MMWM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2020] AATA 364

MMWM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 364 (28 February 2020)

Division:GENERAL DIVISION

File Number(s):      2019/8317

Re:MMWM

APPLICANT

Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd  

RESPONDENT

DECISION

Tribunal:Deputy President Britten-Jones

Date:28  February 2020

Place:Sydney

The decision under review is affirmed

..............................[sgd]..........................................

Deputy President Britten-Jones

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record –- whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed

Legislation

Migration Act 1958 (Cth)

Cases

FYBR v Minister for Home Affairs [2019] FCAFC 185
Gasper v Minister for Immigration and Border Protection [2016] FCA 1166
SZRTN v Minister for Immigration and Border Protection (2014) 141 ALD 395
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466

Secondary Materials

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

REASONS FOR DECISION

Deputy President Britten-Jones

28 February 2020

1. This is an application for review of a decision of a delegate of the Respondent not to revoke a mandatory cancellation of the applicant’s visa under s 501(3A) of the Migration Act 1958 (the Act). 

   THE DECISION TO CANCEL THE VISA

2. On 28 February 2018, the applicant’s Class BS Subclass 801 Partner visa (the visa) was mandatorily cancelled (the cancellation decision) by a delegate of the Minister under s 501(3A) of the Act on character grounds due to his substantial criminal record and because he was serving a sentence of imprisonment.

3. On 23 March 2018, the applicant made representations seeking revocation of the cancellation decision.

4. On 12 December 2019 a delegate of the respondent decided not to revoke the cancellation decision under s 501CA(4).

   LEGISLATIVE FRAMEWORK

5. Under s 501(3A) of the Act, 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 paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.

6. The character test referred to in (3A) is outlined in s 501(6) of the Act. Relevantly, s 501(6) provides that a person does not pass the character test if the person has a substantial criminal record (as defined by subsection (7)).

7. For the purposes of subsection (6)(a), and relevant to this matter, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.[1]

   [1] Migration Act 1958 (Cth) s 501(7)(c).

8. Where a visa has been cancelled under s 501(3A), the Minister has a power to revoke the cancellation decision if satisfied that the visa holder passes the character test, or that there is another reason why the original decision should be revoked.[2] The discretion to revoke the cancellation on the grounds that ‘the Minister is satisfied that there is another reason why the original decision should be revoked’ is a broad one.

   [2] Ibid s 501CA(4).

9. Where the cancellation decision is not revoked, the right to have that decision reviewed by the Tribunal is enlivened.

   ISSUES BEFORE THE TRIBUNAL

10. The applicant does not pass the character test prescribed under s 501(6)(a) of the Act as he has been sentenced to a term of imprisonment of 12 months or more, and therefore has “a substantial criminal record” as defined under s 501(7) of the Act.

11. The issue for the Tribunal to determine is whether having regard to Ministerial Direction No. 79 (Direction 79) there is another reason why the cancellation decision should be revoked. Section 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation decision should be revoked following that evaluative exercise, the Tribunal must decide to revoke the decision.[3]

    [3] Gasper v Minister for Immigration and Border Protection [2016] FCA 1166 at [38].

    FACTS

12. The applicant and his mother gave evidence. The applicant had no legal representation but his mother presented his case for him and did a very good job. Most of the facts were not contentious except that the applicant did deny some of the facts on which he was convicted.

13. The applicant came to Australia in November 2007 with his mother and maternal grandmother. He was 11 years old. They decided to leave their home town of Sao Paolo in Brazil because the applicant’s father was physically and mentally abusive to both the applicant and his mother and because other members of their family had come to live in Australia, in particular an aunt and uncle on his mother’s side. They all live in Sydney. The applicant has never returned to Brazil and has had no further contact with his father since leaving.  He has expressed fear about seeing his father again. His mother gave evidence that the applicant witnessed terrible acts of domestic violence which she considers has affected him for life.

14. It was difficult for the applicant and his mother when they came to Sydney. The applicant had been brought up speaking Portuguese so he enrolled in an intensive English school. The Red Cross assisted them with accommodation. They lived in shared accommodation with other refugees for a time.

15. The applicant’s mother applied for a protection visa for herself and her son but that was rejected in June 2008. The decision to reject the application was affirmed in October 2008 by the Refugee Review Tribunal. The mother is now an Australian citizen and she has had another son who is nine years old.

