HTKV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2316
•13 June 2024
HTKV and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2316 (13 June 2024)
Division:GENERAL DIVISION
File Number: 2024/2285
Re:HTKV
APPLICANT
Minister for Immigration, Citizenship and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:13 June 2024
Date of written reasons 9 July 2024
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 March 2024 not to revoke the cancellation of HTKV’s visa.
........................................................................
Member D. Cosgrave
Catchwords
MIGRATION – mandatory visa cancellation – failure to pass character test – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 99 applied – where Applicant has limited ties in Australia – Tribunal finding factors in favour of revocation outweighed by those against revocation – Tribunal finding there is not another reason to revoke the mandatory cancellation decision – decision under review affirmed.
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Penalties and Sentencing Sentences Act 1992 (Qld)
Cases
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
Bartlett v Minister for Immigration and Border Protection [2017] AATA 1561
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172
BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99
Bushell v Repatriation Commission (1992) 175 CLR 408
Coker v Minister for Immigration and Border Protection (2017) 160 ALD 588
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Garland v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 144
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338
GJJF and Minister for Home Affairs (Migration) [2019] AATA 930
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Matthews v Minister for Home Affairs [2020] FCAFC 146
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs [2022] HCA 26
PNLB v Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Rahman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020)
QKVH v Minister for Home Affairs [2020] AATA 4431
Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970
Sabharwal v Minister for Immigration and Border Protection [2018] FCA 10
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tera Euna v Minister for Immigration and Border Protection [2016] AATA 301
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)
REASONS FOR DECISION
Member D. Cosgrave
9 July 2024
INTRODUCTION
HTKV seeks review of the Respondent’s delegate’s 20 March 2024 decision (the reviewable decision) not to revoke the mandatory cancellation of his Class WA Subclass 010 Bridging A visa (the Visa).[1]
[1] G documents, G3, page 19. G documents are so named because they are provided under s 501G of the Migration Act 1958 (Cth). They consist of documents in the possession or control of the Respondent relevant to the making of a reviewable decision. They usually accompany the Minister’s written notice regarding a visa cancellation, refusal, or non-revocation.
The hearing was held in Brisbane on 6 June 2024. Mr Boccabella of counsel represented HTKV. Mr Kyranis of Sparke Helmore represented the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent or the Minister)
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (Cth) (the Act), the Tribunal was effectively required to make a decision by 13 June 2024. On 13 June 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it affirmed the decision under review.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
HTKV is a 29-year-old[4] Colombian citizen who first arrived in Australia on 24 December 2018.[5]
[4] Exhibit R3, G4, page 38.
[5] Exhibit R3, G15, page 200.
On 12 August 2022, HTKV was convicted of Trafficking In Dangerous Drugs (the Index Offence). He received a sentence of six years’ imprisonment.[6]
[6] Exhibit R3, G4, pages 38-39.
On 28 March 2023, HTKV's Visa was cancelled under s 501(3A) of the Act[7] because he did not pass the character test given his ‘substantial criminal record’.[8] On 30 March 2023, HTKV made representations about revocation of the decision to cancel his Visa (revocation request). On 20 March 2024, the decision to cancel his Visa was affirmed by the Respondent. HTKV subsequently lodged an application in the Tribunal for review of that decision. The Tribunal has jurisdiction to review the decision pursuant to s 500(1)(ba) of the Act.
[7] Exhibit R3, G3, page 24.
[8] As defined in ss 501(6)(a) and 501(7)(c) of the Act.
OFFENDING HISTORY
HTKV’s offending history includes:
(a)The Index Offence; and
(b)One count of Breach of bail condition, convicted in the Southport Magistrates Court in July 2021.[9]
[9] Exhibit R3, G4, pages 38-39.
LEGISLATIVE FRAMEWORK
The Tribunal is satisfied that HTKV did not pass the character test and made the representations required by s 501CA(4)(a) of the Act. Thus, the next issue is whether there is another reason to revoke the mandatory cancellation of HTKV’s Visa. If there is, the Tribunal should set aside the original decision.[10]
[10] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
In applying 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 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) applies.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles that are set out below:
·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.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
·With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides 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.
The considerations in paragraphs 8 and 9 that are relevant in this matter are:
·Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct;
·Primary Consideration 3 – Strength, nature and duration of ties to Australia;
·Primary Consideration 5 – Expectations of the Australian community;
·Other Consideration (a) – Legal consequences of the decision; and
·Other Consideration (b) – Extent of impediments if removed.
The mandatory considerations that are not relevant in this matter are:
·Primary Consideration 2, relating to acts of family violence, because there is no suggestion that HTKV has ever committed an act of family violence.
·Primary Consideration 4, relating to the best interests of minor children in Australia, because there is no evidence that the best interests of any minor child in Australia is affected by the decision.
·Other Consideration (c), concerning victims, because there is no evidence that the decision would affect any victims of HTKV’s offending.
·Other Consideration (d), concerning Australian business interests, because there is no evidence that the decision would affect any Australian business interests.
Paragraph 7(2) provides that the primary considerations should generally be given greater weight than the other considerations, and paragraph 7(3) provides that one or more primary considerations may outweigh other primary considerations.
MATTERS FOR CONSIDERATION
HTKV’s Visa was cancelled on the basis that he had failed the character test once the delegate considered and then applied s 501(6)(a).
The issue for the Tribunal to consider under s 501CA(4)(b)(ii) of the Act is whether the Tribunal is satisfied of there being another reason to revoke the cancellation decision.[11] The Tribunal ‘stands in the shoes of the original decision-maker’ but with regard for the situation as at the time of its consideration.[12]
[11] Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J); [103] (O’Bryan J).
