Mulligan and Minister for Immigration and Border Protection (Migration)
[2017] AATA 728
•25 May 2017
Mulligan and Minister for Immigration and Border Protection (Migration) [2017] AATA 728 (25 May 2017)
Division:GENERAL DIVISION
File Number(s): 2016/6727
Re:David Mulligan
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President Gary Humphries
Date:25 May 2017
Place:Canberra
The decision of the Minister's delegate, not to revoke the Mandatory Visa Cancellation Decision, is affirmed.
..........................[sgd]..............................................
Deputy President Gary Humphries
Catchwords
MIGRATION – mandatory visa cancellation – decision not to revoke mandatory cancellation – character test – whether Applicant of good character – nature of good character – Applicant convicted of offences involving violence – custodial sentence – consideration of sentencing judge's remarks – supporting witnesses unaware of circumstances of convictions – previous criminal record – links to Australian community not significant – no impediments to repatriation – decision affirmed.
Legislation
Migration Act 1958, 499, 501, 501CA
Cases
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197
R v Mulligan [2016] NSWCCA 47Rana and Minister for Immigration and Boarder Protection [2015] AATA 227
Secondary Materials
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Gary Humphries
25 May 2017
Background
Mr David Mulligan is an Irish citizen who has resided in Australia on various visas since 2008. On 1 April 2016 the NSW Court of Criminal Appeal sentenced him to 18 months imprisonment, with a non-parole period of 12 months, for the offence of recklessly inflicting grievous bodily harm on 11 September 2014. The delegate of the Minister for Immigration and Border Protection (the Minister) made a Mandatory Visa Cancellation Decision under s 501(3A) of the Migration Act 1958 (the Act) on 23 August 2016, cancelling Mr Mulligan’s visa, on the basis that Mr Mulligan did not pass the character test. On 21 October 2016 another delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision. It is this decision which Mr Mulligan has asked the Tribunal to review.
The Tribunal granted Mr Mulligan an extension of time to lodge his application for review, on account of difficulties he experienced in receiving documents while in gaol.
Mr Mulligan’s application was heard by the Tribunal on 27 April 2017. Mr Mulligan appeared by video link from Villawood Detention Centre, whence he had been transferred following completion of the non-parole period of his custodial sentence. He represented himself in the hearing, and called several witnesses who gave evidence on his behalf.
The relevant legislation
Section 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
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.
The Minister must cancel a visa that has been granted to a person if satisfied that the person does not pass the character test. A person is taken to not pass the character test if he or she has a substantial criminal record. Pursuant to s 501(7)(c), a person who has been sentenced to a term of imprisonment of 12 months or more has a substantial criminal record.
However, under s 501CA(4), the Minister – or the Tribunal standing in the Minister’s shoes – has the discretion to revoke the original cancellation decision:
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.
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the government’s policy on visa cancellations and contains a number of introductory statements, including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. The following Principles are set out in clause 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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 consideration 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.
10. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include primary considerations and other considerations. The primary considerations are:
(a) Protection of the Australian community from criminal and other serious conduct;
(b) The best interests of minor children in Australia affected by the decision; and
(c) Expectations of the Australian community.
Other considerations, relevant to Mr Mulligan, include:
(a) …
(b) Strength, nature and duration of ties [to Australia];
(c) Impact on Australian business interests;
(d) …
(e) Extent of impediments if removed.
Clause 8(2) of the Direction stipulates that information and evidence from independent and authoritative sources should be given appropriate weight in applying the considerations. Clause 8(4) provides that the primary considerations should generally be given greater weight than the other considerations.
