Harshazi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 2547
•12 August 2022
Harshazi and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 2547 (12 August 2022)
Division:GENERAL DIVISION
File Number(s): 2022/4133
Re:Bruno Harshazi
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Millar
Date:12 August 2022
Place:Adelaide
The decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.
.............[sgnd]..............
Senior Member K Millar
Catchwords
MIGRATION – mandatory cancellation of Class BB Subclass 155 – Five Year Resident Return visa under section 501(3A) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review is set aside and substituted
Legislation
Migration Act 1958 (Cth)
Criminal Law Consolidation Act 1935 (SA)
Cases
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
Edwards v Police (SA) (1998) 71 SASR 493
Fulton v Fulton [2014] NSWSC 619
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
FYBR v Minister for Home Affairs [2019] FCA 500
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member K Millar
12 August 2022
INTRODUCTION
The applicant is a citizen of Hungary. He first came to Australia in 1993 and has remained in Australia since 1998.[1] On 11 November 2020 he was convicted of firearms offences and sentenced to a term of imprisonment of 1 year and 9 months.[2]
[1] Applicant’s Statement of Facts, Issues, and Contentions, filed on 28 June 2022, p 2, paras 7 and 12.
[2] G4, Attachment A, p 27.
As a result of this conviction, his visa was cancelled under s 501(3A) of the Migration Act 1958 (the “Act”). The applicant sought revocation of the cancellation of his visa, however this was refused, and the applicant seeks review of this decision.
BACKGROUND
The applicant was born in Hungary in 1972, and grew up with his parents, his younger brother and his grandparents. He says his parent’s marriage was difficult, with constant arguing and with his father drinking.
On finishing school, the applicant attended trade school and qualified as a mechanic. In this time his parents divorced. On completing his trade, he did a year of national service, and worked for a short period in Hungary as a mechanic.
He developed a friendship with a person in Hungary who invited him to visit Australia. He came to Australia in February 1993 and stayed for nearly a year. He returned again in 1994 and has remained in Australia since with the exception of a of a period of approximately 2 months in 1998.
His mother came to Australia in 1993 and his brother came in 1995.
On arriving in Australia, he lived with a friend and married his daughter Ms D. They had a daughter J in 1995 before separating in 1996 or 1997. J works as a nurse and is currently pregnant.
The applicant worked as a mechanic but struggled following a work-related back injury in 1997 and received a WorkCover payment in 2004. He planned to arrange for his father to travel to Australia but unfortunately his father died several days before he received the payment.
The applicant planned to travel from Adelaide to seek work on the Adelaide/Darwin railway construction project with his brother. They stopped in Coober Pedy and the applicant formed a relationship, variously described as an intimate relationship or a carer, with Ms F in approximately 2004. He lived in Coober Pedy with Ms F until 2005 when they relocated to Adelaide. They lived in Adelaide for approximately 10 years before returning to Coober Pedy as Ms F’s parents were ill her son lived in Coober Pedy. The applicant’s brother Mate went to live in Coober Pedy as the carer for Ms F’s sister, P.
The applicant remained in Coober Pedy until being imprisoned. The applicant’s relationship with Ms F has recently ended, however he is hopeful of a reconciliation if released from detention.
OFFENDING HISTORY
The applicant’s offending history is characterised by driving offences, with over 20 driving offences between 1996 and 2018. There are a number of convictions for driving with excess blood alcohol and driving under the influence, as well as driving an unregistered vehicle and driving while disqualified.[3]
[3] Ibid, Attachment A, pp 27-29.
The applicant has convictions for commit common assault on own family in 1996,[4] and for assaulting police in 2001 and 2003.[5] Sentencing remarks and the police facts for the assault police conviction were provided. This arose out of a traffic incident when the applicant was intoxicated. The assault involved kicking one officer in the stomach and spitting in another officer’s face when attempting to have him take a breathalyser test.
[4] Ibid, Attachment A, p 29.
[5] Ibid, Attachment A, p 28.
He was convicted of carrying an offensive weapon in 2000.
