Murphy v Minister for Immigration and Border Protection - [2018] AATA 750

Murphy and Minister for Immigration and Border Protection (Migration) [2018] AATA 750 (28 March 2018)
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL )
) No: 2018/0054

General Division )
Re: Jason Murphy
Applicant

And: Minister for Immigration and Border Protection
Respondent
DIRECTION
TRIBUNAL:              Mr P W Taylor SC, Senior Member
DATE:   29 March 2018
PLACE:                    Sydney

The Tribunal directs the Registrar, pursuant to subsection 43AA(1) of the Administrative Appeals Tribunal Act 1975, to alter the text of the decision in this application such that it reads as follows:

The second sentence in paragraph [56] to read as “But the actual statement that the expectation is defined only as one of non-revocation where a person has been convicted “of serious crimes of a certain nature” is not precisely accurate – having regard to the actual wording of clause 13.3.”

The fifth sentence in paragraph [70] to read as “This is partly because the absence of significant injury was perhaps fortuitous – given the impulsiveness, and typically drug related nature, of Mr Murphy’s behaviour.”

The sixth sentence in paragraph [70] to read as “It is also partly because of the conceded feature of violence in Mr Murphy’s domestic relationships, (apparently illustrated by the 15 October 2015 offence – see paragraph 35(b) above).”

..............................[sgd]...............................
Mr P W Taylor SC, Senior Member
Division:GENERAL DIVISION
File Number: 2018/0054
Re:Jason Murphy
APPLICANT

AndMinister for Immigration and Border Protection
RESPONDENT

Decision
Tribunal:Mr P W Taylor SC, Senior Member
Date:28 March 2018
Place:Sydney

The decision under review is affirmed.
..................................[sgd]......................................
Mr P W Taylor SC, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – request for revocation of cancellation – character test – substantial criminal record – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk of reoffending – best interests of minor children – expectations of the Australian community – other considerations – prospect of rehabilitation – decision under review affirmed.
Legislation
Migration Act 1958 (Cth), ss 501, 501CA, 501(3A)
Sentencing Act 1991 (Vic), ss 27, 36
Cases
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66
Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 65 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Mr P W Taylor SC, Senior Member
28 March 2018

