Leone and Minister for Home Affairs (Migration)

Leone and Minister for Home Affairs (Migration) [2018] AATA 3363 (10 September 2018)
Division: General Division
File Number(s): 2018/3419
Re:Francesco Leone
APPLICANT

Minister for Home AffairsAnd
RESPONDENT

DECISION
Tribunal:Member Richard West
Date:10 September 2018
Place:Melbourne

The Tribunal affirms the decision under review.
...........................[sgd].............................................
Member
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of the child – expectations of the Australian community – other considerations – decision under review affirmed.
Legislation
Migration Act 1958
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Gordon and Minister for Immigration and Border Protection [2018] AATA 39
Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458
Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 6.2(1), 7(1), 8, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.2(1)(a)(ii), 14.2(1)(b), 14.5(1) – Part C
United Nations, Convention on the Rights of the Child, New York, 20 November 1989
REASONS FOR DECISION
Member R West
10 September 2018
INTRODUCTION

On 13 May 2016 the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Migration Act 1958 (the Act).
On 18 June 2018 a delegate of the Minister for Home Affairs decided not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s.501CA(4) of the Act.
Pursuant to s.500(1)(ba) of the Act, the Applicant sought a review of the delegate’s decision of 18 June 2018 by this Tribunal.
The Tribunal conducted a hearing of the application on 31 August and 3 September 2018. The Applicant was represented by Ms Georgina Costello of counsel, instructed by WLW Migration Lawyers. The Respondent was represented by Mr Ned Rogers, solicitor of the Australian Government Solicitor.
For the reasons that follow, I have decided to affirm the decision of the delegate.
BACKGROUND
The Applicant was born in Calabria, Italy on 24 October 1960. He migrated to Australia with his family when he was 12 years old, arriving in Melbourne on 8 January 1973. The Applicant has lived in Australia continuously since that time and has not returned to Italy. He has not obtained Australian citizenship and has remained in Australia on a permanent resident visa.
The Applicant grew up in the western suburbs of Melbourne. He left school at the end of Year 10. He worked at Toyota as a storeman and forklift driver for seven years. He worked at various jobs in cafes and a pizza restaurant and later for 17 years as a security officer/crowd controller. In the early 1990’s he purchased a café business and later operated a number of cafes, restaurants and pool halls.
In 1988 he commenced a relationship with Ms Tamara Sims with whom he had three daughters. He remained with Ms Sims for around 10 years but eventually the relationship ended in 1998. Ms Sims was a heroin addict and the Applicant successfully applied to the Court for sole custody of his three daughters following the end of his relationship with Ms Sims. The Applicant also had another daughter from a different relationship in 1991. That daughter has been living with her mother, although with the support of the Applicant.
In 1998 the Applicant commenced a relationship with Ms Dianne Galileos and together they raised the Applicant’s three daughters. In 2007 the Applicant and Ms Galileos had a daughter together, Alexia.
In the period prior to 1990 the Applicant had a number of relatively minor criminal convictions for unrelated offences, including driving while disqualified, using threatening words in a public place, failing to answer bail and discharging a firearm in a public place. In the period after 1990 he had several further convictions for minor offences but his principal offending was drug-related.
In July 1990 he was convicted of trafficking heroin and fined $700. He was charged with possession offences in 1990 but the charges were adjourned without conviction and he was placed on a good behaviour bond. He was convicted of trafficking heroin in 1992 and sentenced to 1 year and 9 months in prison with a minimum parole period of 12 months. He was convicted of possession of cannabis and failure to answer bail in 1997 and fined $4,000. He was again convicted of possession of cannabis in 2001. In April 2002 he was convicted of trafficking amphetamines and sentenced to 2 years and 6 months in prison, with 2 years of the sentence suspended for 3 years. He was again convicted of possession of cannabis in 2005 and fined $1,000.
On 15 December 2011 the Applicant was convicted in the County Court of Victoria on three counts of trafficking heroin, cocaine and amphetamines in commercial quantities from January to July 2009. He was sentenced to a term of imprisonment of 6 years and 3 months with a minimum parole period of 4 years and 6 months[1]. As a result of this conviction, the Applicant’s Class BF Subclass C Transitional (Permanent) visa was subject to mandatory cancellation under s.501(3A)(b) of the Act. At the completion of his sentence the Applicant was taken into immigration detention.
[1] A complete record of the Applicant’s criminal history is in evidence at G34-35.
EVIDENCE
In conducting the review I have had regard to:
·the documents produced to the Tribunal by the Respondent pursuant to s.500(6F) of the Act, being three bundles of documents sequentially numbered from 1 to 833 (the G Documents)[2]:
·the oral evidence and written statements of the Applicant, Paula Marafioti (the Applicant’s sister), Diana Galileos (the Applicant’s partner), Sara Leone (the Applicant’s daughter) and John Leone (the Applicant’s brother); and
·the expert reports and oral evidence of Angela Kay (psychologist) and Pamela Matthews (forensic psychologist).
[2] In referring to the G Documents in this decision the relevant page numbers are cited, for example, G343 refers to the document at page 343 of the G Documents as filed.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(i) the Applicant passes the character test as defined in s.501; or
(ii) there is another reason why the cancellation should be revoked.
The Applicant has conceded that he does not pass the character test in s.501. So the sole issue before the Tribunal in these proceedings is whether under s.501CA(4)(b)(ii) there is another reason why the mandatory cancellation should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities[3].
[3] Re Gordon v Minister for Immigration and Border Protection [2018] AATA 39 at [57].
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions[4].
[4] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
Direction 65