The issues before the Tribunal
It is clear that Mr Mulligan’s visa was validly revoked pursuant to s 501(3A) of the Act, given that, with the sentence given to him in NSW, he did not pass the character test. Therefore the sole issue before the Tribunal, standing in the shoes of the Minister, is whether there is another reason, pursuant to s 501CA(4)(b)(ii), why the Mandatory Visa Cancellation Decision should be revoked. This requires consideration of any mitigating or extenuating factors favouring Mr Mulligan which might militate against the cancellation of his visa. The structure of s 501CA(4) suggests that it falls to a visa holder seeking the exercise of the discretion in subparagraph 501CA(4)(b)(ii) to assert the other reason why the original decision should be revoked. The existence of such a reason should be established on the balance of probabilities before the Tribunal.
The evidence before the Tribunal
Mr Mulligan grew up in Ireland – a rough part of Dublin – and went off the rails somewhat while growing up. He got on well with his immediate family but spent a period of time living with his grandmother while young. He arrived in Australia on 1 October 2008 at age 26 and, apart from short visits to Ireland, has resided in Australia ever since. He came with his then fiancée, also a citizen of Ireland. The visa which is the subject of the cancellation decision was issued to him on 3 July 2015.
He said he loves Australia and Australians and wanted to spend the rest of his life here.
Mr Mulligan has qualifications as a painter, and he told the Tribunal he was able to set up his own painting company in February 2014, having studied at TAFE in Australia to obtain appropriate qualifications, including a supervisor’s licence. He has also obtained qualifications as a personal trainer since coming to Australia, and had hoped to set up a company to deliver services in that market, and to employ apprentices in one or other of these businesses. He said he had been successful in attracting work, and presently had offers of work as a painter which he would be able to take up if freed from immigration detention. His personal trainer business had also suffered as a result of his imprisonment.
He also told the Tribunal being sent to prison had contributed to the end of his relationship with his fiancée, though he hoped, on release, to restore that. He said he had had time in prison to reflect on his behaviour, and the damage it had done to those around him, especially his sister, who is herself an Australian citizen. He deeply regretted that he might now not be able to stay in Australia, to build a career and attempt to re-establish his engagement with his fiancée.
Criminal history
Mr Mulligan has an extensive criminal history in both Ireland and Australia.
A police certificate from Ireland was tendered, disclosing some 35 offences committed by Mr Mulligan between July 2001 and June 2007. Most of these were traffic or driving offences such as speeding, driving without a driver’s licence, driving without insurance or failure to produce a driver’s licence. There was also an offence of larceny, of goods valued at €6,350, in July 2001 and Threatening/Abusive/Insulting Behaviour in public place, dated June 2004. He was also convicted in November 2003 of an offence of assault which, according to the certificate, attracted a four-month prison sentence. Mr Mulligan gave evidence, however, and the Tribunal accepts, that he did not in fact serve any time in prison in relation to this offence. He described to the Tribunal the circumstances in which the larceny and assault convictions arose; for example, the larceny related to taking a child’s bike. The Tribunal accepts that evidence.
A NSW police report discloses some 36 driving offences and traffic infringements committed by Mr Mulligan between 2009 and 2015. The most recent of these, an offence of driving whilst disqualified in December 2015, attracted a three month prison sentence. In addition, he was convicted in February 2009 of the offence of Behave in offensive manner in/near public place/school. He told the Tribunal that the latter related to conduct after being excluded from a nightclub in Sydney’s Oxford Street, for which he was fined. In relation to some of the traffic infringements, he explained that he had lent his car to friends who had committed the infringements, but he had been unable to appeal against the infringements, for a variety of reasons including the expense.
Mr Mulligan said he had lodged an appeal against a mid-range drink driving offence recorded against him in May 2015 in the Downing Centre Local Court in Sydney. He told the Tribunal that the appeal had been dismissed because he had lodged it out of time. The Tribunal notes however that, according to the National Police Certificate tendered, the District Court confirmed the conviction and the penalty of $1000 fine and 12 months disqualification from driving.