There are other sporadic offences such as loitering, refusing name and address and disorderly behaviour, and failing to comply with a bail agreement, estreatment of bail, and breach of a bond.
The convictions in 2020 that led to the cancellation of the applicant’s visa were for possession of a category c, d, h firearm without a license, possessing an unregistered category c, d, h firearm, contravening a provision of the code of practice and possessing ammunition without a license or permit.[6]
[6] Ibid, Attachment A, p 27.
The sentencing remarks of Judge Barrett of the District Court[7] state police went to the applicant’s house with a search warrant on 22 April 2019. Police officers told the applicant they believed he had a firearm, and the applicant took them to a locked cupboard in the bedroom where a firearm was wrapped in a jacket. In the front pocket of the jacket was a plastic bag with two unused 12-gauge shotgun shells suitable for the firearm. In addition, there were pistol bullets. The offence was aggravated because the firearm was found in the immediate vicinity of the ammunition suitable for the firearm.
[7] G5, Attachment B, p 30.
At the time the police found the shotgun, the applicant was on bail for damaging property, and it was a condition of his bail that he did not possess a firearm. Judge Barret stated that in 2017, it appeared that the applicant was stopped by police and found to be driving with excess blood alcohol. On the same day, he damaged the breath analysis equipment and was charged with damaging property. For reasons that were not clear, the damage to property was not dealt with at the same time as the driving offence, for which his license was disqualified in 2018, and he was on bail for the charge of damage to property.
The applicant told police that he found the firearm by a dam in bushes under a tree when he was there by himself. He gave evidence before Judge Barrett that he was at the dam with his partner and another person as they were thinking of having a swim. When they arrived, the dam was dry and sticking out of the dam was a gun. He took the gun and decided to take it to the police in Adelaide as he did not trust the police in Coober Pedy because of their corruption. He took the firearm home and cleaned it up and put it in the cupboard. He did go to Adelaide before the police came to his house but forgot to take the firearm. His partner gave evidence in similar terms. Judge Barrett did not accept the evidence of the applicant or his partner and rejected their evidence of the circumstances of finding the gun, but as the offence was established by being in possession of the gun it did not matter how he came to be in possession of the gun.
Judge Barrett described the applicant’s previous offending as follows:
Although the present offences are more serious than your antecedents, you have a long list of Magistrate Court offences beginning from when you were 24. They are mostly for traffic offences, but there is an assault in 1996, carry an offensive weapon in 2000, assault police in 2001 and quite a number of drink driving offences. In addition, you breached one community service order in 2003. The home detention report indicates you failed to complete four community service orders. You have served short periods of imprisonment for breaches of court orders and other minor offences in 2003. On 28 November 2003, you were sentenced to a total of five months three days’ imprisonment to be released after serving 31 days for breach of community service, refuse name and address, assault police and driving under disqualification. On 17 December 2003, you served 27 days’ imprisonment for breaching a bond imposed in 2001. Since 2011 there have only been drink driving offences and other traffic offences, as well as the breaches of bail and the damaging property offence …[8]
[8] Ibid.
In sentencing the applicant, Judge Barrett did not consider home detention appropriate because while his offending had tapered off in the last few years, he had two recent convictions for breaching bail. Judge Barrett indicted that while they were not serious breaches, this indicated his inability to comply with court orders. Judge Barret accepted the offending was at the lower end of seriousness as the gun and ammunition were in a locked cupboard, and that the applicant was reasonably cooperative with police. Judge Barret took into account the applicant’s guilty pleas in setting a sentence of one year nine months imprisonment but set a lower than usual parole non-parole period of 10 months.
The applicant has a number of more recent breach of bail offences,[9] which the applicant attributed to difficulty in reporting twice a week when he regularly attended medical appointments with Ms F in Adelaide. He said he was later or out of range to contact the police station, and the reporting obligations were eventually amened. While his explanation does not always accord with police reports of these occasions, the Tribunal accepts it was difficult for him to report when attending medical appointments.
