Holloway and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2022] AATA 833
•26 April 2022
Holloway and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 833 (26 April 2022)
AppID: Holloway and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
MatterType: Migration
CitationNumber: New
Division:GENERAL DIVISION
File Number: 2020/5203
Re:Jesse William James HOLLOWAY
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:26 April 2022
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 20 August 2020, to not revoke the cancellation of the Applicant’s visa.
..........................[SGD]...........................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class AO (Subclass 802) Child visa - where Applicant does not pass the character test – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – Violence Restraining Orders – assaults against former partners – assault public officers – assault occasioning actual bodily harm – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Holloway and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4558
Holloway v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 945 (12 August 2021)
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Home Affairs v Buadromo [2018] FCAFC 151
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
Table of Contents
Decision
Catchwords…………………………………………………………………………………………2
Legislation…………………………………………………………………………………………..2
Cases
Secondary Materials
REASONS FOR DECISION
Introduction and Background
Legislative framework
Does the applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?.
The principles in paragraph 5.2
The Primary and Other Considerations
Primary Consideration 1 – protection of the australian community
The nature and seriousness of the non-citizen’s conduct to date
Paragraph 8.1.1(1)(a)(i)
Paragraph 8.1.1(1)(a)(ii)
Paragraph 8.1.1(1)(a)(iii)
Paragraph 8.1.1(1)(b)(i)
Paragraph 8.1.1(1)(b)(ii)
Paragraph 8.1.1(1)(b)(iii)
Paragraph 8.1.1(1)(b)(iv)
Paragraph 8.1.1(1)(c)
Paragraph 8.1.1(1)(d)
Paragraph 8.1.1(1)(e)
Paragraph 8.1.1(1)(f)
Paragraph 8.1.1(1)(g)
Conclusion about the nature and seriousness of the Applicant’s conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct.
(i) Summary of the Applicant’s position on recidivist risk
(ii) Summary of findings around recidivist risk
Conclusion: Primary Consideration 1
Primary Consideration 2: family violence
The three relevant instances of domestic violence offending
The first incident: was Ms KK a member of the Applicant’s family?
Did any of the Applicant’s conduct toward Ms KK constitute family violence?
The second incident: was Ms MK a member of the Applicant’s family?
Did any of the Applicant’s conduct toward Ms MK constitute family violence?
The third incident: was Ms SH a member of the Applicant’s family?
Did any of the Applicant’s conduct toward Ms SH constitute family violence?
Assessment of the seriousness of the Applicant’s family violence
Conclusion: Primary Consideration 2
Primary Consideration 3: the best interests of minor children in Australia
Identification of the relevant minor children
The parties’ respective contentions
The Applicant’s evidence in chief
The Applicant’s evidence: cross-examination
The evidence of the Applicant’s parents
The evidence of Child K
The evidence of Child J
Application of factors in paragraph 8.3(4) of the Direction to the relevant children
Conclusion: Primary Consideration 3
Primary Consideration 4: expectations of the Australian community
Conclusion: Primary Consideration 4
Other Considerations
Other Consideration (a): International non-refoulement obligations
Other Consideration (b): Extent of impediments if removed
The Applicant’s written submissions
The Applicant’s oral evidence
The Respondent’s written submissions
Consideration of relevant sub-paragraphs
Other Consideration (c): Impact on victims
Other Consideration (d): Links to the Australian Community
(1) Strength, nature, and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature, and duration of “other ties” – length of residence
3. Strength, nature, and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian community
Findings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
26 April 2022
INTRODUCTION AND BACKGROUND
Jesse Holloway (“the Applicant”) is a 39-year-old male, born in Canada. He will turn 40 on 28 September 2022. The Applicant first arrived in Australia on 2 August 1997 as the holder of an Electronic Travel Authority (Visitor) (Subclass 976) visa and has not departed Australia since that date.[1] He committed his first offence in Australia in 2002 at the age of nineteen and has persistently and regularly re-offended since. He is separated from his former partner and has two minor children.
[1] T1, G2, page 65.
On 9 February 1998, the applicant was granted a Class AO (Subclass 802) Child visa (“the visa”).[2] This is the visa which was the subject of an earlier mandatory cancellation decision followed by a decision to refuse to revoke that original mandatory cancellation.[3] The relevant sequence of events leading to the present review of that decision is as follows:
·On 27 February 2007, the Applicant was warned by the Department that his visa was liable to be cancelled under s 501 of the Act should he continue his pattern of frequent offending in Australia[4];
·On 18 November 2019, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Respondent”) mandatorily cancelled the Applicant’s visa under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the basis that the applicant did not pass the character test and was serving a full-time custodial sentence[5];
·On 26 November 2019, the Applicant made written representations to the Respondent requesting revocation of the cancellation of his visa (“revocation request”)[6];
·On 20 August 2020, the Respondent decided that the discretion subsisting in s 501CA(4) to revoke the cancellation of the Applicant’s visa was not enlivened[7];
·On 27 August 2020, the Applicant subsequently lodged an application with this Tribunal for review of the immediately preceding non-revocation decision[8];
·On 26 and 27 October 2020, the Applicant attended a hearing and ventilated the immediately preceding application before the Tribunal (differently constituted);
·On 13 November 2020, the Tribunal affirmed the Respondent’s decision[9];
·On 12 August 2021, the Federal Court of Australia quashed the Tribunal’s original decision, made on 13 November 2020, and remitted the matter for reconsideration[10];
[2] Ibid, page 68.
[3] Ibid, page 32.
[4] Ibid, page 64.
[5] R1, pages 4-5, para [17].
[6] Ibid, page 5, para [18].
[7] Ibid, para [19].
[8] Ibid, para [20].
[9][2020] AATA 4558.
[10] [2021] FCA 945.
This remitted matter proceeded before me on 13 and 14 January 2022, respectively. By agreement with the parties, I adjourned the hearing to 23 March 2022 for the making of oral closing submissions. The hearing before me received evidence from: (1) the Applicant; (2) his stepmother; (3) his biological father; (4) his sixteen-year-old daughter; (5) his thirteen-year-old daughter; and (6) his current de facto partner. The hearing also received evidence by way of written material which was reduced to an agreed Exhibit List, a true and correct copy of which is attached to these Reasons and marked “Annexure A”. These are the written Reasons resulting from this remitted hearing.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
I have earlier found the Applicant made the representations required by s 501CA(4)(a) of the Act. The residual issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[11]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[12]
[11] [2018] FCAFC 151.
