GVSW and Minister for Immigration and Border Protection (Migration) - [2017] AATA 1543

GVSW and Minister for Immigration and Border Protection (Migration) [2017] AATA 1543 (15 September 2017)
Division:GENERAL DIVISION
File Number: 2017/3922
Re:GVSW
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

DECISION
Tribunal:Senior Member Britten-Jones
Date:15 September 2017
Place:Adelaide

The Tribunal affirms the decision under review.
........................................................................
Senior Member Britten-Jones
CATCHWORDS
IMMIGRATION – mandatory cancellation of visa – s 501CA(4) Migration Act 1958 - request for revocation of cancellation – character test – substantial criminal record over long period – sentence of imprisonment of 12 months or more – protection of the Australian community – best interests of minor children – expectations of the Australian community – strong ties to Australia - warning given as to consequences of re-offending - other considerations - decision under review is affirmed.
LEGISLATION
Migration Act 1958 (Cth), ss 499, 501, 501CA
CASES
Bukvic and Minister for Immigration and Multicultural Affairs [1999] AATA 660
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234
BCR16 v Minister for Immigration and Border Protection (2016) FCA 965
Bukvic v Police [2013] SASC 79
Gaspar v Minister for Immigration and Border Protection [2016] FCA1116;
(2016) 153 ALD 338
BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78
SECONDARY MATERIALS
Direction No. 65 – made under section 499
REASONS FOR DECISION
Senior Member Britten-Jones
15 September 2017

