HLXZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 45
•22 January 2024
HLXZ and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 45 (22 January 2024)
Division: GENERAL DIVISION
File Number(s):2023/8082
Re:HLXZ
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Antoinette Younes
Date: 22 January 2024
Place:Sydney
The Tribunal affirms the decision under review.
....................................[SGD]....................................
Deputy President Antoinette Younes
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – extensive criminal record – over 100 offences committed – kidnapping for ransom – importing/exporting marketable quantity of controlled drugs/plants – possessing dangerous drugs – making and possessing counterfeit money – escaping from police custody – possessing an unregistered firearm – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 99 – nature and seriousness of offending conduct – protection of the Australian community – strength nature and duration of ties to Australia – best interests of minor children – expectations of the Australian community – impediments to removal – decision affirmed
LEGISLATION
Children (Criminal Proceedings) Act 1987 (NSW) s 14
Crimes Act 1914 (Cth) s 85ZR
Migration Act 1958 (Cth) ss 189, 196, 197C, 198, 499, 501, 501CA
Youth Justice Act 1992 (Qld)
CASES
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2020] HCATrans 056
GBV18 v Minister for Home Affairs [2020] FCAFC 17
Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (S12/2023)
Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17
Nepata v Minister for Home Affairs [2019] FCA 1197
Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
SECONDARY MATERIALS
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Deputy President Antoinette Younes
22 January 2024
BACKGROUND
The Applicant was born on 20 May 1966 in the United Kingdom (UK).[1] He arrived in Australia on 18 May 1968 and he has remained in Australia.
[1] Ex 12, 120.
The Applicant has a long history of criminal offending that began when he was a juvenile. On 17 November 2020, the Applicant was convicted of dangerous operation of a vehicle and sentenced to 9 months’ imprisonment. That offence was committed at the conclusion of the kidnapping for ransom offence, for which the Applicant was sentenced to 6 years’ imprisonment. Those offences were committed in 2019 and the Applicant was convicted on 30 May 2022.[2] On appeal to the Supreme Court of Queensland, on 4 October 2023, the Supreme Court varied the sentence imposed on 30 May 2022 by substituting five years for six years.[3]
[2] Ex 12, 53-57.
[3] Ex 12, 64-79.
The sentence gave rise to the Applicant not passing the character test under s 501(6)(a) of the Migration Act 1958 (Cth) (the Act).
On 25 August 2022, the Applicant’s Class BF transitional (permanent) visa (the Applicant’s visa) was cancelled mandatorily pursuant to s 501(3A) as the Applicant had been sentenced to a term of imprisonment of over 12 months and was serving a full-time sentence of imprisonment in a custodial institution. On 26 August 2022, the Applicant made representations seeking revocation of the mandatory cancellation decision, and on 25 October 2023, the delegate decided not to revoke the mandatory cancellation of the Applicant’s visa.[4]
[4] Ex 12, 8-37.
On 31 October 2023, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of the delegate’s decision.[5]
[5] Ex 12, 1.
LEGISLATION
Section 501(3A) of the Act compels the Respondent to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii)…; and
(b) the person 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.
Section 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record.’
Section 501(7) of the Act provides:
(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.
Section 501CA of the Act applies if the Respondent makes a decision under subsection 501(3A) of the Act to cancel a visa that has been granted to a person.
Section 501CA(4) provides:
(4) TheMinister 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.
MINISTERIAL DIRECTION NO. 99
The Respondent is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act. Except for the Respondent acting personally, the Direction must be applied by all decision-makers, such as the Respondent’s delegates and the Tribunal.[6]
[6] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69 [4].
On 23 January 2023, the Respondent signed 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). The Direction commenced on 3 March 2023 and revoked the previous Direction 90.
The preamble in Direction No 99 sets out the objectives[7] and the overarching principles[8] that provide the framework within which decision-makers should approach their task under ss 501 and 501CA.
[7] Direction 99 [5.1].
[8] Direction 99 [5.2].
The following principles in paragraph 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel and revoke cancellation of a visa, Australia will generally 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. 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.
(6)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 8.55(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.
A decision-maker must take into account the considerations identified in paragraphs 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction identifies the following as primary considerations:
(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; and
(5)Expectations of the Australian community.
Paragraph 9 of the Direction identifies the non-exhaustive list of Other considerations:
a)Legal consequences of the decision;
b)Extent of impediments if removed;
c)Impact on victims; and
d)Impact on Australian business interests.
Paragraph 7(1) provides that, when taking the relevant considerations into account, “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.”
MATERIAL BEFORE THE TRIBUNAL
The Tribunal has the following material before it:
·The Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated 24 November 2023 (Exhibit 1);
·The Respondent’s SFIC dated 8 December 2023 (Exhibit 2);
·The Applicant’s reply dated 16 December 2023 (Exhibit 3);
·The Applicant’s Statement dated 19 November 2023 (Exhibit 4);
·International Health and Medical Services (IHMS) records filed on 16 December 2023 (Exhibit 5);
·Witness Statement from the Applicant’s cousin filed on 19 December 2023 (Exhibit 6);
·Witness Statement from the Applicant’s aunt filed on 19 December 2023 (Exhibit 7);
·Applicant’s Statements dated 17 and 18 December 2023 (Exhibit 8);
·Documents about contact between the Applicant and his youngest daughter (Exhibit 9);
·Notes from the Applicant’s daughter, dated 1 January 2024 (Exhibit 10);
·Respondent’s Tender Bundle, filed on 8 December 2023 (Exhibit 11); and
·G-Documents, filed on 14 November 2023 (Exhibit 12).
Four witnesses attended the hearing and gave evidence in support of the Applicant.
FINDINGS AND REASONS
The character test is defined in s 501(6) of the Act. The test is generally concerned with the protection of the Australian community from the risk of harm.
As mentioned earlier, on 30 May 2022, the Applicant was convicted by the District Court of Queensland of kidnapping for ransom for which he was sentenced to 6 years’ imprisonment.[9] On appeal to the Supreme Court of Queensland, on 4 October 2023, the Supreme Court varied the sentence imposed on 30 May 2022 by substituting five years for six years.[10]
[9] Ex 12, 53-57.
[10] Ex 12, 64-79.
A person does not pass the character test only if one of the paragraphs in s 501(6) applies to that person. In this case, the delegate determined that the Applicant did not meet the character test under s 501(6)(a) because the Applicant has a 'substantial criminal record' on the basis of having been sentenced to a term of imprisonment of 12 months or more and was 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.
