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

[2020] AATA 907

Johnstone and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 907 (21 April 2020)

Division:GENERAL DIVISION

File Number(s):      2020/0643

Re:Rodney Andrew Johnstone

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member L Kirk

Date:21 April 2020

Place:Sydney

The Reviewable Decision dated 24 January 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

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

Senior Member L Kirk

CATCHWORDS

MIGRATION – subclass 444 special category visa – citizen of New Zealand – failure to pass character test – offending history – whether discretion to revoke mandatory cancellation should be exercised – considerations under Direction No. 79 – primary considerations – other considerations – decision under review affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

Minister for Home Affairs v Buadromo [2018] FCAFC 151

XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
Pavey and Minister for Home Affairs [2019] AATA 4198
PNLB v Minister for Immigration and Border Protection [2018] AATA 162
Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCA 500
DKXY v Minister for Home Affairs [2019] FCA 495
Dalley and Minister for Home Affairs (Migration) [2019] AATA 3738 (20 September 2019)
FYBR v Minister for Home Affairs [2019] FCAFC 185
Tuioti and Minister for Home Affairs (Migration) [2019] AATA 4423

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

SECONDARY MATERIALS

Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member L Kirk

21 April 2020

DECISION

1. Rodney Andrew Johnstone (‘the Applicant’), a citizen of New Zealand, was born in 1970.[1] He migrated to Australia on 17 October 2000 at the age of 30 years with his then wife and son, who is an Australian citizen.[2]  Prior to its cancellation, the Applicant held a Special Category (Temporary) (Class TY) (Subclass 444) visa granted on 30 April 2006.[3]

   [1] Exhibit R1, G1, 2.

   [2] Applicant’s Statement of Facts, Issues and Contentions [6].

   [3] Exhibit R1, G25, 178.

2. On 10 November 2009, a delegate of the Minister (‘the Department’) sent the Applicant a letter notifying the Applicant of a decision not to cancel his visa under section 501 of the Migration Act 1958 (Cth) (‘the Act’), but warning that his visa may be cancelled if he were to be convicted of any further offences.[4]  The Applicant signed the acknowledgement of receipt on 30 November 2009.[5]

   [4] Exhibit R1, G27, 187-188.

   [5] Exhibit R1, G28, 190.

3. On 16 January 2018, the Applicant was convicted in the Mudgee Local Court of the offences: Reckless inflict grievous bodily harm and Assault occasioning actual bodily harm; and was sentenced to two years and 16 months imprisonment respectively for these offences.[6] On appeal on 4 October 2018 at the Dubbo District Court, the Applicant’s sentences were varied to 15 months and 12 months imprisonment respectively for the offences.[7]

   [6] Exhibit R1, G5, 32

   [7] Exhibit R1, G5, 31

4. On 28 February 2019, the Department issued the Applicant with a Notice of Visa Cancellation (‘the Mandatory Visa Cancellation Decision’) under section 501(3A) of the Act on the basis that he did not satisfy the character test in section 501(6) of the Act by virtue of the term of imprisonment referred to above.[8] On this date, the Applicant was serving a sentence of full-time imprisonment at Wellington Correctional Centre in New South Wales.

   [8] Exhibit R1, G29, 191-196.

5. The Applicant made a request for revocation of the Mandatory Visa Cancellation Decision, which was received by the Respondent on 28 March 2019, and made representations to the Minister in support of his revocation request,[9] and provided several character references and a psychological report.[10]  On 7 October 2019, the Department also sent the Applicant a letter outlining further information that would be considered by the delegate.[11]

   [9] Exhibit R1, G10, 72-76.

   [10] Exhibit R1, G10-G23.

   [11] Exhibit R1, G31, 198-200.

6. On 24 January 2020, a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act (‘the Reviewable Decision’).[12]

   [12] Exhibit R1, G2, 8-30.

7. On 6 February 2020, the Applicant lodged an application with the Administrative Appeals Tribunal (‘the Tribunal’) seeking a review of the Reviewable Decision.[13]

   [13] Exhibit R1, G1, 1-7.

8. The matter was heard by the Tribunal at a hearing in Canberra on 8 and 9 April 2020. The Applicant attended the hearing by video-link from Villawood Immigration Detention Centre and was unrepresented.  He gave oral evidence at the hearing.

9. The material before the Tribunal consists of:

   ·Respondent’s Statement of Facts, Issues and Contentions (‘SFIC’) dated 20 March 2020;

   ·G documents (G1 to G26, pages 1 – 235) – Exhibit R1;

   ·Supplementary Documents (pages 1 – 130) – Exhibit R2;

   ·International Health and Medical Services Clinical Records requested from the Immigration Detention Centre (21 pages) – Exhibit R3

   ·Applicant’s Statement of Facts, Issues and Contentions dated 10 March 2020;

   ·Applicant’s Reply undated, filed 3 April 2020; 

   ·Transcript of '000' Telephone Recording made by John Marshall dated 11 July 2016 (6 pages) – Exhibit A1;

   ·Subpoena to John Marshall (1 page) – Exhibit A2;

   ·Witness Statement of John Ian Marshall (4 pages) – Exhibit A3;

   ·Medical Certificate of John Marshall (1 page) – Exhibit A4;

   ·Mudgee Local Court Transcript - Hearing (partial) dated 23 November 2017(30 pages) – Exhibit A5;

   ·Handwritten Court Notes of Pawel Kulisiewicz dated 23 November 2017 (12 pages) – Exhibit A6;

   ·ERISP Transcript of Rodney Johnstone dated 23 August 2016 (34 pages) – Exhibit A7;

   ·Mudgee Local Court Transcript - Sentencing dated 16 January 2018 (11 pages) – Exhibit A8;

   ·Sentencing Statistic Graphs dated 30 July 2017 (1 page) – Exhibit A9;

   ·Application for Leave to Appeal dated 14 March 2018 (5 pages) – Exhibit A10;

   ·Affidavit of Pawel Kulisiewicz dated 9 August 2018 (2 pages) – Exhibit A11;

   ·Letter to Ms Samantha Lees from Pawel Kulisiewicz dated 12 March 2018 (2 pages) – Exhibit A12;

   ·Urine Drug Tests (Various) (7 pages) – Exhibit A13;

   ·Case Notes 1 - 49 and 1 - 80 from Summonsed Material (128 pages) – Exhibit A14;

   ·Psychiatric Report from Dr Stewart Bartle dated 15 March 2014 (6 pages) – Exhibit A15;

   ·Psychiatric Report of Dr Bruce Westmore dated 18 November 2008 (7 pages) – Exhibit A16;

   ·Pre Release Report for the Applicant dated 11 September 2009 (7 pages) – Exhibit A17;

   ·Psychological Report of W John Taylor dated 19 July 2004 (10 pages) – Exhibit A18;

   ·Psychological Progress Report for the Applicant (Various) (26 pages) – Exhibit A19;

   ·Bipolar Mood Disorders Kit Mental Health Association NSW Inc dated 1 July 2010 (15 pages) – Exhibit A20;

   ·Antidepressant Associated Mania and Psychosis Resulting in Psychiatric Admissions - J Clin Psychiatry dated 1 January 2001 (3 pages) – Exhibit A21;

   ·Royal Australian and New Zealand College of Psychiatrists (RANZCP) clinical practice guidelines for mood disorders, 2015 (184 pages) – Exhibit A22;

   ·Australian Product Information, Avanza Soltab (mirtazapine) from the Therapeutic Goods Administration dated 19 April 2019 (15 pages) – Exhibit A23;

   ·Australian Product Information, Luvox (fluvoxamine Maleate tablets) from the Therapeutic Goods Administration, 3 June 2019 (15 pages) – Exhibit A24;

   ·Article titled 'Recidivism in Australian: Findings and future research',Australian Institute of Criminology by Jason Payne, 2007 (155 pages) – Exhibit A25;

   ·ABNLookup - Rodney Andrew Johnstone dated 25 March 2020 (2 pages) – Exhibit A26;

   ·Patient Summary from Dr Balaraman dated 14 July 2016 (1 page) – Exhibit A27;

   ·Article titled 'Roght to humane treatment in detention' Attorney General dated 30 March 2020 (3 pages) – Exhibit A28;

   ·New Zealand Ministry of Justice dated 10 March 2020 (2 pages) – Exhibit A29;

   ·Fax from the Applicant to Elias Tabchouri - Macquarie Law Burwood with Medical Certificate dated 15 March 2016 (2 pages) – Exhibit A30;

   ·Medical Certificate dated 16 March 2016 (1 page) – Exhibit A31;

   ·Affidavit of Director of Public Prosecutions Solicitor, Simpson dated 19 August 2018 (4 pages) – Exhibit A32;

   ·Character Reference from Dennis Raynmond Plumb, 2017 (1 page) – Exhibit A33;

   ·Character Reference from William Reed (Mudgee Local Court) dated 17 November 2017 (1 page) – Exhibit A34;

   ·Character Reference of Reverand Archpriest James Carles (Mudgee Local Court) dated 19 November 2017 (1 page) – Exhibit A35;

   ·Character Reference by Dr Richard Allen (Mudgee Local Court) dated 16 August 2016 (1 page) – Exhibit A36;

   ·Character Reference from Kane Ladner (Mudgee Local Court) 2017 (1 page) – Exhibit A37;

   ·Character Reference from Parish Members of Church dated 6 March 2020 (5 pages) – Exhibit A38;

   ·Character Reference Arthur Tane dated 6 March 2020 (1 page) – Exhibit A39;

   ·Character Reference of William Reid dated 27 February 2020 (2 pages) – Exhibit A41;

   ·Character Reference of Anne Neilsen dated 18 February 2020 (3 pages) – Exhibit A42;

   ·Character Reference of Daniel Francis Allen dated 5 february 2020 (3 pages) – Exhibit A43;

   ·Character Reference of Reverand Archpriest James Carles dated 3 March 2020 (3 pages) – Exhibit A44;

   ·Character Reference of Glenda Davidson dated 24 February 2020 (1 page) – Exhibit A45;

   ·Character Reference of Kane Ladner dated 9 March 2020 (1 page) – Exhibit A46;

   ·Article from the European Respiratory Journal COPD, 'emphysematous bullae' dated 2020 (4 pages) – Exhibit A47;

   ·Article from the European Respiratory Journal COPD, 'emphysematous bullae' dated 2020 (11 pages) – Exhibit A48;

   ·Aqua Medical Education COPD Emphysematous bullae, 2020 (5 pages) – Exhibit A49;

   ·Letter from Mr Johnstone to his lawyers dated 5 March 2018 (16 pages) – Exhibit A50;

   ·Article titled 'Causation not just correlation' dated 1 May 2016 (51 pages) – Exhibit A51; and

   ·Witness Statement of the Applicant dated 27 March 2020  – Exhibit A52.