On 11 September 2014 Mr Mulligan was involved in an incident in suburban Sydney. The circumstances of the incident were described by the NSW Court of Criminal Appeal in this way:
5 On Saturday 11 September 2014 the victim was walking his two boxer dogs along a street in suburban Alexandria. The dogs were each on a leash. Mr Mulligan was at this time also walking his small dog on a leash in the same street. Despite everyone’s best endeavours, the three dogs became entangled in a brief scuffle when the victim’s dogs lunged at Mr Mulligan’s dog. The dogs were quickly separated and the boxers were restrained by the victim who took up a stationary position leaning against a parked car. Mr Mulligan and the victim exchanged words and Mr Mulligan picked up his dog and walked off.
6 Mr Mulligan took his dog into a car repair business close to where this incident occurred and left it there. He very soon emerged from these premises and walked back to the victim, who was still by the car with his dogs. Mr Mulligan then proceeded to pace back and forth along the footpath a number of times, coming to within a metre or so of the victim and then walking several metres away from him. A conversation of sorts would appear to have broken out between the two men while this was going on. On the last occasion that Mr Mulligan approached the victim, he punched him three times in the face, causing serious injuries. The victim was unable to offer any effective response in self-defence as he had a dog leash in each hand. Mr Mulligan then retreated from this event, retrieved his own dog and left the area.
7 The victim sustained several fractures to his face. These necessitated the insertion of five metal plates in his face and jaw. The victim continues to suffer from collapsed sinuses and nerve damage to the side of his mouth, resulting in slurred speech. His collapsed sinuses cause lung infections due to fluid entering his lungs.
The Tribunal was shown CCTV footage of the incident, as well as part of a television news report in which what purported to be the victim’s injuries were shown. The Tribunal takes into account that some elements of the news report – such as that Mr Mulligan had been on the run after the custodial sentence was handed down – were inaccurate.
Mr Mulligan conceded the essential details of the offence as found by the Court of Criminal Appeal but made a number of points in mitigation of the circumstances. He said that, after his and the victim’s dogs were separated, he had asked the victim to control his dogs, but the victim had repeatedly taunted him and called him an Irish cunt. He felt threatened by the victim’s language. The victim had offered to fight him, Mr Mulligan said. He said he saw the victim’s hand flinch, as if he might be preparing to hit him. However, him hitting the victim was a bad decision, he said. He also said that he believed the victim had come back to the car repair business shortly after the incident with five men to smash my face in, but Mr Mulligan had left by the time they arrived. He also asserted that discolouration on the victim’s face shown in the television news report was the product of a medical procedure, not of Mr Mulligan’s attack.
Mr Mulligan pleaded guilty to recklessly inflicting grievous bodily harm, for which he was sentenced to a 15 month suspended sentence in the NSW District Court, and ordered to pay $15,000 in compensation to the victim. The Crown appealed this conviction to the Court of Criminal Appeal, which substituted a sentence of 18 months imprisonment with a 12 month non-parole period. At the end of the non-parole period of his prison sentence, Mr Mulligan was transferred to Villawood Detention Centre, from where he appeared by video link at the hearing.
He told the Tribunal he had been a model prisoner in the New South Wales corrections system, incurring no disciplinary action or penalties for misbehaviour. His GIPA prison records were tendered, and confirmed this submission.
Mr Mulligan pointed out that, apart from traffic and road offences, he had no antisocial offences, or offences against another person, from the time of his Behave in offensive manner conviction in February 2009 until the grievous bodily harm offence in September 2014.
The medical evidence
Mr Mulligan explained that he had seen a psychiatrist, Dr Olav Nielssen, after the incident, who had diagnosed him with an attention deficit disorder. He said he had planned to undertake treatment for this disorder but had been prevented from doing so by his prison sentence. He said he was hoping to see Dr Nielssen again after release from prison to help him address the issues his diagnosis had pointed to.
