LPGJ and Minister for Home Affairs (Migration)
[2018] AATA 1075
•27 April 2018
LPGJ and Minister for Home Affairs (Migration) [2018] AATA 1075 (27 April 2018)
Division:GENERAL DIVISION
File Number: 2018/0560
Re:LPGJ
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:R. Cameron, Senior Member
Date:27 April 2018
Place:Melbourne
The Tribunal affirms the decision of the Respondent’s delegate dated 6 February 2018 refusing to revoke the mandatory cancellation of the Applicant’s Class BF transitional (permanent) visa.
...............................[sgd].........................................
Senior Member
MIGRATION – non-revocation of mandatory visa cancellation – applicant has had multiple terms of imprisonment exceeding 12 months – applicant fails character test by virtue of substantial criminal record – protection of Australian community – expectations of the Australian community – strength, nature and duration of ties to Australia – decision under review affirmed
MIGRATION – other considerations in deciding whether to revoke a mandatory cancellation of a visa – international relations – request by applicant that the Tribunal contact UK Government to ascertain their view on the possible return of the applicant to the United Kingdom – practical difficulties in making such an inquiry – attitude of a foreign state towards the return of a non-citizen with a history of criminal conduct is an irrelevant consideration for the Tribunal in ss 501/501CA character matters – request refused
LEGISLATION
Administrative Appeals Tribunal Act 1975; s 33
Australian Constitution; s 51Migration Act 1958; ss 4, 195A, 499, 500, 501, 501CA
CASES
Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65 – Migration Act 1958 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501 CA, 22 December 2014
REASONS FOR DECISION
R. Cameron, Senior Member
27 April 2018
INTRODUCTION
The Applicant is a citizen of the United Kingdom. He was born on 28 April 1980 and is currently 37 years of age. He arrived in Australia in May 1994 when he was aged 14. He has resided in this country ever since.
The Applicant was, until 4 January 2017, the holder of a Class BF transitional (permanent) visa (“the visa”). On that date, his visa was mandatorily cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
At the time of the cancellation of his visa the Applicant was in custody at the Karreenga Annex of the Marngoneet Correctional Centre in Lara.
As a result of the mandatory cancellation, he was placed into immigration detention and in more recent times has been held at the Christmas Island Immigration Detention Centre.
The Applicant subsequently submitted a request for revocation of the mandatory cancellation of his visa pursuant to section 501CA of the Act. On 6 February 2018 a delegate of the Minister for Home Affairs and Minister for Immigration and Border Protection decided not to revoke the decision to cancel the Applicant’ s visa. This decision is the one that is under review in these proceedings (“the reviewable decision”).
RELEVANT LAW
Migration Act 1958
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…; and
(b)the person is 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 a Territory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a substantial criminal record. Relevantly for this application, section 501(7)(c) provides than a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more.
With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act. The Applicant filed this application for review with the Tribunal on 7 February 2018.
Under section 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65 (“the Ministerial Direction”).
Direction No. 65
It is appropriate to record several of the sections of the Ministerial Direction that are applicable with respect to this Application. Paragraph 6.2 is entitled “General Guidance” and relevantly provides:
(1)The Government is committed to protecting the Australian community from harm as a result of the criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2 are contained in paragraph 6.3, which relevantly provides:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as miners, 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.
…
(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 noncitizen is visa should be cancelled, or their Visa application refused.
Part C of the Ministerial Direction provides guidance for revocation decision-making and contains a number of primary and other considerations (outlined later in these reasons for decision). Finally, paragraph 8(4) of the Ministerial Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that One or more primary considerations may outweigh other primary considerations.
ISSUE TO BE DECIDED
The Applicant accepts that he fails the character test.[1] Having regard to this concession and the multiple terms of imprisonment exceeding 12 months that he has served, the Tribunal is satisfied that he fails the character test because of the operation of section 501(6)(a). Accordingly, the issue to be determined in this proceeding is whether there is any other reason why the mandatory cancellation should be revoked as provided for in section 501CA(4)(b)(ii) of the Act.
[1] This concession is made in paragraph 3 of the "Submissions of the Applicant" dated 8 March 2018 prepared by counsel for the Applicant and filed with the Tribunal.
THE EVIDENCE BEFORE THE TRIBUNAL
The following evidence was before the Tribunal:
(a)Statement of the Applicant – Document headed “Attention Hymans solicitors, replacement pages (1 – 25) only of the 3 sets of documents sent”;
(b)Statement of the Applicant – document headed “Attention Hymans solicitors, Attachment A, 3 pages, rough copy, letter of summary”;
(c)Statement of the Applicant – document headed “Attention Hymans solicitors, family importance letter, 3 pages 1A, P1, P2 and P3;”
(d)Bundle of IHMS (International Health and Medical Services) Records;
(e)Further bundle of IHMS records;
(f)Document dated 19 September 2017 headed “Out of Control Rage”;
(g)Document headed “Attention Hyman solicitors, A x 1 LETTER FOR WORK”;
(h)Bundle of Monash Health documents; and
(i)Paginated G documents prepared by the solicitors for the Respondent.
Additionally, there was viva voce evidence given by the Applicant.
THE SUBMISSIONS OF THE APPLICANT
The Applicant filed written submissions[2] as noted previously and also his counsel made various submissions by way of opening and closing at the hearing of this application before the Tribunal.
[2] The written submissions prepared by counsel for the Applicant were of course taken into account by the Tribunal and are referred to in their entirety for their full force and effect. The consideration in this section of these reasons is naturally intended to provide a synopsis of such submissions.
The Submissions contended that the Applicant had made “substantial inroads towards rehabilitation”. This, it was asserted, has several manifestations:
(a)Firstly, he now abstains from drugs;
(b)Secondly, he has gained a significant insight into the seriousness of his actions;
(c)Thirdly, that he had a strong support network from his family to which he could return if allowed to remain in Australia; and
(d)Fourthly, he intends to obtain employment if he is permitted to remain in Australia.
The Ministerial Direction was then considered in the light of the Applicant’s history of drug offending, past extensive drug use and what was described as his fragile mental health state. It was contended that the Tribunal should attempt to identify and quantify the risk and not make a decision by reference to what was described as “vague notions” that an applicant represents a serious risk of harm to the community. It was asserted in comparative terms that the Applicant’s offending was not as serious as other cases before the Tribunal.
In this context it was submitted the risk of reoffending together with the nature of possible future harm is at the lower end of the scale and therefore, overall concerns the Australian community might have had about the Applicant are not as severe as an initial consideration of his past criminal history might reveal.
