JFPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Case •

[2022] AATA 1080

•

28 April 2022

JFPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2022] AATA 1080 (28 April 2022)

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2022/1189
GENERAL DIVISION )

Re: JFPT
Applicant

And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
Respondent

DIRECTION

TRIBUNAL:  Senior Member J Rau SC

DATE OF CORRIGENDUM:            10 May 2022

PLACE:           Adelaide

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application as follows:

  1. The name of the Applicant’s relative in the fourth line of paragraph 50 is replaced with the pseudonym “AV”.

...............................[Sgnd].............................

J RAU SC
  (Senior Member)

Division:GENERAL DIVISION

File Number:2022/1189          

Re:JFPT  

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member J Rau SC

Date:28 April 2022

Place:Adelaide

The decision under review is affirmed.

...........................[Sgnd]...............................
            Senior Member J Rau SC

CATCHWORDS

MIGRATION – mandatory cancellation of Class BB Subclass 155 Five Year Resident Return under section 501CA(4) – where Applicant does not pass the character test – Applicant has substantial criminal record – whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – family violence – where the Applicant has resided in Australia for a long period of time – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

SECONDARY MATERIAL

Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

REASONS FOR DECISION

Senior Member J Rau SC

28 April 2022

INTRODUCTION AND BACKGROUND

  1. The Applicant seeks a review of the decision by a delegate of the Minister for Home Affairs (the “Respondent”) made under section 501CA(4) of the Migration Act 1958 (Cth) (the “Act”) on 4 February 2022, not to revoke the mandatory cancellation of his Resident Return (Class BB, Subclass 155) visa (the “Visa”), pursuant to s 501(3A) of the Act.

  2. The hearing was held 11 and 12 April 2022 by video-link via Microsoft Teams. The Applicant was represented by Mr Nigel Dobbie, of Dobbie and Devine Immigration Lawyers Pty Ltd, the Respondent was represented by Ms Arielle Zinn, of Mills Oakley Lawyers.

  3. At the outset, the Applicant’s counsel requested the Tribunal to exclude all evidence regarding an allegation that the Applicant committed an act of serious family violence on 24 February 2008. It was argued that this untested allegation would give rise to “unconscious bias” on the part of the Tribunal. After hearing from both parties, I resolved not to exclude the material, so as to enable the Respondent to put the allegations to the Applicant, and for the Applicant to be given a chance to respond. The question to be resolved by the Tribunal, after having heard all of the evidence, is the weight, if any, that should be given to this material.

  4. The Applicant gave evidence from Villawood Immigration Detention Centre in New South Wales. He generally answered questions directly. He generally did not seek to make excuses for himself. He mostly took responsibility for his actions and expressed remorse. He did, however, give some evidence to the Tribunal which I do not accept as being truthful. Where relevant, this is detailed below. I do not regard his evidence as being necessarily reliable, particularly in the face of independent evidence to the contrary. I gained the impression that his remorse, which I accept as genuine, is motivated more by the situation in which he now finds himself, than by an acceptance of the consequences of his offending on others.

  5. The central theme of the Applicant’s case is that after he was sent to prison in March 2018, at the age of 53, he experienced what was described in closing submissions by his counsel as a “road to Damascus” experience. The Applicant stated in evidence:

    “Going to gaol has affected me…drugs and alcohol do damage to the community… I realise my mistakes; at my age I am old enough to do the right thing… I am not the same person as I was before I went to prison… I feel ashamed... I have let everyone down.”

  6. The Applicant’s case is that he no longer presents a risk to the Australian community. This in turn, it was submitted, significantly reduces the weight to be given to the undisputed fact that the primary considerations set out in paragraphs 8.1, 8.2 and 8.4 of Direction no. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the “Direction”), all weigh against revocation of the cancellation of the Applicant’s visa.

  7. The Applicant’s credibility is very important in this case. Put simply, can he be believed when he says that he has now put a lifetime of criminal behaviour, irrevocably behind him? He said in evidence, that if he were returned to the community, he knew that he would in effect, be on “lifetime parole”. That of course is not quite so. He would not be supervised, and further offending per se would not necessarily result in him facing a future visa cancellation.

  8. I have no doubt that the Applicant is strongly motivated to avoid deportation. It is not axiomatic however, that he presents no risk, or a very low risk, of further offending. His most serious, and most recent offending, occurred in circumstances where he admitted in cross-examination that:

    (a)He knew that there were serious repercussions to his offending; and

    (b)He would have continued to offend, had he not been arrested.

  9. He must have also realised that eventually being caught, was all but inevitable. This still did not deter him.

  10. It was contended by the Applicant that primary consideration 8.3, (best interests of minor children in Australia), weighed in favour of revocation. The Respondent essentially accepted this in general terms, but submitted that it should be given little weight.

  11. It was also contended by the Applicant that other considerations, 9.1 and 9.4.1 of the Direction weigh in favour of revocation. Again, it was not disputed by the Respondent that this was so, but the weight to be given to these other considerations was disputed.

  12. The Applicant produced witness statements from the following people, some of whom were called at the hearing and some of whom were not:

    ·The following witnesses were called and cross-examined:

    oTS, Applicant’s partner;

    oAV, Applicant’s sister;

    oPG, Applicant’s brother;

    oAD, Applicant’s son;

    oJG, Applicant’s step-son;

    oAS, Applicant’s partner’s son; and

    oSB, Clinical Psychologist.

    ·The following witnesses were called, however, not cross-examined:

    oMM, Applicant’s friend; and

    oPJ, Applicant’s friend. 

    ·The following witnesses were not called at the hearing:

    oPS, Applicant’s friend;

    oDC, Applicant’s friend; and

    oRH, Applicant’s friend.

  13. The lay witnesses gave positive character evidence in support of the Applicant. It was clear that the Applicant has deep connections with the Australian community, as one would expect for a man who has lived here for most of his life. His family and loved ones quite naturally do not want him to be deported. They indicated that they would be devastated if he were to be deported. They repeated in their evidence, what he had told them, and the Tribunal, namely that he was remorseful and had finally seen the error of his ways.

  14. The Applicant’s son Mr J was not called. No reason for this lacuna was given. Had Mr J been called, he may have assisted the Tribunal, for example, by providing more insight into factors relevant to Primary Consideration 3, paragraph 8.3 of the Direction (best interests of minor children in Australia). As it was, the Tribunal was left to glean fragmentary details from secondary sources, including the Applicant.

