Maryvan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 2502
•26 July 2021
Maryvan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 2502 (26 July 2021)
Division:GENERAL DIVISION
File Number: 2019/5634
Re:Athi Maryvan
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:26 July 2021
Place:Brisbane
The decision under review is affirmed.
...........................[sgd]...............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – mandatory cancellation of the Applicant's Subclass 101 Child (Permanent) visa – Migration Act 1958 (Cth) s 501(3A) – Applicant fails to pass the character test – substantial criminal record – sentenced to a term of imprisonment for 12 months of more – whether there is another reason why the cancellation should be revoked – s 501CA – application of Direction No. 90 – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
BDQ19 v Minister for Home Affairs (2019) 167 ALD 38
DMH 16 v Minister for Immigration and Border Protection (2017) 253 FCR 576
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FRH18 v Minister for Home Affairs (2018) 266 FCR 413
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Godley v Minister for Immigration and Multicultural and Indigenous Affairs (2004) 83 ALD 411
Minister for Home Affairs v Omar (2019) 272 FCR 589
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Repatriation Commission v Warren (2008) 167 FCR 511
Saleh and Minister for Immigration and Border Protection [2017] AATA 367Suleiman and Minister for Immigration and Border Protection (2018) 74 AAR 545
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Direction No 75 – Refusal of Protection visas Relying on Section 36(1C) and Section 36(2C)(b)
REASONS FOR DECISION
ISSUES
DOES THE APPLICANT PASS THE CHARACTER TEST?
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
The principles in paragraph 5.2
The Primary and Other Considerations
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
The nature and seriousness of the Applicant’s conduct to date
Other conduct
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Review of the evidence
Findings about likelihood of reoffending
Conclusions about risk
Weight attributable to Primary Consideration 1
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Analysis – Allocation of Weight to this Primary Consideration 4
Conclusion: Primary Consideration 4
OTHER CONSIDERATIONS
(a) International non-refoulement obligations
The Present state of the law
The evolution of the issue of international non-refoulement through this matter
What does the Applicant say about returning to Laos?
The comparative state of the evidence – between the first Tribunal hearing and this one
The Applicant’s stated fears of harm: an analysis
The consequences of non-revocation
Findings and Allocation of Weight to Other Consideration (a)(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community
Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
Impact on Australian business interests
Weight allocable to Other Consideration (d): links to the Australian communityFindings: Other Considerations
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
DECISION
REASONS FOR DECISION
Senior Member Theodore Tavoularis
26 July 2021
Athi Maryvan (“Applicant”) is a 32 year old citizen of Laos. On 14 February 2019, his Class AH Subclass 101 visa (“visa”) was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“Act”) by a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Minister” or “Respondent”).[1]
[1]G1, 10–12.
He made representations to have the mandatory cancellation revoked as required by s 501CA of the Act. The delegate decided not to revoke the mandatory cancellation of the Applicant’s visa on 28 August 2019.[2] The Applicant now seeks review of that decision in this Tribunal.
[2]G1, 10–12.
This matter has been previously ventilated before the Tribunal. That previous hearing culminated in a decision from this Tribunal on 21 November 2019. The outcome of that decision resulted in the affirmation of the delegate’s decision to refuse to revoke the cancellation of the Applicant’s visa. The Applicant appealed. On 20 October 2020, the Federal Court of Australia remitted the matter to this Tribunal for re-hearing.[3]
[3]R3, 1–3.
The remittal hearing was held before me in this Tribunal on 3 and 4 June 2021. The hearing received both written and oral evidence. The written evidence was particularised in an agreed Exhibit List, a true and correct copy of which is marked Annexure A.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4) The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[4]
[4](2018) 267 FCR 320 (‘Buadromo’), [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[5] I will address each of these grounds in turn.
[5]Buadromo, [21].
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 5 December 2012, the Applicant was convicted for a variety of offences.[6] He was sentenced to a term of imprisonment of 12 months. Therefore, he satisfies the definition in s 501(7)(c) of the Act and fails the character test. The Applicant does not cavil with this finding.[7] Needless to say, the Respondent endorses this concession.[8]
[6]G1, 24–25.
[7]A1, 4[11].
[8]R1, 6[38].
It follows that the Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the revocation of the mandatory cancellation.
IS THERE ANOTHER REASON FOR THE REVOCATION OF THE CANCELLATION OF THE APPLICANT’S VISA?
In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[9] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[10]
[9]Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[10]Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which I must be guided by in making my decision.
The Primary Considerations I must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[11]
[11]Direction, paragraph 8.
The Other Considerations which, where relevant, I must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[12]
[12]Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(i)information from independent and authoritative sources should be given appropriate weight;
(ii)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(iii)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 I have quoted above does not differ materially from the guidance which appeared in former directions. Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[13]
[13]Suleiman and Minister for Immigration and Border Protection (2018) 74 AAR 545.
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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.
The nature and seriousness of the Applicant’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the factors specified in sub-paragraphs (a)–(g). I will consider each paragraph in turn, citing specific offences relevant to the operative effect of each applicable sub-paragraph in paragraph 8.1.1(1) of the Direction.
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
I am hard-pressed to find or attribute any element of violent or sexual criminal offending in the Applicant’s criminal history. Out of an abundance of caution, I feel compelled to make reference to the Applicant’s offence committed on 11 March 2018 involving his conviction for possessing a prohibited item, namely a knife. The circumstances of that offence are amply summarised in a police report.[14] On any reasonable view, this is not an offence of violence. It arose whereby someone in a BP service station informed the police that the Applicant had a knife. The factual circumstances go no further than the Applicant eventually agreeing that he carried the knife by telling the police he just carries it “to protect [himself]”. After being asked what he was going to do with the knife, the Applicant told police “I will not hurt anyone if the [sic] do not hurt me.” The Applicant was then charged with possession of a prohibited item – the knife.
[14]R2, 4, 23.
(Note also: it is necessary to point out how I have linked the documents in the police records to parts of the Applicant’s criminal history. The criminal history provides a series of “H Numbers” – for this offence, H 67903841. Those numbers correspond to court outcomes.
The police records contain “Events” which each have an “Event reference” – for this offence, E 68874678. Each event is a container for the notes of police officers and other information about matters of police interest.
There is a table in the summons bundle (See R2, 2–8) which contains, among other things, a list of all of the event references and corresponding H numbers, if they exist.
Using that table, police notes can be reliably linked to court outcomes.)
I am similarly hard-pressed to find any reference whatsoever to crimes of a violent nature against women or children; or family violence. This Applicant’s offending has been categorised by the Respondent in its Statement of Facts, Issues and Contentions (“SFIC”). Stated broadly, those categories comprise: (1) theft, offences of dishonesty, knife and trespass offences; (2) drug offences; (3) property damage; and (4) transport offences; and (5) other conduct – prison conduct. Nowhere in this history of offending is there a reference to violent offending against women or children. For completeness, I note that the Respondent conceded that the Applicant has not perpetrated family violence, which I analyse in my discussion of Primary Consideration 2.[15]
[15]See [112]–[114], below.
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)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;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention.
As best as I understood the Applicant’s criminal history, none of it directly engages any of the sub-paragraphs of sub-paragraph (b). There is no reference to him causing a party (or being a party) to a forced marriage (8.1.1(1)(b)(i)). He has not committed crimes against vulnerable members of the community, or government representatives or officials due to the position they hold or in the performance of their duties (8.1.1(1)(b)(ii)). He has not committed a crime while in immigration detention, during or after an escape from immigration detention, nor has he committed an offence against s 197A of the Act (8.1.1(1)(b)(iv)).
In relation to sub-paragraph 8.1.1(1)(b)(iii) of the Direction, I am mindful of the reference to “any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion”. This component of the Direction is not ventilated in the Respondent’s SFIC and there is consequently no reference to it in the Reply filed on behalf of the Applicant.[16] The Respondent appears to have generally raised this particular sub-paragraph in closing oral submissions.[17]
[16]A4.
[17]See Transcript, 105. See generally, lines 9–20.