[12] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, para [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, para [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have, “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have, “been sentenced to a term of imprisonment of 12 months or more”.
There is a ready concession from the Applicant that he does not pass the character test.[13] This concession neatly dovetails into the Respondent’s valid contention to the same effect.[14] On five separate sentencing dates[15] the Applicant received sentences comprising custodial terms of imprisonment totalling some 56 months, or almost five years. What matters for present purposes is whether the Applicant has received a singular term of imprisonment of twelve months or more, or in the alternative, whether he has received custodial terms, the cumulative total of which equate to or exceed twelve months. What does not matter for present purposes is the amount of time the Applicant has actually served.[16]
[13] A1, page 1, para [2].
[14] R1, page 8, para [41].
[15] Those sentencing dates comprise 16 June 2006; 13 November 2013; 6 March 2017; 16 August 2018; and 3 July 2019.
[16] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, pages 415-416.
The Applicant thus fails the character test. The remaining live issue before the Tribunal is whether it should exercise its discretion pursuant to s 501CA(4) of the Act to revoke the decision of the delegate refusing to set aside the mandatory cancellation of the visa.[17] Specifically, this is the abovementioned refusal to revoke decision made on 30 December 2021. It seems common ground between the parties that the Applicant does not pass the character test.[18]
[17] That is, the Decision dated 20 August 2020.
[18] A1, page 4, paras [27]-[28]; and R1, page 4, para [18].
I am therefore satisfied (and I find) that the Applicant has a “substantial criminal record” and, accordingly, does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction”, or “Direction 90”) has application.[19] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[20]
[19] Direction No. 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[20] Direction, para 6. See also Direction, para 4(1) which provides that a “decision-maker” includes the Administrative Appeals Tribunal when making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, “provide a framework within which decision-makers should approach their task” under s 501 or 501CA (as the case may be). Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or 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 have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four, “Primary Considerations”, and four, “Other Considerations” by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[21]
[21] Direction, para 8.
The Other Considerations which, where relevant, I must take into account, “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[22]
[22] Direction, para 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)Information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non- citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction. As referred to earlier, this Applicant has compiled a not-insignificant offending history in Australia. That history runs for just on four pages of single-spaced text.[23] The offending – both in terms of individual offences committed and sentencing episodes that dealt with it – is both voluminous and significant. It is offending that has put other people directly in harm’s way and has otherwise consumed more than its fair share of the community’s law enforcement resources and judicial sentencing apparatus.
[23] T1, G2, pages 34-38.
I will now apply the relevant sub-paragraphs appearing in Paragraph 8.1.1(1) of the Direction to ascertain the nature and seriousness of the Applicant’s unlawful conduct in this country.
Paragraph 8.1.1(1)(a)(i)
This specific subparagraph looks for the commission of violent and/or sexual crimes. If an Applicant has committed such offences, this sub-paragraph deems that they are to be viewed, “very seriously” by the Australian Government and the Australian community. There is little or no difficulty in applying the terms of this sub-paragraph to the conduct of this Applicant. Whether it be him spitting blood at police officers when they sought to deal with him in 2006, or whether it was him inflicting physical harm on an unknown person by spraying them in the face with adhesive remover, there is no question that his offending has involved the infliction of a significant level of violence on his victims.
This sub-paragraph 8.1.1(1)(a)(i) militates very strongly in favour of a finding that the nature of this Applicant’s criminal offending in Australia has been very serious.
Paragraph 8.1.1(1)(a)(ii)
This subparagraph refers to crimes of a violent nature against women or children and, if such offences have been committed by an Applicant, those offences are deemed to be viewed, “very seriously” by the Australian Government and the Australian community. This conduct can be taken into account regardless of whether or not a sentence was imposed. No such differentiation is required for the present circumstances. The circumstance of this Applicant’s offending against a female victim, for which he was sentenced on 3 July 2019, are both appalling and very concerning.
The sheer brutality and recklessness behind the offending perpetrated on the victim of that conduct could quite conceivably have resulted in her death or permanent disablement. There is no requirement to repeat and particularise the circumstances of that offending, because to do so, would almost be an affront to its victim. It is readily described in the material.[24] There is no question that this offending was most certainly a crime of violence (indeed, extreme violence) against a woman and thus, pursuant to this subparagraph 8.1.1(1)(a)(ii), militates very strongly in favour of a finding that the nature of this Applicant’s criminal offending in Australia has been very serious.
[24] See R1, page 4, paras [15]-[16]; see also T1, G2, pages 34-35; 39-42.
Paragraph 8.1.1(1)(a)(iii)
This particular sub-paragraph looks for acts of family violence in an Applicant’s offending history and, if there has been such offending, provides that it is viewed “very seriously” by the Australian Government and the Australian community. I again return to the circumstances of the Applicant’s offending for which he was sentenced on 3 July 2019. I am mindful that the terms of this specific sub-paragraph do, to an extent, dovetail into the auspices of Primary Consideration 2 (Family Violence).[25]
[25] Note: there are further convictions for violent offending in a domestic/family context in the Applicant’s history. They date from 20 October 2006 and 6 March 2017. Mainly, for the purposes of brevity, I have not mentioned them for the purposes of this sub-paragraph 8.1.1(1)(a)(iii). I will, however, engage with those offences during my consideration of Primary Consideration 2 (Family Violence).
For present purposes, there can be no cavilling with the proposition (and finding) that the victim of that offending was involved in an intimate personal relationship with the Applicant at the time of its commission. There is no question that the conduct was committed in a domestic/family milieu. It is conduct that squarely engages the language of this paragraph 8.1.1(1)(a)(iii) and thus militates very strongly in favour of a finding that the nature of this Applicant’s criminal offending in Australia has been very serious.
Paragraph 8.1.1(1)(b)(i)
There is no oral or written evidence before the Tribunal referring to the Applicant committing any offences in the realm of causing a person to enter into or being a party to a forced marriage. I am not able to find any formally recorded conviction for such offending nor is there any reference to it in any police narrative (or equivalent) that did or did not result in any conviction. This particular sub-paragraph is therefore not relevant to the assessment of the nature and seriousness of the Applicant’s unlawful conduct.