10. The Tribunal has reviewed all of the evidence before it and refers to all relevant materials below.

    LEGISLATION

11. Subsection 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:

    (3A) The Minister must cancel a visa that has been granted to a person if:

    (a) the Minister is satisfied that the person does not pass the character test because of the operation of:

    (i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

    (ii) …; and

    (b) the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

12. Paragraph 501(6)(a) of the Act relevantly provides that a person does not pass the ‘character test’ if the person has a ‘substantial criminal record’. Relevantly, pursuant to section 501(7)(c) of the Act, a person has a substantial criminal record if the person has been sentenced to ‘a term of imprisonment of 12 months or more’.

13. Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person.

14. Subsection 501CA(4) confers on the Minister the discretion to revoke the Mandatory Visa Cancellation Decision under section 501(3A). Subsection 501CA(4) provides:

    (4) The Minister may revoke the original decision if:

    (a)the person makes representations in accordance with the invitation; and

    (b)the Minister is satisfied:

    (i)     that the person passes the character test (as defined by section 501); or

    (ii)    that there is another reason why the original decision should be revoked.

15. Paragraph 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under section 501CA(4) not to revoke a decision to cancel a visa.

    MINISTERIAL DIRECTION NO. 79

16. When considering whether to revoke the cancellation decision, the Tribunal is required under section 499(2A) of the Act to have regard to the Minister’s Direction. The relevant Direction is Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (‘the Direction’).

17. The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:

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

18. The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The Principles referred to in the General Guidance (and reproduced below) constitute a framework within which decision-makers apply the considerations in Part A, B, or C of the Direction.

19. The first paragraph of the General Guidance provides:

    (1)  The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

20. The following Principles are set out in paragraph 6.3:

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

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

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

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

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

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

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

21. Paragraph 7(1) of the Direction sets out how the discretion under section 501 of the Act is to be exercised:

    (1)  Informed by the principles in paragraph 6.3 above, a decision-maker:

    (a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or

    (b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

22. In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under section 501(3A) of the Act.

23. In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case. The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):

    …Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.

24. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include ‘primary considerations’ and ‘other considerations’. The primary considerations are:

    (a)protection of the Australian community from criminal and other serious conduct;

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

    (c)expectations of the Australian community.

25. The other considerations are:

    (a)international non-refoulement obligations;

    (b)strength, nature and duration of ties [to Australia];

    (c)impact on Australian business interests;

    (d)impact on victims; and

    (e)extent of impediments if removed.

26. Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources. Paragraph 8(3) provides that ‘[b]oth primary and other considerations may weigh in favour of, or against… cancellation of the visa.’ Paragraphs 8(4) and (5) provide that primary considerations should be given greater weight than other considerations, and one or more primary considerations may outweigh other primary considerations.

    ISSUES FOR DETERMINATION

27. Before the power in section 501CA(4) of the Act, to revoke the original decision, is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.

28. There is no dispute that the Applicant made the representations required by section 501CA(4)(a). The issue is whether the discretion to revoke the Mandatory Visa Cancellation Decision may be exercised. In Minister for Home Affairs v Buadromo[14] the Full Court of the Federal Court of Australia made the following observations in relation to section 501CA(4):

    ... there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view...[15]

    [14] [2018] FCAFC 151.

    [15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166; (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66; (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).

1. The issues for determination are:

   (a)whether the Applicant passes the character test; and

   (b)whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked.

2. If the Applicant succeeds on either ground, the Tribunal must find that the Mandatory Visa Cancellation Decision must be revoked.

   EVIDENCE BEFORE THE TRIBUNAL

   Early years and migration to Australia

3. The Applicant was born in Auckland and attended school there until he was 16 years old. When he left school, he came to Australia in June 1986 and worked as a storeman in Gosford, New South Wales.[16]  He remained in Australia until May 1990, which included a six month working holiday in New Zealand from October 1987 to April 1988.[17]

   [16] Transcript p 6.

   [17] Transcript p 7; Exhibit R1, G25

4. The Applicant returned to New Zealand in May 1990 and worked as a shop manager in Mount Wellington in Auckland until 1992.[18]  From 1996 to 2000 he worked as a gaming machine supervisor at the Sky City Casino in Auckland.[19]

   [18] Transcript p 7.

   [19] Transcript p 8.

5. The Applicant married his wife in 1997 and his son was born in December 1998.[20]  On 17 October 2000, the Applicant moved to Australia with his wife and son.[21]

   [20] Transcript p 8.

   [21] Transcript p 9.

6. The Applicant was employed as the operations manager of the Rose Bay RSL in November 2000.  In approximately December 2001 he was promoted to Assistant Secretary.[22]  The Applicant told the Tribunal there was ‘[a] lot of politicking going on’, in the workplace. At one point he received a written warning for staying behind drinking for more than 15 minutes after the Club had closed.[23]  The Applicant told the Tribunal he tried to avoid the ‘political arguments’ at the Club, but he was ‘the meat in the sandwich because [he] had to answer to both sides at some point.’[24]  He experienced workplace stress, and in December 2002 he took four weeks’ stress leave on the advice of his doctor.[25]

   [22] Transcript p 9.

   [23] Transcript p 12.

   [24] Transcript p 13.

   [25] Transcript p 10.

   Alcohol and drug use

7. In December 2002, the Applicant started drinking alcohol heavily, taking methamphetamine and cocaine.  He told the Tribunal he would drink four or five beers after work on a regular basis and would take a few hundred dollars’ worth of drugs on weekends.[26]  He was earning good money so he ‘could afford to splash out a bit.’[27]  His work performance was not affected by consuming alcohol and drugs, but he ‘had a change of attitude.’[28] 

   [26] Transcript p 10-11.

   [27] Transcript p 10.

   [28] Transcript p 11.

8. The Applicant agreed that his drug and alcohol use started to affect his marriage.  In September 2002 an Apprehended Violence Order was issued against the Applicant, which required him not to assault, harass, threaten or otherwise interfere with his wife and son.[29]  He told the Tribunal he was not physically violent or threatening towards his wife, but he was being ‘moody and abrupt’ and he did verbally abuse her.[30]

   [29] Transcript p 13.

   [30] Transcript p 13-14.

9. The Applicant and his wife separated in September 2002 although they still were together on occasions while he ‘worked out what was going on’ and there were some peaceful times in between.[31]  His son lived with his wife and he saw him every weekend when he was not working.[32]  There was no formalised custody arrangement in place in relation to their son.[33]

   [31] Transcript p 15.

   [32] Transcript p 17

   [33] Transcript p 21.

   Psychiatric health and treatment

10. At the end of 2002, the Applicant saw Dr Stuart Bartle at the Bronte Clinic who diagnosed him with borderline personality disorder and prescribed anti-depressant medication.[34]  He attended regular psychiatric sessions with Dr Bartle until 2006.[35]  He also received counselling from a psychologist through a rehabilitation service program at least once a fortnight.[36]

    [34] Transcript p 15; Exhibit A15.

    [35] Transcript p 16, p 31-32.

    [36] Transcript p 32.

11. The Applicant was admitted to the St Vincent’s Hospital in December 2003 as a result of an overdose of benzodiazepines (Valium) and alcohol.[37]  This was a suicide attempt and his wife found him and called the hospital.  He was discharged into the care of his wife and returned to work after three days.[38]

    [37] Exhibit R2, S2, 5.

    [38] Transcript p 14.

12. The Applicant was diagnosed with Bipolar Type II whilst in prison in 2009 and was prescribed medication. When he started taking mood stabiliser sodium valproate (Epilim) his bipolar condition improved.[39]  In 2011 he changed his medication to lithium orotate which he imports from the United States.[40]

    [39] G21, 135; G22, 146

    [40] Transcript p 60.

    Criminal history

13. A Nationally Coordinated Criminal History Check dated 19 November 2018 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia.[41] In his representations to the Department and the Tribunal, the Applicant did not dispute the convictions and sentences in the Nationally Coordinated Criminal History Check.

    [41] Exhibit R1, G5, 31-33.

14. On 19 August 1994, when he was living in New Zealand, the Applicant was convicted of assaulting a woman on Christmas Day 1993.  He was sentenced to a six month supervised community based order and fined $1,000.[42]  He also was directed to undertake anger management counselling which he completed.  The Applicant told the Tribunal that the victim of this assault was a female friend.[43]

    [42] Exhibit R1, G6, 34.

    [43] Transcript p 8.