I have looked through the componentry of s 501(6) of the Act and have sought to glean any subsection thereof that may be referable to “any conduct” informative of a finding that the Applicant does not pass an aspect of the character test. For present purposes, I note that the specific components of s 501(6) which need to be considered are strictly those elements that are “dependent upon the decision-maker’s opinion” as opposed to those matters which do not depend upon my opinion (which are, for example, matters of record or which are beyond dispute). They are:
·s 501(6)(b);
·s 501(6)(ba);
·s 501(6)(c);
·s 501(6)(d).
I will consider each in turn.
Section 501(6)(b) requires me to consider whether the Applicant is the subject of a reasonable suspicion that he has been or is a member of a group or organisation; and that such group or organisation has been involved in criminal conduct.[18] There is no reference in the material providing a basis for any such reasonable suspicion.
[18]Act, s 501(6)(b).
Section 501(6)(ba) requires me to consider whether the Applicant is the subject of a reasonable suspicion that he has been involved in conduct constituting, inter alia, people-smuggling, trafficking in persons, a crime of genocide, a crime against humanity, a war crime, a crime involving torture or slavery or a crime that is otherwise of serious international concern, whether or not he has been convicted for an offence constituted by the conduct.[19] There is no reference in the material providing a basis for any such reasonable suspicion.
[19]Act, s 501(6)(ba)(iii).
Section 501(6)(c) requires me to have regard to either or both of (i) the Applicant’s past and present criminal conduct; and (ii) the person’s past and present general conduct, to determine whether the Applicant is not of good character.[20] There can be little to cavil with the finding that the totality of the Applicant’s criminal and general conduct for the period of his offending from March 2010 to December 2018 (in terms of sentencing episodes and not including the offences he committed in criminal custody in February 2019) tends to show that he is not of good character.
[20]Act, s 501(6)(c).
The Applicant cannot be said to have committed most or all of his offending at some distant time in the past. He was last before lawful authority for sentencing in December 2018. He committed further criminal offences in criminal custody in February 2019. As noted by His Honour Lee J in Godley v Minister for Immigration and Multicultural and Indigenous Affairs,
“[t]he point at which recent criminal conduct, (as the term ‘present criminal conduct’ is to be understood), becomes past criminal conduct must be a matter of judgement. If there is no recent criminal conduct that circumstance will point to the need for the Minister to give due weight to that fact before concluding that a visa applicant is not of good character”[21]
[21](2004) 83 ALD 411.
In my judgement, the Applicant’s history of offending engages s 501(6)(c) of the Act such that the proximity and relative currency of his offending is the basis for a subjective finding that he is not of good character. Because of that finding, paragraph 8.1.1(1)(b)(iii) of the Direction militates in favour of a finding that the Applicant’s conduct has been serious.
Section 501(6)(d) of the Act requires me to consider whether there is a discernible risk that the Applicant would (1) engage in criminal conduct in Australia; (2) harass, molest, intimidate or stalk another person in Australia; or (3) vilify a segment of the Australian community; or (4) incite discord in the Australian community or in a segment of that community; or (5) represent a danger to the Australian community or to a segment of that community, whether by way of being liable to becoming involved in activities that are disruptive to or in violence threatening harm to that community or segment of that community, or in any other way.
Later in these reasons, I will more fulsomely address the question of the risk that the Applicant would again engage in criminal conduct in Australia if allowed to remain here.[22]
[22]See [75]–[109], below.
With the possible exception of s 501(6)(d)(i), which I will address in greater detail below, the balance of the factors contained in s 501(6)(d) do not, in my view, speak to any risk of the Applicant representing any unacceptable risk of committing offences of those types.
Accordingly, save and except for what I will find about the Applicant’s risk of recidivism later in these reasons, his history of offending does not engage s 501(6)(d) of the Act.
Be that as it may, I am of the view that s 501(6)(d)(i) does, to an extent, militate in favour of a finding that pursuant to paragraph 8.1.1(1)(b)(iii), the Applicant’s offending has been serious.
Sub-paragraph 8.1.1(1)(c) of the Direction requires a consideration of the sentences imposed by the courts for a crime or crimes of the Applicant. An initial observation involves the structure of this sub-paragraph. I am precluded from taking into account any sentences the Applicant has received for offences captured by the following sub-paragraphs: 8.1.1(1)(a)(ii)–(iii) and (b)(i). This is a moot point because the Applicant does not have convictions or sentences for crimes of violence against women or children, any acts of family violence, nor any acts involving either forcing (or being a party to forcing) marriage.
I have read the totality of the Applicant’s offending history. Stated shortly, the range and number of sentences imposed by the courts for his offending are as follows:
·The imposition of at least four fines;
·The imposition of at least seven bonds to take certain steps/do certain things;
·The recording of a conviction but with the imposition of no further penalty on seven occasions;
·The imposition of terms of imprisonment on 16 occasions. It should be noted, however, that certain of these entries were the result of an appellate court confirming or varying the order made by a lower court;
·The imposition of at least two community corrections orders.
The Applicant arrived in Australia in 2005 as a 17 year old. He has a history of offending in Australia that, in sentencing terms, runs from March 2010 until December 2018. It is a history that involves 29 convictions across an approximately nine year period of offending. In terms of custodial sentences, the Applicant has been sentenced to a term of imprisonment of 12 months on at two occasions. The totality of the custodial terms is perhaps best expressed in the following table:
Court Date
Offence
Imprisonment (months)
Other notes
20-Mar-17
Possess prohibited drug
1
Confirmed on appeal
20-Mar-17
Shoplifting
2
Confirmed on appeal
20-Mar-17
Shoplifting value <$2000
2
After appeal variation
22-Mar-17
Shoplifting
1
13-Sep-17
Goods in personal custody suspected of being stolen
4
13-Sep-17
Destroy or damage property <=$2000
9
Called up
24-Apr-18
Larceny value <=$2000
1
19-Jul-18
Destroy or damage property <=$2,000
9
After appeal variation
5-Dec-18
Shoplifting value <=$2000
12
5-Dec-18
Destroy or damage property <=$2000
2
Called up
5-Dec-18
Dishonestly obtain financial advantage etc by deception (attempted)
AND Larceny value <=$2000[23]12
5-Dec-18
Destroy or damage property <=$2000
2
Called up
Total term of imprisonment
4yr 9mo
[23]Note: the Applicant’s criminal history records that this offence resulted in two separate terms of imprisonment. However, the sentencing remarks of the learned Magistrate record that a single term of imprisonment was imposed for these matters: See G1, 31, lines 18–25.
The Applicant had been in the Australian community for a period of approximately 13 years until his most recent incarceration at the end of 2018. He has committed offences attracting the imposition of almost five years of custodial time which, in turn, represents almost one half of the total time that he has been in this country. He is currently aged 32 years. His offending has thus been committed by him at a relatively early stage of his adult life. For example, his first sentencing episode dating from March 2010 was at a time when the Applicant was approximately 21 years of age.
It cannot be said that custodial terms feature early in the Applicant’s criminal history. As mentioned, it runs from March 2010 to December 2018. His first custodial term was imposed in January 2017. Thereafter, custodial terms feature very prominently across the remaining two year period of his offending history. It should also be noted that the imposition of a custodial term is regarded as the last resort[24] in any reasonably and correctly applied sentencing process. Similarly, custodial terms are viewed as a reflection of the objective seriousness of an applicant’s offending.[25] It seems clear from his history that judicial sentencing officers were intent on affording him the benefit of non-custodial terms for the first seven years of his offending history. It appears he took nothing from these non-custodial penalties and continued to offend.
[24]See Saleh and Minister for Immigration and Border Protection [2017] AATA 367.
[25]See PNLB and Minister for Immigration and Border Protection [2018] AATA 162.
I am of the view that the sentences imposed on the Applicant for his offending merit the allocation of a significant level of weight in favour of a finding that the totality of his offending has been serious.