Paragraph 8.1.1(1)(b)(ii)
This sub-paragraph looks for the commission of any offence against what is described as, “vulnerable members of the community such as the elderly and the disabled, or government representatives or officials…in the performance of their duties”. In 2006, the Applicant received three convictions for, “Assault police officer”.[26] In 2004 and 2005 he received, respectively, one conviction for “Obstruct railway officer” and two further convictions for “Offensive behaviour (Railway Act)”.[27]
[26] T1, G2, page 37.
[27] Ibid.
The offending against the police officers involved the Applicant responding to their attempts to control and modify his conduct by spitting blood at them.[28] He had, by the time of that conviction, already compiled a not-insignificant offending history which caused the sentencing Magistrate to observe the Applicant had had the benefit of previous favourable sentences, and that he, “had his chances” but that, “enough was enough”.[29]
[28] Ibid, page 57; T1, R1, page 244.
[29] Ibid.
The material seems silent about the Applicant’s offending towards railway officers, but it suffices to say that both the police officers and the railway officials were, indeed, “government representatives or officials” and that the offending was committed against them by this Applicant, “in the performance of their duties”. Accordingly, this sub-paragraph 8.1.1(1)(b)(ii) militates very strongly in favour of a finding that the nature of this Applicant’s criminal offending in Australia has been (at the very least) serious.
Paragraph 8.1.1(1)(b)(iii)
This sub-paragraph refers to serious conduct involving, “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion”. The Respondent has not propounded this component of the Direction in either its written or oral submissions. The transcript demonstrates that neither party made submissions about this sub-paragraph at the hearing. I therefore find that this sub-paragraph of the Direction is not relevant to any assessment of the nature and seriousness of the Applicant’s conduct.
Paragraph 8.1.1(1)(b)(iv)
This sub-paragraph refers to (and renders, “serious”) any crime committed by a non-citizen whilst in immigration detention. None of the offences appearing in the Applicant’s criminal history are referable to conduct that occurred during his time in immigration detention, during an escape from immigration detention, or any of the other componentry appearing in the language of this sub-paragraph. I have checked the oral and written evidence and cannot glean any reference to conduct by this Applicant during his time in immigration detention as necessarily attracting the auspices of this sub-paragraph 8.1.1(1)(b)(iv).
Out of an abundance of caution I took up this point with the Applicant’s representative during closing submissions. The point seems largely non-controversial and irrelevant:
“SENIOR MEMBER: Could you remind me - and I think I know the answer to this - but could you just remind me - he's had no drug possession or drug related adverse conduct findings, convictions or internal punishments in immigration detention or criminal custody, has he?
MR GLENISTER: No. That's certainly my recollection. I would want - before I nailed my colours to the mast, I would want to just quickly skim through the papers - but I certainly cannot recall anything of that nature being on his records. I don't think he's had any adverse behavioural issues in detention, at the very least.
SENIOR MEMBER: All right. Well, I've had a look at the criminal history and I can't find anything in the criminal history that talks about a conviction or transgression in relation to drug offending during his time in gaol and immigration detention. So there's no convictions there.
MR GLENISTER: Certainly.
SENIOR MEMBER: The finer question is - and I'll look at this when I'm writing the decision - but the finer question is has he had reprimands, or those internal deprivation of privileges kind of punishments that they receive in either prison or immigration detention if they're found to contravene regulations in relation to drugs or other not allowed contraband, for example. I don't know; I will have to have a look at that. But to the best of my recollection, I don't think there is. So what you have dovetailing with that is the applicant's own evidence saying, 'Yes, there are drugs in gaol and in immigration detention, but, no, I haven't partaken in them.' That's essentially where the evidence falls, as I understand it.
MR GLENISTER: Yes, Senior Member. That is essentially it. I just checked my chronology, and I didn't include anything from immigration detention.”[30]
[30] Transcript (23 March 2022), page 90, lines 15-46.
This sub-paragraph is thus not relevant to any assessment of the nature and seriousness of the Applicant’s unlawful conduct in Australia.
Paragraph 8.1.1(1)(c)
In applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for: (1) any violent offending he may have committed against women;[31] (2) acts of family violence;[32] and (3) any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[33]
[31] The Direction, para 8.1.1(1)(a)(ii).
[32] Ibid, para 8.1.1(1)(a)(iii).
[33] Ibid, para 8.1.1(1)(b)(i).
I am therefore precluded from taking into account the specific sentences imposed on the Applicant for his respective convictions on 20 October 2006, 6 March 2017 and 3 July 2019 – these being convictions for crimes of a violent nature against women[34] and acts of family violence.[35] To the best of my understanding of the material, the Applicant has no convictions for unlawful conduct relating to conduct whereby he caused a person to enter into (or become a party to) a forced marriage.[36] That, of course, is not the end of the Applicant’s sentencing history.
[34] Ibid, para 8.1.1(1)(a)(ii).
[35] Ibid, para 8.1.1(1)(a)(iii).
[36] Ibid, para 8.1.1(1)(b)(i).
He has a plethora of different sentences that have been imposed upon him as a result of his offending history in this country. Even putting aside the sentences for the precluded offences, the Applicant has received various sentences for a variety of offences including: (1) assaulting police officers; (2) burglary; (3) destroying/damaging property; (4) drug possession; (5) the contravention of a number of duly imposed orders compelling him to do, or refrain from doing something; and (6) breaking and entering into a dwelling.
The offending history (in terms of sentencing episodes) runs from March 2002 until July 2019. We are talking about an offending history comprising the commission of some 75 offences, dealt with at some 31 separate sentencing episodes. As mentioned, the Applicant has previously received the benefit of non-custodial terms in the form of, inter alia: (1) fines; (2) suspended sentences; (3) a bond in lieu of actual time in custody; and (4) concurrent sentences.
Even if one does not consider the sentences imposed for the precluded offences, the sentences imposed upon him for non-precluded offences nevertheless constitute, in cumulative terms, a not-insignificant quantum of fines and custodial time. The imposition of a custodial term is seen as the last resort in the sentencing hierarchy. The imposition of a custodial term must be viewed as a reflection of the objective seriousness of the offending sought to be punished.[37]
[37] See PNLB and Minister for Immigration and Border Protection [2018] AATA 162, para [20].