A report by Dr Nielssen, dated 21 July 2015, was in evidence before the Tribunal. He diagnosed Mr Mulligan with substance use disorder and Possible impulse control disorder (attention deficit hyperactivity disorder). Dr Nielssen gave the following opinion:
The possible diagnosis of a form of impulse control disorder, such as attention deficit hyperactivity disorder (ADHD) was considered on the basis of Mr Mulligan’s account of a lifelong pattern of hyperactivity, impaired attention and a tendency to act on impulse, and aspects of his presentation at the time of the recent interview, when he was markedly restless and impulsive in his speech. The offence itself was consistent with impairment in impulse control.
…
From the history elicited and the findings on examination, Mr Mulligan was not thought to have any form of developmental delay, brain injury or psychotic illness. He reported the emergence of symptoms of depression, and more regular alcohol intake since the offence, which was followed by the breakdown in his nine year relationship and also the possibility of having to leave Australia, where he has established himself as a tradesman and in a new business. He is likely to derive some benefit from counselling to help him to overcome symptoms of depression and re-establish control [of] his alcohol intake, and to improve his awareness of a propensity to act on impulse and his impulse control.
Mr Mulligan said he saw a Gestalt therapist, Ms Esperanza Egan, about four times as well as a psychotherapist after his conviction in the District Court. A report from Ms Egan, dated 28 October 2015, was also in evidence before the Tribunal. In it she said that the two sessions she had conducted:
…provided some grounding work for future therapy, should Mr Mulligan take up the invitation… to address the triggers, deficiencies, and past developmental history which informed his actions on the day of the incident.
Mr Mulligan said he had tried to obtain treatment in prison for the condition diagnosed by Dr Nielssen, or access to an anger management course, but as he was not considered a prisoner at risk this treatment was not available to him.
Mr Mulligan admitted that alcohol abuse may have been a factor in his past criminal history, particularly in Ireland, but he said that it was not a factor in the offence committed on 11 September 2014. Between 2010 and 2014, as a personal trainer, his alcohol intake was very moderate, he said. He agreed however that he had begun drinking again following the commencement of court proceedings relating to grievous bodily harm.
Other witnesses
A number of witnesses gave character evidence on Mr Mulligan’s behalf. His sister appeared in person and other witnesses appeared by telephone. The witnesses were:
Ciara Mulligan (the applicant’s sister)
Ms Mulligan said she had come to visit her brother in Australia, had returned here and is now, with her husband, an Australian citizen. She described her brother as a hard worker, loving, caring. Of the incident in September 2014, she said from what I can recall her brother had told her that the victim hit David once.
David Mulligan (the applicant’s father)
A statement of Mr Mulligan senior dated 27 July 2015 was tendered. In it he described his son as a model citizen in Ireland and Australia. In live evidence, he described his son as a generous, giving kind of lad and a good, all-round character. He described how he had stayed with his grandmother while growing up for a short time to sort things out. However, he denied seeing any evidence of anger or impulsivity in his son while he was going up.
Mr Mulligan senior said he was unaware of his son being convicted of any offences of violence in Ireland. At the end of his evidence, however, his son explained that he sometimes didn’t tell his father about his offending in Ireland because the family thought it would upset him; his mother had always gone to court with him.
Karl Gaule
An undated statement of Mr Gaule was before the Tribunal. In it he referred to Mr Mulligan’s firm having previously done work for him, and to social interaction with him. In his testimony he described Mr Mulligan as a genuine, nice, good guy. He told the Tribunal he was unaware of any offences Mr Mulligan had committed other than the offence which saw him imprisoned.
Gareth Dennan
Mr Dennan testified that he had known Mr Mulligan since they were both in their early 20s in Ireland. He had lived with Mr Mulligan for a time, and had socialised and worked out at the gym with him, but had not worked with him. He described Mr Mulligan as very loyal. He too was unaware of any offences committed by Mr Mulligan other than the offence in September 2014.
Several other character references were also tendered. These have been read and considered by the Tribunal.
