Lafaele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 3379
•15 September 2021
Lafaele and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 3379 (15 September 2021)
Division: General Division
File Number(s): 2021/4213
Re:Albert Lafaele
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:The Hon. Dennis Cowdroy AO QC, Deputy President
Date:15 September 2021
Place:Sydney
The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.
..........................[sgd]..............................................
The Hon. Dennis Cowdroy AO QC, Deputy President
CATCHWORDS
MIGRATION – mandatory visa cancellation – failure to pass the character test – whether there is another reason why the visa cancellation should be revoked – Ministerial Direction No. 90 – nature and seriousness of offending conduct – risk of reoffending – protection of the Australian community – applicant’s history of drug related offences in New Zealand and Australia – applicant convicted of offence of drug trafficking – best interests of minor child – expectations of the Australian community – strength, nature and duration of ties to Australia – impediments to removal – decision affirmed.
LEGISLATION
Migration Act 1958 (Cth) s 499, 500, 501, 501CA
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
HZCP v Minister forImmigration and Border Protection [2019] FCAFC 202
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Dang v Minister for Home Affairs (Migration) [2018] AATA 2095
SECONDARY MATERIALS
Direction No. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
The Hon. Dennis Cowdroy AO QC, Deputy President
15 September 2021
The Applicant seeks review of a decision of a delegate of the Respondent (“the Minister”) made on 22 June 2021 (“the decision under review”) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”) to revoke the original decision made under s 501(3A) of the Act, on 7 July 2020, to cancel the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (“the visa”) (“the original decision”).
A delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a “substantial criminal record” as a result of being sentenced to a term of imprisonment for 12 months or more: section 501(3A)(a)(i) of the Act. Section 501 (7) (c) provides for the purpose of the character test a person has a “substantial criminal record” if the person has been sentenced to a term of imprisonment of 12 months or more.
The Applicant sought revocation of the mandatory cancellation of the visa under subsection 501CA(4) of the Act. The delegate decided, on 22 June 2021, not to exercise their discretion to revoke the cancellation.
On 26 June 2021, the Applicant applied to the Tribunal for review of that decision. The hearing before the Tribunal was held on 2, 8 and 9 September 2021 using the Microsoft Teams platform.
RELEVANT LAW AND POLICY: DIRECTION NO. 90
Section 501CA of the Act applies if the Minister decides under s 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act states that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of subsections 501(6) and 501(7).
Section 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a “substantial criminal record”. Section 501(7)(c) also provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act which provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Section 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 90 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction” or “Direction 90”).
The Direction sets out a number of preliminary matters, general guidance, and principles for decision-makers. In particular, paragraph 5.2 of the Direction sets out a number of principles that the Tribunal has considered. It relevantly provides:
1Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other type of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of the Direction sets out primary and other considerations that must be considered by the decision-maker, where relevant, when deciding whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa. Primary considerations should generally be given greater weight than the other considerations, and one or more considerations may outweigh other considerations. However, other considerations should not be viewed as “secondary” as, in certain cases, other considerations may outweigh primary considerations. In applying either type of the considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
The primary considerations (paragraph 8 of the Direction) are:
(a)protection of the Australian community from criminal or other serious conduct (“Primary Consideration A”);
(b)whether the conduct engaged in constituted family violence (“Primary Consideration B”);
(c)best interests of minor children in Australia (“Primary Consideration C”); and
(d)expectations of the Australian community (“Primary Consideration D”).
The Tribunal must also consider various other considerations (paragraph 9 of the Direction), where relevant. The other considerations include but are not limited to:
(a)international non-refoulement obligations;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)links to the Australian community, including:
(i)the strength, nature and duration of ties to Australia; and
(ii)the impact on Australian business interests.
FACTS
The Applicant, who is 56 years of age, was born in New Zealand. The Applicant is a citizen of New Zealand.
EVIDENCE
Statements
The Tribunal has been provided with statutory declarations of:
·the Applicant;
·his stepdaughter MA;
·his step-nephew CHA;
·his former partner, RB;
·his son, CA;
The Tribunal has also been provided with:
·a letter of support of JT, his stepson;
·a letter of support of his step granddaughter SA;
·a letter from a case worker concerning his daughter, B;
·a clinical report of Dr Emily Kwok dated 30 August 2021.
A list of completed courses undertaken by the Applicant is also included in the material provided to the Tribunal.
Oral evidence
The Tribunal heard oral evidence from the Applicant. The Tribunal also heard evidence from his step-daughter MA and stepson JT.
Other witness’s evidence
A clinical psychologist, Dr Emily Kwok, also provided expert oral evidence.
Medical evidence
An expert report of psychologist Dr Emily Kwok was provided to the Tribunal, as listed above.
ISSUES FOR DETERMINATION
The Tribunal may revoke the original decision if the Tribunal is satisfied that:
(a)the Applicant passes the character test as defined by subsections 501(6)(a) and 501(7)(c) of the Act: section 501CA(4)(b)(i); or
(b)there is another reason why the original decision should be revoked: section 501CA(4)(b)(ii).
The Applicant does not pass the character test because he has a substantial criminal record as defined by the Act. Therefore, the sole issue for determination by the Tribunal is whether there is another reason why the original decision should be revoked.
The Tribunal now turns to assess the primary considerations as relevant.
PRIMARY CONSIDERATIONS
PRIMARY CONSIDERATION A: PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Under paragraph 8.1(1) of the Direction, it is stated that decision-makers should:
When considering protection of the Australian community…keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Pursuant to paragraph 8.1(2), that consideration requires an assessment of the nature and seriousness of the Applicant’s conduct and the risk that the Applicant presents to the community.
Nature and seriousness of the conduct
The Tribunal has had regard to paragraph 8.1.1(1)(a) of the Direction. The crimes for which the Applicant was convicted were serious crimes, as is evident from the maximum term of imprisonment provided. There is no doubt that such conduct is serious.
Applicant’s criminal offending
On 26 June 2020 in the District Court of New South Wales at Parramatta, the Applicant was convicted of the following offences:
·Supply cannabis in a commercial quantity;
·Supplying prohibited drugs on an ongoing basis-SI (three offences);
·Possess prohibited drug
·Organises/conducts/assists drug premises – first offence.
As a consequence, the Applicant received an aggregate sentence of a non-parole period of two years and six months imprisonment commencing on 26 July 2018 with a head sentence of four years. The head sentence expires on 20 July 2022. The Applicant was eligible for release on parole on 25 January 2021, in respect of the convictions referred to in the above paragraphs.
Sentencing observations
The Tribunal has considered sentencing observations in relation to these convictions.
On 26 June 2020 before the District Court of New South Wales, criminal jurisdiction, his Honour Judge Craigie at Parramatta referred to the evidence before the Court and stated inter alia:
“His [the Applicant’s] conduct has supported two substantive counts of ongoing supply of methylamphetamine with a further ongoing supply as one of three Form 1 entries. The total quantity supplied over the three charge periods of ongoing supplies represents 41 occasions and 43.6 grams of methylamphetamine.
In each instance, the substantive counts relate to ongoing supply offences, with a maximum penalty is again 20 years’ imprisonment.
