Lawler and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 62
•24 January 2020
Lawler and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 62 (24 January 2020)
Division:GENERAL DIVISION
File Number(s): 2019/7402
Re:Michael Lawler
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:24 January 2020
Place:Brisbane
The decision under review is affirmed.
...................................[SGD].....................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Class BF Transitional (Permanent) Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
LEGISLATION
Criminal Code Act 1899 (Qld)
Migration Act 1958 (Cth)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
24 January 2020
INTRODUCTION AND BACKGROUND
Mr Michael Lawler (“the Applicant”) is a 51 year old citizen of the United Kingdom.[1] Movement records indicate that the Applicant first arrived in Australia on 13 March 1971 and has not left Australia since that date.[2] The most recent visa granted to him was a Class BF Transitional (Permanent) Visa (“the visa”) which he has held since 1 September 1994.[3]
[1] Exhibit R3, Respondent’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [4].
[2] Exhibit R1, s 501 G-Documents, G34, page 155.
[3] Ibid, G7, page 15.
The Applicant has a lengthy criminal history in Australia, commencing on 27 January 1987 when he was 18 years old.[4] Since then he has offended consistently, committing offences in both Western Australia and Queensland, including, but not limited to, offences involving grievous bodily harm, aggravated robbery, assault, stealing, fraud, breach of judicial orders (including a breach of a probation order) and drug offences.[5] His latest period of incarceration commenced on 6 February 2019.[6]
[4] Ibid, G14, page 64.
[5] Ibid, pages 60-64.
[6] Ibid, page 60.
While serving this term of imprisonment, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 14 March 2019 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[7]
[7] Ibid, G13, page 42, paragraph [1].
On 18 March 2019, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[8] On 13 June 2019, the Respondent wrote to the Applicant and invited him to comment on the mandatory cancellation decision and, in addition, to complete the usual and necessary “Personal Circumstances Form”.[9] The Applicant responded pursuant to correspondence faxed to the Respondent on 26 June 2019.[10] The delegate of the Minister decided on 31 October 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[11]
[8] Ibid, G7, pages 20.
[9] Ibid, G11, pages 28-30.
[10] Ibid, G12, pages 31-37.
[11] Ibid, G13, pages 38-59.
The Applicant lodged an application with this Tribunal on 13 November 2019 seeking a review of the abovementioned decision dated 31 October 2019 not to revoke the cancellation of his visa.[12] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[13]
[12] Ibid, G2, pages 3-4.
[13] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
The hearing of the instant application proceeded on 16 January 2020 and received oral evidence from the Applicant and his current de-facto partner. The Tribunal also received written evidence which is particularised in the Exhibit Annexure attached hereto and marked “A”.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, we must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[14]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[15]
[14] [2018] FCAFC 151.
[15] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[16] I will address each of these grounds in turn.
[16] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 7 February 2013, the Applicant was convicted at the Brisbane District Court of grievous bodily harm and sentenced to a term of imprisonment of two years and six months.[17] On 24 April 2007, the Applicant was convicted at the Perth District Court of one count of aggravated robbery and sentenced to a term of imprisonment of, again, two years and six months.
[17] Exhibit R1, s 501 G-Documents, G14, page 63.
The Applicant’s criminal history runs for five pages.[18] Excluding the custodial terms he received for the offending described in the immediately preceding paragraph, even a cursory review of his criminal history indicates he has received additional custodial terms totalling of approximately eight months.
[18] Ibid, “Check Results Report”, pages 60-64.
In his previous written material, the Applicant did not deny his offending, but instead sought, most unconvincingly, to explain the circumstances surrounding it.[19] At the hearing, the Applicant did not appear to cavil with the contention that he did not pass the character test due to the application of s 501(7)(c) of the Act and its definition of “a substantial criminal record”.
[19] Ibid G12, pages 31-37, Applicant’s response to initial mandatory cancellation decision, see in particular, pages 33-35.
For the purposes of the character test, there is no getting around the Applicant’s criminal history. More particularly, there is no getting around the abovementioned respective custodial sentences of two years and six months that were imposed on the Applicant on 2007 and 2013. It should be noted that the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served.[20]
[20] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[21] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:[22]
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
[21] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[22] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[23]
[23] [2018] FCA 594.
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere;
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of, staying in Australia;
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious that any risk of similar conduct in the future is unacceptable;
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time;
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people be allowed to come to or remain permanently in Australia; and
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A: Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his criminal history which appears in a document entitled “Check Results Report” from the Criminal Intelligence Commission,[24] a document entitled “Queensland Court Outcomes” and a bundle of accompanying material described as follows:[25]
·summary of domestic violence orders and conditions of the Applicant;
·domestic violence occurrence report numbers QP1600992447, QP1601243058, QP1800643581, QP1800664394, QP1801658757, QP1801783689; and associated documents;
·computer generated occurrence report numbers QP9600132453, QI1601528054, QI1800071083, QP1800235613 and QP1800532991; and
·QP9 Court Briefs in relation to charges preferred against the Applicant.
[24] Exhibit R1, s 501 G-Documents, G14, pages 60-64.
[25] Exhibit R2, Summonsed Records.
The material discloses that between January 1987 and February 2019, the Applicant came before the courts for sentencing on approximately 33 occasions and that he was convicted of some 51 offences that include:
·offences against the person such as grievous bodily harm, assault and aggravated robbery;
·offences against the person involving commission of acts of domestic violence and repeated breaches of domestic violence orders;
·offences against property such as stealing;
·offences of dishonesty such as fraud;
·offences that are not respectful of lawful authority such as refusing to follow a lawful direction from police and a failure to answer bail; and
·drug offences.
The Applicant also has a notable history of road traffic offences including driving under the influence of alcohol, driving under the influence of drugs, disqualified driving and numerous suspensions of his driving privileges.[26]
[26] Exhibit R2, Summonsed Records, pages 185-190.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Applicant gave frank oral evidence at the hearing. It is clear from his written material and from his oral evidence that he is aware of the nature and extent of his offending. He appreciated the harm that has been caused and, indeed, the potentially catastrophic harm that could have resulted from his offending. While the Applicant sought, to a largely unconvincing extent, to either explain or otherwise ameliorate the circumstances of his offending it is very difficult to disagree with the Respondent’s contention that the Applicant’s offending should be viewed as nothing other than “very serious”.[27] Such a finding about the nature and seriousness of the Applicant’s conduct to date is, in my respectful view, borne out from an application of the factors appearing at paragraph 13.1.1 of the Direction.
[27] Exhibit R3, Respondent’s SFIC, page 4, paragraph [16].
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or offices due to the position they hold, or in the performance of their duties, are serious;
d)Subject to paragraph (b) above, the sentence imposed by the Court for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)…
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status...;
i)…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant has a history of violent offending across the spectrum of his criminal history. Examples of this offending include respective convictions for assault occasioning bodily harm in 1996, aggravated robbery in 2007 and grievous bodily harm in 2013.
The violent nature of the Applicant’s offending has been the subject of previous judicial notice by those who have sentenced the Applicant. On 24 April 2007, the Applicant found himself before the Chief Judge of the Western Australian District Court, his Honour Judge Kennedy (“Kennedy CJDC”), for sentencing involving aggravated robbery perpetrated by the Applicant against a frail 73 year old woman. Kennedy CJDC noted these things in his sentencing remarks:[28]
“…
I accept that you are remorseful, that you have always shown great remorse and concern about what you have done but as you know this is very serious indeed…
It is a really very serious matter and despite the factors that can be put in your favour and the work you have tried to do since then the offence calls for a term of imprisonment. No community based option could possibly reflect the seriousness of this matter.
…”
[My underlining]
[28] Exhibit R1, s 501 G-Documents, G19, pages 82-83.
Likewise, when the Applicant came before the Brisbane District Court in 2013 for sentencing for a charge of grievous bodily harm, the learned sentencing judge (Dearden District Court Judge) noted the following in his sentencing remarks:[29]
“HIS HONOUR: …
Starting with you, Mr Lawler, you pleaded guilty today to a single count of grievous bodily harm. This was a very serious matter… Now, we all know that you can get in to a fight and give someone half a dozen punches and leave a couple of scratches.
DEFENDANT LAWLER: Yes.
HIS HONOUR: You can get in the same fight and do what you have done here. You’ve caused [name of victim redacted] a blowout fracture of the left orbit, which basically is the area under the eye, with entrapment of fat and the inferior rectus muscle, double vision of the left eye… what’s called enophthalmos, which is a sunken left eye, which affects your vision and of course looks ghastly, and a subconjunctival haemorrhage in the left eye.