[9] G4, Attachment A, p 28.
CREDIBILITY
Judge Barrett found the evidence the applicant gave regarding finding the gun was not credible, and in repeating that evidence at the hearing, the Tribunal formed the same view. His account of finding the gun was implausible and also contradicted by one of his witnesses, who states he was persuaded or forced to buy the gun.
The applicant showed a skill in being able to lie with some conviction. For example, he maintained he fractured his eye socket in prison by turning his head and hitting a rangehood, and had a blood lip as he must have bitten his lip. This was not plausible.
As a result, the Tribunal approached his evidence with some caution.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he is satisfied the person does not pass the character test because he or she has a substantial criminal record and 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 person does not pass the character test if he or she has a “substantial criminal record”.[10] According to s 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
[10] Section 501(6)(a) of the Act.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[11]
[11] Section 501CA(4) of the Act.
In looking at whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by written directions given by the Minister.[12]
[12] Under s 499 of the Act, the Minister may give written directions that are consistent with the Act or regulations about the exercise of powers under the Act. These directions bind this Tribunal (s 499(2A) of the Act).
The Minister has given written directions about the exercise of the power to revoke the cancellation of the visa in Direction No. 90, Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”).
The matters to be decided in this case are whether the Applicant does not pass the character test; and if so, whether there is another reason the decision to cancel the visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
On 11 November 2020 the applicant was sentenced to imprisonment for 1 year and 9 months.[13] As this is more than 12 months, he has a substantial criminal record, and he does not pass the character test.
[13] G4, Attachment A, p 27.
The remaining question is whether there is another reason the cancellation of his visa should be revoked.
IS THERE ANOTHER REASON THE CANCELLATION SHOULD BE REVOKED?
In considering whether the cancellation of the applicant’s visa should be revoked, the Tribunal is required to apply the Direction.
The Direction specifies that a decision-maker, informed by the principles in paragraph 5.2, must take into account the considerations in Part C of the Direction in determining whether the mandatory cancellation of a non-citizen’s visa should be revoked.[14]
[14] Paragraph 6 of the Direction.
Principles that inform the decision-maker
Paragraph 5.2 of the Direction sets out a number of principles that inform the decision-maker, they are:
(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)Non-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.
(3) The 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.
(4) Australia 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. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5) Decision-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 8.4(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.
Taking the relevant considerations into account
Paragraph 6 of the Direction states that informed by the principles in paragraph 5.23 the decision maker must take into account sections 8 and 9 where these are relevant. Section 8 sets out four primary considerations and section 9 sets out four other considerations.
Paragraph 7 instructs that:
(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
The Primary and Other Considerations
Paragraph 8 of the Direction sets out four 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 best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
THE PRIMARY CONSIDERATIONS
THE PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering the protection of the Australian community, cl.8.1 of the Direction requires 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.
In examining the protection of the Australian community, cl.8.1(2) of the Direction requires decision-makers to consider:
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.
The nature and seriousness of the conduct
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 a number of factors, and the Tribunal considered each of these factors.
Violent or sexual crimes, crimes involving violence against women or children and acts of family violence
Sub-clause (a) of cl.8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Turning first to offences involving violence, the applicant has been convicted twice of assaulting police.
The term “family violence” is defined in cl. 4 as violent, threatening, or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
The Tribunal must first consider if the person is a member of the applicant’s family.[15] In this case, the relevant person is Ms D. At the time of the offence for which the applicant was charged, they were married but had recently separated, as he was returning to the property to collect some belongings. Although recently separated, the violence arose out of their relationship and they remained married. The Tribunal considers she is a member of his family.
[15] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115.
On 26 April 1996, the applicant was convicted of common assault on member of own family.[16] His ex-wife, Ms D provided a statement about this event and said that she was his wife at the time and can confirm an incident occurred when they had a serious argument, and their neighbours called the police.[17] She states that at no point in time was there physical domestic violence and he did not try to hurt her. She states that he has never harmed any female or person close to him that she knows.
[16] G4, Attachment A, p 29.