It is not in dispute that the Applicant does not meet the character test and failure to meet the character test arises as a matter of law.[11] As a sentence of 12 months or more is ‘a term of imprisonment for 12 months or more’ within the meaning of s 501(7)(c) of the Act, the Applicant has a ‘substantial criminal record’ and he does not pass the character test.
[11] Re Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 [63].
The issue before the Tribunal is whether there is another reason the cancellation of the Applicant’s visa should be revoked.
The purpose of the Direction is to guide decision-makers exercising powers under the Act. Delegates and the Tribunal must generally follow the Minister’s Direction. The Direction identifies certain principles which provide a framework within which decision-makers should approach their task.[12] It prescribes relevant considerations which must be taken into account. It provides guidance only as to the manner in which they are to be balanced.
[12] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [80]–[81]. The Court was discussing Direction No 55, but the reasoning applies equally to Direction 99.
The Direction does not determine rules of general application, but gives directions to the decision-maker, including the Tribunal, as to the policy to be applied in exercising the power conferred by ss 501 and 501CA of the Act. The Direction does not derogate from the Tribunal’s duty to reach the correct or preferable decision in the particular case before it; the Direction has that end as its purpose.[13]
[13] Uelese v Minister for Immigration and Border Protection [2016] FCA 348 [50].
While decision-makers are bound to take into account certain considerations, they are not limited to those set out in the Direction.[14] The Direction specifies the relative, but not the actual, weight to be given to those considerations. The Tribunal is obliged to examine the merits of the case and decide for itself.[15] The weight to be given to any particular matter is a matter for the decision-maker and cannot be the subject of some formulaic approach.[16] Phrases such as ‘should generally be given greater weight than the other considerations’ and ‘one or more primary considerations may outweigh other primary considerations’ have been interpreted as provisions that are intended to provide guidance to the decision-maker as to how the balancing exercise required by the Direction should be approached. These phrases leave it open to the decision-maker to adopt a different approach in the individual case.[17] It is not the content of the Direction which determines the outcome of the decision, but rather it is the application by a decision-maker to the evidence and material in an individual case.[18]
THE PRIMARY CONSIDERATIONS
[14] GBV18 v Minister for Home Affairs [2020] FCAFC 17.
[15] See Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [21].
[16] Howells v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 139 FCR 580 [127].
[17] Minister for Immigration and Border Protection v Lesianawai (2014) 227 FCR 562 [83].
[18] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461 [78].
Protection of the Australian community from criminal or other serious conduct
The Direction contemplates that decision-makers should have particular regard to the principle that ‘entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.’[19] It indicates that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.[20]
[19] Direction 99 [8.1(1)].
[20] Direction 99 [8.1(2)].
Whether there is a risk that a person would engage in specified conduct requires an evaluative judgement by the decision-maker.[21]
The seriousness of the Applicant’s conduct
[21] See Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 [2]. The Court considered s 501(1), but the reasoning also applies to ss 501(2) and 501(3A).
The Applicant’s criminal history
The Applicant has a long criminal history that began when he was a juvenile.
The judgment of Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton (2023)[22] is of relevance; the High Court found that it was an error for the Tribunal to take into account offences for which Mr Thornton was found guilty as a juvenile, but where no conviction was recorded under the Youth Justice Act 1992 (Qld). The High Court considered that the Youth Justice Act 1992 (Qld) engaged s 85ZR(2) of the Crimes Act 1914 (Cth), which among other things, notes that where a State law provides a person is taken never to have been convicted of an offence in particular circumstances or for a particular purpose, the person shall be taken by the decision-maker under the Act never to have been convicted of that offence under s 85ZR(2) of the Crimes Act 1914 (Cth). The Tribunal notes that the Respondent does not accept that s 14 of the Children (Criminal Proceedings) Act 1987 (NSW) is equivalent to the relevant provisions of the Youth Justice Act 1992 (Qld), but as this issue is before the Full Court of the High Court in Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (S12/2023), the Respondent submitted that it would be prudent for the Tribunal not to place weight on these youth offences under Direction 99.[23]
[22] Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17.
[23]Ex 2, 6.
The Tribunal accepts the Respondent’s submissions that the Tribunal should not take the juvenile offences into account for the purposes of this review. The Tribunal has not taken those offences into account.
The Applicant’s following criminal history as an adult shows that his offending is extensive and serious.[24]
[24] Ex 12, 38-47, 53-57.
·On 22 October 1984, the Applicant was convicted of three counts of Imposition and was fined $250.
·On 10 November 1986, the Applicant was convicted of Stealing S501 and a recognizance was imposed.
·On 29 May 1987, the Applicant was convicted of Stealing, and was sentenced to periodic detention of 4 months.
·On 29 February 1988, the Applicant was convicted of Low PCA and his license was disqualified for 6 months.
·On 7 March 1988, the Applicant was convicted of FTA.
·On 21 March 1988, the Applicant was convicted of Steal MV (FIW), Accessory after the Fact and three counts of Receiving.
·On 12 October 1989, the Applicant was convicted of fraudulently use LIC, state false name and place of abode, cancelled driver and mid PCA.
·On 30 March 1990, the Applicant was convicted of resist arrest (two counts).
·On 2 November 1990, the Applicant was convicted of break, enter and steal and was fined $360.
·On 4 September 1992, the Applicant was convicted of nine charges of imposition on Commonwealth and sentenced to 2 years' imprisonment for the first charge and 12 months' imprisonment for each of the following 8 charges.
·On 22 September 1992, the Applicant was convicted of Obtain Credit by Fraud.
·On 18 August 1993, the Applicant was convicted of escape lawful custody and sentenced to 15 months' imprisonment.
·On 14 January 1994, the Applicant was convicted of 19 offences of open account/false name and sentenced to 12 months' imprisonment on each count. The Applicant was also sentenced for other dishonesty offences on that day.
·On 5 March 1996, the Applicant was convicted of steal with circumstances of aggravation and sentenced to 2 years' imprisonment. On the same day, the Applicant was convicted of false pretences and sentenced to 9 months' imprisonment.
·On 3 May 1999, the Applicant was convicted of multiple charges of obtain financial advice by deception, multiple charges of imposition, and receiving. He was sentenced to 2 years' imprisonment.
·On 31 October 2001, the Applicant was convicted of escape police custody and sentenced to 6 months' imprisonment. On the same day, the Applicant was convicted of drive vehicle recklessly or speed/manner dangerous and sentenced to 3 months' imprisonment.
·On 22 October 2004, the Applicant was convicted of possession of more than three unregistered firearms and was sentenced to 8 years' imprisonment. Other offences were taken into account on a form one. These included drug offences, offences relating to the possession of ammunition and unlawfully possess etc a prescribed restricted substance.