Now, without surgery to repair the left orbital floor fracture and to check out – although it didn’t require surgery – the laceration of the globe of his eye, [name of victim redacted] would have had reduced vision, he would have had a persisting fluid leak which would have caused ongoing problems with his eye, would have left him with the high risk of infection, retinal detachment and maculopoathy – lots of fancy names for saying he basically would have lost the use of his eye had he not received the surgery.
Now, for that,… you must serve a sentence that does involve a period of actual imprisonment. That saddens me; I don’t like sending to gaol, but if your offence is serious enough I have no option. That is the reality of it.”
[My underlining]
[29] Ibid, G18, page 72, lines 40-54 and page 73, lines 1-14.
I reject the Applicant’s purported amelioration of this offending involving his commission of the grievous bodily harm offence. In his oral evidence, the Applicant purported to suggest that the victim initially physically attacked and, for all intents and purposes, provoked the Applicant into committing his violent conduct. He eventually agreed that the level of this violence perpetrated upon this victim simply went too far.
There can be no question that the abovementioned profile of the Applicant’s offending demonstrates an inherent propensity towards violence as a means of resolving a difficult situation presented to the Applicant. He accepted in his evidence before me that he has unresolved anger management issues, amongst other psychological issues including unresolved issues regarding alcohol and illicit substance abuse.
The Applicant also sought to attribute his offending to sexual abuse he apparently experienced as a minor as well as physical abuse he apparently experienced from his biological father. In an earlier written submission he said:[30]
“At the age of eight (8), I was sexually abused by a Catholic Priest from [name of religious institution redacted], Western Australia when I went to do my Holy Communion. I was the only one who didn’t complete it in my family. The abuse took place over a three month period. I never told anyone about what I was dealing with, but instead tried to deal with (unsuccessfully) the shame and embarrassment of it for years, mostly by trying to self-medicate. I self-medicated for years, and my life continued to spiral out of control, from my early teens onwards, I could not control where my mind was going most of the time. I took to using hard drugs and living a drug cycled life to fulfil my habit, and mask pain. I never told anyone about the abuse until I was forty-four (44) years of age. That’s when I told my mother. I still regret telling her as she was devastated. I did not blame mum. She did all she can with what little she had to raise me. My father was a very abusive man, and an alcoholic. If I am to sum it all up, my childhood was stolen from me in more ways than one. My father once put me in hospital for 6 weeks as a child. I was around 11 years old. That’s when my mum took me and we left dad.”
[30] Ibid, G12, page 31.
While one should have regard to this evidence, it should be noted that there is no independent evidence of any adverse psychological or other impact of the asserted sexual abuse and physical abuse during the Applicant’s childhood being either causative or contributory factors behind his offending. It is clear from his immediately preceding quoted words that his experiences as a child seemed to set his life onto a trajectory of substance abuse, resulting instability and unpredictability of conduct and, inevitably, a criminal history such as he has.
In the absence of any such independent psychological or other expert evidence, the Tribunal must take and receive the factual circumstances of the Applicant’s offending as it finds them in the material whether it be in the form of summonsed police documents or relevant sentencing remarks. Having regard to the specific material available to the Tribunal I am of the view (for the purposes of this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction) that the often reckless circumstances of the totality of the Applicant’s violent offending – be it in the form of assault occasioning bodily harm, aggravated robbery and grievous bodily harm – must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, “regardless of the sentence imposed”. The Applicant has offended against women and appallingly so. His offending against women has occurred in two broad categories: first, with reference to his abovementioned frail 73 year old female victim and, second, with reference to his significant history of domestic violence offending against three female partners.
I have earlier alluded to Applicant’s offending with reference to the frail 73 year old victim. The circumstances of the offending appear in the sentencing remarks of Kennedy DJDC. His Honour noted these things in his sentencing remarks:[31]
“…
You wanted money for drugs and you targeted a frail 73-year-old woman at a shopping centre, followed her to her car, waited until she was putting her shopping into her car then pulled the handbag from her shoulder with such force that the strap broke, pulling her to the ground. You then left with her handbag. It had $104 cash which I note in the victim impact statement she says was to pay an electricity bill and another utilities bill. You took her pensioner and bank cards.
… You said you thought she would be easy to steal from and you used the money for drugs.
At the time, of course, you were under the influence of alcohol, having stolen a bottle of bourbon a little earlier and drunk that. The victim received a broken arm, multiple abrasions and bruises to her face, hands and knees, very nasty bruises and abrasions to her elbow, and soft issue [sic] injury to her chest. She was also very emotionally distressed and was seen to be crying. I have the victim impact statement. I have read that and it makes fairly sorry reading. She points out that her husband is 80 years of age. They have always tried to be self-sufficient, but now feel very insecure.”
[31] Ibid, G19, page 82.
In his evidence at the hearing, the Applicant conceded the offending against this frail 73 year old victim was “… very shameful… very bad.” He had “… no argument at all…” with the suggestion put to him by the Respondent’s representative that this indeed was very serious offending. The Applicant called his offending a “cowardly act.” He said “I thought she was an easy target because she was old. I was stoned at the time.”
The second strand of the Applicant’s violent offending against women can be noted from his equally appalling conduct in a domestic context. His history reveals two previous and one current relationship with three women. For the purposes of confidentiality, those three victims of his domestic violence offending will be called “Woman B”, “Woman N” and “Woman J”.
In or about the 1990s the Applicant met and married Woman B. The nature and outcome of the relationship is described thus by the Applicant:[32]
“My life was out of control for a long time and I really didn’t know what to do to claim it back again. Around 1987 I met a woman whom I later married. I was in trouble with the law with petty stupid things and mainly for my drug problems at the time which was mainly smoking marijuana and selling it to pay for my own habit.
I tried very hard to get on the straight and narrow after the birth of my two boys [biological child 1 born August 1995] and [biological child 2 born August 1997]. I tried really hard to be a good dad. I built a successful business and together with my then wife [Woman B] and I did our best to raise the boys. I worked very hard and stayed on top of things, not realising that my relationship was falling apart. Around 2003 I found out that my wife was unfaithful with my best mate, and they were actually in a relationship. This was pretty much the beginning of my hard drug use. Prior to the boys and my happy family days, I mainly used alcohol and weed to escape my life. After the split with my ex-wife [Woman B], my life spiralled out of control and I hit rock bottom. I started to self-medicate with harder drugs. I was embarrassed about everything. I felt like I was the biggest failure known to man. I had let myself down but worst of all, I had let my kids down, and life became a vicious cycle. It was very hard to come back to normality again. I was in trouble with the law over and over again, and to be honest, I became a heroin user which made the cycle worse. I don’t have much memory of that period of time in my life as I was really out of it.”
[32] Ibid, G32, pages 140-141.
It appears that at or about the end of the relationship with the Applicant, Woman B was granted a “Violence Restraining Order” against the Applicant. In his oral evidence, the Applicant said that he could not recall the reason for which this order had been made. He said that to the best of recollection he had attended her residence and that an argument ensued. He vaguely recalled that at the end of the argument he apparently forgot his mobile telephone at Woman B’s then residence and went back to collect it. As best as I understood the Applicant’s evidence (and as best as he could recall the incident), the circumstances of the conduct giving rise to the making of the order resulted from him re-attending the subject residence to demand and retrieve his mobile telephone. In his evidence, the Applicant said “… I got my phone… can’t remember the DVO…”
On 26 May 2004, the Perth Court of Petty Sessions made the following order consequent upon the Applicant’s breach of the original order made on 5 August 2003:[33]
[33] Exhibit R2, Summonsed Records, page 212.
“SUMMARY OF OFFENCE
1) ACCUSED 1: Michael Joseph LAWLER
OFFENCE: Breach of Violence Restraint Order
…
On the 5th of August 2003, the complainant was granted a Violence Restraining Order… from the Perth Court of Petty Sessions. The order expires on the 9th of October 2005.
The order was served on the defendant in Bibra Lake at 11.20 am on the 9th of August 2003. A condition of this order is not to enter upon any premises where the person protected lives.
At about 11:45 pm on Tuesday the 25th of May 2004 the complainant woke up to find the defendant in her bedroom.
The complainant has run out of the house and then back inside and told the defendant to get out of her house.
The defendant has left, but returned a short while after and abused the complainant.