[12] Nathanson v Minister for Home Affairs [2022] HCA 26 (‘Nathanson’); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51]; Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at 299 [40], 315 [100], 324-325 [134]; Bushell v Repatriation Commission (1992) 175 CLR 408, 425 (Brennan J); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ).
To assist its assessment, the Tribunal has created the following chronology of events, including HTKV’s convictions, visa cancellations and rehabilitation efforts:
Date
Event
December 2018
HTKV arrives in Australia.
December 2019[13] - March 2020[14]
HTKV and his co-offender engaged in wholesale trafficking of cocaine sourced from Colombia, Sydney and Brisbane.
12 March 2020
HTKV was arrested.
July 2021
HTKV was convicted and sentenced for the offence of Breach of bail condition. No conviction was recorded.
August 2022
HTKV pled guilty and was found guilty of committing the Index Offence. He was sentenced to six years’ imprisonment.
November 2023
HTKV is granted a Certificate of Completion for completing the MISI 48 hour Explore Program with Drug.ARM.[15]
April 2024
HTKV is granted parole. The Parole Order remains in force until August 2028.
[13] Exhibit R2, TB1, page 1, at [2].
[14] Exhibit R2, TB1, page 1; Exhibit R3. G5, p 41
[15] Exhibit A9.
IS THERE ANOTHER REASON WHY HTKV’S VISA CANCELLATION SHOULD BE REVOKED?
When considering whether there is another reason, the Tribunal must comply with the Direction.[16] In doing so, the Tribunal has regard to the Federal Court’s identification of the principles in Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 172 at [27], approving the reasoning in Viane.[17]
[16] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
[17] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
The Direction
The Direction, as referenced above, contains mandatory and aspirational considerations guiding the exercise of statutory power under the Act.[18]
[18] BOE21 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 99, at [22], citing with approval Matthews v Minister for Home Affairs [2020] FCAFC 146, at [45].
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[19] The weighing process is substantively left to the individual decision-maker exercising the relevant power under s 501 of the Act.[20]
[19] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[20] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of s 501G of the Act, documents tendered by the Respondent and HTKV and testimony given by HTKV.
Documentary Evidence
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’.
The Tribunal’s assessment of HTKV’s testimony
After observing HTKV give testimony and comparing the testimony to the documentary evidence before it, the Tribunal considers that his credibility and reliability as a witness are strong. His testimony was consistent with his previous statements[21] and he offered clarifications as required in cross-examination[22]. He gave detailed answers that were plausible and corroborated by the documentary police evidence and the sentencing decision’s transcript where relevant. He did not show signs of evasion or deflection in his answers, even under challenge.
[21] Exhibit R3, G5, G8 page 52, G10, G12, page 130; Exhibit A2 and Exhibit A3.
[22] For example, see Transcript, page 19, lines 15-38.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind that the Australian Government is committed to protecting the Australian community from harm because 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 with 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 applicable to 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.
Tribunal’s consideration: The nature and seriousness of HTKV’s conduct
Paragraph 8.1.1(1)
This paragraph states that, in considering the nature and seriousness of the non-citizen’s ‘criminal offending or other conduct to date’, decision-makers ‘must have regard to the following’:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) 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 (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Tribunal has considered both parties’ respective submissions on Paragraph 8.1.1 of the Direction.
Mr Boccabella, for HTKV, contends in relation to this consideration:
·HTKV pled guilty to a very serious drug dealing offence. There is nothing to underplay in that regard. But something most extraordinary has to happen when a person is sentenced to serve 20 months out of a six-year prison sentence, when the maximum sentence is 25 years.
·During the hearing, the Supreme Court conducted a closed session where the Court received evidence in camera.[23]
·The evidence given in camera was not referred to in the court’s reasons on sentencing. But in the circumstances of this case, there can only be one reason for the light sentence and that is HTKV’s strong co-operation with the authorities.[24]
·HTKV’s legal practitioner in the Supreme Court matter stated in his statutory declaration that considerable assistance was given to the police by HTKV, but the final document under s 13B of the Penalties and Sentences Act1992 (Qld) was sealed and not revealed, in response to the summons filed by the Respondent to the Supreme Court.[25]
·Obviously the strictest of security requirements would need to be met before the documents could be provided to the Tribunal. It is more appropriate that the lawyers for the Respondent apply to the Supreme Court to obtain these documents than the lawyers for HTKV doing so.[26]
·However, the Tribunal can draw the reasonable inference that valuable confidential information was provided to the police authorities.[27]
[23] Exhibit R3, G12, page 119.
[24] Exhibit A1, page 6, para 39.
[25] Exhibit A1, page 6, para 43.
[26] Exhibit A1, page 6, para 44.
[27] Exhibit A1, page 6, para 45.
In essence the Respondent contends that:[28]
·In August 2022, HTKV appeared in the Supreme Court of Queensland and was convicted of Trafficking in dangerous drugs.[29] The conviction arises where HTKV was involved in a wholesale operation which sourced cocaine from Colombia, Sydney or Brisbane.[30] HTKV worked alongside his associates to supply large quantities (i.e., two kilograms per month) of high-quality cocaine to a small customer base. While HTKV was not present for the actual supply of cocaine, his involvement was clearly reflected in intercepted communications, where he discussed sourcing, supplying, debt collecting and drug quality. This operation supplied police informers with cocaine numerous times over a period of three months, which was between 1.1655 grams to 18.056 grams of pure cocaine (between $700 and $6000 in street value). There were further plans to supply one kilogram on the next occasion, which was worth $160,000.[31]
(c)Regard must also be had to the fact that HTKV has been sentenced to a significant term of imprisonment for his offending (paragraph 8.1.1(1)(c) of the Direction). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[32] Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved. It is the Minister’s position that HTKV’s trafficking offending ought to be viewed very seriously, given the six-year sentence imposed.