This Applicant has received virtually the full range of sentencing options available to a judicial sentencing officer. It is not to misunderstand or misconstrue his sentencing history to suggest and find that the range of sentencing alternatives which have been imposed on him is, in and of itself, clearly indicative of both the nature and extent of his unlawful conduct in this country. I am satisfied that the sentences imposed upon him during the over-seventeen-year criminal history he has compiled is something that strongly militates a finding that his offending history has been of a very serious nature.
Paragraph 8.1.1(1)(d)
This sub-paragraph is concerned with two specific aspects of a person’s offending: its frequency and/or whether there is any trend of increasing seriousness. First, in terms of frequency, it should be repeated that this Applicant has compiled a criminal history consisting of 75 separate offences, punished at 31 separate sentencing episodes. Put simply, his offending history has seen him commit offences at the rate of over four offences per annum which were brought before lawful authority for sentencing on almost two occasions per annum. There can be no question that the Applicant’s offending has been of a frequent nature.
Second, I am easily satisfied that the Applicant’s criminal history demonstrates a trend of increasing seriousness. There is no requirement to forensically trawl through his offending history to reach such a conclusion. Indeed, to even suggest that there is any, “trend” is to unnecessarily do this Applicant a favour. This is because his earlier offending is, by its very nature, serious. From its first years, the offending history contains reference to convictions for refusing to follow lawful authority, offending against the person and against property. It suffices to record that, in terms of seriousness (certainly in respect of the physical and psychological damage inflicted), his offending reached a potentially catastrophic crescendo as a result of the family violence he perpetrated against his former domestic partner, for which he was sentenced in July 2019.
I am therefore satisfied as to (1) the frequency of the Applicant’s offending and (2) that his offending has demonstrated a trend of increasing seriousness. Thus, both elements of this sub-paragraph 8.1.1(1)(d) are satisfied such that it very strongly militates in favour of a finding that the totality of the Applicant’s offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(e)
This sub-paragraph is concerned with the cumulative effect of the Applicant’s repeated offending and how such an effect informs the level of seriousness of that offending. Such is the extent of his offending history that it necessarily compels me to isolate the following cumulative effects of that history:
·First, the Applicant has abjectly failed to observe or otherwise meet the requirements of lawful authority. He seeks a return to the community, but his history is demonstrative of a person who refuses to comply with the lawful authority governing that community. He has directly challenged public/government officials in the course of their duty, particularly police officers and railway officials. He has repeatedly failed to observe and meet the terms of lawfully made orders compelling him to do or refrain from doing something. He has repeatedly failed to observe the laws and regulations governing the use of a motor vehicle on Australian carriageways;
·Second, he has failed to experience any discernible deterrent effect from the progressively applied sentencing regime that has been imposed on him. Non-custodial terms were not enough to dissuade him from continuing to commit offences that attracted actual custodial time. The subsequent imposition of actual custodial time was also not enough to dissuade him from committing the horrendous and potentially catastrophic conduct for which he was sentenced on 3 July 2019. It is not incorrect to say that his most serious and potentially dangerous offending was committed at the end of his current sentencing history;
·Third, the Applicant’s past difficulties with illicit substances have, without question, so severely distorted his moral compass such as to cause him to disrespect the personal rights of others and the rights of others in the property they own and which they have worked hard to acquire. His interference with the personal rights of others has concerningly drawn police officers into its realm. His violent conduct has not been isolated towards anonymous individuals.
·Fourth, the Applicant does not seem to have formed any definitive understanding of the necessary level of responsibility and lawful compliance involving the ownership and operation of a motor vehicle on Australian carriageways. He has a multiplicity of convictions for both operating a motor vehicle while not lawfully licenced to do so, as well as operating a motor vehicle while under the adverse influence of an illicit drug. It is neither safe nor appropriate to categorise the Applicant’s driving offences as belonging to some minor corner of his wider history with law enforcement. There is a level of prevalence of driving offences in the Applicant’s history suggestive of attendant recklessness and indifference to the laws and regulations governing the operation of a motor vehicle. In a previous decision, I have found that laws that protect road users, “go to the essential safety of the community”.[38] I make a similar finding on the facts now before me.
·Fifth, the Applicant’s offending must, on any reasonable analysis, be found to have consumed more than its fair share of the community’s law enforcement and judicial sentencing apparatus. His involvement in the unlawful trade of illicit drugs has directly challenged the safety and well-being of the Australian community. Difficulties visited by illicit drugs upon the community very often result in devastating impacts, not just on individual users, but upon families/connections of those users who are at the front line of dealing with the adverse effect of such substances on their loved ones. In this way, it is not a stretch of the evidence to further suggest, and find, that this Applicant’s offending has likewise consumed its inordinate fair share of the community’s public health resources.
[38] Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at para [45], citing Apire and Minister for Immigration and Border Protection [2014] AATA 193 at para [16].
The above-described cumulative effects of the Applicant’s repeated offending must militate in favour of a finding that the totality of his offending in this country has been (at least) of a serious nature.
Paragraph 8.1.1(1)(f)
This sub-paragraph looks at whether a non-citizen has provided false or misleading information to the Minister’s department, including by not disclosing criminal offending. The auspices of this sub-paragraph are most commonly engaged when an Applicant leaves from and returns to Australia. As mentioned earlier, the Applicant’s movement records only refer to his arrival in Australia on 2 August 1997, with no other movements either in or out of Australia. Accordingly, the Applicant has not provided false or misleading information to the Minister’s department, at least as far as incoming passenger cards are concerned.
I have looked through the material and cannot find any reference to the Applicant providing false or misleading information to the department in terms of any other issue. Neither side is propounding the application of this particular sub-paragraph and it is thus not relevant to determination of this application.
Paragraph 8.1.1(1)(g)
The enquiry compelled by this sub-paragraph involves the issue of whether or not an Applicant has re-offended since being formally warned about the consequences of further offending in terms of his visa status to remain here.
The material contains reference to a letter, forwarded to the Applicant by registered mail in late February 2007. It is worth quoting the letter in full:
“Reference No: [Redacted]
REGISTERED MAIL
Mr Jesse William James Holloway
Acacia Prison
Locked Bag 1
WOOROLOO WA 6568
Dear Mr Holloway,
WARNING OF POSSIBLE FUTURE LIABILITY UNDER S501 OF THE MIGRATION ACT 1958
This letter is to inform you that, as a result of the offences for which you were sentenced on or before 16 June 2006, you have become liable for cancellation of your AO 802 visa.
