Mitchell and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 967
•29 April 2024
Mitchell and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 967 (29 April 2024)
Division:GENERAL DIVISION
File Number: 2024/0664
Re:Jordan Paul Mitchell
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member S Burford
Date of decision: 29 April 2024
Date of written reasons: 1 May 2024
Place:Perth
The decision of the delegate of the Respondent dated 5 February 2024 not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
....................[Sgd]...................................................
Senior Member S Burford
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No 99 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 27 year old man who arrived in Australia as a 12 year old – ties to Australia – best interests of children – non revocation decision is set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – s 499, 499(1),499(2A), 500(1)(b), 500(6)(b), 501CA(4), 501, 501(3A), 501(6), 501(6)(a), 501(7)(c), 501CA, 501CA(3), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)
CASES
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
De Veyra and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 223 (16 February 2021)
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Jama and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 134 (5 February 2021)
JFSQ and Minister for Home Affairs (Migration) [2019] AATA 616
Khalil and Respondent for Home Affairs [2019] FCAFC 151
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Subasinghe and Minister for Home Affairs (Migration) [2019] AATA 751 (24 April 2019)
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Webb v Minister for Home Affairs [2020] FCA 831
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs, Direction No 90: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (8 March 2021)
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction No 99: Visa Refusal and Cancellation under Section 501 and Revocation of a Mandatory Cancellation of a Visa under Section 501CA (23 January 2023) – paras 2, 3, 4(1), 5.1, 5.1(3), 5.1(4) , 5.2, 5.2(2), 5.2(3), 5.2(5), 6, 7, 7(2), 8, 8.1(1), 8.1(2) , 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(ii), 8.1.1(b)(ii), 8.1.1(d)-(e), (f)-(h), 8.1(2)(a), 8.1(2)(b), 8.1.2(1), 8.1.2(2), 8.1.2(2)(a) 8.1.2(2)(b),8.2, 8.3(1),8.3(2), 8.3(3),8.4, 8.4 (4), 8.4.4(a), 8.4.4(b), 8.4.4(d) 8.4(4)(a)-(e), 8.4(4)(f)-(h), 8.5(1), 8.5(2), 8.5(2)(a)–(f), 8.5(3), 9,9.1, 9.2, 9.2(1)(a),(b),(c), 9.3, 9.4
REASONS FOR DECISION
Senior Member S Burford
1 May 2024
The decision in this matter was made and provided to the parties on 29 April 2024 with a note that written reasons would be provided within a reasonable time. These are those written reasons.[1]
THE APPLICATION
[1] Khalil and Respondent for Home Affairs [2019] FCAFC 151 at [41].
The Applicant seeks review of a decision of a delegate of the Respondent dated 5 February 2024 not to revoke the mandatory cancellation of the his Class BB (subclass 155) Resident Return visa (the visa) under s 501CA(4) of the Migration Act 1958 (Cth) (the Migration Act). The visa was mandatorily cancelled under s 501(3A) of the Migration Act on 21 April 2022.
The application is made pursuant to s 500(1)(b) of the Migration Act which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister made under s 501 of the Migration Act.
BACKGROUND
The Applicant is a 27-year-old citizen of the United Kingdom (UK) who was born in Norfolk.[2] He first arrived in Australia on 30 December 2008 as a 12-year-old accompanying his mother, father and younger brother. He has lived in Western Australia since arriving and has not returned to the UK. The Applicant was granted the visa on 26 April 2017.[3] He married in 2021 and has one daughter who is almost 3 years old. Both his wife and child are Australian citizens.[4]
[2] R1, page 50.
[3] ASFIC.
[4] R1, pages 156, 207.
He left school in 2012 and undertook apprenticeships and trade training before becoming a security guard in 2016.
Between 2016 and 2020 the Applicant was convicted of 15 offences. Details of the Applicant’s offending history as an adult are at Annexure A.
On 16 December 2020 the Applicant was arrested for offences of ‘Unlawfully did Grievous bodily harm to another’ and ‘Assault occasioning bodily harm’. The offences occurred on 13 December 2020. He plead guilty and was held on remand at Casuarina prison from 16 December 2020 to 12 February 2021. On 12 February 2021 the Applicant was released on home detention.[5] On 22 May 2021 he married his now wife and on 31 August 2021 they had their first child, a daughter.[6]
[5] ASFIC, page 3.
[6] R1, pages 156, 226.
On 18 January 2022, the Applicant was convicted in the District Court of Western Australia of both offences and sentenced to a total effective sentence of 3 years and 3 months imprisonment.[7]
[7] R3, pages 125, 128.
On 21 April 2022 the Minister cancelled the Applicant’s visa under s 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of s 501(6)(a) of the Migration Act and was serving a sentence for imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a state or territory (the Cancellation Decision).[8] The Applicant signed acknowledging receipt of that notice on 4 May 2022.[9]
[8] R1, pages 53-60.
[9] R1, page 60.
On 16 May 2022 the Applicant requested revocation of the Cancellation Decision via his representative.[10] According to submissions, on 11 October 2022 the Applicant received a Natural Justice letter from the Department. That letter was not before the Tribunal. Further documents and submissions in support of the revocation request were submitted on 8 November 2022[11] and 23 June 2023.[12]
[10] R1, pages 61-63.
[11] R1, pages 87-267.
[12] R1, pages 268-348.
The Applicant was granted parole on 6 July 2023 and released on 16 July 2023 and taken into immigration detention.[13] He is currently in Yongah Hill Immigration detention centre.
[13] R1, pages 61-63; ASFIC page 1.
According to submissions, on 24 November 2023 the Applicant received notification of a decision dated 23 November 2023 not to revoke his mandatory visa cancellation. As the Applicant had not been invited to comment on the new Ministerial Direction, Direction No 99 made under section 499 of the Act (Direction No 99) (replacing the previous Direction No 90), this decision was deemed invalid.[14] This material was not before the Tribunal, but the submissions on this point were not contested by the Respondent. On 27 November 2023 the Applicant was invited to comment on Direction No 99, in the context of his request for revocation. That invitation is not before the Tribunal. The Applicant made further submissions and provided information in support of his request for revocation, and addressing Direction No 99 on 12 January 2024.[15]
[14] ASFIC, page 4.
[15] R1, pages 349-409.
On 5 February 2024, a delegate of the Minister decided, under s 501CA(4) of the Migration Act, not to revoke the Cancellation Decision (the Non-Revocation Decision).[16] This is the reviewable decision before the Tribunal.
[16] R1, pages 16-33.
The Applicant was notified of the decision by email to his representative on 5 February 2024.[17] No signed acknowledgement of the notification was before the Tribunal however it was not in dispute that the Applicant received the notification on the same day.[18]
[17] R1, G3, page 5.
[18] ASFIC page 4.
The Applicant lodged his application for review of the Non-Revocation Decision on 6 February 2024. The Tribunal is satisfied that the application was lodged within time, pursuant to s 500(6B) of the Migration Act.
ISSUES
The issues before the Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
It is not disputed that the Applicant does not pass the character test by virtue of section 501(6)(a) of the Act (as read in conjunction with the definition of “substantial criminal record” in section 501(7)(c) of the Act) or that he made representations within the relevant period.[19]
[19] ASFIC page 4; RSFIC.
In deciding whether there is ‘another reason’ why the Cancellation Decision should be revoked, the Tribunal must have regard to Direction No 99, insofar as the considerations are relevant.
It was common ground between the parties that the Family Violence, Legal Consequences, Impact on Victims and Impact on Australian Business Interests considerations in Direction No 99 do not arise for consideration on the facts of this case.[20] The Tribunal accepted that those considerations did not arise as relevant to the Applicant’s circumstances.
[20] ASFIC, paras [118]-[119], [176], [182], [183]; RSFIC.
For the reasons below, the Tribunal has decided that the correct and preferable decision is that the Non-Revocation Decision be set aside and substituted with a decision that the cancellation of the Applicant’s visa is revoked under s501CA(4)(b)(ii) of the Migration Act.
THE HEARING AND THE EVIDENCE
The hearing was held on 18 and 22 April 2024 at the Tribunal’s Perth Registry. The Applicant attended the hearing in person and was represented by Jasmin Angel of Estrin Saul Lawyers & Migration Specialists who appeared in person. The Respondent was represented by Ms Madisen Scott of Australian Government Solicitors who also appeared in person.
At the hearing, the Applicant made submissions, gave evidence and was cross-examined.
The Tribunal also took evidence from the Applicant’s mother, Mrs Mitchell, his father, Mr Mitchell, and his wife, Ms Mitchell, and from Dr Sheridan, a Forensic Psychologist who provided several reports addressing the Applicant’s risk or likelihood of reoffending and prospects for rehabilitation.
The following documents were marked as exhibits:
·Applicant’s Bundle of Documents comprising pages 1-26 (Exhibit A1);
·Section 501G Documents labelled G1-G7, comprising of pages 1-348 (Exhibit R1); and
·Redacted Summons Bundle Labelled 1(A)-(E) and 2(A)-(G), comprising of pages 1- 128 (Exhibit R2).