Consideration
The Tribunal must consider any mitigating circumstances which may militate in favour of setting aside the decision not to revoke the mandatory cancellation of Mr Mulligan’s visa. In doing so, it must be guided by the terms of the Direction. That Direction depicts a visa as:
…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.
Primary Consideration 1 is the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(1) of the Direction 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.… Mandatory cancellation without notice of the visas of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that 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.
In assessing the seriousness of Mr Mulligan’s past criminality and the risk posed should he commit further offences of this kind, the Tribunal is mindful of his long and persistent pattern of offending across two countries. Before September 2014 his conduct, though disturbing in its disregard for Australian law, may not have triggered consideration of cancelling his visa. The incident on 11 September 2014, however, is of such seriousness as to raise the prospect, even without his prior criminal conduct, of disentitling him to the continuing privilege of a visa. The video footage shown to the Tribunal clearly demonstrates an act of wanton violence carried out against a clearly-vulnerable victim. The Minister contended as follows:
…the Applicant's conduct and criminal history to date is very serious. He has committed a number of offences in Ireland and Australia. His criminal history shows a concerning pattern of ongoing and repeated disregard for the law, and in particular has escalated in seriousness more recently. His most serious offence, which occurred in 2015, involved violence against an elderly victim and resulted in him receiving an 18-month term of imprisonment. He also received a three month term of imprisonment for driving while during a disqualification period. He has committed offences involving antisocial behaviour, as well as a large number of driving offences in both Ireland and Australia, including drink driving offences, noting that road rules are intended to protect the community.
As already noted, Mr Mulligan accepted the essential facts surrounding the incident as shown in the video footage. The matters he placed before the Tribunal in explanation of his conduct included an emphasis on the provocative language used by the victim against him, the claim that it appeared to him that the victim may have been intending to strike back and the suggestion that the victim arranged for some men to come to the car repairer business to assault Mr Mulligan in revenge. The question arises as to how the Tribunal should assess these matters placed before it in apparent mitigation of the seriousness of the crime he was convicted of.
It is, of course, not appropriate for the Tribunal to engage in a comprehensive re-evaluation of the circumstances leading to this conviction or, for that matter, any of Mr Mulligan’s other offences and infringements which were placed in evidence. In Rana and Minister for Immigration and Border Protection [2015] AATA 227 the Tribunal observed:
9 There are very limited circumstances in which it is possible or appropriate to go behind the fact of a person’s conviction. The fact of the conviction, and the person’s personal responsibility for the acts constituting the offence, cannot be disputed. In Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; 91 FCR 234 the Full Court of the Federal Court considered an appeal from a Tribunal decision which had set aside a deportation order under ss 200 and 201(c) of the Migration Act 1958. The order had been made because of the person’s conviction, and custodial sentence, for manslaughter. In particular, the decision had placed particular reliance on the sentencing judge’s remarks that the person had stabbed the deceased twice. The Tribunal considered that the sentencing judge’s remarks were not open to him and, in reviewing the decision, had proceeded on a different factual basis. The Full Court of the Federal Court decided that the Tribunal had erred in departing from the sentencing judge’s findings. The Full Court said (at 91 FCR 244; ALD 358):
[40] ... [W]here the decision to be reached depends upon there having been a sentence that satisfies s 201(c) of the Act, it is not open to the tribunal to engage in any inquiry which would impugn the sentence. Accordingly, at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence.
...