On 26 August 2015 the applicant’s Class XA Subclass 866 Protection visa was cancelled under s 501 (3A) of the Migration Act 1958 (the Act). The applicant made representations to the Minister about revocation of that original decision but it was decided under s 501CA(4) of the Act that the original decision would not be revoked. A statement of reasons for that decision was provided to the applicant on 27 June 2017.
The applicant has sought a review of the decision to not revoke the original decision by making application to the Administrative Appeals Tribunal under s 500(1)(ba) of the Act.
APPLICANT EVIDENCE BY VIDEO LINK
The applicant gave his evidence by a video link from the Immigration Detention Centre on Christmas Island. The order for participation by video link under s 33A of the Administrative Appeals Tribunal Act 1975 was made by consent. There had previously been some concern raised about the quality of the video link but, as it turned out, there were no problems with the video link except for a short audio delay which had no material effect on the presentation of the evidence from the applicant.
THE EARLY YEARS
The applicant has been in Australia since 1986. He arrived at the age of 16 years old from Bosnia and Herzegovina. He was born in 1970 and grew up in the town of Mostar, Yugoslavia (now part of Bosnia and Herzegovina) to parents of Serbian ethnicity. Before the applicant was born, his father left Yugoslavia for Australia abandoning his mother. His childhood years were unsettled. During the early years he resided with his grandmother in a rural village outside of Mostar as his mother was working full time and could not care for him. He then lived with his uncle in Mostar at about the time he commenced his schooling and he then moved in with his mother and her new partner. His father returned to Yugoslavia for a short visit in 1977 but the applicant had only minimal contact with him. On a later visit his father persuaded him to join him in Australia on a permanent basis and in 1986 he followed his father to Australia arriving in December when he was 16 years old.
Things did not work out with his father and the applicant moved out in late 1987. He also dropped out of school.
THE OFFENDING
Over the next few years the applicant lived in boarding houses and at various addresses. He started to gamble and commenced a life of crime the details of which are set out on his National Police Certificate. Between September 1989 and December 1995 he was convicted seven times for larceny or building break and felony and other charges. He spent a significant period of this time in prison.
In March of 1996 he was convicted in the Supreme Court of South Australia for unlawful possession, false pretences, receiving, break and enter building and commit offence. He received a head sentence of six years, nine months and five days imprisonment. There were numerous driving offences between 2003 and 2007. On 3 June 2004 in Holden Hill Magistrates Court he was convicted of common assault and imprisoned for twelve days together with a community service order for 18 months. This would appear to be the only offence involving some violence, although the applicant gave evidence that he was acting in self-defence.
The next chapter of the applicant’s offending can be found in the sentencing remarks of Judge Muecke of the District Court on 5 March 2010, after a jury had found him guilty of attempting to traffic in a controlled drug on Monday 23 November 2009. The applicant was apprehended by police at the Adelaide Airport on 12 January 2007 carrying a suitcase holding cannabis with a value of between $21,000 and $35,000. He was arrested and granted bail. Prior to facing trial for this offence the applicant was stopped in country New South Wales on 12 January 2008 and found with 5 kilograms of cannabis. He was charged and convicted of supplying a commercial quantity of cannabis and sentenced to a term of imprisonment of twelve months. Part way through the trial relating to the Adelaide airport offence the applicant pleaded guilty. Judge Muecke said in his sentencing remarks:
…I am satisfied that you probably carried drugs to Townsville and Sydney the year before. I cannot therefore sentence you for this offending on the basis that it is an isolated drug offending by you.
Judge Muecke referred to reports from a psychologist, Mr Maroulis, and from a psychiatrist, Dr David Kutlaca, finding that the applicant was depressed prior to the incident in January 2007. The Judge also referred to a positive report dated 14 December 2009 from an organisation called “Exist in Harmony”.
The applicant was sentenced to a term of imprisonment for two years and eight months which reflected his guilty plea. The Judge ordered that he be released after serving nine months of that sentence and upon him entering into a recognisance in the sum of $750 to be of good behaviour for two years. The applicant was warned by Judge Muecke in his sentencing remarks as follows:
…you are required to sign a recognisance and an order. I have explained what the terms of imprisonment are and that you will be released after nine months provided you sign this recognisance. The consequences that may follow if you fail to comply with the conditions of the bond is that you may have to serve the full term of my sentence of imprisonment of two years and five months.
The applicant appealed against this sentence on various grounds including on the ground that the sentence was manifestly excessive. The Court of Criminal Appeal noted:
The appellant is now 40 years old. As previously noted, he has a very poor criminal history, and committed a further drug offence in January 2008. These matters suggest that both personal and general deterrence are particularly important in his case. The drug trade is able to continue because the appellant, and people like him, have been willing, for the purposes of financial gain, to run the risk of detection. This makes considerations of general deterrence important.
On 30 June 2010 the Court of Appeal found that the sentence was not manifestly excessive and was in fact “an appropriate sentence”.
The applicant was released from prison in December 2010 and in the following year he failed to comply with the recognisance release order that he had signed on 5 March 2010. This final chapter of the applicant’s offending can be found in the sentencing remarks of Judge Muscat in the District Court on 28 January 2014.
The failure to comply with the recognisance and the specific warning given by Judge Muecke in his sentencing remarks relates to the applicant committing an offence of hydroponically cultivating 18 cannabis plants and intending to sell some or all of the cannabis plants being grown. There were associated charges of possessing equipment in order to facilitate the cultivation of the cannabis plants and interfering with the electricity supply to the premises where the cannabis plants were being grown inside three separate rooms. The applicant was also charged with unlawful possession because the sum of $3,970 in cash was found which was suspected of being obtained by unlawful purposes, namely the sale of cannabis. The applicant was arrested on 26 September 2011. The applicant pleaded not guilty. There was a trial before a Magistrate and he was found guilty of three offences on 10 December 2012. The applicant then appealed against the convictions, which was dismissed by the Supreme Court on 5 June 2013.[1]
[1] Bukvic v Police [2013] SASC 79
Judge Muscat said in his sentencing remarks:
… I am satisfied beyond reasonable doubt that the cultivation you were convicted of was an obvious commercial enterprise, your role being to guard the crop as well as the equipment. You had been doing so for several months, as found by the magistrate.
That role does not diminish the seriousness of your offending, particularly in light of your previous history of serious drug offences and the fact that these offences were committed by you in clear breach of your release upon the recognisance you signed in this court.
You found yourself residing at that house after you needed somewhere to live following a falling out with your father not long after you were released from prison upon the Commonwealth recognisance. That was a very poor choice on your part. You were prepared, it seems, to take the risk associated with your involvement in a commercial enterprise in cannabis.
Later in his remarks Judge Muscat said:
In my view, you have reverted to criminal behaviour of a similar nature to that which you were released upon the recognisance, although perhaps not to the same extent.
The applicant commenced his final term of imprisonment from 28 January 2014. He was released from prison and placed in Immigration detention on 28 September 2015. The applicant is currently in detention on Christmas Island.
ORAL EVIDENCE
The applicant gave oral evidence and called five witnesses who attested to his good character and their strong relationship with him.
The son
The applicant has a son from a previous relationship. The son was born in March 1999 and is now 18 years old. In addition to his oral testimony letters were tendered from the son dated 1 June 2015, 16 October 2016 and 23 August 2017.
The letter of 1 June 2015 was addressed to the Minister of Immigration and commenced as follows:
I beg of you, do not deport my dad back to his country. For a very long time I’ve suffered a serious depression from my autism, and none of my family, friends and carers could rid me of this terrible boon, that haunted me for a very long time… that was until my father stepped in. Through his training I beat back my autism and regained confidence within myself. If it weren’t for my dad I don’t know where I would be in life. My best guess, I’d probably be barricaded in my room, wallowing in misery and despair. Luckily thanks to my dad that’s not the case. …
The letter dated 18 October 2016 written by email included the following passage:
My mother has been exploring the option of Foster Care Family as she’s no longer capable of meeting my needs. I do not want to be fostered out and this including not having my father to provide guidance and love is causing me to feel extremely depressed, anxious, sad and lonely.
The letter dated 23 August 2017 written by email included the following passage:
Its been 2 years since I last saw my father in person, during that time I have felt truly disconnected from my father, him not being here for my achievements and low moments in life have affected me greatly. Not having a father figure to guide me in my moments of need has changed my relationship with my other family members. If it had not been for my fathers intervention I would have been fostered out of my home as I was too much for my mother to deal with.
The son’s oral evidence was consistent with, and added further force, to the written evidence referred to above. The son expressed his gratitude for the help that his father provided in particular when his mother was having difficulties and could not cope with him. He said that he had wonderful times with his father who would play with him, guide him and support him in all ways. He expressed how sad he was that his father has not been there for many of his achievements. He had previously been overweight but his father helped him by physically training with him at the park. He also had long talks with his father. These things helped him beat back his autism. He regained confidence and is extremely grateful to his father. He said that his father has had a huge impact on his life and that he has been there for him. He does not want to sink back to what he was before.
In cross examination the son accepted that his father had been in and out of prison for much of his life. Whilst in prison he would still talk regularly with his father on the phone which helped him. He completed a certificate of construction and obtained an apprenticeship whilst his father was in prison. He wished his father had been there to see those achievements. The son accepted that he has managed by himself but said that he was comfortable because he knew there was a chance that is father would come back and that is what keeps him going. He credits his father for beating back his autism.
In re-examination the son said that if his father was sent away he would be shattered and he didn’t want to think about how it would affect his autism and his stress. He said that it is the hope that his father will be released that keeps him going.
The son has not seen his father for about two years because he has been in immigration detention since September 2015. In the period from 28 January 2014 to September 2015 the son only had limited contact with his father who was in prison at that time. Prior to that there was a period of just over three years commencing December 2010 when the applicant was out of prison. The son was aged between 11 and 14 in this period.
I note that the applicant’s numerous periods of imprisonment during his son’s formative years must have had a negative impact upon the son including from 12 January 2008 the applicant was held in custody in NSW after being arrested there. The applicant was granted home detention bail on 24 December 2008.
Ms H
Ms H got to know the applicant in January 2011 and a few months later commenced having a relationship with him. In addition to her oral testimony, Ms H, wrote letters dated 7 November 2011, 19 June 2015, 19 May 2016, 24 February 2017 and 11 July 2017 (with photos and cards attached). In addition there was an undated letter from Ms H which appears to have been written in 2016 addressed to delegate of Department of Immigration. Ms H’s letters talk of many years of an abusive marriage and how, when she met the applicant in 2011, he rescued her and her family by providing love and support. Examples are given of the applicant’s love and support for her children and photographs were provided in particular of a combined family holiday to the Gold Coast and of walks in Waterfall Gully. These photos clearly evidence the love and affection shown by Ms H and her two children to the applicant and by him in return.
Ms H, by her letters and oral testimony, made an impassioned plea for the applicant not to be deported.
In the undated 2016 letter Ms H included the following passage:
I am struggling every day to try and hold the pieces of our broken family together. To see my children so lost, sad, depressed, angry and miserable is tearing me apart. We are all distant to everyone, putting on masks to try and pretend we are all ok, but we are not. I feel so hopeless with no direction and seeing my sons so so low is totally soul crushing.
We all need George home. George showed us how to love, to smile, to laugh, to live again. I desperately need his support, his love, his encouragement, his understanding, his positive male role model to my children. To share our lives as the family we are.
…
Ms H’s oral testimony was consistent with and provided further force to the written letters with respect to the love and support shown between the applicant and her family and the positive influence the applicant has on her two children.
Under cross examination Ms H said that she had a general awareness of the applicant’s previous criminal history which he first revealed to her from about the middle of 2011. She said that the applicant did not live full time with her and her children and that there was no set routine – sometimes he would stay two or three nights one week other times three or four nights in a week. She was busy during the week and he was mainly there on the weekend which was family time. Ms H was aware that the applicant was charged with cultivating cannabis in September 2011 and he told her about that before going to court. She said that the boys are generally aware of his criminal conduct and that they used to visit him at Port Augusta Prison. In more recent times she has told them more details of his history but they do not know the full story.
In response to being cross examined about the fact that the applicant was continuing his criminal activities throughout 2011 despite having commenced a relationship with her from about April 2011, Ms H said that she wished that she had met him earlier because then he may not have committed those offences and that 2011 was early in their relationship.
The oldest son of Ms H
Ms H’s oldest son was born in 2000 and is currently doing Year 12. He will turn 18 next year. He wrote a letter dated 27 May 2015. He also wrote a letter in support of the applicant dated 3 August 2017. In that letter he said:
… Having this newly like father figure in our lives was nice especially when our previous one was abusive to me and my mother.
George would be there for mum, when she was so sad and gave mum something I could never give, a male partner who she can rely on, talk to about her problems and express her love for someone that made her smile which was the greatest gift I could ask for my mum being happy since the separation
Later in the letter he explained how the applicant has impacted his life:
… he has made me a better person then I’ll be with his type of role modelling then any male figure in my life then him, he makes me feel happy when he’s around and shows compassion to me and the family by being there and doing stuff.
In his oral testimony he spoke of the applicant as being very kind and friendly and caring towards his mum. He described him as a father figure “more so than my biological father”. He said that the applicant had changed his mother’s life and brightened things up. He was able to talk to him about his problems and he was more like a best friend. It would be catastrophic for the applicant to be deported.
The youngest son of Ms H
Ms H’s younger son was born in 2005. He wrote a letter in support of the applicant dated 11 July 2017 together with an earlier undated letter. In his letter dated 11 July 2017 the younger son said:
George has helped me to be open and not defensive all the time. Ever since my dad left, it felt like I never had a father because he did horrible things to us.
…
George helped me with my anxiety by helping me talk about the challenges I had to face.
…
George listens to me and makes me feel better and happy about myself. He makes me laugh and smile.
George should be able to live in Australia with us because he gives me hope and makes things brighter. He cheers me up, he makes me not think about the bad things in my life. Although he is not my biological dad, he is a father to me. …