[17] G13, Attachment J, p 113.
Ms D statement contradicts the police report.[18] This describes the offence as occurring after the applicant attended the house to collect some items. It is stated while he was there, he slapped her across the face a number of times. He left, but then returned to try and collect more items, but Ms D had locked the door. Ms D called the police and then locked herself in the garage. The applicant then tried to force his way in and pulled the door handle off the security door. He smashed a small pane of glass in a side window. He then went to the front of the unit and picked up a large green wheelie bin and threw it through a large window, smashing the glass panes and the framework and gained entry to the unit through the broken window. Police report that when they interviewed Ms D, she was extremely upset.
[18] TB1, p 94.
The account of the applicant at the time he was arrested was that he went to the unit at the earlier time to collect property but denies assaulting Ms D. He said he attended again later in the day and Ms D would not let him in. He acknowledged breaking door handle, smashing the side window and throwing the wheelie bin through window.
The applicant claims he did not slap Ms D, and was falsely convicted of this offence. He said he did not know if he broke the handle of the security door, but he did break a window with the wheelie bin. He said at the time his English was worse and he pleaded guilty on the advice of the duty solicitor. At the time, the terms assault was not defined in the Criminal Law Consolidation Act 1935 (SA). An assault could be committed by creating an apprehension in the mind of the victim of immediate violence or unlawful physical contact.[19] The Tribunal considers it would be possible for the applicant to be convicted of assault without striking Ms D.
[19] Edwards v Police (SA) (1998) 71 SASR 493
The applicant pleaded guilty and was convicted of assault on a member of his family and attempted damage to property.
The applicant’s mother stated that at the time the applicant had a drinking problem and would not accept that he could not see his ex-wife or his daughter. This was enforced by police. While the Tribunal has concerns that the were further acts of violence against his ex-wife or that his conduct affected the welfare of his daughter, there is no information before the Tribunal of any orders as described by the applicant’s mother preventing his contact with Ms D or his daughter.
Ms D was not called to give evidence, and the Tribunal places little weight on her statement that contradicts the police report when she was not available to ask about the contradictions.[20] The Tribunal rejects the applicant’s assertion that Ms D did not feel threatened and finds this was family violence.
[20] See, for example, Fulton v Fulton [2014] NSWSC 619.
The Tribunal is mindful that this offence occurred over 25 years ago, and he has not been convicted of any other offences involving family violence.
Sentences imposed
The sentences imposed for offences, other than sentences for offences involving violence or family violence, must be considered under cl. 8.1.1(c). The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.
The most significant offence for which the applicant was sentenced is the possession or a firearm and ammunition, for which he was sentenced to imprisonment for one year and nine months.[21]
[21] G4, Attachment A, p 27.
He was two convictions for assault police resulted in suspended sentences of imprisonment, with a term of 6 week being imposed in 2001 and a term of one month in 2003.
He has been imprisoned once for driving while disqualified, with a 4-month term of imprisonment being imposed in 2001.
He has otherwise been fined, had his driver’s license disqualified, placed on good behaviour bonds and ordered to complete community service.
Frequency of offending
The frequency of offending and whether there is any trend of increasing seriousness is to be considered on accordance with cl. 8.1.1(1)(d) of the Direction.
The applicant has frequently committed motor vehicle offences and public order offences that appear related to his problems with alcohol. While there are two assault police convictions, they are now approximately 20 years ago. By far the most serious offence is the offences involving possession of a firearm and ammunition.
The Tribunal is not satisfied there is a trend of increasing seriousness.
The cumulative effect of repeat offending
The cumulative effect of an Applicant’s repeated offending is a consideration under paragraph 8.1.1(1)(e) of the Direction.
The cumulative offending of the applicant can be seen in the traffic offences, of which there are many. His traffic offences commenced in 1996 and continued until 2018.[22] He has public order offences, which have ended from 2011.[23]
False or misleading information
[22] Ibid, pp 28-29.
[23] Ibid, p 28.
There is no information to show the applicant has provided false or misleading information.