  15. The Applicant also called SB, psychologist. He was provided with some documentation by the Applicant’s lawyers.[1] He also interviewed the Applicant once by audio-visual link on 29 March 2022. He gave evidence by phone and produced a report dated 31 March 2022.

    [1] 1. The AAT Expert Witness Cover Sheet; 2. The AAT guideline for ‘Persons Giving Expert Evidence and Opinion Evidence’; 3. Australian Criminal Intelligence Commission Check Results Report for [the Applicant], dated 14 June 2019; 4. The judgement of Judge Haesler SC, District Court of New South Wales, dated 27 February 2019; and 5. The remarks of Judge Delaney, District Court of New South Wales, dated 22 February 2011.

  16. The Applicant was born in Portugal and is currently 57 years of age. He is a Portuguese citizen. He came to Australia as a 6-year-old child in 1971, with his mother, his older sister and a younger brother. His father had already been in Australia for a year, working at the BHP steel works in Wollongong. He also has a younger brother who was born in Australia.

  17. The Applicant attended school until the beginning of year 9.

  18. The Applicant has generally been employed. He has contributed to society as a taxpayer. From 1999 to the time of his arrest in 2018, he worked with his brothers in a concrete business. If he were to be returned to the community, he would have ongoing employment in this business.

  19. The Applicant has a son, AD,[2] from a casual relationship with a woman who will be referred to as “BD”. The Applicant was unaware of AD’s existence, until 2007 when AD was about 18 years of age. AD sought out the Applicant. The Applicant has had an ongoing relationship with AD since that time.[3]

    [2] Born 8 February 1988.

    [3] Exhibit 4, pp 19-23.

  20. The Applicant was in a long-term relationship with a woman who will be referred to as “MB” for about 17 years until December 2006. MB already had an infant son, JG[4] from a previous relationship when they met. The Applicant and MB had a son, Mr J.[5] The Applicant has been a father to both JG and Mr J. After his separation from MB, the Applicant was the primary care giver for the boys. They continued to live with him. JG and Mr J have no significant relationship with MB.

    [4] Born 29 January 1991.

    [5] Born 25 November 1988, Exhibit 3 p 64.

  21. The Applicant’s close family live in Australia. He has some relatives still in Portugal, but he is not in contact with them.

  22. The Applicant has 2 grandchildren by his son Mr J aged 5 and 8.[6]  Another is expected in June, by his step-son JG. The Applicant has had very little to do with his grandchildren since his incarceration in March 2018. He has not seen them at all since 2019. Mr J is estranged from the children’s mother. Mr J did not give evidence, but it seems that he is struggling in his life. The evidence suggests that he has mental health issues, unmedicated epilepsy and that he is a user of methamphetamines. He is the subject of an AVO taken out by the mother of his children. His contact with his children seems to be extremely limited, or non-existent.

    [6] Exhibit 3, pp 72-73.

  23. Since 2008 the Applicant has been in a relationship with TS. She has adult children of her own. They resided separately before his incarceration but would intend on cohabiting if the Applicant were to be returned to the community.

  24. There is no evidence to suggest that the Applicant has any physical or mental health issues. He does not appear to have any drug or alcohol addiction problems.[7]

    [7] See report of SB dated 31 March 2022 Exhibit 6, pp 4 & 7.

  25. The Applicant has been involved in various community and charitable activities for many years. These include “Canteen” and Christmas toy runs. He has been involved in supporting other inmates since being in prison.

  26. The Applicant has an extensive criminal history. He has committed some 50 offences over a period of 38 years. He quite properly accepts that this is a serious criminal record. His involvement with the criminal justice system commenced in 1976 (when he was just 11 years old) with juvenile charges for break, enter and steal.[8] These charges were withdrawn. His first conviction was in November 1980, when he was 15 years of age. His offending has continued with some regularity thereafter. His offending has ranged from stealing, to assault, to motor vehicle related offences, to family violence, to drug trafficking.[9] A copy of the NSW Police Criminal History – Bail Report can be found at page 85 of Exhibit 7. A copy of an Australian Criminal Intelligence report generated on 14 June 2019 can be found at page 31 of Exhibit 3 (and is replicated in full at Annexure B).  

    [8] Exhibit 7 p 106.

    [9] Exhibit 7, pp 105-121 plus his evidence.

  27. Whilst all of the Applicant’s offending is relevant to the Tribunal, some of the Applicant’s offending is particularly relevant/noteworthy. There was a gap in his offending between about 2007 and 2018, when he was arrested for drug related offences. Were it not for his return to crime in 2017-18, he would not be in his present predicament.

  28. On 7 January 1998, the Applicant and his then defacto partner, MB, got into an argument. The Applicant threw a beer bottle which hit MB in the head. She sustained a 1 cm laceration which required 2 stiches. She was treated at Shellharbour Hospital.[10] The Applicant says that he did not mean to hit MB with the bottle when he threw it,[11] but he does not deny the incident (the “1998 DV incident”). MB did not make a complaint at this time to police.[12]

    [10] Exhibit 7, pp 23 & 70; Exhibit 3, p 104.

    [11] Exhibit 3, p 107.

    [12] It was reported on 25 February 2008.

  29. On 21 February 2006, (the “2006 incident”), the Applicant became involved in a dispute between his step-son JG and two other youths. The Applicant assaulted one of the boys, (aged 16 years), by striking him on the back with a large piece of timber. The boy was running away from the Applicant at the time and trying to enter a doorway to escape from him.[13] He was convicted of assault occasioning actual bodily harm and fined $400 on 17 May 2006.

    [13] Exhibit 3, pp 99-102.

  30. The Police Incident Report of 21 February 2006 states:

    “Victim 1 stated that victim 2 has then started to push him into the shop to seek refuge from the Co-accused as he had large piece of timber and was running towards them with it. Victim 2 stated that he then pushed Victim 1 into the shop and felt the Co-accused smash him in the back with the large piece of timber causing extreme pain and large red welt to this back.

    Victim 2 stated that the two female shop attendants closed the two steel doors stopping the Co-accused from entering the shop to attack Victim 1 and 2 with large piece of timber that he was swinging. Victim 2 stated that the two female shop attendants closed the steel doors stopping the Co-accused from entering. Victim 1 and 2 stated that Co-accused got back into his red Ute drivers seat and accused and two other unknown male persons go into the tray areas of the red Ute and left. They have then rang the Police about this incident.”[14]

    [14] Exhibit 7, pp 4-5.

