Long and Minister for Immigration and Multicultural Affairs (Migration)
[2024] ARTA 46
•23 December 2024
Long and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 46 (23 December 2024)
Applicant:Brian Edward Long
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7994
Tribunal:Deputy President Thompson SC
Place:Perth
Date:23 December 2024
Decision:The Tribunal affirms the decision under review.
.............................[SGD]......................................
Deputy President
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction no. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of minor children - expectations of the Australian community – extent of impediments if removed – Applicant is a 61-year-old year old citizen of the United Kingdom – extent of impediments if returned to the United Kingdom – Non-Revocation Decision is affirmed
LEGISLATION
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) - Schedule 16 Part 5 section 24
Migration Act 1958 (Cth) – sections 15, 189, 196, 197C, 198, 499(1), 499(2A), 501(3), 501(3A), 501(6)(a), 501(7)(c), 501CA(4), 501CA(4)(b), 501CA(4)(b)(ii), 501E, 501F, 503
Migration Regulations 1994 (Cth) – Schedule 5 cl 5001
CASES
AJL20 v Commonwealth of Australia [2020] FCA 1305
Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202; (2019) 273 FCR 121, 136
Long and Minister for Immigration and Citizenship [2008] AATA 285
Long and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 726
Long v Minister for Immigration and Citizenship [2008] FCA 1500
Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171
Rano v Minister for Home Affairs, Minister for Cyber Security [2024] FCA 1003
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Sales v Minister for Immigration and Citizenship [2008] FCAFC 132
Short and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3037
Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174
Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158
Webb v Minister for Home Affairs [2020] FCA 831
SECONDARY MATERIALS
Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth) - Schedule 16 Part 5 section 24
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024) – paras 5.2, 7, 8, 8.1(1), 8.1.1(1)(a), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.2, 8.1.2(1), 8.1.2(2)(a), 8.1.2(2)(b), 8.5, 8.5(1), 8.5(2), 8.5(3), 8.5(4), 9, 9.1, 9.2(1)(b)
Statement of Reasons
THE APPLICATION
Mr Long has sought review of a decision of a delegate of the Respondent (Minister) dated 26 September 2024, not to revoke the cancellation of his Five Year Resident Return (Class BB) (subclass 155) visa under section 501CA(4) of the Migration Act 1958 (Act).[1]
[1] Exhibit R1, G2, 6.
BACKGROUND
Mr Long was born on 11 October 1963 in Liverpool in the United Kingdom,[2] and remains a citizen of the United Kingdom.[3] On 24 March 1981, he migrated to Australia at the age of 17, following several earlier visits with his family. Apart from a short visit to the United Kingdom, he has resided here ever since.[4]
[2] Exhibit R3, 453
[3] Exhibit R1, G4, 106.
[4] Exhibit R1, G4, 142.
Mr Long has an extensive criminal history in Australia.[5] From 1983 to 1986 he was convicted of a total of fourteen relatively minor drugs, driving, and other offences for which he received fines.[6] On 5 November 1987 he was convicted of two more serious drug offences, involving the sale and supply of heroin, and was sentenced to a total of 3 years in prison, serving approximately 21 and a half months.[7] Since his release in July 1989, he has been imprisoned a further eight times and has a total of 83 convictions spanning the 34 years between 1987 and 2021. As at the date of his evidence in this matter, he had spent 14 years, 2 months and 8 days in prison, and will next be eligible for parole on 21 January 2029, at which time he will have spent over 18 years in prison.
[5] Exhibit R2, TB1, 11.
[6] Exhibit R1, G4, 26-27.
[7] Exhibit R1, G4, 26; aide-mémoire agreed between the parties.
Mr Long was first warned that he may have his visa cancelled in in February 1996.[8] His visa was cancelled on 24 January 2002,[9] following his convictions for a further 21 offences, and serving two further terms of imprisonment, since his 1996 warning.[10]
[8] Exhibit R1, G4, 140.
[9] Exhibit R3, 292; Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422 [8].
[10] Exhibit R1, G4, 26.
Mr Long applied to the Federal Court for judicial review, which was dismissed.[11] He then appealed to the Full Federal Court and the decision to cancel his visa was quashed on 8 September 2003, for jurisdictional error.[12]
[11] Long v Minister for Immigration & Multicultural & Indigenous Affairs [2002] FCA 1422.
[12] Long v Minister for Immigration and Multicultural and Indigenous Affairs [2003] FCAFC 218; (2003) 76 ALD 610.
During Mr Long’s release into the community between September 2003 and 9 August 2005, he was convicted of a further seven offences. The last of these was on 9 August 2005, when he was convicted in the District Court of Western Australia of two counts of burglary and sentenced to a total of four years and eight months’ imprisonment.[13]
[13] Exhibit R1, G4, 26.
On 1 November 2007, Mr Long’s visa was cancelled for a second time.[14] Mr Long applied to the Administrative Appeals Tribunal (AAT) for review of that decision, however his review was unsuccessful.[15] On 10 September 2008, the Federal Court quashed the Minister’s decision,[16] the Minister having conceded the appeal on a technical issue arising from the construction of section 501(2) of the Act in Sales v Minister for Immigration and Citizenship.[17]
[14] Long and Minister for Immigration and Citizenship [2008] AATA 285 [1].
[15] Long and Minister for Immigration and Citizenship [2008] AATA 285.
[16] Long v Minister for Immigration and Citizenship [2008] FCA 1500.
[17] [2008] FCAFC 132.
On 15 October 2008, the Minister advised Mr Long that his visa may be liable for cancellation.[18] On 28 January 2009, the Minister advised Mr Long that while his visa would not be cancelled at that time, he was given a formal warning that visa cancellation may be reconsidered if ‘fresh information comes to notice or if you incur a liability on new grounds’.[19]
[18] Exhibit R1, G4, 137.
[19] Exhibit R1, G4, 137.
Between September 2008 and May 2021, Mr Long was convicted of a further 20 criminal offences.[20]
[20] Exhibit R1, G4, 25–26.
On 13 May 2021 Mr Long was convicted in the District Court of Western Australia, on his pleas of guilty, of ‘attempt to possess a prohibited drug’, two counts of ‘possession of stolen or unlawfully obtained property’, and ‘sold a prohibited drug namely Methylamphetamine’.[21] For these convictions Mr Long was sentenced to a total of 11 years’ imprisonment.[22] Mr Long will be eligible for parole after 9 years. On 20 May 2021 he was convicted in the Perth Magistrates Court of ‘Fail to Comply with a Requirement’ and sentenced to 12 months’ imprisonment to be served concurrently with the 13 May 2021 sentences.[23]
[21] Exhibit R1, G4, 25; Exhibit R2, 1.
[22] Exhibit R1, G4, 38.
[23] Exhibit R1, G4, 25; Exhibit R2, 1.
On 23 February 2022,[24] the Minister cancelled Mr Long’s visa under section 501(3A) of the Act on the basis that he had a substantial criminal record within the meaning of section 501(6)(a) of the Act and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (Cancellation Decision).[25]
[24] Exhibit R1, G4, 145.
[25] This was in effect a reissuing of a decision of the Minister made on 22 June 2021, at Exhibit R1, G4, 152–157, which had defects identified in the decisions in EPL20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 173 and Sillars v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 174.
On 7 August 2023, the Minister advised Mr Long that representations he had made on 23 July 2021 requesting revocation of the cancellation decision made on 21 June 2021,[26] would be considered.[27]
[26] Ibid
[27] Exhibit R1, 143.
On 26 September 2024, pursuant to section 501CA(4) of the Act, a delegate of the Minister decided not to revoke the Cancellation Decision.[28] A notification letter was sent to Acacia Prison on 1 October 2024,[29] and Mr Long was notified of the delegate’s decision by hand at Acacia Prison on 2 October 2024 (Non-Revocation Decision).[30]
[28] Exhibit R1, G2.
[29] Exhibit R1, G5.
[30] Exhibit R1, G6, 193.