Mr Murphy was born in the United Kingdom. His father brought him to Australia in about 1987 (when he was four years old) following the breakdown of his parent’s relationship. At the time of the 2 February 2017 cancellation decision, that effectively triggered the present review proceedings, Mr Murphy was aged 33 and held a Class BF Transitional (Permanent) visa.
Mr Murphy has battled with drug addiction since he was about fourteen. In the many skirmishes involved in that battle during his adult years, he has incurred numerous convictions. More significantly, for present purposes, in September 2010 he was sentenced to imprisonment for 12 months. In May 2011, he incurred a further six month suspended sentence. In November 2016, he received further concurrent eight month sentences, for a number of offences committed in the period from September 2014 to September 2016. At least (but not only) because of the sentences in 2010 and 2016, Mr Murphy acquired a “substantial criminal record” and has long been precluded from satisfying the “character test” in the Migration Act 1958 (“MigAct58”) ss 501(2), (6)(a), (7)(c)&(d).
Until the December 2014 commencement of the Migration Amendment (Character and General Visa Cancellation) Act 2014, the Minister had a discretion to cancel the visa of a non-citizen who had acquired a “substantial criminal record”. The Minister’s consideration of that discretion led to Mr Murphy receiving a formal warning, in September 2011, that he was at risk of visa cancellation if he re-offended.
Since December 2014, under the terms of the amended MigAct58 provisions, the Minister must;
(i)cancel the visa of any non-citizen prisoner if satisfied they have a “substantial criminal record”,
(ii)provide particulars of the reasons for the cancellation decision and,
(iii)invite the non-citizen prisoner to make representations about revocation of the cancellation:- MigAct58 s 501(3A), 501CA(2)&(3).
That statutory obligation triggered the 2 February 2017 cancellation of Mr Murphy’s Class BF visa.
The Minister may revoke a cancellation decision, if satisfied, either
(i)that the non-citizen passes the “character test” (an inherently unlikely contingency) or,
(ii)that “there is another reason why” the cancellation decision should be revoked: MigAct58 s 501CA(4). (A revocation decision has the effect of treating the visa in question as never having been cancelled:- MigAct58 s 501CA(5).)
The “another reason” criterion involves more than just satisfaction that there is a reason favouring revocation. It requires an evaluative assessment of all the relevant matters, both those that favour revocation and those that do not:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]-[32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The evaluation required is for the purpose of achieving a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]-[83]; 227 FCR 562.
Ministerial Direction 65
The “another reason” revocation discretion conferred by MigAct58 s 501CA(4)(b)(ii), when exercised by either a Ministerial delegate or this Tribunal, is subject to the discipline of compliance with “Direction no 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (“Direction no. 65”). (It is a Ministerial direction authorised by MigAct58 s 499(1) & (2A).)
In setting out the guidance and policy it contains, Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. On the contrary, that is the actual purpose of the Direction: Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35] the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction, but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act…
Direction no. 65 has two sections, and three specific parts. Section 1 is a preliminary section. It contains a Preamble that
(i)details the objectives of the relevant MigAct58 provisions,
(ii)provides a statement of “general guidance” for decision makers exercising relevant MigAct58 powers, and
(iii)sets out “principles” described as providing “a framework within which decision-makers should approach” their particular statutory tasks.
The general guidance part of the Direction no. 65 Preamble declares commitment to protection of the Australian community from “harm as the result of criminal activity … by non-citizens”. It describes the “principles” as being of “critical importance” in furthering that objective. It declares that the principles “reflect community values and standards” to be taken into account in “determining whether the risk of future harm from a non-citizen is unacceptable”:- cl 6.2(1).
The principles stated in Direction no. 65
(a)characterise a non-citizens’ lawful presence in Australia as a “privilege” (a not entirely accurate description – see Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11; (2016) 237 FCR 1 at [26])
(b)assert an expectation of law abiding respectful conduct by non-citizens
(c)contemplate a range of tolerance for “criminal or other serious conduct” by non-citizens, influenced by the nature of the conduct, the period of time the non-citizen has lived in Australia and the extent to which they have “been participating in, and contributing to, the Australian community”;
(d)recognise the relevance of the extent and nature of a non-citizen’s positive contribution to the Australian community; and
(e)recognise the relevance of any adverse impact of visa cancellation on a non-citizen’s Australian resident minor children and other family members.
An expressly stated principle of community expectation is that a visa should be cancelled if the holder has committed “serious crimes”. Other parts of the principles contemplate some permissible tolerance of criminal conduct. The degree of tolerance is stated to be “low” where the visa holder’s Australian community presence has been “only for a short period of time”. It is permissibly, but imprecisely, higher, where the person has lived in Australia since an early age, or for most of their life. The extent of the permissible tolerance range, and the calibration of any particular non-citizen’s conduct or risk within that range, will depend on impressions about whether the nature and extent of the past, and apprehended future, conduct is so serious that “any risk of future similar conduct in the future is unacceptable”:- cl 6.3(4).
Section 2 of Direction no. 65 deals more specifically with the exercise of the relevant decision making power. It requires decision makers to act in a manner “informed by the principles”, take into account “the primary and other considerations relevant to the individual case”, and recognise that primary considerations “should generally” be given greater weight. Part C of Section 2 articulates the “primary” considerations, and some of the “other’ considerations, to which regard must be had in response to revocation representations invited under MigAct58 s 501CA(3)(b).
The “primary” considerations in Part C are:
(a)the protection of the Australian community;
(b)the expectations of the Australian community, and
(c)the best interests of minor children in Australia.
The “other” considerations specifically discussed in Part C, to the extent they are relevant to Mr Murphy’s particular circumstances, are:
(a)the strength, nature and duration of his Australian ties;
(b)the impact of any revocation decision on victims of his conduct; and
(c)the nature and extent of any difficulties he is likely to encounter if removed from Australia as a result of the visa cancellation decision.
Mr Murphy’s criminal history
The known details of Mr Murphy’s offences, convictions and sentences of imprisonment are summarised in the two Schedules to these reasons. Schedule 1 includes the offences and sentences in the period before the Minister’s 30 September 2011 warning. Schedule 2 includes Mr Murphy’s later offences and convictions. In each Schedule I have included the date of the actual offence (where it can be discerned from the available information), Mr Murphy’s age, and an approximate characterisation of the nature of the offence – whether it involved drug use, violence or theft.
The information summarised in Schedule 1 indicates that
(a)between the ages of 18 and 28 Mr Murphy committed about 26 offences and incurred 23 convictions