·On 3 August 2005, the Applicant was convicted of 2 counts of knowingly obtain payment not payable and sentenced to 12 months' imprisonment.
·On 15 July 2009, the Applicant was convicted of trafficking in dangerous drugs and sentenced to 5 years' imprisonment.
·On 17 January 2012, the Applicant was convicted of offences for making, possessing and uttering counterfeit money and was sentenced to 2 years' imprisonment. On the same day, the Applicant was convicted of two counts of stealing and was sentenced to 1 month's imprisonment, breach of bail condition and was sentenced to 2 months' imprisonment, and attempted fraud and was sentenced to 8 months' imprisonment.
·On 26 April 2012, the Applicant was convicted of breach of suspended sentence imposed on 15 July 2009; 4 years of that suspended sentence was subsequently required to be served concurrently with a sentence already being served.
·On 17 November 2015, the Applicant was convicted of 2 counts of importing a marketable quantity of border-controlled drugs, possessing dangerous drugs, possessing property suspected of having been acquired for the purposes of committing a drug offence and possess property suspected of having been used in connection with the commission of a drug offence. The Applicant was sentenced to periods of imprisonment ranging from 12 months' imprisonment to 6 years and 6 months' imprisonment. The effective sentence was reduced to 5 years 11 months' imprisonment on reconsideration.
·On 17 November 2020, the Applicant was convicted of dangerous operation of a vehicle and sentenced to 9 months' imprisonment.
·On 30 May 2022, the Applicant was convicted of kidnapping for ransom and sentenced to 6 years' imprisonment. That sentence was reduced to 5 years’ imprisonment on appeal on 4 October 2023. The Applicant had also been sentenced to 3 months imprisonment for making a false declaration.
In the Applicant’s SFIC and in further submissions, the Applicant accepted that his offending is serious. He however argued that the Tribunal ought to consider the extensive criminal record in the context of the Applicant being brought to Australia as an “innocent infant … who was abandoned by his parents, his father committed suicide, and he left to be raped, and suffered, for years”.[25] It was noted that at the age of 43 years, the Applicant was assessed as having an IQ equivalent to that of a six or seven year old.
[25] Ex 1 [19].
The Tribunal observes that in a report dated 8 July 2009,[26] Ms Meg Perkins, Psychologist, assessed the Applicant as having an intellectual disability, as well as a “specific language disability”. Ms Perkins referred to the Applicant’s IQ scores in a test administered in 2003 indicating that “IQ scores at this level indicate a functional level of about six or seven years old … [the Applicant] has committed offences but it would appear that they are usually in association with another person who had the ability to plan and organise the crime”.[27]
[26] Ex 12, 275-279.
[27] Ex 12, 276, 279.
A Psychiatric Assessment Report of Dr Matthew Tagkalidis, Psychiatrist, dated 19 January 2023,[28] referred to the sexual abuse endured by the Applicant and noted that:
“[The Applicant] said that he started drinking alcohol the age of 14 and this was 3 to 4 days per week in the subsequent years and progressed to 4 to 6 stubbies daily and large bingers on the weekends in order to be able to have sex with his wife. He said that this ceased in 2019 (see below). He said that he 'dabbled' in smoking marijuana in his teenage years, and that he started smoking ice amphetamine at the age of 17 and this had been a daily habit until 2019. He said that for more than 15 years, he was a drug courier and accessed the ice amphetamine via this means. He said that ice amphetamine was 'the best to make me happy.' He said that he had also occasionally snorted cocaine in his teenage and early adult years.”[29]
[28] Ex 12, 376-386.
[29] Ex 12, 377.
The Tribunal notes that in sentencing the Applicant on 17 November 2015 for a number of drug related offences, the Sentencing Court observed:
As I observed to you when I last sentenced you, there is, in effect, a point of diminishing return in relation to the mitigating features that I have identified about your personal circumstances, as compelling as they are and as much sympathy as one may have for them. The reality is, notwithstanding the fact that one would not wish your earlier bad life experience in terms of your upbringing on anyone, that others have suffered similarly appalling upbringings yet they manage to obey the law.
You were born in 1966. You are a middle-aged man. Only you can control your fate. Only you can control whether or not you offend. And the time has long passed when one can entirely excuse your offending by reason of your terrible background and for that matter by reason of the psychological and intellectual issues that you unfortunately have. That is not to say I disregard them. As I say already, I intend to have regard to them in mitigation. The practical reality is that they do not count as compellingly as they might for an offender with a much less significant criminal history than yours.
…
Before leaving aggravating and mitigating features I should also note for completeness that I take into account the now legislative reality of which I have been informed, without disagreement, that because you are not an Australian citizen, notwithstanding that you have lived here for many, many years, recent legislative changes federally have the consequence that you will be deported, I infer, to your home country of Wales, when you have served your period of actual imprisonment.
It is submitted, and I accept, that is a relevant mitigating consideration. It is relevant in this way: a consequence of your offending over and above any penalty I impose is that you will be deported away from the country where you have long lived and which you have long called home, where your wife and child are located, indeed, where your child was born. That consequence gives rise to a more onerous outcome overall, thus making it a relevant consideration in arriving at the appropriate sentence to be imposed.[30]
[30] Ex 12, 89.
The Tribunal acknowledges that the Applicant is not advancing those explanations as an excuse for his serious conduct but is asking the Tribunal to take this background into consideration. The Tribunal expresses its sympathy and empathy for the Applicant’s background and disability; however, the Tribunal gives significant weight to the Court’s remarks about the taking of responsibility, self-control and that “others have suffered similarly appalling upbringings yet they manage to obey the law”.
The circumstances of the kidnapping for ransom are in the agreed statement of facts as noted by the Supreme Court of Queensland, summarised as follows:
·The victim owed the Applicant $3,500 who wanted the money back. The victim was owed money from people in the surrounding area. The Applicant told the victim to obtain the money from these people.
·On 9 August 2019, the Applicant called and messaged the victim numerous times. Shortly before 2.00pm on 9 August 2019, the Applicant and his co-offenders ordered the victim into a vehicle before one of the co-offenders punched the victim in the face and demanded he empty his pockets. The victim offered to go and see other people who owed him money. The Applicant threatened the victim.
·The Applicant, his co-offenders and the victim attended other residences and work areas, seeking to recover outstanding debts owed to the victim. During this period, the victim was punched by one of the co-offenders at various times throughout the afternoon.
·The attempts to obtain the outstanding monies were unsuccessful and the Applicant, his co-offenders and the victim returned to a unit where the victim unsuccessfully tried to contact a number of people via text and Facebook messages seeking money.