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
The initial inquiry involves an assessment of the frequency of the offending. The following table seeks to annualise the rate of the Applicant’s offending based on (1) the first and most recent of his court sentencing dates; and (2) the first and last dates on which he committed offences:
Offending in Australia
First court date
Last court date
Timespan
Court date count
Frequency
(court dates/year)10 March 2010
5 December 2018
8yrs 9mo
18
2.06
First offence
Last offence
Timespan
Offence Count
Frequency (offences/year)
2 March 2010
1 December 2018
8yrs 9mo
29
3.31
His offending history, as expressed in the above table, must surely be found to be frequent in nature. He has engaged the judicial process on at least 18 occasions. He has thus found himself before lawful authority on an average of two occasions per year. A similar observation and finding can be made about the offences he has committed. The table indicates he has broken the law on an average of over three occasions per annum across his offending history. Two sentencing episodes per annum and the commission of over three offences per annum does, without any doubt whatsoever, lead to a finding that the Applicant’s offending has been frequent.
The next enquiry involves an assessment of whether the Applicant’s offending involves any trend of increasing seriousness. To repeat, the Applicant has an approximate eight–nine year sentencing history running from March 2010 to December 2018. Any trend of increasing seriousness is perhaps best understood by comparing one period of that history to another. First, I will very briefly recount the nature of his offending from (in terms of sentencing episodes) March 2010 to January 2017 (inclusive). The offending during this period can be shortly described thus:
·being in possession of suspected stolen property (1 occasion);
·possess prohibited drug (2 counts);
·shoplifting (4 occasions);
·possess/attempt to possess prescribed restricted substance (1 occasion);
·travel or attempt to travel without a valid ticket (1 occasion).
Second, it is necessary to compile a comparative list of offences dealt with (including sentencing episodes, call ups, and appeals from offences committed in the first period) during the period February 2017 to December 2018. Those offences comprise:
·shoplifting (<=$2,000) (3 occasions);
·shoplifting (2 occasions);
·possess prohibited drug (2 occasions);
·enter inclosed land, not prescribed premises, without lawful excuse (6 occasions);
·enter prescribed premises of any person without lawful excuse (1 count);
·destroy or damage property (<=$2,000) (9 occasions);
·goods in personal custody suspected of being stolen (1 occasion);
·custody of knife in public place (1 occasion);
·larceny (<=$2,000) (2 occasions);
·enter vehicle or boat without consent of owner/occupier (2 occasions);
·dishonestly obtain financial advantage by deception (attempt) (1 occasion).
While the nature of the criminality during this second phase of the Applicant’s offending may not be overly different to the offences he committed in the first phase, it would not be unsafe to find that the second phase offending does involve at least a number of offences of a more serious nature. For example, in the first phase, while there is a reference to “shoplifting”, there are at least two convictions for “shoplifting value <=$2,000” in the second phase. In a similar vein, this second phase contains a conviction for “larceny value <=$2,000”. In the first phase, there is no reference to any conviction for destroy or damage property. In the second phase, the Applicant compiles 2 counts of such offending.
In the first phase of his offending, he does not appear to have transgressed the boundary of someone else’s personal or real property. However, the second phase of his offending includes 5 counts of entering enclosed land, not prescribed premises, without lawful excuse; 1 count of enter vehicle or boat without consent of owner/occupier. Thus, a finding can be safely made that there is an identifiable trend of increasing seriousness in this Applicant’s offending, particularly when its first phase is compared to his convictions in the second phase.
I have found that the Applicant’s offending has been of a frequent nature. I also find there to be a trend of increasing seriousness in his offending as well. This sub-paragraph 8.1.1(1)(d) thus weighs in favour of a finding that his offending conduct has been serious.
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending. To my mind, there are four cumulative effects discernible from the Applicant’s repeated offending.
First, he has failed to experience any measure of deterrent effect from the sentencing regime that has been imposed on him. He learnt virtually nothing from the predominantly non-custodial terms during the abovementioned first phase of his offending. During the second phase, there is a significant increase in custodial terms imposed upon him.
Second, his commission of some 29 offences across an offending history of eight–nine years that has come before lawful authority for sentencing on at least 18 court dates, can be found to have consumed more than its fair share of law enforcement and court resources. The extent of, for example, police involvement can be readily seen from the number of times police have been required to engage with the Applicant as a result of his offending conduct.[26]
[26]See generally R2, 1–78 which contains NSW Police records.
Third, the Applicant does not seem to have developed any respect for the personal rights of others represented by their ownership of realty and personalty. His offending history involving the unlawful deprivation of property belonging to others – be it in the form of shoplifting and larceny – is demonstrative of this. The abovementioned second phase of his offending contains a concerning and developing trend of the Applicant having little or no compunction with transgressing the lawful boundaries of other people’s real property and personal property represented by their ownership of such assets. Much of this offending has been committed in the second (and latter) phase of his offending.
Fourth, the Applicant has failed to develop any measure of respect for the lawful authority represented by the imposition of bonds and parole conditions. His history contains a number of failures to meet or comply with the terms of bonds that have been imposed on him. Perhaps most significant are his property damage offences on 1 July 2017, and 15 March 2018 which was committed apparently in breach of his parole conditions.
These cumulative effects strongly militate in favour of a finding that the totality of the Applicant’s offending has been serious.
Sub-paragraphs (f) and (g) of paragraph 8.1.1(1) of the Direction point to (1) an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending; and (2) whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. I have carefully looked through the material and can find no reference to, or contention about, either of these two sub-paragraphs in either SFIC, the Transcript, or anywhere else. Neither of these paragraphs are relevant to the instant determination.
Other conduct
The chapeau to paragraph 8.1.1(1) of the Direction relevantly provides as follows:
“In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date”
The Applicant has been convicted of two offences whilst in prison. First, on 4 February 2019, while providing assistance to the prison staff with the kitchen muster, he attempted to remove 500 grams of cold meat from the kitchen area in his underwear. He pleaded guilty the offence of “steal”. He was disciplined such that (a) he had to pay compensation to “CSI Food Services”; and (b) he was denied weekly purchases for a period of 14 days.[27]
[27]R2, 192.
Second, on 11 June 2018, during a routine search of the cell he was occupying, the Applicant was found to be in possession of a smoking implement (a “bong”) and a “spark-up device” that had been apparently fashioned from two razor blades that were blackened at one end.[28] This incident spawned two offences: (1) create or possess prohibited goods; and (2) possess drug implement. He readily pleaded guilty to both offences and was dealt with through the “inmate discipline action” regime then applicable to the facility.
[28]R2, 182–190.
Neither of these incidents can be regarded as overtly “serious”. That said, the Applicant has no reasonable or emergent excuse for this conduct and each of the offences constitute an obvious breach of prison regulations/protocols. While not overtly “serious” I consider this conduct to nevertheless be analogous to a crime committed while in immigration detention. As such, it is of relevance to allocation of weight for this Primary Consideration 1.
At best, the offences committed by this Applicant during his time in criminal custody are moderately supportive of a finding that the totality of his offending has been serious.
I have had regard to all of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction. With particular reference to my analysis of the weight allocable to sub-paragraphs (a)(i) (b)(iii), and (c)–(e) inclusive, together with the chapeau to 8.1.1(1), I am of the view that the Applicant’s offending can be readily characterised as “serious”.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Specifically, this sub-paragraph requires an assessment of the nature of the harm likely to be suffered by or occasioned upon individuals or the Australian community were the Applicant to re-offend.
The Respondent makes the contention that “[…] the nature of harm to individuals should the applicant reoffend, it would likely be harm similar to that suffered by his victims in the past. That would include trespass and stealing.”[29]
[29]Transcript, 106, lines 9–10.
I am of the view, and I find, that this contention is fairly made. The Applicant’s offending, on any reasonable view, cannot be said to have been necessarily violent in nature such that any re-commission of it can now be found likely to result in physical or catastrophic injury to a victim. However, that is not to detract from its seriousness or to otherwise trivialise the nature of harm that could be caused to others were it to be re-committed.
