Kleinberg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 2941
•13 August 2020
Kleinberg and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 2941 (13 August 2020)
Division:GENERAL DIVISION
File Number: 2018/3559
Re:Bryan Richard Kleinberg
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:13 August 2020
Place:Brisbane
The decision under review is affirmed.
...............................[sgd].......................................
Senior Member Theodore Tavoularis
Contents
Introduction and Background
Issues
Does the Applicant pass the character test?
Is there Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked?
Primary Consideration A – Protection of the Australian Community
Application of Paragraph 13.1.1(1) of the Direction
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Report of Dr Holmes
Conclusion: Primary Consideration A
Primary Consideration B: The best interests of minor children in Australia
The Applicant’s written evidence
The Applicant’s evidence-in-chief at the hearing
Application of Factors in Paragraph 13.2(4) of the Direction
Conclusion: Primary Consideration B
Primary Consideration C: The Expectations of the Australian Community
The relevant paragraphs in the Direction
Factual circumstances relevant to this Primary Consideration C
The Evolution of the Australian Community’s “Expectations”
Analysis – Allocation of Weight to this Primary Consideration C
Conclusion: Primary Consideration C
Other Considerations
(a) International non-refoulement obligations
(b) Strength, nature and duration of ties
(c) Impact on Australian business interests
(d) Impact on victims
(e) Extent of impediments if removed
Findings: Other Considerations
Conclusion
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Secondary Materials
Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
13 August 2020
INTRODUCTION AND BACKGROUND
Mr Bryan Kleinberg (“the Applicant”) is a 47 year old citizen of the United States.[1] Movement records indicate that the Applicant first arrived in Australia on 12 October 1998 and has left Australia on two occasions with his most recent arrival date being 26 April 1999.[2] Stated in full, his movements in and out of Australia since his initial arrival comprise the following:
·Initial arrival, 12 October 1998;
·Departed Australia, 20 October 1998;
·Arrived in Australia, 19 February 1999;
·Departed Australia, 1 March 1999;
·Arrived in Australia, 26 April 1999.
[1] Exhibit 2, s37 T-Documents, T17, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 471.
[2] Ibid, T5, D, Applicant’s Movement Record, page 57.
At the time of his final arrival in Australia (26 April 1999), the Applicant was on a visitor’s visa for a period of three months. He apparently overstayed that visa and was subsequently granted a criminal justice stay visa to remain in Australia.[3] This second visa was later superseded by the grant of a Partner visa on 10 May 2011 (“the visa”).[4]
[3] Ibid, B1, page 39.
[4] Ibid, T5, I, page 180. The specific description of the visa is: “Class BS Subclass 901 (Spouse) visa.”
The Applicant has an offending history that runs from 30 January 2001 to 3 February 2017. His offending commenced approximately 17 months after his initial arrival in this country and has seen him dealt with for the commission of some 47 individual offences across some 22 separate sentencing episodes. His criminal history reveals that custodial terms have been imposed upon him as follows:
·28 April 2004 - District Court of South Australia:
othree counts of aggravated serious criminal trespass;
othree counts of larceny;
· Sentence: convicted and sentenced to one year and nine months’ imprisonment, with a non-parole period of 10 months;
·14 October 2009 – Adelaide Magistrates Court:
oOne count of larceny and three counts of non-aggravated serious criminal trespass;
· Sentence: convicted and sentenced to two years’ imprisonment, with a non-parole period of 15 months (suspended sentence, bond imposed in the sum of $200, to be of good behaviour for 12 months);
·14 August 2015 – Port Adelaide Magistrates Court:
oDrive under disqualification or suspension;
· Sentence: convicted and sentenced to six weeks’ imprisonment (suspended sentence, bond imposed in the sum of $200, to be of good behaviour for 18 months);
·29 June 2016 – District Court of South Australia:
oTwo counts of basic offence: dishonestly take property without consent;
· Sentence: convicted and sentenced to four years and six months’ imprisonment, with a non-parole period of one year and nine months;
·3 February 2017 – Port Adelaide Magistrates Court:
oTwo counts of deceive another to cause detriment (basic offence);
oFail to comply with Bail Granted agreement;
oPass valueless cheque;
· Sentence: convicted and sentenced to three months’ imprisonment.[5]
[5] Ibid, T5, A, pages 26-28.
At the conclusion of the Applicant’s non-parole period for his most recent custodial offence, he was, upon release from criminal custody, taken into immigration detention on 3 January 2018.[6] He has been removed from the Australia community, in either criminal custody or immigration detention, on a continuous period since 4 April 2016.[7]
[6] Transcript, 17 July 2019, page 90, line 5 to 10.
[7] Ibid, page 89, lines 42-45.
While serving his term of imprisonment (i.e. criminal custody), a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 26 July 2017 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[8]
[8] Exhibit 2, s37 T-Documents, T5, I, pages 180-185.
On 31 August 2017, the Applicant made representations to the Minister’s Department seeking revocation of the mandatory visa cancellation decision.[9] The delegate of the Minister decided on 14 June 2018, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa (‘decision under review’) – He was subsequently notified on 18 June 2018.[10]
[9] Ibid, E.1, pages 58-61.
[10] Ibid, T3-5, pages 10-24.
The Applicant lodged an application with this Tribunal on 28 June 2018 seeking a review of the decision under review.[11] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.
[11] Ibid, T2, pages 3-9.
The Tribunal (differently constituted) affirmed the delegate’s decision on 10 September 2018.[12] However, that decision was subsequently set aside by the Federal Court on 12 February 2019. The matter was remitted back to the Tribunal for reconsideration.[13]
[12] Ibid, T19, decision of Deputy President Britten-Jones, pages 491-509.
[13] Ibid, T25, pages 691-692, per the Order of Justice White.
The hearing of the instant application proceeded before me on 17 July 2019 and received oral evidence from the Applicant. The Tribunal also received written evidence. This written evidence was categorised into an agreed exhibit list, a true and correct copy of which is attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this 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.
There is no question that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[14]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[16] I will address each of these grounds in turn.
[16] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 29 June 2016, the Applicant was sentenced to a head custodial sentence of four years and 6 months imprisonment. Taken cumulatively, the totality of head custodial terms imposed on the Applicant during his time in Australia amounts to 8.5 years. Put another way, the totality of head custodial terms of imprisonment imposed upon him totals 103.5 months. There can be no doubt that the custodial terms imposed upon the Applicant engage the provisions of s 501(7)(c) such that the Applicant does have a substantial criminal record.
As mentioned, the Applicant’s criminal history in this country (in terms of sentencing episodes) runs from January 2001 until February 2017. From the date of his final arrival in Australia (April 1999), until his removal from the Australia community in April 2016, the some 8.5 years of custodial time imposed upon him equates to approximately 50% of his time in the general community of this country.
The custodial sentences imposed on the Applicant regularly involved his early release on parole. What matters for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[17]
[17] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416; See also s 501(7A) of the
Act which relevantly provides: “(7A) Concurrent sentences For the purposes of the character test, if a person
has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part),
the whole of each term is to be counted in working out the total of the terms. Example: A person is sentenced to 2
terms of 3 months imprisonment for 2 offences, to be served concurrently. For the purposes of the character test,
the total of those terms is 6 months.”
I am consequently satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”) has application.[18] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
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.[19]
[18] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501
and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction
79. The above mentioned earlier decision of this Tribunal dated 10 September 2018 was decided pursuant
to Direction 65. Due to the superseding of Direction 65 by Direction 79 on 28 February 2019, this decision must
be decided pursuant to Direction 79.
[19] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
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.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a)International non-refoulement obligations;
b)Strength, nature and duration of ties;
c)Impact on Australian business interests;
d)Impact on victims;
e)Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[20]
“…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[21]
[20] [2018] FCA 594.
[21] Ibid, [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they 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;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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;
(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;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant’s criminal history in Australia commenced (in sentencing terms) on 30 January 2001. On that date he appeared before the Adelaide Magistrates Court and was convicted and fined the sum of $120 for driving an unregistered and uninsured motor vehicle. There followed some 21 sentencing episodes, dealing with the commission of an additional 46 offences. While not determinative for present purposes, it is notable that the Applicant has offended outside of Australia. The material also discloses a conviction for the offence of “Battery” committed in or about 19 March 1998 in the United States of America.[22] The Applicant has sought to explain this offending as follows:
“I was in a relationship with a woman that when i decided to end the relationship an arguement insued [sic], during the argument i was assaulted and stabbed by the woman in the hand with a screwdriver, as i pushed her away in self defence she fell and was injured. In California, the act of pushing her away in a domestic violence situation is considered battery but as i was the victim all domestic violence assault charges were dropped and i was given probation.”[23]
[22] Exhibit 2, s37 T Documents, T5, A.2, page 31.
[23] Ibid, T5, G, pages 168-169.