In his oral testimony the younger son spoke affectionately about the applicant and how he calls him “best buddy”. He said that he considers him like a father figure and is upset when he is away.
Mrs G, mother of Ms H
Mrs G provided a written letter in favour of the applicant on 24 August 2017. She said that she first met him in March 2011 at her 60^th birthday party. At that time her daughter Ms H was going through a very ugly separation and the applicant was there for her making sure she was ok. She referred to the applicant as a gentle giant and how she was shocked to learn about his criminal history but was more understanding when she found out about his upbringing and arriving in Australia as a refugee at 16 speaking little English with no family support. She spoke about the bond which the applicant had with her grandsons and how important it was to trust a man considering what they had witnessed between their mum and dad. She said how her daughter continues to support the applicant despite his absence and how this is now taking its toll on her and that she is not eating, has panic and anxiety attacks which also takes its toll on the youngest son. Finally in her letter she says:
My husband and myself would be proud to have George as part of our family. We would help and support him to be a law abiding citizen. Rehabilitate him as am I sure there will be after effects re his health etc. due to his detention on Christmas Island.
Please allow George to reside in Australia to set up a family life with [my daughter] and her sons.
Mrs G’s oral testimony was to a similar effect as her letter. She described how the applicant had put a smile on her daughters face. She described how the younger son calls the applicant buddy. She said that the applicant’s absence has had a very negative effect on Ms H who is not wanting to be with her family and has become distanced from her sisters.
The applicant
The applicant provided written evidence by way of letters dated 20 December 2011, 20 August 2015 (with attachments), 12 June 2016, 10 February 2017 and 10 July 2017. The letter of 20 December 2011 said:
I don’t wish to make excuses for my reckless conduct but it is necessary to put it into a relevant context.
Since about 1999 I had been battling depression following a second work accident in 2004. The depression has really taken hold of me. Coupled with gambling problem my relationship broke down, lost my house and virtually everything I owned. At that point in my life I wanted to end it all. Had it not been for intervention of doctors particularly psychologist Mr Maroulis there’s no way I could have pulled through.
Later in the same letter the applicant explains how in 2006 he was introduced to a person who exploited his vulnerability which led to him transporting an illegal substance. He then spoke of his son who before his nine month incarceration in 2010 was a happy kid who attended school and enjoyed sporting activities and a social life. This changed when the applicant was incarcerated and his son’s mother was not able to manage their son. The applicant went on to say:
I promised myself that I would remedy the situation upon my release from custody on 3 December 2010. I immediately took control of [my son] to return him back to the condition he was in prior to 5 March 2010.
Forward to December 2011 and I’m pleased to report that once again [my son] is a happy kid that looks forward to playing competitive sports and looks forward to starting the first year of high school next year.
I very much look forward to playing a role throughout [my son’s] high school years.
In the applicant’s letter dated 10 July 2017 he takes full responsibility, for all of his criminal offending, and said that he has gained an appreciable insight and accepts that his criminal conduct has had a profound impact on his family, friends and the community in general. He said:
I have demonstrated not merely with words but with actions that I have finally come to my senses to change my life.
He says that since being on Christmas Island he has continued making progress, engaging in regular counselling support and participating in courses that offer alternative thinking strategies. In February 2016 the applicant received a Certificate of Attendance for participating in an Anger Management Course, in March 2016 he received a Certificate of Attendance for completing a course described as “Understanding Good Health”. Previously in 2014 the applicant completed a basic umpiring course in AFL and in February 2015 he fulfilled the requirements for a Certificate II in Civil Construction.
The applicant says that he has a fear of persecution if he is returned to his homeland.
The applicant said that the Minister’s delegate failed to take into account much of his medical history and the fact that he had been able to find work despite his criminal history and his mental and physical disabilities. The applicant said in conclusion that:
… Being deported to a foreign country where I would face great harm would be devastating for the family particularly for my partner[MsH], our children, my elderly terminally ill father, our friends and for them would be a life sentence and for me a death sentence.
…
Having lived in Australia since the age of 16, I consider Australia my home. Australia is the best and safest country in the world. Australia and its people need not fear me and the community as a whole do not need to be protected from me.
In his oral testimony the applicant described how his childhood in the former Yugoslavia was not ideal and that he came to Australia in 1986 aged 16 years old. He said that he agreed with the statement in the letter from the psychologist Mr John Maroulis dated 8 December 2011 which said:
Developmental factors such as not being brought up in loving, caring upbringing with significant resentment towards his father and the outbreak of the cruel civil war caused a depressive personality. This in turn led to criminal convictions. If he had been brought up in close-knit, healthy developmental background, it is highly unlikely that he would have engaged in criminal activities.
The applicant explained how he has developed an extremely loving and supportive relationship with Ms H which is something he had not experienced in his past. He said that their plans are to spend the rest of their life together.
He referred to other family members as being his father, his son and his two step-sons. He said that he has uncles, cousins, nieces and nephews and that all his family resides in Australia.
With respect to his son, he referred to his high functioning autism which has been challenging for him and his family. He said that he has helped his son throughout his life. He describes how his son is not always compliant with his mother and how he tells him that he must listen to his mother. The applicant is worried that his mother wants to foster him out. For him this is not an option and he will not accept that. He became very emotional when talking about his son.
He said that being separated from his son leaves a huge hole in his heart and that he has struggled. He doesn’t want to leave him alone again and he wants to see him transition into an adult. It has been very hard not seeing him for the last two years.
With respect to his non biological sons, the applicant gave evidence about how he has formed a special bond with JH which commenced early on in his relationship with Ms H. He said that he was able to show JH, as a father, the love that he craved. He introduced JH to his son. He said that the older son was apprehensive at first because he had seen the violent relationship between Ms H and her ex-husband. Now he says that LH and JH are part of his family and that they have gone on holidays together and that his son has sleepovers with Ms H’s family. He said that they intend to stay together.
He said that he keeps in touch on a daily basis but that Ms H and her children are suffering in his absence. He described how JH has spoken about wanting to kill himself and they have refused to go to school. He said that it is cruel that he cannot help but except over the phone. He said that JH refers to him as his Buddy.
He said that he can’t change the past and he can only think about the future and that it is all about them and not about him.
With respect to his health, he referred to a work accident in 1999 after which he couldn’t return to work and things started to go downhill for him. He has been on anti-depressants but he does not receive much help when in prison and detention.
With respect to his offences, the applicant said that he was disengaged from reality and that he is not that person. He said that the impact on others cannot be underestimated. He said that he broke the law and paid a heavy price and that he did not want to trivialise the seriousness of it. He explained that how in the past he had nothing to live for but that now he does not want to let down his loved ones or the community.
With respect to employment he said that he had worked in hospitality and sales positions in the early days and then construction. After he suffered his serious and permanent injuries he took up taxi driving as a job and had another accident. He has not been able to work full time since then. His last job was a light duty job for 4-8 hours a day from 2011 to 2014.
He said that since meeting Ms H she has been a source of light and that they work together so well and that it is the first time he has experienced true love. He said that with her support and love he has become the man that he wants to be and that he has shown love in return. He said that his priority is to repair the damage and hurt he has caused to his family and the community. He is truly sorry for what he did. He said that the children should not be trapped in this situation and that he has changed and taken responsibility.
Under cross examination the applicant accepted that his offending since coming to Australia over 30 years ago has had a serious impact.
