Applicant’s sister dated 21 November 2020;[29]
(h)One-page letter dated 20 November 2020 from DC;[30]
(i)One-page letter dated 6 November 2020 to ‘whom it may concern’ from the Assistant Principal of the school attended by the Applicant’s infant child;[31]
(j)Letter to ‘whom it may Concern’ dated 13 November 2020 from the Operations Manager of the Applicant’s most recent employer;[32]
(k)Instructions to psychologist Mr Healey from Clothier Andersen Lawyers dated 25 September 2019;
(l)Instructions to Mr Healey from WLW Lawyers dated 16 November 2020;
(m)Further report of Mr Healey dated 5 December 2020; and
(n)Structured Assessment of Protective Factors for Violence Risk Coding Table dated 5 December 2020.[33]
[27] Exhibit A3.
[28] Exhibit A4.
[29] Exhibit A5.
[30] Exhibit A6.
[31] Exhibit A7.
[32] Exhibit A8.
[33] Exhibit T1.
National Criminal History and sentencing remarks
The Applicant does not dispute the accuracy of his criminal record or the sentencing remarks of the Sunshine Magistrate’s Court dated 26 October 2018 (the 2018 sentencing remarks).[34]
[34] Exhibit R1, 41-59.
Applicant’s evidence
The Applicant adopted his Statutory Declaration dated 9 October 2019, and his more recent statement dated 18 November 2020, as true and correct. His oral evidence can be summarised below.
Addictions and offending
The Applicant agreed that the offences recorded in his criminal history were accurate and contextualised his offending as arising from persistent drug use since the age of 18. He said his drug use ‘varied up and down over the years,’ and included periods when he ‘would binge…when down in hard times.’ Two of these occasions were when he experienced relationship problems with DC in 2007, and following the murder of a former partner in 2015.[35] After being taken through aspects of his offending, the Applicant agreed his criminal history was not isolated to periods of relationship stress or the murder of his former partner.
[35] Ibid, 129.
When asked if he agreed that he had been convicted of multiple counts of actual violence and threats of violence against women, the Applicant claimed his offending was predominantly verbal: ‘Threats of violence and a lot of verbal violence yes, but not until recently have I ever hurt anybody.’ The Applicant agreed a police record referring to him damaging DC’s car in 2013 was accurate except for the reference to him chasing her with a crowbar. The Applicant claimed a ‘a lot of things were said…that didn’t really happen.’ He agreed he was holding a crowbar, had smashed DC’s car window with it, and this offending resulted in his 2013 convictions of Make threat to kill and Tamper with motor vehicle. He also agreed that he was under the influence of drugs, that this offending was serious, and stated he was ‘sorry and ashamed’ of his actions.

The Applicant was asked about a police record referring to an incident with DC in September 2015, during which he was reportedly abusive and threatening while demanding money, which caused DC to call police.[36] The Applicant is reported to have subsequently driven into DC’s driveway at high speed, with attending police managing to avoid his vehicle by using the fence as cover. It was further reported he then confronted police by ‘yelling and screaming’ at them in a threatening manner.[37] The Applicant explained he was drug-affected, did not know the police were there, was ‘nowhere near driving at police,’ and claimed that any offending against police was unintentional.
[36] Exhibit R2, 65.
[37] Ibid.
The Applicant was asked about another police report involving DC in May 2018, where he reportedly hit and made threats against her, causing her to fall and drop their infant child.[38] The Applicant stated that DC’s claims to police were mostly ‘fabricated’ so she could get their child back. He explained the incident resulted from an argument with DC, after which he took their child to his parent’s house. He said that he was not charged as a result of this incident. When asked if his claim that DC lied to police diminished the value of her current supportive letter before the Tribunal, the Applicant responded: ‘not really.’
[38] Ibid, 57.
When asked about a record in evidence referring to him being abusive and violent to his father in 2017, by threatening to kill him and then driving a vehicle towards him because his father was trying to stop him leaving their home in breach of bail conditions,[39] the Applicant agreed the record was ‘pretty accurate.’ While conceding he made threats and ‘pushed past’ his father, he claimed that he did not drive the car towards his parents as alleged, and that the car only ‘leapt forward a foot or two.’ He agreed that he and his father had ‘heated arguments over the years.’ When asked if pushing past his father could be considered violent, the Applicant responded:
Yes, but I’ve never physically hit someone or caused an injury until 2018. When I think of violence, I think more of actually physically hurting someone. I pushed past him…but it’s not as severe as what comes later.
[39] Ibid, 63.
When asked about his most serious offending in 2018, the Applicant agreed that a Preliminary Brief prepared by police was accurate.[40] This report stated that the Applicant punched MP in the face and head, pulled her hair, kicked her in the vagina, struck her on the left thigh with bolt cutters exposing bone, made a noose with which he controlled MP’s movements while he smoked methylamphetamine from a glass pipe, made threats to kill her, ‘hog-tied’ her with rope around her neck to her ankles, and left her bound while he left the property. He also threatened MP in the street with a bottle after noticing she escaped his restraints. The Applicant explained ‘I was in a fit of rage – it was all a bit of a blur…my intention was to hit the cushion not [MP]. I didn’t realise I hit her until she told me and then I let her attend to her wound.’ When asked about his conviction for Intentionally cause injury arising from this incident, the Applicant replied: ‘I thought it was more reckless than intentional.’ When asked if he thought his prolonged attack on MP could have resulted in her death, the Applicant disagreed, stating:
No, because I didn’t intentionally hit her with the bolt cutters…I was never going to cause any harm or kill anybody. It was nowhere near any vital organs…I caused injury…but I haven’t gone out looking for trouble or bashed anybody. That’s the only time I’ve caused physical injury to anybody.
[40] Exhibit R1, 64-66.
When asked about a comment attributed to him in a Department of Justice report dated April 2017, that he would commit some of his offences again,[41] the Applicant agreed this was accurate. When asked if this represented a disregard for the law, the Applicant explained that he was referring to an incident where he felt his life was threatened by a man with a pole who had previously used the same pole to put another person into intensive care. On reflection, he stated: ‘I’d take that back now that I’ve had a chance to reflect on everything…At the time I thought my life was in danger.’
[41] Exhibit R2, 85.
The Applicant agreed the police reports in evidence were a contemporaneous record of what was reported to them during their investigations. Given his evidence about persistent drug use and alcohol misuse, he was asked whether the police records were more accurate than his recollections. He agreed they could be.
In relation to his conditional liberty offending, the Applicant agreed he had previously demonstrated a disregard for Australian laws and orders of the Court but had since ‘learned a big lesson.’ He said that being subjected to a two-year Community Corrections Order (CCO) if released would assist him in remaining law-abiding, because it encompassed judicial monitoring and drug testing. When asked about his past failures to comply with CCO conditions, the Applicant insisted it would be different on this occasion because of the changes he had made since imprisonment in 2018.
Remorse
The Applicant expressed remorse for his offending on several occasions and said he felt a sense of shame, most notably for his violent offending against MP, which he felt ‘sickened by.’ When asked if several of the comments about his offending reflected a lack of insight or an effort to minimise culpability for his crimes, the Applicant disagreed, stating: ‘No I take full responsibility. I’m very remorseful and ashamed.’
Conduct in custodial environments
The Applicant claimed that the availability of drugs in prison and detention ‘is higher than in the community’. Yet he managed to remain abstinent and no incidents of misconduct were recorded against him. He had also engaged in fitness and healthy eating, contributing to his more positive outlook. He stated: ‘I feel really good right now.’ He had nevertheless found it difficult during the COVID-19 pandemic in not being able to see his ‘parents or kids for eight months.’
Rehabilitation
The Applicant referred to the length of his most recent imprisonment, followed by immigration detention, as causing him to become more focussed on his rehabilitation. He now realised the ‘severity of consequences’ confronting him; whereas he previously ‘didn’t take it too seriously.’ His renewed motivation centred on remaining in Australia with his family and being able to assume a more prominent parental role with his children. The Applicant agreed that any rehabilitative progress or abstinence achieved since 2018 had not been tested in the community.
The Applicant recalled stating in a report prepared for the Court that he was ‘abstinent from all illicit substances’ and ‘reported having protective factors in place to assist him remain abstinent from illicit substances and further offending,’[42] only to go on and commit his most serious offences a year later. He agreed that he had tried and failed to remain abstinent in the past, but claimed he was now more determined to do so.
[42] Ibid, 85.
The Applicant claimed to have been substantially rehabilitated through completion of several intensive courses since 2018. He said the process of rehabilitation and self-improvement had continued since being taken into immigration detention. He claimed to have learned ‘cognitive thought processes’ and techniques during his parenting and drug programs, which he now applied when ‘feeling down.’ When asked how these cognitive skills might help him remain abstinent from drugs, the Applicant responded:
It will help a lot. Just to put everything in process to help the process. Yeah it’s hard to explain.