The Applicant’s offending in Australia does not involve themes of violence, committed against either random individuals or in a domestic context against a spouse or partner. Rather, his offending can be broadly characterised as follows:
(1) he has a demonstrated predisposition towards failing to respect the property rights of others. This has seen him commit multiple offences in the realms of criminal trespass and larceny;
(2) his offending (and more general demeanour when dealing with lawful authority – such as the Respondent) has featured a disturbing undercurrent of dishonesty and lack of candour. This aspect (i.e dishonesty) of his offending saw him sentenced to a head custodial term of 4 years and 6 months in the District Court of South Australia on 29 June 2016;
(3) his offending is also demonstrative of a repeated failure to respect the lawful authority of institutions governing aspects of his life in this country. Examples include:
oworking as a security or investigation agent without obtaining the necessary license;
ofailing to provide his trustee in bankruptcy with the usual and necessary statement of affairs that must be filed by every bankrupt;
ofailing to comply with duly imposed bail conditions that afforded him the privilege of remaining at large in the community in exchange for meeting those conditions;
(4) while it was propounded on the Applicant’s behalf that this offending did not necessarily result in harm to individually identified victims, such a contention must, for reasons that follow, be either approached with caution or completely rejected;
(5) similarly, it was propounded on behalf of the Applicant that the seriousness of aspects of his offending involving significant monetary loss to corporate entities ought reasonably be expected to hold insurance against such loss. Such a contention must, for reasons that follow, be approached with caution or completely rejected.
Before proceeding to a discussion of (and application of weight to) the relevant factors appearing in the Direction at Paragraph 13.1.1(1), Both SFICs helpfully and conveniently contain summaries of the Applicant’s offending.[24] The offending is capable of categorisation as follows:
Criminal trespass and larceny
·1 September 2000 – the Applicant (with two or three co-offenders) was involved in the theft of 172 mobile telephones, having a value of $95,145. Only 30 of those stolen telephones were subsequently recovered;
·18 September 2000 – the Applicant (with a co-offender) committed the further offence of breaking into premises and stealing 10 additional mobile telephones having a value of $2,989;
·18 September 2000 – the Applicant (with a co-offender) committed the further offence of breaking into premises and stealing five mobile telephone accessories having a value of $25.
[24] See Exhibit 1, Applicant’s SFIC, pages 3-6, paragraphs [10]-[47], and Exhibit 2, s37 T Documents, T17,
Respondent’s SFIC, pages 474-476, paragraphs [10]-[24].
In terms of how the Applicant’s offending should be regarded for present purposes, it is pertinent to have regard to the relevant sentencing remarks of His Honour Judge Muecke,[25] made contemporaneous with the Applicant’s sentencing on 28 April 2004:
[25] As His Honour then was. His Honour was appointed Chief Judge of the South Australia District Court in 2013. His
Honour retired in December 2016.
“…
You were involved in preparatory work for that offending. You organised and obtained the van to be used and you were the lookout during the offending…
Although some of the 172 mobile phones that were stolen were retrieved by the police the majority of them were not. The value of the stolen phones and the value of those that were not recovered were each very significant.
Although you did not ultimately receive what you were promised, that is not a mitigating factor for your offending. I am satisfied that your part in the offending of 1 September 2000 was a significant one and although I accept that you might have considered your role was a lesser one than your co-offenders, at law it was not. I do not consider that for sentencing purposes the circumstances are such that your conduct was significantly less culpable than the others.
…
All this offending is serious offending of its type. None of it was spur 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.
…
You have no relevant prior offending of any sort and since this offending you have committed no other offences. I will sentence you as a first offender who succumbed to the temptation to commit these offences when your circumstances were such that you were not as well equipped to resist that temptation as you might otherwise have been.
…
I consider that it is appropriate to sentence you to a single sentence of imprisonment for all of your offending in September 2000. I consider that the appropriate starting point for your sentence is a sentence of imprisonment for three years and six months for all that offending. I reduce that to two years and nine months to take account of your pleas of guilty. I reduce that further by a period of one year to take into account your co-operation with the authorities and your undertaking to give evidence at the trial of your co-offenders.
That produces a head sentence of one year and nine months. I fix a non-parole period of 10 months. Your head sentence and your non-parole period will commence on 12 January 2004.”[26]
[My emphasis and underlining]
[26] Exhibit 2, s37 T Documents, T5, B.1, pages 40 and 41, 43 to 45.
To my mind, there are two significant elements arising from the abovementioned sentencing remarks. First, any mitigating contention put on behalf of the Applicant that he somehow played a less significant role in the offending than his co-offenders was soundly rejected by Judge Muecke. His Honour was clearly of the view that the Applicant’s conduct was not, in any way, less culpable than that of his co-offenders. Second, although Judge Muecke noted that the Applicant had no prior criminal offending history in Australia and that he had not re-offended since being charged with the offences then before him, His Honour nevertheless imposed a significant custodial term upon the Applicant – even as a first offender. It is also notable that His Honour thought “the appropriate starting point for your sentence is a sentence of imprisonment for three years and six months…” That initial assessment was reduced only because of (1) the Applicant’s plea of guilty and (2) his co-operation with authorities.
There followed a further sentence for additional offending arising from the factual circumstances of the abovementioned offending committed by the Applicant in September 2000. On 14 October 2009, the Applicant was dealt with in the Adelaide Magistrates Court for offending that can be summarised as follows:
·3 counts of non-aggravated serious criminal trespass; and
·1 count of larceny.
The relevant sentencing remarks are those of Mr AA Grasso, Stipendiary Magistrate:
“1. You have pleaded guilty, at the earliest opportunity, to three counts of non-aggravated serious criminal trespass and one count of larceny.
2. 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.
3. I am told in 2004 you were sentenced in the District Court in relation to major indictable offences and received a head sentence of 18 months with 10 month 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.
4. In these circumstances 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.
5. You will be convicted and sentenced to 2 years imprisonment with a 15 month non-parole period. That sentence will be imposed upon you entering into a bond to be of good behaviour in the sum of $200 for 12 months. There will be no other conditions attached to that bond.
…”[27]
[My underlining]
[27] Ibid, B.2, page 47.
The following points can be taken from the totality of the Applicant’s offending relative to the sentencing remarks of Mr Grasso SM.
First, it is of no ameliorative effect to suggest that this offending should be regarded as less serious than the offending sentenced by Judge Muecke in 2004 simply because it was detected by way of DNA match several years after commission of the original offences. It is of no relevance to suggest that an element of “bad luck” or “in the past” somehow serves as an ameliorating factor behind this offending. The blunt realities are that (1) contemporary technology in the form of DNA testing detected the offences, and (2) the Applicant pleaded guilty to the charges “at the earliest possible opportunity”.
Second, the Applicant managed to convince Mr Grasso SM that he had “changed [his] life around.” This would not be the last time the Applicant would either mislead or disappoint a judicial sentencing officer about apparent rehabilitation and a desire to never again offend.
Third, while expressing a reluctance to incarcerate the Applicant, Mr Grasso SM nevertheless saw fit to impose a head custodial term of two years with a 15 month non-parole period.
Fourth, the Applicant abused the privilege of a non-custodial bond in the sum of $200 to be of good behaviour for 12 months, because seven months later, he found himself before the Port Adelaide Magistrates Court for convictions relating to driving an unregistered motor vehicle on a road (two counts), driving an uninsured motor vehicle on a road (two counts), and driving while disqualified or suspended from driving.
Fifth, the Applicant further abused the privilege of the non-custodial bond because, eight months later (in June 2010) he was convicted and fined the sum of $4,000 arising from convictions on two counts of acting as a security investigation agent without a license.
Offences of Dishonesty
In June 2016, the Applicant was charged with offences arising from his theft of substantial cash amounts in September 2008. According to the sentencing remarks, the Applicant, in 2008, was a director of a security company in Adelaide. One of the clients of that security company was a local retail food and beverage outlet. One of the tasks of the security company involved the Applicant attending the relevant business premises each Monday, collecting the cash takings of the business and then being responsible for banking those takings into the nominated bank account of that business.
On the five Mondays of the month of September 2008, the Applicant collected the respective weekend takings of the business, but deliberately failed to bank them. Instead, he kept that cash for himself. The cash totalled approximately $170,000. It was accepted by the Applicant that the venue manager of the business discovered the failure to deposit the cash takings for December 2008 after she contacted the relevant bank and noted from the bank statements that no money had been banked on any Monday for the five Mondays in September 2008.
In September/October 2008, the Applicant was arrested and charged for his thefts of the cash from the subject business. Those charges were withdrawn but were re-laid some five years later on 10 July 2013. The Applicant was committed for trial on 27 June 2014 and a 5-7 day trial was eventually listed to commence on 4 April 2016. According to the sentencing remarks of Chief Judge Muecke at a procedural mention of the charges in early April 2016, the Applicant pleaded guilty to two counts of theft “on the basis that the other three counts would be taken into account.” [28]
[28] Ibid, page 50.