[28] Exhibit R1, page 6-7, para 26-27.
[29] Exhibit R3, G4, page 39.
[30] Exhibit R2, TB1, page 1.
[31] Exhibit R2, TB1, page 2.
[32] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Paragraphs 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii) and 8.1.1(1)(a)(iii)
There was no evidence before the Tribunal enlivening these paragraphs. They carry a neutral weight.
Paragraphs 8.1.1(1)(b)(i), (ii), (iii) and (iv)
There was no evidence before the Tribunal enlivening these paragraphs. They carry a neutral weight.
Paragraph 8.1.1(1)(c)
In applying this paragraph, the Tribunal is precluded from considering sentences imposed on HTKV for:
(a)any violent offending that he may have committed against women or children;
(b)acts of family violence; and
(c)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.
In August 2022, His Honour Justice Crowley sentenced[33] HTKV to six years’ imprisonment with a fixed parole eligibility date in April 2024. Acknowledging Mr Boccabella’s contention that these periods are less than the maximum sentence for this offence, it is evident that the sentence still involved a significant term of imprisonment for an offence that is not excluded because of the grounds cited above. Consequently, this paragraph carries weight in favour of affirming the reviewable decision.
[33] Exhibit R3, G5, pages 40-47.
Paragraph 8.1.1(1)(d)
This paragraph raises two specific aspects of a non-citizen's offending for consideration: the offending’s frequency and/or whether there is any trend of increasing seriousness.
Frequency
HTKV’s criminal history[34] is largely concentrated in the period between December 2019[35] to 12 March 2020. His breach of his bail conditions is also of relevance in the Tribunal’s consideration.
[34] Exhibit R3, G4, pages 38-39 and Exhibit R2: TB4, page 20.
[35] Exhibit R2, TB1, page 1, at [2].
The Tribunal considers that the evidence supports a finding of a short-lived but significant level of frequency in terms of HTKV’s offending. His breach of his bail conditions is an outlying data point of lesser significance in assessing the frequency of his offending.
Trend of increasing seriousness
The Tribunal considers that HTKV’s offending can be viewed as consistently serious throughout the period in question. There is no trend of increasing seriousness.
Paragraph 8.1.1(1)(e)
This paragraph addresses the cumulative effect(s) of HTKV’s repeated offending.
HTKV’s Index Offence involved drug trafficking. Drug trafficking is defined in the relevant legislation.[36] When he conducted his drug trafficking, HTKV committed smaller offences such as drug supply that are captured by the trafficking charge. That single offence represents many criminal acts. The circulation of cocaine is a scourge on the Australian community, with the use of the drug in Australia remaining high.[37] In committing the Trafficking offence, the Applicant has further promulgated this harm.
[36] Exhibit R3, G6, page 47 and Section 5 of the Drugs Misuse Act 1986 (Qld).
[37] Exhibit R1, page 7, para 29.
As such, the cumulative effects of HTKV’s trafficking are adverse and go to the Australian community at large, as well as imposing both risk and cost on the police services and making an impost on the judicial system’s resources. Consequently, this paragraph carries weight in favour of affirming the reviewable decision.
Paragraph 8.1.1(1)(f), (g) and (h)
There was no evidence before the Tribunal enlivening these paragraphs. They carry a neutral weight.
Tribunal’s finding: The nature and seriousness of HTKV’s conduct
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above, the Tribunal finds, after a holistic consideration of these paragraphs relative to HTKV’s offending, that the nature and seriousness of his conduct should be characterised as very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
This aspect of the Direction requires the Tribunal to assess the risk HTKV poses to the Australian community if he reoffends or engages in other serious conduct, taking into consideration the nature of any consequential harm and its probability.
Paragraph 8.1.2(1)
This paragraph states:
‘In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.’
Paragraph 8.1.2(2)
This paragraph provides that, in considering the risk to the Australian community, a decision-maker must have regard to the 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; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the 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.
In assessing the risk to the Australian community, the Tribunal has considered the evidence and the parties’ submissions in relation to paragraph 8.1.2.
Mr Boccabella contends:[38]
·HTKV, by being an informer has thrown himself into the side of the police. Even if one were to place little weight on the HTKV’s moral fibre, his self-interest and instincts for self-preservation, are enough to state that there is no risk or a most minimal risk of his re-offending.
·This would be for a number of reasons:
oby re-making contact with the drug world, HTKV risks being killed or harmed by them;
oif he re-offends, he throws away any chance of staying in Australia (because of s 36(2C)(b)(ii) of the Act);
oif he re-offends and is caught, he faces a very, very long term of imprisonment;
oif he re-offends he would eventually be deported and would be exposed to harm or death by the drug cartels in Colombia; and
ohe has learned his lesson, he abhors the drug trade, but as we all know, why did not have that abhorrence before he offended? The answer, HTKV says, may be a negative one; punishment is a deterrence.
[38] Exhibit A1, page 5, para 35- 36.
Conversely, the Respondent contends:[39]
·Further drug related offending by HTKV is likely to cause significant psychological, financial and physical harm to members of the Australian community. Australian cocaine usage is at a high level and there are long-term adverse health effects from consuming cocaine.[40]
·The Tribunal should find that HTKV’s risk of reoffending is unacceptable. HTKV has not engaged in any formal clinical or professional risk assessment. However, Queensland Corrective Services (QCS) assessed HTKV to have a risk of reoffending rated at 4 out of 20, noting that he was in the low risk of the general offending category.[41] HTKV has not provided any evidence of rehabilitation although Justice Crowley considered that he had some positive prospects of rehabilitation because of his age, lack of prior convictions and work history, as well as not offending in a similar fashion while on bail.[42] Justice Crowley noted that HTKV has shown some remorse for his offending and accepted responsibility by pleading guilty.[43]
·HTKV’s remorse should be treated cautiously in circumstances where he continues to rely on excuses to justify his offending. While he cooperated with police, he does not take responsibility for his role in the trafficking operation or his general offending. He says that he offended while under instructions and fearing for the lives of himself and his family.[44]
·HTKV has limited protective factors. There is no evidence of family or social links that would help him avoid reoffending. Employment is less of a protective factor as he was employed during the period addressed in the Index Offence. There is no evidence to suggest that this employment assisted him in paying his debts.