The Delegate of the Minister for Immigration and Multicultural Affairs has decided on this occasion not to order the cancellation of your AO 802 visa on the basis of these convictions. Nevertheless, you are warned that any further criminal conviction will lead to reconsideration of the cancellation of your visa.
Disregard of this warning will weigh heavily against you if your case is reconsidered.
It is important that you note if you ever make a future visa application or complete an incoming passenger card when returning to Australia you are required by law to disclose all of your criminal convictions in that application or on that passenger card. If you fail to disclose all of your criminal convictions your visa may be cancelled and you may be removed from Australia.
Enclosed for your information is a copy of the decision record.
Yours sincerely
[Name redacted]
Visa Cancellation Section
27 February 2007”[39]
[My redactions and emphasis]
[39] T1, G2, page 64.
There is no question that the Applicant did not receive this letter. He clearly did. The terms of this letter of warming were put to him in cross-examination and he said the following:
“Ms Zinn: So you were very clearly warned by the Department what would happen if you reoffended, weren't you?
Applicant: Yes. Well, yes - now that I do read it, I know. But, like, even - even back in when I was younger, I didn't even read my court papers. Like, I've learnt of this because my dad and me have been talking about it, me and my step mum have been talking about it, and I know what it actually states now, because I've read it. But back then all I seen was that I was allowed to stay, and that was it. But I didn't - like I said before, I had a falling out in my life I wasn't able to handle, you know.”[40]
[40] Transcript (13 January 2022), page 24, lines 28-35.
The Applicant also told the hearing that he did not take this warning very seriously.[41] Whether or not the Applicant did or did not read correspondence that was sent to him does not displace the reality that the letter of warning contained an absolutely clear communication that (1) his offending had come to the notice of the Department; (2) that his offending had caused them to give consideration to cancelling his visa; and (3) any further offending by him would, “weigh heavily” against the Applicant if the Department were again to consider any future offending as a basis on which to cancel his visa.
[41] Ibid, page 25, lines 1-2.
Of course, the Applicant took nothing from this letter. By the time he received this letter he had convictions for some 31 offences, that had been dealt with at 15 separate sentencing episodes. More significantly, after he received this letter of warning, he contrived to commit another 44 offences and found himself before lawful authority for sentencing of that offending on another fifteen occasions. There can be no other finding except that the terms of this sub-paragraph 8.1.1(1)(g) militate very strongly in favour of a finding that the nature of the Applicant’s offending in Australia has been of a very serious nature.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. Having regard to the relevant and applicable sub-paragraphs to which I have referred, I am of the view that the totality of this Applicant’s unlawful conduct in Australia can be readily characterised as “very serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that, in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that, in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) requires an assessment of the nature of harm to an individual or the Australian community were the Applicant to engage in further criminal or other serious conduct. There is a ready concession from the Applicant to this effect:
“a. Nature of the harm should the Applicant reoffend.
25. The nature of the harm that would be caused should the Applicant reoffend in a violent manner is conceded to be very serious.
26. The nature of the harm that would be caused should the Applicant reoffend in other ways is considerably less serious that [sic] the harm that would be caused by violent reoffending.”[42]
[42] A1, page 4, paras [25]-[26].
Broadly speaking, the Applicant’s ready concession has its echo in the following submission made on behalf of the Respondent:
“(a) The nature of the harm should the applicant reoffend
60. If the applicant committed further offences or engaged in conduct similar to the serious offences he has committed in the past, it is highly likely that he would inflict serious physical harm on both members of the Australian community and law enforcement authorities. The applicant has been convicted of a total of 75 offences, several of which involved him assaulting and/or inflicting actual bodily harm on women, a police officer and members of the Australian community.”[43]
[43] R1, pages 12-13, para [60].
It can be safely found that were this Applicant to again commit offences of the same description and types he has already committed, there is no doubt the community would suffer adverse effects. The community would suffer material loss and damage to property privately owned by its members. The authority of public officials, such as the police and railway officials going about their regular business, would be challenged. The scourge of illicit drugs would be visited upon the community on one form or another. Perhaps, most significantly, a future de facto/domestic partner of the Applicant could very well be exposed to a repeat of the Applicant’s truly horrendous and violent offending in a domestic context.
I am satisfied (and I find) that were this Applicant to re-offend, the nature of the harm to individuals or the Australian community would be very serious and would involve physical, psychological and material harm to individual victims and/or the community at large, including, quite conceivably, harm to a catastrophic level.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (Paragraph 8.1.2(2)(b))
Summary of the Applicant’s position on recidivist risk
There is reference in the Applicant’s Statement of Facts, Issues and Contentions (“SFIC”) to his completion of five rehabilitation courses during his time in criminal custody.[44] It is contended that the parole authorities must have realised that he had taken something from these courses because the Applicant was granted parole after serving fourteen months of his most recent sentence.[45] There is an acceptance of a previous assessment of the Applicant’s recidivist risk being at a, “medium/high” level. This assessment was made on 24 May 2019 by a Community Corrections Officer.[46] It is nevertheless urged on the Tribunal to approach that assessment with caution in circumstances where the Applicant has completed the abovementioned rehabilitation courses while in prison.[47]
[44] A1, page 4, para [27].
[45] Ibid, para [28].
[46] See T1, R28, pages 321-325.
[47] A1, page 5, para [29].