It was put to him that he had the opportunity to change his ways in particular after his son was born in 1999 and he also faced being deported that year. The applicant responded by saying he faced a lot of challenges at that time and that he often wishes that he had been deported back then. When questioned about the potential to reoffend the applicant said that it is all in the past, that he had bad company and that he has eliminated things. He rejected all propensity to be violent or to be verbally abusive to others.
The applicant was cross examined extensively about all of his convictions and many of the complaints and charges which were made against him that did not lead to convictions. The applicant accepted the accuracy of the attached National Police Certificate except with respect to the offence involving spitting on 3 June 2004 for which he was convicted. It is not for the Tribunal to review the essential factual basis of a conviction (Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234 at 244-245) so I will proceed on the basis that the facts underlying the convictions and sentences are accurate which would include the finding that the applicant spat at a woman seated as a passenger in a vehicle. The applicant had pleaded not guilty to this charge of assault but was convicted in the Holden Hill Magistrates Court on 3 June 2004. His appeal to a single Justice in the Supreme Court was dismissed on 16 September 2004.[2]
[2] Bukvic v Police [2004] SASC 282.
I do not consider it necessary to make any findings with respect to, and accordingly place no weight on, the alleged behaviour of the applicant which formed the basis of various complaints and charges which did not lead to a conviction. I note generally that it is of concern that the applicant since arriving in Australia has continually found himself in trouble with the authorities and has been regularly convicted of criminal offences. The convictions are so regular and of such a nature that I do not need to consider the other complaints or charges which did not lead to a conviction.
The applicant explained his early brushes with the law by saying that he was living in a boarding house with others who were regularly breaking into houses and that “I was forced to accompany them”. Whilst I accept that the applicant was young and placed in a difficult situation when he moved out from living with his father, I do not accept that he was forced to commit any of these early offences. No doubt he was influenced by others but that does not excuse his behaviour.
He said that he developed a gambling problem which is how the other offences happened and that he was ashamed of that part of his life. He said that he was homeless and had nothing going for him at that time in his life.
The applicant accepted that he received a warning in May of 1993 from the Department of Immigration that further criminal offending could cause deportation. He said that he took no notice of the warning and that he was gambling and moving from one boarding house to the next with no stability in his life.
The applicant denied any propensity to violence and said that he did not agree with the offence details set out in the police apprehension report for an offence on 10 August 2002 in which the victim alleged that the applicant had run towards him and kicked him in the left arm with a karate type kick that was aimed at his neck. The applicant said that he did so in self-defence. The applicant was charged with common assault and found guilty after a trial in the Holden Hill Magistrates Court on 21 July 2004. It is of concern that the applicant continues to dispute the underlying facts to this charge for which he has been found guilty. On the other hand, I note that the applicant has no other convictions for offences involving physical harm or violence to others. Indeed, the applicant pointed out in cross examination that he had never encountered anyone whilst carrying out his numerous offences of what are today often called home invasions.
With respect to the breach of his bail agreement in January 2008 for transporting cannabis located in his vehicle at Hay in NSW, the applicant referred to the surrounding circumstances and that he had a mental illness and nothing to live for and that he had met a person who had exploited his vulnerability. He said that he now takes full responsibility and that he cannot change what happened in the past but can only look to a positive future.
With respect to a letter from the Department of Immigration dated September 2008 issuing a warning that he may be deported, the applicant said that he has no recollection of receiving it but that if he had it would have made no difference.
It was put to the applicant that despite having only been released from prison in December 2010 and meeting Ms H in January 2011 he continued his life of crime leading to the charges for cultivating cannabis in September 2011. The applicant pleaded not guilty to the three offences of cultivating cannabis, possessing certain equipment and interfering with the electricity meter. The trial took place in 2012 and he was convicted by a Magistrate on all three counts. He appealed the convictions to a single justice in the Supreme Court who dismissed the appeal on 5 June 2013.[3] It is difficult to reconcile the behaviour of the applicant in pleading not guilty and then appealing against the convictions with his evidence given that due to the stabilising influence of Ms H from April 2011, he had decided to change his ways and turn over a new leaf. If that were the case one would have expected that the applicant would have accepted the role that he had in cultivating the cannabis in 2011 and pleaded guilty at the earliest possible time. Instead, the applicant continued to maintain his innocence throughout the trial in the Magistrates Court in 2012 and the subsequent appeal in the Supreme Court in 2013. This behaviour does not indicate any remorse on the part of the applicant or any respect for judicial authority.
[3] Bukvic v Police [2013] SASC 70.
The applicant was cross examined about various alleged incidents occurring at the Immigration Detention Centre on Christmas Island. I make no findings against the applicant with respect to those allegations and accordingly no weight is given to them in these reasons.
OTHER DOCUMENTORY EVIDENCE
I note that the applicant’s father did not give evidence at the hearing but he did provide a letter of support dated 29 May 2015 in which he refers to the challenges faced by his son coming out to Australia at a young age with no English skills. In that letter he refers to the support provided by the applicant to his own son who suffers from autism and to the support that the applicant provides to him as a carer.
There is also a letter from J Kyriacou, from Bargain Priced Rubbish Removals where the applicant was employed on a casual basis for approximately four years. Mr Kyriacou said that he had been prepared to rehire him upon his release from goal but that was not possible given that he went into immigration detention. He speaks very well of the applicant.
There are numerous other positive letters of reference of which I have taken note.
I also take note of a letter from a psychiatrist Dr David Kutlaca dated 6 December 2011. Dr Kutlaca provided psychiatric intervention to the applicant once in 2006, eight times in 2009, once in 2010 and six times in 2011. Dr Kutlaca says that there is no doubt that the applicant suffers enduring depressive psychopathology. He says that the applicant requires the indefinite use of an anti-depressant to which he responds adequately. He referred to his ongoing attendance with a psychologist, Mr J Maroulis and concluded that the applicant is attempting to rehabilitate himself. He concluded that the applicant is now 41 years of age and that:
He is demonstrating increasing maturity. His stated responsibilities to his son appeared sincere. I have accepted that he will continue to attend regularly for the purposes of psychiatric intervention. I anticipate that he will seek employment (preceded by relevant training/education, as necessary) after the resolution of his visa matter. These factors indicated that recidivism was unlikely.
There is also a report from the applicant’s psychologist, Mr J Maroulis dated 8 December 2011 in which he confirms that he has been treating the applicant on and off for a number of years for various injury related matters, including criminal charges. He said that in recent times he had been assisting him with gambling addiction and with the issue of a possible cancellation of his refugee visa. He provided a diagnosis of chronic pain syndrome, chronic major depressive disorder and chronic anxiety disorder (post-traumatic stress disorder).
Mr Maroulis concluded in this report that the applicant is attempting to rehabilitate himself by attending pre-arranged psychiatric appointments with Dr Kutlaca regularly and taking anti-depressant medication and muscle relaxants and seeing himself almost weekly. Mr Maroulis said that he had witnessed first hand the close bond between the applicant and his son, who he had interviewed. He said that the son told him that if his father leaves he will not be able to cope on his own and he became increasingly distressed and tearful. He concluded that if the applicant is deported that this:
… will definitely have a severe detrimental effect on [the son]. It is probable that he will regress mentally with exacerbation of autistic symptoms due to a grief/trauma reaction due to the loss of his father, the most important male figure in his life.
As to whether the applicant could proceed to a life without crime, Mr Maroulis said:
Our client has demonstrated a sincere remorse for his previous criminal wrongdoings. He actively participates in achieving therapeutic goals in home based assignments given in therapy.
He has a good relationship with his father, ex wife, step-daughter and especially his son. There is a willingness to continue in psychiatric and psychological treatment regularly.
We have discussed work options including relevant training. It is anticipated that he will recommence employment after resolution of his visa problems.
THE LEGISLATIVE FRAMEWORK

