Nathanson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 656
•2 March 2023
Nathanson and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 656 (2 March 2023)
Division:GENERAL DIVISION
File Number: 2019/0235
Re:Narada Nathanson
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date of decision: 2 March 2023
Date of written reasons: 31 March 2023
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets asides and substitutes the decision made by the delegate of the Respondent dated 8 January 2019 to not revoke the cancellation of the Applicant's visa with a decision that the Tribunal exercises the discretion conferred by section 501CA(4) of the Migration Act 1958 (Cth).
..........................[SGD]............................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of a mandatory cancellation of Applicant’s Class TY (Subclass 444) Special Category (Temporary) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 90 – decision under review set aside and substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Family Law Act 1975 (Cth)
Migration Act 1958 (Cth)Migration Regulations 1994 (Cth)
Cases
PGDX and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1235
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Walker v Minister for Home Affairs [2020] FCA 909Secondary Materials
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (15 April 2021)
REASONS FOR DECISION
Senior Member Theodore Tavoularis
31 March 2023
INTRODUCTION AND BACKGROUND
Narada Nathanson (‘the Applicant’) is a 39-year-old male, born in Zimbabwe in November 1983. He is a citizen of New Zealand. The Applicant arrived in Australia on 11 May 2010.[1] He spent about three weeks outside of Australia between 18 September 2013 and
7 October 2013, but apart from that, all the rest of his time since his initial arrival has been spent in Australia.[2]
[1] Exhibit G1 (Remittal bundle (G1 – G13; H – H33) G11, page 118.
[2] G1, p 118.
The procedural history of the matter appears thus:
·7 October 2013: the Applicant was granted the subject visa;[3]
·6 August 2018: the Applicant’s visa was mandatorily cancelled;[4]
·23 August 2018: the Applicant sought revocation of the mandatory cancellation decision;
·8 January 2019: a delegate of the Respondent[5] refused to revoke the mandatory cancellation decision;[6]
·15 January 2019: by application to this Tribunal, the Applicant sought review of the decision refusing to revoke the mandatory cancellation of his visa;
·4 April 2019: following a hearing held on 21 March 2019, this Tribunal (differently constituted) affirmed the delegate’s decision and refused to revoke the mandatory cancellation decision;
·17 August 2022: the High Court of Australia made orders remitting the matter back to this Tribunal.
[3] Class TY Subclass 444 Special Category (Temporary) visa. Hereinafter referred to as ‘the visa’.
[4] Pursuant to s 501(3A) of the Migration Act 1958 (Cth). Hereinafter referred to as ‘the Act’.
[5] The Minister for Immigration, Citizenship and Multicultural Affairs (hereinafter referred to as ‘the Minister’ or ‘the Respondent’).
[6] Pursuant to s501 CA(4) of the Act.
The instant remittal Hearing proceeded before me on 16 and 17 January 2023. The Tribunal received both oral and written material. The written material was reduced to an agreed exhibit list.[7] A true and correct copy of that list is attached to these Reasons and marked ‘Annexure A’. The instant hearing also received oral evidence from (1) the Applicant; (2) his mother (Ms Miranda Bernadette Nathanson); (3) his father (Mr Leonard Nathanson); (4) his sister (Ms Aslyn Nathanson); and (5) his brother (Mr Cleedon Nathanson).
[7] See Transcript, p2, lines 28 -38.
LEGISLATIVE FRAMEWORK
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
4 The Minister may revoke the original decision if:
the person makes representations in accordance with the invitation; and
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.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised.
There are therefore two issues presently before the Tribunal:
(a)whether the Applicant passes the character test; and
(b)whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have a, ‘substantial criminal record’. This phrase, in turn, is defined in s 501(7), which relevantly provides that a person will have a substantial criminal record if:
‘…
(c) the person has been sentenced to a term of imprisonment of 12 months or more;
…’
The parties do not cavil with the proposition (and finding) that the Applicant does not pass the character test.[8] By virtue of his convictions that have resulted in imposition of head custodial terms approximating three years, the Applicant has compiled a ‘substantial criminal record’. He does not pass the character test and cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[8] See Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’), p3, [10]; see also Respondent’s SFIC, p7, [22].
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 90’) has application.[9]
[9] Direction 90 commenced on 15 April 2021. It replaces Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
‘Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.’[10]
[10] Direction 90, [6]. See also Direction, para [4(1)] which provides that a, “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to, ‘provide a framework within which decision-makers should approach their task’ under s 501 or 501CA (as the case may be). The principles are:
1Australia 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 frameworks, and will not cause or threaten harm to individuals or the Australia community.
2Non-citizens who engage, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in, Australia.
3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
5Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four ‘Primary Considerations’, and four ‘Other Considerations’ by which I must be guided in making my decision.
The Primary Considerations I must take into account are:
‘(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.’[11]
[11] Paragraph 8 of the Direction.
The Other Considerations which, where relevant, I must take into account, ‘include but are not limited to’:
‘a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests’[12]
[12] Paragraph 9(1) of the Direction.
Paragraph 7 of the Direction also provides guidance as to how to take into account each Primary and Other Consideration. Briefly summarised, the Direction instructs
decision-makers that:(1) In applying the considerations (both primary and other), information from independent and authoritative sources should be given appropriate weight;
(2) Primary considerations should generally be given greater weight than other considerations; and
(3) One or more primary considerations may outweigh other Primary Considerations.
I will now turn to addressing the abovementioned Primary and Other Considerations.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by
non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.The Applicant has compiled a history of offending both here and in New Zealand.[13] The totality of his history can be summarised as follows:[14]
[13] G1, pp 29-32.
[14] G1, pp 27-31.
Jurisdiction Date Offence Result NZ August 2008 Breath Alcohol Level Over 400 Mcgs/Litre of Breath
Blood/Breath = 475
Convicted and Sentenced Fine - $400
Court Costs - $130
Disqualification from driving 6 Months
WA September 2010 Assault occasioning bodily harm Fine - $1,000 WA January 2017 No authority to drive Fine - $2,000 (global) WA January 2017 Possessed a prohibited weapon Fine - $2,000 (global) WA January 2017 Possess a controlled weapon Fine - $2,000 (global) WA January 2017 Unlicensed person possess firearm/ammunition Fine - $2,000 (global) WA January 2017 Unlicensed person possess firearm/ammunition Fine - $2,000 (global) WA January 2017 Possessed drug paraphernalia in or on which there was a prohibited drug or plant Fine - $2,000 (global) WA January 2017 Possess a prohibited drug (methylamphetamine) Fine - $2,000 (global) WA January 2017 Possess a prohibited drug (cannabis) Fine - $2,000 (global) WA January 2017 Possess firearm with circumstances of aggravation Fine - $2,000 (global) WA January 2017 Being armed or pretending to be armed a in a way that may cause fear Fine - $2,000 (global) WA April 2017 Possess a prohibited drug (methylamphetamine) Fine - $1,500 (global) WA April 2017 Knowingly possessed counterfeit money Fine - $1,500 (global) WA April 2017 Criminal damage or destruction of property Fine - $1,500 (global) WA May 2017 Possess a prohibited drug (cannabis) Fine - $200 NT September 2017 Assault a worker victim not suffer harm Convicted
Sentence: 14 days
NT
September 2017 Breach of bail Convicted
Sentence: 2 days
NT May 2018 Deprive a person of personal liberty Convicted
Sentence:
18 months Suspended after 1 year operative 18 months
Supervised with conditions
NT May 2018 Stealing Convicted
Sentence:
1 month cumulative suspended after 1 year operative 18 months supervised with conditions
Restitution: $250
Sentence: 3 months
NT May 2018 Driving a vehicle in a dangerous manner Convicted
5 months cumulative suspended after 1 year operative 18 months Supervised with conditions
Sentence: 8 months
NT May 2018 Aggravated assault Convicted
Cumulative suspended after 1 year operative 18 months supervised with
Conditions (Harm – Defenceless – Weapon)
Sentence: 6 months
NT May 2018 Breach of bail Convicted
Sentence: 2 days
We are therefore talking about an offending history committed in two countries spanning the period August 2008 until August 2017. It is a history that involves the commission of some 23 offences that were dealt with at eight separate sentencing episodes. The offending has been punished by both custodial and non-custodial sentences. Sentencing courts have imposed fines for the offending on at least 16 occasions and have imposed custodial sentences on seven occasions. The totality of fines amounts to $26,100. In terms of cumulative custodial time, sentencing courts have imposed a total amount of 35 months and 18 days - a period of virtually three years.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(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.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
Paragraph 8.1.1 Considerations
Paragraph 8.1.1(1)(a) of the Direction refers to the types of crimes that are viewed very seriously by the Australian Government and the Australian community. In the Applicant’s SFIC it is readily conceded that
‘The applicant has committed violent offences in Australia that have resulted in considerable harm to the Australian community. The applicant has received substantial sentences of imprisonment for his offending. The Tribunal would find the applicant’s offending to be very serious.’[15]
[15] A1, p11, [38].
