GXNF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

[2023] AATA 3247

GXNF and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3247 (25 September 2023)

Division:GENERAL DIVISION

File Number:          2023/4856

Re:GXNF

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Member R Maguire

Date of Decision:               25 September 2023

Date of Written Reasons:      12 October 2023

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 3 July 2023 not to revoke the cancellation of the Applicant’s visa

...................................[SGD]................................

Member R Maguire

Catchwords

MIGRATION – Non-revocation of mandatory cancellation of a Class BA Subclass 200 Refugee (Permanent) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – decision under review affirmed

Legislation

Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulation 1994 (Cth)

Cases

Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348

YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

REASONS FOR DECISION

Member R Maguire

25 September 2023

INTRODUCTION

1. By application made on 6 July 2023, the Applicant seeks the review of a decision[1] made by a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) dated 3 July 2023 made pursuant to s 501CA(4) of the Migration Act 1958 (Cth) (‘the Act’), not to revoke the decision made on 2 August 2022 under s 501(3A) of the Act to mandatorily cancel the Applicant’s Class BA Subclass 200 Refugee (Permanent) visa.

   [1] G1, p 4.

2. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of a visa if the person made representations within the relevant time period provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg 2.52), and the decision-maker determines that the Applicant passes the “character test”, or, as provided under s 501CA(4)(b), there is another reason why the mandatory cancellation should be revoked. The Minister accepted that the Applicant had made the necessary representations within the prescribed period.

3. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under

   
   

   s 501(6)(a) of the Act the person has a substantial criminal record as defined by s 501(7). Relevantly, s 501(7) states:

   7For 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;...

4. The term “imprisonment” is defined to include any form of punitive detention in a facility or institution: s 501(12) of the Act.

5. On 21 June 2022, the Applicant was sentenced to three years’ imprisonment.[2]

   [2] G1, p 35.

6. On 2 August 2022, whilst the Applicant was in custody serving a term of imprisonment the Respondent, acted pursuant to s 501(3A) of the Act, mandatorily cancelled the Applicant’s visa because he did not pass the character test as he had a substantial criminal record as provided in s 501(7)(c) in consequence of being sentenced to 12 months or more imprisonment. Notice of this decision was given by hand to the Applicant on 2 August 2022.[3]

   [3] Ibid, pp 127-128.

7. In accordance with reg 2.52(2)(b) the Applicant was invited in accordance with s 501CA(3)(b) of the Act to make representations to the Minister about revoking the cancellation decision within 28 days after he had received the notice. The Applicant made representations to the Minister within the period and in the manner specified.[4]

   [4] Ibid, p 73-76.

8. Following the decision pursuant to s 501CA(4) of the Act, the Applicant made the present application to this Tribunal for a review of that decision.[5] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.

   [5] Ibid, pp 4-6.

9. By operation of s 500(6L) of the Act, when an application is made to the Tribunal for a review of a decision under s 501CA(4) of the Act not to revoke a decision to cancel a visa, and the decision relates to a person in the migration zone, if the Tribunal has not made a decision within the period of 84 days after the day on which the person was notified of the decision under review in accordance with 501G(1), the Tribunal is taken at the end of that period to have made a decision under s 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (“AAT Act”) to affirm the decision under review. At the hearing, it was agreed that for the purposes of this review, and s 500(6L)(c), the 84th day is 25 September 2023. It was therefore open to the Tribunal to make a decision prior to midnight, on that date.

   ISSUES

10. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:

    4The 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.

11. The Applicant has made the representations required by s 501CA(4)(a) of the Act. Section 501CA(4)(b)(ii) requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision to assess if there is another reason why the cancellation decision should be revoked. This assessment is made by reference to the representations made by the Applicant which the Tribunal is required to read, identify, understand and evaluate.[6]

    [6] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, at [22] and [36].

12. If the Tribunal exercises the power conferred by s 501CA(4) and in giving reasons makes a finding of fact, the Tribunal must do so based on some evidence or other supporting material, rather than no evidence or no material, unless the finding is made in accordance with the Tribunal's personal or specialised knowledge or by reference to that which is commonly known. It is open to the Tribunal to adopt the accumulated knowledge of the Department.[7]

    [7] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].

13. As provided in s 501CA(4)(b) of the Act, there are therefore two issues presently before the Tribunal:

    ·whether the Applicant passes the character test; and

    ·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.

14. If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[8]

    [8] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Viane [2021] HCA 41 at [17]-[20].

    DOES THE APPLICANT PASS THE CHARACTER TEST?

15. The parties are in agreement that the Applicant does not pass the character test by virtue of his substantial criminal record.[9]

    Is there another reason for the revocation of the cancellation of the Applicant’s Visa?

    [9] Transcript, p 5, lines 14-18; R1, p 7, [28].

    Ministerial Direction No. 99

16. In considering whether to exercise the power in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction” or “Direction 99”) has application.[10] The Direction provides guidance for decision-makers on how to exercise the power in s 501CA(4) of the Act.

    [10] On 3 March 2023, the former applicable direction, Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 99.

17. Relevantly, the Direction states that:[11]

    “Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”

    [11] Direction No 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction/ Direction 99”), page 5, Part 2, 6 – Making a decision.

18. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

    1Australia 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.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance or criminal or other serious misconduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

19. Paragraph 7(1) of the Direction provides that in applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight. Paragraph 7(2) provides that primary considerations should generally be given greater weight than the other considerations. Paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.

20. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia;

    (5)expectations of the Australian community.

21. Paragraph 9(1) of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)links to the Australian community.

22. The Tribunal notes the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]

    “…Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply”.

    [12] [2018] FCA 594 at [23].

