MKBL and Minister for Home Affairs (Migration)
[2019] AATA 5292
•9 December 2019
MKBL and Minister for Home Affairs (Migration) [2019] AATA 5292 (9 December 2019)
Division:GENERAL DIVISION
File Number:2019/6164
Re:MKBL
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans
Date:9 December 2019
Place:Perth
The Reviewable Decision, being the decision of a delegate of the Respondent dated
26 August 2019 not to revoke the mandatory cancellation of the Applicant’s visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth), is affirmed...................[sgd]...................
Senior Member Dr M Evans
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of Applicant’s Visa – character test – substantial criminal record – using a carriage service to transmit indecent communications to a person under 16 years of age – used a carriage service to groom a person under 16 years of age – Direction No 79 – primary and other considerations – protection of the Australian community – nature and seriousness of criminal offending – risk to the Australian community – best interests of minor children – expectations of the Australian community – strength, nature and duration of ties to Australia – extent of impediments if returned to United Kingdom – reviewable decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth) – s 29(1)(d)
Criminal Code Act 1995 (Cth) – s 474.27(1), 474.27A
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500, 500(1)(ba), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(6)(e), 501(7), 501(7)(c), 501CA, 501CA(4), 501G(1)
CASES
Afu and Minister for Home Affairs [2018] FCA 1311
Ahori and Minister for Immigration and Border Protection (Citizenship) [2017] AATA 601
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
BCR16 v Minister for Immigration and Border Protection (2017) 248 FCR 456
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
DKXY v Minister for Home Affairs [2019] FCA 495
Doan and Minister for Home Affairs [2019] AATA 169
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
JFSQ and Minister for Home Affairs [2019] AATA 616
Kumeroa and Minister for Home Affairs [2018] AATA 3744
Le and Minister for Home Affairs [2018] AATA 4126
Margach and Minister for Home Affairs [2019] AATA 353
MJNN and Minister for Home Affairs [2019] AATA 3205
Nathanson and Minister for Home Affairs [2019] AATA 642
NBCM and Minister for Home Affairs [2018] AATA 2387
Nigro v Secretary to the Department of Justice (2013) 304 ALR 535
Pareeth and Minister for Immigration and Citizenship [2011] AATA 527
QSBL and Minister for Home Affairs [2018] AATA 2074
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Subasinghe and Minister for Home Affairs [2019] AATA 751
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Uelese v Minister for Immigration & Border Protection (2016) 248 FCR 296
Varley and Minister for Home Affairs [2019] AATA 376
Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705
WSYT and Minister for Home Affairs [2019] AATA 4621
XFKR and Minister for Immigration and Border Protection [2017] AATA 2385
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
ZTGP and Minister for Home Affairs [2018] AATA 3518
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under
s 501CA (22 December 2014)Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) paragraphs 6.1, 6.2, 6.3, 7, 8, 13, 13.1, 13.1.1, 13.1.2, 13.2, 13.3, 14, 14.1, 14.2, 14.3, 14.5, Part C
REASONS FOR DECISION
Senior Member Dr M Evans
9 December 2019
BACKGROUND TO THE APPLICATION
The Applicant is a 36 year old (G55, page 537) citizen of the United Kingdom.
He first arrived in Australia in 1996 when he was 13 years of age (G11, page 56) with his mother, adopted father (father), three brothers and sister.
In a letter dated 7 August 2018 from a delegate of the Minister for Home Affairs
(the Delegate) the Applicant was advised that, on the same date, his Class BB Subclass 155 – Five Year Resident Return Visa (the Visa) had been mandatorily cancelled under
s 501(3A) of the Migration Act 1958 (Cth) (the Migration Act) (G69, page 574).
The basis for the cancellation was that the Applicant did not pass the character test due to either having a substantial criminal record or because he had been convicted of a sexually based offence involving a child. The Applicant was advised that he could make representations to seek revocation of the decision to cancel his Visa (G69, page 574-575).
In an application dated 11 August 2016 the Applicant requested revocation of the cancellation decision (G9, pages 39-55). The Delegate accurately summarised the Applicant’s submissions as follows (G9, page 14):
-His main offending was caused by him losing his job, experimenting with drugs and being involved in a ‘couple of toxic relationships’
-His mental health at the time was spiralling out of control, he was addicted to ‘meth’, not taking his medication and not attending counselling appointments with his psychologist
-He would spend nights by himself talking to girls on Facebook that he should not have been speaking to
-He only made a fake Facebook profile so he could check on his ex-girlfriend’s status without her knowing it was him. This was because he had reason to believe she was cheating on him and seeing other men behind his back
-He was under the impression that ‘you had to be 16 to make a Facebook account’, but he soon found out that he was wrong and should have ‘checked age for accounts’
-He is ashamed of the things he has done and takes full responsibility for his actions
-He is ‘now rehabilitated’ and has started counselling in detention to better himself
-He has made enquiries and started some counselling with Fresh Start Recovery Program and the Cyrenian House Alcohol & Other Drug Treatment Service, regarding their counselling and rehabilitation services
-He has provided copies of extensive medical reports and correspondence relating to his hospital admissions for an assault to the head, surgery to the face, other physical injuries, and for his depression/anxiety
-His conduct in prison has been without incident
-He has provided letters of support from family, relatives, friends and a nurse
-He attended school until Year 11 and has been employed in various trades from 2005 to 2016
-He has resided in Australia for 22 years
-He has one Australian citizen minor child, [name omitted], aged seven, and
-He states if he were to return to his home country of the United Kingdom, he would face being homeless, terror attacks on and within the country, and he would miss his family and his son [name omitted].
On 26 August 2019, the Delegate decided not to revoke the cancellation of the Applicant’s Visa (G4, page 12). This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
The Applicant was notified of the Reviewable Decision by email on 27 August 2019 (G2, page 5). On 2 September 2019, the Applicant lodged an application for review in the General Division of the Tribunal (G1, pages 1-4) (the Initial Application).
