Kostopoulos and Minister for Home Affairs (Migration)
[2018] AATA 3859
•15 October 2018
Kostopoulos and Minister for Home Affairs (Migration) [2018] AATA 3859 (15 October 2018)
Division:GENERAL DIVISION
File Number: 2018/4392
Re:Theodoros Kostopoulos
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:15 October 2018
Place:Sydney
The decision under review is set aside and in substitution thereof the cancellation of Mr Kostopoulos’ visa is revoked.
...............[sgd].........................................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – substantial criminal record – history of drug use – participation in a criminal group and supply of prohibited drugs – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – strength, nature and duration of ties – Applicant cares for frail, elderly mother – extent of impediments if removed – Applicant’s medical treatment regime would be compromised if removed from Australia – decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 200, 499, 501, 501CA
CASES
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693
Contreras v Minister for Immigration and Border Protection [2015] FCA 47
Dinkha v Minister for Home Affairs [2018] AATA 3037
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
Ferreira and Minister for Home Affairs (Migration) [2018] AATA 2599
G v Minister for Immigration and Border Protection [2018] FCA 1229
Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567
Immigration and Multicultural Affairs [1999] FCA 1197
Kostopoulos and Minister for Immigration and Multicultural Affairs [2001] AATA 34
Kostopoulos v Minister for Immigration and Citizenship and Commonwealth of Australia [2008] FCA 855
Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13
Minister for Immigration, Multicultural and Indigenous Affairs v Stefan Nystrom [2006] HCA 50
Murphy v Minister for Immigration and Border Protection [2018] AATA 750
Nevistic v Minister for Immigration and Ethnic Affairs [1981] 34 ALR 639
Pizarro and Minister for Home Affairs (Migration) [2018] AATA 3517
Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708
Shi v Migration Agents Registration Authority [2008] HCA 31
Singh v Minister for Immigration and Border Protection [2018] AATA 2150
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273
VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268YNQY v Minister for Immigration & Border Protection [2017] FCA 1466
SECONDARY MATERIALS
European Commission, Your Social Security Rights in Greece (2018)
OECD, Country Report: How is life in Greece? (November 2017)
OECD, Pensions at a Glance 2017: Country Profiles – Greece (2017)
REASONS FOR DECISION
Chris Puplick AM, Senior Member
15 October 2018
PERSONAL BACKGROUND: HISTORY AND HEALTH
Mr Theodoros Kostopoulos was born on 4 January 1957 in the Greek city of Patras. He arrived in Australia with his parents on 8 July 1970, aged 13 years. His consultant psychologist reports that Mr Kostopoulos was reluctant to leave Greece[1] at his then age of 13 where he was happy and doing well at school and further reports that he suffered from various forms of bullying and racial discrimination when he arrived in Australia, especially at school.
[1] Report of Mr Peter Stoker (Clinical Psychologist) dated 23 September 2018.
On arrival he was granted a permanent entry permit “either in his own right, or as a result of entering Australia on a parent’s passport”[2] – this matter is not entirely clear.
[2] Kostopoulos v Minister for Immigration and Citizenship and Commonwealth of Australia [2008] FCA 855 at [20] per Moore J.
During periods of contact with the juvenile justice system he claims that he was subjected to abuse and physical violence by custodial officers. This material was referred to in Mr Stoker’s report and in oral evidence without being challenged by the counsel for the Respondent and was referred to by a Sentencing Judge in 2017.[3] However it remains just that – a claim by the Applicant.
[3] G Documents at [40].
He left Australia to make a short visit back to Greece in 1977. This had the effect of causing his entry permit to lapse, but it was apparently “re-instated” on his return to Australia. Thereafter he was the holder of a Class BF transitional (permanent) visa under the Migration Act 1958 (the Act).
He is now 61 years of age and in poor health. Medical evidence before the Tribunal establishes that he suffers several physical and mental ailments.[4] He apparently suffers from chronic tension headaches, Hepatitis B and Hepatitis C and he has a “markedly shortened left lower limb as a consequence of developing infection in the groin, that led to septic arthritis of the left hip and osteomyelitis of the upper left femur”.[5] In April 2010 he had a total hip replacement. He suffers pain as a result of this and has been using methadone (at a rate of 167 ml per daily dose) for pain relief for something in the order of 30 years. He submits to the Tribunal that he also has high blood pressure and is required to take insulin injections to manage his diabetes. Furthermore he had a heart attack while in custody in 2017 and says that he has to take care with his food and exercise regime.[6] He has a forthcoming medical appointment to assess his need and suitability for a second hip replacement.
[4] G Documents at [80]-[81].
[5] G Documents at [206].
[6] G Documents at [146].
He is dependent upon the Disability Support Pension for his income.
Mr Peter Stoker, a psychologist, assessed Mr Kostopoulos while he was in custody in August 2017 and diagnosed him as suffering from Posttraumatic Stress Disorder and Anti-Social Personality Disorder.[7] Mr Stoker gave oral evidence to the Tribunal in which he confirmed this diagnosis. He has seen Mr Kostopoulos on two occasions in August 2017 and September 2018, between these two appointments noticing a significant (he used the word “shocking”) decline in his overall state of self-confidence, responsiveness and general demeanour.
[7] G Documents at [77].