    2003 offences

15. In March and April 2003, the Applicant committed a number of offences, including Assault occasioning actual bodily harm, Contravene apprehended domestic violence order, Steal property as a clerk/servant >$15,000 and Damage property by fire/explosive >$15,000.[44]  On 3 August 2005 he was convicted by the Downing Centre District Court and sentenced to a 12-month suspended sentence for all offences. The Applicant was also ordered to accept the guidance of a psychiatrist to take prescribed medication and to attend counselling, rehabilitation or educational development in accordance with medical advice.[45]

    [44] Exhibit R1, G5, 33

    [45] Exhibit R1, G5, 33

16. These offences arose from the following sequence of events.  On 29 March 2003, the Applicant’s son, then aged four, was staying with him at his house in Rose Bay.  The Applicant phoned his wife at 10:40pm and asked her to come over and collect their son.[46]  She arrived at 11pm and knocked on the door.  When the Applicant heard the knock he went outside and picked up a shovel and approached his former wife from behind when she was standing at the door. He struck his ex-wife on the head twice with a shovel and grabbed her hair, causing her injury.  She suffered a large cut to the top of her head that required stiches.[47]  The Applicant told the Tribunal that this event is a ‘painful memory’ and it is ‘somehow blocked in [his] mind].’[48]  He said he is not really sure what happened, and he does not know ‘what the hell [he] was thinking.’[49]  It is ‘something [he] is deeply ashamed of’ and he is ‘too ashamed to recall it’.[50]  This assault occurred in contravention of the Apprehended Violence Order granted on 26 September 2002 against the Applicant.[51]

    [46] Transcript p 17.

    [47] Exhibit R2, S1, 2-3.

    [48] Transcript p 18.

    [49] Transcript p 19.

    [50] Transcript p 21.

    [51] Exhibit R2, S1, 2-3.

17. The Applicant told the Tribunal that he had used cocaine the night before the assault.  He was ‘in pretty bad shape’ at the time and his ‘attitude was a bit more careless.’  He was not himself and had ‘gone from bad to worse.’[52]  He cannot recall whether he had had an argument with his former wife prior to the assault.  At the time there was ‘kind of that love and hate thing going on between [them] and ‘there was a bit of to and fro on both sides.’[53]  There were a number of ‘incidences’ that took place at this time, for example, his former wife ‘trashed his stuff’ while he was at work.  He admitted that he was the one ‘being more… aggressive and unreasonable and crossing the lines of respect.’[54]

    [52] Transcript p 20.

    [53] Transcript p 21.

    [54] Transcript p 22.

18. The Applicant described how he was feeling at the time of the assault in addition to the effects of the cocaine:

    I think that being tired as well.  I was a bit agitated and like I was just saying, moody, agitated, irritable, grumpy, fatigued, you know.[55]

    [55] Transcript p 20.

19. The Applicant's conviction for Stealing property as a clerk/servant relates to an incident on 30 March 2003 when he attended his work premises at the Rose Bay RSL at 4am and stole $44,200 in cash from a safe.[56]  The Applicant told the Tribunal he used his own keys to enter the premises and entered his PIN to deactivate the alarm system.  He found the keys to the vault in a small lockbox and opened the vault and removed the money.[57]  He agreed that he went to Brisbane and spent all the money gambling and bingeing on drugs and alcohol.[58]

    [56] Exhibit R2, S1, 3; Transcript p 22.

    [57] Transcript p 23.

    [58] Exhibit R2, S1, 3-4; Transcript p 23.

20. The Applicant's conviction for Damage to property by fire relates to an incident at 2am on 16 April 2003 when he poured petrol in the lounge room of his house and set it on fire, causing major damage to the lounge room and master bedroom.[59] The Applicant told the Tribunal that when he returned to his house, he saw that his belongings, furniture and equipment had been moved outside of the house by the landlord.  He became angry and grabbed a can of petrol and broke into the house and poured petrol in the lounge. He agreed that he knew this would cause damage to the property. He told the Tribunal he believed that the house and the adjoining property were both vacant at the time as the neighbours had moved out.  He believes he checked that both houses were unoccupied.[60]

    [59] Exhibit R2, S1, 4.

    [60] Transcript p 24-26.

21. The Applicant stated in relation to these offences that he ‘snapped’ as a result of his work demands and his marriage issues, and that he committed them because he was on the incorrect medication.[61]  He told the Tribunal that there was a ‘spontaneous element’ to these offences and he was ‘acting without thinking.’[62]

    [61] Transcript p 27-28 and Applicant’s Statement of Facts, Issues and Contentions.

    [62] Transcript p 27.

22. After his conviction for the 2003 offences, the Applicant was receiving Newstart allowance and doing some casual work as a property manager.  He also did some study in IT but did not complete the course due to ‘a lack of motivation.’[63]

    [63] Transcript p 30.

    2007 offences

23. On 5 May 2009 the Applicant was convicted in the Sydney District Court of two counts of Maliciously destroy or damage property >$2000 & <=$5000 for which he was sentenced to 12 months imprisonment (concurrent) on each count.[64]  On 11 May 2009 he was convicted of Break and Enter building (destroy/damage) value <=$15,000 –T1 and sentenced to three years and eight months imprisonment.[65] The Applicant was also subject to an Apprehended Violence Order for two years with the protected persons being his former wife and child.[66]

    [64] Exhibit R1, G5, 32

    [65] Exhibit R1, G5, 32

    [66] Exhibit R1, G9, 66

24. The circumstances of the offences were that between 4 and 8 May 2007 the Applicant called and texted his former wife in relation to access to his son and use of the clothes dryer at her residence.[67]  The Applicant agreed in cross-examination that on 4 May 2007 he sent his former wife a text that said ‘How do I make arrangements to get my son when you are hard to contact, you fucking whore.’[68]  He also agreed that on 6 May 2007 he sent her a text that said ‘It’s just a matter of time before something terrible happens.’[69]  The Applicant told the Tribunal that the ‘trigger’ for his actions was access to his son.[70] The access arrangements had changed and he was ‘quite bitter about it’.[71] 

    [67] Exhibit R2, S5, 16-17.

    [68] Exhibit R2, S5, 16; Transcript p 33.

    [69] Exhibit R2, S5, 16; Transcript p 34.

    [70] Transcript p 34, 45.

    [71] Transcript p 34.

25. The Applicant phoned his former wife at 9:30pm on 8 May 2007 and said he was coming over to her house. During one call he said ‘I'm coming, call the Police, I've got a knife in the bag’.[72]  He walked to her house in Double Bay which was a unit in a three storey block.[73]  When he arrived he phoned her and said ‘You’d better let me in or I’ll smash your house’.[74]  The Applicant’s former wife called 000 and left the house with her son and was too afraid to return home.[75]  The Applicant entered his former wife’s residence by smashing a window with a beer bottle.  He set a fire with a gas canister causing extensive damage to furniture, a refrigerator, microwave, lap top computer and other items of property.  The television and computer screens were damaged with a sharp object.[76]  The total damage was $83,497.[77]  The Applicant subsequently phoned his former wife and told her ‘I burnt your house, next time if I tell you to do something, then do it’.[78]  He told the Tribunal that he was referring to the washing.[79]

    [72] Exhibit R2, S5, 17.

    [73] Transcript p 37.

    [74] Exhibit R2, S5, 17.

    [75] Exhibit R2, S5, 17.

    [76] Exhibit R2, S5, 19.

    [77] Exhibit R1, G8, 56.

    [78] Exhibit R2, S5, 17; Exhibit R1, G8, 55-56.

    [79] Transcript p36.

26. The Applicant was questioned during cross-examination as to whether he was aware that there would have been other residents in the units in the block at home that evening.  He said he should have known, but he was not thinking.  He agreed that he did not check, and said his actions were ‘somewhat brazen or careless or just no regard at all.’[80]

    [80] Transcript p37.

27. The Applicant advised Corrections officers that at the time of offending he felt angry towards his former wife, and frustrated concerning access to his son. He had three beers and was not particularly intoxicated, but later admitted he had lost control and could not handle pressure.[81]

    [81] Exhibit R1, G8, 58.

28. In his sentencing remarks, Acting Judge McGuire of the District Court of New South Wales stated:

    I am obviously concerned that there now appears to be two episodes where [the Applicant] has set fire to property and both appear to have occurred in the context of anger…[82]

    …I consider it as a grave offence for a man to vent his anger upon the victim, as in this case, by breaking into her premises, seeking to destroy her property by fire and the spiteful and destructive defacing of her television set and computer.[83]

    [82] Exhibit R1, G8, 57.

    [83] Exhibit R1, G8, 60.

29. The Judge found that the Applicant’s actions were ‘calculated and deliberate’. He had contacted the victim prior to the fire and lurked nearby while making further demands, ‘reflective of a person in full control of his actions. A person who knew exactly what he was doing.’[84]  The Judge stated that the Applicant had not only caused substantial damage by deliberating creating a fire, but had placed lives at risk. The Court did not find a relationship between the Applicant’s offending conduct and any psychiatric or mental condition.[85]

    [84] Exhibit R1, G8, 59.

    [85] Exhibit R1, G8, 59.

30. In his statement dated 31 August 2019, the Applicant said that this offence was a consequence of a ‘temporary insanity psychotic behaviour’.[86] At the time he had not been diagnosed as bipolar and he was being treated with the wrong medication that ‘turned out to be detrimental towards [his] overall stability.’[87]  He told the Tribunal that it is ‘quite well documented’ that ‘antidepressant medication and bipolar don’t mix unless there’s a mood stabiliser in between at least.’[88]  The Applicant stated that his bipolar condition was a ‘catalyst’ for his offending and it is as bad as the substance abuse.[89] 

    [86] Exhibit R1, G22, 145.

    [87] Exhibit R1, G22, 145; Exhibit A52 at [14].

    [88] Transcript p 39, referring to A23 and A24.

    [89] Transcript p 41.

31. He told the Tribunal that he takes responsibility for his offending.  It was a ‘terrible time’ and he was ‘a mess’ and ‘useless’ and did not have his ‘act together.’[90]

    [90] Transcript p 41.

    Rehabilitation and activities 2009 to 2014

32. When he was released from prison on parole in 2009, the Applicant lived in Budgewoi on the Central Coast for fourteen months.[91]  He first stayed at his mother’s house for six months and ‘just readjusted’ and then moved to his own house.[92]  He later moved to The Entrance.

    [91] Transcript p 54, 64.