The relevant direction under s.499 of the Act, which applies to the revocation of mandatory visa cancellation decisions, is Ministerial Direction No. 65 (the Direction). The relevant part of Direction 65 is Part C, which identifies the considerations relevant to determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen’s visa.
General Guidance
The Preamble to Direction 65 sets out objectives and general guidance for the decision-maker and relevantly provides as follows:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
(2)…
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
6.2 General Guidance
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding … whether to revoke a mandatory cancellation under section 501CA ...
The principles referred to in the General Guidance are reproduced below and constitute a framework within which decision-makers must apply the considerations in Part A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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 should be allowed to come to, or remain permanently in, Australia.
(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 in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 8(1) of the Direction requires decision-makers to take account of the primary and other considerations relevant to an individual case. Paragraph 8(4) of the Direction states that “...Primary considerations should generally be given greater weight than the other considerations.” Paragraph 8(5) states that “...One or more primary considerations may outweigh other primary considerations.”
Paragraph 8(1) further explains that the considerations in Part A and Part C for existing visa holders, and in Part B for visa applicants, are different:
Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
Part C
Part C of the Direction (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s.501CA(4) of the Act.
The primary considerations that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa are set out in paragraph 13(2) of Part C of the Direction. They are:
(a) protection of the Australian community from criminal or other serious conduct;
(b) the best interests of minor children in Australia; and
(c) the expectations of the Australian community.
Paragraph 14(1) of Part C of the Direction requires that other considerations be taken into account, where relevant, including (but not limited to):
(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.
Protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of Part C of the Direction provides that:
When considering protection of the Australian community, decision-makers should 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.
In doing so a decision-maker is required by paragraph 13.1(2) to consider the seriousness of the person’s conduct to date and the risk to the Australian community should the person commit further offences or engage in other serious conduct.
Nature and seriousness of the person’s conduct to date
The Applicant’s police records were in evidence as part of the G Documents, and included records produced on summons from Victoria Police on 25 July 2018[5]. The Applicant objected to the admissibility of those records in so far as they referred to a matter listed in the County Court at Melbourne on 23 August 1984 which was subject to a nolle prosequi direction. The Respondent did not oppose the objection and did not seek to refer to that part of the record. I upheld the objection and that part of the record was not accepted into evidence. I have not had regard to it.
[5] G646-658.
The police records[6] show that the Applicant has a criminal record commencing in 1975. Of particular concern to the Tribunal are the multiple offences related to the possession and trafficking of drugs. The Applicant’s other offences include traffic violations (including a period of imprisonment for 3 months in 1987), discharge of a firearm, failing to answer bail, using threatening words in a public place, possession and use of gaming machines, possession of a weapon and failing to keep a register. I do not disregard these offences. Cumulatively, they evidence a lifestyle punctuated by various breaches of the law and suggest a general disrespect for the Australian community on the Applicant’s part. However, in assessing the primary consideration of protecting the Australian community from criminal and other serious conduct, I regard the Applicant’s involvement in drug trafficking as being of paramount importance.
[6] G34-35.
In assessing the nature and seriousness of the Applicant’s conduct I have had regard to the matters set out in paragraph 13.1.1 of the Direction. This paragraph gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct. Of those matters the most relevant to the Applicant’s application are those in paragraphs (c), (d), (e) and (g).
Paragraph (c) - the sentence imposed by the court for a crime or crimes
The evidence establishes that the Applicant was sentenced in the County Court of Victoria on 15 December 2011, in respect of 3 separate counts of trafficking a drug of dependence, to an aggregate period of imprisonment of 6 years and 3 months with a minimum non-parole period of 4 years and 6 months. The sentencing judge described this as a ‘substantial term of imprisonment’.
Paragraph (d) - the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
In passing sentence on the Applicant on 15 December 2011, the sentencing judge noted that the Applicant had “23 prior offences from 12 court appearances” as at that date. He had been convicted for possession of drugs on four occasions, on 12 November 1990, 12 June 1997, 18 October 2001 and 29 April 2005. He had been convicted of three prior trafficking offences. On 11 July 1990 he was fined $700 for trafficking heroin. On 19 June 1992 he was sentenced to 1 year and 9 months imprisonment with a minimum non-parole period of 12 months for trafficking heroin. On 18 April 2002 he was sentenced to 2 years and 6 months imprisonment with 2 years suspended for trafficking amphetamines. The sentence handed down on 15 December 2011 was for 6 years and 3 months imprisonment with a minimum non-parole period of 4 years and 6 months for trafficking cocaine, methamphetamines and cannabis.
In relation to the offences for which the Applicant was convicted on 15 December 2011, the findings of the court showed that the Applicant was involved in the trafficking of drugs on a commercial scale over a six-month period and that he had derived a substantial financial benefit from doing so. It was a trafficking operation on a commercial scale which the sentencing judge described as a ‘polysubstance drug dealership”.

