Kleinberg and Minister for Home Affairs (Migration)

[2018] AATA 3367

Kleinberg and Minister for Home Affairs (Migration) [2018] AATA 3367 (10 September 2018)

Division:GENERAL DIVISION

File Number(s):      2018/3559

Re:Bryan Richard Kleinberg

APPLICANT

AndMinister for Home Affairs

RESPONDENT

DECISION

Tribunal:Deputy President P Britten-Jones

Date:10 September 2018  

Place:Adelaide

The decision of the delegate of the Minister is affirmed.

.................................[SGD].......................................

Deputy President P Britten-Jones

CATCHWORDS

IMMIGRATION — Mandatory cancellation of visa — Request for revocation of cancellation — Character test — Substantial criminal record over long period — Sentence of imprisonment of 12 months or more — Protection of the Australian community — Best interests of minor children — Expectations of the Australian community — Other considerations — Strong ties to Australia — Warning given as to consequences of re‑offending — Decision under review affirmed.

LEGISLATION

Migration Act 1958, ss 499, 501, 501CA
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

CASES

Falzon v Minister for Immigration and Border Protection [2018] HCA 2

REASONS FOR DECISION

Deputy President P Britten-Jones

10 September 2018

1. The applicant is a citizen of the United States of America who has been living in Australia since 1999.  During his time in Australia the applicant has been convicted of numerous criminal offences and has served three separate periods of imprisonment.  

2. Prior to the end of his most recent term of imprisonment, the applicant’s visa was cancelled mandatorily by a delegate of the Minister for Home Affairs under s 501(3A) of the Migration Act 1958 (the Act) because he had a “substantial criminal record” and therefore did not pass the character test under s 501(6)(a) of the Act. Upon being released from prison the applicant was placed in detention where he remains.

3. On 31 August 2017, the applicant made representations to the Department of Immigration and Border Protection (the Department) about revoking the decision to cancel the visa.

4. On 18 June 2018, a delegate of the Minister decided not to revoke the original decision to cancel the visa under s 501CA(4) of the Act.

5. The applicant has applied to the Tribunal for review of the delegate’s decision and seeks revocation of that cancellation decision under s 501CA(4) of the Act.

   BACKGROUND

6. The applicant was born in California in 1972. He enjoyed a generally good upbringing but differences between his parents resulted in his family life becoming increasingly strained. He said that his father was disinterested in him and cruel to his mother. He has not seen or spoken to his father since 1997. The last time he spoke to his mother was in 2015. His mother suffers from mental problems.

7. After leaving school the applicant enrolled online in War College and he then joined the Marine Corps for eight years. He served in the Gulf War and rose to the rank of Staff Sergeant.

8. The applicant came to Australia on a three month visitor’s visa in 1999. He went to TAFE and obtained a Security Crowd Controllers Licence.  He then worked in the security industry as a crowd controller for about 3 years. He married in 2001. His daughter and son were born in 2004 and 2008 respectively.

9. The applicant separated from his wife towards the end of 2010. He obtained permanent residency in May 2011.

   THE OFFENDING

10. The National Police Certificate for the applicant discloses offences for which he was convicted over a period from 2001 to 2017. There are 46 separate offences involving criminal trespass, larceny, dishonesty, breaches of licensing laws, breaches of bail agreements, failing to store ammunition separately from firearms, failing to file a statement of affairs and a number of driving related offences.

11. The most serious offences took place during a period in 2000 and 2001 and later in 2008.

    Stealing mobile phones and breaking into cafes in 2000 and 2001

12. The offences in 2000 and 2001 included larceny and aggravated serious criminal trespass. They related to a period during which the applicant worked within the security industry as a crowd controller at various nightclubs. The applicant pleaded guilty to offences committed in 2000 and was sentenced by Judge Muecke (as he then was) in the District Court on 28 April 2004. Judge Muecke summarised the circumstances surrounding the offending in his sentencing remarks as follows:

    You worked for the security firm as a crowd controller at various nightclubs. Well publicised issues within the security industry and issues within the firm for which you worked led you to become increasingly unhappy in that work. You resigned from your employment in 2000 whereupon your name was blacklisted within the security industry.

