Meyrick and Minister for Home Affairs (Migration)
[2019] AATA 168
•15 February 2019
Meyrick and Minister for Home Affairs (Migration) [2019] AATA 168 (15 February 2019)
Division:GENERAL DIVISION
File Number(s): 2018/6977
Re:Craig Meyrick
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:L M Gallagher, Member
Date:15 February 2019
Place:Perth
The Reviewable Decision, being a decision of a delegate of the Respondent dated
21 November 2018 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth), is affirmed...............................[sgd]..........................................
L M Gallagher, Member
CATCHWORDS
MIGRATION – Class BF transitional (permanent) visa – non-revocation of mandatory cancellation of visa – applicant did not pass character test and had served term of imprisonment – visa mandatorily cancelled under subsection 501(3A) Migration Act 1958 (Cth) – whether discretion in subsection 501CA(4) to revoke mandatory visa cancellation should be exercised – Direction No. 65 – primary and other relevant considerations – protection of the Australian community from criminal or other serious conduct – nature and seriousness of the conduct – risk to the Australian community should further offences be committed – best interests of minor children – expectations of the Australian community – other relevant considerations – strength, nature and duration of ties to Australia – extent of impediments if removed from Australia – impact on victims – discretion should not be exercised to revoke visa cancellation – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth) – s 499(1), s 499(2A), s 500(1)(ba), s 500(6B),
s 500(6L), s 501, s 501(3A), s 501(2), s 501(6), s 501(7), s 501(7A), s 501CA,
s 501CA(4), s 501E(2), s 501G(1)CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (28 September 2017)
HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602 (13 December 2018) Le and Minister for Home Affairs [2018] AATA 4126
Leota and Minister for Immigration and Border Protection [2017] AATA 1365
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
QSBL and Minister for Home Affairs [2018] AATA 2074
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration and Border Protection (2015) 256 CLR 203SECONDARY MATERIALS
Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501C (22 December 2014) – paragraphs 6.2, 6.3, 6.3(2), 7(1), 7(1)(b), 8, 8(1), 8(3), 8(4), 8(5), 13(1), 13(2), 13(2)(a), 13(2)(b), 13.1, 13.1(1), 13.1(2), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(g), 13.1.2, 13.1.2(1), 13.1.2(2)(a), 13.2(3), 13.2(4)(a), 13.2(4)(e), 13.2(4)(g), 13.2, 13.2.4(b), 13.2.4(c), 13.2.4(d), 13.2.4(f), 13.3, 13.3(1), 14(1), 14(1)(b), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a), 14.4, 14.5
REASONS FOR DECISION
L M Gallagher, Member
15 February 2019
BACKGROUND
Mr Meyrick is a 41 year old British citizen (G2, page 3). Mr Meyrick arrived in Australia on 8 March 1985 when he was seven years old and has remained in Australia since that date (G12, page 117).
Mr Meyrick’s criminal history comprises of over 90 offences from 5 August 1995 to 9 June 2017 (G6, pages 60 to 73). Mr Meyrick’s Court History records the dates and court results of these offences (G6, pages 60 to 73), this information having been extracted in Appendix 1 of this decision (see at page 66 below). Broadly, Mr Meyrick’s offences include:
(a)Numerous traffic offences, including drink driving offences and driving without a licence or whilst under licence suspension;
(b)Numerous breaches of police or judicial orders, including breaches of violence restraining orders;
(c)Drug possession;
(d)Dishonesty offences, including stealing a motor vehicle and fraud;
(e)Criminal damage by fire, committed in 2008, which resulted in a 12 month sentence of imprisonment; and
(f)Numerous offences involving violence, in particular:
(i)Carried (possessed) an article with intent to cause fear (2015);
(ii)Being armed or pretending to be armed in a way that may cause fear (2015), which resulted in a 6 month concurrent sentence of imprisonment; and
(iii)Unlawful assault and thereby did bodily harm with circumstances of aggravation (2015), which resulted in a 6 month concurrent sentence of imprisonment,
the latter two offences being committed against his partner, Ms Lauren Brook.
On 18 June 2010, a delegate of the Department of Immigration and Citizenship (as it was then known, now being the Department of Home Affairs, (the Department)) wrote to
Mr Meyrick to advise that his Class BF transitional (permanent) visa (the visa)[1] was to be considered for cancellation under subsection 501(2) of the Migration Act 1958 (Cth) (the Act), on the grounds that he appeared to have a “substantial criminal record“ (G3, page 25). The delegate’s letter stated that Mr Meyrick had an opportunity to comment before any decision was made, which he subsequently did.
[1] The Tribunal understands that Mr Meyrick held the visa from 1 September 1994 by operation of law, under the Migration Reform (Transitional Provisions) Regulations (G7, page 74).
On 24 March 2011, a delegate of the Department wrote to Mr Meyrick to advise him that a delegate of the Minister of the Department of Immigration and Citizenship (as he was then known, now being the Minister for Home Affairs, (the Minister)) had decided not to cancel Mr Meyrick’s visa on character grounds on this occasion. The delegate’s correspondence dated 24 March 2011 included a formal warning to Mr Meyrick that his visa cancellation may be reconsidered if he committed further offences or otherwise breached the character test in future (G20, page 151). The formal warning also stated that disregarding this warning would weigh heavily against him if his case was reconsidered. Mr Meyrick acknowledged this letter on 1 April 2011 (G20, page 153) and continued to offend after receiving the formal warning, to the extent that he has been convicted of offences resulting in further sentences of imprisonment of more than four years, cumulatively and in total (G6, pages 60 to 64).
On 12 September 2017, Mr Meyrick was sent a Notice of Visa Cancellation under subsection 501(3A) of the Act (G7, pages 74 to 78). The delegate’s decision to cancel the visa was made on the basis that Mr Meyrick:
(a)had previously been convicted of Criminal Damage By Fire on 4 August 2009 and sentenced to 12 months imprisonment; and
(b)was currently in prison serving a sentence of 6 months following a further conviction on 19 July 2017 of Being Armed Or Pretending To Be Armed In A Way That May Cause Fear.
Although not noted by the delegate, at the same time that Mr Meyrick was convicted of being armed or pretending to be armed in a way that may cause fear on 19 July 2017, he was also convicted of the following offences for which he received concurrent and cumulative sentences (G6, pages 60 to 61):
(a)breach of bail undertaking;
(b)steal motor vehicle and drives or assumes control without consent
(c)unlawful assault and thereby did bodily harm with circumstances of aggravation; and
(d)no authority to drive (cancelled or suspended licence).
The Notice of Visa Cancellation invited Mr Meyrick to make representations about revocation of the cancellation decision (G7, page 75), which he did in support of his request for revocation of the mandatory cancellation (G9 page 91, G21, page 154 to G35, page 189 inclusive). These representations were summarised by the delegate as follows (G2, pages 17 and 18):
(a)the best interests of his two biological minor daughters with his former partner, one being an infant due to be born in October 2017, who both live with their (then) 19 year old half-sister, their mother and their grandmother;
(b)his continued “constant and consistent” and close relationship with his (now 20 year old) step-daughter, whom he had raised as his own, and his minor child, following his separation from their mother after 15 years together;
(c)that his removal from Australia would cause emotional hardship to his daughters and step-daughter as they would lose their father and his (then unborn) infant child would never have the opportunity to know her father;
(d)he attributes his criminal history to his past history of drug and alcohol abuse;
(e)following his departmental warning, he remained “clean” for nearly five years until he began drinking, which escalated into drug use, which caused his spate of offending in 2016 and 2017 and led to his second term of imprisonment;
(f)his most recent term of imprisonment was beneficial and a “wake-up call,” providing him opportunities to reflect on his life and complete a number of courses and programs from which he has learnt a great deal;
(g)his lengthy residence of 33 years in Australia, without departure, from the age of seven;
(h)he has contributed to the Australian community through his working as a plasterer from 1994 to 2016;
(i)he has accommodation and employment available to him should he be released;
(j)his five year de-facto relationship with his current partner, (the victim of his most recent offending), with whom he plans to buy a home, marry and have children, his removal would end their relationship and future plans;
(k)his elderly parents require his support with their failing health, such that his removal would be detrimental to them both;
(l)he has no memory of the United Kingdom and fears homelessness and depression and being without support should he be returned there; and
(m)his family and social networks are in Perth.
After considering these representations, on 21 November 2018 a delegate of the Minister decided, under subsection 501CA(4) of the Act, not to revoke the visa cancellation decision dated 12 September 2017 (the Reviewable Decision) (G10, page 93).
The Reviewable Decision was hand-delivered to Mr Meyrick on 23 November 2018
(G37, page 223).
On 29 November 2018, Mr Meyrick lodged an application for review of the Reviewable Decision in the General Division of the Administrative Appeals Tribunal (the Tribunal) (G1, page 1 and G2, page 3).
The Tribunal’s decision must be made within the 84 day period after the day on which
Mr Meyrick was notified of the Reviewable Decision, the 84th day being 15 February 2019. If the Tribunal does not deliver a decision by the end of this date, the Reviewable Decision will be taken to be affirmed under section 43 of the Administrative Appeals Tribunal Act 1975 (Cth) (subsection 500(6L) of the Act).
ISSUES
The issues for determination by this Tribunal are:
(a)whether Mr Meyrick passes the “character test”; and if not,
(b)whether the Tribunal is satisfied that there is another reason why the mandatory cancellation decision (being, the Reviewable Decision) should be revoked (see subsection 501CA(4) of the Act), having regard to the primary and other considerations in Minister for Immigration and Border Protection, Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA, 22 December 2014 (Direction No. 65).
JURISDICTION
Mr Meyrick’s application has been made under subsection 500(1)(ba) of the Act, which allows the Tribunal to review decisions of the Minister’s delegate under subsection 501CA(4) not to revoke a decision to cancel a visa.
As noted in paragraphs 8, 9 and 10 above, the Reviewable Decision was made and communicated to Mr Meyrick on 23 November 2018 (G10, page 93) and he lodged his application for review on 29 November 2018. Mr Meyrick is in immigration detention and in the migration zone. Mr Meyrick therefore made his application for review by the Tribunal within the nine day period after he received the decision in accordance with subsections 501G(1) and 500(6B) of the Act.
The Tribunal is therefore satisfied that the application was lodged within time and that the Tribunal has jurisdiction to review the Reviewable Decision.