23. The Tribunal now turns to addressing these considerations.

    Applicant’s history of offending and other serious conduct

24. The totality of the Applicant’s offending may be summarised in the following table:

Court	Date	Offence	Sentence
Queensland District Court	June 2022	Fraud – dishonestly cause detriment value of/over $30,000 but less than $100,000	Conviction recorded Imprisonment: 3 years
Queensland Magistrates Court	May 2022	Possess utensils or pipes etc for use	Conviction recorded Not further punished
Queensland Magistrates Court	February 2022	Enter premises and commit indictable offence	Conviction recorded Community service time: 60 hours
Queensland Magistrates Court	May 2021	Fraud – dishonestly induces delivery of property value of at least $100,000	[Result not recorded in Check Results]
Queensland Magistrates Court	October 2020	Possessing dangerous drugs (x2) Permitting use of place Possess property suspected of having been used in connection with the commission of a drug offence Possess utensils or pipes etc for use Unlawful possession of suspected stolen property	Conviction recoded Probation period: 12 months
Queensland Magistrates court	August 2017	Possess utensils or pipes etc that had been used Possessing dangerous drugs	Conviction recorded Fined: $600
Queensland Magistrates Court	March 2016	Possess utensils or pipes etc that had been used	Conviction recorded Fined: $650
Queensland Magistrates Court	June 2014	Possessing dangerous drugs	Conviction recorded Fined: $500
Queensland District Court	February 2010	Robbery with actual violence whilst armed Attempted robbery whilst armed	Conviction recoded Imprisonment: 3 years
		Attempted robbery – use/threaten violence Unlawful use of motor vehicles aircraft or vessels – use (x2) Fraud – dishonestly gain benefit/advantage Fraud – dishonestly obtains property from another	Conviction recorded Imprisonment: 12 months
		Possessing dangerous drugs Unlawful use or possession of vehicles	Conviction recoded Imprisonment: 3 months – concurrent
Queensland Magistrates Court	November 2008	Breach of bail condition	Conviction recoded Fined: $75
Queensland Magistrates Court	October 2008	Possess utensils or pipes etc for use	Conviction recoded Fined: $200
Queensland Magistrates Court	July 2008	Fraud – dishonestly obtains property from another	Convicted Community service 50 hours
Queensland Magistrates Court	March 2004	Obstruct police officer	Convicted Not further punished
Queensland Magistrates Court	March 2004	Possession of a knife in a public place	Convicted Not further punished
Queensland District Court	February 2004	Fraud – dishonestly obtains property from another Attempted to dishonestly obtain property from another	Conviction recoded Imprisonment 12 months Wholly suspended for a period of 18 months
Queensland District Court	November 2002	Stealing Attempt to dishonestly obtain property from another	Conviction recorded Imprisonment 18 months Suspended for 2 years & 6 months after serving a period of 6 months
		Breach of probation & community service orders (imposed on 5/01)	Breaches proven Orders set aside Resentenced for original offence(s) Conviction recorded Imprisonment: 6 months – concurrent
		Breach of probation and community service orders (imposed on 5/01)	Breach proven Order set aside Resentenced for original offence(s) No action taken
Queensland Magistrates Court	July 2002	Breach of bail undertaking (3 charges)	On each charge: cause shown
		Breach of bail undertaking Possessing dangerous drugs	Convicted and sentenced imprisonment: 1 month Fined: $200
		Breach of bail undertaking	Convicted Not further punished
		Breach of bail condition (2 charges)	Conviction & not further punished & Convicted & fined $100
Queensland District Court	May 2001	Forgery Fraud – dishonestly obtains property from another (2 charges) Attempted to dishonestly obtain property from another Fail to state correct name/address Possess utensils or pipes etc Dispose of property that may reasonably be suspected of being tainted property (3 charges)	No conviction recorded Probation: 2 years Community service: 140 hours
Queensland Magistrates Court	May 2000	Fraud	No conviction recorded Probation 9 months Restitution: $538
Queensland Magistrates Court	April 2000	Possessing dangerous drugs Possess utensils or pipes etc	Convicted Fined: $900
Queensland Magistrates Court	February 2000	Breach fine option orders (2 charges)	Breaches proven Orders revoked
Queensland Magistrates Court	October 1999	Application for fine option order (x2)	Granted Fine option order Community service 40 hours granted & Granted Fine option order community service 37 hours
Queensland Magistrates Court	May 1999	Possessing dangerous drugs	No conviction recorded Fined: $400
Queensland Magistrates Court	September 1997	Possession dangerous drugs	No conviction recorded Fine: $400
		Possession of pipe used in connection with smoking dangerous drug
		Possessing dangerous drugs

EVIDENCE AT HEARING

1. The totality of the documentary evidence before the Tribunal is recorded in the Exhibit list which is Annexure A to these reasons.

   Applicant’s evidence at hearing

1. In evidence before the Tribunal, the Applicant confirmed that his history of offending was accurately set out in the G documents and the Respondent’s Statement of Facts Issues and Contentions (“SFIC”).

2. He also confirmed that all communications made by him or on his behalf to the Department and the Tribunal were true.

3. Under cross-examination by Ms Allen, the Applicant confirmed that he was born in what was then Yugoslavia, and what is now Bosnia and Herzegovina (herein after referred to as Bosnia) in 1976. He relocated to Croatia in 1994 to escape the war.

4. He came to Australia as a refugee in 1995 at the age of 18, and his criminal offending started in 1997. He was incarcerated for one month in July 2002, and then for a further period of about six months in November 2002 for offences of dishonesty. He was incarcerated in 2010 for a period of two years, and was released after eight months. He was incarcerated again in 2022 for a period of 12 months, and on his release he was placed in immigration detention following the cancellation of his visa.

5. He accepted that he had a lengthy history of drug use which began in 1997.  He started occasional use of cannabis when he was about 25 years old to forget his memories of the war in Bosnia. His usage eventually became daily, and he used it every day when he was not in jail up until his most recent incarceration. He most recently used cannabis on the occasion of the last session of a twelve week program with Drug Arm which was the second time he had gone through that program.

6. He also started using methamphetamine around the same age, initially using one point or .1 gram per week. At the height of his methamphetamine use he was using one point every day. He stopped using it  when he began the 12 week programme. He abstained from drug use each time he was in prison but always reverted to use soon after his release.

7. He blamed PTSD, and his memories and nightmares from the war for his drug use. He is on medication at the moment and it is helping his PTSD and he is not having any more nightmares and coping pretty well.  He used to associate with other drug users.

8. He said he would never offend again. This was his wake up call. Taking drugs was the worst decision of his life and he knew he would never take drugs again. He did not realise previously that taking drugs was a bad decision.

9. He recalled undertaking the Ending Offending program in 2009, but could not recall what he learnt during that program. He also attended two counselling sessions with Ms Dianne Breckenridge in 2011, but stopped because he did not think he needed to see her again.

10. He completed the Drug Arm course on 15 March 2021. He denied using drugs during this course, but then said that he could not recall. He eventually gave up drugs after completing the Drug Arm course for a second time.

11. He was referred to a report of Rebecca Geddes, and confirmed she had reported he was a moderate to high risk of reoffending and needed intense supervision and treatment, and in addition needed a drug prevention program, interpersonal psychological therapy, general treatment for PTSD, and offence-specific intervention.

12. It was put to him that he had not undertaken any of this recommended treatment, and the Applicant replied that he had seen a psychologist for three one hour sessions whilst in detention, and had also engaged with the Smart recovery and was intending to continue to do everything he had to do.  He talks about his life generally from childhood until now. He had PTSD and general counselling. Smart recovery were one hour sessions about giving up drugs, but he could not remember how many he had attended.