  31. An assault with a weapon/piece of timber on anybody, especially a juvenile by a 50-year-old man, is a very serious matter.

  32. On 7 January 2007, the Applicant again assaulted MB (the “2007 DV incident”). The relevant NSW Police fact sheet records:

    “On 22nd January 2007 the victim was at home where she was residing with her sister and her family at […]. Sometime later in the afternoon the accused has attended the location and entered the property. The victim was in her bedroom at this time while her sister and other family members were watching TV in the lounge room. The accused has walked in and entered the victim’s bedroom and shut the door. Almost immediately after entering the victim’s bedroom the accessed has begun to punch the victim around the head and face area a number of times before the victim’s family have entered the room, as a result of hearing her screams, and pulled the accused off of the victim…As a result of the accused assaulting the victim she has been conveyed to Hospital where she has had a cut to her left cheek glued. She also sustained severe swelling, numbness and bruising to her face. Due to ongoing pain and numbness the victim has attended her own General Practitioner sometime after the event where she was referred to a specialist who has identified that the victim had sustained fractures to her left cheekbone, upper jaw and left eye socket. She has also suffered altered sensation to the left side of her face as a result of the alleged assault upon her by the accused.”[15]

    [15] Exhibit 3, p 104.

  33. The Applicant’s son Mr J, who was a juvenile at the time, was a witness to the aftermath of this violent assault on his mother and was very distressed by it.

  34. Again, this incident was not reported at the time. Both the 1998 and 2007 Domestic Violence (“DV”) incidents were eventually reported to police on 25 February 2008.[16]

    [16] The timing of this report corresponds with another alleged DV incident.

  35. The Applicant does not deny the 2007 DV incident and has expressed remorse for his actions.[17]

    [17] This was also dealt with on 22 February 2011; Exhibit 3, p 109.

  36. The Applicant was charged and ultimately convicted (on 22 February 2011) in respect of the 1998 and 2007 DV incidents, of assault occasioning actual bodily harm and sentenced to 6 months imprisonment and of maliciously inflicting grievous bodily harm for which he was sentenced to 18 months imprisonment. The sentences were to be served concurrently. He was released under an Intensive Corrections Order (“ICO”).[18]

    [18] Exhibit 3, pp 47-49.

  37. An ICO is a term of imprisonment for the purposes of s 501(7) of the Act. Section 501(3A) provides that the Minister must cancel a visa in these circumstances. For some unexplained reason, this did not happen.

  38. There are allegations regarding an extremely serious sexual assault on MB on 24 February 2008 (“the alleged 2008 DV incident”). The Police fact sheet records:

    “On Sunday 24th February 2008 between 4.20am and about 5am the accused has entered the property of the victim at […] by removing the flyscreen to the laundry window and forcibly opening the laundry window to gain entry. The victim was asleep in her bed at this time. She has woken up to the accused standing in her bedroom. She has jumped out of bed as the accused jumped on her bed. The victim was dressed in 3/4 pyjama pants and singlet top. The accused has made the victim get undressed by threatening her that “she will know about it” if she doesn’t. Feeling fearful of the accused and his threats the victim has taken her clothes off. The accused proceeded to remove his clothes before pushing the victim onto the bed by her shoulders, forcing her legs apart and pushing his penis inside the victim’s vagina and thrusting. The victim was crying and pleading with the accused, “Please don’t do this. Stop, you’re hurting me.” The accused commenced to call the victim a ‘Slut’ and “Whore” before he pulled his penis out of the victim’s vagina and ejaculated on her stomach where he has then wiped his hand in his semen and slapped the victim across the face with his hand…The accused has gotten off the victim and got dressed. The victim has said to him, “Get out.” The accused has replied, “I will go when I want to go, you don’t tell me what to do.” .. The accused has sat on the victim’s lounge for a period of time calling her names before going out the back door to collect his shoes. The accused has walked back through the victim’s house before exiting the premises via the front door. .. Monday 22nd March 2010 police have attended the home of the accused at […] where the accused was cautioned under LEPRA and placed under arrest. He was conveyed to Port Kembla Police station.”[19]

    [19] Exhibit 3, p 104-105.

  1. On the 25 February 2008, MB made a complaint to police regarding the 1998 DV incident, the 2007 DV incident and alleged 2008 DV incident. MB did not want to press charges at this time, but she did want an Apprehended Domestic Violence Order. The records state:

    ““The PINOP attended Warilla Police Station at about 6pm on the same date. Police spoke to the victim and obtained a version of events. Lake Illawarra Detectives were contacted and spoke to the victim who informed them that she did not want to defendant to go to gaol and if he was to go to goal for sexually assaulting her that their children would be distraught and unforgiving of the PINOP. It is for these reasons the PINOP refused to give police a statement in relation to the alleged sexual assault and was unwilling to cooperate with police if the defendant was put before the courts. The PINOP made a retraction statement to police stating that she wanted no action. Whilst speaking to police the PINOP was visibly upset and cried whilst speaking to the police. Furthermore police observed disfigurement to PINOP’s face consistent with the alleged injuries sustained during the assault that occurred on February 2007.” [20]

    [20] Exhibit 7, p 42.

  2. On 25 February 2008, a Provisional Apprehended Violence Order was made against the Applicant.[21]

    [21] Exhibit 7, pp 39-45.

  3. On 16 October 2008, police records indicate that MB requested that police pursue her 2008 DV complaint.[22]

    [22] Exhibit 7, p 35.

  4. An indictment dated 24 October 2010 includes the alleged 2008 DV incident as count 3.[23] The Applicant entered a plea of not guilty.[24]

    [23] Exhibit 7, p 64-65.

    [24] Exhibit 7, p 66.

  5. An indictment issued on 15 November 2010, includes references to the 1998 and 2007 DV incidents, but not the alleged 2008 DV incident.[25] The Applicant entered a plea of guilty to two of the three remaining charges on 15 November 2010. The file note records:

    “G to counts 1 and 3. N G to count 2. Crown accepts pleas counts 1 and 3 IN FULL SATISFACTION.”[26]

    [25] Exhibit 7, p 67.

    [26] Exhibit 7, p 69.

  6. A set of agreed facts dated 15 November 2010 were signed by the Applicant.  

  7. The set of agreed facts state:

    “7 January 1998

    During that time, the offender has thrown a beer bottle at the victim hitting her in the head.

    22 January 2007

    Almost immediately after entering the victim’s bedroom the offender punched the victim to her head and around her face area about eight or nine times.

