Jones and Minister for Immigration and Border Protection (Migration)

[2018] AATA 346

Jones and Minister for Immigration and Border Protection (Migration) [2018] AATA 346 (1 March 2018)

Division:GENERAL DIVISION

File Number(s):      2017/7345

Re:Heddwyn Alaw Jones

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:1 March 2018

Place:Melbourne

The Tribunal affirms the decision under review.

........................................................................

Senior Member D. J. Morris

MIGRATION – request for revocation of mandatory cancellation of Applicant’s visa – Applicant has substantial criminal record and does not pass character test – discretion to revoke mandatory cancellation – primary considerations – protection of the Australian community from criminal or other serious conduct – best interest of minor children in Australia – expectations of Australian community – other considerations – decision under review affirmed

Legislation

Migration Act 1958, ss 499, 500, 501, 501CA

Migration Regulations 1994, reg 2.52

Cases

Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337
Jones v The Queen [2018] VSCA 11
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385

Re Jupp v Minister for Immigration and Multicultural Affairs [2002] AATA 458

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under Section 499 – Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA

REASONS FOR DECISION

Senior Member D. J. Morris

1 March 2018

1. Mr Heddwyn Jones, the Applicant in this matter, is 43 years of age.  He was born in the United Kingdom in 1974.  Mr Jones arrived in Australia as the holder of a Working Holiday visa in April 2001.  In August 2005 he was granted a Class BS Subclass 801 Partner (Permanent) visa.

2. On 28 February 2017 a delegate of the Minister for Immigration and Border Protection (the Respondent) made a decision to refuse to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4) of the Migration Act 1958 (the Act).  It is this decision that Mr Jones has asked the Tribunal to review.

3. The Respondent contended that Mr Jones has a ‘substantial criminal record’ under section 501(6)(a) of the Act. The Applicant conceded that the Applicant does not pass the character test set out in the Act.

4. The hearing was held on 20 and 23 February 2018.  The Applicant was represented by Mr James Forsaith, of counsel.  The Respondent was represented by Mr Tal Aviram of Clayton Utz.  Mr Jones gave evidence by video-link and was cross-examined. 

5. The Respondent tendered a volume of documents tendered under section 501 of the Act (GD) and a volume of supplementary documents (SGD), which were taken into evidence.  The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant and the Respondent.  Other documents were also admitted into evidence.

   Issues and legislation

6. Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of the visa if Mr Jones made representations within the relevant time period provided for in the Migration Regulations 1994 (28 days in accordance with reg 2.52) and the Tribunal determines that the Applicant passes the “character test”, or, as provided for under subsection 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked.

7. The Respondent submitted that Mr Jones did make representations within the relevant period. On 27 February 2017 the Respondent wrote to Mr Jones (G5, p 22) saying that on 2 February 2017 he was notified of a decision to cancel his visa under section 501(3A) of the Act. The letter confirmed that, in response to an invitation, the Applicant had made representations about revocation of the cancellation decision, which would be considered.

8. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:

   (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)…

   …; 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.

9. Before the Tribunal was a National Police Certificate dated 23 June 2017 (G2, p 19) which recorded that the Applicant had appeared before Melbourne County Court on 21 October 2016 charged with the offence of recklessly causing serious injury.  At G2, p 21 were the Reasons of Sentence of His Honour Judge Allen dated 26 October 2016 in which Mr Jones was sentenced, at [49] of His Honour’s reasons, to a prison term of three years with a fixed non-parole period of two years.

10. Section 501(6)(a) of the Act states that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

11. Section 501CA then relevantly provides that:

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

    …

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

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

    (b)the Minister is satisfied:

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

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

12. Subsection 501(6) sets out the grounds for failing the character test.  It states, in part:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)The person has a substantial criminal record (as defined by subsection (7); or…