16. In 2009, when the applicant was only 12 years old, he was arrested for indecent assault. He was convicted of four counts of indecent assault in the Parramatta Children’s Court in July and August 2010.

17. There was further tragedy in the applicant’s life when his 19-year-old cousin died in April 2010 followed by his grandmother later that year.  These events had a significant impact on the applicant.

18. From June 2013 to September 2014 there were numerous convictions in the Parramatta Children’s Court for offences including break and enter, assaulting an officer in the execution of duty, destroy or damage property, possess prohibited drug and stealing. The applicant said that he was often drunk when committing these offences and that he was smoking marijuana at the time. He also said that he took ice or other drugs but less frequently. When asked about this offending in cross examination the applicant often said that he could not remember but he accepted that he would break into local houses and steal electronic devices because “there was nothing else to do.”

19. From November 2014 the offending continued with numerous and regular convictions in the adult courts. The National police certificate for the applicant records convictions in each of November 2014, September, October, November, December 2015, March, April, June 2016, June 2017, January, April and July 2018.

20. The offending in 2015 included travelling without a valid ticket on public transport, drug, theft and property offences and contravention of apprehended domestic violence orders which resulted in the imposition of fines and good behaviour bonds. The apprehended domestic violence orders (AVO) arose because of a relationship the applicant had for about three years from the age of 16. The AVO was granted in January 2015 but was breached during an incident in February 2015 when the applicant abused his partner and threatened her. The magistrate in her sentencing remarks in December 2015 noted that the applicant had a very lengthy history, most of it juvenile, and that he had pleaded guilty and that there was no violence involved in contravening the AVO.

21. In 16 June 2016 the applicant was convicted of assault occasioning actual bodily harm and sentenced to 12 months imprisonment with a non-parole period of six months and released to supervised parole. At the same time he was convicted of two counts of maliciously destroying property and was placed on a good behaviour bond for two years. The assault involved the applicant punching the victim with a closed fist to his cheek and then bashing the victim with a chair. The applicant pleaded guilty and accepted that those events occurred but said that he was drunk. The magistrate in his sentencing remarks said:

    I made a finding of special circumstances being his age and prospects of rehabilitation. Given he is nineteen we must still consider that he has some prospects of rehabilitation despite his appalling criminal record. Keep behaving the way you do, … , and you might find yourself living in Brazil again. Do you understand?

22. In June 2017 the applicant was convicted of stalk/intimidate intend fear physical harm and destroy or damage property and sentenced to 8 months imprisonment for each offence, suspended upon entering into a good behaviour bond for eight months. This incident involved the applicant attending at the home of a female friend and kicking in her door which the victim then closed after which the applicant produced a knife and began to stab the wooden door yelling abuse and causing other property damage. The magistrate in sentencing was satisfied that the applicant inflicted the damage on the door and said that the intimidation was both the physical action at the door and the hitting of the door with the knife. Despite these findings of fact by the magistrate, the applicant denied that it happened like that and said that he did not yell at the woman and said that he just wanted to talk to the boyfriend.

23. The applicant contravened the AVO that been granted in June 2017 by contacting that same woman in November 2017 at her unit and kicking her in the left arm. In January 2018 the applicant was convicted of assault occasioning actual bodily harm and sentenced to 12 months imprisonment with a non-parole period of three months. On the same day he was convicted of contravene prohibition/restriction in apprehended violence order and sentenced concurrently to 12 months imprisonment with a non-parole period of three months. The magistrate in sentencing said that the applicant had been found guilty after a hearing of breaching an apprehended domestic violence order with an act of violence, being assault occasioning actual bodily harm. The applicant said in cross examination that he was convicted but that it did not happen.

24. The applicant was imprisoned for the period 6 November 2017 to 5 March 2018 after which he was transferred to the Villawood immigration detention centre.

25. Later in March 2018 when the applicant was being escorted to the District Court at Penrith he escaped from his escorting officers by running down the road. The applicant said that he heard voices telling him to run away. On 3 April 2018 the applicant was convicted by the District Court of New South Wales of escaping from immigration detention and was sentenced to 2 months imprisonment.