For this offending, Chief Judge Muecke imposed a custodial term of four years and six months with a non-parole period of one year and nine months. In sentencing the Applicant, His Honour was “…satisfied that [the Applicant is] not an inherently bad man…” However, in terms of the actual nature of the offending, His Honour also observed “…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,” [My underlining].[29]
[29] Ibid, pages 52-53.
In sentencing the Applicant, Chief Judge Muecke noted that the maximum applicable penalty for this kind of theft offence was 10 years imprisonment. His Honour imposed a single sentence of imprisonment for the Applicant’s offending of five years, which was reduced to four years and six months as a result of the Applicant’s respective pleas of guilty. The relatively low parole period of one year and nine months was, according to the sentencing remarks, intended to be reflective of the Applicant’s age, his personal circumstances, the fact that he had young children and the effluxion of time between commission of the offences and sentencing.
The Applicant’s criminal history discloses that there are further offences of dishonesty, comprising two counts of “deceiving another to cause detriment” (by passing two valueless cheques), for which he was, on 3 February 2017, convicted and sentenced to three months imprisonment. He was cross-examined about this offence and I will summarise the Applicant’s cross-examination later in these Reasons. For present purposes, it is pertinent to have regard to the Applicant’s explanation for this offending in his written material:
“…The matter of 3 February 2017 where three months imprisonment was imposed for deceive another to cause detriment (basic offence)…and pass valueless cheque. No sentencing judges comments were provided to me, however, this was a mateer [sic] negotiated with the Dept of Public Prosecuition and was agreed to pay restitutions [sic] for the amounts owed to the parties concerned. As per police investigation, no information provided, the charges were satisfied to not be of my doing however, I was responsible for the chequing account and the goods were delivered to my residence for a flatmate. When that person moved interstate and these charges were brought against me the DPP and I negotiated the restitution and the charges would be withdrawn. However, I was incarcerated in Cadell Training Center serving the one year nine month non-parole period imposed on me when sentenced on the 29 June 2016. The sentencing judge did not want this matter prolonged till my release as I had no means to make restitution from prison. The sentencing judge imposed three months to be served concurrently…”[30]
Failure to meet regulatory requirements
[30] Ibid, T6, page 224, paragraph [16].
The Applicant’s criminal history is redolent of repeated failures to meet the requirements of regulatory authorities governing the activity in which he chose to participate. There are three instances of him receiving convictions for acting as a security or investigation agent without first obtaining the appropriate license. Those convictions respectively occurred on 10 January 2007 (one count), and 17 June 2010 (two counts). These could not have been inadvertent breaches because at the time he committed these two offences (in 2007 and 2010), the Applicant must have known he was not eligible for a security license because of his criminal record dating from the time of his conviction in the District Court of South Australia in April 2004.
This wanton disregard for lawful authority can also be seen in the Applicant’s conviction for an offence arising from his failure to make out and file a statement of affairs pursuant to the no doubt lawful request from his Trustee in Bankruptcy. No aspersions ought to be cast against the Applicant due to any adverse financial circumstances causing him personal insolvency. However, a lack of respect for lawful authority is a hallmark of his offending and this relatively simple failure to fill out a statement of affairs form pursuant to a reasonable and lawful request is consistent with that lack of respect.
Driving offences
The Applicant’s criminal history contains something in the order of 20 individual driving offences. Stated generally, they may be described as: (1) driving an unregistered and/or uninsured motor vehicle (x15); (2) driving while suspended and/or disqualified (x3); (3) exceed speed limit by 10km/hr or more but less than 20km/hr; and (4) stopping in a bicycle lane. The repeated nature and seriousness of this offending moved beyond being punished by fines and/or suspension of driving privileges, and into the realm of custodial time. On 14 August 2015, the Applicant was sentenced to a custodial period of six weeks imprisonment with that custodial term being suspended upon him entering into a bond in the sum of $200 to be of good behaviour for 18 months.
While not necessarily determinative of any finding about the level of seriousness of the Applicant’s offending, it should be noted that the Applicant’s conduct involving the operation of a motor vehicle on public roads that was unregistered and/or uninsured represented significant potential detriment to other road users. Registration of motor vehicles usually imputes a legal certification that the vehicle is insured for personal injury, harm or damage that may be caused to other road users by the operator of that motor vehicle. A failure to register a motor vehicle usually carries with it an absence of such insurance meaning that the controller of that vehicle at the time of personal injury, damage or loss is personally responsible for that loss. If that driver is impecunious, a seriously injured person may not recover anything by way of damages for his/ her personally have difficulty in accepting that the Applicant was not aware of this potential difficulty and danger to other road users consequent upon his operation of an unregistered vehicle.
The other aspect of this offending is the obvious one: consistent with much of his other offending, the repeated failure to properly observe rules and regulations governing the ownership and control of a motor vehicle on Australian roads in demonstrative of the Applicant’s lack of respect for those rules and regulations.
Abuse of bail privileges extended to him.
The Applicant’s criminal history demonstrates five instances of the Applicant’s abuse of the privilege of bail. The grant of bail is indeed a privilege to accused offenders. It allows the accused to proceed, usually on certain terms, at large in the community. In exchange for this privilege, the accused person is legally compelled to meet the stipulated terms of the grant of bail.
Consistent with much of the rest of his offending, the Applicant has repeatedly failed to observe and comply with the terms of bail that have been granted to him. Of greater concern is the reality that some of his offending has been committed while enjoying the privilege of bail.
I will now turn to paragraph 13.1.1(1) of the Direction and apply the relevant paragraphs therein in order to arrive at a finding about the level of seriousness of the Applicant’s offending in this country.
Application of Paragraph 13.1.1(1) of the Direction
It is conceded on behalf of the Applicant that:
“…Mr Kleinberg’s offending has been serious, that the first primary consideration, which is the protection of the Australian community, will weigh against revocation of the decision to cancel his visa, and as will the expectations of the Australian community…
…
…That’s the limb that I say [that is, the limb relating to the nature and seriousness of the Applicant’s offending] while it can never really be in an applicant’s favour when they have an extensive criminal history, it is such that it will reduce the weight to be given to this primary consideration overall.”[31]
[31] Transcript, 17 July 2019, page 5, lines 25-28, and page 6, lines 40-43.
The Respondent contends that:
“40. The nature and cumulative effect of the applicant’s criminal history and conduct are very serious. The sentencing judges acknowledged that his trespass and larceny offending was premeditated, planned and significant. The blatant disregard for the law and breach of trust involved in this offending is no doubt serious. Further, the number and range of offences, together demonstrates a pattern of behaviour and a continued disregard for Australian laws.”[32]
[32] Exhibit 2, s37 T Documents, T17, page 478.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. There was agreement between the parties that sub-paragraphs (a), (b) and (c) of this paragraph 13.1.1(1) have no application to the instant facts. I concur with that joint position because the Applicant’s offending does not involve the commission of violent and/or sexual offences, nor has he committed violent offences against women or children. His history does not contain any reference to the commission of crimes against vulnerable members of the community or government representatives or officials in the discharge of their duties.
Relevant (for present purposes), amongst the factors in paragraph 13.1.1(1) of the Direction therefore are:
(a) …[33]
(b) …
(c)…
(d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)…
[33] This paragraph (a) refers to offences of violence. As noted earlier in these reasons, the Applicant has a conviction
for ‘Battery’ in the United States of America. I am not taking that offence into account for present purposes.
Sub-paragraph (a) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant’s criminal history is not redolent of a propensity towards violence. This sub-paragraph (a) is not relevant to determination of this Application.
Sub-paragraph (b) of Paragraph 13.1.1(1) of the Direction provides that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. Here, there has been no violent conduct towards women and/or children and this sub-paragraph (b) is thus not relevant to determination of this Application.
Sub-paragraph (c) of Paragraph 13.1.1(1) of the Direction provides that “crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the positions they hold, or in the performance of their duties, are serious.” There is no evidence in the material that this Applicant has been responsible for such conduct. Thus, this sub-paragraph (c) is not relevant to determination of this Application.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) of paragraph 13.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are also viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
This Applicant’s history of offending (in terms of sentencing episodes) in Australia starts in January 2001 and runs until February 2017. In terms of its recorded history, the Applicant’s offending involved the imposition of cumulative head custodial terms of approximately 8.5 years, or 103.5 months.