There were then submissions about the expectations of the Australian community and a contention that it is difficult if not dangerous to place any weight on this factor because ultimately, however one attempts to construe it, it is something that in practical terms that is almost meaningless. It was, however, contended that if the Tribunal were minded to assess this consideration, weight should be given to the fact that the Applicant’s offending was, to a substantial degree, a product of the Australian community’s failure to protect him from institutionalised paedophilia and abuse when he was a young child.
The other matters were considered with greater emphasis placed on some rather than others.
In terms of strength, nature and duration of ties to Australia, it was contended that the Applicant, having substantially grown up in Australia and resided here for more than 23 years together with his entire family, was entitled to have the Tribunal place heavy weight on this consideration.
As a corollary of this contention, it was also submitted that if the Applicant were not allowed to remain, his family would also suffer significant emotional turmoil which it is not appropriate to subject them to.
Another matter that the Applicant’s counsel emphasised was an assertion that the Tribunal should make an enquiry of the High Commission of the United Kingdom or the United Kingdom Government to determine the UK Government’s attitude towards any potential return of the Applicant to the UK.
Finally, with respect to the Respondent relying upon past warnings that had been given to the Applicant about the cancellation of his visa, the Applicant contended that his offending had not been seen as sufficiently serious in the past to justify his removal and further, that any change of policy by the government of the day as to the threshold for removing a person from Australia under the character regime should not be given much weight.
THE SUBMISSIONS OF THE RESPONDENT
The Respondent’s contentions followed a similar theme both in the written submissions and in submissions from the bar table during the course of the hearing before the Tribunal.
The starting point and a continuing theme in the submissions were the requirements of the Ministerial Direction and in particular the protection of the Australian community.
In the context of violent crimes being viewed very seriously by the Ministerial Direction, the fact that the Applicant’s criminal record contained numerous convictions for violence was emphasised. The sentencing comments of the trial judges concerned were emphasised, particularly with respect to crimes of violence committed by the Applicant.
Other matters arising from the Applicant’s criminal history were emphasised including as follows:
(a)That paragraph 13.1.1(1)(b) of the Ministerial Direction directs that crimes committed against police officers on duty are serious;
(b)That paragraph 13.1.1(1)(c) of the Ministerial Direction requires the decision maker to take into account sentences imposed by the court and that that the applicant has been sentenced to terms of imprisonment equal to or exceeding 12 months no less than eight times;
(c)That the Applicant had formally been warned in writing about the consequences of his continuing offending on his visa status and that he had had four previous warnings in 2005, 2008, 2009 and 2013, yet his offending continued;
(d)The sentencing judicial officers had made a variety of remarks in relation to his risks of reoffending[3];
(e)The Applicant has reoffended whilst being on a drug treatment order;
(f)There is a real risk of the Applicant relapsing into addiction;
(g)The Applicant has few marketable skills and spent most of his life either offending or incarcerated;
(h)The Applicant appeared to have little insight into his own offending;
(i)Little if any weight should be put on the Applicant’s assurances that he would not reoffend and there is a real risk that he will offend in the future;
(j)The Respondent tackled the assertion that had made been made by the Applicant that the Australian community owes some debt to the Applicant and emphasised that under the Ministerial Direction the primary considerations should be given greater weight generally than any other consideration. It was submitted that whilst the Australian community would be sympathetic to someone who had been subjected to the trauma the Applicant experienced, it will have all less sympathy for someone who had lived a life such as the Applicant’s and had done little to tackle his offending and reform. Once again, the warnings that had previously been given were emphasised and relied upon.
[3] See paragraph 21 of the Respondent's written submissions.
THE APPLICANT’S HISTORY OF OFFENDING
The Applicant has a very long history of offending. The National Police Certificate which was in evidence ran for 20 pages.[4] Such criminal history commenced on 14 February 1996 at the Ferntree Gully Children’s Court and continued steadily until 2016. The Respondent fairly made the point that the Applicant has appeared in court on over 60 occasions with the predominance of such offences relating to theft, burglary, assault, and drug use. There were also convictions for armed robbery and aggravated burglary, recklessly causing injury and assaulting police whilst on duty. It is a long and sustained pattern of criminal activity which commenced from a comparatively young age and continued well into adulthood beyond the stage that the Applicant was a young man.
[4] G Documents, G3 at pages 23-42.
The Applicant received custodial sentences of 12 months or more on the following occasions:
DATE OF SENTENCING COURT OFFENCE TERM OF IMPRISONMENT 24 January 2001
Melbourne County Court
Armed robbery
15 months imprisonment.
27 July 2004
Melbourne County Court
Armed robbery
24 months imprisonment.
2 May 2007
Melbourne Magistrates Court
Theft of a motor vehicle
12 months imprisonment.
17 January 2008
Melbourne Magistrates Court
Theft from shop (shopsteal) (3 charges)
Theft (2 charges)
Intentionally destroy property (2 charges)
Prohibited person possess unregistered firearm
Burglary
Attempted theft of a motor vehicle
Attempted theft from a motor vehicle (2 charges)
Possess unregistered general category handgun
Possess controlled weapon without excuse
Aggregate 12 months imprisonment.
Concurrent.
On each charge: aggregate 12 months imprisonment. Concurrent.
On each charge: aggregate 12 months imprisonment. Concurrent
19 January 2009
Melbourne Magistrates Court
Theft of a motor vehicle
Unlicensed driving
Theft from motor vehicle
Theft
Assault police on duty (2 charges)
Intentionally destroy property
Unlawful assault
Theft from motor vehicle
Burglary
Aggregate 15 months imprisonment
Concurrent
28 July 2011
Melbourne County Court
Robbery
12 months imprisonment.
18 October 2011
Dandenong Magistrates Court
Burglary
Theft
Unlawful assault
Threat to inflict serious injury
Aggregate 12 months imprisonment.
Concurrent
31 August 2012
Melbourne County Court
Attempted armed robbery
30 months imprisonment.
Additionally, in evidence there is a transcript of the hearing before Magistrate Radford on 11 July 2016 where the Applicant pleaded guilty to assault by punching a victim 10 times to his head and eye area causing bruising to the victim’s right cheek, eye and causing bleeding from his mouth. A further series of 10 punches around the face and head also occurred which was followed up by kicking the victim. These offences occurred at the number 34 tram stop, outside 184 Carlisle Street, St Kilda on 8 April 2016. The Magistrate imposed a term of imprisonment of nine months.