Mr Long lodged his application for review of the Non-Revocation Decision with the AAT on 10 October 2024.[31] On 14 October 2024, the Administrative Review Tribunal (ART) replaced the AAT and all matters which were before the AAT were transferred to the ART.[32] References to the Tribunal in this decision refer to the AAT prior to 14 October 2024, and the ART from that date.
[31] Exhibit R1, G1, 1-5.
[32] Schedule 16 Part 5 section 24 of the Administrative Review Tribunal (Consequential and Transitional Provisions No. 1) Act 2024 (Cth).
THE HEARING AND THE EVIDENCE
The hearing took place in Perth on 10 and 11 December 2024. Both parties were legally represented. Mr Long attended the hearing by video from Acacia Prison where he is currently incarcerated.
The following documents were marked as exhibits:
(a)Letter from Brian Long, dated 25 November 2024 (Exhibit A1);
(b)Letter of support from Ann Long, undated (Exhibit A2);
(c)Letter of support from Catherine Long, dated 22 November 2024 (Exhibit A3);
(d)Letter of support from Elyce Long, dated 24 November 2024 (Exhibit A4);
(e)Letter of support from Tailah Anderson, undated (Exhibit A5);
(f)Letter of support from Lee Anderson, undated (Exhibit A6);
(g)Letter of support from Maria Anderson, dated 18 November 2024 (Exhibit A7);
(h)Letter of support from granddaughter B,[33] undated (Exhibit A8);
(i)Letter of support from grandson C, undated (Exhibit A9);
(j)Letter of support from Brian Anthony Long, dated 4 December 2024 (Exhibit A10);
(k)Section 501G Documents, labelled G1–G6, comprising 193 pages (Exhibit R1);
(l)Tender Bundle, labelled TB1, comprising 123 pages (Exhibit R2);
(m)Supplementary Tender Bundle, labelled STB1-STB4, comprising 565 pages (Exhibit R3).
[33] The identities of the grandchildren who are under 18 years of age have been redacted with the consent of the parties, for privacy reasons.
Mr Long gave evidence and was cross-examined. Mr Long’s evidence was generally candid and forthright. He made appropriate concessions regarding his offending and general conduct and, with the exception of the matters I deal with under family violence below, I generally accept his evidence as truthful.
Mrs Ann Long, Mr Long’s wife, gave evidence in person and was cross-examined. I deal with her evidence in more detail below.
None of the other witnesses who submitted letters of support were required for cross-examination. Their evidence is all relevant to the question of Mr Long’s ties to Australia and the best interests of minor children and I consider their statements when dealing with those considerations.
I was also assisted by:
(a)the Applicant’s Statement of Facts Issues and Contentions, dated 24 November 2024 (ASFIC);
(b)the Minister’s Amended SFIC, dated 3 December 2024 (RSFIC); and
(c)an agreed aide memoir handed up to me of the calculation of the total time Mr Long has spent in prison (aide memoir).
LEGISLATIVE FRAMEWORK
Migration Act
Under sections 501(3) and (3A) of the Act, the Minister must cancel a person’s visa if satisfied that the person does not pass the ‘character test’, and the visa-holder is serving a full-time sentence of imprisonment in a custodial institution of the Commonwealth, a State or a Territory.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a substantial criminal record, which in turn is set out on section 501(7)(c) to mean they have been sentenced to a term of imprisonment of 12 months or more.
Once a person’s visa is cancelled under section 501(3A) of the Act, the Minister must give them written notice inviting them to make representations about revocation of the original decision. If representations are made, the Minister may revoke the decision to cancel the visa if satisfied that:[34]
(a)the person passes the character test; or
(b)there is another reason why the original decision should be revoked.
[34] Section 501CA(4)(b) of the Act.
That is, to make a decision under section 501CA(4) a decision-maker must first decide whether the person passes the character test under section 501CA(4)(b)(i) and, only if satisfied that the person does not pass that test, decide whether, under section 501CA(4)(b)(ii), there is another reason why the original decision should be revoked.[35]
[35] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 at [66].
Section 499(2A) of the Act mandates that the Tribunal must comply with written directions given by the Minister regarding its functions or the exercise of those powers given to it under section 499(1) of the Act.
Direction no. 110
On 7 June 2024, the Minister issued Direction no. 110 under section 499 of the Act (Direction 110). The direction applies specifically to decisions by the Tribunal on an application for revocation of a mandatory cancellation of a visa under section 501CA.
Paragraph 5.2 of Direction 110 sets out mandatory principles which provide the framework within which decision-makers should approach their task of deciding whether to revoke a mandatory cancellation under section 501CA.
These principles include the following:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
Direction 110 at para 8 sets out the primary considerations which must be taken into account in making a decision under section 501CA(4). These are:
(a)protection of the Australian community from criminal or other serious conduct;
(b)family violence engaged by the applicant (if any);
(c)the strength, nature and duration of the applicant’s ties to Australia;
(d)the best interests of minor children in Australia affected by the decision; and
(e)the expectations of the Australian community.
Direction 110 at para 9 sets out the other considerations which the Tribunal must take into account, insofar as they are relevant to an application. These are:
(a)legal consequences of the decision;
(b)extent of impediments if removed; and
(c)impact on Australian business interests.
Direction 110 at para 7 provides:
(a)information and evidence from independent and authoritative sources should be given appropriate weight when applying the considerations;
(b)the protection of the Australian community is generally to be given greater weight than other primary considerations, and primary considerations should generally be given greater weight than the other considerations; and
(c)one or more primary considerations may outweigh other primary considerations.
ISSUES
Mr Long, by his counsel, concedes that he does not pass the character test in sections 501(6)(a) and 501(7)(c) of the Act.[36] Therefore, the sole live issue for consideration is whether there is another reason why the Cancellation Decision should be revoked.[37]
[36] ASFIC [2].
[37] Section 501CA(4) of the Act.
THE APPLICANT’S CONDUCT AND OFFENDING
Mr Long has an extensive criminal history which is summarised at paragraphs 3 to 10 above and set out in more detail in the Annexure to these reasons. Most recently, on 13 May 2021 Mr Long was convicted by the District Court of Western Australia of the following criminal offences, which gave rise to the Cancellation Decision:[38]
(a)one count of ‘Attempt To Possess a Prohibited Drug’, resulting in a sentence of seven years’ imprisonment to be served cumulatively;
(b)two counts of ‘Possession of stolen or unlawfully obtained property’, resulting in a sentence of one year imprisonment and 30 months’ imprisonment, both to be served concurrently; and
(c)one count of ‘Sold a prohibited drug namely Methylamphetamine’, resulting in a sentence of four years’ imprisonment to be served cumulatively.
[38] Exhibit R1, 25; Exhibit R2, 1.
The result of these offences in that Mr Long is presently serving a custodial sentence in a Western Australian prison of 11 years, with an earliest date of parole of 22 January 2029.[39]
[39] Exhibit R1, 39.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Mr Long’s submissions concedes that he fails the character test in section 501(6) of the Act because his convictions and the sentence imposed for them means he falls within the meaning of section 501(7), having been sentenced to a term of imprisonment of 12 months or more. That concession is properly made as his failure to pass the character test arises as a matter of law. I find that he has failed the character test.[40]
[40] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Given the power to revoke the Cancellation Decision is only enlivened if there is ‘another reason’, within the meaning of section 501CA(4)(b)(ii) of the Act, and the concession as to the character test, all the evidence and submissions at the hearing were directed at this question.
The parties’ submissions
Mr Long’s written submissions identified four of the primary considerations as being relevant to my decision, being:[41]
(a)the protection of the Australian community;
(b)the strength, nature and duration of Mr Long’s ties to Australia;
(c)the best interest of minor children; and
(d)the expectations of the Australian community.
[41] ASFIC [5].
Mr Long also identified in his written submissions the other considerations of the legal consequences of the decision, and the extent of impediments if removed, as being relevant.