In accordance with Tribunal directions the Applicant filed a Statement of Facts, Issues and Contentions dated 11 March 2024 (ASFIC) and the Respondent filed a Statement of Facts, Issues and Contentions dated 7 August 2023 (RSFIC). The Applicant filed a Response to Respondent’s Statement of Facts, Issues and Contentions on 10 April 2024 (Response).
LEGISLATIVE FRAMEWORK
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain incarcerated persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A), the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[21] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked. Making a revocation decision under s 501CA requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[22]
[21] Migration Act s 501CA(3).
[22] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
Direction No 99
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[23] By reason of s 499 (2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[23] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 23 January 2023, the Minister made Direction No 99 under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90.[24]
[24] Direction No 99 paras 2-3.
An objective of Direction No 99 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[25] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No 99 where relevant to the decision.[26]
[25] Direction No 99 para 5.1(4).
[26] Direction No 99 para 6.
Paragraph 5.1 of Direction No 99 sets out objectives including para 5.1(3) which provides that:
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 fulltime 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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 99 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian Community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) [27](Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
[27] As there is no para 8.55(2) the Tribunal infers this is a reference to 8.5(2).
Informed by the principles set out in para 5.2 of Direction No 99, the Tribunal must take into account the primary considerations listed in para 8, and the other considerations listed in para 9, where relevant having regard to the specific circumstances of the case, in deciding ‘whether to revoke the mandatory cancellation of a non-citizen’s visa’.[28]
[28] Direction No 99 para 6; see also the definition of ‘decision-maker’ in para 4(1) of Direction No 99, which includes the Tribunal.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[29]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[29] Direction No 99 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[30]
(a) legal consequences of the decision;
(b) extent of impediments if removed;
(c) impact on victims; and
(d) impact on Australian business interests.
[30] Direction No 99 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in para 7, which provides that:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S OFFENDING HISTORY
The Applicant’s record of criminal offending in Australia commenced in 2016. The bulk of his offences occurred between late 2018 and late 2022. A detailed table of his offending history is at Annexure A.
The Applicant has been convicted of a number of offences including:[31]
·violence or violence related and weapons offences: Assault occasioning bodily harm (2019), Possessed a Prohibited Weapon (2 counts) (2020), Unlawfully did Grievous bodily harm to another (2022) and Assault occasioning bodily harm (2022);
·driving and traffic related offences: Careless Driving (2019), Exceed 0.08g alcohol per 100ml of blood (2019);
·drug offences: Possess a prohibited drug (cannabis) (2016), Possess a Prohibited Drug (MDMA) (2019), Possession of Prohibited Drug (Cocaine) (2 counts) (2020), Unlawfully possessed a Controlled or Prescription Drug (2021); and
·offences involving public officers, police orders and court orders or sentences: Assault Public Officer (2019), Assault Public Officer (2020), Obstructing Public Officers (2020).
[31] R1, pages 37-38, 131-141 (Applicant’s statement); R2, pages 1-2.
Prior to the 2022 convictions, the Applicant had received fines and a licence disqualification for his offences.
For the 2022 ‘Unlawfully did Grievous bodily harm to another’ offence (the grievous bodily harm offence) he received a term of imprisonment of two years and six months. He received a term of nine months’ imprisonment for the ‘Assault occasioning bodily harm’ offence (the 2022 assault offence).[32] In connection with those convictions, he was also made the subject of a lifetime violence restraining order for the protection of the victim of the grievous bodily harm offence.[33]
[32] R1, pages 37-38, 39-46.
[33] R2, pages 48-49.
The nature and seriousness of the Applicant’s offending and other conduct is considered further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Failure to pass the character test arises as a matter of law.[34]
[34] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[35]
[35] Migration Act s 501(7)(c).
The Applicant accepts he does not pass the character test.[36]
[36] ASFIC.
As noted above, on 18 January 2022, the Applicant was convicted in the District Court of Western Australia of the ‘Unlawfully did Grievous bodily harm to another’ and ‘Assault occasioning bodily harm’ offences. He received a term of imprisonment of two years and six months for the grievous bodily harm offence and nine months imprisonment for the 2022 assault offence leading to a total effective sentence of 3 years and 3 months imprisonment.[37]
[37] R1,37-38, 39-46.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[38]
[38] See Migration Act s 501CA(4)(b)(i).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No 99, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[39]
[39] s 501CA(4)(b)(ii) of the Migration Act.
The Applicant submitted, in summary. that that the Cancellation Decision should be revoked for the following reasons:[40]
·the best interests of his minor Australian citizen child in Australia;
·his ties to Australia having resided in Australia since he was 12 years old, a period of over 15 years and more than half his life;
·the impact on his family members in Australia if he were removed including his two-year-old Australian citizen daughter, his Australian wife and his permanent resident mother who is experiencing health complications;
·he completed his schooling and was present in Australia during his formative years;
·he has no ties to any other country in the world, and has not been back to the UK since he was a child;
·his low risk of reoffending due to his ongoing rehabilitation; and
·his understanding that any future offending would jeopardise his future in Australia with his family.
[40] ASFIC.
The Respondent submitted, in summary, that the considerations weighing against the Cancellation Decision being revoked and outweigh those considerations weighing in favour of revocation noting:
·the Applicant’s significant criminal record which weighs heavily against revocation;
·the risk to the Australian community is significant noting the serious harm which would be caused if the Applicant were to reoffend and an ongoing likelihood he will reoffend given his commitment to rehabilitation has not been tested in the community;
·although the Applicant’s family ties to Australia and ties through having spent his formative years here are acknowledged the support offered by those connected to the Applicant should be considered in the context of the violent nature of his offending;
·the best interests of the Applicant’s daughter weighs heavily in favour of revocation. However, the interests of other children mentioned (the Applicant’s niece and cousin) should be afforded limited weight;
·given the nature of the Applicant’s offending and in particular violent offences against women and public officials, the Australian community would expect the Applicant’s visa to remain cancelled and should be afforded significant weight;
·the Applicant does not face insurmountable impediments to removal noting his trade skills and reintegration services available in the UK.
Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community. Direction No 99 requires decision-makers to keep in mind 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. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[41]
[41] See also Direction No 99 para 8.1(1).
Paragraph 8.1(2) of Direction No 99 then provides that decision-makers should also give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date.[42] In doing so, paragraph 8.1.1(1) of Direction No 99 provides that the Tribunal must have regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. The Tribunal notes that while the Direction expressly provides categories of conduct to be considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[43]
[42] Direction No 99 para 8.1(2).
[43] Direction No 99 para 8.1.1(1)(a) and See also Direction No 90 para 8.1(2)(a).
The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’. Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women, without limiting the range of conduct that may be considered to be very serious.
With respect to this consideration the Applicant:
·acknowledged that violent offences are serious, particularly offences involving women noting however that he has never committed an offence of a sexual nature, involving family violence or against vulnerable members of the community such as the elderly or disabled.
·acknowledged that he failed to declare his conviction from 9 December 2016 on two incoming passenger cards dated 14 August 2018 and 16 February 2018[44] claiming that he misinterpreted the question and as he was only fined. The Applicant did not realise this qualified as something which needed to be declared.[45]
·noted that prior to his visa cancellation on 21 April 2022, he had not received any formal warning from the Department.
·noted that since being in immigration detention, he has not committed any offences.
[44] R1, pages 51-52.
[45] R1, page 134.
The Applicant acknowledged that the seriousness of his offending must weigh against revocation but submitted he presented a very low risk of reoffending and this consideration should be given minimal weight. It was submitted this consideration was outweighed by other considerations including the best interest of the Applicant’s daughter.
The Respondent contended that that the nature and seriousness of the Applicant’s offending was very serious having regard to:
·his extensive record of offending which was significant;
·the repetitive nature of the offences demonstrating a disregard for the law and the safety of the community;
·the consistent pattern of offending which also showed a trend of increasing seriousness;
·the 2022 offences were a violent and included a violent assault against a woman, as such they must be regarded as very serious;
·while other violent offences could be regarded at the lower end of for that type of offending they were still very serious noting that two of those offences were against police officers;
·the Applicant also has a significant history of drug offences and the circumstances of the Applicant’s driving offences including careless driving associated with driving over the limit should be considered serious;
·the Applicant failed to declare convictions on an incoming passenger cards which should weigh ‘lowly-moderately’ against him.
The Respondent contends the nature and seriousness of the Applicant’s offending weighs heavily against revocation.
The 2022 convictions were the Applicant’s most significant offences to date, reflected in his sentence of 3 years and 3 months imprisonment. The offending giving rise to the convictions occurred on 13 December 2020 when the Applicant attended the Byford District Country Club with 5 friends.[46] During the evening, an exchange of words between another patron, Mr S, and a member of the Applicant’s group, Mr K occured.[47] Mr K attempted to punch Mr S. Mr S’s partner, Ms W, and another female interposed themselves between Mr S and Mr K.[48] Mr S and Mr K moved to a different area where they again prepared to fight.[49] Ms W and the other female again tried to stop the fight standing between the men.[50]
[46] R1, page 40; R2, page 58.