·This consideration weighs heavily against setting aside the reviewable decision.
Tribunal’s consideration: The nature of the harm to individuals or the Australian community were HTKV to engage in further criminal or other serious conduct
[39] Exhibit R1, page 7-8, para 29-30.
[40] Exhibit R2, TB7, page 53; TB8, page 59.
[41] Exhibit R3, G12, page 127.
[42] Exhibit R3, G5, page 45.
[43] Exhibit R3, G5, page 45.
[44] Exhibit R3, G12, page 98.
The Tribunal considers that the evidence and testimony, assessed in conjunction with the parties’ contentions, demonstrates that the nature of the harm to both individuals and the Australian community arising from HTKV’s past offending is substantial, given the adverse health effects of cocaine use and the amount of cocaine HTKV trafficked.
If HTKV was to reoffend in the same manner as his past offending, the nature of the resulting harm and the consequences for affected members of the Australian community would be extremely serious and likely involve physical harm and financial loss.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were HTKV to engage in further criminal or other serious conduct
The Tribunal finds that further future criminal conduct of the categories HTKV has previously engaged in could result in extremely serious and material physical and financial effects to the likely cocaine consumers and the Australian community.
Tribunal’s consideration: the likelihood of the non-citizen engaging in further criminal or other serious conduct
The Tribunal has holistically considered the totality of the parties’ contentions, oral testimony and documentary evidence addressing the likelihood of HTKV engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s 501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[45]
[45] See, for example, Rahman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH and Minister for Home Affairs [2020] AATA 4431 (‘QKVH 2020’); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura and Minister for Home Affairs (Migration) [2019] AATA 153.
Relevantly, in Minister for Immigration and Ethnic Affairs v Baker,[46] it was stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
(Emphasis added)
[46] (1997) 73 FCR 187 at 194.
The clear legislative intention regarding the threshold is whether there is ‘a’ risk.[47] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[48] On this occasion, the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[47] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] - [52].
[48] See the discussion in Roberts and Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’(Emphasis added)
In Minister for Immigration and Ethnic Affairs v Guo [1997] HCA 22; (1997) 191 CLR 559 (Guo) Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows, at (574)-(575):[49]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Emphasis added)
[49] QKVH and the Minister for Home Affairs (‘QKVH 2020’) [2020] AATA 4431 (2 November 2020) at [5].
Justice Mortimer explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (Murphy) at [37], where Her Honour noted:[50]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[50] Murphy v Minister for Home Affairs [2018] FCA 1924, [37].
Consequently, by applying the reasoning in Sabharwal to this matter, the Tribunal’s task is to assess whether there is “a risk” or a likelihood of HTKV engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo and guided by Murphy.
In making this assessment, the Tribunal has the benefit of the QCS assessments of HTKV as well as HTKV’s statutory declarations that address his remorse, his fears and his intentions to never again traffic in dangerous drugs, as well as his connections to the Australian community.[51]
[51] Exhibit R2, TB5, page 45; Exhibit A2 and Exhibit A3.
A consideration of the risk or likelihood of HTKV engaging in further criminal or serious conduct should encompass the factors that:
·Contribute to or facilitate the risk; or
·conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to ‘whether the risk should be “tolerated”’.
Factors that facilitate the risk
Based on the evidence before it of how HTKV became involved in drug dealing in Colombia[52] and Australia[53] the Tribunal considers that some of the static factors that contribute to or facilitate the risk that HTKV will reoffend are financial stress, a vulnerability to coercive threats, and poor decision-making with the last of those factors being relevant in assessing this consideration in that there were alternative lawful courses of action available to him in Australia other than drug trafficking once he was approached and coerced to traffic cocaine here.
[52] Exhibit R3, G5, page 42.
[53] Exhibit R3, G5, page 42; G10, page 60.
Factors that hinder or retard the risk – rehabilitation and remorse
There is no evidence before the Tribunal apart from HTKV’s assertions[54] that HTKV has reflected on or addressed how to counter, temper, manage or mitigate the risk factors described above.
[54] Exhibits A2 and A3; Exhibit R3: G10; G14.
Balanced against this lack of evidence are HTKV’s written and oral assertions of remorse and his statements of intent to never offend in a similar manner again.
Risk management factors
HTKV undertook Drug.ARM’s Explore course in prison.[55] In cross-examination, he gave the following testimony about the course:[56]
‘MR KYRANIS: What did you learn after having completed this course?
HTKV: I learned many things about the real damage that drugs cause, not just cocaine. I had different peers and people with different lifestyles and education. I could see that – how each of them was impacted differently, and I could listen to them all and really understand the damage that drug addiction does to society. And it really opened my eyes. I saw how many people committed crimes or made mistakes under the effects – under the influence of the drugs. And I didn’t just see the impact on society, but I also saw other kinds of damage: social, economical, and cultural. And the damage that it has done to my family as well.
MR KYRANIS: Was the course primarily about - for people who have used drugs in the past, identifying strategies and processes to stop them from using drugs in the future?
HTKV: Yes. It was one of the main ones, but not the only one. It was also - it also emphasised to anyone related to the drug trade, and for people to become aware of the real risks of damage to society.’