However, the Applicant was not properly notified of the Reviewable Decision in accordance with s 501G(1) of the Migration Act because the notification was not accompanied by all of the relevant s 501 documents (G-documents). This did not affect the validity of the Reviewable Decision, by operation of s 501G(4) of the Migration Act. However, s 500(6B) of the Migration Act provides, in part, that:
an application to the Tribunal for a review of the decision must be lodged with the Tribunal within 9 days after the day on which the person was notified of the decision in accordance with subsection 501G(1)…
Consequently, the Tribunal dismissed the Initial Application, on the basis that it was not reviewable by the Tribunal because the Applicant was not notified in accordance with
s 501G(1) of the Migration Act.
A complete copy of the G-documents was served on the Applicant by email to his legal representative on 23 September 2019. He subsequently lodged a second application for review in the Tribunal on 27 September 2019, which was within the 9 day period prescribed by s 500(6B). The Tribunal is therefore satisfied that the application was lodged within the 9 day period, and that the Tribunal has jurisdiction to review the Reviewable Decision.
Subsection 500(6L) of the Migration Act effectively provides that the 84 day period starts to run from the date the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84 day period started running on 23 September 2019, meaning that the Tribunal must hand down a decision with respect to this application by no later than 16 December 2019.
ISSUES
The issues for determination by 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 mandatory cancellation decision (that is, the Reviewable Decision) should be revoked (see s 501CA(4) of the Migration Act), having regard to the primary and other considerations in Direction No 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (Direction No 79).
MATERIAL BEFORE THE TRIBUNAL
The hearing took place on Thursday 28 and Friday 29 November 2019. The Applicant appeared in person and was represented by Mr Glenister. The Respondent was represented by Mr Gerrard.
The Applicant gave oral evidence and was cross-examined. The Applicant then called his mother, father, younger brother, and sister as witnesses. Further, the Applicant called a counsellor from Holyoake Community Alcohol & Drug Service (Holyoake), with whom the Applicant undertook counselling regarding his illicit substance use, as a witness.
The Applicant also called Dr James McCue (Dr McCue), registered Clinical and Forensic Psychologist, as a witness. Dr McCue’s qualifications include a Bachelor of Arts (Psychology) with Honours, and a Doctor of Psychology, both from Edith Cowan University in Western Australia (Exhibit A4). Dr McCue gave evidence at the hearing regarding his Psychological Opinion Report dated 24 November 2019 concerning the Applicant (Exhibit A3).
The Tribunal admitted the following documents into evidence at the hearing:
(a)
Applicant’s Statement of Facts, Issues and Contentions (SFIC) dated
6 November 2019 (Exhibit A1);
(b)Bundle of relevant documents filed with the Tribunal on 28 November 2019, comprising 211 pages (Exhibit A2);
(c)Psychological opinion report of Dr McCue dated 24 November 2019 and cover sheet dated 27 November 2019 (Exhibit A3);
(d)Curriculum vitae of Dr McCue (Exhibit A4);
(e)Respondent’s SFIC dated 19 November 2019 including Annexure A - Chronology of Applicant’s offences (Exhibit R1);
(f)Section 501 documents (G documents numbered G1 to G75 and comprising 621 pages (Exhibit R2);
(g)Statement of Material Facts from Australian Federal Police (the Statement of Material Facts) relating to one charge of “used a carriage service to groom a person under 16 years of age… contrary to Section 474.27 of the Criminal Code (Cth)” and six charges of “used a carriage service to transmit indecent communications to a person under 16 years of age… Contrary to Section 474.27A of the Criminal Code (Cth)” (Exhibit R3);
(h)Transcript of District Court proceedings of 20 February 2018 (Exhibit R4);
(i)Three Statements of Material Facts from materials produced under summons by Western Australia Police, comprising two breaches of a violence restraining order and one breach of bail undertaking (Exhibit R5); and
(j)
Western Australia Police History for Court - Criminal and Traffic as at
10 September 2019 (Exhibit R6).
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b)the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6) 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); or
…
(b)a court in Australia or a foreign country has:
(i) convicted the person of one or more sexually based offences involving a child; …
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7) For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more…
(Original emphasis.)
Section 501CA of the Migration Act further provides:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
DIRECTION NO 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act… if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “A person or body must comply with a direction under subsection (1)”.
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 79 under s 499 of the Migration Act, which commenced operation on 28 February 2019. This Direction replaced the previous Direction No 65 which was made by the Minister for Immigration and Border Protection.
Paragraph 6.1 of Direction No 79 sets out the “Objectives” of the Migration Act, with paragraph 6.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Paragraph 6.2 of Direction No 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction No 79 sets out the principles which must be taken into account by persons making decisions under s 501CA(4) of the Migration Act, including the Tribunal:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Informed by the principles set out in paragraph 6.3 of Direction No 79, the decision-maker (in this case, the Tribunal) must take into account the primary considerations in Part C of Direction No 79, with regard to the specific circumstances of the case (paragraph 13(1) of Direction No 79). Specifically, paragraph 13(2) of Direction No 79 provides:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Paragraph 14(1) of Part C of Direction No 79 lists other considerations as follows:
(1) In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Paragraph 7(1)(b) of Direction No 79 outlines how a decision-maker is to exercise discretion:
(1)Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)…
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Further guidance as to how a decision-maker is to apply the considerations in Direction No 79 can be found in paragraph 8 of Direction No 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that noncitizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
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) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act).
On 20 February 2018, the Applicant was convicted in the Perth District Court of the offence of “used a carriage service to groom a person under 16 years of age… contrary to Section 474.27 of the Criminal Code (Cth)” (the Grooming Offence) for which he received a head sentence of 22 months imprisonment. He was also convicted of six offences of “used a carriage service to transmit indecent communications to a person under 16 years of age… Contrary to Section 474.27A of the Criminal Code (Cth)” (the Indecent Communications Offences) for which he received concurrent and partly cumulative sentences of between six and seven months (Exhibit R6), amounting to a total effective sentence of two years and 10 months (Exhibit R4, page 48). Consequently, the Applicant does not pass the character test under ss 501(6)(a) and 501(7)(c) of the Migration Act.
He also does not pass the character test under s 501(6)(e) because he was convicted of sexually based offences involving a child.
The Applicant has conceded that he does not pass the character test (transcript, day 1 page 15.
The Tribunal must therefore now consider whether there was “another reason” why the Reviewable Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THE TRIBUNAL SATISFIED THAT THERE IS ANOTHER REASON WHY THE REVIEWABLE DECISION SHOULD BE REVOKED?