(b)Mr Murphy’s offences predominantly involved theft (10 offences) and drug use (6 offences).
(c)five of Mr Murphy’s offences (but only four of his convictions) involved some degree of violence, and three involved reckless causing of injury
(d)up until his August 2010 offences Mr Murphy was consistently merely fined, or made the subject of community work orders made under the Sentencing Act 1991 (Vic)
(e)Mr Murphy’s apparently most serious offences were committed in the seven month period between August 2010 and March 2011, and resulted in his imprisonment on two occasions – from April to October 2010 and again from March to October 2011.
In relation to the offences where Mr Murphy was dealt with by way of community service order, or suspended sentence, it is relevant (in assessing the significance of those offences) to note the substance of the applicable statutory provisions:
(a)Sentencing Act 1991 (Vic) s 27: This provision permitted a court to suspend a sentence of imprisonment where satisfied that it was “desirable to do so in the circumstances”. The considerations to which regard was required in arriving at any such satisfaction included (i) the nature of the offence, (ii) the impact of the offence on any victim, (iii) the adequacy of deterrence and denunciation of the offence, (iv) the past behaviour of the offender in complying with previous suspensions, and the degree of risk of re-offending during the period of any suspension. Sentences for a “serious offence” could only be suspended in exceptional circumstances.
(b)Sentencing Act 1991 (Vic) s 36: This section conferred a discretion to order an offender to undertake community service. Such an order was limited to a maximum period of 2 years and was subject to various “core conditions”, which included (i) reporting to a community corrections centre, (ii) complying with any lawful instructions of a community corrections officer, and (iii) not committing any further offences punishable by imprisonment. Breach of a condition of a community service order constituted an offence, and permitted a court to vary or cancel the order, and sentence the person for the original offence. But the breach offence itself appears only to have been punishable by a monetary fine: see Sentencing Act 1991 ss 36 & 47(3A).
The nature of both the Mr Murphy’s 2004 offences and his August 2010 offences suggests a close association between his illicit drug use and his other offences. That association is particularly evident in the August 2010 offences – which included six drug offences (for all of which he was fined) and the injury offence (for which he received a four month suspended sentence).
That association is also apparent in the circumstances that led to his robbery conviction in September 2010. Those circumstances were summarised in the County Court’s sentencing remarks. According to that summary the offence occurred near Luna Park at St Kilda, late in the evening of 19 February 2010 (Mr Murphy’s daughter’s second birthday). Mr Murphy, the child’s mother and a friend were out drinking. Later in the evening they interacted with a young French tourist, and exchanged phone numbers with him. Still later Mr Murphy’s friend messaged the tourist to meet them in the nearby car park. When the tourist returned, the four of them walked to a park area near the beachfront and sat down. When the tourist went to leave, Mr Murphy stood up behind him, put his hand on his shoulder and stood on the strap of his shoulder bag. The friend pulled out a knife and demanded the tourist’s money. A scuffle ensued in which the tourist was punched in the jaw (apparently by the friend) but fled without suffering any further injury. In his flight, he left behind the shoulder bag. It contained a laptop, some personal documents and a small amount of money.
The County Court judge characterised the robbery as a serious offence that required a custodial offence to provide a measure of both specific and general deterrence. But the judge accepted that Mr Murphy had neither used, nor even been aware of his friend’s possession of, the knife. The judge also accepted that incident was a random, rather than a predatory, occurrence, had occurred in the context of drug use and that the French tourist had “some understanding of what was going on” (an allusion that suggests all four were participating, or intending to participate, in illicit drug use).
In relation to Mr Murphy’s personal circumstances, the County Court judge noted that he had “a significant criminal history” – characterised by “street offending, dishonesty and that type of thing”. Apparently disregarding the two December 2009 offences recorded in Schedule 1, the judge noted that Mr Murphy had not offended for four years. The judge also recorded that it was clear Mr Murphy had “lost the plot” as a result of a protracted dispute over the custody of his daughter, and that this was significant factor leading up to Mr Murphy’s resumption of drug use, and the February 2010 offence.
The judge’s reference to a custody dispute appears to have come, at least in part, from a forensic psychologist’s assessment (Dr Cunningham’s report) carried out in August 2010. The report included a history of disrupted childhood where Mr Murphy had suffered some degree of early childhood physical and sexual abuse (perhaps at the hands of either step-siblings or the children of his father’s former partner), had lived with his grandparents between the ages of 4 and 15, then with his father and stepmother until he was 19. After that, he had lived with his grandparents – or on the streets, as a result of his drug use. (That drug use had started in Mr Murphy’s early teens. By the time he was 22, he had become a daily heroin user.) After Mr Murphy’s daughter was born in 2008, he had been her principal carer, and had been drug abstinent for a substantial time. But after losing custody of his daughter, and moving back to his grandparents’ home, Mr Murphy had lapsed back into drug use.
The specific purpose of Dr Cunningham’s assessment and report was to provide an opinion about Mr Murphy’s intellectual capacity and his risk of re-offending. In order to form his opinion, Dr Cunningham obtained the history I have abbreviated above, and the further information that Mr Murphy reported anxiety, depression, paranoid ideation, difficulty sleeping and numerous suicide attempts. Dr Cunningham also assessed Mr Murphy’s mental state and administered appropriate psychometric tests. Having done so, Dr Cunningham opined that Mr Murphy had no intellectual disability, but presented with symptoms of clinically significant anxiety and depression suggestive of an “underlying (but not specifically diagnosed) personality disorder.
Dr Cunningham opined that, according to the psychometric tool he had used, Mr Murphy presented as a “moderate risk” of engaging in future violent behaviour. Dr Cunningham explained that the assessment tool had regard to three “domain” categories of risk:
(i)historical
(ii)clinical; and
(iii)management
In relation to clinical risk, Mr Murphy had active symptoms of mental illness, and displayed both lack of insight and impulsivity. In relation to management risk, Mr Murphy had a stressful and destabilising social environment and had been non-compliant with previous rehabilitation measures.
Dr Cunningham did not leave the psychometric test results to speak for themselves. He went on to provide additional interpretative comments. Those comments identified Mr Murphy as having “offence specific risk factors” (substance abuse and negative peer association) and “offence related risk factors” (depression, anxiety and “personality dysfunction”). Dr Cunningham opined that Mr Murphy did not appear to have the psychological maturity necessary to cope with independent living and separation from his romantic partner and peers. However, Dr Cunningham noted that Mr Murphy appeared to be motivated to engage in treatment. And in expressing the view that Mr Murphy had a positive prognosis, Dr Cunningham opined that “successful treatment of his drug addiction should address his underlying personality dysfunction”.