In the course of submissions concerning an aspect of the Applicant’s offending the Tribunal was referred to the reasons for sentence of Judge McInerney of 28 July 2011.[5] In the course of those reasons at [27], Judge McInerney referred to sentencing principles identified in the case of R v Verdins.[6] The Victorian Court of Appeal[7] reformulated sentencing principles where a defendant suffered from impaired mental functioning, whether temporary or permanent (“the condition”). Those reformulated principles are referred to in their entirety. However, the Court of Appeal did observe that such a condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. The Respondent did acknowledge that the Verdins principles did apply to the Applicant and the “condition” with respect to his functioning, in this matter.[8] The Tribunal acknowledges that in undertaking this review the Verdins principles should be (and have been) taken into account when weighing up the Applicant’s moral culpability of his offending conduct. However, it is difficult for the Tribunal in the absence of appropriate expert evidence from healthcare professionals as to the nature and severity of his condition[9] to make a precise assessment as to the extent that such moral culpability will be reduced in accordance with such principles.
SOME OBSERVATIONS ON THE APPLICANT’S VIVA VOCE EVIDENCE
[5] Unfortunately, the offences for which the Applicant was being sentenced arose on 20 February 2010 only 14 days after the Applicant had been paroled after serving an aggregate sentence previously of 15 months for a series of theft and burglary charges (See [5] of Judge McInerney’s reasons for sentence of 28 July 2011).
[6] (2007) 16 VR 269.
[7] (2007) 16 VR 269 at 276.
[8] However, there was really limited medical evidence available to the Tribunal to enable it to assess with any level of accuracy how to apply the Verdins principles to the Applicant's condition overall. There was no specific medical report prepared for the Tribunal for the purposes of this application or, the initial request for revocation of the mandatory cancellation decision with the Respondent. This is unfortunate. There were clinical notes produced by the Applicant from the Monash Medical Centre that appeared to have been provided to the Applicant or his legal advisors under a freedom of information request. However, the documents produced from the Monash Medical Centre did include the report from Jeffrey Cummins dated 12 October 2010 which was referred to in Judge McInerney’s reasons for sentence of 28 July 2011 in which he applied the Verdins principles. The report of Cummins has been considered by the Tribunal, as it was by Judge McInerney. Cummins stated, amongst other things, that the Applicant "…has an appalling Criminal History Record." The contents of the report are referred to in their entirety, however the author concludes that the Applicant's prognosis is very poor and in his opinion his offending behaviour is secondary to his mental health problems. The reason this aspect of the report is referred to is that the Applicant gave evidence that he is not taking any medication at this time, nor does it seem is he undergoing any treatment, and one has to question whether in the light of the observations made by Cummins this is appropriate. This assumes further relevance in the context of the Cummins report because its author noted in one paragraph that the Applicant during the course of a consultation "spontaneously stated – ‘The trouble is, last time I was only out for about 14 days. I can't be released without being stabilised on the right medication. I feel I've been repeatedly traumatised by the system. I still feel like I'm a little kid. My moods change all the time and my personality changes. I can't concentrate. I last had a seizure about 2 1/2 months ago.’ In response to direct questioning, he said when he last had his liberty he was abusing alcohol and cannabis but no other illicit drugs." This is of concern and mirrors a submission made with considerable force and effect by Mr Cunynghame on behalf of the Respondent that whilst the Applicant may be drug and alcohol free at the moment and has been for some time, this is in the context of when he is in custody and he does his best in a regulated environment. Were he to be released from detention and no longer subject to the controlled environment of that setting the risks of him returning to drug and alcohol use which might lead to commission of further crimes would be correspondingly increased.
[9] In Verdins at 276 the Court of Appeal held that impaired mental functioning at the time of the offending may reduce the offender’s moral culpability if it had the effect of:
a)impairing the offender’s ability to exercise appropriate judgement;
b)impairing the offenders ability to make calm and rational choices, or to think clearly;
c)making the offender disinhibited;
d)impairing the offender’s ability to appreciate the wrongfulness of the conduct;
e)obscuring the intent to commit the offence; or
f)contributing (causally) to the commission of the offence.
Whilst the reasons for sentence provided by Judge McInerney referred to the report of Jeffrey Cummins which was contained in the Monash medical documents, the Tribunal does not have the benefit of any other material that might assist in assessing the role of the Applicant’s condition in his extensive criminal offending.
The Applicant gave evidence in the witness box. His evidence consisted of evidence in chief taken by his counsel and of course cross-examination. He presented as a truthful witness who did his best in the circumstances confronting him, which were obviously quite distressing. It was also apparently distressing to him in the context of the fact that his mother was present throughout the hearing before the Tribunal. Overall, he was quite a credible witness who made appropriate concessions when called for and did face up to his criminal past, readily conceding not only the commission of the crimes and the gravity of the crimes, but also the effect on his victims particularly where violence was involved.
THE HISTORY OF CHILD ABUSE SUFFERED BY THE APPLICANT AND ITS CONSIDERATION IN THIS APPLICATION
The Applicant gave both viva voce evidence and documentary evidence (in the form predominantly of statements made by him) to the Tribunal concerning sexual abuse he had suffered as a child whilst a ward of the state or otherwise in some form of institutional care.
The sexual abuse that he suffered occurred both in the United Kingdom and after his arrival in Australia. In particular during his time in Australia he was in some form of foster care and a hostel in Box Hill. It was during his time there that he was sexually abused. In the course of enduring such sexual abuse he was also introduced to drugs by his abusers. He stated that ultimately he gave evidence against his abusers at a criminal trial and received modest compensation.
The Applicant went into a downward spiral of sexual abuse, subsequent drug use and then ultimately crime. The crimes that he committed initially were as a result of being effectively ejected from the hostel or foster home that he was an inmate of during the day without any money or food. He then gave evidence that his initial crimes revolved around theft for the purposes of ultimately obtaining food and clothing rather than for personal gain.
The Applicant’s evidence as to the sexual abuse that he suffered, both documentary and viva voce, was not at all challenged.
THE PRIMARY CONSIDERATIONS
Paragraph 13(2) of the Ministerial Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision maker. It states:
…
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
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.
Protection of the Australian Community
Paragraph 13.1(1) of the Ministerial Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge 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. Paragraph 13.1(2) further states:
(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.