    It was in the context of having ceased your employment and having little money and growing debts that you became involved in this offending. In addition your former employer refused to pay you money you were owed on the pretext that you owed them money. You were approached by an associate whom you had met whilst working in the security industry. He asked you to join him and others in committing the offences …

13. In sentencing remarks for later offences Chief Judge Muecke described the circumstances in which the offending in 2000 took place as follows:

    After [moving to Australia] you went to TAFE, where you got a Security Crowd Controllers licence, you became involved in security work over a three-year period. You left that work when you were married and because the company you were working for was owned by a motorcycle club here in Adelaide. You were having issues with not being paid and, when you were, you were being paid by the club, not the company. The club then sought reimbursement and that was followed by threats. You were put into a situation where you either had to pay money or agree to do something ‘It ended up with me being convicted and jailed of a crime’.

14. The first of these offences took place on 1 September 2000. The applicant organised and obtained the van to be used and operated as the lookout during the offending. About 172 mobile phones were stolen. The applicant became involved in further offending on 18 September 2000. He and a co-offender went to a mobile phone store in Stepney. He had a sledgehammer, balaclavas, torches, garbage bags to carry the mobile phones, gloves and bolt cutters. He smashed the front door of the store causing significant damage to it and then stole 10 mobile phones. The applicant and his co-offender then drove to another mobile phone store and smashed the front window and entered the premises. Inside the premises he damaged an internal door with a sledgehammer, trying to get access to a stock room containing valuable stock. Mobile phone accessories of a minor value were stolen.

15. Judge Muecke concluded in his sentencing remarks:

    All this offending is serious offending of its type. None of it was of the moment. It was all premeditated and planned with the intention of stealing a very considerable amount of valuable communication equipment. Your sentence must reflect appropriately principles of general deterrence and also personal deterrence.

16. Judge Muecke sentenced the applicant as a first offender taking into account that he succumbed to the temptation to commit these offences when his circumstances were such that he was not as well-equipped to resist that temptation as he might otherwise have been. His Honour imposed a sentence of one year and nine months imprisonment with a non-parole period of 10 months and said:

    You are now married to an Australian citizen and you and your wife are expecting a child in September this year. You have expressed your sorrow for what you have done in this offending. You have expressed sorrow for having failed your wife and child, your family and friends and what you had hoped to be your adopted country. You have asked me to understand that you are not a person who wishes to live outside the law. You have said that you intend never to offend again. I accept that you genuinely mean what you have written and I accept what has been written of you by a supervisor at Yatala.

    I accept that, but for this spate of serious offending, you are basically a decent man who is unlikely to offend again.

17. The Judge was unaware at the time of sentencing, and it was certainly not disclosed by the applicant, that he had been involved in one further offence in September 2000 and two further offences in 2001.  The further offence in September 2000 involved another mobile phone store from which goods to the value of $7,521 were stolen. The 2001 offences involved the applicant forcing entry into the Buongiorno Café at West Lakes on 1 October 2001 and the Cafe Passatempo on Gouger Street, Adelaide on 24 November 2001. The applicant pleaded guilty and was sentenced in the Magistrates Court.

18. Magistrate Grasso said in his sentencing remarks with respect to these further offences on 14 October 2009:

    You have pleaded guilty, at the earliest possible opportunity, to 3 counts of non-aggravated serious criminal trespass and one count of larceny.

    The offences are very old, committed some 8 to 9 years ago it has taken all this time for these offences to come to light through a DNA match.

    I am told in 2004 you were sentenced in the District Court in relation to major indictable offending and received a head sentence of 18 months with 10 months non-parole. You actually served that time. It would seem that those offences for which you were then sentenced were committed around the same time as these. It seems that since that time there has been no further offending and from what I have heard, you have changed your life around.

    In these circumstances I believe it is appropriate that I impose a period of imprisonment. The offences are serious, but it would be inappropriate, in my opinion to order you to actually serve the period of imprisonment.

    Stealing money as a security guard

19. Further offences of dishonesty were committed by the applicant in September 2008. The applicant was the director of a security company which contracted with a business in Adelaide to collect their weekly takings and bank them. On five Mondays in the month of September 2008 the applicant collected the weekend takings of the business but did not bank them. He kept them for himself. When confronted, the applicant said that he had taken the money to another branch of the bank but this was soon discovered to be false. He pleaded guilty to two counts of theft and was sentenced in the District Court (by Chief Judge Muecke). The applicant said in evidence that the amount stolen was about $118,000 but the sentencing remarks of Chief Judge Muecke record that it was around $170,000.

20. The applicant found himself in very difficult financial circumstances in the period leading up to the offending in September 2008. It was in these circumstances that the applicant decided to steal the money and use it for his own purposes.

