Hopkins and Minister for Home Affairs (Migration)

[2019] AATA 1393

Hopkins and Minister for Home Affairs (Migration) [2019] AATA 1393 (24 June 2019)

Division:GENERAL DIVISION

File Number(s):      2019/1925

Re:Anthony Hopkins

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:24 June 2019

Place:Sydney

The reviewable decision is affirmed.

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

Senior Member D. J. Morris

CATCHWORDS

MIGRATION – applicant was holder of Class BF Transitional (Permanent) visa – mandatory cancellation – visa cancelled following conviction carrying sentence for more than 12 months – failure to pass character test – history and nature of criminal offending – supply of prohibited drug – consideration of ministerial Direction No. 79 – primary considerations – other considerations – balancing exercise – previous visa warning – reviewable decision affirmed

LEGISLATION

Administrative Appeals Tribunal Act 1975 (Cth), s 62

Migration Act 1958 (Cth), ss 499, 501, 501CA
Migration Regulations1994 (Cth), reg 2.52

Poisons and Therapeutic Goods Act 1966 (NSW), s 29

CASES

FYRB V Minister for Home Affairs [2019] FCA500

Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338

R v Hopkins (unreported, District Court of NSW, 25 January 2018)

SECONDARY MATERIALS

Migration Act 1958 – Direction No. 79 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of mandatory cancellation of a visa under s 501CA (made on 20 December 2018; commenced 28 February 2019)

REASONS FOR DECISION

Senior Member D. J. Morris

24 June 2019

BACKGROUND

1. Mr Anthony Hopkins, the Applicant in this matter, is 52 years of age. He first entered Australia on 15 August 1967 aged five months when his parents emigrated from the United Kingdom and he remains a citizen of that country. On 22 March 2018 Mr Hopkins’ Class BF Transitional (Permanent) visa was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (the Act) as a result of him having a substantial criminal record and being sentenced to serve a term of imprisonment of more than 12 months.

2. On 19 April 2018 and then on 10 August 2018 Mr Hopkins made representations seeking that the mandatory visa cancellation decision be revoked. A delegate of the Minister for Home Affairs (the Minister) decided on 29 March 2019 not to revoke the mandatory cancellation of the visa and it is this decision to refuse to revoke the mandatory cancellation that Mr Hopkins has brought to the Tribunal for review.

3. The hearing was held on 4, 5 and 14 June 2019. The Applicant was represented by Mr Joel of Adrian Joel & Co. Mr Hopkins gave evidence and was cross-examined by Mr Keevers of Sparke Helmore Lawyers, representing the Minister. A number of other witnesses gave evidence on behalf of the Applicant.

4. The Minister tendered two volumes of papers, G documents (GD) and a bundle of tender documents (TB). Parties also submitted Statements of Facts, Issues and Contentions.  Other documents were also taken into evidence and are listed in the Appendix at the end of these reasons.

   Legislative framework

5. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of Mr Hopkins’ visa if he made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52) and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Minister did not contest that the Applicant had made representations within the prescribed period.

6. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if, under section 501(6)(a) of the Act, the person has a substantial criminal record as defined by section 501(7). Relevantly, section 501(7) states:

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

   …

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

7. The Tribunal had before it a National Police Certificate dated 22 June 2018 (GD, pp 36 to 41) (the certificate). The certificate relevantly records that on 20 February 2018 Mr Hopkins was sentenced at Gosford District Court in relation to various offences: Possess prohibited drug (2 counts), Possess unauthorised pistol, Possess or use a prohibited weapon without permit (2 counts), Possess unauthorised firearm, and Supply a prohibited drug.  He was sentenced to an aggregate term of imprisonment of 3 years and 9 months to commence from 9 February 2016 and with a non-parole period of 2 years and 2 months.

8. It was not contested by counsel for Mr Hopkins that he failed the character test in terms of the operation of section 501 of the Act.  Mr Joel stated, at paragraph 6 of the Applicant’s statement, that the determinative issue for the Tribunal is if there is another reason why the visa cancellation should be revoked having regard to the considerations prescribed by Direction No. 79.

9. On the evidence in the certificate, the Tribunal finds that the Applicant fails the character test on the basis of the convictions made against him on 20 February 2018, under section 501(3A)(a)(i) of the Act.

10. Section 501CA relevantly provides that:

    (1)  This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    …

    (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.

11. Having found that Mr Hopkins fails the character test, the Tribunal agrees with the submission from both parties that the sole issue before the Tribunal is whether there is another reason why the original decision should be revoked. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338 (Gaspar), North ACJ stated, at [38]:

    The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

    The Ministerial Direction

12. Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. On 20 December 2018 the then Minister for Immigration, Citizenship and Multicultural Affairs (who was jointly authorised with the Minister for Home Affairs to administer the Act) made Direction No. 79 (the Direction) under section 499. The Direction commenced on 28 February 2019.

13. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:

    6.1   Objectives

    (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

    …

    (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

14. Relevantly, the Direction includes the following principles at paragraph 6.3:

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

    (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

    (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

    (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

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

    (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

15. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C; which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are:

    a.    Protection of the Australian community from criminal or other serious conduct

    b.    The best interests of minor children in Australia; and

    c.    Expectations of the Australian community.

16. Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties’; ‘Impact on Australian business interests’; ‘Impact on victims’; and ‘Extent of impediments if removed’.  The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).  The Tribunal considered each of the primary considerations and, as relevant, the other considerations.

    Evidence of the Applicant

17. Mr Hopkins agreed that he has been convicted of offences of supplying illegal drugs on four occasions. He also agreed that he had previously received a warning in relation to his migration status from the Department in 2010 and that he was aware of the nature of the warning.

18. Mr Hopkins said that he began abusing drugs when he was young, and started taking amphetamines from around the age of 18 or 19 after a traumatic incident relating to the murder of a friend. He said in the aftermath of this incident, he began drinking too much alcohol and started using illicit drugs.

19. He said that his upbringing was stable but that his mother had a history of illness. Mr Hopkins said his parents separated when he was aged 13 and at the age of 15 his mother got her own place and he moved in with her. He has one sibling, a younger sister, born after the family immigrated to Australia. 

20. Mr Hopkins said he started smoking cannabis around the age of 15. In terms of employment, Mr Hopkins said that he tried a number of different vocations before settling on an apprenticeship in glazing and glass-fitting, which he completed around the age of 21.

21. The certificate records (GD, p 40) that his first appearance before the Courts was in February 1985 when he was convicted before Cobham Children’s Court of the offences of Possession of prohibited drug (Indian hemp); Drive manner dangerous and Unaccompanied learner. In August 1985 he was before Blacktown Local Court and convicted of the offences of Possession of prohibited drug (Indian hemp) and Possession [drug] utensils.

22. The certificate records that in 1986 Mr Hopkins had two appearances in Wyong Local Court and was convicted of drink-driving and unlicensed driving offences, and possession of Indian hemp. In 1987 he was convicted before the court of the offence of Trespass. In 1989 he was convicted of the offences of Sexual assault (category 4) and Offensive behaviour. In 1991 he was again convicted of drink-driving. In 1993 he had two appearances before the Courts and was convicted of Possession of prohibited drug and a speeding offence.  In January 1994 Mr Hopkins appeared before Wyong Local Court and was convicted of motor vehicle offences.  In February 1994 Mr Hopkins appeared before the same court on two occasions, and in April 1994 he appeared again, and was convicted of drug possession offences and driving whilst his licence was cancelled.

23. In 1995 the Applicant appeared once before the Court on driving offences. In 1996 he appeared in January and was convicted of the offence of Receiving; and in March of the offence of Stealing. In April 1996 Mr Hopkins had his first conviction for the offence of Supply a prohibited drug.

24. In 1998 Mr Hopkins appeared once before the Court, and was convicted of Drive whilst [licence] cancelled. In 1999 he had one appearance before the Court and was convicted of three property offences, for which he received fines.

25. In 2001 Mr Hopkins was convicted at Wyong Local Court of one property offence, two weapons offences and possessing goods reasonably suspected of being stolen. Before Gosford District Court in April and September 2003 Mr Hopkins was convicted of his second and third offences of Supply a prohibited drug.

26. In December 2003 at Wyong Local Court, the Applicant was convicted of four firearms offences, two stolen goods offences, a driving offence and two offences of Resist or hinder police officer in the execution of duty.

27. At Gosford District Court on 25 January 2008, Mr Hopkins was sentenced to imprisonment for 5 years for the offence of Supply prohibited drug, more than indictable quantity (not cannabis), and on the same date of the offence of Supply prohibited drugs on an ongoing basis, for which he received a 6 year prison sentence.  Both the prison sentences were to commence on 15 March 2006 and to be served concurrently.

28. In July 2013 at the ACT Magistrates Court Mr Hopkins was convicted of an offence of driving with a prescribed drug in oral fluid or blood (methylamphetamine). In 2014 at Wyong Local Court he was convicted of the offence of Possess prohibited drug.

29. In 2018 Mr Hopkins appeared before Gosford District Court and was convicted of drug supply offences, weapons offences and a drug possession offence; these were the convictions that, as set out above, triggered the cancellation of his visa.

30. Mr Hopkins was taken through his history of criminal offending. He said that he could not really explain why he continued to offend, except he suspected one of the reasons was that he was suffering with depression and “I can’t really answer why, stupidity, really.”