It is readily apparent from the County Court remarks that the sentencing judge substantially accepted Dr Cunningham’s assessment about Mr Murphy’s positive prognosis. Rather than merely alluding to the psychometric assessment tool’s indicated result of “moderate” risk, the judge noted Dr Cunningham’s further view that drug use presented the primary risk of Mr Murphy re-offending risk. The judge expressed the view that “the prospects of you re-offending should be minimal, if you can complete, or at least endeavour to complete that rehabilitation”.
The last entry in Schedule 1 refers to a further offence, involving violence, that Mr Murphy committed in early 2011 – a few months after he had been released from prison and was on parole. The commission of that offence contradicted the basis for the optimism the County Court judge had previously expressed. There are no available sentencing remarks relating to these offences, but something of the background relating to them can be derived from Dr Cunningham’s further report of 14 May 2011.
Much of what Dr Cunningham said in that report repeated information contained in his September 2010 report. The principal differences were
(i)removal of the previous comment that Mr Murphy showed good insight,
(ii)additional details of Mr Murphy’s education and work history (he had last worked for about a year in 2009),
(iii)more specific information that Mr Murphy had attempted suicide on more than 20 occasions (after relapsing into drug use and becoming homeless),
(iv)Mr Murphy’s explanation that he had relapsed into drug use after his prison release – because he had been “freaked out” by the difficulty of living in the community compared to the structure of prison life and, most importantly,
(v)a specific diagnosis of “Borderline Personality Disorder”.
Dr Cunningham did not re-assess Mr Murphy’s intellectual capacity, but he did re-administer the risk assessment tool he had previously used. On this occasion he reported that the test results indicated a “moderate – high” risk of future violent offending. He went on to opine that the “offence related risk” relevant to Mr Murphy was his drug abuse and his “untreated” personality disorder. Dr Cunningham emphasised that the Borderline Personality Disorder he had diagnosed was a “serious psychiatric illness that results when an individual’s normal personality development is compromised”. Dr Cunningham regarded such a compromise as consistent with the history he had obtained. In relation to the “offence specific risk factors” Dr Cunningham again pointed to Mr Murphy’s drug use. He noted that Mr Murphy reported being “intoxicated with benzodiaxepines” at the time of the March 2011 offences – and considered that such a level of intoxication would have impaired his judgment and resulted in significant disinhibition.
Without any additional specific information about the circumstances of the March 2011 offences, it is not possible to form any reliable view of the extent of their seriousness. However, it is reasonable to infer that Mr Murphy was in a distressed psychological state and that the offences themselves were at the lower end of the range of seriousness suggested by the nature of the charges. It is reasonable to do so because
(i)his criminal history report records that at the time he was at risk of self-harm, because of heroin withdrawal and personality disorder and had self-inflicted stab wounds to his legs and arms,
(ii)the six month sentence was less than the September 2010 robbery conviction sentence, and
(iii)Mr Murphy received the “warning” (rather than visa cancellation) whilst he was still in custody serving the six month sentence.
The information in Schedule 2 summarises the offences Mr Murphy committed after March 2011. The summary includes the following matters:
(a)within seven months of his October 2011 release from prison, Mr Murphy had returned to illicit drug use, and committed three further offences – all of which were dealt with by way of fines
(b)some time prior to October 2013, Mr Murphy committed 14 further offences (five bail offences, four involving drug or alcohol abuse, two thefts and three offences of resisting police) – all of which were dealt with together, and resulted in a 12 month community service order
(c)in June 2014, Mr Murphy committed 19 further offences (one involving intoxication, two bail offences, seven theft related offences, seven offences relating to resisting arrest, and two other offences) – all of which were again dealt with together and resulted in an 18 month community service order
(d)in November 2016, Mr Murphy was dealt with for 16 more offences that he had committed between September 2014 and September 2016 (five offences involving assaults or threats of violence, two involving property damage, two involving contravention of community service or family violence orders, two involving intoxication, and one involving breach of bail conditions). These offences attracted an undifferentiated sentence of eight months’ imprisonment.
(e)in the whole period after the 30 September 2011 warning, Mr Murphy committed a further 57 offences, incurred fines totalling about $2,000, and served one eight month term of imprisonment.
It is readily apparent from the Schedule 2 information that the (approximately 42) offences that resulted in convictions prior to November 2016 were typically dealt with either by way of fine, or a community service order: see paragraph 19 above. No specific details of the circumstances of those offences were the subject of evidence – other than a suggestion that one or other of Mr Murphy’s theft convictions involved being refused service at a bottle shop, but nevertheless leaving money and taking the liquor. It was only the circumstances of the offences involved in Mr Murphy’s November 2016 convictions that were described to any significant extent in the evidence.
Despite the fact that the evidence did not reveal the specific circumstances of the offences for which Mr Murphy was convicted in October 2013, they occurred some six months after his grandfather’s death, and at a time of apparently chronic conflict between Mr Murphy and his then partner. Both of them appear to have been involved in alcohol abuse and illicit drug taking. There was a mid-October 2013 police report of a heated verbal domestic argument about stolen prescription medication and reference to some twenty reports of previous “incidents” involving the couple.
The transcript of the magistrate’s court proceedings on 18 November 2016 indicates that all the charges were dealt with by way of a plea of guilty in relation to the factual assertions in various informants’ statements outlined in the transcript. That transcript outline is not easy to follow – because the matters were not addressed in chronological order, and the charge descriptions do not consistently match the offence and conviction details in other conviction records in evidence. The best understanding of the various significant offences appears to be as follows:
(a)18 September 2014: These two offences appear to have been the “assault police” and “threatening words” offences that were the major factor in the 18 November 2016 sentencing. Mr Murphy had been at a shopping centre with his five year old daughter and her mother. Someone else threatened the child’s mother, a scuffle broke out and Mr Murphy was struck in the face and suffered a bloodied lip. A nearby police foot patrol observed the incident and came over. At that point the initial assailant walked away. But Mr Murphy ran after him, threatening to “get” him. One of the policemen obstructed Mr Murphy’s pursuit path, and Mr Murphy stepped back yelling with anger at the policeman and, apparently in the process of yelling, spitting blood. The transcript records that the police officer, fearing he was about to be assaulted, subdued Mr Murphy with capsicum spray.
(b)15 October 2015: These offences arose out of an argument between Mr Murphy and his former partner at her home. As a result of the argument, she told him to leave. But he returned a little later in an agitated state, violently shook her door attempting to get in, and when the glass in the door broke, he went in. Once inside, according to the transcript, Mr Murphy pushed her and punched her once on the side of the face. Despite the allegation of pushing and punching, the transcript records that the former partner received no visible injuries. It also appears that Mr Murphy was neither charged with, nor convicted of, any assault offence.
(c)2 November 2015: (the three resistance and assault offences): Mr Murphy got onto a train without swiping his “Myki” card, and then ran away from two transport inspectors who confronted him and sought to obtain his particulars. When the two officers gave chase and tried to arrest him, Mr Murphy swung his arms at them to resist apprehension. When Mr Murphy was taken to a nearby police station, he was observed to be drunk.
(d)11 April 2016: Mr Murphy became verbally abusive to a fellow passenger on a tram. An off duty police officer confronted him and asked him to get off the tram. When he refused, the police officer restrained him and forced him off the tram. Upon being released from restraint, Mr Murphy unsuccessfully swung a punch, and was arrested.
(e)15 September 2016: After being served with a family violence order, Mr Murphy went to his partner’s address and asked her to return a bag of his clothes. When she refused, he removed the fuse from the external fuse box. The partner asked him to put the fuse back. He said he would if she gave him his clothes. She refused and called the police.
(f)21 September 2016: Mr Murphy attended his former partner’s address, in contravention of a family violence order. Mr Murphy had left, apparently without incident, before police attended and found him at a nearby intersection. When police went to physically restrain him, he swung a clenched fist at one of them, but then after being threatened with capsicum spray, complied with an instruction to lie on the ground. However, he was verbally abusive and then attempted to spit at the police officer.
Despite the number and variety of the offences that were the subject of the November 2016 convictions, the sentencing magistrate’s brief remarks were primarily directed at the various incidents on 2 November 2015, 11 April 2016 and, most specifically, that of 18 September 2014. That is readily apparent from the magistrate’s reference to the charges as “involving various assaults and threatening behaviour and generally meeting the police or protective services officers with resistance and relatively low levels of violence”, and to the fact that Mr Murphy had been assaulted himself (in the case of the September 2014 incident). The magistrate noted, nevertheless that Mr Murphy’s conduct in spitting or attempting to spit on someone was a serious matter.