The defendant was stopped by Police and conveyed to Kwinana Police Station.
The defendant readily admitted the offence.
The defendant was arrested and the present charge preferred.
…”
In or about 2006, the Applicant found himself in a relationship with Woman N. On 6 March 2006, the Applicant committed serious acts of domestic violence against Woman N. The summonsed material discloses the following facts around that offending:[34]
“Complainant[35] has had enough of her defacto,[36] two daughters and two sons continually whinging to her throughout the day. She told them all to leave her alone, and left the house to go to the shops. On her return, she has found her defacto trying to kick her daughter [name redacted] out of the house.
Comp has told defacto that he can’t do this. Defacto said he would leave the Comp, so Comp got his clothes from the bedroom and threw them onto front yard.
Defacto (POI) has gone into bedroom, Comp followed. POI has then grabbed Comp around the neck and started to hit her head against the bedroom wall several times. POI has kept hold of her neck and has continued to hit the Comp’s head against the walls from the bedroom into the Hallway, into the dining room and then into the kitchen. Comp unsure how many times he has hit her head against walls.
Comp has grabbed a knife from a kitchen cupboard, held it up to POI and told him to leave her alone. POI has grabbed Comp’s hand squeezing it and removed the knife from her hand, throwing it onto the floor. The Comp’s right ring finger received a small cut along the knuckle. Comp has stated that she doesn’t think POI has deliberately cut her, her finger was cut when POI tried to get knife away from both of them.
POI has then stormed off to the bedroom closing the door. Comp has followed and slammed the knife into the door several times. Comp then told POI she was going to call the Police. POI has come out of the bedroom, grabbed the Comp by the shoulders, pushed her back into the dining area and thrown her against the dining room table. POI has again stormed off again [sic].
Comp then rang Police, and POI has then left the house. Patrol of area failed to locate POI, and Comp has no idea where POI could be, however she will endeavour to find an address for Police.
children present=
[names redacted]”
[34] Ibid, page 214.
[35] That is, Woman N who is also referred to as “Comp” in his factual summary.
[36] That is, the Applicant who is also referred to as “POI” (person of interest) in this factual summary.
At the hearing, the Applicant said with reference to this offending that he did not recall this incident and that this was probably due to him using heroin at that time. He said “… it concerns me, reading it now, it concerns me, I must have been using heroin at that time. It turns you into a cockroach of a person.” In a previous written submission to the Respondent the Applicant spoke about this particular time of his life in terms of his offending (i.e. around the mid-2000s) and said this:[37]
“I never really gained control of my offending behaviour after that, especially to do with drug use. My children lost contact with me and blamed me for many things in their lives which they missed out on...”
[37] Exhibit R1, s 501 G-Documents, G32, page 141.
The Applicant has been in a relationship with Woman J for approximately four years. A domestic violence incident occurred during the currency of his relationship with Woman J, specifically on 7 April 2018. Sufficient detail of the offending can be gleaned from the relevant police report:[38]
“The respondent in this matter is Michael Joseph LAWLER. The aggrieved in this matter is [Woman J]. Domestic relationship – intimate person. There are no children between the RESP and AGG.[39] Current incident – On the 7th April 2018 at approximately 7:20 pm Police attended [address redacted] in relation to a domestic dispute. It was reported that a female was heard screaming and a male yelling, and the sound of a loud thud. Police spoke to both the AGG and RESP separately at the job address. AGG version – The AGG stated to Police that herself, the witness and the RESP were sitting in the loungeroom when she has asked the RESP to go with her to the shops and they have then had an argument about going to the shops. The AGG stated that the RESP has jumped out of his lounge chair and launched himself onto her and then choked her with both of his hands. The AGG stated further that the RESP has then grabbed her around the throat with one hand, and then grabbed her by the arms. The AGG stated that the RESP has then hit her in the head and pulled her hair out, she pushed at him to get him off and had to kick him to get him off. The AGG stated that the RESP has gone down the hallway to the bedroom. She has followed the RESP telling him that he can’t go in the bedroom and then the RESP has turned around, grabbed her by her hair and thrown her on the ground. The AGG stated that she told the RESP she was going to call Police and the RESP has then grabbed a 2 litre bottle of Coke and splashed it all over her and the loungeroom floor…”
[38] Exhibit R2, Summonsed Records, page 21.
[39] RESP means the Applicant. AGG means Woman J.
At the hearing, the Applicant initially refused to agree that he choked Woman J. He similarly denied splashing her with the bottle of Coke. In his written material he sought to explain his offending against Woman J by suggesting “… I was violent to [Woman J] yes we had argued with each other but they were only word’s not action’s…”[40]
[40] Exhibit A3, Applicant’s Statement, page 8.
Woman J attended the hearing and purported to give certain evidence apparently favourable to the Applicant wherein she sought to say that the version she had given to attending police (as quoted above) was somehow not correct or otherwise inaccurate. This evidence lacks any measure of credibility in circumstances where even a cursory review of the relevant police report into the incident reveals that she and the Applicant gave conflicting accounts to the attending police. Further, the evidence of Woman J can only be of limited, if any, value in circumstances where the resulting domestic violence order has now been put in place until 2023.
Having regard to the circumstances of the Applicant’s domestic violence offending against, respectively, Women B, N and J, there can be no finding other than (1) these are offences of a violent nature committed against women and (2) an application of this sub-paragraph (b) of paragraph 13.1.1(1) of the Direction clearly mitigates in favour of a finding that the nature of the Applicant’s offending conduct is indeed very serious.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction stipulates that crimes committed against vulnerable members of the community and government officials or representatives are serious.
I have earlier recounted the Applicant’s unlawful conduct in September 2006 involving his conviction for aggravated robbery resulting from his cowardly attack on a frail 73 year old elderly woman. There is no question that this 73 year old victim comprises a “vulnerable member of the community” for the purposes of this sub-paragraph (c). It is pertinent to note the sentencing Kennedy CJDC’s remarks about the vulnerability and frailty of this innocent and unsuspecting victim:[41]
“She was 73, frail and vulnerable and elderly people don’t often have much money and that is made obvious by the fact that she was going to use this to pay electricity and other utilities and they are obviously quite fragile, quite often, and that was the case here because she fell over and ended up with a broken arm.”
[My underlining]
[41] Exhibit R1, s 501 G-Documents, G19, page 82.
The Applicant’s conduct towards police officers whose responsibility it is to keep the community safe and ensure that people are obeying the law, clearly constitutes crimes against government officials for the purposes of this sub-paragraph (c). On 14 January 2017, the police had occasion to intercept the Applicant while he was riding a bicycle. The following conduct is described in the summonsed documents and resulted in the Applicant’s conviction for public nuisance for of offensive language used towards the police:[42]
[42] Exhibit R2, Summonsed Documents, page 149.
“…
Facts of Charge 1 of 1: Commit public nuisance (offensive language toward Police)
Just prior to the intersection of Norcott Street, Police have tried to intercept the defendant three times.
The first time with lights active, and the defendant seeing Police, the defendant has turned in the saddle of his bicycle and presented the middle finger to Police yelling ‘WHAT!! FUCK OFF!!’ Loud enough to hear through windows that were up.
Police have then called out a closed window for the defendant to stop.
Lights still activated, again the defendant has turned in his saddle, presented the middle finger and yelled ‘FUCK OFF!!’
Police have wound down the passenger side window of the vehicle, with Constable [name redacted] yelling out the window ‘stop riding and pull over.’
At the intersection of Norcott Street and High Street, the defendant has yelled ‘LEAVE ME ALONE I’M SICK OF YOU CUNTS!!’ at the top of his voice.
…”
Similarly, the Applicant directly challenged the authority of the police in the course of being apprehended for a breach of a domestic violence order on 11 May 2018. The police attended the subject premises and had occasion to suspect that the Applicant was attempting to conceal himself from them in those premises. The police located the Applicant in those premises and this is what ensued when they tried to extricate him from where he was hiding:[43]
“CHARGE TWO
The defendant started screaming at police and wedged himself into the corner of the room between the bed and the cupboard and dropped to the ground. Police told the defendant a number of times he was under arrest and to get up but he refused. Police have then grabbed the defendant who has started to struggle violently in the tight space with police. The defendant had to be dragged to the hallway where he was eventually handcuffed. The defendant was transported to the Redcliffe watchhouse where he was formally charged.
BAIL: OBJECTION ATTACHED”
[43] Ibid, page 75.