The Tribunal notes significant matters relative to the consideration of the protection of the Australian community:
(a)the Applicant has a record of drug-related and other offences in New Zealand prior to his coming to Australia for the first time on 19 December 2004, as follows:
Date
Offence
Outcome
18 Feb 1981 Burgles (other property under $100) by day Social welfare supervision of 7 months and 3 days 18 Feb 1981 Unlawfully take bicycle (three charges) As above 30 April 1981 Theft of property under $100 1 years’ probation 2 Sept 1981
Enters with intent Convicted and discharged Theft of property under $100 Non-residential periodic detention for 4 months Other general thefts no (drugs) As above 3 Dec 1981
Breach of periodic detention 3 months of corrective training Receives property (under $100) As above 29 April 1982 Burgles (other property between $100 - $1000) at night 1 year and 6 months’ probation 2 Nov 1982
Burgles (other property over $1000) at night 6 months’ imprisonment
(concurrent)
Unlawfully takes motor vehicle etc. 6 months’ imprisonment (concurrent) 24 Jan 1983 Burgles (other property over $1000) at night 4 months’ imprisonment
(concurrent)
23 May 1983 Obscene language $75 fine 29 Aug 1983 Possess offensive weapon $150 fine 18 Nov 1983 Possess for supply cannabis plant 8 months’ non-residential periodic detention 27 Jan 1984 Possession of cannabis $75 fine, suspended imprisonment 28 March 1984 Possession of cannabis 3 months’ non-residential periodic detention 16 May 1984 Possession of cannabis $250 fine 25 Sept 1984
Possession of cannabis 1 months’ imprisonment
(cumulative)
Possess/carry firearm etc. – no lawful purpose 3 months’ imprisonment 24 June 1985 Possession of cannabis $400 fine 2 Sept 1985 Burgles (other property under $100) at night 4 months’ non-residential periodic detention (final warning) 10 July 1987 Burgles (other property over $5000) by night 6 months’ non-residential periodic detention 26 April 1989
Theft ex car (under $500) 4 months’ non-residential periodic detention, reparation $7.50 Unlawfully takes motor vehicle etc. 4 months’ non-residential periodic detention, 6 months’ disqualification from driving 10 June 1994
Misleading a social welfare officer 1 year of supervision by community corrections, 9 months non-residential periodic detention, reparation $10,613.99 Made a false statement
(six offences)
1 year of supervision by community corrections, 9 months non-residential periodic detention 11 April 1996
Breach periodic detention
(two offences)
6 months’ non-residential periodic detention Possess cannabis plant material To come up for sentence if called upon – 6 months Failure to answer District Court Bail Discharged 11 June 1997 Cultivate cannabis 1 year and 6 months’ imprisonment (concurrent) Possess for supply cannabis seed 3 years’ imprisonment (concurrent) 20 April 2001 Wilfully sets fire to property/endangers life by 3 years’ imprisonment (concurrent) (b)After 17 December 2005, when the Applicant began to permanently reside in Australia, he has been involved in numerous driving, theft and drug-related offences which culminated in the convictions referred to above, as follows:
Date
Offence
Outcome
15 March 2006 Unlicensed driver/rider (not licensed for five years) - first offence 12 months’ bond 29 June 2006 Unlicensed driver/rider (not licensed for five years) - first offence $600 fine plus court costs 31 July 2007 Never licensed person drive vehicle on road – second offence $750 fine plus court costs and a three-year driving disqualification 19 May 2009
Drive while disqualified from holding a licence 120 hours community service order, 12 month driving disqualification Not in adjusted/fastened restraint – under 1 year old $220 fine Not in adjusted/fastened restraint – over 1 year old but under 16 years old $220 fine Class A motor vehicle exceed speed limit but more than 15 km/h but less than 30 km/h $220 fine 28 Nov 2013
Possess prohibited drug 12 months’ bond Goods in personal custody suspected of being stolen (not a motor vehicle) As above 26 June 2014
Possess prohibited drug (two offences) 12 months’ bond; supervision by NSW Parole Service, to attend such programs as probation and parole directs Goods in personal custody suspected of being stolen (not a motor vehicle) As above 20 June 2016
Never licensed person drive vehicle on road – first offence $400 fine 26 June 2020
Supply prohibited drugs on an ongoing basis – SI
(three offences)
4 years’ imprisonment, non-parole period of 2 years and 6 months Supply cannabis in a commercial quantity As above Possess prohibited drug As above Organises/conducts/assists drug premises – first offence As above
The record shows that the Applicant has a long history of serious offending both in New Zealand and Australia.
Risk to the Australian community should the Applicant reoffend or engage in other serious conduct
The Tribunal has had regard to paragraph 8.1.2 of the Direction, as is discussed below.
Applicant’s statement
The Tribunal has considered the statement provided by the Applicant concerning his history. The Applicant was born in New Zealand, but his childhood was unhappy. He states that he has one biological sister and six half brothers and sisters. The Applicant states he never knew or met his biological father. The Applicant states that his stepfather would assault his mother and there is a history of family violence. The Applicant was placed by social services in an orphanage where he was raised by nuns and he had little contact thereafter with his mother or siblings. The Applicant states that during his teenage years he commenced experimenting with drugs, and accordingly his criminal record commences when he was about 16 years of age. He commenced a relationship when he was 19 with his girlfriend M and they had a son, CA, in 1985, which inspired him to try and “walk away from all the bad habits.” The Applicant states he was the manager of a transport depot in New Zealand and received awards for his work, and he also worked as a community worker in South Auckland. However, he returned to his “old habits of drinking and smoking cannabis” which resulted in he and M separating, and M moving away with his son. The Applicant states he then made a lady named P, and they had a daughter SL in 1995. She was born prematurely and consequently suffered from a disability since birth.
The Applicant and P separated, and he reconnected with his ex-partner M. In 2003 the Applicant moved to Australia with M, who had dual nationality, after they were married in Auckland. He states he brought his daughter SL over with him. Thereafter M and the Applicant raised their nine children together, six of whom were step-children of the Applicant. However, in 2008 – 2009 M became ill and passed away in 2012 or 2013.
As to his criminal record, the Applicant acknowledges that he engaged in burglary, drugtaking and that he went to prison in about 1996 in New Zealand. He states that he then realised that he had “learned about my choices and being responsible for the consequences of the wrong choices I made.”
The Applicant came to Australia, he believes, in 2003 (in fact, he arrived in December 2004) and commenced committing offences in 2006. The first offences were driving offences, and he claimed that he kept driving to work without a licence because it was too far to ride his pushbike. He states that he began offending and getting caught with drugs in 2013 after M passed away. Thereafter he met RB, who was a mother of six children. RB and the Applicant had a daughter B born in 2016. The Applicant states that RB was in a car accident in which she was seriously injured, that he looked after her, and that B was removed and put into foster care. The Applicant was granted monthly supervised access.
The Applicant states that his drug problem became worse and he started to live in a house with a drug dealer. The landlady, who was a drug dealer, allowed the Applicant to live rent free, with free food and drugs, on the condition that the Applicant would sell the drugs. The Applicant states that he “sold a lot of drugs from this house. A lot of time I was wasted.”
In 2018, the Applicant was arrested and placed in gaol for the offences previously discussed. The Applicant states that he has now had a realisation of his conduct and that the period in gaol has refocused his priorities. He claims that his downward spiral resulted from taking methamphetamines following the death of his wife in approximately 2012 or 2013. The Applicant states that he has undertaken courses to assist him in rehabilitation, including Aboriginal cultural programs, programs dealing with alcohol, and the South Pacific Island Program (SPI) courses which were made available. The Applicant states that he now considers himself to be at a low risk of reoffending.