The Minister contended that Mr Murphy’s sadly numerous offences readily merited characterisation as serious for the purposes of Direction no. 65 and the exercise of the revocation discretion. The Minister also pointed to a history of domestic conflict and violence. That history was suggested by the two incidents in October 2013 and October 2015, and corroborated by Mr Murphy’s acknowledgement (in a 16 October 2017 letter) that his domestic relationships in recent years had been with other drug users, had involved a degree of violence, and had ended with apprehended violence orders being issued against him. The Minister’s submission was that the combined effect of the multiplicity of Mr Murphy’s offences, and the undercurrent of violence associated with some of them, and his domestic relationships, strongly pointed to the significance of both the protective and community expectation primary considerations described in Direction no. 65.
Risk of reoffending
Two striking features of Mr Murphy’s offence history are his chronic substance abuse and the readily apparent failure of previous sanctions, encouragement and warnings, in achieving any significant rehabilitation. The latter failure being highlighted by Dr Cunningham’s May 2011 report – which deleted (from his earlier report) an observation that Mr Murphy had good insight, and provided a specific ”borderline personality disorder” diagnosis. Its main symptoms were anger, impulsivity, severe mood swings and paranoia. Dr Cunningham observed that individuals with such an illness had an inability to adopt structured routines and place limits on their behaviour.
Mr Murphy has been in custody, either in or immigration detention since September 2016. Shortly after being sentenced in November 2016, he sought out mental health and drug rehabilitation assistance within the prison system. Relevant stages in that process included the following:
(a)4 – 18 November 2016: Mr Murphy acknowledged that he had illicitly used buprenorphine whilst in prison, and requested a transfer to Fulham Correctional Centre.
(b)23 November 2016: At the time of his initial reception into the Fulham Correctional Centre, Mr Murphy reported current symptoms of depression, elevated heart rate, excessive sweating, nightmares and flashbacks to past childhood abuse. He was prescribed paroxetine (an anti-depressant used to treat anxiety disorders).
(c)20 & 23 December 2016: Mr Murphy requested referral to opioid substitute therapy and at a later mental health assessment reported a history of childhood abuse, chronic polysubstance abuse and anxiety. He acknowledged the need to manage his anxiety and expressed a motivation to undertake cognitive behavioural therapy.
(d)9 January 2017: Mr Murphy began to participate in an opioid substitute therapy program, on a daily methadone dose of 20mg.
(e)11 January 2017: On a mental health review two days after starting on methadone, Mr Murphy was reported having long standing anxiety which he attributed to physical and sexual abuse in his early years. He was recorded as presenting with a poor sense of self-worth and poor emotional self-regulation as a result of chronic drug abuse. However, he was also reported as having good insight into his deficits and motivated to learn how to engage his cognitive skills to better understand and control his behaviour.
(f)20 January 2017: Less than a fortnight after starting methadone treatment, he presented at a further mental health assessment and reported significant anxiety and insecurity in interacting with people. He expressed frustration about his mood fluctuations and confessed to a feeling that he had “no stable sense of self”. He expressed a desire to reduce his anxiety through counselling, rather than medication. However, the psychiatric nurse considered that it was not appropriate to attempt to engage Mr Murphy in cognitive behavioural therapy at that time, because of current level of anxiety.
(g)2 March2017: Two months after starting methadone treatment, and a month after being informed of his visa cancellation, Mr Murphy attended a further mental health review at the Fulham Correctional Centre. On this occasion, he was described as presenting with a considerable reduction in anxiety. He was then introduced to the basic concepts of cognitive behavioural therapy, and recorded as being both receptive and displaying some insight into the process involved. He claimed to be focussed on developing a more positive self-image with a view to reducing his latent anxiety. The psychiatric nurse provided Mr Murphy with literature on distress intolerance and a worksheet on mindfulness practice.
Mr Murphy was due for a further prison mental health assessment follow up by early June 2017. However, that had apparently not been completed before his release from prison and his being taken into immigration detention in May 2017. However, it is clear that Mr Murphy has continued to avail himself of rehabilitation assistance. Relevant events in the that interaction process during his period of immigration detention are recorded in his health records and include the following:
(a)21 September 2017: Mr Murphy attended a mental health assessment appointment. The notes record details of his drug use history, childhood abuse and offences, for which he was stated to have expressed great remorse. His current symptoms were episodic panic attacks, sweating, difficulty breathing, irritability and defensiveness. His most immediate concerns however, were for his own safety. He had been assaulted by other detainees, and wanted to be moved. The interviewing psychologist encouraged him to undertake regular exercise at the gym, but Mr Murphy reported that the hierarchy within his group of detainees made that impractical. He was provided with information about various relaxation techniques.
(b)9 October 2017: At a follow up assessment, Mr Murphy continued to report ongoing anxiety, but was assessed by the psychologist as displaying good insight into the reasons for his anxiety and good judgment in using exercise in managing his symptoms. He was also reported as intending to move to Queensland, to be closer to his daughter, if and when he was released from detention.
(c)6 November 2017: A few days before this attendance, Mr Murphy had been involved in a car accident. As a result of injuries he received in the car accident (swollen knee and pain in his ankle), he had been having difficulty sleeping and could not keep up with his exercising and was unable to participate in activities. He presented with agitated effects and reported that he was feeling frustrated and angry. His perception was that other inmates involved in the accident had been appropriately cared for and he had not. He also felt that he had been obstructed in getting access to mental health consultations, by a lack of cooperation from the detention centre staff. He was so frustrated that he said he did not want to continue with any further treatment, and ended the consultation.
(d)20 December 2017: Despite the frustration he had expressed in early November, Mr Murphy attended a further mental health assessment just before Christmas in 2017. On this occasion he reported his mood was normal and he appeared bright and reactive. The psychologist noted that this was a significant improvement from his previous attendance. Mr Murphy also explained the real reason for the interruption of his attendances with the psychologist. Other inmates had become paranoid about whether he was providing information about them to the medical service when he attended appointments. As a result, there had been several physical altercations with other detainees in his dormitory, and he had been concerned about his own safety. However, he had recently been moved to another dormitory where he was coping much better. The psychologist reported that Mr Murphy was not having disturbed sleep, had lost 10kg as a result of his exercise regime and spoke regularly on the telephone with his father and daughter. The report also noted that Mr Murphy had been attending weekly Alcoholics Anonymous/Narcotics Anonymous meetings. (An attendance practice that he appears to have started many months earlier before his release from prison.)
(e)16 January 2018: In the course of his previous pre-Christmas meeting with the psychologist, Mr Murphy had alluded to the fact of different mental health diagnoses he had been given in the past – personality disorder by Dr Cunningham, and PTSD by others. On this occasion, he provided the psychologist with a copy of Dr Cunningham’s report and requested a more recent assessment, partly because of the rehabilitation efforts he had made and partly because he regarded some of the history in the report as inaccurate and incomplete. In relation to the incompleteness of the history, Mr Murphy referred to his participation in counselling during his previous incarceration in 2010/2011, and in anger management and drug and alcohol programs between 2011 and 2013. The psychologist expressed an inability to agree with the appropriateness of a current diagnosis of personality disorder. She considered that the confounding element was Mr Murphy’s chronic drug abuse and she considered that “substance abuse disorder” was his primary diagnosis.
(f)16 January 2018: In a later part of the assessment note, the psychologist addressed Mr Murphy’s goals and awareness of preventative measures in relation to his reoffending. She recorded that he showed good insight into the negative influences of his previous peer group in Melbourne, and that he intended to move to Queensland, to live near, and work with his father. He also acknowledged his tendency towards impulsiveness and reported that he had learnt to stop and think before acting. The psychologist went on to discuss the anxiety with which Mr Murphy had presented in the previous October. He reported that he considered his depressive symptoms had significantly moderated and were currently only mild, especially since he had shifted into a different dormitory at Villawood. The psychologist observed that Mr Murphy’s appearance was consistent with that subjective self-report. Mr Murphy reported that his current exercise regime had had a significant impact in improving his mood and managing his symptoms of anxiety, and that he was determined to continue with it. The psychologist reported that he appeared to be well engaged and motivated for change. The psychologist assessed that he presented with a low risk of harm to himself and to others.

