LMCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 4967

LMCZ and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 4967 (10 December 2020)

Division:GENERAL DIVISION

File Number(s):      2020/5828

Re:LMCZ

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member A Poljak

Date:10 December 2020

Place:Sydney

The Tribunal sets aside the decision under review, being the decision of a delegate of the respondent dated 17 September 2020, and in substitution, decides to revoke the mandatory cancellation of the applicant’s Class BF transitional (permanent) visa.

.............................[SGD]...........................................

Senior Member A Poljak

CATCHWORDS

MIGRATION – non-revocation of mandatory cancellation of Class BF transitional (permanent) visa – citizen of Germany – where visa mandatorily cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record – domestic violence – assault – contravene AVO – drug/alcohol addiction – mental health issues – whether there is another reason why the original decision should be revoked – Direction No. 79 – primary considerations – protection of the Australian community – best interests of minor children in Australia – expectations of the Australian community – other considerations – strength, nature and duration of ties to Australia – extent of impediments if removed – decision under review set aside and substituted

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501, 501CA

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

SECONDARY MATERIALS

Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member A Poljak

10 December 2020

1. Mr LMCZ, the applicant, is a citizen of Germany. He arrived in Australia as a one year old infant on a Class BF transitional (permanent) visa (visa) and has remained in Australia for over 50 years.  

2. The applicant has an extensive criminal history dating back to 1985. On 21 May 2019, the applicant was convicted by the NSW Local Court in Parramatta of assault occasioning actual bodily harm (DV)-T2 and contravene prohibition/restriction in AVO (Domestic) (the offences). For the offences, the applicant was sentenced to an aggregate term of imprisonment of 12 months.

3. On 2 August 2019, the applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Migration Act 1958 (Cth) (the Act) (mandatory cancellation decision). The applicant sought revocation of the mandatory cancellation decision. On 17 September 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (the Minister) decided not to revoke the mandatory cancellation decision. This is the decision under review in these proceedings.

   Relevant legislative provisions

4. Subsection 501(3A) of the Act provides that the Minister must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of paragraphs 501(6)(a) and (7)(c).

5. Subsection 501(6) defines the character test. Relevantly, a person does not pass the character test if the person has a ‘substantial criminal record’ as defined by subsection 501(7). Paragraph 501(7)(c) provides that for the purposes of the character test, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.

6. Subsection 501CA(4) of the Act provides that the Minister may revoke the original decision if the Minister is satisfied that the person passes the character test as defined by section 501; or that there is another reason why the original decision should be revoked. This is a discretionary power.

7. A decision under subsection 501CA(4) of the Act involves an assessment and evaluation of the factors for and against revoking the mandatory cancellation decision. A determination under subsection 501CA(4) must be carried out in accordance with any written directions given by the Minister under the Act: subsection 499(2A).

8. The Minister has made such written directions under subsection 499(1) of the Act, in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction No. 79). Therefore, in making a determination under subsection 501CA(4) of the Act, the decision-maker must comply with Direction No. 79.

   THE CHARACTER TEST

9. It is not in dispute that the applicant fails the character test under paragraph 501(6)(a) of the Act. The applicant has a substantial criminal record as defined by paragraph 501(7)(c) of the Act.

   DIRECTION NO. 79

   10.Direction No. 79 provides that the decision is to be approached within the framework of the Principles in paragraph 6.3 (Principles). These Principles are:

   (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 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 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.

   11.Informed by the Principles, the decision-maker must have regard to Part C of Direction No. 79, which identifies the relevant considerations for determining whether to exercise the discretion to revoke the mandatory cancellation decision. Paragraph 13(2) provides that the primary considerations are:

   (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.

10. The decision-maker must also consider other considerations insofar as they are relevant. Paragraph 14(1) states that these include (but are 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.

    PRIMARY CONSIDERATION (A) – PROTECTION OF THE AUSTRALIAN COMMUNITY FROM CRIMINAL OR OTHER SERIOUS CONDUCT

11. In determining this primary consideration, I note that I must have regard to the matters set out in paragraph 13.1 of Direction No. 79, namely:

    (1)  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 by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…

    (2)  Decision-makers should also 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.

    (a) The nature and seriousness of the applicant's conduct to date

12. Paragraph 13.1.1 of Direction No. 79 provides that in considering the nature and seriousness of the applicant’s criminal offending or other conduct, a decision-maker must have regard to a number of factors, relevantly in this matter:

    (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 violent nature against women or children are viewed very seriously, regardless of the sentence imposed;

    (c)…

    (d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;

    (e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; and

    (f)The cumulative effect of repeated offending.