This written concession had its echo during oral closing submissions when the Applicant’s representative told the Tribunal that:
‘…the only safe finding that could actually be made is a finding of very serious offending. Notwithstanding the short compass of the applicant’s offending, that is very serious and, indeed, in examination‑in‑chief yesterday the applicant accepted, in a question put by myself, that his offending was very serious.’[16]
[16] Transcript, p 57, lines 41-45.
There are several instances in the Applicant’s criminal history that clearly and obliviously engage the auspices of paragraph 8.1.1(1)(a)(i) of the Direction. First, on 12 April 2017, the Applicant deprived his victim of their liberty for 12 hours. He stole the victim’s car and was very violent towards him by ‘hitting the victim, throwing objects at him, slapping him with a thong and [the Applicant’s] hand, and the degrading and humiliating act of spitting on him.’[17] The learned Chief Justice of the Supreme Court of the Northern Territory who sentenced the Applicant[18] accepted ‘…the Crown’s submissions in relation to the high level of objective seriousness of this offending.’
[17] G1, p38.
[18] His Honour Chief Justice Grant.
As also noted by the learned Chief Justice, this offending episode contained two additional aggravating features: (1) after unlawfully commandeering the victim’s vehicle, the Applicant became involved in a high-speed pursuit with police while the victim was in the vehicle. Pursuit speeds reached 190 kph at which time police abandoned the pursuit in the interests of public safety; and (2) at the time of this offending, the Applicant was on bail for an offence involving the assault of a worker.
Second, on 3 May 2017, the Applicant committed the abovementioned offence involving an assault on a worker. The victim provided a statutory declaration contemporaneous with the offending incident. The victim reported the following in his statutory declaration:
‘I called 000, as I got off the phone from 000 the male opened the door up and he asked who was on the other side of the other door. He was talking about the maintenance room. There was no one in this room but the male was insistent that there was someone locked in the room. I was trying to reassure him that there was no one in there, he was insistent that there was someone in there. He said, "if you don’t open the door I’ll fucken stab you”
He had a towel with him, either wrapped around him or something I am not sure as I was watching his face. All of a sudden I saw a knife appear, he pulled the knife out and was holding the knife in his right hand, and the knife was pointing directly at me. All I could see of the knife was a silver blade and looked about 4 or 5 inches to me.
I backed away and I really thought that he was going to stab me, his eyes were wide and dilated, he was staring straight at me and I feared for my safety. The male walked towards me and lunged at me, it was like a stabbing motion with the knife in my direction.
I backed away from him and told the night porter to back away. I called police assistance, I could see the male going back up the stairs with the towel wrapped around him.’[19]
[19] G1, p255, [16]-[19].
Third, on 19 October 2016, the Applicant was convicted of offences that did not result in the infliction of violence upon a victim in a physical sense but nevertheless had the effect of causing the victim to apprehend that violence was imminent. He was (on 17 January 2017) convicted of (1) ‘possess firearm with circumstances of aggravation’; and (2) ‘being armed or pretending to be armed in a way that may cause fear.’ I am satisfied that although this offending did not result in actual physical harm upon a victim, a conviction(s) for conduct giving rise to an intentional apprehension of violence does fall within the auspices of paragraph 8.1.1(1)(a)(i) of the Direction. The relevant police document records the following:
‘On Wednesday 19th October 2016 at about 12.30am Police attended outside [address redacted in original] in response to the accused and an unknown female involved in a disturbance in the street and the accused pointing a firearm at the unknown occupants of a V8 vehicle.
As Police arrived outside the house an unknown vehicle left the scene at speed. As it did so the accused emerge from the bush and threw a cocked black replica handgun into a Blackboy plant.’[20]
[20] G1, p225.
Fourth, on 30 May 2010, the Applicant committed the offence of ‘assault occasioning bodily harm’. At the previous ventilation of this matter, the Applicant was taken to the circumstances of the subject incident and he seemed to readily accept those circumstances. He confirmed that (1) he was the only person who was charged as a result of this incident; and (2) that he thought his conduct comprised a serious criminal matter:
MR BURGESS: Can you explain to the tribunal what factual circumstances led to you being charged with assault occasioning bodily harm?
THE APPLICANT: Um, from what I recall, we went out. It was my first time going out in – in Australia. We were under the influence of alcohol, and prior to that, the events, I’m not that clear as to what was taking place. All that I really can recall was being removed from a night club where we got into an altercation with a couple of Aboriginals and there was one bloke in particular that was sort of attacking us and then, yeah, we all got kicked out of the night club and it escalated outside the night club where there was a numerous amount of – of people that got into altercations and yeah, I must have got into an altercation with one particular person where I think I was probably the last person to attack this person or whatever, yeah, I can’t recall exactly what took place, but out of everyone we were with, I was – I was the one who – who got in trouble for it.
MR BURGESS: So you were arrested that night?
THE APPLICANT: Yeah. Yeah, I was. I was arrested that night. There was not just myself, there was about four – four, five of us that got arrested that night, yeah.
MR BURGESS: And were you the only one charged?
THE APPLICANT: Yes.
MR BURGESS: Now, if I can take you to p.46, and before I do that – before I do that?
THE APPLICANT: Yes.
MR BURGESS: You consider that to be a serious criminal matter?
THE APPLICANT: Yes[21]
[21] G1, p700, lines 28 – 46; p701, lines 1-3.
I am therefore satisfied that the four abovementioned instances of violent offending do engage the operative effect of paragraph 8.1.1(1)(a)(i) of the Direction and are strongly militative of a finding that the Applicant’s conduct has been of a very serious nature.
Paragraph 8.1.1(1)(b) of the Direction refers to the types of crimes that may be considered serious by the Australian Government and the Australian community. There is no evidence before the Tribunal that any of the Applicant’s conduct engages the auspices of sub-paragraphs 8.1.1(1)(b)(i), (iii) or (iv). However, it is not possible for the Applicant to escape a finding that the circumstances of his abovementioned deprivation of liberty (and associated conduct) committed on 12 April 2017, squarely engages sub-paragraph Paragraph 8.1.1(1)(b)(ii). In his sentencing remarks the learned Chief Justice Grant noted that:
‘The victim was a diminutive 70 year old. The attack was unprovoked. The victim was unknown to either you or [name of co-accused redacted]. He had gone to the beach for his afternoon walk. The period of deprivation, as I have said, was for almost 12 hours, over which the victim was subjected to the insults to his person which I have already described. You threatened the victim’s life. You involved the victim in a high-speed pursuit with police while the victim was in the vehicle. The victim suffered physical injury as a result of your conduct.’[22]
[22] G1, p38.
I am therefore satisfied that the crimes which the Applicant committed on 12 April 2017 for which he was convicted on 15 May 2018, were crimes committed against a vulnerable member of the community. As such, paragraph 8.1.1(1)(b)(ii) must be applied to the instant facts such that the totality of his offending must be found to be at least serious, more likely very serious.
Paragraph 8.1.1(1)(c): in applying this particular sub-paragraph, I am precluded from taking into account sentences imposed on this Applicant for:
(i)any violent offending he may have committed against women;[23]
(ii)acts of family violence;[24] and
(iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[25]
[23] Paragraph 8.1.1(1)(a)(ii) of the Direction.
[24] Paragraph 8.1.1(1)(a)(iii) of the Direction.
[25] Paragraph 8.1.1(1)(b)(i) of the Direction.
The Applicant does not have any convictions for offending in the realms of the above categories. Put simply, this means that I can have regard to the totality of the sentences imposed on this Applicant. As mentioned earlier, his offending has resulted in the imposition of fines on 16 separate occasions totalling some $26,100. He has also been sentenced to custodial terms on seven occasions cumulatively representing 35 months and 18 days.
It is well-established that the imposition of a custodial term is seen as the last resort in the sentencing hierarchy. The Applicant’s criminal history demonstrates that none of the custodial terms imposed upon him did not result from precluded offending for the purposes of the Direction. It is therefore safe to find that the sentences imposed by the courts for the crimes of this Applicant clearly and obviously militate in favour of a finding that his offending has been very serious.