Both Mr Kostopoulos parents came to Australia and both became naturalised Australian citizens,[8] although his father is now deceased and he cares for his elderly (aged 87) and frail mother. Indeed, she writes in support of her son that “I rely on him for everything”.[9] His sister (aged 64), who also became a naturalised citizen, is married but says that her husband is not in good health and that she will rely on her brother for help and support to deal with her own serious medical issues.[10]
[8] G Documents at [117] and [119].
[9] G Documents at [116].
[10] G Documents at [122].
At some stage Mr Kostopoulos was married and from that marriage he has a son (variously referred to as Lee or Leigh)[11] with whom he has had virtually no contact throughout his life. His son has numerous children but there is no evidence as to their details and it is clear that Mr Kostopoulos has never had significant contact with them or in any way contributed to their lives. While he professes that he would like to “reconcile” with his son there is no indication of how he proposes to do this nor the willingness of his son to respond. The Tribunal cannot place any weight on matters related to this father-son relationship or to any relationship with the children of his son.
[11] “Lee” in Mr Kostopoulos’ Statutory Declaration dated 24 January 2018, G Documents at [146], “Leigh” in Personal Circumstances Form dated14 December 2017, G Documents at [60]. Leigh is correct.
CRIMINAL RECORD
To say that Mr Kostopoulos’ criminal record is extensive would be to egregiously diminish the ordinary meaning of that word. From his first offences in February 1974 until August 2010 there is a litany of appearances before the courts. Although it is not entirely clear from the National Police Certificate[12] as to which offences led to direct charges and which were part of some cumulative charge, his record in that period discloses the following convictions:
[12] G Documents at [28]-[32].
·Break, enter and steal (or attempted): 4 counts
·Steal: 3 counts
·Malicious injury: 1 count
·Possession of firearm: 1 count
·Assault: 5 counts
·Prescribed concentration of alcohol: 1 count
·Supply heroin or prohibited drug: 3 counts
·Escape lawful custody: 1 count
·Armed robbery (or attempted): 3 counts
·Shoplifting: 8 counts
·Larceny and possession of stolen goods: 1 count
·Damage or destroy property: 1 count
·Possess prohibited drug: 1 count
·Vehicle offences: 1 count
·Use of unseemly words: 1 count
There is then a significant hiatus in his criminal record until in September 2017 he was sentenced in Parramatta Court for the offences of participating in a criminal group (contribute to criminal activity), supply prohibited drugs at indictable quantity level (not cannabis) and supply prohibited drugs on an ongoing basis. For these offences he was sentenced to a (cumulative) term of imprisonment of two years. It was this conviction which brought him to the attention of the Department and has resulted in the current cancellation of his visa as outlined above.
The drug offences before the Court in 2017 took place during a period from May to November 2016 and involved the supply of not less than 63 grams of cocaine over at least 60 occasions and with the value of the transactions exceeding $25,000.[13] In addition in June/July 2016 he also supplied cocaine on at least eight occasions for financial reward – as is particularly noted in the Delegate’s determination.[14]
[13] G Documents at [34].
[14] G Documents at [17].
In oral evidence Mr Kostopoulos denied a number of matters of finding to which the Sentencing Judge made reference. The Tribunal will return to this particular offence later in its reasons but suffice to say that it accepts none of Mr Kostopoulos’ attempted refutations of the Judge’s findings. There is clear authority that, while the Tribunal is entitled to consider the environment and circumstances of any offence which has been before the courts, it is not permitted to call into question any aspects of the court’s actual findings or sentences.[15]
[15]Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212 at [653]; Minister for
Immigration and Multicultural Affairs v SRT [1999] FCA 1197 at [45]-[46]; Singh v Minister for
Immigration and Border Protection [2018] AATA 2150 at [5].
The Tribunal will return to consideration of this particular offence and sentencing later.
Mr Kostopoulos is now a man of 61 years of age. During the course of his life:
·His criminal record extends over a period of 40 years.
·He has been sentenced to terms of imprisonment for periods in excess of 12 months on at least eight occasions.
·He has spent more than 30 years in prison.
·From the late 1980’s to 2008 the longest period of time he spent outside prison or detention was less than 12 months.[16]
[16] G Documents at [16] and [18].
(i) Mr Kostopoulos’ history of drug use
Mr Kostopoulos started using illicit drugs as a teenager, his drug of choice being marijuana. He then moved on to using LSD (lysergic acid diethylamide), cocaine and heroin in his late 20’s and early 30’s.[17] Apparently he ceased using heroin in 1986 after he had spent some time in hospital where, he says, he saw the negative impact of drug use on others. He claimed that he ceased using any form of drugs entirely in or about 2008.[18]
[17] G Documents at [39]. Sentencing remarks of Judge Norton.
[18] Applicant’s Statement of Facts, Issues and Contentions at paragraph [11].
In his submission, Mr Kostopoulos claims that of the 42 offences on his criminal record some 37 resulted directly or indirectly from his drug use.[19]
[19] Idem at paragraph [9].
At some point in early July 2012, having not heard from his brother for some time he went to his brother’s house. He was unable to effect entry and called the police and ambulance services. The police attended and forced entry to the house where they found his brother deceased, sitting in a chair with his eyes open. He had apparently been dead for a number of days. The Death Certificate before the Tribunal was issued without a cause of death specified awaiting advice from the Coroner.[20] A subsequent reference in sentencing remarks by Judge Norton records that: “his brother died approximately five years ago of a collapsed lung. His brother was using methamphetamines at the time and the offender [Mr Kostopoulos] had to identify his body … and this traumatised him”.[21]
[20] G Documents at [142].
