Hawkins and Minister for Home Affairs (Migration)

[2018] AATA 1462

Hawkins and Minister for Home Affairs (Migration) [2018] AATA 1462 (1 June 2018)

Division:GENERAL DIVISION

File Number:           2018/1507

Re:Roybyn Hawkins

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date:1 June 2018

Place:Brisbane

The decision under review is affirmed.

...........................[sgd].............................................

Senior Member Theodore Tavoularis

CATCHWORDS

MIGRATION – non-revocation of visa cancellation – where Applicant fails character test – where Applicant has committed over 180 offences – whether there is another reason to revoke the cancellation of Applicant’s visa – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

CASES

Suleman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Ministerial Direction No. 65

REASONS FOR DECISION

Senior Member Theodore Tavoularis

1 June 2018

INTRODUCTION

1. This matter relates to an application for review filed by Mr Roybyn Hawkins (“the applicant”) on 23 March 2018. The decision of which the Applicant seeks review is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated             19 March 2018 not to revoke the mandatory cancellation of the Applicant’s visa.

2. The Applicant was born in the United Kingdom in 1971 and arrived in Australia with his parents in December 1973.[1] He retains his UK citizenship but has never become a citizen of Australia. He has been residing in Australia since 1973 on a series of visas, most recently a permanent (Class BF) visa, which was granted by operation of law in September 1994.

   [1] Exhibit 4.

3. It is clear on the evidence that the Applicant has had, for around the last thirty years, a drug issue of some significance. He attributes this as being the cause of the approximately 180 offences he committed between 1989 and 2017.[2]

   [2] Exhibit 7, G-Documents, G13, pp 72-87.

4. A delegate of the Respondent cancelled the Applicant’s visa on 17 August 2017, on the basis that the Applicant had a substantial criminal record.[3] In September 2017, the Applicant sought the revocation of this mandatory cancellation.[4] However, in a decision dated 19 March 2018, a delegate of the Respondent decided not to revoke the mandatory cancellation of the Applicant’s visa.[5] It is this decision of which the Applicant seeks review.

   [3] Ibid, G3, pp 16-34.

   [4] Ibid, G16, pp 110-130.

   [5] Ibid, G10, pp 51-65.

5. The Tribunal has jurisdiction to review the delegate’s decision pursuant to s 500(1)(ba) of the Migration Act 1958 (Cth) (“the Act”).

   ISSUES

6. The issue lying at the heart of this cases is whether the discretion contained in s 501CA(4) of the Act should be exercised, such that the cancellation of the Applicant’s visa is revoked. In essence, there are two issues to be considered in determining whether this discretion should be exercised:[6]

   (a)Whether the Applicant passes the “Character Test”, contained in s 501 of the Act; and

   (b)Whether there is another reason why the mandatory visa cancellation decision should be revoked.

   [6] Migration Act 1958 (Cth), s 501CA(4)(b).

7. Each of these issues will be addressed in turn.

   ISSUE 1: DOES THE APPLICANT PASS THE CHARACTER TEST?

8. The “character test” is set out in s 501(6) of the Act, as augmented by s 501(7):

   (6) For the purposes of this section, a person does not pass the character test if:

   (a) the person has a substantial criminal record (as defined by subsection (7)); or

   …

   (7) For the purposes of the character test, a person has a substantial criminal record if:

   (a) the person has been sentenced to death; or

   (b) the person has been sentenced to imprisonment for life; or

   (c) the person has been sentenced to a term of imprisonment of 12 months or more; or

   (d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or

   (e) the person has been acquitted of an offence on the grounds of unsoundness of mind or insanity, and as a result the person has been detained in a facility or institution; or

   (f) the person has:

   (i) been found by a court to not be fit to plead, in relation to an offence; and

   (ii) the court has nonetheless found that on the evidence available the person committed the offence; and

   (iii) as a result, the person has been detained in a facility or institution.