At the hearing, it became clear that family violence was alleged to have been committed by Mr Long and this was also a relevant primary consideration. This was accepted as relevant by Mr Long.
The Minister contended, in summary, that the primary considerations of protection of the Australian community and the expectations of the Australian community weighed heavily against revocation. He further submitted that in light of Mr Long’s circumstances as a whole, there is not another reason why the Cancellation Decision should be revoked.
I set out more detail regarding the submissions as I discuss each of the relevant considerations below.
Protection of the Australian Community
Direction 110 at para 8.1(1) requires me to keep in mind that the safety of the Australian community is the highest priority of the Australian Government, and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[42]
[42] See also Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (7 June 2024) [8(1)] (Direction 110).
Criminal history and other conduct
Mr Long’s most recent criminal history which gave rise to the Cancellation Decision is set out at paragraph 33 above. Prior to these convictions, he had accumulated a record of offences commencing in 1983, aged 19.[43] That history is set out in the annexure to this decision and summarised under the heading Background, above. In total, at the time of the hearing, Mr Long had spent over 14 years and 2 months in prison,[44] and his earliest possible release date from his current term of imprisonment on parole is 22 January 2029, at which time he will have served over 18 years in prison, or nearly 40% of his then adult life. If he serves his full sentence, being released on 22 January 2031, he will have spent over half his then adult life in prison.
[43] RSFIC Annexure 1; Exhibit R3, TB1.
[44] Aide memoire.
The pattern of his offending indicates an increasing severity of offences culminating in the offences of which he was convicted in May 2021 which resulted in him being imprisoned for 11 years and declared a drug trafficker.[45]
[45] Exhibit R2, 3.
Nature and seriousness of the conduct
I must consider the nature and seriousness of the Mr Long’s criminal offending and other conduct.[46] I am directed that certain types of criminal or other conduct is viewed very seriously by the Government and the Australian community[47] and that certain criminal or other conduct is considered serious[48]. The scope of what I may consider as either very serious or serious is not limited to those matters specifically included in Direction 110.[49]
[46] Direction 110 [8.1(1)].
[47] Direction 110 [8.1.1(1)(a)].
[48] Direction 110 [8.1.1(1)(b)].
[49] Direction 110 [8.1.1(1)(a)-(b)].
Mr Long has conceded that the offences of which he has been most recently convicted are serious.
As the Minister submits, these latest offences must be considered against the backdrop of many years of offending and multiple sentences of imprisonment. The Minister’s submission is that the conduct is very serious[50] and should weigh heavily against revocation. I accept that submission. The matters which lead me to that conclusion are:
[50] Direction 110 [8.1.1]
(a)the sheer volume of offences;
(b)Mr Long’s underlying drug addiction to heroin which has, over the past 37 years, repeatedly been the reason for him committing offences;
(c)the range and scope of the offences, which as a whole present a picture of general lawlessness and a disregard for the consequences of his conduct;[51]
(d)his willingness to involve his wife in his offending, notably his most recent offences;[52]
(e)the circumstances of the most recent offending, including the quantity of drugs involved,[53] the amount of money involved, the fact he was declared a drug trafficker, the view taken of the seriousness of the offences by the sentencing Judge,[54] and the sentences imposed for each of the offences;[55]
(f)the number and type of driving and traffic offences, including driving whilst suspended or without a licence, exceeding the legal blood alcohol limit, and careless driving, which fall within the class of offences the Tribunal has regarded seriously in other matters due to their ability to adversely impact the lives of other law-abiding citizens;[56]
(g)his continued offending, despite prior warnings and twice having his visa cancelled, as I have set out in paragraphs 4 to 8 above;[57]
(h)the objectively serious nature of a number of his prior convictions including:
(i)the robbery with co-offenders of a credit union, for which he was convicted in March 1994, an offence which involved threats of violence against employees with a replica firearm;[58]
(ii)the burglary at a Bunnings store, for which he was convicted on 11 January 2005, which involved cutting a metal grille between the roof and rear door, forcing the doors open and taking $26,000;[59] and
(iii)the burglary at a Coles Express store, for which he was convicted on 11 January 2005, which involved breaking into the store with the intention of stealing the safe, disarming the alarm, taking the contents of an ATM, taking the safe off its mountings and attempting to wheel it away, at which time the police apprehended him.[60]
[51] 27 are driving and traffic related, 20 are drug related, including drug trafficking, 23 are dishonesty offences including stealing, 1 offence is for armed robbery, and 12 are for breaches of orders: see Annexure A.
[52] Exhibit R1, G4, 30-31.
[53] Short and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3037.
[54] Exhibit R1, G4, 36.
[55] Exhibit R1, G4, 31-41.
[56] Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561.
[57] Direction 110 [8.1.1(1)(g)].
[58] Exhibit R1, G4, 83-84.
[59] Exhibit R1, G4, 56.
[60] Ibid.
In my view, having regard to the evidence, including the assessment of the offending by various courts over nearly 34 years,[61] I have concluded the offending was very serious and weighs heavily against revocation.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[61] Exhibit R1, G4, 29-38, 41-45, 46-50, 51-54, 55-59, 60-75, 79-86, and 87-99.
I must also consider the risk to the Australian community should Mr Long commit further offences.[62] This requires an assessment of the nature of the harm should he engage in further criminal or other serious conduct[63], and an assessment of the likelihood of him engaging in that type of conduct.[64] There is no statutory constraint on the way I am to assess that risk, other than the requirement for me to adopt a rational and probative approach to the assessment.[65]
[62] Direction 110 [8.1.2].
[63] Direction 110 [8.1.2(2)(a)].
[64] Direction 110 [8.1.2(2)(b)].
[65] BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68]; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41].
Nature of the harm
To determine the risk to the Australian community if Mr Long committed further offences or engaged in other serious conduct, I must consider the nature of the harm to individuals, or the Australian community, should he reoffend.[66]
[66] Direction 110 [8.1.2(2)(a)].
It is axiomatic that significant harm is suffered by the community as a result of the sale of illegal drugs. This harm includes the physical harm to the people who buy the drugs, the psychological and emotional harm to the offender’s family, the impact on community resources in the health system and the criminal justice system, and the drain on police resources. The Tribunal and the Courts have frequently considered this type of harm in detail and I adopt their analysis of it.[67] In this case there is evidence of specific harm to Mr Long’s wife, who has borne the brunt of his anti-social conduct throughout their lives together.
[67] See particularly the analysis in Nguyen and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 4171, at [54]; Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158 at [51]-[54].
It is also axiomatic that the community is harmed by the driving offences. This harm is not by any means trivial as it has the potential to impact complete strangers so seriously that they either lose their lives, or are permanently incapacitated. This too has been the subject of considerable analysis in earlier Tribunal decisions.[68] Notably, there has been no apparent rehabilitation focus on these offences and Mr Long’s evidence regarding them was to simply ignore their significance by saying, in respect to the period of 2009 to 2017, ‘During this time I had little to no offending’.[69]
[68] Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561.
[69] Exhibit A1, 3.
In my view, the type of harm Mr Long may cause if he were to reoffend in a manner similar to his past offending is very serious psychological, physical, financial and systemic harm to his family, and to the wider Australian community.
Likelihood of the non-citizen engaging in further criminal or serious conduct
To determine the risk to the Australian community if Mr Long committed further offences or engaged in other serious conduct, I must also consider the likelihood of his reoffending if he is permitted to remain in the Australian community.[70]
[70] Direction 110 [8.1.2(2)(b)].
Mr Long has had an addiction to heroin for at least 40 years. He has made considerable attempts to not use the drug, but has returned to it in times of emotional trauma, including the death of his father in late 2003,[71] and the suicide deaths of his son Daniel and his sister Cathy in May 2017.[72] I note for example that Mr Long was apparently drug free from about 2009, having had a naltrexone implant whilst in immigration detention, until he received news of Daniel’s suicide when he in prison in May 2017. He has had several periods using methadone and is currently on methadone in prison. He describes being committed to being clean into the future and has a positive role model in his wife who has been drug free for very many years. I accept he is genuine in his desire to not return to taking drugs.