21. In the period 2001 to 2004, the applicant was able to rebuild his life and worked as a forklift driver whilst doing some part time security work. He married in September 2001. In 2004 he served his term of imprisonment for a period of 10 months with the last three months on home detention because his wife had given birth to their first child.  The applicant then returned to work as a crane driver.

22. From mid-2007 things started to decline. The applicant took over a security company from a close friend who had died in a motor vehicle accident. That company was involved in costly litigation in which it was successful but unable to recover the money owed to it. The applicant fell behind in his mortgage repayments. There were renovations which needed to be paid for and expenses relating to the birth of their second child on 28 August 2008. The applicant said that he took the money to pay for these household and business expenses. This seems to have been accepted by Chief Judge Muecke who said in his sentencing remarks:

    I shall sentence you on the basis that I am satisfied that you are not inherently a bad man. It seems to me that none of your offences of dishonesty in 2000 and in 2008 were committed by a criminal for greed.

    You have done good things in your life, despite some severe pressures and challenges in life and within your family and relationships. Unfortunately, when you have committed a crime it has been a significant one, particularly what you did in September 2008 when you stole a lot of money from a client of your company when you were entrusted with that money as part of your contractual position relating to that client’s business.

23. On 29 June 2016, Chief Judge Muecke sentenced the applicant to a term of imprisonment for four years and six months and fixed a non-parole period of one year and nine months.

    Acting as a security agent without a licence

24. The applicant was convicted of offences for acting as a security agent without a licence in the Adelaide Magistrates Court on 10 January 2007.  The first offence took place in April 2005. The applicant tried to justify his conduct by saying that he knew that he was unlicensed but he considered that he did not need a licence because he was doing no work of crowd control.

25. Despite being convicted in January 2007 the applicant offended again in September and November 2007. He was convicted on two further counts of acting as a security agent without a licence at a hearing in the Adelaide Magistrates Court on 17 June 2010. A fine of $4000 was imposed. The applicant attempted to explain his conduct by saying that he had approached the Office of Consumer and Business Affairs who had told him that only a director needed to hold a security licence and that a friend with a licence had come on board from May 2007. I consider that there is no excuse for the two companies being unlicensed and it is of concern that the applicant appears to have no insight into his wrongdoing and has failed to accept responsibility for his conduct. It is also of concern that these contraventions in September and November 2007 took place so soon after being convicted of a similar offence earlier that same year.

    Offending since 2008

    Driving offences

26. When giving evidence, the applicant expressed genuine remorse for those serious offences in 2000/2001 and in 2008 and referred to the mitigating circumstances involved with them.  He said that since 2008 he has not been involved in any further serious offending.  That is true to a certain extent but in the period from 2008 to 2015 there are a remarkable number of driving offences.  The applicant repeatedly drove while unlicensed and while his vehicle was uninsured and unregistered.  This culminated on 14 August 2015 when the applicant was convicted of driving under disqualification or suspension and was sentenced to a period of imprisonment of 6 weeks suspended upon entry into a good behaviour bond of 18 months.

    Failing to provide a statement of affairs

27. On 24 June 2011 the applicant was convicted of an offence for failing to provide a statement of affairs. This offence related to the bankruptcy of the applicant. The offence date was 15 July 2010 and he received a fine of $300.

    Passing valueless cheques

28. On 3 February 2017 the applicant was convicted of offences relating to dishonoured cheques. There were four offences covering the period from March 2013 to September 2014. The Magistrate imposed a term of imprisonment of three months. The applicant blamed his housemate at the time for withdrawing money from his account without his knowledge.

    STATUTORY FRAMEWORK

29. The relevant statutory framework was summarised in Falzon v Minister for Immigration and Border Protection [2018] HCA 2 by Gageler and Gordon JJ at [70] to [74]:

    [70] The object of the Act is “to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens”. To advance that object, the Act “provides for visas permitting non-citizens to enter or remain in Australia” and states that the Parliament intends that the Act “be the only source of the right of non-citizens to so enter or remain”. The Act also “provides for the removal or deportation from Australia of non-citizens whose presence in Australia is not permitted by [the] Act”.

    [71] Section 501 contains powers to refuse or cancel a visa on character grounds. Subsections (1), (2) and (3) identify circumstances in which the Minister may refuse to grant a visa to a person or may cancel a visa that has been granted to a person. The operation of each subsection depends on the Minister forming an opinion or state of satisfaction about whether the person passes the statutory “character test”.