13. The applicant’s criminal history is extensive and is aptly summarised by the delegate in the decision under review. There does not appear to be any dispute about the applicant’s criminal offending or the accuracy of the summary. I have included the relevant aspects below.

14. The applicant commenced offending in Australia in 1985 at the age of 17 years. He was admonished for the offences of wilful damage and attempting to steal from a person. During the years 1987 to 1998, the applicant was convicted of numerous offences including driving offences, enter with intent to commit felony, administer/possession of prohibited drugs, assault, malicious damage, theft and breaches of recognisance. He was variously penalised with fines, licence disqualification, community work orders, periodic detention and supervision orders.

15. In 2003, the applicant was convicted of the offences of supply a prohibited drug, restricted substance sold by non-wholesaler and bring/introduce small quantity of drug into detention centre. He was sentenced to nine months imprisonment for each charge. In 2003 and 2004 the applicant was also convicted of numerous offences including possession of a prohibited drug, being in custody of a knife in a public place, and various driving offences for which he received fines and licence disqualifications. In 2005 he was again convicted of possess prohibited drug, for which he received a fine. Two months later, he was convicted of fail to appear in accordance with bail undertaking and possess housebreaking implements. He received a suspended sentence of 12 months imprisonment and was placed on a good behaviour bond, with further orders to undertake programs relating to drug and alcohol rehabilitation, as well as grief and loss counselling. In 2006 he was again convicted of driving whilst disqualified for which he was placed on a supervised good behaviour bond, with directions to undertake counselling and rehabilitation programs.

16. There was a break in the applicant’s offending until July 2011 when he was convicted of use offensive language in/near public place/school, for which he was penalised with a fine and court costs.

17. In October 2012, the applicant was convicted of common assault-T2. The NSW Police Facts Sheet records that the applicant entered a Woolworths to confront management about an incident which occurred earlier in the day with his wife. After having a conversation with the manager, the applicant exited the supermarket however once outside the store he has stopped, looked towards the victim and produced a knife. The knife was described as being similar to that of a butcher’s knife with a 20-centimetre blade. The victim stated that the applicant held the knife and said, ‘I'll see you when you knock off this afternoon’. The applicant then left the premises. When the police attended the applicant’s premises in relation to the incident, he freely admitted to being at the supermarket and threatening the manager. As a result of the conviction, the applicant was placed on a good behaviour bond for 18 months.

18. In June 2013 the applicant was convicted of armed with intent to commit indictable offence-T1 and stalk/intimidate intend fear of physical/mental harm-T2. According to the NSW Police Facts Sheet, the applicant entered a suburban restaurant holding a 40‐50-centimetre bladed machete and began ‘gesticulating wildly’. He pointed the machete at staff members and swore at them before leaving the premises. The applicant was sentenced to eight months imprisonment on each charge, suspended.

19. In June 2014, the applicant was convicted of restricted substance sold by non-wholesaler, for which he was sentenced to two months imprisonment. He was also found to be in breach of the conditions pertaining to his suspended sentence imposed in June 2013. He was accordingly sentenced to eight months imprisonment with orders to undertake rehabilitation programs.

20. From 2014 to 2018 the applicant accumulated other convictions for affray (19 June 2014), drinking alcohol in a public area (13 August 2015), being in custody of suspected stolen goods (13 August 2015), possessing prohibited drug (16 & 28 January 2016), common assault committed as domestic violence (13 November 2018), contravention of an apprehended domestic violence order (13 November 2018), failing to appear in accordance with bail (13 November 2018), and assault occasioning actual bodily harm in company of others (13 November 2018). For these offences he was variously fined, placed on a community correction order with supervision and sentenced to imprisonment for one month.

21. On 13 November 2018, the applicant was convicted of the offence assault occasioning abh in company of other(s)-T2, which occurred on 25 May 2018. The NSW Police Facts Sheet states that the applicant and a co-offender were involved in a confrontation with a cyclist which escalated into a physical altercation. When interviewed by police, the applicant said the cyclist nearly ran him over on his push bike. He said, ‘He attacked me, I attacked him back’. As a result of the incident the victim sustained small lacerations to his lip, right ear, right middle finger, right thumb, right wrist, neck, soreness to his right wrist and right thigh. The victim’s t-shirt was torn, and the collar ripped completely off. The victim’s chain from around his neck was also missing, believed to have been inadvertently ripped from his body when his shirt was grabbed.   

22. On 13 November 2018, the applicant was also convicted of common assault (DV)-T2. According to the NSW Police Facts Sheet, the offence was committed during an argument at home between the applicant and his partner KW on 9 August 2018. The Police Facts state:

    …the [applicant] has thrown a packet of chips at [KW] before hitting her around the head area a number of times. As a result, [KW] put her head between her arms to try and defend herself from being hit any further.