[71] Exhibit R3, STB 3, 400.
[72] Exhibit R1, G4, 32.
Notably, Mr Long has undertaken a number of rehabilitation courses in the past during his earlier terms in prison, including attending Holyoake for counselling, but frankly admitted in his evidence that this doesn’t seem to be enough to cure him. He is looking forward to attending a medium density drug rehabilitation program in 2025.
Whilst I accept that his drug addiction is at the heart of much of his offending, it does not explain all of it. During his drug-free period of 2009 to 2017, he was convicted of 13 offences. Eight of those offences involved him driving whilst his licence was suspended, one was for reckless driving, two were for breach of a VRO, one was for speeding, and one was for a breach of bail undertaking.[73] The reckless driving offence in 2012 is objectively serious as it involved a pursuit of him by police at high speed in built up areas, ‘without any consideration for persons walking on the footpath’.[74] This series of offences demonstrate a general attitude of lawlessness, a cavalier disregard to the expectations of the community to live within the law, and a pattern of disregard of the numerous suspended imprisonment orders he was subject to at various times when he offended.
[73] Exhibit R1, 25.
[74] Exhibit R2, 64.
His response to significant family trauma in the past has been to return to drugs. Whilst I accept these events were extraordinary, it is foreseeable that future events of emotional trauma may occur in his life, including the death of his very unwell 81-year-old mother.
Mr Long said in his evidence that in 2017 he commenced using heroin whilst in prison, immediately turning to it on receiving news of Daniel’s suicide. This escalated on his release, and he was eventually using $20,000 per week of heroin. This resulted in him having a significant debt to his suppliers, which in turn led him to engage in large-scale selling of methamphetamine so as to fund his drug habit. During Mr Long’s evidence he said he still owed $400,000 to his drug suppliers. Whilst his counsel submitted there is potential for this debt to be paid off by legal means or forgiven ‘if he keeps his nose clean with his creditors’, there is no certainty, much less a guarantee, of that.
The constancy of Mr Long’s offending over the past nearly 40 years, including during times when he was not taking drugs, causes me to have grave doubts about his ability to not offend again in the future. Whilst I accept his counsel’s submission that his age on release from prison will mitigate the likelihood of him committing the type of violent crime he engaged in between 1994 and 2005, his age will not have any real impact on his ability to commit driving offences, or his ability to sell drugs.
In my view, the likelihood of Mr Long engaging in further criminal or serious conduct is high.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of Mr Long’s conduct, and the risk to the Australian community should he commit further offences or engage in other similar conduct, I have concluded that this consideration weighs heavily against revocation.
Family violence committed by the non-citizen
Direction 110 at [8.2] requires a decision-maker to consider family violence in certain circumstances. Paragraph 4 of the direction includes an extensive definition of family violence which relevantly says:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful...
Direction 110 at [8.2(2)(a) and (b)] set out the alternatives open when a person has been convicted of family violence offences, and when the person hasn’t been convicted, both of which are relevant in this case.
Convictions
In July 2009 Mr Long was convicted of two offences of ‘Breach of Violence Restraining Order’ (VRO).[75] The statement of material facts states that Mr Long’s wife ‘took out a restraining order on the accused due to him being violent towards her’.[76]
[75] Exhibit R1, G4, 25.
[76] Exhibit R2, TB1, 61.
Whilst the offences are nearly 15 years ago, they are relevant to my decision, although I do not give them much weight as there is a paucity of evidence as to the circumstances of the VRO being obtained and no further convictions of this type.
Other conduct
In August 2021, Mrs Ann Long was sentenced to a total of five years and eight months in prison by the District Court for her role in two of the offences Mr Long had been sentenced for in May 2021, being the offences of attempt to obtain a prohibited drug, being 627 grams of methamphetamine, and possession of a thing capable of being stolen, being $19,900. A charge relating to a large sum of cash was discontinued.[77] The offences arose out of police surveillance of Mr and Mrs Long which led the police to locate drugs and paraphernalia buried in bushland, replace it with an inert substance, and watch as Mr and Mrs Long returned to collect the “drugs” several days later. Mrs Long received a lesser sentence than her husband.
[77] Exhibit R3, STB, 505-506.
During the course of her sentencing, the Judge said:[78]
You've been married to Mr Long for 38 years. The two of you engaged in heroin use. You told the author of the pre-sentence report that you'd been the subject of domestic violence perpetrated by Mr Long over the years which has resulted in periods of separation.
And yesterday I received a letter from your son which confirms that. He says he's witnessed (inaudible) your husband being a heroin addict, and he's witnessed abusive and controlling behaviour towards you at times. And he talks about his father having [sic] a large ego-carrying individual with menacing heroin addiction.
So I am satisfied that you have been subjected to domestic violence over the years, and I do take that into account in your situation.
You remain together. And obviously that's a decision for you, and it's a decision - you've obviously got a family together. But going forward, it's a matter for you as to whether you continue to remain in a relationship with someone who has hurt you and has got you involved in very, very serious offending in this case.
Emphasis added
[78] Exhibit R3, STB, 500.
In 2021 Mrs Long’s visa was cancelled. Ultimately in March 2024 Mrs Long had a hearing in the AAT, in which she argued for revocation of the cancellation of her own visa. The decision, in favour of revocation, was handed down on 12 April 2024.[79] In support of her application for review, Mrs Long submitted a written statement dated 15 March 2024[80] and gave oral evidence. Relevantly, her written statement said:
1. I am taking control of my life by not allowing my husband Brian to control me anymore. Through Standing on Solid Ground I have learned about my self-esteem and confidence in how to stick up for what I know is right. I have also learned the importance of being around positive people who bring out the best in yourself rather than those who lead you down negative paths....
9... I learned to create a better foundation for implementing life changes and career changes, by being safe and secure, and building self-confidence. It taught me how to think through the consequences of a decision I make and the importance of standing up for what I know is right. I learnt that making no decision can be just as bad as making a bad decision.
10. I can honestly say that for the past four years I have noticed a big change and growth in myself, my self-worth and confidence has grown, and I am no longer afraid to speak my mind and follow through. My friends and family have also told me they have noticed these changes in me.
...
13. If I was to be put in a bad situation again with my husband Brian or other people (whether that is him going back to drugs or criminal offending, or domestic violence), the first thing I would do is call the police, then I would contact my support network (my children, my friend Adele and my counsellor Chelsea) for help. I also have a code word which I can say to my support network so that they would that I was in trouble or that something was happening that I didn’t want to go along with, and that I need their help quickly. When the police arrive, I would ask them to provide me with a 72-hour VRO so that would provide me enough time to prepare to go to court and have a two-year VRO put in place.
14. I will not go along with or become involved with any negative or criminal conduct in the future. My support network, including my counsellor, are there for me so that I know I have a way away from Brian.
15. I cannot predict the future regarding my husband as at this moment the only people that matter to me are my children and grandchildren. I have not provided a statement of support for Brian in relation to his current visa process as I am prioritising myself and my children and grandchildren. I’m proud of myself and what I have learnt about myself and how I can make positive decisions in the future.
[79] Long and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 726.
[80] Exhibit R3, STB 507–509.
In oral evidence before the AAT, Mrs Long said ‘her husband used to tell her what to do and that she would listen to him and do what he said because she was afraid of him’.[81]
[81] Long and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 726 [72].
In its decision, the Tribunal said:[82]
There are five more years until the Applicant’s husband is released, and the strategies that the Applicant has put in place are likely to help navigate issues that may arise with him in the future. However, the relationship has been coercive over many years and the Applicant has had difficulty standing up to her husband in the past. If the Applicant remains in a relationship with her husband when he is released, there remains some risk that he will be a negative influence and that she may reoffend.
Emphasis added
[82] Ibid at [77].