On the basis of this evidence I am satisfied that, prior to his imprisonment in 2011, the Applicant was a frequent offender over many years in relation to the possession and trafficking of drugs of dependence. I am also satisfied that there was an increasing trend in the seriousness of his offending in relation to the trafficking of drugs, reflected in the increasing sentences imposed by the courts.
Paragraph (e) - the cumulative effect of repeated offending
The cumulative effect of the Applicant’s offending demonstrates a disregard and disrespect for the laws of Australia. The offences for which he was convicted in 2011 further demonstrate that the Applicant was prepared to engage in a commercial operation to make money at the expense of the well-being of his fellow citizens. As the sentencing judge observed “You dealt in misery for personal profit”.
Paragraph (g) - whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour)
The evidence shows that the Applicant was formally warned about the consequences of further offending in terms of his migration status on three occasions. On 3 October 2002 he was issued with a Notice of Intention to Consider Cancellation of his visa (NOICC) under s.501(2) of the Act. He was subsequently convicted and fined for the possession of cannabis on 29 April 2005. On 20 July 2006 the Department of Immigration and Border Protection again issued a NOICC and in response the Applicant made detailed submissions, arguing that his visa should not be cancelled. On 29 December 2006 a delegate of the Minister exercised their discretion not to cancel the Applicant’s visa. In doing so the delegate issued a formal warning to the Applicant that a fresh assessment would be made in the event he was convicted of any further offences. Despite these warnings, the Applicant was convicted on 15 December 2011 of three serious drug trafficking offences, committed over a six-month period from 31 January 2009 to 31 July 2009.
Having regard to the factors set out at paragraph 13.1.1 of Part C, I am satisfied that the Applicant’s conduct in trafficking drugs of dependence was, of its nature, a substantial threat to the welfare of individuals with whom he dealt and to the Australian community generally. This is particularly so for the offences for which he was convicted in 2011 which involved the trafficking of multiple drugs on a commercial scale. The sentences handed down by the court attest to the seriousness of the offences.
Risk to the Australian community should the person commit further offences or engage in other serious conduct
In considering whether the Applicant represents a risk to the Australian community I have had regard to the matters set out in paragraph 13.1.2 of Part C.
Paragraph 13.1.2(1) states that in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct, and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 13.1.2(2) requires decision-makers to have regard to, cumulatively:
(a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b) 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 re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm
It is beyond dispute that drug trafficking is a serious social problem. It has a very significant detrimental effect on the Australian community. It directly causes serious harm to individual drug users and indirectly results in social problems for the whole community. Should the Applicant engage in further criminal conduct, and particularly the trafficking of drugs of dependence, he will visit these harmful effects on the Australian community.
The likelihood of re-offending
The evidence shows that prior to his imprisonment in 2011, the Applicant had a