Section 501(3A) of the Act relevantly provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test.
Section 501(6) provides in relevant part as follows:
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)) …
Section 501(7) in turn relevantly provides as follows:
Substantial criminal record
For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more …
Section 501CA(3) and (4) provide as follows:
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, the way that the Minister considers appropriate in the circumstances:
(i)     a written notice that sets out the original decision; and
(ii)    particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)     that the person passes the character test (as defined by section 501); or
(ii)    that there is another reason why the original decision should be revoked.
In BCR16 v Minister for Immigration and Border Protection (2016) FCA 965 Moshinsky J summarised the effect of the above provisions as follows at [48]:
48.At this stage, there has been little judicial consideration of ss 501(3A) and s 501CA. The provisions were considered by Tracey J in Picard v Minister for Immigration and Border Protection [2015] FCA 1430. In that case the applicant contended that there had been a denial of procedural fairness in relation to the Minister’s decision under s 501CA not to revoke a cancellation decision. Tracey J explained (at [40]) that s 501(3A) requires the Minister to cancel a visa if he or she (or a delegate) is satisfied that the holder does not pass the character test and is serving a sentence of imprisonment; as a result, the reasons for a cancellation decision can be very shortly stated; there is no need for a decision-maker to have regard to any discretionary considerations. Tracey J then stated (at [40]) that, in this context, s 501CA is an ameliorative provision; it requires the Minister to invite representations from the person whose visa has been cancelled about the revocation of the cancellation decision and confers on the Minister a discretion to revoke the cancellation. In relation to s 501CA(3), Tracey J noted that the Minister is required to provide a person whose visa has been cancelled under s 501(3A) with written notice of the cancellation decision and particulars of “the relevant information” relating to the making of the decision; such “relevant information” is defined in s 501CA(2) as information that the Minister considers “would be the reason, or part of the reason for making the [cancellation] decision” and “is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member”; and that the obligation thus relates to information bearing on the decision to cancel, not information on which the Minister might rely in deciding whether or not to revoke the cancellation decision. Tracey J observed (at [40]) that “[t]his is a somewhat strange provision given that the cancellation will have occurred because the Minister (or his delegate) will have been satisfied of two objectively ascertainable facts”. Tracey J referred (at [41]) to Direction No 65 and stated that it identified a series of broad considerations which the Minister could, but was not obliged to, take into account when reaching a decision. Tracey J then stated (at [42]):
It does not follow that, in all cases, the Minister will accord procedural fairness simply by complying with the requirements of s 501CA(3). Once the invitation to make representations is extended to a visa holder it falls to the visa holder, if he or she wishes to do so, to provide information and submissions to the Minister in an effort to persuade the Minister that a revocation decision should be made. Those representations will be made in the knowledge that the Minister is likely to be guided by some or all of the considerations referred to in Direction 65. The applicant will, therefore, be in a position to provide the Minister with information relating to those considerations, including information which might seek to anticipate and allay concerns which the Minister might harbour relating to the applicant’s circumstances and conduct. If, in making representations, the applicant provides information to the Minister, relating to his or her personal circumstances, and that information is critical and relevant to the applicant’s case the Minister is bound to consider it. It will be a matter for the Minister to weigh such matters against other relevant considerations, including those mentioned in Direction 65. It will not, normally, be necessary for the Minister to afford a further opportunity to the applicant to deal with particular issues. If, however, the Minister becomes aware of information which is personal to the applicant and which might lead the Minister to disbelieve some critical information supplied by the applicant, it may be necessary for the Minister to expose that information to the applicant and give the applicant the opportunity of responding to it before making a decision.
Under s 499 of the Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about performance of those functions or the exercise of those powers. Those directions must not be inconsistent with the Act or the Regulations made under it. The person or body to whom the directions are given must comply with them.
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction Number 65” and applies to the decision made in relation to the visa of the sort held by the applicant.
6.1 of the Direction sets out the objectives of the Act. Relevantly it provides:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 provides general guidance to the decision maker, relevant to this case is paragraph 6.2(3) which provides:
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA.The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles which must be applied when determining whether or not the visa cancellation should be revoked are set out in paragraph 6.3 of the Direction which relevantly provides as follows:
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 vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
Section 2 of the Direction explains how to exercise the discretion and provides as follows:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
a) …
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)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.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
The primary considerations are set out in Part C of the Direction as follows:
13. Primary considerations — revocation requests
…
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 338 at [38], North ACJ said that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revocation and if satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.
I note that the factors to which the Minister can have regard are not confined by the statute subject to Peko-Wallsend principles: BSJ16 v Minister for Immigration and Border Protection [2017] FCAFC 78 at [30].
PROTECTION OF THE AUSTRALIAN COMMUNITY: a primary consideration
When considering protection of the Australian community, decision makers are to 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.[4]
[4] 13.1(1) of Direction No 65.
As a decision maker I am also to 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.[5]
[5] 13.1(2) of Direction No 65.
The Nature and Seriousness of the Conduct
In considering the nature and seriousness of the applicant’s criminal offending or other conduct to date, I am to have regard to factors including those set out in paragraph 13.1.1(1) of Direction No 65. The factors relevant to the applicant are:
·The sentences imposed by the courts for his crimes;
·The frequency of the applicant’s offending and whether there is any trend of increasing seriousness;
·The cumulative effect of repeated offending;
·Whether the applicant has re-offended since being formally warned, or since otherwise made aware, in writing, about the consequences of further offending in terms of the applicant’s migration status.
I turn to consider these factors now.
There have been numerous and regular sentences of imprisonment imposed upon the applicant commencing soon after he arrived in Australia as a 16 year old in 1986. The first was imposed by the District Court of South Australia on 4 September 1989 for attempted false pretences (imprisonment 8 months) and building break and felony (imprisonment 10 months concurrent). The offences resulting in imprisonment are set out in the Table below.