It is, to my mind, significant that the Applicant’s first substantive engagement with the sentencing process in Australia (in April 2004) involved him receiving a head custodial term of one year and nine months, with a non-parole period of 10 months. One does not find a progression in the Applicant’s sentencing history such that, as an early offender, he receives the benefit of non-custodial terms for his more serious offences involving dishonesty and larceny. As noted earlier, Judge Muecke (as His Honour then was) sentenced the Applicant on the basis that he was equally culpable for the offending to the same measure as his two co-offenders, and that the “…offending is serious offending of its type.” His Honour sentenced the Applicant on the basis that the offending “was all premeditated and planned with the intention of stealing a very considerable amount of valuable communication equipment…”
The Applicant received the abovementioned custodial term despite having no other criminal history in this country and as a first time offender. As also noted earlier, His Honour initially thought the “starting point” for the sentence was three years and six months. It was discounted to its eventual length because of (1) the Applicant’s pleas of guilty and (2) his co-operation with the authorities.
Just over five years later, in October 2009, Mr Grasso SM sentenced the Applicant to a further custodial term of two years imprisonment (with a non-parole period of 15 months) for one count of larceny and three counts of non-aggravated serious criminal trespass. While I accept that this sentence was wholly suspended upon the Applicant entering into a bond in the sum of $200 to be of good behaviour for 12 months, it is relevant for the purposes of this sub-paragraph (d) to note that Mr Grasso SM saw fit to impose a head custodial term of two years, which exceeded the previous head custodial term of one year and nine months imposed by Judge Muecke (as His Honour then was) in April 2004.
The nature of the Applicant’s offending when he came before Chief Judge Muecke for sentencing in June 2016 was such as to attract a head custodial term of four years and six months with a comparatively short non-parole period of one year and nine months to take into account the Applicant’s age, his personal circumstances, the fact that he had young children and the extended time since the offences had been committed. Again, the nature of the sentence imposed by Chief Judge Muecke in June 2016 clearly demonstrating an increase in head custodial time is surely indicative of the very serious nature of the Applicant’s offending.
The Applicant’s criminal history therefore has some very significant episodes of dishonest offending which have been punished by significant head custodial terms requiring him to serve periods of 10 months (April 2004) and one year and nine months (June 2016) in actual custody. He is now 47 years of age. In terms of weight attributable to this sub-paragraph (d), his offending has been punished by head custodial terms totalling some 8.5 years. This represents approximately 50% of his time in the mainstream Australian community for the roughly 17 years preceding his entry into criminal custody/immigration detention in April 2016. This sub-paragraph (d) therefore militates in favour of a finding that the Applicant’s offending is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the allocation of any weight to this sub-paragraph (e) largely replicates the exercise required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal firstly with the frequency of the Applicant’s offending. He is presently 47 years of age. His offending (in terms of sentencing appearances) spans the period January 2001 to February 2017. The Applicant’s offending history, viewed fairly and reasonably, contains a long list of some 47 offences. He was in the Australian community for something like 17 years prior to his removal in April 2016. Stated numerically, he is responsible for the commission of something in the order of approximately 2.5 offences for each year he has been in the mainstream Australian community. This figure does not take into account the period he spent in actual custody prior to April 2016. Clearly, the Applicant’s offending has been frequent.
Similarly, the level of seriousness of the Applicant’s offending cannot be said to be decreasing over the course of its time span. There can be no other finding than that the offending involving the theft of almost $100,000 worth of mobile telephones (and associated accessories) in September 2000 was, indeed, very serious offending. The further chapter to the offending from September 2000 came to light by way of DNA evidence. This saw the Applicant charged and convicted for further offences with a resulting head custodial term of two years. Any suggestion that Mr Grasso SM’s decision to wholly suspend the custodial term was somehow indicative of a decrease in the seriousness of the offending is dispelled by the dramatic increase in the seriousness of the offending that came before Chief Judge Muecke for sentencing in June 2016.
This was the conduct involving the Applicant’s theft of some $170,000 in cash from a client that had entrusted those funds to him as part of a contractual arrangement between the Applicant and the business from which he took the money. This conduct was punished by a head custodial term of four years and six months. There is, thus, a clearly discernible trend in the seriousness of the Applicant’s offending that came before the courts between 2001 and 2017.
An application of this sub-paragraph (e) therefore leads to a finding that both the frequency of his offending, as well as its increasing level of severity, must attract a finding that his offending has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending.
To my mind, a significant cumulative effect to be taken from the Applicant’s repeated offending derives from (in terms of sentencing episodes) its 16 year length. The Applicant cannot be said to have committed his offences as a juvenile or a person not otherwise experienced in the ways of life. He came to Australia on a final basis in 1999 as a person in his mid to late 20s. He had completed the best part of a decade of service in the United States Army. His offences are committed (approximately) from his mid to late 20s until his late 30s/early 40s. In simple terms, it cannot be said that the Applicant has committed his offences as a juvenile or as an offender in early adulthood, such that one can reasonably expect his propensity to offend to ameliorate as he matures. Rather, his offending in this country commenced as a mature adult and has continued over nearly two decades.
There has been ample opportunity throughout the Applicant’s offending history for him to grasp the opportunity to reform himself. Time and again, sentencing judicial officers have given him the benefit of the doubt with the imposition of either wholly suspended custodial terms or quite low non-parole periods. His history demonstrates that he has failed to experience any deterrent effect of to undergo any level of rehabilitative reform. To his credit, he was forthcoming in cross-examination when confirming he had not met the reasonable expectations of previous judicial sentencing officers that he would not offend again.
Notably for present purposes, one would have expected the Applicant to take some measure of notice from Judge Muecke’s sentencing remarks at the first substantial sentencing episode in April 2004, to the effect that His Honour put the Applicant on notice as follows:
“During sentencing submissions I heard submissions as to the effect, if any, of any sentence I impose on your immigration status in this country. Your counsel submitted that your ‘deportation is a live issue’ where a sentence of imprisonment in excess of one year is imposed on you. He submitted, however, that the law is that I cannot take into account your possible deportation from this country in sentencing you.”[34]
[34] Ibid, T5, B.1, page 42.
The Applicant took no such notice and his subsequent conduct is not indicative of someone who was fearful of losing his migration status to remain in this country. Approximately five years after the sentence he received in April 2004, the Applicant again found himself before judicial authority for sentencing for further and quite serious offending. Instead, he continued to offend and the criminal history indicates the commission of some 18 sentencing episodes until he again came before Chief Judge Muecke in June 2016 to be sentenced to a head custodial term of four years and six months for the abovementioned unlawful taking of $170,000.
Another cumulative effect of the Applicant’s repeated offending has involved him in the provision of implausible and illogical evidence. The implausible and vacuous nature of his evidence featured as a consistent theme in cross-examination. A particular example relates to the offending regarding the passing of valueless cheques which came before the Port Adelaide Magistrates Court for sentencing in February 2017. In cross-examination, the Applicant was questioned in some detail about this offending. The following ensued between the Applicant and the Respondent’s representative[35]:
[35] Mr Ellison, Solicitor, Australian Government Solicitor.
“Mr Ellison: In relation to those offences that you were sentenced for in February 2017 ‑ ‑ ?
Applicant: M’mm.
Mr Ellison: May I suggest you pleaded guilty to them?
Applicant: I pled guilty to them because I was responsible for the bank account that the cheque was written from, yes.
Mr Ellison: Well, I - I suggest you pleaded guilty because you were guilty of those offences?
Applicant: No, I pled guilty because that was the arrangement that was made in order to achieve the restitution agreement.
Mr Ellison: So do you now say that you did not commit those offences?
Applicant: I did not commit those offences. I have always said that. My ex-wife in the last AAT hearing admitted that the person I was living with, Alicia, she had done - she had committed those offences, but the bank account was my bank account which, at the end of the day, I am solely responsible for.
…
Mr Ellison: Do you say that you didn’t issue those cheques yourself?
Applicant: I wrote the cheques, yes.
…
Mr Ellison: This offending for which you were sentenced for in February 2017 involved three cheques; is that correct?
Applicant: Yes. Yes.
Mr Ellison: Was it two that were issued to a veterinary clinic?
Applicant: Two to a veterinarian and one to a furniture/mattress business.
Mr Ellison:And do you say in relation to those three cheques you wrote the cheques?
Applicant: Yes, I did.
Mr Ellison: And do you say in relation to those three cheques you personally handed them to the businesses?
Applicant: I handed two to a business. The other was picked up by a delivery driver.
Mr Ellison: And it was you personally that passed these cheques over?
Applicant: The two cheques to the veterinarian, yes.
Mr Ellison: And when you passed those cheques, the businesses were not able to obtain the money; do you agree with that?
Applicant: When I passed those cheques? No, they did not. It was a cheque.
Mr Ellison: Do you say that when you passed those three cheques to the businesses ‑ ‑ ?
Applicant: Two cheques. I passed two cheques.
Mr Ellison: Perhaps I will rephrase. When those three cheques were passed to the businesses, do you say that you thought the money would be successfully transferred to those businesses?
Applicant: Absolutely. I wouldn’t - I wouldn’t have wrote the cheques.
Mr Ellison:In that case, can I suggest to you that if that was so, you wouldn’t have been guilty of those offences?