[55] Exhibit A9; Transcript, page 26, line 32 - page 27, line 30.
[56] Transcript, page 27, lines 12-30.
Mr Boccabella also contends that HTKV’s decision to become a police informer evidences a key aspect of his rehabilitation.[57]
[57] Transcript, page 34, line 45 - page 35, line 5.
HTKV has stated that he has made contact with Centacare in terms of seeking additional, albeit unspecified, support.[58]
[58] Exhibit A8; Transcript, page 19, line 44 - page 20, line 18.
If HTKV is released from detention into the Australian community, he will not have immediate employment. He will have accommodation and lodging.[59]
[59] Exhibit A5.
It appears that, based on the evidence, he will still owe his drug suppliers some level of debt, as well as facing some level of risk in respect of retaliation from them. Tempering these issues are Mr Boccabella’s contentions on this point:[60]
‘MR BOCCABELLA: Now, it’s my submission that the respondent has misassessed the risk of recidivism or risk of committing further offences, because the applicant has burnt his bridges with the drug world.’
and
‘MR BOCCABELLA: He has given uncontradicted evidence that if he ever be approached by anyone from the illegal drug world he would report it to the AFP. No doubt those in the illegal drug world know he has become an AFP informer, and even drug lords have the commonsense to know that any contact with the applicant could lead straight to the federal police.’
and
‘MR BOCCABELLA: If he commits another offence he stands to have his parole revoked, and he would go back to prison until 8 August 2028. He would also be further imprisoned for any further offence if that were to occur.’
[60] Transcript, page 40, lines 33-35; page 32, lines 33-37; and page 33, lines 28-30.
Looking holistically at these factors and acknowledging Guo, the Tribunal assesses that HTKV, if released back to the Australian community, will be in a similar situation to that which occurred in Colombia prior to his departure for Australia, and which precipitated him into drug dealing and drug trafficking. This historical precedent, and its possible future parallels if he were to be released, raise the possibility of increasing stress and risk on HTKV and consequently placing him at an increased risk of offending, despite his rehabilitation efforts and the risk that he may be killed by his former criminal associates.
Risk analysis and consideration
The Tribunal has considered the evidence above, applying the dictum in Guo that the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred, and the likelihood that the introduction of new or other events may distort the cycle of regularity.
Notwithstanding his rehabilitation efforts, if HTKV was placed back in the Australian community, he would have recourse to only a modest set of risk management tools and dynamic factors to mitigate or reduce the likelihood that his static risk factors will reappear, place him under stress, and potentially lead him to reoffend.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal finds that the risk to the Australian community should HTKV commit further offences or engage in other serious conduct exists, but is moderate. Noting the likelihood that any further offences may involve drug trafficking given HTKV’s Index Offence, the Tribunal further finds that the Australian community is unlikely to tolerate this risk.
Conclusion: Primary Consideration 1: Protection of the Australian community
Overall, this consideration weighs heavily in favour of affirming the reviewable decision.
Primary Consideration 2: Family violence committed by the non-citizen
There is no evidence before the Tribunal that enlivens this consideration.
Conclusion: Primary Consideration 2: Family Violence committed by the non-citizen
This consideration carries neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
Paragraph 8.3 of the Direction provides that the Tribunal is to consider any impact of the decision on HTKV’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely. The Tribunal should also consider the strength, duration and nature of any family or social links generally with persons in that category.
In addition, the Tribunal should consider the strength, nature and duration of any other ties HTKV has to the Australian community. In particular, where a non-citizen has been ordinarily resident in Australia during and since their formative years, that warrants considerable weight in their favour regardless of when their offending commenced and the level of that offending. The length of time a non-citizen has resided in Australia should be given more weight if they have contributed positively to the Australian community in that time. Less weight should be given where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
On this consideration, Mr Boccabella contends that:[61]
‘The applicant has a home to go to. His friend [Redacted] is fully aware of the drug conviction, and will provide the applicant with a home and food. Mr [Redacted] was available for cross-examination. His evidence therefore is uncontradicted. The applicant is ready, willing and able to find work, and given the labour shortages in Australia there is little doubt he would find work. The applicant has made contact with a Catholic community and pastoral care organisation called Centacare, who will assist him with his transition to release.’
[61] Transcript, page 35, lines 7 - 14.
The Respondent contends that:[62]
·HTKV arrived in Australia to live in late 2018. The length of time he has spent in Australia is a factor the Tribunal must bring to account (paragraph 8.3(4)(a) of the Direction). This is a case where HTKV has not been ordinarily resident in Australia during and since his formative years (paragraph 8.3(4)(a)(i) of the Direction). He has provided evidence about his former employment as a labourer, which he plans to resume if he were released.
·The Minister accepts that this primary consideration weighs lightly in HTKV’s favour given that the time of about six years HTKV spent in the Australian community where he was not ordinarily resident in Australia during his formative years, and that he began offending in 2021[63] not long after arriving in Australia in 2018 (paragraph 8.3(4)(a)(iii) of the Direction).
[62] Exhibit R1, page 9, para 34 and 35.
[63] Exhibit R1 states 2021 at page 9, para 35, but Exhibits R2 and R3 show that the offending started at least by December 2019/January 2020.
The Tribunal now considers these contentions and evidence through the lens of each sub-paragraph in paragraph 8.3.
Paragraphs 8.3(1) and (2)
HTKV has no immediate family or children in Australia.
Paragraph 8.3(3)
There is evidence and testimony before the Tribunal that went unchallenged regarding HTKV’s friendship with an Australian citizen and the latter’s wife.[64]
[64] Exhibit A5; Transcript, page 18, lines 28 – 29; page 29, lines 16-28.
