Margach and Minister for Home Affairs (Migration)
[2019] AATA 353
•5 March 2019
Margach and Minister for Home Affairs (Migration) [2019] AATA 353 (5 March 2019)
Division:GENERAL DIVISION
File Number: 2018/7572
Re:Paul Margach
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Date:5 March 2019
Place:Melbourne
The Tribunal decides to:
(1)set aside the decision made by a delegate of the Minister on 11 December 2018 refusing under s 501CA(4) of the Migration Act 1958 to revoke the cancellation of the applicant’s Class BB, Subclass 155 Five Year Resident Return visa under s 501(3A); and
(2)substitute a decision that the cancellation of the applicant’s Class BB, Subclass 155 Five Year Resident Return visa under s 501(3A) be revoked under s 501CA(4).
[sgd]...................................................................
S A FORGIE
Deputy President
Catchwords
MIGRATION – application for revocation of mandatory cancellation of visa – where applicant fails the character test – where substantial criminal record under Migration Act 1958 – risk of reoffending – other reason why cancellation decision should be revoked – decision set aside and substituted for decision revoking mandatory cancellation of visa
Legislation
Administrative Appeals Tribunal Act 1975
Migration Act 1958
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Ethnic Affairs v Gungor (1982) 63 FLR 441; 42 ALR 209
Minister for Immigration and Multicultural Affairs v Ali (2000) 106 FCR 313; 62 ALR 673
Minister for Immigration and Multicultural Affairs v Daniele (1981) 61 FLR 354; 39 ALR 649
Minister for Immigration and Multicultural Affairs v SRT (1999) 91 FCR 234; 56 ALD 349
Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999
Ridley v Secretary, Department of Social Security (1993) 42 FCR 276; 113 ALR 655
Saffron v Commissioner of Taxation (Cth) (No 2) (1991) 30 FCR 578; 102 ALR 19
Ziems v Prothonotary of Supreme Court (1957) 97 CLR 279
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Material
Ministerial Direction No. 79
REASONS FOR DECISION
Deputy President S A Forgie
On 4 April 2018, Mr Paul Jason Margach’s Class BB, Subclass 155 Five Year Resident Return visa (RR visa) was cancelled under s 501(3A) of the Migration Act 1958 (Migration Act) on the basis that he did not pass the character test because he had a substantial criminal record as he had been sentenced to a term of imprisonment of 12 months or more[1] and he was serving a term of imprisonment.[2] A delegate of the Minister for Home Affairs (Minister) invited him to make representations as to why the Minister should revoke the cancellation decision under s 501CA(4). Mr Margach made representations but another delegate decided on 11 December 2018 not to revoke the cancellation decision. As a consequence, Mr Margach does not hold a visa authorising him to travel to, enter or remain in Australia.
[1] Migration Act; ss 501(3A)(a)(i) read with ss 501(6)(a) and (7)(c)
[2] Migration Act; ss 501(3A)(b)
Mr Margach came to Australia as a 15 year old secondary student. He completed tertiary studies and went straight into the workforce where he used his engineering skills to achieve senior positions in the automotive industry. At a young age, he met and then married his wife. They had two children. By 2004, the marriage was foundering. In 2004, he stabbed his wife to death when he acted in a fit of jealous rage. His crime was violent and despicable. He was immediately devastated and appalled at what he had done to his wife and the mother of his children. His wife had lost her life, his children their mother and his wife’s parents their daughter. The waves of loss spread beyond that to his wife’s other relatives and even to his own parents, who have lost a daughter in law and grandchildren. He was sentenced to a term of imprisonment of 17 years with a 13 year and 6 month period of non-parole. He has now served 15 years of that 17 year sentence as he no longer holds a visa and he has not applied for parole. The first years of his imprisonment were spent in psychiatric care in prison and he has continued to take prescription medication and to undertake programs that have developed his understanding of himself and his behaviour since he has been housed in the general prison population.
Should such a person who lives every day with the knowledge of the wrong that he has done and who knows that he cannot ever set it to right but who has paid the price that any other member of the Australian community pays for such a crime, no longer be permitted to live in Australia? I am required to comply with Part C of Direction No. 79.[3] It requires me to consider a number of criteria. Among them is the principle that crimes of a violent nature against women and children are viewed very seriously regardless of the sentence imposed. In this case, there can be no questioning of the seriousness of the crime.
[3] Part C gives directions in relation to decisions made under s 501CA(4) of the Migration Act.
The seriousness of a person’s crime is, however, but one of the factors set out in Direction No. 79. Indeed, it is one of two sub-factors to which I must have regard in considering the protection of the Australian community under paragraph 13.1. The other is the risk to the Australian community should the person reoffend. On the facts that I have found and set out below and consistent with the facts accepted by Nettle JA in the Supreme Court of Victoria in sentencing Mr Margach, I have concluded that it is highly unlikely that Mr Margach will commit any crime at all should he be permitted to remain in Australia and certainly not a crime of violence.
Protection of the Australian community is one of three primary considerations identified in Direction No. 79. One concerns the best interests of children under the age of 18 years. On the evidence, there are no such children. The third primary consideration relates to the expectations of the Australian community. That raises for consideration the risk of Mr Margach’s reoffending, which I have found is extremely low. It also raises for consideration whether the nature of his offence is such that the Australian community would expect that he should not hold a visa. Many members of the Australian community will hold that view and will continue to hold it regardless of considerations of the lack of risk that Mr Margach will present to them should he be permitted to remain in Australia.
Paragraph 6.2(1) of Direction No. 79 states 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. The Principles set out in paragraph 6.3 are of critical importance both in furthering that objective and reflecting community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
Paragraph 6.3 sets out what a non-citizen should generally expect. In so far as a person who seeks the revocation of the cancellation of a visa is concerned, paragraph 6.3(3) states that “A non-citizen who has committed a serious crime, including of a violent …nature, and particularly against women …. should generally expect … to forfeit the privilege of staying in, Australia.” (emphasis added). By using the word “generally”, the Minister allows the possibility of a different conclusion even in the case of a serious crime that is a violent crime against a woman. Other issues such as the length of time during which a person has made a positive contribution to the Australian community and the consequences of visa cancellation for other immediate family members in Australia are also matters to which the Minister requires me to have regard under paragraph 6.3(7).
As I have made clear, I am obliged to apply the law under the Migration Act and part of that law is Direction No. 79. Direction No. 79 provides that the expectations of the Australian community are one of three primary considerations and that all three must be considered with those considerations described as “other considerations” in paragraph 14 i.e. international non-refoulement obligations, strength, nature and duration of ties, impact on Australian business interests, impact on victims and the extent of impediments if removed. Generally, the primary considerations are given greater weight than the other considerations according to paragraph 8(4) and (5) of Direction No. 79. I have come back to the overall weighing those considerations at the end of my reasons. For the moment, I will summarise how I have weighed them and the conclusion I have reached.
If I were to affirm the delegate’s decision to refuse to revoke the cancellation of Mr Margach’s RR visa, it would result in his being sent to the United Kingdom. That is a country which he has visited for work over the years and in which he lived in for a little over a year at a boarding school at the beginning of his secondary schooling. His British citizenship was acquired from his mother. He did not acquire Polish citizenship through his father and both his parents are now Australian citizens. Continued cancellation of his RR visa would take him from the support of his parents and brother in Australia and take him to a place from which he would be unable to care for any of them himself. That applies particularly his parents who are elderly and frail and who increasingly require continual and ongoing care in their later years. Realistically, they cannot rely on their elder son because of his own family commitments. Mr Margach is committed to living with them and providing their care in their own home rather than their finding accommodation in a nursing home.
I have set out detailed reasons for deciding that I should set aside the decision refusing to revoke Mr Margach’s visa. The foregoing paragraphs are part of those reasons. The practical consequence is that Mr Margach continues to hold an RR visa. He is well aware that, should he commit any further act that renders him liable to have his visa cancelled, he can expect little tolerance. He asked at one stage of the hearing that he be permitted to have a visa that enabled him to remain in the Australian community while his parents were alive and that he had no care for his own circumstances after that time. I have no power to grant such a visa. My only power is to decide whether or not the cancellation of the RR visa that he did hold should be revoked.
LEGISLATIVE BACKGROUND
In this passage of my reasons, I will set out the provisions of the Migration Act which provide the legislative basis on which Mr Margach’s RR visa has been cancelled by operation of the law set out in the Migration Act. They also provide the basis on which I must consider his request for revocation of that decision.
Cancellation of Visa under s 501(3A)
Section 501(3A) of the Migration Act provides that:
“The Minister 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
(ii)…; 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.”
The word “imprisonment includes any form of punitive detention in a facility or institution.”[4]
[4] Migration Act; s 501(12)
Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test but only those specified in s 501(6)(a) are relevant in this case for the purposes of s 501(3A). Those circumstances are that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only the first three are relevant for the purposes of s 501(3A) and, in this case, s 501(7)(c) is relevant. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”.
Mr Margach has been sentenced to a term of imprisonment of more than12 months. That means that he does not pass the character test as defined in s 501 because he has a “substantial criminal record” as defined by s 501(7)(c). In light of that, the terms of s 501(3A)(a)(i) obliged the Minister to cancel Mr Margach’s visa. As Mr Margach was serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of, in this case, the State of Victoria, the Minister was also required to cancel Mr Margach’s visa under s 501(3A)(b).
Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[5] Section 501CA(4) provides that:
“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] Migration Act; s 501CA(1)
In the circumstances of this case, Mr Margach cannot rely on the provisions of s 501CA(4)(b)(i) as he cannot pass the character test in s 501. As I have said earlier, the only relevant provision is that in s 501CA(4)(b)(ii), which requires me to consider whether “… there is another reason why the original decision should be revoked.” The way in which I am required to consider this issue was addressed by North ACJ in Gaspar v Minister for Immigration and Border Protection:[6]
“The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …”[7]
[6] [2016] FCA 1166
[7] [2016] FCA 1166 at [38] and cited with approval in Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32] per Collier J with whom Logan and Murphy JJ agreed.
Under s 499 of the Migration Act, the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[8] Those directions must not be inconsistent with the Act or the Regulations made under it.[9] The person or body to whom the directions are given must comply with them.[10]
[8] Migration Act; s 499(1)
[9] Migration Act; s 499(2)
[10] Migration Act; s 499(2A)
The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501CA. It is known as “Direction No. 79” and applies to the decision made in relation to a visa of the sort held by Mr Margach. I will come back to Direction No. 79 and to the particular directions which it sets out and to which I must have regard.
BACKGROUND
In this section of my reasons, I will set out those matters that were not the subject of disagreement between the parties.
Mr Margach was born in Kenya In 1966. Mr Margach migrated to Australia with his parents and his brother, who was approximately five years older than he, in April 1974. At the time, he was almost eight years of age. The family only stayed a few months and they left in October of the same year as Mr Margach’s father could not find appropriate work in Perth, where they were located. They travelled to Malaysia where Mr Margach continued his schooling. When it was time for him to attend secondary school, his parents sent him to a boarding school in the United Kingdom. His brother had also attended boarding school in the United Kingdom before him.
In 1980, Mr Margach’s parents moved to Bahrain. His brother remained in the United Kingdom where he was employed but Mr Margach also moved to Bahrain. In Bahrain, he attended an American school. While in Bahrain, Mr Margach was abused by the father of one of his school friends. He attempted suicide at the time but did not tell his parents about the abuse and did not receive any counselling.
In 1981, Mr Margach and his parents moved to Melbourne in Australia. By then, he was 15 years of age. He completed the last two years of his secondary schooling at a private school and was Dux of the school after completing HSC. He excelled in maths and sciences.
Mr Margach attended the University of Melbourne in 1984 where he graduated with a Bachelor of Mechanical Engineering in 1987. While at University, he met the girl, who was to become his wife. At the time, she was attending a secretarial college having completed Year 11 at a private secondary college.
On graduation, Mr Margach secured a Research and Development mechanical engineering role with an engineering firm working on engine parts with various automotive manufacturers operating in Australia at the time. In 1989, Mr Margach became a Quality Control Engineer with one of those automotive manufacturers.
Mr and Mrs Margach married in March 1990. At the time, she worked as a secretary for a large accounting firm located in Melbourne’s CBD. Also in 1990, they purchased land and built a house. At the time, Mr Margach’s parents were living close by and in the same suburb. They had their first child in 1995 and their second in 1999. Following the birth of their second child, Mrs Margach remained at home to look after the children.
In 2000, Mr Margach left his position as a Quality Control Engineer and moved to a series of other positions in which he received a higher salary. At the time, he and his wife had purchased two investment flats in South Yarra with the plan that their children would have one each when they were older. In 2001, they moved their family home so that it was closer to Mrs Margach’s parents’ home and closer to the schools she had attended and to which they intended to send their daughters. Although they had nearly paid the mortgage on their previous family home, they now had a mortgage on the new family home and on the two units. They owed approximately $600,000. With that in mind, Mr Margach took a well-paid but very demanding position as Quality Assurance Manager with an automotive components supplier in Victoria. He later became its Engineering Manager as well. Mr Margach found himself working in excess of 100 hours each week.
His long working hours put strain on Mr and Mrs Margach’s marriage but so too did the financial stress of the mortgages. Mrs Margach became unwell when she moved from a large modern house in a newer suburb to a smaller and older house in an established suburb. Her father and Mr Margach sought psychological help for her and she was prescribed medication. Mr Margach also sought to reduce his working hours when he asked the Managing Director of the business where he worked if his position could be downgraded to reduce his responsibilities as they were causing a major issue in his marriage. The Managing Director agreed in early 2004 that he would be able to reduce his duties either later that year or early in 2005 and operate solely as the Engineering Manager. The change in Mr Margach’s duties had not come about when he murdered his wife.
Conviction
Mr Margach has a single conviction:
Date of Conviction
Court
Date of Offence(s)
Offence
(counts)Result
18 July 2008 following an appeal and retrial
Supreme Court of Victoria
25 October 2004
1
17 years imprisonment with a non-parole period of 13 years and six months imposed following re-trial
Sentencing remarks
At the retrial, the jury did not accept Mr Margach’s plea that he was not guilty of murder but guilty of manslaughter by reason of provocation. Nettle JA observed that the jury is likely to have accepted that Mr Margach lost his self-control. At the same time, however, the jury clearly had not accepted that Mrs Margach’s actions or words could have caused an ordinary person to lose self-control so that he or she would kill in the manner in which Mr Margach had.
A. Events leading to the offence
In his sentencing remarks, Nettle JA set out the facts that had preceded Mr Margach’s killing his wife:
“On Friday 8 October, the deceased and a number of her female friends went away for a weekend at Swan Hill for the races. On the first night of the trip, she and one of the friends … [SH] went out to a nightclub in Swan Hill to dance. There they met ... [SB] and his friend … [SC], who were in Swan Hill to work and had gone to the club to relax. The four of them got on well together and spent several hours talking and dancing until closing time. Then, upon leaving the club, … [SB] and … [SC] invited the deceased and … [SH] to their hotel room for a drink, and the women accepted the offer. The four of them spent about an hour together talking and then the women returned alone to their own hotel to sleep. Before leaving, they made a tentative arrangement to catch up again the next day.
The deceased and her friends spent the better part of the next day at the race meeting and in the evening the deceased telephoned … [SB] and … [SC] and asked them to return to the club. They met there quite late, after dinner. On that occasion, however, the deceased and … [SH] were accompanied by a number of the other women in their group, including aunts and nieces, and the deceased and … [SH] introduced … [SB] and … [SC] to the older women, and the group danced and talked together for some time.
Again that night, the deceased and … [SH] remained at the club until closing time and, after closing went back with … [SB] and … [SC] to their hotel room for a drink. They spent a couple of hours in discussion while … [SB] played his guitar. But again the deceased and … [SH] returned alone to their own hotel to sleep once the talking was over.
The next morning, the deceased went with the remainder of the women on a boat trip along the river, returning to Swan Hill early in the afternoon. Later in the afternoon, she and … [SH] walked by a motor car dealership in the high street, where … [SB] and … [SC] were working erecting signs. The four of them then spent some time together, talking over soft drinks which they purchased from an adjacent convenience store. By that stage, the deceased and … [SB] had begun to feel a degree of attraction towards each other although, at the end of the meeting, they resolved that they should not see each other again. But contrary to their resolve, the deceased later left a message at … [SB’s] hotel for him to call her and he did call on her mobile telephone while she was travelling on the train back to Melbourne from Swan Hill. He also sent her an SMS text message which was couched in amorous terms.
You collected the deceased from the Sunbury station when her train arrived back there at about 8.30pm on the Sunday evening. According to the evidence, you were in a bad mood and you made the home coming less than pleasant. You were suspicious that the deceased may have been unfaithful to you, and that night you actuated a device which had earlier been fitted to your home telephone for the covert recording of all incoming and outgoing telephone calls.
During the following week, the deceased and … [SB] had a number of telephone conversations and sent each other several amorous SMS text messages. It appears that by that stage the deceased had started to consider the idea of leaving you and, possibly, of getting together with … [SB]. She was, however, torn between the prospect of a new life and her love for you; and, after speaking to several trusted friends, on Friday 15 October 2004 she resolved to give the marriage another go and to break off contact with … [SB]. Ironically, just before she reached that point, you came wrongly to the conclusion that she was having an affair with … [SB].
On the morning of Thursday 14 October 2004, you telephoned the deceased from work and in response to our persistent questioning, she admitted that she had met a man in Swan Hill to whom she felt attracted. But, as she assured you, nothing had happened and she wanted the marriage to continue. You were not convinced by her assurances, however, and you told her that you had the means of checking whether she had been unfaithful to you, although you refused to disclose what they were. I infer that you meant the tape recorded telephone conversations of which she had no knowledge. During the course of the day, you also ascertained from the deceased’s friend that the name of the man whom she had in Swan Hill was … [S].
The thought that the deceased was having an affair with another man made you extremely angry and agitated. Indeed you were so emotional that work colleagues saw you weeping at times throughout the day. Some urged you to go home to sort it out, but you told them that you preferred to stay at work. You told one colleague that work helped to keep your mind off the matter and later in the day you told him that, in the state of mind which you were, you did not know that you might do to the deceased if you went home.
At the end of Thursday 14 October 2004, you went home from work to your parents’ home to stay the night with them. But by arrangement with your mother, the deceased had that evening taken the children over there for dinner in the hope that her and the children’s presence would leaven the situation. Unfortunately, it did not. As soon as you entered your parent’s house, you seized the deceased’s mobile telephone and used it to call … [SB]. You began the call by pretending to be the deceased’s brother and wanting to know whether the deceased and … [SB] had ‘made out’. Then, in the deceased’s and your children’s and parents’ presence, you berated … [SB] for destroying your marriage and, when the deceased tried to take back her telephone, you pushed her away in anger, striking her nose as she fell to the sofa, and abused her verbally until you were restrained by your father. The deceased left for home with the children. Meanwhile, you went out for a drive to cool down and then returned to your parent’s home for the night.