    [92] Transcript p 64

33. The Applicant told the Tribunal that he was unable to see a psychiatrist when he was living on the Central Coast as none were practising in the area.  He did however go to the Lake Haven Community Centre and used their services, which included occasional consultations with a psychiatrist.[93] 

    [93] Transcript p 54.

34. The Applicant told the Tribunal that when he was on parole he attended Kamira Farm and started counselling sessions with Carmel.[94]  He attended these sessions with Carmel beyond his parole period, which ceased in January 2011.[95]

    [94] Transcript p 55.

    [95] Transcript p 55-56.

35. The Applicant returned to higher education study.  In 2009 he was awarded a Certificate IV in Web Design and in 2010 he was awarded a Diploma of Web Development.[96]  In 2011 he started an IT business with his business partner, Daniel Francis, which provided web software/website services to clients in both Australia and the United States.  The Applicant told the Tribunal that the business ‘…wasn’t a great success, but we had some successful moments, and we certainly learned our trade and we excelled.’[97]  He said that the business helped him on his path to self-improvement because he ‘started to become a member of the community at that point again and self esteem has been good ever since.’[98]

    [96] Transcript p57.

    [97] Transcript p57.

    [98] Transcript p64.

36. In 2014 the Applicant experienced a brief period of destabilisation and was hospitalised.  He explained to the Tribunal that at this time, he ‘had too much going on’ and started to become ‘extremely hyper-manic beyond [his] normal up’ and was ‘up for 28 days’.  He counted ‘13 events happening at once’ which included the ATO, Centrelink and his landlord chasing him, his mother nearly died and his best friend died.[99]  He admitted himself to Wyong Hospital where he stayed for four or five days ‘just to bring it under control’.  He was prescribed Seroquel which is what he now takes in this type of situation.[100]  The Applicant described this incident as ‘an example of a well-managed situation.’[101]  He had become ‘overwhelmed’ by a number of ‘triggers’, which impacted on his ‘underlying vulnerability.’[102]

    [99] Transcript p57-58.

    [100] Transcript p59.

    [101] Transcript p58.

    [102] Transcript p59.

    2016 offences

37. On 4 October 2018, the Applicant was convicted in the Dubbo District Court (on appeal from the Mudgee Local Court) of Reckless grievous bodily harm for which he was sentenced to 15 months imprisonment with a non-parole period of nine months, and Assault occasioning actual bodily harm, for which he was sentenced to 12 months imprisonment, with a non-parole period of seven months.[103]

    [103] Exhibit R1, G5, 31-2.

38. These offences were committed during an incident in the evening of 11 July 2016 when the Applicant and the victim were staying in a house in Rylstone.[104]  They were consuming alcohol and were both intoxicated.  At approximately 10pm they were listening to music when an argument started and escalated into a physical altercation.  The victim threw a glass against the wall causing it to smash and then kicked over a coffee table. He started to hit and verbally abuse the Applicant who was briefly knocked out.  When he tried to get up the victim threw the Applicant’s mobile phone and laptop towards him.  The Applicant walked away from the victim and the altercation moved from the lounge to the kitchen. The victim pursued the Applicant and continued to hit him.  The Applicant then picked up a wine bottle and struck the victim over the head. He then punched the victim a number of times before they both fell to the ground and the victim lost consciousness.  When he regained consciousness the victim stated that he could not breathe.  The Applicant gave him a glass of water but the victim continued to experience breathing difficulties and was in considerable pain.  The victim called an ambulance. When the police and ambulance arrived, the victim was laying on the lounge room floor bleeding from a laceration to his head.

    [104] Exhibit R2, S19, 42-43.

1. The victim suffered significant injuries, including a collapsed lung requiring surgical intervention, minor abrasions to the right temporal scalp, mild periorbital haematoma inferior to the right orbit, subcutaneous emphysema to the left and upper abdomen and a  laceration to the left foot requiring sutures.[105]  He was treated at the scene and then transported to Rylstone hospital and later transferred to Mudgee Hospital.  In the early hours of 12 July 2016 he was airlifted to Westmead Hospital and remained there for seven days.[106]

   [105] Exhibit R1, G7, 40-41; Exhibit R2, S22, 56-62.

   [106] Exhibit R2, S19, 43.

2. The Applicant told the Tribunal that he also sustained injuries during the altercation but he did not seek any medical attention for three days. He told the police officer that he had a cut lip and his head hurt.[107]  He believes he was concussed and his blood pressure was high.[108] He did not see a doctor because he was stuck in Rylstone and it was a seven hour drive back to his home in The Entrance and he did not feel up to driving.[109]

   [107] Transcript p 73-74.

   [108] Transcript p 72-73.

   [109] Transcript p 72.

3. In his judgment on 4 October 2018, Judge Ingram SC Court accepted that the offences were committed ‘in the face of significant provocation by the victim’.[110]   His Honour further accepted that ‘this was not a planned offence’ and ‘it does appear that the victim did indeed undertake an assault upon the [Applicant] and that it may have been pressed home for some little time.’[111]  His Honour was satisfied that ‘the objective seriousness of both offences is significant.’[112] 

   [110] Exhibit R1, G7, 42.

   [111] Exhibit R1, G7, 49.

   [112] Exhibit R1, G7, 49

4. In his written statements and in his evidence to the Tribunal, the Applicant stated that he was assaulted and ‘took a king hit to the head’ from the victim.[113]

   [113] Transcript p 67.

5. The Applicant admitted that he is not ‘squeaky clean and innocent’ and he ‘could have taken another course to perhaps avert the whole situation.’  The situation was one that ‘came to [him].’[114]  He acknowledged that there was ‘a high level of violence’, and when he hit the victim on the head it was his intention ‘to take him down.’[115]  He denied that he kicked the victim in the chest but said he did kick him in the lumbar region.[116] 

   [114] Transcript p 68.

   [115] Transcript p 70.

   [116] Transcript p 71.

6. The Applicant agreed he has questioned whether he needed to engage in the altercation, but unfortunately he was intoxicated.  In hindsight he has thought that perhaps he should have ‘barged [his] way out of the door.’[117]  He said he has thought ‘it possibly was an overreaction and poor judgment’ in that he ‘did not interpret the situation very well given the level of intoxication’.  Also him being ‘bipolar and notorious with not being well (sic) at judging situations like this.’[118]

   [117] Transcript p 69.

   [118] Transcript p 78.

   Time in custody and immigration detention

7. During both his periods in prison (2007 to 2009 and 2018 to 2019) the Applicant was not involved in any breaches or misconduct.

8. During his period of incarceration in 2018 to 2019, the Applicant was classified ‘low risk’.  For a period of two months he was housed in Honour House outside the prison walls of Wellington Correctional Centre, during which time he was eligible to work with members of the public in the Wellington community.  When his visa was mandatorily cancelled in February 2019 he lost these privileges and was re-housed within prison walls.[119]

   [119] Transcript p 96.

9. In his oral evidence, the Applicant told the Tribunal that in prison he had two paid positions in the clinic and in intake.  He explained what these roles involved:

   Yes, intake to look after the needs of the sick inmates, the ones who were in there… So and also I have access to areas where there’s things that you could steal, you know, like syringes and things like that. And there are things where you have to be a trusted person to be in that sort of area. And you have to work alongside officers too. Intake’s similar, you had to work alongside officers, you have access to everyone’s property… and there’s the X-ray machine. And you get to see a few things behind the scenes and it’s actually one of the higher paying jobs too which was really quite good, so in gaol it was kind of useful.[120]

   [120] Transcript p 96.

10. The Applicant told the Tribunal that both jobs were full-time and he worked at least eight hours a day, and the work in the clinic was seven days a week.[121]

    [121] Transcript p 96.

11. The Applicant was asked about the period he spent at Honour House and the work he did in the community.  He stated:

    When I went to Honour House, which is outside the gaol I went in the community…

    I took a lesser paying job working in the community, which was great, we got to go to the Wellington Golf Course, the town and churches, mow the lawns, do the whipper snipping, all sorts of odd jobs like that…[122]

    [122] Transcript p 96.

12. The Applicant told the Tribunal that in immigration detention he has provided other detainees with some assistance.  He explained:

    I’ve been helping… people with doing simple things like putting an attachment on their email and sending it off. Just general problems with English… I’ve been identified within the group as, like I’m the uncle, that I’ll help them with their little problems. Be able to explain something to them. Which is part of my nature. I’m a person who likes to help other people. That goes a long way back, you know. And it’s kept me occupied as well. I’ve, you know, I fix the IT problems here too.[123]

    …For example, there was the one who did the protection visa, he could speak English but he couldn’t read and write it so I just read him the questions and asked – and wrote down the answers for him. That sort of thing.[124]

    [123] Transcript p 100-101.

    [124] Transcript p 101.

13. The Applicant was questioned about a recorded incident on 5 January 2020 when he was aggressive towards another detainee.[125]  He said he had a ‘verbal altercation’ with another detainee, who is now a friend.  He described the incident as ‘one of those moments where there’s tension and anxiety… But it just escalated slightly and was taken into control.’[126]

    [125] Exhibit R2, S28, 88-89.

    [126] Transcript p 99.

14. The Applicant was asked about a recorded threat of self-harm on 28 January 2020.  The Applicant agreed this occurred and said he was ‘venting’ because he does ‘feel pretty low’ and was ‘expressing some feelings’.  He told the Tribunal he does ‘have suicidal ideation quite frequently’ and that this is ‘par for the course’ for those who suffer from bipolar.[127]  This needs to be managed which can best be done when he has the ‘ability to control’ his environment, which he cannot do in gaol or detention.[128]

    [127] Transcript p 100; Exhibit R1, G22, 157.

    [128] Transcript p100.

    Remorse and responsibility for offending

15. In his statement dated 31 August 2019, the Applicant wrote:

    … I initially received some harsh criticism by a Court judge… I was deeply distraught, ashamed and even lost inside my soul.  I reflected and promised myself to figure out what was wrong with me.  This was the very beginning of my healing and personal development.