9. It is clear that the Applicant has an extremely lengthy criminal record. Crucially, he was sentenced to two years’ imprisonment on 11 August 2004 in the Lismore Local Court for the offence of “take & drive conveyance w/o consent of owner”.[7] Plainly, this is a sentence to a term of imprisonment of more than 12 months, and so the Applicant has a “substantial criminal record” pursuant to s 501(7)(c) of the Act. The Applicant therefore does not pass the “character test” under s 501(6)(a) of the Act. Accordingly, his visa was appropriately cancelled pursuant to s 501 of the Act.

   [7] Exhibit 7, G-Documents, G13, p 82.

   ISSUE 2: IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?

10. As the Applicant’s visa was appropriately cancelled on the grounds that he did not pass the character test, pursuant to s 501CA(4)(b)(ii) of the Act, I will now turn to discussing whether there is another reason to revoke the cancellation.

11. In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No. 65 (“the Direction”) applies. The Direction provides guidance for decision makers on how to exercise the discretion. Relevantly, it states that:

    “…a decision maker: must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.” [8]

    [8] Direction No 65, paragraph 7(1)(b).

12. The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three primary considerations that the Tribunal must take into account:

    (a)Protection of the Australian community from criminal or other serious conduct;

    (b)The best interests of minor children in Australia; and

    (c)Expectations of the Australian community.

13. Paragraph 8(1) of the Direction provides that decision makers must take into account the primary and other considerations relevant to the individual case.

14. The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims; and

    (e)Extent of impediments if removed.

15. I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleman v Minister for Immigration and Border Protection:[9]

    Direction 65 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.[10]

    [9] [2018] FCA 594.

    [10] Ibid at [23].

16. Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision maker’s consideration. Briefly stated, they are as follows:

    (i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;

    (ii)The Australian community expects that the Australian government can and should refuse entry to non-citizens or cancel their visas, if they commit serious crimes in Australia or elsewhere;

    (iii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;

    (iv)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;

    (v)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;

    (vi)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia;

    (vii)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.

17. I will now turn to addressing these considerations.

    Primary Consideration A: Protection of the Australian community from Criminal or Other Serious Conduct

18. The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides that decision makers should also give consideration to:

    (a)the nature and seriousness of the non-citizen’s conduct to date; and

    (b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The Nature and Seriousness of the Applicant’s Conduct to Date

19. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1 of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:

    (c)The sentence imposed by the courts for a crime or crimes;

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

    (e)The Cumulative effect of repeated offending;…

20. Over the 28-year period between 1989 and 2017, the Applicant committed over 180 offences. Among those offences, he has been convicted of possessing drugs some 27 times. When put to the Applicant during the hearing, he accepted that but noted that he had never dealt drugs. He said he first used heroin in 1992 and has used marijuana since approximately 1985. He testified that he had used speed on and off throughout his younger years, and had been introduced to it when he was working as a tyre fitter. In cross-examination, he said he started using ice in 2013 and last took it the day before he was arrested in July 2017.

21. The Applicant has sporadically participated in methodone programmes, as well as other similar programmes.

22. There can be no doubt that the Applicant has, over the course of the last few decades, had serious issues with drug use and addiction. It is also apparent that he has sporadically gone on and off drugs. While the Applicant has emphasised that he has been drug-free for some 11 months, he struggled to point to any concrete reason preventing him from relapsing again. He pointed to his age and the need for him to be there for his family, but these considerations also applied before he was arrested, yet he still regularly used hard drugs. Ultimately, the Applicant conceded in cross-examination that it was only when the spectre of deportation reared its head that he properly considered going clean.