[47] R1, page 41; R2, 59.
[48] R1, page 41; R2, 59.
[49] R1, page 41; R2, 59.
[50] R1, page 41; R2, 59.
The sentencing judge described what happened from that point as follows:[51]
[The Applicant] came over. Ultimately, [Ms W] pushed [Mr K] and then [The Applicant], away.
[The Applicant] turned and pushed [Ms W] back and Mr S then moved towards [The Applicant] and swung - moved towards [The Applicant]. From viewing the CCTV footage, [Mr S] then swings at [The Applicant], a punch that seems to land, and then [The Applicant] swung a punch at his face.
[Mr K] then picked up another bar stool and flanked [Mr S] with it, and [Mr S] attention turned to [Mr K].
[The Applicant] approached [Mr S] from the side and through a head high punch at him, and [The Applicant] both briefly wrestled while [The Applicant] were on your feet. At this point, you bit [Mr S] left lip and ripped it off. [The Applicant] then brought him to the ground and repeatedly punched him. When he got up, he was wiping his mouth and bleeding profusely from his mouth. It’s the injury to his lip which constitutes what’s called grievous bodily harm.
The fight ultimately became a melee between all of the people there. [Ms W] was attacked and ultimately while she was bent forward, you took hold of her on the back for forcefully uppercut her to the left side of her face with a closed fist. She suffered significant bruising to the left of her face and a cracked molar.
Now, without medical treatment, [Mr S] injuries would have led to permanent injury to health, including significant scarring, difficulty with eating, impaired speech, poor oral hygiene and cosmetic problems.
[51] R1, page 41.
With respect to the victim’s injuries the sentencing judge noted:[52]
The ongoing effect of his injuries is set out in his victim impact statement which has been provided for this sentencing.
Since the incident, he's not been able to eat without a napkin, and he finds it hard to drink from a cup and difficulty eating. Also, he was a recreational pig hunter but can no longer whistle for his dogs. He describes a feeling of uselessness and that he has distanced himself from friends due to embarrassment from the scars and shame he felt for not being able to stop the attack.
He also finds is hard to concentrate and feels nervous to go out, and experiences anxiety and depression. This has also impacted on his employment and he lost business while in hospital and recovering from the attack on him.
[52] R1, pages 41-42.
The other victim, Ms W, was left with a split tooth causing severe pain and requiring several treatments including surgery.[53]
[53] R1, page 42.
The sentencing judge noted with respect to mitigation that the Applicant had plead guilty though ‘not at the first available opportunity’.[54] He also considered that the Applicant had engaged in rehabilitation while on bail and that there was ‘a late appreciation of remorse’.[55]The sentencing judge also noted his youth was a factor but not a significant one.[56]
[54] R1, page 44.
[55] R1, page 44.
[56] R1, page 45.
The sentencing judge assessed the Applicant’s risk of reoffending to be moderate taking into account the positive steps he had taken towards rehabilitation at that time.[57]
[57] R1, page 45.
The Tribunal notes it is required, pursuant to Direction No 99, to take into account a range of factors, including certain conduct which is to be regarded as ‘very serious’ or ‘serious’. Relevantly, the Tribunal is to have regard to whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women, without limiting the range of conduct that may be considered to be very serious.
The Tribunal accepts the Minister’s contention that these offences must be viewed ‘very seriously’. Both offences are clearly offences of violence, and the assault against Ms W constitutes a crime of a violent nature against a woman.[58]
[58] Direction No 99 para 8.1.1(1)(a)(i) and (ii).
Further, the sentencing judge noted that the offence against Mr S was ‘a serious example’ of the offence of grievous bodily harm and noted the brutality of the attack and the harm caused to the victims.[59] While the Applicant had characterised the bite as a defensive mechanism the sentencing judge was satisfied that the purpose had been to injure the victim as part of an ongoing assault.[60]
[59] R1, page 43-44.
[60] R1, page 43; Transcript, page 25.
The sentencing judge found that while the harm to Ms W was not as significant as that caused to Mr S, she was defenceless, and the punch was ‘a completely unnecessary act’.[61]
[61] R1, page 44.
Having regard to the Applicant’s circumstances the Tribunal also considers that the sentence of imprisonment imposed by the court for the Applicant’s offence reflected the objective seriousness of the offence.[62] The sentencing judge noted that in view of the seriousness of the offending a sentence of imprisonment was the only appropriate sentence for each offence.[63] The Tribunal considers the length of the sentencing adds to the seriousness with which the offences should be regarded.
[62] Direction No 99 at par 8.1.1.1(1)(c).
[63] R1, page 45.
As noted above, the 2022 offences were not the Applicant’s only offences. The Applicant had three prior assault convictions, including two against public officers. These offences occurred between 2017 to 2019. The 2019 ‘Assault Occasioning Bodily Harm’ offence occurred in September 2017 when the Applicant was at a nightclub. The victim was a security officer. Records indicate that following an altercation with the guard in which he pushed and punched the guard the Applicant turned his head and bit the victim on the left shoulder/top of his left arm and punched the victim multiple times to the head as he was being removed from the nightclub.[64] The Applicant was convicted and fined $1,600 for that offence.
[64] R2, page 19.
The 2019 ‘Assault Public Officer and Obstructing Public Officers’ offences occurred in November 2018 while the Applicant was working as a security guard at a 'leavers’ event. The statement of material facts indicates that the Applicant was approached by police on suspicion that he had consumed and was in possession of prohibited drugs.[65] The Applicant struggled with 2 police officers when they placed him under arrest. In the wrestle, the Applicant bit through the gloves of one of the police officers, and had pierced the first layer of skin causing bruising and swelling to his right hand, and required medical attention to sterilise the area of the bite.[66] The Applicant was convicted and fined $3,000 for the assault offence and $750 for the obstruction offence. He was charged and convicted for possession of MDMA arising out of the same incident and was fined $1000.
[65] R2, page 13.
[66] R2, page 14.
The Applicant claimed that he was merely carrying the confiscated drugs to his supervisor and that he was defending himself from police when these offences occurred.[67] However, he also acknowledged he was under the influence of drugs at the time and could not properly recall the events. In any event the Tribunal notes the drugs were found in his pocket which seems unlikely to have been a standard procedure applying in the event illicit drugs were confiscated by security at the event. As such the Tribunal does not accept that as an explanation for the offence such as might mitigate its seriousness.
[67] Transcript, pages 19-20.
The 2019 ‘Assault Public Officer’, offence occurred on 8 November 2019 when the Applicant became angry and abusive towards the police, and pushed the police officer.[68] He was convicted and fined $1,000.[69]
[68] R2, page 35.
[69] R2, page 35.
The Applicant also has two convictions for possessing a prohibited weapon. These offences occurred on 18 October 2019, and relate to the Applicant being found in possession of an electric shock device and expandable baton.[70] He was fined with respect to these offences.
[70] R2, page 23.
In addition to violence and weapons offending the Applicant has been convicted of a number of drug-related offences for which he was fined. The Respondent noted that this offending increased in seriousness, with his first illicit drug offence involving less than 1 gram of cannabis, to his third illicit drug offence involving 4.11 grams cocaine.[71]
[71] R2, page 22.
He also had a number of driving offences relating to an incident in October 2019, when he was driving a vehicle and fell asleep. He crossed to the incorrect side of the road, drove along the grass verge and then struck a large wooden power pole snapping it in half. He was subsequently convicted of ‘Careless Driving’ and ‘Exceed 0.08g alcohol per 100ml of blood’ and given a $1,000 fine and suspended from driving for 6 months.[72]
[72] R2, page 32.
The Applicant submitted these offences were ‘minor’ as they only attracted fines. While individually the Tribunal accepts those offences were at the lower end of serious, the Tribunal considers they do contribute to the overall assessment of the Applicant’s conduct and offending as serious noting they include repeated acts of violence, including against police officers,[73] repeated instances of biting and repeated instances of possession of a range of illicit drugs. The offences demonstrate a general disregard for the law and for the safety of others, including in particular the drink driving and careless driving offences. The Tribunal considers the offending record demonstrates an escalating anti-social behaviour in the company of anti-social peers and increasing reliance on drugs and alcohol which was admitted by the Applicant.
[73] Direction No 99 para 8.1.1(b)(ii).
With regard to the frequency of offending or whether there is any trend of increasing seriousness and whether there was any cumulative effect of repeated offending, [74] the Tribunal considers that the Applicant’s offending was marked by relatively frequent offending since becoming an adult. That offending escalated to the serious violent offending for which he was imprisoned. Further, his drug offending increased in seriousness and frequency, reflecting what he acknowledged was a growing use of prescription and illicit drugs. His offending cumulatively required relatively frequent police and court interventions. In the Tribunal’s view frequency and escalating seriousness of the Applicant’s offending contributes to an assessment of his conduct as serious.
[74] Direction No 99 at para 8.1.1(d)-(e).
The material before the Tribunal indicates that the Applicant failed to declare his convictions on his passenger cards dated 16 February 2018 and 14 August 2018.[75] The Applicant answered ‘no’ to the question ‘Do you have any criminal convictions?’ on both occasions.[76] The Applicant completed these passenger cards after he had been convicted for possession of cannabis on 9 December 2016.