31. In terms of the single sexual assault conviction, Mr Hopkins said that this resulted from a scuffle he had outside a public house with another man when, in the course of the fight, he grabbed the genitals of his combatant. The Tribunal notes that this offence was dealt with by a $500 fine.

32. Mr Hopkins told the Tribunal about his somewhat turbulent history of personal relationships. He has fathered a number of children with four different partners, all except two of whom are now adults. With his most recent partner, NM, from whom he is now separated, Mr Hopkins has two minor children, in these reasons called A and G. A is the Applicant’s son who was born in 2016 and is currently aged 3. G is the Applicant’s daughter who was born in 2011 and is currently aged 7.

33. Mr Hopkins told the Tribunal that when he was paroled after his first term of imprisonment, he endeavoured to comply with the requirements set, including undertaking parenting courses, and tried to stay away from drugs. Regrettably, the mother of A and G also had a drug problem; she had been in prison and Mr Hopkins said came home two months before G was born. She was again in prison when A was born.

34. Mr Hopkins told the Tribunal about a number of medical conditions he said he had suffered from, including back pain, sciatica and pre-diabetes. He also had significant ulcers on his legs from the knee down to the ankle and declined to get medical treatment for them, he said, for too long a period. The ulcers severely affected his mobility and made him feel depressed.

35. In terms of his drug taking, Mr Hopkins said he relapsed briefly into taking ICE in 2013 and then substantially resumed in 2015. He was adamant that he never took drugs in front of his daughter, G, when she was staying with him or in his presence. He did however not dispute that he was often under the influence of drugs when he was around his daughter.

36. Counsel for the Applicant asked Mr Hopkins whether he had been associated with the Rebels Motorcycle Club, which he said he joined in 2004 because they offered him brotherhood and friendship. He accepted Mr Joel’s suggestion that some criminals have been alleged to have been associated with the rebels, but said he did not personally have that experience. He interacted socially with the club and went on a number of rides.

37. Under cross-examination, Mr Hopkins was asked whether he knew the source of the drugs he was selling, and directly asked how he got the drugs. Mr Hopkins availed himself of his right (under section 62(4) of the Administrative Appeals Tribunal Act 1975 (Cth)) not to answer the question on the ground that it might tend to incriminate him.

38. In terms of the firearms offences, Mr Hopkins told the Tribunal he was a hoarder and often was given, or otherwise bought or accumulated, a wide variety of items, including old weapons. In one case he said the firearm for which a conviction was recorded was a starter pistol which had corroded and which he had initially thought was a cigarette lighter.  In relation to another conviction, for possessing a push dagger, Mr Hopkins said the item was displayed on the wall of his house as an ornament, and the Judge was satisfied of this fact. In relation to another offence, the Applicant said it related to a magazine he had obtained when buying some army surplus gear; he had not appreciated that it was a gun magazine.

1. In terms of his claimed depressive condition, Mr Hopkins said he could not remember whether he has been formally diagnosed but said he had seen doctors in the past in relation to feeling depressed, and on one occasion was diagnosed by a general practitioner with melancholia. Mr Hopkins said it was hard to engage with psychiatric or psychological services in prison because he was moved around different facilities, but that he has been able to address these problems while in detention. He said that he has never been someone keen to go to the doctor but has been able to have a range of medical treatment in detention including having much-needed dental work. He told the Tribunal that his leg ulcers have healed and he has lost 30 kilograms in weight, which has improved his general health significantly; he said he no longer suffers from back pain. Mr Hopkins told the Tribunal that he has been approved for a course of methadone in detention and has daily doses.

2. Mr Hopkins told the Tribunal he had undertaken some work tasks in prison, including working in the bakery operating a pie machine. He said he no longer had trouble sitting for prolonged periods, with the caveat that in prison he had not been not working for a full-day. In terms of employment, he said that he had periodically worked in the glazing and glass-fitting business but also worked on buying and doing up cars, and selling them; the latter was his main work activity.

   Evidence of Mr NB

3. Mr NB gave evidence that he is the son of one of Mr Hopkins’ former partners and regards him as his father.  The Tribunal had before it his written statement (Exhibit A1).

4. Mr NB said that he did not believe Mr Hopkins was ever violent, but was aware of his past drug convictions. Mr NB said he had frequent contact with Mr Hopkins and had a good relationship with him.

   Evidence of Mr BL

5. Mr BL, a cousin of Mr Hopkins, gave evidence. The Tribunal had before it his written statement (Exhibit A2). Mr BL said that he was prepared to offer Mr Hopkins and his daughter, G, accommodation on an indefinite basis, should Mr Hopkins’ visa be restored. 

6. Mr BL told the Tribunal that he works for a medical appliance company and was prepared to speak to his employer about offering the Applicant work in the warehouse of the company, noting that his company had a casual workforce which came and went, and that Mr Hopkins possessed a forklift licence.