Reoffending since being warned
Whether the non-citizen has reoffended since being formally warned, or otherwise since being made aware in writing about the consequences of further offending in terms of the non-citizen’s migration status is to be considered under cl. 8.1.1(1)(g) of the Direction.
The applicant has not previously been warned, and this does not apply.
The risk to the Australian community
In considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers 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 (cl.8.1.2(1) of the Direction). Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that may be repeated may be unacceptable.
Factors in assessing the risk that may be posed by the non-citizen to the Australian community, are set out in cl.8.1.2(2) and must be considered cumulatively. They are:
(1)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(2)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(3)….
Nature of harm should the applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community if the applicant engages in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Minister provided a copy of the 2016 Australian Criminal Intelligence Commission report on illicit firearms in Australia.[24] This reports that the illicit movement, trafficking and use of firearms is a serious national threat and a significant safety concern for the Australia community. The applicant does not dispute illegal possession of firearms and ammunition is a significant safety concern. If this offence were to be repeated this poses a high risk to the safety of the community.
[24] TB5, p 238.
The applicant has been repeatedly convicted of offences of driving under the influence, driving without due care and riving with excess blood alcohol. When under the influence of alcohol, he has failed to stop at a traffic light, mounted a kerb and driven on the wrong side of the road and the wrong side of a roundabout. Police describe him as having difficulty walking when apprehended due to his level of intoxication. It does not strain the imagination to think these behaviours pose a risk of serious injury or death to other road users.
He has been convicted of offences involves public disturbance, interfering with the quiet enjoyment of others. The harm that would be caused if this is repeated is to create fear and inconvenience to the community and the owners of licensed premises.
He has two convictions for assaulting police, undermining the ability of the police to keep the community safe.
Likelihood of engaging in further criminal or other serious conduct
In looking at the likelihood of the applicant engaging in further criminal or other serious conduct, the Tribunal must consider the information and evidence on the risk of re-offending and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence.
Most of the applicant’s offences result from his problems with alcohol. In 2003, a psychological evaluation found that his history indicated he may well have a severe alcohol dependence issue.[25] He told the psychologist that since 2002 he had no contact with his ex-wife and had not used alcohol in excess.[26] The psychologist made a series of recommendations including proving him with treatment that identifies responsible drinking.[27] The applicant stated he had not undertaken this treatment. He also continued to offend from this date, with convictions for driving with excess blood alcohol in 2007 and drive under the influence in 2011 and 2018.[28]
[25] TB2, p 211.
[26] Ibid.
[27] Ibid, p 214.
[28] G4, Attachment A, p 28.
The applicant provided a statement from a counsellor at Relationships Australia stating he has been a client since 16 February 2021.[29] At the time of the statement on 26 June 2021, he had attended six appointments. The applicant stated he continued to see the counsellor every three weeks for half an hour while he was in prison, and said he has telephone contact with the counsellor while in immigration detention approximately once a month for 5 – 10 minutes. He said they discuss how he is coping and what his plans and strategies are for the future. He said they did not discuss his alcohol use.
[29] G12, Attachment I13, p 110.
The applicant says his drinking had eased off because he has been told he has cirrhosis of his liver in 2019 and stopped drinking spirits. He said some of his medical conditions are quite serious and has been told if he continues to drink, he will die.
He states he used this divorce as an excuse to drink and used to look for excuses to drink. He said he was already rehabilitating when he came across the gun, and the cancellation of his visa has brought into focus the importance of his family and what he will lose. He states he doesn’t want to live his life as he lived before.
The applicant asserts he has now addressed his alcohol problem, and this is reflected in the tapering of the offending relating to using alcohol and driving. His resolve will be bolstered by the potential loss of his family should his drinking lead to further offending. His mother and daughter gave evidence that they were unable to dissuade him from drinking in the past and did not necessarily consider this their role.