As a result of the matters set out above arising from Mrs Long’s sentencing and her own revocation application in the Tribunal earlier in 2024, I put in place some measures to protect and assist her in giving oral evidence. As Mr Long appeared throughout the proceedings by video, I ensured the video camera was screened during Mrs Long’s oral evidence, so that she could not see him, and he could not see her. I also provided her with a hand signal to use in the event she felt unsafe during her evidence, which Mr Long was not aware of. Mrs Long did not avail herself of the signal.
On 12 April 2005 Mr Long entered prison, having been convicted of two counts of burglary, and was imprisoned for a total of 4 years and 8 months. He was released into immigration detention on 10 December 2007, from which he was released at some time between September 2008 and January 2009,[83] following a successful appeal from a decision of the AAT[84] to affirm the cancelation of his visa.[85] During the course of her evidence in his unsuccessful AAT hearing in April 2008, Mrs Long said that she had separated from Mr Long some years earlier.[86] The VRO was taken out on 29 January 2009 to protect both Ann Long and her then 9-year-old daughter, Elyce. It was personally served on Mr Long on 16 March 2009 and had a 2-year duration. At some point, after 22 May 2009,[87] it was revoked.[88]
[83] Aide-memoir.
[84] Long and Minister for Immigration and Citizenship [2008] AATA 285.
[85] Long v Minister for Immigration and Citizenship [2008] FCA 1500.
[86] Long and Minister for Immigration and Citizenship [2008] AATA 285 [36].
[87] Exhibit R2, 61.
[88] Exhibit R2, 120.
There are a number of other family violence incidents, including VROs recorded in the Police files,[89] and a Recidivist Domestic Violence Case File which records a number of incidents in the family home in the period 31 August 2007 to 29 November 2011 involving various members of the family. [90] It is plain that Mr Long was not involved in all these events because he was in prison or immigration detention between 12 April 2005 and 8 September 2008, at the earliest. However, one incident takes place on 27 January 2009, just two days prior to the VRO being taken out on 29 January 2009, and I infer that this incident led Mrs Long to seek the VRO.
[89] Exhibit R2, 104, 119, 122, 123.
[90] Exhibit R2, 108.
In this matter neither Mr nor Mrs Long gave evidence which assisted me in understanding anything about the circumstances of her the obtaining the VRO in January 2009,[91] when the question arose in their respective cross-examinations. Both of them gave evidence that at the time the VRO was taken out, in January 2009,[92] Mrs Long was residing with someone called Sam, the then-partner of one of their sons, and that Sam, who was said by both to suffer from bi-polar disease,[93] had put pressure on Mrs Long to obtain a VRO. Neither could apparently recall any details of what precipitated Mrs Long’s request of the police for a VRO. My impression of their evidence in respect to this is that it was entirely unreliable, having an aura of concoction about it and sounding very much like a rehearsed “script”.
[91] Exhibit R2, 120.
[92] Exhibit R2, 120.
[93] The relevance of which is unclear.
One incident which allegedly occurred on 15 March 2009 is of particular concern. It involves the allegation of Mr Long pushing, grabbing the hair of, and then punching, an 18-year-old woman in the face and chest several times. The woman had apparently intervened to stop an argument between Mr and Mrs Long.[94] In cross-examination Mr Long accepted the woman was his daughter Chelsea, claimed he could not remember anything about the incident, and claimed that ‘never in a million years’ would he have done this. He said the only time he smacked Chelsea as a child was on the behind when she said something bad. Curiously, he then said that he and Chelsea discussed this incident recently, during a telephone conversation. I do not believe he doesn’t recall the incident on 15 March 2009, and I do not believe his protestations that he would not have done the things recorded by the police on that occasion.
[94] Exhibit R2, 58.
When cross examined about a 24-hour order obtained by Chelsea from the police in 2010,[95] he said that Chelsea ‘wasn’t right’, ‘was ringing the police all the time’, and ‘was crazy’. Whilst it is clear that Chelsea has her own drug issues and has served a term of imprisonment for drug offences, his evidence tends to minimise his own role in the incident and blame his daughter.
[95] Exhibit R2, 122.
During the course of his evidence Mr Long denied ever hitting his wife. He claimed his breaches of VRO were due to his wife ringing him all the time. Once again, it was someone else’s fault.
Mrs Long’s evidence during cross examination evolved from an outright denial of any physical violence, to an admission that he was violent “maybe when we were younger”. She denied she was scared of him at any point and said she was never afraid of him. She denied he was controlling of her.
When confronted with her evidence from her AAT hearing in March,[96] Mrs Long initially attempted to explain the difference by saying her lawyer wrote the statement. She then said that she has seen how Mr Long has changed since she gave the earlier evidence. When she was confronted with the sentencing remarks from her August 2021 conviction, including what her son had written to the Judge,[97] she accepted that she did say she had suffered domestic violence, to the person who wrote the pre-sentence report, and she was aware of her son Brian’s letter to the Judge. She also accepted that the recording of her evidence given to the AAT in March 2024 was accurate. Ultimately, when asked whether I should rely on her earlier evidence in March 2024, or her statements to me at the hearing, she said I should rely on her evidence in March 2024.
[96] See paragraphs 68 and 69 above.
[97] See paragraph 67 above.
During re-examination she said that her understanding was that domestic violence meant physical violence, that in 2021 she was angry and blamed Mr Long for roping her in to the offending as she was facing a long prison sentence, she was clean and he was selling and using drugs and she was angry at him. I do not accept this explanation in light of the findings made by the sentencing Judge and the Tribunal.
I accept what Mrs Long said in March 2024[98] and the decision of the Tribunal at that time[99] as being more likely to be accurate given Mr Long was not present at that time. I also accept the truth of the sentencing Judge’s remarks. Furthermore, given there is clearly a history of domestic violence, including controlling behaviour, and what appears to be some physical violence, I cannot be sure that Mrs Long’s written statement that she provided for Mr Long’s current application for review,[100] and her initial denials of violence and fear, were not the product of Mr Long’s documented abusive and controlling behaviour towards her.
[98] Exhibit R3, 507-509.
[99] Long and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 726.
[100] Exhibit A2.
I find, on balance, that Mr Long has committed family violence over a long period of time, culminating in attempts to persuade Mrs Long to give inaccurate evidence in this hearing, including the concocted story about Sam. This long history of family violence has had a devastating effect on her life, and that of other family members, leading Mrs Ann Long into committing serious criminal offenses in company with him, as recently as 2020. I find this consideration weighs strongly against revocation.
The strength, nature and duration of ties to Australia
I accordance with paragraph 8.3 of Direction 110, I must also consider the strength, nature and duration of an applicant’s ties to Australia.
Mr Long settled in Australia in 1981, at 17 years of age and initially lived with his sister who had emigrated here.[101] He has lived in Australia for 43 years, during which time he has had a fairly consistent employment history, including working as a bathroom renovator, a tiler, in a drum factory, and as a roof carpenter.[102]
[101] Exhibit R1, G4, 142.
[102] Exhibit R1, G4, 33; Exhibit A1.
The remainder of Mr Long’s immediate family followed him to Australia.[103] He now has an extensive family in Australia comprising his mother, wife, sisters and brothers-in-law, adult children all of whom were born in Australia, grandchildren, and nieces and nephews. His mother,[104] two sisters and their husbands,[105] three surviving adult children[106] and all his grandchildren[107] are Australian citizens. His wife followed him to Australia, having first met him in the United Kingdom, and he told me they married here in May 1983. Mr Long described his family life with his children and grandchildren, including taking his children to work with him, on outings to the beach and fishing, and taking various grandchildren on motor bike riding outings.
[103] Exhibit A1.
[104] Exhibit R1, 106. I note, however that at Exhibit R1, 114, Mr Long lists his mother’s nationality as ‘British’. Regardless, I accept that Mr Long’s mother, Catherine Long, has a right to remain in Australia indefinitely.
[105] Exhibit R1, 114.
[106] Ibid.
[107] Exhibit R1, 112.