[75] R1, page 20.
[76] R1, pages 51-52.
The Applicant accepted he had failed to declare convictions and apologised. He indicated he claims that he misunderstood and did not think the cannabis conviction needed to be declared as it only carried a fine.[77] While this failure does not weigh in the Applicant’s favour, the Tribunal considers it was a relatively minor instance of the sorts of behaviour contemplated by this part of the Direction and the Tribunal does not consider it contributes to the overall assessment of the Applicant’s conduct and offending which the Tribunal has already found to be very serious and weighs against revocation.
[77] R1, page 134.
The other considerations in para 8.1.1 do not appear to apply in the Applicant’s case on the material before the Tribunal.[78]
[78] Direction No 99, paras (f)-(h).
The Tribunal considers that the Applicant has been convicted of a series of offences including two violent offences for which he received sentences of imprisonment. Overall, the Tribunal finds that the nature of the Applicant’s offending is very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community (including individuals, groups or institutions) should the Applicant commit further offences. In considering the need to protect the Australian community from harm, paragraph 8.1.2(1) of Direction No 99 requires the Tribunal to have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It directs that 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.[79]
[79] Direction No 99 para 8.1.2(1).
Paragraph 8.1.2(2) relevantly provides that in assessing the risk that may be posed by the non-citizen to the Australian community, the Tribunal 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:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[80] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[81]
[80] Direction No 99 para 8.1.2(2)(a).
[81] Direction No 99 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[82]
[82] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
The Applicant acknowledged that should he engage in further criminal or other serious conduct, future offending may result in other road users being placed at risk, or that physical harm may be caused to an individual in the community. However, while potential harm is serious there was a low or very low likelihood of the Applicant reoffending and as such the risk to the Australian community is not unacceptable.[83]
[83] ASFIC page 7.
The Respondent submitted that the nature of harm which would be caused if the Applicant were to reoffend was significant and included serious physical and psychological harm. While the Applicant’s efforts at rehabilitation were acknowledged these were untested in the community and the material identified ongoing treatment needs which the Tribunal was unable to ensure would be undertaken. This creates an ongoing risk which, in light of the harm which would be caused, remains significant.[84]
Nature of the harm
[84] RSFIC.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals, or the Australian community should the Applicant reoffend.[85]
[85] Direction No 99 para 8.1.2(2)(a).
The Applicant committed violent offences which caused significant injuries. The impact on his victims was detailed above. One victim’s injuries required hospitalisation and ongoing disfigurement. The Applicant also acknowledged his conduct caused harm to the victims which he regrets. If the Applicant were to commit further violent offences serious physical and psychological harm could be caused to members of the community.
He has also been convicted of careless driving and driving under the influence. Driving offences of this type place other road users at risk of physical injury and damage to property, undermining road safety.
The Applicant’s drug offending was relatively minor. However, if the Applicant were to reoffend through further drug possession, this would cause physical harm to him as a drug user in the form of the health impacts of drug use, and financial costs to the community from the associated law enforcement costs.
The Tribunal considers the harm which would be caused if the Applicant were to reoffend is very serious.
Risk of Reoffending
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[86]
[86] Direction No 99 para 8.1.2(2)(b).
The Applicant contends he will not reoffend. It was contended that he presents a very low risk of reoffending for the following reasons:[87]
[87] ASFIC, pages 8-16; Response, pages 1-2.
·he is remorseful, which was accepted by the sentencing judge;
·he has undertaken significant rehabilitation in prison including a privately funded 12 week program with The Whitehaven Clinic. His efforts were acknowledged when his parole was approved in June 2023 and Dr Sheridan has assessed him to be a low risk of reoffending. He has a plan to continue treatment in the community;
·he has recorded good behaviour in prison and detention;
·he and has a positive plan for employment and starting his own business, including initially engaging in FIFO work through his father where regular drug testing is required;
·he has remained drug and alcohol free in prison and detention, including while under significant stress.
·he has converted to Islam which has given him spiritual strength and which does not permit substance use.
·he is committed to supporting his wife and young daughter;
·he has strong community support including through his parents who are now better able to support him and access support themselves.
·he now understands the impact offending would have on his visa status and on his family.
The Respondent acknowledged the Applicant’s efforts at rehabilitation. However the Respondent noted the sentencing judge assessed the Applicant to present a ‘moderate risk of reoffending’ having taken into account his rehabilitation undertaken in home detention.[88] The Respondent acknowledged Dr Sheridan assessed the Applicant presents a low risk of reoffending but noted the Applicant’s sobriety was untested in the community and that Dr Sheridan identified ongoing treatment needs including further intensive drug rehabilitation.[89] Further, the Applicant’s employment and business goals of becoming a personal trainer would see him involved in activities which had previously been a trigger for his substance abuse, including the introduction to steroid use. This presents an element of risk.
[88] RSFIC, page 10; R1, page 45.
[89] A1, pages 21-23.
The Applicant testified that he is remorseful and that he has made efforts to deal with his addiction issues and to develop an understanding of the drivers of his substance abuse and offending. In answer to a question regarding why the Tribunal should be confident he will not reoffend the Applicant stated:[90]
With what I’ve put my family through and what I’ve put the victims through and everything else, and I’ve had time to sit back and reflect on everything and the outcome of it, I’m not going to fail. I’m not going to let anyone down. I’m a changed man, and I just want to have the chance to prove to everyone that that’s the case. I’m a married man now. I’m a father. I’ve seeked religion. I’ve addressed my mental health. I’ve been equipped with all these new skills that I am able to take on any task and anything, and I will conquer it.
[90] Transcript, page 32.
The Applicant has completed a range of rehabilitation programs to address substance use and addiction and anger management including:[91]
·Alcoholics Anonymous and Narcotics Anonymous meetings during his imprisonment:[92]
·privately funded addiction treatment through The Whitehaven Clinic:[93]
·Alternatives to Violence program:[94]
·Anger Management Course (WA);[95]
·SMART Recovery;[96]
·Alcohol and Other Drugs (AOD) counselling; and[97]
·Domestic violence treatment readiness program.[98]
[91] R1, pages 116-130, 276- 285, 290, 395-405.
[92] R1, page 290.
[93] R1, pages 120-130.
[94] R1, pages 137, 276.
[95] R1, page 398.
[96] R1, page 395
[97] R1, page 281.
[98] R1, page 285.
There was evidence he had made inquiries regarding programs he would move to complete in the community, though it was not clear which of these he intended to pursue.[99] There was evidence that he has passed random drug tests in prison.[100]
[99] R1, pages 277, 279, 280, 282-284.
[100] R1, page 275
There was evidence before the Tribunal from The Whitehaven Clinic (Whitehaven) with whom the Applicant undertook one-on-one specialised drug and alcohol counselling while in prison and had undertaken additional modules on ending patterns of violence and addiction recovery though the clinic while in prison.[101]
[101] R1, pages 120-130.
Dr Sheridan provided two reports in which she gave an assessment of the Applicant’s rehabilitation and risk of reoffending. In her updated psychological assessment dated 6 March 2024 Dr Sheridan explains that the Applicant’s offending was ‘principally fuelled by illicit drug use’[102] and that the Applicant is ‘attempting to maintain a positive mindset and… distracting himself with physical exercise’ and that she considers that the Applicant presents a low reoffending risk.[103] Dr Sheridan notes that the Applicant’s future rehabilitation largely depends on him avoiding illicit drugs and recommends intensive drug rehabilitation.[104]
[102] A1, page 4.
[103] A1, page 4.
[104] A1, page 4.
The Respondent submitted that while the Applicant may enjoy the support of family and friends, and have employment options available to him, these supports minimally impact on his risk of reoffending because the key factor affecting the Applicant’s risk of reoffending is his ability to abstain from using illicit drugs and alcohol and he had been ‘disinclined’ to accept the assistance of his parents when he was under the influence of drugs and alcohol,[105] and was able to hide (successfully) his addictive behaviours from his family.[106]
[105] R1, pages 132, 141; ASFIC.
[106] R1, pages 138, 210, 239, 245, 249; Transcript page 39.