It should also be noted that the Applicant has respective convictions for (1) obstructing police[44] and (2) contravention of a direction or lawful requirement of police[45] in his criminal history. The Applicant’s offending against the above-mentioned frail 73 year old lady together with his direct and physical challenges to the lawful authority represented by police officers attracts application of this sub-paragraph (c) in favour of a finding that his offending has been very serious.
[44] Sandgate Magistrates Court, 6 June 1997, Obstruct Police, Convicted and fined a sum of $1000 and in default, imprisonment 45 days (See Exhibit R1, G-Documents, G14, page 63).
[45] Redcliffe Magistrates Court, 30 November 2016, Contravene direction or requirement, conviction recorded, fined $100, time to pay: two months (See Exhibit R1, G-Documents, G14, page 62).
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant’s criminal history clearly indicates that the custodial terms imposed upon him must militate in favour of a finding that his offending to date has been very serious. The Applicant has an offending history that runs from January 1987 until February 2019. This is a period of just over 32 of his 51 years. The offending history involves some 33 sentencing episodes that dealt with approximately 51 individual offences. This sub-paragraph (d) militates for no other finding than that this Applicant’s offending is indeed of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of non-citizen’s offending and whether there is any trend of increasing seriousness. To an extent, the investigatory exercise required by this sub-paragraph (e) largely mirrors that required by the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of the offending is usually analogous to the regime of sentencing imposed for it.
I will deal firstly with the frequency of the Applicant’s offending. He is 51 years of age. He has an offending history that runs for just over 32 years. This means he has been offending almost 63% of his life. His offending has seen him before lawful authority for sentencing on at least 33 individual occasions. Some of those occasions involved sentencing for multiple offences. He has committed something in the order of 51 offences. Over an offending history that runs for 32 years, this equates to the commission of between one and two offences on each and every one of those 32 years. There can be no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
Second, I will address any discernible trend of increasing seriousness in his offending history. In its formative years (i.e., from about 1987 until 1995), the Applicant’s offending could be said to have been at the lower to middle point of seriousness. This offending involved driving offences, not wearing a helmet as a motorcyclist, and disorderly language. From 1996, the offending changes. In June 1996, he was convicted for assault occasioning bodily harm. Thereafter, his criminal history is replete with offences against the person, against property, involving drugs, as well as a repeated and stubborn defiance to accept lawful authority whether it be in the form of a lawful direction from a police officer or the requirement to observe the terms of a formal court order obliging him to do or refrain from doing certain things such as, for example, bail and domestic violence orders.
There is, to my mind, a clearly discernible “trend” in the seriousness of the Applicant’s offending. Analogous to that is the reality that his offending remains a consistent feature of his life. This is most likely due to unresolved issues with the abuse of alcohol and illicit substances also being a consistent and unresolved feature of his life. His criminal history demonstrates that when presented with something he perceives to be an impasse or difficulty, he purports to resolve the situation by recourse to unlawful and potentially catastrophic conduct. His moral compass has been adversely affected by the impact of unresolved issues with unlawful drugs and alcohol.
Thus, an application of this subparagraph (e) leads to an inevitable finding that both the frequency of the Applicant’s offending and, certainly since 1996, the consistent level of its severity, is such as to attract a finding that it has been of a very serious nature.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. Three things can be said about the cumulative effect of the Applicant’s repeated offending. First, his 32 year criminal history has given him multiple opportunities to moderate and control his conduct. The sentencing process has offered him the non-recording of convictions, the imposition of fines instead of time in custody and where a term of custody has been imposed, the suspension of that custodial time after a reasonable period. He has been afforded the benefit of bail and other probationary type orders. It is not incorrect to say that none of these measures have resulted in either the ceasing or the amelioration of his criminal activity. Since 1996, it has remained either serious, or, with the passage of time, very serious.
Second, the Applicant has failed to develop any semblance of respect for lawful authority represented by police officers directly telling him to do or not do something, or in the form of court orders compelling him to meet the requirements of bail, or to observe the provisions of a domestic violence order for the safety of third parties mentioned in such an order. His conduct has been oriented towards either ignoring the terms of a lawfully made order or a lawfully made direction and to deal with the consequences of that conduct afterwards. The cumulative effect of his offending is that this Applicant cannot be relied upon to observe the terms of any lawfully made order or direction. This extends to his traffic history replete, as it is, with offences displaying a marked lack of respect both for other road users and the traffic laws governing use of our roads. On his traffic history there are (1) two driving offences involving the Applicant driving a motor vehicle under the influence of drugs or alcohol; (2) three offences involving disqualified driving; and (3) at least four instances of a suspension of his driving privileges.
Third, in accordance with his own evidence at the hearing, the Applicant’s issues with illicit drugs and alcohol remain unresolved. To be fair to him, I did not understand his oral evidence to be that he was not interested in any such rehabilitation. Rather, his evidence was that he has barely left “first base” in any process of rehabilitation. He acknowledges, for example, his problems with alcohol, but told the hearing he had not yet attended a single meeting of Alcoholics Anonymous. He acknowledged that he has at no stage engaged an independent expert or professional to assist him in the management and control of his substance abuse issues. He acknowledged that the only “treatment” he has had has been some counselling while in immigration detention. His conduct, particularly towards victims of his physical attacks, is concerning. Were he to offend again, especially under the influence of either drugs or alcohol, there is nothing to suggest that catastrophic harm could, quite conceivably, be occasioned to one of his victims. Put simply, the drugs and alcohol have rendered this Applicant’s conduct “out of control” and the quite catastrophic harm he could cause in such a state is, indeed, a very adverse cumulative effect of his offending.
The cumulative effect of the nature and extent of the Applicant’s repeated offending attracts application of this subparagraph (f) in favour of a finding that his offending has been of a very serious nature.
I have had regard to the provisions of sub-paragraph (g) of paragraph 13.1.1(1) of the Direction and cannot find any evidence in the material that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. This sub-paragraph (g) is not relevant to determination of this matter.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction points a decision-maker to the question of whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware in writing, about the consequences of further offending in terms of that non-citizen’s migration status. In the instant case, the Applicant has received not one, but two, such warnings.
First, on 24 June 2008, the Applicant acknowledged, by way of duly signed “Acknowledgement of Receipt of Formal Counselling Letter”, receipt of exactly such a warning. A copy of the warning letter appears in the material.[46] The warning letter makes it abundantly clear that “… this letter is to warn you that any further criminal convictions, or any other conduct on your behalf that comes within the scope of subsection 501(6), could result in the consideration of the cancellation of your visa.”[47]
[46] Exhibit R1, s 501 G-Documents, G27, pages 85–87.
[47] Ibid, page 85.
Despite this warning (received in June 2008) the Applicant proceeded to commit further offences that found him before lawful authority on:
·14 April 2009, when convicted in the Perth Magistrates Court on one count of disorderly behaviour; and
·7 February 2013, when convicted in the Brisbane District Court of one count of grievous bodily harm pursuant to section 320 of the Queensland Criminal Code Act 1899 (Qld) (“Queensland Criminal Code”)[48] for which he was sentenced to a custodial term of two years and six months.
[48] Schedule 1.
Second, on 30 October 2013, the Applicant formally acknowledged receipt of a second such warning. This formal receipt appears in the material.[49] A copy of the warning letter appears in the material.[50] This second warning letter makes it abundantly clear that:[51]
“…
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class BF transitional (permanent) visa will continue to provide you with permission to remain in Australia. However the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
…”
[Underlining and emphasis in original]
[49] Exhibit R1, s 501 G-Documents, G5, page 14.
[50] Exhibit R1, s 501 G-Documents, G27, pages 12–13.
[51] Ibid, page 12.