Court Court date Offence Court result

District Court of SA 4 Sept 1989 Attempted false pretences and building breaking and larceny Imprisonment 10 months concurrent

District Court of SA 10 Nov 1989 Forgery and uttering Head sentence: imprisonment 30 months

District Court of SA 22 Feb 1991 Building breaking and felony, receiving, larceny, unlawful possession Head sentence: 59 months 16 days imprisonment

Holden Hill Magistrates Court 29 Jan 1992 Building breaking and felony Imprisonment 18 months

Adelaide Magistrates Court 9 Dec 1993 Larceny, false pretences and fraud Head sentence: 6 years 1 month 3 days

Adelaide Magistrates Court 11 Oct 1995 Larceny Imprisonment 6 weeks

Supreme Court of South Australia 15 Dec 1995 Larceny
Imprisonment 4 weeks

Supreme Court of SA 11 Mar 1996 Unlawful possession, false pretences, receiving and break and enter building and commit offence Head sentence: 6 years 9 months 5 days imprisonment

Holden Hill Magistrates Court 3 Jun 2004 Common assault Imprisonment 12 days

Elizabeth Magistrates Court 23 Aug 2004 False pretences Imprisonment 7 months

Hay Local Court 8 Jul 2008 Supply cannabis of commercial quantity Imprisonment 18 months

Adelaide District Court 5 Mar 2010 Attempt/trafficking controlled drugs Imprisonment 2 years

Adelaide District Court 28 Jan 2014 Breach of recognizance Imprisonment 1 year 8 months

District Court of SA 28 Jan 2014 Cultivate a controlled plant, possess prescribed equipment and Interfere with electricity meter Imprisonment 2 years

The above table shows that between 1989 and 2014 the applicant was sentenced to a term of imprisonment on 13 separate occasions. In the period 1989 to 1995 the applicant was habitually committing offences involving larceny, building breaking and felony and receiving. In March of 1996 he was convicted in the Supreme Court of South Australia for unlawful possession, false pretences, receiving and break and enter building and commit offence for which he received a head sentence of 6 years 9 months and 5 days imprisonment. There were two common assault charges in 2004 and numerous traffic offences in the period from 2003 to 2008. The convictions for drug related offences in the period 2008 to 2014 indicates a trend of increasing seriousness. His failure to plead guilty and his numerous appeals during this period indicate a lack of remorse and a failure to accept responsibility for his actions and to respect the judicial institutions. His breach of recognisance indicates a blatant disregard of the law.
The seriousness and frequency of the applicant’s criminal offending was noted by Judge Muscat in his sentencing remarks on 28 January 2014 which included as follows:
It is obvious from your criminal record that you have very little regard for the law.
…
As I have already observed, you have a very lengthy criminal record resulting in your serving countless sentences of imprisonment over the years. You have also been treated leniently from time to time, especially of late. I regret to say the leniency this Court has shown you in the past in terms of your sentencing has evaporated.
…
In my view, you have reverted to criminal behaviour of a similar nature to that which you were released upon the recognisance, although perhaps not to the same extent.
Taking into account the nature of your breach, which is commercial drug offending, … you now must serve in full the sentence remaining of 20 months imprisonment.
…
You will be imprisoned for a period of two years. I consider your prospect of not offending again to be poor, based on your history and failure to acknowledge your guilt.
In conclusion, the Courts have considered it appropriate to impose significant custodial sentences on the applicant which is an indication of the seriousness of his offending. There has been a high frequency of offending which first commenced when the applicant was about 18 years of age and continued through until he was about 41 years old. The trend, if anything, is of increasing seriousness of offending. The cumulative effect of the repeated offending is very significant.