    [72] Section 501(3A) is in different terms. It relevantly provides that the Minister must cancel a person's visa if:

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

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

    (ii)  … ; and

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

    The subsection imposes an obligation on the Minister to cancel a visa whenever its terms are met. If the pre-conditions to the exercise of the power exist, the Minister does not have a discretion to decide not to consider exercising the power in s 501(3A).

    [73] The circumstances in which a person does not pass the character test are set out in s 501(6). Section 501(6)(a) provides that a person does not pass the character test if the person has a “substantial criminal record”, as defined by s 501(7). Relevantly, s 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

    [74] A decision to cancel a visa pursuant to s 501(3A) may be revoked under s 501CA. As soon as practicable after making a decision to cancel a person's visa, the Minister must give the person notice of the cancellation decision and particulars of the information on which the decision was based, and invite the person to make representations to the Minister about revocation of the cancellation decision. If the person makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test or that there is another reason why the cancellation decision should be revoked, the Minister may revoke the cancellation decision.

30. The power to revoke the cancellation decision is conferred by s 501CA(4) which provides that:

    (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.

31. The Minister's discretion under s 501CA(4)(b)(ii) to revoke a cancellation decision is a broad one, requiring only that the Minister be “satisfied that there is another reason why the original decision should be revoked”.

32. Guidance with respect to the exercise of this discretion is provided to a delegate of the Minister by Direction No. 65 (the Direction) made under s 499 of the Act.

    Direction No. 65

33. Paragraph 6.1 of the Direction sets out the objectives of the Act. Relevantly it provides:

    6.1 Objectives

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

    (2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.

    (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 (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

    (4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.

1. Paragraph 6.2 provides general guidance to the decision maker, relevant to this case is paragraph 6.2(3) which provides:

   (3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen's visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.

2. The principles which must be applied when determining whether or not the visa cancellation should be revoked are set out in paragraph 6.3 of the Direction which relevantly provides as follows:

   6.3 Principles

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

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

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

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

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

3. Section 2 of the Direction explains how to exercise the discretion and provides as follows:

   7. How to exercise the discretion

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

   a)  …

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

   8. Taking the relevant considerations into account

   (1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.

   (2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.

   (3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.

   (4) Primary considerations should generally be given greater weight than the other considerations.

   (5) One or more primary considerations may outweigh other primary considerations.

4. The primary considerations are set out in Part C of the Direction as follows:

   13. Primary considerations — revocation requests

   …  

   (2) In deciding whether to revoke the mandatory cancellation of a non-citizen's visa, the following are primary considerations:

   a) Protection of the Australian community from criminal or other serious conduct;

   b) The best interests of minor children in Australia;

   c) Expectations of the Australian community.

5. Other considerations to be taken into account relevant to the applicant in this matter as set out in paragraph 14 of the Direction are the strength, nature and duration of ties he may have to Australia and the extent of any impediments he may face if removed from Australia.

   Protection of the Australian community: a primary consideration

6. When considering protection of the Australian community, decision makers are to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.

7. As a decision maker I am also to give consideration to:

   (a) the nature and seriousness of the non-citizen's conduct to date; and

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

   The nature and seriousness of the conduct

8. In considering the nature and seriousness of the applicant's criminal offending or other conduct to date, I am to have regard to factors including those set out in paragraph 13.1.1(1) of the Direction. The factors relevant to the applicant are:

   • the sentences imposed by the courts for his crimes;

   • the frequency of the applicant's offending and whether there is any trend of increasing seriousness;

   • the cumulative effect of repeated offending;

   • whether the applicant has re-offended since being formally warned, or since otherwise made aware, in writing, about the consequences of further offending in terms of the applicant's migration status.

9. I turn to consider these factors now.

10. The larceny and the aggravated criminal trespass offences committed in 2000 and 2001 were serious. This was reflected by Judge Muecke and Magistrate Grasso in their sentencing remarks and in the periods of imprisonment imposed by them, although noting that Magistrate Grasso was prepared to suspend the two years of imprisonment that he imposed.

11. The applicant accepted that these offences were serious but said that they were all committed under threat of violence from the motorcycle gang with whom he had become involved. I have taken that into account but I do not consider it to diminish in any significant way the seriousness of the offending. In this regard I note that there was over 12 months between the offences at the mobile phone stores and the offences at the cafes and that the applicant has to take responsibility for not disassociating himself from these detrimental influences.