    Whist this was happening [KW] was calling out and the [applicant] continued to hit her. [KW] managed to break away and run to the back-door area where she has called out for help. As she got to the back-door area, the [applicant] has placed his hand around her mouth preventing her from calling out. The [applicant] has then grabbed [KW] and pulled her back into the villa before throwing her on the mattress that was located behind the front door. [KW] continued to scream as the [applicant] was doing this. Whilst lying on the mattress, the [applicant] has got on top of [KW] and placed his hands around her throat area.

23. As a result of the conviction, the applicant was subject to a provisional apprehended domestic violence order (AVO).  However, the day after the incident the applicant attempted to contact KW via phone, and he was deemed in breach of the AVO and his bail conditions.

24. On 12 January 2019, the applicant was convicted of contravene prohibition/restriction in AVO (Domestic), for which he was placed on a community correction order for 12 months. The AVO was in place to protect KW. The NSW Police Facts Sheet states:

    The [applicant] was arrested and cautioned in relation to breaching the apprehended violence order. Whilst speaking to the [applicant], he admitted to knowing about the order but stated he was trying to give  [KW] some money and organise visits with his child although their child is a ward of the state and does not reside with either party.

    Police spoke to [KW] who stated the [applicant] had just been at her home. She said she had lent him money to which he was coming to repay. [KW] was unwilling to provide a statement to Police and did not believe he was doing anything wrong by attending her home.

    27.Most recently, on 21 May 2019, the applicant was again convicted for contravene prohibition/restriction in AVO (Domestic) and assault occasioning actual bodily harm (DV)-T2. For the offences he was sentenced to 12 months imprisonment with a non-parole period of 7 months with conditions. According to the NSW Police Facts Sheet, the offences occurred on 1 April 2019, when the applicant had an argument with KW. The fight escalated and became physical. The applicant punched KW in the face numerous times. KW tried to escape to the bedroom, but the applicant followed her and resumed punching her in the face. She tried to defend herself by placing her hands on the applicant’s neck, but he retaliated and bit her hand causing a 1-centimetre laceration. As a result of the punches, KW sustained bumps and red marks on her nose and cheeks. A member of the public heard the altercation and contacted the police, who arrived a short time later. The police found the applicant to be well‐affected by alcohol when they arrived. He was conveyed to the police station where he began threatening self‐harm. He was handcuffed and conveyed to hospital for a mental health assessment. Upon release from hospital a few days later he was formally charged.

25. The nature of the applicant’s offending conduct, which has involved violence and domestic violence, should be viewed very seriously regardless of the sentences imposed. This is compounded by the breadth of the applicant’s offending over such an extensive period, spanning some 34 years.  

    (b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct

26. In assessing whether the applicant represents an unacceptable risk of harm to the Australian community, regard must be had to paragraph 13.1.2(1) of Direction No. 79. This paragraph provides that I must 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).

1. The applicant has been found guilty of violent offences and there could be serious consequences should such offending be repeated, particularly since the applicant’s criminal conduct has involved violence against a woman. The nature of the harm caused if the applicant were to reoffend is likely to be very serious and involve physical and psychological harm to members of the Australian community.

2. The applicant suffers from mental health, drug and alcohol problems. It appears that he has had these issues from a very young age and all of which remain relatively untreated. He suffers from a workplace injury and is on the disability support pension. He was also involved in a motor vehicle accident which caused him serious injuries. The evidence as to the applicant’s medical prognosis for his mental health, addiction issues and physical issues is scant and unsatisfactory. This is most likely a product of the applicant’s traumatic and shocking history, coupled with financial limitations and lack of a support network. Aspects of his life are captured in sentencing remarks, a handful of pre-sentencing and psychological reports as well as the applicant’s own evidence; most of which I have summarised below.

3. In sentencing remarks in June 2014, Magistrate Quinn of the NSW Local Court in Burwood acknowledged the applicant’s shocking background. The evidence on sentencing was that the applicant commenced using drugs at the age of 12 years, his parents were alcoholics and that his mother used to feed him Valium as a child and abandoned him in the home to go out and drink. The applicant was homeless by the age of 14 or 15 years and was using heroin around the age of 15 or 16 years. The applicant has only once attempted rehabilitation for his addiction issues in 2000.  

4. After the applicant’s offending conduct in 2018, he underwent an assessment by Mr Philip Gorrell, psychologist and social worker. The outcome of the assessment is detailed in a report dated 12 October 2018. In the report, Mr Gorrell detailed the applicant’s familial, physical and personal history. Mr Gorrell noted at the outset that he was previously employed as a youth worker in the Charlton Youth Refuge, Anglican Home Mission Society, Ashfield and that the applicant was one of the adolescents in the refuge’s care. Mr Gorrell advised that he remembered the applicant as a thirteen-year-old adolescent who came from ‘a dysfunctional family where his parents had separated and neither wanted him nor were prepared to take responsibility for him’. He reported that there had been no contact with the applicant since that time, some 35 years ago.