The Applicant’s offending history is, to my mind, somewhat nuanced because he seems to be committing either the same offences or the same type of offences albeit with growing levels of both frequency and seriousness. The safest finding is that were he to re-commence his offending style and pattern upon a return to the Australian community, he would again consume police and law enforcement resources together with court sentencing resources. Similarly, were he to re-commit his property offending, victims would suffer material loss to the things they own.
It therefore follows that were the Applicant to re-commit any of his past offences, within any of the categories or themes attributable to his past offending, the impact on the Australian community could range from measurable loss to property together with the very likely consumption of an inordinate and unreasonable level of the community’s law enforcement and judicial resources.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Review of the evidence
The Applicant’s SFIC
In his SFIC, the Tribunal is urged to accept that:
“[…] the applicant should not be taken nor be seen as a violent person and a risk to the Australian community. Rather he should be seen as a patient with mental illness and drug dependency in desperate need of care and professional support. And that whilst he makes no excuses for his unacceptable behaviour, he wishes for the Tribunal to consider and take into account, in allocating relevant weight to this primary consideration, some mitigating factors including his mental illness, being homeless and hungry at time”[30]
[Errors in original]
[30]A1, 8[18].
By way of summary of the Applicant’s position in relation to risk, his SFIC cites the following factors as militative of a low risk of recidivism. We are told:
·the Applicant “now fully grasps the gravity of his situation […]”;
·the Applicant is “committed to his mental health programs and regular professional treatments for mental illness”;
·the Applicant now realises that any further offending upon a return to the Australian community will again expose him to cancellation of his visa;
·the Applicant understands this second possible mandatory cancellation scenario as a “[…] probability without a slightest doubt.”[31]
Oral submissions made on behalf of the Applicant
[31]A1, 10.
In closing submissions, the Applicant’s representative encapsulated the Applicant’s position about future risk thus:
“If we go to future risk subclause 8.1.2 future risk. Future risk again for the applicant if we look at his history what kind of risk he can expose the Australian community. Looking at his mental health problem he is diagnosed as schizophrenic, on medication, and also PTSD, need every day medication. so need only care and support. So the risk from this applicant at the highest would be find something to eat or have a place to stay. Nothing that kind of serious risk to the Australian community we would respectfully say. I’m going to stop here and say this primary consideration 1 should have little or at most more direct weight against the applicant.”[32]
[Errors in original]
The Applicant’s evidence
[32]Transcript, 92, lines 31–39.
During his evidence, the Applicant made reference to a number of conditions said to be affecting him. The first of those conditions involved a chronic hepatitis C infection. As I understood the evidence of the Applicant in cross-examination, his hepatitis C condition has been resolved:
“Mr Papalia: IHMS have provided a health summary of your health conditions to the Ombudsman on 12 January 2021. Mr Associate, may I please have page 264 of A10 up. The date of that assessment is on page 269. This report identifies a number of health issues and whether or not they had been resolved or were ongoing at the date of the report. The first listed is ‘chronic hepatitis C infection’ and it implicates [sic] that it’s been resolved. You testified a little earlier that your hepatitis C has been resolved; that’s correct, isn’t it?
Interpreter: Yes, correct.”[33]
[33]Transcript, 35, lines 39–46; 36, line 1.
The next condition said to be affecting the Applicant involves a range of psychological symptoms attributable to schizophrenia and post-traumatic stress disorder. He was asked about the medication he was taking about those conditions and responded thus:
“Mr Papalia: Mr Maryvan, what medications are you presently on?
Witness: I need to take 10 milligram in the morning, Zyprexa and Methadone and then at night after food we come to get the afternoon medication. It’s a two 20 milligram what I - it’s not really much.
[…]
Mr Papalia: I’m currently seeing the representations in the G documents, but I’m referring to A10, page 146, the IHMS list of - that’s it, thank you.
Mr Maryvan, this is a three-page, starting on page 146, list of medication that you’ve been prescribed in immigration detention as at 25 March 2021. You’ve mentioned Zyprexa. What drug is that?
Witness: For schizophrenia, for depression and that.
Mr Papalia: Is that also known as
Witness: Zyprexa, Olanzapine.
Mr Papalia: That’s - thank you, that was the question I was
Witness: Olanzapine, Zyprexa.
Mr Papalia: Thank you. And that’s the first line on the second page, which is page 147? And so you take that twice a day; is that correct?
Witness: Yes, that’s the one, yes, Olanzapine, yes.”[34]
[34]Transcript, 38, lines 32–36, 43–44; 38, lines 1–18. Note: the reference to “two 20 milligram” is how this dosage is recorded in the Transcript.
The Applicant was also asked about medication he was taking for his opioid dependency. He responded thus:
“Mr Papalia: And the other one you’ve mentioned is Methadone.
Witness: Yes.
Mr Papalia: And you take that you said twice a day as well; is that correct?
Witness: No, Methadone just only once a day. Just, you know, in the morning only.
Mr Papalia: And is that - what dosage is that?
Witness: Ninety - is it 28.
Mr Papalia: Milligrams?
Witness: Yes.
Mr Papalia: That’s item four from the bottom on page 146, that says oral liquid five milligrams per meal, and then dosage 95 mg 19. So are you still on that dosage?
Witness: Yes. Yes.”[35]
STARTTS – three reports titled “Summary of Psychological Treatment” for the Applicant
[35]Transcript, 39, lines 20–42.
The material contains several reports from the STARTTS[36] organisation. In fact, there are three separate items from STARTTS. These documents are each titled “Summary of Psychological Treatment”. Each summarises treatment administered to the Applicant during a given period.
[36]NSW Service for the Treatment and Rehabilitation of Torture and Trauma Survivors.
The first of these documents dates from 5 August 2020 and has been prepared by Ms Tshimanga Beya. In terms of the Applicant’s pattern of attendance at allocated sessions, Ms Beya noted the following:
“Number of Sessions
3/07/20 Attended
10/07/20 Attended
17/07/20 Not attended
23/07/20 Attended”[37]
[37]A10, 364.
In terms of “presenting difficulties”, Ms Beya’s report notes that:
“Mr Athi Maryvan said he is on Zyprexa and Methadone and he takes both according to his doctor’s prescriptions. Counsellor noted that Mr Athi Maryvan did not disclose psychotic episodes nor described having chronic pain but this is most likely the case as both medications indicate.”[38]
[38]A10, 366.
In terms of “treatment interventions and outcomes”, Ms Beya’s report notes the following:
“Counsellor started rapport building with Mr Athi Maryvan by expressing empathy and validating his emotional responses to his situation and circumstances.
Counsellor provided psychoeducation in terms of Mr Athi Maryvan presenting issues within trauma recovery framework.
Counsellor provided psychoeducation in terms of PTSD symptomatology and the body’s coping mechanisms.
Counsellor explored Mr Athi Maryvan stress management strategies but noticed that he was evasive and limited himself to stating that he figured out how to cope on his own as no one else can really help him.”[39]
[39]A10, 366.
In terms of a future treatment plan, Ms Beya’s report notes that the Applicant “would benefit from treatment in October.”[40]
[40]A10, 366.
The second of the “Summary of Psychological Treatment” documents has been prepared by Ms Elizabeth Clancy who is a Direct Service Counsellor. With reference to the Applicant’s attendance at scheduled treatment sessions, Ms Clancy’s report notes the following:
“Period Treated
1. 8 December 2020 – no show
2. 15 December 2020– no show
3. 16 December 2020 – no show
4. 22 December 2020”[41]
[41]A10, 361.
Ms Clancy’s report concludes with a “treatment summary” which relevantly records the following:
“[…] Mr Maryvan apologised for being unavailable for three sessions in this reporting period.
[…]
Additional sessions are recommended to address Mr Maryvan’s sleep, rumination and uncertainty for the future. It is recommended that Mr Maryvan is monitored by the IHMS at VIDC.”[42]
[42]A10, 362.