·During that time, the victim was punched to the head multiple times by the Applicant and co-offenders causing him extreme pain and leaving him fearful for his life. One of the co-offenders hit the victim in the head with a chair with metal legs. There was a discussion between the Applicant and one of his co-offenders about “knocking” the victim, putting him into a car and setting it alight. One of the co-offenders turned the kettle on and threatened to pour boiling water over the victim.
·During the afternoon, the victim contacted his mother, requesting money and she heard the victim being hit. The victim contacted his brother, who could hear him crying and grunting as he was hit by one of the offenders.
·Subsequently, it was arranged between the victim and his brother that they would meet at a shopping centre where the brother would give the offenders $1,500. The Applicant told the brother to bring that money where they would arrange a “payment plan” for the remainder of the money. The Applicant threatened to break the victim’s legs if payment was not made.
·In the meantime, the victim’s brother and mother contacted police who arranged to covertly attend the meeting place. During this period, the Applicant struck the victim in the face.
·A female associate of the Applicant arrived at the unit. She observed the victim with a swollen black eye. The Applicant threatened her as she also owed the Applicant money. He told her police did not know her car and she had to drive them to meet the victim’s brother to collect the money, otherwise “she would end up” like the victim. She drove the Applicant, one of the co-offenders and the victim to the meeting place. The Applicant told the victim to get the money from the brother and to meet him at a fast food outlet. The victim was found by police and taken to hospital for treatment.
·When police sought to arrest the Applicant and his co-offenders on 10 August 2019, the Applicant drove at speed, drifting across three lanes of traffic.
·The victim suffered a number of injuries including right eye socket fractures, a right cheek fracture, a nose fracture, a right jaw fracture, significant swelling and bruising to the right eye.[31]
[31] Ex 12, 66-68.
The count of kidnapping for ransom was contained on a three count indictment. The remaining counts were common assault and assault occasioning bodily harm, in company. After the Applicant pleaded guilty to the count of kidnapping for ransom, the Crown entered a nolle prosequi in respect of the remaining two counts, insofar as they relate to the Applicant.[32]
[32] Ex 12, 66.
In the course of the hearing, there was an extensive discussion relating to whether the Tribunal ought to take into consideration the agreed statement of facts setting out elements of violence in relation to the conviction of kidnapping for ransom.
Relevantly, the Supreme Court of Queensland observed as follows:
In the present case, whilst it had been agreed between the parties, when accepting a submission to not proceed further in respect of the counts of common assault and assault occasioning bodily harm in company, that the circumstances of the infliction of violence in the course of the kidnapping offence would be the subject of express reference in the agreed statement of facts, that agreement did not permit the applicant to be sentenced in respect of the kidnapping offence on the basis he had committed those offences of violence. To do so would breach the prohibition as those acts of violence constituted separate offences. There was no element in the offence of kidnapping for ransom which included the infliction of actual violence, nor did those acts fall within the scope of a circumstance of aggravation for an offence of kidnapping for ransom.
That being so, it was impermissible for the sentencing judge to treat the fact that the applicant had inflicted actual violence on the complainant in the course of the kidnapping for ransom offence as a feature of the applicant’s criminality which rendered it a more serious example of the offence.
A perusal of the sentencing remarks establishes the sentencing judge did, in fact, sentence the applicant on that basis. Accordingly, the sentencing discretion was infected by error.[33]
[33] Ex 12, 72.
The Tribunal notes that the agreed statement of facts refers the violence committed by the Applicant. However, as mentioned by the Tribunal, given that the Supreme Court of Queensland found an error in the Sentencing Court’s exercise of discretion, the Tribunal is of the view that it would be unreasonable of the Tribunal to find that there was an element of violence in the offence of which the Applicant has been convicted. In any case, the actual offence of kidnapping for ransom is a serious offence, regardless of whether the Applicant had in fact inflicted harm on the victim. The seriousness of the conduct is evident in the Supreme Court’s reference to features of the offending. The Court noted that the offence of kidnapping for ransom was a “particularly serious offence”.[34]
[34] Ex 12, 68.
The Tribunal is satisfied that overall, the Applicant’s offending is very serious, which has been conceded by the Applicant. The Applicant’s offending includes dangerous operation of a vehicle, importing/exporting marketable quantity of controlled drugs/plants, possessing dangerous drugs, making and possessing counterfeit money, escaping from police custody, possessing an unregistered firearm, driving recklessly, stealing with aggravation, and multiple crimes of dishonesty and deception. There is some merit in the Respondent’s description of the Applicant as a “career criminal who has been a blight on the Australian community for decades causing harm and misery to members of the Australian community through his crimes”.[35]
[35] Ex 2 [53].
For those reasons and on balance, the Tribunal is satisfied that the nature and seriousness of the Applicant’s criminal offending weigh heavily against revocation.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The Direction states that decision-makers must have regard to the following considerations cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i.information and evidence on the risk of the noncitizen 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
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.
The Direction contemplates that 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.[36] In some circumstances, it may be permissible to conclude that any type of continued offending increases the risk of further violent offending.[37] The Tribunal needs to consider the likelihood and consequences of further offending.[38]
[36] Direction 99 [8.1.2(1)].
[37] Nepata v Minister for Home Affairs [2019] FCA 1197 [30].
[38] Tanielu v Minister for Immigration and Border Protection [2014] FCA 673 [95].
The Applicant has expressed his remorse for his “unacceptable actions”.[39] He contended and provided supporting evidence that he has participated in rehabilitation courses accessible to him in custody.[40] The Applicant gave evidence, confirmed by his daughter that if released, the Applicant would stay close to her and secure employment in the mines.
[39] Ex 1 [26].
[40] Ex 12, 167-169.
The Applicant asked the Tribunal to take into consideration his background and to display a greater degree of tolerance of the Applicant’s criminal conduct so that this consideration be given weight in favour of revocation.[41]
[41] Ex 1 [29].
The Respondent contended that there remains a significant likelihood of the Applicant reoffending, causing serious harm.[42]
[42] Ex 2 [55]-[56].
The Tribunal appreciates that past conduct is not necessarily an accurate predictor of future conduct, it is nevertheless relevant. The Tribunal notes that the Applicant was first found guilty of offences as an adult in 1984. Since then, he has been found guilty or convicted of offences in 1984, 1986, 1987, 1988, 1989, 1990, 1992, 1993, 1994, 1996, 1999, 2001, 2004, 2005, 2009, 2012, 2015, 2020 and 2022. The Applicant has committed more than 100 offences and has been sentenced to imprisonment with terms ranging from 3 months to 8 years imposed on at least 13 occasions. [43]
[43] Ex 12, 38-47.