5. The applicant appears to have had a traumatic and very difficult life from a young age. Mr Gorrell detailed in the report that the applicant was raised in numerous refuges from the age of 10 years. He also spent significant time in various juvenile corrections facilities. He stated he was sexually abused by a Catholic brother. At the age of 17 years, the applicant commenced regularly using illicit substances. He became addicted and commenced committing drug related offences to support his habit. He also became an alcoholic. Mr Gorrell stated that all these factors have led the applicant to ‘becoming homeless and as a homeless person he does not medically look after himself and lives only day to day’. He also noted that the applicant is the second eldest of three siblings, one sister having died of a heroin overdose and the other he has not had contact with since 2007. His father died of a heart attack in 1994 and his mother committed suicide in 1996 shortly after the death of his sister.

6. Mr Gorrell reported that the applicant’s life was made more challenging by the disappearance of his daughter KB, who went missing from foster care in 2012 at the age of 14 years. The applicant also suffered a motor vehicle accident in 2016, in which he was run over by a motor vehicle and admitted into a coma for ten days. Mr Gorrell stated that the applicant could not afford further medical tests after the accident because he was homeless and opined that he may have suffered a traumatic brain injury. Regarding the applicant’s overall mental health, he diagnosed the applicant with severe depression and moderate anxiety and opined that he needed treatment. Mr Gorrell also noted in the report that the offence committed by the applicant in August 2018 occurred in the context of him being psychiatrically unwell and a scheduled inpatient of a psychiatric facility.

7. Mr David Plowright, a community corrections officer, provided a pre-sentence report dated 17 August 2018. He reported that Corrective Services NSW records indicate that the applicant’s response to supervision had been unsatisfactory in the past with numerous breach reports being submitted due to re-offences, failure to adequately address ongoing substance abuse and mental health issues, and failure to maintain contact with Community Corrections. Both his periodic detention and home detention orders, as well as numerous supervised orders, were revoked. Mr Plowright recorded that the applicant described his upbringing as tumultuous and that he suffered physical and emotional abuse as a child. He noted that the applicant disclosed issues with post traumatic distress disorder (PTSD), anxiety and depression and that he was currently taking medication. It was also noted that Corrective Services NSW records indicated that the applicant was diagnosed with narcissistic personality disorder in 2014. Mr Plowright found that according to the ‘Level of Service Inventory – Revised actuarial risk/needs assessment tool’, the applicant was assessed at a high risk of re-offending. He said the applicant’s lack of empathy toward his victim and his self-concern regarding deportation appeared to demonstrate a failure to fully grasp the seriousness of his offending conduct.

8. The Reverend Dr James Collins of the Parish of Burwood provided a statement in support of the applicant dated 17 June 2018 and gave evidence orally at hearing. In his statement he said that the applicant was recently baptised, and he believed that this had come from a genuine desire to live a better life. The Reverend advised that he had known the applicant for a year and that over that time he had sought to live a better life and that with help and encouragement he believed that applicant would continue to get his life back together. At hearing, the Reverend confirmed that he has had a close association with the applicant over the past two years. He said that the applicant lived with him for a while and he has gotten to know him well. The Reverend observed that the applicant’s main difficulties were a result of his daughter’s disappearance and that he hasn’t coped well due to the grief and shock. He said that the applicant was now in a position to contribute to society and he had observed a willingness on the applicant’s part to take support and seek help.

9. Mr David Plowright, a community corrections officer, provided another pre-sentence report dated 20 May 2019. He recorded that the applicant had been engaged with a mental health service provider since 2019 and that the applicant expressed a willingness to engage in intervention to address his issues with alcohol, anger management and unresolved grief. Regarding insight, Mr Plowright said the applicant appeared to acknowledge the impact his offences have had on the victim as well as the ramifications his actions could have on his relationship with his children. He noted that the applicant was most recently supervised on a 18-month community corrections order expiring 12 May 2020 and his response to the supervision was satisfactory. The applicant regularly attended interviews and was active in his engagement with interventions.

10. The report of Mr Plowright dated 20 May 2019 is far more positive than his earlier report dated 17 August 2018. However, the more recent report still maintains that the applicant’s risk of re-offending is high. I do note however, that Mr Plowright does not appear to acknowledge the applicant’s sobriety and that he has been drug free for at least four years. The report is not contemporaneous and fails to address the applicant’s efforts and attitude towards rehabilitation since May 2019 and since the mandatory visa cancellation decision and the applicant’s time in immigration detention.