MATERIAL BEFORE THE TRIBUNAL
The matter was heard in Perth on 31 January 2019. Mr Meyrick appeared in person and was self-represented. The Minister was represented by Mr Ashley Burgess from Sparke Helmore Lawyers, who appeared in person.
Mr Meyrick, as well as Ms Dianne Bond, Ms Ebony Bond and Ms Tahlia Boardman, gave evidence and were cross-examined. Ms Dianne Bond and Ms Ebony Bond had earlier provided letters of support, which are contained within the G documents and referred to in paragraph 19 below.
The documents admitted into evidence consisted of:
(a)a letter of support from Ms Tahlia Boardman dated 11 December 2018 (A1);
(b)an undated letter of support from Ms Lauren Brook (Mr Meyrick’s partner) (A2);
(c)a letter of support from Ms Janine Meyer dated 13 January 2019 (A3);
(d)a 223 page set of G-documents (G1 to G37) (G documents) (R1);
(e)
the Minister’s Statement of Facts, Issues and Contentions (SFIC) dated
21 January 2019 (R2); and
(f)documents produced under summons from the Western Australian Police Force (R3).
The Tribunal has also taken into account letters of support previously provided and contained within the G documents, namely:
(a)
the numerous letters of support provided in 2010 by Ms Rebecca Bond
(Mr Meyrick’s former partner, his partner in 2010 and the mother of Mr Meyrick’s two minor children), Ms Dianne Bond (Ms Rebecca Bond’s mother), Mr Meyrick’s father, Mr Meyrick’s brother, Mr Meyrick’s mother and two of Mr Meyrick’s former employers (G5, pages 45 to 59);
(b)an undated letter of support from Ms Shani Clark (G24, page 172);
(c)
a further letter of support from Ms Lauren Brook dated 21 September 2017
(G26, pages 174 to 175);
(d)an undated letter of support from Ms Ebony Bond (G27, page 176); and
(e)an undated letter of support from Ms Dianne Bond (G35, page 189).
Although Mr Meyrick did not provide the Tribunal with a written witness statement in support of the present application, the Tribunal has noted and treated as Mr Meyrick’s written evidence:
(a)Mr Meyrick’s personal details form dated 24 July 2010 (G5, pages 32 to 38);
(b)Mr Meyrick’s letter dated 4 September 2010 with related course certificates (G5, pages 39 to 44);
(c)Mr Meyrick’s personal circumstances form dated 20 September 2017 and related document entitled “Immigration Declaration” (G22, pages 158 to 171);
(d)Mr Meyrick’s undated written submission (G31, pages 180 to 182); and
(e)Mr Meyrick’s letter dated 8 December 2018 (G32, pages 183 to 185).
The Tribunal has reviewed all of the evidence before it and refers to relevant materials below.
CONSIDERATION
Does Mr Meyrick pass the character test?
Pursuant to subsection 501CA(4) of the Act, the Minister (and the Tribunal standing in the Minister’s shoes) may revoke a decision made under subsection 501(3A) of the Act to cancel a visa that has been granted to a person 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.
[Emphasis added.]
As summarised by Senior Member Popple in the decision of Leota and Minister for Immigration and Border Protection [2017] AATA 1365 at [13]:
In Gaspar v Minister for Immigration and Border Protection, the Federal Court explained:
… s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.[2]
In other words, as the Full Court of the Federal Court pointed out in Marzano v Minister for Immigration and Border Protection, “‘may’ in s 501CA(4)(b) means ‘must’”.[3] The Full Court also noted:
… the section does not, for example, require the Minister to revoke a cancellation decision if the Minister finds “any” reason why the cancellation decision “could” be revoked”. The requirement that the Minister revoke a cancellation decision if he or she determines that there is another reason why the cancellation decision should be revoked, imports an assessment by the Minister of the propriety of a revocation decision, balancing factors both in favour and against revocation.[4]
[Footnotes appear as in the original]
[2] (2016) 153 ALD 338 at 345 [38] per North ACJ.
[3] [2017] FCAFC 66 at [31] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60]. See also at [30]–[32] per Collier J.
[4] [2017] FCAFC 66 at [32] per Collier J, with whom Logan and Murphy JJ agreed at [59] and [60].
In accordance with subsection 501CA(4)(b)(i) of the Act, the Tribunal must first consider whether Mr Meyrick passes the “character test” as that term is defined in subsection 501(6) of the Act.
Subsection 501(6)(a) of the Act provides that a person does not pass the “character test” if the person has a substantial criminal record (as defined by subsection 501(7) of the Act).
For the purposes of the “character test,” a person has a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more (subsection 501(7)(c) of the Act) or if they have been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more (subsection 501(7)(d) of the Act).
Section 501(7A) of the Act provides clarification for when a person is sentenced to concurrent sentences of imprisonment, such that for the purposes of the character test, if a person has been sentenced to two or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms.
As noted at subparagraphs 2(e), 2(f) and 5(a) above, Mr Meyrick was convicted of criminal damage by fire, committed in 2008, which resulted in a sentence of 12 months imprisonment (G6, page 65) and of additional offences resulting in sentences of 2 or more terms of imprisonment, where the total of those terms is 12 months or more (G6, pages 60 to 61). As a consequence of receiving these sentences, Mr Meyrick is deemed to have a substantial criminal record as defined in both subsections 501(7)(c) and 501(7)(d) of the Act and does not pass the “character test” set out in subsection 501(6)(a) of the Act.
Mr Meyrick asserted his understanding of this point and conceded as such before the Tribunal (transcript page 48).
Is there another reason why the original decision that cancelled Mr Meyrick’s visa should be revoked?
Having determined that Mr Meyrick does not pass the “character test” because he has a substantial criminal record having been sentenced to a term of imprisonment of 12 months or more and because of his additional offences resulting in sentences of 2 or more terms of imprisonment, where the total of those terms is 12 months or more, the Tribunal must now determine whether, in accordance with subsection 501CA(4)(b)(ii) of the Act, there is another reason why the original decision that cancelled Mr Meyrick’s visa should be revoked.
On 22 December 2014, the Minister, in accordance with its powers under subsection 499(1) of the Act, issued Direction No. 65. Direction No. 65 commenced on 22 December 2014 and is binding on all decision-makers from that date (subsection 499(2A) of the Act). It provides guidance to the Tribunal on the application of the “character test” and the exercise of its discretion. Relevantly, the Preamble to Direction No. 65 (at paragraph 6) states:
6.1 Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501 (3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction No. 65 provides general guidance to the Tribunal in relation to the exercise of the discretion to revoke a decision to cancel a visa. It provides:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No. 65 sets out a number of principles which must be taken into account by persons making decisions under subsection 501CA(4) of the Act (including the Tribunal), including the following:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[Emphasis added]
Subparagraph 7(1) of Direction No. 65 provides guidance as to how this discretion is to be exercised. Relevantly, subparagraph 7(1)(b) of Direction No. 65 states:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of Direction No. 65 provides the following further guidance as to how a decision-maker is to apply the considerations in Direction No. 65:
8. Taking the relevant considerations into account
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Primary Considerations
Informed by the principles set out in paragraph 6.3 of Direction No. 65, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part C of Direction No. 65, with regard to the specific circumstances of the case, when a person’s visa has been cancelled under subsection 501(3A) of the Act (subparagraph 13(1) of Direction No. 65).
Subparagraph 13(2) in Part C of Direction No. 65 sets out the three “primary considerations” that must be taken into account in deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia;
(c) Expectations of the Australian Community.
Each of the three primary considerations is addressed in relation to Mr Meyrick below.
(i) First primary consideration: Protection of the Australian community from criminal or other serious conduct
In relation to subparagraph 13(2)(a) of Direction No. 65 (i.e. protection of the Australian community), subparagraph 13.1 of Direction No. 65 provides:
13.1 Protection of the Australian community
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australian is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
(a) The nature and seriousness of the non-citizen’s conduct to date
In relation to subparagraph 13.1(2)(a) of Direction No. 65 (i.e. the nature and seriousness of the non-citizen’s conduct to date), subparagraph 13.1.1 of Direction No. 65 relevantly provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled)…are serious;
c)The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e)The cumulative effect of repeated offending;
…
g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
…
[Emphasis added]
In determining whether Mr Meyrick’s conduct should be viewed as serious, the Tribunal notes:
(a)The facts of Mr Meyrick’s offences, which exceed 90 in number and include violent offences in a domestic context, breaches of police or judicial orders, offences involving dishonesty and numerous traffic offences, including drink driving offences (refer to paragraph 2 above);
(b)The sentences imposed by courts for those offences, in particular:
(i)criminal damage by fire, committed on 8 December 2008, which resulted in a 12 month sentence of imprisonment on 4 August 2009;
(ii)being armed or pretending to be armed in a way that may cause fear, committed on 2 August 2015; and
(iii)unlawful assault and thereby did bodily harm with circumstances of aggravation, committed on 2 August 2015,
the latter two offences being committed against Mr Meyrick’s partner, Ms Lauren Brook and each resulting in a 6 month concurrent sentence of imprisonment on 19 July 2017.
(c)
the sentencing remarks of Grove DCJ dated 4 August 2009 (G17, pages 129 to 133) and related Statement of Materials Facts in relation to Mr Meyrick’s criminal damage by fire offence (R2, pages 102 to 104) (R2, page 3) . This offence took place on 8 December 2008 when Mr Meyrick’s co-offender drove a stolen vehicle (utility) into Joondalup Police Complex and set the vehicle on fire with petrol that was attached to the cargo tray of the utility. The fire caused extensive damage to the police station and significantly impacted the service delivery of the WA Police Service. Mr Meyrick had been waiting for his co-offender nearby, his co-offender then fleeing the burning vehicle and running to Mr Meyrick’s vehicle telling
Mr Meyrick what he had done. Mr Meyrick then drove his co-offender to an address (Statement of Material Facts at R3, pages 102 to 104). In those sentencing remarks, Grove DCJ made the following comments which illustrate the serious nature of Mr Meyrick’s offending (G17 at pages 130 and 131):
(Page 130)
…That offence [criminal damage by fire] carries a prospect of a sentence of up to 14 years’ imprisonment. That gives an indication as to how serious this offence is regarded by the Parliament of Western Australia which makes the laws for all of us in Western Australia. It is a serious offence. Clearly so….