The applicant has reoffended repeatedly and by committing serious drug related offences since being warned of the consequences of further offending in terms of his migration status. As far back as 28 May 1993 the applicant received a formal warning, both orally and in writing that he had rendered himself liable to deportation. The applicant was then ordered by the Minister for Immigration and Multicultural Affairs to be deported but this order was subsequently set aside on 6 September 1999 after a hearing in the Administrative Appeals Tribunal. The failure of the applicant to heed warnings was raised in the reasons for decision of Deputy President Burns who said:
42 The applicant’s criminal history can only be described as appalling in terms of its repetitious nature and the applicant’s persistent failure to heed warnings which have been given to him from time to time. …
43 Compounding his appalling record and failure to heed warnings is the fact that after the commission of the deportable offences, the applicant received a formal warning about the risk of deportation which he disregarded in the course of multiple instances of re-offending. … In addition, the applicant has disregarded other warnings given to him from time to time, including multiple occasions on which he has disregarded conditions of his parole and conditions of home detention, resulting in him being returned to custody. This clearly indicated a propensity on his part in the past to pay little regard to warnings and to the law.
The order for deportation and its subsequent setting aside constituted a warning of the highest degree. The fact that the applicant did not heed that warning does not reflect well on his character. Further, the applicant was given another formal warning by letter dated 4 September 2008 from the Department of Immigration and Citizenship warning expressly that any further criminal convictions could result in fresh consideration of the cancellation of his visa. The consequences of visa cancellation were expressly stated to include removal from Australia, and in certain cases, bars on re-entering Australia.
The applicant was cross examined with respect to the 2008 letter and said:
I don’t recall receiving the letter, but if I had, it would have made no difference.
This is a candid admission that the applicant was aware of the consequences of reoffending but nevertheless proceeded to do so.
I note that with the exception of the common assault involving the karate kick in August 2002 the offences did not involve any violence. However, it is very serious to continually break into domestic residences thereby causing the occupants to be afraid for their safety and security. With respect to the drug related offences, the impact on the community is well documented. The applicant continued to offend well beyond his youth. Taking into account the extended period over which the offending occurred and the frequency of offending during that period, the impact on victims and the numerous warnings of the consequences of reoffending, I conclude that the nature and seriousness of the applicant’s conduct is at the upper end of the scale and weighs extremely heavily against the applicant in terms of his request for a revocation of the decision to cancel his visa.
One of the principles that provide a framework within which I am to approach my task of deciding whether to revoke a mandatory cancellation order under s 501CA is that being able to remain in Australia is a privilege conferred 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.[6] The applicant has failed to live up to this expectation in all regards.
The risk to the Australian community should the applicant commit further offences or engage in other serious conduct.
[6] Paragraph 6.3(1) of Direction No 65.
Paragraph 13.1.2(1) of Direction No 65 provides that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I am to have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.
In considering the risk to the Australian community, I must have regard to, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and
(b)the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.[7]
[7] Paragraph 13.1.2(2) of Direction No 65.
There is no doubt that if the applicant were to continue to offend as he has done in the past then there would be an unacceptable level of harm to the Australian community. This is a factor that weighs heavily against the applicant.
With respect to the likelihood of the applicant engaging in further criminal or other serious conduct, I take into account his constant reoffending in the past despite warnings but also, in the applicant’s favour, the apparent stability and good impact of the applicant’s changed circumstances arising principally from his relationship with Ms H.
The most damaging evidence for the applicant on the risk of his reoffending is that of the sentencing judge in his remarks made on 28 January 2014 that:
… I consider your prospects of not offending again to be poor, based on your history and failure to acknowledge your guilt. Having said that, at least you have not reoffended since the later offences in 2011 and you seem to be finally determined to change your life.
I accept and adopt the above remarks made by Judge Muscat. The factors that go against the applicant on the question of reoffending are, his poor history and his failure to acknowledge his guilt by pleading not guilty and lodging appeals. In his oral testimony, the applicant accepted the seriousness of his misconduct, expressed remorse for it and said that he had changed his ways. I have difficulty accepting these expressions of remorse and intent because the applicant has made similar expressions in the past and reneged on them. In particular, the applicant made similar claims before the Tribunal in 1999 as recorded in the reasons for decision as follows:
44… The Tribunal is also mindful of the applicant’s claims that he underwent a process of maturing whilst he was serving his last custodial sentence and has, in effect, resolved to turn over a new leaf.
…
46 In considering the prospects of further rehabilitation which may be achieved by the applicant, the Tribunal is also mindful of the applicant’s claims before the Tribunal as to the strength of his resolve not to commit further offences, his desire to be free and not to return to prison and his newfound sense of responsibility towards his finances and the care of his son, claims with the Tribunal accepts are genuinely held by him. …
The Tribunal in 1999 was prepared to accept the claims being made by the applicant and consequently formed the view that the risk of recidivism was low. Subsequent events revealed the falsity in these claims or, at best for the applicant, if they were genuinely made at the time, no ability on the part of the applicant to adhere to them.
In more recent times at the sentencing hearing before Muecke J in the District Court on 5 March 2010, a report from the psychiatrist Dr David Kutlaca dated 29 June 2009 was tendered which referred to the applicant’s “progress to date”. The sentencing judge also referred to a report dated 14 December 2009 from “Exist in Harmony” in which the author said that the applicant has demonstrated that he can respond to intervention with strong results and overcome adversity. Once again these statements did not turn out to be true when the applicant, so soon after being released from prison in December 2010, returned to a life of crime in the commercial drug trade in 2011. This was despite the clear warning given by Muecke J in the final stages of his sentencing remarks:
…you are required to sign a recognisance and an order. I have explained what the terms of imprisonment are and that you will be released after nine months provided you sign this recognisance. The consequences that may follow if you fail to comply with the conditions of the bond is that you may have to serve the full term of my sentence of imprisonment of two years and five months.
As previously stated, the applicant breached his recognisance and was returned to prison in January 2014.
There is some evidence that supports the applicant’s claim that he has turned over a new leaf. The psychologist, Mr Maroulis prepared a report dated 8 December 2011 based upon his treatment on and off for a number of years for various injury related matters, including criminal charges. He concluded that the applicant is attempting to rehabilitate himself and that he has demonstrated a sincere remorse for his previous criminal wrongdoings. He concludes that the applicant has resolved his personal problems with insight and skills acquisition and wishes to pursue a life without drugs and a criminal record.
The report from Dr Kutlaca dated 6 December 2011 is more guarded when he is asked whether the applicant is over his problems and wishes to pursue a life without drugs and a criminal record. Dr Kutlaca said that “on balance, there is now cause for optimism” as the applicant has concluded he is the only individual effectively responsible for his autistic son’s further development.
It is interesting to note that neither Mr Maroulis nor Dr Kutlaca refer in any way to the relationship with Ms H and her two children which, on the evidence of Ms H, commenced in a meaningful way from about April 2011. If that were the case, and this relationship was having a stabilising and positive effect on the applicant (as claimed by the applicant and Ms H) then one would have expected mention to have been made of it in these medical reports from December 2011. Nor is there any mention of Ms H in the very detailed assessment of the applicant and the relationships that are important to him in the report dated 22 November 2011 from Exist in Harmony.
There is mention of Ms H in a letter from Legal Services Commission dated 21 December 2011 written on the instructions of the applicant in response to the notice of intention to consider cancellation of his visa. Ms H is described as a girlfriend with whom the applicant enjoys an affectionate relationship, although not living together. Attached to the Legal Services Commission letter is a letter from Ms H dated 7 November 2011. The letter describes the applicant as supportive, trustworthy, reliable and loyal and refers to the positive effect that the applicant has on her two sons.
I am prepared to accept that the reason for Ms H and her children not being mentioned in the medical reports is that the relationship between the applicant and Ms H had not developed to such a stage as at December 2011 that it warranted a mention for the purpose of the questions being asked of the psychologist and psychiatrist in December 2011. At that stage it was the relationship with the applicant’s autistic son that provided the background to the positive statements with respect to the applicant.
I take into account that the applicant did not reoffend in the period of 2012 and 2013. However, the applicant had clearly not accepted full responsibility for his criminal conduct because he was still pursuing an appeal against the convictions for drug related offences.[8]
[8] See the judgement of the Sulan J [2013] SASC 79 dated 5 June 2013.
I have no doubt that the relationship with Ms H did develop over time into what is being described by both the applicant and Ms H, as a very loving and supportive relationship. This can only have a positive influence on the applicant and improve his chances of not reoffending. Further, I do not doubt the strength of the bond between the applicant and Ms H’s two children as attested by them all. Again, this can only have a positive influence on the applicant. Whilst accepting the positive impact Ms H and her children have had upon the applicant, I do note that there is very little assessment of an independent nature as to the impact on the applicant of that relationship. In that regard there is the letter from Dr Kutlaca dated 9 June 2015 which says that the applicant has been in a positive relationship with his present partner for the past several years.
In conclusion, the relationship of dependence that the applicant enjoys with his autistic son and Ms H and her two sons significantly reduce the likelihood of the applicant engaging in further criminal or other serious conduct. Those relationships are factors that weigh in favour of the applicant in terms of his application. However, given the sentencing remarks of Muscat J and the history of recidivism, I am not able to dismiss the likelihood of further criminal conduct. The apparently stable marital relationship enjoyed by the applicant in 1999 was one of the factors that influenced the Tribunal to set aside the order for deportation. The fact that that relationship subsequently broke down suggests that I should not place too much weight on the positive effects of the current relationship with Ms H. That relationship must also be seen in the context of the independent reports from November and December 2011 which made no mention of it and which suggest at most that the period of a meaningful relationship whilst the applicant was in the community was about 2 years in duration, namely during 2012 and 2013.
I would conclude that this primary factor relating to risk to the Australian community weighs against the applicant.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION: a primary factor
I am required by paragraph 13.2(1) of Direction No 65 to make a determination about whether revocation is, or is not, in best interests of any minor children. This consideration does not apply to the applicant’s autistic son because he is now 18 years old.
I am to consider the nature and duration of the relationship between the child and the applicant, but in the case of Ms H’s children less weight is generally to be given because the relationship is non parental.[9] I consider that meaningful contact existed between the applicant and Ms H’s children for a period of just over two years. I accept that the nature of that relationship was very affectionate and supportive. I accept fully the evidence given by the children about that positive relationship noting that the children were not cross examined with respect to the letters they had written or the oral testimony they gave. I also accept the evidence of Ms H and the applicant with respect to the positive effect of this relationship on the children and in particular the fact that the applicant became a male role model and father-like figure to the children.
[9] Paragraph 13.2(4)(a) of Direction No 65.
I accept that if the relationship between the applicant and Ms H were to continue then the applicant would play a significant and positive parental role in the future with respect to the children, although I note that the oldest child is to turn 18 in April of next year.[10]
[10] See paragraph 13.2(4)(b) of Direction No 65.
I consider that the likely effect of separation from the applicant would have a detrimental effect on the children but I do take into account that the children are currently cared for in a loving environment by Ms H. Nevertheless, the loss of a positive male influence on the life of the children can only be negative. I take into account the views expressed by the children that they do not want the applicant to be deported and that they consider they will be worse off without the applicant.[11]
[11] See paragraph 13.2(4)(f) of Direction No 65.
In conclusion, and in considering the best interests of each child individually, I determine that revocation of the decision cancelling the applicant’s visa would be in the best interests of each child, however, given the age of the older child and the relatively limited period of meaningful contact between the children and the applicant, I place less weight on this factor. Whilst the applicant has no doubt had a positive influence on each child, the extent of that impact must be considered in light of the fact that the applicant only came into their lives at the respective ages of 11 years and 6 years old before being removed from the community at their respective ages of 13 and 8 years old. This factor weighs in favour of the applicant.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY: a primary factor
In making my decision I am to take into account that the Australian community expects non-citizens to obey Australian laws while in Australia and that it may be appropriate not to revoke the mandatory visa cancellation where a non-citizen has breached, or where there is an unacceptable risk that they will breach, this trust or where the non-citizen has been convicted of offences in Australia.[12]
[12] See paragraph 13.3(1) of Direction No 65.
In considering the expectations of the Australian community I am to take into account the principles in paragraph 6.3 of Direction No 65 and in particular that:
·being able to 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;
·the Australian community expects that the Australian Government can and should cancel their visas, if they commit serious crime in Australia; and
·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 but that 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.
There is no doubt in my mind that the applicant’s case is one where it may be appropriate to not revoke the mandatory visa cancellation because of the offences for which the applicant has been convicted in Australia. The applicant has failed to meet the expectation that the Australian community has that non-citizens obey Australian laws while in Australia. The serious and repeated nature of the crimes committed by the applicant well beyond his youth makes this a case in which the Australian community would expect that the Australian Government should cancel the applicant’s visa. The applicant has abused the privilege of remaining in Australia by not living up to the stated expectations of being law abiding and having respect for Australia’s law enforcement framework. That privilege has also been abused by failing to live up to the expectation that a non-citizen will not cause harm to individuals or the Australian community.
Whilst it is noted that Australia may afford a higher level of tolerance of criminal behaviour for a non-citizen who has lived in the Australian community for most of their life, as has the applicant, that tolerance in this case would be significantly diminished by the fact that the applicant commenced his offending soon after arriving in Australia and has been in and out of jail throughout the whole period of his stay in Australia. As a result, the applicant could not be said to have contributed in any positive way to the Australian community and there was little or no evidence to that effect given to the Tribunal. The only exception would be the positive impression created by the applicant on his employer who wrote a positive reference for him.