   Evidence of NM

7. NM, former partner of Mr Hopkins and mother of A and G, gave evidence. She also provided a written statement (Exhibit A6). NM said she first met Mr Hopkins around 2004 and had a continuing relationship with him, broken only by periods in custody for them both. NM told the Tribunal she also had a drug problem and, after she had been incarcerated, G was taken into the care of Mr Hopkins’ daughter, Ms AS. On NM’s release, G was returned to her care. NM commenced a relationship with another person but he was abusive, committed domestic violence and that person is now in custody.

8. NM gave evidence to the Tribunal that G was a challenging child and had been affected with separation anxiety by the absence of her mother in custody. She said the relevant State authority, Family & Community Services, was of the view that G’s relationship with her father was stronger than it was with her mother.  When asked by the Tribunal whether, in the eventuality that Mr Hopkins’ visa was not restored, she had contemplated travelling to the United Kingdom, NM said she had not considered this because she had parole obligations to fulfil in New South Wales until 2020.

   Evidence of Ms AS

9. Ms AS, daughter of Mr Hopkins, provided a written statement (Exhibit A7) and gave oral evidence. Ms AS explained that she looked after G between 2015 and 2018 while her parents were both incarcerated but that G had been a difficult member of her household, requiring a lot of attention and care.

10. Ms AS said G wanted attention all the time and this affected her relationship with her own children and with her husband, and Ms AS was of the view that it was a factor that contributed to the breakdown of her marriage. Ms AS said that it was her observation that G seemed to behave better when she was with her father.

    Other relevant material

11. The Tribunal noted that the Applicant’s parents had lodged testimonials. Mr BH wrote on 19 April 2018 (GD, p 145) that deportation of his son would cause ‘much heartache to all his broad family and friends’ and noted that the Applicant knows no one in the United Kingdom and has never returned to that country since emigrating. Mr BH said most of the relatives in Britain he knew have either passed away or have not kept in contact, and that the Applicant’s grandparents and great-grandparents all migrated to Australia and have since passed away.

12. Mrs JC, the Applicant’s mother, wrote on 5 July 2018 (GD, p 146) that she had no relatives living in Britain as her own siblings had migrated to Canada and she herself had never returned to the UK since emigrating in 1968. Mrs JC wrote about her own health problems and said that, while she currently lives in Queensland, she had planned to move closer to her son as she ages, so he could provide some support.

13. The Applicant’s sole sibling, Ms CH, wrote (GD, p 147) in support of setting aside the visa cancellation because of the effect his repatriation would have on Mr Hopkins’ mental state and the broader effect on his children and grandchildren.

14. Ms JB wrote (GD, p 254) as the former partner of Mr Hopkins and the mother of three adult children with him, as well as the mother of Mr NB, urging that the visa be restored and in particular noted that one of their adult sons is on the autism spectrum and would have great difficulties coping if his father is repatriated.

    Consideration of the Direction

15. The Tribunal considered each of the primary and other considerations set out in Part C of Direction No. 79.

    Primary consideration - Protection of the Australian community (paragraph 13.1)

16. The Direction requires decision-makers, including this Tribunal, to 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.

17. Mr Hopkins’ criminal offending spans some thirty years. Although he has amassed a large number of offences, many of the offences of which he has been convicted may be placed at the lower end of the scale, especially in relation to several of the driving offences, except for the several serious offences of drink- or drug-driving. On the evidence, most of the firearms offences, while serious, do not lead me to a conclusion that these weapons were in his possession for a criminal purpose. Indeed I am satisfied that several of the offences related to weapons which were either incapable of operating or served as curios. 

18. The Respondent did not take issue with the submissions from counsel for the Applicant that Mr Hopkins could not be described as a violent offender, and the Tribunal is satisfied that is the case.

19. Mr Joel submitted that the Tribunal should have regard to the gaps in Mr Hopkins’ offending and that the earlier penalties imposed did have a deterrent effect. The Tribunal accepts these submissions, as far as they go, but the facts remain that there has been a relatively consistent, and melancholy, progression in the Applicant’s offending since 1985 and the gaps in offending, sometimes reasonably lengthy gaps, do not obscure the fact that in the 31 year period from 1985 until his imprisonment in 2016, Mr Hopkins faced the Courts in 17 of those years, and had a number of separate appearances in some of those years.

20. In terms of the nature and seriousness of the conduct (paragraph 13.1.1 of the Direction), the Tribunal accepts that Mr Hopkins’ offending has not been characterised by violence and the only crime that could be categorised as a sexual offence was in its nature minor, and adjudged by the Court as such.