well-established pattern of re-offending in relation to the possession and trafficking of drugs. The penalties imposed by the courts escalated with each trafficking offence, indicating that the court regarded his repeat offending as increasingly serious.
The Applicant has invited the Tribunal to accept that he is a changed man who, if his visa is restored and he returns to the community, will no longer engage in criminal activity and in particular the drug-related activity which landed him in prison in 2011.
The Applicant points to a number of factors which he argues indicate that he has changed and is not at risk of re-offending. Those factors are:
(a)   his age (he is now 58 years old);
(b)   his participation in rehabilitation programs while in prison;
(c)   the deterrent effect of the long sentence he has endured;
(d)   his clean record while in custody both in prison and detention;
(e) the support of his family and especially his partner;
(f)   his desire to be a good father and grandfather; and
(g)   his remorse.
Ms Matthews gave expert evidence as to the effect of the Applicant’s age and the effect of his long sentence on the risk of him re-offending. She opined that short sentences around 6 months have little deterrent effect, but for sentences of 3 - 5 years the recidivist rate falls from 37.1% to around 12%. She attributed this to two principal factors: firstly the deterrent effect of a long sentence; and secondly the availability of rehabilitation opportunities for longer serving prisoners. She gave evidence that re-offending for men declines markedly after the age of 50 due primarily to the lowering of their testosterone levels.
Ms Matthews also pointed to other factors to support her opinion that the Applicant was at low risk of re-offending. She referred to the Applicant’s participation in rehabilitation programs in prison and especially in relation to drugs and gambling. She placed reliance on the Applicant having been drug-free while in custody.
Ms Matthews also echoed the views of the other witnesses that the Applicant’s ties to his family, his relationship with his partner, and particularly his relationship with his daughter Alexia and her older sisters were all positive factors in making it unlikely that he will