    As a result of the offender assaulting the victim, she has conveyed to Hospital where she has had a cut to her left cheek glued. She also sustained severe swelling, numbness and bruising to her face.”[27]

    [27] Exhibit 7, pp 70-71.

  8. On 26 November 2010, the victim submitted a victim impact statement in the following terms:

    “These are the feelings I have been left with as a result of the assault on me by my ex-partner [the Applicant]:

    ·Betrayed – I trusted [the Applicant]. I gave myself to this relationship and it was all lost so painfully.

    ·Robbed of my life with my life with my boys – my relationship with my sons will never be the same. In fact my relationships with my family and friends have all been robbed from me. I will never get these back.

    ·Stripped of my confidence – every time I look in the mirror and all I see is a messed up face. I won’t even have my photo taken anymore because I hate the way I look.

    ·Physically and emotionally drained – I felt like a punching bag. With every punch I felt my will be taking away.

    ·Untrustworthy – I have trouble trusting people, especially in my close relationships. It is difficult to lean on anyone when I have been left to deal with all of this on my own.

    ·Confused – I can’t believe what people tell me anymore because I have lived with lies for so long.

    ·Paranoid within myself – I always jumpy, on edge all the time. I’m always waiting for something bad to happen.

    ·Hurt – physically, emotionally, psychologically. I have been hurt in every way.

    ·Sadness – I’ve lost the relationship I had with my sons. I have lost my dreams of a happy family life.

    ·Anger – I didn’t deserve any of this.

    I will recover day by day and repair the relationships of my boys, even though my whole life is turned upside down. My journey is long soul search of me of which even though years have passed is still a work in progress and I will reach that mountain top with time. Words can’t express the loneliness, pain, betrayal I still feel and the fact my two angels are not next to me to catch my tears sometimes leaves me limp with no will but I still believe in myself and wont stop.”[28]

    [28] Exhibit 7, p 73.

  9. On 22 February 2011, as previously mentioned, the Applicant was convicted and sentenced to 18 months imprisonment to be served by way of an ICO.[29]

    [29] Exhibit 7, p 74.

  10. The Applicant was not ultimately charged or convicted of an offence arising from the alleged 2008 DV incident. The charges were withdrawn. The alleged 2008 DV incident was put to the Applicant in cross-examination by the Respondent. The Applicant denies that the incident occurred at all.[30] He says that it was “a lie made up by her” (MB). The Applicant claims to have been elsewhere at the relevant time.

    [30] Exhibit 3, p 110, Applicant’s supplementary statement dated 5 April 2022 paragraph 2.

  11. There is no independent evidence before the Tribunal about this incident. On the one hand there are records of contemporaneous complaints to police by MB and complaints by her to third parties, recounting her story. These are dependent on MB’s reliability. MB did not give evidence. On the other hand, there is no independent evidence to support the Applicant’s alibi. There is no independent evidence about exactly why and when the Director of Public Prosecutions abandoned the prosecution. In these circumstances, and bearing in mind the gravity of the allegations, I consider that it is unsafe to give any weight to these untested allegations.

  12. In 2011, the Applicant’s father died. The Applicant gave evidence to the NSW District Court in 2019 (the “Cannabis Case”), and to the Tribunal in these proceedings, to the effect that he secretly removed some $45,000 is cash from his dead father’s safe. His mother and his siblings only found out about this during the Cannabis Case. His sister AV gave evidence that she and her other siblings received a bequest of $12,000 from her late father’s estate. They did not know about this money. If the Applicant’s sworn evidence is to be believed, he has essentially stolen part of his father’s estate, defrauding his mother and siblings in the process. He sat on these ill-gotten gains for some 7 years without telling any of his closest family members. There is another plausible and equally unsatisfactory alternative explanation for him having this cash. This alternative is that this $45,000 was a part of the proceeds of his subsequent drug related, criminal activity. If this was the case, the theft of money from his father’s safe might be seen as a story contrived to frustrate the forfeiture of the proceeds of crime. If this is so, he has lied under oath in both the Cannabis Case and in this Tribunal. I note that he was disbelieved by the sentencing Judge in the Cannabis Case, when he claimed he was disinterest in making criminal profits. Either alternative explanation, reflects very badly on his honesty and character. Both alternatives are consistent with him being prepared to act dishonestly, for his own financial benefit, even at the expense of those closest to him.

  13. Between July 2017 and March 2018, NSW Police conducted covert surveillance of the Applicant, his son JG and others involved in a large-scale cannabis supply business. Police assert that between 18 November 2017 and 15 March 2018 they were involved in the supply of this drug on 17 occasions, involving some 82.75 kgs of cannabis leaf.

  14. On 22 March 2018 the Applicant was arrested and charged. A search of his premises found amongst other things some $154,945 in cash. The decision of the NSW District Court was handed down on 27 February 2019. Haesler SC DCJ said inter alia:

    “[1] In 2017, a police force task force successfully tracked down three men responsible for supplying wholesale commercial quantifies of cannabis to cannabis distributors at the street level. As is apparently the practice in drug sales imperial measures were used: sales generally involved either 5 pounds (2.27 kilograms) or 10 pounds (4.54 kilograms).

    [2] The three men are the present offenders, [the Applicant] and his son [JG], and [JG’s] friend… . All have accepted responsibility for their crimes, and did so in the Local Court. Each was charged with supplying a commercial quantity of cannabis leaf: s 25(2) Drug Misuse and Trafficking Act 1985. The maximum penalty for that offence is 15 years imprisonment and or a large fine. The weight of cannabis leaf required to bring the crime into the commercial range is between 25 and 100 kilograms.

    [3] [the Applicant] was also charged with a further offence of dealing in the proceeds of crime; maximum penalty 15 years’ imprisonment, s 193B(2) Crimes Act 1900.

    [4] For each offender a number of transactions were rolled up into the one charge. This accumulation was accepted by the defence. In each case it was entirely appropriate: see Hamzy v R (1994) 74 A Crim R 341 and Jadron v R [2015] NSWCCA 217…

    [7] Two critical issues emerged from the evidence of [JG] and [the Applicant]. The first; what role was played by each offender? And the second: what profit, if any, was earned by the respective offenders?

    [8] It Is important to my assessment of those issues that I start with the statement of facts accepted by each offender and put before the Court in their individual case. Although separate facts documents were set out in both exhibit A, [the Applicant’s] Crown sentence summary, and exhibit B, [JG’s] Crown sentence summary, the material in each offender’s case does not contradict the other. Rather, each facts document puts emphasis on matter that are directly relevant to the respective offenders. As both were acting together the gravity of their individual offending can be only assessed by reading both facts documents together.