26. In June 2018 there is an incident report that the applicant set alight two blankets in his room.

27. There were further incidents in detention in July 2018 involving the destruction of a sink and smashing a television. The applicant admitted these incidents but denied other allegations made by the Australian Federal police that the applicant had spat in the face of an officer and punched a fellow detainee.

28. In December 2019 there is an incident report that the applicant got into a fight with another detainee. The applicant admitted that they were punching each other but said that it was self-defence.

29. The applicant suffers from mental health issues. In June 2017 his general practitioner referred to his ongoing psychological problems and that he has an anger problem which needs management. By May 2018 his mother was concerned that he appeared paranoid and she believed he had schizophrenia. The applicant was subsequently diagnosed with schizophrenia exhibiting symptoms of auditory hallucinations, thought disorder and persecutory delusions. He was prescribed medication but often did not take it. The applicant swallowed razorblades in an attempted suicide in early 2019. A consultant forensic psychiatrist examined the applicant and provided a report dated 7 June 2019 in which he provides the following prognosis:

    The available history suggests [the applicant] is likely to remain functionally impaired by his schizophrenia, an illness that tends to run a chronic and relapsing course. He would benefit from the assertive psychiatric follow up and counselling recommendations outlined above, as he is at risk of having further relapses of his illness if not adequately treated. Such measures would also reduce his risk of reoffending.

    IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?

30. When considering whether to revoke the delegate’s decision, the Tribunal must have regard to Direction 79. The objective of Direction 79 is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[4]  

    [4] 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) at 6.1.

31. The guiding principles in Direction 79 that the Tribunal must apply in determining whether or not to revoke a visa cancellation include:

    ·Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to remain in Australia bearing in mind that being allowed to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding.

    ·The Australian community expects that the Australian Government can and should cancel a non-citizen’s visa if they commit serious crimes in Australia or elsewhere.

    ·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 have to forfeit the privilege of staying in Australia.

    ·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 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.

    ·The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of 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.

32. Keeping those guiding principles in mind, I turn my mind to the primary considerations and other considerations set out in Part C of Direction 79:

    ·Primary considerations:

    oProtection of the Australian community

    oThe best interests of minor children in Australia

    oExpectations of the Australian community

    ·Other considerations include (but are not limited to):

    oInternational non-refoulement obligations

    oStrength, nature and duration of ties

    oImpact on Australian business interests

    oImpact on victims

    oExtent of impediments if removed

    Protection of the Australian community – 13.1 of Direction 79

33. When considering the protection of the Australian community, I have regard to the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity. I 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.

    The nature and seriousness of the non-citizen’s conduct – 13.1.1 of Direction 79

34. The offending by the applicant is very serious. The antecedents report prepared by the New South Wales police in August 2018 said:

    The accused has been charged 47 times prior to this incident. The accused displays a highly aggressive and violent nature and has no regards for his actions against individuals in the community or to Police. The accused has previously been charged several times with breaching bail conditions and was most recently committing similar offences whilst on parole. The accused has continued to show a willingness to break the law with little to no care for the consequences attached.

35. I consider the above statement to be an accurate summary of the applicant’s conduct. The applicant has committed acts of violence against women which must be viewed very seriously. As a juvenile he was convicted of numerous offences of assaulting an officer in execution of his duty. Despite repeated warnings, the applicant continued to offend regularly often in breach of bonds and bail. His offending was very frequent over a period of nearly 5 years from June 2013. He has continued to show disrespect for authority and to offend (including an attempted escape) whilst in immigration detention which is a further factor indicating the seriousness of his conduct. The cumulative effect of his repeated offending is very significant.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct – 13.1.2 of Direction 79

36. In considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. I also have regard to:

    ·the nature of the harm to individuals or the Australian community should the applicant engage in further criminal or other serious conduct; and

    ·the likelihood of the applicant engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the applicant reoffending.

37. In terms of measuring the risk to the Australian community, guidance can be found in the decision of Mortimer J in Tanielu v Minister for Immigration and Border Protection.[5] Her Honour states that to determine an unacceptable risk, one has to evaluate what the consequences of reoffending are as well as the likelihood of the person engaging in that conduct in the future.

    [5] (2014) 225 FCR 424.