Despite this second warning (received in October 2013) the Applicant proceeded to commit these further offences that found him before lawful authority on:
·25 July 2016 – Redcliffe Magistrates Court – conviction for five drug related offences;
·1 August 2016 – Redcliffe Magistrates Court – conviction for breach of bail;
·29 August 2016 – Redcliffe Magistrates Court – conviction for possession of a knife in a public or a school;
·31 August 2016 – Redcliffe Magistrates Court – conviction for possession of dangerous drugs;
·16 November 2016 – Redcliffe Magistrates Court – conviction for possession of dangerous drugs;
·30 November 2016 – Redcliffe Magistrates Court – conviction for contravention of a direction or requirement of lawful authority;
·8 February 2017 – Redcliffe Magistrates Court – conviction for public nuisance;
·3 April 2017 – Redcliffe Magistrates Court – conviction for contravention of a direction or requirement of lawful authority;
·7 April 2017 – Brisbane Magistrates Court – convicted for breach of bail;
·24 May 2017 – Brisbane Magistrates Court – convicted for stealing pursuant to section 398 of the Queensland Criminal Code;
·26 July 2017 – Redcliffe Magistrates Court – convictions for two counts of possession of dangerous drugs;
·18 January 2018 – Sandgate Magistrates Court – conviction for possession of drugs and two other drug offences;
·8 June 2018 – Redcliffe Magistrates Court – assault or obstruct police officer;
·8 June 2018 – Redcliffe Magistrates Court – contravention of domestic violence order;
·18 June 2018 – Redcliffe Magistrates Court – convictions for (1) contravention of a domestic violence order, (2) a drug offences and (3) breach of bail;
·31 October 2018 – Redcliffe Magistrates Court – conviction for breach of domestic violence order;
·6 February 2019 – Redcliffe Magistrates Court – conviction for contravention of domestic violence order (x2);
·6 February 2019 – Redcliffe Magistrates Court – conviction for fraud and attempted fraud offences; and
·6 February 2019 – Redcliffe Magistrates Court – breach of probation order imposed on 18 January 2018.
This Applicant has received the benefit of not just one, but two, warnings that his criminal conduct was placing his visa status in serious jeopardy. He ignored both warnings. Further to that, his offending continued virtually unabated after both warnings and it seems to have intensified and expanded particularly after receipt of the second warning. There is, to my mind, little more the Respondent Minister can do in order to attempt to cause this Applicant to change his offending ways. The Applicant’s ignorance of both warnings undoubtedly points to the very serious nature of his offending history in this country.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction points a decision-maker to take into account a situation where the non-citizen is in Australia and has committed a crime while that non-citizen was in immigration detention. I have had regard to this sub-paragraph (i) and cannot find any evidence in the material that the Applicant has committed any crime while in immigration detention, nor has he purported to escape from such detention. This sub-paragraph (i) is not relevant to the determination of this matter.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (c), (d), (e), (f) and (h) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)paragraph 13.1.2(1)(b) requires me to consider the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The Respondent contends that:[52]
“…
The nature of the harm if the Applicant were to re-offend is serious and could involve physical, psychological and financial harm to members of the Australian community. The nature of the harm to individuals should the Applicant engage in further criminal or other serious conduct is so serious that any risk of similar conduct in the future is unacceptable.
…”
[52] Exhibit R3, Respondent’s SFIC, page 6, paragraph [27].
I agree with this contention from the Respondent.
In his written material, the Applicant says:[53]
“Throughout all of this, I believe that I am in a much better place within myself and in my life to become a better and stronger person. I know it won’t be easy, but this time round there are so many different circumstances, and I have learned a lot about myself during this period of incarceration and detention. I have also been able to gain support and help in areas of my life that I have never been able to in the past. I have a clear understanding of where I am at, I have a very supportive partner [name redacted], whom I love; and I have been blessed with a beautiful baby girl [name redacted] born January [birth date redacted] 2019, who I totally adore.
The psychologists in jail helped me enormously, especially Dr Scott. They pointed me towards a much better pathway of getting help for myself, my family, and they helped me to understand the impact on the greater community. The medication I have been prescribed has been altered, and has been amazing. That coupled with the great support – courses which I am learning through; and just being in a generally clear headspace has been liberating, even though facing the trials and tribulations in here has been amazing.”
[53] Exhibit R1, s 501 G-Documents, G32, page 141.
While the Applicant may speak of feeling like “a better and stronger person”, there is nothing definitive in the form of an independent report from a suitably qualified expert confirming he has reached a threshold where he can manage and control his propensity to abuse alcohol and illicit drugs. He speaks of a “Dr Scott”, but there is nothing from either that doctor or anyone else to confirm or independently corroborate what the Applicant is saying. He refers to “facing” certain “trials and tribulations” in both criminal custody and immigration detention as having been “amazing”. Those words do not provide any reassurance that were the Applicant to be faced with such “trials and tribulations” in the general community, the outcome would be any different from the conduct giving rise to the very high number of convictions in his criminal history.
The reality of life is that difficult periods and bad times frequently happen. For present purposes, I am not convinced that the Applicant has had the benefit of sufficient or adequate remedial or other expert therapy to properly equip him for dealing with the inevitably difficult and dark times that will arise in both his personal and broader relationships were he to be returned to the Australian community. The unfortunate conclusion I draw from his unresolved issues with drugs and alcohol is that when one has regard to the nature of the unlawful conduct giving rise to his criminal history, his likely reaction to situations he perceives as difficult and challenging is, presently at best, both unknown and unpredictable.
His unresolved issues with alcohol and unlawful drugs have rendered him incapable of distinguishing between right and wrong. His consequential unregulated and unpredictable behaviour has prevented him from clearly defining the boundaries of lawful and appropriate conduct. It has prevented him from respecting the lawful authority represented by the police. It has prevented him from respecting the personal rights of other people in the community, most notably women. Apart from the Applicant’s words, there is nothing in the material to indicate this position has changed.
To my mind, it is a matter of grave concern that the Applicant continued to offend – indeed, extensively and seriously so – after receiving two warnings from the Respondent Minister that any future offending would place his visa status in serious jeopardy.
It is therefore reasonable to find that the potential consequences flowing from further similar or identical offending by this Applicant would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed and with, quite conceivably, potentially catastrophic consequences.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant has a 32 year period of criminal offending. He has been afforded the benefit of virtually the full ambit of sentencing regimes ranging from non-custodial terms to terms in actual custody. One is very hard-pressed to detect from the criminal history that the Applicant has experienced any form of deterrent effect such as to result in him ceasing his offending. He has received the benefit – in 2008 and 2013 – of two warnings from the Respondent Minister about the very real adverse effect of his offending on his visa status. He ignored both warnings.
In a written submission made to the Respondent (since the time the Applicant has been in immigration detention), the Applicant said:[54]
“I would like to take this time to say that I am truly sorry for all that I have done. … I hope you can understand and hear my heart. I have had a lifetime of ups and downs. I have committed some really stupid offences.
I really don’t have much more to say other than the fact that I have worked really hard to get the best support and help for the behaviours of my past. This entire process has been a major wake up call to me and I have come to learn so much about myself in this time.
I only wish I had the opportunity to have gained this knowledge and understanding earlier in my life. It would have saved so much pain and heartache for so many people, and especially my family.
I can honestly say that knowing what I know now, I am able to process life in a positive way. The organisations I have been connected with have helped me so much and in so many ways. I know that I am a better person, and I can be a man of positive influence to my family. I can now positively impact the community and not be a drain on society.”
[54] Ibid, G32, page 146.
The Applicant wants outsiders to understand and hear his heart. For present purposes, the most effective way of achieving that is to have an independent expert confirming his asserted rehabilitation. Yet that process is, for all intents and purposes, yet to begin. He speaks of this process having “…been a major wake up call…” and that he has “… come to learn so much about myself in this time.” One wonders why or how he did not experience any such “major wake up call” on the multiple occasions he found himself before sentencing courts when he experienced the full ambit of the sentencing process. One also wonders why he did not experience any such “major wake up call” when he received not one, but two, warnings from the Respondent Minister that his criminal conduct was placing his visa status in serious jeopardy.
He says “… knowing what I know now, I am able to process life in a positive way.” We simply do not know what the Applicant knows now. The only means we have of knowing this is for it to be told to us by an expert therapist (or equivalent) who can confirm the Applicant has developed a genuine insight into his offending. The evidence, both written and oral, does not confirm this to be the case. The Applicant speaks of being “… a better person, and I can be a man of positive influence to my family, I can now positively impact the community and not be a drain on society.” The difficulty with that contention is that his criminal history to date does not point to any such reality. The stark reality for this Applicant is that for the significant majority of his time in this country, he has not been a positive influence on his family and in his personal relationships and that he has been a drain on the Australian community, particularly via its law enforcement and judicial system. Apart from his words, there is next to nothing in the material to confirm this position will change.
The Respondent has, validly to my mind, identified a number of factors[55] which directly challenge the Applicant’s assertion of having been rehabilitated from his propensity to abuse both alcohol and illicit substances. Those factors comprise:
[55] See Exhibit R3, Respondent’s SFIC, page 7, paragraphs [29] and [30].