    [9] Between 18 November 2017 and 15 March 2018, [the Applicant] supplied 82.75 kilograms of cannabis leaf on 17 different occasions primarily to his son, [JG], and to…. [The Applicant] would advise his son when he had purchased the cannabis. During the same period [JG] on supplied 54 kilograms of cannabis leaf on 20 different occasions…

    [24] Quantity of cash totalling $154,000 was seized from the house occupied by [the Applicant]. [The Applicant], in his evidence, told me that $24,000 was ready for the next cannbis purchase. $20,000 was money [JG] had made from selling a car, and $83,000 was his personal savings. Those personal savings included $45,000 he said he had taken from his late father’s safe; which sum he had not disclosed to other beneficiaries of this father’s estate, including his mother and three siblings.

    [25] [the Applicant] told me that he made no financial gain from any cannabis transaction and had never intended to make any financial gain from his involvement in the sale of cannabis leaf. He said he had involved himself solely to protect his son. He said only $24,000 of the $154,000 was related to the criminal enterprise.

    [26] I am not required to determine a confiscation of proceeds of crime matter, and I do not attempt to do so. But, I cannot accept this evidence as to the source of the money, or his evidence that he had no intention of making any profit from the enterprise. His own testimony shows [the Applicant] was, like his son, interested in acquiring property and cash. The sale of large quantities of cannabis lead produced, as expected, considerable cash profits. Those profits are coextension with the risk of detection.

    [27] The telephone intercepts which I have summarised, and are set out in full in the agreed facts, and the history of the conversation and transactions are at odds with the picture painted by both offenders in their evidence. While [JG] appeared open and genuinely contrite, he was also at paints to accept full responsibility and shield his father. This is understandable, because it was his idea. While upfront about his motivation being greed, he was far from upfront about how much profit he had received; attempting to minimise the criminality of his actions.

    [28] [the Applicant], on the other hand, by his own admissions, wanted cash, cars, and property, and was prepared – if he is to be accepted – to take money due to his mother and siblings. He had the contacts, he controlled the flow of the cannabis, both to his son and through him, …. He was prepared, at times, to take part in the delivery and, on occasions, received more money than he had been expected, or as [JG] and the main from Parkes had agreed. His evidence is that his motives were entirely altruistic cannot be accepted. Even if he wanted his son to get most of the profit, he had no reason for such generosity towards ….

    [29] The facts are also at odds with his evidence about …. I find that [the Applicant] did expect, and did receive, some cash profit.

    [30] Drug supply operations do not necessarily need strict hierarchies. Each supplier can, and did here, have their own separate roles. … appears to have been operating as some form of independent contractor. Here, [the Applicant] sourced the cannabis for both his son and, through him, …. [the Applicant] also, at times, supplied them with advice and contacts. He had expertise - it is not exactly clear how that was gained - and he used his own premises to hold cash and drugs.

    [31] [JG] was the instigator of the plan but he deferred to his father and relied upon his father; as the source of cannabis, to hold cash and drugs, and advice as to supply and how it was and to whom it was to be supplied. … was running his own operation, but relative to both the offenders now before me, he relied on them for advice and, more importantly, the drugs that he supplied…

    [34] So far as [the Applicant] is concerned, he supplied over 82.75 kilograms of cannabis leaf in 17 transactions. He used his skill and expertise to earn a profit, I find, both for himself and his son. It was [JG’s] idea. He supplied 54 kilograms of cannabis leaf in 20 transactions. He was the main operator, although … supplied 43 kilograms. … was a lesser operator; on the facts here, not a subordinate, more of a subcontractor and proportionally less objectively culpable.

    [35] I sentence on the basis that [JG] and [the Applicant] had a father and son business operation that they ran together for mutual benefit. They were seeking cash to lead a lifestyle that their other legitimate employment could not provide them with..

    [45] [the Applicant] is obviously older. He should have known better. He should have known better because, as a father, his first thought was to protect his son. He did not protect his son by engaging with him in this criminal operation. I accept that he wanted to help his son, even though I do not accept that was his sole motivation. He was not a role model, as fathers should be. He was able to use his sources, which indicate connection with the criminal element. He, too, was greedy for cash. He acted without concern for the consequences for himself, for his son, for …, and, apart from attempting to protect his son from others of the criminal milieu, further he acted without any concern for the community.

    [46] As a young man, he had many brushes with the law. He was, however, able to work and provide to his family. However, in 2011, he was sentenced for two serious assault matters, which resulted in Intensive Corrections Orders. He has not previously been imprisoned. He is not entitled to the leniency otherwise shown to first offenders. No case for special circumstances was put on his behalf, but he too gets the benefit of his early plea, as an example of practical remorse, and I will reduce the otherwise appropriate sentences by 25%...

    [52] [the Applicant]: in relation to the two matters before the Court, you are convicted. Had it not been for your utilitarian plea of guilty there would have been a sentence of six years.

    [53] For the supply offence the term of the sentence is four years and six months. The formal orders are, a non-parole period of three years and four months. I have rounded down slightly. That sentence will commence on 22 March 2018. You will be eligible for consideration for release to parole on 21 July 2021. The balance of the term will be one year and two months. Total sentence expiring on 21 September 2022.

    [54] In relation to the proceeds of crime matter, there will be a fixed term of one year and six months, taking into account the plea of guilty. That sentence will be concurrent with the other, and start on 22 March 2018. It is a fixed term with no non-parole period because it is concurrent with the existing non-parole period of the concurrent sentence…”[31]

    [31] Exhibit 3, pp-37-46.

  15. The Applicant gave very unconvincing explanations to the Tribunal about how he came to have so much cash in his house. He claimed to be in the habit of buying cars at auctions and private sales, then turning them over for a profit. Again, the Applicant revealed a profit motive in this explanation. He did not claim to be a licensed second-hand motor vehicle dealer.

  16. The Applicant was sentenced to 4 years and 6 months imprisonment commencing on 22 March 2018 and concluding on 21 September 2022.

  17. The Applicant’s conduct in prison was such that he was granted privileges only given to inmates who behave well and enjoy a degree of trust. He was permitted to leave the prison to do work in nearby areas. 