However, the Tribunal is cautious about the applicant’s evidence that he is done with alcohol and has reservations about his continued ability to abstain in the community as he has not undertaken rehabilitation or counselling specifically addressed to his alcohol use. The Tribunal considers there is a moderate likelihood of him engaging in further criminal conduct related to alcohol use.
However, the prospect of having his visa cancelled and being removed from his family will have a greater deterrent effect on the likelihood of him committing serious offences such as the possession of a firearm. He does not have a history of offences of his nature, with the majority being traffic offences or public order offences with the exception of two assault police, the most recent being nearly 9 years ago, and a family violence offence which is now over 25 years ago. The Tribunal considers there is a reasonably low likelihood of him engaging in further criminal or other behaviour of possessing a firearm or of assault.
CONCLUSION – THE PROTECTION OF THE AUSTRALIAN COMMUINITY
Having considered the factors in cl.8.1 of the Direction, the Tribunal finds this consideration weighs somewhat in favour of not revoking the cancellation of his visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Clause 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
Clause 8.2(3) specifies the factors to be considered in considering the seriousness of the family violence, and the Tribunal turned to each of these factors.
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
There is one conviction for assault of a family member that is now over 25 years ago. There are no subsequent convictions. There is one police report.
b)the cumulative effect of repeated acts of family violence;
There is one offence which involved an act of family violence as discussed above.
Ms F, the applicant’s most recent partner, provided a statement that the applicant has been supportive and caring and has never been violent, aggressive or disrespectful towards her. She says the applicant has supported her with her mental health as she suffers severe depression and anxiety.[30] Ms F was not called to give evidence, and the Tribunal reduces the weight it can place on her statement accordingly. It also approached her statement with some caution as the records of Mobilong Prison[31] state Ms F contacted the prison and asked the applicant to be informed she has changed her telephone number and does not want any further telephone or mail contact with him. There is no evidence before the Tribunal about acts of family violence against Ms F.
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
[30] G12, Attachment I1, p 91.
[31] TB4, p 231.
The applicant accepted responsibility for throwing or pushing the wheelie bin into the window. He says he prides himself of having never hit a woman.
On being asked how his ex-wife would have felt at the time, he said that he didn’t think she felt threatened as he has a peaceful nature but that she was upset, disappointed and angry. His description does not accord either with common sense, or the recorded actions of his ex-wife who locked herself in the garage and called police. The applicant could not recall where his daughter, who would have been approximately 1 year of age at the time, was at this time and said she may have been with his mother. The Tribunal is not satisfied he understands the effect on his conduct on his ex-wife. There is insufficient information to show the impact on his daughter.
The applicant told the psychologist that other arrangements had been made for him to have contact with his daughter and the reduced his contact with his ex-wife and reduced his emotional reactivity and alcohol use.[32]
a)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
[32] TB2, p 211.
There is no information to show the applicant has committed further offences involving family violence.
CONCLUSION: FAMILY VIOLENCE
Given there is one offence that is now over 25 years ago and having considered the factors in cl.8.2 of the Direction, the Tribunal considers this factor is neutral.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
In making a decision about whether the cancellation of the applicant’s visa should be revoked, under cl.8.3(1), the Tribunal must make a determination about whether this is in the best interests of a child affected by the decision.
This consideration applies only if the child is, or would be, under 18 years at the time the decision is made (cl.8.3(2)).
The applicant’s niece A is under 18. Claims were made about his daughter’s unborn child, however in the circumstances of this particular case, the Tribunal does not consider her unborn child falls within the ambit of this consideration.
A said that her uncle has been a constant presence in her life. She lives with her grandmother, and the applicant was living next door for a period. Her father also plays a parental role, but she does not have contact with her mother. A turns 18 years of age in approximately 6 months. She had travelled to Hungary, generally every 2 years until COVID restrictions, with her grandmother.
The Tribunal finds A has a longstanding relationship with her uncle, but that this is non-parental and less weight is given in accordance with cl.8.3(4)(a). It is likely he would play a positive role in the 6 months remaining until, she turns 18. A said that she was not really aware of his previous offending and was protected from this by her family, and his previous offending has had little negative impact on her. She said she has seen him drinking but has not seen him drunk.