One of the matters addressed in the January 2018 assessment report was Mr Murphy’s expressed desire to reduce, and ultimately cease, his methadone treatment. In the course of his oral evidence, Mr Murphy gave evidence about that matter. He had first participated in a methadone program in his early twenties (about the time of his 2004 conviction). His second participation was around 2008, before his daughter was born. At that time, his methadone dose had at one stage been as high as 120mg. But he eventually managed to reduce the dosage and ultimately ended his participation in the program. (I note that in the September 2010 sentencing remarks the County Court judge accepted that Mr Murphy had been drug abstinent for a year.) Mr Murphy had initiated his current methadone treatment participation at the Fulham Correctional Centre, with the encouragement of the psychiatric nurse at that facility. He explained that he worked with the nurse to stop using buprenorphine and get onto the methadone program. He had started on a 20mg daily dose, and increased it to 30mg for a couple of weeks, whilst he was still in prison. In immigration detention, his current dose had decreased to 0.5ml, which he said was the lowest possible dose.
Mr Murphy also detailed his other current medication. One was “Endep” which he described as an anti-depressant and nerve pain analgesic. The other was Catapres, a medication which he had, never before, been prescribed. It is used to treat hypertension and ADHD. Mr Murphy explained that its effect on him was to control a tendency for anxiety to elevate his heart rate, and to promote better sleep. He said it had really helped and that he was now getting much better sleep. (Although the available medical records are not entirely clear, the introduction of this medication appears to be associated with the psychologist’s review of Dr Cunningham’s report, and her own assessment – referred to in the 16 January 2018 notes – that Mr Murphy likely required ADHD medication.)
Consistent with the reformative efforts and motivation evidenced in Mr Murphy’s medical records, he has expressed his remorse for his past behaviour, and his determination to make amends in the future. Since Mr Murphy faces a prospect of removal to England, one he has described as scaring him to death, his expressions of remorse and rehabilitative determination are unsurprising. That is not to say they are insincere, but their weight needs to be assessed, with regard to all relevant considerations, and especially the background of his offending since the September 2011 warning.
If Mr Murphy’s subjective assertions stood alone they would not be persuasive – especially against the background of the warning he received in September 2011. However, the efforts he has made, both in prison and in immigration detention, are significant – because they tend to demonstrate both a greater level of insight into the reality of the frailty of his visa status, and also a genuine motivation and capacity to get his life in order. In addition, Mr Murphy’s father has provided a strong endorsement of his son’s apparent rehabilitation to date, and is willing to support him both with accommodation and assistance in finding employment. Mr Murphy will welcome Jason into his Queensland home, and help him to find employment in the construction industry on the Gold Coast – provided Jason stays on track with his rehabilitation ambition and remains drug free. Mr Murphy (senior) opined that his son’s past attempts at rehabilitation had failed because he had not realised the impact his actions had on other people and on the family. Mr Murphy said that, since Jason’s September 2016 imprisonment, he could see definite changes in Jason’s attitude and was confident that, given the chance, he would become a productive member of society.
The Minister stressed that Mr Murphy’s current efforts and attitudes towards rehabilitation, and his asserted determination to avoid relapsing into the polysubstance addiction which has afflicted him, is untested by exposure to the environmental factors in which it was previously manifested. This consideration rightly requires caution in expressing views about the likelihood that his current intentions (which I accept are genuine) would correspond with the reality of his existence after release from immigration detention and return to the community. To emphasise the caution that is required the submission made on behalf of the Minister was that Mr Murphy’s existence in custody had been in a controlled and structured environment. That proposition is true to the extent that the custody provides the basic essentials of accommodation and sustenance. But it is untrue in so far as it ignores the stressors involved in isolation from family, and in the uncertainty of the likely circumstances of future existence, particularly during a prolonged period of immigration detention. It is also untrue insofar as it involves an assumption that the “controlled and structured” environment of detention is free of exposure to the availability of illicit drugs, free of pressure to resort to them, and without the additional stress of interaction with strangers of variable backgrounds and inclinations.
In relation to drug use, Mr Murphy explained that illicit drugs were in fact readily available both in prison and in immigration detention. Indeed, Mr Murphy explained that, particularly in immigration detention, it was difficult to avoid the pressure of daily encouragement to participate in illicit drug use. He said he was regularly confronted by (and it was difficult to avoid) other inmates who had access to illicit drugs and were anxious to encourage him to participate in the barter economy associated with their use. I accept his evidence to this extent: his abstinence from illicit drug use is not just a matter of lack of availability, but is probative of a deliberate determination which he has been able to sustain – despite the not insubstantial stresses of his environment.
The Minister’s submissions also pointed to Dr Cunningham’s 2010 and 2011 reports as the only objective authoritative assessments of Mr Murphy’s risk of re-offending. However, the weight that can properly be attached to Dr Cunningham’s opinions some seven to eight years later requires careful regard to the integers of his opinion, and to subsequent events. In one respect of course, those subsequent events demonstrate Mr Murphy’s offences after September 2011 – and thus provide a hindsight corroboration of Dr Cunningham’s 2011 assessment. But in another respect subsequent events, and particular those relating to the period after September 2016, provide some reason to conclude that Mr Murphy’s contemporary risk of re-offending may be significantly less than it was in 2011.
I referred above to Dr Cunningham’s consideration of the “clinical” and “management” domains in the historical risk assessment tool he used: see paragraph 25 above. In relation to the former, Dr Cunningham identified Mr Murphy as having active symptoms of mental illness, lack of insight and impulsivity. Each of those factors is a lessor consideration at the present time – having regard to the detailed information (that I have outlined above) available from Mr Murphy’s prison and immigration detention records, and his father’s additional subjective assessment and impression. In relation to “management” risk, Dr Cunningham identified three significant factors; exposure to destabilising influences, past non-compliance with rehabilitation attempts, and stress. Again, each of those factors is a lesser consideration in Mr Murphy’s current circumstances. He is determined to re-locate to Queensland where he will, at least initially, live with his father, step-mother, step sister and daughter. In that environment, he will be encouraged, supported and loved. It is a prospect that was not apparent at the time of Dr Cunningham’s previous assessments. In addition, Mr Murphy has demonstrated a determination to embark upon, and some measure of success in undertaking, a genuine attempt at rehabilitation. Finally he has, with the aid of medication, been able to address (apparently for the first time – see the earlier reference to the effect of his Catapres medication) some of the main physical symptoms of his underlying anxiety.
When all of these considerations are taken into account, I consider that Mr Murphy’s current risk of re-offending is principally associated with his drug addiction. That is essentially the same ultimate view that Dr Cunningham expressed in his 2010 report. There Dr Cunningham had identified Mr Murphy’s underlying personality disorder as another contributing risk factor, but he had opined that successful treatment of Mr Murphy’s drug addiction “should address his underlying personality dysfunction”. In those circumstances, the appropriate contemporary view is that Mr Murphy’s risk of re-offending is likely to be less than the “moderate” risk Dr Cunningham opined in September 2010. That view has regard to the integers that informed Dr Cunningham’s assessment at that time, the apparent genuineness of Mr Murphy’s rehabilitative motivation and measure of success to date, and the support offered by his father.
However, Mr Murphy’s past history, the chronicity of his drug addiction, and the chronicity of the anxiety and depression which have afflicted him, require a conclusion that he is psychologically and emotionally vulnerable. That vulnerability has in past manifested itself in offending – on many occasions. Some of his offences have involved violence, although at the low end of the scale. (He has never been dealt on the basis of having caused any significant injury). There is a not insignificant risk that he will offend again, as he has in the past. It is appropriate to conclude therefore that the first primary consideration, the protection of the Australian community weighs against revocation of the visa cancellation.