[46] While it stands, the conviction and sentence must be conclusive, so far at least as concerns a tribunal reviewing a decision that takes the conviction and sentence as its starting point. Serious practical questions would arise if the position were otherwise. The tribunal could arrive at its own decision as to whether the person concerned did what he was charged with doing, and, for that matter, what sentence his offence merited. It would be doing so on material gathered and considered at what could be a long time after the trial. Accepted trial procedures would be absent. The Crown would not be a party; cf Minister for Immigration and Ethnic Affairs v Gungor, above, at FLR 445–6 per Fox J.[47] We do not accept the submission of counsel for the respondent that Beckner stands as authority to the contrary of the foregoing. In Beckner, Davies J was simply recognising that some matters, such as the risk of recidivism, which might be considered in passing by a sentencing judge will assume greater importance before the tribunal, and that the tribunal should allow further evidence to be given in relation to those matters to allow them to be considered more fully. His Honour did not say, nor do we take him to have meant, that the tribunal should feel free to disregard the findings of historical fact upon which the sentence was based, in particular findings as to the circumstances of the commission of the offence.
10 The distinction between prohibited contradiction of the events constituting a past offence, and the permissible contemporary assessment of a person’s professional fitness (see Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279), their likelihood of re-offending or their character is conceptually clear. But it is a distinction that can be inherently difficult in its practical application. In New South Wales Bar Association v Somosi [2001] NSWCA 285, a case concerning the relevance of a legal practitioner’s income tax offences to professional fitness, the Court of Appeal said that “the mere fact of conviction is not necessarily determinative”. In the same vein, in Minister for Immigration and Ethnic Affairs v Daniele [1981] FCA 212; (1981) 39 ALR 649 at 653; [1981] FCA 212; 5 ALD 135 at 138 the Full Court of the Federal Court explained that:
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However, such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial. ([9]-[10])
Mr Mulligan did not postulate a set of factual circumstances which were radically different to those which the NSW Court of Criminal Appeal found in relation to the incident, but there was certainly a difference in emphasis. Mr Mulligan placed some weight on the sustained nature of the provocation offered by the victim. The Court of Criminal Appeal saw things somewhat differently:
34 With the significant advantage of the CCTV footage, which his Honour ought to have viewed, it is apparent that Mr Mulligan was the aggressor. The victim was a man approaching 60 years of age, inoffensively walking his dogs on a Saturday morning. From shortly following the initial incident with the dogs, he remained stationary, leaning passively against a motor vehicle during the events complained of, never offering or implying a physical threat or resistance of any kind. Although Mr Mulligan’s height and weight were matters of apparent contention before his Honour, it is now clear that he was well built and muscular and obviously very fit. In my view, Mr Mulligan also appeared ominously familiar with boxing or fighting, having regard to the way in which he shaped up to the victim before striking him. Mr Mulligan also somewhat ironically presented himself with several opportunities to retreat from the looming confrontation but he unfortunately chose to take advantage of none of them. The ferocity of the assault is clearly to be seen in the seriousness of the damage that his punches inflicted.
35 His Honour made a series of findings that are impugned by the Crown. His Honour considered that Mr Mulligan was unable to control his emotions because he considered that his dog was at risk. Whilst the former is patently correct, the latter is demonstrably false. Mr Mulligan’s dog was well removed from any danger long before the assault took place. Mr Mulligan was also not, contrary to his Honour’s finding, small or of a very small build. Nor, to the extent that it could ever have been relevant, was the victim strongly built around the shoulders. His Honour felt that he was unable to determine who between Mr Mulligan or the victim was more responsible for the initial confrontation. The events depicted in the CCTV footage make it clear that Mr Mulligan was wholly responsible for it. Even if it were accepted for the sake of argument that the victim had goaded or taunted Mr Mulligan in the way suggested by him in his evidence before his Honour, the response it generated was wholly disproportionate to anything that might have been said.
…
38 The Crown conceded that Mr Mulligan’s criminal history was relatively minor when compared to the offence for which he was sentenced but was nevertheless inconsistent with an overwhelming subjective case. His Honour would have been aware that Mr Mulligan had received the benefit of a suspended sentence in Ireland on a charge of assault. Since then Mr Mulligan has committed further offences involving antisocial, offensive and aggressive conduct. The Crown contended that it was in these circumstances “contrary to principle” to impose a suspended sentence.