38. If the applicant were to engage in further similar offending, then the nature of the harm is very serious. The police reported after the applicant had breached the apprehended violence order in November 2017 that as a result of the incident the victim was extremely fearful for her safety and concerned that the applicant may further breach the apprehended personal violence order and/or commit further assaults upon her. It is unacceptable for a woman to have to live in fear of violence in her own home.

39. I consider that there is a high likelihood of the applicant engaging in further criminal conduct if he were to be released into the community. The applicant has demonstrated little insight into the seriousness of his offending and continued to deny certain elements of the offending for which he was convicted. The applicant says that if he were released he would live with his mother, would work and would not take any more drugs. I note that during many of his past offences he was living with his mother who, it would appear from her evidence, was making a valiant attempt to keep him out of trouble. Despite her guidance and support he offended regularly and there is no significant period when he was not offending whilst in the community.

1. I take into account that in 2013 the applicant received awards for effort and application in the secondary studies education program he was attending. In 2014 he completed training in construction and for the Red Cross and was awarded a certificate 2 in general education for adults. In 2016 and 2017 he obtained statements of attainment from TAFE.  His current partner provided a character reference in February 2018 saying that he had supported her during their relationship of 2 ½ years. She referred to his employment with a company called Rise Scaffolding where he was respected by his co-workers and worked hard for 5 to 6 days a week. There is a letter of support dated 20 March 2018 from his employer at Rise Scaffolding who said that the applicant commenced work in January 2017 and that he became an excellent team leader and valued employee. He says that the applicant would be allowed to continue his employment if released.

2. The applicant has expressed remorse and says that he is ashamed of his past actions. He said that his alcohol and drug use contributed to his offending. I take into account that if released the applicant would receive support from his mother and his girlfriend and would be able to return to his previous employment. However, the applicant regularly offended in the past when he had the same support. He has not shown that he has been rehabilitated or that he has addressed his alcohol and drugs problem. In the circumstances I consider that he is likely to reoffend.

3. I take into account mental health assessments in November 2018, March 2019 and June 2019. The psychiatrists agree that the applicant was suffering from schizophrenia and one of them diagnosed him with a substance use disorder. I note that in 2018 and early 2019 the applicant was very unwell and exhibited extreme behaviour including swallowing a razor blade and hearing voices that the prison officers were going to kill him.

4. The applicant’s mother said that he had improved from mid-2019. This is consistent with a psychiatrist’s report in July 2019 which recorded that there were currently no signs of psychosis and that the schizophrenia was well controlled on medication.

5. I take into account the applicant’s mental health issues which if treated may reduce his likelihood of reoffending. However, there are numerous examples whilst in detention that the applicant refused his medication and refused to cooperate generally with those who were trying to assist him. A report from Dr McDonald, psychiatry registrar, dated 5 November 2018 said that the applicant had “very poor insight into his illness, poor judgement and although is compliant with treatment in this setting, is likely to stop medication if he were to be released into the community without ongoing medical health input”. Dr Smith, consultant forensic psychiatrist, provided a report on 1 March 2019 which said that “the nature of schizophrenia in general and [theapplicant’s] illness in particular means that the ongoing condition shows a high risk of relapse.” To the extent that the applicant’s diagnosis of schizophrenia is considered to be a cause of his offending, I am not satisfied that the applicant’s mental health will remain treated and stabilised should he be released into the community. Further, there was a significant period of offending by the applicant prior to the escalation of his mental health issues. This suggests that the applicant is likely to re-offend, regardless of the state of his mental health.

   Conclusion as to protection of the Australian community

6. The government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens.[6]  I consider that there is an unacceptable risk to the Australian community given the serious consequences of harm that would result from reoffending and the high likelihood that he will reoffend. I conclude that the primary consideration of protection of the Australian community weighs heavily in favour of non-revocation of the cancellation decision. 

   [6] Direction 79 at 13.1(1).

   Best interests of minor children – 13.2 of Direction 79

7. The applicant has no children but he has a brother who is 9 years old.  He also has some cousins who are minors.

8. In making a determination about the revocation of a visa cancellation, I must take into consideration the best interests of any children in Australia that are under the age of 18 years. Each child’s interests are to be considered individually to the extent that their interests may differ. 