…
…I note from [Mr Meyrick’s] court history that you were subject to a lifetime driving suspension at the time when this offence was committed. Of course, that’s not an offence which I’m dealing with here, but certainly it is an aggravating factor so far as this offence in concerned because it was by you driving that you facilitate [Mr Meyrick’s co-offender’s] departure from the scene where the vehicle was fired.
You were on a suspended imprisonment order at the time of this offending. You have been dealt with for breach of that order. What these things do indicate to me is that you don’t have any true regard or respect for the law or
(Page 131)
indeed, for the opportunities which have been provided to you to remain in the community…
…
…You knew that the vehicle was stolen. You knew that there was fuel in the tank on the back of the vehicle. You knew as [Mr Meyrick’s co-offender] told you, that he was going to torch the vehicle. You may or may not have believed that he would do it, but nevertheless, you went along and waited for him and drove him away from the scene where the vehicle was set fire to.
You role was of some significance in the offending. It cannot simply be categorised as a minor role in that offending. Clearly, fire of any type creates a danger to the community. The fire may spread, other property may be damaged. Fire-fighters and others risk their lives in fighting fires in whatever circumstances and those matters add to the seriousness of the offending.
[Emphasis added]
(d)
the sentencing remarks of Magistrate Benn dated 19 July 2017 and related Statements of Materials Facts in relation to the two offences committed by
Mr Meyrick on 2 August 2015 against this partner, Ms Brook, namely 1) being armed or pretending to be armed in a way that may cause fear and 2) unlawful assault and thereby did bodily harm with circumstances of aggravation. These offences involved Mr Meyrick attending Ms Brook’s place of employment with a baseball bat over his shoulder, demanding to speak with Ms Brook. Patrons of the sporting complex were fearful of Mr Meyrick’s aggressive manner and of his intent. When Mr Meyrick and Ms Brook proceeded to argue outside the complex regarding their relationship issues, he spat in her face and head butted her to the forehead (Statements of Material Facts at R3, pages 89 to 91). In those sentencing remarks, Magistrate Benn made the following comments which further illustrate the serious nature of Mr Meyrick’s offending (G19 at page 146):
…The fact of the matter is though, regardless of what Ms Brook has to say about the matter [namely, references to Mr Meyrick’s background, their relationship, Mr Meyrick’s dealing with his substance abuse issues and her plea for leniency], those two offences are extremely serious. And the aggravating factors in regard to those offences included the fact that you had a metal baseball bat with you; the fact that it was on a Sunday morning, at a sporting complex, with numerous children and their parents attending the sporting complex; and the fact that you approached Ms Brook at her place of employment.
Also, the nature of the assault is, in my view, serious. Spitting in someone’s face is a degrading, humiliating act for anyone to experience. It’s very easy to do and difficult to prevent. And that, followed up by the headbutt [sic] to her face, makes that assault, in my view, in all of those circumstances, extremely serious. I also note that you were affected by alcohol and other substances, it seems, at the time. That’s certainly not a mitigating factor…
[Emphasis added]
During cross-examination by Mr Burgess, Mr Meyrick gave oral evidence in relation to his criminal damage by fire offence committed on 8 December 2008 (transcript page 31).
Mr Meyrick said that when his co-offender first explained to him what he wanted to do, he sat down and spoke with his co-offender for about an hour and a half about how ludicrous the idea was and that he (Mr Meyrick) would probably get deported. Mr Meyrick said that he had driven his boss’s Landcruiser, without a licence, to the Old Bailey’s Tavern nearby. Mr Meyrick said that he had waited for his co-offender to leave the police station on the basis that he understood his co-offender was going to the police station only to drop off the utility and that the fuel tank on the utility tray contained diesel fuel (“which doesn’t really catch fire”) rather than unleaded petrol. When put to him by Mr Burgess,
Mr Meyrick agreed that the fire had caused $1.5 million in damage to the police station and closure of the police complex for 12 months. Mr Meyrick said that following the commission of the offence, he didn’t hand himself into the police and he was picked up by the police two days later, then put on remand in December 2008. Mr Meyrick said he was then in prison until about 3rd December 2011.
During cross-examination, Mr Meyrick also gave evidence regarding the restraining order issued on him on 13 October 2008 regarding his then partner, Ms Rebecca Bond (refer to R3, page 180). Mr Meyrick said that the restraining order had come about when he had returned from work, after having consumed alcohol all day, to find Ms Bond in the driveway talking to a male person, a person he’d asked on numerous occasions not to come to the house. Mr Meyrick said that he presumed the male was there either to sell drugs to Ms Bond or for a sexual nature. Mr Meyrick said he then found the male’s car at the shops, waited for him, got angry and upset, gained access to his car, then proceeded to destroy it. Mr Meyrick said he regretted his actions and accepts full responsibility for the property damage and threatening and intimidating behaviour. Mr Meyrick added that during the period of this restraining order, he was still living with Ms Bond, their having decided to “kind of sneak around and still each other,” which he knows was wrong (transcript page 33).
When asked about earlier restraining orders by Mr Burgess, again regarding Ms Rebecca Bond, Mr Meyrick recalled having breached the 72 hour “move on” notice issued on 3 November 2007, (refer to R3, pages 124 and 179) and also having breached the restraining order issued against him on 19 August 2005 (refer to R3, page 177) following an incident with the same male person involved in events leading to the 2008 restraining order being issued.
As to the incident on 6 September 2006 whereby Mr Meyrick is stated by Ms Rebecca Bond to have grabbed her by the throat outside her flat and lifted her off the ground so that she was level with his face (R3, pages 166 to 168), Mr Meyrick said it was possible that Ms Bond did not press charges against him for that, although she would have been well within her right to do so.
When asked, Mr Meyrick said that he recalled having received the Departmental warning on 24 March 2011 (G20, page 151) when he was still in prison following the Department’s previous decision of the same date not to cancel his visa. Mr Meyrick said he recalled that the warning essentially stated that if he committed any other offences that his visa would be cancelled and that less than one month after his release from prison, he was picked up by police in relation to stealing and a stolen motor vehicle.
In relation to the stealing incident on 11 January 2012 (referred to at paragraph 45 above), Mr Meyrick said that the reference in his written submission to this incident having occurred on 23 July 2012 (G31, pages 180 and 181) was made in error. Mr Burgess referred to the following extract from Mr Meyrick’s submission in October 2018 (G31, pages 180 and 181):
On the 23/07/2012, 7 months after my release, I was a passenger in a vehicle that was driven by the mother of my children and upon being pulled over by the police I found out it was stolen. I pleaded guilty to get it out of they [sic] way so I would carry on still maintaining a drug free and sober lifestyle and being [sic] a productive member of society.
Regarding the extract at paragraph 46 above, Mr Meyrick said that he did not know the car was stolen and that the first he had seen of that car was when he got into it with Ms Rebecca Bond and was then pulled over for a random breath test. Mr Meyrick said that going from the Statement of Material Facts in relation to this incident (R3, pages 100 and 101) it was then found that the licence plates fitted to the vehicle were stolen that same day and the vehicle itself had been stolen the day before.
Mr Burgess then took Mr Meyrick to a later passage from that Statement of Material Facts (R3, page 101) which states:
On the 17th of January 2012 forensic results were received in related [sic] to the stolen registration plates…The accused fingerprint was located on the rear top right hand side of the front registration plate.
Mr Burgess put it to Mr Meyrick that the record from the Statement of Material Facts regarding his having stolen the licence plates (extracted at paragraph 48 above) was inconsistent with his evidence that his first sighting of the car was upon getting into it with Ms Rebecca Bond (refer to paragraph 47 above). Mr Meyrick stated that he “can just remember this now,” that is, he just remembered having stolen the licence plates.
Regarding the incident on 2 August 2015 where Mr Meyrick entered the sporting complex with a baseball bat, demanding to speak with Ms Brook (transcript pages 41 to 43):
Is the statement of material facts there an accurate representation of what occurred?‑‑‑I'm not going to sit down and argue, like, every single little bit, but if I can just shed some light on it. Was it wrong for me to go to someone's work in a manner of being upset and angry, and especially with something such as a baseball bat in my hand? Yes, absolutely. I'm not denying that at all. Unfortunately by this stage - and I'm not trying to say that this gives it an okay for me to conduct myself in this - because to be quite honest with you, it is a disgusting manner for anyone to have to go through. Yes, I grew up with a mother and father that was domestic violence all the time, so I should know better than anybody that it's not right. To verbally intimidate a woman, or nevertheless - and obviously, more seriously, to put my hand on a woman at all in any way of anger, I don’t - see, this is coming from my recollection - I don’t recall swinging the bat around in a manner of - to cause lots of fear. I actually took the baseball bat there with me because at the time I knew there was people, it's probably of the same age, learning - or what is it, cricket practice, sorry? So it was more of a deterrent, like "Don't come anywhere near me. I'm talking to my partner".
MEMBER: Sorry, what's the link to the cricket, sorry?‑‑‑There - where the actual facility is, it's a sporting complex, so there was people on there doing Sunday practice of similar age for cricket, and some of these people, of course, had probably formed the - like, a customer type relationship with Lauren, because she was actually working at the pub that's there.
So was it your concern that if they saw you approach her and perhaps made them uncomfortable, that they would approach you with a cricket bat? Is that why you were holding a baseball bat?‑‑‑Yes, so I just wanted just to talk it out with Lauren, like, I know how it's absolutely - I should have just - I should have actually just gone home, sobered up, and then spoke to her about - - -
Are these children you're talking about, holding cricket bats?‑‑‑Pardon?