Paragraph 8.3(4)
HTKV was not in Australia during his formative years. He has made minor positive contributions to the Australian community through his work. His Index Offence occurred a little over a year after his arrival in Australia.
Tribunal’s consideration
The Tribunal acknowledges the evidence and testimony regarding HTKV’s friend in Australia and particularly their offer of accommodation and support if HTKV is released into the Australian community, noting that the friend states that they have read Exhibit R3.
Conclusion: Primary Consideration 3: The strength, nature and duration of ties to Australia
This consideration carries a minimal weight towards setting aside the reviewable decision.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision
There is no evidence before the Tribunal that enlivens this consideration.
Conclusion: Primary Consideration 4: Best interests of minor children in Australia affected by the decision
This consideration carries a neutral weight.
Primary Consideration 5: Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[65]
[65] Paragraph 8.5(1) of the Direction.
Non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of specified types of conduct which includes acts of family violence and serious crimes against women. These expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[66]
[66] Paragraph 8.5(3) of the Direction.
In addition to the guidance provided by paragraph 8.5(1) of the Direction, paragraph 8.5(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences in question are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
Paragraph 8.5(4) of the Direction provides that this consideration is ‘about the expectations of the Australian community as a whole’, and decision-makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations.
Paragraph 8.5(4) correlates with the reasoning of the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454 (‘FYBR’).
Acknowledging the Full Court’s three separate decisions, the plurality of the Court in FYBR held that ‘Expectations of the Australian community’ is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[67] This approach has been confirmed by the High Court in Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2.
[67] FYBR, at 471 - 2 [66] (Charlesworth J), and 476 [89] - [91] (Stewart J).
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[68]
[68] Ibid at 473 [75] - [76] (Charlesworth J).
The Tribunal notes the High Court of Australia refused an application for special leave to appeal from the orders in FYBR, holding at [301] - [303] that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’[69]
[69]FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
Observing the norm stipulated in paragraph 8.5(1), the Tribunal must also consider the guidance provided by paragraphs 5.2(2) to (6) of the Direction:
2 Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3 The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable risk of causing physical harm to the Australian community.
4 Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
5 With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6 Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable risk of causing physical harm to the Australian community.
Mr Boccabella contends, after referring the Tribunal to Her Honour Justice Charlesworth’s decision in FYBR[70]:
[70] Exhibit A1, page 5, para 36; page 7-8, para 51-53; page 9, para 55.
·The factors (quoted below from the Applicant’s Statement of Facts, Issues and Contentions) would outweigh what may be community expectations, especially where the Tribunal is not deciding whether HTKV should be allowed to remain in Australia, but whether HTKV should be released under the lawful supervision of the Parole Board.[71]
[71] Exhibit A1, page 9, para 54.
·Factors stated in paragraph 36:
(a) one by re-making contact with the drug world he risks being killed or harmed by them;
(b) two if he re-offends he throws away any chance of staying Australia [sic] (because of s36(2C)(b)(ii) of the Act);
(c) thirdly if he re-offends and is caught, he faces a very, very long term of imprisonment;
(d) fourthly if he re-offends he would eventually be deported and would be exposed to harm or death by the drug cartels in Colombia;
(e) fifthly, he has learned his lesson, he abhors the drug trade, but as we all know, why did not have that abhorrence before he offended? The answer may be a negative one, punishment is a deterrence.
·Factors stated in paragraph 51:
(a) The AAT in No: 2024/2285 is not determining whether HTKV will be able to stay in Australia.
(b) The AAT’s task is akin to bail application, revoking the BVA cancellation will enable HTKV to be released to the strict supervision of the Parole Board, while his protection visa application is assessed.
(c) HTKV pleaded guilty at an early opportunity to a serious drug trafficking offence and thereby has shown remorse.
(d) There is a public interest in taking into account the fact that a convicted person has taken on the role of informant particularly in areas of drug trafficking (it is unlikely that ordinary policing would have led to the arrests that occurred).
(e) For the reasons outlined above (in paragraph 36), at least for the duration of his protection visa assessment, there is a very, very low possibility of HTKV re-offending in any way.
The Respondent contends:[72]
·In having regard to this consideration, paragraph 8.5(4) provides that the decision-maker should proceed on the basis of the Government’s views about the community’s expectations articulated above, and must not independently assess the community’s expectations as they may pertain in a particular case.
·Observing the norm stipulated in paragraph 8.5(1), and in accordance with the guidance provided by Principles 5.2(1)-(5) of the Direction, the Australian community would expect that HTKV should not continue to hold a visa on account of his serious and persistent offending in the past and the risk of further offending and infliction of harm. Principle 5.2(4) is particularly relevant in this case since HTKV was participating in the Australian community only for a short period of time.
·Overall, the Minister contends that this primary consideration weighs heavily against revocation.
[72] Exhibit R1, page 10, para 40 - 42.
The next question that the Tribunal must address is whether there are any factors which modify the Australian community’s expectations.
This question is informed by the principles in paragraphs 5.2(4) to (6) of the Direction. In summary these are:
·Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa.
·The Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time.
·In relation to decisions to refuse, cancel and revoke cancellations of visas, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.
·The level of this tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
·The nature of a 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 a visa outcome that is not adverse to the non-citizen.
·In particular, the inherent nature of certain types of conduct mentioned in paragraph 8.5(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 measureable [sic] risk of causing physical harm to the Australian community.
Sub-paragraph 5.2(4) uses the term ‘limited stay visa’ which is not defined in the Act. The Act does however create a taxonomy of visas. Relevantly for present purposes, section 30 of the Act contemplates both (1) ‘permanent’ visas, which permit a right to remain, ‘indefinitely’; and (2) ‘temporary visas’, which provide a conditional right to remain. ‘Limited stay’, as used in the Direction, seems to be a reference to non-permanent or ‘temporary’ visas.