When put to the Applicant that he had been exposed to rehabilitative opportunities and cognitive techniques before his most recent period of imprisonment, he stated:
I possibly had but I wasn’t aware of it, but now I’m more aware of cognitive balancing and mental health and all that sort of stuff. I’ve put more effort into learning the programs – engaging in programs.
The Applicant stated that he had developed a new appreciation for the damage that drugs had done to him and broader society. He was now making a serious attempt to overcome his addictions. He realised that bingeing on drugs in response to relationship stressors or the death of a former partner, was no excuse for committing crimes.
The Applicant referred to completing an ‘Inside Parenting Program.’ This had provided him with insights into the negative effects of drugs, how to better communicate with children and ‘how to raise good kids.’ He also completed a six-hour ‘Ice Effects Program’ and ‘Managing Cravings Program’ in late 2018, which taught him about the adverse effects of ice and the nature of addiction. He referred to addiction as being: ‘for life… it is not something that goes away,’ and would always require him to ‘be vigilant.’ When asked what techniques he learned to remain abstinent, the Applicant said he could never afford to let his guard down. He said: ‘distraction is a good thing’ and he was now ‘really determined not to fall into the same pattern of behaviour.’ The Applicant stated:
I’d like to keep learning and educate myself on how to remain drug free – to do the right thing this time around for my family and community.
The Applicant said he ‘wanted to keep gaining tools and experiences’ into the future to assist his abstinence. He thought the psychologist, Mr Healey, may be of future assistance. He was assessed by Mr Healey twice. On the first occasion in 2019 Mr Healey had personally seen him in prison. Their November 2020 consultation was over the telephone. He recalled Mr Healey administering several tests to do with ‘numbers, maths, sums and different words,’ including an ‘IQ test’ and questions about his memory, which were a ‘couple of hundred true or false questions.’ The Applicant said he did not fill in any forms because Mr Healey asked him questions and entered the responses himself.
Interests of children
The Applicant claimed his removal from Australia would have a substantial adverse impact on his children. In terms of BG, who is now 18, he recalled separating from the child’s mother soon after BG’s birth in 2002. He said cooperative arrangements were in place for him to access their child. Because he only lived a few minutes away, this enabled him to frequently visit. The Applicant claimed that for approximately a year after separation, he ‘paid rent, put food into the cupboard,’ and helped put BG to sleep. The Applicant said now that he was ‘fit and healthy,’ he was better placed to play a more meaningful parental role, like guiding BG’s aspiration for an apprenticeship.
In terms of his youngest son with DC, who is now six years of age, the Applicant agreed he suffered from serious drug addiction during the first four years of his son’s life. He played a limited paternal role during this time. More recently he had spent a total of 21 months imprisoned and about 11 months in detention, during which his contact with the child was limited. He agreed that If released, DC would retain primary parental responsibility for the child, and he would see the child on weekends. When asked if he would document this arrangement formally, the Applicant said he did not think it was necessary ‘at the moment.’ The Applicant disagreed that past intervention orders taken out by DC were to protect their child, including after an incident where he took the child without DC’s permission to his parents’ home. He said it was only DC who feared for her safety and not their son, claiming he was a good father and ‘the kids don’t fear me a bit.’ The Applicant explained that he removed their child from DC to provide the child with a drug-free environment at his parents’ home. When asked about the DHHS involvement referred to in the evidence, the Applicant said: ‘that was after the incident with DC,’ but he understood DHHS had since withdrawn their involvement. When asked if he still thought it was unsafe for his son to live with DC, the Applicant responded ‘No,’ stating that DC had ‘since addressed’ her drug issues. When asked why he believed it was possible to have a stable co-parenting arrangement with DC in the future given the tumultuous nature of their past relationship, the Applicant said he planned to ‘stay sober and in a good relationship’ with DC.
In relation to his nieces and nephews, the Applicant claimed to have had ‘lots of interaction’ with them in the past, including when he lived at his sister’s house ‘for a while.’ When asked to elaborate on these relationships, he claimed to be closest ‘mainly with the oldest three,’ particularly his brother’s eldest daughter with whom he had a ‘really good bond.’ He said he had previously paid for some tutoring for this niece in 2017.
Future aspirations
The Applicant said if released he would live at his parent’s house, which is on rural acreage in country Victoria. In terms of work, the Applicant said he intended to return to FTW Group as a semi-trailer driver in and around Melbourne, predominantly ‘delivering tower cranes to job sites.’ When asked about any interstate driving, the Applicant said the two-year CCO he needed to complete would prohibit him travelling interstate. When asked if FTW Group were aware of his entire drug and criminal history, particularly driving offences the Applicant said they were not. They were also unaware his licences currently remain suspended and would continue to be for a period if released. He said the licence suspension arose from his past offending when driving while disqualified, while ‘under the influence,’ and because he had not complied with an interlock order.
Impediments to repatriation
The Applicant said he had been to Malta with his parents when he was seventeen years of age for about three months but had no continuing relationship with family relatives there.[43] He understands the Maltese language because that is the only language his mother speaks, but he does not speak it himself. He is aware that English is an official language of Malta and agreed he could communicate in Malta. When asked about the basis of his belief that he would not have an entitlement to public benefits if removed,[44] the Applicant said this was what another detainee and his father told him. He agreed his father had not lived in Malta for 40 years and did not elaborate on any expertise the unnamed detainee had about the social security system in Malta.
[43] Exhibit R1, 84.
[44] Exhibit A1, 7 [35].
Evidence of Applicant’s father
The witness adopted his two statements in evidence as true and correct.[45] He agreed that there had been arguments with the Applicant in the past, and that the Applicant had been violent against him. He agreed that the Applicant’s undertaking to remain abstinent from drugs had not been tested in the community since imprisonment in 2018, and he would remain under court supervision for quite some time if released.
[45] Exhibit R1, 166; Exhibit A2.
The witness said he was finding it more difficult to keep up with the work on his farm, receiving some support from friends who were as old as he was. His two elder children lived approximately 45 minutes and 90 minutes away from him and visited ‘every couple of weeks.’ The task he had most difficulty with was cutting the grass on his eight-acre property and thought the Applicant could assist if released. The witness said he would not sell the farm and buy something more manageable, because he and his wife could not afford it.
The witness said if the Applicant was removed to Malta, he would suffer because of difficulties finding a job. He said Malta is a small island nation and because the Applicant is a driver, there may not be a lot of trucks to drive and he was unfamiliar with ‘the routes.’ Moreover, the Applicant had no connections there to help him find a job.
Evidence of BG
BG adopted his statement as true and correct. He is currently in the process of completing high school before undertaking a Victorian Certificate of Applied Learning, which is a pathway to technical and further education. He hopes to undertake trade training at a college in 2021 in conjunction with completing an apprenticeship. BG said he planned to live with the Applicant at his paternal grandparent’s farm, subject to further investigation of schooling and apprenticeship options. He also needed to get his P Plates to enable him to drive to and from a nearby college and apprenticeship work locations. BG thought he may be able to secure an apprenticeship from one his ‘uncle’s friend’ who lives nearby. If the Applicant could not remain in Australia, BG said he would pursue college and an apprenticeship in his current location and move back in with his maternal grandparents.
BG said if the Applicant was deported to Malta it would ‘really hurt’ because the Applicant is his only remaining parent, after his mother passed away in 2015. This would exact a ‘mental toll’ on him because he did not think there would be much of an opportunity to see each other. BG said he had travelled to Malta with the Applicant’s parents in about 2017 but would not live there because of better opportunities in Australia.[46]
[46] Exhibit A3, 3 [22].
From what he had observed during their visits and telephone calls, BG thought the Applicant had ‘really changed himself for the better…and tried to put his best foot forward.’
PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Tribunal consideration: The nature and seriousness of the conduct
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)   Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.

The 2018 sentencing remarks record the Applicant’s acknowledgement of the seriousness of his offending against MP, who was protected at the time by a Final Family Violence Intervention Order (FFVIO).[47] Her Honour stated these were ‘serious charges before the court.’[48] The Statement of Alleged Facts prepared by Victoria Police, which the Applicant does not dispute, contains the following description of the violence committed against MP over several hours:[49]
[47] Exhibit R1, 43 [28]; 58 [4].
[48] Ibid, 52 [10]-[11].
[49] Ibid, 64-65.
(a)MP recognised the Applicant’s aggressive demeanour and went to leave;
(b)The Applicant grabbed MP in a bear hug from behind, threw her on a bed, pulled her hair, and punched her in the face, causing bleeding from the nose and lip;
(c)MP attempted to flee the house, but was again intercepted by the Applicant who kicked her in the vagina causing significant pain;
(d)The Applicant grabbed MP by the hair and using a pair of bolt cutters, struck her on the left upper thigh causing a long laceration exposing bone. He allowed MP to bandage her leg and change her pants;
(e)The Applicant made a noose from rope and ordered MP to place it around her neck. He retained the end of the rope to prevent MP moving too far and smoked methylamphetamine from a glass pipe. The Applicant lit and re-lit the pipe from the kitchen stove, using the noose to lead MP between rooms;
(f)Over several hours the Applicant kept the noose around MP’s neck and continued to punch her in the face while abusing her and making threats such as:
(i)‘You are going to die today;’
(ii)‘I am going to mince your body;’
(iii)‘Once a week your limb will go off;’ and
(iv)‘Oh yeah it’s happening today.’