    LEGISLATIVE FRAMEWORK

  18. Section 501(1) of the Act provides that:

    “The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test. “

  19. There are two issues presently before the Tribunal:

    ·whether the Applicant does not satisfy the Tribunal that the Applicant passes the character test; and if so;

    ·whether the Tribunal considers that the discretion in section 501(1) of the Act to refuse to grant the Applicant a visa should be exercised.

    Does the Applicant Pass the Character Test?

  20. The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.

  21. On 27 February 2019, the Applicant was sentenced by the NSW District Court to a term of imprisonment of 4 years and 6 months with a non-parole period of 3 years and 4 months.

  22. The Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test. The Tribunal must consider whether “there is another reason why the original decision should be revoked”.

  23. In considering whether to exercise this discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.[32]

    [32] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.

  24. For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.

  25. The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:

    (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

    (2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    (3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

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

    (5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

  1. 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.

  2. Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the best interests of minor children in Australia; and

    (4)expectations of the Australian community.

  3. Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:

    a)international non-refoulement obligations;

    b)extent of impediments if removed;

    c)impact on victims; and

    d)links to the Australian community, including:

    i)strength, nature and duration of ties to Australia; and

    ii)impact on Australian business interests.

  4. I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[33]

    “…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[34]

    [33] [2018] FCA 594.

    [34] Ibid, [23].

    OFFENDING HISTORY

  5. The Applicant’s criminal record as produced by the Australian Criminal Intelligence Commission is outlined at Annexure B. It is set out in some detail above.

  6. The Applicant’s offending commenced when he was a juvenile and has continued to as recently as 2018 when he was arrested in connection with the Cannabis Case. There is a tension between the Applicant’s long residency in Australia on the one hand and his extensive criminal record on the other. I refer in particular to the Direction paragraph 5.2(4):

    “Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life or from a very young age.”

    PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY

  7. In considering this Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

  8. In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:

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

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

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

  9. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.

  10. Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.

  11. The Applicant committed a cowardly crime of violence against a minor.[35] He admits twice having been the perpetrator of family violence against MB.[36] He has been involved in the commercial supply of drugs. He has been convicted of these crimes. The details are discussed above.

    [35] 17 May 2006.

    [36] 7 January 1998, 22 January 2007.

  12. For the reasons set out above, I give no weight to the alleged 2008 DV incident.

  13. Having regard to all these matters, the Applicant’s offending must be regarded as very serious.

  14. Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that 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 197A of the Act, which prohibits escape from immigration detention.

  15. This consideration is raised by the Applicant’s sworn evidence that he in effect stole money from his mother and siblings. This matter is discussed above. This is a matter that is relevant to s 501(6)(c) This reflects very poorly on his character.

  16. Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.

  17. The Applicant has most recently been sentenced to 4 years and 6 months imprisonment. This is indicative of the seriousness of his offending. The maximum penalty for such offending is 15 years. He was previously sentenced to 18 months imprisonment in 2011. The fact that this was served as an ICO does not negate the serious nature of the offending.

  18. Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.

  19. The Applicant has been a serial offender for most of his life. His most recent offending is extremely serious. It is his most serious breach of the criminal law as evidenced by his sentence. In this respect, his offending has become more serious over time.

  20. Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.

  21. The Applicant has been a serial offender. He had demonstrated a lifelong contempt for the law. His most serious offending has included an assault on a minor with a piece of timber, family violence causing serious injuries and trafficking in commercial quantities of cannabis. The cumulative effect of this offending has been very serious. The Applicant clearly has had recent links with criminal elements, as evidenced by his central role in the Cannabis Case. He has been a serial burden on the justice system, from police, to the Courts and Corrections.

  22. Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.

  23. This consideration is not relevant.

  24. Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status.

  25. This consideration is not relevant.

  26. I do not consider factors (f) and (g) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh heavily against the revocation of the cancellation of the Applicant’s Visa.

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

  27. Paragraph 8.1.2(1) provides that in considering the need to protect 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.

  28. Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:

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

    (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 their 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.

    Nature of harm should the Applicant engage in further criminal or other serious conduct

  29. The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.

  30. The Applicant has engaged in very serious criminal conduct. He has engaged in family violence and commercial drug trafficking. The nature of any harm that may arise should he reoffend is also very serious. I note that the direction states that “the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases”.

  31. The Applicant’s lifetime of serial offending, does not inspire confidence that he is capable of rehabilitation. All of his interactions with the justice system prior to 2018, including an ICO, did not deter him from committing even more serious offences. There were none of the common extenuating circumstances that sometimes explain, (though do not excuse), the conduct of drug traffickers. For example, he was not trying to feed his own drug habit. The sentencing Judge formed the view that the Applicant was committing crime for personal gain. I respectfully concur. The Applicant’s denial of a profit motive is not credible. It sits poorly with his own evidence about buying and selling cars. It sits poorly with own evidence about stealing $45,00 in cash from his closest relatives. He has continued to offend notwithstanding that he has always had the support of his family.

  32. The Applicant has done some courses to improve himself since the beginning of this year. It is suggested by the Respondent that this is entirely self-serving and done with an eye to making a favourable impression on the Tribunal. The Applicant says that he was not offered the chance before. He does agree that he never sought rehabilitation help prior to his arrest in March 2018.[37] I note the opinion of SB that the risk of the Applicant re-offending is low. I also note his recent expressions of remorse for his past conduct.

    [37] Exhibit 5, pp 43-48.

    Likelihood of engaging in further criminal or other serious conduct

  33. Having regard to all of the evidence, I do not regard the Applicant as being a high risk of reoffending. His terrible record however is against him. It would indeed be a leap of faith to believe that the Applicant is now as unlikely to reoffend, as he would suggest. The Tribunal does not have the power to grant a conditional visa or to impose parole like conditions. The Applicant is either granted unconditional liberty to return to the community or he is not. In my view, all of this points to him being at least a moderate risk of reoffending. If he were to reoffend, the consequences could be very serious.

    Conclusion: Primary Consideration 1

  34. Primary Consideration 1 weighs heavily against revocation of the visa cancellation.

    PRIMARY CONSIDERATION 2: FAMILY VIOLENCE

  35. Paragraph 8.2 of the Direction provides:  

    (1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).

    (2)This consideration is relevant in circumstances where:

    a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or

    b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.

    (3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:

    a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;

    b)the cumulative effect of repeated acts of family violence;

    c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:

    i.the extent to which the person accepts responsibility for their family violence related conduct;

    ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);

    iii.efforts to address factors which contributed to their conduct; and

    d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.