The imposition of significant terms of imprisonment has not deterred the Applicant. On 15 July 2009, the Applicant was convicted of trafficking in dangerous drugs and sentenced to 5 years’ imprisonment.[44] On 3 August 2005, the Applicant was convicted of 2 counts of knowingly obtain payment not payable and sentenced to 12 months’ imprisonment.[45] On 22 October 2004, the Applicant was convicted of possession of more than three unregistered firearms and was sentenced to 8 years’ imprisonment. Further offences were taken into account on a form one, including possession of prohibited drug, unlawfully possessing a prescribed restricted substance and the possession of ammunition.[46]
[44] Ex 12, 41.
[45] Ex 12, 41.
[46] Ex 12, 42.
The possession of unregistered firearms offence involved the Applicant being a “warehouser of a large number of prohibited weapons which he bought and sold to criminals”.[47] The Applicant was found in possession of 16 automatic calibre double barrel ‘keyring’ pistols, an Australian Automatic Arms self-loading rifle, a six chamber revolver and a pistol. Seventeen of these weapons were prohibited firearms and 2 were pistols in circumstances where the firearms were not registered and which the Applicant was not permitted to possess.[48]
[47] Ex 12, 114.
[48] Ex 12, 116.
On 31 October 2001, the Applicant was convicted of escape police custody and sentenced to 6 months’ imprisonment. On the same day, the Applicant was convicted of drive vehicle recklessly or speed/manner dangerous and sentenced to 3 months’ imprisonment .[49]
[49] Ex 12, 42.
The Supreme Court of New South Wales, Court of Criminal Appeal’s judgment on 17 August 2006 decided on the Applicant’s appeal against the severity of sentence in relation to the possession of firearms and prohibited articles. His Honour Chief Justice Spiegelman stated:
…
[Primary Judge] made reference to the expert report outlining the offender’s mild form of intellectual disability. Her Honour did note that there was “very little in the way of genuine contrition or remorse over and above that which might be inherent in the plea”. The report of the clinical psychologist assessed his disability as “mild”. There is no reason to believe that it impinged on his capacity to manifest remorse or contrition to any significant degree.
…
The offence, in a series of offences relating to firearms in the Firearms Act 1996, is directed to persons who are engaged in the warehousing of firearms for sale. A person so engaged plays a critical role in the perpetration by other criminals of the worst crimes of violence in this community. The maximum sentence reflects the important role that such conduct plays in the injuries inflicted upon members of the community by deadly weapons.
On the facts of the present case the Applicant clearly intended to sell the firearms to criminals for profit. He had in his possession, for that purpose, an automatic self-loading rifle, which he called a “machine gun” and which was clearly capable of inflicting serious injury and also some compact “keyring” firearms, which were particularly dangerous by reason of their capacity for concealment.
This was a serious example of the offence under s51D.
…
The Applicant had an extensive prior criminal record albeit not including offences relating to firearms. He had convictions for dishonesty, property offences, drug related offences and escaping lawful custody. Her Honour Judge Latham, then of the District Court, set out the offender’s subjective circumstances, which it is not necessary to repeat.[50]
Her Honour noted that there was some evidence that the offender was prepared to take steps in the direction of rehabilitation. However, her Honour did not make, and indeed could not make, any finding that the prospects of rehabilitation were significant.
[50] Ex 12, 115-119.
On 29 January 2015, the Applicant’s visa was mandatorily cancelled pursuant to s 501(3A) of the Act as the Applicant had been sentenced to a term of imprisonment of over 12 months and was serving a full-time sentence of imprisonment in a custodial institution.[51] On 28 September 2016, the delegate revoked the cancellation of the Applicant’s visa after having received representations from the Applicant seeking revocation.[52] The delegate’s letter stated:
“Please note: the decision to revoke the original decision does not mean that you cannot be reconsidered for cancellation on character grounds in the future in the event of further criminal offending by you.”
[51] Ex 12, 399.
[52] Ex 12, 259.
On 28 September 2016, the Applicant signed an acknowledgment of receipt of the revocation decision acknowledging that:
“I have received the Notice of decision to revoke visa cancellation under s501 CA(4) of the Migration Act 1958. I understand that I can again be considered for cancellation of any visa I hold if further information of relevance comes to the attention of the department at any time in the future and that if this happens, my past conduct and previous relevant information can also be reconsidered”.[53]
[53] Ex 12, 261.
Despite those warnings, being imprisoned, rehabilitation efforts, and the previous cancellation of his visa, the Applicant continued to commit serious offences.
There are psychological reports before the Tribunal which highlight the significant risk that the Applicant poses. There is a report by Ms Rebecca Geddes, Psychologist, dated 25 May 2022 that was prepared for the Applicant in relation to the kidnapping for ransom offence.[54] Ms Geddes found that the Applicant presented a medium high risk of general re-offending and a moderate risk of serious violence.[55] Ms Geddes noted:
[The Applicant’s] plan to regain custody of his daughter would likely enhance motivation, and commitment to change, however, it could be a destabilising factor should things not progress as planned. [The Applicant] is motivated to take part in gainful employment and buy a property with the view of making it a home for his daughter. He is willing to engage in psychological treatment to address his mental health needs and reported an understanding of the importance of following supervision. However, his guardedness in relationships, and lack of insight with respect to his own mental processes and behaviour could be a barrier to participation in supervision and intervention (both criminogenic, and psychological).
…
[The Applicant’s] offending appears motivated by proximity affiliation (his relationships with others), endeavours to gain profit/advantage, and control situations/others. Negative attitudes (unsocial predisposition), peer influence, alienation, and a lack of insight likely decreased the perceived negative consequences of acting against societal norms. When considering the factors that generally disrupted [the Applicant’s] ability to think rationally about the offending … relational dysregulation (e.g., insecure attachments), intellectual deficits (e.g., poor social-cognitive skills), inadequate coping skills and a passive interpersonal style likely played a role. He has some experience of intrusive symptoms, insecure attachments, and relational avoidance. These symptoms have contributed to emotional problems, and external activities to modulate negative internal states. There appear limited coping strategies to buffer against the effects of stress”.[56]
[54] Ex 12, 262.
[55] Ex 12, 269.
[56] Ex 12, 262-273.
The Tribunal observes that Ms Geddes had assumed that there was violence involved in the kidnapping for ransom offending as that was in the agreed facts, which and as argued by the Applicant, impacted on her risk assessment. The Tribunal is of the view that the Applicant is speculating as to what risk findings Ms Geddes would have reached without that assumption, but what is clear is that her findings are based on multiple factors and independent assessment techniques.[57] As such, the Tribunal gives Ms Geddes’ report weight.
[57] Ex 12, 271.