9. The following factors that I must consider and are relevant to this application include:

   ·the nature and duration of the relationship between the child and the applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact;

   ·the extent to which the applicant is likely to play a positive parental role in the future;

   ·the impact of the applicant’s prior conduct and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   ·the likely effect that any separation from the applicant would have on a child, taking into account ability to maintain contact in other ways;

   ·whether there are other persons who already fulfil a parental role in relation to the child; and

   ·any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).

10. I accept that the applicant has a close and meaningful relationship with his younger brother who is nine years old. I accept the evidence from the mother of the applicant that he has been supportive of his younger brother and a good influence on him by helping with his education. I give less weight to this relationship because it is non-parental and there have been long periods of absence whilst the applicant has been in prison and in detention. I consider that the applicant is likely to play a positive parental role in the future for his younger brother but I note that the younger brother’s mother and his father both play that parental role.

11. If the applicant were removed then there would be a significant negative impact on the younger brother. I have also considered the interests of the minor cousins of the applicant who would no doubt miss their cousin but I give their interests little weight because there was very little evidence of a strong or meaningful relationship with them.

12. This is a factor that weighs in favour of revocation of the cancellation decision.

    Expectations of the Australian community – 13.3 of Direction 79

13. In YNQY v Minister for Immigration and Border Protection,[7] Mortimer J held that the expectations of the Australian community were inextricably linked to the other primary consideration about the protection of the Australian community, and that the expectations referred to in Direction 79 were those espoused in clause 13.3(1), rather than any objective expectations put forward by an applicant. This position has been affirmed by the Full Court of the Federal Court in FYBRv Minister for Home Affairs.[8]

    [7] [2017] FCA 1466.

    [8] [2019] FCAFC 185.

14. In exercising my discretion, I am also informed by the principle at paragraph 6.3(1) of Direction 79 that:

    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.

15. The applicant has not been law abiding and he has shown disrespect to authority by assaulting law enforcement officers and breaching good behaviour bonds. The applicant has caused and threatened harm to individuals including women in the Australian community. In this case, non-revocation is appropriate because the nature and cumulative effect of the offences and other serious conduct of the applicant are such that the Australian community would expect that the applicant should not hold a visa.

    Other considerations

16. In deciding whether to revoke the cancellation of the applicant’s visa, I must take into account the other considerations listed in Direction No. 79 but these are not exhaustive.[9] The applicant did express fear of harm from his father if he were returned to Brazil. The applicant and his mother were unable to give any evidence of a contemporaneous nature regarding the father because they have not seen or heard from him since they left in 2007. In the absence of this evidence I give no weight to the applicant’s expressed fear and I do not consider it to be a reason for revoking the cancellation decision.

    [9] SZRTN v Minister for Immigration and Border Protection (2014) 63 AAR 243 [5].

    International non-refoulement obligations

17. The applicant did not contend that he was owed non-refoulement obligations.

    Strength, nature and duration of ties

18. In making my decision, Direction 79 requires that I consider the following factors:

    ·how long the applicant has resided in Australia, including whether the applicant arrived as a young child (noting that less weight should be given where the applicant began offending soon after arriving in Australia, and more weight should be given to time the applicant has spent contributing positively to the Australian community); and

    ·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.

19. The applicant arrived in Australia in November 2007 aged 11 and was arrested as a juvenile for indecent assault in 2009. He is now aged 23.  The applicant has strong familial ties in Australia because so many of his relatives from Brazil have come to live here and have become Australian citizens. The applicant also has some ties to Australia because of his period of employment particularly with Rise Scaffolding from early 2017, however I do not consider his period of employment to amount to a significant positive contribution because it was not a lengthy period and because of his ongoing offending whilst employed. Further, I give less weight to this factor generally because the applicant began offending soon after arriving in Australia.

20. There is no doubt that the mother of the applicant would be greatly saddened and she would miss his support. To a lesser extent, the rest of his cousins and aunts and uncles would be impacted.

21. This is a factor that weighs in favour of revoking the cancellation decision but I do not give it much weight in the circumstances where the applicant again offending soon after arriving in Australia and has offended so regularly during that time.