re-offend. The Applicant stressed these factors and particularly his desire to fulfil his role as a father and grandfather to explain why he would not re-offend. The Applicant also stressed his participation in drug and gambling rehabilitation programs and the fact that he has been drug-free for six to seven years, a claim he said was supported by urine testing in prison.
I have given careful consideration to the matters raised by the Applicant and the witnesses called on his behalf.
I accept that the Applicant is a caring father to his daughters and, within the limitations imposed on him by his incarceration, a supportive partner to Ms Galileos. Notwithstanding his criminal conduct, I am satisfied that the Applicant cares about his family and I believe him when he says that he wishes to fulfil his role as a father and grandfather and as a supportive son to his aged mother. However, the evidence clearly shows that this was the case before his imprisonment in 2011.
These matters were raised by his sentencing judge in 2002[7]. At the time of his offending in 2009, which resulted in his imprisonment in 2011, his family responsibilities were arguably greater than they are now. In 2009 his youngest daughter was an infant and his four older daughters were between 11 and 17 years old; yet his concern for his family did not deter him from engaging in the extensive criminal activity described by the sentencing judge in 2011, and involving his partner in his offending to the point where she was convicted as a co-offender and sentenced to 20 months imprisonment.
[7] G277-282.
I do not accept the Applicant’s submission that his role in his family or the support he enjoys as a member of his extended family are factors which diminish the risk that he will re-offend.
I accept the Applicant’s evidence that he has been drug-free during the entire time that he has been incarcerated and that he has engaged in rehabilitation programs for drugs and gambling. I do not give any significant weight to these factors because I am not satisfied on the evidence that the Applicant’s drug-taking and gambling played a significant part in his offending in 2009.
The evidence regarding the extent of the Applicant’s drug-taking prior to 2011 is unclear. He reported to Ms Matthews being drug-free for several years in the 1990’s[8]. Bernard Healy, the clinical psychologist upon whom the Applicant relied in his submissions to the Department in response to the NOICC in 2006, reported that the Applicant had not used illicit drugs in the last 10 years[9]. There are no admissions in the statutory declarations sworn by the Applicant in 2006 that he had a drug addiction or that it was a causative factor in his offending. In any event, the Applicant’s offences in 2009 were related to a lucrative commercial drug selling undertaking. The sentencing judge in 2011 calculated that the Applicant had grossed $364,000 from the sale of drugs in the period from 31 January 2009 to 31 July 2009[10]. This was clearly not a situation of a drug-addicted person engaging in trafficking to support their habit.
[8] Exhibit A1 at page 4 line 33.
[9] G221.
[10] See G40 at [12].
The only evidence that the Applicant had a substantial gambling problem at the time of his 2009 offences is a brief statement in a report prepared by Mr Ian Joplin, a forensic psychologist, in October 2016[11]. Evidence was not led by the Applicant to explain how a gambling problem contributed to his offending. The Applicant makes no mention of it in his witness statement. The only reference to gambling in the material tendered by the Applicant in these proceedings is in Ms Matthews’ report at page 5[12] where she states:
Mr Leone further reports developing a gambling problem associated with cocaine use. “It was not to(sic) drastic, but it felt like an addiction”
[11] G136-141 at 138.
[12] See Exhibit A2 at page 33.
I do give some weight to the Applicant’s clean record in prison and detention and his participation in other rehabilitative programs, particularly the Peer Supporter program, but the Applicant has served time in prison previously and there is no evidence that he behaved any differently on those occasions.
I accept the expert opinion of Ms Matthews regarding the statistical likelihood that the risk of reoffending declines with age, especially after 50, and after a lengthy sentence. I give this evidence limited weight as it is not correlated with the particular circumstances of the Applicant. I give less weight to the opinion of Ms Matthews regarding the Applicant’s actual circumstances. Her opinion was based on a single telephone interview and review of a limited number of documents. In giving her evidence, Ms Matthews was argumentative and defensive at times during cross-examination and did not present as an impartial witness.
I also accept that the Applicant has a reasonable prospect of employment if he were to return to the community. He has experience working in restaurants and has renewed his forklift licence. I note that reliance was placed on an offer of employment with a bus company contained in a letter dated 8 June 2016[13]. The offer was only confirmed in evidence by the Applicant’s brother who was not in a position to offer employment. The author of the letter was not called. I give this ‘offer’ limited weight
[13] G159.
Finally, there is the issue of the Applicant’s remorse. It is clear from the Applicant’s evidence that he regrets having gone to prison and having been separated from his family. However, he only briefly addresses the effects of his offending in his witness statement[14] and expresses remorse briefly, in the most general of terms. This is to be considered in light of the sentencing judge’s following remarks[15]:
You have no remorse for your conduct and of course do not attract the benefit in sentencing accompanying pleas of guilty. I am not punishing you for the brazen lies you told under oath at your trial. Those lies however are relevant to your prospects for rehabilitation which are clearly not good…
[14] Exhibit A2, page 23 at [16].
[15] G37-54 at [33].
The Applicant has consistently failed to accept responsibility for his criminal conduct and admit guilt. He has pleaded not guilty to each of the trafficking offences of which he has been convicted. He maintained in statutory declarations sworn in August 2006[16] and October 2006[17] that he was innocent of offences for which he had been convicted. He persisted with his denials under cross-examination at the hearing.
[16] G308-317.
[17] G420-424.
On the basis of this evidence, I am not satisfied that the Applicant takes responsibility for his criminal conduct nor do I accept that he is motivated by any genuine remorse to not