It is the children holding cricket bats?‑‑‑I cannot remember, and when I walked into the - when I was in the - actually got into the pub I recall by that stage the actual owner of the pub had been told that, look, I'm coming up there. He'd made no attempt to lock the front doors, which I think he should have, but anyway, and when I was inside the pub at the time there was a mother and a child that walked in. I was actually - had the baseball bat, like - how can I describe it? Like you see, like, I think I might have had it on the bar and then I took it down, and I think I had it either behind my back or like Charlie Chaplin would in, like, a scene, if you imagine him standing on his cane, and this is when a mother and her child walked in, and I remember saying to her "Look, it's all right, I've just got to - having an argument with my partner" at the time, and they left. Yes, but I'm not saying that none of it didn’t happen. I did get Mr Lauren - Mr Lauren, sorry - Mrs Lauren to accompany out the front of the building, for me to talk to her. I'd actually stood purposely underneath the CCTV camera, so I know I was standing, so I'm thinking "Right, I'm not going to do anything stupid because I'm on the camera", and again my thinking - this is not the way to think or - but I'm telling the truth - it's more of a deterrent for me act what the idiotic disrespectful manner that I did. Of course it didn’t work. I got upset and I did - I then did the vulgar act of spitting on Ms Brook, and then moments later I did meet her head with mine - and I'm not trying to say this is right, because I know it's not - in a way of - like, you need to wake up type thing. It's something that I am remorseful for. I wish it never happened. I can only shed light on certain things in my past; that doesn’t make it right for me to act in that way whatsoever, especially to a female, after seeing my mother get abused for years by my father, so I should know more than anybody what it's like. Yes, I hope that answers your question.
MR BURGESS: When you approached your partner?---Yes.
You knew that you were going to be approaching her in an aggressive manner?---Yes. I was upset, yes.
You knew that others might think that you were approaching her in an aggressive manner, and that they might come at you with a cricket bat?‑‑‑Of course, because that's - I mean, I had the baseball in my hand, obviously. I wasn’t waving it around. It was more of a deterrent.
I am talking about when you decided you were going to leave your car?‑‑‑Yes.
And take a baseball bat with you?---Yes.
To have this aggressive discussion with your partner?---Yes.
So you knew it was going to be - you were going to be aggressive towards her?‑‑‑And because - the aggressive as in me getting upset? I had no intentions of going there and spitting on her and head-butting her. I had no intentions of using that bat whatsoever. If I was that - such an evil person I would have used the bat, I would have used the bat several times throughout my history, and there would have been documents of it. I don’t - I'm not a violent person, as much as it - - -
Well, you do have a history of assaulting your partners though, don’t you,
Mr Meyrick?‑‑‑I was just trying to get to that point, and I know that, and I admit that. It is wrong for me, the way - to act like that. That is not me as a person. Unfortunately, like I say, I'm not trying to use the drugs and alcohol as a crutch, but that's been a problem in my life from the - especially the alcohol, from a very young age, and the drugs just heightened it and made it even worse, so I don’t really think that rational.What I was asking you, you made a conscious decision. This wasn’t a spur of the moment thing. You made a conscious decision to go to her work, to leave the car with a baseball bat, to approach her in an aggressive manner, to threaten her, ultimately spat in her face and head-butted her. When you say - you refer to the head-butt as "She just needed to wake up"?‑‑‑Yes, it was - that's the - no, it's not - yes, like a snap and everything. It wasn’t a head-butt of - - -
And then on top of that you're now blaming the owner of the pub for not locking you out?‑‑‑I wasn’t blaming the owner of the pub at all. I was just bringing that into light of it, that's all. I wasn’t trying to - I'm not trying to blame anybody else for any of my actions. It is all me, but I'm - it's the drugs and alcohol that affects my - I have a problem with it. That's what I've try to address the few times that I've been incarcerated, by doing courses.
[Emphasis added]
In paragraphs 30 to 35 of the Minister’s SFIC (R2), the Minister essentially contends that Mr Meyrick’s offending should be viewed as very serious for the following reasons:
(a)Mr Meyrick has an extensive offending history, having been sentenced since he was 17 years old in relation to more than 90 offences including serious violent offences, property offences, dishonesty offences and serious driving offences. The sheer totality and repeated nature of Mr Meyrick’s offending make it very serious and demonstrate a persistent disregard for the law of Australia.
(b)Regard must also be had to the fact that Mr Meyrick has been sentenced to numerous terms of imprisonment on separate occasions for his offending (paragraph 13.1.1(1)(c) of Direction 65). Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy. Accordingly, where a Court has sentenced an offender to a term of custodial imprisonment, this must be viewed as a reflection of the object seriousness of the offences involved. Having regard to the number and length of prison sentences that Mr Meyrick has been sentenced to, the objective seriousness of Mr Meyrick’s offending weighs heavily against the revocation of the visa cancellation.
(c)
Mr Meyrick has committed violent offences including assaulting a public officer and assaulting his domestic partner. The assault against his partner occurred on
2 August 2015 and involved the applicant attending her work and threatening her with a baseball bat, spitting in her face and head butting her. At the time the applicant committed the offence, he was on a suspended prison sentence. The applicant was convicted of unlawfully assault and thereby caused bodily harm in circumstances of aggravation in relation to the assault and was sentenced to six months imprisonment for the assault and six months imprisonment for being armed in a way that may cause fear. The Minister contends that the Tribunal must have regard to the principle that violent crimes, such as these, are viewed very seriously (paragraph 13.1.1(1)(a) of Direction 65).
(d)Mr Meyrick’s offending has increased in seriousness since his arrival (paragraph 13.1.1(1)(d) of Direction 65), culminating in the aggravated assault against his partner in 2015 and repeat sentences of imprisonment in relation to driving whilst on a disqualified licence (lifetime disqualification).
(e)
The totality of Mr Meyrick’s traffic offences should also be viewed seriously.
Mr Meyrick has been convicted of unlicensed driving on 24 occasions, on some occasions being caught a matter of weeks after receiving licence suspensions for driving whilst suspended. Mr Meyrick has been sentenced to terms of imprisonment on 19 separate occasions for traffic offences including unlicensed and drink driving and has continued to drive notwithstanding being unlicensed.
Mr Meyrick has also been convicted on numerous occasions of driving unregistered cars, displaying false plates and reckless driving. In total, Mr Meyrick has been sentenced to more than 8.5 years of imprisonment in relation to traffic offences (104 months).
(f)As noted by Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (28 September 2017) at [43]:
There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(g)
Mr Meyrick committed numerous offences following being warned that doing so would likely result in his visa being cancelled. Since his last warning in 2011,
Mr Meyrick has been sentenced to more than four years of imprisonment for various crimes. That Mr Meyrick has committed numerous serious offences since being formally warned of the consequences for his visa if any future offences were committed aggravates the seriousness of his offending (paragraph 13.1.1(1)(g) of Direction 65).
The Tribunal considers that the nature and seriousness of Mr Meyrick’s offending is particularly reflected in his conduct which involved domestic violence, including the two offences committed against Ms Brook in August 2015 (one of them arguably having been committed in the presence of children) and, although it appears no charges were laid, his violent conduct against Ms Rebecca Bond in September 2006 (referred to at paragraph 44 above). As noted by Senior Member Evans in the Tribunal’s decision of HWYY and Minister for Home Affairs (Migration) [2018] AATA 4602 (13 December 2018) (HWYY):
[64]…The Tribunal considers that domestic violence offences are serious offences and notes that children are vulnerable members of the community (paragraph 13.1.1(1)(b) of Direction no. 65). Relevantly, Deputy President Dr Kendall (as he then was) stated in XFKR and Minister for Immigration & Border Protection[2017] AATA 2385 at [45] that:
The Tribunal would add that, in a society that adheres to fundamental sex equality principles, violence that is gendered and directed at women (and which seeks to degrade and dehumanise women on the basis of sex) is both individually and systemically intolerable. Its harms are threefold. First, it results in direct physical and psychological harm for those women against whom the violence is directed. Second, it psychologically harms the children of these women — children who, as in this instance, witness their mothers being abused, degraded and dehumanised — and send a message to those children (male and female) that behaviour of this sort is to be tolerated. Third, it normalises those socially enforced gender imbalances that allow sex based inequalities and violence to arise in the first place. The impact this has, socially, on systemic equality between the sexes cannot be underestimated.
[65] The comments of Deputy President Dr Kendall (as he then was) have been applied by this Tribunal in other decisions including QSBL and Minister for Home Affairs [2018] AATA 2074 at [59], ZTGP and Minister for Home Affairs [2018] AATA 3518 at [99] and NBCM and Minister for Home Affairs [2018] AATA 2387 at [52]–[53].
[Emphasis added]
In considering the nature and seriousness of Mr Meyrick’s criminal offending or other conduct, in particular the three offences for which Mr Meyrick was convicted on
4 August 2009 and 19 July 2017 (see for example, at subparagraph 40(b) above), they are offences that are viewed seriously, which is reflected in Direction No. 65 and by the sentencing remarks extracted at subparagraphs 40(c) and 40(d) above. Sentences involving imprisonment are the last resort in the sentencing hierarchy. Mr Meyrick’s terms of imprisonment reflect the seriousness of his conduct against the community (subparagraph 13.1.1(1)(c) of Direction no. 65).
The Tribunal also notes in the sentencing remarks that the offences against Ms Brook for which Mr Meyrick was convicted on 19 July 2017 and his conduct towards Ms Rebecca Bond on 6 September 2006 (refer to paragraph 44 above) created helplessness in a particularly distressing way towards his domestic partner at the given time. The Tribunal considers there can be no dispute that by the very nature of these offences (which are violent of themselves), the victims found themselves in a position of vulnerability. Magistrate Benn referred to Mr Meyrick’s conduct in spitting in Ms Brook’s face as “degrading” and “humiliating” (refer to subparagraph 40(d) above) (subparagraphs 13.1.1(1)(a) and 13.1.1.(1)(b) of Direction No. 65).
With respect to the frequency of Mr Meyrick’s offending (subparagraph 13.1.1(1)(d) of Direction No. 65), he has been offending for a period of over 20 years, commencing in August 1995, when he was 17 years of age. There are some gaps in Mr Meyrick’s offending in 2013 and 2014 (G6, page 64). However, Mr Meyrick can be said to have engaged in consistent and in the case of his driving offences and breaches of police or judicial orders, repeated offending over this period. Mr Meyrick’s driving offences are significant and constitute a risk to public safety. Further, the Tribunal is of the view that
Mr Meyrick’s more recent domestic violence offence suggests an increasing trend in seriousness.
The cumulative effect of Mr Meyrick’s offending (subparagraph 13.1.1(1)(d) of Direction No. 65) is that he has been convicted of over 90 offences. Whilst a number of
Mr Meyrick’s offences are serious in and of themselves, the cumulative effect, in particular in relation to the driving offences, is that Mr Meyrick’s offending must be viewed as very serious. This cumulative effect also results in costs of various kinds being incurred by the community, in terms of the detrimental impact on victims, police, court and corrective services resources, and for example, the financial cost resulting from the $1.5 million damage to and related 12 month closure of Joondalup Police Complex following
Mr Meyrick’s criminal damage by fire offence.