It is further contended that the Applicant has the following, “protective factors” working in his favour in terms of reducing his recidivist risk:
·It is said that his family, who all reside in Australia, will cause him to have, “every reason not to re-offend and jeopardise those relationships”.[48] The essence of this contention seems to be that the commission of any further offences will cause him to become disassociated from his family. The difficulty with that is that for the virtual entirety of his offending phase, the presence of his family, including two biological daughters (the parenting arrangements for whom were somewhat precarious during the time the Applicant was committing his offences) and, most significantly, the critical duty of being a present and responsible parent, did not resonate with the Applicant such as to reduce his recidivist risk and overall offending pattern;
·Reference is made to the Applicant’s, “achieved and maintained sobriety since prior to the commencement of his imprisonment on 19 February 2019”.[49] The significant difficulty with this contention is that he has abjectly failed to sustain any level of sobriety, or non-participation in illicit substances in the past and there is very little, if any, independent and clinical evidence that he will do so in future. The highest this contention goes is that upon return to the community, “he will be starting from a better position than when he was last in the community”;[50]
·It is contended that the Applicant has gained a certain level of insight and has expressed a certain level of remorse for his offending such that he now claims to be aware of the need to maintain a pro-social lifestyle to reduce his recidivist risk. For reasons I will mention below, I have misgivings that the oral evidence of both the Applicant and his current de facto spouse support any such finding;
·It is further contended that the period of the Applicant’s removal from the Australian community has caused him to reflect on the circumstances causing him to be in his current position. It is said that he has reached a realisation that, “…this is likely his last opportunity to regain his visa” and that were he to reoffend, “he would be unlikely to get another opportunity”.[51] The difficulty with this contention is that the abovementioned letter of warning he received in February 2007 afforded him an opportunity to modify his conduct and to cease breaching Australia’s laws. He failed to take that opportunity then and, apart from his own evidence, there is little to suggest he will do so now if he were returned to the community;
·References are made to the Applicant’s, “tickets” as an operator of excavator/bobcat/forklift machinery. There is a paucity of evidence around the Applicant’s past employment history. There is a letter of support in the material from the Applicant’s stepbrother who operates a landscape construction business. In this letter of support, the stepbrother says, “I have my own business and I have plenty of work and will support [the Applicant] by full time employment”.[52] This contention must be received with caution in circumstances where the Applicant has thus far in his life prioritised his own inclination to partake in illicit substances, and to consequently offend in very serious and significant ways, over his obligation to find and maintain lawful, remunerative employment and to provide for his family;
·The Applicant is a talented artist. Examples of his work appear in the material.[53] He has participated in artistically derived courses while in immigration detention. This particular contention goes no higher than: “The Applicant is a talented artist and may have found his calling”. I am not satisfied that whether an Applicant may have found their calling sufficiently speaks to any lower recidivist risk; and
·Finally, it is contended that the recent riots at the Christmas Island immigration detention facility (where the Applicant is presently detained) have precluded him from participating in further rehabilitation programs prior to the present hearing. The Applicant’s written material says that these programs, “are starting up again and it is contemplated that the Applicant will be able to complete a further family violence course prior to the hearing”.[54] The difficulty with this contention is that none of these courses the Applicant has completed (or may complete) has the benefit of support and augmentation from an independent clinician who has: (1) examined the Applicant; (2) identified psychopathological factors that are predispositive to his propensity to offend; and (3) defined some kind of remedial course of therapy demonstrative of a prognostic reality that those factors and symptoms are under some kind of clinical management and control.
[48] Ibid, para [30].
[49] Ibid, para [31].
[50] Ibid.
[51] Ibid, para [33]: Both quoted portions in this sentence are from the identical source as noted in this footnote.
[52] A6.
[53] A12.
[54] A1, page 5, para [36].
Summary of findings around recidivist risk
Failure to experience any deterrent effect: to my mind, the starting point in any assessment of an offender’s recidivist risk is to look at the nature of the sentencing regime previously imposed on them and to determine whether they have experienced any deterrent effect from the imposition of progressively more serious sentences as their offending history evolves. In my view, the Applicant has abjectly failed to experience and/or implement any deterrent effect from those sentences. In a similar vein, not even a written, “second chance” from the Department, in February 2007, was sufficient for him to curtail his pattern of offending.
Absence of remorse and insight: in his oral evidence before me, the Applicant’s purported statements of remorse seemed equivocal and were more consistent with an expression of mere regret for the circumstances of his offending, rather than actual remorse. His evidence contained little in the way of genuine empathy and remorse for the victims of his very serious offending. He seemed to lack any discernible apprehension or understanding of the extent to which his very serious offending had impacted them. As best as I understood his evidence, his concept of remorse does not involve a retrospective examination of his wrongdoing and the experiencing of a resulting epiphany that what he did was very wrong and very serious. Rather, it seems more akin to something he feels compelled to say or express as a means of achieving a desired outcome in a hearing (or similar process) dealing with his visa status to remain here. He seems to think a purported expression of remorse will lead a decision-maker to accept that he has, “every intention of doing the right thing” if returned to the Australian community. This of course, is not remorse:
“Ms Zinn: Mr Holloway, what would you say to the proposition that, given these statements as recently as 2020 that you were still commonly passing blame when discussing your offences, that your more recent statements of accepting full responsibility were to achieve a favourable outcome before the tribunal?
Applicant: What's favourable mean, please?
Ms Zinn: In other words, to persuade the tribunal to make a decision that's in your favour. In other words, to revoke the cancellation decision, which is what you want the tribunal to do?
Applicant: Now, who? What was the first part of it, I didn't understand it?
Ms Zinn: What I'm putting to you is that, in 2020, you were recorded as still passing the blame when discussing offences and not accepting responsibility?
Applicant: Yes.
Ms Zinn: But it's now, you know, now you say to the tribunal that you have accepted full responsibility. So, what do you say to me putting to you that you've made these more recent statements of accepting responsibility to persuade the tribunal to make a decision that's in your favour?
Applicant: Is that why? No, it's because I can't - I've already pleaded guilty to something, I can't have new facts added to it, so it's not passing blame, but yes, no, I'm just stating the truth is that I've pleaded guilty to it and I have remorse for what I've done. And what, is it to persuade - well, I'm doing a lot to persuade the team to letting me stay because I have every intention of doing the right thing when I get out.”[55]
[55] Transcript (13 January 2022), page 27, lines 23-46.
Unresolved substance abuse issues: there is little to cavil with the proposition that, in recent years, the Applicant has undertaken relatively tentative rehabilitative steps during his time in criminal custody towards resolving his difficulties with illicit drugs. Those courses have primarily dealt with issues relating to drug addiction, domestically violent conduct and anger management. His father (Steven Holloway), stepmother (Angela Holloway) and current de facto partner (Chelsea Djukich) gave oral evidence at the hearing. Their evidence can be regarded as genuinely held and otherwise credible. Despite their genuinely held beliefs, the stark reality is that the Applicant’s level and extent of treatment for his substance abuse issues is both limited and presently inadequate.
To my mind, a significant counterpoint can be drawn between, on the one hand, the well-intended oral evidence of the Applicant’s parents and Ms Djukich and, on the other hand, the Applicant’s own oral evidence. He purported to sheet home the reason for much of his offending as being his unfortunate and self-destructive relationship with illicit drugs for the majority of the last 25 years of his life. All too often, his evidence contained a familiar and repeated excuse that whatever unlawful thing(s) he did was due to the extent to which illicit drugs had affected his conduct and “caused” him to offend.