(i)the limited or non-existent evidence from a suitably qualified and independent expert that the Applicant’s issues with illicit drugs and alcohol are the subject of any defined “therapy” or clinical regime of management and control. To his credit, there is evidence that the Applicant has commenced some form of counselling and recognition of the effect of alcohol and illicit drugs on his life and the lives of others.[56] At best, this can be only described as the initial steps on his road to rehabilitation;
[56] See Exhibit A1, Understanding Addiction Workbook.
(ii)the Applicant’s offending conduct has seen him removed from the Australian community on a continuous basis – be it in criminal custody or immigration detention – since February 2019. His assertions of rehabilitation have been made while in the closed environment of criminal custody/immigration detention. The extent to which his asserted rehabilitation has lessened his risk of re-offending remains untested in the broader Australian community. In the absence of clinical confirmation that his issues with alcohol and illicit drugs are under some measure of control, his likelihood of offending can never be categorised as low and his risk of re-offending remains a genuine, and to my mind, convincing possibility;
(iii)he has a very significant history of disregarding and disrespecting the laws governing and regulating the community into which he now seeks re-admission. His historical attitude towards lawfully binding court orders obligating him to do or refrain from doing certain things is appalling. His unresolved issues with alcohol and illicit drugs have caused him to attack an innocent and elderly victim for the purposes of satiating his addictions. The adverse effect of abusing substances has caused him to seriously and potentially catastrophically breach orders made for the prevention of domestic violence. Again, in the absence of clinical confirmation that his predisposition to abusing alcohol and illicit drugs is under some measure of control, one cannot be convinced that he will, upon a return to the community now, automatically re-configure his life to be more respectful of the laws of Australia;
(iv)his evidence, both written and oral demonstrates a lack of insight in relation to facets of his very serious offending. There are two relevant examples of this lack of insight.
ofirst, with reference to the incident at the caravan park in 2012 resulting in the Applicant’s conviction for grievous bodily harm, the Applicant says this:[57]
“The fight that I got into in 2012 was not entirely my fault. Yes I was affected by booze but so [the victim]. He infact came over and peed on the outside of the caravan we lived and was singing out to us so I shouldn’t of went outside outside I know that. He did hit me first & then a fight got worse resulting in [the victim] getting his injuries. Again I didn’t intend for that to happen hence I was still there when police turned up. I really didn’t think that I was in the wrong. It surprised me that two later charge was upgraded to GBH.”
[Errors in original]
othe second example relates to the Applicant’s domestic violence conduct towards his partner, Woman J. The lack of insight into this specific offending is evident from two things. In his written material, the Applicant said “… If I was violent to [Woman J] yes, we had argued with each other but they were on word’s not action’s.”[58]
[Errors in original]
othis is an astonishing lack of insight when one has regard to the circumstances of that offending as relayed by Woman J to the attending police officers. As outlined earlier, Woman J told those attending police officers the Applicant had (1) jumped out of his lounge chair and launched himself into her; (2) choked her with both of his hands; (3) grabbed her around the throat with one hand, and then grabbed her by the arms; (4) hit her in the head and pulled her hair out; (5) grabbed her by the hair and threw her on the ground; and (6) grabbed a two litre bottle of Coke and splashed it all over her and the lounge room floor.
othe Applicant’s lack of insight into his offending was also evident from the oral evidence he purported to adduce from Woman J. As outlined earlier, Woman J’s evidence about the asserted unreliability and inaccuracy of the facts recorded by the attending police officers must be received with caution having regard to what she is recorded as having told them at the scene of the incident. In an effort to try and develop some measure of consistency between his evidence and hers, at the hearing the Applicant flippantly asked Woman J “Have I ever hit you?” to which she replied, “No”. This evidence from both the Applicant and Woman J has next to no credibility when one has regard to the reality that the Stipendiary Magistrate[59] must have accepted the accuracy of the respective versions taken by the attending police officers because five days after this incident His Honour made a protection order.[60]
(v)not only has the Applicant received two separate warnings from the Respondent Minister and ignored them both, he has received them some five years apart – in 2008 and 2013 respectively. One would expect that if he had insight into the adverse effects and outcomes from his offending, he would have surely moderated his conduct in the period between the first warning and the second. This did not occur. Indeed, even after the second warning, as has been demonstrated above, his offending intensified.
(vi)while the Applicant may speak of apparently having the support of his partner, Woman J, having that support network did not prevent him from offending in the past and there is next to no evidence that things will change in future. I am not convinced of the longevity of any relationship between the Applicant and Woman J. I note two things: first, the self-serving and unconvincing nature of her evidence at the hearing; and, second, the reality that the domestic violence order she has against him continues in force up to and including 11 April 2023.
[57] Exhibit A3, Applicant’s Statement, pages 2-3.
[58] Ibid, page 8.
[59] Mr Bucknall, Redcliffe Magistrates Court.
[60] Exhibit R2, Summonsed Records, page 24 – Protection Order made on 12 April 2018.
The inevitable conclusion to be reached about the Applicant’s risk of re-offending is best informed by an application of Principles 6.3(3)-(4) and paragraph 13.1.2(1) of Direction 79. The combined effect of those provisions is that the harm resulting from any return by the Applicant to his offending ways may very well be so serious such that any risk of similar conduct in the future is unacceptable. I so find.
I am also mindful of the comments made by a previous sitting President of this Tribunal, His Honour Justice Davies, who said the following about the risk of reoffending:[61]
“The likelihood of recidivism is a strong factor in favour of the deportation when the Tribunal is not satisfied that the criminal is unlikely to offed again…and even if the risk of recidivism is not high, the risk will strongly support deportation when recidivism, if it does occur, may cause great harm.”
[61] Stone and Minister for Immigration and Ethnic Affairs (1981) 3 ALN 81.
Conclusion: Primary Consideration A
This Applicant has been given multiple opportunities to modify and ameliorate his conduct. This includes not just warnings from judicial officers dealing with his criminal offending, but also two clearly worded warnings from the Respondent Minister that his offending conduct was placing his visa status in extreme jeopardy. He has failed to grasp those opportunities and warnings. Instead, he has continued to persistently offend, and very seriously so. He is a very long way from meeting the treatment and other intervention-based therapies necessary to now convince a decision-maker that his risk of re-offending could somehow move downwards from a very high level.
I have had regard to the provisions of paragraphs 13.1.1 and 13.1.2 of the Direction and have also had regard to sub-paragraph 6.3(3). I find that (1) the nature of the Applicant’s offending conduct to date is very serious and (2) there is a strong and convincing likelihood that he will engage in further very serious conduct if returned to the Australian community.
In consideration of all of the evidence and each of the relevant factors contained in the Direction, I find that Primary Consideration A weighs very heavily in favour of non-revocation.
Primary Consideration B: The Best Interests of Minor Children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
It is first necessary to identify the children actually or possibly relevant to this proceeding. As I understood the evidence, the Applicant has either a biological or other connection to the following children:
·the Applicant had two biological children with a previous woman to whom he was married – Woman B. She and the Applicant had two sons. The first son (“Son P”) was born in August 1995 and their second son (“Son M”) was born in August 1997;
·Son P has an infant male child (born 2013) who, of course, is the Applicant’s grandson;
·tragically, Son M took his own life in July 2018;
·the Applicant’s asserted current domestic partner, Woman J, has twin girls from a previous relationship. The twins were born in December 2011 and, of course, are the step-children of the Applicant; and
·the Applicant and his current partner, Woman J, had a baby girl, born in January 2019.
For the purposes of this Primary Consideration B, the infant children to be considered therefore comprise:
·the grandson (i.e., son of Son P);
·the twin girls of Woman J born in 2011; and
·the baby girl of the Applicant and Woman J born in January 2019.[62]
[62] Note: in her written statement appearing at Exhibit R1, s 501 G-Documents, G30, page 97, Woman J refers to “Raising four girls in age group from eighteen to three months is very hard alone”. For the purposes of this decision, I have had regard to the three infant children comprising (1) the one year old baby daughter; and (2) & (3) the twin eight year old girls. I do not recall any mention of the Applicant playing any parental or similar role in the life of an 18 year old child of whom Woman J is the biological mother. In the final analysis, I note (1) any such 18 year old child of Woman J is no longer a “minor” child for the purposes of the Direction, and (2) the Applicant makes no mention of any 18 year old step-child in his “Personal Circumstances Form”.