re-offend in the future.
Taking account of all the evidence, I am satisfied that there is a significant risk that the Applicant will re-offend if the cancellation of his visa is revoked.
Having regard to this risk and the nature of the harm that would result from the Applicant reoffending I find that the primary consideration of protecting the Australian community weighs strongly in favour of refusing to revoke the cancellation of the Applicant’s visa.
Best interests of minor children in Australia
Paragraph 13.2 of Part C of the Direction requires the Tribunal to determine whether revocation is, or is not, in the best interests of minor children as one of the primary considerations. This reflects the requirement of the United Nations Convention on the Rights of the Child that administrative decision-makers treat the best interests of children as a primary consideration[18].
[18] Minister of State for Immigration and Ethnic Affairs v Ah Hin Teoh (1995) 183 CLR 273.
The Respondent has conceded in submissions that this consideration weighs in favour of the Applicant.
In this case, the minor children are the Applicant’s daughter, Alexia, who is 11 years old; and the Applicant’s three grand-children, all under 5 years of age.
I am required by paragraph 13.2(3) of the Direction to give individual consideration to the best interests of each child “to the extent that their interests differ”, in having regard to the factors set out in paragraph 13.2(4).
The Applicant called evidence from Ms Angela Kay, a psychologist with extensive experience working with children. Ms Kay provided a written report[19] and gave evidence at the hearing. She has had an involvement with the Leone family for over two years, having supported Ms Galileos in parenting Alexia’s older sister, Sara, and Alexia. Ms Kay opined that Alexia is relatively immature for her age and at a vulnerable time in her life as she is about to enter adolescence and start secondary school. She diagnosed Alexia as suffering separation anxiety disorder and generalised anxiety disorder as a result of her separation from her father. Ms Kay added that while Alexia has had frequent telephone contact with the Applicant while he has been in prison and detention, she would benefit from direct inter-personal contact. She further opined that should the Applicant be deported to Italy, it would have a dramatic adverse effect on Alexia.
[19] Exhibit A2 at page 39.
In considering the best interests of Alexia, I have had regard to the considerations set out in paragraph 13.2(4) of Part C. I am satisfied that there is a strong father-daughter bond between the Applicant and Alexia, but I note that there has been a long period of absence. Alexia has been apart from her father for the last seven years. During that time, their contact has been confined to regular telephone discussions and occasional visits, which have become less frequent since the Applicant has gone into detention. In reality, the main burden of parenting has fallen on Alexia’s mother who, according to Ms Kay, has done an excellent job of raising Alexia essentially as a single parent. This means that the Applicant has had a limited ability to play a parenting role to date, but he would have an opportunity to play a positive parenting role in the future as Alexia progresses through adolescence.
It appears that the Applicant’s prior offending has not had a significant impact on Alexia. She was only an infant at the time of the offences in 2009. However, if the Applicant were to re-offend or relapse into drug use in the future it would be very likely to negatively impact Alexia, now that she is older. While Alexia has become accustomed to being separated from her father, I am satisfied that this is tempered by her expectation that they will eventually be reunited. I accept Ms Kay’s assessment that it will have a significant effect on Alexia if the Applicant is deported. The absence of the Applicant from Alexia’s life is to some extent compensated by the close support of her mother and older sister, Sara, as well as members of her extended family. There is no evidence that Alexia has suffered or experienced any abuse or neglect or suffered any trauma as a result of the Applicant’s conduct.
Taking all of these matters into account, I am satisfied that it would be in Alexia’s best interests for the Applicant’s visa cancellation to be revoked. While there would be opportunities for ongoing contact with the Applicant if he were deported to Italy and while Alexia would have strong support from her family and access to counselling by Ms Kay, I am satisfied that the impact on Alexia would be significant at this stage of her life. I accord this factor significant weight.
As to the Applicant’s three grandchildren, they were all born while the Applicant was in prison and so have no direct involvement with him. They are also young and have the support of their parents. It would no doubt be to the advantage of the grandchildren to have direct contact with their grandfather but I am not satisfied that the interests of the three grandchildren should be accorded significant weight.
Expectations of the Australian Community
The third consideration listed in the Direction is the expectations of the Australian community. In this regard, paragraph 13.3(1) of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection[20], Mortimer J said in relation to this direction that:
...this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is a member, wish to articulate community expectations, whether or not there is any objective basis for that belief.
[20] [2017] FCA 1466 at [76].