  36. The Applicant’s history of family violence has been set out in detail above. It is very serious. As previously noted, I give no weight to the alleged 2008 DV incident.

  37. There is no allegation of family violence since 2008. The evidence of the Applicant seeking assistance to address this issue is quite recent. It corresponds with the period after the cancellation of his Visa. There is no evidence of family violence with his present partner.

    Conclusion: Primary Consideration 2

  38. This Primary Consideration 2 weighs heavily against revocation of the Applicant’s visa cancellation.

    PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA

  39. Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ

  40. The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:

    ·     the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);

    ·     the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;

    ·     the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

    ·     the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;

    ·     whether there are other persons who already fulfil a parental role in relation to the child;

    ·     any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

    ·     evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;

    ·     evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

  1. The relevant minor children in Australia are:

    (a)Child A is the Applicant’s grandson aged 8[38]; and

    (b)Child B is the Applicant’s granddaughter aged 6[39].

    [38] Born 12 July 2014.

    [39] Born 30 September 2016.

  2. The situation for both children is essentially the same. The Applicant has had very little to do with the children since his incarceration in March 2018. They were aged 4 and 2 respectively at the time. He has not seen them at all since late 2019 or early 2020.

  3. As mentioned above, his son Mr J, the children’s father, is estranged from their mother, has mental health and drug issues and is the subject of an AVO. The Applicant’s connection to the children is through his son. That connection is virtually non-existent at present and may continue to be so indefinitely. The Applicant’s counsel submitted that the Applicant would be able to help his son if he were allowed to remain in Australia and that this in turn would make Mr J a better father. I regard this submission as being speculative at best. I repeat that Mr J did not give evidence. The Tribunal has no real idea about his views or his prospects.

  4. If the Applicant were to return to offending, his influence would be negative.

    Conclusion: Primary Consideration 3

  5. Having regard to all of the above, and assuming in the Applicant’s favour that he does not reoffend, over the longer term, Primary Consideration 3 weighs only very slightly in favour of revocation of the visa cancellation.

    PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

    The relevant paragraphs in the Direction

  6. In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.

  7. Paragraph 8.4(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 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 the following kind:

    (a)acts of family violence; or

    (b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

    (c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;

    (d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

    (e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

    (f)worker exploitation.

  8. Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

  9. Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:

    This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.

  10. Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR  v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that 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. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[40]

    [40] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.

  11. Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.

    Analysis – Allocation of Weight to this Primary Consideration 4

  12. Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:

    (a)the Applicant’s entire criminal record as set out in Annexure B; and

    (b)in particular, I note the Applicant’s assault of a minor and his history of family violence and commercial drug trafficking, as detailed above.

    Conclusion: Primary Consideration 4

  13. Primary Consideration 4 weighs heavily against revocation of the Applicant’s visa cancellation.

    OTHER CONSIDERATIONS

  14. It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).

    (a) International non-refoulement obligations

  15. This Other Consideration (a) does not arise in this case and is therefore neutral.

    (b) Extent of Impediments if Removed

  16. As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and

    (c)any social, medical and/or economic support available to that non-citizen in that country.

  17. The Applicant is 57 years of age and in apparently good health. He has some skills as a labourer, which would probably assist him to obtain similar work in Portugal.

  18. If the Applicant were returned to Portugal, he would undoubtedly suffer significant difficulties. He has limited language skills. He cannot read and write the language. This would take some time to overcome. He has not lived in Portugal since he was a young child. He would face significant difficulties in adjusting to the way of life there.

  19. The Applicant has a few relatives (uncles/aunts/cousins) in Portugal, but he does not really know them. He has not been there since he came to Australia as a child. All of his closest relatives, children and grandchildren are in Australia. His other networks of friends are in Australia.

  20. If the Applicant were to return to Portugal, he would face difficulties in establishing himself and finding employment. He would suffer emotionally. Portugal is, however, an advanced western nation providing social services and support for its citizens broadly comparable to those available in Australia.

  21. This Other Consideration (b) weighs heavily in favour of revocation of the Applicant’s visa cancellation.

    (c) Impact on victims

  22. This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.

  23. There is no evidence relevant to this consideration.

  24. This Other Consideration (c) is neutral

    (d)     Links to the Australian Community

  25. In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:

    ·the strength, nature, and duration of ties to Australia; and

    ·the impact on Australian business interests.

    The strength, nature, and duration of ties to Australia

  26. As previously mentioned, the vast majority of the Applicant’s family and all of his friends live in Australia. The Applicant has lived in Australia since he was a young child. He has a job and domestic partner in Australia. If he were to be removed from Australia, his ties with many of those closest to him would be severely tested. His friends and family would be greatly distressed by his removal.

  27. This Other Consideration (d), paragraph 9.4.1 of the Direction, weighs heavily in favour of revocation of the Applicant’s visa cancellation.

    Impact on Australian business interests

  28. This consideration is not relevant.

  29. This Other Consideration (d), paragraph 9.4.2 of the Direction, is neutral.

    Findings: Other Considerations

  30. The application of the Other Considerations in the present matter can be summarised as follows:

    (a)Other Consideration (a): neutral;

    (b)Other Consideration (b): weighs heavily in favour of revocation of cancellation of the Applicant’s visa;

    (c)Other Consideration (c): neutral;

    (d)Other Consideration (d), paragraph 9.4.1 of the Direction: weighs heavily in favour of revocation of cancellation of the Applicant’s visa; and

    (e)Other Consideration (d), paragraph 9.4.2 of the Direction: neutral.

    CONCLUSION

  31. It is necessary to weigh up all of the primary and other considerations.

  32. Primary Consideration 1 weighs heavily against revocation of the Applicant’s visa cancellation.

  33. Primary Consideration 2 weighs heavily against revocation of the Applicant’s visa cancellation.

  34. Primary Consideration 3 weighs only very slightly in favour of revocation of the Applicant’s visa cancellation.

  35. Primary Consideration 4 weighs heavily against revocation of the Applicant’s visa cancellation.

  36. Other Considerations (a), (c), and (d), paragraph 9.4.2 of the Direction, are neutral.

  37. Other Considerations (b) and (d), paragraph 9.4.1 of the Direction, weigh heavily in favour of revocation of the Applicant’s visa cancellation.

  38. In my view, the proper application of the Direction favours the Tribunal not exercising the discretion to revoke the cancellation of the Applicant’s Visa. I do not find that there is “another reason” pursuant to s 501CA(4)(b)(ii) to revoke the original decision.