13. Subsection 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:

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

    …

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

14. The National Police Certificate set out the offences in the name of the Applicant.

COURT	COURT DATE	OFFENCE	COURT RESULT
Melbourne Magistrates Court	10 Apr 2017	Resist police officer Hinder emergency worker on duty Drunk in a public place	Aggregate 1 month imprisonment. Concurrent. effective total state term imposed is 1 month. Proven and dismissed under section 76 of Sentencing Act
Melbourne County Court	21 Oct 2016	Recklessly cause serious injury	3 years imprisonment
Melbourne Magistrates Court	4 Feb 2016	Contravene a conduct condition of Bail Granted (3 charges) Fail to answer Bail granted	With conviction, fined an aggregate of $1000 with $117 statutory costs.
Melbourne Magistrates Court	12 Sep 2014	Recklessly cause injury	With conviction, fined an aggregate of $1250
Melbourne Magistrates Court	12 Sep 2014	Unlawful assault	With conviction, fined an aggregate of $1250. To pay compensation $350
Dandenong Magistrates Court	15 Aug 2012	Drunk in a public place	Without conviction, adjourned to 15/02/2013
Dandenong Magistrates Court	28 Feb 2011	Recklessly cause injury	Without conviction, a community based order for 12 months
Dandenong Magistrates Court	05 Oct 2010	Recklessly cause injury Resist police Drunk in a public place	Without conviction community based order for 12 months Convicted and fined $50
Broadmeadows Magistrates Court	26 Feb 2007	Drunk in a public place	Convicted and discharged

1. It was conceded by counsel for the Applicant that Mr Jones fails the character test because he has a substantial criminal record as defined in the Act. The Tribunal finds that the Applicant fails the character test by virtue of this substantial criminal record.

2. The sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked.  Relevantly, North ACJ stated in Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 337 at 345:

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

   Direction No. 65

3. Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014 the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014. 

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

   6.1Objectives

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

   …

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

5. Relevantly, the Direction includes the following principles:

   (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 vulnerable members of the community such as minors, 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 a 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.

6. In the case of deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into primary considerations and other considerations.

7. The primary considerations in Part C are set out in paragraph 13(2):

   ·   Protection of the Australian community;

   ·   The best interests of minor children in Australia affected by the decision; and

   ·   Expectations of the Australian community.

8. Other considerations set out in paragraph 14(1) of the Direction are: International non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims; and extent of impediments if removed.

9. The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paras 8(4) and 8(5)).

   Applicant’s contentions

10. Mr Forsaith set out the childhood and upbringing of the Applicant.  Mr Jones was born on the Island of Anglesey, in North Wales.  He grew up on a farm.  The Tribunal was told that his father lost his business owing to the economic downturn in the 1970s and became an alcoholic, who was violent to his wife.  It was contended that, as a young child, the Applicant was sexually assaulted by a cowhand on the farm who also babysat the Applicant.  The Applicant’s mother reported this assault to local police, but it was not acted upon.  Mr Jones said the abuse stopped when his mother left his father and the Applicant moved to live with his grandmother in another part of Wales.  When he was 14, the Applicant’s mother moved to England where she subsequently remarried.  Mr Jones said his stepfather was much older than his mother and that he meant well but didn’t like his stepson around the house.  He said that he was kicked out of his home when he was around 16 or 17, studying for his ‘A’ level examinations.  Mr Jones said he enrolled in the University of Wales but did not finish his course.

11. In 2001 Mr Jones migrated to Australia with his then de facto partner.  He said that, initially, things went well.  His partner obtained a job with a Melbourne newspaper and the Applicant finished his degree, graduating in 2005 with a Bachelor in Computer Science degree from Monash University.  He obtained employment as a programmer.  In 2007 the relationship went sour and ended.  Mr Jones said that he has had no contact with his former partner since that time and does not know her whereabouts or whether, indeed, she remained in Australia.

12. After the relationship break-up, circumstances declined for Mr Jones.  He lost a job he had and found himself living in a boarding house in Endeavour Hills with some 30 other residents, most of them males.  He said that this was a difficult place to live with frequent arguments between residents, with many either suffering mental illness or taking drugs, or both.  The Applicant’s Statement of Facts, Issues and Contentions says that the Applicant ‘sank into alcohol abuse and became itinerant.’

    The Applicant’s evidence

13. In evidence Mr Jones acknowledged that he had committed three offences in the space of eight months.  He told the Tribunal about an offence in January 2015 where he resisted police and assaulted a police officer.  This matter did not get to court until April 2017 because the police officer concerned had been working interstate.  Mr Jones admitted he had grappled with problems with alcohol and believed he was ‘self-medicating’ at the time.  He told the Tribunal that he had been diagnosed with renal cancer (now in remission) and dealt with the pain, in part, by drinking to excess.  The Applicant was read an extract from the sentencing remarks of His Honour Judge Allan (G2, p 29):

    …There were difficulties in your relationship and that relationship eventually folded in about 2007.  You reacted badly to that.  In effect, your life collapsed.  You relapsed into serious alcoholic abuse.  You became homeless and unemployed.  You fell so deeply into the pit that, at one stage, you resorted to drinking methylated spirits.