A gave evidence that the family is close and that as it is small with only 5 members of the family if her uncle leaves Australia this will be a big loss. The Tribunal finds that A will suffer distress if the applicant is required to leave Australia. She clearly expressed her support of her uncle and that she wants him to remain in Australia.
A has her grandmother and her father who fulfil a parental role. There is no evidence that she has been exposed to family violence perpetrated by the applicant, or has suffered any trauma rising from his conduct.
CONCLUSION: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
The best interests of the child weigh moderately in favour of revoking the cancellation of the applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In considering the expectations of the Australian community, cl. 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. The Tribunal should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
In accordance with cl.8.4(2), 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.
Clause 8.4(2) goes on to state that 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; or
(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 position 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.
Paragraph 8.4(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.
Paragraph 8.4(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.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“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.[33]
[33] 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.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Accordingly, in assessing the weight attributable to the expectations of the Australian community, it is necessary to have regard to the expectation that the applicant’s visa will be cancelled.
In looking at the weight to be attributed, the Tribunal notes the sole offence of family violence occurred over 20 years ago and that the offence that led to the cancellation of his visa has a low risk of reoccurring.
CONCLUSION: EXPECTATIONS OF THE AUTRALIAN COMMUNITY
Overall, the expectations of the Australian community consideration weighs somewhat in favour of not revoking the cancellation of his visa.
OTHER CONSIDERATIONS
The other considerations are set out in cl.9(1) of the Direction, and are international non-refoulement obligations, the extent of impediments if removed, the impact on victims and links to the Australia community.
International non-refoulement obligations
It was not contended, and the Tribunal finds, that international non-refoulment obligations do not apply to the applicant.
Extent of Impediments if Removed
As a guide for exercising the discretion, cl.9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
· the non-citizen’s age and health;
· whether there are any substantial language or cultural barriers; and
· any social, medical and/or economic support available to that non-citizen in that country.
The applicant is now 50 years old. He has health conditions affecting his liver, however there is universal health care in Hungary, and the Tribunal is satisfied he could receive treatment for his conditions in accordance with what is generally available to other citizens.
The applicant speaks Hungarian and lived in Hungary until he was approximately 20 years old. He has a trade and has worked in Hungary as a mechanic. His ability to work as a mechanic was compromised by a work-related injury, however he has retrained in other roles such as traffic management.
His mother said she had elderly siblings in Hungary and the applicant has cousins in Hungary but said he does not have contact with them. However, there is some limited family support.
The applicant provided information to show that a social security benefits would not be available to him unless he has worked in Hungary for 20 years, however as pointed out by the respondent, this information relates to an old age pension and does not necessarily apply to the applicant.
The Tribunal finds that the applicant will face difficulty establishing himself in Hungary but has skills to obtain employment.
This consideration weighs moderately in favour of revoking cancellation of the applicant’s visa.
Impact on victims
The Direction requires decision-makers to consider the impact of the decision to cancel the visa on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before the Tribunal on the effect that cancellation the applicant’s visa will have on Ms D, who is the sole victim to have a provided a statement in this matter. Therefore, this consideration is neutral.
Links to the Australian Community
This requires that decision makers must have regard to the following factors set in cl 9.4.1 and cl 9.4.2 which are:
(i)the strength, nature, and duration of ties to Australia; and
(ii)the impact on Australian business interests.
Immediate family members
In making a decision, under cl.9.4.1(1) decision-makers must consider the impact of the decision on the non-citizen’s immediate family members in Australia where those family members are Australia citizens, Australian permanent residents or people who have a right to remain in Australia indefinitely.
The applicant has his mother, brother, niece and daughter in Australia, and states they are all Australian citizens. The best interests of his niece have been considered in the best interests of the child above.
His mother provided a statement that as she gets older, she relies on the support of family even more. She is waiting on a shoulder replacement and has other health concerns. She states she has not coped since the applicant has been away and her mental and emotional wellbeing has been affected to the points where she cannot sleep properly. If the applicant is released, he will live with his mother and his niece.