(g)The Applicant subsequently used more rope to ‘hog-tie’ MP by forcing her to lie on her stomach and linked the noose around her neck to rope around her ankles. He left MP in that position before leaving the property at about 6:00 pm;
(h)MP managed to free one hand, used nearby pliers cut the restraints, and escaped onto the street to seek help. The Applicant, who was further down the street, observed MP escaping and intercepted her at a neighbouring home. He approached MP, threatened to hit her over the head with a bottle, and grabbed her to lead her away. MP, extremely weakened by this stage and unable to stand, struggled and screamed for help. A bystander intervened and a neighbour called Triple-Zero for police assistance. The Applicant fled on a bicycle.
Mr White submitted that the 14-month sentence and two-year CCO for Intentionally cause injury, was ‘substantially below the maximum penalty [10 years] and equivalent to the median sentence for that offence.’[50] He further submitted that the Applicant’s offending was ‘not in the most extreme or serious category.’[51] Mr White submitted in closing that the Tribunal should not conclude the Applicant’s offending ‘was of sufficient seriousness that any reoccurrence is determinative.’
[50] ASFIC, 9 [35]
[51] Ibid, 8 [34].
Mr Duldig submitted there was no question the Applicant’s offending is very serious, comprising ‘in excess of 30 crimes since 2007,’ with the most serious and sustained offences being his most recent in 2018. Mr Duldig accepted the Applicant’s sentences were well below the available maximum but said this did not diminish the seriousness of his offending, nor that imprisonment is the last resort in the court’s sentencing hierarchy, regardless of sentence gradations. He submitted that the Applicant was violent or had threatened violence against several women, his father, and had offended in several categories.
Tribunal findings: The nature and seriousness of the conduct
The Applicant’s criminal history discloses several categories of offending as follows:
(a)Offences involving violence, the threat of violence, possession of weapons, harassment: Make threat to kill – Reckless as to fear (2013); Make threat to kill (2018); Reckless conduct endangering life (2017); Reckless conduct endangering serious injury (2017); Intentionally cause injury (2018); Possess unregistered general category handgun (2007); Possess prohibited weapon without exemption or approval (2007); Possess controlled weapon without excuse (2018); Unlawful assault (2007 – 2 charges); False imprisonment (common law) (2018); Contravene family violence intervention order intending to cause harm or fear (2018); Resist emergency worker on duty (2018 – 3 charges); Use a carriage service to harass (2017);
(b)Conditional liberty offences: Breach intervention order (February 2007; August 2007); Contravene Community Correction Order (2017; 2018); Commit indictable offence whilst on bail (February 2018; October 2018);
(c)Drug offences: Possess cannabis (2007 – 2 charges); Possess amphetamine (2007 – 2 charges; 2018); Possess GHB[52] (2018); Possess drug of dependence (not named) (2018).
(d)Dishonesty offences: Burglary (2017); Theft from motor vehicle (2007); Deal property suspected proceed of crime (2007); Theft (2007 – 4 charges; 2017); Without authorisation or excuse enter private place (2007); Go equipped to steal / cheat (2017); and
(e)Property damage, public nuisance, vehicle/driving offences: Criminal damage (Intent damage or destroy) (2007; 2017); Drive whilst disqualified (2018), Drive while authorisation suspended (2007); Exceed signed speed limit (2007); Tamper with motor vehicle (2013); Fail to stop vehicle after an accident (2017); Fail to render assistance after an accident (2017); Drunk in a public place (2018).
[52] Gamma-hydroxybutyrate; a depressant that is used illegally as an intoxicant.
The following aspects of cl 13.1.1(1) of the Direction are relevant to the specific circumstances of the Applicant’s case:
(a)13.1.1(1)(a): The Applicant has multiple convictions for offences involving violence, the threat of violence, or possession of weapons, which are viewed very seriously;
(b)13.1.1(1)(b): The Applicant was convicted of family violence-related offences on 14 August 2007. He was also convicted of threatening to kill DC, who he said had taken out several intervention orders out against him.[53] The violence he committed against MP in 2018 was serious, prolonged and included threats to kill her. His conduct was aggravated by the existence of a FFVIO to protect MP. The evidence discloses that the Applicant has committed actual violence and threatened violence against several women, which is viewed very seriously, regardless of the sentence imposed;
(c)13.1.1(1)(c): The Applicant’s convictions on 26 October 2018 on three counts of ‘Resist emergency worker on duty’ are offences against officials in the performance of their duties, which are regarded as serious;
(d)13.1.1(1)(d): The Tribunal accepts the Applicant’s submission that the sentences of imprisonment awarded to him in April 2017 and October 2018 are well below the maximum available for such crimes.[54] Nevertheless, imprisonment is the most severe sentencing order available in Victoria,[55] and the sentencing magistrate made clear these were ‘such serious charges’ before the Court;
(e)13.1.1(1)(e): The Applicant has offended frequently since 2007 and has a record of repeat offending in several categories. The Tribunal acknowledges no convictions are recorded during two periods between March 2008 and November 2013, and between November 2013 and April 2017. Notwithstanding the absence of convictions during the latter period, however, the Applicant’s evidence is that between 2015 until his offending in 2018 his drug use was very heavy. The Applicant subsequently reoffended, with his most serious offences occurring in 2017-2018. The seriousness of his offending has undoubtedly increased over time; and
(f)13.1.1(1)(f): The compounding effect of the Applicant’s offending has imposed significant costs and consequences on his victims and the broader community. He has been a burden on law enforcement efforts in Australia. The cumulative effect of his offences has caused the Australian community serious harm.
[53] Exhibit R1, 144.
[54] Ibid, 127-128.
[55] See for example: Sentencing Advisory Council, ‘Imprisonment,” <
For the reasons outlined above the Applicant’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk the Applicant poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”
Determining what constitutes an unacceptable risk was elaborated upon in Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 at [111]:[56]
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
[56] Cited with approval by Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]).
The High Court of Australia has held that past actions can be legitimate predictors of future behaviour.[57] Katzmann J, in Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358, similarly reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
[57] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579 (“Guo”).
Sentencing remarks
The sentencing magistrate expressed concern about the Applicant’s compliance with past conditional liberty arrangements and his prospects of future compliance:
I'm gravely concerned that if I entertain another community corrections order today based on the fact the last time he had one he was deemed unsuitable, the court nevertheless gave it, he ultimately breached it...[58]
…
Mr Grima what that means is that I will give you an opportunity to engage on a community corrections' order…I do so, Mr Grima, expressing today my grave concerns about whether in fact you have the capacity to successfully complete it. It would be very unfortunate, Mr Grima, when I announce the sentence for you not to make your way successfully through the community corrections' order which will of course occur at some stage in the future because you will leave the court with no option but to sentence you for a very significant further time.[59]
…
Mr Grima, the way that I am sentencing you is to attend to an aggregate sentence of imprisonment in relation to these charges with a substantive community corrections' order to follow. This is a matter I have given some significant consideration to since I first gave you a sentencing indication particularly since I've discovered that corrections do not consider you can successfully complete a community corrections' order…[60]
…
Mr Grima, you really need to put your best foot forward on this order and if you do not it will become apparent to me very quickly that you are not digging in and getting it done. When you appear before me on 15 November next year which will be in the starting period of your CCO, I will get a report from corrections' that will tell me how you are going. Now if you do not engage with them, Mr Grima, you do not attend, you do not go to supervision, you do not go to treatment, you do not do your hours, they will contravene you…and you will be back before the court and you will not leave the court with another option but to sentence you to a further lengthy term of imprisonment.[61]
[58] Ibid, 46 [25]-[31].
[59] Ibid, 50 [1]-[12].
[60] Ibid, 53 [14]-[21].
[61] Ibid, 56 [11]-[24].
The Tribunal has considered two reports, prepared by Victoria’s Department of Justice at the Court’s request. These assessed the Applicant’s past compliance with conditional liberty provisions, risk of reoffending, and suitability for a further CCO, encompassing consideration of matters outlined in s 8B of the Sentencing Act 1991 (Vic). The first report is a CCO Assessment Outcome Report dated 12 April 2017, which stated:[62]
Community Correctional Services has assessed the accused as being medium risk of re-offending according to the Level of Service Risk Assessment Tool.
(Emphasis added)
[62] Exhibit R2, 84-86.
The report further stated that the Applicant said he was ‘sorry’ about ‘some of the offences,’ but would commit others again if he had to, ‘referring to the violence perpetrated against victims in the JURLIJ brief.’[63]
[63] Ibid, 85.