13. The three psychologist sessions, together with the Smart Recovery sessions and his medication were the extent of treatment he had received. His medication was  Mirtazapine 45 mg for PTSD. He has been on it for a year, and it had reduced his memories and eliminated his nightmares. He was planning to continue with the psychologist Mr Kong, but has not yet contacted him.

14. If released into the community he would care for his mother who lives in Browns Plains, and do painting work in Salisbury with a company that visited the prison to help people find work when released. He was no longer planning to live with his sister. He has lived with his mother before. He was no longer planning to work in his sister’s business.

15. Prior to his incarceration he was living with his girlfriend as her carer, and she had visited him weekly in prison, but not in detention where a covid vaccination was required. His sister had not visited him there for the same reason.

16. He was planning on taking an apprenticeship as a painter with Aussie Painter Network who had visited the prison.

17. He was referred to a 2010 pre-sentence report of Psychologist Luke Hatzipetrou which reported that his reported that his previous attempts to abstain from problematic peer relations had been unsuccessful, and agreed with that observation.

18. His only family in Australia consisted of his mother, sister, brother-in-law and niece who is aged 18 years.

19. He had reconciled with his mother and sister recently before he went to jail after the relationship broke down previously because of his drug use but could not recall when the relationships had broken down. Their future support was dependent on his abstention from drugs. If he used again the relationship would break down again. During the period of breakdown there was intermittent contact, and he now has contact with them every day. They could not visit him in prison because of distance, and in detention because they are unvaccinated against Covid.

20. He said he planned to care for his mother because of her ill health, and was unable to explain why he had told IHMS psychiatrist, Julian Spencer, that his mother was ‘reasonably healthy’. His mother is in ill health in his personal circumstances form but told IHMS p 24 of 33 pages 21/6/23 that she was reasonably healthy.  He needs to care for her because of her age. His sister assists her when she can.

21. The Applicant said he had been in a relationship with Ms King for about 2 or 3 years. They met through friends about five years ago.  When she had become homeless and was living on the streets she asked him for help. She used to be a drug user but they had not used drugs together. She has been clean from drugs for a number of years. She had not been using drugs when he met her. She had visited him weekly while he was in Palen Creek and talks to her daily on the phone. She has not provided a statement, but her support network had. He had been sole carer for her two years. She had been diagnosed as Bipolar  with schizophrenia.  Her support network Happy Peeps had been caring for her through NDIS while he had been in prison and detention.

22. Regarding his employment history, the Applicant said that he initially worked in a factory for half a year or a year after coming to Australia. He then worked in a restaurant near Brisbane Airport and also cut grass to earn a living. He also had various positions as a factory hand, bartender, car towing, and tiling and painting. He had also worked making paper bags for two and a half years but “never really had a stable position.”  He had never had any trade other than the trade he has now with painting, and he intended to continue to do that as soon as he was released back into the community. He said that he had painted the Palen Creek Prison by himself. All together it took him about a year.

23. His longest period of employment was two and a half to three years. He had a couple of jobs for periods of two or three years. When he was not working, the frauds he committed and some of his Centrelink payments were used to pay for his drugs.

24. The Applicant said that he had no biological children.

25. The Applicant said that he feared for his life if he is returned to Bosnia. He had planned a trip to visit his father, but had changed his mind because he was afraid to go because he was mixed Bosnian and Croatian, and had a Serbian name. He initially said that his father would face the same risks as he did, but then said his father could stay there because he was Croatian. He last had contact with his father about a month ago.

26. He was aware that he could apply for a Protection visa, but was not sure how that would go because there was no more war there. The war had stopped 28 years ago.

27. The Applicant was asked by the Tribunal about his fear of execution on return to Bosnia, and said this was because he had fled the country 28 years ago. It was put to him that no one would remember him after that period, and he replied “I don’t know, I don’t know.”

28. The following exchange then occurred between the Tribunal and the Applicant:

    “MEMBER: You’re not seriously telling me you think you’re going to be executed if you go back, are you?

    APPLICANT: I don’t know. I don’t know how – what they’re going to do, because I don’t trust - - - 

    MEMBER: Do you know of anyone who’s been returned and been executed?

    APPLICANT: No. No.

    MEMBER: Well, what makes you think you’ll be executed?

    APPLICANT: It’s just I’m in the fear. I just – I don’t know. 

    MEMBER: But you don’t know of it happening to anyone else?

    APPLICANT: Not that I know of, yes.

    MEMBER: Okay. Thank you.”

29. He reported in 2011 that he was in contact with friends in Bosnia. He could not recall being in contact with any friends there.  He had other family members there but did not know where they are. His aunty there is his father’s sister. He said that his mother and sister would not be able to provide him with financial support if he was sent back, even though they could provide it if he remained. He was not able to explain why this was the case.

30. On the second day of the hearing, the Applicant told the Tribunal that he had lost his citizenship of Bosnia, but was unable to explain how that had happened, but was “pretty sure” he did not have citizenship of Bosnia, even though he had not been told that by any government, and had not surrendered his citizenship[13].

    [13] Transcript, pp 33-34.

31. The following exchange occurred between the Tribunal and the Applicant:

    “MEMBER: You’ve said in a document in your own SFIC, which is exhibit A1 at paragraph 1, that you’re a citizen of Bosnia and Herzegovina. Is that true or is it false?

    APPLICANT: It is true, but I don’t have the – I am not sure if I have that citizenship.

    MEMBER: You’re playing ducks and drakes, aren’t you? You’re either a citizen there or – you’ve said in writing to the tribunal that you’re a citizen of Bosnia and Herzegovina?

    APPLICANT: Yes, yes, yes, yes.

    MEMBER: Did you lie when you said that?

    APPLICANT: No, I didn’t.

    MEMBER: So it’s true?

    APPLICANT: It’s true.

    MEMBER: You’re also a citizen of Croatia?

    APPLICANT: Yes, that’s correct.”

32. When asked by the Tribunal as to what was the nature[14] of the cruelty to which he was subjected in Croatia, the following exchange occurred[15]:

    [14] The transcript erroneously records the word “name” where it should say “nature”.

    [15] Transcript, p 36 lines 22-47; p 37, lines 1-22.

    “MEMBER: But, I mean, it’s been said that you fear torture, cruel, inhuman or degrading treatment in Croatia, but you weren’t subjected to any torture, cruel, inhuman or degrading treatment in Croatia, were you?

    APPLICANT: They were judging me. Police were searching me because I was – my name was [GXNF].

    MEMBER: Did they torture you?

    APPLICANT: No, they cannot torture me.