A certificate of participation of the Applicant in a South Pacific Island Program, dated 25 June 2019, records that the Applicant participated in a SMART recovery model as well as the FONAFOLE model course of rehabilitation whilst he was at the John Morony Correctional Centre. Further, a certificate of the Australian Red Cross states that the Applicant had expressed interest in their Post Release Mentor Program. However, it only applied to persons being released from certain correctional facilities and does not include the current detention centre where the Applicant is located. The Applicant was cross-examined concerning his participation in such courses. It appears that a course designed to assist with alcohol and drug addiction was of a one-hour duration which the Applicant completed on 29 October 2019. The Applicant claimed to have participated in the SPI Program which contained some content relating to drugs and alcohol use.
The Applicant submits that if the visa cancellation is revoked, he will remain under supervision of corrective services until July 2022. The pre-release report of Corrective Services dated 4 November 2020 states that the Applicant must undertake and maintain alcohol and drug (AOD) programs or counselling if directed to do so, specifically undertake counselling sessions with a suitable AOD counsellor, and must not contact or communicate or associate with co-offenders without express prior approval of his officer
The Applicant also points out that the Risk Mitigation Plan prepared by the Parole Unit 4 November 2020 states that the Applicant is to undertake the EQUIPS Addiction program or the Foundation program in the community, “to develop further insights into the link between his chronic drug use and his offending behaviour”. He was also to be referred to a community based AOD intervention program to target his chronic drug use, such as Pathways or Odyssey House. During supervision, the Applicant is to participate in behaviour change conversations relating to relapse prevention and is to be referred to his GP to undertake a mental health assessment.
The Applicant submits that he has been drug-free since he was arrested on 27 June 2018, that he has not incurred any institutional misconduct charges, that he is willing to seek help on his own accord post-release and intends to contact the instructor from the SPI Program and continue working with the program. The Applicant claims to be a good worker and has demonstrated that he can work during his period of incarceration. The Corrective Services Case Notes record that he attended to his duties in grounds maintenance efficiently and showed excellent effort.
The Applicant submits that the evidence before the Tribunal shows that he was never motivated to supply drugs for financial gain: rather, he did so to feed his previous drug habit. It is submitted that the Applicant demonstrates some insight into his offending, and that he is not an unacceptable risk of reoffending or causing significant harm to individuals, families and the wider community.
In Dang v Minister for Home Affairs (Migration) [2018] AATA 2095, the Tribunal at [54)] to [56] commented upon supply of cannabis. Senior Member Cameron said: at [54]:
Should the Applicant reoffend, there must be a significant risk to the Australian community that he will reoffend in some way related to the production and distribution of drugs. If cannabis is used as a starting point it is appropriate to reiterate the observations of Judge Cohen that marijuana is a drug that contains a strongly addictive substance. Drug addiction is a significant cost to the Australian community. It starts with the destruction of people’s lives in many cases. This destruction manifests itself in many ways such as inability to hold a job, homelessness and significant mental health problems over a variety of complaints, to name a few effects.
The further risks to the Australian community resulted from the drug trade and drug addiction arise from the direct cost to the health care system, police and emergency services, social security and other social support systems. A further by-product of this trade is the criminal consequences. Some people who are addicted to drugs (as indeed the Applicant himself gave evidence of) commit crimes without thought as to their consequences. Some of those people addicted commit those crimes to support their habit. Frequently, home burglaries and other robberies are committed by people who are addicted to various drugs.
Some people addicted to drugs are preyed upon by unscrupulous criminal syndicates by reason of the effect that the drug consumption has had upon their capacity to think critically or properly and exercise appropriate levels of reason and judgement. Then of course there are the masterminds of the drug trade who manipulate such trade for rampant personal gain, motivated by toxic greed. It is a scourge on society which has to confront both direct and opportunity costs arising from its effects.
This Tribunal adopts such observations. The damage done to the community by those engaged in the drug supply activity is inestimable, but it can be assumed to have resulted in human detriment.
Report of Dr Emily Kwok
Dr Emily Kwok is a psychologist. She interviewed the Applicant for approximately one and a half hours on 24 August 2021 by telephone. She ascertained the Applicant’s history, noting that the Applicant had never been diagnosed with a mental disorder. However, she recorded that the Applicant had experienced depression at different times of his life such as when his wife passed away.
Dr Kwok records that according to the Applicant, it was not until he was in custody that he reflected on himself and realised that he should have seen a professional about his problems. Dr Kwok referred to a Pre-Release Report, which indicated that the Applicant had completed several courses including SPI Program through Drug and Alcohol Multicultural and Education Centre (DAMEC) in June 2019. The Applicant had also completed a Health Survival Tips program in August 2018, September 2019 and August 2020. The Applicant had reported that he had attended four weekly mental health counselling sessions whilst detained at Villawood.
Having considered the history, Dr Kwok considered that the Applicant was at medium risk of reoffending, as he had been previously assessed to be in November 2020 against the Level of Service Inventory – Revised (LSI-R). She pointed to some protective factors that would reduce such risk, namely the fact that the Applicant’s co-offender in his last criminal enterprise was no longer his daughter’s partner; the Applicant intended to look for work; and that he wished to re-establish contact with his family and possibly gain custody of his daughter.
Dr Kwok considered that the Applicant was currently a moderate risk/threat/danger to the Australian community. She recommended that if he were to remain in Australia, there needed to be a supervision plan as outlined in the pre-release report of November 2020 which included a referral to drug and alcohol services for relapse and monitoring of his progress, a referral to a psychologist who specialises in trauma therapy; counselling for drug and alcohol use and a referral to community services. She recorded:
At the time of his arrest, he was reportedly a heavy use of methamphetamine and cannabis. Mr Lafaele asserted that he has not used illicit drugs or alcohol since he was in custody; however, we have not yet seen how he may deal with cravings and triggers in the community and he would require treatment and regular monitoring for relapse prevention if he is released into the community.
Finding on Primary Consideration A
The Tribunal notes the expert evidence of Dr Kwok that the Applicant has a medium risk of reoffending. Any release to the community was the subject of heavy conditions: the Applicant would need to attend counselling on several levels and in relation to drug rehabilitation and other topics. The Applicant expressed the view that he was at low risk.
The repetition with which the Applicant has repeatedly engaged in drug related conduct over many years suggests that there is at least a medium risk of reoffending.
The nature of the Applicant’s most recent offending and conduct is considered by the Tribunal to be serious, as is reflected by the sentence for such offences.
Given the factors discussed above, the Tribunal finds that this consideration weighs heavily against revocation of the original decision. Further details of the Applicant’s conduct are referred to hereunder.
PRIMARY CONSIDERATION B: FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
Paragraph 8.2(1) of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.
Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful".
This primary consideration is relevant in circumstances where (paragraph 8.2(2)):
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).
Paragraph 8.2(3) of the Direction also provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:
a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));
b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));
c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):
(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));
(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));
(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and
d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).
A police report dated 14 December 2016 refers to a call to the residence of the Applicant and RB for a domestic incident. The report details to the Applicant and the victim (RB) having “been in an on-again off-again relationship for the past 18 months”, and that there was a prior history of violence including stalking and intimidation, that the victim seen to be intoxicated by unknown means, and that the victim had fears that the children would be harmed. The police issued an Apprehended Violence Order against the Applicant. The report also states that the victim and the Applicant had been a domestic relationship for the past 18 months “but recently broke up”.