A second report dated 14 May 2018 stated that during the assessment, the Applicant appeared to be ‘either drug or alcohol affected, as he smelt of alcohol when he spoke…Mr Grima was slurring in his answer.’ [64] The report further noted that:
…when being assessed in April 2017, Mr Grima claimed to have not been using drug, However, upon being released on the Order in August, Mr Grima later relapsed to drug use. Mr Grima was asked why would he not seeking help to adderss his drug using issue. mr Grima attributed to Corerctions Vicvtoria not referring him. Also, when asked about current CCO with Unpaid Community Work, Mr Grima stated… that: I have 18 months to do it!”…This Service had concerns and reservations regarding Mr Grima’s honesty and motivation to comply with the Order. As it appeared that Mr Grima is only paying lip service to the Court Order. Mr Grima is not deemed as a suitable candidate at this time…[65]
(Errors in original)
[64] Ibid, 170-172.
[65] Exhibit R1, 85.
A Supervisor and Advanced Case Manager from Community Correctional Services referred to the Applicant’s history of CCO compliance in the following terms:[66]
[66] Exhibit R2, 173-175.
On 14 August 2007 Mr Grima was convicted and placed on to an eight-month Community Corrections Order (CCO) for family violence related offending….This order was varied on 20 March 2008 to allow additional time for Mr Grima to complete an offence specific program.
On 27 November 2013, Mr Grima was sentenced to an 18-month CCO for family violence related offending…Mr Grima contravened this order by way of non-compliance and further offending. The order was cancelled and he was sentenced to four months imprisonment.
In relation to the further offending, Mr Grima received the current order before the court on a contravention.
Mr Grima was sentenced to an 18-month Community Correction Order on 12 April 2017 before the Sunshine Magistrates' Court. At the time of the assessment, Mr Grima reported abstinence from all illicit drugs since April 2016. Despite this, Mr Grima has an extensive criminal history consisting of drug and violent related offending.
Mr Grima reported that at the time of being incarcerated on 26 April 2016, he was continuing to smoke methylamphetamine and cannabis on a regular basis.
...
At the commencement of this order, Mr Grima attended appointments as directed and engaged appropriately with this service. It was of concern that he minimised the seriousness of his offending and externalised any responsibility on to the victim or other external factors. When challenged on his offending, Mr Grima failed to identify any concerns with his behaviour.
On 06 September 2017, Mr Grima was in attendance at Melton Police Station, whereby he was charged and bailed in relation to pre-dating driving offences. Upon attending this service on 03 October 2017, Mr Grima disclosed that he had been charged again in relation to current driving related charges. When Mr Grima is challenged in relation to his continued unlicensed driving he minimises the seriousness of the matter and states that it is "bullshit" that he does not have a license. Upon his case manager exploring potential consequences for his continued behaviour, including imprisonment, Mr Grima stated that he would not mind "an all-expenses paid holiday by the Queen".
On 09 January 2018, this service discussed Mr.Grima's gradual decline in compliance with supervision appointments and unpaid community work. Mr Grima denied that there were any contributing factors other than simply forgetting or being at work. This service explored his current drug use, whereby he stated that he was not going to lie and that he had had a couple of "slip ups" with methylamphetamine use since his release from custody. Mr Grima stated that he does not feel his drug use is problematic and did not require any intervention.
On 08 February 2018, Mr Grima was in attendance at Melton Police Station and remanded overnight. Mr Grima appeared before Sunshine Magistrates' Court on 09 February 2018 and convicted as per below:
…
As a result of the above conviction and a clear escalation in risk relating to Mr Grima's drug use, it was determined that contravention proceedings would be initiated. It is further noted that Mr Grima has a pending court matter, with the below alleged offences having occurred within the operational period of the order:
…
Treatment and Rehabilitation
Offending Behaviour Program
Mr Grima was referred to the Rehabilitation and Reintegration Branch of Corrections Victoria for the purpose of a comprehensive assessment to determine his suitability to engage in programs that aim to reduce his risk of reoffending. Mr Grima was placed on the waiting list for an assessment appointment time however, due to his alleged further offending that resulted in contravention proceedings being initiated, Mr Grima was unable to be offered an assessment appointment.
Non-Compliance Allegations
Mr Grima accrued a total of 13 unacceptable absences across all order conditions. Mr Grima cited employment as a contributing factor as well as forgetting about some appointments.
Community Work
Mr Grima was mandated to complete 150 hours of unpaid community work. Mr Grima was initially contracted to a work team that was scheduled to commence on 15 August 2017. Since being contracted, Mr Grima has partially attended on three occasions, attended for a full day on eight occasions and accrued 10 unacceptable absences.
It is noted that Mr Grima has identified employment as a contributing factor to his non-compliance however, this service has attempted to assist by contracting him to weekend sites and reducing his attendance frequency from weekly to fortnightly.
Ordered Hours:150:00 hours
Completed Hours: 61:00 hours
Remaining Hours 89:00 hours:
Mr Grima is a 37-year-old male offender assessed as a high-risk of general reoffending when utilising the Level of Service/Risk, Need, Responsivity (LS/RNR) risk assessment tool.
It is positive to note that Mr Grima commenced this order in a satisfactory manner however, his level of compliance started to deteriorate over time resulting in a total of 13 unacceptable absences. As mentioned in the body of the report, Mr Grima disclosed drug use although claimed that it was not problematic. Shortly after this discussion, Mr Grima was charged and remanded overnight in relation to drug related offending and committing an indictable offence whilst on bail. Furthermore, there are pending matters at court that if proven, will also contravene this order.
It is of concern that Mr Grima is demonstrating a disregard for this opportunity to serve his sentence in the community and for the law. There is a clear escalation of risk in relation to his drug use that has ultimately resulted in further charges and contravention of this order.
In light of the above information, it is respectfully recommended that this order be varied to have a drug treatment condition imposed. This would allow this service to appropriately identify and mitigate any potential risk that Mr Grima poses to himself or the community. Furthermore, in order for Mr Grima to participate in an offence specific program, he would require a minimum of 12 months remaining on the order to allow for assessment and placement into a program. Therefore it is respectfully recommended that the order dates are varied for an additional 12 months to ensure he can fulfil all order conditions.
(Errors in original – emphasis added)
Contributory factors

The Applicant stated in his 2019 Personal Circumstances Form (PCF) that his offending in recent years ‘was triggered’ by the upsetting murder of BG’s mother in 2015. He claimed this caused him to relapse into drug abuse and enter a ‘downward spiral’ that affected his ‘emotional stability.’[67] The Applicant described his drug use in one part of his evidence as ‘intermittent and…escalating.’[68] Elsewhere he claimed it was ‘continuous drug use’ arising from the influence of negative peers; and as his drug taking ‘increased over the years,’ so did his offending.’[69] The Applicant referred to a ‘toxic’ relationship with MP and that they ‘enabled each other’s drug use.’[70] The evidence discloses, however, that drug use appears to have characterised most of the Applicant’s past romantic relationships. The psychologist, Mr Healey, referred to the Applicant’s relationship with BG’s mother as ‘rather unstable as both were using illicit drugs.’[71] Mr Healey also stated in his report that DC was addicted to the ‘potent stimulant ice;’[72] and that MP was ‘addicted to ice…GHB and became regularly involved in theft.’[73] The Applicant’s evidence is that during the relationship with MP he received significant funds from a property settlement and tax return, which escalated their drug use ‘quite significantly,’ with ‘no inhibitions to their drug taking.’[74]
[67] Exhibit R1, 85; 126.
[68] Ibid, 160 [16].
[69] Ibid, 85; 126.
[70] ASFIC, 5 [17].
[71] Ibid, 149.
[72] Ibid, 150.
[73] Ibid,150.
[74] Ibid, 126.
It was submitted on the Applicant’s behalf that ‘the mixture of amphetamines and alcohol caused him to become aggressive and…in the absence of these, he is not at all a violent or aggressive person.’[75] It was further submitted that his ‘drug dependency was not properly acknowledged or addressed until his incarceration for the offence giving rise to the cancellation of his visa.’[76] It is claimed that his most recent incarceration has resulted in greater ‘insight and awareness of his previous triggers or stressors that precipitated his downward spiral of drug and alcohol use and subsequent offending.’[77]
[75] Exhibit R1, 120.
[76] ASFIC, 14 [57(b)].
[77] Exhibit R1, 120.
Past opportunities for reform
The Applicant first answered criminal charges in 2007. The courts initially relied on non-custodial sentences, such as fines, Community Based Orders (CBO), Community Corrections Orders (CCO), and unpaid community work. Clinical psychologist, Mr Healey, stated the Applicant completed a Men’s Behavioural Change Program in 2007, and also a Court Integrated Services Program (CISP)[78] over an eight-month period prior to release on 1 August 2017.[79] Mr Healey said that upon commencing a CCO after his release, the Applicant ‘attended all appointments, completed work conditions and was attending upon a drug counsellor.’[80] As will be discussed later that statement is erroneous. Despite rehabilitative opportunities, the Applicant committed his most serious offences in 2018, at the age of 37. The sentencing magistrate noted the protective factors the Applicant invoked at the time were:
…essentially the things he relied upon when he received the last order and they weren’t hugely protective in the sense…he breached and he committed these further very serious offences. So Corrections, in my view, appropriately note when the court imposed the previous order he was deemed unsuitable. Low and behold consistent with Corrections' very plain concerns Mr Grima didn't successfully complete the order. That I don't think bode well with the sort of order I'd have to considering imposing…[81]
(Errors in original)
[78] See, for example, Magistrates’ Court of Victoria website <
[79] Exhibit R1, 144-145; Exhibit R2, 85.