11. The applicant has completed several programs while on remand and in detention. Namely, a Remand Domestic Abuse Letter of Completion dated 13 May 2019, shows that the applicant completed six domestic abuse sessions; he received a Certificate of Acknowledgment on 2 May 2019, from the John Morony Correctional Centre for demonstrating a positive attitude with a willingness to participate in a polite respectful manner; he attended the Health Survival Program on 29 April 2019; and successfully completed the Save-A-Mate Alcohol and Other Drugs Emergencies Course with CPR Demonstration on 24 April 2019. At hearing, the applicant explained that he would have liked to have undertaken more courses while in immigration detention, but this has been very difficult given the current COVID-19 restrictions in place.

12. In sentencing remarks for the most recent convictions on 21 May 2019, Magistrate Funston of the NSW Local Court in Parramatta acknowledged that the applicant’s life had been very hard. He stated that he was very impressed with how the applicant was going with programs he was undertaking and stated that the sentences were structured in a way ‘that is not crushing for you’, but said ‘I cannot promise you at all that immigration will not take a course’.

13. While in Villawood Immigration Detention Centre, the applicant’s record includes two minor incidents occurring in January and February 2020; contraband found during room search and made verbal threats towards detention services officer.

14. In a statement dated 25 November 2020, the applicant addressed his rehabilitation. He said:

    My life has been a constant battle & struggle because of my heavy drug addiction which lead me down the wrong path into doing things which I am extremely ashamed of & very remorseful, & because of the changes & priorities I have made, I have taken great steps to change my life for the better.

    I have already started those big steps in a dramatic way & with the help & support my family & groups such as NA AA CROYDON MENTAL Father James Collins. The. [IE]. [LG] as well as the support of my partner [KW].

    Because of my biggest fear of losing my family & home, which I might add is the only home I have ever known in the entirety of my lifetime.

    But at the same time for the last several months I have been here in VILLAWOOD DETENTION FACILITY has been really hard & very horrifying & a total reality check.

    Not only on me personally mentally as well as physically, but also my family & support group as well.

    So for me to get better to turn my life around, I have been continuously working on my rehabilitation endeavours whilst I have been incarnation in prison as well as whilst residing in this detention facility, so as you could clearly see, I haven't been sitting around doing nothing. I have had to make many changes in my life & hopefully all for the better.

    …

    I have also applied for an online course With family intermediary counselling as well.

    I have been making great changes in my life, i am drug free & have been drug free now for quite some time now & further I intend to greatly continue my ongoing inner struggle.

    I have also been doing CBT therapy and have a great support system, & if given the opportunity, I will take it with both of my hands & never let it go because my stupidity ever again & further I would make sure that I become an asset to my family as well as this country that has given me & my whole family the opportunity that we have here to this country. Further I will always be full of guilt and remorse for my everyone that I have ever hurt because of my previous indescretions in life up until a few years back when I started my road to recovery. This whole experience has opened my eyes to the prospect of losing my home and has shaken me to my core...

15. At hearing the applicant stated that he has been clean for four years from illicit substances, namely heroin, methadone and pills. He said he has been attending Alcoholics Anonymous (AA) and Narcotics Anonymous (NA) and working on himself. The applicant said he feels like he now has the tools to deal with his emotions and that he will not re-offend. He acknowledged that there was a pre-sentence report which stated his risk of re-offending was high but said that it did not consider the growth and changes he had made over the past four years. The applicant spoke about his sobriety and said that it required maintenance. He said that he was learning positive tools from the ‘life-time program’ to help him deal with triggers as they arise. The applicant spoke highly of KW and expressed dismay at the pain he had put her through. He displayed disbelief at what he had done and wanted to repair his relationship with her, should he be released from detention.

16. The applicant was previously warned about the potential of losing his visa and the seriousness of his repeat offending in a letter dated 25 August 2014. At hearing the applicant said he did not take the warning seriously at the time because he did not believe his offending would warrant the cancellation of his visa. He also believed he would not re-offend but his addiction took over. When pressed about what would be different this time around, the applicant was adamant that the experience of facing imminent deportation to Germany was a serious reality check. He was extremely worried about his kids and the fact that he could not be there for them. Despite his children being in foster care, he said he wanted to be a part of their lives and make them proud. He said he did not want to lose his home and wanted to make his life better. The applicant expressed a desire to help others by stating that in the future he wanted to use his life experiences to ‘help young blokes not to act like he has’.