That night at home, the deceased had a long and wide ranging telephone conversation with … [SB]. In the course of it, they discussed but ultimately discounted the possibility of leaving their respective partners in order to be with each other. Nevertheless, when you later heard the secret recording of the conversation, you took it as a further indication that the deceased and … [SB] were having an affair.
On Friday 25 October 2004, you called a telephone company and sought unsuccessfully to ascertain the content of text messages between the deceased and … [SB] which the deceased had deleted from her mobile telephone. You also drove home when you knew that she was away at work, and you collected the secret tape recording of the conversation which she had had with … [SB] the previous evening. Then you drove on to your mother’s home, taking the recording with you and, for whatever reason, played a large part of it to her.
While en route to your mother’s home you spoke by telephone to the deceased. She urged you to believe that she wanted the marriage to last and she told you that she intended to drive over to your mother’s home to talk to you. Immediately, after speaking to you, she called … [SH] and asked her to call … [SB] and tell him that the deceased had decided to give her marriage another chance.
Later, the deceased arrived at your mother’s home with your younger daughter …. At your request, your mother took care of the child so that you and the deceased could discuss matters together. You did so, apparently calmly, until about 3.00pm when the deceased left to collect … [older daughter] from school. You took … [younger daughter] home with you. But after the deceased returned with … [older daughter], she and you spent some further time together, walking along the Maribyrnong River near your home.
That evening, you took the deceased and the children out to a restaurant for dinner and, in the course of the meal, the deceased repeatedly expressed her love and affection for you. But you were less committed. You ate very little of your meal and, when the deceased asked you why that was so, you replied perfunctorily that you were not hungry. When your mother telephoned you at the restaurant and asked whether you would be returning to her house to sleep, you replied that you did not know.
After dinner, you and the deceased left the restaurant for home with the intention of putting the children to bed and discussing matters further. But trouble started, after you reached home, when the deceased observed you asking … [older daughter] whether she wanted you and the deceased to remain together. As … [older daughter] said in her evidence, at the time you were emotional and crying and the deceased was annoyed that you thought it appropriate to discuss the issue with a child of … [older daughter’s] age. The deceased reacted angrily. She told you that she had changed her mind; that she wanted a man, not a baby; and that you should go home to your mother.
Evidently, you were surprised by her reaction. You sought to dissuade her from sending you away. You asked her what had happened to change her mind so quickly and you told her that you loved her and that you wanted to stay. But the argument only worsened. The deceased said that she was fed up with you, that you were an idiot and she did not want to be with you any more, and that unless you went she would call her brother to come down to ‘bash your head’ in.
According to what you later told police, at some point in the argument the deceased took a knife from a drawer in the kitchen and stood near the back door holding it while she demanded that you leave. You said you refused to go. As you would have it, you grabbed the knife and took it from her because you did not want it between you, and you said that you may have received a graze or slight cut on your hand in the course of that process.
I doubt that version of events. On the evidence, it is just as probable that you were the first to take up the knife. According to … [older daughter’s] evidence, which I accept, she heard the deceased say to you that she was going to pack her bags and leave and then you implored her not to go. The forensic evidence shows that there was then a scuffle near the dining table which resulted in chairs being knocked over and, according to … [older daughter’s] evidence, at that point you repeated several times to the deceased that you did not want the her to go and asked her repeatedly what it was that had changed things so quickly.
You told the police that the deceased finally answered your supplications with a riposte that she had fucked … [SB] and that it was the best fuck she ever had. I also doubt that she said that to you. … [older daughter] did not hear it and … [older daughter’s] recall of events was remarkable. It is also inconsistent with the loving way in which the deceased spoke to you in the tape recorded telephone conversations in evidence, even when she was upset. Just as tellingly, it is at odds with the deceased’s repeated candidly expressed wishes to … [SB] during the Thursday night telephone conversation that you not be hurt. Furthermore, as I find, she had not had sexual intercourse with … [SB].
Your case at trial was that you responded to the deceased’s taunt in a flurry of rage by stabbing her with the knife. According to the forensic evidence, you did indeed so stab her, at least 10 or 11 times, which resulted in more than 20 separate injuries to her body, of which two were fatal. But as the forensic evidence also shows, only some of the 20 wounds were inflicted while the deceased was still in the dining area. They left a blood drop pattern consistent with passive bleeding from significant injuries at that point. As … [older daughter] recalled, and as you later admitted to police could have been the case, you then inflicted further wounds as the deceased lay supine on the sofa, some distance away, while you stood above her stabbing down. That means either that the deceased fled to the sofa after you stabbed her in the dining area, and you followed her there in order to finish her off, or that you forced her to the sofa in order to press home the attack. Either way, I am satisfied beyond reasonable doubt that when you inflicted the two fatal wounds you intended to kill her.
The deceased screamed from the sofa for … [older daughter] to assist her and, as … [older daughter] rushed in from her bedroom in response to her mother’s call, she saw you standing above the deceased stabbing down as the deceased attempted to fend you off. … [older daughter] shouted at you to stop but you continued regardless. The deceased was kicking with her legs trying to keep you away. But as … [older daughter] said, wherever the deceased moved you kept putting in the knife; and you kept on putting it in until finally the deceased stopped moving. Then as … [older daughter] described it, you seemed as if to come out of a trance and you called an ambulance immediately, and the emergency services responded rapidly. But your wife died within minutes from blood loss resulting from the two fatal wounds to her heart and lung.”[11]
[11] G documents; PG23 at 107-113
B. Nature and gravity of offence and moral culpability
Nettle JA told Mr Margach that:
“You pleaded not guilty to murder but guilty to manslaughter by reason of provocation. The jury’s verdict means that they rejected that plea. Given the evidence, they are likely to have accepted that you lost self-control. But, clearly they were satisfied that the deceased’s actions or words could not have caused an ordinary person to lose self-control and go on to kill in the manner which you did. I sentence you accordingly.
… [T]he need for denunciation and the requirements of general deterrence and just punishment demand a significant term of imprisonment. As the Crown submitted, your crime was aggravated by the fact that it involved the use of a knife against an unarmed woman of less height, weight and strength than you. Your attack on her was ferocious and intended to kill her. You pressed home the attack despite her efforts to fend you off. In so doing, you inflicted gaping defensive wounds to her hands and arms and more gaping wounds near her shoulders. And you killed her in the presence of your children.”[12]
[12] G documents; PG23 at 113-114
His Honour also accepted that:
“I recognise that you committed the offence at a time of high emotion and distress, exacerbated by work and financial pressures. I accept, too, that your attack upon the deceased began as a spontaneous reaction to emotional demands with which you were inadequate to deal. But as against that, it was not just a single blow. For the reasons I have given, I am satisfied beyond reasonable doubt that, however the attack began, it finished as a series of repeated attempts by you to kill your wife which you sustained until she was dead.
According to a psychiatric report prepared by consultant psychiatrist, Dr Lester Walton, you have long suffered from some significant psychological disorders. They began with an eating disorder in your youth, apparently as a reaction to other children’s taunts that you were fat and, despite your academic successes, your psychological disabilities developed as a consequence of problems with and between your own parents. You suffered in your teens because of emotional conflict between them and as a consequence of being sexually assaulted by the father of one of your friends. There is also a significant family history of mental disturbance. As I have observed, in later years leading up to the death of the deceased, you suffered from miserable self-esteem and chronic depression aggravated by alcohol abuse. You were given to kleptomania and you had long-standing problems with jealousy. They intruded into your very first relationship with a woman and they continued into your marriage. In Dr Walton’s opinion, which was not challenged, and therefore which I accept, those factors had relevance to your offending.”[13]
[13] G documents; PG23 at 114-115
Male possessiveness and domestic violence were also considered by Nettle JA. What he had said was:
“… not to suggest that male possessiveness can or should any longer be regarded as an acceptable reason for loss of self-control leading to homicide. … As Osborn, J observed in R v Davey … [[2006] VSC 173 at [25]]:
It is necessary that a continuing message be sent to persons in emotional relationships that the resort to violence against a partner will not be accepted either by the community or the Court. The sentences of this Court must reflect both the sanctity of human life and the total unacceptability of weak and vicious behaviour towards persons said to be objects of love.
Nor is it to imply that domestic homicides are somehow to be conceived of as a class which generally speaking should attract a lesser penalty. To the contrary, as the Court of Appeal reiterated in R v Gojanovic (No 2); … [[2007] VSCA 153 at [140]]:
[I]n cases of killings of the type which occurred here in a ‘domestic’ setting, the concept of general deterrence is an important and weighty sentencing consideration. The sentence, in such cases, must be such as to provide a strong message that outbursts of homicidal rage, in contexts such as this case are totally unacceptable and will be dealt with by stern sentences …
But authority is clear that, even in cases of domestic homicide, impaired mental functioning which affects the capacity of an offender to exercise appropriate judgment, or to make calm and rational choices or to think clearly, or which causes the offender to become disinhibited, may be of such an extent and severity as to reduce the offender’s moral culpability and thus moderate the need for general deterrence. … [R v Verdins (2007) 16 VR 269 at 275 [26] and 276 [32]]. In this case, that principle has some role to play, although the extent of its application is limited. The sorts of pressures to which you were subject at the time of the killing were similar to those with which many people must and do deal daily. Consequently, it is not ordinarily regarded as a mitigatory circumstance of homicide that a killer may be under pressure at work, or financially or in his marriage, or whatever it might be. In my view, there is a difference in your case because of the fractured psychological condition which Dr Walton mentions. But even then the distinction between such a condition and a culpable lack of self-control does not permit a great deal of difference.”[14]
[14] G documents; PG23 at 115-116
C. Remorse, rehabilitation and likelihood of future offending
His Honour began by addressing Mr Margach’s actions as soon as he had attacked his wife:
“It is clear that you regretted what you had done as soon as you had done it; and that, as soon as the attack ceased, you did what you could to save the deceased. You telephoned to get help for her immediately and, although you were so emotionally displaced as to do nothing further to assist, you stood by while … [your older child] struggled to give effect to the emergency operator’s recommendations. When the emergency services arrived you urged them to hurry and to do more to save the deceased and, when you were told that she was dead, you apologised repeatedly and rushed back to see her one last time before you were restrained. As you waited to be interviewed by police, you were so overcome by grief as repeatedly to be physically sick and, when after several hours you were interviewed by police, you made full admissions as to what you had done and why.”[15]
[15] G documents; PG23 at 116
Nettle JA had regard to evidence given by Dr Walton before him but also to that given by Dr William Leahey, the director of acute community psychiatry at St Vincent’s Hospital in Melbourne, at the sentencing hearing after the first trial. Dr Leahey gave his evidence in 2006 and he had found that Mr Margach presented with chronic depression and had intermittently engaged in self-harm as an expression of his self-loathing and self-punishment for what he had done. Two years later, Dr Walton found that Mr Margach continued to be consistently sorrowful about his misconduct and loathed himself for what he had done. Nettle JA found that it was likely that Mr Margach would continue to do so for the rest of his life.