When the police attended at the residence, a child of the victim informed the police that “the man that would stay there” (i.e. the Applicant) “has kicked him before and was mean”. The police report also refers to an allegation against the children of a sexual nature perpetrated by the Applicant; however, on further investigation no action was taken in relation to this allegation.
When asked at hearing whether he had assaulted by kicking the children of RB, the Applicant replied “no comment”. When asked whether the relationship with RB had broken down by 14 December 2016, the Applicant replied “no comment”. When asked whether he had been violent to any stepchildren children, the Applicant replied “no comment”. When asked whether he had ever engaged in any conduct of a sexual nature in respect of the children he replied: “there’s no truth in it, Sir, and I don’t want to comment any further”. When asked whether he had been violent to RB the Applicant responded “no comment”.
Whilst there is the above domestic history, the Applicant had never been convicted of any domestic violence offence. Further, the police report of the one incident does not indicate that the complaint to the police was genuine.
Finding on Primary Consideration B
The Tribunal finds that this consideration is neutral.
PRIMARY CONSIDERATION C: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 8.3(1) of the Direction provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision (where that child is, or would be, under 18 years old at the time of the decision to revoke or not revoke the mandatory cancellation decision is expected to be made).
Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:
a)the nature and duration of the relationship between the child and non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));
b)the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));
c)the impact of the non-citizen's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));
d)the likely effect that any separation from the non-citizen would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));
e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));
f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));
g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and
h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen's conduct (sub-paragraph 8.3(4)(h)).
There are 17 minor children that this consideration applies to: namely, B, the Applicant’s own child, four biological grandchildren from his son CA, and 12 other minor step-grandchildren. There are two more grand-children expected to be born in September 2021 as per the material the Applicant has provided the Tribunal.
Child B
The Applicant has one young child named B who is five years old. This child resides in foster care and has been in foster care since she was an infant. The Applicant states that he used to have access to her but the evidence does not suggest there was any long-standing arrangement.
There is no history provided of whether the Applicant and RB resided together permanently following the birth of B. The police record suggests that the relationship between the Applicant and RB was “on again, off again”.
B was removed from the care of the Applicant and of her mother (RB). The Applicant, in his statement, told the Tribunal that the mother had had a motor vehicle accident and suffered a traumatic brain injury, and subsequently found that she could not cope with B. However, in cross examination, the Applicant stated that B was placed into the care of the Department of Youth and Community Services due B’s mothers drugtaking. The Applicant states that before B was removed into care, he would see B every week for a two-hour supervised visit. The Applicant has not seen her since his incarceration.
During further cross-examination, it became apparent that B was placed in foster care not when she was almost three years old, as the Applicant claimed, but rather when she was one year of age. The Applicant stated alternative reasons why B was removed into care: firstly, that B and her siblings were taken into care after RB’s sister reported their care to the authorities; alternatively, that RB could not cope following the car accident.
The version which appears most likely to be correct is that B was taken into care when she was one year of age because she was at risk and has remained in care ever since. The other children of RB were also taken into care.
RB has provided a statement that she sees B once a month. She states that the Applicant, before he was incarcerated, saw her about once a week. R states that she was involved in a car accident in 2015/2016 and that B was taken into care after the accident as she (RB) could not look after her. She considers that it would be a “big loss” to B if the Applicant were not allowed to remain in Australia. She states she has three children and her mother are residing in Australia and cannot move to New Zealand. The Applicant believed that B’s mother would now be able to cope in caring for B with the assistance of B’s grandmother. The Applicant has provided no evidence to support such a claim.
The association between the Applicant and B was limited to Friday supervised visits between 2 to 3 hours over a period of 18 months until the Applicant was incarcerated. The Applicant states that he has sent B drawings during 2018 and 2019 but as her case officer changed in 2019, he has had no further communication to B. The Applicant has not written to B, nor sent cards or had any communication since 2019. It does appear that he made attempts to re-establish contact with B some time in 2020, as a letter dated 19 May 2020 from B’s caseworker at Uniting Burnside to the Applicant states:
My main focus is to slowly re-establish contact between B and yourself. As discussed, if you can start writing letters to B and forward them on to me, I can forward them on to the carers and they can read them to B or I can read them to her during my home visits…
Re—establishing contact will need to be done slowly and carefully, as B was very young when she had last had contact with [sic]. The carer do have photos of you that they put into a display folder for B to look at whenever she wishes to.
A letter from a caseworker prepared days before the Tribunal hearing asserts that the letter is written in support of the Applicant’s claim for residency status. The letter asserts that B will be “devastated” if her father’s residency was revoked and that in the long-term “this would impact his ability to maintain a relationship with his daughter”. The letter continues that the caseworker feels that “the bond between the Applicant and B will be damaged if he was to be deported” and that “it outweighed the risks associated with him staying in Australia.”
The Tribunal observes that there is no indication of the qualifications of the caseworker, and there is no evidence before the Tribunal of any close contact between the caseworker and B. The letter has clearly been written to support of the Applicant. No details are provided concerning the current arrangements for B nor of her welfare. It does not indicate whether the caseworker considers the Applicant to be a desirable influence in the life of B, other than the fact that B will be devastated. Taking into account that B is five years of age, it would be surprising that she has such comprehension. The Tribunal is of the opinion that the caseworker has most likely drawn these conclusions on a general basis, as opposed to from any sentiment expressed by B or any observations of the Applicant’s relationship with B specifically.
The Tribunal is not satisfied that there has been a strong and continuous bond between B and her father since 2019, and that on the available evidence, B will remain in care for the foreseeable future.
B is now five years of age and is unlikely to have any recollection of ever having lived with the Applicant, nor has she seen the Applicant since the Applicant’s arrest in July 2018 when she was two years of age.
Stepchildren and grandchildren
The Applicant claims to have sixteen nonbiological (step) grandchildren, twelve of which are minors.
The Applicant is the stepfather to several children of his partner RB, who is also the mother of B. The Applicant does not know their dates of birth and it appears some of the children the care of family and community services. RB has stated that two of her children live with her and her mother (their grandmother).
The Applicant also has biological grandchildren namely J born in 2006; C born in 2009; T born in 2012; D born in 2017 and another baby to be born this month. These grandchildren reside with their parents in the western suburbs of Sydney. The Applicant claimed that he involved himself in as many aspects of their life as he can.
Five of these grandchildren are the children of the Applicant’s step-daughter MA. She has provided a statement which states that the Applicant has assisted her with all the children, and that he would take them and collect them from school to enable her to be free for her work. She states that the children have a close relationship with and love the Applicant. She states that she has issues with her children and that in particular, one of her children (SA), has been fretting for the Applicant so a telephone was purchased for her to allow her contact with him. She states that this child saw the Applicant nearly every day. MA also states that if allowed to remain in Australia, the Applicant will reside with them and that she will be relying upon him for support to help her raise her children.
MA gave oral and written evidence to the Tribunal. She states that she is aged 33 and is a single mother. MA states that she has a close relationship with the Applicant, her stepfather. MA states that the Applicant was a “big role model in their lives”. In particular, she says that her 12-year-old daughter, SA, has been suicidal because she is so upset that the Applicant will be prevented from living in Australia. She (SA) has slashed her arms. MA states the Applicant and his late wife had virtually brought up SA, who was born in 2008. MA is very concerned that the mental health of SA will deteriorate if the Applicant is not in her life. She had lost interest in her sporting activities and her grades in school had deteriorated. MA is being assisted by counsellors referred to by a welfare service. Whilst MA had taken SA to a medical practitioner, SA had never been treated by a psychiatrist nor consulted a psychiatrist.MA says that she will be relying on the Applicant to help her raise her children whose ages range from 15 years to 4 years.