[21] G Documents at [40].
Mr Kostopoulos on a number of occasions in written and oral evidence says that this experience caused him severe trauma, that he still has flashbacks/nightmares about it and it led directly to his resuming his use of drugs: on this occasion cocaine. The Tribunal however must note that Mr Kostopoulos was consistently in error in accurately reporting the date of his brother’s death, generally stating it to be much later, in November 2016.[22]
[22] Applicant’s Statutory Declaration dated 24 January 2018 at paragraph [8].
Mr Kostopoulos, in his Statutory Declaration of 24 January 2018, claims that he was “clean” from drug use from 2008 until 2016. He writes: “I was clean between 2008-2016 but started using after I saw my brother dead. His death brought me down in the dumps. I was looking to substitute the pain”.[23] It is of course a matter of some significance if the period of being “clean” was a much lesser period of 2008 to 2012 than that of 2008 to 2016. Mr Kostopoulos’ claims that his memory is bad may be true but the Tribunal would have expected some degree of clarity and certainty about an event as traumatic as the death of his brother.
[23] Ibid at [9].
Regardless of what the date in question was, the Tribunal can accept that this was the event which precipitated Mr Kostopoulos’ return to a regular drug habit. It was this re-established drug habit which led, in its turn, to the events and offences which came before the Court on 7 September 2017.
(ii) Mr Kostopoulos’ most recent conviction
The narrative of this appears to be along the following lines:
(a)Mr Kostopoulos frequented a café where he met a Mr Mohammed Masri and they started to get acquainted;
(b)After a degree of familiarity had been established, Mr Kostopoulos asked Mr Masri if he knew of any way in which he could get access to cocaine on a regular basis;
(c)Mr Masri suggested that if Mr Kostopoulos were prepared to act as his driver (he possessing neither a car nor a driver’s licence) he would supply Mr Kostopoulos with cocaine in return. At some later stage Mr Kostopoulos abandoned use of his own car and hired a vehicle “to be used by the syndicate”;[24]
(d)Mr Kostopoulos agreed to this and, using his own car, he ferried Mr Masri to various appointments;
(e)It soon, but not immediately, became obvious that Mr Masri was supplying drugs, nevertheless Mr Kostopoulos continued to act as his driver;
(f)Mr Kostopoulos claims that he had no idea that Mr Masri might be involved in a larger criminal conspiracy to supply drugs, although the Court found to the contrary, namely that he “was aware of the scope and extent of the syndicate but he was not a principal and did not have an organisational role”;[25]
(g)The Court found further than Mr Kostopoulos knew the owner of the syndicate, Abdul Zreika;
(h)In time Mr Kostopoulos assumed a larger role than merely that of a driver. The Court found that: “on about 15 July 2016 Masri was hospitalised and the offender [Mr Kostopoulos] took over the management of the run for a short time”.[26] The Court found that he regularly took orders on his own mobile phone from customers and regularly sold them small amounts of drugs. Mr Kostopoulos denies that he had any such direct role, but the Court found to the contrary and the Tribunal in no way calls into question its finding;
(i)These arrangements lasted from 16 May 2016 to 9 November 2016, during which time Mr Kostopoulos was involved in the supply of not less than 63 grams of cocaine with a transactional value in excess of $25,000.
[24] G Documents at [35].
[25] G Documents at [35].
[26] Idem.
When this matter came before the Court, Mr Kostopoulos pleaded guilty to charges of supplying a prohibited quantity of a prohibited drug, supplying on an ongoing basis and being a member of a criminal group contributing to criminal activity.
The Tribunal will return to the remarks of the Sentencing Judge later, suffice to say that other members of this syndicate have been or are before the courts, some having been sentenced and some awaiting sentence.
While the Tribunal is prepared to accept that Mr Kostopoulos may not have been paid in cash by the syndicate principals but only received drugs in return for his services, it does not accept his other protestations about the extent to which he was a mere innocent dupe without any significant knowledge of the nature or extent of the criminal operations concerned. He was a low-level foot-soldier but not an unaware one.
In sentencing, Judge Norton accepted that Mr Kostopoulos had been drug free and had had “ten years of sobriety” before he had “relapsed into criminal activity”. Her Honour accepted that Mr Kostopoulos was genuinely remorseful for this and had made efforts through programmes and other interventions to change his pattern of drug using behaviour.[27] Her Honour further accepted that Mr Kostopoulos’ recent time in prison had been “more onerous for him than in the past” and said: “I accept there are reasonable prospects for him to return to and remain on the path of rehabilitation”.[28]
[27] G Documents at [43].
[28] G Documents at [45].
This is an assessment which the Tribunal is prepared to accept and adopt.
(iii) Mr Kostopoulos’ initiatives to address his drug issues
The Tribunal also notes that Mr Kostopoulos made genuine efforts while in custody to address his drug issues. He participated in and completed the EQUIPS Addiction Program.[29] There are also case notes from the Department of Corrective Services which report that:
Terry has attended every session, participated in group discussions regularly. Is very respectful with other participants in the group. Is non judgemental of other peers in group and accepts them even though they might be in a different stage of change as he is. Terry is currently in the maintenance stage of change.