    MEMBER: Did they treat you cruelly?

    APPLICANT: They treat me cruelly. They - - - 

    MEMBER: What was that? What was the name [nature] of the cruelty?

    APPLICANT: They were just telling me, like, ‘What are you doing here? You’re a Serbian, get out of here.’

    MEMBER: You have a broad definition of ‘cruel’. You weren’t subjected to any inhuman or degrading treatment in Croatia, were you?

    APPLICANT: Well, they were – they were just – you know, they were talking to me in that kind of manner that I was feeling fear for my life, talking everything to me, like, bad, and that’s why I - - - 

    MEMBER: So because of the way they spoke to you, you’ve been prepared to say that you were subjected to or you feared torture, cruel, inhuman or degrading treatment in Croatia because of the way they spoke to you?

    APPLICANT: Well, they spoke to me in that way, but I was just afraid of them. 

    MEMBER: Look, I understand you were in a warzone in Bosnia and Herzegovina, but I didn’t hear you talk about being tortured. I didn’t hear you being talked about – talk about being subjected to any cruel treatment there?

    APPLICANT: No. .

    MEMBER: I didn’t hear you talk about being subjected to any inhuman treatment or degrading treatment there. Did any of that happen?

    APPLICANT: No, it didn’t happen (indistinct).

    MEMBER: It didn’t happen. You haven’t actually been physically – subjected to any physical torture in either country?

    APPLICANT: No.

    MEMBER: Or any actual cruel, apart from the manner in which you were spoken to - - -?

    APPLICANT: Yes.

    MEMBER:  You haven’t been subjected to any cruel treatment in either country, have you?

    APPLICANT: No.

    MEMBER: You haven’t been subjected to any inhuman treatment in either country, have you?

    APPLICANT: No.

    MEMBER: You haven’t been subjected to any degrading treatment in either country, have you?

    APPLICANT: No. But I just felt fear. 

    MEMBER: You’ve told Dr Yoxall that you have been or that you feared all this?

    APPLICANT: Yes, I did. I have fear of that.”

    Evidence of Dr Jacqui Yoxall

33. Dr Yoxall affirmed her report before the Tribunal, and told the Tribunal that the Applicant was likely to reoffend if he relapsed to drug use and his mental health was not in order and managed. It was a long time since the Applicant had offended violently, and this lessened the likelihood of violence in his reoffending which was more likely to be dishonesty and drug related offending. She confirmed protective factors were abstinence from drug use, treatment of his PTSD, stable employment, accommodation, family support and pro-social connections. If any of those fell away that would increase his risk of reoffending.

34. Coming from a period of over 20 years of methamphetamine dependence and untreated PTSD, the Applicant was going to need substantial support in the community. He was presently well in terms of PTSD.

35. Prison and detention were some of the most stressful environments a human being can go through. But the stresses in the community were different. It would be challenging, particularly for somebody that has not done those things in a consistent manner for a long period of time. The Applicant was going to need close support from family members.

36. Where possible, it was always beneficial for somebody to go into and transition back to community via some sort of drug and alcohol relapse program. In a perfect world he would go into a residential program which can be very hard to get into, and cost a lot of money. For most people the cost was prohibitive. She confirmed that methamphetamine is one of the most difficult drug addictions to break.

    CONSIDERATION

37. The Tribunal now turns to the specific considerations of Direction 99. In doing so, the Tribunal does not propose to restate the extensive evidence set out above, and which forms the basis for its reasons.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

38. In considering this Primary Consideration 1, paragraph 8.1 of the Direction compels decision-makers to keep in mind 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. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

39. In determining the weight applicable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers 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.

    Application of Factors in Paragraph 8.1.1(1) of the Direction

40. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)     violent and/or sexual crimes;

    (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the possession they hold, or in the performance of their duties;

    (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv) where the non-citizen is in Australia, 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, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

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

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)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).

    (h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia

    Sub-paragraph (a) of paragraph 8.1.1(1)

41. The applicant has been convicted of crimes of a violent nature against a woman, in the form of a video store robbery whilst armed with a butcher’s knife on 8 December 2008. An apparent threat of violence is implicit in the overt carriage of such a weapon in the course of the commission of an offence, and is sufficient for that conduct and crime to be regarded as violent notwithstanding an absence of actual violence[16]. The same day there was a physical struggle with another woman when he attempted to rob her of her handbag.

    [16] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [21-22].

42. There was a further crime of violence committed the same day when the Applicant again produced the knife in the course of an attempted robbery of a corner store when his intended victim produced a pick handle causing the Applicant to flee.

1. Sub-paragraph (a) of paragraph 8.1.1(1) weighs heavily against revocation.

   Sub-paragraph (b) of paragraph 8.1.1(1)

2. The Applicant has a conviction for Obstruct Police for which he was not further punished, arising from an incident on 20 August 2001. Such a conviction is serious as regards paragraph 8.1.1(1)(b)(ii) of the Direction.

3. Sub-paragraph (b) of paragraph 8.1.1(1) weighs heavily against revocation.

   Sub-paragraph (c) of paragraph 8.1.1(1)

4. This Applicant has been sentenced to serve terms of imprisonment totalling 7 years and four months. He was sentenced in November 2002[17], February 2004[18], February 2010[19], and June 2022[20]. In 2002, his honour Noud DCJ observed that the Applicant’s criminal history was “regrettably building up[21]” and urged him to continue his rehabilitation. In February 2010, his honour Griffin DCJ referred to the Applicant’s “bad criminal history” which was “bad because of the number of offences, not by virtue of the level of offending”, but which were “an escalation” in his behaviour. His honour noted that the Applicant had undertaken courses whilst incarcerated[22]. The Applicant abstained from dishonesty offences, but not drug offences between 2008 and 2016.

   [17] G1, p 61.

   [18] Ibid, p 57.

   [19] Ibid, p 46.

   [20] Ibid, p 40.

   [21] Ibid, p 61.

   [22] Ibid, p 47.

5. Sub-paragraph (c) of paragraph 8.1.1(1) weighs heavily against revocation.

   Sub-paragraph (d) of paragraph 8.1.1(1)

6. The Applicant has, with the exception of about a three year period prior to 2008, been a frequent and serious offender over a period of over two decades. His offending has been consistently serious, and there is no clear evidence of increased seriousness.