Yet, there is reference in his evidence to him not being a drug user during the period between 2002 and 2007. In cross-examination, he agreed that he started using drugs in 2007 and continued doing so until 2019 when he was placed in criminal custody. Thus, it is difficult to attribute any significant level of credibility to his evidence about illicit drug abuse being the primary cause of all his offending. He most certainly offended during the period 2002 and 2007, being responsible for the commission of some 31 offences dealt with at some 15 separate sentencing episodes.
The currently-stated level of the Applicant’s rehabilitation from illicit drug use is, in and of itself, a matter of concern in relation to his recidivist risk. The level of his engagement with substance abuse rehabilitation while in prison has been limited. This Tribunal takes little confidence from this limited level of rehabilitation, together with whatever type of therapeutic discussions he may have had with his stepmother that can now, to any definitive extent, militate in favour of a finding that he has permanently overcome his addiction to illicit substances. His evidence in cross-examination suggested there were little or no attempts or endeavours at becoming involved in rehabilitation during a twelve-year period from 2007 (when he says he became involved in abusing illicit drugs) and 2019 (when he was placed into criminal custody). His evidence about rehabilitation goes no higher than saying he had some involvement with rehabilitation, including via talking sessions with his stepmother, and that he is interested in doing more rehabilitative courses:
“Ms Zinn: Can you tell the tribunal what steps you took to get treatment before you were incarcerated? So, prior to 2019, that is, really any time within the period 2007, when you started using drugs until you were put in prison in 2019?
Applicant: Before I was put in prison?
Ms Zinn: Yes?
Applicant: No, before I was put in prison I - well, I did, I started to make an effort and stop using drugs but I wasn't as serious as I was when I made contact with my children. And like, I was serious about it, but there was maybe some relapses, but yes, no, I didn't pursue any help from anybody. Yes, no I didn't pursue any.
Ms Zinn: So, really, it's just been one course specifically for drug addiction. Do you believe that that one course is sufficient to address your 12 or so years of heavy substance abuse?
Applicant: I think it was sufficient enough to give me like I'm very interested in like I'm doing, I'm pursuing more courses, but my stepmum is a licensed counsellor and drug counsellor so I've been talking to her and doing counselling over the phone for quite a long time now. So, I haven't really stopped my counselling with - just because my - she's my stepmum, doesn't mean she's not a counsellor. So, she's a counsellor so she - I've been getting counselling the whole time.
Ms Zinn: How does she help you work through your substance abuse issues?
Applicant: I just - we talk about, you know, the good things that have come like stuff that - we talk about good things that I've got from my giving up drugs, you know.”[56]
[56] Ibid, page 29, lines 42-45; page 30, lines 1-19.
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature, and duration of ties
With reference to the first part of this Other Consideration, I will consider three elements. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s, “immediate family members” where those people have a right to remain in Australia indefinitely. Second, it is necessary to consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The initial exercise involves identification of the Applicant’s immediate family in Australia. In the Applicant’s SFIC filed on his behalf, there is a comprehensive list of people identified as, “immediate family members”. For the specific purposes of this first component of assessing the Applicant’s strength, nature, and duration of ties to Australia, those people comprise:
·His father, Mr Stephen Holloway;
·His stepmother, Ms Angela Holloway;
·His stepbrother, Mr Marcus Oliver;
·His stepbrother, Mr Ben Oliver;
·His stepsister, Ms Krystel Oliver;
·His stepsister, Ms Chantelle Oliver; and
·His partner, Ms Chelsea Djukich.
The Applicant’s father said he would be impacted in the following way in the event of the Applicant’s removal:
“What would the impact on you be if Jesse was permanently removed from Australia?
It would add a sadness to my life that I wouldn’t wish on my worst enemy. At 77 years I have seen Jesse going through a lot and I admit the wrong behaviour with all his charges but he has paid heavily already for what he has done. He has shown remorse and commitment to a better life for his daughters and to make his family proud. This will help to increase his happiness and self-worth. He has recovered and will get grow as time passes. I really want to share that with my son in the few years I have left. I want to be there for him and provide the support only a father can do. If he were removed from Australia at this crucial point in his life, it would leave me empty and devastated.”[169]
[169] A11, page 2.
The Applicant’s stepmother said, in her written statement, that, “if Jesse was to be sent back to Canada, my children and I would be very sad and disappointed.”[170] In his written statement, the Applicant’s stepbrother, Mr Marcus Oliver, refers to his, “close bond”[171] with the Applicant. He says that he is, “…looking forward to him [the Applicant] being part of our lives again and meeting my son…and my partner…”[172] The Applicant’s other stepbrother, Mr Ben Oliver, said in his statement that, “I am happy to help and support him [the Applicant] just the same as my siblings in anyway I can.”[173]
[170] A8, page 2.
[171] A7.
[172] Ibid.
[173] A6.
In her written statement, the Applicant’s stepsister, Ms Krystel Oliver, notes that she is looking, “…forward to forming an even closer relationship with him [the Applicant] and supporting him in anyway I can if he is allowed to stay in Australia.”[174] Later in her statement, she adds that, “it would be sad if he had to leave Australia now and go to Canada…”.[175] The Applicant’s other stepsister, Ms Chantelle Oliver, noted in her statement that, “it would be devastating for all of us if [the Applicant] had to leave Australia.”[176]
[174] A10.
[175] Ibid.
[176] A5.
In her written statement, the Applicant’s partner Ms Chelsea Djukich said:
“Should jessi be permanently removed from Australia I would be upset, devastated and distraught beyond belief. It would have a terrible impact on my life as jessi is my best friend, lover and my support person who I turn to in times of need.”[177]
[177] A4, page 2.
It would be unsafe to discount the obviously genuine and heartfelt evidence of the Applicant’s family, including that of his partner, Ms Djukich. As against that, there is the unavoidable reality that the Applicant did, for much of his time in Australia, elect to distance himself from those family members and to immerse himself in a world of illicit drug abuse and consequentially, very serious offending. Be that as it may, there seems little doubt that, were the Applicant to be returned to the community and were he to successfully abstain from a relapse into illicit drug use, the abovementioned immediate family members would be available to support him. The corollary of that is that they will, of course, be adversely affected in the event of his physical removal.