Nettle JA found that Mr Margach continued to remain suspicious that his wife had been unfaithful to him. That, his Honour found, was due to his psychological deficiencies. It did not lessen the contrition that Mr Margach had expressed to Sister Mary O’Shannassy of the Catholic Prison Ministry in Victoria in 2008 and who worked in the St Paul’s Psychiatric Unit at Port Phillip Prison where Mr Margach had been accommodated. He expressed the same contrition to Mr Ron Spilsbury, who was a volunteer with the Therapeutic Services at Port Phillip Prison. Both reported his constant thoughts were of the love he had for his wife and children and his feelings that he was unable to forgive himself.
His Honour observed that it was accepted that Mr Margach was:
“… unlikely ever to offend again, and it appears from the depositions that, apart from the selfishness and jealousy which affected your marriage, and which ultimately resulted in you killing the deceased, you were until the time of the offence a tolerably good husband, father and provider, and an able and dedicated engineer. In those circumstances, it may be supposed that you could one day achieve complete rehabilitation although, in view of your present mental condition, I think that it will be a long-term project.”[16]
[16] G documents; PG23 at 118
Skills and vocational programmes and courses completed with external providers
Mr Margach has completed the following courses and programmes:
Date
Provider
Name of Programme or course
February to October 2005
Kangan Batman TAFE
Certificate III in Hospitality (Kitchen Operations)
Competency achieved in:
Prepare and Serve Espresso Coffee
Organise and Prepare Food
Present Food
Clean and Maintain Kitchen Premises
Prepare and Produce Pastries
Prepare and Produce Cakes
Work with Colleagues and Customers
Work in a Socially Diverse Environment
Follow Health Safety & Security Procedures
Follow Workplace and Hygiene Procedures27 November 2008
Kangan Batman TAFE
Certificate II in Asset Maintenance (Cleaning Operations)
Participated in Workplace Safety Arrangements and assessed competent2009
Kangan Batman TAFE
Certificate 1 in Work Education
Induction.20 February 2009
Bendigo Regional Institute of TAFE
Certificate 1 in Hospitality (Kitchen Operations)
Follow Workplace Hygiene Procedures.23-27 May 2011
Swinburne Institute of Technology
Apply First Aid – Perform CPR and Provide Basic Emergency Life Support
2011
Bendigo TAFE
Certificate III in Hospitality (Commercial Cookery)
Apply first aid.2014
Bendigo TAFE
Certificate III in Commercial Cookery
Use Hygienic Practices for Food Safety2014
Bendigo TAFE
Certificate II in Building and Construction (Carpentry) Pre-apprenticeship
Work safely in the construction industry2014
Bendigo TAFE
Certificate II in Horticulture
Operate and maintain chainsaws2016
Bendigo TAFE
Certificate III in Painting and Decorating
Work Safely at Heights
Operate Elevated Work Platform
Apply OHS Requirements, Policies and Procedures in the Construction Industry
Licence to Operate a Forklift Truck31 March 2017
Infection Prevention Australia
Cleaning in an Outbreak
Cleaning a Blood Spill
Transmission of Blood Borne Viruses
Certificates of Appreciation
Certificates of appreciation or recognition were also given to Mr Margach.
Date
Issuing body
Certificate awarded to Mr Margach
2010-2015
HM Prison, Loddon Prison
In recognition of valuable contributions to The Senior Citizens 2010, 2011, 2012, 2013, 2014 and 2015 Christmas Luncheons at Loddon Prison
2016
Schools Program Co-Ordinator, Loddon Prison
In appreciation of being a valued panel member of the Schools Program 2016
Undated
The Port Phillip Pedal Pushers
In recognition of outstanding performance and contributions to the team as a Stage 1 Team Member in completing 1303.85kms through Victoria, South Australia and New South Wales
Treatment, courses and programmes addressing psychological issues
The documents from Corrections Victoria indicate that Mr Margach was located in the St Pauls Unit at Port Phillip Prison from November 2004 until February 2007. He returned to the St Pauls Unit after attempting suicide when the jury returned a guilty verdict on 9 May 2008 after his retrial. He had also attempted suicide at an earlier time after being incarcerated. Given his subsequent work as a billet at the St Pauls Unit, Mr Margach remained in the unit for approximately five years.
Date
Issuing body
Program or course
10-18 November 2008
Uniting Care Moreland Hall
Mr Margach was an active participant in a 12 hour drug education program and displayed a good understanding of the topics covered and participated in all of the activities and group discussions.
20 November 2008
Grow Program
Grow Program which assists people in coping with depression, anxiety, loss/grief and everyday life stresses.
18-25 November 2008
Uniting Care Moreland Hall
Mr Margach attended all sessions and demonstrated good insight into the issues presented in a 12 hour Relapse Prevention Program.
9 October 2009
Quit Victoria
Quitters are Winners Smoking Management Program – a six session program designed to help individuals quit, cut down or manage their smoking.
9 October 2014
Change on the Inside
Prison Fellowship AustraliaCompletion of six week program “Change on the Inside” and showing Persuasiveness
Guiding vital truths around another’s mental roadblocks18 May to 25 May 2016
Caraniche Drug and Alcohol Services
6 hour AOD & Stress Management Program
20 July to
3 August 2016Caraniche Drug and Alcohol Services
6 hour AOD and Depression Program conducted in three sessions each of 2 hours
29 March 2017
Caraniche
12 Hour Mind Matters Program
6 February to 23 March 2018
Anglicare Victoria
Men’s Behaviour Change Program at the Middleton Prison
7 to 14 March 2018
The Centre for Non Violent Communication
Courageous Communication
10 sessions delivered over 5 weeks exploring basic human needs and connecting this with feelings to change behaviour and approach to life.[17][17] G documents; PG81 at 471
Mr Mark Wagland is the Salvation Army Prison Chaplain at Loddon/Dhurringile and the Regional Liaison Chaplain at the Loddon Prison. He wrote a letter of support dated 10 March 2017 for Mr Margach. Mr Waglan wrote that he first met Mr Margach at the Port Phillip Prison in 2004 when he was based there. Since then, he has seen Mr Margach on a regular basis during his time at the Loddon/Middleton Prison. During that time, Mr Wagland wrote that he has come to know Mr Margach’s parents due to their regular visits to their son. Mr Wagland’s letter continued:
“I have journeyed with many guys with similar crimes however I am yet to meet one who has shown the degree of remorse that Paul has shown. Even to this day he continues to be hard on himself.
He not only feels ashamed of his crime and the hurt he has brought to his victims family he also feels a great sense of guilt in letting his parents down.
They however have continued for many years to be of great support to Paul even when he has not felt worthy of that support.
During his term Paul has spent time with the Law Group speaking to students from various schools along with other prisoners. This a highly respected program in Department of Justice and only trusted prisoners are given opportunity to take part.
…”[18]
[18] G documents; G63 at 271
Sister Mary O’Shannassy, SGS, OAM, JP is the Director of Catholic Prison Ministry Victoria. At the time she wrote an open letter, she was the Senior Catholic Chaplain with Corrections Victoria, Department of Justice and Regulation (DOJR).[19] Sister O’Shannassy wrote that she had first met Mr Margach in 2004 when he had been very unwell. He subsequently spent much of his time in the Psychiatric Ward at the Port Phillip Prison. She continued:
“… At that time Paul was very distressed, confused and agonizing over the effects of his actions that has brought him to jail a well as the distress, sadness and deep pain felt by himself and others, especially his children, his parents, parents-in-law and all family members. Paul expressed it as unbelievable. He was surprised at himself that this could have happened – that his wife could have died as a result of his actions. ‘I couldn’t believe what I had done. Every day I think of my wife who didn’t deserve what happened to her’ he says. Paul continues to express deep remorse for his actions.
Over time, and with the help of his doctors and suitable medication I noted a difference in Paul. He became more settled, more interested in people and life, more involved in the activities which were organized within the Psych Unit. It was like a real ‘turn around’ to see Paul well enough to be participating and enjoying the involvement.
It was time to rejoice with Paul when he became well enough to move to the mainstream section of the prison where he adjusted very well. Paul soon became involved in a work and study program and thus began a time of new learning and growth for Paul. Paul has continued during these years following to better himself and to participate in Courses that have both helped him to grow in a better understanding of himself as a person as well as those that extended his knowledge and education.