A statement has been provided by SA, the daughter of MA, and who is 12 years of age. MA stated in October 2020 she purchased a mobile telephone so that SA could keep in contact with the Applicant although she did not regard that as any substitute for direct personal contact. The language of the statement suggests that it has been prepared with the help of an adult in the least. However, it states that the Applicant has been a:
[H]uge role model in my life since I was born. Walking me and my sister to school every day, showing up to my sports games to support me every weekend. I did everything with my pop and he was always happy and fun to be around. I love being around my Nan and pop they showed me so much love. When my Nan passed away [SA was then approximately three years of age) it hurt my family my mum my pop and me I felt lost because my pop was hurting and wasn’t happy anymore…
…He understands me not like counsellor or my parents. When my pop left, I felt like I was alone. My grades are dropping, and I haven’t been the same since. My pop is not a bad man he is the kindest person I know and he loves to help people. Please let pop come home we are his family he belongs he with us. I promise to keep my pop out of trouble he will change for us.”
The Tribunal has not been provided with any medical evidence concerning SA. However, it finds the absence of psychiatric assistance for SA very disturbing. She is clearly in need of assistance, if the statements of MA are correct. In the absence of medical evidence, the Tribunal is unable to conclude that it is the potential removal of the Applicant from Australia that is the sole cause of the mental anguish of SA. There is evidence from MA that SA has been brought home on one occasion by police and has been taking part in untoward activities.
MA had no knowledge of the New Zealand criminal record of the Applicant, except to that she knew “about one when he was a bit younger, a lot younger, that he done time in New Zealand but I didn’t know why or what the charges were or how long he spent in there.” She never confronted him concerning his use of methamphetamine, saying that “it was pretty obvious…he was going through a lot of things”.
MA stated that she visited the Applicant frequently whilst he was in gaol. She stated that she would visit him weekly when he was incarcerated in Windsor at the John Morony Correctional Centre. The official Visits Records of NSW Department of Corrective Services in the period between 3 August 2018 and 1 August 2020 show that MA visited the Applicant whilst he was incarcerated at the John Morony Correctional Centre on four occasions in 2018, two occasions in 2019 and no occasions in 2020. She states that visits became impossible in 2020 due to COVID restrictions. The records of the prison also record that SA visited the Applicant four times in 2018; once in 2019 and once in 2020.
MA says that she receives child support. She has several children who reside with her, together with her sister and her child in the five-bedroom residence. She says that there is no one else residing at the home. She has been in employment but has been laid off.
MA was questioned about whether she considered it safe for the Applicant to be with her children. She stated:
DEPUTY PRESIDENT: Let me see if I can assist, [MA] What Mr Eskerie is putting to you is simply this, that your father was a bit of a mess after your mother died. He wasn’t sleeping. He was, you know, knocked about very much. Was he a suitable person to be looking after your children at that time?
Well he - no, he wasn’t looking after my children. I was looking after them. Pop was being pop. He was there. He was in the house, but this doesn’t mean that I gave him my kids to leave with, or you know, to go and - you know, to leave overnight with or for a whole day. I always had my children. I was always in view, unless I was in an argument, which wasn’t around that time. It was when my son was born I was in DV. So that had all stopped by the time my mum had passed away, so I was always in with my children while Albert was around then. So if my children were around Albert, I was there too.
It is difficult to reconcile the degree of proximity and family association which MA claims the Applicant had with her children with the evidence before the Tribunal.
MA has four other children under the age of 18 years but no details have been provided of their relationship with the Applicant. The Tribunal draws the inference that there is no close relationship between such grandchildren and the Applicant.
The Applicant’s mother resides in Samoa. The Applicant’s son (born 1985) and daughter (born 1995) were born in New Zealand but currently reside in Australia. The Applicant stated at hearing that he has a half-brother and a half-sister living in New Zealand.
Statement of JT
A stepson of the Applicant, JT, who is 40 years of age, has provided a written statement. JT stated that the Applicant had been like a grandfather to his several children, and that prior to his incarceration, they would see one another approximately once a week and at weekends. Following the Applicant’s incarceration in July 2018, neither JT nor his children have visited the Applicant in prison. However, they have communicated occasionally, perhaps three or four times, by telephone. JT has now separated from his wife but maintained that he and his ex-partner have a close relationship, and they would meet up every fortnight and take their children to see the Applicant.
Despite the regular visits claimed to have taken place between the Applicant and JT in his family, JT stated that he was not aware that the Applicant was ever using or selling drugs. JT never knew of the Applicant’s criminal history in New Zealand. JT has been working interstate and has recently returned in New South Wales. He stated that he is now living with his sister, MA.
Finding on Primary Consideration C
The Tribunal is required to consider the best interests of minor children. The only child of the Applicant that is to be considered is B. However, The Tribunal will also consider the interests of the Applicant’s grandchildren. The Tribunal is satisfied that the best interests of B weighs in favour of the revocation of the original decision. However, whilst it is obviously desirable that a child should have a parent, B is in care and there is no evidence to suggest that she will be released from care in the foreseeable future, and it is apparent that the Applicant has never been in loco parentis with B, which mitigates the weight I am able to give to her interests.
As to grandchildren and step-grandchildren, there is no doubt that the absence of the Applicant could impact adversely upon them. As to the support which the Applicant may have given MA, it is apparent that she now has the support of her sister who is living with her, and potentially also of JT who has begun living there. There is no evidence to suggest that either the sister of MA, or MA are employed, and accordingly they would be available to help with the children. All children, grandchildren and step-grandchildren would be able to keep in contact with the Applicant by telephone if the Applicant were removed from Australia. With the exception of the visits by SA, the daughter of MA, there has been virtually no contact between the stepchildren and step-grandchildren with the Applicant whilst he has been incarcerated.
On the evidence available to the Tribunal, it does appear that the removal of the Applicant would be adverse to the best interests of SA. As previously noted, it troubles the Tribunal deeply that it does not appear that SA has not received any psychiatric help in light of her apparent mental health concerns, but without adequate supporting medical evidence, the Tribunal is unable to determine that the potential removal of the Applicant is the sole reason for her distress.
In light of the all the factors above, particularly the Applicant’s apparent relationship with SA and the interests of his minor daughter B, I find that Primary Consideration C weighs strongly in favour of revocation of the decision.
PRIMARY CONSIDERATION D: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 8.4(1) of the Direction provides that:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.
Paragraph 8.4(2) also provides that non-revocation of the cancellation of a non-citizen’s visa may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).
This consideration has been the subject of extensive judicial discussion and is ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185 at [75] per Charlesworth J). That is, it is not for the decision-maker to assess the expectations of the Australian community for the purpose of applying this consideration. The expectations of the Australian community that decision-makers are required to consider are those set out in Direction 90 at paragraph 8.4. Although these principles are discussed in relation to the former Direction No. 79, those principles are relevantly analogous in principle with respect to Direction 90.
It has further been held that the consideration is “in substance … adverse to any applicant”: see Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The Applicant states that as a child he was very abused and took to drugs at an early age, including methamphetamines. He states that whilst he had been in prison, he has seen the effect of methamphetamines and now has been drug-free for three years. He has undertaken courses to educate himself including the SPI course whilst in prison.
