Kalinov and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 1387
•23 May 2023
Kalinov and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1387 (23 May 2023)
Division:GENERAL DIVISION
File Number(s):2023/1359
Re:Kristian Kalinov
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:23 May 2023
Place:Perth
The decision of the delegate of the Minister dated 28 February 2023 not to revoke the cancellation of the Applicant’s Employer Nomination (Class EN) (subclass 186) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Migration Act .
....[Sgd]....................................................................
Deputy President Boyle
CATCHWORDS
MIGRATION – s 501CA(4) of Migration Act – decision not to revoke mandatory cancellation of visa – Applicant is a citizen of Bulgaria – drug offences – assault – breaches of bail conditions – Direction 99 considered – strength, nature and duration of Applicant’s ties to Australia – best interests of minor children – family violence – low risk of reoffending - there is another reason to revoke the visa cancellation – reviewable decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 499(1), 499(2A), 501(3A), 501(6), 501CA(4)
CASES
Arachchi and Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1311
Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404
CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514
Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 775
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185; (2019) 272 FCR 454
Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 66
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1524
McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2939
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2108) 266 FCR 591
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3953
Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 685
YNQY and Minister for Immigration and Border Protection [2017] FCA 1466
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(3), 5.2(4), 6, 7, 7(2), 8, 8(1), 8.1(1), 8.1(2), 8.1.1, 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(b)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(b)(iv), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.2, 8.3(1), 8.3(2), 8.3(3), 8.4, 8.4(4), 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 9, 9.1, 9.2, 9.2(1)(a), 9.2(1)(b), 9.2(1)(c), 9.3, 9.4
REASONS FOR DECISION
Deputy President Boyle
23 May 2023
THE APPLICATION
The Applicant seeks review of the decision of a delegate of the Respondent (Minister) dated 28 February 2023[1] not to revoke, under s 501CA(4) of the Migration Act 1958 (Cth) (Act), the cancellation of the Applicant’s Employer Nomination (Class EN) (subclass 186) visa under s 501(3A) of the Act.
[1] R1/15.
The Applicant’s visa was cancelled on the basis that he did not pass the character test by reason of his substantial criminal record, and he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review was made on 3 March 2023 pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501CA(4) of the Act.
BACKGROUND
The Applicant is a 30-year-old citizen of Bulgaria. He lived in Bulgaria with his parents until the age of eight. His parents divorced and he moved with his mother to the United Kingdom.
The Applicant lived with his mother, half-brother and stepfather in the United Kingdom.
He went to school in London and, at 18 years of age, moved to Australia to live with his mother, brother and stepfather.The Applicant first arrived in Australia on 24 October 2011 on a Visitor visa. He has departed Australia on two occasions for approximately 10 days each.[2] He last saw his natural father when he was 16 years of age.
[2] R1/164.
The Applicant was convicted of traffic offences on 27 October 2018 and on 18 January 2019. In January and February 2019, the Applicant was convicted of six counts of breach of protective bail conditions.
On 2 April 2020, the Applicant was sentenced in the Perth District Court for the offences sold or supplied or offered to sell or supply a trafficable quantity of methylamphetamine, assault occasioning bodily harm, possession of unlawfully obtained property (two counts), money laundering (two counts) and possess false travel documents.[3]
[3] R1/31-32.
The Applicant was sentenced to terms of imprisonment for each of those offences ranging from six months to 38 months. With concurrent sentences and discounts applied, the effective sentence for those offences was imprisonment for five years.[4]
[4] R1/47.
On 9 April 2020, the Applicant was sentenced in the Perth Magistrates Court for common assault in circumstances of aggravation or racial aggravation and was sentenced to four months’ imprisonment.
The Applicant’s full criminal history as disclosed by the Australian Criminal Intelligence Commission Check Results Report is as follows:[5]
[5] R1/31-2.
Court Result date Offence Result Perth Magistrates Court 09/04/2020 Common Assault in Circumstances of Aggravation or racial Aggravation; Criminal Code (WA); 313 (1)(a) IMPRISONMENT: 4 Months
CONCURRENT FROM 09-APR-2020 - Concurrent
Perth District Court 02/04/2020 Knowingly possess or control false foreign travel document; Foreign Passports (Law Enforcement & Security) Act 2005 (Cth); 22 (1) IMPRISONMENT: 18 Months CONCURRENT FROM 27-JAN-2019. - Concurrent Perth District Court 02/04/2020 Assault Occasioning Bodily Harm.; Criminal Code (WA); 317 IMPRISONMENT: 6 Months CUMULATIVE FROM 27-OCT-2019. -Cumulative Perth District Court 02/04/2020 Brought into, or whilst in West. Australia received, possessed, concealed, disposed of or dealt with
any money or property; Criminal Code (WA); 563A (1)(b)
IMPRISONMENT: 16 Months CUMULATIVE FROM 27-OCT-2019. - Cumulative Perth District Court 02/04/2020 Sold or supplied, or offered to sell or supply, a trafficable quantity of methylamphetamine IMPRISONMENT: 38 Months CONCURRENT FROM 27-OCT-2019. - Concurrent; Drug Trafficker Declaration: FROM 5.3.20 Perth District Court 02/04/2020 Possession of stolen or unlawfully obtained property; Criminal Code (WA); 417 (1) IMPRISONMENT: 12 Months CONCURRENT FROM 27-OCT-2019. - Concurrent Perth District Court 02/04/2020 Possession of stolen or unlawfully obtained property; Criminal Code (WA); 417 (1) IMPRISONMENT: 12 Months CONCURRENT FROM 27-OCT-2019. - Concurrent Perth District Court 02/04/2020 Brought into, or whilst in West. Australia received, possessed, concealed, disposed of or dealt with any money or property; Criminal Code (WA); 563A (1)(b) IMPRISONMENT: 18 Months CONCURRENT FROM 27-OCT-2019. – Concurrent
Perth Magistrates Court 14/02/2019 Breach of protective bail conditions; Bail Act 1982; 51 (2a) FINE: $1000. (global) Perth Magistrates Court 14/02/2019 Breach of protective bail conditions; Bail Act 1982; 51 (2a) FINE: $1000. (global) Perth Magistrates Court 14/02/2019 Breach of protective bail conditions; Bail Act 1982; 51 (2a) FINE: $1000. (global) Perth Magistrates Court 14/02/2019 Breach of protective bail conditions; Bail Act 1982; 51 (2a) FINE: $1000. (global) Perth Magistrates Court 14/02/2019 Breach of protective bail conditions; Bail Act 1982; 51 (2a) FINE: $1000. (global) Midland Magistrates Court 18/01/2019 Breach of protective bail conditions; Bail Act 1982; 51 (2a) FINE: $1000. (global) Perth Magistrates Court 04/10/2018 Exceed 0.08g alcohol per 100ml of
blood;
FINE: $600;
Mdl Disqualified: 8 mths - Concurrent;
Perth Magistrates Court 27/10/2017 Exceed 0.08g alcohol per 100ml of
blood;
FINE: $500;
Mdl Disqualified: 8 mths - Concurrent;
On 3 June 2022 the Applicant’s visa was cancelled under s 501(3A) based on the convictions and sentences on 2 April 2020 (see [8]-[9] above).
On 25 June 2022, the Applicant sought revocation of the cancellation decision and made representations and provided evidence in support of his request.[6]
[6] R1/56.
On 28 February 2023, a delegate of the Minister decided, under s 501CA(4) of the Act, not to revoke the cancellation of the Applicant’s visa[7] and on the same day the Applicant was given notice of that decision.[8]
[7] R1/15.
[8] R1/11.
On 3 March 2023 the Applicant sought review of the delegate’s decision in the Tribunal.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act relevantly provides that:
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) paragraph (6)(e) (sexually based offences involving a child); 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.
Section 501(6) of the Act relevantly provides:
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)); ...
(Original emphasis.)
A “substantial criminal record” is, relevantly, defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) the person has been sentenced to death; or
(b) the person has been sentenced to imprisonment for life; or
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
…
(Original emphasis.)
Section 501CA of the Act relevantly provides:
(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.
(Original emphasis.)
Section 499(1) of the Act provides that:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act provides that “A person or body must comply with a direction under subsection (1).”
Direction 99
On 23 January 2023, the relevant minister for the purposes of s 499 of the Act, made a direction titled “Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA” (Direction 99). The commencement date for operation of Direction 99 was 3 March 2023. Upon its commencement, Direction 99 revoked the operation of “Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction 90).