The third “Summary of Psychological Treatment” report is dated 28 January 2021. The author again is Ms Clancy. In terms of the Applicant’s attendance at scheduled sessions, Ms Clancy’s report is noted thus:
“Period Treated
1. 12 January 2021 – no show
2. 18 January 2021– no show
3. 20 January 2021– no show
4. 27 January 2021”[43]
[43]A10, 358.
In her Treatment Summary, Ms Clancy reports:
“[…] Mr Maryvan apologised for being unavailable for three sessions in this reporting period.
[…]
In light of Mr Maryvan’s difficulties attending sessions, and his current stable presentation, it is recommended Mr Maryvan have a break from counselling and engage in additional sessions in March 2021. It is recommended that Mr Maryvan is monitored by the IHMS at VIDC.”[44]
Expert report – Ms Tajana Bogicevic, Clinical Psychologist
[44]A10, 359.
Ms Bogicevic is a clinical psychologist who assessed the Applicant for approximately four hours on 2 dates comprising 13 and 20 May 2020. In the initial portion of the report, Ms Bogicevic addresses the Applicant’s suicidal ideation and risk. She assessed the Applicant’s levels of torture and trauma as a result of past experience. She also made a recommendation that the Applicant undergo trauma counselling and other psychological treatment.
Ms Bogicevic summarised the assessment measures she adopted in relation to the Applicant. She applied “The Hopkins Symptom Checklist” to assess the Applicant’s symptoms associated with depression and anxiety. Ms Bogicevic also conducted testing pursuant to “The Harvard Trauma Questionnaire” in order to assess the Applicant’s symptoms reflective of post-traumatic stress disorder (“PTSD”).
The Applicant scored 1.8 on the anxiety subscale and 2.0 on the depression subscale on the Hopkins Symptom Checklist. According to Ms Bogicevic, individuals that score 1.75 or more on each subscale (within this Hopkins Symptom Checklist) are considered to be clinically symptomatic. Ms Bogicevic opines that these scores indicate “[…] that [the Applicant’s] reported symptoms for anxiety and depression are clinically relevant and are causing him significant difficulties in overall functioning.”[45] The Applicant’s score on the Harvard Trauma Questionnaire was 2.9. According to Ms Bogicevic, this score “[…] indicates the presence of clinical symptoms reflective of Posttraumatic Stress Disorder.”[46]
[45]A10, 375[9].
[46]A10, 375[9].
In her summary and recommendations, Ms Bogicevic made the following observations and recommendations:
“Mr Maryvan reported that as a consequence of having lived through highly stressful life events, some which he experienced at a very young age, he has experienced ongoing symptoms that are consistent with PTSD, as well as comorbid Dysthymia. The experiencing of such symptoms is congruent with Mr Maryvan’s disclosure of experiencing intense fear for his safety during these events, and the inadequate management of the emotional distress associated with these experiences. In particular, such symptoms can be seen as the result of the persistent fear for his safety, the lack of proper psychological treatment in the past, the reliance on illicit substances and the ongoing stressors he currently still experiences (including prolonged detention, family separation and uncertainty regarding his future).
Taking into consideration the above assessment findings as well as the notion that he experienced some of the stressful life events at a crucial developmental stage of his life, leading to more pervasive, severe symptoms of emotional distress and negative changes in cognitive and social processes, it is recommended that he be provided with ongoing psychological treatment. It is likely that Mr Maryvan will benefit from long-term trauma treatment (by a specialised trauma service) taking into account his symptoms of PTSD.”[47]
[47]A10, 376[10].
Ms Bogicevic recommended that the Applicant should undergo trauma counselling and other psychological treatment which should focus on:
·Adaptive stress reduction strategies and coping mechanisms, sleep hygiene, cognitive challenging and behavioural activation;
·Management of his pervasive negative thinking styles and low mood;
·Addressing Mr Maryvan’s reported PTSD symptoms through trauma counselling; and
·Drug and Alcohol counselling.[48]
[48]See A10, 376[10]–377[10].
She recommended “[…] a psychiatric assessment and ongoing monitoring […] to further assess and manage [the Applicant’s] reported symptoms.”[49]
[49]A10, 376[10].
Two points reduce the weight I attribute to the respective reports of Ms Bogicevic, Ms Beya and Ms Clancy. First, none of them were called to give oral evidence at the hearing and their findings and observations were not tested by the Respondent in cross-examination. Second, it is difficult to cavil with the proposition that each of these reports are configured towards reporting on treatment administered to the Applicant (primarily the reports of Ms Clancy and Ms Beya) and identification of symptomatology adversely affecting the Applicant (primarily Ms Bogicevic). As best as I understood each of these four reports, there is no analysis of the Applicant’s risk of recidivism or, for that matter, identification of pre-dispositive factors that have in the past caused the Applicant to offend.
The Respondent’s position
In closing submissions, the Respondent’s representative said the following:
“The respondent submits that any rehabilitation the applicant claims to have occurred is completely untested in the community. And in regard to the evidence, the respondent contends that there is a real risk that the applicant may commit further offences or engage in other serious conduct. My friend’s submissions today seem to be premised on if he doesn’t take methadone, he’ll start taking drugs and/or offend to feed his habit.”[50]
[50]Transcript, 106, lines 12–17.
Findings about likelihood of reoffending
To my mind, the evidence points to the following findings about this Applicant’s risk of recidivism. First, there is little or no clinical and independent expert evidence before the Tribunal actually addressing the Applicant’s recidivist risk consequent upon his diagnosed psychological symptomatology. We do not know the extent to which his difficulties with substance abuse have, in the past, predisposed him to offend as extensively as he has. We do not know to what extent his diagnosed conditions of PTSD and depression/anxiety have been similarly pre-dispositive. We do not know the extent to which the Applicant is now capable of maintaining a lifestyle free of illicit substance abuse.
The best that can be said about his substance abuse issues and his diagnosed psychological conditions is that (1) control of his substance abuse tendencies is pretty much dependent upon him maintaining a medicated regime with methadone; and (2) he is nowhere near – in clinical treatment terms – a position of being able to assure this Tribunal that his symptoms are under any sort of effective remedial management and control. There surely can be no cavilling with the finding that the Applicant’s management, treatment and control of struggles with substance abuse and depression/anxiety/PTSD remain very much a work in progress. Each of the three STARTTS reporters say as much.
Ms Clancy recommends that the Applicant’s condition should remain monitored by the IHMS (while he is in immigration detention). Ms Beya makes it clear that the Applicant “[…] would benefit from treatment in [the future].”[51] Ms Bogicevic is abundantly clear in recommending ongoing “[…] trauma counselling and other psychological treatment.”[52] She is of the view that a psychiatric assessment is warranted and that “[…] ongoing monitoring takes place to further assess and manage [the Applicant’s] reported symptoms.”[53]
[51]A10, 366.
[52]A10, 369.
[53]A10, 369.
In these circumstances, I find (and strongly so) that this Applicant’s levels of rehabilitation are nowhere near any reliable stage or step such that a view can now be formed that he represents any less of a recidivist risk than he represented at the time of his most recent removal from the Australian community.
Second, it is difficult to see how the Applicant has developed any convincing level of measurable insight into his criminal actions. The Applicant has a less than impressive attendance history at treatment sessions as noted by the STARTTS clinicians in their reports. It suffices to say that if he genuinely thought the rehabilitation and treatment process could assist him, one could reasonably expect to see a more consistently attended regime of treatment by this Applicant. If we take from this poor attendance record a reality that he does not have “buy-in” into the rehabilitative treatment process, it is difficult to accept he has (or wants to have) any genuine insight into factors that have previously pre-disposed him to offend.
His record is one of purporting to utilise the “psychology factor” when seeking to explain his offending. In representations to the Minister at an earlier stage of this process, the Applicant sought to attribute his criminal history to his mental health and schizophrenia and did not appear to fully accept that his issues with substance abuse have been a significant contributing factor to his compilation of that criminal history.