17. Given its nature and extent, the applicant’s criminal offending is to be viewed very seriously. The significant harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct is of concern. I do however acknowledge the applicant’s terrible upbringing and exposure to drugs at such a young age. Although this was not his fault, unfortunately he has battled for most of his life from hardship to hardship through homelessness, abuse, mental health issues and drug and alcohol addiction. While I do not excuse his behaviour or his violent conduct, it is plain that there are many factors at play here which go to the applicant’s risk of re-offending and prospects of rehabilitation. The applicant’s mental health issues remain relatively undiagnosed and untreated, although he is currently taking medication for the conditions of anxiety and depression. The applicant claims to suffer from PTSD however there is no medical evidence addressing a diagnosis or treatment.

18. The applicant has made a commendable effort to better himself by completing numerous programs while in detention. The cancellation of his visa and the prospect of deportation to Germany has no doubt prompted a desire in the applicant make positive changes in his life. However, I do note that he was baptised and sought refuge with the Reverend Dr James Collins in 2018, in which he then had also expressed a desire to better his life. This was prior to the mandatory cancellation of his visa. Mr Plowright’s reports dated 17 August 2018 and 20 May 2019 are the only reports available addressing the applicant’s risk of re-offending. The reports find that the applicant has a high risk of re-offending but do not consider the applicant’s current efforts to reform and that he has been drug-free for four years (from heroin, methadone and pills) and working on his sobriety.

19. Having careful regard to the available evidence, I am satisfied that there is a low chance of the applicant re-offending. I believe that the applicant now has a full appreciation of his situation in that he will likely face imminent deportation to Germany should he re-offend. The consequences for the applicant are so significant that I am convinced it will keep him on his current path of changing his life for the better.

20. I am satisfied this primary consideration weighs against revocation of the mandatory cancellation decision. However, the weight attributed to this primary consideration is ameliorated by the factors I have discussed above.

    PRIMARY CONSIDERATION (B) – BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION

21. Paragraph 13.2 of Direction No. 79 provides that decision-makers must make a determination about whether revocation of the mandatory cancellation decision is in the best interests of minor children in Australia affected by the decision.

22. The applicant has four biological children, all of which are or were in foster care. Two of his children are under the age of 18. The youngest is his son DB, who is autistic and currently nine years of age. The applicant and his partner, KW, have telephone contact with DB and hope to have a video chat with him soon. The second son is 15 years of age, who he recently found out about while in detention. The applicant accepts that he has not been a good father and has not been there for his children in the past. He does not play a primary parental role in their lives.

23. The applicant said that his two grandsons don’t even know him, and he has never spoken to them, but he is hopeful that he will be able to connect with them in the future. The applicant said that he is making baby steps with his adult daughter to establish these connections.

24. The applicant advised at hearing that he has a close connection with his nieces and nephews. He has three minor nieces and nephews. He said he wished he had the same relationship with his own children. LG, the applicant’s sister-in-law, provided evidence in these proceedings. In a statement dated 11 November 2020, she said:

    [the applicant] has been of great support to my family and especially my children as I have become a sole parent and having a positive male role model in children’s lives is of great importance to me and to them. My children...[the applicant’s] nephews and nieces have always been able to reach out to him for advice and support he has guided them when they were feeling lost due to bullies, he has cheered them on during their sport, academic and work achievements, he has got in and played with them, supported their culture and learning. [The applicant] has made a positive difference to my children and I feel that this alone has made him irreplaceable in our lives. He has always helped with outings for [the applicant’s niece] aged 20 as she has brain injury and is permanently brain damaged she does not bond with people easily and can be incredibly hard to handle for strangers but [the applicant] is always stepping in to help guide and motivate [the applicant’s niece] to do things. The bond they share is similar to the bond of the other children and [the applicant] he is an amazing uncle to them all.

    Please consider the incredible loss this will have on not only my children his nephews…but also the support he gives to children in my care…as I’m a foster mum to indigenous children in out of home care.

25. The respondent accepts it is in the best interests of these minor children for the applicant to remain in Australia. This consideration slightly favours revocation of the mandatory cancellation decision.

    PRIMARY CONSIDERATION (C) – EXPECTATIONS OF THE AUSTRALIAN COMMUNITY

26. Paragraph 13.3(1) of Direction No. 79 provides that:

    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.

1. This consideration does not require a decision-maker to form his or her own estimation of the likely attitude of the community to the question of revocation of the mandatory cancellation decision. Rather, the decision-maker is to act on the statement of those expectations by the government in the text of Direction No. 79. This was the effect of the judgment of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185. The effect of paragraph 13.3(1) points to the likelihood that community expectations will in most cases call for non-revocation, without dictating an inflexible conclusion. Generally, the question for a decision-maker is the weight to be attached to this consideration.