Paragraph 8.1.1(1)(d) compels an inquiry into the frequency of a non-citizen’s offending and/or whether there is any trend of increasing seriousness. The Applicant came to Australia in May 2010 as a 27 year old. He has a conviction for drink-driving in New Zealand dating from August 2008. He committed his first offence barely two weeks after arriving here. He was sentenced for that first Australian offence four months later in September 2010. In terms of the balance of his criminal history there followed his commission of an additional 21 offences that were dealt with at an additional six sentencing episodes.
The Applicant’s pattern of offending is interesting. He has the abovementioned conviction in September 2010 but his next conviction was in January 2017. Between the January 2017 and May 2018, the Applicant was dealt with for the commission of 21 offences that were punished at an additional six sentencing episodes. This means that the significant majority of the Applicant’s offending was (in sentencing terms) committed across a period of 16-17 months, yet he had been in Australia for eight years by the time he received his final sentence. Does this ‘backfilled’ type of sentencing history displace any finding about its frequency?
I am of the view that it does not. Put simply, this Applicant was a member of the Australian community for eight years from May 2010 to May 2018. During that time, he committed 22 offences and his offending was dealt with at seven separate sentencing episodes. This equates the commission of almost three offences per year and almost one sentencing episode for each year of his time in the Australian community. It is plainly and obviously frequent offending.
Does the offending contain a trend of increasing seriousness? I think there can be no question that it does. Apart from the abovementioned assault conviction in 2010, the next sequence of offences (i.e those dealt with at the sentencing episodes in January, April and May 2017) were primarily non-violent in nature. The offending involved unlawful conduct in relation to possession of illicit drugs, unlicenced firearm possession as well as one conviction involving counterfeit money.
From the sentencing episodes commencing in May 2017 and running through September 2017 and into May 2018, it is clear the nature of the offending significantly escalates in seriousness. At the sentencing episode in May 2018 the Applicant was dealt with for assault-type offending. The offending dealt with in May 2018 concerned the significantly more serious conduct involving the Applicant depriving the elderly person-victim of his liberty. I am satisfied that the Applicant’s conduct therefore betrays a trend of increasing seriousness. This sub-paragraph strongly militates for a finding that the Applicant’s unlawful conduct has indeed been of a very serious nature.
Paragraph 8.1.1(1)(e): this paragraph looks for any cumulative effects resulting from the Applicant’s repeated offending. The criminal history demonstrates a number of cumulative effects. First, the nature of the Applicant’s offending is demonstrative of a person whose moral compass had been so significantly skewed and distorted by illicit drugs that, in turn, caused him to be unable to delineate between the unlawful things he did and the law that militated against or prohibited such conduct. It culminated in the Applicant resorting to depriving another person of their liberty for something like 12 hours and, for all intents and purposes, unlawfully commandeering that victim’s life for that period. This involved exposing the victim to significant personal risk of harm by causing that victim to be a passenger in a vehicle driven by the Applicant involved in a police pursuit with speeds reaching 190kph.
Second, this distortion of the Applicant’s moral compass can also be seen in his refusal to respect the lawful authority governing things as diverse as (1) prohibited weapons; (2) prohibited drugs; (3) an order compelling him to comply with specific conditions of bail; and (4) the destruction of other people’s property. Another facet of this failure to respect lawful authority can be seen in his commission of the abovementioned assault offence in May 2010 barely two weeks after arriving here. Third, the Applicant does not seem to have developed any measure of respect for the personal space of other people around him. He has, on a number of occasions, sought to violently impose himself into a given situation. This has occurred by way of direct physical attacks on others, by pretending to be armed in a way intended to cause fear and by depriving a person of their liberty for 12 hours.
Fourth, and perhaps most concerning, is the Applicant’s apparent failure to experience any deterrent effect from non-custodial sentences that were imposed on him leading up to his sentencing episode in May 2018. Prior to that sentencing episode, 16 of the 18 sentences imposed on him involved the imposition of fines and the imposition of relatively short custodial terms of fourteen and two days, respectively. It seems he took nothing from these primarily non-custodial sentences. For his offending punished at the sentencing hearing in May 2018, he was sentenced to head custodial terms of 35 months which is almost three years. Clearly, the learned Chief Justice Grant thought the Applicant needed a significant custodial term(s) to be imposed on him because he had learnt nothing from the previous regime of sentencing. Indeed, His Honour said the following in the sentencing remarks at the May 2018 sentencing episode:
‘You have a history of violent offending, although relatively minor. Minor though it may be, you clearly have not learned from the punishments that have previously been imposed on you, and you are not entitled to the leniency that might be extended to a person of otherwise good character. That is a matter that you are going to have to deal with for the rest of your life.’[26]
[My emphasis]
[26] G1, pp 38-39.
I therefore find that this sub-paragraph strongly militates in favour of a finding that the totality of the Applicant’s offending has indeed been very serious.
Paragraph 8.1.1(1)(f): the material contains copies of two incoming passenger cards. They are respectively dated 6 September 2013 and 11 May 2010.[27] In both of these cards the following question appears: ‘if you are NOT an Australian citizen, do you have any criminal conviction/s?’ In both of these cards the Applicant marked the ‘No’ answer.[28] Both answers are patently incorrect because the Applicant had at least one conviction in New Zealand on the date he filled in the first card. By the date he filled in the second card he had the abovementioned conviction for assault imposed on him in September 2010, for an offence committed barely two weeks after his arrival here.
[27] Note: p 45 of Exhibit G1 contains a copy of this earlier incoming passenger card. The right side of the first page of the card is, as it were, ‘cut off’ such that the date appears as 11/05/20. This date must be incorrect because the Applicant’s movement records (see G1, p 118) have no reference to the Applicant re-entering Australia on 11 May 2020. Quite obviously, the part of the date that was ‘cut off’ in the copy in the material are the digits ‘10’ that should appear after the digits ‘20’ that currently appear under the ‘Year’ heading. Therefore, the date of this first incoming passenger card must be consistent with the date of the Applicant’s initial arrival in Australia which was 11 May 2010.
[28] Ibid, pp 45-46.
The Applicant was not taken to these passenger cards during the oral evidence of the matter ventilated before me. However, reference to these cards appears in the Applicant’s SFIC in these terms:
‘Further, the applicant entered Australia on 11 May 2010 and failed to declare a conviction in New Zealand for drink driving. He again entered Australia on 6 September 2013 and failed to declare criminal convictions, including his conviction for assault occasioning bodily harm on 28 September 2010 in Australia. The applicant’s failure to declare his convictions on his incoming passenger cards indicates a disregard for immigration law.’[29]
[29] A1, p 15, [65].
Given this concession in the Applicant’s material, it is safe to find that this sub-paragraph does militate in favour of a finding that the Applicant’s offending in this country has been of a very serious nature.
Paragraph 8.1.1(1)(g): there is no suggestion in the material that the Applicant has received a written warning or notification from the Respondent about the consequences of further offending on his visa status to remain here. This sub-paragraph can be put to one side for present purposes.
Conclusion about the nature and seriousness of the Applicant’s conduct
I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction. The relevant paragraphs applicable to the instant facts have safely led me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) of the Direction provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(1)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(2)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i)information and evidence on the risk of the non-citizen re-offending; and
(ii)evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and
(3)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
Paragraph 8.1.2(2)(a) compels an assessment of the nature of the harm to individuals or the Australian community in the event of this Applicant engaging in further criminal or other serious conduct. The Applicant has compiled a relatively disparate offending history in Australia. In terms of his offences involving the infliction of actual or potential violence on victims, there is no getting around the reality that those victims would again suffer either physical harm or psychological harm arising from a fear of what may happen to them.
In the context of this Applicant’s offending, were he to again involve himself in conduct involving the depravation of another person’s liberty, it is plainly obvious that such a victim would suffer physical harm, psychological harm and potentially catastrophic harm. Any victim (let alone an elderly and vulnerable victim) of such offending would have serious fears about their own physical safety especially in circumstances where they were forced to sit in a vehicle as an unwilling passenger involved in a police chase reaching speeds of 190kph and where the police abandoned that chase out of a concern for public safety. If the police were concerned about the safety of other road users, it logically follows that this Tribunal can accept that the unwilling passenger-victim would have been extremely concerned about his own safety.
There are two convictions for conduct involving material or quantifiable loss to victims. They are (1) ‘Knowingly possess counterfeit money’ (conviction in April 2017); and (2) ‘Criminal damage for destruction of property’ (conviction in April 2017). There is little or nothing to cavil with the proposition that this offending most likely caused (or was intended to cause) financial harm to actual or potential victims.