21. The Tribunal does not accept the submissions by counsel for the Applicant that convictions for supplying drugs should not be regarded as reflective of crimes against vulnerable persons in the community (see paragraph 13.1.1.(1)(c) of the Direction). It is self-evident that capitalising on the addictions of others, even when a person is himself an addict, involves a strong element of exploitation of others with an addiction, especially when it is propelled by financial gain.

22. The Tribunal is satisfied that the offending has been frequent and there has been a trend of increased seriousness (see paragraph 13.1.1.(1)(e)). The Courts impose significantly lesser penalties for drug possession than they do for drug supply, because the first may be regarded in the nature of a personal offence, and the second is clearly a crime that affects society at large. The consequences of drug dependence directly lead to other crime, including crimes against property and persons in order for people to fund their habit.

23. The Direction requires (paragraph 13.1.1 (1)(h)) decision-makers to consider whether a non-citizen has re-offended since being formally warned about the consequences of further offending in terms of his or her migration status. At GD p 79 was a letter from the Department to Mr Hopkins sent by registered mail and dated 16 March 2010. It relevantly stated:

    On 2 April 2009 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.

    After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds at this time.  Your current Class BF Transitional (Permanent) visa will continue to provide you with permission to remain in and re-enter Australia.  However the delegate decided that you are to be given the following formal warning:

    Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future.  Disregard of this warning will weigh heavily against you if your case is reconsidered.

    (Emboldening in the original.)

24. At GD p 82 was Mr Hopkins’ acknowledgement of receiving the warning, signed and dated 16 April 2010 (sic). In his oral evidence he agreed that he had received the formal warning from the Department in 2010.

25. The Tribunal notes that, having received this warning and being on notice in regard to the possibility of his visa being cancelled, no offences are recorded against Mr Hopkins until he was before the ACT Magistrates Court in July 2013 and convicted of drug-driving. However, the following year he was convicted of possessing a prohibited drug and, after a short hiatus, he was arrested in February 2016 and eventually was convicted in February 2018 (with the sentences backdated to the date of arrest) of the serious drug supply and other charges.

26. It would appear that Mr Hopkins did not take the Department’s warning seriously enough, because he reverted to offending, and on a much more serious scale.

27. In terms of the risk to the Australian community should Mr Hopkins commit further offences or engage in other serious conduct (paragraph 13.1.2 of the Direction), the Tribunal must have regard to the nature of harm to individuals or the Australian community should Mr Hopkins re-offend.

28. The Tribunal had before it the sentencing remarks of His Honour Judge Bozic, SC, of the District Court of New South Wales (GD, pp 42-59).  His Honour relevantly said (GD, pp 49-50):

    Clearly from the appellant’s record, and indeed from the letter he wrote himself, I accept that he has an issue with prohibited drugs. It is difficult in the circumstances to make, on the basis of the evidence before me, any realistic assessment of his prospects of rehabilitation and what will occur on his release other than to note as I have said, he does have the support of others and he has the motivation to remain free from criminal activity in order to be present and be a father for his two year old son. There are therefore some prospects of rehabilitation but as I have said, one cannot realistically make an assessment of those and it is certainly not possible to find that the offender is unlikely to reoffend.

    I turn now to the objective seriousness of these various offences. Dealing first with the offence of drug supply, that of its nature is an objectively serious offence.  It is an offence in which general deterrence and punishment are of particular importance and because of the offender’s record, personal deterrence is also of some importance in this case. In assessing the objective seriousness I take into account that the quantity of drugs involved was in the order of 9.51 grams of methylamphetamine, the indictable quantity is 5 grams and the trafficable quantity is 3 grams.

    And, at GD, p 52:

    I am satisfied on the basis of the material to which I have referred, that the offender was involved in trafficking to a substantial degree, that he was able to source and supply drugs on request, that his role was above that of a user/dealer….

29. I am unable to make an assessment of the level of risk of Mr Hopkins reverting to reoffending in the future.  On the one hand he claims that he won’t because of his daughter, G, but on the other admits he was involved in criminal activity and drug-using before he was in custody and when looking after her. He submits only that moving to another part of the State, to live with Mr BL, would remove him from ‘bad influences’. In this situation, and taking into account Judge Bozic’s conclusion that he could not find Mr Hopkins was unlikely to re-offend, I cannot be satisfied that a real risk does not remain.

30. In this regard, I note the remarks of Judge O’Connor, QC, at Gosford District Court on 25 January 2008 when sentencing Mr Hopkins (GD, p 74):

    As submitted by the Crown, the offender was capable of supplying a range of different amounts of drugs, both large and small.

    And at GD, p 75:

    It is also not without significance that the offender has previous offences for supplying prohibited drugs and continued to supply thirteen days after he was charged with deemed supply.

31. Taking into account the serious nature of the offending and the risk factor, the Tribunal concludes that this primary consideration weighs heavily against revoking the mandatory cancellation decision.