Paul tells me that he has benefitted tremendously from the Counselling that he received especially from the Psych Nurses and Counsellors, from the ‘Change on the Inside Program’ and an Anger Management Course. …
…
At this present time Paul continues to live and work in a mainstream prison environment. He is faithful to taking his medication and he tells me that he has a better understanding now as to why he needs to continue to have to take his medication.
…”[20]
[19] The letter was undated but, given Sister O’Shannassy’s reference to the ages of Mr Margach’s mother and father as 76 and 82 respectively, I have concluded that the letter was written between June and September 2017.
[20] G documents; PG63 at 272-273
Anglicare Victoria reported to the Regional Contract Coordinator at the Loddon Prison that:
“Mr Margach was polite and respectful throughout the group program to both the facilitators and other men. Mr Margach actively participated in all the activities and would be encouraging of the other men particularly those who were struggling with the content due to language barriers.
Mr Margach would provide examples of his own experience which enriched the group discussion.
From the first Mr session Mr Margach was able to name his behaviour and demonstrated that he has responsibility for his behaviour and did not seek to minimise or justify the grave nature of the offence. Mr Margach demonstrated an awareness of the impact of his behaviour on all the family members.
Further Assessment/Treatment Recommendations:
Where possible for Mr Margach to be provided with an opportunity to further examine some of the issues that were raised in the group around self-esteem.
Case Management Recommendations
Mr Margach to continue receiving support around his well being.”[21]
[21] G documents; G92 at 499
Ms Sonia Stocco, who delivered the Courageous Communication course, wrote an open letter regarding Mr Margach’s attendance when it was delivered at Middleton. She wrote:
“This letter is to confirm that, Paul Margach attended the Courageous Communication Course held at Middleton, part of Loddon Prison Precinct, from February 7 to March 14, 2018. It ran twice weekly for 5 weeks.
Paul was a quiet attentive participant to the course. He behaved in a respectful manner, considering others when speaking and contributing to the group by sharing with honesty and thoughtfulness, giving others space to also contribute.
His pensive composed nature brought a calmness to the group that helped others to feel safe to participate and be heard. When doing the written exercises involving practical application of the skills taught, Paul showed comprehension of naming feelings and connecting it to the course content of what needs and values were related to those feelings/emotions.
He provided some light-heartedness by smiling and supporting his fellow participants with words of kindness and encouragement. He was tolerant of others, when they needed to talk more than he did and was responsive to any requests of participation that I made directed to him.
He attended all ten sessions and was punctual.
He shared honestly about some painful incidences in his life and showed regret and sadness. The group was deeply moved during one specific occasion and his example helped illustrate how we can gain more self-awareness and using it, to make different choices.
My suggestion to Paul to deepen his knowledge and understanding of this course, is to use it as a self-reflective process, creating and growing in awareness of feelings, by naming them as they arise, using the cards or wheels provided. Also searching for what needs are under those feelings will help to gain clarity of how to communicate to others what he is intending and creates opportunity for a response rather than reactions.
Paul’s reflective nature, commitment to turning up to participate fully with every exercise and tolerance towards others are a credit to him.”[22]
[22] G documents; G82 at 474
Ms Amy Gross, the Senior Clinician with Caraniche, wrote a letter dated 6 April 2018 stating that Mr Margach has been a Peer Educator at the Middleton Prison since 23 February 2017. She wrote that Mr Margach had been an excellent employee in that role. As a Peer Educator, he was required to:
“· Provide accurate and factual information and education to all prisoners
·Provide support and information to all prisoners
·Discourage bullying, both prisoner to prisoner and institutional
·Ensure that the social isolation of prisoners, even those whose actions or mental state require their separation, is limited where practicable
·Not show bias regarding a prisoner’s crime, culture, sexual orientation, age, religion, marital status, mental or physical disability or any age preference or personal characteristic, condition or status. Demonstrate positive role model behaviours within the prison at all times.
The Educator component of the role involves facilitating the provision of information to new receptions, including assisting with the reception and orientation process as well as other educational duties as required.”[23]
[23] G documents; G82 at 496
Two prison officers have written letters of support for Mr Margach. Both are undated. One of the prison officers had known Mr Margach since 2010 at the Loddon Prison and has been his case worker at various times and in different units. He wrote:
“… Paul behaviour while incarcerated at Loddon and Middleton Prison is at a high standard and is very respectful to staff and prisoners, and continues to progress in assisting in the running of a unit where prisoners are responsible for their own cooking, unit cleaning, washing etc he also works as an official peer helping other prisoners learn.
Paul has remained employed whilst been in prison and has completed certificate in many different areas and continues to receive good work reports from staff at all times.
Paul is a participant in law group here at Middleton prison every Monday and Thursday and has been since 2014 and was also involved in this group at Loddon Prison for some time. The Prisoners that are picked for this program must have a good attitude and are willing to talk and opening up for students to asked questions about their crime. This Program deals directly with Secondary students studying Law. This is considered to be a highly trusted position.”[24]
[24] G documents; T61 at 269
The other prison officer wrote that he had known Mr Margach for approximately 21/2 years and, during that time, had been his case officer for a 12 month period. He wrote, in part:
“I have found Paul to be a polite and respectful individual in my dealings with him and I have observed him display this behaviour to other staff and his peers.
Paul has been continually employed within the prison system and has received positive work reports from his supervisors. He has completed certificate level studies whilst in jail. Paul also volunteers his time to participate on the LAW group program. This program deals directly with Secondary students studying Law.
Paul has also been deemed not suitable for alcohol, drug and violence programs by offending behaviour program (OBP) staff due to scoring a low level of reoffending when assessed. However Paul continues to participate regularly in programs on a voluntary capacity. Paul has been involved in no violent incidences during his term of incarceration and achieved the lowest possible security rating in May 2014. Which he continues to have. All of pauls urine tests have been negative and Paul has had regular contact visits with his parents from the beginning of his term of imprisonment.
…”[25]
[25] G documents; PG59 at 267 and see also the report by the Acting Programs Coordinator at the Middleton Prison that a clinician from the Offending Behaviour Programs had determined on 20 August 2014 that Mr Margach was not required to complete the Moderate and High Intensity Violence Programs: G documents; G60 at 268
DIRECTION No. 79
Direction No. 79 was made by the Minister for Immigration, Citizenship and Multicultural Affairs, on 20 December 2018. Paragraph 2 states that the Direction commenced on 28 February 2019. That is a date past the date on which the delegate made the decision under s 501CA(4) not to revoke the cancellation decision but it seems to me that Direction No. 79 applies to the Tribunal when it is reviewing such a decision. Review of a decision leads to the Tribunal’s making the decision afresh on the evidentiary material available to it. Making that decision afresh is an exercise of the powers under the Migration Act. That follows from s 43(1) of the Administrative Appeals Tribunal Act 1975 (AAT Act) when it provides that:
“For the purpose of reviewing a decision, the Tribunal may exercise all the powers and discretions that are conferred by any relevant enactment on the person who made the decision and shall make a decision …”
The Tribunal is exercising powers under the Migration Act and particularly under s 501CA(4).[26] Therefore, under s 499(2A), the Tribunal must comply with a direction given under s 499(1) about:
“(a) the performance of those functions; or
(b)the exercise of those powers.”
[26] Although the Tribunal exercises powers under the Migration Act, I do not think that the Tribunal can be described as a “body having functions …” under that Act. Its functions are conferred under the AAT Act. They are to review decisions in respect of which an application has been made to it. An application may only be made to it if another enactment provides that it may be made but the application is made under s 29 of the AAT Act, as varied by that other enactment. Therefore, the application is not made under the Migration Act but under the AAT Act. The review is conducted under the provisions of the AAT Act as modified by that other enactment. Even though the operation of its provisions may be modified by the other enactment, the Tribunal’s functions are those under the AAT Act and not under the Migration Act.
Paragraph 6.1 of the Direction No. 79 begins with a statement of objectives but I will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[27]
The objectives are followed by passages described as “General Guidance” and “Principles”.
[27] Direction No. 79 at [6.1(1)]
Paragraph 6.2(1) appears under General Guidance and states:
“The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.”
The Principles set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 79 are set. They give those considerations their form, pattern and underpinning framework. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non‑citizen’s visa should be cancelled, or their visa application refused.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)…
b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
Parts A and B do not apply in this case for they apply, respectively, when a non-citizen’s visa has been cancelled and when his or her application for a visa has been refused. Part C does apply in Mr Margach’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of Direction No. 79 sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[28] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[28] Direction No. 79 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[29] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … whether or not to revoke the mandatory cancellation of a visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[30]
[29] Direction No. 79 at [8(2)]
[30] Direction No. 79 at [8(4)] and [8(5)]
Part C of the Direction begins with three considerations that are characterised as primary considerations: the protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in paragraph 13 of the Direction. It then sets out what are described as “other considerations”. These are then developed under the headings of: international non-refoulement obligations; strength, nature and duration of ties; impact on Australian business interests; impact on victims and extent of impediments if removed.
Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.”[31]
[31] Direction No. 79 at [13.1(1)]
That statement makes clear that the person’s conduct, past and future, is relevant. That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:
“… should also give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”
A. The nature and seriousness of Mr Margach’s conduct
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act; [sic]”.[32]
[32] Section 197A of the Migration Act states that “A detainee must not escape from immigration detention. Penalty: Imprisonment for 5 years.”