Mr Long’s counsel submits that this consideration should weigh strongly in favour of revocation. The Minister says the consideration should weigh moderately in favour of revocation and further contends that this is the strongest factor in favour of revocation.
Whilst I accept Mr Long genuinely cares very much for his family members, has contributed to their lives, and has contributed to the community through his regular employment when not in prison, some of the evidence of his family members is at odds with the objective reality of his life.
(a)His wife, Ann Long has provided a letter of support[108] and gave oral evidence in support of her husband. For the reasons set out above in respect to the family violence consideration, I do not place much weight on her statement.
(b)His youngest daughter, Elyce, says her father has been a role model for his grandchildren, a description that is difficult to accept in light of his criminal record and long-term drug addiction.[109]
(c)His sister, Maria Anderson, says she needs him to stay in Australia to assist with caring for their mother,[110] which both she and her mother say he assisted with in the past. This evidence must be viewed in the context of Mrs Catherine Long being presently aged 81, being in a wheelchair and suffering from extremely serious health conditions including emphysema, and having had regular admissions to intensive care,[111] with Mr Long’s earliest release date being January 2029, if he were to get parole.
[108] Exhibit A2.
[109] Exhibit A4.
[110] Exhibit A7.
[111] Exhibit A3.
Mr Long’s son Brian’s evidence is the most troubling.[112] Brian describes his father in the following manner:
My father has been a resident of Australia for fifty plus years and has consistently contributed positively to the community. Throughout his time here, he has been a responsible and law-abiding individual, supporting not only our family but also engaging in our families well being. His dedication to his work and his family has been unwavering, and his ties to this country are strong.
He has had his faults yes, battling with drug addiction for most of my life. I’ve seen the good with the bad. But his heart is pure, and I truly believe he would always try his best with the tools that he has to help anyone. They need only ask.
Emphasis added
[112] Exhibit A10.
This description stands in stark contrast to the picture of his father presented by both his lengthy criminal record, and Brian’s evidence in his mother’s, Ann Long’s sentencing in which Brian submitted a letter to the Court. The sentencing remarks say:[113]
You told the author of the pre-sentence report that you’d been the subject of domestic violence perpetrated by Mr Long over the years which has resulted in periods of separation.
And yesterday I received a letter from your son which confirms that. He says he’s witnessed (inaudible) your husband being a heroin addict, and he’s witnessed abusive and controlling behaviour towards you at times. And he talks about his father having [sic] a large ego-carrying individual with a menacing heroin addiction.
Emphasis added
[113] Exhibit R3, 500
Despite the glowing references from his family members, Mr Long has co-opted some family members into his criminal activities.
(a)One incident involved his daughter in January 2020, a matter that he freely admitted the facts of when cross-examined.[114]
(b)Mrs Ann Long was sentenced in 2021 for her role in the drug offences which are Mr Long’s most recent offences. Mrs Long’s parole assessment report, which was before the Tribunal in March this year, identifies Mr Long’s negative influence as a primary risk factor in her likelihood of reoffending.[115] Notably, both her sentencing Judge,[116] and his,[117] regarded her role in the offending as lesser than his.
(c)It was at Mrs Catherine Long’s home that $290,600 was found by police on 23 January 2020, being the proceeds of the trade in methamphetamine for which Mr Long was later convicted.[118] A further $128,000 was found to have been deposited into her bank accounts over the previous four years.[119] In cross-examination, Mr Long said he was not sure if his mother had been charged over these events, but the money had all been confiscated.
[114] Exhibit R2, 81.
[115] Long and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 726 [81].
[116] Exhibit R3, 500.
[117] Exhibit R1, 34-35.
[118] Exhibit R3 63, 71; Exhibit R2 80.
[119] Exhibit R2, 86.
Paragraph 8.3(2)(a)(i) of Direction 110 provides that ‘less weight should be given where the non-citizen began offending soon after arriving in Australia’. In Mr Long’s case the first recorded offence took place in 1983, aged 19, less than 2 years after his immigration and shortly after the birth of his son Brian, and his marriage.
I all the circumstances, I conclude that the strength, nature and duration of Mr Long’s ties to Australia weighs moderately in favour of revocation of the Cancellation Decision.
Best interests of minor children in Australia affected by the decision
I must also consider the best interests of the minor children in Australia affected by the decision.
Mr Long has 7 grandchildren under 18 years of age in Australia, whose ages range between 2 and 14 years of age.[120] The grandchildren may be classified into three groups:
(a)grandson A, aged 14 at the time of the hearing;
(b)granddaughter A, aged 3 at the time of the hearing, and grandson D, aged 2 years at the date of the hearing;
(c)grandsons B and C and granddaughters B and C, aged 6, 11, 10 and 6 respectively at the time of the hearing.
[120] I will not use the children’s names so as to protect their identities.
Grandson A is the oldest grandson. His father died in tragic circumstances when he was 7-years-old and Mr Long is his closest male relative. With the exception of 21 days when this child was aged 6, Mr Long has not been incarcerated during this child’s lifetime until 21 January 2020. The bond between this chid and his grandfather is the strongest of all the grandchildren and I accept that Mr Long was a significant figure in this child’s life.
Granddaughter A and grandson D were both born after Mr Long was imprisoned for his most recent offences. Granddaughter A has not met her grandfather. Grandson D’s only experience of his grandfather is in prison. Grandson D’s mother expresses a desire for Mr Long, her father, to develop a relationship with her son, however, until this child is 7 years of age, at the earliest, his only relationship will be in the context of prison.
Grandsons B and C and granddaughters A, B and C all had a pre-prison relationship with their grandfather. This included Mr Long acting in a parental role for grandson C and granddaughters B and C, when their mother was unable to care for them.
Mr Long described a variety of family events involving grandsons A, B and C, and granddaughters B and C. I accept that, until his incarceration in January 2020, he was a constant, loving presence in their lives. Incarceration has meant he has not had the opportunity to play as great a role as he, his children and his grandchildren would like.
I accept that for a variety of reasons not all of the grandchildren have spent any time with their grandfather since his incarceration. I do not draw any adverse inference from this. Visiting prison is a difficult thing to do and the decision as to which children and when they visit their grandfather is a decision best left to their parents.
The Minister submits that Mr Long will not necessarily play a positive role in his grandchildren’s lives given his criminal history as a whole. Whilst that is true, Mr Long said in his evidence that he saw it as his role to ‘encourage his grandchildren to get educations so they could get good jobs and buy nice things’.
None of the evidence suggests that any of the grandchildren are aware of Mr Long’s drug taking or criminal history. It does not appear that this aspect of his life is glorified to any degree at home.
I also accept that electronic communication will be possible if Mr Long returns to England. I do not however accept that this would be real alternative to an in-person, close, familial relationship.
In my view, given the closeness of the family and the hands on role he has played in their lives:
(a)grandson A’s best interests strongly favour revocation of the Cancellation Decision;
(b)the best interests of granddaughter A and grandson D moderately favour revocation; and
(c)the best interests of grandsons B and C, and granddaughters B and C, strongly favour revocation.
I find that the best interests of the grandchildren, as a whole, weighs strongly in favour of revocation.
Expectations of the Australian Community
I am required to consider the expectations of the Australian community as set out in Direction 110 at [8.5]. The consideration of this question, as with the others, is done against the background of the principles set out in Direction 110 at [5.2] and specifically in this case those matters set out in paragraphs [5.2(2)], [5.2.(3)], [5.2.(4)] and [5.2(6)].
The first sentence of paragraph 8.5(1) is a reflection of the rule of law as it applies to both citizens and non-citizens.[121] The remainder of paragraph 8.5(1) sets out the expectations of the Australian community as a norm. I accept that the effect of this is to deem what the expectations of the community are and thereby preclude me from undertaking any assessment of what, in any particular factual circumstances, the actual expectations of the Australian community might be.[122] That proposition itself is contained in Direction 110 at [8.5(4)]. The utility of this approach by Government in order to assist decision-makers is obvious.