I am satisfied that were this Applicant to re-commit offences of the type he has committed thus far, the harm to individuals and/or the Australian community would be very serious and would likely involve physical, psychological and quantifiable economic harm to its victims including, quite conceivably, harm to a catastrophic level.
The conduct that came up for sentencing in May 2018 (before Chief Justice Grant) is of such severity that it leads this Tribunal to conclude such conduct is something that the Australian community should not be reasonably expected to tolerate. This type of brazen and utterly lawless behaviour is, to my mind, so significant that any repetition of it in either identical or similar terms, and the harm that would result from it, is so serious that any risk of its re-commission is totally unacceptable to the Australian community.
The likelihood of the non-citizen engaging in further criminal or other serious conduct (paragraph 8.1.2(2)(b))
The Respondent propounds a position that there remains a significant and ongoing risk of the Applicant returning to his offending ways.[30] This contention is grounded on the following elements:
[30] R1, p 10, [37].
·the Applicant’s lengthy criminal history in Australia, including the commission of significantly violent offending;
·the Applicant’s failure to experience any deterrent effect from the large number of non-custodial sentences that were imposed on him for his offending prior to that which was dealt with by the learned Chief Justice Grant in May 2018;
·the Applicant being ‘a long-standing user of methylamphetamine’;[31]
[31] Ibid, p 11, [37.4].
·the comments of Chief Justice Grant in sentencing remarks dating from May 2018 wherein His Honour observed that:
‘… Your prospects for rehabilitation, given the length of your addiction and your conduct during it, must be considered as marginal unless you receive some effective intervention to deal with your drug addiction. That is a necessary consideration in the sentencing exercise.’[32]
[32] G1, p 39.
·this contention about the Applicant’s unconvincing prospects of rehabilitation are grounded on the following:
othe fact that Chief Justice Grant referred to the Applicant’s addiction in the subject sentencing remarks;
othe fact that Chief Justice Grant noted the Applicant had checked himself into a residential rehabilitation program but left that program before it was completed. Although, it should be noted that His Honour also noted that ‘Since you [the Applicant] have been in custody you have been re-assessed as suitable to re-enter the program.’;[33]
othe Applicant’s level of rehabilitation relating to drug addiction is said to be ‘limited’;[34]
owhether the Applicant can abstain from illicit drug abuse has not been tested outside of the controlled environment of either prison or immigration detention;[35]
othat on 22 October 2018, following a search of the Applicant’s room at the Yongah Hill Immigration Detention facility, Serco officers detected a strong cannabis odour coming from his room. Those officers also found ‘…3 x cigarette pouches containing remnants of a green leafy substance.’[36]
·now-claimed protective factors in the form of the Applicant’s wife, children and employment have, in the past, failed to constitute sufficient protective factors against his recidivist risk. The Respondent, however, accepts that Chief Justice Grant nevertheless accepted that the Applicant did come from a supportive family environment. Indeed, Chief Justice Grant noted the following:
‘They say that you come from a stable, caring and loving home. They say that you were, up until your addiction took hold, a model son and brother. They say that you have been a loyal and devoted husband and father. They say that you were courteous, kind and compassionate. They say that you are a polite and respectable young man, and were as a boy when growing up.’[37]
[33] G1, p 37.
[34] R1, p 11, [37.5].
[35] Ibid.
[36] Exhibit R1.1.
[37] G1, p 38.
On the above bases, the Respondent contends ‘…there remains an unacceptable risk that the Applicant will reoffend.’[38]
[38] R1, p 12, [38].
The question for this Tribunal is whether, by reference to the evidence, this Applicant can now be said to represent a sufficiently low or otherwise acceptable level or recidivist risk such as to justify his return to the Australian community. During closing submissions, the Applicant’s representative helpfully identified a series of ‘themes’ which were propounded to speak favourably towards the Applicant’s recidivist risk. I will separately deal with each of those themes below.
Remorse and accountability: in matters of this type it is all too easy to dismiss an Applicant’s expressions of remorse and accountability as tritely made and self-serving. There is no question that the Applicant has accepted total responsibility for his wrongdoing and that he is clearly remorseful for his offending and the dire circumstances in which it has now placed him. This position was supported by other witnesses who gave evidence at the Hearing such as his father, Mr Leonard Nathanson who has a very close relationship with the Applicant.
Mr Leonard Nathanson told the Hearing before me that he speaks to the Applicant on a weekly basis either by telephone or video call. He also said that he visits the Applicant every fortnight at the detention centre and that their relationship ‘is so good’.[39] The Applicant’s father told the Hearing that ‘…we are a very close family and we keep in touch all the time. We love one another and we respect one another that way.’[40] The Applicant’s father also told the Hearing that while visiting the Applicant in prison and immigration detention, the Applicant ‘…did apologise to us…for misusing drugs and, you know, going off the rail [sic] and, you know, so he did admit that to us.’[41]
[39] Transcript, p 39, line 27.
[40] Ibid, lines 27-29.
[41] Ibid, p 40, lines 17-19.
The Applicant’s expression of remorse can also be seen in the oral evidence provided by his brother, Mr Cleedon Nathanson, at the Hearing. This witness described their brotherly relationship as:
‘I would say it’s always been a really close relationship. I will always look after my brother. I’ve always looked after him and I always will. And we are a really close family. So we keep in contact all the time, every week – video calls, messages, text messages and yes, I’d say we’re very close. Very, very close.’[42]
[42] Transcript, p 50, lines 30-33.
They have discussed the Applicant’s criminal offending and the brother said that the Applicant has ‘actually broken down to me a couple of times about the things he’s done and he actually can’t…come to terms how he’s managed to do such things.’[43] There appears to be a level of palpable remorse and acceptance of responsibility by this Applicant, for his history of criminal offending in Australia it can be safely accepted that he has communicated this remorse to both his father and brother who, in turn, communicated it to this Tribunal via their evidence.
[43] Ibid, p 52, lines 4-6.
Rehabilitation: it cannot be said the Applicant’s level of rehabilitation has been of a demonstrably extensive nature. The evidence contains a reference to his completion of rehabilitative courses while in prison including (1) the Alcohol and Other Drugs Program; and (2) the Safe, Sober, Strong Program. There is, of course, the reference in Chief Justice Grant’s sentencing remarks that the Applicant left the Sunrise Residential Rehabilitation Program after entering it in November 2015. That observation must be tempered against what appears in the documents before the Tribunal. The relevant discharge summary notes the following:
·‘[the Applicant] has shown the ability to absorb the content of the material and not only reflect on what has been taught, but apply it to his current situation.’[44]
·‘[the Applicant] has demonstrated a high capacity to utilise his internal motivation for change and made positive life choices.’[45]
·‘[the Applicant] participated immensely while he was attending Sunrise. He was on time to every class and participated in group discussion. There was a lot of self-disclosure of his own personal barriers and issues that the discussed in class.’[46]
[44] G1, p 76.
[45] Ibid.
[46] Ibid.
The course administrator notes in a letter dated 13 February 2018 that the Applicant:
‘…was assessed on 07/12/2017 for the Sunrise Centre 12 week residential Rehabilitation Program. Following an intake meeting, Narada's assessment was found to be suitable for the program and he has been accepted.
This letter is to confirm her [sic] acceptance into the program.’[47]
[47] G1, p 78.
During his time in both prison and immigration detention, the Applicant has not remained idle. The evidence discloses that during his time in prison he became a ‘Quicksmart’ Assistant Tutor with responsibility for supporting students to attain basic skills in numeracy and literacy. In this role the Applicant also assisted with the individual learning needs of students and as well as management of classroom resources.[48] At the Hearing before me, the Applicant’s sister spoke of the Applicant’s role in leading a Bible study group during his time in immigration detention. She said:
‘He always sends us prayers and good wishes. He’s also, I believe, leads the Bible study group at the detention centre, which other detainees attend as well. He’s very remorseful, he’s always like apologising to us, you know, saying how sorry he is for everything and he’s also become really close with God as well.’[49]
[48] Ibid, p 72.
[49] Transcript, p 45, lines 27-31.
In terms of the Applicant’s physical wellbeing, both his father and sister confirmed that he seems in good and robust physical health. His father said the Applicant ‘…has put on weight, he’s looking well, and I did notice a lot of change in him.’[50] His sister said ‘…when we visit him I can physically see the change in him. He’s put on weight, he is looking healthy and just speaking to him as well, he’s very positive.’[51]
[50] Ibid, p 39, lines 35-46.
[51] Ibid, p 45, lines 25-27.