The Tribunal has had regard to Mr Meyrick having received a warning from the Department on 24 March 2011 (G20) to the effect that further offending may result in cancellation of his visa on character grounds (subparagraph 13.1.1(1)(g) of Direction No. 65). Despite having acknowledged this warning (G20, page 153), Mr Meyrick continued to offend, including the violent offences for which he was sentenced to imprisonment on
19 July 2017. Mr Meyrick’s conceded that he “probably didn’t take that warning as seriously as he should have” and that he regrets “not heeding the gravity of that caution.” (G32, page 183) The Tribunal takes the view that Mr Meyrick’s continuing to offend after receiving the Departmental warning demonstrates a lack of insight into his offending and a disregard for authority and for the law.
The Tribunal has also taken into account the fact that at the time of Mr Meyrick’s offending, his continued drug and alcohol use may have influenced his offending behaviour, although it cannot be said that this factor reduces his responsibility for those actions (refer to the comments of Magistrate Benn in this context, extracted at subparagraph 40(d) above).
Weighing up the above considerations as they apply to subparagraph 13.1.1 of Direction No. 65, the Tribunal finds that, viewed objectively, Mr Meyrick’s crimes are indeed serious and of considerable concern. In the circumstances of the matter, the crimes that
Mr Meyrick committed, particularly those involving stealing, criminal damage by fire and violence weigh heavily against revocation of the mandatory cancellation of Mr Meyrick’s visa. Mr Meyrick’s conduct in continuing to repeatedly drive without a licence, which by Mr Meyrick’s own evidence were often committed while he was under the influence of drugs and alcohol, reflect a disregard for the law, a disregard for public safety and a degree of indifference that cannot be excused.
(b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Subparagraph 13.1.2 of Direction No. 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether Mr Meyrick represents an unacceptable risk of harm to the Australian community (i.e. the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct).
Subparagraph 13.1.2 of Direction No. 65 provides:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
[Emphasis added]
In the context of what the Tribunal is required to consider in order to assess in determining whether a person poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community, the Tribunal notes the summary provided by Senior Member Evans in HWYY at paragraphs 77 and 78:
[77] In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice (2013) 41 VR 359 at [111] (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration & Border Protection (2014) 225 FCR 424 at [94]–[95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration & Border Protection (No 2) (2015) 148 ALD 117 at [42]–[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does. [Footnotes omitted.]
[78] In BSJ16 v Minister for Immigration & Border Protection [2016] FCA 1181 Moshinsky J stated that, at [68]: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally, in Hambledon v Minister for Immigration & Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
[Emphasis added]
Regarding the nature of the harm to individuals if Mr Meyrick were to engage in further criminal or other serious conduct (subparagraph 13.1.2(2)(a) of Direction No. 65), the Minister contended that Mr Meyrick’s history of reoffending, despite receiving fines, licence disqualifications, community orders, suspended terms of imprisonment, terms of imprisonment and a warning from the Minister, indicates that there is a high risk that
Mr Meyrick would continue offending if his visa were reinstated (R2, paragraph 38).
Mr Meyrick has a history of offending over a period spanning in excess of 20 years, with offences including unlawful assault and thereby did bodily harm, domestic violence, gains benefit by fraud, criminal damage by fire, driving while under the influence of alcohol and carrying an article or being armed with intent to cause fear. The Tribunal is of the view that this is exacerbated by Mr Meyrick’s carriage of a metal baseball bat at times, and at least once in the presence of children at a sporting complex as well as having head butted both Ms Rebecca Bond, the mother of his two children (R3, page 167, paragraph 11) and Ms Brook, his partner since 2012 (refer to subparagraph 40(d) above).
As noted in subparagraph 13.1.2(1) of Direction No. 65, the Australian community is likely to have less tolerance given the seriousness of the potential harm, especially against women who are subject to domestic violence and who are vulnerable members of the community. There is a real risk that should Mr Meyrick commit similar offences in the future, including offences involving the use of articles carried with the intent to cause fear, that a member of the Australian community may suffer serious physical and possibly psychological injury. Mr Meyrick’s charges for stealing, gaining benefit by fraud, and criminal damage by fire could result in economic loss to members of the Australian community, which may be particularly extensive in the case of criminal damage by fire, if Mr Meyrick were to commit similar offences in the future.
In oral evidence before the Tribunal, Mr Meyrick said the following in relation to his drug and alcohol use and subsequent claimed rehabilitation (transcript pages 89 and 90):
Yes, I stayed with my old man up until - it was the first time of imprisonment where he sold the family home, and just couldn’t do it anymore. It was getting too much for me and my brother at home with him. There's a lot of the times there where he was driving back and forwards to work, but for me to be able to go to work - I was in the building trade, and I know it doesn’t put right that you should break the law, but I was forced to drive to get back and forwards to work, to try and keep the family home. Working in the building trade back then, and then in the 90s it was the custom to have a few beers after work and have a few beers at work, and it's not like I could just jump on public transport of catch a taxi or whatever, like, and I know it's not right, but these are some learned things that I picked up from my father that I thought were the done thing and I thought were cool, and I thoughts [sic] that [sic] the way everybody conducted themselves, especially in the building trade.
Yes, so, like I said, it was a bit traumatic for me, and I know it was for my brother as well, not having any other family here to go to at that age, like an uncle or an aunty or anything where I could seek refuge or go and ask for help or anything. I thought what I was going through everybody was going through, which I now know, since I've gotten older, is not the case. I still maintained work, driving back and forwards to work like an idiot. I don’t refute and [sic] of them claims. When it was - when Mr Burgess was on about the stealing a number plate, I did not recall that going through my statement - witness statements or whatever I've written. I was not trying to deceive the tribunal whatsoever. You can believe me on that.
I'm vague on a lot of dates, and I think that's got a lot to do with the abuse of drugs and alcohol from the age of, well, 16. Alcohol was my main thing up until about the age of 17, and then I started taking into intravenous drug use quite heavily. I'm not saying that gives me an excuse why I can get away with doing things; it doesn’t. it may be just might shed some light on why my behaviour was the way it was, and I tried numerous times to seek help off my own back whilst I've been incarcerated, and I've knocked back parole to do that, to try and better myself, which - who in their right mind knocks back parole, to not get out to freedom? I think everybody goes for it.
I tried to put some of them practices into place when I got released from doing the three year sentence in 2011, and no, it wasn’t successful, as much as what I would have liked it to have been, where I would have been able to lead a life of abstinence from drugs and alcohol. I'm ashamed of it. It's something I have no intention on [sic] going back to, and I understand it has been noted that I've said that previously, but a lot's changed since then. There's been the birth of another daughter of mine, which I think every child has the right to meet their parent and get to know them, as does the parent to the child.
[Emphasis added]
Mr Meyrick said he had undergone a number of courses (in 2009 and 2010), in relation to Anger Management, Alternatives to Violence Project, Relapse Prevention and the Sycamore Tree Project (refer also to G5, page 39 and related certificates at G5, pages 41 to 44)).
Mr Meyrick said that he had intended to go to Alcoholics Anonymous, however this did not occur. Mr Meyrick said that the courses he did before (prior to the Department making a decision not to cancel his visa) didn’t really focus on his drug and alcohol addiction.
The Tribunal notes Mr Meyrick’s written submission in 2010 that (G5, page 40):
Also I plan on going to go to [sic] A.A when I get out because Achocl [sic] has been a problem in the past and I wont [sic] be drinking at all after being sober for three years has been good and it will only get better I get out and go to work and spend time with my family I really want to stay here I no [sic] I will never put a foot wrong again after this has wokein [sic] me up a lot.
[Emphasis added]
At the hearing, Mr Meyrick said:
(transcript page 44):
I foolishly thought that that time that I was out [late 2011 and early 2012] and where I now know that the dates were mixed up that I committed that offence of the stolen motor vehicle with the number plates. From then on, I think it was (indistinct) maybe two or three years, I'd actually started to lead a life of sobriety, and I thought I didn’t need it, I thought I'd beaten it. I foolishly now know that I hadn’t, so maybe I should have started to attend an AA, as I had planned. I was working full time again and everything was going all right. I was actually catching the train back and forwards to work, so, I do believe that I was rehabilitating myself, if not rehabilitated.
(transcript page 59)
<FURTHER CROSS-EXAMINATION BY MR BURGESS [1.24 pm]
You spoke earlier about - you recalled the event where you stole the number plate shortly after being released from prison?---Yes.
Were you under the influence of alcohol at that time?---Yes.
So when you say - - -
MEMBER: Sorry, was that "Yes"? I didn’t hear?---Yes.
Yes.
MR BURGESS: So when you say you were abstinent from alcohol for a significant period of time, that's also incorrect?‑‑‑No, it's not.
You were abstinent from alcohol when you were in prison?---Yes.
And then within one month of being released from prison you were drinking again?‑‑‑Yes, but that was only for, like - now I can't remember - maybe just, like - maybe two to three weeks. Then I stopped again.
So for two to three weeks after being released from prison, after making submissions that you were now sober, you were going to attend Alcoholics Anonymous, you were - you started drinking?‑‑‑M'mm.
Okay. No further questions.
[Emphasis added]
The Tribunal notes the attachment to Mr Meyrick’s personal circumstances form dated 20 September 2017 where he gives the following reasons for offending (G23, page 170):
My past offences were directly related to a substance abuse problem I was suffering at the time. I am now clean and awaiting a Pathways programme to cement my position. I am also in the early stages of joining the Narcotics Anonymous programme. I do believe now that I’m substance free I am at a low to zero likelihood of re-offending.
The Tribunal also notes Mr Meyrick’s written submission in 2017, where he states (G31, page 181):
In the weeks leading up to 7/10/2016 I unfortunately relapsed, which I am deeply ashamed of because at that time I had maintained my clean lifestyle for close to 5 years which is reflected in the large gap in time of offending in my criminal record.
But one thing led to another and I slipped back into old habits and for the next 12 months I found myself in and out of court in a downward spiral and it took being back in prison again to stop the cycle.