    … After all the victim was once a friend of mine.  I was contrite and still am sorry that I did wrong. I was more conscientious (sic) of my actions soon after being release (sic) from Mudgee Police station.  I also showed some compassion and regret on the night in question.  Afterwards in a much calmer state I realise where I made the wrong choice by reacting to a situation instead of running from the situation.  It would have been better for me to force my way out the door (being cornered) to go outside to avoid further confrontation instead of retaliating in a fight… There has also been a lot more reflecting since then. There are lessons where I must take heed…

    … I honestly originally thought I must of somehow broken [the victim’s] rib, but not so.  I was truly horrified at this and was regretful to be a part of it …[129]

    [129] Exhibit R1, G22, 145-162.

    Risk of re-offending

16. In his sentencing remarks in October 2018, Judge Ingram SC stated as follows in relation to the Applicant’s risk of re-offending:

    The Court is satisfied that [the Applicant] is most unlikely to re-offend in this sort of way again, provided that he is being assisted with suitable mental health treatment resources and that he maintains any medication regime which is provided for him.[130]

    [130] Exhibit R1, G7, 70.

17. In his Personal Details Form dated 7 March 2019,[131] and letter dated 11 June 2019,[132] the Applicant stated that he will not re-offend.  In his statement dated 21 August 2019 he wrote:

    … I am not in the habit of breaking the law and I never-ever have been involved wit any criminal enterprise or criminal activities.  I do not threaten or attack vulnerable people and I do not belong to any gangs (or similar); I don’t and can’t drive a vehicle either.  I have never driven under the influence or unlicenced …

    … It is highly unlikely that I will ever re-offend.[133]

    [131] Exhibit R1, G12, 81-95.

    [132] Exhibit R1, G20, 127-129.

    [133] Exhibit R1, G22, 145-162.

18. In this statement, the Applicant said he has achieved stable mental health and been on a pathway of self-improvement:

    … Despite some obvious flaws in my mental health I have plenty of evidence of stability too.  Prior to the events of July 2016, I had generally been very stable for a very long time…

    I have since achieved for a very long time now a healthy regime involving a good diet with supplemented vitamins and minerals.

    It is evident to myself and those who have known me for a long time that my years of personal development have paid off.  I did re-invent myself and am a better person than before.  I am pleased with my efforts and this has raised better self-esteem too.[134]

    [134] Exhibit R1, G22, 145-162.

19. In his submissions, the Applicant addressed the likelihood of him re-offending as follows:

    … the likelihood is it’s highly unlikely that I will reoffend in this way again and - and - so when we used the words ‘highly unlikely’ then I compare that with most not probably not, a probability versus a possibility that weight should be given to - to the totality rather than look at a crystal ball and look at a possibility. Anything in life is possible and I - I’m not involved with criminal violence and crimes of gain, like theft and break and enters, and all that sort of thing, so there’s no likelihood of that sort of thing happening. That’s never been who I am as far as character is concerned. I’m not stealing from people’s houses and – and things like that and crimes of, what you call, enterprising crimes. I’m not a career criminal.

    So, it comes down to how am I going to react in a situation like that again? The answer is who knows, I don’t know. I should get something from this lesson. I’m sure I will ponder over it for a long time with perhaps Mr Awit.  But the probability of being attacked is highly unlikely as well, or not likely. Probably - probably not that possible where someone will attack me. I’m looking at - there has been just under 10 years. It was nine years since the offences of 2007 where it was that of a different character compared to what’s happened in 2016 and I’m not likely to contend that the work and rehabilitation I’ve done is the reason why I’ve been under the radar for so long, and what’s happened on July 2016 is an anomaly in the sense that it was not me who - who went out and caused the trouble here. It was brought to me and I have said that I’ve got doubt whether (indistinct) it was - it was - this just comes out of bad luck and in some sense that it happened. I didn’t do anything to cause it, whereas the past I concede - I’ve got no defence for my - I can’t change the past.[135]

    [135] Transcript p 143.

    Psychological assessment

20. In a report dated 10 June 2019, Mr Chafic Awit, psychologist, provided an opinion in relation to the Applicant’s condition.  He found that the Applicant meets the criteria outlined in DSM-V for a diagnosis of Hypomanic Episode and Bipolar II disorder.[136]

    [136] Exhibit R1, G21, 138.

21. Mr Awit stated that in his view, ‘a psychological link between [the Applicant’s] condition and the [2016] offences… exists.’[137]  He noted that both the Applicant and the victim were heavily intoxicated at the time of the offences and the Applicant ‘acted in self-defense after being assaulted numerous times by [the victim].’  In his view:

    This level of intoxication combined with the hypomanic episode is likely to have impacted [the Applicant’s] decision-making ability, resulting in overreaction. As indicated by research, there is a strong correlation between Bipolar II Disorder and impaired decision-making… The ability of the sufferer to control the bombardment of racing thoughts is significantly diminished, and this can often impact their decision-making ability by leading to impulsive behaviours.[138]

    [137] Exhibit R1, G21, 139.

    [138] Exhibit R1, G21, 139

22. In relation to the Applicant’s risk of re-offending, Mr Awit stated:

    It is the professional opinion of the writer that [the Applicant] is at low risk of re-offending.  With ongoing treatment, [the Applicant’s] condition should improve considerably…[139]

    [139] Exhibit R1, G21, 140.

    Rehabilitation

23. In his sentencing remarks in October 2018, Judge Ingram SC considered that the Applicant had ‘good but guarded prospects of rehabilitation.’[140]  He continued:

    …[The Applicant] does have some experience with and some acumen with computers and that is a factor the Court has taken into account in terms of his prospects of rehabilitation and the Court also notes and accepts that it is clear from the testimonial material that he is highly regarded by many who know him and indeed that he is devout in relation to his own faith.  These are matters also the Court has taken into account in terms of the background of [the Applicant] and also his prospects of rehabilitation.[141]

    [140] Exhibit R1, G7, 49.

    [141] Exhibit R1, G7, 50.

24. The Applicant addressed his rehabilitation in his statement dated 14 October 2019 as follows:

    …I stand by my previous statements in regards to my character that I am indeed a better person on a good path on life compared to all what (sic) happened 13 years ago…

    As mentioned in previous statements I set out to ‘better myself’ and thus I did become reformed. Today I am normally a quiet and retiring person. I generally avoid being at the centre of attention… I’ve been living a healthy lifestyle and on a great path in life ever since the troublesome years prior to 200… I don’t go to clubs or pubs much at all. I do not find it entertaining or enjoyable these days…

    …I can say with confidence that I am a different and better person now than ever and I am also more mentally stable in general.

    I am not a vengeful person nor am I a violent or aggressive person like I was in the long distant past.  Nor am I a perfect person my judgment was indeed poor concerning the situation that was forced upon me in July 2016…

    …In the past I was the one who started trouble. I was also the aggressor in the past. Therefore I am again stating there is no relationship between these past events and the most current offences; no repeated pattern of behaviour…

    I no longer take drugs; it has been well over 12 years now.  I also do not abuse alcohol like I use (sic) to.  My alcohol consumption has always been less and less as I get older and has always been on the decline for over 20 years (since my football days came to an end).  Alcoholism was never a serious a problem as my (cocaine) drug abuse…[142]

    [142] Exhibit R1, G23, 163-174.

    Current psychiatric condition and medication

25. The Applicant told the Tribunal that his bipolar condition is stable.  His normal bipolar cycle is ‘four days hyper-manic, four days in between, and four days a little bit flat.’[143]  He told the Tribunal that he is not currently taking any medication,[144] but has been prescribed Seroquel, which he takes when needed (PRN).[145]  Since he has been in Villawood he has taken Seroquel on approximately 20 occasions.[146]

    [143] Transcript p 102.

    [144] Transcript p 61.

    [145] Transcript p 61.

    [146] Transcript p 102.

26. The Applicant told the Tribunal that he is currently ‘experiencing the full brunts of [his] highs and lows’ without medication, and his ‘moods are more sharper’ and his ‘highs are more sharper and lower’ so that ‘instead of a smooth bumpy ride, it’s a sharp bumpy roll’.[147]When he is taking lithium orotate, his cycle ‘smooths out’ – it is a ‘smooth bumpy ride compared to a rough bumpy ride.’  His general practitioner in Sydney, Dr Small, is aware that he is taking lithium orotate, and said that ‘he has heard that there’s lots of good reports about it.’[148]

    [147] Transcript p 61.

    [148] Transcript p 63.

27. The Applicant explained that when he is unable to obtain lithium orotate he is able to take lithium carbonate ‘as a back up’.[149]  A prescription is not necessary for lithium orotate, but one is required for lithium carbonate because it is more toxic and has an effect on the kidneys.  He told the Tribunal he has the choice of taking lithium carbonate at Villawood but he has chosen not to do so. Instead he is managing by adopting a good healthy lifestyle, that is, eating well, taking minerals and vitamins and drinking water.  When he becomes aware that he is not coping well, he has the option of taking Seroquel, which is rare.[150]  He also phones Mr Awit for a chat when he feels he needs some guidance or assistance.[151]

    [149] Transcript p 63.

    [150] Transcript p 62, 103.

    [151] Transcript p 94-95, 99, 103.

    Planned counselling and treatment

28. The Applicant told the Tribunal that if he were to return to the community he would re-establish an ongoing relationship with Mr Awit.[152]  He would start to see him ‘immediately’ and would do so on a fortnightly basis.  He also has a general practitioner who he will see for his blood pressure condition and for scripts for medication.[153]

    [152] Exhibit R1, G22, 157.

    [153] Transcript p108.

29. The Applicant said that he would recommence taking lithium orotate for his bipolar condition, and he would also obtain a script for lithium carbonate from his general practitioner.[154]

    [154] Transcript p108.