[80] Ibid, 153.
[81] Ibid, 44 [23]-[31]; 45 [1]-[6].
Remorse
The Applicant expressed remorse for his past conduct in both his documentary and oral evidence. The 2018 sentencing remarks similarly note his remorse, including by entering a plea of guilty to the charges he was facing.
Psychologist’s evidence
The Tribunal has considered the reports of consultant psychologist Mr Healey dated 14 October 2019 (2019 Report) and 23 October 2020 (2020 Report). Both were commissioned by the Applicant’s legal representatives. In relation to the 2019 Report, Mr Healy was asked in an email dated 23 September 2019 from Clothier Andersen Lawyers to assess the Applicant’s ‘risk of re-offense.’[82] The 2020 Report was commissioned by WLW Migration Lawyers, who asked Mr Healey to ‘prepare an updated opinion about [the Applicant’s] risk of reoffending on a scale of low to high.’[83] At the commencement of his oral evidence Mr Healey adopted both reports as true and correct after making several date corrections.
[82] Exhibit A9.
[83] Exhibit A10.
On the first day of the hearing, Monday 7 December 2020, Mr White sought to introduce a further report from Mr Healey dated Saturday 5 December 2020, which had not previously been lodged with the Tribunal. Mr White said Mr Healey produced the report on his own initiative rather than at his or the instructing solicitor’s request. The Tribunal was also advised that during this consultation Mr Healey administered a different actuarial test to those referred to in his other reports. Mr White said the Applicant’s solicitor only received the new report on the first morning of the hearing; and after discussions with the Respondent, there was no objection to him making oral submissions about the report, providing the actual report was not taken into evidence.
When asked by the Tribunal what the significance of the new report was, Mr White said it did not change but strengthened Mr Healey’s overall assessment. Mr Duldig initially confirmed he did not oppose Mr White making oral submissions about this latest report, providing the actual report was not taken into evidence. The Tribunal expressed its view that either the new report, or oral submissions about it, were precluded by the clear exclusionary words of s 500(6H) and (6J) of the Act, regardless of the parties’ consent. Mr White then applied for a two-day adjournment to enable consideration of Mr Healey’s new report. After hearing from both sides, the Tribunal exercised its adjournment power under s 40(1)(c) of the AAT Act to enable Mr Healey’s new report to be considered at a resumed hearing on Thursday, 10 December 2020. This is discussed later in these reasons.
In his oral evidence, Mr Healey said he initially assessed the Applicant on 14 October 2019 over a three-hour period.[84] He described the Applicant as having a happy and unremarkable childhood and adolescence, with a very supportive family with whom he has always remained in contact. There was no abuse reported in the home and the Applicant’s troubles since his teenage years seemed to originate in ‘unhelpful associations with the drug subculture in Melton.’ At their first consultation, Mr Healey said he applied the:
(a)Wechsler Adult Intelligence Scale IV test (Wechsler) to measure the Applicant’s intelligence and cognitive performance through completion of eleven sub-tests;
(b)Williams Test of Delayed Recall (Williams) to test the Applicant’s memory; and
(c)Minnesota Multiphasic Personality Inventory – 2 (MMPI-2), which is a 567-question true / false self-report measure of personality and psychological state.
[84] Exhibit R1, 144-157.
Mr Healey reported that at their first consultation the Applicant had a ‘generally healthy appearance consistent with the absence of episodic alcohol abuse and intake of illicit drugs since his remand’ in August 2018.[85] He stated the Applicant had ‘never taken prescription medication for depression and anxiety.’ Mr Healey stated the Applicant had not previously abused prescription medication or used drugs intravenously. He reported past drug use as:
(a)The Applicant commenced smoking cannabis around the age of 18, up to two grams per day at a maximum, which continued until the age of 30. This reportedly ceased for six years before episodic use resumed in the months before his remand in 2018;
(b)The Applicant took ‘speed orally and ecstasy pills between 18 and 19 but ceased that involvement by the age of 22;’
(c)By the time BG was four years of age (2006), the Applicant resumed smoking ice daily, interspersed with ‘periods of abstinence especially when he had access under supervision with his youngest son,’ who was born in 2014; and
(d)After BG’s mother was murdered in 2015, the Applicant ‘commenced to take GHB up to 20 or 30 mls per day.’
[85] Ibid, 144.
Mr Healey noted that the Applicant’s personality test indicated a significant ‘vulnerability to substance abuse,’ reflected by ‘chronic drug abuse over quite a number of years from late teen years up to recent times.’[86]
[86] Ibid, 152; 155.
On 18 November 2020 Mr Healey reassessed the Applicant, who was then in immigration detention, over two-and-a-half-hours via teleconference. Mr Healey re-applied the Wechsler Test and parts of the MMPI-2 instrument, before concluding there had been no deterioration in the Applicant’s intellectual functioning between the two assessments. The MMPI-2 achieved similar results to those obtained in 2019, with no indication of ‘major psychological or emotional disturbance.’ Mr Healey concluded that the Applicant had thought more deeply about his drug addiction while imprisoned and was remorseful for his actions.[87] Mr Healey’s report stated in part:
In view of the maintenance of his positivity and very sound responsiveness to the courses provided, the completion of those courses, his involvement in whatever other courses he could secure, particularly his admission to the Fitness Science Course and the follow-up of that course of training by attending gymnasium 5 days a week, involvement in other courses available such as First Aid and Fire Safety Stage I and indices of his eagerness to strengthen changes in his life in regard to attitude and consolidation of himself as a person in view of his very considerable responsibilities on his release into the community; that is for his children, for his nieces and nephews and also his parents who are in a rather reduced state of health was most encouraging. In addition he will be supported through Corrections with the required to completion a 2 year Correction Order As noted in the previous Report, his risk of further offending is quite low and indeed he has maintained a low level of risk since it was last seen through his ongoing application, his positivity, and more in depth thinking about what happened to him as a person who was addicted to drug substances. In addition, he has been a citizen of this country for most of his life and has contributed to the community through a long work effort. If he were returned to Malta he would not be able to provide the care and support physically and emotionally needed by his sons and his ailing parents. In view of his lifetime living in Australia and is very significant responsibilities it would appear that he merits return of his Visa.
In Relation to Matters Raised by the Referring Source:
1.    The background and findings of the Previous Report of 14th October 2019 remain relevant but a number of those important matters have been addressed through his conscientious application to relevant courses and the gains made.
2.    His mental health is sound and he does not display and problems of concern.
3.    He is on a medication regime for a lower back condition but is engaging in a quite regular exercise program to strengthen muscles and this will be of assistance in regard to this condition.
4.    He does not pose, in the writer’s view, any significant risk of reoffending.
5.    Past behavioural problems do not continue to be an issue.
(Errors in original)
[87] Ibid, 124.
Mr Healey gave oral evidence on 7 December 2020, and then at a resumed hearing on 10 December 2020. He confirmed that he was provided with a copy of the Tribunal’s Guideline for Persons Giving Expert and Opinion Evidence, and subsequently lodged an email and letter of instruction for his 2019 and 2020 Reports that were taken into evidence. Mr Healey referred to his experience as a psychologist for 58 years and as a clinical psychologist for the past 40 years. He said that his first two reports in 2019 and 2020 were commissioned by the Applicant’s legal representatives, but he decided on his own initiative to conduct a further assessment of the Applicant on Saturday 5 December 2020 and produce a third report based on a new actuarial test. He provided the third report to the Applicant’s solicitor on 7 December 2020, the first day of the current hearing.
Mr Healey thought the Applicant was ‘clear and genuine’ in the information provided at their assessments. It was put to Mr Healey that the claim recorded in his report that the Applicant had not previously abused prescription drugs appeared inconsistent with a drug conviction involving possession of Temazepam tablets. Mr Healey agreed that information was inconsistent with what he had been told.
Mr Healey considered the Applicant had made considerable and meaningful progress since being imprisoned in 2018; which was shown by him remaining drug free in custodial environments, by undertaking rehabilitative and self-improvement courses, and by responding positively to visits from his family. When asked by Mr White what he meant by the Applicant having undertaken ‘intensive therapy’ while incarcerated, Mr Healey said this related to the six-hour ‘Ice Effects Program’ and ‘Managing Cravings Program’ in late 2018. He said the Applicant completed and ‘embraced every course,’ which were ‘all significant.’ When asked why he referred to these courses as ‘therapy,’ Mr Healey said: ‘because they are therapeutic.’ He claimed the Applicant was introduced to principles of cognitive therapy while completing the ‘Managing Emotions’ course.