[121] FYBR v Minister for Home Affairs [2019] FCAFC 185 [69]-[70].
[122] Ibid [67], [92]–[93].
Paragraph 8.5(2) also provides guidance by saying:
Non-revocation of the mandatory cancellation of a visa may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not... continue to hold a visa.
I am conscious that Mr Long’s behaviour is generally[123] not covered by the examples in that paragraph, however, it would be open to me to consider his offending as a whole, within the context of [8.5(2)].
[123] With the exception of the family violence conduct considered earlier in these reasons.
Mr Long’s counsel concedes that this consideration weighs against revocation, but also submits that there is no an unacceptable risk that he will breach the norm set out in [8.5(1)) so as to prevent him being able to remain. I reject the submission regarding risk. As I have found earlier in my reasons, there is in my assessment a high likelihood that Mr Long will reoffend. If he did, he would breach the norm in [8.5(1)].
As to [8.5(2)], I do consider that his history of family violence conduct brings him within the paragraph. This conduct was the subject of considerable submissions. However, given that neither party specifically addressed paragraph 8.5(2) in the context of his other offending, specifically in respect to his drug related offending culminating in him being declared a drug trafficker, I will not take that offending into consideration in the context of [8.5(2)].
In my view, the safety of the Australian community is of paramount importance. Mr Long’s offending history, throughout his entire adult life, is a history of substantial deviation from the norm of the community’s expectations expressed in [8.5(1)] and his history of family violence is of a nature that places him within [8.5(2)].
I find that the expectations of the Australian community weigh strongly against revocation.
Other considerations
Legal consequences of decision under section 501 or 501CA
I am required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[124] Non-refoulment considerations do not arise in this case.
[124] Direction 110 [9.1].
This consideration also makes reference to the range of legal consequences of a decision not to revoke the Cancellation Decision. These legal consequences include:
(a)Mr Long’s unlawful status;
(b)becoming subject to detention and/or removal, pursuant to sections 189, 196, 197C and 198 of the Act;
(c)the refusal of other visa applications and cancellation of other visas, pursuant to section 501F of the Act;
(d)a prohibition on applying for other visas, pursuant to section 501E of the Act; and
(e)periods of exclusion and special return criteria may apply, pursuant to section 503 and special return criteria 5001 of the Act.
Generally, if a visa is cancelled its former holder becomes an unlawful non-citizen immediately after cancellation.[125] Under section 189 of the Act, Mr Long must be detained and removed as soon as reasonably practicable under section 198.[126] The detention aspect of these considerations is of limited consideration here as Mr Long is currently serving a lengthy prison term with no prospect of being released before, at least, January 2029. I acknowledge that if he is granted parole, or when he serves his full prison term in January 2031, he will be transferred to immigration detention and likely deported shortly thereafter.
[125] Migration Act section 15.
[126] The Court in BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313 followed AJL20 v Commonwealth of Australia [2020] FCA 1305 to find the applicant’s detention had at all times been lawful at [112]-[122].
It is accepted by both parties that Mr Long will never be able to return to Australia if his visa cancellation is not revoked. That weighs heavily in light of his long life here. Notably in his oral evidence Mr Long told me that his wife would have to leave too, with him. Her evidence did not unequivocally support this view.
Mr Long’s counsel contends that, given Mr Long’s lifetime in Australia and the fact his entire family are based in Australia, this consideration ought to be given significant weight in favour of revocation.[127]
[127] ASFIC [65].
I accept the removal and visa limitations which result from a decision not to revoke the cancellation of the visa are an intended consequence of the operation of section 501 of the Act. However, I do accept that in Mr Long’s situation, it would effectively mean that he is exiled from his family. Given the strength of his family ties, this will plainly be a huge loss for him and for them.
I find that this consideration carries moderate weight in favour of revocation of the Cancellation Decision.
Extent of impediments if removed
Paragraph 9.2 of Direction 110 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c), I must consider the extent to which Mr Long would face an impediment or impediments in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of that country. The matters identified in [9.2(1)] are:
(a)Mr Long’s age and health;
(b)whether there are substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to Mr Long in the United Kingdom.
Mr Long is currently aged 61 and will be 65 years old in January 2029. He has permanently lived in Australia since he was 17 years old. His childhood was spent in the United Kingdom and his education was undertaken there. He will not have any language difficulties if he returns to the United Kingdom, and I doubt he would encounter much by way of cultural difficulties, albeit a great deal will have changed since he lived there as a child. He does however have very little family remaining in the United Kingdom, his entire immediate family having moved to Australia at about the same time as he did. His wife, two adult daughters and a son live in Perth, as does his mother, two sisters, two brothers-in-law, and eight grandchildren. It is clear that his support network is in Australia, which will make the move to the United Kingdom difficult.
Apart from his on-going drug addiction, for which he is presently in a methadone program whilst in prison, he identified no health issues which would make a return problematic.[128] I have no information regarding the availability of methadone or other drug treatment programs in the United Kingdom, so it is unknown if he would be able to access treatment for his addiction. It is known that Mr Long’s response to significant emotional trauma has twice been to resume taking heroin. It is certainly possible this will be his reaction if he is deported, particularly given he will not have his family or other social supports, nor familiar counselling and health services available. Having said that, it is common knowledge that the United Kingdom has standards of health care, social welfare and housing support which are comparable to Australia, which he would be able to access.[129]
[128] There was evidence before the sentencing Judge of elevated levels reflecting major depression, anxiety and post-traumatic stress disorder: G at 33-34, but Mr Long does not suggest now that he has any mental health issues.
[129] Webb v Minister for Home Affairs [2020] FCA 831 [100].
Mr Long will undoubtedly suffer some difficulty in finding employment in the United Kingdom as his entire working life has been in Australia where he has contacts and a reputation, which he will not have in the United Kingdom. He has however shown himself to be resourceful in obtaining employment throughout his adult life, despite his long criminal history, and that resourcefulness will no doubt assist him. He says it will be difficult for him to obtain work because of the age he will be when deported, and because of his status as a deportee.[130] Having heard from Mr Long I have no doubt he will be able to find employment, if he chose to. As the Minister submitted, Mr Long is enterprising and he is likely to find work if he wants it.
[130] Exhibit A1, 8.
Mr Long’s counsel submitted that the “ship has sailed” on returning Mr Long to the United Kingdom, and the time to do so was 15 years ago. That submission harks back to the events set out in paragraph 7 above, where Mr Long had a reprieve from deportation as a result of some legal good fortune falling his way. A lot would be different if he had been deported at that time, but it is neither necessary nor appropriate to speculate on that. I do accept that deportation will weigh heavier on Mr Long now, due to his age, his continued addiction, and his lack of family and support networks in the United Kingdom. Against that however, he is being deported to the United Kingdom, not some country with an unknown foreign language, unfamiliar social systems, no healthcare or social security safety net, or somewhere torn apart by war. I do not accept that it is too late for Mr Long to return to the United Kingdom, albeit I do accept it will be difficult for him.
I find that the extent of impediments if removed weighs slightly in favour revocation.
CONCLUSION
I have found Mr Long does not pass the character test under section 501 of the Act.
I have therefore considered if there is another reason why the Cancellation Decision should be revoked, giving regard to the considerations set out in Direction 110, and weighing the various considerations in accordance with paragraph 7 of the Direction, and in accordance with the authorities which bind my decision making.
In determining the weight to be applied to each individual consideration, I have considered all the primary and other relevant considerations and weighed them in light of the evidence and according to the guidance provided by Direction 110.
Of the primary considerations, I find:
(a)the protection of the Australian community, family violence, and the expectations of the Australian community weigh strongly against revocation;
(b)Mr Long’s ties to Australia weigh moderately in favour of revocation; and
(c)the best interests of minor children weigh strongly in favour of revocation.
In relation to those other considerations which are relevant to this case, I find:
(a)the legal consequences of the decision weighs moderately in favour of revocation; and
(b)the extent of impediments if removed weighs slightly in favour of revocation.