Paragraph 5.1 sets out the objectives of Direction 99. Relevantly, para 5.1 provides:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens. Relevantly, a non-citizen who does not pass the character test (see Annex A for explanation) is liable for refusal of a visa or cancellation of their visa.
…
(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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction 99 sets out the principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke the cancellation of a visa under s 501CA of the Act. These principles are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable (sic) risk of causing physical harm to the Australian community.
(4) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable (sic) risk of causing physical harm to the Australian community.
Paragraph 6 of Direction 99 provides that, informed by the principles set out in para 5.2, the decision-maker must take into account the considerations in paras 8 and 9 of Direction 99 (where such considerations are relevant) in order to determine whether the decision to cancel the visa under s 501(3A) of the Act should be revoked.
Guidance in relation to how the relevant considerations are to be taken into account is found in para 7 of Direction 99 which provides that:
(1) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2) Primary considerations should generally be given greater weight than the other considerations.
(3) One or more primary considerations may outweigh other primary considerations.
Paragraph 8 of Direction 99 is as follows:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the strength, nature and duration of ties to Australia;
(4) the best interests of minor children in Australia;
(5) expectations of the Australian community.
Paragraph 9 of Direction 99 is as follows:
1) In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
THE HEARING AND THE EVIDENCE
The application was heard on 9 and 10 May 2023. The Applicant represented himself and the Minister was represented by Ms D Jones-Bolla. The following witnesses gave evidence at the hearing:
(a)The Applicant;
(b)Mr K Wilkie;
(c)Ms C Rodway;
(d)Mr I Fourie, the Applicant’s stepfather; and
(e)Ms M Dacheva, the Applicant’s mother.
The following documents were admitted into evidence:
(a)Applicant's Further Personal Statement filed 5 May 2023 (A1);
(b)Applicant’s bundle of supporting documents filed 17 April 2023 (A2);
(c)Respondent’s G Documents filed 17 March 2023 (R1); and
(d)Respondent’s Summons Bundle filed 24 April 2023 (R2).
In addition to the above documents, I also had before me various documents that were filed by the Applicant. Copies of those documents had been provided to the Minister.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law.[9] The character test is defined in s 501(6) of the Act.[10] Under s 501(6)(a) of the Act, a person does not pass the character test if the person has “a substantial criminal record”. Section 501(7)(c) of the Act[11] provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more...”. The Applicant has been sentenced to a term of imprisonment of more than 12 months and he therefore has a substantial criminal record. Accordingly, he does not pass the character test.
[9] Harrison and Minister for Immigration and Citizenship ([2009] AATA 47; (2009) 106 ALD 66.
[10] See para [17] above.
[11] See para [18] above.
THE ISSUE FOR DETERMINATION
As the Applicant does not pass the character test, he cannot rely on s 501CA(4)(b)(i) of the Act for the decision to cancel his visa to be revoked. The issue for determination, therefore, is whether the power under s 501CA(4)(b)(ii) should be exercised on the basis that there is another reason why the decision under s 501(3A) should be revoked.[12]
[12] See para [19] above.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community from criminal or other serious conduct (para 8.1)
Paragraph 8.1 of Direction 99 provides that when decision-makers are considering the protection of the Australian community, they:
(1)… should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens 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.
(2) 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.
Nature and seriousness of the conduct (para 8.1.1)
Paragraph 8.1.1 of Direction 99 relevantly provides:
(1) In considering the nature and seriousness of the non-citizen's criminal offending or other conduct to date, decision-makers must have regard to the following:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
…
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d) the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
e) the cumulative effect of repeated offending;
…
The Minister’s Amended Statement of Facts, Issues and Contentions filed on 24 April 2023 (Minister’s SFIC) made the flowing submissions on this consideration:[13]
(a)Violent crimes are viewed very seriously by the Australian Government and the Australian community.[14] The Applicant has been convicted of two violent crimes, one committed against a woman which also appears to have constituted an act of family violence.
(b)Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[15] Where a Court has sentenced an offender to a term of custodial imprisonment, this should be viewed as a reflection of the objective seriousness of the offences involved.[16]
(c)There is a trend of increasing seriousness, and the Applicant has offended frequently. He has committed 16 offences in a two-year period.[17]
(d)This behaviour must be seen as cumulatively having had a deleterious impact on the Australian community.[18]
[13] Minister’s SFIC at para [26].
[14] Citing para 8.1.1(1)(a)(i)-(iii) of Direction 99.
[15] Citing PNLB and Minister for Immigration and Border Protection [2018] AATA 162 at [22].
[16] Citing para 8.1.1(1)(c)) of Direction 99.
[17] Citing para 8.1.1(1)(f)) of Direction 99.
[18] Citing para 8.1.1(1)(e)) of Direction 99.
The Applicant did not file a document which identified itself as a statement of facts, issues and contentions.[19] However, the Applicant did file documents and statements from which the Applicant’s position on relevant considerations can be gleaned. There were also documents in the G documents,[20] including the representations to the Department made by the Applicant in response to the invitation under s 501CA(3) of the Act[21] which addressed some of the considerations which are relevant to the exercise that I have to undertake in this application.
[19] Directions were made on 14 March 2023 which included a direction that the Applicant file a statement of facts, issues and contentions and any written submissions and further evidence by 18 April 2023.
[20] R1.
[21] See para [13] above.
The most serious of the Applicant’s offences are those for which he was convicted and sentenced on 2 April 2019, being:
·attempt to possess false foreign travel documents and foreign passport (sentence 18 months’ imprisonment, concurrent),
·assault occasioning bodily harm (sentence six months’ imprisonment, cumulative),
·two counts of money laundering (sentence 16 months’ and 18 months’ imprisonment, cumulative),
·sold or supplied or offered to sell or supply a trafficable quantity or methylamphetamine (sentence 36 months’ imprisonment, concurrent), and
·two counts of possess stolen unlawfully obtained property (sentence on each 12 months’ imprisonment, concurrent).
The circumstances of those offences were described by Glancy J in her sentencing remarks as follows:[22]
[22] R1/33-49.
As I said, judgment of conviction was entered following your plea on the last occasion when you appeared before me on the morning when your trial was due to commence.
…
…I won’t go through the facts in as much detail as was read from the amended statement of material facts but I will go through the facts in a little bit of detail.
In relation to count 1, which is the offence of assault occasioning bodily harm, you were at the Geisha Bar at about 4.30 in the morning on 22 April. Your former girlfriend was also there and she was dancing with her new boyfriend.
You went up to him and argued with the boyfriend and punched him in the mouth. You split his bottom lip and knocked him unconscious. He needed three stitches in his lip and suffered bruising and redness, swelling and pain, and needed follow-up care as an outpatient at the hospital.
In relation to count 2, on 17 June in 2018, you were in a car which was parked in Northbridge when a co-accused came to the car and you sold him two vacuum-sealed bags of methylamphetamine. One contained 28 grams at 79 per cent purity and the second contained 28.1 grams at 78 per cent purity. And you were paid $11,000 for those drugs.
Counts 3 and 4, on 20 September of 2018, the police executed a search warrant at your home in Scarborough where you were present with two other people, your co-accused and your girlfriend, [Ms S], and a friend, [Mr L].
$113,850 was found in a vacuum-sealed bag inside a shopping bag. In the laundry cupboard was a vacuum sealing machine. A further $8,750 cash was found on the shelf in the wardrobe of the bedroom you shared then with [Ms S].
The bag of cash was examined and was found to have been divided into smaller amounts, arranged and labelled with Post-it notes with coded names. It had been divided and packaged by you and [Mr L] and was intended to be later forwarded to other people.
While you were on bail for those offences, you made arrangements to have a fake Bulgarian passport, driver’s licence and identity card made for you in Bulgaria and to be sent to you in Perth so that you could flee to Bulgaria to evade the charges to which I’ve already referred.
You had passport photos taken. You had money sent to Bulgaria to pay for the passport. You involved [Ms S] in transferring some of the money to Bulgaria for that purpose also. That money that you used was the proceeds of drug deals.
Border Force intercepted the passport which was being sent to your address which contained a fake name but which had the photographs that you’d had taken at Karrinyup Post Office on 28 December 2018 on them. So that’s counts 5 and 6.