Offender completed EQAD program on 13/12/17. He presents as someone who is desperate to overcome their AOD issues because of age, ill health and the negative impact his gaol/addiction had had on his family. He has identified risk factors including his 1/ previous inability to adapt to everyday life and 2/ failing to challenge unhelpful thinking. He was able to understand the CBT concepts but at times his low self esteem appeared to undermine his attempt to use them. (self defeating thinking). He participated well in group but his ability to plan for the future is difficult because he is of interest to immigration and he reports he will likely go to Villawood.[30]
[29] G Documents at [144].
[30] Department of Corrective Services case notes dated 13 November 2017 and 22 December 2017 respectively.
VISA CANCELLATION: THE SCHEME OF THE LEGISLATION
On 14 November 2017 the Minister (via his Delegate) cancelled Mr Kostopoulos’ visa.
Section 501(3A) of the Act provides that the Minister must cancel a person’s visa in the following circumstances:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
... and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
This visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
…
(c)the person has been sentenced to a term of imprisonment of 12 months or more;
It can thus be seen clearly in relation to Mr Kostopoulos that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that term of imprisonment was for a period of greater than twelve months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it.
Section 501CA of the Act outlines the process:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non-disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect as follows:
(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.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision resulted in a determination that the mandatory revocation should not be set aside.[31] This is the reviewable decision.
[31] G Documents at [10]-[27].
In coming to their decision, the Delegate noted that since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.
In doing so the Delegate followed the requirements set out in Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).
MINISTERIAL DIRECTION 65
Under section 499 of the Act, the Minister is authorised to issue directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation.
As far back as 1979 the Full Federal Court held that:
If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the Tribunal to take into account in reviewing the decision. On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the Tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.[32]
[32] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases”.[33]
[33] Re Drake and Minister for Immigration and Ethnic Affairs (No.2) [1979] 2 ALD 634 at [640].
In 1981 the Full Federal Court warned that:
On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.[34]
[34] Nevistic v Minister for Immigration and Ethnic Affairs [1981] 34 ALR 639 per Lockhart J at [651]-[652]. See also Franki J at [642] and Deane J at [646].
In 1985 the Tribunal noted:
Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account.[35]
[35] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21].
In 1994 the Full Federal Court opined:
It is right to say that the tribunal, which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review[36]
[36] Minister for Immigration, Local Government and Ethnic Affairs v Gray (1994) 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded:
policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.[37]
[37] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210].
This Tribunal draws heavily upon the recent decision by Senior Member PW Taylor SC in Aciek,[38] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
8. The “another reason” criterion for the exercise of the revocation discretion requires an evaluative assessment of all the relevant matters. The purpose of the required evaluation is to achieve a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]- [83]; [2014] FCAFC 141; 227 FCR 562. The decision must be legally “reasonable” – in the sense of having a rational foundation and a result that is not plainly unjust:- Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [13]- [20]. Where the discretion falls to be exercised in the Tribunal’s review jurisdiction, that jurisdiction is to be exercised for the purpose of achieving the “correct or preferable” result, having regard to the terms and purpose of the relevant statutory provisions, and the available relevant information:- Drake v Minister For Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. It necessarily follows that the required consideration must address the matters that favour revocation and those that do not:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]- [32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The process of addressing those matters must involve “an active intellectual engagement” and genuine, proper realistic consideration of the relevant information:- Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]–[49]; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26]; Maioha v Minister For Immigration and Border Protection [2018] FCA 1016 at [24]- [26].
[38] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
(a) Primary considerations
Ministerial Direction 65 establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”.
Three “primary conditions” related to revocation requests are set out as:
·Protection of the Australian community and the risk of an applicant reoffending;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[39]
[39] Part C, paragraph 13.
Protection of the Australian community / risk of reoffending
Mr Kostopoulos is an old man. He is a sick man.[40] He is, in the words of consultant psychologist Peter Stoker “a defeated and a broken man”.[41] Mr Stoker goes on to describe him as “guilt-ridden due to his inability to be there for his mother”[42] and noted in oral evidence to the Tribunal that the decline in his sense of well-being and mental strength had collapsed dramatically between the two interviews which he conducted with him in August 2017 and September 2018. These impressions are exactly those observed by the Tribunal during the hearing process.
[40] Full details are provided in the IHMS Report and Documentation filed by the Applicant.
[41] Report of Peter Stoker dated 23 September 2018.
[42] Idem.
The Tribunal also notes the remarks of Sentencing Judge Norton in relation to Mr Kostopoulos’ likelihood of reoffending and his prospects for rehabilitation. Not least, the Tribunal accepts the evidence of Mr Kostopoulos that his most recent period of incarceration, a situation with which he is all too familiar, has been more traumatic and distressing than any he has experienced previously given both his mental state and his reduced physical condition relating to his mobility and his hip problems.
The Tribunal has no difficulty in coming to the conclusion that the risk of Mr Kostopoulos reoffending is low to negligible and that his threat to the Australian community is at the lowest possible threshold.
It cannot find that this consideration weighs against Mr Kostopoulos.