Nature and seriousness of the Applicant’s conduct
Paragraph 13.1.1 of the Ministerial Direction relevantly provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
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 committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated offending;
…
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
…
There does not seem to be any doubt that the conduct engaged in by the Applicant is serious. If one looks at the material available to the Tribunal this is readily evident. The starting point of course is the National Police Certificate itself which as noted earlier runs for 20 pages over a period of 20 years for a variety of offences that include armed robbery for which the Applicant received substantial prison sentences.
Additionally, the Tribunal has the benefit of the sentencing remarks or reasons made by Magistrate Radford on 11 July 2016[10], Judge Mason on 31 August 2012[11], Judge McInerney on 28 July 2011[12], Judge King on 27 July 2004[13] and Judge Gebhardt on 24 January 2001.[14] The contents of such sentencing remarks are referred to (as several of them were also referred to by Mr Cunynghame on behalf of the Respondent during the course of his submissions) and all described the offences as serious. It is acknowledged that in some of the sentencing remarks the magistrate/judge either applied the Verdins principles or acknowledged the Applicant’s difficult personal circumstances and history which go some way in explaining or providing an understanding of his criminality. However, even Judge McInerney in applying the Verdins principles did observe “There is no doubt that this is, objectively, a very serious incident in the sense of a young boy being attacked going about his own business and in riding a bike through a park.”[15] This is by way of contrast to the observations of Magistrate Radford who stated that the Applicant’s conduct on 8 April 2016 was amongst other things an: “Unprovoked attack”, “…tram stop, asked for a cigarette and gets his face beaten twice”, and “He’s innocently standing at a tram stop and gets his head beaten.” The Magistrate also stated “What is difficult is he’s got a very good record of reoffending.”
[10] In that matter the Applicant pleaded guilty to intentionally causing injury.
[11] In that matter the Applicant pleaded guilty to one charge of attempted armed robbery. In the course of the attempted armed robbery he produced a hammer and "swiped" it at the victim. The Judge did record that the Applicant entered a guilty plea to such an offence at the earliest practicable stage.
[12] In that matter the Applicant pleaded guilty to 5 charges including one charge of robbery, one charge of aggravated burglary and two theft charges. The second charge apparently involved four kitchen knives. In fairness to the Applicant the Judge observed at [9] of his reasons that it must be the weakest aggravated burglary charge ever laid by the Director of Public Prosecutions. (G27 of the G documents at page 285).
[13] In that matter the Applicant pleaded guilty to one count of armed robbery. The armed robbery was of a shopkeeper using a pair of scissors. The sentencing judge did observe "There are levels of armed robbery and this has to be one of the lowest level armed robberies that I have come across in all my time in the criminal law." She also observed "There is no doubt that you, [Applicant], are now and at the time was mentally unwell." And further at [9] of her reasons “You, [Applicant] are, indeed, a severe nuisance when you are not taking your medication, as was the case here, and you can obviously be a danger to the community and also to yourself. I hold no high hopes for your future, but this court and the community have to try and deal with and find ways of helping people in your position. You have significant prior convictions over the term of your quite young life." The reference to taking medication whilst not expressed by a medical practitioner must cause concern because the Applicant gave evidence that he is currently not taking any prescription medication for any issues that he may have. Whilst in one sense this is commendable, at another level it does raise a concern about whether the Applicant would see fit to seek and adhere to any course of treatment and medication that may be recommended by healthcare professionals in the event that he were to be released into the community.
[14] In this matter the Applicant pleaded guilty to one count of armed robbery and to one count of theft. In the course of committing that armed robbery the Applicant used a pocket knife and held it near the stomach of his victim to rob him of a mobile telephone.
[15] See the reasons of Judge McInerney (G Documents, G27 at page 285).
Notwithstanding the application of the Verdins principles and of course taking into account the extremely tragic history that the Applicant has had both as a child, a youth and an adult with respect to both sexual abuse, addiction and what would appear to be mental health issues, which the Tribunal has also taken into account, his offending is serious.[16]
[16] It is of Concern to the Tribunal that in some of the material the Applicant has described his offending in terms that do not reflect its seriousness. For instance in his "Request for Revocation of a Mandatory Visa Cancellation Under s501(3A)” (G Documents, G6 at page 51) he described his offending as "petty crime". Whilst several of the offences he committed would fall into this category, it is not correct to describe all of his offences this way. In a handwritten letter attached to his "Personal Circumstances Form” (G Documents, G9 at page 77) he states: "every single time I got charged it was made worse in wording only like (Aggravated Burglary) when really it's just a trespass." This assessment cannot be correct and is all the more puzzling given the fact that he pleaded guilty to aggravated burglary including in the County Court.
Further, notwithstanding the application of the Verdins principles as noted above and the consideration given by each of the sentencing judges to the background and history of the Applicant with respect to the abuse that he suffered, the sentences imposed for such offending were significant and a reflection again of the seriousness with which the judges considered the offending by the Applicant
The offending is also serious in the context of the fact that several of the offences (including those noted above) were committed on innocent victims going about their ordinary business. There were also the offences of violence against police whilst on duty. The Tribunal does not have all of the facts at its disposal concerning many of the offences committed by the Applicant recorded in the National Police Certificate but the frequency of offences that involve violence must be of concern.
Several of the Judges concerned and the Magistrate observed the fact that the Applicant had reoffended and Judge Mason noted that over those many years of offending the Applicant had many opportunities for rehabilitation through court directed programs but on many times they have been breached.[17]
[17] G Documents, G4 at page 45.
The re-offending on the part of the Applicant continued to occur on several occasions after he had been given formal warnings in writing by the Department about the consequences of such further offending in terms of his immigration status. This is a consideration that a decision maker must have regard to when assessing the nature and seriousness of the Applicant’s conduct under paragraph 13.1.1(g) of the Ministerial Direction[18].
[18] The precise dates of when written warnings were given to the Applicant are to be found in paragraph 56 below.
Indeed, lest it needs to be repeated the Applicant in response to a question from Mr Cunynghame in cross-examination readily acknowledged the fact that his offending was serious and said that any offending including all of his was serious. To his credit he did not shy away from the seriousness of his offending. In the light of this evidence there has to be a finding that the Applicant’s criminal offending was very serious.
Risk to the Australian Community should the Applicant reoffend
Paragraph 13.1.2 of the Ministerial Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers 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).
Should the Applicant reoffend there must be concerns that such reoffending might involve commission by the Applicant of crimes of violence and/or theft, particularly when drug affected. The risks would be that innocent people during the course of their daily lives might suffer the violation of their right to go about their business in safety without being threatened or harmed, let alone being robbed of their possessions or personal property.