    Mr Jones agreed that His Honour’s remarks were an accurate depiction of his circumstances at that time.

14. Mr Jones gave evidence about the events in April 2015 which led up to his being charged with, and pleading guilty, to the offence of recklessly causing serious injury.  Before the Tribunal was a large number of documents, including various written submissions by the Applicant contesting certain aspects of the circumstances in relation to this crime, as well as the police report and the Judge’s sentencing remarks.  Mr Forsaith submitted that the Applicant was desperate to stay in Australia and some of his assertions about the events should be viewed through that lens, as he was aware that a term of imprisonment could result in him being deported.

15. What was not in contention was that the Applicant went to visit a man known to him (called in these reasons ‘RM’) at his home one evening in mid-April 2015, taking with him some alcohol and cigarettes.

16. At the hearing, the Applicant said he took full responsibility for what subsequently happened.  He conceded that the Judge’s remarks, at paragraphs [10-11] (G2, p 23) were accurate:

    10.During the course of this shocking protracted attack upon your victim, you continually punched him, you kicked him to the body and head over a period, he believes, of about 15 minutes.  When he attempted to crawl away from you at one stage you grabbed him by the hair, dragged him back and threw him back on the floor, again punching and kicking him to the body and head.  He eventually crawled away from you and into his bedroom.  You entered his bedroom and tipped a bucket of water on him, telling him that what had happened was his fault and it was then that you told him, “How dare you take my sexuality from me”.

    11.The complainant woke the next morning to the sound of knocking at the front door.  He says he crawled from his bed, attempting to get to the front door.  When he entered the lounge room he saw you asleep on the sofa.  You woke and again punched him to the back of the head and told him not to go near the door.  You went out into the backyard to urinate on the lawn.  He took the opportunity to escape.  He got out the front of his premises and tried to get help, unsuccessfully, from a neighbour.  Another neighbour then observed him sitting in the middle of the road in his underwear, crying out “Help me”.  According to the neighbour he could see that his face was swollen, bloodied and bruised, his arms and legs were slumped forward and he was swaying, struggling to remain upright.  By now you were there, according to this neighbour, standing over him and you kicked him again to the chest.  It is difficult, isn’t it, to exaggerate the ugliness of the brutality that you perpetrated upon this victim.

17. When questioned by his counsel about how the fact that the Applicant’s own later summaries of what had occurred differed from the Court account, Mr Jones said “there were variations”.  He said he did not have a good memory of what transpired that night.

18. When asked what concerns him about the prospect of being deported back to the United Kingdom, Mr Jones said there was nothing for him there.  He said returning will invoke traumatic childhood memories and that his wish not to go back was a “significant factor” in his plea of guilty at the County Court.  Mr Jones said that he had acted “purely in self-defence”; but he could not remember, now, what was real and what was not real about the events of that evening.

1. Mr Jones told the Tribunal about a letter of apology he had written to RM.  Judge Allen referred to this letter as heartfelt and evidence of deep remorse on the part of the Applicant.  As a consequence, His Honour said he would impose not only a discount because of Mr Jones’ guilty plea, but also a “significant discount” because the Judge accepted that Mr Jones was remorseful and had a genuine desire to rehabilitate himself.

2. In response to questions from the Respondent, Mr Jones told the Tribunal that his appeal against his conviction and sentence had subsequently been heard and had been dismissed.  He said that he had mounted the appeal because of what he believed were ‘point of law’ grounds relating to what is reasonable self-defence.  When pressed by Mr Aviram, the Applicant accepted that he did not, in fact, act in self-defence but said he lodged the appeal because he was “doing everything possible to stay in Australia.”

3. Mr Jones said that it was fair to say that he has been a violent and angry person while intoxicated.  He said he has sometimes taken the law into his own hands, but he was getting better at controlling his anger.  The Applicant said he had now been sober for over two years and he had engaged with Alcoholics Anonymous in prison and with The Grow Organisation and intended to continue this engagement on release, if allowed to remain in Australia.