Victim impact
My conclusion that there is a not insignificant risk of Mr Murphy re-offending is not directed at any particular past offence or victim. There is no reason to apprehend that his visa fate would have any impact on the officers involved in his various “resist” and “assault” offences – given the absence of any evidence of significant or specific injury. The same applies to the instances of domestic violence that have been alluded to (rather imprecisely) in his criminal record. So far as Tahlia’s mother is concerned, the evidence suggested that she was actually supportive of Mr Murphy remaining in Australia. So far as Mr Murphy’s other domestic partners are concerned, there is no specific evidence sufficient to form any view.
Community Expectation
Direction no. 65 postulates a high standard in relation to the expectations of the Australian community. This is evident in the principle statement that a visa is granted as a privilege in the expectation of the holder’s future compliance with Australian law, respect for its institutions, and harmlessness to its people and community: see cl 6.3(1). It is re-inforced by the additional principle statement of an expectation that a visa should be refused (or cancelled) where the person has committed “serious crimes”: see cl 6.3(2). However, that principle statement needs to be reconciled with the further statement that Australia “may afford a higher level of tolerance of criminal or other serious conduct” in relation to a person who has lived in Australia either from a very young age, or for most of their life: see cl 6.3(5).
The imperative implicit in the use of “should” in cl 6.3(2) is expressed in the context of a description of community expectation. As such, and in the context of the other statements of principle, it is not an inflexible direction which supplants the consideration, that Direction no. 65 otherwise requires, of the totality of primary and other considerations. But the relevance of community expectation, as an important primary consideration, is patent in the content of cl 13.3. It is in the following terms:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In YNQY v Minister for Immigration and Border Protection [2017] FCA 1466, Mortimer J said that this description of “community expectation” in Direction no 65 operated as a prescriptive statement. Her Honour said that
[76] In substance this consideration is adverse to any applicant. … it is inextricably linked to the other primary consideration of protection of the Australian community. In particular, the last two sentences of para 13.3 of the Direction suggest the “expectations” about which it speaks are expectations adverse to the position of any applicant who has failed the character test and been convicted of serious crimes. In this primary consideration as expressed (and despite the references earlier in the Direction to “tolerance”) the Australian community’s “expectations” are defined only in one particular way: namely, that the Australian community “expects” non-revocation where a person has been convicted of serious crimes of a certain nature. That is, this is not a consideration dealing with any objective, or ascertainable expectations of the Australian community. It is a kind of deeming provision by the Minister about how he or she, and the executive government of which he or she is member, wish to articulate community expectations, whether or not there is any objective basis for that belief. That is the structure of this part of the Direction.
The thrust of Mortimer J’s observation was to emphasise the prescriptive nature of the concept of community expectation that cl 13.3 sets out. But the actual statement that the expectation is defined only as one of non-revocation where a person has been convicted “of serious crimes of a certain nature” is not precisely accurate – having regard to the actual wording of clause 13.3 reveals. There are four significant aspects of clause 13.3. The first is the emphasis it places on the visa holder’s compliance with the expectation implicit in the visa grant – conformity with Australian law. The second is that, despite that emphasis, it eschews the inflexible refusal of visa status, even in the case of convictions. The third is that it nevertheless contemplates that “non-revocation may be appropriate” (I have added the emphasis) because of the nature of a particular offence and, inferentially, even in the absence of apprehensions of unacceptable risk of repetition of the offending conduct. The fourth is the opaque requirement, in the last sentence, that decision makers “should have due regard to the Government’s views in this respect.”
That last sentence in cl 13.3 can properly be regarded as an emphasis on the possibility recognised in the sentence that precedes it. That preceding sentence, with its recognition of what “may be appropriate” points the decision maker back to the obligation to pay due regard to all the considerations required by the principles and general guidance set out earlier in the direction. They contain, as I have indicated, a requirement to have regard to the expectations of lawful conduct by visa holders: see cl 6.3(2).
When cl 13.3 is read as a whole, and applied in a context where all relevant considerations required to be taken into account (see cl 8(1)), it does point to the likelihood, but it does not dictate an inflexible conclusion, that community expectation will always call for non-revocation. Nor is to be taken as elevating community expectation to the status of a determinative consideration. It remains as a primary consideration, to which appropriate weight must be given. But what constitutes appropriate weight, and whether that weight is a determinative factor in the exercise of the revocation discretion, will depend on the totality of the relevant circumstances.
In the present case, Mr Murphy’s many offences and convictions are not consistent with the basic community expectation of lawful compliance. That is particularly so since his October 2013 offences – given the measure of forbearance and encouragement that had been extended to him in the form of the several community correction orders that had been applied to him. This primary consideration therefore points in favour of non-revocation.
Best interests of minor children
Mr Murphy appears to have been his daughter’s primary carer in her early years – until the custody dispute that caused him so much distress and led to his drug use relapse and re-offending in 2010 and 2011. When Mr Murphy was incarcerated in 2011, his great grandparents obtained custody of his daughter. For some time after that, she was part of their household but more recently, she lives with Mr Murphy’s father’s family in Queensland. Over the years, she has had only irregular contact with her father, and especially since his incarceration in September 2016. Nevertheless, they are reportedly on good terms, and now communicate regularly. Mr Murphy’s father reported that Mr Murphy’s daughter very much loves her father. He felt compelled, in her interests, to speak at the hearing in favour of revocation of the visa cancellation.
Mr Murphy has made no material contribution to Tahlia’s physical needs and day to day upbringing in her early and developing years. Indeed, it is reasonable to suppose that his absence from the household, and troubled existence, have been a gap in the normality of the upbringing which a young child could ordinarily expect to have. Those considerations undermine the weight that can objectively be accorded to Mr Murphy’s continued Australian presence as an integer in Tahlia’s best interests. But the concept of “best interests” is not measured exclusively by material contribution. Nor is the potential significance of the parental bond frayed to immateriality by either behavioural frailty or disappointed expectations. Parent and child can have an innate attachment to which they both hold fast, despite all the difficulties they each have to endure. That bond, with its attachment of commitment and affection, and the comforting physical embrace it may inspire, are very much in a child’s best interests to enjoy in a tangible and immediate way. Both the Messrs Murphy attest to Mr Murphy’s commitment to and affection for his daughter. It is in her best interests that he remain in Australia – especially given the prospect that, if released, he will be a welcomed and supported member of the family unit of which she is part.
AustRalian ties
I have already indicated the support offered by Mr Murphy’s father and stepmother. They live in Queensland, with his sister and his daughter. Mr Murphy’s paternal grandmother also lives in Queensland – apparently as part of the family group. He has no other close family members, or even more distant Australian relatives. He has remained in contact with his daughter’s mother (who lives in Melbourne) and asserts a continuing constructive friendship with her.
Mr Murphy has spent 31 of the almost 35 years of his life as an Australian resident. He went to school in Melbourne, worked at various jobs after leaving school, and after serving an apprenticeship, he obtained a Certificate III qualification as a roof tiler in 2008. However, his employment history since 2008 is unclear. At the time of his daughter’s birth in 2008, Mr Murphy was receiving social security benefits. He apparently worked for about a year after she was born, but there no specific evidence that he subsequently secured any significant periods of employment.