7. Sub-paragraph (d) of paragraph 8.1.1(1) weighs heavily against revocation.

   Sub-paragraph (e) of paragraph 8.1.1(1)

8. The Applicant has offended many times, and has used aliases and a weapon in the commission of drug and dishonesty related offences. He has obstructed police, and has demonstrated a business-like approach to his frauds. The imposition of fines, community service orders, probation, and multiple incarcerations have failed to deter him from further offending. He has been able to cease using drugs whilst incarcerated, but has always relapsed into drug use and associated offending not long after return to the community, despite undertaking many courses aimed at rehabilitation whilst incarcerated. His offences of dishonesty have resulted in losses in excess of $140,000 to the community. He has breached court orders, and offended whilst conditionally at liberty. He has been incarcerated on four occasions.

9. Sub-paragraph (e) of paragraph 8.1.1(1) weighs very heavily against revocation.

   Sub-paragraph (f) of paragraph 8.1.1(1)

10. Evidence before the Tribunal does not enliven this consideration.

    Sub-paragraph (g) of paragraph 8.1.1(1)

11. Evidence before the Tribunal does not enliven this consideration.

    Sub-paragraph (h) of paragraph 8.1.1(1)

12. Evidence before the Tribunal does not enliven this consideration.

    8.1.2 The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

13. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

14. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

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

    (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; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    Paragraph 8.1.2(2)(a) The nature of the harm

15. If the applicant were to reoffend by committing further offences, his offending could cause significant financial harm to the community. Such offending has the potential to result in physical and psychological harm to his victims should the Applicant commit further robbery offences whilst armed with a butcher’s knife. Such risk is viewed as very serious.

    Paragraph 8.1.2(2)(b) The likelihood of the non-citizen engaging in further criminal or other serious conduct

16. In an interview with Mr Luke Hatzipetrou, Psychologist on 10 December 2009, which founded a report[23] dated 17 January 2010, the Applicant told him that he has obtained a Blue Card for future employment as a painter. There is scant evidence before the Tribunal that this career plan was ever pursued in any meaningful way whilst the Applicant was at liberty. Neither does the Applicant appear to have used his prior training as a mechanic or his various vocational certificates in fields such as construction, agriculture, basic health care and information technology acquired whilst incarcerated to take gainful employment. He has not shown a capacity to stick to one career path or one job for any longer than two and a half years.

    [23] R2, p 18.

17. Mr Hatzipetrou recorded:

    “Along with his predilection for alias identities, his behaviours reflect anti-social behaviours and poor impulse control. He also exhibits personality traits unlikely to change emotional dysregulation and impaired coping abilities…. Within community settings … GXNF struggled to maintain regular treatment… he will require regular and intense support to develop work appropriate behaviours…

    Finally GXNF has completed several courses since his detention [in December 2008]. He reportedly experiences improvements in physical health. In addition, he has contact with his mother and sister and appeared motivated to pursue and (sic) alternative lifestyle inconsistent with his previous offending behaviour.

    …

    Without appropriate support and treatment, the current findings suggest GXNF is at risk of recidivism and maintaining a criminal career. Moreover, GXNF’s behaviours reflect poor impulse control, emotional dysregulation and impaired coping abilities.

    In light of GXNF’s substance dependency disorders and current circumstances, the stronger prospects of rehabilitation remain in community settings where he is likely to have access to support services, employment and engage in specific treatment programs. However, the lack of compliance to these conditions and ineffective support mechanism is likely negatively impact of the risk of recidivism.”

18. Mr Hatzipetrou set out a path for the Applicant to undertake what he thought was the necessary rehabilitation. It is clear from a pre-sentence report[24] of 12 June 2022, prepared by Ms Rebecca Geddes, Health Psychologist and Criminologist, that during a period over ten years since the provision of Mr Hatzipetrou’s recommendations, they were not embraced, as she recorded:

    “GXNF has not participated in psychological, or psychiatric treatment. From what was said, he has experienced psychological disturbance since being exposed to the Bosnian conflict.”

    [24] G1, p 101.

19. She noted also:

    “When in the labour market he has a pattern of inconsistent employment. ….

    GXNF reported limited support from family because of his drug use and criminal activity, which has fractured these relationships.

    GXNF has few anti-criminal acquaintances; most are drug users or those with criminal histories.”

20. Ms Geddes made the following observations:

    “Risk Rating: The results on the LSI-R demonstrated that GXNF has moderate-high risk/needs. He is classified as needing intense supervision, and treatment in the areas of employment/finances, family, companions, drug problem, emotional/personal and attitudes/orientation.

    Possible scenarios: Should GXNF reoffend it would likely include similar offences in the context of ongoing drug use and acquisitive offending to fund his substance use difficulties. GXNFs behaviour could escalate when under the influence of illicit substances, or when experiencing paranoid ideation. In these instances, he could act with agitation, and/or aggression.”

    [Emphasis added]

21. She also recorded that he had “a disregard for convention and authority.” She further observed:

    “GXNF’s offending has stemmed from participation in illegal activities that reflect, in part, disturbed conduct triggered by chronic substance misuse. Substance use provided temporary relief from traumatic stress, though it has contributed to dysfunction across multiple life domains, including being stuck in a cycle of financial disadvantage, addiction, and criminal behaviour. It has persisted despite adverse impacts, signifying a lack of ability to control the effect of drugs on his life.

    GXNF has a limited vocational history, substantial criminal history, and a background of substance dependency. While incarceration appears to have been a time-limited deterrent for substance use, GXNF’s drug use has been chronic. Drug dependence is a treatable illness, yet he has not engaged in psychological treatment to address his history of trauma and/or use of substances. Participation in a multifaceted treatment program would increase the prospects of recovery.

    …

    He is classified as needing intense supervision, and treatment in the areas of employment/finances, family, companions, drug problem, emotional/personal and attitudes/orientation”

    [Emphasis added]

22. Ms Geddes also noted that the Applicant’s relationship with his mother and sister was “tense because of his drug use.” Incarceration had been a time limited deterrent for substance abuse, his drug use had been chronic.

23. In a comprehensive report dated 4 September 2023, Dr Yoxall recorded the eight aliases which the Applicant has employed, and noted that he had become a Croatian citizen in 1994. He has worked in a range of unskilled jobs, his longest period of employment being two years. He had been fired from jobs, been unemployed for the last 10 years, and evicted from government accommodation. He had made many failed attempts to escape his drug addiction. His violent offending in 2008 was confined to a period of one hour. She noted his participation in the Drug Arm CFASS Program, the SMART Recovery Program his two sessions with Mr Kong, and his good behaviour in prison and detention. She also noted his work as a painter whilst in prison, and his preparedness to undertake outpatient or residential rehabilitation programs. She considered he was motivated to seek employment and had opportunities before him. A relapse to drug dependence could risk further violent offending. Proper management was vital as he was a moderate risk of further violent offending.