4. Mr Jones said that his mother had sent him some funds as a loan which he had put towards legal representation in terms of this review and the remainder of which he would put towards the deposit on a flat.

   Primary consideration: Protection of the Australian community (13.1)

5. The Direction sets out that the Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

   The nature and seriousness of the conduct (13.1.1)

6. The Tribunal noted the criminal history set out on the National Police Certificate.  Mr Forsaith submitted that this did not show a pattern of escalating criminal conduct, that the first offence took place when Mr Jones was homeless and the second two when he was in a boarding house.  There was then a gap of over three years when Mr Jones had attempted to improve things for himself; he continued to drink but no violence was committed.  Mr Forsaith submitted that the serious injury offence against RM was an “outlier”.  He said that the assault on RM was triggered by alcohol but was different because the Applicant and the victim knew each other and Judge Allen had accepted that, for whatever reason, Mr Jones had a belief at the time that “something had happened” which triggered the assault.  Mr Forsaith said that the Applicant accepted that his reaction to whatever occurred was disproportionate and unacceptable.  Mr Forsaith said that at no time did Mr Jones attempt to conceal from the Tribunal the seriousness of what he did.

7. The Tribunal accepts that a number of the offences for which Mr Jones has been convicted for being drunk in a public place are at the lower end of seriousness.  The Applicant evidently had a major alcohol problem, as outlined by Judge Allen in his sentencing remarks.

8. As to whether the attack was disproportionate, the Tribunal notes from the court transcript that, after his arrest in April 2015, Mr Jones was examined by a forensic medical officer.  He was found to have suffered a number of abrasions and bruises and swelling of the hand which the medical officer described as “relatively recent and of minor severity”.

9. The injuries to RM were, as His Honour said, in stark contrast extremely serious.  RM had multiple abrasions; bruising and swelling to his face, neck and torso; fracture to his ankle with joint deformity; fracture of the right eye-socket; fracture to the nasal bones involving fragment displacement; fracture of the elbow.  In this respect, RM had three weeks earlier sustained an unrelated arm fracture earlier for which he had had an operation; the assault reopened the closed wound, causing infection.  RM also suffered bleeding around the brain on the left frontal area with blood tracking between the two hemispheres.  Judge Allen said as a result of the brain trauma, RM has suffered at least one epileptic seizure, has been placed on anti-epileptic medication and had been told by his doctors not to drive for at least a year.  RM has developed post-traumatic stress disorder and scarred airways involving infection causing difficulty in breathing.

10. A signal sign of how serious was the Applicant’s assault on RM was that Judge Allen said (G2, p 26):

    Since the assault, he has been admitted to public hospitals on 28 occasions to undergo ongoing treatment and assessment.  He has been admitted to a psychiatric ward for assessment and treatment for his post-traumatic stress disorder.  He will go on requiring a lot of support, regular continual medical appointments and appointments with social workers and other therapists.

11. Apart from these injuries, in an occupational sense, RM was a qualified medical practitioner and the attack had a serious effect on his ability to work.

12. The Direction states that decision-makers should have regard to the principle, at paragraph 13.1.1(1)(a) that violent crimes are viewed very seriously.  The Tribunal considers that the assault by Mr Jones on RM could fairly be described as horrific and is accordingly regarded as very serious in nature. 

13. The Direction also states (at paragraph 13.1.1(1)(b)) that crimes against government officials because of the position they hold or in the performance of their duties are serious.  In this respect, the Tribunal notes the evidence, admitted by Mr Jones, of his assault upon police officers when refusing to leave a police van which caused them to deploy pepper spray.  The Applicant himself said that when he viewed CCTV footage of this incident he was ashamed of his conduct and the language he used, though he had hazy recollection of the actual incident because of his drunkenness.

14. The Tribunal notes that a number of other incidents have occurred since Mr Jones has been incarcerated.  When he was in Melbourne Metropolitan Remand Centre in November 2015 he lunged at a nurse attempting to give him some medication.  In March 2016 at Port Phillip watch house, the Applicant is reported to have assaulted a staff member by striking him with a clenched fist, causing the staff member to require treatment.  In August 2016 the Applicant engaged in a physical altercation with a fellow inmate. On 27 September 2017 Mr Jones became frustrated about not being able to have some photocopying done in relation to his pending appeal and punched a noticeboard.  He gave evidence at the hearing that, in doing this, he broke his hand.