39 Nor was the expert medical evidence of particular assistance to Mr Mulligan. His Honour correctly ascertained that Mr Mulligan’s “emotions took over” when the offence was committed. Dr Nielssen did not, however, affirmatively diagnose impulse control disorder, but instead considered a form of such a disorder as a possible diagnosis. His Honour did not find, nor is it suggested by Mr Mulligan that he ought to have found, that he was suffering from a medical condition that effectively explained his offending behaviour.
40 In my opinion, the sentence imposed by his Honour was manifestly inadequate… The seriousness of the assault is adequately reflected in the injuries that it caused. The offending cannot be explained and certainly cannot be excused. Even if Mr Mulligan were entitled to the benefit of some kind of provocation, his violent response was entirely disproportionate… Mr Mulligan’s modest criminal history is not particularly significant in the scheme of things but neither does it positively assist him and it certainly could not generate an enthusiasm for leniency of the type that his Honour was minded to extend.
Following the Federal Court in Minister v SRT, the Tribunal here accepts the essential facts found by the NSW appeal court, in particular the gravity of Mr Mulligan’s actions on 11 September 2014 and the marginal relevance to those actions of any provocation offered by his victim. To the extent that there is a divergence in the facts as asserted by Mr Mulligan and as found by the NSW court, the Tribunal prefers the latter. For example, the Tribunal adopts the finding of the court that the victim was unable to offer any self-defence because he had a dog leash in each hand rather than Mr Mulligan’s evidence that the victim appeared to be about to strike him with his free hand. The matters asserted by Mr Mulligan – supposedly in mitigation of his culpability – have some bearing on the question of how fully he has accepted responsibility for his actions. That issue is discussed further below.
Paragraph 13.1.2(1) provides that in considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australia community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. It notes:
Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In considering the factors in paragraph 13.1.2(2) of the Direction, the Tribunal is driven to the conclusion both that there is significant likelihood of Mr Mulligan engaging in further criminal conduct if he remains in Australia, and that such criminal conduct could include further crimes of violence. It comes to this conclusion on three bases.
First, the persistence of a pattern of criminal offending is such as to offer little satisfaction that the pattern has come to an end. Mr Mulligan exhibits a sustained habit of law-breaking, commencing in his youth and continuing in a more or less unbroken chain until 2015, with the most serious offence – the grievous bodily harm conviction – occurring late in that period. Even accepting that there were extenuating or mitigating circumstances surrounding some of those offences, the regularity of this offending strongly suggests the likelihood of further offending in future. The Tribunal notes Mr Mulligan’s assurance that while in gaol he has critically assessed his past behaviour and has resolved not to engage in such behaviour again. However, it does not seem to the Tribunal that his crimes hitherto have been the product of careful judgement but rather of recklessness or impulsivity. The Tribunal lacks confidence that his reaction on the next occasion he is provoked will be dictated by rational reflection rather than by his emotions once again taking over, adopting the language of the Court of Criminal Appeal.
Secondly, the Tribunal is troubled by Mr Mulligan’s failure to engage systematically with the matters suggested by Dr Nielssen. It should be noted that Dr Nielssen, following his single consultation with Mr Mulligan, found that an impulse control disorder was no more than a possible diagnosis of Mr Mulligan’s condition, but no better evidence of a medical reason for his criminal behaviour is before the Tribunal. Nine months went by between Dr Nielssen making his suggested diagnosis and Mr Mulligan being imprisoned, yet – notwithstanding a handful of visits to psychological therapists – no comprehensive diagnosis or treatment of this condition appears to have been undertaken. A failure to satisfactorily address a tendency to act on impulse must lead to doubt as to whether impulsive acts of violence might not occur again.