When asked about the Applicant’s persistent reoffending despite past completion of rehabilitative courses, Mr Healey said rehabilitation ‘takes some time.’ He acknowledged the Applicant had completed a Court Integrated Services Program (CISP)[88] over an eight-month period prior to release on 1 August 2017,[89] but stated:
It’s a question of the counsellor and wasn’t necessarily an intensive course but may have been through visitation or attendance once or twice a week. They don’t always respond immediately, it takes time.
[88] See, for example, Magistrates’ Court of Victoria website <
[89] Exhibit R1, 144-145; Exhibit R2, 85.
Mr Healey agreed the Applicant’s capacity to remain abstinent from drugs and any rehabilitative progress made since 2018 had not been tested in the community. Mr Healey said he or someone like him would ‘remain in a supportive role’ for the Applicant if released and thought the Applicant’s reception in the community would further reduce any risk. By ‘reception’ he meant support from the Applicant’s family. He assessed the Applicant as representing a ‘low’ risk of reoffending but acknowledged there would always be an ongoing vulnerability arising from his persistent addiction, stating: ‘once an addict, always an addict.’
Mr Healey was taken through the methodology and instruments he used in compiling his first two reports. He said he administered the Wechsler, Williams, and MMPI-2 tests during the three hours of his first consultation but did not fully repeat these for the 2020 Report because the second consultation was over the telephone. Mr Healey confirmed the Applicant had not completed any written material himself because Mr Healey administered the tests by personally asking questions and then recording the Applicant’s responses. Mr Healey said the tests were done in this way so he could ensure the Applicant understood what was being put and Mr Healey had a ‘full grasp’ of the answers provided.
Mr Healey confirmed the Wechsler Scale measured the relationship between intellectual functioning and memory and was essentially an intelligence and cognitive ability or IQ test targeting psycho-educational disability, neuropsychiatric and organic dysfunction. He agreed the Wechsler test was administered through completion of eleven sub-tests and stated it took him approximately 40-45 minutes to administer to the Applicant in 2019. In 2020 he was only able to administer five of the eleven Wechsler subtests because it was over the telephone. Mr Healey said he was therefore only able to cautiously infer that the results from the two Wechsler tests were comparable. When asked about the significance of his conclusion that the Applicant’s intelligence and cognitive ability was unchanged between the 2019 and 2020 Wechsler tests, Mr Healey said if a person maintained their previous level of intellectual functioning, it was a ‘positive indicator of their ability to cope.’ Mr Healey confirmed he did not have any previous baseline results about the Applicant’s intelligence and cognitive ability prior to his arrest in 2018.
In relation to the Williams Test, Mr Healey said this was a ‘visual’ test routinely applied to test memory and had only been applied for the 2019 Report. Several items were shown to a person over a minute and then following a ten-minute rehearsal-free delay, the test subject was required to recall the content and sequence of those items. Mr Healey said the entire test took about 12 minutes. The purpose of administering this test was to identify indicators of cerebral impairment.
In relation to the MMPI-2 test, Mr Healey said it is a 567-item true / false self-report measure of a person’s psychological state, which he administered in 35 minutes. The Tribunal calculated this to be just under four seconds to ask each question and record a response. Mr Healey said the MMPI-2 focussed on identifying any mental health problems, but he concluded there was no indication of any ‘major psychological or emotional disturbance.’ The MMPI-2 results, however, indicated the Applicant’s continuing vulnerability to relapse into drug addiction.
In arriving at an assessment that the Applicant’s risk of reoffending was at ‘quite a low level,’ Mr Healey agreed this was based on his clinical judgement and indicators from the intelligence and personality tests, rather than by applying an actuarial instrument specific to recidivism risk. Mr Healey said he considered the Applicant’s past inability to remain abstinent, law-abiding, and compliant with conditional liberty arrangements. He nevertheless felt the Applicant’s progress since imprisonment in 2018 deserved a ‘low’ risk assessment. Mr Healey placed considerable emphasis on the Applicant’s ‘maintenance of intellectual strength’ and deeper thinking about the consequences of addiction and offending. When asked how he could quantify the extent to which the Applicant’s thoughts about addiction and past conduct were deeper than in the past, Mr Healy responded:
You measure that by talking to them and by discussing drug abuse and addiction…the important message which he has got quite clearly in my opinion, is once addicted to these substances you’re always addicted and there needs to be a constant vigilance for the rest of your life…he knows that if there are further problems that he needs to face those and live each day at a time with vigilance and surveillance, and he’s communicated that to me, which is good.
Mr Healey considered the Applicant’s risk of recidivism would be mitigated by the judicial monitoring he would be subjected to during the two-year CCO imposed post-release. He thought the Applicant’s IQ and personality tests revealed someone who was of: ‘quite sound, modest intellectual function; we’re not dealing with an impaired person or someone who’s suffered decline in intellectual function, which would render it more difficult for him to abide by the directions…’ Mr Healey was asked about two court-ordered Department of Justice assessments in 2017 and 2018, that the Applicant posed a ‘moderate’ (2017) and ‘high’ (2018) risk of recidivism based on the LSI-R methodology. Mr Healey said he had not seen these reports but attached ‘considerable significance’ to them. Mr Healey noted, however, that these risk assessments reflected the Applicant’s risk at that time, following which ‘changes had occurred’ in the Applicant’s outlook.

Stewart J summarised the community’s expectations at [101] and [103] in the following terms:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[159]
[159] Ibid at [75]-[76] per Charlesworth J.
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301]–[303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[160]
[160]FYBR v Minister for Home Affairs and Anor [2020] HCATrans 056.
Mr White submitted that in circumstances where the Applicant has lived in the Australian community for most of his life, his criminal conduct may be afforded ‘a higher level of tolerance:’ cl 6.3(5) of the Direction.
Mr Duldig submitted that because of the nature, seriousness and impact of the Applicant's criminal offending, he does not meet the Australian community's expectation that he will obey Australia’s laws. Mr Duldig referred to principles 6.3(2) and 6.3(2) in the Direction relating to visa holders who commit serious crimes in Australia, such that they should generally expect to forfeit the privilege of staying in Australia.
Tribunal findings: Expectations of the Australian community
The Applicant has offended frequently since 2007 in several categories. His most serious crimes, more than a decade after committing his first, represent the culmination of a disturbing pattern of conduct that is inconsistent with the community’s expectation that non-citizens obey Australian laws. Notwithstanding the Applicant’s lengthy residence in Australia, the community would expect he should not hold a visa. Given the specific circumstances of this case, this primary consideration weighs very substantially against revocation.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
When asked about any concerns or fears he had about returning to Malta, the Applicant stated in his 2019 PCF:
Malta is unfamiliar to me. While I have family there, there is no one there that I know personally. I will not be able to support myself financially, have anywhere to live, nor will I have employment or know how to seek employment there.[161]
[161] Exhibit R1, 88.
No non-refoulement claims were made by the Applicant during his oral evidence. In closing, Mr White said this consideration was ‘not applicable.’
The Tribunal finds Australia’s non-refoulement obligations are not enlivened in this matter. The practical concerns raised by the Applicant are instead considered under Extent of impediments if removed.
STRENGTH, NATURE AND DURATION OF TIES
Clause 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a) How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia as an infant, was educated here, and has worked since 1998 predominantly as a storeman and truck driver.[162] That employment has been intermittent at times, as a result of the Applicant’s persistent addictions. The Applicant did not list other positive contributions apart from work in his 2019 PCF.[163] BG stated his father ‘gives back to the community through his work ethic and positive attitude.’[164]
[162] Exhibit R1, 86.
[163] Ibid, 87.
[164] Exhibit A3, 4 [28].
In terms of his family and social links in Australia, the Applicant’s parents, two siblings, two biological children, and six nieces and nephews live in Australia and are all Australian citizens.[165] He stated that his parents ‘are ageing and unlikely to be able to travel to Malta,’ particularly his mother, who he said suffers from ‘insomnia, shakes, and high blood pressure due to anxiety.’[166] He claimed to provide English literacy assistance to his mother who only speaks Maltese. It is also submitted that the Applicant’s father ‘has health issues surrounding his back and shoulder,’ although no medical evidence was tendered to corroborate the extent of any health issues suffered by either parent, or the impact of those health issues on his parent’s ability to manage on their rural property without the Applicant’s assistance.
[165] Exhibit R1, 84; 175-176.
[166] Ibid.