Tribunal’s consideration
HTKV held a Class WA Subclass 010 Bridging A visa. This is not a permanent visa.[73]
[73] Migration Regulations 1994 (Cth), Schedule 2, reg 010.511.
This implies that sub-paragraph 5.2(4)’s lower tolerance applies.
HTKV has lived in Australia since 24 December 2018 and began offending one year later. HTKV has made some very modest contributions to the Australian community as a worker.
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. This is not the case with HTKV.
The Tribunal has also found HTKV’s offending conduct to be very serious.
The Tribunal also observes the requirements of paragraph 8.4(3) of the Direction which dictate that the expectations of the Australian community apply regardless of whether a non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that HTKV poses a moderate risk of re-offending.
HTKV’s Index Offence raises serious character concerns in that his offending covered a period of time and was not restricted to one day or time and because it involved trafficking significant quantities of cocaine. Although there need not be a measurable risk of causing physical harm to the Australian community to engage this Primary Consideration, the Tribunal considers and finds that such a risk exists in this matter contrary to Mr Boccabella’s contentions that address the likelihood of HTKV’s reoffending posited on the personal risk he would face if he did so.
The Tribunal is satisfied that HTKV has breached the Australian community’s expectations by his criminal offending which involved serious breaches of Australian laws. Therefore, the Australian community, ‘as a norm’ expects the Australian Government not to allow him to remain in Australia.
The Tribunal accepts that HTKV cooperated with the police and courts, as contended by Mr Boccabella. On the other hand, HTKV’s offending evidences a level of disregard for Australian laws and for the safety of other members of the Australian community.
Conclusion: Primary Consideration 5: Expectations of the Australian community
This consideration carries strong weight in favour of affirming the reviewable decision.
OTHER CONSIDERATIONS
The Tribunal now considers each of the four sub-paragraphs (a), (b), (c) and (d) set out in Other Considerations listed in paragraph 9 of the Direction.
Other Consideration (a): Legal consequences of the decision
In the absence of a protection finding, affirming the reviewable decision would mean that:
·HTKV would be liable to be removed from Australia as soon as reasonably practicable and held in immigration detention until that time;[74]
·the only foreseeable matter that would delay his removal is an appeal against the decision; and
·he would not be able to apply for another visa while in Australia (except for a Bridging visa).[75]
[74] Sections 189 and 198 of the Act.
[75] Section 501E of the Act.
Tribunal’s consideration
On 30 September 2020 HTKV applied for a Protection Visa XA Subclass 866 visa on the basis that he will face harm, including death, if he returns to Colombia.[76] He submits that he can never return to Colombia, and that if he is not granted a protection visa, he will ‘face being incarcerated indefinitely in Australia’.[77] These claims will be considered and addressed in his protection visa decision process. Regardless of the Tribunal’s decision in this matter, HTKV cannot be removed from Australia while his protection visa application is still in process.
[76] Exhibit R3: G8, G10, G12 and G14.
[77] Exhibit R3: G14, page 185.
Consequently, if the Tribunal decides to set aside the reviewable decision, HTKV will be returned to the Australian community. On the reverse, if the Tribunal decides to affirm the reviewable decision, he will remain in immigration detention until his protection visa decision process is concluded. This is the way the legislative scheme is intended to work.
No particular hardship was raised or identified with respect to HTKV’s accommodation in immigration detention.
Tribunal’s finding: Other Consideration (a): Legal consequences of the decision
This consideration carries a neutral weight.
Other Consideration (b): Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
1 Decision-makers must consider the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Respondent contends:[78]
·This consideration is not relevant where, regardless of the Tribunal’s decision in this matter, HTKV will not be removed to Colombia because his protection visa application has not been resolved.[79]
[78] Exhibit R1: Respondent’s SFIC, [48]–[49].
[79] Exhibit R1: Respondent’s SFIC, [45]
Tribunal’s consideration
Acknowledging the Respondent’s contention, the Tribunal still considers it appropriate to address this consideration. This requires the Tribunal to assess and consider the extent of any impediments that HTKV, if removed from Australia to Colombia, will face in establishing himself and maintaining basic living standards taking the specific factors below into account.
Sub-paragraph 9.2(1)(a) – the non-citizen’s age and health
HTKV is 29 years old, appears in good health and gave no evidence of any health condition aside from an allergic reaction.[80]
[80] Transcript, page 30, lines 5–6.
The Tribunal concludes, after looking holistically at the available evidence, that he is healthy and does not appear to suffer from any chronic physical health issue that would currently impede his ability to re-settle and maintain basic living standards in Colombia apart from his disclosure of an unspecified allergic reaction.
Sub-paragraph 9.2(1)(b) – any substantial language or cultural barriers
The Tribunal considers that HTKV, based on his oral testimony and the fact that he lived in Colombia until he was 24, would not face any linguistic difficulties if he returned to Colombia.
The Tribunal also considers that HTKV is unlikely to face significant cultural issues for the same reason.
Sub-paragraph 9.2(1)(c) – any social, medical and/or economic support available to them in that country
The Tribunal considers that, based on the evidence, HTKV would have medical, social and economic support available to him in Colombia to the same extent as any other Colombian citizen.
Based on his own words, HTKV would be unlikely to seek support from his family or his girlfriend as he fears for their safety.[81] His uncontradicted testimony suggests that his family would be unable to financially support him.[82]
[81] Exhibit R3: G14, pages 175 and 180.
[82] Transcript, page 29, lines 35–47.