Best interests of minor children
It appears that although Mr Kostopoulos has a son, he has had no effective contact with him since his birth and no significant role (indeed no real role whatsoever) in his upbringing. It appears that this son has several children, some of whom are presumably minors. In his Statutory Declaration of January 2018 he states there are seven children,[43] whereas the Delegate’s report of August 2018 suggests that Mr Kostopoulos had advised there are nine.[44] Apparently Mr Kostopoulos has not met any of them, although he says that he wants to be part of their lives.[45] There is no indication that his son wants this. As far as the Tribunal is concerned this particular family circumstance cannot be given any weight in its considerations.
[43] G Documents at [146].
[44] G Documents at [21].
[45] G Documents at [21], [146] and [177].
There are however a number of nephews and nieces with whom Mr Kostopoulos has a meaningful relationship. In a Statutory Declaration and in oral evidence provided by his niece Mrs Lena Moscato,[46] she speaks of three minor children who regard Mr Kostopoulos as their “uncle” and with whom they have a close relationship. Although these children have their own father as a principal male role model, they nevertheless appear to be genuinely attached to Mr Kostopoulos and he is described as “a big part of their lives”, although this needs to be qualified by the fact that he has been frequently absent due to his lengthy spells of incarceration.
[46] Statutory Declaration dated 24 September 2018.
Another of his nieces, Ms Asmina Kitos,[47] also provided both a Statutory Declaration and oral evidence in support of Mr Kostopoulos. She has three children of whom two are minors. Like Mrs Moscato she attests to Mr Kostopoulos playing a positive role in their lives. In this instance the children’s father is no longer part of the family and so Mr Kostopoulos played a significant role after Ms Kitos’ divorce helping with matters such as babysitting. Ms Kitos speaks warmly of Mr Kostopoulos’ role as a father figure for her minor son and of the closeness with her minor daughter.
[47] Statutory Declaration dated 21 September 2018.
Although evidence in cases such as this when coming from members of the immediate family must be treated with a degree of caution, the evidence before the Tribunal is such as to support a claim that Mr Kostopoulos does in fact play an avuncular role of some significance in the life of a number of minor children resident in Australia.
The Respondent in their submission concedes that this consideration “may weigh slightly in favour of the applicant”.[48] The Tribunal puts it somewhat above “slightly”.
[48] Respondent’s Statement of Facts, Issues and Contentions at paragraph [66].
Expectations of the Australian community
In YNQY v Minister for Immigration & Border Protection,[49] Mortimer J said that this description of “community expectation” in Direction No 65 operated as a prescriptive statement. Her Honour said that:
[76] In substance this consideration is adverse to any applicant … it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
[49] [2017] FCA 1466.
This analysis was subject to consideration by the Tribunal in Murphy v Minister for Immigration and Border Protection[50] where Senior Member Taylor SC wrote:
[56] The thrust of Mortimer J’s observation was to emphasise the prescriptive nature of the concept of community expectation that cl 13.3 sets out. But the actual statement that the expectation is defined only as one of non-revocation where a person has been convicted “of serious crimes of a certain nature” is not precisely accurate — having regard to the actual wording of clause 13.3 reveals. There are four significant aspects of clause 13.3. The first is the emphasis it places on the visa holder’s compliance with the expectation implicit in the visa grant — conformity with Australian law. The second is that, despite that emphasis, it eschews the inflexible refusal of visa status, even in the case of convictions. The third is that it nevertheless contemplates that “non-revocation may be appropriate” (I have added the emphasis) because of the nature of a particular offence and, inferentially, even in the absence of apprehensions of unacceptable risk of repetition of the offending conduct. The fourth is the opaque requirement, in the last sentence, that decision makers “should have due regard to the Government’s views in this respect.”
[57] That last sentence in cl 13.3 can properly be regarded as an emphasis on the possibility recognised in the sentence that precedes it. That preceding sentence, with its recognition of what “may be appropriate” points the decision maker back to the obligation to pay due regard to all the considerations required by the principles and general guidance set out earlier in the direction. They contain, as I have indicated, a requirement to have regard to the expectations of lawful conduct by visa holders: see cl 6.3(2).
[58] When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.
[50] [2018] AATA 750.
Second chance considerations
On 31 May 2018, Mr Kostopoulos was interviewed by Mr George Topalidis, a paralegal working for Southwest Migration and Legal Services. The purpose of the interview was to provide a submission for consideration by the National Character Consideration Centre of the Department of Home Affairs. The following is an extract:
Q12: What do you think the expectations of the Australian community are of someone in your situation? Do you deserve another chance? Why?
19. The Australian community, if they knew about all the things that have happened to me in my life, not just the offences, they’d be more sympathetic. I know the wrongs I did. But I don’t think the Australian community would say ‘get rid of him, he doesn’t belong here’. I’m Australian. I’ll stick to that. Yes, they should give me another chance.[51]
[51] G Documents at [229].
Neither the Australian community, nor this Tribunal, is unsympathetic to the idea of giving people a second chance.
At the end of the day, Australia is after all, a nation built upon the principle of a second chance. The Tribunal cannot think of a principle so uniquely Australian. Indeed, it is fundamental to what can properly be described as our national character: the idea that, except in the most extreme of circumstances, everyone is entitled to a second chance. Such a principle was the very raison d’etre for the despatch of the First Fleet on 13 May 1787 and those which followed them.