Partly in response to the sentencing remarks Magistrate Benn dated 19 July 2017 (extracted at paragraph 40 above), Mr Meyrick stated in his written submission (G31, page 182):
In the weeks leading up to 7/10/2016 was when I unfortunately relapsed. I take full responsibility for my actions but throughout everything that’s [sic] happened I still have a strong determination to maintain a clean and sober lifestyle.
After being incarcerated this time I’ve realised I needed help and have engaged in the ‘Pathways’ program to address my offending behaviour and equip myself with the tools I need to move forward and be a better person.
In his statement dated 8 October 2018, Mr Meyrick wrote (G32, pages 184 and 185):
After receiving my last warning from your department I stayed clean and sober for five years as my record reflects. This was the greatest time of my life, working training, being healthy and maintaining functional relationships. I matured a great deal just getting on with life. It was then that I though [sic] it wouldn’t hurt to indulge in a beer or two thinking that like most of the community, I could control myself due to my new level of maturity. However, I was wrong and my drinking quickly got out of control – It was my undoing, my downfall. The drinking soon led me back to drug use, as the two go hand in hand for me. It only took a year for me to rack up enough driving and other assorted minor offences to land me back in prison again.
I declined parole because I was scheduled to take part in the Pathways drug and alcohol treatment program here. In here, knocking back a chance at getting out is seen as ludicrous and it was so hard to do because it effectively doubled my sentence, but I wanted, no I need, the help this program will give me. Pathways has been running for four months now, finishing in November, two weeks before my time is up. Its [sic] beyond my capability to tell you everything this program has taught me. Even though I had had to spend much more time here than I had to, the benefits I have gained will aid me forever. I have now a whole range of tools to help me get along in the world and to resist the lure of drugs and alcohol. I have learned so much about myself and importantly what my triggers are that send my [sic] plunging into substance abuse. I have the utility to express myself properly, not supressing my emotions, leading to build ups of feeling. I know I will always have to be aware that I have a problem with substance abuse and that I can never affords [sic] to become complacent about this. This backslide has been the final straw for me. I know I can never have ‘just a beer or two’ – I know where that leads and will lead every time. I wish I had learnt these invaluable life lessons ten years ago but as they say its [sic] better late than never. As I have been in a totally clean, sober and subsequently right frame of mind I have cemented these lessons in the core of my being and ill [sic] never forget them – I will never let myself fall again. Specifically, I know I must abstain from attending high risk places like pubs, clubs and parties. Whilst in prison I have maintained a healthy lifestyle and will continue with such once released. This is reflected by the fact I have returned clean urine tests throughout and have good reports from the staff here, all of which report my friendly, respectful manner toward all. The pathways facilitators are going to write a short interim report that will describe my engagement with the process so far, attending every class and constantly contributing, though as the program ends so close to my release date (2.12.2018) the final report may not be available by then. I hope this does not affect your decision because as I have already stated, this program has enabled me to make huge personal gains in my life and I would very much like the opportunity to put those into practice in the Western Australian community.
By learning to recognize these personal dangers I actually feel like a more responsible man. With these proactive tools at my disposal I’m confident that I can achieve a peaceful and happy lifestyle. I have made myself short and long term goals, the like of which are centred on being a responsible and respectful father and role model to my girls and a rock for my partner, Lauren. I’m not scared of the future anymore, I embrace it and look forward with the kind of sharp mind only a clean, sober man can.
I am a plasterer by trade and have employment plastering upon release….
At the hearing, the Tribunal heard evidence from Ms Dianne Bond and Ms Tahlia Boardman regarding the support they had previously provided to Mr Meyrick and intended to provide in future should be released, as follows:
(a)Ms Dianne Bond gave evidence that she is prepared for Mr Meyrick to live with her until he finds a job and gets a place of his own, on the conditions that 1) he doesn’t see a lot of the people that he’s been seeing, as she believes a lot of those people are his undoing and 2) that he gets a job straight away and starts work. Ms Dianne Bond said she recalled her earlier statement to the Department in 2010 (G5, page 45) where she offered similar assistance and support. When asked, Ms Dianne Bond said she was aware that in the time Mr Meyrick stayed with her following his release from prison in 2011 (which was sometime after 2011), he went back to offending (transcript pages 72 and 73).
(b)Ms Boardman gave evidence that Mr Meyrick lives with her and her mother in 2015 (refer also to A1), a couple of months after his release from prison, for about two and a half years, because they wanted to make sure that he had stable accommodation. Ms Boardman said that she was aware that during 2015 and 2016, that is, throughout the period Mr Meyrick was living with her and her mother, he was continuing to offend and that he was drinking (transcript page 63).
As to his family ties, Mr Meyrick stated at hearing (transcript page 54):
Your mother, it's mentioned in the statements that's she's in - was in a nursing home. Is that still the case?‑‑‑No, she's out of a nursing home now.
Where does she live now?‑‑‑She's in [name of town].
Who does she live with in [name of town]?‑‑‑With her new husband. I just call him that, because she's not with my father anymore.
Yes, so it's all right, I can identify who that is?---Yes.
All right, and I understand as well that your father is unwell. Can you tell me now what you know personally about the state of his health at present?‑‑‑At present, well, obviously still going through with his depression and anxiety, and there's another medical term that he's got, but I can't remember it.
Do you know where he lives?‑‑‑Yes, he's in [name of suburb].
In [name of suburb], and do you know who he lives with?‑‑‑He's living by himself. I know from time to time my brother stays with him. Yes, I got a message through to me that he was sick and he'd been taken to hospital again through his contracting pneumonia, because he's got emphysema.
Okay, so?‑‑‑That's why I haven’t got any current letters off them. I'm too scared to tell them what's going on.
So basically he's got some ongoing issues, but he is living independently at the moment?‑‑‑As far as I know, yes.
Okay. If I can take you to page 164 of the G documents. So this is your personal circumstances form in 2017. You've got "List all living parents, step-parents, brothers, sisters, and adult children". I don’t see Wayne's name?‑‑‑Yes, that's just me panicking filling this out, and I do apologise for that.
So is it just you forgot to list your brother as a living sibling?---Yes. Honest, yes, it's me just panicking and wanting to get it filled out and just sent back.
The Tribunal notes that the most recent evidence from Mr Meyrick’s parents and brother are their statements provided in 2010 (G5, pages 48 to 57).
Mr Meyrick then went on to explain that Ms Tahlia Boardman is not his biological niece, and that rather, “she just calls me uncle,” her biological aunt being married to Ms Dianne Boardman’s stepson (transcript page 55).
Mr Meyrick documents the strength and closeness of his relationship with Ms Brook, and their future plans in his statement dated 8 October 2018 (G32, page 183) and similarly the statement attached to his Personal Circumstances Form dated 20 September 2017, noting that “[e]nding my time in Australia would almost certainly end our relationship and any chance of a future we may share together” (G23, page 169). The Tribunal also notes Ms Brook’s statements in this regard (G26, pages 174 and 175 and A2), including her statement that she and Mr Meyrick had considered making a permanent move to another state, in the context of the available evidence that Mr Meyrick’s family, including his ailing parents and his children, reside in Western Australia.
The Tribunal notes the available evidence from Ms Tahlia Boardman regarding her relationship with Mr Meyrick, including (A1):
If my uncle got deported, I don’t know how my mental health would go, its [sic] already deteriorating enough as it is, I couldn’t lose one person who’s cared about me from day one, the one person who made me feel sane because he’s insane, the one who made everything better with those simple words “RISE ABOVE IT CHILD”, its [sic] been hard enough processing the fact he was in jail, let alone if he gets deported, I think id [sic] get institutionalized in all honesty.
In relation to the strength, nature and duration of ties, the Minister’s written submissions in its SFIC are (R2):
50. The Minister acknowledges that the applicant has substantial ties to Australia, having resided here since a young age and having family members in Australia who are Australian citizens.
51. The Minister contends that the Tribunal should give this consideration less weight in circumstances where the applicant began offending at a young age and has continued to persistently offend since (Paragraph 14.2(1)(a)(i) of Direction 65).
At the hearing, Mr Burgess submitted that (transcript pages 87 and 88):
With respect to the strength, nature, and duration of ties to Australia, the tribunal in that respect is directed to paragraph 14.2(a)(i) of the direction 65, and in particular the tribunal is directed to place less weight on the consideration where a citizen began offending soon after arriving in Australia. The applicant didn’t have his first offence until the age of 17, but has, for all of his adult life, had regular offending behaviour. Similarly, the tribunal, having a look at 14.21(b), is only required to have regard to the strength, nature, duration - sorry, have regard to the strength, duration, and nature of any family and social links with Australian citizens, including having - including looking at the effect of the non-revocation on the non-citizen's immediate family in Australia. In that respect the tribunal isn’t mandatorily required to have regard to the best interests of Tahlia Boardman or Dianne Bond.
The immediate family is defined in the Migration Regulations as the spouse, parents, or children of a person, and in that respect a similar consideration would flow onto direction 65's reference to immediate family, such that - and this flows on to our objection with respect to the medical report, that it's not necessary for the tribunal to inform themselves of that as a mandatory consideration. Certainly that doesn’t stop the tribunal taking into account any matter which the tribunal sees fit to take into account. We would submit, however, that even if that consideration of the strength, nature, and duration of ties ways in favour of the applicant, it is heavily outweighed by all of the primary considerations which weigh against the applicant.
In considering the strength, nature and duration of Mr Meyrick’s ties to Australia, the Tribunal has taken into account the matters addressed at paragraph 116 to 129 above, along with:
(a)Mr Meyrick’s ties are punctuated by his drug and alcohol use and offending history;
(b)the letters of support before the Tribunal from his partner, family, friends and others (A1, A2 and A3 and within the G documents). The authors of these letters, relevantly, offer their support for Mr Meyrick to remain in Australia;
(c)the lack of letters of support from Mr Meyrick’s past employers post 2010 (refer to G5, pages 58 and 59);
(d)the lack of letters of support from Mr Meyrick’s mother, father and brother post 2010;
(e)Mr Meyrick’s ties to the Australian community include his 12 year old daughter (discussed above in paragraphs 82 to 102 above in the sections regarding the best interests of minor children), with whom he wishes to reconnect, and his infant daughter with whom he wishes to establish a relationship.