First primary consideration: Protection of the Australian community (paragraph 13.1 of Direction No 79)
Paragraph 13.1(1) of Direction No 79 provides that:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on noncitizens 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…
Paragraph 13.1(2) of Direction No 79 then provides:
(2) Decision-makers should also give consideration to:
(a)The nature and seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paragraph 13.1.1(1) of Direction No 79)
Paragraph 13.1.1(1) of Direction No 79 further provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(h)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
A summary of the Applicant’s offending is as follows (Exhibit R6; R1, Annexure A; Exhibit R6; G6, pages 26-28) (the Table of the Applicant’s Offending):
Court Result Date Offence Date Offence Penalty imposed Rockingham Court of Petty Sessions
14 Feb 2005 9 Feb 2005 Reckless driving $400.00 fine
MDL cancelled and disqualified: 12 months
25 Feb 2005 28 Jan 2005 Excess 0.08%; >=0.08% but <0.09% $400.00 fine
MDL cancelled and disqualified: 3 months - concurrent
Rockingham Magistrates Court
29 Aug 2005 13 Mar 2005 Careless driving $200.00 fine
MDL cancelled and disqualified: 3 months – mandatory concurrent
29 Aug 2005 13 Mar 2005 No MDL – under suspension $500.00 fine
MDL cancelled and disqualified: 9 months - cumulative
21 Oct 2005 Spent Stealing $200.00 fine Perth Magistrates Court
7 Mar 2006 18 Nov 2005 Exceed the speed limit by 10-19 km/h; probationary MDL $100.00 fine 7 Mar 2006 18 Nov 2005 No MDL – under suspension $1000.00 fine
Disq hold/OBT MDL: 9 months - cumulative
Rockingham Magistrates Court 9 May 2008 2 April 2008 Possess a prohibited drug (cannabis) $200.00 fine Perth Magistrates Court 10 Mar 2009 27 Jan 2009 Trespass $100.00 fine Mandurah Magistrates Court 7 Oct 2009 19 Jun 2009 Exceed 0.08g alcohol per 100ml of blood >=0.08g/100ml but <0.09g/100ml $800.00 fine
MDL cancelled: 6 months, prescribed - concurrent
Fremantle Magistrates Court 4 Nov 2009 2 Sep 2009 No authority to drive (fines suspended) $400.00 fine
MDL 7 day delay: 6 months, cumulative
Rockingham Magistrates Court 23 May 2011 16 Dec 2010 No authority to drive – never held and disqualified $1000.00 fine
MDL disqualified: 9 months - cumulative
Perth Magistrates Court 20 May 2013 13 Nov 2012 No authority to drive – never held and disqualified $1400.00 fine
MDL disqualified: 9 months - cumulative
Rockingham Magistrates Court
20 Jun 2013 18 May 2013 Possess a prohibited drug (amphetamine) $400.00 fine 3 Oct 2013 24 Aug 2013 Possessing stolen or unlawfully obtained property $350.00 fine 4 May 2016 29 Jan 2016 Breach of violence restraining order $400.00 fine 4 May 2016 26 Dec 2015 Used a licence, number plate or label to which not entitled $150.00 fine 4 May 2016 20 Dec 2015 Used an unlicensed vehicle $100.00 fine 4 May 2016 20 Dec 2015 No authority to drive (fines suspended) $300.00 fine 4 May 2016 26 Dec 2015 Used an unlicensed vehicle $100.00 fine 4 May 2016 26 Dec 2015 No authority to drive (fines suspended) $350.00 fine 4 May 2016 20 Dec 2015 Drove or permitted vehicle with false plate to be driven $100.00 fine 8 Nov 2016 4 Oct 2016 No authority to drive - cancelled MDL disqualified: 9 months – cumulative
$400.00 fine
Perth Magistrates Court 15 Jan 2017 14 Jan 2017 Breach of violence restraining order $650.00 fine Rockingham Magistrates Court
8 May 2017 15 Feb 2017 No authority to drive – cancelled Imprisonment: 7 months
Concurrent from 23 Feb 2018
MDL disqualified: 1 year - cumulative
Perth Magistrates Court
19 Sep 2017 23 Sep 2016 Breach of bail undertaking $400.00 fine 19 Jan 2017 14 Oct 2016 Breach of bail undertaking $400.00 fine Rockingham Magistrates Court 15 Jan 2018 22 Dec 2016 Stealing $1000.00 fine Perth District Court WA
20 Feb 2018 10 Nov 2015 Used a carriage service to transmit an indecent communication to a person under 16 years of age Commonwealth Order & Recognisance s20(1)(b):
Start date: 11 Aug 2017
Total: 2 years and 10 months convicted and released after serving minimum 17 months imprisonment upon entering recog $3000 to be supervised after released.
Forfeiture order: black mobile phone – concurrent
Imprisonment: 6 months partly cumulative from 11 Aug 2017
20 Feb 2018 25 Nov 2015 Used a carriage service to transmit an indecent communication to a person under 16 years of age Commonwealth Order & Recognisance s20(1)(b):
Start date: 11 Aug 2017 - concurrent
Imprisonment: 7 months concurrent from 11 Aug 2017 - concurrent
20 Feb 2018 9 Dec 2015 Used a carriage service to transmit an indecent communication to a person under 16 years of age Commonwealth Order & Recognisance s20(1)(b):
Start date: 11 Aug 2017 - concurrent
Imprisonment: 7 months concurrent from 11 Aug 2017 - concurrent
20 Feb 2018 9 Dec 2015 Used a carriage service to transmit an indecent communication to a person under 16 years of age Commonwealth Order & Recognisance s20(1)(b):
Start date: 11 Aug 2017 - concurrent
Imprisonment: 8 months concurrent from 11 Aug 2017 - concurrent
20 Feb 2018 15 Feb 2016 Used a carriage service to transmit an indecent communication to a person under 16 years of age Commonwealth Order & Recognisance s20(1)(b):
Start date: 11 Aug 2017 - concurrent
Imprisonment: 7 months concurrent from 11 Aug 2017 - concurrent
20 Feb 2018 17 Feb 2016 Used a carriage service to transmit an indecent communication to a person under 16 years of age Commonwealth Order & Recognisance s20(1)(b):
Start date: 11 Aug 2017 - concurrent
Imprisonment: 6 months partly cumulative from 11 Aug 2017
20 Feb 2018 8 May 2016 Used a carriage service to groom a person under 16 years of age to engage in sexual activity Commonwealth Order & Recognisance s20(1)(b):
Start date: 11 Aug 2017 - concurrent
Imprisonment: 22 months from 11 Aug 2017 – head sentence
Rockingham Magistrates Court
23 Feb 2018 3 Jul 2017 Person who breaches CRO or community order without reasonable excuse $100.00 fine
Paragraph 13.1.1(1)(a) of Direction No 79 states that “violent and/or sexual crimes are viewed very seriously”. As noted above, the Applicant was convicted of the Grooming Offence and the six Indecent Communications Offences. These are sexual crimes which must be viewed very seriously.