The Tribunal has considered statements from the Applicant’s father[167] who said he and the Applicant are close; which has not always been the case, including when the Applicant was abusing drugs. This caused arguments and calls for police assistance. He currently speaks to the Applicant once or twice a week by telephone and used to visit him in prison and immigration detention until precluded by COVID-19 restrictions. The Applicant’s father said he has a sciatic nerve problem for which he had surgery. He also referred to problems with his right shoulder, for which he is scheduled to have surgery. He stated these conditions impact his ability to ‘lift heavy things’ and to ‘maintain the house and farm,’ which is a property of around eight acres.[168] He said that the forthcoming shoulder surgery meant he could not drive during the six-week recovery. Because his wife doesn’t drive or speak English, he claimed that the Applicant’s assistance is required, particularly because their two older children are not able to provide the requisite level of support and only visited every few weeks from their homes approximately 45 and 90 minutes driving time away. He claimed the Applicant was needed to help him and his wife ‘manage at home,’ including mowing the grass at their farm. He said his wife is 70 years old and has mental health issues controlled with ‘anti-depressants prescribed by her GP.’ He believes the Applicant’s removal from Australia ‘would have a very negative impact on her,’ stating: ‘I need [the Applicant] physically and his mum needs him mentally.’
[167] Ibid, 166
[168] Ibid, 129.
The Applicant stated he wanted to step up for BG in the future, ‘as he previously should have,’[169] and that BG would be devastated if his application was unsuccessful.[170] He submitted that BG currently lives with a maternal aunt and uncle but intends to live with him if released. He stated that BG could not travel to see him in Malta because he aspires to do an apprenticeship. The Tribunal has considered a statement from BG, who stated that he was raised by maternal relatives after his mother was murdered in 2015. He claimed to have a ‘strong relationship’ with the Applicant, despite his parents separating when he was very young. As a child he recalled going to the Applicant’s house ‘every second weekend’ and would accompany the Applicant as he drove his truck. He said that he maintained contact with the Applicant ‘as much as possible’ even when he was ‘in and out of prison.’ Since the Applicant was placed in immigration detention, they speak frequently on the telephone. If the Applicant was removed from Australia, BG said the impact on him would be ‘massive.’ That was because he needs the Applicant’s advice and support as he matures and completes his apprenticeship. He said they would not see each other very much because even though he had travelled to Malta with his paternal grandparents in 2017, he would not live there because of better opportunities in Australia.
[169] Ibid, 88.
[170] Ibid, 92.
The Applicant stated that his relationship with JA commenced on 1 September 2018 while he was imprisoned, after he ‘reached out to her.’[171] He initially claimed that he planned to live with and marry JA if released, and to be a step-father to her son. He stated that repatriation to Malta would mean the relationship with JA ‘is not sustainable.’ In his most recent statement, however, the Applicant stated he and JA are no longer in a romantic relationship but remain friends and talk often. He referred to her as the only friend he has and that they continued to speak with each other on the telephone: ‘That’s the only one friend that I do have. She’s supported me through all this and is my biggest critic as well.’ The Tribunal has considered a Statutory Declaration from JA dated 17 October 2019,[172] but there is no current evidence from JA following their breakup to corroborate the nature of any continuing relationship. Limited weight is therefore placed on JA’s 2019 letter.
[171] Ibid, 79.
[172] Ibid, 169-170.
The Tribunal has considered a letter dated July 2019, from BG’s maternal grandmother.[173] She focuses on the importance of a continuing relationship between the Applicant and BG into the future. She was not called as a witness and her perspectives could not be tested through cross-examination.
[173] Ibid, 167.
The Tribunal has considered letters from the Operations Manager at FTW Group dated 1 May 2019[174] and 13 November 2020.[175] The letters stated that the Applicant was employed by the business between 2015 and 2017, and reflected positively on his work ethic and performance. The letters guarantee the Applicant fulltime work if released, although they do not reflect awareness of the Applicant’s past offending, persistent drug use, or current licence restrictions. Ms Boschetti confirmed in her oral evidence that the company would nevertheless employ the Applicant in the maintenance area even if he was unable to drive.
[174] Ibid, 95.
[175] Exhibit A8.
In closing, Mr White cited Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23], submitting that it was appropriate that Strength, nature and duration of ties be treated as a primary consideration with determinative weight. He said that was because the Applicant had lived in Australia for most of his life, is ‘functionally Australian,’ and it was only because of an ‘unlucky chance that he was not born an Australian citizen.’ His removal would therefore cause substantial emotional and practical hardship to his family in Australia.
Mr Duldig accepted the Applicant has significant familial ties to Australia and has been offered work if released, but he noted that the presence of strong familial ties and consistent work since 1998 did not stop frequent offending. He said there was no reason to divert from the guidance at cl 8(4) of the Direction that ‘Primary considerations should generally be given greater weight than the other considerations,’ because of the Applicant’s criminal conduct over more than a decade.
Tribunal findings: Strength, nature and duration of ties
The Tribunal acknowledges the potential for other considerations to be afforded equal or greater weight than a primary consideration.[176] Given the totality of the evidence, however, the Tribunal does not consider it appropriate to depart from the guidance in the Direction that primary considerations ‘should generally be given greater weight than the other considerations.’
[176] HSKJ v Minister for Immigration and Border Protection [2018] FCA 1013 at [38] (Banks-Smith J); Minister for Home Affairs v HSKJ (2018) 266 FCR 591 at [35] (Greenwood, McKerracher and Burley JJ); FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [66] (Thawley J).
The Applicant has lived in Australia since he was an infant, was educated here, and has contributed to the community through employment as a storeman and driver. The Tribunal accepts what family, work and social connections he has are in Australia, and that his immediate family members are all Australian citizens. It is clear from the evidence that his family and others like JA have provided commendable practical and emotional support. The Tribunal accepts it would be emotionally very difficult for the Applicant’s family members and others if his visa cancellation is not revoked.
There is no evidence before the Tribunal to corroborate the extent of medical issues suffered by the Applicant’s parents, or the extent to which any diagnosed deficit impedes their ability to manage on their rural property. Notwithstanding any medical issues, the Applicant’s parents have previously run a transport business and the requirements of their residential and rural properties during the Applicant’s prolonged absences, including most recently since 2018. Mr Healey’s evidence is that the Applicant’s parents have coped as best as they can, including through support provided by the Applicant’s older siblings. The Applicant’s father also said he was assisted by some friends, but this assistance was limited by their advancing years. The Tribunal accepts that if the Applicant remained abstinent and law-abiding, he could provide practical assistance to his parents. Considering the evidence about the Applicant refusing to accept his family’s assistance in the past, being violent to and threatening his father, coupled with his unacceptable risk of recidivism, that prospect remains speculative at best.
In terms of DC’s submissions about the Applicant assisting her with parenting their child, his capacity to do so is again aspirational at best. It is DC who has played the primary parental role since their child’s birth. Their relationship since has been somewhat tumultuous, including when the Applicant offended against DC and when intervention orders were in force. While there appears to be some current stability in their relationship, the Tribunal has some concerns about its longer-term resilience given past disputes.
In terms of the Applicant’s relationship with BG, the Tribunal found BG to be an impressive witness and accepts he has a close relationship with the Applicant. BG lived with his maternal relatives after his mother died and continues to do so. He is now an adult and can make his own choices. That is not to deny BG’s aspiration to live with the Applicant and for them to have a closer relationship while he seeks an apprenticeship. It is just that, for the reasons previously mentioned, the Applicant’s intention to be a better father remains aspirational.
The Tribunal accepts the Applicant’s evidence about a past relationship with JA and that she remains the one close friend he has. She would undoubtedly be disappointed and emotionally affected if his application is unsuccessful, but there is no recent evidence to corroborate the extent of any effect on her since their relationship ended.
Despite a 38-year residence in Australia, it cannot be said that the Applicant’s ties to Australia are particularly strong beyond his immediate family members and JA. That results from the Applicant’s evidence that many of his past relationships were with negative peers or arose from drug involvement and offending, which he has severed since imprisonment in 2018. The Tribunal finds on balance, however, that what ties the Applicant has are predominantly in Australia, and this consideration weighs substantially in favour of revocation.
IMPACT ON AUSTRALIAN BUSINESS INTERESTS
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that any work undertaken by the Applicant as a storeman and truck driver enlivens this consideration. Neither party submitted this consideration is relevant and the Tribunal places no weight on it.
IMPACT ON VICTIMS
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Federal Court has previously held that this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[177]
[177] HVLC v Minister for Home Affairs [2019] FCA 616, 13 (Colvin J). Perram J has recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
The 2018 sentencing remarks refer to a victim impact statement,[178] in which the victim opined that the Applicant has the capacity to make changes in his life. This letter is now over two years old and there is no evidence from any victims of the Applicant’s offending, about the consequences of a decision in this matter. Neither party claimed this consideration is relevant and the Tribunal places no weight on it.
[178] Exhibit R1, 49-50.
EXTENT OF IMPEDIMENTS IF REMOVED
Clause 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves 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.
The Applicant’s concerns about being removed to Malta centre on being able to find work, accommodation, and to provide for his daily needs.[179] It was submitted on the Applicant’s behalf that:
Should the Applicant’s visa remain cancelled he would be permanently separated from his nearest family. He would be returned to a country that is foreign to him, with no personal connections, limited language skills and proportionally limited prospects of finding employment and otherwise integrating into Maltese society.