And in relation to count 7, on 11 January 2019, police searched your parents’ home where you were then living. They seized $19,300 in $50 notes which had been divided into two bundles and were hidden under a pot plant near the TV. They also found $5,000 in a laptop case. All of that money was from the sale of prohibited drugs. So the total cash found on that occasion was $24,300.
Her Honour went on to further comment on certain of the offences. In relation to the assault occasioning bodily harm:
And there’s nothing in any of the facts that indicated that the victim had threatened you in any way or caused you to fear for you[r] safety. You were the one who hit him. He was the one who was rendered unconscious and who needed medical treatment for his injuries.
So I regard this as senseless and unprovoked violence and violence of a serious nature.
In relation to the sale of the methylamphetamine, her Honour said:
… that offence is particularly serious, Mr Kalinov. You were caught selling 56 grams of methylamphetamine for $11,000, so that’s a significant quantity of methylamphetamine. And the purity of it was high.
Now, those things matter, Mr Kalinov, because it’s presumed that the greater the quantity of drugs and the higher the purity, the greater the harm that can be done by its distribution in the community. Not only that, but you were doing this purely for commercial purposes.
You were not addicted to drugs yourself and you just saw this as a quick way of making money when you became unemployed when the car dealership,… the commerciality in your involvement increases its seriousness.
Her Honour also observed that:
It’s clear from the text messages that are on the brief that you’d been involved in dealing drugs on earlier occasions, and from the sum of cash that you had in your possession on 20 September 2018, and the way in which it was divided up and packaged, that you were significantly involved in quite a sophisticated and extensive drug dealing and money-laundering enterprise.
…
… you were an important part of the enterprise because you were trusted to take possession of and handle both the drugs and the money and to package it up, store it and deliver it and that was a significant sum of money, being just over $122,000.
In relation to the money laundering charges, her Honour observed:
Now, the money-laundering charge doesn’t involve the most significant sum of money that comes before the court…
That offence is made more serious by the fact that the money was entirely the proceeds of drug dealing. Now, Mr Kalinov, being arrested and charged with the offences comprising counts 1, 2 and 3 didn’t stop your offending. Even when you were on bail at your parents’ house and unemployed, you were found in possession of $24,300 in $50 notes, which you had hidden about that home.
So that offence, count 7, is made more serious by the fact that it was committed while you were on bail for other very serious offending.
Her Honour also referred to the fact that the Applicant had committed the offences relating to the false passport and identification documents while on bail, which increased the seriousness of those offences, and that:
The purpose of doing so was that so that you could leave the county and return to Bulgaria in order to escape prosecution for the offences with which you’d already been charged. And that is a very serious offence, Mr Kalinov. Also made worse by the fact that you involved your former girlfriend in that enterprise.
Looking at the totality of the offending for which the Applicant was being sentenced, her Honour concluded that:
So when looked at overall, the assault occasioning bodily harm is perhaps not the most serious offence of its kind, but your offending is overall particularly serious, Mr Kalinov.
In a statement filed in the Tribunal on 17 April 2023, the Applicant apologised for his criminal conduct and said that he understood “that [his] actions were illegal and that they have had serious consequences for [himself] and for the Australian community”. He said that he accepted responsibility for his actions and understood the impact that they have had on the community.
The assault in circumstances of aggravation for which the Applicant was convicted on 9 April 2020 was in relation to an assault on his then girlfriend, Ms S. The Applicant’s evidence was that he and Ms S had been in a relationship since early 2018. They had lived together for some of that period. The sentencing remarks in relation to that conviction referred to the facts of the assault as having been “read to the transcript” and not being disputed by the Applicant.[23] Magistrate Maugham summarised the facts as follows:
This is a serious example of a common assault, by reason of the fact that, as a consequence of you, likely, putting your hand over your victim’s mouth, she lost consciousness and found herself waking up in a bathtub tub of water. The risks to her were clearly obvious – that you were placing her, unconscious, in a bath of water. Not content with your conduct up to that point, when she endeavoured to leave, you prevented her from doing so and, again, placed your knee on her neck, a vulnerable part of her anatomy.
[23] R2/29.
A Western Australian Police Force Statement of Material Facts[24] reported the circumstances of that offence as follows:
[24] R2/152.
At about 6:40pm on Friday 28th December 2018, the accused was at his parents’ residential address of [omitted].
The accused was inside the residential address with his partner [Ms S], the victim in this matter.
The accused and the victim have been in a family relationship since April 2018 and were both currently living at the address.
The accused and the victim were having dinner and drinks which continued through the night.
At about 8:00pm, the accused and the victim began having an argument regarding accusations of infidelity.
The accused pushed the victim to the ground and pinned both hands behind the victims back. The accused then held one of his hands over the victim’s mouth.
The victim fell faint and woke up in a downstairs bath tub fully clothed and coughing up water, with the accused kneeling down to her left side.
The accused walked away and the victim waited up to 15 minutes before going to collect her belongings from upstairs.
The victim tried to retrieve her mobile phone from the accused, who pushed the victim over and she fell into the gap between the bed and the wall.
The accused stepped onto the victim and put his knee on the victim’s neck.
A short time later the victim ran out of the residence to a neighbour’s residence where police were contacted.
The Applicant was cross-examined on this incident. His evidence was that he and the victim had been drinking and taking cocaine and got into a confrontation. The Applicant had accused Ms S of infidelity. His evidence was that he could not remember putting his and over her mouth and denied putting her in the bath because he could not have carried her down the stairs to the bathroom.[25] The Applicant pled guilty to the offence.
[25] Transcript at 26.
In assessing the seriousness of the Applicant’s offending and other conduct against the considerations identified in para 8.1.1 of Direction 99 relevant to this case, I find that:
(a)Paragraph 8.1.1(1)(a) – the Applicant has been convicted of crimes of violence including a crime of violence against a woman which would constitute family violence. The Applicant conceded that he and Ms S were, or certainly had been, in an intimate relationship. In addition to the assault on Ms S, I am also satisfied that the Applicant assaulted a former partner of his, Ms H in August 2017. Again, that would be an incident of family violence. I deal with that incident in more detail below under the second primary consideration, family violence.[26] The convictions for violent offences, the conviction for assault in circumstances of aggravation and his other conduct constituting family violence are to be viewed very seriously.
(b)Paragraph 8.1.1(1)(b) – none of the offences of which the Applicant has been convicted or his other conduct as disclosed by the evidence fall into the categories of crimes and conduct identified in this subparagraph.
(c)Paragraph 8.1.1(1)(c) – the sentences imposed by the courts (ignoring the sentence imposed for the assault in circumstances of aggravation which would come under subparas (a)(ii) and (a)(iii)) while individually at the lower end of the possible sentences for those offences, were still significant sentences reflecting the Courts’ assessments of the seriousness of the offending.
(d)Paragraph 8.1.1(1)(d) – all of the Applicant’s convictions were in the period from October 2017 to April 2020. The Applicant’s offending took place in the relatively short period from 1 October 2017 to 29 January 2019.[27] While the Applicant was convicted of a number of offences in that relatively short period, a significant portion of the charges arose out of and were related to the same sequence of criminal conduct, namely the Applicant’s drug dealing, couriering and money laundering activities. Given the relatively short period over which the Applicant committed the offences, and given that, excluding the traffic matters, they are all serious offences, it is difficult to characterise a “trend of increasing seriousness”. It would be fair to say, however, that the later offences committed by the Applicant in that relatively short period, being the drug selling and money laundering, were particularly serious as reflected by the sentences.
(e)Paragraph 8.1.1(1)(e) - The cumulative effect of the Applicant’s frequent offending and the repetition of the same sorts of offences, indicates that the Applicant was willing to break the law for his own commercial profit.
[26] See para [79] below.
[27] R2/24;142;
Based on the considerations in para 8.1.1 of Direction 99, I am satisfied that the Applicant’s offending is serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (para 8.1.2)
Paragraph 8.1.2 of Direction 99 relevantly provides:
(1) In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the non citizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of harm to individuals or the Australian community (8.1.2(2)(a))
The Minister’s SFIC contended that:
(a)The harm that would be caused if the Applicant were to offend as he has in the past would be physical, psychological and economic.
(b)Such offending will also have broader financial and other consequences to the justice and health systems.
(c)There have been many campaigns to stop the coward punch and reduce the scourge of unprovoked violence in the community. Between 2000 and 2016 there were 127 ‘one-punch’ deaths in Australia, but such offending can also cause devastating brain damage.