The Grooming Offence
The Grooming Offence involved the Applicant using Facebook Messenger to communicate with a 15 year old child on numerous occasions (8 May 2016; 9, 15, 16, 17, 19, 22 and 30 June 2016; and 1 July 2016). The Applicant used a fake profile that he had created of a 17 year old male, using a fictitious name and a photograph of a young male of approximately the same age which he obtained from the internet (Exhibit R4, page 22).
The Statement of Material Facts records with respect to the Grooming Offence recorded that (Exhibit R3, paragraph [13]):
Within 20 minutes of the accused sending his first message, the conversation turned to a sexual nature. The accused spoke about performing oral sex on [the child], having sexual intercourse with [the child] and about [the child] masturbating as they continued to message each other.
In the conversation on 9 June 2016, the child stated that she was 14 years of age (Exhibit R4, page 23; Exhibit R3, paragraph [15]). At that time, the Applicant was 34 years of age (Exhibit R4, page 44).
The Applicant obtained the child’s mobile telephone number twice during their conversations (Exhibit R3, paragraphs [14] and [18]), made an attempt to video call the child (Exhibit R3, paragraph [16]), and made six attempts to have the child physically meet with him (Exhibit R3, paragraph [27]). For example, during the fourth conversation, the Applicant began to ask where the child lived, and asked her if she would meet with him. He suggested that the child could “sneak out”, and that they could “get high” and “drink” together (paragraph [20]). The Applicant sent the child a photo of a topless young man he obtained from the internet (paragraph [18]), and later images of himself which he said was his “cuz” (referring to “cousin”). In the course of these conversations, the Applicant asked the child “about her having sex the night before and how often [she] masturbates…[and] also spoke about performing oral sex on [the child]” (paragraph [19]). He also instructed the child to masturbate in her room (Exhibit R4, paragraph [23]).
When sentencing the Applicant, O’Neal J stated that (Exhibit R4, page 44):
The offending in count 1 [the Grooming Offence] shows real persistence. Some of the other counts it can be said have that factor as well, but count 1 in particular was accompanied, of course, by repeated suggestions by you of a meeting with the child victim, otherwise all of the offences show a particular kind of cunning and deceit and count 1 and some of the other offences also reveal a real degree of manipulation on your part of these child victims.
Additionally, as noted by the Respondent in paragraph [24] of Exhibit R1, “the Tribunal has consistently found that offences involving the use of the Internet to procure minors to engage in sexual activity are of great concern”. The Respondent referred to the Tribunal’s decision in Pareeth and Minister for Immigration and Citizenship [2011] AATA 527 at [25]:
The applicant’s conduct in committing those offences as a matter of great concern to the welfare and safety of the Australian community, and that conduct is repugnant and clearly unacceptable to the Australian community and it must be regarded as involving serious criminality…
The Indecent Communications Offences
The other six offences of “used a carriage service to transmit indecent communications to a person under 16 years of age…” involved the Applicant communicating with six separate child victims who were all under 16 years of age using Facebook Messenger. Two of the victims were aged 13 years, three of the victims were aged 14 years, and one of the victims was aged 15 years (Exhibit R3, page 1). In each of the Indecent Communications Offences, the Applicant used the same fake Facebook name and account which he used in the Grooming Offence, and told the child victims that he was aged between 15 and 17 years old.
Offence Two, which occurred on 15 February 2016, involved the Applicant sending the child a photograph of himself naked and holding his penis, after asking the child how old she was (the child stated that she was 13 years of age) and if he could see her “thong” (Exhibit R3, paragraphs [29]-[31]).
Regarding Offence Three, which occurred between 10 November 2015 and
13 December 2015, the Applicant’s asked the child how old she was, to which she replied “I’m 15”. He engaged in sexualised conversation with the child which involved the Applicant describing sexual activity which the Applicant stated he wanted to engage in with the child (Exhibit R3, paragraphs [33], [36], [40]). Later that day he sent the child images including three “adult pornographic video clip[s]… [showing] a naked adult female being vaginally penetrated by a man with his penis” (describing the video being of himself) and “several photographs including a photograph of himself naked holding a mobile phone in his left hand with his right hand covering his genitals and other close-up photographs of erect penises” and further pornographic images and videos (Exhibit R3, paragraphs [32]-[42]).
Offence Four involved communications between 25 November 2015 and
30 November 2015 between the Applicant and the child. The Statement of Material Facts records that, “the conversation between the accused and [the child] immediately became of a sexualised nature with the accused sending two videos showing an adult female being vaginally penetrated by mail with his penis” (Exhibit R3, paragraph [44]). The same day, the Applicant asked the child how old she was, to which she responded that she was 14 (Exhibit R3, paragraph [45]). During this period, the Applicant had sexualised conversations with the child which involved the Applicant describing sexual activity which he stated that he wanted to engage in with the child (Exhibit R3, paragraph [45])-[46]).
He also sent “3 pornographic images containing adult penises and three adult pornographic videos of women being vaginally penetrated by men with their penises” (Exhibit R3, paragraph [47]). On 30 November 2015, the Applicant also sent a photograph of himself shirtless (Exhibit R3, paragraphs [43]-[48]).