In a context only marginally different from the case now before it, this Tribunal stated:
Neither the Australian community, nor this Tribunal, is averse to giving people a second chance. However, those second chances are not automatically available; they have to be earned. Persistent disregard of warnings[52] about the need for compliance with mandated programmes and wilful failure to take rehabilitative opportunities offered must be regarded as fatal to applications such as this. Persistent refusals to accept life-lines when offered cannot be ignored.[53]
[52] See this Tribunal’s comments in Ferreira and Minister for Home Affairs [2018] AATA 2599 at [89]-[91].
[53] Dinkha v Minister for Home Affairs [2018] AATA 3037 at [113].
The Tribunal notes Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia”.[54] Although this is a reference to the tests imposed in citizenship matters, it remains apposite when considering the way in which the Ministerial Directions in migration cases should be considered.
[54] [2016] AATA 999 at [68].
Deputy President McCabe in Do and Minister for Immigration and Border Protection reflected on the question of second chances when he said that:
A decision-maker is, to some extent, required to guess at the community’s expectations … As I begin my deliberations, I assume the Australian community would be fair-minded and mature … The community would certainly not be vengeful … after all: we are a nation built on second chances.[55]
[55] [2016] AATA 390 at [23].
Two other recent cases are relevant for noting. In Fuzzy Events Unit Trust, Deputy President Justice Stevenson held that it was appropriate to give a “second chance” to an applicant, in large part, in “recognition [of] his life changes”[56] since he had been first convicted. The Deputy President noted that the efforts of the Applicant to change his behaviour and to seek to make a positive contribution to the community following his conviction was something which helped earn him the right to a second chance.
[56] The Trustees for the Fuzzy Events Unit Trust and Minister for Home Affairs (Migration) [2018] AATA 3273 at [65].
Perhaps going somewhat beyond a mere “second” chance, the Tribunal in VXKK considered an applicant who, like Mr Kostopoulos, had struggled with issues of homelessness and drug use. After assessing the suite of “other” considerations outlined in Ministerial Direction 65, Member Burke wrote:
Many in the community would believe VXKK’s visa should remain cancelled. Others apprised of his difficult life story would afford him the opportunity to stay in Australia to turn his life around – this final chance.
She concluded: “He should be given a final chance to get his life in order”.[57] Although this Applicant’s criminal record is not entirely dissimilar to Mr Kostopoulos’, the Tribunal draws attention to the numerous factors which the Member found supported her decision, not all of which are able to be counted in Mr Kostopoulos’ favour.
[57] VXKK and Minister for Home Affairs (Migration) [2018] AATA 3268.
This would be all well and good were it not for the fact that Mr Kostopoulos has already had numerous “second chances”.
These were explored in detail by this Tribunal in 2001,[58] when dealing with an earlier appeal of Mr Kostopoulos’ against a previous deportation order made against him by the Minister under section 200 of the Act on 29 March 2000. From that decision it is possible to establish that:
(a)In March 1979 Mr Kostopoulos was convicted for the offence of supply a prohibited drug (heroin) and given a six year sentence. This came to the attention of the Department and in 1981 a report was prepared which, having examined details of his conviction, came to the conclusion that although his offence made him eligible for deportation, he should nevertheless be allowed to remain in Australia. The Minister so decided on 22 December 1981. He was given a formal warning by the Department (dated 4 February 1982) that further offences might well result in his deportation. This was a second chance.
(b)Despite this warning, in 1985 Mr Kostopoulos committed offences of armed robbery and break, enter and steal. He received a sentence of nine years (with five years non-parole). In 1991 for the further offence of armed robbery he received an eight year sentence. These matters, somehow, did not come to the attention of the Department until 1995. A report was prepared within the Department which recommended that Mr Kostopoulos be deported. This recommendation was reviewed by a senior officer who determined on 10 April 1995 that the deportation option would not be pursued. In place, Mr Kostopoulos was issued with a further warning (dated 8 May 1995) and specifically told that further offences could lead to a reconsideration of his position. This was a third chance.
(c)In August 1999 Mr Kostopoulos offended again (this time larceny, custody of items suspected stolen and receiving stolen goods). He was returned to custody to serve the balance of a previous sentence. This occasioned a letter from the department warning of possible deportation pending further consideration of Mr Kostopoulos’ offences. A report in 2000 noted that Mr Kostopoulos had committed several deportable offences, had two previous warnings and was assessed as being of “high risk” of reoffending. This time, on 29 March 2000 a deportation order was issued against Mr Kostopoulos. He then exercised his right of appeal to this Tribunal. On 23 January 2001 Deputy President Dr D. Chappell set aside the Department’s decision and substituted it with its own decision that Mr Kostopoulos not be deported. This was a fourth chance.
(d)During the course of 2002 Mr Kostopoulos committed yet further offences. These included armed robbery (sentenced to imprisonment for eight years and six months); vehicle-related offences (sentence of 12 months) and offences for which he was fined (driving without a licence and possession of prohibited drugs). On 27 September 2007 the Minister cancelled Mr Kostopoulos’ visa (Class BF transitional (permanent)) under s 501(2) of the Act. Mr Kostopoulos appealed this decision to the Federal Court (on the basis that this action by the Minister was ultra vires) which, on 6 June 2008 upheld the Minister’s power to do so.[59] However on appeal to the Full Federal Court, orders by consent were made setting aside the orders made by Moore J and quashing the decision of 27 September 2007.[60] His visa was re-instated by the Full Federal Court on 7 July 2008. This was a fifth chance.