    Living arrangements and work

30. The Applicant told the Tribunal that if he is released he will live with a friend for a few weeks until he can establish himself.  Another option is that he goes to the Church’s monastery in Bombala for a period of time as ‘part of [his] own religious training and spiritual growth’.[155]  He wants to get his own place and would like to live in Strathfield again as it is on the train line to Gosford which is where his local parish is located.[156]

    [155] Transcript p119; Exhibit R1, G22, 156-157.

    [156] Transcript p118.

31. The Applicant wants to work in the IT industry and he has ‘two unfinished projects out there at the moment.’  Prior to going to gaol, he had been ‘headhunted’ by his lawyer’s IT person, Matthew Preston, to work with him on the web development side of his business, and they had an agreement that the Applicant could work after hours using his equipment and his bandwith to work on his unfinished projects.  He said that however him going to gaol had ‘thrown a spanner in the works’ and he has recently tried to contact Mr Preston but was unsuccessful.[157]

    [157] Transcript p 116.

    Membership of Russian Orthodox Church

32. The Applicant became involved with the Russian Orthodox Church Outside Russia (ROCOR) in 2014.  He converted to the Eastern Orthodox religion December 2016 and is a parishioner of West Gosford.  He is not a financial member of the Church parish but is an active member of the community.  He has assisted in the parish in the Church clean up days.  He attends social events and is involved in Church projects.  One of these projects is the Monastery project in Monkerai, NSW.  He volunteered his professional skills and started building the Monastery website.  He would like to again be available for IT jobs in projects on a voluntary basis within the Church community.[158]

    [158] Exhibit R1, G22, 155.

1. In his statement dated 31 August 2019, the Applicant stated that he fully intends to continue with his religious vocation.  He previously lived in Strathfield in Sydney so that he could attend his home Church parish in West Gosford by train.[159]  The Applicant has two religious sponsors (Godfathers), William Reid and Boris Levitski.  The Very Reverend James Carles is his spiritual father and has guided him since he was a catechumen (student) from 2014 to 2016.[160]

   [159] Exhibit R1, G22, 156.

   [160] Exhibit R1, G22, 154.

2. In his statement, the Applicant refers to one of the long-term objectives of the Monastery in Monkerai ‘is to help young men with issues surrounding mental health and issues alike.’  He states that this is ‘something I have a personal interest in and I do enjoy helping young men’ and ‘if I’m capable of contributing I will be keen to be involved.’[161]

   [161] Exhibit R1, G22, 156

   Other activities

3. In his statement dated 31 August 2019 and in his oral evidence, the Applicant described his involvement as a financial member of KRR-FM (Kandos Rylstone Community Radio).  He assisted in the rescue of KRR-FM from ‘technical disaster’ with his IT skills and also built the station’s website and did other voluntary IT work.  He hopes ‘to return to frequent this community again in the future.’[162]

   [162] Exhibit R1, G22, 155.

   Impediments on return

4. In his 31 August 2019 statement the Applicant outlined his concerns about returning to New Zealand:

   I fear the unknown just like anyone else does.  It is ‘most probable’ I will be grieve (sic) stricken if I return to New Zealand aged 50 with no prospects, no friends, with the shame of seeking out and facing long lost relatives plus the disconnection with the Australian family, friends and communities I am a part of.

   It is likely that I will again experience even more isolation than I did recently in Wellington Correctional Centre.  I will also most likely experience a deep sense of hopelessness and loss. Anxiety problems will be expected too, along with negative thoughts.[163]

   [163] Exhibit R1, G22, 159.

5. The Applicant also expressed his concerns that his mental health condition will deteriorate if he is returned to New Zealand:

   I will be facing some very real challenges if I return to New Zealand; there may indeed be a need for hospitalisation and a high probability hardship through mental health complications. Given my overall long battle with mental health and the continued regular mental pain I’m currently in already…[164]

   [164] Exhibit R1, G22, 161

   Family members in Australia and New Zealand

6. The Applicant’s son is aged 21 years and resides in Australia.  The Applicant told the Tribunal that he has not seen his son or been in contact with him for 10 years.[165]  He has been in contact with his wife and is making attempts at reconciling with her.  He told the Tribunal he sent her a letter at the end of 2015 or early 2016 ‘involving some humble apologies’ and explaining what had been going on in his life.  The letter was ‘well received’.[166]  Since he has been in Villawood he has been in contact with his former wife via text message and they had a ‘religious conversation’ and shared their views about what is going on in the world.[167]

   [165] Transcript p 114.

   [166] Transcript p 113.

   [167] Transcript p 114.

7. The Applicant’s adoptive father and mother both passed away in Australia.  His father died when he was on remand in 2007 and his mother died in March 2018.  The Applicant is the only surviving sibling and the executor of his mother’s will.  The Applicant explained to the Tribunal that his mother’s estate is still being finalised.  The other executor is his aunt, and she has died.  Her husband sold property to repay debts, and the Applicant claims he is entitled to a share of the sale of the property amounting to some $20,000 or $30,000.[168]  The Applicant states that he needs to remain in Australia to finalise ‘unfinished’ business in relation to his mother’s estate.[169]

   [168] Transcript p 120.

   [169] Exhibit R1, G12, 105.

8. The Applicant has a large extended family of 24 aunts/uncles and around 60 cousins, all of whom are Australian citizens, and he will be ‘greatly missed’.[170]  In New Zealand he has six cousins, one of whom he is contact with.  His biological mother lives in New Zealand in the countryside near Auckland.  He has known her since he was aged about 20 years, and he is in contact with her by phone.[171]  He also has two biological brothers, one of whom lives in Auckland and the other in Perth.  He has only met his brother in Perth twice in his life.  He gets along well with his brother in Auckland.[172]

   [170] Exhibit R1, G12, 105.

   [171] Transcript p 110.

   [172] Transcript p 110-111.

9. The only member of his family that he is in regular contact with in Australia is Auntie Cheryl.  His other family members are not aware he is in Villawood. He is the only member of his family who has ever been in prison and ‘that stigma’ is not something he is proud of.[173]

   [173] Transcript p 111.

   Statements in support

10. Friends and colleagues of the Applicant provided statements in support.  His godfathers, William Reid and Boris Levitski both provided statements dated 22 March 2019.  Mr Reid states that he has always found the Applicant ‘to be a decent honest fellow’ who is very competent in IT and has helped elderly parishioners with their computers and has been active in Church clean-ups and other Church activities.[174]  Mr Levitski states that the Applicant is ‘a great friend’ and he has given useful advice to his sons in the ‘management and operation of the company’s computers.’[175]

    [174] Exhibit R1, G16, 118.

    [175] Exhibit R1, G16, 121

11. Anne Nielsen, Parish Council Member, St Panteleimon Russian Orthodox Church, provided a letter dated 19 March 2019 in which she states she has known the Applicant for at least five years. She describes him as ‘a highly intelligent person and a good communicator’ and as ‘gifted’ in the field of IT, always ‘ready to assist anyone with their computer problems’, and is ‘patient and kind when assisting the elderly and less technical minded people.’[176]

    [176] Exhibit R1, G17, 122.

12. Daniel Allen provided a character reference dated 14 May 2019 in which he states he has known the Applicant for seven years and they met when they were both studying a Web Development Diploma at TAFE.  He worked with the Applicant for a period of 12 months freelancing on free projects for their personal web design portfolios.  He has been ‘a loyal and trustworthy and honest friend.’[177]  He states that in his opinion the Applicant ‘has been unfairly found to be guilty’ and he believes he ‘acted in a manner of self-defense and was left without any other option at the time of the offence.’  He was not ‘able to fund decent legal representation and he has suffered an injustice.’[178]

    [177] Exhibit R1, G18, 124.

    [178] Exhibit R1, G18, 125.

13. The Applicant provided the following additional references to the Tribunal from Parish Members of the St Panteleimon Russian Orthodox Church.  These references refer to the Applicant’s commitment to the Church community, his desire for self-improvement, his loyalty, honesty and trustworthiness, and his willingness to provide guidance to others including the homeless and those with substance abuse problems.

    ·Arthur Tane – friend of the Applicant for six years;

    ·William Reid – Applicant’s godfather;

    ·Anne Neilson – Parish Council Member;

    ·Daniel Allen  – close friend and business associate;

    ·Very Rev. Archpriest James Carles – rector of the parish of St Panteleimon;

    ·Glenda Davidson – friend of the Applicant’s mother

    ·Kane Ladner – the Applicant assisted him when he was homeless and had substance abuse issues and helped him to get back on track.

    EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION

    Does the Applicant pass the character test?

14. The Applicant did not dispute the Respondent’s contention that he does not pass the character test. The evidence before the Tribunal is that on 4 October 2018, the Applicant was convicted of two offences and sentenced to a term of imprisonment greater than 12 months. As such, the Tribunal is satisfied that the Applicant does not pass the character test prescribed in section 501(6)(a) of the Act, as he has ‘a substantial criminal record’ as defined in section 501(7)(c). The Tribunal is also satisfied, for the purposes of section 501(3A)(b) of the Act, that the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the state of New South Wales.

15. For these reasons, the Applicant cannot rely on section 501CA(4)(b)(i) for revocation of the Mandatory Visa Cancellation Decision.

    Is there ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked?

16. In determining whether there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, the Tribunal must take into account the considerations in Part C of the Direction, informed by the Principles in paragraph 6.3.

    PRIMARY CONSIDERATIONS

    Primary Consideration A – Protection of the Australian community

17. Primary Consideration A of Part C of the Direction is the Protection of the Australian Community. Paragraph 13.1(1) of the Direction provides:

    (1)  When considering protection of the Australian community, decision­makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non­citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.