(d)
In relation to family violence, the nature of the harm that may result includes physical harm up to and including the possibility of death. Offending of that nature may also have ongoing psychological consequences for the victims and others as well as broader financial and other consequences to the justice and health systems.
The Minister cites the decision of DP Kendall in XFKR and Minister for Immigration and Border Protection [2017] AATA 2385 at [45].
(e)Drug related offending is likely to cause significant psychological, financial and physical harm to members of the Australian community, including death to the end users who are supplied the drugs. The Minister cites the Final Report of the National Ice Taskforce, 2015.
The nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct of the type that he has in the past is self-evident and serious. I note Glancy J’s observation in her sentencing remarks that the greater the quantity of drugs and the higher the purity, the greater the harm that can be done.[28]
That comment was made in the context of the significant amount and high purity of the methylamphetamine sold by the Applicant. While the physical and psychological harm caused by violence, in particular family violence is obvious, of equal concern because of the broader impact, is the harm that flows from illicit drugs, particularly methylamphetamine. The harm likely to be caused if the Applicant were to reoffend is the direct physical, financial and psychological harm caused to victims and also the cost to the broader community of wasted public resources in the form of public expenditure on policing, health services, courts and prisons.[28] See para [40] above.
In relation to the harm caused by drugs, in Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[29] and subsequently in McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs,[30] I adopted the summary of Lonsdale DCJ in sentencing Jacobs which was that:
It is the experience of these courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State.
And that is either as a result of users acting under the influence, or because of their need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.
[29] [2020] AATA 1524.
[30] [2020] AATA 2939.
I also note the Federal Department of Prime Minister and Cabinet’s 2015 Final Report of the National Ice Taskforce, which observed that methylamphetamine creates a “distinct problem for society” because:
Unlike cannabis and heroin, ice is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – (8.1.2(2)(b))
By his SFIC, the Minister contends as follows:
(a)The Applicant contends that he is no risk of reoffending because he has learned his lesson and has no intention of mixing with the wrong people again.
(b)The Applicant claims that he has been drug and alcohol free for over 18 months.
(c)The references provided by Ms Rodway and her father, Mr W Rodway[31] were undated and do not refer to the Applicant’s criminal record, but rather as “charges” laid against him.
(d)The references of the Applicant’s stepfather and mother similarly refer to charges and do not demonstrate any awareness of consequences of the Applicant’s offending.
(e)The Applicant represents an unacceptable risk of re-offending because:
(i)The Applicant has been assessed as a medium “risk/need level” in the Department of Justice Level of Service Risk Need Responsibility report performed on 13 November 2020.[32]
(ii)The Applicant has a lengthy criminal history in Australia and a concerning theme is apparent from his criminal history in committing violent offences.
(iii)The cause of the Applicant’s offending is somewhat unclear. For instance, Glancy J’s sentencing remarks refer to the Applicant being an occasional drinker and a recreational user of cannabis and cocaine and suggest the Applicant’s explanation for his offending related to him having lost his job and being offered a job transporting goods for an old customer. The Applicant’s request for revocation, however, refers to him turning to drugs and alcohol following a split from his girlfriend which led to him being surrounded by a new group of people which led to his offending.
(iv)To the extent that the Applicant’s drug and alcohol use was a cause of his offending, the Applicant’s rehabilitation is limited.
(f)While the Applicant was granted parole[33] partly on the basis that he was assessed to present an acceptable risk to the safety of the community, this should be given limited weight in circumstances where the import of the parole order is that the Parole Board was of the view that, with monitoring and supervision during the period of parole, the Applicant did not pose an unacceptable risk to the safety of the community. However, the Tribunal does not have the same comforts (being conditions and the prospect of being returned to custody) when assessing the Applicant’s risk.[34]
[31] R1/88.
[32] R1/273.
[33] R1/53.
[34] Citing Peterson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1256 [75]-[76].
The Applicant made a number of submissions as to the risk of his re-offending. In his statement filed in the Tribunal on 5 May 2023, the Applicant said:
… the protection of the Australian community from criminal or other serious conduct is of utmost importance. I fully acknowledge this and assure the court that I pose no threat to society. I am committed to turning my life around and making positive contributions to the community which is why I have voluntarily completed a number of rehabilitation programs including General Offending (5 months) and Stopping Familly [sic] Violence (4 months) as well as attending AA. I was also on the waitlist for a number of other programs including Alternatives to Violence Program as well as ADAPT and HolyOake. I was not able to complete these due to disruptions from COVID. Also, I have not committed any crime since my incarceration, maintained good behaviour throughout my time in prison and even received a positive parole report which further proves the fact that I have changed and pose no threat to the Australian community.
…
Before my offending chapter I had a successful career, which required me to obtain various certificates and licenses. This demonstrates my commitment to society and my ability to maintain employment and lead an honest life. Prior to my offending chapter began, I had over 7 consistent years with no offending and I was employed on a full-time basis. I have provided you with my Tax Returns to prove that. I believe this shows that I am capable of contributing positively to society.
Similar statements were made by the Applicant in his undated statement filed on 17 April 2023:
…I have taken steps to address the underlying issues that led me to commit crime. I have went [sic] to AA and NA and have completed 2 programs whilst incarcerated including General Offending/MIP and Stopping Familly [sic] Violence. I had also enrolled for AVP ( Alternatives to Violence Program ) as well as HolyOake which is a counselling service. I have learned from my mistakes and am committed to living a law-abiding life in the future.
…
… I intend on living a pro-social life once again and not repeat mistakes of my past. I feel like I have grown up and changed so much over the last 4 years and with the support from my friends and family I can turn my life around for good. I recognise that a change is needed in order to live a normal life once again and am prepared to put in the hard work to ensure I never find myself in this position ever again.
My family and friends have told me they have noticed a big difference in me since coming to jail.
That it mainly due to the fact that I haven't had any drugs or alcohol since coming in as well as the completion of several programs such as General Offending/MIP (5months), Stopping Family Violence (3months) and attending Alcoholics Anonymous and a number of 1 on 1 counselling sessions with the prison counsellor.
…
I have maintained good behaviour in custody. I haven't received any more charges or any prison charges since coming to jail. Whilst incarcerated I have always had a job. At times I was even doing rehabilitation programs whilst still being employed. Because of my good behaviour, willingness to change and strong commitment to work I was granted a MINIMUM security classification which took me to Wooroloo Prison Farm.
At the hearing the Applicant summarised his position as follows:[35]
I stand before you today with genuine remorse for the harm and damage my actions have caused in the past. While I cannot undo my past actions I understand the gravity of my offences and the impact that they have had on the community. I have spent the last few years of my incarceration focused on extensive rehabilitation efforts and making sure I get out a better man than I was when I first went in. I have taken responsibility for my actions and have made significant progress towards becoming a better person.
[35] Transcript at 9.
Statements provided by family members and friends referred to the Applicant’s attitude as having changed since he has been in prison and immigration detention. In his statement dated 10 April 2023, the Applicant’s stepfather Mr Fourie stated that:
I believe that Kris’s offences were caused by a problem he had due to the separation from his partner/ex-girlfriend and misuse of alcohol and drugs to deal with the separation. I don’t think he understood that he had problem with alcohol and drugs. I do also think he was struggling with depression following his separation from his ex-partner and did not receive any treatment or help. Instead, he covered up his emotions by drinking a lot. Since he was charged with all the crimes committed, he has undergone a complete transformation and is like the old Kris again. He has come far since then and have worked very hard on himself by reflecting on the mistakes and bad decisions that he made.
…
… Kris has not touched a drop of alcohol in years and has told me what a positive change it has made to his life. All of us speak on the phone almost every day and we visit him every other weekend if permitted. Kris has finally turned his life around and I am certain with our help he can continue to do so.
Similar sentiments were expressed by Ms Rodway, who has been a friend of the Applicant’s family for ten years. In her statement dated 13 March 2023 she opined:
Since incarcerated, Kris completed many courses about aggression, behaviour management, and antisocial behaviour including violence. He has understood how his behaviour and mental state was unacceptable and has actively worked towards positive prosocial behaviour. During this time, I have seen him change back to the Kristian I knew before his life spiralled, and I am pleased to see the new and improved Kristian.