    Impact on Australian business interests

22. No evidence or argument was advanced with respect to any impact on Australian business interests.

    Impact on victims

23. Paragraph 14.4(1) of Direction 79 provides that I must consider the impact of a decision not to revoke on members of the Australian community, including victims of the applicant’s criminal behaviour, and the family members of the victim or victims where that information is available and the applicant being considered for revocation has been afforded procedural fairness.

24. I have not received any direct evidence with respect to the impact non-revocation would have on the victim of the applicant’s criminal behaviour and family members. In the absence of such evidence, I cannot find this other consideration weighs in favour of, or against, revocation of the cancellation decision. 

    Extent of impediments if removed to home country

25. Direction 79 requires that I consider the extent of any impediments that the applicant may face if removed from Australia to Brazil in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

    ·The applicant’s age and health;

    ·Whether there are substantial language or cultural barriers; and

    ·Any social, medical and/or economic support available to them in that country.

26. The respondent acknowledges that the applicant may face some initial challenges in establishing himself in Brazil, including due to his mental health and his claimed inability to read and write in Portuguese. I do not consider that these challenges would be insurmountable and I note that the applicant has some experience in building related jobs which would assist him to obtain employment in Brazil doing similar work.

27. The applicant was brought up in Brazil and his primary language is Portuguese which he spoke exclusively up to the age of 11 years old. Whilst he has spoken very little Portuguese since being in Australia I do not consider there to be a substantial language barrier if he were returned to Brazil.  Nor do I consider there to be any material cultural barriers.

28. The applicant is in good physical health but he does have significant mental health issues, namely a diagnosis of schizophrenia. The respondent provided country information with respect to the mental health system in Brazil which reports that Brazil has sound legislation on mental health and, as at 2007, a new mental health policy which has resulted in a major reform of the mental health system. In particular, the system provides care in the community and allows free access to a variety of mental health services and essential psychotropic medicines. It was further reported that access to basic psychotropic drugs is ensured by the unified health system but that there are organisational problems in distribution.  The medical support available to the applicant in Brazil may not be as comprehensive as in Australia but the material provided by the respondent suggests that it is adequate.

29. It would no doubt be very difficult for the applicant to be returned to Brazil because of the lack of any family support. However, I do consider that the applicant would adjust to his new environment and consequently I give this factor minimal weight.

    Conclusion as to whether there is another reason to revoke the original decision

30. I have considered the specific circumstances relating to the applicant as part of my consideration whether to revoke the cancellation decision.  I am now required to weigh up those considerations so as to determine whether there is another reason to revoke the cancellation decision.

31. The primary considerations relating to the protection of the Australian community and the expectations of the Australian community weigh heavily in favour of not revoking the cancellation decision. The other considerations of strength, nature and duration of ties and the extent of impediments if removed weigh in favour of revocation but not significantly.

32. The Australian community will face an unacceptable risk of further harm if the applicant remains in Australia. Being able to remain in Australia is a privilege Australia conferred on the applicant in the expectation that he is law-abiding and will not cause or threaten harm to individuals or the Australian community – by committing the numerous assaults, property, drug and theft offences the applicant has not been law-abiding.[10]  The Australian community expects that the Australian Government should cancel the visas of non-citizens who commit such serious crimes in Australia.[11]  The applicant, as a non-citizen who has committed crimes against a woman, should generally expect to forfeit the privilege of staying in Australia.[12]  Australia has a low tolerance with respect to the criminal offending of the applicant who has been participating in, and contributing to, the Australian community only for a short period of time.[13]

    [10] Ibid, at Principle 6.3(1).

    [11] Ibid, at Principle 6.3(2).

    [12] Ibid, at Principle 6.3(3).

    [13] Ibid, at Principle 6.3(5).

33. It follows from the application of the guiding principles in paragraph 6.3 of Direction 79 that I am not satisfied that there is another reason why the cancellation decision should be revoked.

    Decision of the Tribunal

34. The decision of the Tribunal is to affirm the reviewable decision.

74.     I certify that the preceding 73  paragraphs are a true copy of the reasons for the decision herein of Deputy President Britten-Jones.  

................[sgd]....................

Administrative Assistant Legal

Dated 28 February 2020  

Dates of hearing:  27 February 2020

Applicant’s Representative:  The mother of the applicant

Respondent’s Representative:  Mr J Hutton on instructions from the Australian Government Solicitor