The Tribunal accepts that Mr Meyrick has family and social ties in Australia and that his immediate family, particularly his parents, may experience some hardship if Mr Meyrick returned to the United Kingdom. Mr Meyrick arrived in Australia at a young age and hence the Australian community may afford him a somewhat higher tolerance of his offending conduct. However, the Tribunal considers that any positive contributions
Mr Meyrick may have made in the community through his plastering work and education is limited and of intermittent duration and are far outweighed by the duration and seriousness of his offending conduct and the related burden it has placed on community resources.
The Tribunal finds that on balance, the strength, nature and duration of Mr Meyrick’s ties to Australia weigh in favour of revocation of the mandatory cancellation of the visa.
Impact on victims
With respect to the “impact on victims” consideration, subparagraph 14.4 of Direction No. 65 states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal notes the “impact on victims” consideration in the context of:
(a)Ms Brook and Mr Meyrick remaining in a partnership following her being the victim of his violent offending in 2015 and her being supportive of his remaining in Australia.
(b)
Ms Rebecca Bond appearing not to have pressed charges in relation to
Mr Meyrick’s violent conduct against her in 2006.
In relation to the “impact on victims” consideration, the Minister contended that (R2):
57. Whilst there can be no doubt that there are victims of the applicant’s offending, there is no specific evidence on this issue. This factor is, at best, neutral.
The Tribunal is not in a position to elaborate any further on this consideration having not had recent evidence from Ms Brook and Ms Bond on these matters and in turn not having had the opportunity to test such evidence at hearing.
As such, the Tribunal finds that the “impact on victims” consideration weighs neither in favour nor against the revocation of the mandatory cancellation of the visa.
Extent of impediments if removed
With respect to the “extent of impediments if removed” consideration, subparagraph 14.5 of Direction No. 65 states:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are any substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
As noted above, the Meyrick has lived in Australia since he was seven years old (see paragraph one above), and has not returned to the United Kingdom since his arrival. He is a relatively young man and there is no evidence that he suffers from any physical health problems. Mr Meyrick stated in his Personal Circumstance Form dated 20 September 2017 that he thinks he will suffer depression if he were to return to his country of citizenship (G22, page 167), however there is no evidence before the Tribunal that he presently suffers from depression or any other mental health condition.
Mr Meyrick has never returned to the United Kingdom and does not know any family members who may live there. After living in Australia for the majority of his life, he would undoubtedly face difficulty in re-establishing himself in the United Kingdom, and the Tribunal accepts that he would have little or no family support, nor other existing social networks, if he were returned there. The United Kingdom does, however, have similar access for its citizens to social security, employment, health services and education.
There is no evidence before the Tribunal as to whether Mr Meyrick and Ms Brook had ever discussed her returning with him to the United Kingdom, should he be required to return.
In relation to the “extent of impediments if removed” consideration, the Minister contended that (R2):
52. Paragraph 14.5(1) of Direction 65 provides that the extent of any impediments to an applicant in establishing themselves and maintaining basic living standards is to be considered in the context of what is generally available to other citizens of that country. The Minister contends that the applicant would have access to the same social, welfare, and medical services and state protection as other residents of the United Kingdom.
53. Whilst the applicant may suffer short term hardship in resettling in the United Kingdom, the Minister contends there are no language or cultural barriers for the applicant to overcome, and there is no evidence that any impediments will be long-term or insurmountable.
54. This factor should therefore be given very little weight insofar as it weighs in favour of revocation.
At hearing Mr Burgess reiterated the Minister submissions extracted at paragraph 142 above (transcript page 88).
While the Tribunal accepts that Mr Meyrick may experience some initial difficulties in establishing himself in the United Kingdom, if removed, the Tribunal finds that as the United Kingdom is culturally and linguistically similar to Australia, and had comparable standards of social, medical and economic support, Mr Meyrick would be entitled to the same level of services as other United Kingdom citizens in similar circumstances.
CONCLUSION
Mr Meyrick does not pass the character test under subsection 501(6) of the Act. This is not in dispute.
The Tribunal has also considered whether there is another reason why the mandatory cancellation decision should be revoked, having regard to the primary and other considerations in Direction No. 65.
The Minister submitted that the factors identified by Mr Meyrick do not singularly or cumulatively support the favourable exercise of the section 501CA(4) of the Act to revoke the mandatory visa cancellation (R2, paragraph 58). The Minister contends that the primary considerations, namely the protection of the Australian community and the expectation of the Australian community strongly weigh in favour of non-revocation and that these considerations are not outweighed by any factors in Mr Meyrick’s favour (R2, paragraph 58). Accordingly, the Minister contends that the delegate’s decision was the correct and preferable one and ought to be affirmed.
In this regard, the Tribunal notes that although primary considerations should generally be given greater weight than other considerations (subparagraph 8(4) of Direction No. 65), both primary and other considerations may weigh in favour of, or against, the exercise of discretion as to whether or not to revoke a mandatory cancellation of a visa (subparagraph 8(3) of Direction No. 65) and one or more primary considerations may outweigh other primary considerations (subparagraph 8(5) of Direction No. 65).
In relation to the primary considerations that the Tribunal must take into account under Direction No. 65, the findings that the Tribunal has made regarding the Protection of the Australian Community (subparagraphs 13.1, 13.1.1 and 13.1.2 of Direction No. 65) and the Expectations of the Australian Community (subparagraph 13.3 of Direction No. 65) weigh strongly in favour of the Tribunal refusing to revoke the cancellation of the visa.
With respect to the primary consideration regarding the best interests of Mr Meyrick’s minor children (subparagraph 13.2 of Direction No. 65), the best interests of Mr Meyrick’s 12 year old daughter are likely to be better served by Mr Meyrick being permitted to stay in Australia. However, the Tribunal is of the opinion that this consideration weighs in favour of revocation of the cancellation of the visa only to a marginal extent and is outweighed by the other two primary considerations. In relation to Mr Meyrick’s infant daughter, the Tribunal notes its finding that her best interests do not weigh either for or against the revocation of the cancellation of the visa.
The Tribunal has also had regard to the relevant “other considerations” and notes its findings in relation to subparagraphs 14.2, 14.4 and 14.5 of Direction No. 65.
Overall, the Tribunal find that having regard to all of the primary considerations and the relevant other considerations required to be taken into account under Direction No. 65, it is not satisfied that there is another reason why the original decision to cancel the visa should be revoked as required by subsection 501CA(4)(b)(ii) of the Act and the correct and preferable decision is not to revoke the mandatory cancellation of the visa.
DECISION
For the reasons outlined above, the decision of the Minister’s delegate dated 21 November 2018 not to revoke the mandatory cancellation of Mr Meyrick’s visa pursuant to subsection 501CA(4) of the Act, is affirmed.
I certify that the preceding 153 (one hundred and fifty-three) paragraphs are a true copy of the reasons for the decision herein of Member L M Gallagher
...........................[sgd].............................................
Associate
Dated: 15 February 2019
Date of hearing: 31 January 2019 Representative for the Applicant: Self-represented Representative for the Respondent: Mr Ashley Burgess
Solicitors for the Respondent:
Sparke Helmore Lawyers
Appendix 1
Court
Court Date
Offence
Offence Date
Court Result
Joondalup Magistrates Court 19 Jul 2017 Being Armed or Pretending to be Armed in a way that may Cause Fear 2 Aug 2015 Imprisonment 6 Months
ConcurrentJoondalup Magistrates Court 19 Jul 2017 Breach of Bail Undertaking 17 Jan 2017 Imprisonment 3 Months
ConcurrentJoondalup Magistrates Court 19 Jul 2017 Breach of Bail Undertaking 3 Jan 2017 Fined $300 Joondalup Magistrates Court 19 Jul 2017 Possession of stolen or unlawfully obtained property 8 Feb 2017 Fined $500 Joondalup Magistrates Court 19 Jul 2017 Steal Motor Vehicle and Drives or Assumes Control without Consent 9 Jun 2017 Imprisonment 6 Months
ConcurrentJoondalup Magistrates Court 19 Jul 2017 Unlawfully Assault and thereby did bodily harm with circumstances of aggravation 2 Aug 2015 Imprisonment 6 Months
CumulativeJoondalup Magistrates Court 19 Jul 2017 Provided false or misleading personal details 2 Nov 2016 Fined $200 Joondalup Magistrates Court 19 Jul 2017 No Authority to Drive – Cancelled 2 Nov 2016 Imprisonment 6 Months Concurrent
MDL Disqualified 9 Months Cumulative