It can be accepted that the Applicant’s level of rehabilitation is not optimal. But that is not to suggest that he has not experienced or undergone any form of rehabilitative impact during the period of his removal from the Australian community. He is clearly a person who is receptive towards and willing to engage in a process of rehabilitation. On the negative side, he spent about four weeks in the Sunshine program in late 2015 only to return to the community and re-offend. On the positive side, there is written confirmation of his
re-acceptance into that rehabilitative program.
Perhaps more significant is the Applicant’s capacity to, as it were, self-rehabilitate. It can be safely found that he has both confronted and come to terms with his past wrongdoing. This can be seen in what he has told his family and his encouraging
pre-disposition to not remaining idle and of no assistance to others in either prison or immigration detention. In both of those facilities he has assumed teaching/rehabilitative-type roles to assist others. If he has formed the view to assist and rehabilitate others one can assume he has likewise formed an intention to rehabilitate himself.
I accept that the Applicant’s level of rehabilitation is not perfect nor that it displaces every possibility of a relapse. Even a ‘perfect’ rehabilitative program would not achieve that. I am, nevertheless, satisfied that this Applicant has reached a state of realisation that, at 39 years of age and with a wife and young family, his life is at an existential crossroads. He surely understands that if he fails to successfully negotiate that crossroad by relapsing into illicit drug use and very serious offending, his life as a productive member of the Australian (and indeed any other) community would, for all intents and purposes, be at an end because he would be removed from any such community.
Time in immigration detention: this third theme propounded on behalf of the Applicant was said to be ‘a very, very significant one…’. The essence of the submission is that this is said to be ‘a very uncharacteristic case’ because it involves an Applicant who has spent just over a year in criminal custody but has gone on to spend five times that amount of time in an immigration detention environment. This theme and the circumstances of its manifestation is not the fault of anyone. The state is, of course, charged with responsibility to punish criminal offending and to imprison guilty parties based upon prevailing sentencing principles and legislation. The state is likewise entitled to implement whatever process it is empowered to implement when it comes to dealing with the treatment of non-citizens who very seriously offend.
That said, the stark reality is that the net effect of the superimposition of the criminal justice process and the character-based immigration process on the circumstances of this Applicant is that he has been in immigration detention for a period comprising five times the amount of custodial time he was sentenced to serve for his criminal offending. I think there is traction in the argument that such a prolonged period in immigration detention has caused the Applicant to have a very significant period of time on the nature and extent of his offending and its impact on his own circumstances, those of his immediate and extended family and that of the broader Australian community against whom his offending was perpetrated. In his written statement he said the following:
‘Given my extensive time in immigration detention, it has given me further time to reflect on my criminal history and previous drug addiction. I will never return to drugs or crime ever again. I truly am remorseful for the full extent of my wrongdoing in Australia.’[52]
[52] A5, p 3, [17].
During his evidence-in-chief, the Applicant spoke of the impact of his prolonged time in immigration detention and how it has adversely affected both himself and members of his family:
‘DR DONNELLY: Now, you’ve spoken about the emotional impact in particular that your visa cancellation has had and being in detention. You said a moment ago that your father has been in tears and I think the expression used was “crying like a baby”. Has that made you think about your criminal offending and your drug taking?
APPLICANT: Most definitely. Most definitely. It’s made me reflect on everything and I’ve had - I’ve had an immense amount of time to reflect on my actions and my wrongdoings that I have done in the Australian community.
DR DONNELLY: So just bear with me?
APPLICANT: And in saying that, you know, when we flip things - like you asked me about my old man, you know, if - it’s made me reflect even more because if it’s doing that - if certain things I’ve done in my past, you know, are causing certain things, it’s made me reflect, you know, even more on my kids. If the heartache and pain that it’s causing to my old man, imagine what it’s doing to my children, which just - which - yep.’[53]
[53] Transcript, p 10, lines 1-15.
This particular theme does, to my mind, run parallel with the Applicant’s level of self-rehabilitation. There is nothing to cavil with a finding that the Applicant’s time in immigration detention compared to the time he spent in prison, surely gives rise to an extraordinary disparity. Can this extraordinary period of time now be found to speak positively to his level of recidivist risk? I think it can due to the sheer size of the gulf in time the Applicant has had to take proper stock of his offending and its dreadful impact on himself and his family. It logically follows if he has thought about the past and present impact of his offending, he has likewise given strong consideration to the impact of any future offending. On this basis, I think (and find) that the Applicant’s evidence about positive elements to be taken from such a long period of self-reflection can be accepted as a factor positively speaking to his level of recidivist risk.
Drug and alcohol remission: the Applicant is clear and consistent in his evidence that he has not abused any substance – illicit or otherwise – during the time of his removal from the Australian community which, as mentioned, is something in the order of six years. In his written statement he said:
‘First, I have been in immigration detention for over five years. That is a very considerable period. During my time in immigration detention, I have avoided drugs and illicit substances. I should add, drugs are accessible in immigration detention.
However, given my commitment to avoiding drugs, I have been in remission from drugs for many years. This is clear evidence that I have overcome my previous addiction to drugs (keeping in mind that drugs are easily accessible in immigration detention).’[54]
[54] A5, p 1, [6]-[7].
This evidence had its echo in his oral evidence-in-chief when he spoke of returning to the Australian community and living a life free of substance abuse:
‘DR DONNELLY: Now, what confidence could the tribunal have that if you return to the Australian community, for example, and stresses past your life that you won’t return to drugs. What would you say to that?
APPLICANT: I’d say they could have all the confidence they need. In saying that it’s been so many years now that I’ve been completely off any drugs or alcohol. I’ve never been in any trouble with any drugs, never been caught with any drugs and in saying that I am sure that the tribunal is fully aware that in the immigration detention centres it is very accessible to get drugs and alcohol in the sort of facilities that we are living in and I’ve stayed clear away from that. Not only have I not been on drugs but I’ve also been - I’ve done courses on drugs and alcohol as well, so it’s pretty clear evidence that I am not going to touch drugs again.’
To what extent can this Tribunal be satisfied that the Applicant has successfully navigated (and will be safely able to in future navigate) a course for his life away from a systemic and destructive pattern of substance abuse? It is often propounded in matters like this that past behaviour is a good indicator of future behaviour. This Applicant has, to my mind, two eras of ‘past’ behaviour. The first of those is the era running from his arrival here in mid-2010 to the point of his most recent removal from the Australian community, some six years ago. That era was replete with, and dominated by, illicit (and other) substance abuse. This era does not speak favourably to any satisfaction around his successful navigation of substance abuse avoidance in his future.
However, there is a second ‘past’ era referrable to the Applicant’s relationship with substance abuse. That past era is to be found in the six years he has spent removed from the Australian community. With regard to a vast number of human endeavours, six years is a long time. With specific reference to a person’s capacity to reliably demonstrate remission from substance abuse, six years is, to my mind, a sufficient period of time. Here, the Applicant says, and there is little to cavil with it, that he has not engaged with illicit drugs or alcohol since he was last in the community. That evidence is to be accepted and the singular contrarian element in the evidence is to be rejected.
That singular contrarian element refers to the abovementioned alleged incident that is said to have occurred In October 2018. This incident involved Serco officers conducting a welfare check on the Applicant and apparently detecting ‘a strong cannabis odour’ coming from the room in which the Applicant was located. It is unsafe for this Tribunal to arbitrarily impute a finding that the Applicant was engaged in the consumption of any illicit substance at that time. The evidence appears in a 10-line summary in an email from the relevant detention facility. There were two other individuals with the Applicant in the same room from which the odour was said to be coming from. Neither of those two individuals have asserted the Applicant was consuming cannabis (or any other substance). Neither of those two individuals have asserted the Applicant was the sole owner of the three cigarette pouches containing remnants of a green leafy substance.
There is no evidence to suggest that the subject room from which the odour was said to emanate was the Applicant’s room. Indeed, the Applicant said in evidence ‘…that wasn’t my room. That wasn’t me living in my room where they’ve smelt a bit of cannabis.’[55] There was no testing of the green leafy substance and we simply do not know what it was. The evidence around this alleged incident rises no higher than mere suspicion. It cannot be found to have a sufficiently probative nature such that this Tribunal can be sufficiently and safely satisfied that the Applicant was at that, or any other time, while in immigration detention engaged in the consumption of illicit drugs. The alleged circumstances of this incident do not displace the Applicant’s evidence (and my finding) that he has not engaged in the consumption of illicit drugs since he was last in the community.
[55] Transcript, p 28, lines 35-37.