Applicant:I was guilty of the offences because the cheques that were not honoured, when they were put through for a second time and not honoured, the businesses then contacted the police. It was no longer a matter of attempting to contact me.”[36]
[My underlining]
[36] Transcript, 17 July 2019, page 32, lines 29-43, page 33, lines 1-3 and 9-41.
The Applicant was then taken to the relevant South Australian Police “apprehension report” dealing specifically with the dishonour of the cheque written in favour of the “Forty Winks” furniture business. He said the following in cross-examination:
“Mr Ellison: Okay. Can I take you to the first one, page 395 of the book?
Applicant: M’mm.
Mr Ellison: And this is a police document about what they recorded about this incident?
Applicant: Yes.
Mr Ellison: Have you got that there?
Applicant: Yes.
Mr Ellison: And you can see the top, it relates to March 2013?
Applicant: M’mm.
Mr Ellison: Does that accord with your memory?
Applicant: Yes.
Mr Ellison: And it relates to you obtaining goods from Forty Winks?
Applicant: Yes.
M Mr Ellison: By passing a cheque for the amount of $1,899?
Applicant: Yes.
Mr Ellison: And you will see in that summary?
Applicant: M’mm.
Mr Ellison: The business was not able to access the money under the cheque?
Applicant: Yes. Yes.
Mr Ellison: Which you agree with?
Applicant: Yes.
Mr Ellison: And about halfway down the page, it says this. On Monday, 23 April 2013, somebody attended at the home address of you?
Applicant: M’mm.
Mr Ellison: And after that, you contacted the business by phone?
Applicant: Yes.
Mr Ellison: And you said you would go into the store the next day and pay the balance in cash?
Applicant: Yes, I did.
Mr Ellison: And you didn’t - you didn’t attend the store the next day, I suggest, to pay the balance?
Applicant:No, no, I was at work and I had gotten into an argument with the person that issued the cheque, or gave the delivery driver the cheque, and I was unable to attend the - the - the business to make that payment.
Mr Ellison: And can I suggest you never made payment to the business?
Applicant: No, that was part of the restitution order that was then removed and then my imprisonment - or my conviction put in place.
Mr Ellison: And can I suggest you had multiple months after this happened to make good the payment to Forty Winks?
Applicant: After the incident?
Mr Ellison: Yes?
Applicant:There was a - an issue between myself and the - the girlfriend at the time, and that’s where this has escalated from there.
Mr Ellison: Okay. So can I suggest in 2013 and 2014 - - ?
Applicant: M’mm.
Mr Ellison: You had ample opportunity to make the payment to the business?
Applicant: As of 2014, I was unaware that this was still in issue because I had been told by my ex that she had taken care of this and the veterinarians. It was only until I was arrested for these crimes in 2015 that I was told that there was no payment ever made and they were seeking the charges of deceit and pass valueless cheques. That’s when I was arrested and then notified of these charges. That’s when I was granted bail for these charges.”[37]
[My underlining]
[37] Ibid, page 33, lines 43-46, and page 34, lines 1-47, and page 35, lines 1-2.
It is stretching the bounds of credibility for the Applicant to now purport to say that following dishonour of the cheque, and despite expressing an intention to subsequently pay the balance in cash, that he failed to do so because of “an argument with the person that issued the cheque, or gave the delivery driver the cheque.” Alternatively, there is little or no credibility in the Applicant now suggesting that he failed to pay the furniture business because this shortfall “…was part of the restitution order that was then removed and then my imprisonment – or my conviction put in place.” There is similarly no credibility in his response to the suggestion that he had ample subsequent opportunity to make appropriate and adequate payment to the furniture business. The best excuse he had for this failure was “As of 2014, I was unaware that this was still an issue because I had been told by my ex that she had taken care of this and the veterinarians…”
The Applicant’s evidence was no more credible when he sought to suggest that the account on which the relevant cheque(s) was to be drawn had somehow been emptied or accessed by his ex-girlfriend prior to her departure to Queensland:
“Mr Ellison: Can I suggest you never said that at the last hearing?
Applicant:I explained - I explained at the last hearing that the offending was - the money was taken out of my account by my ex-girlfriend, that - or girlfriend at the time, that she took the money out of the account and moved to Queensland, so what was paid, what was not paid, was supposed to be, “Look, these are your bills. You pay them”. That’s why from that time on there had been no contact until I was arrested for these charges in 2015.
Mr Ellison: And do you say, do you, that the cheque bounced because some other person had accessed your account and - - ?
Applicant: She - yes, that is exactly what caused - these cheques, the two veterinary cheques were for her cats, because I was working away at the time. I was crane driving up in Whyalla and we sere [sic] living down at Tennyson. The two cheques were for her veterinarians, for her cats, and the cheque was for Forty Winks for - for the - the beds.
Mr Ellison: Okay. Can I suggest to you that if your story is correct - - ?
Applicant: M’mm.
Mr Ellison: You weren’t guilty of anything?
Applicant: I was guilty of the accounts. Those accounts were - those cheques were written on my account.
Mr Ellison: And can I suggest to you that that fact alone would not mean that you’re guilty of these criminal offences?
Applicant: It’s the - it’s the whole purpose of the restitution agreement. That was the whole reason that prosecution were willing to drop the charges, as long as restitution was made. However, in April of 2016 when I was incarcerated, until February of 2017, that we kept adjourning the matter because I was in custody and could not have access to funds, the judge at that point said - his - his question was very clear. He said, “When - when are you - when is your period of incarceration up?” I said, “January of 2018”. He said, “I’m not waiting that long for restitution to be made. Do you accept responsibility for the accounts?” I said, “Yes”. He goes, “So how do you plead?” I said, “Well, I’m guilty. Those are my - those are my - my accounts. Yes, I’m guilty”. He said, “Three months imprisonment, to be served concurrent,” and that was the end of the matter. There was no more adjournment, there was no - no negotiations.”[38]
[My underlining]
[38] Ibid, page 35, lines 4-37.
It is difficult to attribute any level of credibility to the Applicant’s evidence about the dishonour of this cheque for the furniture business on the basis that the Applicant’s ex-girlfriend was, without his knowledge, manipulating his cheque account such that she was emptying the account of liquid funds and writing cheques that she knew would never be honoured. The Applicant’s purported limiting of his guilt away from this type of conduct and to purportedly accept responsibility for the offending on the basis that his involvement went no further than being the owner of the relevant cheque account, must be rejected. Similarly, there is no credibility in the Applicant’s deflection of responsibility for this offending in the apparent belief that the shortfall arising from the dishonoured cheque(s) was somehow captured or resolved by “the restitution agreement”.
The Applicant was then taken to the cheques purportedly written in favour of a local veterinarian practice. The following transpired between the Applicant and the Respondent’s representative:
“Mr Ellison: Okay. Can I take you to page 430 to 431, and these cheque incidents happened in October of 2013, I suggest. Do you agree?
Applicant: With the veterinarians, yes.
Mr Ellison: Yes, in relation to the vet?
Applicant: Yes.
Mr Ellison: So this is approximately seven months after the first incident with the cheque at Forty Winks?
Applicant: Yes.
Mr Ellison: And do you say, do you, seven months after the first incident, you have still got your housemate had access to your cheque account?
Applicant: The Forty Winks incident was when she took money out of the account. I said, “That needs to be settled”. She goes, “Well, I will take care of it”. When they contacted me and said that it needs to be settled, I said, “Yes, somebody will be in with your money”. After that point, I didn’t hear about the beds anymore. There was no contact from Forty Winks. When the veterinarians - this was October of 2013. She had cleared my - out my account and left, November 7 of 2013. That’s when she packed up and went to Queensland. So these cheques here for the veterinarians are the - are the remnants of her clearing my account and leaving me.
Mr Ellison: So when did your housemate move to Queensland?
Applicant: She left November 7.
Mr Ellison: November 7 of 2013?
Applicant: Twenty thirteen.
Mr Ellison: In relation to the cheques given to the veterinary clinic, are these cheques that you hand-delivered to the business?
Applicant: Yes.
Mr Ellison: And do you say again in relation to these cheques it was your housemate that withdrew money that caused these cheques not to be successfully processed?
Applicant: Yes. Yes, I have always said that.”[39]
[39] Ibid, page 35, lines 36-46, and page 36, lines 1-22.
Once again, the Applicant’s evidence tended towards blaming his former girlfriend for emptying the relevant account of liquid funds necessary for the cheques to be honoured. The further difficulty with the following quoted evidence is that despite her conduct in taking his money without his authority, he, for some reason, failed to report her conduct to the police:
“Mr Ellison: Yes. Given she took your money without your permission, did you make a report to the police?
Applicant: It - it’s a domestic issue for $1,100. The answer was no. It was not worth the headache.
Mr Ellison: But it was theft, wasn’t it?