24. Dr Yoxall identified the Applicant’s key dynamic risk factors as being methamphetamine dependence; PTSD; negative social influence; unstable accommodation; financial difficulties; unemployment, a range of embedded attitudes and beliefs and negative social influence. She recorded that in a short period of 16 months, he had made substantial and measurable changes to these dynamic risk factors. He has accepted that he had methamphetamine dependence and PTSD. He engaged in rehabilitation for the drug dependence and continued to participate in support group sessions through the SMART Program. His drug dependence and PTSD were both in remission. He had ended negative associations, and rebuilt relationships with his mother and sister. He had job and stable accommodation opportunities. If he could maintain employment he might achieve financial stability.

25. Dr Yoxall commented on the Applicant’s transition back to the community[25]:

    “The question now is whether he can transition back to community successfully and maintain these gains and changes. To achieve this, it is my view that he will need substantial support. Optimally he should engage immediately with a community drug and alcohol rehabilitation program and an ongoing support program (e.g. narcotics anonymous or the SMART Program) as well as engaging with a community psychologist and psychiatrist for ongoing management of the PTSD and support to him as he faces the various challenges that can be expected in attempting to establish a stable and prosocial life at the age of 46 years after more than 20 years of drug dependence. He will need the support of his family members. He will need to employ all strategies that he has learnt to ensure stability of his mental health and avoidance of relapse to drug use.”

    [25] A4, p 38, [3].

26. Dr Yoxall opined that if the Applicant could maintain stable mental health he would have a greater likelihood of avoiding relapsing into drug use. If he could do both, it would be unlikely that he would present a risk to the Australian community, and might contribute positively through employment and caring for his mother and girlfriend.

27. In addition to maintaining his mental health and drug abstinence, he needed to engage professional assistance to help him manage his emotions and behaviour if he experienced any warning signs of relapse or remission.

28. She concluded:

    “If GNFX were to experience a deterioration in mental health and a relapse to drug use; and or fail to seek professional support and intervention, then his risk of reoffending could be moderate to high.

    If GNFX is deported, this would have a substantial impact on his mental health and more than likely on his mother and sister.”

29. In her evidence before the Tribunal, Doctor Yoxall identified ongoing drug abstinence, PTSD treatment, and stable employment and accommodation as protective factors, and agreed that if any of them were to fall away it would increase the risk of the Applicant’s further offending. She thought he was very enthusiastic and committed to forming a stable pro-social and productive life in Australia. Residential programmes were the gold standard, but expensive, difficult to access and therefore not feasible for most people. The Applicant should not live independently for 12 months to two years and needed a stable environment for that. His re-entry to the workforce should be gradual to enable him to build up his capacity.

30. It seems to the Tribunal that Doctor Yoxall, Ms Geddes and Mr Hatzipetrou were all saying similar things, and the Tribunal accepts their evidence in preference to that of Mr Kong who suggested that all the Applicant needed was a further 12 months counselling to deal with his problems. In the light of the accepted evidence, the Tribunal does not consider 12 months counselling sufficient rehabilitation for this Applicant.

31. The Tribunal accepts that the Applicant has, whilst in a controlled environment taken some positive steps towards rehabilitation. The extent to which he has benefited from that rehabilitation is uncertain, and untested in the community, but the evidence in no way suggests that he has achieved sufficient rehabilitation so as to allow him to be safely returned to the community without the very close management recommended by Dr Yoxall.

32. Paragraph 8.1.2(2)(b)(ii) requires the Tribunal to have regard to “evidence of rehabilitation achieved by the time of the decision”, not some speculative assessment of what might be achieved if the Applicant adheres to a strict program over an extended period of time after return to the community.

33. The strict and comprehensive program recommended by Dr Yoxall leads the Tribunal to the view that this Applicant has achieved only initial steps in a long and uncertain path to rehabilitation.

34. The uncertainty of his path is effected by numerous factors. This Applicant is trying to break a 20 year addiction to a very addictive substance from which it is difficult to break free.

35. Ms Geddes reported that he had a disregard for convention and authority. Mr Hatzipetrou reported that he had poor impulse control, emotional dysregulation and impaired coping abilities. The Tribunal is concerned that these factors which appear to be untreated, will adversely impact the Applicant’s ability to adhere to Dr Yoxall’s recommended program.

36. Perhaps these factors shed some light on Mr Hatzipetrou’s observations that the Applicant previously struggled to maintain regular treatment. Moverover, it seems clear that his efforts at rehabilitation prior to his most recent incarceration have not borne fruit. He took none of the steps recommended by Mr Hatzipetrou. He told Mr Hatzipetrou about his relationship with his mother and sister and plans for a painting career, and those plans which do not appear to have afforded him protection from further offending, are echoed in his evidence before the Tribunal. The Applicant has a pattern of inconsistent employment, and it is over ten years since he was employed at all, let alone with one employer for any length of time, and he has been fired from jobs.

37. The Applicant’s relationships with his mother and sister has been brittle in the past, and the Tribunal is concerned that if he were to be released into the community, any relapse might see the relationships fracture again with very severe consequences for his further rehabilitation.

38. This Tribunal has no power to order the Applicant to undertake the extensive further rehabilitation he clearly needs. Nor does it have any power to monitor the progress of such rehabilitation.

39. Given the number of stars which must align in order for the Applicant to achieve the desired extent of rehabilitation, the Tribunal is concerned given the factors above, that the prospect of achieving such rehabilitation is remote and uncertain, and at best, at least a year away.

40. It is true that at present, his drug addiction and PTSD are said to be in remission. But that is a snapshot in time, and not conclusive of rehabilitation. Were it so, there would be no need for the comprehensive recommendations Dr Yoxall has made.

41. The Applicant has taken early steps towards rehabilitation, but the evidence does not satisfy the Tribunal that he has achieved any substantial rehabilitation of enduring consequence as at the date of this decision.

42. The Tribunal considers that there is a moderate to high risk that the Applicant will reoffend or engage in other serious conduct.

    Conclusion: Primary Consideration 1

43. Primary Consideration 1 weighs very heavily in favour of non-revocation.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

44. There is no evidence before this Tribunal suggestive of any conduct which falls within the scope of paragraph 8.2 of the Direction. With supporting submissions from the parties,[26] the Tribunal puts this consideration to one side and allocates it neutral weight.

    [26] R1, p 12, [39]; A1, p 4, [13(iii)].

    PRIMARY CONSIDERATION 3: THE STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

45. Paragraph 8.3(1) of the Direction requires consideration of any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

46. Paragraph 8.3(2) of the Direction requires consideration of a non-citizen’s ties to Australia.  More weight should be given to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

47. Paragraph 8.3(3) requires consideration of the non-citizen’s strength duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.