Family support
: as mentioned earlier, the Respondent has taken the position that
now-claimed protective factors including the Applicant’s wife, children and employment have not been sufficient to cause him to refrain from offending in the past. Two things can be said about that. First, the learned Chief Justice Grant did note that the Applicant comes from ‘…a stable, caring and loving home.’ Second, the evidence of members of the Applicant’s family at the Hearing before me was that of people who genuinely loved and cared for the Applicant and who have maintained a consistent pattern of conduct with him even though he has been physically absent from their lives for a very long time. The family members have not abandoned him and still regard him as ‘one of their own.’
There is little or nothing to cavil with the finding that having regard to the totality of the evidence from the family members, the Applicant will have the benefit of a safe and available ‘landing pad’ if returned to the Australian community. He will be accommodated at the home of his parents in Perth. His father is in the same line of work as the Applicant in the trade of diesel fitting and mechanical repair. His father gave evidence that his considerable time in this trade will speak favourably to his ability to find employment for the Applicant.
The Applicant’s mother gave evidence at the Hearing. She is in a precarious state of health having undergone three separate brain operation procedures in a relatively short space of time. Despite her dire physical health, she has managed to visit the Applicant on a fortnightly basis while he has been in immigration detention. She and her husband also visited the Applicant while he was in prison. She has been married to the Applicant’s father for 40 years and he goes to work everyday. He was originally a fly-in-fly-out worker but since her illness he has had to stop working remotely and has now taken a local job so he can be home with her every evening. During her evidence-in-chief she was asked about the Applicant’s plans in the event of his return to the Australian community. She said this:
‘DR DONNELLY: If Narada was to be returned to the Australian community do you know what his plans are?
MS MIRANDA NATHANSON: Definitely his first and foremost plan was to build his relationship with his immediate family. His children are very close to him and have been affected with this time of him being away for so long. He does want to go back to work and provide for his family. And I just think for Narada to be back in our lives would make a massive difference.’[56]
[56] Transcript, p 32, lines 20-25.
She also spoke of the nature of the Applicant’s relationship with the family before he was taken into prison:
‘DR DONNELLY: Can I put this proposition to you; would you say that you were close to Narada before he went to prison?
MS MIRANDA NATHANSON: Definitely, we’ve always been close. You know, just to tell you how close we are, when Narada was still home in the house as a scholar - I’ve always suffered with health issue, and he’ll always run to the room and say, “Yes, mum.” And I’ll be like, “I was going to call you but I didn’t call you.” But that’s the connection we have. And if I’m not well he just automatically handles the others and takes charge and, you know, always is there for me.’[57]
[57] Transcript, p 32, lines 38-45.
It was also put to the Applicant’s mother, no doubt in anticipation of the Respondent’s submission about the past incapacity of the now-claimed family support to moderate the Applicant’s offending, that the Applicant had offended in the past despite the closeness of the family. This is what she said in reply:
‘DR DONNELLY: So it’s in your evidence that you’ve had a very long-term close relationship with your son. With that fact in mind, is it a fair assessment that, notwithstanding the closeness of that relationship in the past, it didn’t stop Narada from committing criminal offences, though? Very serious offences in Australia?
MS MIRANDA NATHANSON: I do know that we had moved to Darwin and Narada was still in Perth and we were away at the time. And I do admit that we do acknowledge and know that Narada has gone off the rails extremely. But I can see the difference in Narada when we visit him, when we talk to him. I talk to Narada daily, FaceTime or normal calls. But we do correspond daily, and I can see the change in Narada. And I do admit that he’s done wrong, but I feel he’s paid enough for what he’s done…’[58]
[58] Ibid, p 33, lines 1-11.
The Applicant’s brother resides in Darwin and has done so for about seven years. He lives there with his partner and his two infant children. He has taken his family back to Western Australia to visit the extended family ‘about two years ago…’. He was asked whether he would again travel to Western Australia to see the Applicant if he is returned to the Australian community and he replied with: ‘Most definitely. Most definitely.’[59] In his written statement he speaks of the closeness between the Applicant and his family:
[59] Ibid, p 51, line 28.
‘I have lived in the Northern Territory for about seven years. I moved here for work. I am married to Sarah Snowball. Sarah is 34 years of age. We are the parents to two children in Australia:
[Child KY] (DOB: [DOB redacted]) (aged 4); and
[Child KA] (DOB: [DOB redacted]) (aged four months).
My brother, Narada William Nathanson [the Applicant], has a relationship with both of my children. Narada speaks to [Child KY] on the telephone and through video calls. He understands that Narada is his uncle. Narada and [Child KY] enjoy speaking with each other.
Naturally, given the young age of [Child KA], Narada is not able to engage in conversation with his niece. However, I know that my brother loves my children very much. It is important to emphasise that I want my brother to play an important uncle role to my children in the years to come.
I am extremely close to my brother. Given that relationship, I want my brother to play an important role in the lives of my children. I have been impacted (in an emotional sense) by my brother’s absence from our lives. Given my brother’s time in prison and immigration detention, he has not physically met my children yet. However, I really hope he gets the opportunity to do that soon.
I keep in regular contact with my brother. I speak to him through a video call at least once a week; sometimes more. I always looked up to my brother as a role model for myself. My brother has a good heart and loves his family very much. It was extremely sad to see my brother assume a drug addiction problem and engage in criminal offending in Australia.
I otherwise keep in contact with my brother through normal telephone calls and text messages. My partner also knows my brother and they have a respectable relationship. It must be emphasised that our whole family unit is close. My brother has a close relationship with our parents, our sister and other family members living in Australia.’[60]
[60] A2, pp 1-2, [6]-[11].
To what extent can it now be safely found that the Applicant’s family will reliably act as a protective factor against his future recidivist risk? The first requirement in addressing this question is to deal with the family’s past failure to prevent the Applicant from offending. This explanation is to be found in the extent to which the Applicant’s past difficulties with illicit (and other) substance abuse skewed and distorted moral compass. When he was in such a state, the evidence indicates that he was living alone in Perth and the remainder of the family was residing in the Northern Territory. True it is that the Applicant committed the very serious offences that came before Chief Justice Grant in May 2018 after he was reunited with his family in the Northern Territory. By then, his methylamphetamine addiction had usurped whatever protective and supportive element the family presented. In short, the Applicant’s life was run by an addiction and not by any sense of responsibility to either himself, his family or the broader community.
Now, the Applicant can re-commence a life in the Australian community reliably free from the destructive shackles of addiction. He will be able to engage with his family on a significantly more equal footing than before when he was the only drug addict in a family of otherwise responsible, hardworking and genuine ‘salt of the earth’ people. The call to be made by this Tribunal in the circumstances of this case is whether the Applicant will join his family as a member of the ‘salt of the earth’ or whether he will return to the destructive degeneracy created by substance addiction. Because he is starting from a position where drugs no longer dominate his life and moral compass, there is a strong prospect that his family can be found to be a strong protective factor against his recidivist risk.
Structured plan if returned to the community: the evidence makes plain the Applicant has people around him who are ready, willing and able to ensure the safest of all possible returns for this Applicant to the Australian community. His loving parents will readily and immediately provide him with safe and stable accommodation. Both parents gave clear evidence that they would oversee and facilitate his engagement with healthcare professionals to ensure he obtained the support and assistance he required.
The need for vigilance and constant monitoring of the Applicant’s condition was something touched upon by Chief Justice Grant who noted that the Applicant’s prospects for rehabilitation ‘…must be considered as marginal…’ unless he received some effective intervention to deal with it. These remarks were, of course, made some five years ago. The Applicant (as I have found) has not engaged with either illicit substances or alcohol for the past six years. In addition to that abstinence, the Applicant will have the abovementioned support of his family to facilitate engagement with healthcare and other necessary supports to avoid a relapse.
Analogous to the theme of establishing some kind of structured plan or modality of loving his life upon a return to the community, I put certain questions to the Applicant. After all, he is a 39-year-old man with a young family and a capacity to immediately return to remunerative employment in a trade in which he has a demonstrated previous work history. I wanted to know whether he had reached the point in his life that (1) stupid and very serious offending was behind him and that he was prepared to re-engage with his wife and children; and (2) he was willing and prepared to return to remunerative employment as a means of providing support for them; and (3) that if confronted with life’s inevitable difficulties, he would not again seek refuge in the destructive world of substance abuse. This is what he said:
‘SENIOR MEMBER:[…]if you come back into the community it’s correct, isn’t it, to say that you would probably go back to working at the mines on a fly-in fly-out basis which will keep you away from the lives of the children. But that’s just how it has to be, I suppose, so that you can earn the best amount of money to support them and support yourself. You’d agree with that?
APPLICANT: Yes, sir.