2. The Principles to be applied, as set out in paragraph 6.3, state that the right of a non-citizen to be able to come to or remain in Australia is a privilege conferred in the expectation that he or she is and will be law-abiding. The applicant has an extensive criminal record and as such, the Australian community would expect the applicant’s visa to remain cancelled.

3. 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. The applicant arrived in Australia at the age of 18 months. He has spent his formative years in Australia and has never exited the country. The applicant is now aged in his early 50s. He knows no other home other than Australia.

4. The applicant has plainly not met the expectations of the Australian community that as a non-citizen he will obey the laws of this country. Having regard to the nature and seriousness of the applicant’s offending, and in accordance with the Principles contained in paragraph 6.3 of Direction No. 79, I am satisfied that the Australian community would expect that the applicant should not hold a visa. This primary consideration weighs against revocation of the mandatory cancellation decision. However, I find the weight attributed to this primary consideration is ameliorated by the fact that the applicant has lived in Australia since the age of one.

   OTHER CONSIDERATION (A) – INTERNATIONAL NON-REFOULMENT OBLIGATIONS 

5. This consideration is not relevant in this case. The applicant does not raise any international non-refoulement claims.

   OTHER CONSIDERTION (B) – STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA

6. Paragraph 14.2(1) of Direction No. 79 sets out two main factors to be considered in assessing the strength, nature and duration of a person’s ties to Australia:

   (a) How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

   (i)     less weight should be given where the person began offending soon after arriving in Australia; and

   (ii)    more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

   (b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents, and/or persons who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).

7. The applicant arrived in Australia at 18 months of age. He knows no other home but Australia. He has never left the country. The applicant has four biological children, six stepchildren with his partner KW, two grandsons and at least five nieces and nephews of various ages. Despite the applicant not being involved in his children’s lives, he now has a desire, after making his life better, to connect with them. The applicant said in his statement dated 25 November 2020:

   I have been continuing to have great contact with my kids as well as my whole extended family because the prospect of been removed from not only my children, family, my country & I might add is truly the only home & country I have ever truly known my whole life horrifies me more than anything else anyone might have thrown at me, as i know less nothing about my former country Germany.

   …

   Another thing that's also at the front of my mind would be to hopefully one of these days I might still be around when they find my daughter because I have missed her so very much & would very dearly love to get closure. I find it very hard to even sleep at night let alone to even contemplate leaving her here all by herself is quite frankly very scary to me and to my other children.

8. As already detailed in these reasons, the applicant has a shocking history which sadly commenced from a young age at no fault of his own. He has now, in his early 50s, made progress with his drug and alcohol abuse issues. He has been clean from drugs (heroin, methadone and pills) for four years and manages his alcohol. He attends AA and NA. The applicant has sought help and refuge from Reverend Dr James Collins, who vouches for him and has seen a positive move in the right direction for the applicant to better his life. The Reverend fears that without the support he has in Australia from himself, the parish and from his partner KW, the applicant will not continue down this positive path.

9. KW has given evidence in these proceedings both orally and by written statement dated 2 November 2020. She has been in a relationship with the applicant for approximately 16 years. KW suffers from numerous medical conditions and the applicant helps her attend medical appointments and generally cares for her. She advised at hearing that since the applicant has been in detention, she finds her health has worsened. KW said that they had drug and alcohol problems in the past but said ‘the applicant got clean first and then persuaded me to as well’.

10. KW said at hearing that she stands by the applicant and has been offering him support while he has been in detention. In her written statement dated 2 November 2020, KW said:

    It was so out of Character for [the applicant] to lash out but at the time he was going through so much with his missing daughter KB, in the whole 16 years of our relationship there has never been Domestic Violent ever, [the applicant] and I are planning on starting fresh if he is released, he is a big support to myself as my health is Deteriorating and will need help with every day chores.

11. At hearing, KW confirmed that when she said there ‘has never been domestic violence ever’, she meant prior to the two recent offences in 2018 and 2019.

12. AJ provided a statement in support of the applicant dated 23 November 2020 and gave evidence orally at hearing. He advised that he first met the applicant in June 2016 at a NA meeting, becoming good friends and the applicant fulfilling the role of AJ’s sponsor. He said:

    [the applicant] was very helpful to me in a bad time in my life those few months and his care and concern for my wellbeing really made a difference to me. We still keep in touch and I have been clean for several years now in part with the help and guidance from [the applicant]. [the applicant] being deported will have an impact on me and other struggling users that I know as there is not many people in my life who is able to help me conquer my addictions the way [the applicant] has. [the applicant] has had a lot to struggle with especially with the case of his missing daughter. Hes been here his whole life and his children have all been born and grew up here. In my opinion him being sent to Germany will be of no help to anyone and actually be detrimental to people’s lives such as his children and people he has helped over the years.