As noted above, the Applicant has undertaken a number of programs while in prison and immigration detention. There were two Department of Justice program completion reports. One report was for the Stopping Family Violence program dated 15 December 2022[36] and one for the Medium Intensity Program dated 26 October 2021.[37] The Completion Report for the Stopping Family Violence program made the following observations:
Mr Kalinov completed all 31 sessions of the Stopping Family Violence program. Initially he presented as reluctant to personalise content, which he reported was linked to his difficulties being vulnerable in any relationship. At times this was a barrier to Mr Kalinov personalising program content. However, as the program progressed, and this was addressed he demonstrated capacity to not just intellectualise the content but apply it to his personal circumstances and abusive behaviour. His contributions to the group become more meaningful. His written work was completed to a high standard and provided a personalised understanding of the concepts. He continued to demonstrate his openness and motivation to address his abusive behaviour.
…
… Mr Kalinov demonstrated increasing insight into factors that perpetuate his cycle of abuse such as, a lack of accountability, his lack of concern for others, his manipulation through silent treatment, and attitudes that support violence and antisocial behaviours. He further related his abusive behaviour to his cycle of instability, breakdown, and dysfunctions in his relationships. He was able to identify and acknowledge barriers to his insecurities and developed skills and strategies to challenge negative self-talk and build positive self-esteem.
…
During the program Mr Kalinov's was afforded the opportunity to develop a Risk Management Plan (RMP). His RMP was detailed and demonstrated a comprehensive understanding of program content, his treatment needs and gains, and remaining areas of risk. His work showed that he had considered and taken on facilitators' feedback throughout the program and appropriately personalised program content. Overall, Mr Kalinov's RMP highlighted his improved capacity to identify abuse-related thinking, emotions and appropriate strategies for managing his risk.
[36] R2/248-54.
[37] R2/255-60.
Under the heading Summary and Recommendations, the report stated:
Mr Kalinov impressed as motivated to make positive changes in his life and address his offending behaviour. He was assessed as having a range of treatment needs related to his offending including insight into abusive behaviour, emotional management, attitudes, beliefs and cognition, and interpersonal skills…. Overall, he has made progress in addressing his treatment needs. At the time of writing Mr Kalinov has identified appropriate strategies for dealing with high-risk situations upon his release into the community, he has not yet had the opportunity to apply these skills and strategies in pertinent high-risk situations and community-based settings.
The Completion Report for the Medium Intensity Program made the following observations and assessments:
Mr Kalinov attended all 52 sessions of the Quarter 2 Medium Intensity Program at Acacia Prison on the 28th September 2021. ... Mr Kalinov presented as motivated to complete the program and asserted his intentions to engage fully in group processes. He appeared to embellish his willingness to engage and at times this was perceived as inauthentic. Mr Kalinov interacted well with other participants however was at times reserved during group discussions. Whilst he appeared consistently engaged, he would infrequently offer contributions to discussions. Mr Kalinov freely provided his conceptual understanding of content however would rarely offer personal insights and process his risk with the group… His helpseeking was seen to increase in the latter stages of the program, specifically, when completing the risk management plan. Mr Kalinov was respectful to group members and frequently offered them positive feedback.
Mr Kalinov made preliminary gains in the area of anti-social peers. He identified this as a significant factor in his offending, and throughout the program largely used this factor as a frame of reference for program concepts. Whilst he did not explicitly cast blame on his peers for the commission of his offending, he displayed limited self-reflection as it pertained to motivating factors for his engagement in such anti-social behaviours.
…
Mr Kalinov made minimal gains in the area of interpersonal skill deficits….
…
Mr Kalinov made emerging gains in his substance use. He acknowledged the role of anti-social peers in his use of cocaine and alcohol, citing that this was an aspect of his workplace culture, and was further normalised by his associates over his offending period.
…
He identified communication and support-based strategies to mitigate the risk of relapsing into substance use. Ongoing risk is held in Mr Kalinov's insight into thoughts and emotions which could lead to seeking cocaine and alcohol. Moreover, the identification of skills and strategies to manage any of these risks could further support him to reduce the likelihood of relapse.
Mr Kalinov was afforded the opportunity to complete a risk management plan. He displayed an increased receptiveness to support in completing the work and explored his risk in more detail than previously observed throughout the program.
Under the heading Summary and Recommendations, the report said:
Mr Kalinov consistently evidenced attempts to be engaged throughout the program though was reserved during group discussions. He was observed to share personal insights through written work, and infrequently elected to process his risk in the broader group context. He was encouraged to explore his risk in greater detail; however, this was not seen to shift across the program. Mr Kalinov was predominately respectful and interacted well with other group members. Occasionally he would adopt passive aggressive communication in response to unmet expectations.
…
Mr Kalinov would be encouraged to participate in the Stopping Family Violence Program to address his outstanding risk associated with interpersonal skill deficits.
The Minister referred to the Department of Justice Treatment Assessment Report performed on 2 December 2020.[38] This included assessments utilising the LS/RNR-TOMS assessment tool and a violence risk assessment administering the VRS-SV tool.[39]
The summary in the Assessment Report concluded that:[40]
Based on the current assessment Mr Kalinov presents a low risk on the VRS-SV for future violent behaviour and a medium risk of general reoffending on the LS/RNR. Mr Kalinov identified a historical problem with substance use but denied that his offending was influenced by his substance use in a significant way. Therefore, it is recommended that Mr Kalinov complete the Medium Intensity Program first to address his index general offending, substance use and develop his conflict resolution skills. Mr Kalinov's domestically violent offending is difficult to assess given that he denies the facts of the index offences. However, in light of his conviction for assaulting his then partner, it is recommended that Mr Kalinov should then complete the Stopping Family Violence. It is noted that Mr Kalinov denies some of the facts found in the Judicial Sentencing Remarks and lacks insight into his violent behaviour. This may impact on his willingness to engage fully in the Stopping Family Violence Program but it should not prevent him from participating. At the time of assessment, Mr Kalinov presented as willing to complete treatment programs. However, this appeared to be externally motivated by the prospect of Parole.
[38] R2/315-9.
[39] R2/320-2.
[40] R2/319.
The Applicant undertook the programs recommended by the Assessment Report. The Applicant also undertook the Stopping Family Violence program which had been recommended in the completion report for the Medium Intensity Program to address risk associated with his interpersonal skill deficit.[41] The more positive tenor of the completion report for the Stopping Family Violence program indicates that by the time the Applicant undertook that program he was more receptive to the treatment.
[41] See para [64] above.
The Applicant’s evidence at the hearing demonstrated that, probably as a result of having undertaken the recommended programs, he accepts responsibility for his offending behaviour and understands the impact that his illegal and antisocial conduct in the past has had. While he did not fully accept some of the details of his violent offending, including the family violence, I consider that to be more the result of his being unable to remember because of his intoxication at the time of the offending rather than a conscious denial of responsibility for his actions.
I asked the Applicant about the programs that he had undertaken and what he had learnt from them:[42]
[42] Transcript at 27.
TRIBUNAL: Can you tell me a bit about the rehabilitation programs or courses that you’ve done?
APPLICANT: Yes. Of course. So, the main ones were general offending, which went on for five months. I think that was four times a week, three hour sessions. It’s classified as medium intensity but to me it was very intense.
…
It was quite intense, the program. It was – you sit in a chair, there was 10 people in a circle, all prisoners with a facilitator on each side and this was the first time that I had to publicly to anyone about what I've done. It was very confronting. It was really hard at first but the group was very good. They were very exceptionally encourage [sic] me to keep digging deeper and to try and see where my offending came from. Basically it came down to the way we think. They try to reshape the way we think and to think first before we act out. It taught me emotional awareness as well. It taught me how to recognise my early warning signs, and that’s helped me a lot throughout prison as it’s a very – probably the most hostile environment you can possibly find yourself in. So, being able to keep your cool in there was real hard.
TRIBUNAL: … do you think you identified what the triggers or what the causes of your behaviour were?
APPLICANT: It was a series of things, but I came to the conclusion my violent charges it was definitely emotional unawareness and not being able to see my early warning signs of acting out.
…
TRIBUNAL: And what role did the drug and alcohol play in that behaviour?
APPLICANT: I think that just made me a lot more impulsive. I think it clouded my judgment of the situation and my ability to think clearly. What I really should have done in those situations was just remove yourself from the situation. I should have just walked away. Instead I was just young and dumb, just acted in a way that I don't see myself acting out in ever again.