The Tribunal asked Dr Sheridan about this issue at the hearing. Her response to the Tribunal’s concern that the Applicant was relying on the same pro social supports which had proved ineffective in the past at deterring his offending she responded:[107]
Senior Member: What is your assessment of those [Pro social supports] in terms of the capacity to work differently going forward to deter offending or drug use?--- - - -
Dr Sheridan: I see them as - positive at the minute because he, [The Applicant], does seem to me to be genuine when he says he wants to make it up to people. Because, you know, that final offence, by anybody’s admission, including his, was very very severe. And, you know, a lot of the people who that are very important and his wife, needs them in his life to witness that. So there’s a huge amount of shame around that. But what I think what’s good is that he’s been in two different places locked up over the past couple of years, but that support has not waned, as far I know, things could have changed since I spoke to him last month. But I see it as very important because amends have to be made. You know, and I do feel from his presentation and his testing results that he wants to make amends. And what’s better is, he seems to have picked up on the relationship with his mother, whereas he pushed his parents away for a long time when he was a younger person. And he seems to have opened the door to that, which again, brought a lot of shame. Because when I first saw him, you know, he was a bit, m’mm, about his parents – relationship with his parents. You know, it seemed reasonable but somewhat distant, which surprised me, you know, because his mum seemed to be pushing for the assessments, pushing to help him. But I think long term what he’d done is basically, he just couldn’t admit to himself what he’d done to his parents, so he just – because he had a lot of long-term pain. But by the second time I saw him, he said he was much much closer to his parents. I mean, he said it initially at the first one, but at the second assessment, he seemed to have broken down a lot of the barriers, let out that emotion and allowed himself to feel very very sorry and face up to what he’d actually done to his parents, which I imagine was quite a difficult thing to do. So I’m glad that he did that for the sake of his mum, not that I know her or anything, you know, but – it’s just – I’m glad that he was able to break through that and make that full admission that, ‘Yes. I gave my parents a lot of pain over the years. And I’m ready to look them in the eye and do something about it.’ So I thought that was positive.
[107] Transcript page 63.
The Applicant indicated that he has cut ties with anti-social peers, though the Tribunal has some concern regarding the fact his worst violence offending occurred when he was in the company of Ms Mitchell, her sister and his brother-in-law noting the sentencing judge’s comments that the offences arose in a general ‘melee’ between the Applicant’s social group and another group at the bar. The Applicant told the Tribunal that he had ceased associating with the two members of his group that were not family however in the Tribunal’s view presence of his wife and in-laws creates some ongoing concern about their ability to be a prosocial support for the Applicant.[108] However, the Tribunal notes Applicant maintains his family members were innocently caught up in the fight and that he regrets involving them. On balance and noting Dr Sheridan’s assessment that Ms Mitchell’s relationship and that of her family are a protective factor against reoffending the Tribunal accepts their influence will be positive in the future.
[108] Transcript pages 30-31.
The Applicant’s parents acknowledged that they failed in the past to curb the Applicant’s drug use and offending behaviour. It is clear that they feel some responsibility in this regard. Mr Mitchell testified that they have worked on their relationship with their son and reached out to their own support networks to ensure they have support to identify risk factors going forward and to access help where needed.[109] The Tribunal considers they have demonstrated this commitment through ensuring the Applicant had access to treatment through Whitehaven continuing to support his wife and daughter during his incarceration and making plan to support his employment in the community.[110] The Tribunal considers the fact the Applicant has their support and will be living with them at least initially, this will provide a protective factor going forward which was acknowledged to be absent in the past.
[109] Transcript page 39.
[110] ASFIC page 12.
The Respondent accepted that the Applicant now has a child, has converted to Islam and has employment prospects, and that these may serve to mitigate his risk of reoffending.[111] However, balanced against this is Dr Sheridan’s assessment that the Applicant has an ‘all or nothing approach’,[112] the Respondent submitted that ‘if the applicant is to ‘slip’ in his abstinence this begs the question as to whether he will quickly reengage in behaviour that puts members of the Australian community at risk’.[113]
[111] RSFIC.
[112] R1, page 149.
[113] RSFIC, page 11.
The Tribunal accepts the submission in part. Dr Sheridan assessed the Applicant to have personality traits that contributed to his substance abuse and acknowledged those remain a factor that requires ongoing treatment to improve his ‘resilience’ by which the Tribunal understood her to mean his capacity to maintain sobriety and not to resort to alcohol and other drugs.[114] Balanced against this Dr Sheridan expressed the view that the Applicant had developed a degree of resilience already through his program interventions for drug and alcohol use and anger management and increasing insight into his personality traits that acts as a strong protective factor when combined with his sense of identity around his young family and role as a father, faith in Islam, membership of Ms Mitchell’s extended family and his improved relationship with his own parents. In such circumstances she assesses he presents a low risk of relapse into drug use and to the offending which arose from that drug use, although she assessed that further intensive drug rehabilitation is required to improve resilience.[115]
[114] Transcript pages 56, 58-60.
[115] Transcript pages 55-56; R1 page 151.
The psychology treatment reports were generally positive in terms of prospects for rehabilitation and the risk of reoffending.
The Whitehaven report (prepared in the context of parole) noted that:[116]
The work that [The Applicant] has done with me shows that he is capable of changing his future direction should he choose. He has demonstrated insight into his past actions and why he does what he does. He is aware of his psychologically based fears and triggers and understands the benefits of staying emotionally and mentally healthy.
Since initial engagement I have seen progress in [The Applicant]’s growth and capacity for change. One of the biggest realisations for [The Applicant] was understanding the underlying cause of his drug use and the impact of anxiety and anger on his mental health – and working through this to develop strategies to deal with triggers on a day-to-day basis.
[The Applicant] has developed an understanding of how his anxiety and avoidance of processing anger contributes to his drug use and violent behaviour. This self-awareness, combined with an ongoing focus on maintaining emotional and mental healthiness, will continue to provide a solid platform from which to make the necessary changes to improve his quality of life in a sustainable way without resorting to drug use or violence.
[116] R1, pages 129-130.
In her first report Dr Sheridan’s conclusion was as follows:[117]
Since being free of substance abuse and since engaging in intensive counselling, [The Applicant] has developed an appreciation of the point of view of other people and an understanding of potential red flags for substance use and also anger and other unhealthy behaviours. House arrest and prison have forced [The Applicant] to take responsibility for others and himself and consider the consequences of his actions. He now has a routine and is able to self-care in a healthy manner and he said that his mind is now quiet, that he has processed years of trauma, and that he has clarity. [The Applicant] has a tailored relapse plan that he will employ if he is ever tempted to use substances again. His conversion to Islam appears to be genuine. Another important factor that could serve to protect [The Applicant] against reoffending is his family. [The Applicant] said that he is very close to his in-laws and that he is looking forward to outings with them that include camping, the beach, communal dog walking, jet skiing, and getting the babies together. [The Applicant]’s close family circle (a sisters-in-law, his wife’s cousin and his wife’s best friend) all have children of similar ages to his own child. He feels confident that these activities will provide enough satisfaction and excitement to keep him from relapsing. Another protective factor concerns [The Applicant]’s strong history of complying with treatment and supervision. He said that before he leaves prison, he would like to take further courses and assessments to ensure that he has no unmet needs that he is currently unaware of.
In conclusion, this 26-year-old man appears to have moved to good social functioning. He is remorseful and has set plans into place that would aid his adjustment to a productive and drug and alcohol-free future. He has worked hard to identify the pathways to his previous problems and has sought to directly address them. I am of the view that [The Applicant] does not present a risk of reoffending and that he does not pose a risk to the wellbeing or safety of members of the Australian community. Given his track record of complying with treatment and with supervision rules, I would suggest that upon release he is given conditions involving a requirement to remain substance free. I am of the view that his offending was strongly tied to his addictions and, as such, it is imperative that he continues to stay clear of both substances and people who abuse them.
[117] R1, page 151.
In her latest report and with respect to his ongoing needs she notes:[118]
The most important factor for [The Applicant]’s future rehabilitation is the avoidance of illicit drugs. I would suggest that he engages in an intensive drug rehabilitation programme tailored to his particular needs, including the following:
·Reduction of any criminogenic beliefs and cognitive distortions.
·An increased understanding of triggers for anger.
·Strategies aimed at increasing his understanding of his interpersonal tendencies (as they appear to be fairly intense) and increasing his levels of flexibility in his interactions with others.
[118] A1, page 4.
The Tribunal notes that Dr Sheridan states that it is ‘imperative’ that the Applicant continues to stay clear of both substances and people who abuse them.[119] The Respondent contended this creates a concern regarding his future plans to be a personal trainer given his history of substance use in the gym context. The Tribunal accepts the Applicant’s plans carry some risk but notes his current plan is to work and train to become a personal trainer running his own business in the longer term. He plans to work FIFO and Dr Sheridan testified she saw that as a positive environment for him due to strict drug testing regimes and the regularity of employment.[120]
[119] R1, page 151 [39].
[120] Transcript, page 62.
Dr Sheridan recommends an ‘intensive drug rehabilitation program’ (including for his ‘interpersonal tendencies (as they appear to be fairly intense),[121] and endorses her previous report where she stated that ‘upon release he is given conditions involving a requirement to remain substance free’.[122] The Respondent submitted and the Tribunal accepts that it cannot impose such conditions and as such cannot place reliance on compliance with them. However, the Applicant will remain on parole for the remainder of this year, and the conditions of parole provide some reassurance that the kind of ongoing support or restrictions identified by Dr Sheridan will form part of the Applicant’s reintegration.
[121] A1, [22].
[122] R1, page 151.
The Parole order noted among the reasons for granting parole: [123]
·The Applicant was screened as a low risk/need and therefore not meeting the criteria for inclusion in prison-based treatment programmes. Nevertheless, his participation in voluntary programmes, demonstrates a motivation and willingness to address his offending behaviour.