Applicant: It was not worth the headache. It was not worth the headache. It’s $1,100. It was a break-up. Afterwards when the criminal matter came up, that’s when I was speaking with the detectives and they said the same thing, “Why didn’t you file a report?” My assumption was that there - there shouldn’t have been an issue. The cheques should have been paid. Obviously they weren’t, so I will - I will make restitution, and that’s where the discussion of restitution for the amount - - -
…
Mr Ellison: And I suggest, Mr Kleinberg, that you of anyone would have known the seriousness at this point of taking property that didn’t belong to you?
Applicant: I didn’t take property. The - the cheques had been - the cheques were in issue and I was - I was at the point unaware that they had become such an issue, until 2015 when I was told that there were actually charges being pressed.
Mr Ellison: In any event, you were sentenced to imprisonment for that conduct, correct?
Applicant: I was already in prison, so the - the judge said that it - he would imprison me of three months to be served concurrent.
Mr Ellison: May I take you to page 396, and this - again, I’m sorry, I’m jumping around, but I’m taking you back to the Forty Winks incident?
Applicant: M’mm.
Mr Ellison: And this is the second page of the police report, and you will see there police say they spoke to you on 23 October 2013?
Applicant: M’mm.
Mr Ellison: And they say they interviewed you?
Applicant: M’mm.
Mr Ellison: And the last paragraph on that page is purportedly what you told the police?
Applicant: That it had been sorted out by the ex and that there was no more moneys owing.
Mr Ellison: And I suggest there’s no mention there of the housemate overdrawing the account?
Applicant: I’m not - that wasn’t an issue at the time, because that was October. She didn’t leave until - I’m sorry, yes, November, but it was an - the issue, if - I don’t know where it is. It’s in 2015 when the charges were actually laid, in the record of interview with the two detectives where I - where I told them that it was the housemate.
Mr Ellison: Okay. When you were spoken to about the Forty Winks cheque ‑ ‑ ?
Applicant: M’mm.
Mr Ellison: I suggest you told police nothing about the housemate overdrawing the account?
Applicant: No, I had told the police that the amount that was owed plus the dishonour fee was settled. That’s what I was - that’s what I was led to believe, and it was at this point that there was - there was no line of questioning or no thought in my head to start explaining the circumstances of my personal life at that point.
Mr Ellison: So the reason the Forty Winks cheque bounced was because your housemate spent on your account, correct?
Applicant: She had - she had done it - it was - it was part of the issue that we had in our relationship - - -
Mr Ellison: Can I just finish the question before you answer them?
Applicant: I’m sorry. Sorry.
Mr Ellison: In relation to the Forty Winks cheque, it bounced because your housemate had spent money on your account; is that correct?
Applicant: Yes.
Mr Ellison: And is it also correct that you didn’t tell police that that was the reason that the cheque bounced in October 2013?
Applicant: I didn’t tell the police because what I believed at the time was that the cheque had been repaid. I was given her word - she had given me her word and I had not heard from Forty Winks after that to any different.
Mr Ellison: It would have been very relevant, I suggest, to tell police the reason the cheque bounced in the first place; do you agree with that?
Applicant: At the time I did not think of that, no.
Mr Ellison: I suggest the reason you didn’t say it is because it’s not the truth?
Applicant: I had nothing to hide about my offences. I’d been more than honest with my behaviour…”[40]
[My underlining]
[40] Ibid, page 37, lines 23-33, page 38, lines 5-47, and page 39, lines 1-19.
Having regard to the totality of the Applicant’s evidence in relation to this specific aspect of his offending, it must surely be accepted that it is inconsistent with him having pleaded guilty to those offences. The commission of these dishonoured cheque offences clearly require some form of intent to cause detriment to another. Put simply, if the Applicant had, in fact, done nothing wrong, his plea of guilty to the charges immediately appears to be both unclear and illogical. He pleaded guilty to the charges in relation to the three cheques and those pleas, on their own, to my mind constitute sufficient evidence to confirm his commission of those offences.
The further point about the non-plausibility of this evidence is that his version is entirely at odds with the explanation he provided in the contemporaneous police records. The version he put to this Tribunal, that his ex-girlfriend took liquid funds from the subject account, and thus he did not know that the cheques would be dishonoured, does not appear in the relevant police records. If the relationship with the former girlfriend was at an end, and if her conduct in effectively emptying the relevant account of money explained why the cheques were dishonoured, then it is reasonable to presume that the Applicant would have made contemporaneous mention of this to the police, or, in the alternative, made a formal complaint about her conduct to the police. If he had done so, it would lend more credence to his now-propounded position. Instead, his contemporaneous pleas of guilty remove any level of credibility to what he now propounds.
An ancillary comment around the Applicant’s failure to reform his conduct can be made with further reference to his criminal history. As was mentioned by Judge Muecke (as His Honour then was) at the sentencing episode in 2004, the Applicant’s offending conduct had the potential of placing his visa status in jeopardy. While one would expect such a threat would motivate the Applicant to reform his conduct, that did not occur. In a similar vein, the Applicant has received approximately 30 convictions that did not involve the imposition of custodial time. These sentences have ranged from numerous fines and at least two good behaviour bonds. None of these non-custodial sentences convinced him to moderate his conduct. This abject failure to experience any deterrent effect from his non-custodial sentences (and the threat to his visa status) is another cumulative effect of the Applicant’s repeated serious offending.
Further, when one has regard to the totality of his offending, it is clear that he has failed to develop any measure of respect for the lawful authority governing the society to which he now seeks re-admission. He has failed to respect (1) the property rights of others, (2) the rules and regulations governing the ownership and operation of motor vehicles, (3) the authority of government bodies charged with the issuing of necessary licenses and permits for him to act as a security guard or investigation agent, and (4) the privilege of a grant of bail to allow him to go at large in the community pending outcome of offences alleged against him.
The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this sub-paragraph (f) in favour of a finding that his offending has been of a very serious nature.
Sub-paragraph (g) of Paragraph 13.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending. In the instant facts, the evidence contains an unfortunate sequence of instances where the Applicant has provided false and/or misleading information to the Department (Respondent, for present purposes).
The first instance relates to his provision of a certain document to the Respondent, titled “CERTIFICATE OF RELEASE OR DISCHARGE FROM ACTIVE DUTY”. For all intents and purposes, this is the Applicant’s final document from the US Army relating to the termination of his period of service. Item 23 of the document refers to “Type of separation”. In the space next to that item, the word “Discharged” is recorded. The immediately following Item 24 refers to “Character of Service”. In the space next to that item appear the words “BAD-CONDUCT DISCHARGE”.
The material before the Tribunal discloses two apparent versions of this document. At page 144 of the s37 T Documents[41], at Item 24 of this first version of the document, the words “BAD-CONDUCT” appear to have been deleted such that only the word “DISCHARGE” appears at Item 24. In the second version of this document appearing at page 146 of the s37 T Documents, the full and unredacted sequence of words comprising “BAD-CONDUCT DISCHARGE” appears at Item 24.
[41] Exhibit 2.
Apart from the immediately preceding change I have referred to, the two documents appear identical. Further, the word “DISCHARGE” – in both documents – is positioned in precisely the same place within the boxed section relating to Item 24, such that the only plausible explanation for the difference between the two documents is that the words “BAD-CONDUCT” have been deleted from the version appearing at page 144 of the s37 T Documents. It can safely be found that the US Army authorities have not produced two versions of the same document. If that was the case, it is very unlikely that the word “DISCHARGE” would appear in precisely the same place in both documents and that, in all other respects, both documents are identical.
In cross-examination, the Applicant’s purported explanation of how it was that the Department received the redacted version lacked credibility and, consistent with much of his other evidence, sought to deflect the offending (or questionable conduct) on to others:
“Mr Ellison: Mr Kleinberg, do you recognise this page and the page behind it?
Applicant: I’m not answering this question again. I’m sorry. This has been four times now. About my discharge. The original discharge that was mailed to the Department from the military records service people is on page 146. That’s the original.
Mr Ellison: Yes. And can I suggest to you that your representative in 2007 mailed a version of this document where the words ‘bad conduct’ had been removed? Do you agree that was sent in that way?
Applicant: I – the first time I had seen this document on page 144 was when it was presented to me in this court book. The only document I have, and I still have the original of this, is the page on 146. That is why the statutory declaration on page – I believe it’s 160, 159 - 159, accompanied the page from 146, when it was presented to the Department of Immigration and Multicultural Affairs at the time. There was an explanation of my bad conduct discharge. The first time that I’d been made aware of page 144 is when I was presented this book the first time.
Mr Ellison: So do you say that you gave your representatives the document as it appears at page 146?
Applicant: That’s the document that they received directly – it was mailed to Migration Solutions from Kansas City Military Records.
Mr Ellison: The fax that appears at page 143 was presumably a fax sent with your authority, was it?
Applicant: She was my agent. I don’t know who Victoria Hammond is or – yes, but from Mark – Mark was my agent, yes.