SENIOR MEMBER: You’re 39, Mr Nathanson, and you’re at a stage of your life when very often life’s most challenging difficulties present themselves. In the past you’d agree that you haven’t done a really satisfactory job of dealing with life’s difficulties, have you, and stressors and things like that because you’ve resorted to drugs, abusing drugs, alcohol, and acting in a very serious criminal way in the community. You’d agree with that?
APPLICANT: Yes, sir.
SENIOR MEMBER: So my point to you or the question to you is if you come back into the community and there’s fresh challenges and fresh difficulties, for example[…]there’s a serious issue with someone close to you. And I’ve seen the very serious issues that your mother has gone through in the last 12 months. Say there’s a serious issue with one of your children. Say your wife turns very nasty on you and prevents you from seeing the children and that requires ugly and difficult Family Court proceedings. All of those things are stressful things. How can I be confident that if those stressors are thrown back at you again - as they do to all of us in our lives - how can I be sure that you’re not going to go back to resorting to what you’ve previously found to be the comfort of methamphetamine and cannabis?
APPLICANT: Well, you can be sure, sir, because for one I’m going through that sort of stress and all that hardship right now, struggling. And I am quite capable of consuming methamphetamine or any other drugs in the facility where I am quite presently residing at, which I haven’t. I haven’t touched any drugs or alcohol in so many years. And it’s not going to be any different when I’m on the outside in the community as I am in here as an escape - as me residing to drugs, you know, because of a bit of stress or pressure that I’m going through.’[61]
[61] Transcript, p 27, lines 41-46; p 28, lines 1-26.
Conclusions about risk
I have had regard to the totality of the evidence, both that of the Applicant and his family members. True it may be that there is no definitive and independent clinical report providing an explanation of any factors behind the Applicant’s offending. As I have found, there are two past eras of substance abuse in this Applicant’s life. The first of those was squarely behind and causative of his offending. The second era relates to the six years during which he has been removed from the community. This second era has afforded him an opportunity to demonstrate a level of rehabilitation from a pre-disposition towards substance abuse.
I am of the view (and I find) that this six-year period of claimed and demonstrated abstinence from illicit drugs is sufficient to allocate a recidivist risk profile to this Applicant that would not act as an impediment towards his return to the community. In the absence of clinical support, it is difficult for me to allocate a specific level or category of recidivist risk to this Applicant. I am content to find that his recidivist risk profile can now be safely found to be the same as he has demonstrated it to be across the abovementioned second era of his time in both prison and immigration detention during which he has been drug-free. On this demonstrated basis, I am of the view (and I find) that the level of the Applicant’s recidivist risk is sufficiently low such as to facilitate a return to the Australian community.
Paragraph 8.1.2(2)(c)
The Direction also contains a reference to paragraph 8.1.2(2)(c). With reference this specific paragraph, this matter does not involve a ‘refusal to grant a visa to a non-citizen’. It involves an application for the ‘revocation’ of a decision refusing to revoke the earlier mandatorily cancellation of the Applicant’s visa. This specific paragraph is not relevant to the determination of this application.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)I have found that the nature and seriousness of the Applicant’s conduct to date has been, ‘very serious’;
(b)I have found that that were this Applicant to re-commit offences of the type he has committed thus far, the harm to individuals and/or the Australian community would be very serious and would likely involve physical, psychological and quantifiable economic harm to its victims including, quite conceivably, harm to a catastrophic level.
(c)in terms of recidivist risk, I am content to find that his recidivist risk profile can now be safely found to be the same has he has demonstrated it to be across the abovementioned second era of his time in both prison and immigration detention during which he has been drug-free. On this demonstrated basis, I have consequently found that the level of the Applicant’s recidivist risk is sufficiently low such as to facilitate a return to the Australian community.
My analysis of the material leads me to a finding that this Primary Consideration 1 confers a certain, but not determinative, level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Prior to any application of this paragraph 8.2 to the material, it is necessary to address the two questions it poses. I must determine:
(a)who was a member of the Applicant’s family; and
(b)whether any of the Applicant’s conduct against those family member(s) amounts to family violence. I will now address each question in turn.
Who are members of the Applicant’s family?
The two alleged relevant incidents
There are two relevant incidents. The first occurred in June 2012. There is a ‘Detected Incidents Report’ prepared by Western Australia Police appearing in the material.[62] The parties comprise the Applicant as the ‘Person of Interest’ and his wife. The document specifically provides that ‘Relationship between parties: Husband & Wife’.[63] The second incident occurred on 8 May 2016. Again, it is described in a ‘Detected Incidents Report’ prepared by Western Australia Police.[64] In this report the ‘suspect’ is recorded as the Applicant. The ‘victim’ is recorded as the spouse of the Applicant. The narrative in the document says that the victim and the Applicant ‘…have been married for 8 years and have 3 children together, aged 6, 4 and 5 months.’[65]
[62] G1, pp 181-182.
[63] Ibid, p 181.
[64] Ibid, pp 183-186
[65] Ibid, p 183.
Was the victim of the two abovementioned incidents a member of the Applicant’s family?
In her statement, Ms SN says these things:
‘I am writing in reference to my husband Narada William Nathanson. My name is [name redacted] ([name redacted] as in my passport) i am Narada William Nathansons wife.
…
Narada and I have known each other for 18 years. We met through an acquaintance from school. We felt a deep connection with one another. It was more than love, it felt like to meant to be, Narada always respected me and treated me with dignity and worth. He was my best Friend, I felt safe with him. We have lived together for 11 years and married for 9 years. Narada and I have 3 children together. [Child T], 9years of age. [Child L], 7 years of age and [Child G], 2years of age.
I provide this reference in full knowledge of all Narada’s charges. He has expressed to me his deep sense of remorse in making such a serious lack of judgement.[sic]
…
Narada comes from a loving and committed supportive family system and has learnt good family values and morals. Something I fell in love with, something I so deeply desired in my childhood. In saying this, during this very dark season in our life I have grown even more respect and love for Naradas family.
They have been our back done [sic]. Without their support i wouldn't have coped. Through this we have grown closer
We will do everything in our power to help Narada in his heartfelt desire to return to a positive life style.
Narada had always been the soul [sic] provider of our family. The best father to our 3 children who miss him so much who are finding it all very emotionally hard to cope. They have formed a healthy bond that father and children should form. Narada has always been an integral part of our life by providing the support and guidance of a good father and husband. Our favourite time spent was going fishing, fixing cars along side their dad, swimming at the beach, reading books before bed, fixing and making things together, BBQs at nanas, picnics at the park.
Our sons look up to their dad a great deal and I honestly can not imagine our boys and daughter without their father. It has and Is continuing to affect them. By separating our beloved family it would cause deeper devasting effects not only with our children but myself and my husband.
Narada my beloved husband has always been there for me, l have never had to work because he granted me the absolute privilege to be home with our children. I watched them grow and care for them as most mothers wish they could. I had that opportunity thanks to the loving husband he was. Always put us first and himself last. Always made sure we had everything we needed, it is very hard emotionally and physically without him. He is a family-person who is admired by many and has always presented himself with levelheadedness and Grace. My husband Narada has always had a strong personality with the desire for self-improvement. Like every marriage/relationship have their complications we want to better our marriage and restore what was broken. We will do whatever it takes to make it as strong as it was when we first met. Narada wants to come home and support his family and do what ever it takes to get the right help for himself and our family whom are waiting at home for him. We really looked forward to our phone calls from him in Darwin correctional centre. Now that he has been detained in Yongah Hill IDO its affected our children even more as they were expecting their dad to come out from OCC and have a normal life with their dad as every child needs in order to feel safe and natured.
…
Sincerely
Ms SN
(Wife to Narada William Nathanson)’[132]
[My emphasis]
[132] G1, pp 104-105.
There is little to cavil with the proposition that Ms SN still regards herself as the Applicant’s wife and that she would welcome his return to both her own life as her spouse but also to the life of their family unit as the father figure-provider. It is clear from her statement that Ms SN wants the marital relationship to return to what it was before the Applicant’s removal from the community. There can be no question that she is supportive of the Applicant remaining in Australia even though she was a victim of certain family violence conduct perpetrated by the Applicant to which I have referred earlier in these Reasons. A contrarian element was that Ms SN was not produced to give oral evidence and thus the Respondent did not have any opportunity to test her evidence in cross-examination. The weight allocable to her written statement must thus be tempered accordingly.