Joondalup Magistrates Court 19 Jul 2017 No Authority to Drive – Suspended 3 Jan 2017 Imprisonment 1 Month
CumulativeMDL Disqualified 9 Months Cumulative
Joondalup Magistrates Court 19 Jul 2017 No Authority to Drive – Cancelled 9 Jun 2017 Imprisonment 1 Month
CumulativeMDL Disqualified 9 Months Cumulative
Joondalup Magistrates Court 19 Jul 2017 Exceed 0.05g alcohol per 100ml of blood: >=0.07g/100ml 3 Jan 2017 MDL Disqualified
Fined $500Joondalup Magistrates Court 19 Jul 2017 No Authority to Drive – Suspended 31 Dec 2016 Imprisonment 1 Month
Cumulative
MDL Disqualified 9 Months CumulativeJoondalup Magistrates Court 19 Jul 2017 Drove or Permitted Vehicle with false plate to be driven 31 Dec 2016 Fined $400 Joondalup Magistrates Court 16 Nov 2016 Breach of Bail 19 Oct 2015 Fined $200 $4000 Joondalup Magistrates Court 16 Nov 2016 Breach of Bail 4 Mar 2016 Fined $4000 $200 Joondalup Magistrates Court 16 Nov 2016 Breach of Bail 21 Sep 2016 Fined $200 $5000 Joondalup Magistrates Court 16 Nov 2016 Carried (possessed) an article with intent to cause fear that someone; 3 Jul 2015 Fined $200 Joondalup Magistrates Court 16 Nov 2016 Possessed drug paraphernalia in or on which there was a prohibited drug or plant. 21 Apr 2016 Fined $150 Joondalup Magistrates Court 16 Nov 2016 No Authority to Drive – Cancelled
2nd or Subsequent Offence3 Jul 2015 MDL Disqualified 9 Months Cumulative
Imprisonment 7 Months 14 Days Concurrent from 19 Jul 2017
Joondalup Magistrates Court 16 Nov 2016 Exceed 0.08g alcohol per 100ml of blood: >=0.14g/100ml 3 Jul 2015 Fined $1600
MDL Disqualified 30 Months Concurrent
Joondalup Magistrates Court 16 Nov 2016 No Authority to Drive – Cancelled
2nd or Subsequent Offence
16 Apr 2016 MDL Disqualified 9 Months Cumulative
Imprisonment 7 Months 14 Days Concurrent from 19 Jul 2017
Joondalup Magistrates Court 16 Nov 2016 No Authority to Drive – Cancelled
2nd or Subsequent Offence
29 Jan 2016 MDL Disqualified 9 Months Cumulative
Imprisonment 7 Months 14 Days Concurrent from 19 Jul 2017
Joondalup Magistrates Court 16 Nov 2016 No Authority to Drive – Suspended
2nd or Subsequent Offence
2 Aug 2015 Imprisonment 6 months Cumulative from 19 Jul 2017
MDL Disqualified 9 Months Cumulative
Joondalup Magistrates Court 16 Nov 2016 Exceed 0.05g alcohol per 100ml of blood: >=0.05g/100ml 2 Aug 2015 Fined $500
MDL Disqualified 8 Months ConcurrentFremantle Magistrates Court 25 Oct 2016 No Authority to Drive – Cancelled 22 Jul 2016 Fined $1200
MDL Disqualified 12 Months Cumulative
Perth Magistrates Court 7 Oct 2016 Possess a prohibited drug (methylamphetamine) 27 Aug 2016 Fined $500 Joondalup Magistrates Court 23 Jul 2012 Steal Motor Vehicle 11 Jan 2012 Fined $2000 Joondalup Magistrates Court 23 Jul 2012 Stealing 11 Jan 2012 Fined $250 Perth District Court of Western Australia 4 Aug 2009 Criminal Damage by Fire Imprisonment 12 Months Cumulative Joondalup Magistrates Court 29 Jul 2009 Breach of ISO (Order of 20.7.07) Imprisonment 1.3 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Breach of Bail Undertaking 30 Jan 2008 Imprisonment 3 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Breach of Bail Undertaking 10 Nov 2008 Imprisonment 3 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Breach of Bail Undertaking 21 Nov 2008 Imprisonment 3 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Fail to Obey Order Given by an Officer 3 Nov 2007 Imprisonment 2 Months
CumulativeJoondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 19 Feb 2008 Imprisonment 4 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 19 Feb 2008 Imprisonment 4 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 29 Dec 2007 Imprisonment 4 Months Cumulative Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 29 Dec 2007 Imprisonment 4 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 29 Dec 2007 Imprisonment 4 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 29 Dec 2007 Imprisonment 4 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 29 Dec 2007 Imprisonment 4 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 29 Dec 2007 Imprisonment 2 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Gains Benefit by Fraud 29 Dec 2007 Imprisonment 2 Months Concurrent Joondalup Magistrates Court 29 Jul 2009 Stealing 19 Feb 2008 Fined $150 Joondalup Magistrates Court 29 Jul 2009 Stealing 29 Dec 2007 Fined $150 Joondalup Magistrates Court 29 Jul 2009 Exceed speed limit in a builtup area; between 10 and 19km/h; Alleged 63 in 50 zone 12 Jul 2008 Fined $150 Joondalup Magistrates Court 29 Jul 2009 No Authority to Drive – Disqualified/Suspended
2nd or Subsequent Offence12 Jul 2008 Imprisonment 4 Months Concurrent
MDL Disqualified 9 Months Cumulative
Joondalup Magistrates Court 29 Jul 2009 No Authority to Drive – Disqualified/Suspended
2nd or Subsequent Offence26 Oct 2008 Fined $1600
MDL Disqualified 30 Months Concurrent
Joondalup Magistrates Court
29 Jul 2009
Drive Under the Influence of Alcohol
26 Oct 2008
Imprisonment 6 Months Cumulative
MDL Disqualified Life - Concurrent
Joondalup Magistrates Court 14 Sep 2007 Stealing 6 Jan 2007 Fined $500 Joondalup Magistrates Court 14 Sep 2007 Stealing 12 Jan 2007 Fined $500 Joondalup Magistrates Court 20 Jul 2007 Breach of Bail 24 Jan 2007 Intensive Supervision Order – 15 Months Joondalup Magistrates Court 20 Jul 2007 Receiving 30 Dec 2006 Intensive Supervision Order – 15 Months Joondalup Magistrates Court 20 Jul 2007 Receiving 1 Jan 2007 Intensive Supervision Order – 15 Months Joondalup Magistrates Court 20 Jul 2007 No Motor Drivers Licence – Under Suspension 21 Sep 2006 MDL Cancelled & Disqualified 2 Years Cumulative
Imprisonment 12 Months
Joondalup Magistrates Court 20 Jul 2007 No Motor Drivers Licence – Under Suspension 19 Oct 2006 MDL Cancelled & Disqualified 2 Years Cumulative
Imprisonment 12 Months Concurrent
Joondalup Magistrates Court 20 Jul 2007 No Motor Drivers Licence – Under Suspension 16 Nov 2006 Imprisonment 4 Months
MDL Cancelled & Disqualified 2 Years Cumulative
Joondalup Magistrates Court 20 Jul 2007 No Motor Drivers Licence – Under Suspension 24 Dec 2006 Imprisonment 4 Months Concurrent Joondalup Magistrates Court 20 Jul 2007 Driving Under the Influence 24 Dec 2006 MDL Cancelled % Disqualified for Life
Imprisonment 4 Months Concurrent
Armadale Magistrates Court 19 Jan 2007 No Motor Drivers Licence – Under Suspension 6 Nov 2006 MDL Cancelled & Disqualified 9 Months Cumulative Perth Magistrates Court 15 Sep 2006 Breach of Bail 31 Aug 2006 Fined $500 Perth Magistrates Court 15 Sep 2006 No Motor Drivers Licence – Under Suspension 7 Apr 2006 Fined $1200
MDL Cancelled & Disqualified 9 Months CumulativePerth Magistrates Court 15 Sep 2006 No Motor Drivers Licence – Under Suspension 30 May 2006 Fined $1200
MDL Cancelled & Disqualified 9 Months CumulativePerth Magistrates Court 15 Sep 2006 No Motor Drivers Licence – Under Suspension 26 Aug 2006 ISO 15 Months
MDL Cancelled & Disqualified 9 Months CumulativePerth Magistrates Court 15 Sep 2006 Excess 0.02%; >= 0.02% 26 Aug 2006 Fined $300
MDL Cancelled and Disqualified 3 Months ConcurrentPerth Magistrates Court 15 Sep 2006 Suspended Imprisonment Sentence Breached 26 Aug 2006 From Imprisonment 9 Months Suspended Sentence 2 Years to ISO 15 Months Joondalup Magistrates Court 1 Feb 2006 No Motor Drivers Licence – Under Suspension 26 Nov 2005 Fined $1000
MDL Cancelled and Disqualified 12 Months Cumulative
Joondalup Magistrates Court 1 Feb 2006 Driving Under the Influence 26 Nov 2005 Fined $2000
MDL Cancelled & Disqualified Life
Joondalup Magistrates Court 27 Sep 2005 Breach of Violence Restraining Order Fined $750 Joondalup Magistrates Court 27 Sep 2005 Unlawful Damage Fined $750 Armadale Court of Petty Sessions 20 Jul 2004 No Motor Drivers Licence – Under Suspension 1 Jul 2004 Imprisonment 9 Months
MDL Cancelled & Disqualified 12 Months Cumulative
Prison release date 3/12/04
Joondalup Court of Petty Sessions 26 Mar 2004 No Motor Drivers Licence – Under Suspension 9 Mar 2004 Imprisonment 4 Months Suspended 12 Months
MDL Cancelled & Disqualified 9 Months Cumulative
Fremantle Court of Petty Sessions 26 Sep 2002 No Motor Drivers Licence – Under Fines Suspension 30 Aug 2002 4 Months Imprisonment Fremantle Court of Petty Sessions 26 Sep 2002 Driving Under the Influence 30 Aug 2002 Fined $2000
MDL Disqualified and Cancelled – Prescribed 2 Years
1 May 2002 Traffic – Demerit Suspension Demerit Suspension – MDL Disqualified 3 Months Joondalup Court of Petty Sessions 13 Feb 2002 No Motor Drivers Licence – Under Fines Suspension 9 Feb 2002 Fined $400 Joondalup Court of Petty Sessions 2 Nov 2002 Excess 0.05%; >=0.07% 30 Oct 2001 Fined $550 Donnybrook Court of Petty Sessions 12 Dec 2000 Damage Fined $200 Bunbury Court of Petty Sessions 19 May 2000 On Prem/Curt without Lawful Excuse From Imprisonment 9 Months Suspended Sentence 2 Years to ISO 15 Months Bunbury Court of Petty Sessions 19 May 2000 Resist Arrest Fined $200 Joondalup Court of Petty Sessions 6 Jan 1999 Assault Public Officer Fined $750 Joondalup Court of Petty Sessions 6 Jan 1999 Disorderly Conduct Fined $200 Joondalup Court of Petty Sessions 21 Oct 1998 Disorderly Conduct 6 Months CBO (Adult) Joondalup Court of Petty Sessions 27 May 1998 Driving Under the Influence 2 May 1998 Fined $1000
MDL Disqualified and Cancelled – Prescribed -12 Months
Joondalup Court of Petty Sessions 27 May 1998 Reckless Driving 2 May 1998 Fined $750
MDL Disqualified 6 Months – Concurrent
Joondalup Court of Petty Sessions 27 May 1998 Fail to Stop When Called Upon 2 May 1998 Fined $200 Perth Court of Petty Sessions 26 Feb 1998 Disorderly Obscene Language Fined $250 Perth Court of Petty Sessions 26 Feb 1998 Resist Arrest Fined $400 Perth Court of Petty Sessions 26 Feb 1998 Street Drinking Fined $100 29 Dec 1997 Traffic – Demerit Suspension Demerit Point Suspension
MDL Disqualified 3 MonthsJoondalup Children’s Court 24 Nov 1995 Excess 0.08% 5 Aug 1995 Fined $300
MDL Disqualified 2 Years
Mr Meyrick’s two minor children.
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12
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