12. With respect to the 2008 offending Chief Judge Muecke imposed a very significant term of imprisonment of four years and six months with a non-parole period of one year and nine months. This offending was very serious. It was carried out over a period of five weeks and involved a significant breach of the trust given to a security guard handling the money of another. There is no doubt that the applicant found himself under severe financial pressure at the time of this offending but that in itself is not unusual and does not excuse his behaviour.

13. Further with respect to considering the sentences imposed by the courts, I note that the applicant was convicted in the Port Adelaide Magistrates Court for driving under disqualification and suspension on 14 August 2015 for which a six-week term of imprisonment was imposed but suspended upon entering into a bond for 18 months. In addition, there is the three months term of imprisonment imposed in the Port Adelaide Magistrates Court on 3 February 2017 with respect to the dishonoured cheques.

14. The applicant’s offending has been frequent although there is no trend of increasing seriousness. I do not accept the submission made by the applicant that he has not committed any serious offences for the last 10 years. I consider that any offence which results in a term of imprisonment, whether suspended or not, is serious. In this regard I note the sentences of imprisonment imposed in the Port Adelaide Magistrates Court on 14 August 2015 and 3 February 2017.

15. I consider serious the cumulative effect of the applicant’s repeated offending commencing with his first appearance in court on 30 January 2001 for driving an unregistered vehicle with no insurance and culminating in his appearance in the Port Adelaide Magistrates Court on 3 February 2017, when he was convicted with respect to the dishonoured cheques and for failing to comply with his bail agreement for which a three month term of imprisonment was imposed.  There is a total of 46 separate offences committed over a 17 year period.

16. Traffic offences would not normally be considered to be serious but in the case of the applicant there are at least 20 convicted offences relating to driving an unregistered and uninsured motor vehicle and driving whilst unlicensed. Hundreds of dollars of fines were imposed but not paid. By continually offending during a period of over 15 years the applicant has shown a contumelious disregard for authority. The cumulative effect of these offences renders them serious. The seriousness of this offending is reflected in the suspended term of imprisonment of six weeks handed down in the Port Adelaide Magistrates Court in August 2015.

17. With respect to being warned about the consequences of offending, I note that Judge Muecke said in his sentencing remarks in April 2004 that the most likely scenario would be that the applicant would be deported when any sentence imposed was completed. In fact, the applicant was not deported and was released from prison into the community after serving his first term of imprisonment in 2004. The applicant was given a formal written warning by letter dated 9 October 2009 from the Department of Immigration and Citizenship that if he engaged in certain further conduct then cancellation of his visa may be considered. A further formal written warning was given by the Department of Immigration and Citizenship on 9 May 2011.  Since those warnings the applicant has committed numerous traffic offences, breached his bail conditions and received a term of imprisonment for passing valueless cheques.

    The risk to the Australian community should the applicant commit further offences or engage in other serious conduct

18. Paragraph 13.1.2(1) of the Direction provides that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I am to have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases.

19. In considering the risk to the Australian community, I must have regard to, cumulatively:

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

    (b) the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.

20. It is apparent from the description of the applicant’s offending above that there would be serious and unacceptable harm to individuals if the applicant were to engage in further criminal or other serious conduct in the nature of his previous offending.

21. With respect to the less serious offences for traffic infringements, I consider that it is likely that the applicant will reoffend. I reach that conclusion based upon the fact that the applicant continued to offend over a long period of time despite being regularly convicted and warned of the consequences.

22. With respect to the risk of engaging in more serious conduct, the applicant has provided a psychological report dated May 2016 in which the psychologist opined that the applicant would likely benefit from a structured period of rehabilitation to support his prospects for future recovery. Further, the psychologist considered the applicant would benefit in the longer term from being referred to a psychologist for assistance with managing relationships more effectively. In his view this intervention may reduce his tendency to make impulsive or poorly thought out decisions in the future, as well as allowing him to access support and develop skills in communication within relationships. With these treatment strategies in place, it was the psychologist’s opinion that he would likely evidence a fairly low level of risk in the future. In the absence of such interventions, however, he considered the applicant would likely be at a low to moderate risk of reoffending in the future.