Regarding Offence Five, the Applicant began to communicate with the child on
4 November 2015, and also communicated with her on 9 December 2015. On the first day of communication, the Applicant asked how old the child was, to which she replied that she was 14 years old. The Applicant told the child he was “turning 17”. The Statement of Material Facts records that on 9 December 2015 the Applicant “started by sending photographs of a shirtless unknown young male aged between 15 and 18 years and continued to compliment [the child]”. It continues on to state that “[a]short time later the [Applicant] sent two adult pornographic videos each showing a naked adult women [sic] being vaginally penetrated by a male with their penis.” The child’s response was “pls stop” (Exhibit R3, paragraphs [49]-[53]).
Regarding Offence Six, the Applicant began to communicate with the child on
10 November 2015. The same day, the Applicant asked how old the child was. She stated “15 & you?” to which the Applicant replied “16 nearly 17”. The Statement of Material Facts records that (Exhibit R3, paragraphs [55]-[59]):
57. Between 10 November 2015 and 2 December 2015, the [Applicant] and [the child] continue to communicate over Facebook Messenger talking about sex, masturbation and asking her for photographs of herself without her shirt.
58. [The child] sent [the Applicant] to photographs of herself; she was fully closed in both images.
59.The [Applicant] sent [the child] several images of an unknown young male, aged between 15 and 18, as well as an image of an unknown male, naked holding his penis and a video of an adult woman being vaginally penetrated by a male with his penis.
Regarding Offence Seven, the Applicant communicated with the child on
14 December 2015, 17 February 2016, 1 March 2016, and 8 May 2016. The Statement of Material Facts records that the conversation began with the Applicant sending two photographs of a shirtless unknown male of approximately 15 and 18 years of age.
The Applicant also had a conversation with the child on 17 February 2016 where he engaged in sexualised conversation which involved the Applicant describing sexual activity which he stated that he wanted to engage in with the child (Exhibit R3, paraphraphs [64], [66]). He also asked if she had taken a drug called “Molly” (another name for the drug “ecstasy”). On 1 March 2016, the Applicant sent the child a naked photograph of himself. He engaged in a further sexualised conversation with the child on
8 May 2016 (Exhibit R3, paragraphs [60]-[66]).
With respect to these offences, the Sentencing Judge, O’Neal J stated that (Exhibit R4, page 46):
Looking at the objective criminality involved in this offending the offence represented by Count 1 is a serious example of that kind of offending, among other things because of your persistence.
Counts 2 to 7 vary somewhat in their seriousness both with the age of the victim and the level of indecency and the persistence that you exposed each to. Looked at overall it is a moderately serious course of offending and as I said, Count 1 and most of these other offences demonstrate a particular pattern of deceit and manipulation and persistence.
Applying paragraph 13.1.1(1)(a) of Direction No 79, these child sexual offences must be viewed very seriously. Paragraph 6.3(3) of Direction No 79 is also applicable to the Applicant’s seven child sexual offences, because it states that a non-citizen who has committed a “serious crime” including crimes of a sexual nature against children should generally expect to forfeit the privilege of staying in Australia.
Paragraph 13.1.1(1)(a) of Direction No 79 does not limit the range of offences that may be considered serious. As can be seen from the above Table, the Applicant also has
18 traffic and driving related offences. For the first 17 of these offences, the Applicant received fines and disqualifications, however for his 18th driving offence he received a concurrent term of imprisonment for seven months for the offence of “no authority to drive – cancelled” on 8 May 2017. Although this offence was not the basis of the decision to cancel the Applicant’s Visa, the Applicant’s traffic and driving related offending is persistent and continued over a period of 12 years, culminating in the concurrent term of imprisonment. The Applicant was initially placed on a community based order, but failed to comply (G49, page 492) and was sentenced to the concurrent term of imprisonment for seven months. The Sentencing Magistrate stated (G8, page 37):
You were placed on an order to assist you. You told [sic] that there were certain mental health issues that are now being addressed, but you failed to comply – virtually totally – with that particular order placed upon you on 8 May and you were placed upon it by me. The order is cancelled. You are resentenced. The only appropriate penalty, as far as I’m concerned, now is one of imprisonment, you have gone beyond fines. There will be seven months imprisonment. I will make it concurrent with a sentence you are now serving.
Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that “…driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly.”
Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett) also noted the serious nature and adverse consequences of driving offences. In Bartlett, Senior Member Tavoularis stated at
[43]-[45]:43.…There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle.
His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.44.I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
45.The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users ‘go to the essential safety of the community’. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Footnotes omitted.)
In MJNN and Minister for Home Affairs [2019] AATA 3205, this Tribunal applied the above comments of Member Webb and Senior Member Tavoularis at [53] and [54]. The Tribunal stated, at [55]:
…The Applicant’s record of repeat driving offences tends to indicate an ability [sic] to distinguish right from wrong, and more particularly an inability to appreciate the adverse consequences of this type of offending which places safety of members of the public at risk. As noted by Senior Member Tavoularis, there is a potential to lose control of a motor vehicle whilst driving under the influence of alcohol which can have catastrophic consequences including injury or death to other road-users. It is for these reasons that the Tribunal finds that the totality and nature of the Applicant’s driving offences should also be viewed as serious.
In the Tribunal’s opinion, a substantially similar observation could be made with respect to the current application, when regard is given to the Applicant’s history of driving offences, set out in the above Table.
Paragraph 13.1.1(1)(b) of Direction No 79 further provides that “crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed”. The Applicant has two offences for breach of a violence restraining order (VRO) (Exhibit R5).
The first VRO was taken out by the former partner of the Applicant. It was served on the Applicant on 25 September 2014, and was due to expire on 24 September 2016.
The terms of the VRO included that the Applicant was not to communicate or attempt to communicate with his former partner by any means, including by SMS or text message. On 29 January 2016, the Applicant called his former partner’s mobile phone from his mobile phone twice. She did not answer the call on either occasion. The Applicant then sent a text message which stated, “[Applicant’s first name omitted] how are you all”.
The Applicant’s former partner replied “[Applicant’s first name omitted] who”.
The Applicant replied, “The one and only baha jokes your ex, [Applicant’s child’s name omitted]’s father lol how’s things”. The Applicant’s explanation to police when he was arrested was that, “I thought it was expired” (Exhibit R5).