The Applicant states had if he were to remain in Australia he would look for employment, he would continue to work and help with his grandchildren at their sports and support them in their education. He would help B to be reunited with her mother.
Cross examination
The cross examination of the Applicant revealed the following matters.
New Zealand criminal history not disclosed
The sentencing judge, Judge Craigie, when sentencing the Applicant on 26 June 2020 was not aware of the New Zealand criminal history of the applicant. This is clear from the fact that His Honour stated:
He [the Applicant] has a criminal record with a limited number of entries and no resulting prior periods of imprisonment…
[O]nly the prior drug possession offences are of potential relevance to the present offending in a record which otherwise has the implication that the offender is not to be regarded as a person who is entitled to the claim of prior good character…
In fact, the criminal history of the Applicant, as set out at paragraph [32] of these reasons, sets out the New Zealand criminal history. It includes offences of a serious kind, including carrying a gun, possessing prohibited drugs, goods in custody suspected of being stolen; and cultivating drugs and supplying drugs. For this final offence, the Applicant was convicted on 11 June 1997 to a term of imprisonment of three years.
On 20 April 2001 the Applicant pleaded guilty to wilfully setting fire to a building, incurring another three-year prison term. The Applicant was almost 36 years of age. There are numerous other offences record recorded against the Applicant including false statements which defrauded the Social Services Department of New Zealand, theft of motor vehicle, and burglary.
Criminal history in Australia
The Applicant, upon arrival in Australia, was convicted of an offence just over one year after his first arrival. On 15 March 2006 a traffic conviction of the Applicant is recorded. In 2009, the Applicant was convicted of driving while unlicensed and driving while disqualified from holding a licence, and having two infant children, one of five months and one of three years in the vehicle unrestrained. Thereafter on 28 November 2013 he was convicted of possessing a prohibited drug and having goods in custody.
The criminal history shows that the Applicant has been a repeat offender, especially where the convictions involve the use and supply of drugs. The offender case plan of the NSW Department of Corrective Services made on 19 August 2020 contains the following statement:
Service records show that Albert was suffering PTSD from the grief he had when his wife had passed away at such a young age, he explains that in his culture the men had to be strong for their family so he didn’t [sic] really have time to grieve. Albert never required medication or counselling for his mental health.
There is no evidence that such department was ever made aware of his prior New Zealand criminal history. Further, since 2006, the Applicant had appeared in court on 15 March 2006, 29June 2006, 31July 2007, 19 May 2009, and 28 November 2013. All charges prior to 28 November 2013 related to serious traffic offences, mostly driving without a licence. The pattern of such offences indicates the Applicant’s disregard for the law.
On 28 November 2013 he appeared in court on the charge of having goods in personal custody suspected of being stolen and possessing a prohibited drug. This offence took place on 18 June 2013. The Applicant had committed many offences before his wife’s death which occurred in about 2013 (the evidence does not establish a specific date of such event).
A psychologist’s report was prepared on the 30 October 2013 as a final report on the Applicant’s participation in the Magistrates Early Referral into Treatment (MER IT) Program. The Applicant was accepted into the program on 8 August 2013 and completed a program on 30 October 2013. It records that the Applicant identified cannabis as his primary drug of concern, that he had first tried cannabis at the age of 16, and that he had been using cannabis on an ongoing regular basis since the age of 38. At the date of the report, the Applicant’s 49 years of age.
At the date of his report, the Applicant had missed three appointments and the psychologist recorded that the clinical indicators appear to support an increase in the Applicant’s cannabis use. He had not achieved abstinence and was recorded as being “reluctant to achieve total abstinence”.
Police records tendered at the hearing record that the Applicant was suspected of other drug-related offences in 2013, 2014, and 2015.
Inconsistent statements
Offences
Driving Offences
The Applicant explained the traffic offence to the Tribunal on the basis that he was going to work, and it was too far to ride his bicycle to go to work. However, the material before the Tribunal suggests facts to the contrary. The Police Fact Sheet records that when the Applicant was asked why he was driving the vehicle, he stated that he “just needed to go to the shops”. The Applicant told the Tribunal that he was using his car to do shopping for his wife. The Applicant has never held an Australian driving licence. There was some evidence that the Applicant has never owned a motor vehicle. However, when the driving offences were committed, it is noted that the numberplates of the various cars he was driving differ, suggesting he had access to more than one vehicle.
In 2016, the Applicant was again apprehended driving on the road when checks revealed that he had never held a New South Wales driving licence or any other license to drive any Australian state or territory. He was also driving an unregistered motor vehicle.
The Tribunal is satisfied that the Applicant has provided other inconsistent answers regarding his traffic offending to the Tribunal.
Drug offences
The Applicant’s statement paragraph [25] states:
I started offending and getting caught the drugs around 2013 after M [Applicant’s wife] passed away…
Such statement did not mention the fact that the Applicant was convicted in New Zealand on 11 April 1996 of possessing cannabis, was involved in possessing/cultivating and growing, and was convicted on 11 June 1997 for possession, supply and cultivating drugs.
The Applicant was convicted in 2013 of possessing a prohibited drug at Mount Druitt Local Court and placed on a bond for a period of 12 months.
On 26 June 2014, the Applicant was convicted of possessing a prohibited drug and of having goods in personal custody suspected of being stolen. The Applicant was apprehended by police on 18 June 2013 as a result of a street level drug supply activity. Police observed that the Applicant was in a house and that the Applicant noticed the presence of the police. The Applicant was seen to throw a bag out of the window of the house, into the back garden of the house next door. When apprehended, having fled the premises, the bag which the Applicant was seen to dispose of was found to be a sealed Ziploc bag containing 28 small plastic resealable bags containing cannabis. Further, the Applicant had on his person $664.80 which the police alleged was the proceeds of drug dealing. When asked by the police, the Applicant responded, “no comment”. The drugs were confiscated but no conviction was recorded.
Before the Tribunal, the Applicant gave evidence that the $664.80 was not the proceeds of crime, namely selling drugs, but was money left over from his wife’s funeral. There has been some confusion between the Applicant’s oral evidence on when his wife passed away, and the material before the Tribunal. At this point, it is unclear whether his wife passed away in 2012 or 2013. Regardless, the Applicant’s statement that the money was left over from his wife’s funeral is clearly inconsistent with his plea of guilty to the charges brought against him, and his conviction. The Tribunal has no power to investigate nor impugn the essential factual findings that underpinned a conviction: see HZCP v Minister forImmigration and Border Protection [2019] FCAFC 202 at [63] per McKerracher J.
It was put to the Applicant in cross examination that he had been consuming drugs well before his wife passed away in 2012/2013. The Applicant denied such suggestion. However, the convictions recorded in New Zealand, and evidence from the offences in Australia prove to the contrary.
Arrival in Australia
During the hearing the Applicant was shown arrival cards which he completed upon his arrival in Australia. In respect of the first questions on the arrival card of whether the Applicant had any prior convictions, the Applicant ticked the box “no”. Before the Tribunal, he testified that he ticked that box because he saw other passengers filling out their forms and doing the same. The Applicant said to the Tribunal:
On the first couple of occasions I didn’t even look at the questions. When I came in with my disabled daughter, I just went straight up to the – down from the escalator and I just saw everyone else ticking “no”. But later on, as I flew in and out, I got to read the question and then that’s why I put it in my statement.