15. The Tribunal had reports of other incidents that took place in prison between Mr Jones and other inmates, and when Mr Jones was on remand.  Even though some of these reports did not lay blame on the Applicant, they all combine to lead me to the conclusion that Mr Jones has a serious anger management problem.  While the Applicant had made certain assertions about what precipitated his awful attack on RM which his counsel urged me to consider through the lens of his fear of deportation, what is clear is that – whatever the trigger – the serious and sustained assault upon the victim was completely disproportionate to any possible trigger that might have led to the Applicant thinking he had himself been assaulted, whether that belief was fantastic or based in reality. 

16. I made clear to parties that it is not the function of the Tribunal to look behind the conviction as made, and especially so in a case like this where the Applicant entered a plea of guilty.  There are ample authorities on this point, notably Minister for Immigrationand Multicultural Affairs v Ali [2000] FCA 1385 where Branson J at [41-42] stated:

    First, it seems to me to be clear beyond argument that the administrative decision maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based.

    Secondly, the overwhelming weight of authority is that where the conviction and sentence are the foundation of the exercise of the power vested in the applicant by s 200 of the Act, the Tribunal, when reviewing the decision of the Minister, may not impugn or go behind either the conviction or the sentence. [Citations omitted]

17. It is to the credit of Mr Forsaith that he readily acknowledged this accepted principle, but I feel it is necessary and important nevertheless to re-state it, because so much material was put by the Applicant urging the decision-maker to take a different view of the facts of the assault in an ill-starred attempt to explain or partly excuse the criminal conduct.  The amount and inconsistency of this material gives me serious doubts that Mr Jones has accepted the penalty imposed on him.  The fact that he appealed a conviction, when he had himself pleaded guilty, adds to that doubt.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1.2)

18. Mr Aviram submitted that it was the Respondent’s view there was a high risk to the Australian community of the Applicant offending again, because Mr Jones does not really accept what happened regarding the incident involving RM.  The Respondent further argued that the Applicant is likely to “lash out” of he encounters triggers in the future and essentially that if any part of his proposed ‘treatment puzzle’ was to fail, the risk is there that Mr Jones would re-offend.  Mr Forsaith said that Mr Jones has a high degree of insight into his past offending and that he wants to continue the process of reform by pursuing The Growth Organisation programme and continuing involvement in a church group, which he has started to do while in Hopkins Correctional Centre. 

19. I accept that Mr Jones has good intentions and that he found it very difficult while living in boarding houses surrounded by others with particular challenges, to try and improve his lot.  I note that the Applicant spoke about not having drunk alcohol for some three years and that, although he has been in prison, there was contraband alcohol available which he had been offered, and which he had declined.

20. The plans that Mr Jones has laid out for his life upon release do not satisfy me that there will be a low risk of re-offending.  It is not clear to me whether Mr Jones has an inherently violent disposition and it is certainly apparent on the evidence that his offending has been closely linked to alcohol, although the Tribunal did note that the Applicant gave evidence about a common assault charge he had in Wales before migrating to Australia.  However, the circumstances around the serious assault on RM are greatly concerning.  Mr Forsaith said this should be regarded by the Tribunal as an “outlier” from Mr Jones’s other offences because he knew the victim.  That, in fact, does not dispose me to conclude that there is a low risk to the Australian community should Mr Jones re-offend.  On the contrary.  In addition, I place very little weight on Mr Jones’s submission that, as he has declined contraband liquor while in prison, this should be regarded as a point in his favour; it does not demonstrate what would happen if the Applicant had ready access to liquor; that would be the true test. 

21. The Tribunal had before it a psychological assessment by Ms Carla Lechner, clinical psychologist (G2, p 129) dated September 8 2016.  It is clear that Mr Jones told her a number of things which were not factual, such as that he had been married and divorced, and some of the circumstances surrounding the assault on RM, which may have coloured her conclusions.  However, she did say, in her summary and opinion:

    At interview Mr Jones impressed as capable of reflecting on the impact that his behaviour has on both himself and others but socially and emotionally immature.  He is able to identify triggers to his negative feelings but is less well able to manage them and relies on alcohol to block out his distress.  Mr Jones has ongoing symptoms of PTSD and some features of a Borderline Personality Disorder…

    [Emphasis added.]