Having regard to the state of the evidence and circumstances surrounding the Applicant’s immediate family, I am safely led to the view (and finding) that the strength, nature, and duration of his ties to those immediate family members in Australia carries a strong, but not determinative, level of weight in favour of revocation. I make this finding on the presumption that each of the Applicant’s immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
2. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, “other ties” to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia with his family in 1997, at the age of fifteen. I have earlier found that he has not left Australia since that time and has thus spent the majority of his life in Australia.
I will now make reference to the two tempering sub-elements in paragraph 9.2(a) of the Direction. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. His first conviction in an Australian court occurred in March 2002 – nearly five years after his arrival. He arrived here as a fifteen-year-old and began his offending as a nineteen / twenty-year-old. A period of some five years post-arrival should not be construed as being, “soon after arriving in Australia”. The first of these two tempering sub-elements should be put to one side and rendered neutral.
The second of the two tempering sub-elements compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. I have already found that the Applicant has a less-than solid history of employment in Australia. In his PCF, he did not complete the list relating to his employment history in Australia, but in terms of positive contributions to the community, he said the following: “I am an excavator operator and I have obtained my excavator Bobcat and forklift ticketts [sic]. I cleared land on farms, worked on the new pasific [sic] hwy. Andrew French 5 time gold medal of the geneva convention invention show.”[178]
[178] T1, G2, page 95.
In cross-examination, the Applicant was asked about the nature and extent of his contributions to the Australian community, and he responded thus:
Ms Zinn: You've spoken about your ties to Australia in the form of your family members that live here. Can you tell the tribunal how you have positively contributed to Australian community?
Applicant: Well, I have worked, but not - I would like to be given a chance to do so. But yes, no, I never done any community service or anything like that, no.[179]
[179] Transcript (13 January 2022), page 37, lines 22-27.
This second tempering sub-element can thus be marginally applied in favour of this Applicant due to the limited extent of his engagement in remunerative employment. On his own evidence, he has little, or no history of other community contributions. Therefore, while the first tempering sub-element can be found to be neutral, the second one can be marginally applied in his favour to attract more weight to this Other Consideration (d) for the purposes of revoking the decision to mandatorily cancel his visa.
3. Strength, nature, and duration of “other ties” – family and other social links
In his PCF, the Applicant makes reference to his parents, his two children and about how his removal will impact them and his broader family.[180] But there is no reference to any extended family (i.e., cousins, grandparents, uncles/aunts etc.) that are referable to this sub-paragraph’s third component. This was borne out in his oral evidence in chief:
Mr Glenister: What other family do you have in Australia?
Applicant: I've got my two stepbrothers, two stepsisters, my dad, my step mum, and that's about it.[181]
[180] T1, G2, page 92.
[181] Transcript (13 January 2022), page 11, lines 10-12.
Given the dearth of people falling within the ambit of this third category, I am of the view that it would be unsafe to allocate any measure of weight to it for the purposes of determining the total amount of weight allocable to this Other Consideration (d). This third component of Other Consideration (d) is therefore neutral in determining allocable weight towards Other Consideration (d).
(2) Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, “Australian business interests”. I am of the view (and I find) that this component of Other Consideration (d) is not relevant to the present application.
Weight allocable to Other Consideration (d): links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature, and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a strong, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant and is afforded neutral weight. Overall, the Applicant’s links to the Australian community carry a strong, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
I summarise the respective weights I have allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: carries a moderate measure of weight in favour of revocation;
(c)impact on victims: not relevant; and
(d)links to the Australian community: carries a strong, but not determinative, level of weight in favour of revocation.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or, I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a very heavy level of weight against revocation;
·Primary Consideration 2: weighs very heavily against revocation;
·Primary Consideration 3: carries a certain, but not determinative, level of weight in favour of revocation;
·Primary Consideration 4: carries a very heavy level of weight against revocation; and
·I have outlined the weight attributable to the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to each of Primary Consideration 3 and Other Considerations (b) and (d), respectively, are not sufficient to outweigh the combined very heavy weight I have allocated to Primary Considerations 1, 2 and 4, respectively.
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
·Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent, dated 20 August 2020, to not revoke the cancellation of the Applicant’s visa.
I certify that the preceding 212 (two-hundred-and-twelve) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..................[SGD].......................
Associate
Dated: 26 April 2022
Date of hearing: 13 and 14 January and 23 March 2022
Counsel for the Applicant:
Solicitors for the Applicant:
Mr Hamish Glenister
William Gerard Legal Pty Ltd
Solicitor for the Respondent Ms Arielle Zinn (Senior Associate –
Mills Oakley)Annexure A – Exhibit List
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
T1
Remittal Bundle (G1 – F2, paged 1 – 610)
R
-
26 October 2021
R1
Respondent’s Statement of Facts, Issues and Contentions (pages 1 – 22) including exhibits:
- Exhibit R1: Direction 90
- Exhibit R2: News Articles
R
20 December 2021
20 December 2021
R2
Respondent’s Written Closing Submissions
R
15 February 2022
15 February 2022
A1
Applicant’s Statement of Facts, Issues and Contentions (paged 1 – 10)
A
24 November 2021
25 November 2021
A2
Letter from Applicant (2 pages)
A
2 December 2021
4 December 2021
A3
Statement of Child J (unsigned) (1 page)
A
1 December 2021
4 December 2021
A4
Letter of Support of Chelsea Djukich (2 pages)
A
30 November 2021
4 December 2021
A5
Letter of Support of Chantelle Oliver (1 page)
A
1 December 2021
4 December 2021
A6
Letter of Support of Benjamin Oliver (1 page)
A
1 December 2021
4 December 2021
A7
Letter of Support of Marcus Oliver (1 page)
A
1 December 2021
4 December 2021
A8
Letter of Support of Angela Holloway (2 pages)
A
2 December 2021
4 December 2021
A9
Statement of Child K (unsigned) (1 page)
A
1 December 2021
4 December 2021
A10
Letter of Support of Krystel Oliver (1 page)
A
2 December 2021
4 December 2021
A11
Letter of Support of Stephen William Holloway (3 pages)
A
3 December 2021
4 December 2021
A12
Photographs of Applicant’s Artwork (7 pages)
A
-
4 December 2021
A13
Applicant’s Written Closing Submissions
A
1 February 2022
2 February 2022
0
11
0