    Primary consideration - Best interests of minor children in Australia affected by the decision (paragraph 13.2)

32. In terms of this primary consideration, the Tribunal considers that the best interests of Mr Hopkins’ two minor children, A and G, are relevant. Additionally, the Applicant has seven grandchildren (GD, p 128), whose interests need to be considered.

33. A and G live with their mother, NM, and have done so since 2018, when she was released from custody. A was born when both of his parents were in prison and has never resided with his father. Both the children have visited Mr Hopkins while he has been in custody. In terms of A, Mr Hopkins told the Tribunal he has focussed more on the care of his daughter, G, and conceded that A does not have the behavioural issues that G has and that he has a more mature relationship with his daughter, which is logical given he has been separated from A for almost all of A’s life.

34. In terms of G, Ms AS’s evidence of challenges of G’s behaviour are to a certain extent corroborated by the medical letter to NM’s general practitioner from the paediatrician at The Children’s Hospital at Westmead (Exhibit A5), Dr Zehetner. G was referred for specialist diagnosis and opinion in regard to aggressive behaviour she had shown towards her brother. Dr Zehetner relevantly wrote (names redacted):

    G was referred for aggressive behaviour towards A (there have allegedly been several ‘accidents’ where A has been hurt, eg dropped on his head, when left alone with G) and being oppositional to NM. NM feels that G may be ‘manipulative’ to her as she is able to be well-behaved at school and with others, including her previous carer [Ms S]. G has been in NM’s custody since March 2018 (NM was incarcerated when G was 4-6.5 years old).

    …

    G met DSM-5 diagnostic criteria for Oppositional Defiant Disorder (ODD, Angry/Irritable Mood, Moderate), though not for Attention-deficit Hyperactivity Disorder (ADHD). There are issues relating to Sibling Rivalry and Reactive Attachment Disorder (RAD) due to her parents’ circumstances and past/current history of incarceration.

35. Dr Zehetner arranged for G to undergo assessment and receive further psychological counselling.

36. It was submitted by the Applicant, and supported by Mr BL, that Mr Hopkins would reside with G at Mr BL’s residence if his visa is restored. Mr Hopkins said that G was ‘defiant to everyone else, but she does listen to me. I know how to manage her.’ When asked whether he had contemplated, if his visa is not restored, taking G with him to the United Kingdom, Mr Hopkins said he did not think he could take her away from her mother because she needs stability.

37. Mr Keevers submitted that, while on her evidence the Respondent accepts that NM struggles with G’s behaviour, this is not a case where there is no parental figure, as that role is fulfilled by NM (paragraph 13.2(4)(e) of the Direction). It is also relevant to consider the extent to which Mr Hopkins is likely to play a positive parental role in the future (paragraph 13.2(4)(b)). Although Mr Hopkins was adamant that he never actually took ICE in front of his daughter, he conceded that he was affected by the drug when she was in his care.

38. In terms of Mr Hopkins’ contacts with, and involvements in the lives of, his grandchildren, there was scant information. It is apparent that he has had periodic contact with most of them except one who was born whilst he has been incarcerated, but less weight is assigned in this consideration to the effect on them, given that their own parents fulfil the normal parental role in their lives.

39. Overall the Tribunal concludes that this primary consideration weighs in favour of revoking the mandatory cancellation of Mr Hopkins’ visa. I am satisfied that the evidence points to Mr Hopkins having a close relationship with G, and a strong, if less close, relationship with A. I am satisfied on the evidence of NM and Ms AS, and on the Applicant’s own evidence, that Mr Hopkins is able to ameliorate the behaviour of G, when she is in his care.  However, the weighing of this consideration is not as strong as it might otherwise be, given the Applicant’s admission that he was affected by illicit drugs in her presence and that there have been significant periods when he has not been present in her life, such as when G was in Ms AS’s care, and then when Mr Hopkins was in prison, and then more lately in immigration detention.

    Primary consideration – Expectations of the Australian community (paragraph 13.3)

40. The Direction reminds decision-makers that the Australian community expected non-citizens to obey Australian laws while in this country. The Tribunal would add that expectation is no different from what is expected of Australian citizens, whether by birth or conferral. 

41. In FYBR v Minister for Home Affairs [2019] FCA 500, Perry J was considering the predecessor to the Direction in regard to a refusal of an application for a visa, but the relevant passage Her Honour was considering matches paragraph 13.3 of the Direction. The Judge said, at [42]:

    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. As such, the Tribunal did not fall into jurisdictional error in failing to have regard to the applicant’s circumstances when assessing the expectations of the Australian community in applying cl 11(3) of the Direction. 