The Applicant’s Evidence
With reference to Son P and Son M the Applicant said in his written material:[63]
“I tried very hard to get on the straight and narrow after the birth of my two boys, [Son P and Son M]. I tried really hard to be a good dad. I built a successful business and together my then-wife and I did our best to raise the boys. I worked very hard and stayed on top of things, not realising that my relationship was falling apart. Around 2003 I found out that my wife was unfaithful with my best mate, and they were actually in a relationship. This was pretty much the beginning of my hard drug use. …
I never really gained control of my offending behaviour after that, especially to do with drug use. My children [i.e., Son P and Son M] lost contact with me and blamed me for many things in their lives which they missed out on. …
In addition to all of the circumstances in my life, I lost my youngest boy, [Son M] to suicide in July 2018, just off his twenty-first (21) birthday….”
[63] Exhibit R1, s 501 G-Documents, G32, page 141.
In his “Personal Circumstances Form”, the Applicant names three minor children comprising the baby girl born in January 2019 and the twins (from a previous relationship of Woman J) born in 2011. With specific reference to the above-mentioned grandson (i.e., the son of Son P), in response to the question (in the “Personal Circumstances Form”) “What is your relationship to the child?”, the Applicant responded with, “Grandfather Estranged”. At the hearing, the Applicant confirmed that he had never met the grandson and that he has absolutely no contact with Son P.
In response to specific questions in his “Personal Circumstances Form”, the Applicant responded as follows:[64]
“Describe your relationship with each of your minor child/ren above, including how often you contact/see the child/ren and the role you play in their life
Father to newborn [baby born in January 2019] contact on a daily basis, was taken away from daughter she was born [January 2019], I was taken away 5-2-2019, the bonding that I was starting now been stopped. It’s very very important to us both [Woman J] and myself that children have a father
Describe any current impact on your minor children above, and/or any likely impact on them in the event of a negative s501 decision outcome (i.e. a non-revocation or visa cancellation/refusal decision).
My partner [i.e., Woman J] is finding without is a very stressfull she is not only having a 3 month old [Baby born in January 2019] she also has twin 8 yr old girls with no help crys alot depresion it is starting to take a toll on her outside needs taken care of she has so much I am worried no end about her suituion”
[Errors in original]
[64] Ibid, G33, page 153.
Application of Factors in Paragraph 13.2(4) of the Direction
The learned Justice Mortimer went further, and thought the last two sentences of paragraph 13.3 of the Direction:
“…[are] 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 a 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.
[77] I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do…”
[My underlining]
In Afu v Minister for Home Affairs (“Afu”),[74] Justice Bromwich said:
“The concept of community expectations is not a matter to be measured as though it is a provable fact. It is an assessment of community values made on behalf of that community. That would be so even in the absence of the express terms of Direction 65. However, those express terms put the question beyond doubt. The norm is stipulated, inter alia, in Direction 65…The Tribunal was required to give effect to those norms which is precisely what it did.”
[My underlining]
[74] [2018] FCA 1311 at [85].
In FYBR v Minister for Home Affairs (“FYBR”),[75] Justice Perry observed that:
“It follows, in line with the authorities, that cl 11.3 of Direction 65[76] is a statement of the Government’s view as to the expectations of the Australian community for the purposes of determining whether or not to refuse a visa. Contrary to the Applicant’s submissions, it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Rather, the Tribunal must give effect to the “norm” stipulated in cl 11(3) which will of its nature weigh in favour of refusal, at least in most cases...” [77]
[My underlining]
[75] [2019] FCA 500.
[76] Note: FYBR was concerned with a visa refusal. This means the relevant paragraph relating to expectations of the Australian community was paragraph 11.3 [et seq] of the Direction. The instant case is, of course, a matter relating to the non-revocation of a mandatory cancellation decision. In those latter circumstances, the relevant paragraph is 13.3 [et seq] of the Direction. Further, “the Direction” is now Direction 79 that took operative effect on and from 28 February 2019. The paragraph numbering in Direction 79 relating to “expectations of the Australian community” remains the same as per Direction 65 – that is, paragraph 11.3 for visa refusal matters and paragraph 13.3 for non-revocation matters.
[77] FYBR, paragraph [42] (Perry J).
FYBR was appealed to the Full Federal Court. On 25 October 2019, the Full Court upheld FYBR, confirming Justice Perry’s reasons and approach to the expectations of the Australian Community.[78]
[78] See FYBR v Minister for Home Affairs [2019] FCAFC 185.
Thus, the Full Court’s decision, along with the existing authorities of YNQY and Afu establish that:
(a)the “expectations of the Australian community” cannot be measured or determined as in the case of a provable fact. It is an assessment of community values made on behalf of that community.[79]
(b)it is not for the Tribunal to determine for itself what such “expectations” are by reference to the Applicant’s circumstances or evidence about those expectations;[80]
(c)the Government’s views in relation to community expectations are contained within the Direction. The Minister is entitled to make statements as to what the Government thinks are the “expectations of the Australian community”, and the Tribunal should have due regard of those statements, if made;[81]
(d)in assessing the weight attributable to this Primary Consideration C, decision makers can have regard to the principles in paragraph 6.3 of the Direction, in particular, sub-paragraphs 6.3(5) and 6.3(7). The allocation of the weight attributable to this Primary Consideration is a matter for the decision maker.[82]
[79] Afu at paragraph [85].
[80] FYBR at paragraph [42].
[81] FYBR v Minister for Home Affairs [2019] FCAFC 185, paragraph [74] (Charlesworth J) citing Uelese v Minister for Immigration and Border Protection [2016] FCA 348.
[82] Ibid, paragraphs [77] (Charlesworth J) and [105] (Stewart J).
Analysis – Allocation of Weight to this Primary Consideration C
This Applicant’s unlawful conduct which has spawned his very extensive criminal history has surely breached the expectations of the Australian community. He has, over some 32 years, consistently, and often very seriously, failed to abide by the laws of Australia. In ascertaining the weight attributable to this Primary Consideration C, I take into account the following factors and/or findings:
(i)the Applicant has made little to no positive contributions to the Australian community;[83]
(ii)the Applicant has lived in Australia for approximately 49 years;[84]
(iii)the removal of the Applicant may have an adverse impact on his minor child, his two step-daughters and his de-facto partner, Woman J, in Australia.[85]
(iv)the very serious nature of the Applicant’s offending to date to other people in the community, most notably women, but including members of the general community as well;
(v)the nature of the balance of his offending history involving, as it does, a lack of respect for lawful authority, the personal and property rights of others, the dreadfully adverse effect of domestic violence and drug offending upon the Australian community, both in terms of individual harm and in terms of the community’s law enforcement and public health resources that it consumes;
(vi)his lack of insight into the nature and severity of his offending;
(vii)my finding of a convincing likelihood that he will engage in further and, most likely, very serious conduct if returned to the Australian community; and
(viii)my assessment of the quite significant risk of substantial and even catastrophic harm to the Australian community were he to re-offend.
[83] The Direction, paragraph 6.3(7).
[84] Ibid, paragraph 6.3(5).
[85] Ibid, paragraph 6.3(7).
Conclusion: Primary Consideration C
I am of the view that the above factors, read as a whole in the context of this case, militate in favour of not revoking the cancellation of the Applicant’s visa. I accordingly find that this Primary Consideration C is of heavy weight in favour of affirming the non-revocation decision under review.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 14 of the Direction. I will now consider each of the five stipulated sub-paragraphs (a), (b), (c), (d) and (e).
(a) International non-refoulement obligations
The Applicant has not claimed to fear harm, and none of the evidence suggests a risk of harm, should he be returned to the United Kingdom. This consideration is not relevant to the determination of this application.
(b) Strength, nature and duration of ties
There is the following limited concession made by the Respondent:[86]
“45. To the extent that this consideration weighs in favour of revocation, the Minister contends that it does not outweigh the primary considerations which weigh heavily against revocation.”
[86] Exhibit R3, Respondent’s SFIC, page 11, paragraph [45].
In his “Personal Circumstances Form”,[87] the Applicant makes reference to his mother as someone with whom he originally travelled to Australia. However, the Applicant’s mother unfortunately passed away in November 2018.[88] As mentioned earlier, the Applicant had two sons from his previous marriage. They are Son P and Son M. Son P has an infant male child (born 2013) who, of course, is the Applicant’s grandson. Tragically, Son M took his own life in July 2018. There does not seem to be any contact between Son P and the Applicant. According to the Applicant’s written statement:[89]
“…
My eldest son [Son P] has blamed me for not being around. I’ve still to meet [Son P’s] son [the grandson born in 2013] but I’m hoping that time will heal the pain [Son P] feels for the loss of [Son M]. He’s [Son M] not talking to me still I cannot contact him without going there[90] in person.