23. While I accept that almost all of the Applicant’s offending can be tied back to his drug use – be it possession charges, stealing to feed his habit, or antisocial or violent behaviour because of he was high – that does not, and cannot, detract from the overwhelming length of his criminal record. To use a crude measure, the Applicant has been convicted for an average of six offences a year over some 28 years. Put another way, that is an average of one conviction every two months for a period of 28 years. Even if I were to accept that the majority of the Applicant’s convictions were minor in and of themselves, the sheer frequency of offending over a sustained period of time is undoubtedly very serious. As noted by Magistrate Kilner on 4 August 2017, the Applicant’s offences in and of themselves are “not the most serious kind, but they are made more serious by [his] ever-increasing criminal history with offences of a similar kind.”[11] Simply, the cumulative effect of this offending cannot be anything other than great.

    [11] Exhibit 7, G-Documents, G15, p 107.

24. It is also worthwhile noting that not all of the Applicant’s offending can be characterised as minor. He has been sentenced to a substantial number of terms of imprisonment.

25. In consideration of the above, I find that the nature of the Applicant’s offending is largely drug-related and that the sheer volume of offending perpetrated by the Applicant can only be considered very serious. This element therefore weighs heavily against the revocation of the cancellation of the Applicant’s visa.

    The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct

26. Paragraph 13.1.2(1) provides that a decision maker should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:

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

    (ii)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 reoffending.

27. With respect to the first of these factors, the Applicant’s offending is typified by drug possession and minor property charges. However, he has also shown a tendency towards violent outbursts and domestic violence, as well as more significant bursts of property crime, especially car theft, it seems. I consider these kinds of offending to be particularly serious.

28. Put simply, the likelihood of the Applicant engaging in further criminal conduct is high. The Applicant has given some oral evidence about engaging in some relapse-prevention clinics, counselling and drug rehabilitation programmes. However, he has not tendered any corroborating evidence of the manner in which he has participated in these programmes, or his success in them. He has further failed to tender any psychiatric or other evidence to show either that he is presently clean or that he has successfully been rehabilitated or that he is unlikely to relapse. His brother said he genuinely believed the Applicant had turned a corner and would cease his drug use. However, there is simply no medical evidence supporting that contention.

29. Consequently, and in consideration of the fact the Applicant has been using drugs in some form or another for more than 30 years, and where so much of his offending is tied to his drug use, I find that there is a considerable likelihood that the Applicant will reoffend. This is particularly the case in circumstances where the Applicant attests to having undertaken a considerable number of formal residential rehabilitation programmes in the 1990s but then relapsed. Simply, there is insufficient evidence for me to believe that, upon re-entering the public world and all the temptations therein, the Applicant is unlikely to use drugs again, or indeed to offend again.

30. I am highly doubtful of the assertion, put by the Applicant, that he will simply be able to escape from this 30-year maelstrom of drug use and criminal offending. While any one offence he may commit may not pose a particularly serious threat or risk to the Australian community or individuals therein, it is the cumulative effect of his offending that is troubling, and which compounds the seriousness of the risk he poses to the Australian community. There is further the risk that the Applicant’s offending will stray once again into violence – especially domestic violence – or major property crimes. In combination, I consider that there is a considerable risk to the Australian community should the Applicant continue to commit further offences.

31. In consideration of the above, I find that the protection of the Australian community from criminal or other serious conduct weighs heavily against the revocation of the cancellation of the Applicant’s visa.

    Primary Consideration B: The Best Interests of Minor Children in Australia Affected by the Decision

32. The Applicant has one minor child, a daughter who was born in 2012 and who is an Australian citizen.  

33. Paragraph 13.2(1) of the Direction provides that a decision maker must make a determination about whether revocation is, or is not, in the best interests of the child. This consideration only applies if the child is under 18 years old at the time of the decision.[12] Clearly, this applies in the present case.

    [12] See Direction No. 65 at paragraph 13.2(2).

34. Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, some of the factors include:

    ·(a) The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where… there have been long periods of absence, or limited meaningful 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…;

    ·(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 other ways they could maintain contact;

    ·(e) Whether there are other persons who already fulfil a parental role in relation to the child.