Paragraph 7(2) of Direction 110 states that primary considerations should generally be given greater weight than the other considerations. It also provides that the protection of the Australian community is generally to be given greater weight than the other primary considerations, which is a principle that I apply in this case.
Having weighed the considerations in favour of the revocation of the cancellation of Mr Long’s visa and the considerations against revocation, I conclude:
(a)the three primary considerations of protection of the Australian community, family violence, and the expectations of the Australian community, outweigh those primary considerations in favour of revocation, being the strength, nature and duration of ties to Australia, and the interests of minor children; and
(b)this is so even when the two primary considerations which weigh in Mr Long’s favour are combined with those other considerations in Mr Long’s favour, being the legal consequences of the decision and the extent of impediments if Mr Long is removed.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction 110, I am not satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked.
DECISION
The decision of the delegate of the Minister dated 26 September 2024 not to revoke the cancellation of Mr Long’s Class BB Subclass 155 Five Year Resident Return visa under section 501CA(4) is affirmed.
I certify that the preceding 135 (one hundred and thirty five) paragraphs are a true copy of the reasons for the decision herein of Deputy President Thompson SC
............................[SGD].....................................
Associate
Dated: 23 December 2024
Date of hearing: 10 and 11 December 2024 Counsel for the Applicant: Mr H Glenister Solicitors for the Applicant: William Gerard Legal Pty Ltd Counsel for the Respondent: Mr A Burgess Solicitors for the Respondent: Australian Government Solicitors ANNEXURE – MR LONG’S CRIMINAL HISTORY
Offence date Conviction date Offence Sentence Unknown 27 January 1983 Speeding by more than 20km/hr but less than 30km/hr $70 fine Unknown 4 March 1983 Possess smoking implement $20 fine Unknown 4 March 1983 Cannabis smoked/used $30 fine Unknown 31 March 1983 No Seat Belt (Driver) $30 fine 19 May 1983 2 September 1983 No Motor Drivers Licence $50 fine Unknown 2 September 1983 Resist arrest $30 fine Unknown 2 September 1983 Possess smoking implement $100 fine Unknown 2 September 1983 Cannabis sell/supply $100 fine Unknown 2 September 1983 Cannabis poss qty intent sell/supply $200 fine Unknown 3 November 1983 Break enter and steal $100 fine; restitution $120 Unknown 2 January 1985 Hinder police $100 fine Unknown 3 October 1985 Possess smoking implement $100 fine Unknown 3 October 1985 Cannabis possess a quantity $200 fine Unknown 6 May 1986 Receiving $750 fine Unknown 5 November 1987 Heroin sell/supply 12 months imprisonment Unknown 5 November 1987 Heroin poss qty intent sell/supply 2 years imprisonment 28 February 1992 9 June 1992 No Motor Drivers Licence $100 fine Unknown 31 August 1992 Cannabis possess a quantity $350 fine Unknown 1 September 1992 Hinder police $200 fine Unknown 1 September 1992 Heroin manufacture $500 fine Unknown 22 October 1992 Breach of Probation (6 counts) 12 months imprisonment each charge (concurrent) 8 March 1994 4 August 1994 No Motor Drivers Licence $120 fine 8 March 1994 4 August 1994 Contravene Red Traffic Control Signal $120 fine Unknown 28 March 1994 Robbery whilst armed in company 7 years imprisonment 29 October 1996 10 April 1997 No Motor Drivers Licence – Under Suspension $200 fine
Licence disqualified 9 months (cumulative)
Unknown 23 December 1998 Cannabis cultivate $500 fine 14 January 1999 9 November 1999 Wilfully mislead police $400 fine 14 January 1999 9 November 1999 No motor drivers licence $100 fine exp 14 January 1999 9 November 1999 Failing to supply particulars after accidence $200 fine 14 January 1999 9 November 1999 Careless driving $200 fine 27 May 1999 18 June 1999 Refuse to supply or provide false name and address $250 fine
Licence disqualified 9 months (concurrent)
27 May 1999 18 June 1999 No motor drivers’ licence – under fine suspension $1,000 fine
Licence disqualified 12 months (cumulative)
Unknown 18 June 1999 Breach of bail $300 fine Unknown 1 July 1999 Stealing (2 counts) 4 months imprisonment, suspended for 18 months 18 July 1999 13 August 1999 Suspended imprisonment sentence breached 7 July 2000 imposed from 2 years suspended sentence to 6 months imprisonment 18 July 1999 13 August 1999 Refuse to supply or provide false name or address $100 fine 18 July 1999 13 August 1999 No motor drivers’ licence – under suspension 6 months imprisonment, Licence disqualified 18 months (cumulative) Unknown 7 July 2000 Stealing (m/vehicle) (2 counts) Total 2 years imprisonment (concurrent) Unknown 7 July 2000 Stealing (5 counts) Total 3 years imprisonment (cumulative) 9 August 2004 10 August 2004 No motor drivers licence – under fines suspension $800 fine
Licence disqualified 5 months (cumulative)
9 August 2004 13 August 2004 No driver’s licence (fines suspension) Community Based Order (CBO): 6 months (concurrent) 9 August 2004 13 August 1004 Exceed the speed limit by 10-19 kilometres per hour $50 fine 9 August 2004 13 August 2004 Refuse to supply or provide false name and address $100 fine 9 August 2004 13 August 2004 No motor drivers licence – under fines suspension $500 fine Unknown 9 August 2005 Burglary and commit offence agg (place) (2 counts) Total 4 years 8 months imprisonment (cumulative) 22 May 2009 8 July 2009 Breach of violence restraining order $300 fine 22 May 2009 8 July 2009 Breach of violence restraining order $400 fine 8 February 2012 19 March 2012 Reckless driving – dangerous to the public or any person $1,000 fine
Licence disqualified 9 months
12 July 2012 29 August 2012 No authority to drive – suspended $1,200 fine
Licence disqualified 9 months (cumulative)
27 March 2013 27 March 2013 No authority to drive – suspended Suspended imprisonment order (SIO): 9 months (concurrent)
Licence disqualified 9 months (cumulative)
25 May 2015 18 November 2015 Exceed speed limit in a built up areas between 10 and 19km/h $200 fine 12 May 2015 18 November 2015 No authority to drive – suspended Licence disqualified: 12 months (partly cumulative)
CBO: 10 months (concurrent)
2 March 2016 13 May 2016 No authority to drive – suspended SIO: 9 months imprisonment (concurrent)
Licence disqualified: 12 months (cumulative)
$400 fine
19 April 2016 13 May 2016 Breach of Bail Undertaking $500 fine 9 February 2017 10 May 2017 No authority to drive – suspended Licence disqualified 9 months (cumulative)
SIO: 9 months (cumulative)
24 March 2017 10 May 2017 No authority to drive – suspended Licence disqualified 9 months (cumulative)
SIO: 9 months (concurrent)
19 April 2017 10 May 2017 No authority to drive – suspended Licence disqualified 9 months (cumulative)
SIO: 9 months (concurrent)
5 February 2019 27 May 2019 Exceed 0.02g alcohol per 100ml of blood $200 fine
Licence disqualified: 3 months (concurrent)
5 February 2019 27 May 2019 No authority to drive – suspended Licence disqualified: 12 months (cumulative)
SIO: 9 months (concurrent)
19 December 2019 13 May 2021 Sold a prohibited drug namely methylamphetamine 4 years imprisonment (cumulative)
Drug trafficker declaration
23 January 2020 13 May 2021 Possession of stolen or unlawfully obtained property 30 months imprisonment (concurrent) 23 January 2020 13 May 2021 Possession of stolen or unlawfully obtained property 1 year imprisonment (concurrent) 23 January 2020 13 May 2021 (Att) to possess a prohibited drug 7 years imprisonment (cumulative)
Drug trafficker declaration
23 January 2020 20 May 2021 Fail to comply with a requirement 12 months imprisonment (concurrent)
22
0