In addition, the Tribunal is required to take into account the general principles stated in paragraph 6.3 of the Direction. These include:
(a)the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes (6.3(2));
(b)non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia (6.3(3)); and
(c)in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (6.3(4)).
However, paragraph 6.3(5) of the Direction recognises that Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age. In addition, paragraph 6.3(7) recognises that the length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled.
The expectation of the Australian community is to be ascertained by considering the views of reasonable members of that community, when fully apprised of the relevant facts.[21] Such members would not be vengeful and want to see visa cancellation misused to inflict further punishment[22].
[21] Re Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336 at [36], see also Re Jupp and Minister for Immigration and Multicultural and Indigenous Affairs [2002] AATA 458.
[22] ReDo and Minister for Immigration and Border Protection [2016] AATA 390 at [23].
I accept that reasonable persons would be sympathetic to the Applicant, having regard to the fact that he has lived in Australia since January 1973. However, I have no doubt that this sympathy would be tempered by the Applicant’s continuing record of criminal offending, beginning in 1975 shortly after his arrival. Although there is some evidence presented by the Applicant regarding his support of charities[23] and his supportive attitude to residents of the boarding houses he operated, there is little to suggest that he has made a positive contribution to the Australian community which would balance the negative effects of his repeated offending.
[23] G385-387.
I also have no doubt that reasonable members of the Australian community, fully appraised of the Applicant’s offences, would have little or no tolerance for his repeated conduct in trafficking drugs, particularly in the quantities for which he was convicted in 2011. The Australian community is acutely aware of the dangers of such conduct. I am equally satisfied that reasonable members of the Australian community would have little tolerance for the Applicant’s repeated breaches of Australian laws generally.
On the other hand, I have no doubt that fair-minded Australians would be sympathetic to the position of the Applicant’s partner and his daughter Alexia. However, I am satisfied that those interests would not outweigh the concerns of fair-minded people regarding the risks to the community of repeated offending by the Applicant.
Having regard to these matters, I am satisfied that because of the nature and extent of the Applicant’s offending, the Australian community would expect that the cancellation of his visa should not be revoked. I find that this consideration weighs heavily in favour of not revoking the cancellation.
OTHER CONSIDERATIONS
Paragraph 14(1) of Part C of the Direction requires that other considerations be taken into account, where relevant.
International non-refoulement obligations
This case does not raise issues of Australia’s non-refoulement obligations and there was no evidence or submissions provided in this respect.
The strength, nature and duration of ties
The Applicant has a deep family connection with Australia. He has lived here since 1973, all of his adult life. He has immediate family and an extended family in Australia. He has very limited ties to Italy. He has not visited Italy since he came to Australia and he has few relatives there. He speaks a local dialect but little formal Italian. I give this factor some moderate weight. If the cancellation of the Applicant’s visa is not revoked and he is deported to Italy, it will not be an easy transition for him.
Impact on Australian business interests
This factor is not relevant.
Impact on victims
While one might speculate generally on the harm resulting from drug trafficking, there is no evidence of the effect of the Applicant’s conduct on the victims of his crimes. It is inappropriate to rely on speculation. I do not have regard to this factor.
Impact on family members
The interests of family are not a primary consideration under the Direction, but I accept that a refusal to revoke the cancellation of the Applicant’s visa would be disadvantageous for the Applicant’s partner, his adult children, his aged mother and other members of his family. I give this consideration some weight.
CONCLUSION
In Gaspar v Minister for Immigration and Border Protection[24] North ACJ elaborated on how to approach the exercise of the discretion under s.501CA(4)(b)(ii):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
[24] [2016] FCA 1166 at [38].
Weighing each of the factors for and against revoking the cancellation, I am satisfied that the primary considerations of protecting the Australian community and the expectations of the Australian community outweigh any other considerations and favour the exercise of the discretion under s.501CA(4) not to revoke the mandatory cancellation of the Applicant’s visa.
I am not satisfied that there is another reason why cancellation should be revoked as contemplated by s.501CA(4)(b)(ii).
DECISION
The Tribunal affirms the decision under review.

I certify that the preceding 90 (ninety) paragraphs are a true copy of the reasons for the decision herein of Member R. West

......................[sgd].................................................
Associate
Dated: 10 September 2018

Date of hearing: 31 August & 3 September 2018

Counsel for the Applicant: Ms Georgina Costello

Solicitors for the Applicant: WLW Migration Lawyers

Advocate for the Respondent: Mr Ned Rogers

Solicitors for the Respondent: Australian Government Solicitor

[2018] AATA 3363

10 September 2018

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Jurisdiction

Date of hearing:	31 August & 3 September 2018
Counsel for the Applicant:	Ms Georgina Costello
Solicitors for the Applicant:	WLW Migration Lawyers
Advocate for the Respondent:	Mr Ned Rogers
Solicitors for the Respondent:	Australian Government Solicitor