Dr Matthew Tagkalidis, Psychiatrist, prepared a report dated 19 January 2023.[58] Dr Tahkalidis stated the following regarding the prognosis for the Applicant’s condition in respect of his future:
“This remains poor, and will be so for the foreseeable future. He will continue to struggle in any relationships, in any potential workplace settings and in life in general for the foreseeable future”.[59]
[58] Ex 12, 376.
[59] Ex 12, 384.
The Tribunal observes that Dr Tagkalidis recommended treatment such as regular sessions with a psychologist for a further period of 2-3 years, but that such intervention will not fundamentally alter the Applicant’s psychiatric state, but may allow the Applicant to develop a range of strategies to manage his chronic difficulties.[60]
[60] Ex 12, 384.
The Applicant has repeatedly raised his difficult upbringing, mental health, his learning difficulties, and its impact on his offending. As pointed out by the Respondent by which the Tribunal is persuaded, factors such as a difficult childhood, mental health problems, abuse and drug taking are often taken into account by criminal courts in mitigation for crimes a person commits. In that context, those matters are relevant to a person’s culpability for the criminal court in imposing sentence and punishment. In the context of a visa cancellation, punishment is irrelevant and has no place in the exercise of the cancellation or revocation powers in the Act. The central issue relevant to the exercise of these powers is the protection of the community. It is about the risk that an applicant will re-offend and the damage that could be caused to members of the community, not why an individual offended or how morally culpable they are for the offending. The Tribunal observes that the cancellation scheme is not about imposing punishment but is about community protection.
The Applicant has contended that the risk of reoffending on this occasion must be viewed in the context of him wanting to be a better parent for his youngest child. The Tribunal appreciates the Applicant’s genuine intentions, but his long history of criminal offending suggests that the intention would result in limited change in his risk of reoffending.
It is noteworthy that any desire to refrain from further offending or to change is undermined by the fact that the Applicant has continued to engage in serious offending. The Applicant has a lengthy criminal history and although it is unreasonable to suggest that on that basis alone, he would reoffend, that history cannot be ignored. That history in the context of the limited rehabilitation is suggestive of a risk that the Applicant would likely reoffend in the future.
The Tribunal acknowledges the Applicant’s participation in courses, but it is difficult to see the impact, if any, of the courses undertaken by the Applicant on the risk of recidivism. The Tribunal also acknowledges the Applicant’s apologies and expressions of remorse but viewed in the context of the Applicant’s limited rehabilitation and continued reoffending, the Tribunal is satisfied that there is a real and significant risk that the Applicant would reoffend, and given the seriousness of the offending, any risk of recidivism is unacceptable.
On balance, although the Tribunal accepts as plausible that the Applicant’s offending could be in part attributable to his unfortunate background, mental health issues and intellectual challenges, the evidence before the Tribunal does not support a conclusion that those issues have been resolved so as to decrease the risk that he will re-offend. Indeed, and as noted above, Dr Tagkalidis recently noted in his report dated 19 January 2023 that the Applicant’s prognosis remains poor.[61]
[61] Ex 12, 384.
For those reasons, the protection of the Australian community consideration weighs heavily against revocation of the cancellation decision.
Whether the conduct engaged in constituted family violence
The Direction refers to the Australian Government having “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.”[62]
[62] Direction 99 [8.2(1)].
Family violence is defined by Direction 99 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. Direction 99 provides non-exhaustive examples of family violence, including assault, stalking, and intentionally damaging or destroying property.[63]
[63] Direction 99 [4(1)].
The Direction contemplates that in considering the seriousness of the family violence engaged in by the non-citizen, the factors that must be considered are:
·the frequency of the offending conduct;
·any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence;
·rehabilitation achieved at time of the decision since the person’s last known act of family violence (including the acceptance of responsibility, understanding of the impact of the behaviour on the victim/witness of that abuse (particularly children) and the efforts to address factors which contributed to the conduct); and
·whether the person 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.[64]
[64] Direction 99 [8.2(3)].
Direction 99 defines ‘member of the person’s family’, for the purposes of the definition of family violence, as a person who has, or has had, an intimate personal relationship with the relevant person. The phrase should not be construed narrowly.[65]
[65] Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 115 [124].
There is no evidence of family violence in this case.
The Tribunal gives this consideration neutral weight.
The strength, nature and duration of ties to Australia
The Direction at paragraph 8.3(1) contemplates that decision-makers must consider 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. In considering a non-citizen’s ties to Australia, the Direction provides, among other things, that decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.[66]
[66] Direction 99 [8.3(2)].
Paragraph 8.3(4) of the Direction requires the Tribunal to consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community and in doing so 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 when their offending commenced and the level of that offending;
(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-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Applicant was born on 20 May 1966 in the UK.[67] He arrived in Australia on 18 May 1968 and he has remained in Australia. He has therefore spent all his formative years in Australia.
[67] Ex 12, 120.
The Applicant attended school in Australia up to year six. He has previously been employed and has provided a number of favourable references from former employers. The Applicant’s mother, sister and two adult children reside in Australia. The Applicant also has a four-year old daughter who is currently cared for by the mother. The Applicant’s close family members are Australian citizens or permanent residents. The Applicant is not in a relationship with the mother of his four-year old daughter, who was conceived during a short-term relationship. He has a grandchild, a 13-year-old child of his adult son.
The Applicant does not have contact with his mother. He has a very strong relationship with his adult daughter, Ms A, who has written letters in support of the Applicant. She gave evidence of her support for the Applicant. She plans for him to live closely to her and find employment for the Applicant as a truck driver in the mines. She spoke of the close relationship that she has with the Applicant.
The Applicant also has uncles, aunts, several cousins, nieces or nephews and a grandparent residing in Australia. He also has friends in Australia. A number of his extended family members and friends have written letters in support of the Applicant. The Tribunal heard evidence from the Applicant’s aunt and two cousins, all of whom expressed support for the Applicant and willingness to assist him, mostly emotionally.
The Respondent conceded that this consideration should be assigned substantial weight in favour of revocation.
The Tribunal accepts that the Applicant has a close and supportive relationship with his daughter, Ms A. The Tribunal acknowledges that he has strong ties with his adult children, who would be impacted in case of non-revocation. In particular, the Tribunal accepts that Ms A would be significantly impacted; she would experience significant emotional hardship in case of the Applicant’s removal from Australia. Other relatives and friends would also experience a degree of emotional hardship. They would not be able to see the Applicant as often as if he were to remain in Australia.
The Applicant has been in Australia for most of his life. He has attended schools in Australia and has worked. It is likely that he has friendships and links who would also be impacted emotionally in case of his removal from Australia.