(e)On 29 May 2009 a Notice of Intention to Consider Cancellation of his visa was issued, which resulted in yet another warning on 1 June 2009.[61] This was a sixth chance.
[58] Kostopoulos and Minister for Immigration and Multicultural Affairs [2001] AATA 34. See also G Documents at [20].
[59] Kostopoulos v Minister for Immigration and Citizenship and Commonwealth of Australia [2008] FCA 855 per Moore J.
[60] Kostopoulos v Minister for Immigration and Citizenship Order NSD935/2008 made on 21 August 2008 per North, Lander and Perram JJ.
[61] G Documents at [20].
It cannot be said that Mr Kostopoulos was unaware of the potential consequences of his own behaviour. Apparently in 2007 he wrote to the Department, “I undertake to up hold all laws of Australia and strive to protect all citizens of our community” and that, “I don’t expect another chance to stay in Australia if I fail these undertakings”.[62]
[62] Ibid.
“Second chances” are simply not endless. In Anaki the Tribunal dealt with the question of how far tolerance for repeated misbehaviour could or should be extended. The Tribunal stated:
On balance, while the limit of tolerance of Mr Anaki’s offending conduct has been reached and tested, it has not yet been exceeded. Reasonable judgement of his conduct over time supports a proportionate assessment, presently. I accept that this is a point on which reasonable minds may differ.[63]
[63] Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693 at [99].
Given that reasonable minds may differ in this instance, nevertheless in Mr Kostopoulos’ case the Tribunal believes that that limit of tolerance has now been not only reached but exceeded. Whatever may be concluded about the existence of “another reason” for visa revocation, it cannot lie in any consideration of giving Mr Kostopoulos “another chance”.
On balance the Tribunal would come to the conclusion that the expectations of the Australian community would probably lie against the revocation of the Minister’s decision but that this would be a matter open to varying views and not one universally held or held with particular strength.
(b) Other considerations
Ministerial Direction 65 goes on to list a series of “other” considerations which must be taken into account by the Tribunal. These 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.
There is judicial guidance in dealing with these “other” considerations.
In Suleiman v Minister for Immigration and Border Protection, Colvin J stated:
[23] … Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the ‘other considerations‘ … 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.
…
[28] To treat the other consideration as secondary irrespective of its character in the particular case does not conform to the language of Direction 65. So, in this case, even though the Tribunal found that the applicant was ‘at risk of harm - arguably even death given the consequences that flow from this mental disability if left untreated‘ this was a matter that it placed as always being of lesser importance than the primary considerations. The Tribunal did not consider, as it was required to do by Direction 65, whether in the specific circumstances the non-refoulement obligations should be afforded greater weight.[64]
[64] [2018] FCA 594.
No matters of international non-refoulement obligations were raised for the Tribunal’s consideration so this matter may be passed over without further comment. Similarly there are no matters for consideration in relation to either any potential impact on the Australian business community or the ongoing interest of, or impact upon, any victims.
Ties to Australia
Mr Kostopoulos repeatedly told the Tribunal that he regards himself as “an Australian”. Although he has some memories of Greece and still manages to converse with his mother in “broken Greek”, he has no other ties to that nation. There is no doubt that his family ties are here and, as his mother reminded the Tribunal on several occasions in her testimony, so are the graves of his father and brother.
The respondent concedes that this consideration weighs in favour of Mr Kostopoulos, although it asserts that it does not outweigh other negative considerations.[65]
[65] Respondent’s Statement of Facts, Issues and Contentions at paragraph [74].
There is one tie to Australia which the Tribunal cannot overlook and that is the position of Mr Kostopoulos’ mother, Lemonia Kostopoulos. She is 87 years of age, frail and in large part dependent upon Mr Kostopoulos for many of her daily needs. Although she has two daughters, one is resident in Broken Hill and unable to provide any form of on-going support.[66] Her other daughter is suffering from cancer and the Tribunal was told that this was a terminal condition.[67] In turn her daughter gives Mrs Kostopoulos what physical help she can, but with her own family to care for this cannot involve financial support nor be as extensive as the care provided by Mr Kostopoulos himself. In her own Statutory Declaration and in powerful oral evidence to the Tribunal the degree of dependency, physical and emotional, which she has upon her son was evident.
[66] Statutory Declaration of Ms Anne Kavvalos dated 24 September 2018. Ms Kavvalos also gave oral evidence to the Tribunal to this effect.
[67] Statutory Declaration of Mrs Lena Moscato: op cit.
It is proper for the Tribunal to give considerable weight to what it accepts would be a devastating impact upon Mrs Lemonia Kostopoulos were her son to be deported.
In a further submission to the Minister, Very Rev Father John Grillis of St. Athanasios Greek Orthodox Church writes in support of Mr Kostopoulos (who regularly takes his mother to Church) that he believes that Mr Kostopoulos “with my assistance … will be able to overcome his problems” and that “although he has been serving a sentence I know for a fact that he is not a bad person”.[68]
[68] G Documents at [139]. Letter dated 20 December 2017.
Impediments if removed
The removal of people from Australia who have resided here for many years and have family and other ties to this country, but have abused its hospitality by committing serious crimes always presents the Tribunal with challenges.