Such answer is inconsistent with a statement which the Applicant made previously when he sought to explain providing the false answers on every occasion that he visited Australia namely on 19 December 2004, 1 January 2005, 12 January 2005, 13 February 2005, 11 March 2005, 23 March 2005, 29 April 2005, 1 Nov 2005, 17 December 2005 and 12 July 2006 stated:
The decision to visit Australia initially in 2004 was to support my son and his mother. At the time I chose not to declare my prior convictions on the boarding pass out of basic fear and concern that I would not be allowed to enter the country – preventing me from seeing my son who needed me at the time.…
My failure to declare my prior convictions on those nine occasions was a failure in judgement by myself. Displaying no regard for the Australian laws and only thinking about my own interests.
Finding on Primary Consideration D
In this case, the Tribunal accepts that the Australian community’s expectations would prima facie weigh against the Applicant. The Applicant full well knew on arrival in Australia that he would be most likely be denied entry if he declared the truth concerning his New Zealand criminal history. Accordingly, he completed false declarations on each occasion and was allowed to enter Australia by deception. As to the claims by the Applicant that he has had time to reflect upon his criminal conduct, the fact remains that he has been previously incarcerated in New Zealand, and yet his life of crime in Australia has shown an increasing tendency. The Tribunal accordingly can have little confidence in the expressions of remorse and regret.
The Tribunal finds that the Applicant has a prolonged history of criminal offending in both New Zealand and Australia. While his offending does not fit into one of the classes of conduct as described by paragraph 8.4(2), it demonstrates a continuous disregard for Australian law and his record of making inconsistent statements regarding his offending also raises character concerns.
In light of the material before it, the Tribunal finds that this consideration weighs strongly against revocation of the original decision.
OTHER CONSIDERATIONS
The Tribunal now turns to assess the other considerations (paragraph 9 of the Direction) as relevant.
International non-refoulement obligations
This consideration is not relevant in this matter.
Extent of impediments to the Applicant if removed from Australia
Paragraph 9.2(1) of the Direction provides that decision-makers must consider the extent of any impediments that the noncitizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
thenon-citizen's age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to them in that country.
There is evidence that the Applicant had several polyps removed in consequence of rectal bleeding. He underwent a colonoscopy on 4 April 2019 at the Nepean Hospital, during which the polyps were removed. There is no evidence of any ongoing treatment.
A pre-release report was prepared in November 2020 which indicated that the Applicant was willing to engage in counselling following his release and the Drug and Alcohol Multicultural and Education Centre (DAMEC) was recommended. It was also recommended that he would be encouraged to seek a culturally specific psychologist.
A psychologist’s report created at the end of the Applicant’s participation in the MERIT program, dated 30 October 2013, states that the Applicant, who was then 49 years of age had a drug and alcohol issue. The Applicant has worked in a variety of occupations including a factory worker, community worker, forklift driver and furniture removalist. He married in 2003 before migrating to Australia in 2004.
There are no substantial language or cultural barriers between Australia and New Zealand nor are there any social, medical and/or economic support facilities available which are not available to the Applicant in New Zealand that are available in Australia.
The Applicant informed the Tribunal that he has a half-brother residing in Australia. The half-brother is in very poor health and resides interstate. He has no close family in New Zealand but does have a half-brother and half-sister. He has many cousins residing in New Zealand, but he stated there are so many, but he never was able to know them. He has a biological sister and mother who reside in Samoa. He states that the other members of his family ignored him in New Zealand, and that it was like he “was alienated from my own family, an outcast.”
There is no evidence to suggest that medical services will not be available to the Applicant in New Zealand, should he require them. Further, the Applicant is familiar with social services in New Zealand having used such services previously. Indeed, the Applicant was convicted of an offence in relation to an officer of that service.
With regard to the factors above, the Tribunal finds that this consideration slightly weighs in favour of revocation. While removal to another country will necessarily create difficulties for the Applicant, he has an apparent working history in New Zealand, and is familiar with the social services available. He has family in New Zealand, including a half-brother and half-sister, although he states he is not close to them. There are medical services available in New Zealand to the Applicant to aid in addressing his drug and alcohol issues.
Impact on victims
Paragraph 9.3(1) of the Direction provides:
Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
This consideration requires an assessment of the impact of unknown victims in this matter. It is recognised that the use of drugs is harmful to members the Australian community. By his actions, the Applicant has actively been involved in the trafficking of drugs which is known to be harmful to potentially many persons in Australia. A publication of the Australian Crime Commission which was tendered to the Tribunal refers to the serious psychological, medical, and social consequences of methylamphetamine use which are described as devastating to the community as they are to the individual user. The risks include:
·increased risk of a range of health-related problems, most notably increased risk of psychosis and mental illness. Long-term use can result in memory loss, aggression, increased risk of heart failure and stroke;
·users are more likely to demonstrate violent behaviours including assault and sexual assaults;
·children present in the homes of methamphetamine users or manufacturers are particularly at risk of ingesting associated chemicals. Additionally, many methamphetamine users are likely to neglect parenting responsibilities and expose children to additional illegal activities;
·illicit drug use is of concern in Indigenous communities throughout Australia, particularly so for methamphetamine use.
The report also records:
Many studies have found a correlation between methamphetamine use and psychosis…The incidence of psychosis increased sharply from 7 per cent to 48 per cent as a consequence of the quantity of methamphetamine used by the subjects. The rate of psychosis reported by those who also reported frequent use of cannabis and/or alcohol range between 61 per cent and 69 per cent.
The Applicant has acknowledged that since he gave up is full-time employment in about 2007, he has not worked in any full-time position and that his source of income has been money made from drug dealing. The Applicant made a reference to the fact that he was occasionally paid to do pest control work but there is no evidence of the extent of any casual part-time employment. The Tribunal infers that there are potentially thousands of persons with whom the Applicant has had dealings over more than a decade of drug dealing. Potentially those persons were placed at risk by virtue of access to the drugs supplied by the Applicant.
In light of the factors above, the Tribunal finds that this consideration weighs strongly against revocation.
Links to the Australian community
The Tribunal must have regard to the Direction at paragraphs 9.4.1 (strength, nature and durations of ties to Australia) to 9.4.2 (impact on Australian business interests).
Strength, nature and duration of ties to Australia
Under paragraph 9.4.1 of the Direction:
(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non citizen has to the Australian community. In doing so, decision-makers must have regard to:
a) how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b) the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for 16 years. There is no clear indication of the employment of the Applicant, nor of any training for any specific employment. There is no evidence that the Applicant has contributed to the Australian community. The Applicant has not engaged in meaningful employment, nor filed a tax return, since 2007. The evidence concerning any other support provided by government agencies is vague. There is no evidence of any employment prospects available to the Applicant other than his assertion that he will find work.
The Applicant claimed that he would seek work with his last permanent employer with whom he worked for about a year and a half, ceasing in 2007. The Applicant also said that he would seek a widow’s pension. As to this suggestion, it was stated by the Respondent is ineligible for such a benefit. Otherwise, it appears that the Applicant has no means of support. The Applicant told the Tribunal he now has a standing debt of $3000 in unpaid fines.
The Applicant’s links to Australia consist of his adult children, his infant child who is in foster care; numerous other step-children and his grandchildren referred to above.
Daughter S
The Applicant states that he travelled Australia in March 2003 with his wife, M, and daughter who was then eight years of age and who suffers from disabilities. That daughter resides in Victoria. The Applicant states that he was married in New Zealand to M in about 1997. The daughter who came to Australia has a different mother, who followed him to Australia about one year after the Applicant arrived in Australia. The Applicant stated they came to Australia to seek medical treatment to assist their daughter who is now mentally delayed. The Applicant has failed to pay child support for this daughter and is $4000 in arrears.