In terms of contribution to the community, the Applicant has worked in Australia, and former employers expressed a positive view of his employment. The Tribunal acknowledges that contribution. It is however relevant to note that his positive contribution has been limited. His long history of offending has meant that his contribution has been mostly negative, and has required significant community resources, including judicial, police, and monetary resources.
On balance, the Tribunal is satisfied that the Applicant has significant and strong ties in Australia.
The Tribunal gives this consideration significant weight in favour of revocation.
The best interests of minor children in Australia
The Direction requires decision-makers to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.[68]
[68] Direction 99 [8.4(1)].
In considering the best interests of the child, the Direction states at paragraph 8.4(4) that the following factors must be considered where relevant:
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.
The Applicant has identified two minor children whose best interests would be impacted by the decision. The Applicant has a four-year-old daughter and on his own evidence, the mother has had full custody of the child since March 2023. The child was previously under the custody of child safety services, where the grandmother looked after the child.[69] The Applicant is concerned about the child, as her mother has a history of substance abuse. The child has never met the Applicant in person but has had contact with him via telephone and video.
[69] Ex 12, 257.
Whether the Applicant will have access to the child would be a matter for the Courts; the Applicant intends to make an application to change the arrangements currently in place. The Tribunal cannot predict the outcome of any application but has noted that the Applicant’s intention is genuine and that he deeply cares for the welfare of his minor daughter. He intends to have a long-term parent-child relationship with the minor.
Currently, the nature of the relationship that the Applicant has with his minor child is limited by factors, including, that the Applicant has been incarcerated and detained, which has impacted on his ability to develop and form a close parental relationship with his minor daughter. Whether or not he would be able to change the current arrangements relating to the child depends on many factors.
The Tribunal acknowledges that generally-speaking, it is in the best interest of a child to be involved with their parents and to have a relationship with both of them, but that general approach needs to be considered in the context of the Applicant who has a long history of serious offending and a real risk of re-offending, which means that even if he were able to change the current arrangements, any relationship that he could have with the minor child would be interrupted, causing her considerable distress. The Tribunal does not wish to sound harsh, judgmental or unkind, but it is also doubtful that the Applicant would be a positive role model on the minor child, given his serious offending and the real potential of re-offending. In saying so, the Tribunal has not disregarded the apparent strong relationship that the Applicant has with his adult daughter, Ms A, but these are separate issues that depend on multiple factors.
The Applicant has noted that he has a 13-year-old grandson, the child of the Applicant’s son. The Applicant has also indicated that he has cousins who may have children. The Applicant does not provide care for these children and there is limited evidence of an existing close relationship with these children. Removal from Australia would mean limited opportunities to see the grandchild and any other minor children. However, the Tribunal is satisfied that given the real risk of reoffending and potential incarceration, any relationship the Applicant would have with the children would be hindered by the absences due to potential incarceration. Moreover, given there is a real risk of reoffending, it is difficult to see how the Applicant could play a positive role in their lives. Indeed, given the risk of reoffending, the Tribunal accepts the Respondent’s submissions that it is unlikely that the Applicant would play any positive role in the children’s lives in the future.
In the circumstance, given the nature of the relationship between the Applicant and the children and other matters discussed above, the Tribunal gives this consideration limited weight in favour of revocation.
Expectations of the Australian community
The Direction at paragraph 8.5(1) indicates that the Australian community expects non-citizens to obey Australian laws. It states that where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they 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.
The Direction refers to non-revocation of the mandatory cancellation of a visa, being potentially appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa.[70]
[70] Direction 99 [8.5(2)].
The Tribunal observes that the Direction contemplates that the expectations of the Australian community apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the community.[71]
[71] Direction 99 [8.5(3)].
The Federal Court of Australia’s decision in FYBR is significant.[72] In FYBR, the applicant argued that the Tribunal had erred in its approach that paragraph 11.3 of the then of Direction 65 as being deeming of what community expectations are, irrespective of the individual’s personal circumstances. The applicant argued that the Tribunal did not appreciate that it was permissible for it to assess whether community expectations would have been the same in relation to the applicant, given that he had already spent so much time in immigration detention.[73] In rejecting the applicant’s argument, Perry J concluded:
It follows, in line with the authorities, that cl 11.3 of Direction 65 is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the applicant’s submissions, 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. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases.[74]
[72] FYBR v Minister for Home Affairs [2019] FCA 500 (‘FYBR’).
[73] FYBR v Minister for Home Affairs [2019] FCA 500 [21].
[74] FYBR v Minister for Home Affairs [2019] FCA 500 [42].
On appeal to the Full Federal Court, the majority of the Court (Charlesworth and Stewart JJ) essentially concluded that paragraph 11.3 contained a statement of the Australian Government’s views as to the expectations of the Australian community that must be applied,[75] that it is not for the decision-maker to make his or her own assessment of the community expectations,[76] and that in the context of Direction 65, community expectations as expressed normatively are what the Government says that they are (even though ascertainable community expectations might be quite different).[77] In essence, the judgment is authority for the proposition that it is not the decision-maker to make an assessment of community values on behalf of the community, and that those values are expressed as norms in Direction 65. The applicant’s special leave application to the High Court of Australia was dismissed.[78]
[75] FYBR v Minister for Home Affairs [2019] FCAFC 185 [66].
[76] FYBR v Minister for Home Affairs [2019] FCAFC 185 [67].
[77] FYBR v Minister for Home Affairs [2019] FCAFC 185 [91].
[78] FYBR v Minister for Home Affairs [2020] HCATrans 056.
The Tribunal is satisfied that the Applicant has been convicted of multiple serious offences. The Tribunal is satisfied that the Australian community expects that the Australian Government should not revoke the cancellation of the Applicant’s visa because of his conduct.
The Tribunal gives this consideration significant weight against revocation. However, this is moderated as the Applicant is to be afforded under paragraph 5.2(5) of the Direction the benefit of a higher level of tolerance. The principle at paragraph 5.2(5) of the Direction indicates that Australia ‘will generally’ 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.[79] Direction 99 introduced the principle that 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. The Applicant has been in Australia for most of his life, including during his formative years.
THE OTHER CONSIDERATIONS
[79] In Shrestha v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 802, the Court rejected the applicant’s submission that ‘most of their life’ in cl 6.3(5) of Direction No 79 (as per para 5.2(5) of Direction No 99) meant ‘most of their adult life’: at [32]. That is, it found that the meaning is plain and that a higher level of tolerance may be afforded to non-citizens who have spent most of their life in Australia, not ‘most of their adult life’.