1. Paragraph 8.3(4) requires consideration of the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision makers must have regard to:

   (a)The length of time the non-citizen has resided in the Australian community, noting that:

   (i)     Considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australia during and since their formative years, regardless of then their offending commenced and the level of that offending; and

   (ii)    more weight should be given to the time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and

   (iii)   less weight should be given to the length of time spent in the Australian community where the non-resident was not ordinarily in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.

   Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members

2. The Applicant’s mother, whom the Tribunal shall refer to as “M” provided a very short signed statement[27] dated 28 August 2023 to the Tribunal. She said she had supported him financially and emotionally during his rehabilitation, and that she was in ailing health although she did not detail the precise nature of her ailments. She said that she needed the Applicant as her carer, and he would be considered her support person. If he is deported she would not be able to travel to visit him due to her health, and would suffer anxiety and stress from not being able to visit him.

   [27] A2;  See also G1, p 98.

3. The Applicant’s sister, whom the Tribunal shall refer to as Z, provided a short letter in which she committed to ongoing support for the Applicant and involving him in her business. Z provided no further details of any impact the Applicant’s deportation might have on her.

4. The Tribunal has had regard for a letter[28] dated 7 April 2022 which appears to have been written by a support company Happy Peeps Pty Ltd describing his partner MK’s ailments and circumstances. It said that she had been diagnosed with Narcoleptic Dissociative Disorder, Narcoleptic Telepathic and Bipolar, and that the Applicant provided her everyday care and support. She was completely dependent on his care and not able to function without it. The Tribunal gives limited weight to this letter as the Applicant evinced no intention of returning to this role in the foreseeable future. The Tribunal nevertheless accepts that the relationship appears to be ongoing, but the support role he played appears to be greatly lessened, as he no longer proposes to be her carer.

   [28] G1, p 112.

5. As can be seen from the foregoing, evidence of the impact of this decision on the Applicant’s family members is sparse. The Tribunal accepts that his mother will be heavily impacted due to her age and illness, and the prospect of not seeing her son again.  There will no doubt be some impact on his sister and partner, but the evidence is not sufficient to enable any particular findings. His partner appears to have other arrangements in place for day to day care.

6. The Tribunal accepts that if the Applicant is deported, his future conduct with family members is likely to be limited to electronic means, and this is an unsatisfactory substitute for physical face to face engagement.

7. There is no other evidence in terms of immediate family to enable the Tribunal to assess impact on other members.

   Conclusion Paragraph 8.3(1)

8. Paragraph 8.3(1) weighs moderately in favour of revocation.

   Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to the Applicant’s child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely

9. The Applicant does not have children and this consideration therefore attracts no weight.

   Conclusion Paragraph 8.3(2)

10. Paragraph 8.3(2) carries no weight.

    Paragraph 8.3(3) Strength, nature, and duration of ties with any family or social links generally

11. The Applicant was not present in Australia during his formative years. He arrived 28 years ago at the age of 18, and commenced offending not long after.  He has had some employment in Australia, but he has also spent a very long period unemployed. He has severed contact with numerous of his past associates because of their drug and criminal activity. He does not appear to have many other associates. His relationship with his family has been somewhat intermittent, but currently appears reconciled.

12. Paragraph 8.3(3) weighs moderately in favour of revocation.

    Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here

13. The Tribunal accepts that after 28 years in Australia, the Applicant feels very attached to Australia, even though there is little evidence before it regarding his community ties.

14. The weight to be attributed to this consideration is diminished in consequence of the fact that he commenced offending soon after his arrival into Australia.

    Conclusion: Primary Consideration 3

15. Primary consideration weighs moderately in favour of revocation.

    PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

16. Paragraph 8.4(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.4(2) and 8.4(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the Visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.

17. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    (a)the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    (b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    (c)the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    (d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    (e)whether there are other persons who already fulfil a parental role in relation to the child;

    (f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    (g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    (h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

18. The Applicant has no children so as to enliven this consideration. Accordingly, the Tribunal weighs this consideration neutrally.

    PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

19. In making the assessment for weight to be allocated to Primary Consideration 5, paragraph 8.5(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.

20. Paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the possession they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

21. Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

22. Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    “This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case”.

23. Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 at [68] (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[29]

    [29] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

    Analysis – Allocation of Weight to this Primary Consideration 5

24. The Tribunal considers that having regard to the Applicant’s extensive history of serious criminal offending, and the totality of the circumstances of this case, the Australian Community would expect that his visa remain cancelled.

    Conclusion: Primary Consideration 5

25. Primary Consideration 5 weighs very heavily against revocation.

    PARAGRAPH 9: OTHER CONSIDERATIONS

26. Under the heading Other Considerations paragraph 9(1) of the Direction provides a non-exhaustive list of considerations as follows:

    (a)Legal consequences of the decision;

    (b)Extent of impediments if removed;

    (c)Impact on victims;

    (d)Impact on Australian business interests.

    Other Consideration (a): Legal consequences of the decision

27. In consequence of this decision, the Applicant will remain an unlawful non-citizen pursuant to s 15 of the Act, and subject to detention pending removal as soon as is reasonably practicable pursuant to ss 189 and 198 of the Act. There has been no protection finding made in respect of him, and there is no evidence to suggest that he would be detained indefinitely. He will of course be precluded from seeking another visa while in Australia other than a protection visa in consequence of s 501E. The Applicant will be permanently excluded from Australia as he will fail to satisfy the Special Return Criteria 5001(c)(i) in Schedule 5 of the Migration Regulations 1994 (Cth).

28. The Applicant was born in that part of the former Yugoslavia which is now Bosnia.

29. In his SFIC,[30] he stated that he was a citizen of Bosnia.

    [30] A1.

30. In the G-Documents,[31] he claimed that he had gained Croatian citizenship.

    [31] G1, p 73, p 78.

31. Further in the material,[32] the Applicant expressed fear of return to both Bosnia and Croatia, although in a near identical paragraph else in the material,[33] he only expressed fear of return to Bosnia.

    [32] Ibid, pp 94-96.

    [33] Ibid, pp 113-117.

32. In his evidence, he told the Tribunal that he had lost his citizenship of Bosnia, but was unable to explain how this happened, as he had received no government communication to that effect, and neither had he surrendered his citizenship. Under questioning from the Tribunal, the Applicant ultimately said that he was a citizen of Bosnia, and also of Croatia.

33. The only credible corroboration of either of these claims is found in the material,[34] and that supports a finding that the Applicant remains a citizen of Bosnia, and the Tribunal so finds.

    [34] R2, pp 167-168.