The Tribunal finds that there is some tension reconciling the evidence given by the Applicant both in documentary form and viva voce in that, whilst acknowledging (as was conceded by the Respondent) that he has been drug-free for approximately two years[19] and expressed a desire to avoid taking drugs in the future and relapsing into a life of crime, his history of such drug abuse and crime is not a good one. Further, as previously noted there is a concern that whilst he has remained drug-free in the prison and an immigration detention environment (where he had access to what would appear to be frequent beneficial counselling and practical life skill courses) one must be concerned about the pressures that he will face upon his release into the general population should the decision to cancel his visa be revoked, when he does not live in such a regulated environment under a heightened level of personal scrutiny with access to regular counselling services at his doorstep and practical life skill courses which are likely to keep his mind focused on drug and crime free goals.
[19] At document G12 of the G documents there is an email from a prison officer of the Marngoneet Correctional Centre indicating that six recent drug tests had produced negative results. In this setting it is noted by the Tribunal that the Applicant contended that the Tribunal should take notice of the fact that drugs are readily available particularly in a prison and most likely a detention centre. This was relied upon as important evidence of the Applicant's capacity to undertake rehabilitation from his drug addiction.
It is acknowledged that there is some evidence of a counsellor whilst the Applicant has been in immigration detention, having assessed the Applicant as a low risk to himself and a low risk to others.[20] Further, as the Applicant and counsel representing him submitted, there is the document in evidence entitled “Prisoner Education Summary”[21] which records a variety of courses that the Applicant undertook whilst in custody at various prisons administered by Corrections Victoria. These courses were provided by the Kangan Institute which is a well-known and reputable TAFE college. The range of courses covered practical vocational skills, which were obviously intended to assist in equipping the Applicant for post-prison life.[22] Also amongst this material was a Certificate of Completion given to the Applicant upon him completing a course known as “Release Related Harm Reduction” on 19 January 2017.
[20] The contents of exhibit "A4" and exhibit "A5" are referred to. These documents are described as "Clinical Records" for the Applicant prepared by IHMS that appear to have been prepared by a "Counsellor" whose name on each of the documents has regrettably been redacted. Unfortunately, we know very little about the setting in which this counselling took place and the documents themselves do not state whether the low risk assessment would also apply in the event of the Applicant's release into the general community. One of these reports dated 2 March 2018 identified what was described as "Protective factors" including "Insight, family contact, physical exercise, motivation to grow". Presumably these factors would be relevant to the Applicant's capacity to adapt to life in the general community. The documents bear the dates from 20 September 2017 through 14 March 2018. The contents of the documents speak for themselves and have been considered by the Tribunal. Some of them record observations made by the counsellor during sessions with the Applicant and others record various seminars and presentations attended by him such as "Out of Control Range dealing with anger management rage and violence”. There were other seminars or presentations such as “Relationship Conflict Skills" being a program that also included "CBT skills and awareness of toxic relationships”. Others included, "Turning Negative into Positive" and "Judging Others". There appeared to be a variety of seminars that these documents record the Applicant participating in or attending which deal with a variety of life skill issues. Whilst these documents have some probative value there must be a limit to which they can be relied upon in conclusively determining one way or another, what if any, risk the Applicant poses to the community were he to be released. The author of the document is unknown, the qualifications and experience of such author is unknown, and the nature of the counselling provided and its purpose are also unknown. Presumably, one can infer that the documents were most likely created as some form of business record kept by the immigration detention centre to keep a notation of inmates' welfare from both their perspective and that of the custodians. As they were not specifically created to address the matters of concern to the Tribunal it does limit the weight that can be given to them. Of course, lest it needs to be said, the author of such documents did not give evidence.
[21] G documents, G14 at pages 90–93.
[22] Several of the courses were under the heading "Results" marked as "Withdrawn". No evidence was led as to why these courses were marked "Withdrawn”. Seven such courses were so marked "Withdrawn". 21 of the courses were completed with the result being "Competency achieved/pass."
In this context it will be recalled that the Applicant was written to by the Department with a warning in no uncertain terms that a visa refusal or cancellation may be reconsidered if, amongst other things, if he committed further offences in the future. These letters were sent to him on[23]:
(a)30 June 2005;
(b)20 May 2008;
(c)13 October 2009; and
(d)22 February 2013.
[23] The relevant letters are contained in document G 17 of the G documents. They are referred to in their entirety for their full force and effect. However, the warning is in clear and unequivocal language in bold fonts for added emphasis.
Upon receipt of each of these letters the Applicant signed an acknowledgement that he had received notice of the decision not to cancel the visa and further that he understood the prospects of a future cancellation of his visa occurring if further information of relevance came to attention of the Department. In the October 2009 letter he returned it with a handwritten statement to the effect that he and his family were grateful for the Department helping him to live in Australia, amongst other things. It has to be said that it is of much concern to the Tribunal that, in the face of these warnings, a consistent pattern of serious offending on the part of the Applicant continued. Unfortunately, he did not heed such warnings.
Also, as noted previously, he has had a history of non-compliance with drug treatment orders and court directed rehabilitation programs.
Whilst the Tribunal does not make a finding that the Applicant is a person who has the propensities of a past offender to reoffend it does nonetheless, consider that given these factors canvassed above, there must be a reasonable risk of reoffending on the part of the Applicant.
As paragraph 13.1.2(1) of the Ministerial Direction observes the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It was previously noted the Applicant has committed serious offences over a significant timespan, there is a reasonable risk of reoffending and the potential for harm to both people and property to occur as a consequence. With this in mind, the Tribunal finds that the protection of the Australian community consideration significantly weighs in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Best interests of minor children
Paragraph 13.2 of the Ministerial Direction relevantly provides:
(1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
…
d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e)Whether there are other persons who already fulfil a parental role in relation to the child;
f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
…
The Applicant has no biological children who are minors. He has one adult daughter. In some of the material he refers to having seven nieces and nephews present in Australia. When asked to state what impact the cancellation of his visa would have, or has had on his family he does not make any reference to the nieces and nephews. There is no evidence that he plays any role in the lives of his nieces and nephews. Further, it would have to appear from the considerable time that the Applicant has been either in prison or immigration detention that he could not have realistically contributed in any meaningful way to the development of or played a role in such nieces and nephews lives. As such, this consideration neither weighs in favour of or against revocation of the mandatory cancellation.
Expectations of the Australian community
Paragraph 13.3 of the Ministerial Direction relevantly provides:
(1)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.