Legal consequences of the decision
At paragraph 9.1, the Direction indicates that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
The Direction divides the considerations to be applied in this paragraph into two sections:
(1) non-citizens covered by a protection finding; and
(2) non-citizens not covered by a protection finding.
Australia is a signatory to several international instruments which give rise to non-refoulement obligations. Australia is a signatory to the 1951 Convention Relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR).
Non-refoulement obligations are obligations not to forcibly return, deport or expel a person to a place where there would be a risk of harm.
The Applicant has not raised, and there is no evidence before the Tribunal, of any protection claims.
On the evidence, the Tribunal finds that the Applicant is not the subject of a protection finding, as defined in s 197C(5) of the Act, and as such the legal consequence of the Tribunal making a non-revocation decision is that the removal obligation in s 198 will apply and the Applicant will continue to be detained under ss 189 and 196 of the Act until he is removed. The Applicant’s detention and potential removal from Australia are intended legal consequences.
The Tribunal gives this consideration neutral weight.
Extent of impediments if removed
Paragraph 9.2 of the Direction requires the Tribunal to consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country) taking into account:
(a) the non-citizen's age and health;
(b) whether there are substantial language or cultural barriers; and
(c) any social, medical and/or economic support available to them in that country.
The Applicant lived in Australia since his arrival in 18 May 1968 and has remained in Australia since his arrival. If deported to the UK, he would not face language or significant cultural barriers, given that English is spoken in the UK and in Australia, and both countries broadly share similar cultures.
The Applicant’s strong ties are in Australia and he has no remaining family ties in the UK. He has no economic or personal support in the UK.
The evidence before the Tribunal indicates that the Applicant has a long history of substance abuse. The evidence also indicates that he has a number of mental health issues, which includes the following:
“depressive, avoidant and impulsive personality adjustment. Some indications of a borderline personality disorder are also present. His results indicate that he is suffering from chronic post-traumatic stress disorder with association depression. Symptoms of anxiety are also present. He has an above average predisposition towards dependence on alcohol and drugs”.[80]
[80] Ex 12, 286.
He has an “intellectual disability” as described by Ms Perkins.[81] A more recent report by Ms Geddes confirms the Applicant’s intellectual difficulties, anxiety, depression, and a history of self-harm.[82] In 2023, Dr Tagkalidis concluded the following:
“[The Applicant] is currently suffering from chronic Dysthymic Disorder (Persistent Depressive Disorder in the DSM V) and complex Post Traumatic Stress Disorder with associated personality disruption (of an Antisocial and Borderline nature)…
…
Past Polysubstance Abuse, which was significant until 2019, has since resolved in recent years.
The claimant has also suffered from Major Depressive Episodes and remains vulnerable to future Major Depressive Episodes given his ongoing underlying emotional vulnerabilities”.[83]
[81] Ex 12, 276.
[82] Ex 12, 262-273.
[83] Ex 12, 382-383.
The Applicant’s Client Incidents notes at detention[84] record incidents of self-harm, including swallowing razor blades in September 2022.[85] There are also multiple incidents of threats to self-harm.
[84] Ex 12, 291-373.
[85] Ex 12, 365.
There was much discussion in the course of the hearing about the Applicant’s evidence that he was unable to read or write. The Tribunal is satisfied based on the expert evidence before the Tribunal that the Applicant has intellectual challenges, including limited literacy and numeracy skills. The Applicant is in receipt of the disability pension due to those difficulties.
In consideration of the evidence as a whole, the Tribunal is satisfied that in case of the Applicant’s return to the UK, there would be practical challenges, including finding accommodation, employment, medical/mental health care services, emotional support, and the need to re-establish himself. The Tribunal has considered the Applicant’s circumstances and is satisfied that in his case, those are serious impediments. However, although the Applicant has little to no ties to the UK and he could face difficulty in establishing himself, as a citizen of the UK, he would have the same access to social, medical, psychological, and economic support as other UK citizens.
On balance, the Tribunal gives this consideration weight in favour of revocation.
Impact on victims
The Direction requires decision-makers to consider the impact of the section 501 or 501CA decision 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.[86]
[86] Direction 99 [9.3].
There is no evidence of the impact of the decision on victims, and as such, the Tribunal gives neutral weight to this consideration.
Impact on Australian business interests
At paragraph 9.4 of the Direction, it is noted that decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence of any impact on Australian business interests if the Applicant is not allowed to remain in Australia.
The Tribunal gives this consideration neutral weight.
Other matters for consideration
Paragraph 9 of the Direction expressly states the other considerations 'are not limited' to the matters listed therein.
There are no other matters for consideration.
CONCLUSION
For many years, the Applicant has repeatedly committed serious offences. The Applicant has demonstrated a limited ability to change his pathway. The Tribunal acknowledges and expresses its sympathy and empathy about the Applicant’s background and disability, but there is persuasion in the Court’s remarks noted above about the taking of responsibility, self-control and that “others have suffered similarly appalling upbringings yet they manage to obey the law”. The Applicant’s conduct demonstrates a fundamental disregard for the law.
The Applicant was previously put on notice of the potential consequences of reoffending on his migration status, but that did not change his behaviour. It is correct that he has spent most of his life in Australia including his formative years and on that basis, he is to be afforded a degree of tolerance, but that has to be weighed and balanced with other considerations. The Tribunal has found that there is a real risk of re-offending, which is unacceptable given its seriousness. Protection of the Australian community weighs heavily against revocation.
The outcome of this review is not about a formulaic or a mathematical assessment or decision-making. There are limited considerations in favour of revocation, and the aspects against revocation outweigh those in favour. The protection of the Australian community, which encompasses the seriousness and nature of the Applicant’s offending conduct and the risk of reoffending, as well as the expectations of the Australian community (albeit moderated), weigh heavily against revocation. The strength, nature and duration of the Applicant’s ties, the best interests of minor children, and the extent of impediments if removed, are considerations that weigh, to a varying degree in favour of revocation. The Tribunal is satisfied that on balance, the cumulative weight of the considerations in favour of revocation does not outweigh the significant cumulative weight of the considerations weighing against revocation.
Having regard to all relevant material before it, the Tribunal is satisfied that the correct and preferable decision is not to revoke the cancellation of the Applicant’s visa.
DECISION
The Tribunal affirms the decision under review.
131. I certify that the preceding one hundred and thirty (130) paragraphs are a true copy of the reasons for the decision herein of Deputy President Antoinette Younes.
................................[SGD]...................................
Associate
Dated: 22 January 2024
Date of hearing(s):
9 & 10 January 2024
Solicitor for the Applicant:
Mr F Nikjoo, Nikjoo Lawyers
Solicitor for the Respondent:
Mr T Eteuati, Australian Government Solicitor
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