13. The applicant’s stepdaughter, OA, provided a written statement in support of the applicant dated 24 November 2020 and gave evidence orally at hearing. She has known the applicant for the past 16 years as he has been in a long-term relationship with her mother, KW. She said that during that time she had witnessed areas of growth in the applicant. In her statement she said:

    [the applicant] has also been a support and aid in my own personal life and has always offered support to me in my own life. This has allowed me to have a continual support person in my life.

    [the applicant] has also gone through a lot of his life especially recently where his daughter [KB] has gone missing, which has remained unresolved. With this you can imagine the heartache and emotional and mentally toll it can take on a father.

    Please if you can consider, allowing [the applicant] to not be deported which allows me to continue to have another support person in my life.

    I believe that [the applicant] is already making changes from his prior lifestyle of drug and alcohol abuse. To turn his life around to move forward, and making choices that will benefit himself and others including my relationship with him and my brother [DB]. [The applicant] also is a huge support for my mother [KW], and have continued to work towards self-reliance in being free from substances.

14. I find that the applicant’s strength, nature and duration of ties to Australia strongly favours revocation of the mandatory cancellation decision.  

    OTHER CONSIDERATION (C) – IMPACT ON AUSTRALIAN BUSINESS INTERESTS

15. There is no evidence before me bearing upon the impact on any Australian business interests.

    OTHER CONSIDERATION (D) – IMPACT ON VICTIMS

16. This consideration is not relevant in this case.

    OTHER CONSIDERATION (E) – EXTENT OF IMPEDIMENTS IF REMOVED

17. Paragraph 14.5 requires the decision-maker to have regard to the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account the non-citizen’s age and health, whether there are substantial language or cultural barriers, and any social, medical and/or economic support available to them in that country.

18. The applicant has no family or friends in Germany. He does not speak German and has never visited the country since he arrived in Australia as an infant. The applicant has battled drug and alcohol addiction for most of his life and has only recently managed to get drug free for a substantial period. He has also managed his alcohol addiction and actively taken positive steps to better his life. He has significant mental health issues requiring further investigation and treatment. The applicant was homeless from a very young age and has limited skills and education. He left school in Year 9 and did not acquire any further skills, training or trade. There is some evidence that the applicant worked as a concreter years ago, but he suffered a work-place injury and subsequently his only income is derived from disability support pension. His ability to find any type of employment is poor. This would be a significant hurdle for him to overcome if sent to Germany, particularly since he knows no-one in Germany who he can call on for help. All these factors are significant impediments should the applicant be removed to Germany. The applicant has much better prospects of rehabilitation in Australia.

19. At hearing, the Reverend Dr James Collins advised that without support, he would be less optimistic about the applicant’s positive trajectory to change his life for the better. If he were to be deported to Germany, he would not expect a good outcome for the applicant because of the lack of support.

20. The extent of impediments if removed to Germany weighs strongly in favour of revocation of the mandatory cancellation decision. 

    DECISION

    76.Balancing the various considerations which I have discussed above, it seems to me that it would be unnecessarily harsh to send the applicant back to Germany after he has lived here for almost his whole life. The applicant’s life history is tragic and very unfortunate, and not directly his fault. His parents failed him from a very young age and his mother introduced him to drug use, when she gave him Valium so she could go out drinking. Australia should also take some responsibility for the applicant’s failings since he was effectively brought up in refuges and boys’ homes, was homeless from the age of 14 or 15 years and has spent time in juvenile detention.

    77.I am optimistic that the applicant will continue to overcome his drug and alcohol addictions and seek help for his significant mental health conditions. This is supported by the fact that he has been attending AA and NA and has been undergoing CBT and is taking medication for his mental health conditions. He has a strong motivation not to reoffend, and to avoid deportation by undergoing rehabilitation. Deporting him would have potentially devastating consequences for the applicant, who has already lived such a difficult life, and for his partner, KW, who is supported by the applicant in maintaining her sobriety and managing her numerous medical conditions.

    78.I am satisfied that the other considerations of the applicant’s strength, nature and duration of ties to Australia and the extent of impediments if he were to be removed to Germany, coupled with the primary consideration of the best interests of minor children in Australia, outweigh the other primary considerations in this case.

    79.The reviewable decision will be set aside, and in substitution, the mandatory cancellation of the applicant's visa will be revoked.

I certify that the preceding 79 (seventy-nine) paragraphs are a true copy of the reasons for the decision herein of Senior Member A Poljak

...............................[SGD].........................................

Associate

Dated: 10 December 2020

Date(s) of hearing:	30 November 2020
Solicitors for the Applicant:	Nikjoo Lawyers
Solicitors for the Respondent:	MinterEllison