While the Applicant’s evidence needs to be treated with caution as being potentially self-serving, his evidence at the hearing appeared genuine and demonstrated that he appreciates the seriousness of his offending, the consequences for both him and others of his offending, the consequences if he reoffends and what he needs to do to avoid reoffending.
I think that it is significant that the Applicant’s behaviour while in prison and immigration detention has been, as far as the records indicate, faultless. He has demonstrated an ability to remain drug and alcohol free for over four years. On the evidence available, it appears that the Applicant has addressed his alcohol and drug issues (which were assessed as low risk/need; para 3 Treatment Assessment Report)[43] and his violent behaviour.
[43] R2/317.
The timing of the Applicant’s offending is, in my view, significant. The Applicant led a law abiding and seemingly productive life from the time that he arrived in Australia in 2011 as an 18-year-old up until late 2017 when it appears that he went off the rails. While the offences committed by the Applicant are obviously serious, the offending profile is not that of a career criminal or someone who is inherently anti-social. It is the profile of someone who was hard-working, responsible and a contributing member of the Australian community who made a series of very bad decisions over a relatively short period.
The Applicant has engaged in the rehabilitation that has been available to him seemingly to good effect. He has been a model prisoner and has demonstrated the ability to control his behaviour. It is also clear that he has the strong support of his family with whom he is clearly close. While that support, as the Minister rightly points out, was available to the Applicant when he offended, I am satisfied that the Applicant is more mature, has taken on the lessons of the last four years in prison and immigration detention and is now far more likely to seek support and assistance from his family and friends that he was when he offended.
I assess the Applicant to be a low risk of re-offending.
While the harm that would be caused should the Applicant engage in the conduct that he has in the past is serious, I assess the risk of the Applicant engaging in that conduct as low and, accordingly, while this consideration weighs against the revocation of the cancellation of the visa, only minor weight should be given to it.
Second primary consideration: Family violence committed by the non-citizen (para 8.2)
Paragraph 8.2 of Direction 99 provides:
(1) The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2) This consideration is relevant in circumstances where:
a) a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b) there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3) In considering the seriousness of the family violence engaged in by the noncitizen, the following factors must be considered where relevant:
a) the frequency of the non-citizen's conduct and/or whether there is any trend of increasing seriousness;
b) the cumulative effect of repeated acts of family violence;
c) rehabilitation achieved at time of decision since the person's last known act of family violence, including:
i. the extent to which the person accepts responsibility for their family violence related conduct;
ii. the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii. efforts to address factors which contributed to their conduct; and
d) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen's favour. This includes warnings about the non citizen's migration status, should the non- citizen engage in further acts of family violence.
Paragraph 4(1) of Direction 99 relevantly defines family violence as follows:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful. Examples of behaviour that may constitute family violence include:
a) an assault; or
b) a sexual assault or other sexually abusive behaviour; or
c) stalking; or
d) repeated derogatory taunts; or
e) intentionally damaging or destroying property;
…
Member of a person’s family is defined in para 4(1) of Direction 99 as follows:
member of person’s family, for the purpose of the definition of the definition of family violence, includes a person who has, or has had, an intimate personal relationship with the relevant person.
The Minister’s SFIC contended as follows:
(a)The Applicant’s conviction on 9 April 2020 for common assault in circumstances of aggravation or racial aggravation was committed against his former partner.
(b)Further evidence of the Applicant engaging on family violence is provided by the Applicant’s former girlfriend having a violence restraining order against the Applicant.
(c)Ms S advised police that the Applicant threatened to kill her if she did not leave the country with her. She also gave a statement to the police to the effect that the Applicant was very controlling and jealous.
(d)The Applicant accepted that on 5 August 2016 he had “swatted” his then girlfriend away which caused her to fall off the bed. She then called the police.[44]
(e)On 3 August 2017 the Applicant pushed the same woman, by then his former girlfriend, in the back.[45]
(f)The Applicant’s conduct appears to be relatively frequent, and his rehabilitation limited.
[44] R2/69.
[45] R2/65.
The evidence established three incidents of family violence, all committed against a then current or former girlfriend with whom the Applicant was or had been in an intimate personal relationship.[46] The first incident was the Applicant “swatting” his girlfriend off his back in August 2016.[47] In the second incident in August 2017, the Applicant pushed the same woman in the back, causing her to fall.[48] The most serious incident was the assault on Ms S in December 2018.[49] Neither of the Applicant’s written statements nor any of the representations made by the Applicant to the Department in support of the application for revocation of the cancellation of the visa referred to the incidents of family violence. That was so notwithstanding that family violence is a primary consideration and the Applicant purported to address the other primary and other considerations. This indicates a lack of appreciation on the part of the Applicant of the gravity and unacceptability of family violence.
[46] Transcript at 39 and 48.
[47] See para [80(d)] above.
[48] See para [80(e)] above.
[49] See para [47] above.
While any family violence is unacceptable, it would be fair to characterise the first two incidents as being relatively minor. The first incident in August 2016 resulted in Ms H calling the police “hoping that [the Applicant] would stop her and try to reconcile”.[50] There is no report of any injury being caused and the incident was treated as “very minor in nature” by the attending police who noted that:
A Police Order was considered but deemed not appropriate/necessary in the circumstances. Neither party has a history of violence or DV and the incident was very minor in nature. The POI was co-operative with, and approached Police, and as stated, was in the process of removing himself from the premises prior to Police arrival.
[50] R2/69
The second incident in August 2017 also involved Ms H who was, at that time, no longer in a relationship with the Applicant, was also relatively minor. The police statement relevantly described this incident as follows:[51]
Whilst waiting, she heard someone behind her, then was pushed in the back where she fell onto her left knee and then onto the ground.
She turned and saw it was her ex-boyfriend. He started to abuse her. This lasted for about a minute.
The victim was approached by 2 x AFP officers who made sure she was alright.
[51] R2/65
The Applicant’s evidence at the hearing in relation to this incident in August 2017 was that he was driving home from work when he saw his former girlfriend, Ms H, standing outside a block of units. He stopped his car, got out and approached Ms H, he said, to ask where she was going. His evidence was that she tripped and fell and that he had not pushed her. His evidence in relation to this incident was not particularly convincing. He could not explain why he had stopped or why he wanted to know where she was going given that by that time they were not in a relationship. His evidence at the hearing was:
COUNSEL: So you were driving past, saw [Ms H], got out and asked her why she was there. Is that correct?
APPLICANT: I guess so. I don't remember my exact conversation.
COUNSEL: Would you accept that you had been broken up at this time?
APPLICANT: Yes.
COUNSEL: So what reason did you have to get out and speak with her and ask her what she was doing?
APPLICANT: Good question. I can't remember my reason for stopping. Maybe I was happy to see her or who knows.
The most serious of the incidents of family violence is that against Ms S in December 2018. The Applicant’s evidence under cross-examination on this incident was not particularly convincing. He seemed to alternate between contesting the account as set out in the police statement of material facts and Magistrate Maugham’s sentencing remarks,[52] and saying that he could not remember what happened. His evidence was that he and Ms S had been drinking and taking cocaine for most of the afternoon.[53] I accept, as I must[54] the sentencing magistrate’s findings of fact upon which he sentenced the Applicant. Insofar as the Applicant now attempts to provide a narrative of the events at odds with that of his Honour, his Honour’s narrative is accepted.
[52] See para [46] above
[53] Transcript at 25.
[54] HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 [78].
This consideration weighs against revocation of the cancellation of the Applicant’s visa. However, given the relatively minor nature of the first two incidents of family violence and that the most serious of the incidents, that being the assault of Ms S in December 2018, seems largely to have been caused by the Applicant’s drug, alcohol and anger management issues which he has now taken steps to address through the rehabilitative programs that he has undertaken in prison, only minor weight should be given to this consideration.
Third primary consideration: The strength nature and duration of ties to Australia (para 8.3)
Paragraph 8.3 of Direction 99 provides:
(1) Decision-makers must consider any impact of the decision on the non- citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) The length of time the non-citizen has resided in the Australian community, noting that:
• Considerable weight should be given to the fact that a non- citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
• more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
• less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
The Minister’s SFIC made submissions to the following effect:
(a)The Applicant’s immediate family being his mother, stepfather and brother live in Australia. They are all Australian citizens.
(b)The Minister acknowledges that the Applicant’s immediate family members may suffer some emotional hardship if the Applicant were not permitted to remain in and return to Australia.