…”
[87] Exhibit R1, s 501 G-Documents, G33, pages 147-154.
[88] Ibid, G32, page 141.
[89] Exhibit A3, Applicant’s Statement, pages 6-7.
[90] In his oral evidence, the Applicant said “there” meant Perth, Western Australia.
Also in his “Personal Circumstances Form”, the Applicant makes reference to his current partner, Woman J, who, of course, is the mother of the twin eight year old girls with whom the Applicant has a relationship as step-father. The “Personal Circumstances Form” also refers to the Applicant’s one year old daughter. There is further reference to the Applicant’s grandson but, as mentioned earlier, in response to the question “What is your relationship to the child?”, the Applicant responded in the “Personal Circumstances Form”, “Grandfather, estranged”.
It is reasonable to attribute some measure of weight to this Other Consideration (b) on the basis that those family members are representative of the extent of the Applicant’s ties to this country.[91]
[91] Pursuant to paragraph 14.2(1)(b) of the Direction.
That observation must be tempered by the factors appearing at paragraph 14.2(1)(a) of the Direction. With specific reference to paragraph 14.2(1)(a)(i) of the Direction, although the Applicant first arrived here as a two year old and did not begin offending until he was aged 18, his offending conduct spans virtually the entirety of his adult life in this country. It culminates, as recently as February 2019,[92] in him being sentenced for additional breaches of domestic violence orders and a breach of a probation order which, in turn, saw him returned to criminal custody followed now by immigration detention. While it cannot be said the Applicant did not commence offending “soon after arriving in Australia”, he has nevertheless been a consistent offender (and very seriously so) for virtually the entirety of his adult life in this country. It is thus difficult to apply paragraph 14.2(1)(a)(i) in favour of the Applicant.
[92] Sentenced on 6 February 2019 – Redcliffe Magistrates Court.
With specific reference to paragraph 14.2(1)(a)(ii), it is difficult to allocate any measure of additional weight to this Other Consideration (b) given the paucity of the Applicant’s contributions to the Australian community apparent in the material. I have looked at the Applicant’s “Understanding Addiction Workbook”[93] and cannot find any reference to contributions he may have made to the community. I have looked at his “Personal Circumstances Form” and, to be fair to him, the G-Documents do not include the entirety of that document and, specifically, the part where he would be asked whether he has made any contributions to the Australian community. I cannot find any reference to any such contributions in his other written material before me. I cannot recall any reference to contributions he may have made to the Australian community in either his oral evidence or that of his de-facto partner, Woman J. It is thus difficult to allocate any measure of weight to paragraph 14.2(1)(a)(ii).
[93] Exhibit A1.
In the final analysis, any weight attributable to this Other Consideration (b) due to the Applicant’s family ties in this country must be tempered by respective ancillary findings that any time he may have spent contributing positively to the Australian community has been significantly outweighed by his very serious criminal conduct since he turned 18.
Accordingly, while this Other Consideration (b) may weigh in favour of revocation, it is of limited weight only and is outweighed by Primary Considerations A and C, which favour non-revocation.
(c) Impact on Australian business interests
There is no evidence before me that the cancellation of the Applicant’s visa would have an impact on Australian business interests. This consideration is not relevant to determination of this application.
(d) Impact on victims
The Respondent has not called any evidence relating to the impact that the Applicant’s continued presence in Australia would have on any of his victims. No doubt, victims such as the frail 73 year old lady and Women B and N may have – via any victim impact statements – facilitated the possibility of allocating (or not allocating) any weight to this Other Consideration (d).
However, without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact of the Applicant’s continued presence in Australia would have on any of his victims. Indeed, the victim of his very serious domestic violence offending in April 2018 has provided cautiously supportive evidence in support of the Applicant’s parental role in relation to the one year old baby girl and the twin eight year old girls.[94] Accordingly, I cannot find that this factor attracts any weight either in favour of, or against, the revocation of the Applicant’s visa.
[94] See the written statement of Woman J, Exhibit R1, s 501 G-Documents, G30, pages 96-99.
(e) Extent of impediments if removed
As a guide for exercising the discretion, paragraph 14.5(1) of the Direction directs a decision-maker to take into account any impediments that a non-citizen may face if removed to their country of origin and if required to re-establish themselves in that country. Relevant factors to be taken into account include:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
With specific reference to the three factors appearing in paragraph 14.5(1) of the Direction, I note the Applicant is a man of 51 years of age. In terms of diagnosed medical or psychological conditions, the material discloses the following things. First, in his written statement appearing in the material, the Applicant says:[95]
“While I’ve been in here for the first time I can remember I’ve not been on any drug’s what so ever I’ve always been self medicating or some prescription medication not long after arriving here I stopped amytryptline (Endep) 22/4/19 3 week’s after arriving which was very hard because I would have my night terrors from childhood return is still difficult but are becoming rarer as time has gone buy also the last medication was epilim(Sodium Valpron) which was stopped 3-9-19 now I’m completely free of all drugs…”
[Errors in original]
[95] Exhibit A3, Applicant’s Statement, page 5.
Second, the material[96] contains an International Health and Medical Services Medication Chart detailing the drugs administered/prescribed to the Applicant at or about the time of his receipt into immigration detention in April 2019. Those drugs comprise:
·“Sodium Valproate Tablets 200mg” given to the Applicant once daily for “mood balance”;
·“Sodium valproate Tablets 100mg” given to the Applicant twice daily for “mood stabilising”;
·“Paracetamol Modified release caplets 665mg” given to the Applicant twice daily “to manage chronic back pain”;
·“Meloxicam tablets 7.5mg” given to the Applicant twice daily for “Chronic back pain, monitor for GI upset”; and
·“Pantoprazole Tablets 20mg” for “GORD”.
[96] Exhibit R1, s 501 G-Documents, G29, pages 89–94.
During his time in immigration detention, the Applicant has also received “Nurse Initiated Medications” comprising “Loratadine Tablets 10mg” and “Paracetamol Tablets 500mg”.
Any medical conditions previously experienced or presently suffered by the Applicant would be managed with the assistance of identical prescribed medication which would be available to him in the United Kingdom.
The Applicant has also spoken of being helped “enormously” by a psychologist during his time in criminal custody. Similarly, the level of psychological support the Applicant has received thus far should be available to him in the United Kingdom.
There is no significant or substantial language or other cultural barrier to the Applicant’s return and re-establishment in the United Kingdom. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of the United Kingdom.
The United Kingdom is culturally and linguistically similar to Australia. It cannot be said the Applicant will face significant linguistic or cultural barriers were he to be compelled to return there. To the extent that he may face some difficulty in re-establishing himself in the United Kingdom, this would only present as a short term hardship and would not preclude resettlement.
The Applicant appeared motivated to return to remunerative employment upon release from immigration detention. He spoke of returning to work as a factory hand. He also spoke of his previous work as a metal-worker but that he is now physically limited from realistically returning to such work. There is little or nothing precluding him from doing factory-hand type work that he intends to do in Australia in the United Kingdom were he to be returned there.
I am thus of the view that this Other Consideration (e) is of neutral weight to the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·international non-refoulement obligations: not relevant;
·strength nature and duration of ties: limited weight;
·impact on Australian business interests: not relevant;
·impact on victims: neutral; and
·extent of impediments if removed: neutral.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs very heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs slightly in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the very significant weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding one-hundred and sixty-two (162) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
....................................[SGD]....................................
Associate
Dated: 24 January 2020
Date of hearing: 16 January 2020 Applicant: In person Solicitors for the Respondent: Mr Matthew Hawker
Sparke Helmore Lawyers“A”
Exhibit Annexure
Exhibit
Description of Evidence
Party
Date of Document
Date Received by Tribunal
R1
Section 501 G-Documents
Resp
-
26 Nov 2019
A1
Understanding Addiction Workbook
App
-
16 Nov 2019
A2
Protection Order
App
27 Aug 2019
16 Nov 2019
A3
Applicant’s Statement
App
-
16 Nov 2019
R2
Summons Bundle
Resp
-
7 Jan 2020
R3
Respondent’s SFIC
Resp
6 Jan 2020
7 Jan 2020
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
-
Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
-
Statutory Construction
-
Remedies
-
Natural Justice
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