34. There is not sufficient evidence before the Tribunal so as to enable it to safely make a finding as to the Applicant’s claim of citizenship of Croatia, and the Tribunal makes no finding in this regard.

35. Whilst the Tribunal considers it appears more likely that the receiving country for the Applicant would be Bosnia, the possibility that it might be Croatia cannot be excluded.

36. In such circumstances, it is unclear to the Tribunal whether he will be returned to either Bosnia or Croatia.

37. The Applicant has raised fears of returning to either Bosnia or Croatia, but at this juncture has not made application for a Protection visa, as is his entitlement. A valid application for such visa would suspend the operation of s198 pending the determination of the application. The process for determining Protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act.

38. It is possible that a protection obligation may arise, but not lead to a Protection visa, and he could face an extended period in detention unless and until he can be removed to another country. If he is in fact a citizen of Croatia, it is unclear to the Tribunal whether he may able to avail himself of freedom of movement within the European Union. 

39. In the absence of one of the exceptions in s 197C(3)(c), unless the Minister intervenes either under s 195A or s 197AB, the Applicant would remain in detention pending removal.

40. The Applicant’s evidence of his concerns regarding relocation to both Bosnia and Croatia was not persuasive.

41. Although he had previously claimed to be in fear of torture, cruel, inhuman or degrading treatment in Croatia, but this appeared to stem from the fact that he did not like the way the police spoke to him, and little more. He did not give any evidence that he or anyone he knew had been subjected to such treatment.

42. He also said that he had not been subjected to any such treatment in Bosnia, and did not provide any other basis for his fears of being returned there.

43. The evidence before the Tribunal is not sufficient to satisfy it that the Applicant’s fears are well founded, and the Tribunal is therefore not satisfied that this Applicant engages Australia’s non-refoulement obligations.

44. However, none of this precludes the Applicant from making an application for a Protection visa which is a better forum for the determination of such issues, and where he will be able to adduce such further evidence as he sees fit in support of his claims.

    Conclusion as to other consideration (a) Legal consequences

45. This other consideration is given neutral weight.

    Other Consideration (b): Extent of impediments if removed

46. The Tribunal accepts that the Applicant will encounter significant difficulties if returned to either Bosnia or Croatia. He has not lived in either country for nearly three decades, and unless he returns to stay with his father, he will have few if any contacts to turn to in re-establishing himself from scratch. If he stays with his father, he should have accommodation in a familiar environment. Presumably he will have some recollection of the neighbourhood and the community.

47. The Applicant is in his late 40s. He has PTSD and a significant drug addiction, both of which appear to be in remission at the moment. It is quite likely he will suffer emotional disturbance in consequence of his deportation, and it is possible both his conditions could be adversely impacted by his deportation.

48. The Applicant lived in Bosnia until he was 16 years of age, and can be taken to be familiar with both the language and the culture there. He did not raise language or cultural barriers as an impediment to his return to either country, although there is a concern that he may be subjected to some ethnic discrimination in Croatia.

49. The extent of social, medical or economic support available to the Applicant in either country is not clear to the Tribunal, but there is no evidence to suggest that he should not be able to engage such support in the same way as any other citizen.

    Conclusion: Other Consideration (b): Extent of impediments if removed

50. This other consideration weighs moderately in favour of revocation.

    Other Consideration (c): Impact on victims

51. There is no evidence before the Tribunal so as to enliven this consideration.

    Other Consideration (d): Impact Australian business interests

52. There is no evidence before the Tribunal so as to enliven this consideration.

    Conclusion as to paragraph 9: Other Considerations

53. Paragraph 9.1(a) weighs neutrally.

54. Paragraph 9.1(b) weighs moderately in favour of revocation.

55. Paragraph 9.1(c) weighs neutrally.

56. Paragraph 9.1(d) weighs neutrally.

57. Overall, paragraph 9 Other considerations weighs moderately in favour of revocation.

    CONCLUSION

58. The Tribunal is now required to weigh all of the Considerations in accordance with the Direction.

59. In summary, the Tribunal finds as follows:

    ·Primary Consideration 1 weighs very heavily against revocation;

    ·Primary Consideration 2 weighs neutrally;

    ·Primary Consideration 3 weighs moderately in favour of revocation;

    ·Primary Consideration 4 weighs neutrally;

    ·Primary Consideration 5 weighs very heavily in favour of cancellation;

    ·The totality of other considerations weigh moderately in favour of revocation.

    ·The Tribunal has had regard for paragraph 5.2(5) of the Principles in the Direction to allow the Applicant an increased level of tolerance in consequence of the fact that he has lived in Australia for most of his life.

    ·Further the Tribunal has had regard for paragraph 5.2(3), and the serious character concerns raised by the Applicant’s conduct.

    ·In addition, the Tribunal has had regard for paragraph 5.2(6) of the Direction, and considers that the nature of the Applicant’s conduct, and the harm that would be caused were it to be repeated, are such that even strong countervailing considerations in this case are insufficient to justify revoking cancellation of the Applicant’s visa.

1. The Tribunal finds that the combined weights allocated to Primary Considerations 1 and 5 respectively, are sufficient to outweigh the combined weights allocated to Primary Consideration 3 and the Other Considerations.

2. Accordingly, the Tribunal is not satisfied for the purposes of s. 501CA(4)(b)(ii) that there is another reason why the original decision should be revoked.

3. Therefore, the discretion provided in s 501CA(4) is not enlivened, and the Tribunal is not empowered to revoke the mandatory cancellation of the Applicant’s visa.

   DECISION

4. Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 3 July 2023 not to revoke the cancellation of the Applicant’s visa.

I certify that the preceding 177 (one hundred and seventy – seven) paragraphs are a true copy of the reasons for the decision herein of Member R Maguire

....................................[SGD]..............................

Associate

Dated: 6 October 2023

Dates of hearing:	6 and 7 September 2023
Applicant:	Self-represented
Solicitor for the Respondent:	Cody Allen
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT	DESCRIPTION OF EVIDENCE	DATE OF DOCUMENT	DATE RECEIVED
G1	Section 501 G-Documents (G1-G29, paged 1-157)	Various	17 Jul 2023
R1	Respondent’s Statement of Facts, Issues and Contentions (paged 1-18)	22 Aug 2023	22 Aug 2023
R2	Tender Bundle (1-5, paged 1-168)	Various	22 Aug 2023
A1	Applicant’s Statement (7 pages)	3 Aug 2023	3 Aug 2023
A2	Statement of the Applicant’s mother (1 page)	28 Aug 2023	28 Aug 2023
A3	IHMS Clinical Records (45 pages)	Various	31 Aug 2023
A4	Report by Dr Yoxall	4 September 2023	4 September 2023