(c)The Applicant has lived in Australia for 12 years.[55]
(d)The Applicant has declared fairly consistent employment as a car salesman from 2012 to 2019 and claims to have contributed to the community and economy through the payment of taxes, small cash donations to local charities and helping to sell vehicles for charity.
(e)The Applicant was not resident in Australia during his formative years.[56]
(f)The Minister accepts that this consideration weighs in the Applicant’s favour, but submits that it does not outweigh the heavy weight the Tribunal should give to the other primary considerations weighing against revocation.
[55] Citing para 8.3(4)(a) of Direction 99.
[56] Citing para 8.3(4)(a)(i) of Direction 99.
In his statement filed on 5 May 2023, the Applicant said that over his 12 years in Australia he has developed strong ties to the country, its people and its values. His is a very close-knit family and he has strong roots in Australia. He is motivated to be a productive member of the community and has invested a considerable amount of time and effort into building a life in Australia and does not want to lose that.
The statements and evidence at the hearing of his parents, his friends Mr Wilkie and Ms Rodway, and the statements provided by his brother A[57] and Ms Rodway’s father,[58] all of whom are Australian citizens, evidence the Applicant’s strong links to the Australian community, in particular to his immediate family.
[57] A2, filed 17 April 2023.
[58] R1/88.
The impact on the Applicant’s family of a decision which removes the Applicant from Australia would be significant. In his statement dated 10 April 2023, the Applicant’s stepfather said:
It would be devastating to our family if Kris was removed from Australia. His little brother [A] would be crushed. He plays a big factor in [A]’s life and his future as an older brother.
In her statement dated 10 April 2023, the Applicant’s mother said:
Deporting Kris will also pose a financial burden to my family as we haven’t travel to Bulgaria 12 years [sic] due to it being very expensive.
My family has been anticipating February for so long because of Kris's parole.
[A]planned a day off from school and was very excited to accept his brother back into normal life. However, this did not happen, and he does not have the right to be with his own brother based on his brother's nationality. This is tearing our family apart.
When asked at the hearing what effect a decision to deport the Applicant would have, the Applicant’s mother’s evidence was:[59]
This is definitely going to - going to break, not only my heart, but you know, everybody’s heart. And especially for my little boy, when we - we talking [sic] about deportation, you know. Even he’s been in a prison, we still were able to go and see, you know, Kristian. You know, you can hold him, you can give him a kiss, you can talk face to face. Deporting him is - let’s be honest, he would not be able to come here back. And so that is indefinite deportation. That is not like he can take a holiday and come back.
We haven’t been to Bulgaria at all since we arrived in Australia. It cost me like - it would cost me like $10,000 around just to fly, you know. So, this is - is not only emotional, but is going to be also financial, and it’s going to tear us apart, you know, and it’s going to break the bond between my - I’m afraid it’s going to break the bond between my boys, because, you know, like when you are family, your family get to celebrate things together, get to go through bad and good times together, you know, marriages and all of this stuff.
[59] Transcript at 104-5.
The application of the “norm” in para 8.5(1) of Direction 99 means that this primary consideration weighs against revocation of the cancellation of the Applicant’s visa.
I must, however, determine the weight that should be given to this consideration. Some guidance in this regard is provided by para 8.5(2) of Direction 99,[69] which provides that the Australian community expects that the Australian Government can, and should, refuse entry to non-citizens if they raise serious character concerns through conduct, in Australia or elsewhere, of the kind listed is sub-paras 8.5(2)(a)–(f) of Direction 99. The Applicant’s acts of family violence come within the category of conduct described in para 8.5(2)(a).
[69] See para [105] above.
The particular circumstances of the Applicant and the low likelihood of the Applicant offending as he has in the past, do not warrant this consideration being given significant weight. The fact that the Applicant is relatively young, or certainly was when he committed the offences, the fact that he had up to that time been a contributing member of the community, the fact of his links to the community and his family and the fact that he poses a low risk of reoffending mean that this consideration should only be given minor weight.
OTHER CONSIDERATIONS
Paragraph 9 of Direction 99 sets out the “Other considerations” to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) Legal consequence of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of decision under section 501 or 501CA (para 9.1)
Paragraph 9.1 of Direction 99 relevantly provides:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful non-citizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. …
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
Direction 99 has separate provisions depending on whether protection finding (as defined in section 197C of the Act) has been made. No such finding has been made in respect of the Applicant. In such a case para 9.1.2 applies. That, relevantly, provides as follows:
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding… in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non- refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non- refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non- refoulement obligations are engaged in respect of the person.
(3)…
The Applicant has not made any submissions in relation to this consideration. Further, there is no evidence, either in the material put forward by the Applicant or in the G documents/supplementary G documents that would enliven this consideration.
Extent of impediments if removed (para 9.2)
Paragraph 9.2 of Direction 99 provides:
(1) Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) the non-citizen's age and health;
b) whether there are substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Minister’s SFIC made submissions to the following effect:[70]
(a)This consideration requires the decision-maker to consider the Applicant’s age and health; whether there are substantial language or cultural barriers; and any social, medical and/or economic support available to him in Bulgaria.
(b)The applicant is aged 30 and has not declared any psychical health conditions.
(c)The Applicant contends that if returned to Bulgaria he would not know what to do and would have nowhere to go, would not be able to secure full-time employment as he has not finished school in Bulgaria and would not be able to see his family as they do not go to Bulgaria anymore.
(d)The Applicant’s father lives in Bulgaria, however, the Applicant has stated that they are not close, and he believes that his father is in prison.
(e)The Applicant, however, also has other family that reside in Bulgaria and other countries in the European Union including two grandparents in Bulgaria and an uncle in Germany. The Applicant also has a cousin in the United Kingdom.
(f)The Applicant has otherwise not provided any independent evidence to corroborate his claims that he would be unable to secure employment in Bulgaria or elsewhere in the European Union.
(g)Although the Applicant may face some difficulty in re-establishing himself in Bulgaria due to his residence in Australia, this factor would not preclude resettlement. Bulgaria is not a place unfamiliar to him given that he grew up there and it appears he spent the first 18 years of his life there. Furthermore, the suggestion that the applicant would face difficulty establishing himself in Bulgaria is inconsistent with his attempts to obtain fraudulent identity documents in order to travel there to escape prosecution in Australia.
[70] Minister’s SFIC at paras [53] - [55].
In his statement filed in the Tribunal on 17 April 2023, under the heading “Risk of Significant Harm if Removed from Australia”, the Applicant said:
If I am removed from Australia, I will be separated from my family and support network, which will have a significant impact on my mental health and well-being.
I fear I will suffer from depression should I be deported as I will be all alone with no friends or family around me and now way of going back to them. If I am deported to Bulgaria, I fear I will not have access to the same level of social support as I would if I was to remain in Australia. Apart from one 80 something year old grandmother (who requiers [sic] full-time care) I have no one else left there. I am concerned that I will be unable to access basic necessities such as housing or employment opportunities. I have nowhere to go and no money to afford even the cheapest of properties for rent. I fear I may end up homeless.
While couched in terms of fearing harm, the Applicant’s claims are clearly not sufficient or of such a nature to give rise to any valid protection claim. The claims, are, in effect, claims that he may encounter some impediments in establishing himself if he were to be returned to Bulgaria.
While it may be the case that the Applicant would face some emotional hardship caused by separation from his family, friends and the lifestyle that he is accustomed to in Australia, the matters that he raises are not the types of matters coming within the scope of this consideration. The relevant consideration is whether, taking into account the considerations identified in sub-paras 9.2(1)(a), (b) and (c), the Applicant would face an impediment (or impediments) in establishing and maintaining basic living standards in the context of the basic living standards that other citizens of Bulgaria enjoy. The Applicant is young, in good health and relatively well-educated. His evidence at the hearing was that he had no health issues, no underlying chronic conditions and no diagnosed mental health condition.
His evidence was that the nurse at Acacia Prison had put him on a “light antidepressant” for about eighteen months, but he stopped taking them in the middle of 2022.[71]
The Applicant speaks Bulgarian.[72]
[71] Transcript at 32.
[72] Transcript at 31.