·The Board noted that the Applicant’s visa to remain in Australia had been cancelled. Nevertheless, it noted that if her was subsequently successful in the revocation of the cancellation of his visa, the Board determined that his release in Western Australia does not pose an unacceptable risk to the safety of the community.
·The Applicant’s limited criminal history although prior violence was noted.
·The salutary impact of his first term of imprisonment and his first opportunity for parole supervision.
·The fact the conditions of parole will further reduce the risk to the safety of the community.
·The fact that the Applicant’s supervision for the remainder of his sentence in the community to monitor his behaviour, assist his reintegration and rehabilitation may offer more protection to the community in the long term than his release without any supervision at the end of his sentence.
[123] R1, pages 61-63.
The additional requirements of the order include:[124]
·The Applicant must not commit an offence.
·The Applicant must not use or be in possession of any illicit drug, including cannabis, or consume alcohol.
·The Applicant must not leave or remain out of WA except with written permission.
·The Applicant is to have no direct or indirect contact with the victims.
·The Applicant must attend for random urinalysis for all illicit substances as directed by the Community Corrections Officer and submit to random breath testing as required by Police.
·He must not enter licensed premises except cafes, restaurants and sporting venues or grocery stores which may have a liquor licence, but no purchase of liquor permitted at any venue.
·He must attend programmes and counselling as directed.
·He must engage in employment, training or job seeking as directed by the Community Corrections Officer.
[124] R1, page 62
The Parole order is in place until 28 February 2025.
The Tribunal notes that parole decisions are made in the context of the Applicant’s current convictions and sentence. The Tribunal’s process requires an assessment of the likelihood of the Applicant reoffending if permitted to remain in the Australian community in the context of deciding whether the decision to cancel his visa should be revoked. As such, the Tribunal’s task necessarily involves a somewhat broader and more long-term assessment of risk, than is potentially relevant to the Parole Board’s considerations. However, the Tribunal considers that the parole considerations are relevant in assisting to assess the likelihood of reoffending in the context of the Tribunal’s task and the Tribunal places some weight on the parole reasons as being consistent with a low risk of reoffending. The Tribunal also considers the parole conditions which will remain in place until February 2025 are a protective factor against reoffending in the short term.
However, the Tribunal’s role is to consider the risk of reoffending in the context of the cancellation of the Applicant’s permanent visa. This necessarily involves an assessment of risk into the future extending beyond the parole period. In that case, the degree to which the Tribunal assessed whether the Applicant’s presents a risk relies more on its assessment of the genuineness of his commitment not to reoffend and the supports available to ensure he is successful. Having regard to the evidence before it, the Tribunal considers that evidence to tip in the Applicant’s favour noting in particular the rehabilitation support which has been available to him to date and which he as voluntarily undertaken. There was evidence the Applicant’s prior effort to access rehabilitation in the community (though seeing his GP) was not successful in curbing his substance use, causing some concern about his capacity to follow through on current plans for further rehabilitation.[125] While there is no guarantee he will undertake further intensive rehabilitation treatment, he indicated a willingness to do so and based on his past performance, the Tribunal considers he is likely to accept further support to ensure he does not slip back into drug use.
[125] Transcript, page 15.
The Tribunal considers that his demonstrated commitment to rehabilitation and his further plans reduce the risk of reoffending to the level identified by Dr Sheridan, that is to a low risk.
The Applicant expresses a clear desire to remain in Australia and acknowledged it was a privilege to do so.[126] The Tribunal considers he understands the likely migration consequences of any future offending and the impact this would have on his family. The Tribunal accepts that the threat of further visa cancellation should he reoffend, would act as a protective factor against the Applicant engaging in further substance abuse and reoffending.
[126] Transcript, page 11.
Relying on the evidence including the Parole Order and the reports of Dr Sheridan and Whitehaven, and the evidence before it the Tribunal considers that the Applicant’s risk of reoffending is low.
While the Tribunal accepts the likelihood of reoffending to be low it also considers the harm which would be caused if he were to reoffend to be very serious. Acknowledging this the Tribunal considers there is an ongoing risk of harm to the community, albeit it a significantly reduced risk than was presented prior to the Applicant’s detention and incarceration.
Conclusion on the protection of the Australian community
Having regard to the nature and seriousness of the Applicant’s offending and conduct, and to the risk to the Australian community should the Applicant commit further offences or other serious conduct, the Tribunal finds that this primary consideration weighs strongly against revocation of the Cancellation Decision.
Family violence committed by the non-citizen
Paragraph 8.2 of Direction No 99 provides that decision-makers, such as the Tribunal, must have regard to family violence perpetrated by the non-citizen when deciding whether to revoke a visa cancellation decision.
The Applicant has not been convicted of or found guilty of an offence that involved family violence. There is no evidence indicating that he has been involved in the perpetration of family violence. The parties agreed this consideration did not apply in the Applicant’s circumstances.
The Tribunal considers this consideration is not relevant in the Applicant’s circumstances and should be afforded neutral weight.
The strength, nature and duration of ties to Australia
This consideration requires the Tribunal to have regard to the strength, nature and duration of the Applicant’s ties to Australia. Paragraph 8.3(1) of Direction No 99 provides that:
Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or people who have an indefinite right to remain in Australia.
The Applicant submitted that his removal to the UK would have a significant impact on his family partner and daughter and his extended family in Australia.[127] It was contended that:
·he had been present in Australia since a young age, including during his formative years carrying significant weight;
·had made a positive contribution through study, employment and community activities;
·his tie to Australia through his Australian citizen daughter should be given significant weight;
·his immediate family members including his wife, mother, father and brother were all Australian citizens or permanent residents and his removal would have a negative impact on them;
·his mother’s health was uncertain and she needs him here to support her;
·his wife’s mental health has suffered while he has been in prison and would be affected by his removal;
·he has other close ties to the community through friends who have provided statements in support.
[127] ASFIC, pages 17-19.
The Respondent accepted that the Applicant ties to Australia weighed in favour of revocation including that he arrived in Australia when he was young and spent part of his formative years here.[128] The Respondent accepted he has ties to Australia through his immediate and extended family, including his daughter, however less weight should apply to this consideration given the Applicant’s ‘brutal’ offending against strangers.
[128] RSFIC, pages 9-11.
The Applicant has resided in Australia for just over half his life, since he was 12 years old. The Tribunal accepts he considers himself to be Australian and spent part of his formative years growing up in Australia.
It was submitted that following his arrival in Australia, the Applicant completed grades eight to ten at Comet Bay High School in Secret Harbour, Western Australia between 2009 and 2011. He left school in 2012 and commenced two pre-apprenticeships through Challenger Institute of Technology in Brick and Block Laying with a work placement at Geoff Struer Homes, and in Vehicle Servicing with a work placement at Mandurah Bus Charters. He completed his Certificate II Pre-Apprenticeship (Brick and Block Laying) in July 2012,[129] and his Certificate II Pre-Apprenticeship (Vehicle Servicing – Light) in December 2012[130] and commenced full time work.[131]
[129] R1, page 218.
[130] R1, page 219.
[131] ASFIC, pages 1-2.
In October 2015 the Applicant attained his Forklift License and White Card.[132] He also completed a Certificate II in Security Operations for Security Officer and his Certificate II in Security Operations for Crowd Controller. In February 2016 he attained his Responsible Service of Alcohol qualification. In 2016 he commenced work in security with Virtue Security Services.[133]
[132] R1, page 220.
[133] R1, page 260.
There was limited evidence of contributions to the community other than through his employment which in the case of his work as a security guard was also associated with his drug use and, on occasion, his offending. He has also made a contribution through his relationships supporting family members and friends. As such the Tribunal considers there is limited evidence of positive contributions to the community. However, the Tribunal notes he is still relatively young and that he has plans to make a contribution raising his family and building a business here.
Mr Mitchell has offered to secure the Applicant employment on a mine site and in the longer term the Applicant wishes to start a business in fitness training and to support his wife’s desire to run her own business in Australia. He wants to own a home and to live ‘the Australian dream’.[134] In the meantime they plan to live with his parents while they work to save money. The Tribunal notes the Applicant has worked previously and accepts he intends to make a contribution to the community and his family through supporting his family and building a career.
[134] Transcript, page 11.
In the statement supporting his request for revocation the Applicant stated with respect to his ties to Australia: [135]
All of my family members would be deeply affected If I was removed from Australia. I have no family or friends in the UK that can support me. My elderly grandparents are there but they are under medical supervision. Everyone I am connected to is In Australia. My removal would significantly affect my family members as we are all very close and family oriented, even with my extended family. My family Is my support and my life and my reason to fight. They have always done right by me, and I know I need to stay in Australia to do right by them. It would cause not only me, but them as well, so much pain if I were to leave.
…
Family means everything to me; my family and my whole life is in Australia. I have nothing over in England. I've been living in Australia for 15 years now. I attended Comet Bay High School from year 8 to 10 (2009 to 2011). My contributions to the Australian community Include designing and developing the Golden Bay Skatepark in 2011. Once I left school, I did two pre-apprenticeships at TAFE.