A.1 Consideration
There can be no question that Mr Margach’s crime must be viewed very seriously. That is consistent with paragraph 13.1.1(b) of Direction No. 79 but, even in the absence of the Minister’s statement, Mr Margach’s crime was a very serious one indeed. It was a crime of extreme violence. It was a crime against the woman to whom he was married . It was a crime against a person who was, as Nettle JA found, of less height, weight and strength than he and, unlike him, unarmed. Mr Margach persisted in his attack despite his wife’s efforts to fend him off. As a result of her attempts, she suffered defensive wounds in addition to the wounds he inflicted by repeatedly stabbing her with a kitchen knife regardless of her cries and the pleas of their elder child that he stop. In all, Mr Margach inflicted ten or eleven stab wounds. His wife suffered 20 wounds as a result with two of them proving fatal.
Mr Margach’s loss of control has had devastating effects for everyone. His wife lost her life and her parents their daughter and her brother his sister. The children she had borne had lost their mother and that loss was immediate and violent and occurred at least in front of their elder daughter. Even though it might be said that it had happened by his own hand, the children also lost their father that night and, at least their elder daughter, witnessed the actions that led to their losing both their mother and, in all but name, their father. The children also lost their paternal grandparents and the paternal grandparents their grandchildren for they have not seen each other since that time. Mr Margach has not been in contact with his children since that time and knows that he has lost them by his actions.
Apart from an incident the previous night when he had pushed his wife and struck her nose as she tried to retrieve her mobile phone from him, Mr Margach had never shown any violence to any person, let alone his wife. The two nights in Mr Margach’s life were quite out of keeping with his behaviour in the years preceding them and in the years following them. He does not have a history of violence or of threatening behaviour of any sort towards his family or anybody else.
B.The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of Direction No. 79 states:
“(1) 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 the rehabilitative courses to be undertaken).”
B.1. Consideration
In his sentencing remarks, Nettle JA said that it was accepted that Mr Margach was unlikely ever to offend again. His Honour supposed that Mr Margach could one day achieve complete rehabilitation but thought that, in view of his then mental condition, it would be a long-term project.
At the time he was sentenced after his second trial, Nettle JA had the benefit of the report of Dr Lester Walton, Consultant Psychiatrist. Unfortunately, I do not have that but I note that, based on that report, his Honour found Dr Walton described Mr Margach as a “fairly badly psychologically-damaged individual”, who remained in the grip of a depressive process that had been aggravated by his conviction. Dr Walton had seen Mr Margach on two occasions in the middle of May 2008 and he described Mr Margach as chronically depressed and requiring continuing psychiatric care and indefinite medical treatment. He did not suggest in any sense that Mr Margach was a danger to others. Rather, he stated that Mr Margach remained at risk of long-term self-injury and self-destruction.
Both before and after his trial before Nettle JA, Mr Margach was located in the St Pauls Unit. On the basis of the report by Mr Tim Watson-Munro, Consultant Psychologist, dated 11 February 2019, I find that Mr Margach is currently being treated with Avanza (60 milligrams). Having regard to the letter written by Sister O’Shannassy in 2017, I also find that he has been scrupulous in taking medication as prescribed. Mr Watson-Munro found that there was nothing to indicate that Mr Margach was suffering from any major psychiatric disturbance although he was experiencing an escalation in the intensity of his symptoms due to the uncertainty of his future. That was consistent with Mr Watson-Munro’s testing and clinical impressions that Mr Margach had symptoms referable to a Depressive Disorder (moderate and recurring) according to DSM-5 criteria.[33]
[33] Diagnostic and Statistical Manual of Mental Disorders
Mr Watson-Munro said in his report that Mr Margach acknowledges that he requires ongoing treatment. That is primarily because of his Depressive Disorder and would involve his continuing to take medication and to engage in both supportive and motivational psychotherapy and specific Cognitive Behaviour Therapy focused on, for example, his anxiety and the use of systematic desensitisation techniques. Given the work that he has done during his incarceration and to which I refer at [38]-[40] above, I am satisfied that Mr Margach would continue to comply with all medical and mental health advice that he receives.
Of note is Mr Watson-Munro’s conclusion that Mr Margach does not suffer from a Personality Disorder coupled with his observation that Mr Margach has not had a history of violations of orders and the like, has not exhibited a history of poor impulse control, behavioural instability and anger and has not sought to minimise or deny killing his wife. Those aspects, Mr Watson-Munro said, mitigated against Mr Margach’s having any innate propensity to violence or criminal activity.
The basis on which Mr Watson-Munro reached his conclusion is established by the evidence that I have. Just as Nettle JA found that he did not seek to minimise his offence, I find that continues to be the case. He acknowledges everything that he did. The only thing that he does not accept is that his late wife did not tell him that she had “fucked” SB. Nettle JA found that she had not said that to him but he also acknowledged at a later point in his sentencing remarks that Mr Margach’s attack had begun as a spontaneous reaction to emotional demands with which he was inadequate to deal. The fact that Mr Margach continues to believe that his late wife did say that to him does not lessen his acceptance of the what he has done. It does not lessen his recognition of the fact that he should never have lost control as he did regardless of what she said. Nettle JA also found that Mr Margach’s belief had no impact on the level of contrition he feels for what he has done.
Mr Margach’s history both before and during his incarceration is consistent with my finding that he is a person who does not have any innate propensity towards violence or criminal activity. Apart from one incident of having tobacco in his cell, there is nothing to indicate that Mr Margach has been anything other than an exemplary prisoner since he was taken into custody in 2004. His courses show that he has worked hard to deal with his own personal difficulties as well as acquiring new skills that may be of use to him in subsequent years. His work in gaining an understanding of his personal issues, his emotions and his reactions to those emotions and the need to respond rather than to react is supported by Sister O’Shannassy and those who have written reports regarding his attendance at the various courses. There is a report by Ms Sonia Stocco, who delivered the Courageous Communication course, and her comments that I have set out above are consistent with his being found to have scored such a low level risk of reoffending that he was not required to attend Moderate and High Intensity Violence Programs. I make that finding on the basis of Mr Margach’s evidence, which is also supported by that of the prison officer who has known him for a shorter period. It is also consistent with the evidence given by both prison officers, who, like Ms Amy Gross, the Senior Clinician with Caraniche, have spoken of his work in the prison system. The regard in which Mr Margach is held by those within the prison system and of those who come into that system to work with prisoners is remarkable.
Nettle JA found that Mr Margach was obsessed by jealousy and suspicion of his wife. I have set out at length his Honour’s description of events and I do not seek to question his findings but, on the evidence that I have heard, I would want to say that it casts events in a slightly different light.
Whether I can say that when reviewing an administrative decision regarding the revocation or otherwise of the cancellation of his visa has been the subject of consideration in several cases. These include Minister for Immigration and Multicultural Affairs v SRT,[34] Minister for Immigration and Multicultural Affairs v Daniele,[35] Minister for Immigration and Ethnic Affairs v Gungor,[36] Ridley v Secretary, Department of Social Security[37] and Saffron v Commissioner of Taxation (Cth) (No 2).[38] Each concerned a conviction and the facts on which it was based.
[34] (1999) 91 FCR 234; 56 ALD 349 (Branson, Lindgren and Emmett JJ)
[35] (1981) 61 FLR 354; 39 ALR 649 (Fisher, Davies and Lockhart JJ)
[36] (1982) 63 FLR 441; 42 ALR 209 (Fox, Fisher and Sheppard JJ)
[37] (1993) 42 FCR 276; 113 ALR 655 (Spender, Gummow and Lee JJ)
[38] (1991) 30 FCR 578; 102 ALR 19 (Davies, Lockhart and Beaumont JJ)
These cases were reviewed by Branson J in Minister for Immigration and Multicultural Affairs v Ali.[39] Her Honour recognised that some legislative provisions operate by reference to the fact that a person has been convicted of a criminal offence. Section 200 of the Migration Act is such a section for it permits the Minister to deport persons to whom Division 9 of Part 2 of the Act applies. Such a person is a person who, as well as meeting other criteria, has been convicted of a criminal offence and sentenced to a period of imprisonment of not less than one year. In those circumstances, Branson J concluded:
“… the administrative decision-maker is entitled to receive evidence of a conviction and sentence and to treat it as probative of the factual matters upon which the conviction and sentence were necessarily based ([General Medical Council v] Spackman [[1943] AC 627]), Daniele, Gungor and SRT).”[40]
[39] (2000) 106 FCR 313; 62 ALR 673
[40] (2000) 106 FCR 313; 62 ALR 673 at 325; 684
By way of contrast, where a legislative provision does not operate by reference to the fact of a conviction and a conviction is merely one aspect of the evidence in the case, proof of the conviction is not regarded as proof of the essential facts upon which that conviction was based. As Davies J said in Saffron v Commissioner of Taxation (Cth) (No 2):
“ A conviction is a decision in rem which establishes, while it stands, that the person convicted has been convicted of certain crime. If the person has been convicted of a felony, it establishes that the person is a felon. Such a matter is one which the convicted person may challenge only by seeking to set aside the conviction. In the taxation appeals, the taxpayer may not challenge the fact that he has been convicted of conspiracy to defraud the Commonwealth. But of course the taxpayer does not seek to do so and the fact of conviction is itself irrelevant. As is stated by G S Bower and A K Turner, The Doctrine of Res Judicata (2nd ed, 1969), p 215, a conviction is conclusive merely of that which it establishes, namely, the fact of conviction for the offence, but not of the facts lying behind that conviction.