The evidence does not establish that the Applicant would not be entitled to receive the same social, medical and/or economic support available to citizens of Bulgaria. Other than the emotional hardship which is likely to be caused by the Applicant being separated from his family, there is no evidence that the Applicant would face any impediments in establishing and maintaining basic living standards in the context of what is generally available to other citizens of Bulgaria. As the Minister rightly points out, any claim that he would encounter such impediments must also be assessed in light of the fact that, not that long ago, the Applicant was obviously prepared to return to Bulgaria using fraudulent travel documents including a false Bulgarian passport.
I find that this consideration does not weigh in favour of revoking the cancellation of the Applicant’s visa.
Impact on victims (para 9.3)
Paragraph 9.3 of Direction 99 provides:
(1) Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
In his document filed in the Tribunal on 17 April 2023, the Applicant made the following submission relevant to this consideration:
First and foremost, I would like to express my sincere apologies to the victims of my actions. I understand that my behaviour has caused them harm and distress, and I take full responsibility for my actions. I would like to assure the Tribunal that I have taken steps to address the underlying issues that led to my behaviour.
While I recognize the seriousness of my actions and the impact they have had on the victims, I respectfully ask the Tribunal to consider the broader implications of their decision. If my appeal is denied, I will be forced to leave Australia and return to Bulgaria, where I will be separated from my family and unable to support them or see them.
I would like to stress that I am not asking for leniency or for my actions to be excused. Rather, I am asking the Tribunal to consider the full range of factors involved in this case and to make a decision that is fair and just for all parties involved. I understand that the tribunal must prioritize public safety and the interests of victims, but I also ask that my rights and those of my family be taken into account.
The Minister’s SFIC submitted that:
There is no evidence from any victims of the applicant’s offending as to the impact the decision would have on them. Accordingly, this consideration should be given neutral weight.
As I have noted in previous matters,[73] although para 9(1)(c) of Direction 99 and the heading to para 9.3 refer only to impact on victims, para 9.3(1) requires consideration of the impact of a decision not to revoke the cancellation of the visa on members of the community, including victims.
[73] See Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171 at [109]–[111]; Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165 at [138]–[139]; VGJG and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] AATA 685 at [170].
Insofar as a consideration broader than the impact on victims is required, the possible impact of the Applicant being permitted to stay (i.e. a decision to revoke the cancellation) has been dealt with under the first primary consideration, the protection of the Australian community.[74] The impact of the Applicant’s removal (i.e. a decision not to revoke) is also considered in the primary consideration of the strength, nature and duration of the Applicant’s ties to the Australian community under para 8.3 of Direction 99[75] and in considering the best interests of minor children under para 8.4.[76] Insofar as the impact on those members of the Australian community is to be considered, I do so under those considerations.
[74] See above paras [34]-[76].
[75] See above paras [87]-[96]
[76] See above paras [97]-[104].
Insofar as this consideration requires consideration of the impact of a decision under s 501CA(4) on the victims of the Applicant’s offending, the Minister’s submission that there is no evidence from any victims as to the impact that the decision would have on them, is correct.
Given that the impact of a decision on the community and identified members of the community are taken into account in the considerations as set out in [131] above, and there is no evidence of the impact that a decision would have on the victims of the Applicant’s offending as a specific sub-class of the community, this consideration does not weigh either in favour of revocation of the cancellation of the Applicant’s visa or against it.
Impact on Australian business interests (para 9.4)
Paragraph 9.4 of Direction 99 provides:
(1) Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant made no submission relevant to this consideration.
The Minister’s SFIC submitted that:
An employment link will generally only be given weight where non-revocation would significantly compromises the delivery of a major project, or delivery of an important service in Australia in accordance with paragraph 9.4(1) of Direction 99. The applicant does not contend that this consideration is relevant and so this consideration neither weighs for nor against revocation.
While the Minister’s apparent contention that this consideration only applies to the compromise of the delivery of a major project or important service in Australia needs to be treated with caution given the observations of Rangiah J in Arachchi and Minister for Immigration, Citizenship and Multicultural Affairs,[77] I find that there is insufficient evidence for me to give any weight to this consideration of impact on business interests.
[77] [2022] FCA 1311 at [66]- [73].
THE WEIGHING EXERCISE
Direction 99 guides the decision-maker on how to apply the primary and other considerations. Paragraph 7 of Direction 99 sets out the way in which the relevant considerations are to be taken into account (see [26] above).
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While some of these cases were looking at that exercise under earlier Ministerial Directions issued under s 499 of the Act (see [22] above), the same considerations apply to the exercise required by Direction 99 which is materially in the same terms to those earlier Ministerial Directions. I am guided by Colvin J’s judgment in Suleiman v Minister for Immigration and Border Protection[78] and the Full Court judgment in Minister for Home Affairs v HSKJ.[79]
[78] [2018] FCA 594.
[79] [2018] FCAFC 217; (2108) 266 FCR 591.
Colvin J’s judgment in Suleiman was considered by Wigney J in FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs.[80] At [21], Wigney J cited [23] of Colvin J’s judgment which was as follows:
The use by the Tribunal of the term ‘secondary’ indicates that the ‘other considerations’ are always of lesser importance. However, Direction 65 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.
(Emphasis omitted.)
[80] [2021] FCA 775.
Wigney J then observed at [22]:
It is the last sentence of this paragraph of Suleiman which has given rise to the issue in this case. That issue will be discussed in more detail later. It suffices at this point to note that, with the greatest respect to Colvin J, this analysis of paragraph 8 of the relevant direction tends to overcomplicate or over intellectualise the issue. More significantly, it may lead decision-makers into error. Paragraph 8 of Direction no. 79 is expressed in simple terms. Relevantly, decision-makers must take into account the primary and other considerations that are relevant to the individual case and, when it comes to weighing up the relevant considerations, have regard to three relevant principles: first, both primary and other considerations may weigh in favour of, or against, whether or not to revoke a cancellation of a visa; second, primary conditions should generally be given greater weight than other considerations; and third, one or more primary considerations may outweigh other considerations. It is difficult to see why any further elaboration of those simple principles or propositions is necessary or warranted.
(Emphasis omitted.)
I adopt the approach directed by the above cases.
I find that the first primary consideration, the protection of the Australian community, weighs against the revocation of the cancellation of the visa, but that only minor weight should be given to it (see [76] above).
I find that the second primary consideration, family violence committed by the Applicant, weighs against the revocation of the cancellation of the Applicant’s visa, but that only minor weight should be given to this consideration (see [86] above).
The third primary consideration, the strength, nature and duration of the Applicant’s ties to Australia, weighs in favour of revocation of the cancellation of the decision to cancel the Applicant’s visa. Moderate weight should be given to it (see [96] above).
The fourth primary consideration, the best interests of minor children in Australia affected by the decision, weighs in favour of revocation of the decision to cancel the Applicant’s visa. Moderate weight should be given to this consideration (see [104] above).
I find that the fifth primary consideration, the expectations of the Australian community, weighs against revocation of the decision to cancel the Applicant’s visa, but that only minor weight should be given to it (see [115] above)
In relation to the “other considerations” identified in Direction 99, I find that the consideration of the legal consequences of the decision is not relevant in the present case. I find that the consideration of the extent of impediments if removed does not weigh in favour of revoking the cancellation of the Applicant’s visa. The other two considerations, impact on victims and impact on Australian business are, for the reasons set out above, neutral or not relevant.
I am mindful that para 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations (see [26] above). Nothing has been presented which would indicate that that general principle should not apply in the present case. Having weighed the considerations in favour of revoking the decision to cancel that Applicant’s visa and those against revoking the decision to cancel the Applicant’s visa, I find that the considerations in favour of revoking the decision to cancel the Applicant’s visa, in particular the third and fourth primary considerations, outweigh those weighing against the revocation of the cancellation of the visa. Accordingly, I find that there is another reason why the original decision should be revoked and that the discretion to revoke the cancellation of the Applicant’s visa should be exercised.
DECISION
The decision of the delegate of the Minister dated 28 February 2023 not to revoke the cancellation of the Applicant’s Employer Nomination (Class EN) (subclass 186) visa is set aside and substituted with the decision that the cancellation of the Applicant’s visa be revoked under s 501CA(4)(b)(ii) of the Act.
I certify that the preceding 150 (one hundred and fifty) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
.......[Sgd].............................................................
Associate
Dated: 23 May 2023
Dates of hearing: 9-10 May 2023 Counsel for the Respondent: Ms D Jones-Bolla Solicitors for the Respondent: Sparke Helmore Lawyers
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