…
The last thing I want is to cause my family to be broken which would be the outcome if I were removed to the UK. I would have no emotional or practical support like I do In Australia. In Australia I have a future, a job lined up, goals, a determination to succeed and to be the best father and husband for my family and the best role model for my community. I want to stay in Australia, to do better, and to do right by this country, which I consider my only home and to be there for my daughter and wife.
[135] R1, pages 140- 142.
This consideration will, in most cases, weigh against revocation of a cancellation decision if that expectation has been breached or if there is an unacceptable risk that it may be breached in the future.
The Applicant contended that his formative years and his entire adult years have been lived in Western Australia leading to the Australian community affording him a higher level of tolerance for his criminal conduct. He accepts however that the seriousness of his offences are such that the Australian community may expect he should not continue to hold a visa and that the consideration will weigh against revocation. However, he contended the consideration should be given minimal weight due to his ‘very low risk of reoffending’ and the impact that decision would have on his wife and daughter.
The Respondent acknowledged the community would have a higher tolerance for the Applicant’s offending in light of the fact he spent his formative years here. However, the Respondent contended that the expectation of the community would be that the visa remain cancelled and that in circumstances of repeated violent and other offending heavy weight should be afforded to this consideration against revocation.
The Applicant’s offending can be properly characterised as falling within those categories identified in sub-paras 8.5(2)(a)–(f). He has breached this expectation by not obeying Australian laws. He has committed acts of violence, including acts of violence against women. He has committed offences against police in the conduct of their duties and lied to immigration officials.[169] Consequently, the expectation of the Australian community would be that the visa cancellation should not be revoked.[170]
[169] See sub-paras 8.5(2)(a), (c) and (d).
[170] Direction No 99, para 8.5(1).
Paragraph 8.5(3) of Direction No 99 further confirms that the Australian community’s expectations are what the Government deems them to be, by effectively telling
decision-makers that the stated expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. The Tribunal has found above that the Applicant poses a low to moderate risk of reoffending. However, even if the Tribunal had found he was a minimal risk, the community’s expectations as stated would apply.Further, paragraph 8.5(4) of Direction No 99 tells decision-makers that this consideration is about the expectations of the Australian community as a whole. It directs decision-makers to proceed based on the Government’s articulated views without assessing the community’s expectations in the particular case.
However, it remains for the Tribunal to determine the appropriate weight to be given to this consideration. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other considerations.
In weighing this consideration, the Tribunal is also guided by the principles in para 5.2 of Direction No 99. Paragraph 5.2(2) directs that the Applicant, having engaged in criminal conduct, should expect to forfeit the privilege of staying in Australia. Paragraph 5.2(3) expresses a principle similar to para 8.5(2) with respect to serious character concerns and makes it clear that those concerns are not restricted to circumstances where there is a measurable risk of physical harm to the Australian community.
However, the Applicant has resided in Australia for a significant period of time and spent part of his formative years here (from age 12) and the Tribunal finds that the Australian community would afford him a higher level of tolerance for his conduct based on the length of time he has lived here.[171] However, he has a consistent history of offending since he became an adult and did not spend his formative years here which will have somewhat diminished tolerance for his behaviour.
[171] Paragraph 5.2(5) of Direction No 99.
Overall, the Tribunal finds that the primary consideration in paragraph 8.5 of Direction No 99, being the expectations of the Australian community, weighs strongly against revoking the Cancelation Decision.
Other considerations
Paragraph 9 of Direction No 99 states:
(1) In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Legal consequences of decision under section 501 or 501CA
The Tribunal is required to consider the legal consequences of a decision on a non-citizen, including having regard to Australia’s non-refoulement obligations in respect of unlawful non-citizens.[172]
[172] Direction No 99 para 9.1.
As the Applicant did not expresses any concerns that he would suffer persecution or significant harm such as might give rise to non-refoulment obligations with his return to the UK and no such claims arose on the material before the Tribunal.
The Applicant did not make any representation with respect to the legal consequences of the decision and submitted that they weighed neutrally in his case. The Respondent agreed.
The Tribunal considered the legal consequences of the decision to weigh neutrally in the Applicant’s circumstances.
Extent of impediments if removed
Paragraph 9.2 of Direction No 99 provides that taking into account the matters identified in sub-paragraphs 9.2(1)(a), (b) and (c) of Direction No 99, the Tribunal must consider the extent to which the Applicant would face an impediment or impediments in establishing himself and maintaining basic living standards in the context of the basic living standards available to other citizens of the United Kingdom. The matters identified under sub-paragraphs 9.2(1)(a), (b) and (c) are:
(a)The Applicant’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to the Applicant in their country.
The Applicant is 27 years old and has lived in Australia since he was 12. He has not returned to the UK since leaving. His parents have returned on one occasion.[173] The Applicant’s wife, daughter, brother, parents, extended family and in-laws reside in Australia. The Applicant’s elderly grandparents reside in the UK.
[173] Transcript, page 40.
The Applicant contended that his family members are unable to return to the UK with him and that it was:[174]
reasonable to expect that given the length of time the Applicant has spent in Australia and in light of his young age when he arrived, he will have substantial difficulties coping with life in the United Kingdom without emotional, social and financial support.
[174] ASFIC page 25.
It was submitted that the Applicant’s grandparents are unable to provide him with financial or practical support due to their ‘age and failing health’. Mr Paul Mitchell provided evidence to this effect.[175] While there was no medical evidence provided regarding the grandparents ‘failing health’ the Tribunal accepts they are of advancing age and unlikely to be able to provide significant support to the Applicant on return to the UK.[176]
[175] Transcript, page 6; ASFIC page 25.
[176] Transcript, page 35.
In his statement supporting his request for revocation the Applicant stated:[177]
If I was to return to the UK, I would suffer severe depression and anxiety which would take its toll on my mental health. This would also have a massive impact on my wife and child and the rest of my family including my in-laws. If I was to return to the UK I would be homeless as I have no job or income to depend on whilst being there which will make things extremely hard for me and by extension my family.
[177] R1, page 141.
It was also submitted that the psychological and emotional harm likely to be caused to the Applicant if he is removed from Australia outweighs his very low risk of reoffending.
The Respondent contended that the Applicant has trade and skills and does not face language or cultural barriers in the UK. He will also have access to reintegration services that are available to identify welfare benefits, finding accommodation, assisting with employment and resettling.[178] The Applicant did not seek to contest these submissions or challenge the availability of these services on his return.
[178] RSFIC page 15.
The Tribunal infers the Applicant will have access to similar government supports and services in the UK as he would in Australia. While the Tribunal accepts the Applicant would need to identify and access appropriate support in the UK, there is no information to suggest such supports would not be accessible for him in that country and the Tribunal considers they would be.[179]
[179] Webb v Minister for Home Affairs [2020] FCA 831 at 100.
The Applicant’s family expressed concerns for the Applicant’s mental and physical wellbeing if he were removed from Australia to the UK where he lacked a support network.[180] There was no medical evidence to support the claim the Applicant would suffer severe depression and anxiety on his return to the UK. However, the Tribunal accepts his return and in particular his separation from his family would be stressful for him and may lead to a deterioration in his mental well-being. However, the Tribunal considers he would have mental health services available to him should he require them in the UK.
[180] R1, page 208-212, 238-239, 244-253, 379-380, 384-389.
The Tribunal accepts the Applicant will face emotional hardship if he returns to the UK and is not accompanied by his wife and daughter. While it was accepted the Applicant’s daughter would be eligible for UK citizenship by descent it was submitted that the Applicant’s wife would be unable to live in the UK.[181] It was submitted that sponsored visa options, such as a spousal visa, may not be available to her due to financial requirements,[182] the Tribunal does not accept the Applicant’s wife would not have visa pathways available to remain in the UK with the Applicant and their daughter should she chose to relocate. However, the Tribunal accepts she may not chose to do so for a range of reasons including the time and cost which may be associated with immigration arrangements in the UK.
[181] ASFIC.
[182] Transcript, page 49.
The Applicant’s parents indicated they will not support him in the UK and will not travel there to visit him. The Applicant’s mother indicated she has been diagnosed and treated for pre-cancerous cells and is uncertain what her future treatment needs are and that she may not be able to travel.[183] While the Tribunal accepts the Applicant’s mother faces some uncertainty with respect to her health, there was no medical evidence before the Tribunal to suggest she would be unfit to travel to the UK should she choose to do so. However, the Tribunal accepts the Applicant’s parents may be unwilling or unable to visit the Applicant in the UK. The Tribunal notes the Applicant parents gave evidence they are employed, own a home and have been financially supporting the Applicant’s wife and daughter and the Applicant’s treatment in prison and detention. While they testified that supporting the Applicant and his family in their home in Australia is different and more achievable than financially supporting them abroad, the evidence suggests they are not without means to provide some support if they chose to do so.[184] Given the lack of evidence that their decision not to visit or support the Applicant would be driven otherwise than by choice the Tribunal does not consider this amounts to an impediment if he is removed.
[183] Transcript, page 45.
[184] Transcript, pages 40 - 41, 46.