Thirdly, doubt must be raised as to whether Mr Mulligan has fully accepted responsibility for his past conduct, and the September 2014 assault in particular. The Tribunal notes that Mr Mulligan pleaded guilty to the assault, and has stated that he is remorseful, but notes also the weight he placed when giving evidence on the fact that he was provoked and threatened, in apparent justification for the offence. Some of the witnesses he called emphasised this element, suggesting that Mr Mulligan placed some store on this element when relating the circumstances of the incident. The Minister contended that this demonstrates a continuing lack of insight into the offending and a failure to fully acknowledge his responsibility for it, and the Tribunal agrees. A sense of partial justification in doing what he did must lend some concern as to what he would do if provoked in the same way in future.
Primary Consideration 1 therefore weighs heavily against revocation of the Mandatory Visa Cancellation Decision. Primary Consideration 2 – the best interests of minor children in Australia affected by the decision – has no relevance here. In assessing Primary Consideration 3 – expectations of the Australian Community – the Tribunal gauges that the Australian community would most likely afford little tolerance to visa holders who commit crimes of the kind committed by Mr Mulligan, particularly the grievous bodily harm offence. That view is reinforced by the following principles outlined in paragraph 6.3 of the Direction:
(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.
…
(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…
(6) Australia has a low tolerance of any criminal or other serious conduct by …those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to …remain permanently in Australia.
The other considerations referred to in Part C of the Direction offer little to offset the weight the Tribunal must attach to the primary considerations. Paragraph 14.2 of the Direction outlines the significance to be placed on the strength, nature and duration of a visa holder’s ties to Australia (though it notes that less weight should be given where a non-citizen began offending soon after arriving in Australia – which is the case here). In this regard, the Tribunal accepts that Mr Mulligan has established many friendships in Australia, and has a warm and positive attitude towards this country and a genuine desire to make his future here. However, he is no longer in a relationship with his fiancée, who remains here, and although he is particularly close to his sister, now an Australian citizen, this one significant relationship only slightly tips the scales towards his remaining in Australia.
Mr Mulligan has had business interests in Australia, but both his painting and his personal trainer businesses are now moribund. Paragraph 14.3(1) of the Direction notes 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. That threshold is certainly not met here.
Paragraph 14.5 of the Direction describes relevant factors when considering the extent of any impediments a non-citizen may encounter if removed from Australia. In this regard, there is no evidence that Mr Mulligan, if repatriated to Ireland, would face any impediments in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country), given that he has lived there most of his life. Most members of his close and supportive family live there, his age and health do not present any challenges and there are no language or cultural barriers.
The Tribunal accepts that Mr Mulligan has held stable employment in Australia in the past, and has provided evidence of volunteering at a dog shelter and volunteering as a DJ once a year at an event for underprivileged children. It also notes the supportive character evidence provided by two family members and two friends in the hearing. It appears, however, that most of those witnesses were not fully apprised of Mr Mulligan’s rich criminal past, and some reduction of the weight of that evidence seems reasonable on that account.
Surveying all the evidence, there are some factors which do indeed argue for revocation of the visa cancellation: in particular, his remorse for the grievous bodily harm offence, his period of self-reflection while in gaol, the strong relationship with his Australian-citizen sister, favourable character references and a demonstrated ability to contribute economically and socially to Australian society. However, taken together these factors simply do not outweigh the gravity of the circumstances which pertain to Primary Consideration 1 – the protection of the Australian community from criminal conduct. Mr Mulligan’s deficit in this respect is simply too great, and this factor alone makes a compelling case for non-revocation of the visa cancellation.
The Tribunal accordingly affirms the reviewable decision of the Minister’s delegate not to revoke the Mandatory Visa Cancellation Decision in respect of Mr Mulligan.
I certify that the preceding 54 (fifty-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Gary Humphries
.........................[sgd]...............................................
Associate
Dated: 25 May 2017
Date(s) of hearing: 27 April 2017 Date final submissions received: 3 May 2017 Applicant: In person Advocate for the Respondent: Ken Powell Solicitors for the Respondent: Clayton Utz
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