35. The Applicant’s evidence at the hearing was that he has not seen his daughter since late 2013, when she was around 18 months old. He said he has, however, kept in phone contact with her every couple of weeks. He attests that he talked to her as recently as the week before the hearing.

36. Upon being asked in cross-examination why he had not seen his daughter since 2013, the Applicant initially said this was because of the terms of his parole, which prevented him from visiting his daughter, who lived with her mother in New South Wales. He accepted that he had not tried to get permission to see his daughter for brief periods while he was on parole. The Applicant justified this by saying that he wanted to wait until he could spend substantially longer periods of time with his daughter.

1. The Applicant accepted that he was not on parole for the entirety of the period between when he last saw his daughter and when he was arrested in July 2017. In part, the Applicant attributed this to the fact he had heard that his daughter’s mother was seeing someone new, and he did not want to “upset things” with his ex-partner and cause further conflict there. In cross-examination, the Applicant also said part of the reason why he did not see his daughter during this three and a half year period was because he had his own issues he needed to deal with. I note that he was using ice and opiates during that time.

2. It is clear that the Applicant loves his daughter dearly. However, it is notable that his daughter did not live with the Applicant while her mother spent some 11 months in prison in the period 2013-2017. The evidence is that she lived with her mother’s parents. The Applicant has also testified that he has given financial support to his daughter and to her mother over the years, even while he and the mother were separated.

3. Clearly, the Applicant has had extended periods of absence from his daughter. While he has maintained regular contact with her by phone, that does not – and cannot – replace the value of in-person contact with her. It seems that the Applicant’s offending and more generally his drug use has had a negative impact on the Applicant because it has prevented him from contacting her in person. I find that the possibility of a relapse indicates that he may also not play a positive role for her in the future. Any separation resulting from the cancellation of the Applicant’s visa would merely maintain the status quo in terms of his relationship with his daughter. Fortunately, this means he would maintain regular phone contact with her. I note that the Applicant’s daughter has a number of people playing parental or otherwise supportive roles in her life, including her mother and her mother’s parents.

4. In consideration of all of the above, I find that this factor weighs in favour of the revocation of the Applicant’s visa. However, its weight is lessened by the already-lengthy absence of the Applicant from his daughter’s life, the fact he has already done much to maintain his relationship with her by keeping in regular telephone contact and by the high risk of recidivism.

   Primary Consideration C: Expectations of the Australian Community

5. I turn now to the final primary consideration: the expectations of the Australian community.  In making this assessment, paragraph 13.3(1) of the Direction provides that I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, the trust of the Australian community. I must also have regard to the Government’s views in this respect.

6. The basic question arising from this primary consideration is whether the Australian community would reasonably expect that a person with this Applicant’s criminal history should be allowed to hold a visa to remain in this country. Paragraph 13.3(1) of the Direction directs a decision-maker to endorse non-revocation as an appropriate finding simply because the nature of this Applicant’s offending is such that the Australian community would expect that he should not hold a visa.

7. The real question with respect to this Primary Consideration C is surely whether the Australian community as whole would expect that a non-citizen with the Applicant’s history of offending should retain the right to remain in Australia.  Each offender’s criminal history and circumstances of offending is different.  This broadly stated question must be broken down into a series of components so that it is properly understood.

8. The evidence of the Applicant’s brother was that the Australian community would be supportive of the Applicant remaining in Australia. With respect, I disagree. The weight of the Applicant’s criminal record is overwhelming. I simply cannot find that the Australian community would expect that a person with a criminal record as lengthy as the Applicant’s would be allowed to continue to reside in Australia. I find this particularly in the circumstances where the Applicant has committed acts of domestic violence and stalking in the past.

9. Consequently, I find that this factor weighs against the revocation of the cancellation of the Applicant’s visa.

10. I will now turn to the other considerations.

    Other Considerations

11. There are five “other considerations” disclosed in the Direction:

    (a)International non-refoulement obligations;

    (b)Strength, nature and duration of ties;

    (c)Impact on Australian business interests;

    (d)Impact on victims;

    (e)Extent of impediments if removed.[13]

    [13] The Direction, [14(1)].