Mr Ellison: The document that you’d arranged for your representative to send to the Department was, you say, page 146?
Applicant: 146. You can see that in the print it is a completely different paper. The print is different, the copy quality is different between the two. It looks like page 146 is an actual copy of the certificate received.
Mr Ellison: Okay. Do you agree that your representative faxed, in effect, a false or forged document to the Department?
Applicant: I wasn’t aware of that and I have no – no comment about that. The original of the document is on 146 along with the explanation in the statutory declaration as asked by DIMA at the time.
Mr Ellison: Did you give the document, as it appears at page 146, to - - ?
Applicant: No.
Mr Ellison: - - - Mr Glasbrook?[42]
[42] The Applicant’s then-representative.
Applicant: No. It was mailed directly to them from Military Records in Kansas City.
Mr Ellison: How did that come about?
Applicant: I contacted Military Records in Kansas City, asked for a copy of my DD214, which is the name of this certificate, gave them the mailing address of my migration agent and it was mailed directly.
Mr Ellison: Did you give some instructions to your migration agent to provide that document to the Department of Immigration?
Applicant: I was asked by him if I can get a copy of it. I said, ‘I’ll have it sent to you, it’s coming from overseas.’ It went straight to him.
Mr Ellison: Did you provide instructions to your representative to send that document on to the Department of Immigration?
Applicant: I followed his request for it. He requested it, I had it sent to him, he then forwarded it.
Mr Ellison: He forwarded it on your instructions?
Applicant: I had paid him as a migration agent to proceed.
Mr Ellison: Yes?
Applicant: Did I directly tell him, ‘Send my discharge’? No. He asked me for it, I arranged for it and he sent it forward.
Mr Ellison: Okay. Do you agree that the document your migration agent sent was not a true and correct copy of it?
Applicant: I agree that it’s different.
Mr Ellison: Do you say that you weren’t responsible for amending that document?
Applicant: I’m saying I got him the page on 146 and that’s what was sent from Military Records to my agent.
Mr Ellison: Well, if you did not see the document between its transfer from Military Records to your representative, how do you know it was the one on page 146?
Applicant: Because the print. That is original text. Military United States Department of Defence has a code with their text. Their font is one of a kind in the world. It cannot be duplicated by a home printer or anything like that. So the page on 144 is a poor fax or copy of that print. You can see the way that the boxes - - -
Mr Ellison: Yes?
Applicant: It’s a completely different photo. There is no way that 144 can be taken as an original.
Mr Ellison: So I’ll ask again. If you didn’t see this document between its transfer ‑ ‑ ?
Applicant: M’mm.
Mr Ellison: - - - from the military records to your migration agent, how do you know that the document they sent was the one as it appears on page 146?
Applicant: I don’t know that it was sent.
Mr Ellison: I suggest a moment ago you said that was the document that was sent?
Applicant: I said – no, what I said was the document he requested was sent to him directly from Kansas City, which was page 146.
Mr Ellison: Okay?
Applicant: That’s what I said.
Mr Ellison: So at some point therefore, on your version, after its receipt at your migration agent’s business and before it’s faxed in to the Department of Immigration, the document has been amended, correct?
Applicant: I’m not saying that. All I know is that the first time I’ve seen this document is when it was presented to me as part of this book. I have always seen, and I have a copy of this page, page 146, in my records. So what page was sent or received by the Department I had no idea about.
Mr Ellison: Okay?
Applicant: My file, the file I had from Migration Solutions, contains page 146 in that file.
Mr Ellison: I’ll ask it a different way. I suggest to you that the document received by the Department was page 144?
Applicant:Well I put to you, you would need to contact Mark Glasbrook and find that out.
Mr Ellison: I put to you – I withdraw that. Can you explain how your migration agent – I withdraw that. Can you explain how it came to be that your migration agent sent a false document to the Department?
Applicant: I don’t work in his office, so no, I cannot tell you how it came to me.
Mr Ellison: In any event, if it was done it must have been without your instructions?
Applicant: In any event the Department received page 146. That’s what the Department received. Because the Department – therefore there’s no way that the Department would then or anyone have a copy of page 146 if the original was not received by the Department at some stage. So this copy of 146 would not be in this book if the original was not received by the Department at some point. Because the only person that had this page, 146, is myself and my agent. There is no way for this book, police, Immigration, to have page 146 if they did not receive page 146.
Mr Ellison: I suggest, Mr Kleinberg, that you falsified this document, gave it to your agent and your agent sends it to the Department?
Applicant:Then why would I submit page 146? Again, page 146 would be impossible for anyone to have but myself, if that was the case.
Mr Ellison: This – my line of questioning was raised at the last hearing before the AAT?
Applicant: M’mm.
Mr Ellison: It was a matter that the Delegate relied upon, this document, as going to the decision in your matter, correct?
Applicant: I don’t – I don’t understand the question.
Mr Ellison: Well, you know that this document is of some importance in these proceedings, correct?
Applicant:The Department has had this document since 2008. They have had this document. My temporary residency wasn’t issued until 2009. They have had this document, literally, from the beginning of my application. Now, whatever document they want to go back and forth on, page 144 or 146, 146 is the complete original and intact document, so they have had this document since that time. Along with the explanation from – that was requested by the Department of Immigration directly, as to what the statutory declaration is on page 159. They wanted an explanation of my DD214, that’s why the statutory declaration accompanied that DD214. So the Department has had that form from the onset.
Mr Ellison: Since the last AAT hearing, when you were asked about this?
Applicant: M’mm.
Mr Ellison: Have you made any inquiries with - - ?
Applicant: No.
Mr Ellison: - - - migration – just let me finish the question?
Applicant: Sorry.
Mr Ellison: Made any inquiries of Migration Solutions about how this document could have been sent to the Department in an amended form?
Applicant: No.
Mr Ellison: I suggest the reason you haven’t done that is because you know that you yourself amended it?
Applicant:I – we are going to have a difference of that because the – like I said, the only way that the Department has the original would be to have been received as original.
Mr Ellison: Okay?
Applicant:So Mr Glasbrook and myself are the only two people that have this page. If it was going to be sent in fraudulently or amended, then it would have gone with that page and that page alone. They would have not received the original page. This original page, page 146, the Department has had the entire time from 2008.”[43]
[my emphasis and underlining]
[43] Ibid, page 41, lines 32-47, page 42, lines 1-46, page 43, lines 1-47, page 44, lines 1-47, and page 45, lines 1-6.
In 2003, Deputy President Block of this Tribunal said that in considering weight attributable to this Primary Consideration C, one must look to the expectations of “…the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.”[89]
[89] Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36].
In 2017, Deputy President Forgie of this Tribunal considered that paragraph 13.3(1) of the Direction leads a decision-maker to:[90]
“102. …conclusions which are to the effect that a consideration of what the Australian community expects is now more circumscribed by what is said in the Direction than might have been the case in earlier times. Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an ‘unacceptable risk’ that non-citizens will breach that expectation or when the nature of character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa…”
[My underlining]
[90] ETWK and Minister for Immigration and Border Protection [2017] AATA 228 at [102] and [103].
In Afu v Minister for Home Affairs (“Afu”),[91] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[91] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[92] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[93] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [94]
[My underlining]
[92] [2019] FCA 500.
[93] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the
Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[94] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[95]
[95] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authority of Afu establishes that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community;[96]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[97]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should “have due regard” of those statements, if made;[98]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[99]
[96] Afu at paragraph [85].
[97] FYBR at paragraph [42].
[98] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for
[99] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
The Applicant’s Personal Circumstances Form discloses the following work history in Australia:
·From August 2004 until March 2007 he worked in the security industry;
·From March 2007 to April 2014 he worked as a crane driver;
·From April 2014 to June 2015 he was self-employed;
·From June 2015 to December 2015 he worked in automotive sales; and
·From December 2015 to April 2016 he worked as a transport driver.[100]
[100] See Exhibit 2, s37 T Documents, T5, E.2, page 69.
He has also made certain contributions to Australian community and cultural activities. Again, his Personal Circumstances Form says: “I have volunteered at Hutt St Mission for the homeless, I am a volunteer for community sporting events such as food service, or referree [sic], I have participated in charity events.”[101]
[101] Ibid.
Having regard to the totality of the Applicant’s unlawful conduct from 2001 to 2017[102], and his resulting criminal history, he has surely breached the expectations of the Australian community. He has, over some 16 years, consistently and very seriously failed to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
[102] The offending for which he was sentenced in February 2017 was, of course, committed prior to his incarceration
in April 2016.