The second VRO was taken out by his father, which was served on the Applicant on
11 March 2016. The evidence of the Applicant’s father and mother at the hearing was that the VRO was taken out, not because of any violence on the part of the Applicant, but because they lived on a large property near bushland, and were scared after people were coming to their home looking for the Applicant and asking for drugs and money (transcript, pages 108-109). The VRO prevented the Applicant from entering, remaining upon, or loitering near the home of the protected person, being the Applicant’s father. The Applicant breached the VRO when he was found sleeping in a caravan which was stored in a shed towards the rear of the property.
Breaches of VRO’s are considered serious offences which should be taken seriously by police, courts and tribunals. The Tribunal does note that, with respect to the VRO taken out by the Applicant’s father, there was no allegation of violence, nor did the breach of the VRO involve any violence.
There is no evidence before the Tribunal as to the conduct which formed the basis for the grant of the VRO to protect the Applicant’s former partner, although VROs are most usually granted to protect the protected person from any risk of violence. Further, the Tribunal notes that the breach of the VRO taken out by the Applicant’s former partner also did not involve any violence or threats of violence. Thus, whilst breaches of VROs are to be treated seriously, the seriousness of this offending by the Applicant is somewhat mitigated by the Applicant’s breaches being of a non-violent nature in circumstances where no physical harm occurred as the result of the Applicant’s offending.
Paragraph 13.1.1(1)(c) of Direction No 79 provides that crimes committed against vulnerable members of the community, or government representatives or officials due to the position they hold, or in the performance of their duties, are serious. Children are considered vulnerable members of the community. Accordingly, the Applicant’s seven sexual offences against children (the Grooming Offence, and the six Indecent Communications Offences) are viewed as serious.
Applying paragraph 13.1.1(1)(d) of Direction No 79, the Applicant received a head sentence of 22 months imprisonment for the Grooming Offence. He received concurrent sentences of between six and seven months (Exhibit R6), amounting to a total effective sentence of two years and 10 months for the remaining six Indecent Communications Offences. A term of imprisonment is generally imposed as a last resort, and can reflect the seriousness of the offending. This is evident from the comments of the Sentencing Judge, O’Neal J, who stated that “in the circumstances of this offending anything other than an immediate term of imprisonment would be most inappropriate” (Exhibit R4, page 47).
In the Tribunal’s opinion, these terms of imprisonment imposed on the Applicant also reflect the serious nature of the Applicant’s sexual offending.
Additionally, as noted above, the Applicant was initially placed on a community based order for the offence of “no authority to drive - cancelled” which was breached due to poor compliance by the Applicant (G49, page 492). This was the Applicant’s 18th traffic or driving related conviction. It is therefore unsurprising that the Applicant was sentenced to a term of imprisonment in addition to having his licence suspended for one year. As noted above, the Magistrate stated that “The only appropriate penalty, as far as I’m concerned, now is one of imprisonment, you have gone beyond fines” (G8, page 37). Mr Glenister submitted that, “while it is true that the Magistrate considered a fine to be an inappropriate disposition, it is possible were the applicant not in custody that he would have received a lesser sentence on immediate imprisonment for this offence” (Exhibit A1, paragraph [26]). In the Tribunal’s opinion, the Magistrate’s comment suggests otherwise, and in any event, the submission is somewhat speculative. The Tribunal finds that the imposition of a term of imprisonment for this driving offence is indicative of the serious nature of this type of offending which has the potential to cause serious injury or loss of life to innocent road users.
With respect to the frequency of the Applicant’s offending and whether there is any trend of increasing seriousness (paragraph 13.1.1(1)(e) of Direction No 79), the Applicant has committed 18 criminal offences (not inclusive of the Applicant’s traffic or driving related offences) with his first conviction for the offence of stealing recorded on 21 October 2005; and his most recent conviction for the offence of breaching a community based order on
3 July 2017 (Exhibit R6). Additionally, when the progression of the Applicant’s offending (see the above Table of the Applicant’s Offending at paragraph [39]) is examined, it shows an increase in seriousness. For example, in addition to the stealing offence, earlier offences included the possession of cannabis (with a conviction date of 9 May 2008); trespass (with a conviction date of 10 March 2009); possession of amphetamine (with a conviction date of 20 June 2013); possessing stolen or unlawfully obtained property (with a conviction date of 3 October 2013); and the breaches of VROs discussed above. In the Tribunal’s opinion, the Grooming Offence and Indecent Communications Offences are indicative of an increase in seriousness from the Applicant’s previous, predominantly property-based offending.
Further, the Applicant has also committed 18 traffic or driving related offences, with his first offence of “reckless driving” being recorded on 14 February 2005, and with his most recent offence of “no authority to drive – cancelled” being recorded on 8 May 2017. This shows a frequency of traffic and driving related offending. There is no apparent increase in seriousness, although that is not a mitigating factor because there are serious traffic and driving related offences throughout the Applicant’s history. These can be seen in the above Table of the Applicant’s Offending (at paragraph [39]), which includes convictions for the offences of careless driving; eight counts of driving without a licence or whilst suspended; driving with false plates; and using an unlicensed vehicle.
This offending has been unabated by fines and driving disqualifications before resulting in the concurrent term of imprisonment being imposed on 23 February 2018.
Overall, with respect to the Applicant’s offending generally, Mr Glenister submitted that, although the Applicant’s offending spanned from 2005 until 2017, that “the frequency and gravity of his offending increased significantly between 2015 and 2017.” Mr Glenister submitted that: “While this could represent an overall trend of committing offences increasing seriousness, the Applicant submits that this was instead a spike or an aberration referrable to his personal circumstances at the time” (Exhibit A1, paragraph [27]). The Tribunal does not accept this submission, and is of the opinion that the Applicant’s criminal and traffic history of offending shows an overall trend of committing offences increasing in seriousness which cannot be minimised as as an ‘aberration’. The Applicant’s heavy drug use during this time may have contributed to this increase in frequency and gravity of the Applicant’s offending between 2015 and 2017, but notwithstanding any contributory offending factors, the Tribunal determines that this offending did nevertheless increase in seriousness between the period from 2005 until 2017.