    The concern for me in this matter is whether Mr Jones, with his past history, has plans in place to keep him away from falling back into his serious alcohol abuse spiral.

22. Ms Lechner concluded that Mr Jones would benefit from engagement with treatment services, and the Tribunal was not convinced that what has been available to him while in Hopkins Correctional Centre has been adequate or targeted.  Ms Lechner’s conclusions also give the Tribunal concern about the ability of the Applicant to successfully manage his own feelings and behaviour.

23. The Applicant has recently had his appeal dismissed by the Victorian Court of Appeal.  That Court recorded, in Jones v The Queen [2018] VSCA 11, at footnote [1]:

    The applicant has findings of guilt and convictions on 5 October 2010 for recklessly causing injury and resisting police; on 28 February 2011 for recklessly causing injury; and on 12 September 2014 for recklessly causing injury and unlawful assault.  He has also been dealt with on three occasions between 2007 and 2012 for being drunk in a public place.  The applicant was also dealt with by the courts in Wales in 1995 and 1997 respectively for assault occasioning actual bodily harm, and for criminal damage and breach of the peace.

24. Significant evidence was advanced to the Tribunal about a sexual assault committed on Mr Jones when a child.  Apart from the Applicant’s own statements, corroborative evidence was not before the Tribunal except for reference by Judge Allen to details being set out in a letter the Applicant’s mother had sent to the County Court from the United Kingdom.  As His Honour had the letter and accepted this evidence, the Tribunal chooses to as well.  However, while childhood sexual abuse may provide some context to some of the conduct of the Applicant and perhaps was a significant contributor to his problems with alcohol, it does not provide in any way an excuse for the serious assault on RM and for the other assaults since he came to Australia, accepting that some of them are minor in nature.  It is notable that His Honour in his reasons for sentence did not cite what he called a “distorted belief” that something had happened of a sexual nature or the Applicant’s childhood sexual abuse as a factor when he decided the length of the sentence imposed, instead the Judge cited the plea of guilty and the letter of apology as evidence of remorse.

25. The Tribunal finds that, having regard to the nature and seriousness of Mr Jones’ conduct as well as the significant risk he poses to the Australian community should he re-offend, the primary consideration of the protection of the Australian community weighs heavily against revoking the mandatory cancellation decision.

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

26. No evidence was put before the Tribunal that Mr Jones had any minor children of his own, or that there are any other minor children in Australia who would be affected.  The Tribunal therefore finds, after consideration, that this factor is not relevant in this review.

    Primary consideration: Expectations of the Australian community (13.3)

27. Counsel for the Applicant urged the Tribunal to approach the expectations of the community through the perspective of “an informed member of the community who held ‘middle of the road’ views as to migration issues”, and cited the decision in Re Jupp and Minister for Immigration and Multicultural Affairs [2002] AATA 458 in support of that contention. In that case, Deputy President Block stated, referring to the version of the Direction then in force:

    (m) Clause 2.3(b) (read with 2.12) is always difficult to interpret. It assumes (incorrectly) that there is an Australian community which thinks as one. The supporters of One Nation would have one view as regards immigration, and there is of course a very large diametrically opposed body of opinion in Australia. I construe this reference as being correctly made to middle-of-the-road reasonable members of the Australian community who do not hold extreme views one way or another. And I think that there is a further limiting factor and that is that one must import into that Australian community, knowledge of the evidence before me. If told only and concisely that a person incarcerated for armed robbery was seeking to come to live in Australia, there might well be a general view that this should not be allowed. On one facile view, these are the facts in this case. They entirely ignore the fact that the event happened nearly 20 years ago, since which time there has been a complete rehabilitation transforming a young drug-addicted person into a responsible family man. I believe that the Australian community, so informed, would expect me to interpret the Direction in a humane fashion.

28. I agree with the learned Deputy President that the Australian community does not ‘think as one’.  I also agree that the Australian community is, on the whole, generous-minded and willing to support efforts of rehabilitation.   But the inescapable fact is that, objectively, members of the Australian community would assess the facts in each case, before coming to a conclusion.  In Ms Jupp’s case, she was a pregnant applicant seeking to bring her fiancé, the father of her child, to Australia.  He had served historical prison sentence for robbery of a chemist, armed with a starting pistol two decades before.  These circumstances are quite different from this case where Mr Jones initiated what the Court found was an unprovoked and vicious attack, over several hours, on a person in his own home whom he was invited to visit.