    DECISION

  39. The decision under review is affirmed.


I certify that the preceding one-hundred and forty-two (142) paragraphs are a true copy of the reasons for the decision herein of Senior Member J Rau SC.

.............................[Sgnd]................................

Legal Administrative Assistant

Dated:   28 April 2022  

Date of hearing: 11 & 12 April 2022

Advocate for the Applicant:

Nigel James Dobbie, Dobbie and Devine Immigration Lawyers Pty Ltd
Advocate for the Respondent: Arielle Zinn, Mills Oakley Lawyers

Annexure A – List of Exhibits

Exhibit No.

Lodged by

Document

1

Applicant

Statement of Facts, Issues & Contentions

2

Respondent

Statement of Facts, Issues & Contentions

1. Exhibit R1 – European Commission – Portugal – Employment, Social Affairs & Inclusion

3

Respondent

G-Documents

4

Applicant

Bundle of evidence

5

Applicant

Supplementary Statement – Applicant – dated 05.04.2022

6

Applicant

Report – SB (Clinical Psychologist) – dated 31.03.2022

7

Respondent

Tender Bundle

Annexure B – Applicant’s Offending History

Court

Court Date

Offence

Court Result

Wollongong Children’s Court

06/11/1980

Illegal use motor vehicle (2 counts)

On each count probation for 12 months accept supervision district officer and attend school regularly not associate with people unapproved by parents

Wollongong Children’s Court

13/02/1981

Trespass

$50 or 2 days detention

Trespass

Stealing s.117 (motor boat)

Committed to an institution general terms

Goods in custody

Goods in custody (2 counts)

Stealing s.501 (money)

Illegal use (9 counts)

Wollongong Children’s Court

08/10/1981

Carried in vehicle

On each charge released on probation good behaviour 12 months accept supervision of district officer to gain employment recognizance

Stealing s.501 (vehicle parts)

Wollongong Children’s Court

11/02/1982

Unlawfully use conveyance

Dismissed

Wollongong Children’s Court

08/04/1982

BE&S

Committed to an institution for 9 months (appealed)

BE&S

Wollongong District Court

11/05/1982

Appealed against convictions 080482

Appeal dism conv conf in lieu committed to institution susp enter recog self$500 GB 3 yrs supv prob & parole comp $495

Appealed against conviction 080482

Appeal dism conv conf in lieu committed to institution 4 mths from 080482

Wollongong Children’s Court

18/11/1982

Break, enter and steal

Committed to institution for 9 months

Unlic driver

$100 or 4 days detention disqualified 6 months

Unreg MV

On each charge $30 or 48 hours detention

Uninsured MV

Plates calc to deceive

$100 or 4 days detention

Disobey traffic control light

$70 or 3 days detention

Wollongong Children’s Court

17/02/1983

Plates calculated to deceive

On each charge $75 or 3 days detention

Unlicensed driver

Uninsured motor vehicle

Unregistered motor vehicle

Port Kembla Petty Sessions

11/01/1984

Smooth tyres

$100 or 4 days hard labour

Drive in a manner dangerous

$400 or 16 days hard labour disqualified for 12 months

Wollongong Petty Sessions

11/12/1984

Fraudulently use a license

$50 or 48 hours

State false name and place of abode

$150 or 6 days

Disqualified driver

$450 or 18 days hard labour license disqualified 12 months

Wollongong District Court

14/04/1986

Break enter and steal (bench warrant)

$1,000 3 years fine: $500 compensation: $915

Breach of recog of 110582 (bench warrant)

$1,000 3 years fine: $500 compensation: $915

Wollongong Local Court

15/04/1986

Steal MV s117 (FIW)

21 days hard labour from 070486 compensation $3,000 or 6 days hard labour

Unlicensed (2 charges)

On each charge: $150 or 3 days hard labour

Supply false name/abode (2 charges)

On each charge: $200 or 4 days hard labour

FTA (Wollongong 080185) (FIW)

21 days hard labour

Unlawfully possess license (4 charges)

On each charge: $100 or 48 hours hard labour

Unlawfully obtain license

$200 of 4 days hard labour

Unlawfully use license (2 charges)

On each charge: $100 or 48 hours hard labour

Port Kembla Local Court

19/08/1987

Low range prescribed concentration of alcohol

$600 or 12 days hard labour, licence disqualified 12 months from 190887 (appealed)

Wollongong District Court

17/12/1987

Appealed against conviction of 190887

Appeal dismissed, conviction confirmed, disqualified for 105 days from 171287

Wollongong Local Court

10/10/1990

Disobey traffic control light

$150 disq to 101091 (appealed)

Drive whilst cancelled (2 counts)

On each count $500 lic disq 12 mths until 101901 (appealed)

Wollongong District Court

28/11/1990

Appealed against conv of 101090

Appeal dism. Conv confirmed. Re disobey traffic control light: disq 6 months commence 101090 I lieu re drive whilst canc (2 counts): FD $200 disq 6 months commence 101090

Wollongong Local Court

06/03/1995

Possess proh drug

Recog s558 self $2000 GB 2 yrs

Wollongong Local Court

17/05/2006

Assault occasioning actual bodily harm

Fine: $400 costs court: $65

Wollongong District Court

15/11/2010

Maliciously wound

Offence not proceeded with plea of guilty to alt offence (006) AOABH accepted by Crown in full discharge of indictment

Wollongong District Court

22/02/2011

Assault occasioning actual bodily harm

Alternative intensive correction order: 6 months commencing 11/03/2022 to be registered as domestic violence offence

Maliciously inflict grievous bodily harm

Intensive correction order: 18 months commencing 11/03/2011 to be registered as domestic violence offence

Wollongong District Court

27/02/2019

Knowingly deal with proceeds of crime

Imprisonment: 1 year and 6 months commencing 22/03/2018 concluding 21/09/2019 the court takes into account the fact that the defendant has entered a plea of guilty and has reduced the sentence it would otherwise have imposed by 25% in accordance with s 22 crimes (sentencing procedure) act

Supply prohibited drug >= commercial quantity

Imprisonment: 4 years and 6 months commencing 22/03/2018 concluding 21/09/2022 non parole period with conditions: 3 years and 4 months commencing 22/03/2018 concluding 21/07/2021 the court takes into account the fact that the defendant has entered a plea of guilty and has reduced the sentence it could otherwise have imposed by 25% in accordance with s 22 crimes (sentencing procedure) act


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