… where a conviction is the foundation for the exercise of a power, no challenge can be made to the fact of the conviction or to the essential facts on which it was based. But by making clear the circumstance in which no such challenge may be made, the cases establish that, where the exercise of the power is not founded on a criminal conviction, then even if the conviction be relevant, a challenge may be made to the essential facts on which it was based. In Australia, an example is the decision of the High Court of Australia in Ziems v Prothonotary of Supreme Court (NSW) (1957) 97 CLR 279.”[41]
[41] (1991) 30 FCR 578; 102 ALR 19 at 581-582; 21-22
The case of Ziems v Prothonotary of Supreme Court[42] (Ziems) required the High Court to consider the regard that should be had to a barrister’s conviction for an offence against the criminal law in considering whether his conduct was such as to show that he was unfit to remain a member of his profession. The barrister had been convicted of manslaughter when he drove on the wrong side of the road. There had been evidence of his having been intoxicated before he drove his car but also evidence that he might have been suffering from blows he had received when violently and savagely attacked and heavily punched by a seaman who had used disgusting language to two young women in a hotel.
[42] (1957) 97 CLR 279; Fullagar, Kitto and Taylor JJ; Dixon CJ and McTiernan J dissenting
In his judgment, Fullagar J said that it was essential to begin with the issue to be decided i.e. whether Mr Ziems was a fit and proper person to be permitted to practise at the Bar.[43] To answer that question, every fact which could throw light on that question must be examined. The conviction was one such fact and it carried a degree of disgrace in itself. The court was, however, permitted to look behind that conviction to the facts of the case to characterise the conduct and determine whether it threw light on whether Mr Ziems was fit to practise his profession. It was permitted to look at all scenarios that had been available on the evidence leading to the jury’s finding Mr Ziem’s guilty of manslaughter. Whether he was intoxicated or affected by a blow on the head, he was not fit to drive a motor vehicle.
[43] (1957) 97 CLR 279 at 288
Mr Ziems did not seek to deny the basic elements of the offence of which he had been convicted. He sought to rely on other explanations of the events leading to his conviction when those explanations had been open on the evidence before the court and were relevant in assessing his conduct and whether he was a fit and proper person to be a barrister.
In this case, I am looking not at the conviction of Mr Margach or of the basis on which he was convicted for I am bound by the jury’s verdict of murder and so by the elements of that offence. I am also bound by the findings that formed the basis on which Nettle JA sentenced Mr Margach. The matters I am considering arise, however, in a context different from that before his Honour. I am reviewing a discretionary decision whether to revoke the cancellation of Mr Margach’s visa. It is not a case in which the conviction is the foundation for the exercise of that discretionary decision as it would be were I reviewing a decision under s 501(2)(a) on the basis of a person’s not passing the character test because he or she has been convicted of an offence of a sort identified in s 501(6).[44] Following the approach taken by Fullagar J in Ziems, I am permitted to have regard to the evidence that I have been given and that throws light on events leading to his conviction. Examination of those events in light of that evidence may assist in understanding them and in understanding Mr Margach as he was then and in considering whether he is the same person. To take this approach is not to make findings contrary to those made by Nettle JA but to add to them and to examine them in the context of the issues that I must consider.
[44] See HZCP v Minister for Immigration and Border Protection [2018] FCA 1803 at [78]; Bromberg J
The only findings that I would make in this vein relate to the marriage between Mr Margach and his late wife. In listening to Mr Margach and to his mother, I have come to the view that two good people married when they were very young and before they grew into the people they were to become. In many instances, people grow together but, in others, they find that they have grown apart. This was the case with Mr Margach and his late wife. As Mrs Margach said of her late daughter in law, she was an open and outgoing person in contrast to her son, who was a homebody. Her daughter in law was used to interacting with people generally as well as with her family. His focus was much more confined and centred on his family and on his work and, in the time leading up to the murder, perhaps too much on his work. That is not to say that he did not need to be so focused on his work for I accept that he feared that he would lose his job, as other executives had done earlier when an American company took over his employer.
He also feared that he would lose his wife, and so his family, and that was apparent from the events on that last night when he was pleading with his wife to stay with him. Whether she would or would not had clearly been a question she had asked herself before that night but she had made up her mind to stay. Earlier on that night, she had told her girlfriend that she would give her marriage another try. His questioning of their elder daughter about his relationship with her mother and his display of emotion led to his wife’s statement that she wanted a man and not a baby. This showed the difference between them. She had given thought to their marriage and whether she should stay in it. He had not thought beyond the continuation of their marriage and his suspicions and jealousy about her and her faithfulness to him. His placing a recording device on their home telephone was indicative of that. His thoughts had not travelled his need to have her in his life. He continued in that frame of mind throughout the previous night and the night of the murder. He reacted to his suspicions and beliefs when he should have responded to her declarations.
I have had this in mind when considering the psychological treatment that Mr Margach has received since being incarcerated and the work that he has done himself. My findings are set out in earlier paragraphs of these reasons. I have thought about them in the context of the suggestion made during the hearing that Mr Margach could repeat his actions were he permitted to remain in Australia and were he to have a relationship with another woman. I have concluded that Mr Margach has gained maturity and insight into his behaviour and its causes to such an extent that he would be adequate to deal with the stresses that face many in the workplace and the home; stresses of the sort that he faced in 2004. Like Nettle JA, I accept that Mr Margach is unlikely ever to offend again and do so in light of the work that he has done to rehabilitate himself.
C. Best interests of minor children in Australia affected by the decision
Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[45] Mr Margach’s daughters are both over the age of 18 years and I need consider the matter no further.
[45] Direction No. 79 at [13.2(2)]
D. Expectations of the Australian community
Paragraph 13.3(1) states:
“The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”
D.1 How are those expectations determined?
Paragraph 13.3(1) is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. A consideration of what is an acceptable risk and what is not will be informed by the Principles set out in the current Direction. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that:
“… 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.”
Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence. Sometimes evidence will be found in what is said in any sentencing remarks, if they are available, but regard must be had to all of the evidence. Ultimately, the judgment that a decision-maker comes to must be one that is able to be explained.[46]
[46] I explained the reasons for coming to this view in Re Rabino and Minister for Immigration and Border Protection [2016] AATA 999 at [60]-[72], which I adopt.
I note that Mortimer J considered paragraph 13.3(1) in YNQY v Minister for Immigration and Border Protection[47] when she said:
“In substance this consideration is adverse to any applicant. As the Minister submits, it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the ‘expectations’ about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to ‘tolerance’) the Australian community’s ‘expectations’ are defined only in one particular way: namely, that the Australian community ‘expects’ non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
I do not consider that even if the applicant is correct to submit that the Tribunal did not undertake the task required of it by the Direction in relation to this consideration, he was deprived of a different outcome because of that failure. It was inevitable that this consideration would weigh against revocation: that is what it is intended to do (see Uelese [2016] FCA 348; 248 FCR 296 at [64]-[66]).”[48]
[47] [2017] FCA 1466
[48] [2017] FCA 1466 at [76]-[77]
I respectfully do not agree with the statement, if it be intended to be of general application, that it is inevitable that paragraph 13.3(1) would weigh against revocation. Paragraph 13.3(1), with which I am concerned and which was the subject of YNQY, is quite specific in its statement that the Australian community expects non‑citizens to obey Australia’s laws while in Australia but leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind. That is particularly so when regard is had to the general statement in 6.2(1) that I have set out at [50] above. Granted that the principles are of critical importance, the determination of what is unacceptable must have regard to the evidence.
D.2 Consideration
Paragraph 13.3(1) of the Direction states at the outset that the Australian community expects non-citizens to obey Australia’s laws while in Australia. It then states the circumstances in which it may be appropriate not to revoke a mandatory visa cancellation. Those circumstances arise if a non-citizen has breached Australia’s laws, there is an unacceptable risk that he or she will breach the trust, and so expectation, that he or she will obey Australia’s laws while in Australia or where the non-citizen has been convicted of offences in Australia or elsewhere. The Australian community would expect that visas should not be held by persons who commit certain types of offences.
The discretionary nature of the decision is preserved as is the determination of what amounts to “an unacceptable risk” of breaching the Australian community’s expectation that Australian laws will be observed by non-citizens in Australia. Those discretions must also be guided by the general statements in paragraph 6.2 and the principles in paragraph 6.3 of Direction No. 79. There the Minister has placed emphasis on the protection of the Australian community from harm as the result of criminal conduct or other serious conduct by non-citizens.[49] In summary, the principles in paragraph 6.3 emphasise the privilege that it is to be granted a visa to be in Australia and the expectations that are commensurate with that privilege. Having regard to the circumstances of the crime he committed, I have concluded that the majority of the Australian community might expect that Mr Margach not be permitted to remain in Australia. Informed by the whole of the circumstances of this matter and particularly by the very low level of risk that Mr Margach will reoffend, I have concluded that the view of many members of the Australian community might well be modified.
[49] Direction No. 79 at 6.2(1)
Mr Margach came to Australia to live permanently at the age of 15 years. He was not a young child but nor was he a mature adult. He was an adolescent. He had been born and spent the first eight years of his life in Kenya but found his first home of any permanence in Australia. He applied himself in Australia both in his studies and subsequently in the workplace. Since he murdered his wife and received psychiatric treatment, he has done everything that he could do to become the person whom Nettle JA said had been accepted as a person unlikely ever to offend again. In other words, if he were to be released into the Australian community, the risk to the Australian community would be very small indeed.
Other considerations
The five other considerations are summarised in paragraph 14(1):
“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.”
A. International non-refoulement obligation
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. Non‑refoulement obligations arise under a variety of international conventions. Paragraph 14.1(1) states:
“A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.”
A.1 Consideration
Mr Margach has not raised any issues that require me to consider whether Australia has a non-refoulement obligation.
B. Strength, nature and duration of ties
Paragraph 14.2(1) of Direction No. 79 states:
“… 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).”