Considerable submissions were devoted to what exactly is meant by “expectations of the Australian community”. The statement in paragraph 13.3(1) that the Australian community expects non-citizens to obey Australian laws while in Australia is not difficult to comprehend, nor is it unreasonable. Subject to this acknowledgement, the relevant provisions of the Ministerial Direction were reproduced above because they are provided under a power conferred upon the Minister by section 499 of the Act. They must otherwise be considered and duly considered with a degree of realism. How does one assess such an expectation beyond an obligation to obey the law? Is it by reference to views expressed in popular streams of the media such as talkback radio or the tabloid press? Or on the contrary is it to be measured by reference to views expressed by public broadcasters or academic journals and seminars? It is not always easy.
Recently, Mortimer J in YNQY v Minister for Immigration and Border Protection[24] made the observation that, in substance, this consideration (paragraph 13.3(1) of the Ministerial Direction) is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Ministerial Direction was in effect a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against revocation and indeed that was the intention of such paragraph in the Ministerial Direction. However, as noted above and further considered below, the Tribunal does not consider that it is appropriate to apply this consideration in this way given the history of sexual abuse suffered by the Applicant. In substance this consideration will generally weigh against revocation in circumstances where a person has been convicted of serious crimes, but sight must not be lost of the use of the phrase “may be appropriate” in paragraph 13.3(1) of the Ministerial Direction and the overall discretionary nature of the power to revoke. The effect of this is that, although this consideration is “inextricably linked to the other primary consideration of protection of the Australian community”[25] and a person’s previous offending, the Australian community may nonetheless expect revocation having regard to other relevant matters.
[24] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Forgie DP in Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].
[25] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 at [76].
The Applicant has contended that it is dangerous in the extreme to place any weight on this consideration. He further contends that if the Tribunal is minded to assess it as though it were worthy of any meaningful weight the dominant consideration should be that the Applicant’s predicament is in a large measure the creation of the Australian community because it failed to protect him from the sexual abuse he suffered.
It is difficult to accept this contention in the way it is put. The Act has mandated that the Minister may give directions and having done so it is for the decision maker to endeavour to determine their meaning and apply them accordingly. The sexual abuse suffered by the Applicant cannot and will not be downplayed. Nor should the apparent afflictions from which the Applicant has, at least in the past suffered, be ignored. It is a most unfortunate if not tragic history which has to be given just and proper consideration.
This just and proper consideration by the Australian community would naturally give heightened awareness to the Applicant as a result of the recent revelations of the Royal Commission into Institutional Responses to Child Sexual Abuse. There has been a community awakening as a result of this Royal Commission and a more open and sensitive consideration, let alone realisation of what many children in the position of the Applicant suffered during their childhood and years of youth whilst in institutional care. This change of attitude does not, though, entitle someone to be able to avoid being accountable for their actions, particularly as an adult. It does not defeat the obligation to obey the law.
The Applicant has engaged in protracted serious criminal conduct. It cannot be without its consequences. It is conduct that has affected innocent people going about their lives. The Australian community would expect that these people should be protected from a person such as the Applicant who it would appear preyed upon their vulnerability. It was not, always as sometimes described by the Applicant, a petty crime or a just crime to provide for his basic necessities. The Tribunal does accept that some of his crimes fell within these categories or classes. However, others did not. It is conceded with respect to the armed robberies that they were at the lower end of the scale and the observations of the sentencing judges have been referred to in these reasons. The fact that he readily pleaded guilty to such crimes in the circumstances he did is also acknowledged. Nonetheless, they were serious crimes of violence engaged in randomly against innocent victims notwithstanding the diminished moral culpability that can be ascribed to the Applicant.
Also, there is the issue that the Applicant has had access to a variety of support measures, medical facilities, counselling and rehabilitation opportunities which he unfortunately chose in most cases either not to use or only use in a prison environment. It is regrettable that he did not see fit until very recent times to try and make more of an effort to overcome the drug, alcohol and mental problems that he faced. Particularly, when along the way he had those opportunities available to him.
Given all these features of the Applicant’s offending, objectively considered, the Australian community would expect the mandatory cancellation of the Applicant’s visa to not be revoked.
OTHER CONSIDERATIONS
There are other considerations that should be considered in revocation matters which are identified in paragraph 14 (1) of the Ministerial Direction. It provides that:
(1) … These considerations 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.
On the evidence before the Tribunal, international non-refoulement obligations, impact on Australian business interests and impact on victims, do not arise for consideration and accordingly no weight is given to those considerations. However, on the evidence before the Tribunal and the submissions of both parties, strength, nature and duration of ties to Australia and the extent of impediments if removed both warrant further consideration.
Strength, nature and duration of ties to Australia
The Ministerial Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The Strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, 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).
As previously noted, the Applicant arrived in Australia and became a permanent resident in May 1994 at the age of 14 years. His offending commenced approximately 2 ½ years later with his first court outcome recorded in the Ferntree Gully Children’s Court on 14 February 1996.
It appears that, save for his biological father (of whom nothing is known), all his extended family reside in Australia including his mother, stepfather, grandfather two sisters and an adult daughter who was born in 1998. He gave evidence that he doesn’t know anyone in the United Kingdom anymore.[26] The Applicant gave evidence that his adult daughter now lives in Sydney and is three months pregnant expecting her first child. Apparently, she has made her way in life and lives with a partner and has pursued further study. Unfortunately, we do not have any evidence from his daughter as to the effect it might have upon her from her perspective. It is difficult therefore, to place too much weight on this consideration, but it is acknowledged that the effect of affirming the decision will be that the contact between the Applicant and his daughter in the future will of necessity be limited. He gave evidence that he speaks to her approximately two days every week.
[26] He also stated this in his "Personal Circumstances Form", see document G7 of the G documents at page 70.
The Applicant also gave evidence about the effect that it would have on his mother if he were not permitted to remain in Australia. Unfortunately, we did not hear any evidence from his mother as to how she would be impacted by his continuing absence.[27] There is an email that was sent by the Applicant’s mother to the Respondent in which she advocates for revocation of the decision to cancel the Applicant’s visa. In that email she does not articulate what effect it would have on her if he were no longer in the country other than to repeat, as observed above, that the Applicant has his entire family in Australia and to her knowledge has no known family in the United Kingdom who could provide any support.
[27] The Applicant's mother was apparently present in the Tribunal hearing room throughout the course of the case. There was some emphasis on this failure to call the Applicant's mother in the course of submissions from the Respondent. Beyond what has been observed in these reasons the Tribunal does not reach any other conclusions concerning this course of action.