…
The Applicant has never in any real sense lived in Malta. His only family there are distant relatives with whom he has no relationship. He speaks no Maltese and does not understand the language fluently. It should be accepted that if the Applicant were returned to Malta, there would be a substantial prospect that the Applicant would simply be unable to integrate into Maltese society. That being so, the extent of impediments if removed to Malta should weigh in favour of revocation of the mandatory cancellation.[180]
[179] Exhibit R1, 88; 163 [40].
[180] ASFIC, 2 [4].
The Applicant stated in his 2019 PCF that he has 22 aunts or uncles and more than 50 other relatives living in Malta.[181] He travelled to Malta at the age of 17 with his parents to visit relatives.[182] His father stated in his oral evidence that the Applicant ‘is not in touch’ with any relatives in Malta and they ‘wouldn’t be able to look out for him or support him.’ The Applicant also fears his parents will be unable to travel to Malta in the future because they are ageing, have health issues, and rely on government benefits, and so may not be able to afford to travel. The Tribunal notes the evidence of BG, however, that he travelled to Malta with the Applicant’s parents in 2017.
[181] Exhibit R1, 84.
[182] Ibid, 158 [3].

The Applicant did not respond to questions in his PCF regarding any currently diagnosed medical or psychological conditions, or medications.[183] He stated, however, that ‘exercise and healthy eating’ had given him a new lease on life, and he feels fit, healthy and motivated to make meaningful changes such as staying off drugs and living a law-abiding life.[184] The psychologist, Mr Healey, stated the Applicant only took over-the-counter pain relief for sciatica, an anti-inflammatory medication, was engaged in a daily fitness program, and ‘there were no indications of any major psychological or emotional disturbance.’ The Applicant stated he had owned two homes in Australia as a result of his hard work and felt confident he could return to the workforce and provide for his family once again if released. Mr Healey’s evidence was that the Applicant had developed financial management skills and renewed motivation to save since being imprisoned in 2018. Although he had squandered the proceeds of a tax returns and residential property sale on a drug binge after 2015, he still had some superannuation to draw upon. BG referred in his statement to the Applicant drawing on that superannuation account in 2020 to buy him a computer.[185]
[183] Ibid, 87.
[184] Ibid, 88.
[185] Exhibit A3.
In his closing, Mr White said the Applicant would be a stranger in Malta and could not rely on familial support. He said the Applicant would have considerable difficulty finding work as a truck driver because the transport industry in Malta was limited and jobs were ‘hard to come by.’ Mr White opined that the COVID-19 downturn globally would ‘likely affect the Applicant’ more severely than others in Malta because he lacked connections. Given the Applicant’s licence remained cancelled, Mr White submitted the Applicant ‘would not easily have his licence transferred to Malta.’ Mr White also said there was no evidence the Applicant would have access to welfare in Malta. Collectively, these comprised ‘real impediments’ and a ‘real risk that he would be unable to integrate and find a job.’
In his closing, Mr Duldig accepted the Applicant would experience ‘some emotional and financial hardship because he had little to no relationship with relatives in Malta.’ He accepted Malta was a small country but noted the Applicant was employed previously as a storeman and Ms Boschetti had also offered him fulltime work maintaining trucks rather than driving, so it was not the case that the only work the Applicant could compete for was driving trucks. Mr Duldig said the Applicant understood Maltese and spoke the other official language in Malta, which is English.[186] Mr Duldig submitted that the Applicant’s claims about the availability of income support in Malta originated from an unnamed fellow detainee, and his father who has not lived there for almost forty years. Mr Duldig said the Tribunal should only have regard for information about welfare and other payments that was founded on official material. Mr Duldig also highlighted cl 14.5(1) of the Direction, which referred to the extent of impediments that a non-citizen may face in establishing themselves and maintaining basic living standards, ‘in the context of what is generally available to other citizens of that country,’ rather than a comparison with what was available in Australia.
[186] Exhibit R3.
Tribunal findings: Extent of impediments if removed
The Tribunal accepts that if repatriated to Malta, the Applicant is likely to experience significant challenges in adapting to life in a country that he left as an infant. He is also likely to experience emotional distress resulting from being separated from his family and other work and social connections in Australia. That said, he visited Malta for three months with his family in 1998, understands Maltese and speaks English, which is the other official language in Malta. The Tribunal does not consider there are insurmountable language or cultural impediments to the Applicant’s return.
The Applicant is almost 40 years of age and reports that he has made significant improvements in his health through exercise and healthy eating since being imprisoned in 2018. The Tribunal does not consider that his age and health constitute impediments to removal.
The Applicant has shown a consistent capacity for work since leaving high school and aspires to an immediate return to work if released. With the skills he has gained in Australia, and his capacity to speak English and understand Maltese, the Tribunal considers he has the capacity to find work as a storeman or in maintaining heavy vehicles, or perhaps as a truck driver if he is able to transfer his licence qualifications to Malta or requalify as a driver under Maltese law; such that he could provide for his accommodation and general living costs. The Tribunal was not persuaded by the claims about limited job opportunities in Malta, the purported nature of the transport industry there, and the disproportionate effect of COVID-19 on returnees compared to Maltese citizens. These claims were speculative and uncorroborated. Although there is no evidence before the Tribunal about the amount of superannuation the Applicant has in Australia, the evidence of BG and Mr Healey is that the Applicant has some superannuation to draw upon. That is not to discount, however, the economic hardship the Applicant may confront while trying to re-establish himself.
The Applicant referred in his evidence to over 70 relatives living in Malta. The Tribunal accepts he may not have contact with or be particularly close to them, but the extent to which he may be able to garner any emotional or practical support in Malta remains an unresolved question in circumstances where he has not yet approached them. The evidence of the Applicant’s son is that he visited Malta in 2017 with the Applicant’s parents, so there appears to be some familial contact the Applicant may be able to draw upon. His parents may also be able to assist in relationship-building. There is no evidence before the Tribunal that BG or the Applicant’s parents are unable or unwilling to travel to Malta, or that any of the family support promised to assist the Applicant in Australia could not be redirected to assist his resettlement in Malta. There is no evidence that if the Applicant did need medical or other support in re-establishing himself, that he would not be entitled to the same level of support available to other Maltese citizens.
On balance, this consideration weighs moderately at best in favour of revocation.
OTHER CONSIDERATIONS
No additional considerations were advanced by the parties and I have not identified any ‘other considerations’ relevant to the specific circumstances of this application, as provided for at cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, the Applicant does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case.
The Applicant’s persistent criminal history in several categories is very serious. His past undertakings to stop abusing drugs, alcohol, and live a law-abiding life, are unrealised. His recidivist offending over more than a decade is such that he constitutes an unacceptable risk of harm that the community should not have to tolerate. Given the Applicant’s frequent departure from the norms of conduct expected of non-citizens, the deemed community expectation is that his visa should remain cancelled.
Of the countervailing considerations weighing in favour of revocation, the Applicant has a close relationship with his minor child, nieces and nephews. The weight to be afforded to this primary consideration is reduced, however, because these children have their own parents and caregivers, and their relationship with the Applicant has been characterised by long periods of absence and limited meaningful contact. Moreover, the Applicant’s ability to play a more meaningful parental and avuncular role depends on his ability to control his drug addiction, alcohol abuse, and to stop offending when at liberty in the community, which the Tribunal considers problematic.
The Applicant’s long residence in Australia weighs most strongly in favour of revocation. His ties are predominantly here and removal to Malta is likely to cause him emotional distress. He would be confronted with the challenges of establishing himself in a country he left as an infant, without his strongest sources of emotional and practical support. Although the Applicant does not have close relationships with the more than 70 Maltese relatives he referred to in his evidence, the extent to which they might assist him can only be determined if he asks for their support. He visited Malta in his teenage years and BG’s evidence is that he visited Malta with the Applicant’s parents in 2017. The Applicant has also shown a capacity for consistent work since leaving school and aspires to immediately return to work and live a law-abiding life if released. If unable to immediately find work in Malta or if he needed other assistance, there is no evidence he would not be entitled to the same level of support available to other Maltese citizens.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel the Applicant’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ substantially outweigh the combined weight to be given to the primary consideration ‘Best interests of minor children,’ and the two other relevant considerations in this matter.
DECISION
It follows that the Tribunal affirms the decision under review.

214.

I certify that the preceding 213 (two hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

………………………………….
Associate
Dated: 16 December 2020

Date of hearing: 7, 8 and 10 December 2020

Advocate for the Applicant Andrew White

Solicitors for the Applicant:
WLW Migration Lawyers

Advocate for the Respondent: Ingmar Duldig

Solicitors for the Respondent: Clayton Utz

Date of hearing:	7, 8 and 10 December 2020
Advocate for the Applicant	Andrew White
Solicitors for the Applicant:	WLW Migration Lawyers
Advocate for the Respondent:	Ingmar Duldig
Solicitors for the Respondent:	Clayton Utz