In evidence she said they are close and that when he was in Coober Pedy, they would be in touch constantly. When the applicant and Ms F travelled to Adelaide from Coober Pedy, they stayed with her and she cooked and looked after them. She also made a couple of trips to Coober Pedy so the children could be with their parents. She said she was unable to help the applicant with his emotional problems and all she could do was look after the children. She said she was in a better position to help him now as she wants to keep the family in Australia. The Tribunal accepts that if the applicant is removed this will remove the potential support he can provide mother and cause her severe distress.
The applicant’s brother provided statements but was not called to give evidence. He states that the family will be deeply affected if the applicant is deported.[34] The applicant’s brother has been with the applicant for most of the time he has been in Australia, including for a proportion of his offending. The Tribunal accepts they have a close bond and that his brother will suffer significant distress if the applicant is removed from Australia.
[34] A5, p 5.
The applicant’s daughter states that if her father is removed it will have a dramatic impact on her life and will be detrimental to her emotional and mental wellbeing. She said while her parents divorced when she was young, he has always been involved in her life and plays an integral part as she grows older. His daughter plans to be married soon and her baby is due in October. The Tribunal accepts that his removal from Australia will be highly distressing to his daughter and detrimental to her.
Strength, nature and duration of other ties to Australia
Under cl 9.4.1(2) of the direction, we consideration is being given to whether to revoke the mandatory cancellation of the fees are, the decision-maker must also consider the strength, nature and duration of any other ties that the non- citizen has to the Australian community in doing so I must have regard to:
(a)how long the non- citizen has resided in Australia, including whether the non- citizen arrived as a young child, noting that:
i. less weight should be given where the noncitizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non- citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The applicant has lived in Australia for almost 30 years, arriving when he was 20 years old. His first offence was within two years of his arrival. He has worked in Australia and has contributed through his work. He claims to have been the carer of his partner Ms F since she suffered a work-related injury.
The applicant has a strong links with the Australia community as his mother, brother, niece and daughter live in Australia. His daughter plans to be married soon and his grandchild will be born in October. The Tribunal considers this weighs heavily in favour of revoking he cancellation of his visa.
The applicant provided statements form the support worker for Ms F’s sister and three friends who live in Coober Pedy who support the revocation of the cancellation of his visa. The Tribunal finds they will suffer some distress if he is removed.
The applicant has resided in Australia for a long period of time and has strong family ties to Australia and some other ties. This factor weighs heavily in favour or revoking the cancellation of his visa.
CONCLUSION
Having considered the factors in the Direction, the Tribunal has found that of the primary considerations:
·The protection of the Australia community weighs somewhat in favour of not revoking the cancellation of the applicant’s visa;
·The family violence consideration is neutral;
·The best interests of minor children in Australia affected by the decision weigh moderately in favour of revoking cancellation of the visa.
·The expectations of the Australian community weigh somewhat in favour of not revoking the cancellation.
Of the other considerations:
·International non-refoulment obligations do not apply
·The extent of impediments if removed weighs moderately in favour of revoking the cancellations of his visa,
·The impact on victims is neutral, and
·The links to the Australian community weigh heavily in favour of revoking the cancellation.
According to cl 7(2) primary considerations should generally be given greater weight, however the Tribunal considers the bests interest of his minor niece and his links to the Australian community establish another reason the cancellation of his visa should be revoked under s 501CA(4)(b)(ii) of the Act.
DECISION
The decision under review is set aside and substituted with a decision to revoke the cancellation of the applicant’s visa.
I certify that the preceding one hundred and thirty-eight (138) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Millar
...............[sgnd]................................
Legal Associate
Dated: 12 August 2022
Date of hearing: 3 & 4 August 2022
Applicant: Bruno Harshazi
Representative for the Applicant:
Lochlan Reef MacNicol,
Work Visa Lawyers
Representative for the Respondent:
Alex Chan,
Sparke Helmore Lawyers
0
8
0