The Applicant states that this daughter is an adult (26 years of age). She was born prematurely and suffered from meningitis at birth resulting in incubation for four months. She is now mentally impaired and is estimated to be approximately five years delayed in mental development. The Applicant states that he would see her perhaps three times a year. The last time he saw her was for Christmas in 2017. He states that he talked to her every week or fortnight by telephone and that he spoke to her by telephone as recently as a week before the hearing.
This daughter’s mother has had a health issue and the Applicant states that the daughter is anxious being left at home. She has a boyfriend who also suffers from a disability and they want to stay with the Applicant in Sydney. The Applicant states that she cannot live by herself and that he is worried for her. However, the Tribunal notes that the daughter has sufficient capacity to have employment, although the nature of the employment is not known.
The Tribunal is mindful of the Applicant’s concern. However, there is no evidence to suggest that the health condition of this daughter’s mother is precarious. Nor is there any evidence of any other support or family member who might be available to assist. The Tribunal infers that the association between the Applicant and this daughter has essentially been by telephone. There is no evidence of any support which the Applicant has provided to her throughout her life up to the present time, except that the Applicant is $4000 in arrears in child support money for this daughter.
Other family
The Applicant’s stepdaughter MA told the Tribunal that the Applicant could reside with her at her rented house. This proposal would seem to be impractical. The house has five bedrooms, occupied by MA, her five children, her sister and child, and JT, a relative.
She provided evidence of the very close contact her five children had with the Applicant, and how he would take them to school and collect them from school. Her statement claims that the Applicant “took on the role alone of looking after my children”. The Applicant was also said to have taught them sports, especially football.
However, this close association is inconsistent with other evidence provided by MA. She stated that following the death of her mother in 2013, a change came over the Applicant and that” he wasn’t himself at all.” MA states that the Applicant:
“… was isolating himself from the family, up all hours of the morning, skinnier than normal, wasn’t making sense of his conversations. I soon started to become aware that he may be using drugs, which I now find out he was using the drug ICE.”
During her cross examination, MA stated:
Then it started to come to sense that I had a belief but I never asked him. I had a belief that he was using drugs but I never pursued him in saying, “Listen, I know you’re using drugs,” because I didn’t want to be his pushdown, you know He was going through things. He’d just lost my mum and she was kind of the one, they were the ones that kind of held the family together, you know, and I didn’t – at the same time I was hurting too, my children were hurting. So I was kind of in my own zone and not thinking that I should, you know, stand up and say, “Dad, I know something’s wrong, you know, stop doing this.” But I didn’t and that’s my mistake and that’s where I went wrong…was not standing up and saying something.
A statement has been provided by an adult son of the Applicant, CA who has four, soon to have five children. CA states that he believes that the Applicant will “make massive changes if he is to reside in Australia with us”. He asks the Tribunal to provide a second chance to the Applicant. There is no evidence of any close association between this witness; he was not called to provide oral evidence; there is no evidence of any visit by this witness or his children to the Applicant during his incarceration.
The Tribunal notes the proximity of MA’s house to that of another relative, whose former partner was convicted with the Applicant in the joint drug selling enterprise which led to the imprisonment of the Applicant. Whilst the partner is no longer residing with the relative, the material suggests that she was also involved in some drug enterprise. Such a location for the Applicant would place him at risk of contact with such relative and potentially, lead to further temptation.
The Tribunal has previously discussed the interests of the Applicant’s infant child, B, and shall not reiterate them here, other than to note that having an infant child in Australia is a strong tie to the Australian community. As to the other biological child of the Applicant, S, who is 26 years of age, but is handicapped, the association is tenuous. Apart from yearly visits, usually towards the end of the year, there is no evidence of any meetings or contacts between the Applicant and S although the Applicant claims to have spoken to her by telephone from time to time.
As to the other family members comprising stepchildren and step-grandchildren, they have had minimal contact with the Applicant since 2018. Despite the oral evidence of the Applicant’s stepchildren MA and JT and the statements of the remaining stepchildren relating to their close and frequent relationship with the Applicant, none of them seemed to have observed the fact that the Applicant was consuming and dealing in drugs.
One step-nephew, CHA provided a statement but was not called to give evidence. CHA, age not provided, refers to the “bad choices” made by the Applicant; the fact that whilst he (CHA) was growing up the Applicant was a kind caring uncle “with the biggest heart”. He stated that he saw the Applicant quite often and that the Applicant would be:
[F]eeding the homeless, cleaning up the street, volunteering at youth events, taking in street kids giving them a roof over their head sometimes for the night sometimes for months. Everyone in our community knew his door was always open if the needed a safe place and looked up to my uncle as a role model, as a lot of us didn’t have any. He would give the shirt off his back to you; a complete stranger if you needed.
While growing up he taught me humility, he told me respect, and majority of values that I now have instilled my own four children.
I believe Albert deserves a second chance. He has done his time for his bad choice; I don’t think you should be punished for a second time by being deported. Kept away from his children and grandchildren who all live here.
The Tribunal finds it difficult to reconcile such a close relationship with the fact that the Applicant himself stated he was “wasted” through his drug use. There is no evidence of any contact by the children of CHA, nor of CHA himself, whilst the Applicant has been incarcerated since July 2018. The Tribunal is satisfied that contact can be maintained with the Applicant via telephone if the Applicant is returned to New Zealand.
The Applicant’s granddaughter, SA, has stated her very close relationship with the Applicant. While the proximity of his relationship with them is unclear, the Tribunal cannot overlook the fact that the Applicant has three biological children in Australia, two of whom appear to require some form of support. He also has a total of 20 grandchildren with two more to be born in September 2021, a half-brother, and the mother of his child, RB.
However, the Direction requires the Tribunal to have consideration to the fact that the Applicant, having relocated to Australia in 2004 at the age of 40, began offending just over a year after his arrival, and continued to offend with some regularity up until his incarceration in 2018. He has resided in Australia for 16 years and spent the first 40 years of his life in New Zealand.
Taking these factors into consideration, the Tribunal considers the strength, nature and duration of the ties to Australia are such as to weigh moderately in favour of the revocation of the original decision.
Impact on Australian business interests
This consideration is not relevant in this matter.
Finding on Links to the Australian community
The Tribunal has taken these factors into consideration. The Tribunal finds that, overall, this consideration weighs moderately in favour of the revocation of the original decision.
CONCLUSION
This matter is finely balanced, with primary considerations weighing both for and against revocation. However, in weighing the competing considerations and the weight to be given to all relevant considerations, the Tribunal considers that the decision under review should be affirmed. The Tribunal finds that the Applicant does not pass the character test, and that there is no other reason which would warrant revocation of the original decision to cancel the Applicant’s visa.
DECISION
The Tribunal finds that the correct and preferable decision is that the decision under review be affirmed.
I certify that the preceding 173 (one hundred and seventy three) paragraphs are a true copy of the reasons for the decision herein of The Hon. Dennis Cowdroy AO QC, Deputy President
..........................[sgd]..............................................
Associate
Dated: 15 September 2021
Date(s) of hearing: 2, 8 & 9 September 2021 Solicitors for the Applicant: Ms M Mamarot, SouthWest Legal and Migration Solicitors for the Respondent: Mr K Eskerie, Sparke Helmore
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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Natural Justice
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Jurisdiction
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Statutory Construction
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