The Tribunal acknowledges that if the Applicant is no longer in the same country as his mother it will have a significant impact upon her. This is notwithstanding the fact that her son, in the course of his life, has engaged in conduct that has no doubt caused her much upset and grief.
Also if the Applicant were no longer in Australia, this presumably would have some impact on his grandfather, stepfather and sisters, although, we do not have any evidence that informs the Tribunal as to what this impact may be.[28] There has been no real evidence provided to the Tribunal as to the relationship that he has with his sisters.
[28] The Applicant in his "Personal Circumstances Form", document G7 of the G documents (page 66), states that his grandfather, stepfather, daughter and his sisters, not to mention his mother, "would be devastated" if he were not permitted to remain in Australia. This is understandable; however, without some further evidence from them it is difficult to place much more weight upon this consideration. Save as previously stated with respect to the email from his mother, there was no evidence from any members of his family produced to the Tribunal.
It should be observed that given the lengthy periods of separation that the Applicant has had from his family either when institutionalised as a youth, in custody and finally in immigration detention, his family must have had to adapt to lengthy periods of his absence.[29] Regrettably, it has largely been the norm. It must be a factor that the Tribunal has to take into account.
[29] There has been limited evidence provided as to the frequency of visits, or telephone contact that the Applicant had with other members of his extended family during his lengthy periods of imprisonment and detention. It also appears that during the years of his youth in Australia contact with his mother was limited. He did comment in the document entitled “Attention Hymans solicitors, replacement pages (1-25) only of the 3 sets of documents sent” (exhibit A1) that he has since he has been in immigration detention talked daily to his mother via Facebook and that his family send each other birthday and Christmas cards. He further stated in that document that he had limited computer and phone access each day.
The Tribunal also needs to consider what contribution the Applicant has made to the Australian community. There is limited evidence as to what employment the Applicant has had during his time in Australia.[30] That evidence reveals some jobs largely of a manual nature for limited periods which have of course been punctuated or terminated by his periods of imprisonment. Further, particularly in the reasons provided by the sentencing judges on occasions when he has appeared in court that are in evidence it is apparent that the Applicant has had several protracted periods of homelessness.
[30] G documents, G7.
For these reasons it is apparent that only slight weight can be given to his time spent contributing positively to the Australian community in the relevant sense it is a factor significantly outweighed by the reality that his offending was far more extensive over a sustained timespan and involved serious crimes.
It is considered by the Tribunal that, all these matters considered, the strength, nature and duration of the Applicant’s ties to Australia weigh to some reasonable degree in favour of revoking the mandatory cancellation of the Applicant’s visa.
Extent of impediments if returned to the United Kingdom
In assessing the extent of impediments that the Applicant faces if he were to return to the United Kingdom, paragraph 14.5(1) of the Ministerial Direction requires the Tribunal to undertake an assessment of the extent that such impediments may affect him establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of the country), taking into account his 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.
It is acknowledged that the Applicant has spent most of his life in Australia and certainly, his entire life from the age of 14. Indeed, he gave evidence that he considered himself “an Australian”. This is understandable and naturally a factor to be considered by the Tribunal in this context.
The Applicant contended that given his “fragile mental health”[31] for which the Australian community is significantly to blame, he is at risk of suffering decline which may ultimately result in suicide.[32] His own evidence did not go that far. The evidence he gave was that he is not currently taking any medication or seeking other treatment for any mental health issue. He stated he was drug-free and had developed an array of strategies and tactics to deal with the potential risks of relapse.[33] He had undertaken a number of courses whilst in custody and his subsequent detention, for the purposes of equipping him to deal with not only the issue of drug taking but anger management, stress management and breaking the cycle of reoffending.
[31] This is contained in paragraph 29 of the Applicant’s written submissions.
[32] This assertion is also made by the Applicant's mother in her email contained in document G11 of the G documents (pages 85 and 86).
[33] Several of the "Clinical Records" in the IHMS documents recorded the Applicant undertaking consultations with respect to "Relapse Prevention", and the other topics mentioned in this paragraph.
Unfortunately, as noted previously there is no current evidence from treating health care professionals that may have been able to assist the Tribunal. To some extent the best evidence available to the Tribunal, which as observed earlier in these reasons is of somewhat limited value, are the series of documents being exhibits A4 and A5 which are described as "Clinical Records" for the Applicant prepared by IHMS that appear to have been prepared by a "Counsellor". Those documents describe a “Risk Assessment” and state that he is at low risk of self-harm and low risk of harm to others. It is conceded that limited use can be made of these documents but they do indicate that he has to some extent been given the tools to manage his future which, presumably, would assist him if he were to return to the United Kingdom.
There would be no language or cultural barriers experienced by the Applicant were he to return to the United Kingdom. There is no real evidence before the Tribunal as to what employment barriers he may face. However, his employment track record in this country has been somewhat limited and one can infer that in the United Kingdom it is unlikely to be particularly different for him.
The United Kingdom has comparable healthcare, education, social welfare and like facilities available to its citizens as does Australia. The Applicant would be able to avail himself of such facilities upon his return.
In this setting, therefore, the Tribunal finds that there are no significant impediments to which the Applicant would be exposed if he were returned to the United Kingdom.
International Relations
The Applicant has contended that the Tribunal should make enquiries of the relevant United Kingdom authorities as to their attitude to the potential return of the Applicant to the United Kingdom. Conversely, the Respondent opposed this course of action, contending that it is the Applicant’s responsibility to make his own case before the Tribunal. Certainly, through the use of the phrase not limited to in paragraph 14(1), the types of other considerations are not limited to those listed within that paragraph. It is open to the Tribunal to find that other matters not fitting within one of the listed considerations should be considered. Whether a non-delineated other consideration is relevant should be determined with reference to the evidence before the Tribunal, as well as the framework established by the Act and the Ministerial Direction. It should also be noted that the Tribunal has broad inquisitorial powers and may inform itself on any matter in such manner as it thinks appropriate (section 33(1)(c) of the Act). The practicality and legal relevance of the course of action proposed by the Applicant will each be considered in turn.