With respect to the cumulative effect of repeated offending (paragraph 13.1.1(1)(f) of Direction No 79), the Applicant’s offending spans approximately 12 years and 36 offences in total (see above Table of Applicant’s Offending at paragraph [39], and Exhibit R6).
This which would certainly have placed a burden on the resources of police, corrective services, and the courts.
There is no evidence that the Applicant has provided false or misleading information to the Department by not disclosing prior criminal offending, and so paragraph 13.1.1(1)(g) of Direction No 79 is not applicable.
Paragraph 13.1.1(1)(h) of Direction No 79 is not applicable because the Applicant did not receive any prior warnings.
Paragraph 13.1.1(1)(i) of Direction No 79 is also not applicable because the Applicant has not committed any crime in prison or immigration detention.
On balance, the Tribunal finds that the Applicant’s offending, particularly his most recent convictions for the seven child sexual offences, is very serious and strongly weighs against the revocation of the cancellation of his Visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2 of Direction No 79)
A decision-maker should also have regard to the following principle, described in paragraph 13.1.2(1) of Direction No 79 as follows:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage at [111] from Nigro v Secretary to the Department of Justice (2013) 304 ALR 535 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424 at [95], as well as Gilmour J in Applicant in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(Footnotes omitted.)
In BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, Moshinsky J stated at [68] that: “…there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.” Additionally in Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, Kenny J at [41] also referred to the basis for the assessment of the risk of reoffending as requiring a “rational and probative basis”.
The material before the Tribunal did not raise any issues of non-refoulement, and consequently, paragraph 14.1 of Direction No 79 is not applicable.
Strength, nature and duration of ties to Australia
Paragraph 14.2(1) of Direction No 79 provides:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of nonrevocation on the non-citizen's immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Relevantly, paragraph 6.3(5) of the principles section of Direction No 79 states:
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
Additionally, paragraph 6.3(7) of the principles section of Direction No 79 states, in part:
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen's visa should be cancelled, or their visa application refused.
The Applicant is now 36 years of age and arrived in Australia when he was 13 years of age in 1996. He has resided in Australia for approximately 23 years. The Applicant spent his formative teenage years in Australia, attending high school in Australia until Year 11, and spending his entire working life in Australia. The length of time the Applicant has resided in Australia, and his arrival in Australia as a young child, are indicative of the close ties that he has to Australia.
The Applicant’s first offences were committed in 2005, being approximately 9 years after his arrival in Australia, so he did not commit offences soon after arriving in Australia.
The Applicant’s immediate family in Australia comprise his parents, three brothers and a sister. He also has an aunt and three adult cousins living in Australia (G19, G20, G21). The evidence of the Applicant’s family members given at the Tribunal hearing indicated that they were a very close family, who would often meet for family barbecues and birthday parties at the Applicant’s parent’s house. The children would regularly play together, and the Applicant would sometimes help his father set up a bouncy castle or other activity for the children in the backyard of the Applicant’s parents. The Applicant’s parents and sister also described taking the Applicant’s nephews to visit him in immigration detention, and the Applicant has submitted photos of himself playing with his nephews whilst in immigration detention; at the zoo with his son and nephew; and other family photographs (Exhibit A2, pages 98-122).
The Tribunal appreciates that the Applicant’s family members are very supportive of him, and are anxious for him to be released into the Australian community to be a part of the family again. There are numerous letters of support from his immediate family members before the Tribunal (Exhibit A2, pages 4-10; G14, G 15, G 16, G 17, G18), and also from other family and friends (G19 through to G 34; G42, pages 354-355), indicating his close ties to the Australian community. The Applicant’s mother, father, sister, and brother gave evidence at the hearing that they would be extremely distressed if the Applicant were to be removed to the United Kingdom. The Tribunal acknowledges that if the Applicant were to be removed from Australia and from his large close-knit family, it would cause distress to both the Applicant and his family members. The Tribunal notes that the Applicant’s son, nephews and niece would lose their immediate connection with the Applicant. According to the evidence of the Applicant’s mother and sister in particular, the Applicant is a loving and engaged uncle, and a father figure to his sister’s three children. There would be the possibility of the Applicant maintaining contact with his son and other family members via electronic means such as Skype, the Internet or by telephone. However the Tribunal acknowledges that this is a poor substitute for in-person involvement, particularly in his son’s life. The Tribunal finds that these family members are likely to suffer emotional detriment if he is removed from Australia.
The Tribunal also acknowledges the evidence of the Applicant’s parents at the hearing that, despite attempts to contact the Applicant’s son’s mother, that they had not been able to see the Applicant’s son since early this year. The Applicant’s parents are hopeful that they, together with their other grandchildren, will be able to resume contact with the Applicant’s son if he is able to remain in Australia and if the Applicant pursues access through the Family Court. They are fearful that if the Applicant is removed to the United Kingdom, that they will not be able to resume contact with their grandson. The Tribunal acknowledges these difficulties, however notes that the Applicant’s parents themselves may be able to resume contact with their grandson through the family Court themselves. There is no also guarantee that the Applicant will be able to secure regular contact with his son in the immediate future if he were to remain in Australia.
The Applicant has made some positive contributions to the community through employment, and through engaging in work in the mining and construction industries for at least 10 years. The Tribunal does note, however, that these contributions are somewhat diminished by his significant history of offending which detracts from these contributions. He has paid child support for his son, but at times has been significantly in arrears and those debts had to be satisfied by the amounts being deducted from the Applicant’s tax returns. The Tribunal accepts that the Applicant has nevertheless still contributed to the cost of his son’s upbringing by paying child support, which should be viewed positively.
The Tribunal finds that the Applicant has significant and close ties to Australia in terms of the length of time he has resided in Australia and due to his immediate family members including his parents, siblings, young son, niece and nephews residing in Australia. The Tribunal finds that the Applicant’s ties to Australia are strong, and weigh strongly in favour of the revocation of the cancellation decision.
Impact on Australian business interests
Paragraph 14.3(1) of Direction No 79 notes the following “other consideration” for the Tribunal:
(1)Impact on Australian business interests if the non-citizen's visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no impact on Australian business interests if the cancellation of the Applicant’s Visa is not revoked, and consequently this consideration is not applicable.