Tribunal’s analysis and consideration
The Tribunal has considered above the extent of any impediments that HTKV, if removed from Australia to Colombia, will face in establishing himself and maintaining basic living standards, considering the specific factors set out in paragraph 9.2(1), the evidence before the Tribunal and the parties’ respective contentions.
Assessed against the common range of potential impediments, this consideration would likely carry a neutral weight in relation to HKTV.
However, HTKV’s situation falls outside that common range when the potential for criminal retribution is acknowledged. The Tribunal is satisfied that, based on the evidence before it, there is a risk involved if HTKV returns to Colombia.[83] HTKV has stated that he has an USD 84,000 drug debt in Colombia. He fears that if he returns, he will face a choice to either return to drug dealing or place his family and friends at risk.[84] His testimony regarding his family’s inability to financially support him is also relevant.
[83] See especially Exhibit A4 and Exhibit R3: G12, pages 83–169.
[84] Exhibit R3: G14, page 185.
If a basis is required for assessing this threat as part of the consideration, the Tribunal relies on extending the logic of His Honour Justice Colvin in Holloway v Minister for Immigration, Citizenship and Multicultural Affairs[85] at paragraphs [10] to [13]. Justice Colvin held that a person’s history is relevant when assessing their health, rather than confining the term ‘health’ to only include currently manifested health issues and difficulties. Given HTKV’s history, a return to Colombia would likely create a significant impediment to his establishing himself and maintaining basic living standards there.
[85] Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126 (21 September 2022).
Tribunal finding: Other Consideration (b) Extent of impediments if removed
This consideration carries moderate weight in favour of setting the reviewable decision aside.
Other Consideration (c): Impact on victims
No evidence was elicited on this consideration.
Tribunal finding: Other Consideration (c): Impact on victims
This consideration carries a neutral weight.
Other consideration (d) Impact on Australian business interests if HTKV cannot remain here
Paragraph 9.4 (1) says the Tribunal must consider any impact of a decision to affirm the reviewable decision on Australian business interests. The Direction makes clear that this consideration would generally only be given weight where an employment link is involved and a decision to cancel HTKV’s visa ‘would significantly compromise the delivery of a major project, or delivery of an important service in Australia’.
Assessing the evidence before it in relation to this consideration the Tribunal notes that HTKV worked as a kitchenhand and labourer in Australia since his 2018 arrival.[86] There is no evidence that any of HTKV’s past employers would face difficulty in hiring somebody else to replace HTKV. There is no evidence that his removal from Australia would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
Tribunal finding: Other Consideration (d): the impact on Australian business interests if HTKV cannot remain here
[86] Exhibit R3: G14, page 183.
This consideration carries a neutral weight.
Findings: Other Considerations
The Tribunal now summarises the respective weights it has allocated to each of the Other Considerations (specified in the Direction) relevant to the present matter:
Other Consideration (a) – legal consequences of the decision:
·This consideration has a neutral weight.
Other Consideration (b) – extent of impediments if removed:
·This consideration has moderate weight in favour of setting the reviewable decision aside.
Other Consideration (c) – impact on victims:
·This consideration has a neutral weight.
Other Consideration (d) – Impacts on Australian business interests:
·This consideration has neutral weight.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[87]
[87] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, HTKV does not pass the character test.
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal find as follows:
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct:
·This consideration weighs heavily in favour of affirming the reviewable decision.
Primary Consideration 2: Whether the conduct engaged in constituted family violence:
·This consideration has a neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia:
·This consideration carries moderate weight towards setting aside the reviewable decision.
Primary Consideration 4: Best interests of minor children in Australia affected by the decision:
·This consideration carries a minimal weight in favour of setting the reviewable decision aside.
Primary Consideration 5: Expectations of the Australian Community:
·This consideration carries significant weight in favour of affirming the reviewable decision.
The Tribunal has set out above the weight attributable to the primary considerations and the other considerations. It now assesses and considers its finding holistically and applies the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[88]
‘The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[88] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
A comprehensive, holistic and integrated view of the weights allocated to the Primary Considerations and the Other Considerations leads this Tribunal to a finding that the weights allocated to Primary Considerations 1 and 5 outweigh the weights allocated to Primary Consideration 3 and Other Consideration (b). This leads the Tribunal to be satisfied of there not being another reason to revoke the mandatory cancellation of HTKV’s Visa. Accordingly, the Tribunal makes a finding affirming the reviewable decision.
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 March 2024 to not revoke the cancellation of HTKV’s Visa.
I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
...................................
Associate
Dated: 9 July 2024
Date of hearing: 6 June 2024
Representation for the Applicant: Mr Boccabella of counsel
Instructed by Visas-R-UsSolicitor for the Respondent: Mr Kyranis of Sparke Helmore
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED Applicant’s Submissions A1 Applicant’s Statement of Facts, Issues and Contentions (SFIC) A 21/05/2024 21/05/2024 A2 Applicant’s Statutory Declaration (21.05.2024) A 21/05/2024 21/05/2024 A3 Applicant’s Second Statutory Declaration (28.05.2024) A 28/05/2024 30/05/2024 A4 Statutory Declaration (Lawyer) A 08/05/2024 21/05/2024 A5 Statutory Declaration (Accommodation) A 26/05/2024 30/05/2024 A6 Applicant’s Submissions in Reply A 03/05/2024 03/06/2024 A7 Identity Document A 10/04/2024 03/06/2024 A8 Centacare Letter of Support A 24/10/2023 03/06/2024 A9 Drug.ARM Certificate A 17/11/2023 03/06/2024 Respondent’s Submissions R1 Respondent’s Statement of Facts, Issues and Contentions (RSFIC) R 31/05/2024 31/05/2024 R2 Tender Bundle R Various 31/05/2024 R3 s501 - G Documents R Various 23/04/2024
0
40
0