Practical considerations
No authority was produced by the Applicant in support of this contention and the Tribunal is not aware of any authority that supports such a contention. Further, no explanation was offered as to why the Applicant himself did not make such enquiries. The Applicant has been represented by counsel and solicitors who are obviously experienced. The Applicant’s advisers had the presence of mind to raise the point in submissions dated 8 March 2018. Surely, they could have instigated those enquiries themselves some time ago. The Applicant has not produced any material showing what, if any, searches he or his advisors may have made of United Kingdom Government’s policies concerning the return of its citizens from overseas when they have had their visas cancelled. It is a comparatively easy search to undertake which, depending upon the results, could have been produced to the Tribunal to offer some guidance. This observation is all the more amplified by the comments contained in [30] of the Applicant’s submissions which refers to recent public comment on this topic from the New Zealand government. It demonstrates that the Applicant and his practitioners were alive to sources of information on this topic in the public arena. No explanation was offered as to why such enquiries had not been made with respect to the UK government attitude.
Finally, were the Tribunal minded to make such enquiries it has to be asked what sort of enquiries should be made? Are there specific questions to be asked? Should such enquiries be made in conjunction with the Applicant and the Respondent? Should the enquiries be formulated as a set of questions perhaps in the nature of interrogatories?
Further, one has to observe, are these matters that should properly be addressed through the appropriate diplomatic channels by the Department of Foreign Affairs and Trade? What are the protocols for any Tribunal to make these enquiries (if it otherwise has the power to do so)?
Relevance
In addition to the practical difficulties with the Applicant’s request, the Tribunal is of the view that the attitude of a foreign state towards the return of non-citizen with a history of criminal conduct is an irrelevant consideration for the Tribunal in ss 501/501CA character matters.
A state’s power to regulate whether a non-citizen can or cannot enter or remain within its borders is a critical component of statehood and should generally be unimpeded by the views or actions of a foreign state. In Australia this power, in a legislative sense, can be found in section 51(xxvii) of the Australian Constitution, which provides that the Parliament has power to make laws for immigration and emigration. Parliament has seen fit to exercise that power in the form of the Act and did so with the object of regulating in the national interest, the coming into, and presence in, Australia of non-citizens (section 4 of the Act). With regard to the ss 501/501CA character matters, there are no provisions in the Act concerning making contact with a foreign state to ascertain their views toward the return of one of their nationals who has a criminal record. Similarly, paragraph 6.3(1) of the Ministerial Direction provides that Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. The Ministerial Direction contains no paragraphs concerning the relevance of the views of a foreign state on the return of a national with a criminal record. In the absence of an explicit provision in the Act or Ministerial Direction concerning contacting foreign states about the return of nationals with criminal records, and with particular reference to the sovereign right encapsulated by the Ministerial Direction, it does not seem appropriate for the Tribunal to treat the views of a foreign state toward the return of a national with a criminal record as a relevant other consideration.[34]
[34] Save, perhaps, in circumstances where there is a bilateral or multilateral agreement concerning such matters. It should also be noted that the attitude of a foreign state may be a relevant matter for the Minister in personally exercising the non-compellable power under section 195A of the Act to grant a non-citizen in detention a visa in the “public interest”, presumably in consultation with the Minister for Foreign Affairs and/or the Department of Foreign Affairs and Trade.
In the light of the practical difficulties involved with the Tribunal making inquiries of the United Kingdom Government concerning its attitude towards the return of the Applicant, as well as the overall irrelevance of that attitude in this decision-making process, the Tribunal has not made such an enquiry of the United Kingdom government.
CONSIDERATION AND CONCLUSIONS
Given the history of child abuse suffered by the Applicant, as recounted in the material in evidence before the Tribunal, there is much force in his contention that the Australian community owes him a debt because it failed him. Concomitant with this contention is the suggestion that this consideration should prevail over the other considerations the Tribunal must take into account.
However, the primary considerations that the Tribunal must take into account must be weighed up against the Applicant’s contentions concerning the child abuse that he suffered. The primary considerations that are relevant in this case that have been analysed in these reasons are the protection of the Australian community and the expectations of the Australian community.
Regrettably, the Applicant has committed serious criminal offences. These criminal offences were committed over a long time span and many whilst he was an adult. Some were committed on victims who were exposed. He continued to offend notwithstanding that he was given four warnings of the migration consequences if such behaviour continued. He was given many opportunities to rehabilitate himself. It is acknowledged that many of his crimes were committed, if not most of them, when under the influence of drugs or arising from his drug addiction. However, it is not unreasonable for the Australian community to expect a person to obey the law and further engage in positive steps to overcome his difficulties. There has not been an effort to do so until recent times. Therefore, on an analysis of the two primary considerations as against the history of child abuse that he has suffered, the balance weighs in favour of the mandatory cancellation of his visa not being revoked.
With respect to the other considerations, the Applicant’s length of time residing in Australia and the fact that all of his extended family reside in Australia must be weighed in his favour. Notwithstanding that such factors must weigh in his favour, the emphasis that the Tribunal can place upon these factors must be somewhat limited due to the fact that his offending commenced shortly after residing in Australia and has continued largely unabated until recent times when he was taken into custody. By reason of his frequent periods of imprisonment, his contribution to Australia in terms of employment has been limited. It is conceded that with respect to future employment possibilities, there was evidence from the Applicant that he has an opportunity to work with his stepfather’s business, amongst others, in the event that he was released into the Australian community.[35] However, there was no corroboration from any other source of this evidence. It is also acknowledged and accepted that the Applicant’s immediate family and principally his mother are likely to offer him support in the event that he were released into the Australian community. The Tribunal further acknowledges that the strength, duration and nature of the Applicant’s ties to Australia do weigh, to some reasonable degree, in his favour.
[35] He has given several accounts of prospective job opportunities were he to be released into the general community. He stated in the witness box that his stepfather had offered him a temporary job working in a depot performing cleaning duties and helping out when needed. In the lengthy handwritten letter headed "Replacement page" he said, amongst other things, "I have heaps of job opportunities in an area closer to home like landscape gardening or forklift work". In another document he referred to the prospects of working in the "mines". Regrettably, no specific details of these prospective employment opportunities were adduced. The actual name of the employer, the address and like details were not provided.
By reason of the foregoing analysis, having weighed up the primary and the other considerations that the Tribunal is required to take into account as prescribed by the Ministerial Direction, the conclusion is that the reviewable decision was preferable. Accordingly the Tribunal affirms the reviewable decision.
I certify that the preceding 101 (one hundred and one) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member
.............................[sgd]...........................................
Associate
Dated: 27 April 2018
Date of hearing: 5 April 2018 Counsel for the Applicant: Mr Angel Aleksov Advocate for the Applicant: Ms Hui Chi Solicitors for the Applicant: Hymans Solicitors Advocate for the Respondent: Mr Adam Cunynghame & Ms Rebecca Benstead Solicitors for the Respondent: Sparke Helmore
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Jurisdiction
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Natural Justice
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