12. I will address each of these considerations, and their respective weights, in turn.

    International non-refoulement obligations

13. The Applicant is a UK citizen and has not raised any issues regarding any claims of refugee status or other considerations relevant to international non-refoulement obligations. Consequently, this consideration is not relevant and so neither weighs in favour nor against the revocation of the cancellation of the Applicant’s visa.

    Strength, nature and duration of ties

14. There can be little doubt that the Applicant has deep-seated ties to Australia. He has resided here since he was two years of age, and clearly considers himself an Australian. It seems that his entire family, including both his parents, his surviving grandparents, daughter, brother and aunties and uncles also reside here. I consider that this constitutes strong ties, developed over the course of around 45 years. Consequently, I consider that this factor weighs strongly in favour of the Applicant’s remaining in Australia.

    Impact on Australian business interests

15. The Applicant has stated that Mr Darren Rann, a landscaper, has been offered him work should he return to Australia.[14] This is to the Applicant’s credit. It would appear that it is therefore in Australian business interests that the cancellation of the Applicant’s visa should be revoked. However, there is no evidence regarding the level of impact that the Applicant’s inability to undertake this work would have. It seems, though, that his work would be largely unskilled. Consequently, while this factor weighs in favour of the Applicant, it should only be given minor weight.

    [14] Exhibit 1.

    Impact on victims

16. No evidence was led by the Respondent about the impact on the Applicant’s victims of his being allowed to remain in the country. Consequently, I afford this consideration no weight.

    Extent of impediments if removed

17. It is evident that the Applicant has support networks in Australia, the loss of which would theoretically be an impediment to his being removed from Australia. However, he would be removed to the UK, where he speaks the language and where there would be no greater impediment to his trying to find employment than there would be here. On the balance, I find that this factor weighs neither in favour nor against the cancellation of the Applicant’s visa.

    Conclusion: Issue 2

18. In consideration of all of the above, primary consideration A overwhelmingly weighs against the revocation of the cancellation of the Applicant’s visa, whilst primary consideration B weighs in favour of it, albeit rather more weakly. Primary consideration C weighs against revocation, too. The balance of the other considerations weighs in favour of revocation. There are no relevant non-refoulement obligations, but the Applicant has strong ties to Australia, which adds some weight to the case in favour of revocation. The impact on Australian business interests only has a slight impact favouring revocation, but the impact on victims, to the extent that there is one, weighs against revocation. Finally, the extent of impediments is neutral on the question of revocation.

19. Balancing these factors, the great weight of primary consideration A cannot be overcome by the close family ties the Applicant has to Australia, the impact it will have on his daughter, and any impact it will have on Australian business interests. He will face little impediment to living in the UK. Overall, then, I cannot find that there is another reason to revoke the cancellation of the Applicant’s visa.

    CONCLUSION

20. It is apparent that the Applicant has had a difficult, tragic life. He has lost a daughter in a car accident and has had decades-long struggles with drug use and abuse. He also clearly has a family that loves him dearly. However, he also has an extraordinarily long criminal history, running to some 180 individual convictions over 28 years. Unfortunately, it is impossible to reconcile this criminal history and the risk of the Applicant relapsing and reoffending with his remaining in Australia. The balance of the primary and other considerations does not weigh in favour of the revocation of the cancellation of the Applicant’s visa. Consequently, I will not use my discretion to revoke the cancellation of his visa. The decision under review must be affirmed.

I certify that the preceding 56 (fifty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis

..............................[sgd]..........................................

Associate

Dated: 1 June 2018

Date of hearing:	25 May 2018
Applicant:	By video-link
Advocate for the Respondent:	Mr J Kyranis
Solicitors for the Respondent:	Sparke Helmore