(i)the moderate level of the Applicant’s positive contributions to the Australian community.[103]
(ii)the Applicant has lived in Australia for approximately 17 years (up to his removal from the Australian community in April 2016). However, it should be noted that he was removed from the Australian community in April 2004, just over three years after he arrived here;[104]
(iii)the removal of the Applicant may have an adverse impact on other immediate family members in Australia, most notably his two infant children;[105]
(iv)the very serious nature of the Applicant’s offending to date;
(v)the nature of the totality of his conduct in this country, involving, as it does, a lack of respect for lawful authority governing the Australian community and, in particular, the property rights of others;
(vi)the absence of any convincing evidence that the Applicant has meaningfully engaged with any rehabilitative or treatment process such that there can be a definitive finding that his risk of re-offending is anything other than the low-moderate assessment made by Dr Holmes;
(vii)my finding of a convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of very substantial financial and potentially catastrophic physical or psychological or harm to the Australian community were he to re-offend.
[103] The Direction, paragraph 6.3(7).
[104] Ibid, paragraph 6.3(5).
[105] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm if returned to the United States. None of the evidence suggests a risk of harm in those circumstances. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
The following concessions are made by the Respondent:
“59. The Minister accepts that the applicant has ties to Australia. The Applicant has lived in Australia since the age of 27. His relevant ties include his ex-wife and children in Australia, who he claims would be impacted by his departure.
60. It is accepted that the non-revocation decision would cause emotional, and possibly practical, hardship to his immediate family (cl 14.2(b)).”[106]
[106] Exhibit 2, s37 T Documents, T17, page 481.
In terms of a contention about weight to be allocated to this Other Consideration (b), the Respondent says:
“61. The applicant arrived in Australia around 19 years ago when he was 27 years old. He began offending very shortly after that in 2000. In line with Direction 65,[107] less weight should be given to how long the applicant has been in Australia in circumstances where he began offending soon after arriving.”[108]
[107] Now Direction 79 – as outlined earlier in these Reasons.
[108] Exhibit 2, s37 T Documents, T17, page 481.
The following contentions are made on behalf of the Applicant:
“101. Mr Kleinberg has resided in Australia since 1999, now over 20 years. This is a considerable amount of time and should be given significant weight. In this time, he has contributed positively to the Australian community, through his role in fathering the 2 children and his charity work. It is conceded that less weight should be given to this consideration (14.2(1)(a)) than there otherwise would be due to Mr Kleinberg’s history of offending.
102. Other than his children, whose interests will be given primary consideration, Mr Kleinberg has no immediate family members in Australia who will be affected by a decision not to revoke the cancellation of his visa.”[109]
[109] See Exhibit 1, page 13.
The Applicant was born in the United States in September 1972. He came to Australia on a final basis in April 1999. He is presently 47 years of age. It can fairly be said that he has spent the roughly 42% of his life in Australia. Of the approximately 20 years he has spent in Australia, he has been in criminal custody and/or immigration detention on a continuous basis for a period of four years (i.e. since approximately April 2016).
I accept the Applicant has spent a significant period of time in Australia. His offending first came before lawful authority for sentencing in January 2001 as a 28 year old. This is less than two years after his final arrival in Australia. Having regard to paragraph 14.2(1)(a)(i) of the Direction, I find that the Applicant’s offending commenced soon after his arrival in Australia. Accordingly, any weight attributable to this Other Consideration (b) should be thereby reduced as a consequence of paragraph 14.2(1)(a)(i) of the Direction.
There is, however, evidence that the Applicant has made meaningful and positive contributions to the Australian community via his employment history and his involvement in Australian cultural and community activities. He thus merits the allocation of a measurable level of weight in his favour pursuant to paragraph 14.2(1)(a)(ii) of the Direction.
I think an even greater measure of weight should be allocated in favour of the Applicant pursuant to paragraph 14.2(1)(b) of the Direction. He has two immediate family members in Australia – his two abovementioned biological infant Australian citizen children. I have earlier recounted the role he has played in their lives and can be reasonably expected to play in their lives until they each attain the age of majority.
It is clear the Applicant has family ties of a certain strength and durability with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia. Both his oral and written evidence speaks to an ongoing level of those strong family ties via his two abovementioned biological children.
I am of the view that the strength, duration and nature of the Applicant’s family/social links with members of his immediate and extended family in Australia is such as to facilitate the allocation of a moderate, but not determinative, level of weight in his favour for this Other Consideration (b) pursuant to paragraph 14.2(1)(b) of the Direction.
(c) Impact on Australian business interests
There is no evidence before the Tribunal that cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence about the impact that the Applicant’s continued presence in Australia would have on any of his victims.
In the absence of such evidence, be it in the form of a victim impact statement or otherwise, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact that the Applicant’s continued presence in Australia would have on any of his victims. I have, for reasons outlined earlier, rejected the contention that the any impact of the Applicant’s offending on his victims can be ameliorated by those victims having some form of insurance in place to guard against the type of loss resulting from the Applicant’s offending.
It would be unsafe to find that this factor attracts any weight either in favour of, or against, the cancellation of the Applicant’s visa and it is thus neutral.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)The non-citizen’s age and health;
(b)Whether there are any substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to that non-citizen in that country.
It is contended on behalf of the Applicant that “There is no impediment to his removal by virtue of his age or health (14.5(1)(a) or by virtue of any language or cultural barrier (14.5(1)(b).”[110] It is further contended on behalf of the Applicant that:
“…he would have no family or community support if returned to the United States and that he would be homeless with no financial means available to him or job prospects.”[111]
[110] See Exhibit 1, page 13, paragraph [105].
[111] Ibid, paragraph [106].
In his Personal Circumstances Form, the Applicant records that he has the following family members residing in the United States: (1) his father, (2) his mother, and (3) his brother. The Applicant contends that although these relatives are in the United States, he has no contact with them. Taking that evidence at face value, one could reasonably accept that the Applicant may face some difficulty in re-establishing himself in the United States and in otherwise maintaining basic living standards if compelled to return there.
In his Personal Circumstances Form, the Applicant has disclosed that he does not suffer from any diagnosed medical or psychological condition. The Applicant is a healthy and able-bodied man who will not require any substantial ongoing treatment from the United States health system. Until he finds employment in the United States, it is reasonable to expect he may require welfare support in the course of financially re-establishing himself. If so, he will have access to the same level of governmental/social support to the same extent as that which is available to other citizens of the United States.[112]
[112] Section 14.5(1)(c) of the Direction.
As largely conceded by the Applicant, there are no significant or substantial language or other cultural barriers to the Applicant’s return and re-establishment in the United States.[113] The United States is culturally and linguistically similar to Australia. It should be remembered that the Applicant resided in the United States for the first 27 years of his life. To the extent he may face some difficulty in re-establishing himself in the United States, this would only present as a short-term hardship and would not preclude his successful re-settlement there.
[113] Section 14.5(1)(b) of the Direction.
It is also notable that the Applicant has a solid employment history in Australia with specific and demonstrated skills in the security industry and as a crane driver/operator. . There is little evidence in the material to cavil with the Respondent’s contention that the Applicant “is of working age and has a range of skills and work experience in both the United States and Australia. In all the circumstances, it may properly be concluded that removal from Australia to the United States is unlikely to result in a significant culture shock to the Applicant.”[114]
[114] Exhibit 2, s37 T Documents, T17, page 481, paragraph [63].
Having regard to the totality of the evidence, I am thus of the view that this Other Consideration (e) weighs moderately in favour of the Applicant with reference to determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C which, when combined, are of determinative weight in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant;
·Strength nature and duration of ties: weighs moderately in favour of revocation;
·Impact on Australian business interests: not relevant;
·Impact on victims: of neutral weight; and
·Extent of impediments if removed: weighs moderately in favour of revocation.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·The combined weight of Primary Considerations A and C is of determinative weight in favour of non-revocation;
·Primary Consideration B is of moderate weight in favour of revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of those Other Considerations, even when combined with each other and/or Primary Consideration B, outweigh the combined and determinative weight I have attributed to Primary Considerations A and C.
A holistic view of the considerations in the Direction, therefore, favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 248 (two hundred and forty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..........................[sgd].............................................
Associate
Dated: 13 August 2020
Date of hearing:
Reserved date:
17 July 2019
5 May 2020
Representative for the Applicant:
Mr Hamish Glennister
Cathal Smith Legal Pty LtdRepresentative for the Respondent: Mr Tom Ellison, Senior Lawyer
Australian Government SolicitorATTACHMENT A - EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
1
Applicant’s SFIC, dated 12 July 2019
2
Section 37 T Documents (page 1 to 692)
3
Respondent’s Supplementary Submissions on Primary Consideration C
4
Applicant’s Email, dated 12 April 2020 (with “Letter for AAT” in the subject line)
5
Hand-written note from Child D (undated), addressed to “Dear Judge”
Note: the Respondent’s SFIC relied upon for this re-hearing of the matter on remittal is the same as the SFIC relied upon by the Respondent at the initial hearing. This was confirmed by the Respondent’s representative at the hearing[115]
[115] See Transcript, 17 July 2019, page 2, lines 32-38
ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
Immigration and Border Protection [2016] FCA 348.
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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