Impact on victims
Paragraph 14.4(1) of Direction No 79 states that the Tribunal should have regard to the impact on victims. Specifically, it states:
(1)Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal about the impact that a decision not to revoke the mandatory cancellation of the Applicant’s Visa on the victims of the Grooming Offence and the Indecent Communications Offences, or the family members of the victims. Consequently, this consideration is not applicable.
Extent of impediments if removed
Paragraph 14.5(1) of Direction No 79 provides:
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant is now 36 years of age. As noted above, he first arrived in Australia in 1996 when he was 13 years of age with his parents and siblings. The Tribunal accepts that he will have difficulty in adjusting to living in a country that is foreign to him when he considers Australia to be his home. The Applicant does not have any immediate family in the United Kingdom.
The Applicant has a history of mental health issues including depression, post-traumatic stress disorder, and bipolar disorder. The Applicant’s evidence at the Tribunal hearing indicated that he was able to manage these conditions with medication, which he takes daily (transcript, page 57), but that he would struggle to cope if returned to the United Kingdom where he does not have support from his parents, siblings, and friends, and where he will be physically separated from his son. Consequently, the Tribunal finds that the Applicant is likely to experience psychological distress, and possibly an exacerbation of his mental health and substance abuse issues if he were to be returned to the United Kingdom.
The Applicant has also experienced health issues arising from a serious assault in 2013. This assault is described in the report of Dr McCue (Exhibit A3, page 7) who reported that the Applicant was confronted by three men who asked him for money when he was walking through a park in 2013. When he did not give them any money, they assaulted him with a baseball bat, resulting in him being hospitalised with injuries including haemorrhaging from his head, lacerations to the face and broken ribs, and requiring a lengthy hospital stay and surgery including a metal plate being inserted into his face. On another occasion he punched a wall and suffered broken bones in his hand which required surgery. When asked by the Tribunal at the hearing if he required any ongoing treatment for these injury is, the Applicant replied that he did not. There is no other evidence before the Tribunal that the Applicant requires ongoing medical care or appointments for any physical injuries at the present time.
The United Kingdom shares a common heritage, and has a similar culture to Australia, and so the Applicant would not face any language or cultural barriers if he were to return to the United Kingdom. As noted by Mr Glenister, the Applicant “would have all the normal social supports available to citizens of the United Kingdom” (transcript, day 2, page 57). Mr Glenister stated that the Applicant “has a good employment history” (transcript, day 2, page 47), which may assist him to find employment in the United Kingdom and to maintain basic living standards, although the Tribunal acknowledges that he is initially likely to face difficulties in adjusting to life in a country that is foreign to him away from his supportive family and son.
The Respondent has also noted that there are organisations such as Prisoners Abroad who are able to provide limited assistance and support with resettlement in the United Kingdom (Exhibit R1, paragraph [49]). The Applicant is aware of this organisation. The Tribunal notes that this organisation may be able to provide some assistance to the Applicant in transitioning to living in the United Kingdom, however the extent of this assistance is unclear.
The Applicant stated that he had no immediate family in the United Kingdom, with all his family members being in Australia. His separation from his family members in Australia, who on the evidence before the Tribunal are a very close and loving family, is likely to cause the Applicant emotional distress, and possibly exacerbate his mental health and substance abuse issues.
On balance, the Tribunal finds that, although not insurmountable, the Applicant is likely to experience hardship in re-establishing himself in the United Kingdom, in particular due to the length of time he has resided in Australia, his mental health issues which may be exacerbated by his removal, his separation from his family, including his young son and niece and nephews. The impediments the Applicant will face if removed weigh moderately in favour of the revocation of the cancellation decision.
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 Reviewable Decision should be revoked, having regard to the primary and other considerations in Direction No 79.
In relation to the first primary consideration, the Tribunal finds that:
(a)The nature and seriousness of the Applicant’s conduct weighs strongly in favour of the non-revocation of the decision to cancel his Visa (paragraphs 13.1 and 13.1.1 of Direction No 79); and
(b)The risk to the Australian community should the Applicant commit further offences weighs strongly in favour of the non-revocation of the decision to cancel the Applicant’s Visa (paragraph 13.1.2 of Direction No 79).
Overall, with respect to the first primary consideration, the Tribunal concludes that the protection of the Australian community (paragraphs 13.1, 13.1.1 and 13.1.2 of Direction No 79), weighs strongly in favour of the non-revocation of the decision to cancel of the Applicant’s Visa.
The Tribunal finds that the best interests of the Applicant’s minor son (paragraph 13.2 of Direction No 79), and the best interests of his niece and nephews, weighs moderately in favour of the revocation of the cancellation decision.
With respect to the expectations of the Australian community (paragraph 13.3 of Direction No 79), the Tribunal finds that this consideration weighs strongly in favour of the non-revocation of the decision to cancel the Applicant’s Visa.
In relation to the other considerations, the Tribunal finds that the strength, nature and duration of the Applicant’s ties to Australia (paragraph 14.2(1) of Direction No 79) weighs strongly in favour of revocation and impediments if removed (paragraph 14.5(1) of Direction No 79) weigh moderately in favour of the revocation of the cancellation decision.
On balance, the Tribunal is of the opinion that the primary considerations of protection of the Australian community and the expectations of the Australian community outweigh the primary consideration of the best interests of the minor children, and the other considerations which weigh in favour of the revocation of the cancellation decision.
In summary, after considering all of the relevant primary considerations, and the relevant other considerations in Direction No 79, the Tribunal is of the view that it would not be appropriate for the Tribunal to revoke the mandatory cancellation of the Applicant’s Visa. The correct or preferable decision is to affirm the Reviewable Decision.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated
26 August 2019not to revoke the mandatory cancellation of the Applicant’s Visa pursuant to s 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
219.
I certify that the preceding 218 (two hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member
Dr M Evans
................................[sgd].......................................
Associate
Date: 9 December 2019
Date of hearing:
28 and 29 November 2019
Representative for the
Applicant:Solicitors for the Applicant:
Representative for the Respondent:
Mr H Glenister
Cathal Smith Legal
Mr A Gerrard
Solicitors for the Respondent:
Australian Government Solicitor
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Jurisdiction
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Procedural Fairness
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Statutory Construction
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Natural Justice
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