B.1 Consideration
Mr Margach has lived in Australia since 1981 when he was 15 years of age. The first six years or so of his residence in Australia were spent completing his secondary education and then his tertiary education. He went from full-time study to full-time work. He is now 52 years of age. His parents live in Australia and are now aged 74 and 86 years. At the time of the hearing, both were in a rehabilitation hospital. Mr Margach’s father, Mr Tadick Margach, suffered from atrial fibrillation, high blood pressure and dilated cardiomyopathy. His Consultant Cardiologist, Dr Robert Newman, reported on 10 August 2017 that Mr Tadick Margach’s long term prognosis was now quite limited because of his heart disease.[50] At the same time, he needs a knee replacement but has been postponing that because of his wife’s condition. Recently, he had a fall and broke his shoulder and collar bone.
[50] G documents; G68 at 280
In April 2017, Mr Craig Mills, who is an Orthopaedic Surgeon, reported that Mrs Ivy Margach had a total right hip replacement in 2010 followed by a total left knee replacement in 2011. In 2016, Mrs Ivy Margach suffered an abrasion and developed a major deep infection around her left knee. As a result, she was hospitalised for several weeks during June and July 2016. Mrs Ivy Margach has reduced mobility and ongoing weakness. As a result, she required supportive care and assistance with personal tasks, self-care, house duties, shopping and gardening. She has had several bad falls recently. On 14 February 2018, Mrs Ivy Margach has suffered a stroke. She has been affected on her right side and is receiving physiotherapy to recover.
Mr and Mrs Margach receive some home help but they would very much like to have their younger son care for them if he is permitted to remain in Australia. They hope to live independently and see their son as the way they can achieve that. Their elder son lives in Queensland with his family where his wife cares for her elderly mother. Putting aside their practical needs, I find that there is a strong emotional attachment between Mr Margach and his parents. His parents have been regular visitors to him in prison and it is clear that there is a strong bond between them. If Mr Margach were required to leave Australia, his parents would not be fit to travel to visit him. He would not see them again. Whether he would see his brother again would depend on his brother’s ability to leave his wife and children to travel to see him. He has a strong relationship with his brother, who had arranged to travel to Melbourne to represent him at the hearing but who was unable to fulfil that role when the hearing dates were changed.
C. Impact on Australian business interests
Paragraph 14.3(1) of Direction No. 79 states:
“Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
C.1 Consideration
The cancellation of Mr Margach’s visa and the non-revocation of that cancellation would not have any particular or quantifiable effect on Australian business interests at this stage. That is not to belittle his hard work and the contribution he made in the automotive industry before his incarceration. It is simply a recognition that the automotive industry is not as it was 14 years ago. Mr Margach would have to carve out his career again in that industry if he wanted to return to it. If he did not want to return to it, he might look for other less stressful employment and he has readied himself for work of that sort.
D. Impact on victims
At paragraph 14.4(1), Direction No. 79 states:
“Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”
D.1 Consideration
Apart from the late Mrs Margach, there are many victims in this matter. Mr Margach’s daughters and their mother’s family are victims. I have no evidence of the impact upon them of his staying in Australia. Mr Margach’s own parents are members of the Australian community and victims of his crime. I have set out their reaction above. They recognise that he has committed a wrong that cannot be righted but love him unconditionally and would welcome home a son whom they have seen grow in maturity and confidence over the years spent in prison.
E. Extent of impediments if removed from Australia/not permitted to return
Direction No. 79 also states in paragraph 14.5(1) that:
“The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)The non-citizen’s age and health;
b)Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.”
E.1 Consideration
Mr Margach spent a little over a year in the United Kingdom as a young schoolboy just starting his secondary schooling. He has visited the country for his employment on several occasions but does not know it and, apart from attending boarding school for a little over a year, he has not otherwise lived in it. His mother’s two sisters are still alive and living there. One is in her 90s and suffering from dementia. The other is in her 80s and her ability to help Mr Margach would be limited. I have no evidence regarding social services that might be available to him or his job prospects.
CONCLUSION
While a predecessor of Direction No. 79, Direction No. 55, clearly put the future harm to the Australian community and the risk of harm’s occurring as the fulcrum around which the other considerations were to be weighed in the balance, the removal of a clear statement to that effect in either Direction No. 65 or now Direction No. 79 leaves the fulcrum to be drawn by implication. When account is taken of the considerations in Part C together with the Preamble to the Direction set out in paragraph 6, it is clear that the Minister intends that a decision-maker undertake a balancing exercise having regard to all of the considerations that he requires to be addressed and having regard to any other relevant factors. Generally, the primary considerations are to be give greater weight than those described as “other considerations”. I have addressed these in the opening paragraphs to these reasons and also address them here. They are to be read together.
There is no doubting that Mr Margach committed a very serious crime indeed in 2004. I have set out the circumstances in which he committed in the passages I have quoted from the sentencing remarks of Nettle JA. They cannot be downgraded and they cannot be ignored. The abhorrent nature of the crime and consequent irreplaceable loss of the life of a young mother in the lives of her children, parents, siblings and family must be recognised and given considerable weight. So too must the irrevocable changes inflicted on all of them when Mr Margach lost his self-control and acted in a way driven by jealousy and suspicion. Those things can never be forgotten.
The Australian community does not condone what Mr Margach did and its members will find what he did unacceptable. That is different from finding that he presents an unacceptable risk to the Australian community or that he should automatically be denied the privilege of remaining in Australia. For reasons that I have given above, I have found that, consistent with the remark made by Nettle JA in sentencing Mr Margach, he is unlikely ever to commit another offence of any sort. He has had extensive psychiatric care and is committed to continuing his treatment. In the course of that and in the course of his attendance at self-awareness and behavioural courses, he has developed insights into his own behaviour and why he has acted as he did. In the course of doing that, he has become a mature person who is well-regarded and relied upon by others in the prison system. That is shown by the references he has had from prison officers and by those who work in the prisons.
I find that Mr Margach is a person who has spent every day of his life since the murder trying to atone for his actions and is likely to continue to do so for the rest of his life. He will continue to punish himself long after he has served the punishment that the community has imposed on him through the legal system. If he is permitted to remain in Australia, he will devote himself to caring for his elderly parents. Other care may be available through aged services but the care of their son would be preferable. Mr Margach would live with them and his parents would not be dependent on the availability of professional carers.
Mr Margach was born in Kenya. The eight years in that country represented the longest period he had lived in any country until his family came to reside in Australia permanently. Those other countries were Malaysia, from which he travelled to attend boarding school in the United Kingdom, and Bahrain as well as, in 1974, a few month in Australia. His British citizenship comes through his mother but it is not a country where he has spent any time living as an adult. He did not do so when he spent a little over a year there when he began his secondary schooling. His work later took him to the United Kingdom but he remained a visitor and has never lived there. The only family that he has in that country are two very elderly aunts. One has dementia and could not assist him and support from the other would necessarily be limited by reason of her age. There is no evidence whether financial or other support would, or would not, be available to him through any form of social security system. He would have to make his own way in a country where he has never lived as an adult.
From the time the family arrived in Australia in 1981 and made it their home, Mr Margach has applied himself assiduously first to his studies and then to his work. His colleague, Mr Denis Pearce, who was the Purchasing Manager for a large automobile manufacturer and worked with Mr Margach in that industry, Mr Denis Pearce gave evidence that Mr Margach is an intelligent and well-educated person who was highly qualified at his job. Mr Margach frequently accompanied Mr Pearce on local and overseas visits to suppliers and vendors to view their manufacturing production methods and quality standards. He has kept in touch with, and visited him from time to time, throughout Mr Margach’s incarceration. He still regards him as an honest, reliable and very trustworthy person. He offered his support if Mr Margach were permitted to remain in Australia.
There will be many in the Australian community who may expect that murdering his wife should lead to his automatically losing the privilege of living here but, as the Minister acknowledges, that may generally be the case but it is not always so. This is a case in which I have concluded that the protection of the Australian community does not require Mr Margach’s removal from the country. It is a case in which Mr Margach has worked hard and contributed to Australia’s automotive industry. The industry may not be what it was but his contribution is not diminished by that fact. His work ethic is not diminished as is apparent from his work during his incarceration. It would be directed to his assisting his parents to remain in their own home as their carer if he were permitted to remain in Australia. He has undertaken first aid courses with that in mind as well as courses that would assist him in maintaining their house and comfort if he were given the privilege of remaining in Australia.
Having regard to all of these matters, I have decided that the balance lies in the revocation of the cancellation of Mr Margach’s RR visa. He is not a person from whom the Australian community needs protection. There will be members of the Australian community who may regard his crime as one that should warrant his removal but his history of hard work and contribution to the Australian community through his employment and the contribution he can make to caring for his elderly parents and taking them from the pool of people for whom aged care services must be provided, counter that consideration. Overall, I have decided that the balance lies in favour of Mr Margach’s RR visa being restored to him. That is to say, I have decided that, within the meaning of s 501CA(4)(b)(ii), there is another reason why the cancellation decision should be revoked.
DECISION
For the reasons I have given, I:
(1)set aside the decision made by a delegate of the Minister on 11 December 2018 refusing under s 501CA(4) of the Migration Act 1958 to revoke the cancellation of Mr Margach’s Class BB, Subclass 155 Five Year Resident Return visa under s 501(3A); and
(2)substitute a decision that the cancellation of Mr Margach’s Class BB, Subclass 155 Five Year Resident Return visa under s 501(3A) be revoked under s 501CA(4).
The practical effect is that Mr Margach continues to hold a visa entitling him to remain in Australia.
| I certify that the preceding one hundred and twelve [112] paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie. |
[sgd]..................................................................
Associate
Dated: 5 March 2019
| Date of hearing: | 25 February 2019 |
Applicant: | In person |
Counsel for the Respondent: | Mr Jamie Grant |
| Solicitor for the Respondent: | Sparke Helmore Lawyers |
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