The reality to be taken from the respective reports of Mesdames Clancy, Beya and Bogicevic is that he does require “ongoing assistance and support with his psychological difficulties.” However, the evidence shows the Applicant has a poor history of compliance with substance abuse treatment and mental health treatment. As recently as early 2021, the Applicant has exhibited poor attendance at STARTTS sessions.
Third, the nature of the Applicant’s history does, to my mind, militate in favour of an ongoing and unresolved risk of recidivism. The sheer number and frequency of the Applicant’s previous offences is surely indicative of a likelihood of future offending. In addition, his orientation towards those around him does not appear to have changed such that a delineation can now be made between the nature of his conduct prior to incarceration and the nature of that conduct since his removal from the community. His predisposition towards offending is redolent from his criminal history. The significant point is that even upon institutionalisation, he continued to offend and involve himself in conduct that can only be described as theft and an ongoing engagement with illicit substances.
Fourth, I am not convinced that the Applicant has developed any reliable measure of respect for the lawful authority governing the community back into which he now seeks re-admission; and in a parallel way, one cannot discern any reliable measure of respect he may have for the rehabilitative process. It is difficult to accept that the Applicant has convinced himself of a genuine need to improve himself and address predispositive factors that have, in the past, been behind his offending.
Conclusions about risk
The Applicant’s risk of recidivism is not known and has not been defined by any independent and suitably qualified clinician. What we do know is that he has symptoms and that those symptoms require ongoing remedial treatment, management and control. The Applicant has limited insight into the factors that have predisposed him to offend in the past. It is a matter of concern that he appears to lack the insight into the extent to which he requires ongoing psychological/psychiatric treatment and management. The basic nature of the Applicant’s pattern of offending and overall offending history is one of failing to set, observe, and maintain moral and lawful boundaries between what he feels compelled to do as against what he is lawfully precluded from doing.
In summary, I am of the view (and I find), that this Applicant represents an unresolved recidivist risk upon any return to the Australian community. What is known is that he is unwell and that he has symptoms. What is not known is the extent to which those symptoms pre-disposed him to compile the extensive offending history he has in Australia. Because we do not know about the extent to which the symptoms pre-dispose the Applicant to offend, I cannot assess the likely extent that they will cause him to offend in future. Therefore, we do not know how much treatment is required or for how long that treatment must be administered to properly form a view about the extent of his recidivist risk.
On the state of the evidence, the only rational and safe conclusion is that this Applicant represents no different recidivist risk than that which applied to him at the time of his most recent removal from the Australian community.
Weight attributable to Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct has been serious;
(b)I have assessed this Applicant’s risk to the Australian community in relation to the commission of further offences or for him to engage in other serious conduct by having regard to my respective findings that:
(i)the nature of the harm to individuals or the Australian community should the Applicant commit further criminal or other serious conduct could range from measurable loss to property together with the very likely consumption of an inordinate and unreasonable level of the community’s law enforcement and judicial resources;
(ii)I have found that this Applicant represents no different recidivist risk than that which applied to him at the time of his most recent removal from the Australian community.
Having regard to the totality of the material before the Tribunal, I am of the view (and I find) that this Primary Consideration 1 carries a strong, but not, on its own, determinative level of weight, against the revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 requires me to consider whether the Applicant has engaged in family violence.
In the table preceding the summons bundle[54] there are three references to events described as “Apprehended Violence Order”. Those events are listed to have occurred, respectively, on 11 April 2018, 10 October 2017, and 9 October 2017. It suffices refer to the transcript for an adequate explanation about why both parties accepted that Primary Consideration 2 should not be ventilated at the hearing before me. This discussion is recorded in several pages of the Transcript and culminates in the following submission by the Respondent’s representative:
“Senior Member: Could you please go – right, could you please both go to page three of that tender bundle? And then I would like you to go down to three entries in that list and they are the 5th entry down, the 5th entry down with the reference E6, 7264445, apprehended violence order.
And then further down the page underneath the bundled reference to judicial offences, you will see a reference number E66535374 and a further reference to an apprehended violence order, and immediately beneath that, there’s a reference to the number E66240971.
[…] But my only question of both of you, I suppose, out of an abundance of caution, and of course bearing in mind the configuration of the recently introduced ministerial direction 90, my only reason for raising this with you is with regard to the primary consideration number two, in ministerial direction 90, relating as it does to family violence.
So my question of both of you is, do either or both of you wish to raise this with the applicant.
Mr Papalia: […] the respondent’s position that the second primary consideration, that is the new one of family violence, has no application to this case.
Senior Member: Right, so it’s not engaged, I understand, thank you. And thank you for clarifying that for me. You can appreciate that I was concerned that I’d be stuck with a void, I suppose, in the evidence when it became time to considering that decision. All right, I think that clarifies that for us, Mr Nikjoo, unless you had anything further to ventilate about those items?
Mr Nikjoo: Nothing from us. We refer to that not being applicable of that domestic violence in [SOFIC] as well.”[55]
[54]See footnote 14, above.
[55]For the complete discussion, see Transcript, 49–50.
Out of an abundance of caution,[56] I have looked through the material. As best as I can tell, there does not appear to be any independent or authoritative information before me which could support an analysis of whether the Applicant has ever perpetrated family violence.
[56]See, generally, Repatriation Commission v Warren (2008) 167 FCR 511, [78] (Lindgren and Bennett JJ), [91] (Logan J, concurring) which sets out principles the court regarded as “established” relating to the treatment of concessions before the Tribunal when raised on appeal.
Therefore, Primary Consideration 2 is not relevant to determination of the instant application.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision.
I have checked the written material and note there is no contention made about any minor children in Australia by either party in their respective SFICs or in any of the oral submissions or in any other part of the written record of this matter. This Primary Consideration 3 is not relevant to determination of this Application.
PRIMARY CONSIDERATION 4: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[57] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case”[58]
[57]Direction, paragraph 8.4(3).
[58]Direction, paragraph 8.4(4). Paragraph 8.4(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
In assessing the weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides two separate propositions which are worth examining separately. The first is that the Australian community expects non-citizens to obey Australian laws while in Australia. The second, proposition is that where a non-citizen has engaged in serious conduct in breach of the community’s expectations, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
I also note, based on the principles in paragraph 5.2 of the Direction, that:
·the Australian community has a low tolerance of criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[59]
·Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life;[60]
·the nature of a non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify a visa outcome that is not adverse to the non-citizen.[61]
[59]Direction, paragraph 5.2(4).
[60]Direction. 5.2(4).
[61]Direction, paragraph 5.2(5).
Analysis – Allocation of Weight to this Primary Consideration 4
With reference to the propositions in paragraph 8.4(1) of the Direction, the architecture of this sub-paragraph can, to my mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
(i)breached the expectation in the immediately preceding sub-paragraph (a); or
(ii)there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Clearly, the Applicant has breached the Australian community's expectations by his breaches of Australian laws. Therefore, the Australian community “as a norm” expects the Australian government not to allow him to remain in Australia.
Paragraph 8.4(2) of the Direction refers to the Australian community’s expectation that refusal of a visa may be appropriate simply because the nature of the offending is such as to give rise to an Australian community expectation that the person should not be granted a visa to remain here. In particular, paragraph 8.4(2) stipulates that an Australian community expectation is that the Australian government “can and should refuse entry to non-citizens” in such circumstances. This paragraph 8.4(2) then enumerates certain factors that are informative of this expectation and, ultimately, the weight allocable to it.
As best as I understood the totality of this Applicant’s offending, I cannot attribute any element of his offending to any of the factors enumerated in paragraph 8.4(2) of the Direction. Therefore, it would be unsafe to utilise or adopt any of the factors in paragraph 8.4(2) in support of a finding that the nature of this Applicant’s offending gives rise to an Australian community expectation that the government can and should cancel the Applicant’s visa.
But that is not the end of the enquiry. There remains a further question: whether there are any factors which can be said to modify the Australian community’s expectation that this Applicant should cease to hold a visa. Paragraph 5.2(4) of the Direction provides some guidance.