18. Paragraph 13.1(2) directs that decision-makers should also 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.

19. Paragraph 13.1.1(1) sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:

    (a)  The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    (b)  The principle that crimes of a violent nature against women or children are viewed very seriously regardless of the sentence imposed;

    (c)   The principle that 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, are serious;

    (d)  Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    (e)  The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;

    (f)    The cumulative effect of repeated offending;

    (g)  …

    (h)  Whether the non-citizen has re-offended 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);

    (i) …

    (a) Nature and seriousness of the Applicant’s conduct to date

20. As required by paragraph 13.1(2)(a) of the Direction, the Tribunal finds that the Applicant’s criminal offending in 2003 and 2007 was very serious, and his offences nine years later in 2016 were also serious. 

21. Having regard to the factors in paragraph 13.1.1(1)(a) and (b) of the Direction, the Tribunal notes that the Applicant’s criminal behaviour in 2003 and 2007 included domestic violence offences, and offences of dishonesty, arson and damage to property.  In March 2003 the Applicant breached an Apprehended Violence Order and assaulted his former wife in the presence of their four year old son.  The Applicant phoned his former wife late in the evening and told her to come to his house to collect their son.  When she arrived, he met her at the door and approached her from behind and struck her on the head twice with the shovel, and then hit her in the back and grabbed her hair.  The Applicant’s former wife sustained a large cut to her head, requiring stiches.  The Applicant claims he was suffering the after effects of cocaine use, and was tired and agitated at the time of this offence.  This agitation was in part due to disagreements with his wife, but it was a ‘two-way street’ as she had done things to annoy him and fuel his irritability. He now acknowledges that he acted aggressively and disrespectfully towards his former wife and he is ‘deeply ashamed’ of his actions.

22. Just hours after the assault, the Applicant went to his workplace at the Rose Bay RSL and used his keys to enter the premises and his PIN to deactivate the alarm, and then unlocked the vault and removed more than $40,000 in cash which he spent over a two week period in Brisbane on gambling, drugs and alcohol.  When the Applicant returned from Brisbane in early April 2003 he became angry after seeing that his landlord had removed all his belongings from his house.  His response was to break into the house, pour petrol in the lounge and set it alight.  The Applicant claims that before setting fire to the house he did check the adjoining property to ensure that the neighbours were not present. He claims that he ‘snapped’ as a result of work pressures and problems in his marriage, however he concedes that he ‘acted without thinking’.  He attributes his actions largely to his mental health condition and being on the wrong medication.

23. The Applicant’s 2007 offences also were in the context of domestic violence and had the potential to cause serious harm if not death to his former wife and son and the residents in close proximity to his former wife’s house. Judge McGuire found that the series of threatening text messages sent by the Applicant to his former wife over a period of five days leading up to the offences were intended to ‘raise fear’ in her by ‘the threat of consequences if she did not comply with his demands’.[179]  The Judge found that his actions were ‘calculated and deliberate’ and those of a person ‘in full control’ of his actions.  The Applicant concedes that he intended to cause his former wife to fear harm when he sent her the threatening messages. 

    [179] Exhibit R1, G8, 58

24. The Tribunal has previously recognised the psychological harm that may be inflicted as a result of violence directed towards women in a domestic context. In XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 (‘XFKR’), the Tribunal observed (at [45]):

    The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.

25. When the Applicant arrived at his former wife’s residence, he set the property alight without checking whether the other units in the three-storey block were occupied.  After the fire started, there were 10 residents who had to be alerted and evacuated from the block.[180]  The Applicant concedes that his actions were ‘careless’ or without regard to their consequences. The Applicant’s actions were reckless and showed a disregard for the potential harm they could cause.  Such harm included the physical injuries he could have caused to residents of the block, and the psychological harm his actions would inflict on his former wife and son.  This potential for serious harm to members of the public was noted by Judge McGuire in his sentencing remarks:

    The offender not only caused substantial damage by his deliberate creation of a fire, he potentially placed at risk members of the public who might have been in the building or vicinity.  He is of course not being sentenced for that.  However, it is a matter which adds to the objective gravity of his conduct.[181]

    [180] Transcript p 124.

    [181] Exhibit R1, G8, 59.

26. The Applicant claims that this offence was a consequence of a period of ‘temporary insanity’ resulting from a psychotic episode, which was the result of his then undiagnosed bipolar condition and the wrong medication.  However, Judge McGuire was not persuaded that there was any nexus between the Applicant’s criminal conduct and his psychiatric condition.

27. On the basis of the evidence before it, and having regard to the factors in paragraph 13.1.1(1)(a) and (b) of the Direction, the Tribunal finds that the Applicant’s criminal offending in 2003 and 2007 was very serious.  His offences were of a violent nature directed against his former wife, and done in the presence of their young child, and should therefore be viewed very seriously regardless of the sentence imposed. 

28. The Applicant’s 2016 offences were of a violent nature, and resulted in the victim receiving significant injuries, including a collapsed lung, requiring surgical intervention. Although Judge Ingram SC of the Dubbo District Court found that the Applicant's offences were ‘committed in the face of provocation by the victim’, his violent conduct was disproportionate to such provocation and was reckless to the harm that would be caused by his actions. Judge Ingram SC found, ‘the objective seriousness of both offences is significant’, and the victim’s injuries, in particular his collapsed lung, were at the ‘margin with the lower and middle range of seriousness of injuries’.[182] The Tribunal accepts that these offences, unlike those in 2003 and 2007, were not planned, and were a response to provocation from the victim.  However, the offences involved, by the Applicant’s own admission, ‘a high level of violence’, and when he struck the victim with the wine bottle the Applicant intended to ‘take him down’.

    [182] Exhibit R1, G7, 43.

29. On the basis of the evidence before it, and having regard to the factors in paragraph 13.1.1(1)(a), the Tribunal finds that the Applicant’s 2016 offences were of a violent nature and should be viewed seriously.

30. The Tribunal has had regard to the sentences imposed by the courts as provided in paragraph 13.1.1(1)(d) of the Direction.  The Applicant received a term of imprisonment of 12 months for his 2016 offences and a term of three years and eight months for his 2007 offences. Whereas these sentences are not at the higher end of the sentencing range, they do not detract from the serious nature of the Applicant’s criminal offending.  The custodial sentences imposed on the Applicant by the courts are an objective indicator of the seriousness of his criminal offending. Sentences involving terms of imprisonment are a last resort in the sentencing hierarchy, which reflects the objective seriousness of the offences involved: Pavey and Minister for Home Affairs [2019] AATA 4198 at [44]; PNLB v Minister for Immigration and Border Protection [2018] AATA 162 at [22] and Saleh v Minister for Immigration and Border Protection (Migration) [2017] AATA 367 at [50].

1. Having regard to the expectations of the Australian community as stated in paragraph 13.3(1) of the Direction, the Applicant has breached numerous Australian laws and has been convicted of a number of offences in Australia.

2. The Principles contained in paragraph 6.3 of the Direction are relevant to this primary consideration.  Principle 1 recognises that the right of a non-citizen to remain in Australia is a privilege conferred in the expectation that he or she will be law-abiding, will respect important institutions and will not cause or threaten harm to individuals or the Australian community. Principle 2 recognises that it is the expectation of the Australian community that a visa should be cancelled if the holder commits serious crimes.  Principle 3 recognises that a non-citizen who has committed a serious crime, including of a violent nature, and particularly against women or children, should generally forfeit the privilege of staying in Australia.

3. The Applicant’s offences include serious offences involving violence against his former wife and in the presence of their child.  The expectations of the Australian community, as informed by Principles 1, 2 and 3 of the Direction, are that the Applicant’s serious and violent criminal offending should result in him forfeiting the privilege of remaining in Australia, and therefore do not support the exercise of the discretion to revoke the Mandatory Visa Cancellation Decision.

4. The Tribunal has been informed by Principles 5 and 7 in determining the expectations of the Australian community.  Principle 5 provides that a higher degree of tolerance of criminal conduct may be afforded to a non-citizen who has lived in the Australian community for most of their life.  Principle 7 requires consideration of the length of time a non-citizen has been making a positive contribution to the Australian community, as well as the consequences of a visa cancellation for minor children and other immediate family members in Australia.

5. The Applicant migrated permanently to Australia in 2000 with his then wife and child.  Prior to this, between the years 1996-1990, he lived and worked in Australia before returning to New Zealand for a decade.  The Applicant has therefore lived in the Australian community for more than twenty years of his life.  As he is now aged 50, the Tribunal finds that the Applicant has spent the vast majority of his adult life resident in Australia.  The length of time the Applicant has resided in Australia is a factor that would cause the Australian community to have a higher degree of tolerance for his criminal offending that it would for a non-citizen who has lived in Australia for a much shorter period of time.  Also relevant is the contributions the Applicant has made to the economy and more broadly to the community during his residency in Australia.  The Applicant worked as an operations manager at the Rose Bay RSL between 2001 and 2003 and, after obtaining qualifications in IT and web design, he ran a business with his business partner between 2011 and 2016.  The Applicant has therefore contributed to the Australian economy and paid taxes, both of which are positive contributions and are relevant to the Australian community’s expectations.  He has also been actively involved in his Church parish, including providing parishioners with IT support and advice, and he has contributed financially and given technical assistance to KRR-FM.

6. Also relevant to determining the expectations of the Australian community are the consequences of the non-revocation of the cancellation decision on the Applicant’s family members in Australia.  The evidence before the Tribunal is that the Applicant has very few family members in Australia with whom he has a close relationship.  His parents are both deceased and he has very limited contact with his biological brother who resides in Perth.  He is estranged from his son and has not been in contact with him for more than ten years.  There is no evidence that there are any real prospects of the Applicant and his son re-establishing their relationship or reconnecting and having regular ongoing contact.  While the Applicant claims that he is taking steps to reconcile with his former wife and that they are now in contact, there is no evidence before the Tribunal as to how she will be impacted by his removal from Australia.  Neither the Applicant’s former wife or indeed any family member provided a statement or any other evidence in support of the Applicant to either the Department or the Tribunal.  The Applicant claims to have a close relationship with his Auntie Cheryl who has provided him with support during his incarceration.  There is, however, no evidence before the Tribunal as to the effect on her of the Applicant’s removal to New Zealand.