29. Counsel for the Applicant urged me to take account of conclusions of the Royal Commission into Institutional Responses to Childhood Sexual Abuse and submitted, rightly in my view, that the Australian community has been shocked by the testimony before that Royal Commission, and has a great deal of compassion for the victims of such abuse.  However, accepting this does not mean that experience of childhood sexual abuse lessens the gravity of the serious assault committed by Mr Jones, outlined above, and admitted by him.

30. The Tribunal concludes that this primary consideration weighs against the mandatory cancellation of the visa being revoked.  

    Other consideration: International non-refoulement obligations (14.1)

31. The Tribunal considered this consideration.  If the mandatory cancellation decision was not revoked, Mr Jones would return to the country of his birth, the United Kingdom.  The Tribunal finds that no non-refoulement obligations are invoked in this case.

    Other consideration: Strength, nature and duration of ties (14.2)

32. The Tribunal notes that Mr Jones has lived in Australia for some seventeen years.  He has been involved in a number of activities here, including assisting in Melbourne’s ‘White Night’ festival and has been in paid employment at various times.  Mr Jones gave evidence that he was a loner who preferred his own company.  Ms Lechner said (G2, p 132) Mr Jones told her he was not particularly close to anyone and that he “is quite socially isolated and often prefers to be on his own.”

33. Mr Jones does have acquaintances in this country but told a prison welfare officer (SG4, p 184) that he has no family or support network, does not receive visits and does not make phone calls except for legal calls related to his appeal.  His main personal contact is with his ageing mother in England.  As mentioned above, he told the Tribunal he has no contact with his former domestic partner.  I find that this consideration weighs neither for nor against revoking the mandatory cancellation decision.

    Other consideration: Impact on Australian business interests (14.3)

1. The Tribunal noted this consideration but considers, given that Mr Jones has not been employed for some time and that his professional IT skills are transferable, there would be no impact on Australian business interests by the mandatory cancellation of his visa.

   Other consideration: Impact on victims (paragraph 14.4)

2. The Direction requires, at paragraph 14.4, that the decision-maker must consider the impact of a decision not to revoke on members of the Australian community, including the victims of a non-citizen’s criminal behaviour and the family members of the victim or victims where that information is available.

3. I have set out Judge Allen’s remarks about the impact on RM, the victim of the serious assault committed by the Applicant.  I conclude, given the violent nature of the attack and the lingering physical and emotional trauma the evidence indicates that RM is still suffering, that this secondary consideration weighs against the Applicant.

   Other consideration: Extent of impediments if removed (14.5)

4. Mr Jones lived in the United Kingdom from birth and through his early adult life.  He has limited personal connexions to the Australian community.  His mother lives in England and he has regular contact with her and she has assisted him financially.  I note that Mr Jones has successfully completed a tertiary degree from a well-regarded Australian university and that he has had some employment record, if a chequered one.  He is an intelligent man with skills that would make him a very useful employee in the technology sector.  The funds that he told the Tribunal he has could be used to establish accommodation in Britain and he would have access to the National Health Service and other support organisations both in terms of finding work and dealing with his health challenges.

   Conclusion

5. Mr Jones came to Australia with good prospects and with the potential to make positive contribution to our vibrant Australian multicultural community.  Initially, it appears that he began to do that, but the breakdown of his relationship seems to have set him on a spiral downwards, fuelled by alcoholism.  Regrettably, he has embarked on a sporadic pattern of conduct which, while I agree with his counsel, has not escalated, includes a very serious assault which has left the victim with, it is not too extravagant to say, life-changing injuries.  This conduct is totally unacceptable to the Australian community by any person, citizen or non-citizen.  The Tribunal concludes, after careful consideration, that the primary considerations in the Direction of the protection of the Australian community and the expectations of the Australian community, which weigh heavily against the Applicant, mean that the correct and preferable decision is to refuse to revoke the cancellation of Mr Hedwynn Alaw Jones’s visa.

   DECISION

6. The Tribunal affirms the decision under review.

I certify that the preceding 71 (seventy-one) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

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

Associate

Dated: 1 March 2018

Dates of hearing:	20 & 23 February 2018
Counsel for the Applicant:	Mr J Forsaith
Advocate for the Respondent:	Mr T Aviram
Solicitors for the Respondent:	Clayton Utz