The Applicant is currently 32 years of age. He arrived on a Subclass 101 Child (Permanent) visa on 22 October 2005 aged 17.[62] He has therefore resided in Australia for a period of approximately 15 years and, during that period, less than five years after arriving here, he commenced compiling a criminal history of 29 convictions committed across an almost decade-long period of offending. As against that, the Applicant does have some measure of an employment history pointing towards him “participating in and contributing to, the Australian community […]” In his Personal Circumstances Form (“PCF”), he says that he did laundry work from 2006–2010 in Cabramatta, and farm work from 2011–2012 in Orange.[63]
[62]G1, 54.
[63]G1, 50.
Balancing one element against the other, it must, to my mind, logically follow that the Australian community has a low tolerance of this Applicant’s conduct.
Regard should also be had to the additional componentry of paragraph 5.2(4) of the Direction which stipulates that the Australian community may afford a higher level of tolerance to this Applicant’s criminal or other serious conduct if (1) the Applicant has lived in the Australian community for most of his life, or (2) he has lived here from a very young age. It cannot be safely found that the Applicant has lived in Australia for most of his life, nor that he has lived here from a very young age. Neither of these elements are supportive of the Applicant. He resided in the Australian community for about 12 years prior to his removal from it. It is therefore difficult to find any measure of support for the Applicant from either of these two elements in paragraph 5.2(4) of the Direction.
That being the case, I am led to the view (and finding) that the Australian community’s expectations are not modified by the principles in paragraph 5.2(4) of the Direction.
Conclusion: Primary Consideration 4
Having regard to the totality of the material before the Tribunal, I am of the view (and I find) that this Primary Consideration 4 carries a carries a strong, but not, on its own, determinative level of weight, against the revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d).
(a) International non-refoulement obligations
The Present state of the law
Other Consideration (a) facilitates the assessment of whether Australia owes international non-refoulement obligations to non-citizens is to be found at paragraph 9.4(1)–(8) (inclusive) of the Direction. The present state of the law derives from the Full Court of the Federal Court of Australia decision in Minister for Home Affairs v Omar.[64] This decision involved a challenge to a decision of the Assistant Minister for Home Affairs not to revoke a mandatory cancellation decision under s 501CA(4) of the Act. The former visa holder was a Somali national.
[64](2019) 272 FCR 589 (“Omar”).
In Omar, representations were made on behalf of the visa holder in respect of non-refoulement obligations were he returned to Somalia. It was also contended on behalf of that visa holder that clause 14.5 of the direction in force at that time (a precursor to Other Consideration (b)) was also relevant and should be taken into account for similar reasons.
Likewise, in terms of medical and/or economic support available to him, the father’s evidence was, at the same time, both vague and apprehensive. It was vague because he has been absent from Laos for so long that he cannot give definitive evidence about how the Applicant will derive any measure of government support if returned to Laos. The best the father could say was that the Applicant would “[…] have to be looked after by the government. It’s up to the Laos government how they want to handle him. But it’s the Laos law and Laos government way of doing things.”[100] To my mind, the father’s evidence renders as unknown and uncertain the Applicant’s prospects of securing social, medical or economic support in Laos.
[100]Transcript, 70, line 29.
Reference should also be made to the oral evidence of the Applicant’s step-mother. In cross-examination, she was asked whether she had any family in Laos with whom the Applicant could find some measure of safe haven. This is what transpired in cross-examination:
“Mr Papalia: And do you, Ms [Saythavy], have any family members in Laos?
Interpreter: I have one younger brother in Laos, and the rest of my family is in Australia. And my younger brother married - already married in Laos.
Mr Papalia: And does he have any children?
Interpreter: He has one child with his former wife and with his new wife he doesn’t have any children.
Mr Papalia: Are you in contact with your brother?
Interpreter: No, I don’t contact him. It’s only he contacts my mother.”[101]
[101]Transcript, 77, line 47; 78, lines 1–13.
I have had regard to the three basic components to this Other Consideration (b). I am of the view that:
(a)the Applicant’s age (32 years) is not an impediment to his re-establishing himself in Laos. The same can be said about his physical health. It is, however, a different story with regard to his mental health and overall psychological symptomatology. His treatment, rehabilitation and ongoing management of his diagnosed psychological conditions is at a delicate and perhaps precarious stage. The same can be said about management of his addiction to illicit drugs. As best as I understood the evidence, he needs constant and ongoing treatment for his mental health issues. He needs constant and ongoing participation in the methadone program to deal with his drug addiction.
(b)The Applicant resided in Laos until the age of 17 years. He has resided in Australia with his family and there cannot be said to be any substantial language or cultural barriers impeding his re-establishment in Laos. I accept that he may have certain aspects of his life now ingrained with traits and patterns he acquired while living in Australia. That said, given that he has spent over half his life in Laos, it will not be an insurmountable difficulty for him to re-adjust his life and lifestyle back into the Laotian way of doing things.
(c)The evidence of the Applicant’s father about the Applicant’s prospects of securing safe and secure housing in Laos is both bleak and concerning. This is augmented by the reality that the balance of the Applicant’s biological family in Laos is either unlocatable (in the case of his biological mother) or is otherwise heavily involved with the management and conduct of their own lives and the families to which they belong (in the case of the Applicant’s sisters). Perhaps most concerning is the father’s evidence that the Applicant’s family in Australia has “lost touch” with the family in Laos. In my discussion on the non-refoulement issue, I have sought to explain the state of medical support the Applicant could be reasonably expected to receive for both his drug addiction and mental health issues. The state of the father’s evidence about the level of governmental support available to people such as the Applicant means it is difficult to now predict exactly what sort of governmental support the Applicant can be expected to receive in Laos.
I have had regard to the evidence relevant to the componentry of paragraph 9.2(1) of the Direction. I am of the view, and I find, that this Other Consideration (b) is of strong, but not, on its own, determinative weight in favour of the Applicant such that his visa status to remain in Australia should be restored to him.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
I have checked the respective SFICs and confirm that this Other Consideration (c) is regarded by both sides as having no relevance to this case.[102] I agree. Therefore, neutral weight should be allocated to this Other Consideration (c).
[102]See, eg, R1, 21[108].
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community. There are two factors which I must assess in determining the level of weight to allocate to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. I will consider each in turn.
Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s immediate family in Australia comprise the following:
·his father;
·his step-mother;
·his brother.
The Applicant’s father, in his written statement, confirms that the entirety of the Applicant’s family in Australia comprises himself, his step-mother and his biological brother.[103] In his written statement, the father said that he would like the Applicant to remain in Australia with his family, adding that, “[a]s of my old age, I wish to spend it with my family including my son, Athi Maryvan, for the last stages of my life.”[104] Further in the written statement, the Applicant’s father says, “[w]e love and care for Athi Maryvan and believe he deserves a second chance to turn his life around and to be with his family.”[105]
[103]A6, 1.
[104]A6, 2.
[105]A6, 2.
The Applicant’s step-mother has also provided a written statement. She confirms that the Applicant’s biological father is her husband. She also confirms (1) the Applicant “does not have any existing family living in Laos and his family resides in Australia”. Like the Applicant’s biological father, she confirmed that the totality of the Applicant’s father comprises herself, the Applicant’s biological father, and the Applicant’s brother. She concludes her written statement by saying:
“We would like to seek your support to please reconsider Mr Athi Maryvan’s future and to keep him here in Australian with his family.
We love and care for Athi Maryvan and believe he deserves a second chance to turn his life around and to be with his family.”[106]
[106]A5.
It is clear from the oral evidence of the Applicant’s step-mother that they (his above-mentioned immediate family members) will provide him with support:
“Mr Nikjoo: Thank you, Senior Member. Thank you. Ms [Saythavy], if he stays here, are you willing to help him in any way?
Interpreter: Okay. Yes, I am - I can offer him as much as I can, because I can’t help him in every way, because he is not a young boy anymore. He is an adult now.”[107]
[107]Transcript, 76, lines 42–47.