23. The applicant has expressed genuine remorse for his more serious offending in 2000/2001 and 2008.  He says that he has learnt from his past mistakes and will not offend again.  Whilst I accept the genuineness of these remarks, I do note with concern that similar expressions of sorrow and regret were made to Judge Muecke back in 2004.  The applicant told Judge Muecke that he never intended to offend again and this was accepted by the Judge.  Since that time the applicant engaged in the most serious of his offending in 2008 and, despite official warnings that he may be deported, he has continued to regularly offend, resulting in further numerous criminal convictions albeit of a less serious nature than before.

24. The applicant has not taken the steps of rehabilitation recommended by the psychologist and hence I conclude that there is a moderate risk that the applicant will reoffend in the future.

    Conclusion as to protection of the Australian community

25. Since arriving in Australia in 2001 the applicant has failed to abide by the laws of Australia and has failed to respect Australia’s law enforcement framework. There is a real risk that this behaviour will continue. This factor weighs heavily in favour of not revoking the decision to cancel the applicant’s visa.

    The best interests of minor children in Australia affected by the decision: a primary consideration

26. I am required by paragraph 13.2(1) of the Direction to make a determination about whether revocation is, or is not, in best interests of any minor children.

27. The applicant has two children who are Australian citizens. The evidence shows that the applicant has been a good father to his children and despite separating from his wife, he has continued to provide beneficial assistance in their upbringing. The younger child, his son, will be particularly devastated if his father is not allowed to remain in the country. The impact upon the older child, his daughter, will be less and I note that in recent times she has refused to have anything to do with her father.

28. The children would benefit from his presence and personal interactions, together with the practical and financial support he would be able to offer. This consideration weighs in favour of revocation of the visa cancellation.

    Expectations of the Australian community – a primary consideration

29. The Australian community expects non-citizens to obey Australian laws while in Australia. The applicant has failed to do so. He got involved with the wrong type of people and committed crimes with them soon after arriving in Australia. The applicant then held a position of trust and responsibility within his security company but he breached that trust by dishonestly taking the property which he had been engaged to protect. He showed disregard for authority by failing to properly license himself as a security guard, failing to comply with bail conditions and by constantly driving whilst unlicensed, unregistered and uninsured.

30. The applicant has failed to live up to the expectations of the Australian community. In these circumstances it is appropriate to not revoke the mandatory visa cancellation.  This factor weighs heavily against revoking the cancellation of his visa.

    Other considerations

31. Paragraph 14 of the Direction provides for other considerations that I must take into account in deciding whether to revoke the mandatory cancellation of a visa. Those considerations insofar as they are relevant are:

    ·the strength, nature and duration of ties;

    ·the impact on victims;

    ·the extent of impediments if removed.

32. I take into account that the applicant has a good employment history and has been a very hard worker since he arrived in Australia. I also take into account that he has been and will always be a loving and supportive father to his children. In that sense the applicant has made a positive contribution to the Australian community but that positive contribution is outweighed by his constant offending which included serious crimes causing significant financial loss to innocent victims and involving property damage, theft and breach of trust.

33. The applicant arrived in Australia about 19 years ago when he was 27 years old. He began offending very shortly after that in 2000. Less weight is to be given to how long the applicant has been in Australia in circumstances where he began offending soon after his arrival.

34. The applicant is concerned about returning to his home country where he will not have any support. He is worried that he will not find work and will become financially destitute. There is no doubt that the applicant will face a period of adjustment upon arriving in the United States but the applicant is still of a working age and possesses a range of skills which I consider he will be able to use so as to obtain gainful employment. The applicant was very articulate during the hearing and appeared to be in good health. He has never had difficulty obtaining work in Australia both as an employee or in a self-employed capacity. I expect he will be able to do the same in the United States.

35. These other considerations are neutral in terms of whether or not to revoke the cancellation of the applicant’s visa.

    CONCLUSION

36. I have considered the representations of the applicant made in writing and received by the Department on 31 August 2017 together with the evidence submitted to the Tribunal. Although I acknowledge the primary consideration of the best interests of the applicant’s minor children weigh in favour of the revocation of the cancellation decision, I consider that this is outweighed by the other primary considerations, namely the protection and expectations of the Australian community. I have weighed up the factors for and against revocation and I am not satisfied that the cancellation decision should be revoked. I find that the decision of the delegate of the Minister should be affirmed.

I certify that the preceding 69 (sixty‑nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President P Britten‑Jones

................................[SGD].................................

Associate

Dated: 10 September 2018

Dates of hearing:	23-24 August 2018
Applicant:	Self-represented
Advocate for the Respondent:	Ms C Stokes Australian Government Solicitor