Decisions have varied from the High Court authorising the deportation of Mr Nystrom to a country which he had only known as a baby of a few weeks of age and where he spoke none of the language and had no ties of support,[69] to a recent decision by a Deputy President who found that:
He [Mr Pizarro] would be entirely alone and knowing no-one in a foreign country … the risk of harm that faces members of the Australian community … is outweighed by the consequences for Mr Pizarro if he is required to leave the country that in which (sic) he was accepted as a very young baby and in which he has grown up, been educated and lived his whole life bar six months or so.[70]
[69] Minister for Immigration, Multicultural and Indigenous Affairs v Stefan Nystrom [2006] HCA 50.
[70] Pizarro and Minister for Home Affairs (Migration) [2018] AATA 3517 at [98]-[99] per Forgie DP.
Mr Kostopoulos falls between the Scylla and Charybdis of these two extremes. He was more than a baby on his arrival, but all his adult life has been spent in Australia and all his meaningful ties are here.
Nevertheless that alone would not, in the opinion of the Tribunal, be sufficient to establish a ground for revocation of the Minister’s decision as I have made clear in my recent decisions in Ferreira[71] and Dinkha.[72]
[71] Ferreira and Minister for Home Affairs (Migration) [2018] AATA 2599.
[72] Dinkha and Minister for Home Affairs (Migration) [2018] AATA 3037.
What counts differently in terms of Mr Kostopoulos is the current status and management of his health care. Evidence presented to the Tribunal establishes that the level of health services in Greece are adequate and that there is a high degree of access to them. However they are expensive and would be difficult for Mr Kostopoulos to access given that he has made no contributions to the Greek social security system.[73] He would otherwise have no income, and being an Australian non-citizen is not entitled to any pension or support which might entail a degree of portability or reciprocity.
[73] OECD, Country Report: How is life in Greece? (November 2017); OECD, Pensions at a Glance 2017: Country Profiles – Greece (2017); European Commission, Your Social Security Rights in Greece (2018).
Of greater concern however is that Mr Kostopoulos has been managed for matters of pain relief with the use of methadone, since 1986. As explained above he reports to a pharmacy in Guildford for his dosage and needs regular renewal of his prescription by a General Practitioner who is an authorised methadone prescriber. This treatment would not be available to him in Greece where methadone (and some other codeine-based pharmaceuticals) are prohibited in this context.
In Rowe I outlined an approach taken by this Tribunal to the possible interruption of medication regimes upon which an applicant has become dependent and the extent to which this is a course upon which the Tribunal should not embark without good cause.[74] This is a similar situation and there is no doubt in the Tribunal’s mind that were Mr Kostopoulos returned to Greece the specific nature of his pain management regime would be significantly compromised.
[74] Rowe and Minister for Home Affairs (Migration) [2018] AATA 2708.
In Hong the Federal Court noted, in relation to the impact of the Ministerial Direction, that “it should not be read as requiring that hardship be practically disregarded whenever a strong case of risk to the community is made out”.[75] As the Tribunal has said, the case of risk is not “strong” and so, to an even greater extent, the possible hardship to the Applicant should be given consideration.
[75] Hong v Minister for Immigration and Multicultural Affairs [1999] FCA 1567.
Again, the Respondent concedes this point to the extent it states: “the respondent accepts that he [Mr Kostopoulos] would encounter some initial difficulties on arrival in Greece and this this may weigh in favour of revoking the cancellation”.[76]
[76] Respondent’s Statement of Facts, Issues and Contentions at paragraph [77].
CONSIDERATION
The Tribunal has considered all the material before it and approaches its determination accepting that some of the material which it has to consider was not before the original decision maker. Nevertheless the Tribunal’s obligation is to view all the material in its current state with fresh eyes.[77]
[77] Shi v Migration Agents Registration Authority [2008] HCA 31 at [37] per Kirby J.
Decisions such as this must necessarily involve what the Federal Court characterises as a “calculus”[78] – the separate considerations are of varying weight and contrary direction.
[78] Contreras v Minister for Immigration and Border Protection [2015] FCA 47 at [52].
In the balance against Mr Kostopoulos is a dreadful criminal record, although one where the impact of drugs must reasonably be taken into account. There was also a period of some ten years, essentially crime and drug free which, unfortunately, did not last. Also weighing against him is that he has been dealt leniently with by the courts, has not taken advantage of this leniency and, together with ignoring repeated warnings, lost any right to claim to be given a “second chance” to get his life and behaviour in order. There is also some degree of weight against him in terms of the general expectations of the Australian community.
In his favour is the Tribunal finding that he poses no realistic threat to the Australian community and is unlikely to reoffend. He also plays a meaningful role in the lives of several minor children, at least when he is not in custody. He has strong ties to Australia and in particular the interests of his mother and sisters should be given consideration. There is no doubt that he would suffer significant harm or impediment, especially in terms of his health care and management, were he to be deported back to Greece.
On balance there appears to the Tribunal to be sufficient of “another reason” for Mr Kostopoulos’ visa cancellation to be revoked.
DECISION
The decision under review is set aside and in substitution thereof the cancellation of Mr Kostopoulos’ visa is revoked.
I certify that the preceding 100 (one hundred) para-graphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
...............[sgd].........................................................
Associate
Dated: 15 October 2018
Date of hearing: 2 October 2018 Solicitors for the Applicant: SouthWest Migration & Legal Services Solicitors for the Respondent: Australian Government Solicitor
1
35
0