7. On the basis of the evidence before it, the Tribunal finds that the Australian community would have greater tolerance for the Applicant’s criminal offending by virtue of the fact he has resided in Australia for most of his adult life, and has made positive contributions to the Australian economy and community during his two decades as a resident in Australia.  However the lack of evidence before the Tribunal of any detrimental impact or hardship caused to any of the Applicant’s family members, including his son and biological brother, by his removal to New Zealand is a factor that weighs against the exercise of the discretion to revoke the cancellation decision.

8. Having had regard to the Government’s views in relation to the expectations of the Australian community and giving them appropriate weight, and taking into account other factors relevant to the Applicant’s circumstances, the Tribunal finds that Primary Consideration C, on balance, weighs against revocation of the Mandatory Visa Cancellation Decision.

   OTHER CONSIDERATIONS

9. While the three primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that ‘other considerations’ must be taken into account by the decision-maker where relevant.

10. The Tribunal notes that these considerations are ‘other’ considerations, as opposed to ‘secondary’ considerations. As Colvin J observed in Suleiman v Minister for Immigration and Border Protection[2018] FCA 594at [23]:

    ... Direction 65 [now Direction 79] 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.

    International non-refoulement obligations

11. There is no evidence before the Tribunal that the Applicant engages Australia’s international non-refoulement obligations and therefore this other consideration is of neutral impact.

    Strength, nature and duration of ties

12. Paragraph 14.2(1) of the Direction states:

    (1)  Reflecting the principles at 6.3, decision-makers must have regard to:

    (a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:

    (i)     less weight should be given where the non-citizen began offending soon after arriving in Australia; and

    (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

    (b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

13. Having regard to the factors in paragraph 14.2(1)(a), the Applicant has resided in Australia for two decades, having migrated here in 2000 with his family.  As he has lived in Australia for much of his adult life, many of the Applicant’s family members and most of his social links are in this country.  Having regard to paragraph 14.2(1)(a)(i) the Applicant committed his first offences in March 2003, approximately 28 months after arriving in Australia. These offences were preceded by the issuing against him of an Apprehended Violence Order in September 2002 that indicates that he was engaged in actual or threatened violence against his former wife just two years after migrating to Australia.

14. Having regard to the considerations in paragraph 14.2(1)(b), the evidence demonstrates that the Applicant has some family ties to Australia.  As outlined above, the Applicant has an Australian citizen son with whom he has no contact.  Although he claims to be attempting to reconcile with his ex-wife and his son, the Applicant has not provided any evidence of his attempts to do so.

15. The Applicant also claims to have 24 aunts and uncles and approximately 60 cousins living in Australia.  However he has provided limited evidence of his relationship with them, other than saying that he is still in ‘regular contact’ with his aunt Cheryl Johnstone, and that he keeps in touch with his cousins in Australia ‘from time to time’.[192]  The Applicant’s adoptive parents and siblings are all deceased, and he is not in contact with his biological brother in Australia.  The Applicant is the sole surviving executor of his mother’s estate and has ‘unfinished family matters pertaining to the estate’.[193]  There is no evidence as to why finalisation of these matters requires the Applicant’s physical presence in Australia.

    [192] Exhibit R1, G22, 153-4.

    [193] Exhibit R1, G22, 153.

16. The Applicant provided character references from members of the ROCOR community and friends and associates. The references provide evidence in relation to the Applicant's involvement in the ROCOR community, his IT skills, his loyalty and honesty, and his willingness to help people. However most of the references do not refer in any detail to the nature and seriousness of the Applicant’s criminal offending, and therefore the Tribunal has afforded them limited weight.  The Tribunal however accepts that the Applicant has close social ties with many of the parishioners in the ROCOR community, including his two godfathers and spiritual father, all of whom will be disappointed and may experience hardship due to the Applicant being unable to maintain his close physical and spiritual connection to them and the ROCOR community.

17. On the basis of the evidence before it and having regard to the factors in paragraph 14.2(1), the Tribunal finds that this consideration, on balance, weighs in favour of revocation of the Mandatory Visa Cancellation Decision.

    Impact on Australian business interests

18. Paragraph 14.3(1) of the Direction states:

    (1)  Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

19. The Applicant’s employment in Australia has been working as an operations manager and in the IT industry. There is no evidence of a relevant ‘employment link’, and the Applicant does not claim that any Australian business interests would be affected by his removal to New Zealand.

    Impact on victims

20. Paragraph 14.4(1) of the Direction states:

    (1)  Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.

21. There is no evidence before the Tribunal on the impact of the non-revocation of the cancellation decision on the Applicant’s victims.

    Extent of impediments if removed from Australia

22. The Direction states in paragraph 14.5(1) that:

    (1)  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.

23. Having regard to the considerations in paragraph 14.5(1)(a), the Tribunal notes that the Applicant is aged 50 years and suffers from Bipolar II disorder.  The Applicant’s condition is stable as he manages his lifestyle and medication to ensure that his symptoms are under control.  His preferred medication is lithium orotate, which he imports from the United States and he can take lithium carbonate which is available on prescription if he is unable to obtain or afford lithum orotate.  There is no evidence before the Tribunal that lithium carbonate is not available on prescription in New Zealand or that lithium orotate cannot be imported into New Zealand.

24. The Applicant will face some difficulty in re-establishing himself in New Zealand.  He will need to find a general practitioner who can prescribe his medications, including for his high blood pressure, and also will need a mental health practitioner who can provide him with regular care and treatment for his bipolar disorder. The Applicant’s evidence is that there is a ‘high probability of suicide ideation’ if he is not prescribed the correct medication particularly when combined with ‘grief, isolation, hopelessness, lowered self-esteem, anxiety and depression’.[194]  He also has expressed concerns that his condition may be misdiagnosed in New Zealand. There is no evidence before the Tribunal that the Applicant would be unable to access psychiatric services in New Zealand of the same standard as those in Australia. The Applicant himself acknowledges this in his statement, noting that ‘New Zealand is indeed a safe and well established country, equipped to deal with my health needs’.[195]

    [194] Exhibit R1, G22, 160.

    [195] Exhibit R1, G22, 159.

25. The Applicant has a very good relationship with his current psychologist, Mr Awit, with whom he has been in regular phone contact during his incarceration. There is no evidence before the Tribunal that the Applicant will not be able to continue to seek Mr Awit’s advice if he returns to New Zealand, or that Mr Awit would be unable to speak to and/or provide necessary information to the Applicant’s new psychologist and/or psychiatrist.

26. Having regard to paragraph 14.5(1)(b), the Applicant will not face any language or cultural barriers on his return to New Zealand, the country where he grew up and completed his schooling and spent nearly three decades of his life.  He is likely to maintain the same standards of living as in Australia as there is no evidence he will be unable to access the same social, medical and economic support as other citizens of New Zealand.  These supports include welfare benefits including disability support pension,[196] the disability allowance,[197] and the New Zealand Job Seeker support.[198] In addition, the Applicant will be eligible for publicly funded health services in New Zealand,[199] including mental health services.[200]

    [196] Exhibit R2, S29, 92.

    [197] Exhibit R2, S30, 108.

    [198] Exhibit R2, S31, 114.

    [199] Exhibit R2, S32, 118-119.

    [200] Exhibit R2, S33, 127; S34, 129.

27. Having regard to paragraph 14.5(1)(c) of the Direction, the Tribunal notes that the Applicant will have access to the available economic and employment opportunities in New Zealand, which are very similar to those in Australia.  The Applicant is a skilled IT/web design specialist with five years business experience in the field, and should be able to find paid employment in the IT industry in one of the big cities in New Zealand.  His biological mother and brother live close to Auckland and may be able to provide him with emotional if not financial support while he finds suitable accommodation and paid employment in the IT industry. It may however take time for the Applicant to find similar employment to that which was offered to him in Sydney before he went to gaol, as there may not be as many opportunities available in the New Zealand IT industry.  However, the Applicant has run a small business in the past and has the option of doing so again if he is unable to find work with an established organisation.

28. On the basis of the evidence before it, the Tribunal finds that, on his return to New Zealand the Applicant will face hardship, particularly financial and emotional stress, while he finds suitable accommodation and accesses available welfare and health services, particularly for his psychiatric illness.

29. Having considered the factors in paragraph 14.5(1) of the Direction, the Tribunal finds that this consideration weighs in favour of the revocation of the Mandatory Visa Cancellation Decision.

    CONCLUSION

30. In summary, the Tribunal finds that Primary Consideration A on balance weighs against revocation of the Mandatory Visa Cancellation Decision. The nature and seriousness of the Applicant’s offences are such that, despite the low risk of him committing future offences, the protection of the Australian community supports the non-revocation of the Mandatory Visa Cancellation Decision.

31. Primary Consideration C on balance weighs against revocation of the Mandatory Visa Cancellation Decision as the expectations of the Australian community are that the Applicant’s serious offending should cause him to forfeit the privilege of remaining in Australia. The duration of his residence in Australia and his positive contributions to the economy and the community, and the impact of his removal on members of his Church community, are factors that would increase the Australian community’s tolerance for the Applicant’s offending, however not to the extent that its expectation would be that his visa be reinstated.

32. In regard to the relevant other considerations, only the strength, nature and duration of the Applicant’s ties to Australia and impediments on return weigh in favour of revocation of the Mandatory Visa Cancellation Decision.

33. The Tribunal is not satisfied that there is ‘another reason’ why the Mandatory Visa Cancellation Decision should be revoked, and therefore the decision to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

    DECISION

    The Reviewable Decision dated 24 January 2020 to refuse to revoke the Mandatory Visa Cancellation Decision is affirmed.

I certify that the preceding 189 (one hundred and eighty-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member L Kirk

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

Associate

Dated: 21 April 2020

Date(s) of hearing:	8 and 9 April 2020
Applicant:	By video
Solicitors for the Respondent:	Mr H McLaurin, Minter Ellison