Mr Murphy senior’s support for his son, both in endorsing the genuineness of his rehabilitative efforts and in being willing to accommodate and support him on his release, is a significant indication of the distress that revocation would be likely to cause to the members of the family. The fact that Mr Murphy has lived in Australia for such a substantial part of his life is also significant. Both of these considerations are matters that merit weight.
HARDSHIP RELATED TO REMOVAL
Mr Murphy will likely struggle to establish himself in England. Dr Cunningham’s 2011 report noted the difficulty Mr Murphy had encountered in adjusting to life in the community after his incarceration in 2010. Those difficulties will likely be magnified by removal to England. That likelihood becomes apparent from realisation of Mr Murphy’s underlying anxiety and depression (as well as his personality disorder). There is a significant risk, as Mr Murphy himself acknowledged, that removal to England will expose him to the kinds of challenging stressors with which he was unable to cope in 2010. Whether or not he will actually be able to cope with those additional challenges will depend partly on his own motivation and resolve, partly on his ability to access appropriate services in England, and the extent to which he will be able to establish a supportive community connection.
In relation to the former, Mr Murphy asserts a grim resolve to address the challenges of removal if that is required. In relation to access to services – counselling, drug therapy and medication – they are likely to be as available to him as they are to other UK citizens. In relation to community support, the situation is likely to be dependent on Mr Murphy’s motivation and resilience. His mother and two step siblings live in England, and that family connection is a relevant consideration – although the weight that can properly be attached to it is diminished by
(i)the lack of evidence of any meaningful contact with them,
(ii)the long period of Mr Murphy’s absence from England and,
(iii)a suggestion that the family connection was in fact broken when Mr Murphy and his father came to Australia.
Apart from that, perhaps faint, family connection Mr Murphy will likely be reliant, at least initially, on support from groups such as Alcoholics and Narcotics Anonymous. But that support is likely to be available if he seeks it out.
DECISION
Direction no. 65 requires decision makers generally to accord greater weight to the relevant primary considerations. In the present case, both the protective consideration and the concept of community expectation, favour non-revocation – because of the number and nature of Mr Murphy’s offences, and the undercurrent of violence and impulsiveness that has sometimes been a feature of his offences. The best interests of his young daughter point in the other direction, but because of her limited interaction with him (at least to date) the fact that she is already established in a nurturing and related family, and the uncertain extent to which Mr Murphy can be relied on in the future to fulfil the role of a constructively caring and loving parent, her best interests do not outweigh the other primary considerations.
Mr Murphy’s long period of Australian residence, from his early years, is a relevant consideration. But the weight that can properly be attached to it is a matter of impression. On the one hand, clause 14.2(1)(a), by requiring regard to whether or not “the non-citizen arrived as a young child”, suggests that such a circumstance can be afforded significant weight. But that permission appears to be tempered by the related requirement to have regard to the extent of the person’s offending conduct, and the extent of their contribution to the Australian community. This gives rise to an inference that the mere length of the non-citizen’s Australian residence, even from their early years, cannot properly be elevated to the status of a determinative consideration. That inference is supported by the statement of principle (in cl 6.3(5)) that Australia has a “low tolerance” of criminal activity in the case of non-citizens who have been in the community for only a short time. The caveat that a “higher level of tolerance” may be afforded where the non-citizen has been resident since an early age, is very imprecise – and again calls for an impressionistic judgment. That judgment must be informed by the notion of what constitutes an “unacceptable risk” (see cl 13.1.2) – having regard to the “seriousness of potential harm” (cl 13.1.2(1)), the extent of the person’s offending (cl 13.1.1(1)(d)), and whether or not the person has continued to offend after being apprised of the risk of visa cancellation (cl 13.1.1(g)).
The details summarised in the Schedules to these reasons illustrate the extent of Mr Murphy’s offending. Schedule 2 reveals the fact of his approximately 57 offences after the September 2011 warning. The sheer number of those offences suggests the limit of any properly extended tolerance, and the presence of violence as elements of some of those offences, particularly those involved in the November 2016 convictions, tends to confirm that view. That confirmation is not materially reduced by recognition of the fact that the level of actual violence was “low”: see paragraph 36 above. This is partly because the absence of significant injury was perhaps fortuitous – given the impulsiveness, and typically drug related, of Mr Murphy’s behaviour. It is also partly because of the conceded feature of violence in Mr Murphy’s domestic relationships, (apparently illustrated by the 15 October 2015 – see paragraph 35(b) above).
The decision under review is affirmed.

I certify that the preceding 71 (seventy -one) paragraphs are a true copy of the reasons for the decision herein of Mr P W Taylor SC, Senior Member

.................................[sgd]....................................
Associate
Dated: 28 March 2018

Dates of hearing: 13-14 March 2018

Date final submissions received: 20 March 2018

Applicant: In person

Solicitors for the Respondent: Ms R Noronha, Clayton Utz

Dates of hearing:	13-14 March 2018
Date final submissions received:	20 March 2018
Applicant:	In person
Solicitors for the Respondent:	Ms R Noronha, Clayton Utz