In conclusion, it is my determination that the Australian community would expect the applicant to be unsuccessful with respect to his application to revoke the mandatory visa cancellation. This is a factor that weighs very heavily against the applicant.
OTHER CONSIDERATIONS
Paragraph 14 of Direction No 65 provides for other considerations that I must take into account in deciding whether to revoke the mandatory cancellation of a visa. Those considerations in so far as they are relevant are:
·International non-refoulement obligations; and
·Strength, nature and duration of ties.
With respect to international non-refoulement obligations I note the report entitled “International Treaties Obligations Assessment” dated 20 December 2016 which found that Australia does not have non-refoulement obligations to the applicant. I accept this finding and I note that there was no real opposition to this finding made by counsel for the applicant.
With respect to the strength, nature and duration of ties to Australia it is accepted that the applicant arrived in Australia as a child at the age of 16 and has lived here since 1986. This equates to a majority of his life. In terms of the weight to be given to this factor I note that less weight is to be given when the non-citizen began offending soon after arriving in Australia, which is the case of the applicant. As set out above, his commission of serious offences commenced in 1989 less than three years after he arrived in December 1986.
In so far as more weight should be given under paragraph 14.2(1)(a)(ii) of Direction No 65 to the time that a non-citizen has spent contributing positively to the Australian community, I find that the applicant has not spent any significant time contributing positively to the Australian community.
With respect to the strength, duration and nature of any family or social links with Australian citizens that I am required to take into account by paragraph 14.2(1)(b) of Direction No 65, I repeat what I have previously said about the strength, duration and nature of the applicant’s relationship with his son, Ms H and her children. I repeat my finding that the effect of non-revocation on the applicant’s autistic son is significant.
I also accept that the effect of non-revocation on the applicant’s former wife would be detrimental due mostly to the fact that she would be left to look after the autistic son without the support that was provided by the applicant. The letter written by email from the applicant’s former wife dated 9 February 2016 states that she is currently having issues with her son who has always been difficult with everything. She says that the son is becoming very aggressive towards her and that she is unable to have him in her home any more and that she needs his father to take over the parenting role and that the son listens to his father more so than to herself. This is a very sad situation and it would be extremely regrettable if the son was sent to a foster home as was foreshadowed by his mother. This is a factor that weighs heavily in favour of the applicant.
CONCLUSION
I have weighed up the factors for and against revocation and I am not satisfied that the cancellation decision should be revoked. I find that the decision of the delegate of the Minister should be affirmed. I note that the primary factors, when considered together weigh against the applicant. I do not underestimate the consequences of this decision to those affected by it. I am particularly aware of the detrimental effect that this decision will have on the applicant’s autistic son, although I note that he is now an adult and from the short time during which he gave his evidence I gained the impression that he had some inner strength which I am hopeful will assist him to cope with the undoubted disappointment he will feel by this decision. I am also aware of the impact of this decision on Ms H who, to a significant degree, will lose a loved one. The hope that she and her children held for the return of the applicant to them is no more. I wish them well in dealing with their disappointment.
I am aware of the unfortunate effect of this decision on the applicant. He will now be forced to return to a country which is not familiar to him. Further, he will be forced to live without those whom he loves. This is a very sad consequence for the applicant but it has to be said that he has only brought this upon himself. His conduct did not live up to the expectations of the Australian community. He was given a second chance back in 1999 by the Administrative Appeals Tribunal and he was shown leniency on numerous occasions when being sentenced by our judicial system. He continued to offend and has shown little respect for the rule of law and the Australian institutions which impose it. For that, he suffers a major sacrifice.
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 142 (one hundred and forty-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member Britten-Jones

.....................[Sgd]................................................
Administrative Assistant
Dated: 15 September 2017

Date(s) of hearing: 29 & 30 August 2017

Counsel for the Applicant: Mr S Kikkert

Advocate for the Applicant: Ms M Le

Solicitors for the Applicant: Marion Le Consultancy

Advocate for the Respondent: Mr P d'Assumpcao

Solicitors for the Respondent: Australian Government Solicitor

Court	Court date	Offence	Court result
District Court of SA	4 Sept 1989	Attempted false pretences and building breaking and larceny	Imprisonment 10 months concurrent
District Court of SA	10 Nov 1989	Forgery and uttering	Head sentence: imprisonment 30 months
District Court of SA	22 Feb 1991	Building breaking and felony, receiving, larceny, unlawful possession	Head sentence: 59 months 16 days imprisonment
Holden Hill Magistrates Court	29 Jan 1992	Building breaking and felony	Imprisonment 18 months
Adelaide Magistrates Court	9 Dec 1993	Larceny, false pretences and fraud	Head sentence: 6 years 1 month 3 days
Adelaide Magistrates Court	11 Oct 1995	Larceny	Imprisonment 6 weeks
Supreme Court of South Australia	15 Dec 1995	Larceny	Imprisonment 4 weeks
Supreme Court of SA	11 Mar 1996	Unlawful possession, false pretences, receiving and break and enter building and commit offence	Head sentence: 6 years 9 months 5 days imprisonment
Holden Hill Magistrates Court	3 Jun 2004	Common assault	Imprisonment 12 days
Elizabeth Magistrates Court	23 Aug 2004	False pretences	Imprisonment 7 months
Hay Local Court	8 Jul 2008	Supply cannabis of commercial quantity	Imprisonment 18 months
Adelaide District Court	5 Mar 2010	Attempt/trafficking controlled drugs	Imprisonment 2 years
Adelaide District Court	28 Jan 2014	Breach of recognizance	Imprisonment 1 year 8 months
District Court of SA	28 Jan 2014	Cultivate a controlled plant, possess prescribed equipment and Interfere with electricity meter	Imprisonment 2 years

Date(s) of hearing:	29 & 30 August 2017
Counsel for the Applicant:	Mr S Kikkert
Advocate for the Applicant:	Ms M Le
Solicitors for the Applicant:	Marion Le Consultancy
Advocate for the Respondent:	Mr P d'Assumpcao
Solicitors for the Respondent:	Australian Government Solicitor