1. I take the view that the gauging the expectation of the Australian community presupposes that the hypothetical community member is apprised with all the relevant facts of a non-citizen’s offending or other serious conduct.  In this matter, and taking into account paragraph 6.3(5) of the Direction, I conclude that the Australian community may give greater tolerance to a person, like Mr Hopkins, who came to this country at a very tender age and has lived here ever since.  However, the same community member would, I consider, take an adverse view of Mr Hopkins’ drug dealing and the Judge’s conclusions that he was more than a drug user/dealer.  They may take account that much of his earlier offending was at the lower scale, but his involvement in drug-selling as a commercial enterprise, together with the knowledge that he had previously been warned of the possible immigration consequences of him continuing to offend, would weigh heavily against revoking the mandatory cancellation of Mr Hopkins’ visa.

2. I conclude that this primary consideration weighs against revoking the mandatory cancellation of the visa.

   Other considerations

   International non-refoulement obligations (paragraph 14.1)

3. Australia has international treaty obligations not to forcibly return a person to a place where they will be at risk of a specific type of harm. If Mr Hopkins’ visa is not restored, he would be repatriated to the United Kingdom. There were no submissions from either counsel that this consideration is engaged in this case. The Tribunal therefore weighs it neutrally in this consideration.

   Strength, nature and duration of ties to Australia (paragraph 14.2)

4. The Direction exhorts decision-makers to have regard to how long a non-citizen has resided in Australia.  Less weight should being given where the non-citizen began offending soon after arriving in this country and more weight should be given to time the person has spent contributing positively to the Australian community.

5. As mentioned, Mr Hopkins emigrated with his parents when he was less than six months old. He has spent almost all of his life in Australia. Mr Joel submitted that the Applicant’s entire family and social links were with this country.  That is corroborated by the testimonials before the Tribunal, particularly those from Mr Hopkins’ parents. Mr Keevers submitted that Mr Hopkins’ offending began when he was still a minor and has persisted through his adult life.

6. What positive contribution Mr Hopkins has made to the Australian community is hard to calculate. On his own evidence, he has worked only briefly in his trade, apart from periodic work for himself. The reminder of his adult life he has either been on social benefits or in custody. The Tribunal notes that the Direction requires decision-makers to take into account family or social links which Mr Hopkins may have with Australian citizens or people who have an indefinite right to remain in Australia. The Applicant’s father is a naturalised Australian citizen (GD, p 144), as is his sister. He has two minor Australian citizen children, and five other Australian citizen children who are now adults; he also may be regarded as having effectively been the father of Mr NB, an Australian citizen. He also has a number of Australian citizen grandchildren.

7. On balance, the Tribunal considers that this other consideration weighs in favour of revoking the mandatory cancellation of the visa.

   Impact on Australian business interests (paragraph 14.3)

8. The Direction alerts decision-makers to consider the impact on Australia’s business interests if a non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project or the delivery of an important service in Australia.

9. Mr Hopkins gave evidence that after dabbling in working as a mechanic, he completed his apprenticeship in glazing and glass-fitting. He said he had worked in this field, but not for many years; he said that his main work activity has been in buying cars and fixing them up for resale. He has been on unemployment benefits for significant periods.

10. The Tribunal considers that this consideration carries no weight either for or against revoking the mandatory cancellation decision.

    Impact on victims (paragraph 14.4)

11. The Direction requires decision-makers to consider the impact of a decision not to revoke the mandatory cancellation on members of the Australian community including victims of the non-citizen’s criminal behaviour where that information is available. There was no information before the Tribunal that any victims of Mr Hopkins’ drug-selling or other offending were aware of his visa status, so this consideration was not considered further.

    Extent of impediments if removed (paragraph 14.5)

12. The Tribunal must consider the extent of any impediments that a non-citizen may face if removed from Australia to his or her home country, in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country. Decision-makers must take into account the age and health of the person; any substantial language or cultural barriers; and any social, medical or economic support available to them if repatriated.

13. It was not contested between the parties that the United Kingdom does not pose any language or cultural barriers for the Applicant. Mr Joel submitted that ‘to date no evidence has been provided to support the comparison of the welfare systems in Australia and [the] United Kingdom with respect to provision of appropriate health infrastructure’.

14. With respect, this is a misunderstanding of this part of the Direction. In regard to the health infrastructure available (in this case) in the United Kingdom, the correct yardstick is to assess that against what is generally available to other UK citizens. The task is not to compare what is available in the other country with what is available in Australia. The Tribunal notes that it is a matter of public record that the United Kingdom has a universal health system, the National Health Service (NHS), and that, as a citizen of the UK, Mr Hopkins would have the same access to the NHS as other British citizens.