The Tribunal notes there was evidence the Applicant has been employed or trained in a range of activities which would give him valuable experience in terms of gaining employment in the UK including construction and trade skills and experience working in site and event security.[185]
[185] Transcript page 13.
There is no information to suggest the Applicant has any physical health issues currently requiring treatment though the Tribunal accepts he has ongoing needs with respect to rehabilitation and counselling for substance abuse. The Tribunal infers he would have access to comparable services in the UK to those available in Australia.
It was also suggested that the Applicant’s risk of substance use may be greater if he is returned to the UK.[186] The Tribunal accepts that the stress of relocation without his family may involve some additional risk of relapse, however the Tribunal notes the Applicant claims he is at no risk of returning to drugs and cites factors which do not appear dependent on being in Australia with family including his conversion to the Islamic faith which does not permit alcohol or substance use and his awareness of the detrimental impacts of drug use and of the drivers for his past drug use and offending. The Tribunal considers his evidence is to be accepted, there are factors which will continue to provide a protective factor against reoffending in the UK even with stressors of relocation. In addition, the Tribunal notes the availability of social and health services in the UK accessible to the Applicant as a UK citizen.
[186] Transcript, page 56.
Overall, the Tribunal considers the Applicant faces some impediments if removed, particularly having regard to the separation from his family, his young age when he left the UK and his lack of family support in that country. However, the Tribunal did not consider such impediments to be insurmountable in particular having regard to his relevant young age and good health, the lack of any substantial language or cultural barriers in the UK and the comparable governmental supports available to him as a citizen of the UK. The Tribunal considers he will be able to resettle in the UK and maintain basic living standards in the context of those available to other citizens of that country.
On balance, the Tribunal gives some weight to this consideration in favour of revoking the visa cancellation but considers only slight weight should be afforded this consideration in the Applicant’s circumstances.
Impact on victims
Paragraph 9.3 of Direction No 99 requires the Tribunal to consider the impact of the decision on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims, where information is available and the Applicant has been afforded procedural fairness.
There is no information before the Tribunal regarding the effect of a decision under s 501 with respect to the Applicant’s visa application on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), any victims of the Applicant’s offending, or any family members of victims. Consequently, the Tribunal finds this consideration is not relevant in the Applicant’s circumstances.
Impact on Australian business interests
Paragraph 9.4 of Direction No 99 states:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
The Applicant did not suggest that his removal from Australia would adversely impact on Australian business interests.
The Applicant testified that he had opportunities for employment in Australia with FMG through his father. However, the Applicant did not suggest that any business interests would be impacted if he were not allowed to remain in Australia.
The Tribunal considers this consideration is neutral in the Applicant’s case.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is ‘another reason’ why the Cancellation Decision should be revoked, having regard to the primary and relevant other considerations in Direction No 99.
Paragraph 7 of Direction No 99 sets out the way in which the relevant considerations are to be taken into account and weighed.
There has been extensive judicial consideration of how the exercise of balancing and weighing the considerations contained in the relevant Ministerial Directions is to be undertaken (considering a number of Ministerial Directions preceding Direction No 99).[187] Recently, the Full Court of the Federal Court considered the operation of Direction 90 in CRNL v Minister for Immigration, Citizenship and Multicultural Affairs.[188] While the Court was considering Direction No 90, it’s observations would apply to Direction No 99. The Court found that the Tribunal must weigh the various primary and other relevant considerations outlined in the Direction (in this case Direction No 99) against each other and undertake an evaluation of whether there was ‘another reason’ why the cancellation should be revoked.[189]
[187] See Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591.
[188] [2023] FCAFC 138.
[189] At [35].
In determining the weight to be applied to each consideration, the Tribunal has considered all the primary and other relevant considerations and weighed them in light of the evidence and findings and according to the guidance provided by Direction No 99. The Tribunal has ascribed weight to each of the primary and other relevant considerations under Direction No 99 and explained the basis upon which it has assessed the weight to be given to each consideration. The Tribunal has gone on to compare and balance all of the considerations to determine whether the Cancellation Decision should be revoked.
The Tribunal has considered all of the primary considerations, including the protection of the Australian community. The Tribunal found that the protection of the Australian community weighs strongly against revocation of Cancellation Decision.
The consideration of family violence was not relevant in the Applicant’s circumstances and is afforded neutral weight.
The strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of revocation in the Applicant’s case.
The best interests of the Applicant’s minor child weighs very strongly in favour of revocation of the cancellation of the Applicant’s visa.
The expectations of the Australian community, weigh strongly against the revocation of the cancellation of the Applicant’s visa.
In relation to the relevant ‘other considerations’ identified in Direction No 99, the Tribunal finds that the extent of impediments if removed weighs slightly in favour of revocation. The legal consequences of the decision, the impact on victims and the impact on Australian businesses weigh neutrally in the Applicant’s circumstances.
As the Respondent acknowledged in submissions, the Applicant’s case was finely balanced.[190] His offending was undoubtably serious and violent offending of that nature presents a significant risk to the community. However, he has strong ties to Australia including through his wife and young daughter and he has made significant efforts towards rehabilitation. The Tribunal has found he presents a low risk of reoffending.
[190] Transcript, page 70.
Paragraph 7(2) of Direction 99 states that primary considerations should generally be given greater weight than the other considerations. Nothing has been presented which would cause the Tribunal to find that that general principle should not apply in the present case. Having weighed the considerations in favour of the revocation of the cancellation of the Applicant’s visa and the considerations against revocation, the Tribunal finds that the considerations in favour of revocation being the primary considerations of the strength, nature and duration of ties to Australia and the best interests of minor children, together with the other consideration of the extent of impediments if removed outweigh the considerations against revocation being the other primary considerations of the protection of the Australian community and the expectations of the Australian community.
In summary, having regard to all of the primary considerations, and the relevant other considerations in Direction No 99, the Tribunal is satisfied that there is ‘another reason’ why the Cancellation Decision should be revoked. The correct or preferable decision is to set aside the decision not to revoke the cancellation of the Applicant’s visa and to substitute a decision that the cancellation of the visa be revoked.
DECISION
The decision of the delegate of the Respondent dated 5 February 2024 not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa is set aside and substituted with a decision that the cancellation of the visa is revoked under s501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding two hundred and twenty-nine (229) paragraphs are a true copy of the reasons for the decision herein of Senior Member S Burford
................... [Sgd].....................................................
Associate
Dated: 1 May 2024
Date of hearing:
18 and 22 April 2024
Solicitor for the Applicant:
Ms J Angel, Estrin Saul Lawyers & Migration Specialists
Solicitors for the Respondent:
Ms M Scott, Australian Government Solicitors
ANNEXURE A – TABLE OF THE APPLICANT’S OFFENDING HISTORY IN AUSTRALIA
Offending table details drawn from the Australian Criminal Intelligence Commission ‘Check Results Report,’ dated 27 April 2022[191] and the Western Australian Police Force ‘History For Court – Criminal and Traffic,’ compiled on 16 February 2024.[192]
[191] R1, pages 37-38.
[192] R2, pages 1-2.
Conviction Date Court Offence Offence Date(s) Court Result 1. 18 January 2022 Perth District Court of Western Australia Assault Occasioning Bodily Harm 13 December 2020 Imprisonment for 2 years 6 months 2. 18 January 2022 Perth District Court of Western Australia Unlawfully did Grievous Bodily Harm to Another 13 December 2020 Imprisonment for 9 months (cumulative) 3. 26 March 2021 Rockingham Magistrates Court Unlawfully Possessed a Controlled
or Prescription Drug
29 December 2020 $500 fine
Order for Destruction
4. 1 May 2020 Perth Magistrates Court Possessed a Prohibited Drug (Cocaine) 18 October 2019 $2,000 fine (global) 5. 1 May 2020 Perth Magistrates Court Possessed a Prohibited Weapon 18 October 2019 $2,000 fine (global) 6. 1 May 2020 Perth Magistrates Court Possessed a Prohibited Weapon 18 October 2019 $2,000 fine (global) 7. 1 May 2020 Perth Magistrates Court Possession of Cocaine 18 October 2019 $2,000 fine (global) 8. 3 April 2020 Perth Magistrates Court Assault Public Officer 22 November 2018 $3,000 fine 9. 3 April 2020 Perth Magistrates Court Obstructing Public Officers 22 November 2018 $750 fine 10. 22 November 2019 Rockingham Magistrates Court Assault Public Officer 8 November 2019 $1,000 fine 11. 19 November 2019 Rockingham Magistrates Court Exceed 0.08g of Alcohol per 100mL
of Blood
24 October 2019 $1,000 fine (global) 6 month disqualification
from driving
12. 19 November 2019 Rockingham Magistrates Court Careless Driving 24 October 2019 $1,000 fine (global) 13. 11 September 2019 Perth Magistrates Court Possess a Prohibited Drug (MDMA) 22 November 2018 $1,000 fine 14. 3 January 2019 Perth Magistrates Court Assault Occasioning Bodily Harm 15 September 2017 $1,600 fine 15. 9 December 2016 Rockingham Magistrates Court Possess a Prohibited Drug
(Cannabis)
28 October 2016 $300 fine
0
11
0