The Applicant’s brother also provided both oral and written evidence at the hearing before me. In his written statement, the Applicant’s brother said that he works as a Production Machinist with a company in New South Wales. He will obviously be affected in the event the Applicant is removed to Laos:
“Please consider this matter and lets him stay in Australia with Mr. Pheuy Maryvan as We are very concerned if he get send back to Laos he can’t be survive.”[108]
[108]A9.
These sentiments were reflected in his oral evidence given in chief.
“Mr Nikjoo: In Laos are you saying you don’t have – he doesn’t have or you don’t have any other family members or you are not in contact with them? Which one is it?
Interpreter: Right, I had a relative, they’re separated and they live in Thailand but there is no contact with us.
Mr Nikjoo: So was it because of this reason that you said you are worried about him being – survive in Laos?
Interpreter: Yes, that’s right. I don’t know how he can survive (indistinct).
Mr Nikjoo: What are your concerns are?
Interpreter: Well, yes, I have a father and the mother was separated long time ago and I don’t know how to express to you we are real brother, a blood brother, that’s how the Thai are, that’s how we worry about it.”[109]
[109]Transcript, 88, lines 37–45; 89, lines 1–8.
It is safe to find that the Applicant’s biological father and brother and his step-mother will be significantly impacted in the event of the Applicant’s removal to Laos. They know of his extensive history of offending in Australia. Despite that, they still want him in their lives and as part of their family unit. Accordingly, they will feel distress, anxiety and concern in the event of the Applicant’s removal. I am of the view (and I find) that the impact on the Applicant’s immediate family upon his removal carries a non-determinative level of weight in favour of the restoration of his visa status to remain here.
2. Strength, nature and duration of “other ties” – length of residence
I must, firstly, determine the extent of the Applicant’s “other ties” to people in Australia. Initially, I must look at how long the Applicant has resided in Australia and whether he came here as a young child. There are two tempering sub-elements to be taken into account in determining the weight allocable to this second component of paragraph 9.4.1 of the Direction. He arrived in Australia as a 17 year old in 2005. He has resided in Australia for approximately the last 15–16 years. He commenced offending (in terms of appearances before lawful authority) in March 2010, less than 5 years after arriving here. I find that his offending began “soon after arriving in Australia”. On the basis of the first tempering sub-element, in this particular paragraph of the Direction, I temper and limit any weight allocable to the Applicant pursuant to 9.4.1(2)(a)(i).
Next, I must look at paragraph 9.4.1(2)(a)(ii) of the Direction and make a finding about the extent to which the Applicant can be said to have positively contributed to the Australian community. Earlier in these reasons, I referred to his work history in Australia. From 2006–2010 he worked in a laundry at Cabramatta. From 2011–2012, he did farm work in Orange. There is no reference in his PCF to him making any positive contributions to the Australian community by way of volunteer activities or participation in community and cultural activities. To the best of my understanding of the material, there is no reference from any past employer or any written indication of available employment from a prospective employer in the event the Applicant is returned to the Australian community.
Based on the Applicant’s modest level of work contributions to the Australian community, I am of the view (and I find) that a moderate measure of weight is allocable to him pursuant to paragraph 9.4.1(2)(a) of the Direction.
3. Strength, nature and duration of “other ties” – family and other social links
It was a consistent theme of the evidence of the biological father, brother and the step-mother that the Applicant does not have any ties of any measurable strength or duration in with other people in Australia, be they Australian citizens or other people who have an indefinite right to remain in Australia.
There is, for example, no reference to an uncle/aunt, niece/nephew, or cousin or grandparent residing in Australia in his PCF. Accordingly, it would be unsafe to allocate any weight to this paragraph 9.4.1(2)(b) of the Direction. It must therefore be of neutral weight.
Impact on Australian business interests
I am mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. This phrase is sought to be given some measure of definition in the text of paragraph 9.4.2(3) because weight can “generally only” be allocated in this instance where a non-revocation decision “would significantly compromise the delivery of a major project, or delivery of an important service in Australia.”
There is no reference to this component of Other Consideration (d) in either of the SFICs. As best as I understood the Transcript, neither party otherwise ventilated this component of Other Consideration (d). I am not satisfied that removal of the Applicant from Australia would significantly compromise delivery of a major project or an important service in Australia. Accordingly, this second part of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
I have sought to apply, where the evidence justifies it, weight to each of the relevant components of this Other Consideration (d). I have found that weight is allocable in favour of the Applicant pursuant to the first component relating to adverse impacts that would be experienced by his immediate family members upon his removal to Laos. Only a moderate level of weight is allocable to the second component after taking into account the two tempering sub-elements of that component. The third component does not apply to the Applicant because he does not have family or social links with Australian citizens, Australian permanent residents, or people who have an indefinite right to remain in Australia. The fourth component (impact on Australian business interests) is not relevant.
Overall, the Applicant’s links to the Australian community have a measure of non-determinative weight in favour of a finding that the Applicant’s visa status to remain in Australia should be restored to him.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1 and 4, both of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: carries a certain, but not determinative, level of weight;
(b)extent of impediments if removed: carries a strong, but not determinative, weight in favour of the Applicant;
(c)impact on victims: neutral; and
(d)links to the Australian community: carries a non-determinative level of weight in favour of the Applicant.
CONCLUSION
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion conferred by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a strong, but not, on its own, determinative level of weight, against the revocation;
·Primary Consideration 2 is not relevant;
·Primary Consideration 3 is not relevant;
·Primary Consideration 4 carries a strong, but not, on its own, determinative level of weight, against the revocation; and
·I have outlined the weight attributable to the Other Considerations. I do not consider that the totality of the weight attributable to the relevant Other Considerations (a), (b) and (d), outweigh the significant, combined and determinative weight I have attributed to Primary Considerations 1 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 211 (two hundred and eleven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
.........................[sgd].........................................
Associate
Dated: 26 July 2021
Date(s) of hearing: 27 May; 3 & 4 June 2021 Advocate for the Applicant: Mr F Nikjoo Solicitors for the Applicant: Nikjoo Lawyers Counsel for the Respondent: Mr J Papalia (Barrister and solicitor) Solicitors for the Respondent: Australian Government Solicitor ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501G documents before the previous AAT (paged 1-107)
-
10 Dec 2020
R1
Respondent’s Statement of Facts, Issues and Contentions (paged 1-25)
10 May 2021
10 May 2021
R2
Respondent’s Tender Bundle (paged 1-271)
-
20 April 2021
R3
Respondent’s Supplementary Tender Bundle (paged 1-88)
-
10 May 2021
R4
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021
-
27 May 2021
R5
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021: House of Representatives Supplementary Explanatory Memorandum
-
27 May 2021
R6
Migration Amendment (Clarifying International Obligations for Removal) Bill 2021: Senate Revised Explanatory Memorandum
-
27 May 2021
A1
Applicant’s Statement of Facts, Issues and Contentions (paged 1-18)
16 April 2021
16 April 2021
A2
Q&A Report - Department of Home Affairs (paged 1-5)
29 Oct 2019
16 April 2021
A3.1
Submission 1 on Human Rights and Harm Reduction Laos (paged 1-5)
11 June 2018
16 April 2021
A3.2
Submission 2 on Human Rights and Harm Reduction Laos (paged 1-5)
July 2019
16 April 2021
A4
Applicant’s Reply to Respondent’s SFIC (paged 1-3)
19 May 2021
19 May 2021
A5
Statement of Mrs Viengvilaythong Saythavy (1 page)
18 May 2021
18 May 2021
A6
Statement of Mr Pheuy Maryvan (2 pages)
18 May 2021
18 May 2021
A7
Statement of Mr Niphonh Maryvan (1 page)
14 May 2021
18 May 2021
A8
Applicant’s Statement (1 page)
24 May 2021
24 May 2021
A9
Applicant’s Brother’s Statement (1 page)
14 May 2021
19 May 2021
A10
Applicant’s Tender Bundle
(424 pages total; 397 pages excluding AAT submission portal-generated index)Various
27 May 2021
A11
NSW Government Justice Health Records (paged 1-144)
-
18 May 2021
0
10
0