15. Mr Joel made submissions at the hearing that the Applicant suffers from a range of health problems. Some of those are corroborated in the medical evidence.  However, in his own evidence, Mr Hopkins in answer to direct questions from the Tribunal agreed that his leg ulcers have healed, he no longer has back problems and his pre-diabetes has stabilised. In addition, he volunteered that he has had significant dental treatment while in detention. Mr Hopkins told the Tribunal that he had ‘the first full medical examination for many years’ when he entered Villawood Immigration Detention Centre. To assure itself, the Tribunal, with the consent of the Applicant, asked the Respondent to provide medical records of that examination, and Mr Keevers lodged a bundle of medical records with the Tribunal, copied to Mr Joel, on 12 June 2019. The documents were taken into evidence (Exhibit R3).

16. The documents reflected Mr Hopkins’ oral evidence, particularly in regard to his dental treatment. Relevantly, the Tribunal notes an authority dated 4 June 2018 issued under the Poisons and Therapeutic Goods Act 1966 (NSW) for Mr Hopkins to receive methadone. If repatriated, there is no reason that this information could not be furnished by Mr Hopkins to the NHS authorities in regard to participation in equivalent methadone treatment in United Kingdom.

17. Mr Hopkins told the Tribunal that he had been able to undertake some work tasks in prison, and cited the example of operating machinery in the prison bakery. He said that his back has improved so that he was now able to sit without discomfort for extended periods of time. With the qualification that he has been out of the workforce for a lengthy period, Mr Hopkins does have certain skills (an apprenticeship in glazing, some practical mechanical expertise and, on Mr BL’s evidence, a forklift licence) which he would be able to deploy.

18. There is no doubt that separation from family would be a significant wrench. Mr Joel and the Applicant in evidence mentioned a depressive condition, but there was no positive diagnosis of such before the Tribunal, though Mr Hopkins’ feelings of depression are mentioned in some of the medical documents obtained from Villawood. The Tribunal does not discount that deportation would have a major effect on Mr Hopkins. While he would have access to the employment assistance services available to other British citizens, the Tribunal accepts that finding gainful employment may not be easy.

19. On balance the Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, but only very slightly so.

    CONCLUSION

20. The Tribunal has taken account of the balancing considerations in this matter, and particularly so in regard to the primary consideration in the Direction relating to the best interests of minor children, noting in particular the evidence given about the Applicant’s older minor child, G. I have found that this primary consideration weighs in favour of Mr Hopkins’ visa being restored. However, the other two primary considerations, the protection of the Australian community from criminal or other serious conduct and the expectations of the Australian community, weigh strongly against revoking the mandatory cancellation decision. In particular, I have taken into account that Mr Hopkins had graduated from being a user of illicit drugs to being involved in their commercial sale, in a way that was judged by the Courts not to be insignificant. It is also adverse in this consideration that, as he openly admitted, he had been formally warned about jeopardising his visa status but had then gone on to reoffend, and that offending had escalated.

21. In regard to the other considerations, I have found that the two of them, the other consideration relating to strength, nature and duration of Mr Hopkins’ ties with Australia weighs in favour of revoking the mandatory cancellation, and that the other consideration of the extent of impediments if removed weighs slightly in his favour. The other considerations in the Direction weigh neutrally, or are not engaged.

22. The Direction stipulates, at paragraph 8(5), that one or more primary considerations may outweigh other primary considerations. Because of the serious nature of the offending and the real risk of reoffending, I do not consider that is the case here. It is the Tribunal’s conclusion, as mentioned, that Mr Hopkins fails the character test in the Act. Evaluating and assessing (to borrow the words in Gaspar) the totality of the evidence the Tribunal also finds that there is not another reason (see section 501CA(4)(b)(ii) of the Act) that the original decision to cancel Mr Anthony Hopkins’ Class BF Transitional (Permanent) visa should be revoked.

    DECISION

23. The reviewable decision is affirmed.

I certify that the preceding 102 (one hundred and two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris.

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

Associate

Dated: 24 June 2019

Date(s) of hearing:	4, 5 and 14 June 2019
Solicitors for the Applicant:	Mr A Joel - Adrian Joel & Co.
Solicitors for the Respondent:	Mr A Keevers - Sparke Helmore Lawyers

APPENDIX
List of Exhibits
A1	Affidavit of Mr NB, dated 23 May 2019
A2	Sworn affidavit of Mr BL, dated 20 May 2019
A3	Affidavit of the Applicant, dated 27 May 2019
A4	Affidavit of the Applicant, dated 28 May 2019
A5	Medical letter relating to Applicant’s daughter, dated 12 September 2018
A6	Affidavit of Ms NM, dated 22 May 2019
A7	Affidavit of Ms AS, dated 21 May 2019
A8	Unsworn affidavit of Ms JB, dated 21 May 2019
R1	Volume of paginated ‘G’ documents
R2	Tender bundle, of the Respondent
R3	Medical records of the Applicant from Villawood IDC, lodged 12 June 2019