With reference to this Other Consideration (c) I am of the view that as the victim of the Applicant’s past family violence conduct, Ms SN’s evidence about her willingness to resume and improve the marital relationship between them is significant. She is not an anonymous victim of the Applicant’s conduct. By ‘anonymous victim’ I mean someone against whom the Applicant offended but who, apart from that offending incident, will most likely never see the Applicant again. Ms SN is no such victim. She wants the Applicant to re-commence being a constant spousal presence in her life and that of the family of five they have. Accordingly, Ms SN’s evidence causes this Tribunal to allocate a strong level of weight to this Other Consideration (c) in favour of revocation of the decision refusing to revoke the original mandatory cancellation of the Applicant’s visa.
Other Consideration (d): Links to the Australian Community
Paragraph 9.4 of the Direction requires that decision-makers must have regard to an Applicant’s links to the Australian community. There are two factors which I must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature, and duration of ties to Australia; and (2) the impact on Australian business interests if he cannot remain here. I will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, three elements require consideration. First, it is necessary to have regard to the impact of a non-revocation decision on the Applicant’s ‘immediate family members’ where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature, and duration of any ‘other ties’ the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature, and duration of any other ‘family or social links’ the Applicant may have with people who have an indefinite right to remain in Australia. I will address each component in turn.
i. Impact of non-revocation on the Applicant’s immediate family
It is necessary to identify the Applicant’s immediate family in Australia. In an attachment to his PCF, the Applicant records the following immediate family members in Australia:
·Father – Mr Leonard Nathanson;
·Mother – Ms Miranda Nathanson;
·Brother – Mr Cleedon Nathanson;
·Sister – Ms Aslyn Nathanson;
·Wife – Ms SN.
I have earlier recounted the extent to which the Applicant’s family is a close, tight knit and loving one. As also mentioned earlier, this finding parallels that of Chief Justice Grant who found the Applicant came from ‘…a stable, caring and loving home.’ With the exception of Ms SN, each of these family members gave oral evidence at the Hearing. One does not need to travel far into the material to accept that each of the Applicant’s immediate family members would be adversely impacted by his removal. For example:
·the Applicant’s father says: ‘In circumstances where my son is deported to New Zealand, I would be extremely unhappy. All our family has moved to Australia. My wife, children and other extended family members would be absolutely devastated. It makes no sense at all.’;[133]
·the Applicant’s mother says: ‘In circumstances where my son is deported to New Zealand, I will be absolutely devastated. It will break my heart. My son is like my best friend. When I have had considerable issues in life, I would always call my son for advice. He always gave me excellent advice and showed genuine care for me.’;[134]
·the Applicant’s brother says: ‘If my brother were to be deported to New Zealand, I would be absolutely devastated. I would take it extremely hard to be honest. I also know that my parents and sister would be shattered. They all love my brother very much. There is no question about that.’;[135]’
·the Applicant’s sister says: ‘In circumstances where my brother is deported from Australia, I would be absolutely devastated beyond words. I would be heartbroken and shattered. My family has already been through a great deal with my brother’s very prolonged immigration detention.’[136]
·the Applicant’s wife says: ‘Narada has always been an integral part of our life by providing the support and guidance of a good father and husband… Our sons look up to their dad a great deal and I honestly can not imagine our boys and daughter without their father. It has and Is continuing to affect them. By separating our beloved family it would cause deeper devasting effects not only with our children but myself and my husband.’[137]
[133] A3, p 2, [14].
[134] A4, p 2, [15].
[135] A2, p 3, [17].
[136] A6, p 1, [9].
[137] G1, p 105.
Having regard to the evidence of the Applicant’s immediate family members, I am safely led to the view (and finding) that each of them would be adversely impacted by his removal. Accordingly, the strength, nature and duration of the Applicant’s ties to his immediate family members in Australia carries a heavy level of weight in favour of this Tribunal setting aside the decision under review to cancel the Applicant’s visa. I make this finding conditional on the presumption that each of the above-listed immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
ii. Strength, nature, and duration of “other ties” – length of residence
There are two necessary enquiries referable to the extent of the Applicant’s, ‘other ties’ to Australia. The first of those involves the question of how long he has resided in Australia, including whether he came here as a young child. As mentioned earlier, the Applicant migrated to Australia with his family on a permanent basis in May 2010. Since his arrival, although he did not arrive here as a young child, it can be safely found that he has spent something like one third of his life in Australia.
I will now make reference to the two tempering sub-elements in paragraph 9.4.1(2)(a) of the Direction. The first of those compels me to allocate less weight if the Applicant began offending soon after arriving here. He arrived and settled in Australia, with his family, on 11 May 2010. He committed his first offence in Australia on 30 May 2010. This is barely three weeks after he arrived here. The commission of his first Australian offence such a very short time after arriving here must surely be construed as being ‘soon after arriving in Australia’. The first of these two tempering sub-elements does not assist the Applicant.
The second of the two tempering sub-elements at 9.4.1(2)(a) of the Direction compels an assessment of the extent of the Applicant’s positive contributions to the Australian community. As I have mentioned earlier, he has a solid history of engagement in remunerative employment in Australia which speaks favourably about him having a steady work history in Australia during his time here. In his PCF the Applicant refers to him working he said ‘I have always worked hard in every job I have obtained being honest and reliable and trustworthy worker.’ The PCF refers to his work as both a mechanic and mechanical fitter in ‘dealership workshops’ and as a ‘fly-in-fly-out’ worker.[138] He will have paid taxation on the income he derived from that employment and would thus have made a contribution towards this country’s coffers from which the Australian community is sustained.
[138] G1, p 68.
This second of the two tempering sub-elements also looks for positive contributions to the Australian community. As we know, the Applicant has been removed from that community for about six years. However, within the ‘community’ of the closed confines of either prison or immigration detention, there is reliable evidence that he has acted as a ‘Quicksmart’ Assistant Tutor with responsibility for supporting students to attain basic skills in numeracy and literacy.[139] Further, the Applicant’s sister spoke of the Applicant’s role in leading a Bible study group while in immigration detention.[140]
[139] See [66] of these Reasons.
[140] Ibid.
I am of the view (and I find) that this tempering sub-element can be applied in favour of the Applicant due to his positive contributions to the Australian community via his engagement in remunerative employment. To perhaps a lesser extent, a similar finding can be made in relation to his contributions to the much smaller communities in which he has found himself over the last six years in both prison and immigration detention. Therefore, while the first tempering sub-element does not assist the Applicant, the second one can be applied in his favour to attract weight to this Other Consideration (d) in favour of this Tribunal restoring his visa status to remain here.
iii. Strength, nature, and duration of “other ties” – family and other social links
In terms of ‘other ties’ to Australia the Applicant does, in his PCF, refer to the following extended family members:
·Mr Quinn Bent – uncle;
·Ms Fiona Jeremiah – aunt;
·Helen May – aunt;
·Estelle Adams – aunt;
·Clifford May – uncle;
·Janine Kinnear – cousin;
·Freddie Adams – uncle.
None of the above extended family members gave oral evidence at the Hearing. I have looked through the material for any statements from any of them:
·Mr Quinn Bent has provided two statements. In the first of them[141] Mr Bent says he is aware of the Applicant’s offending but regards the Applicant as a ‘…kind, generous and loving family person.’[142] He says that if returned to the community the Applicant will ‘return to being a good law abiding citizen.’[143] In his second statement[144] Mr Bent speaks of the importance of the Applicant returning to his immediate family. He talks about allowing the Applicant’s ‘…family especially his immediate family [to] take him in and provide this platform on which he can rebuild his life.’[145]
·Ms Fiona Jeramiah is a cousin of the Applicant’s mother and has provided one statement.[146] She speaks positively of the Applicant (in a personal sense) and also speaks positively about the ‘supportive, loving and stable home’[147] provided to him by his immediate family. She is aware of the Applicant’s criminal offending and believes the Applicant has ‘…great potential to being a good example and a positive influence in the community.’[148]
·Ms Helen May is a friend of the Applicant’s parents. Her singular statement appears in the material.[149] She has known the Applicant for all of his life and is aware of his criminal offending in this country. She thinks he is now reformed to the point where ‘…he is willing and ready to fit into society as responsible and upstanding.’[150]
·Ms Estelle Adams is the Applicant’s maternal aunt and his godmother. Her singular statement appears in the material.[151] She is tremendously saddened as a result of the Applicant’s current circumstances. She has known him since birth and regards him as a loving father and husband to his immediate family. She refers to the ‘…close relationship I had the privilege to have with [the Applicant]…’[152] and as his godmother she wants to provide him with ‘…all the love and support he needs’.[153]
·Mr Clifford May appears to have met the Applicant via the Applicant’s work as a fly-in-fly-out worker in the mines. His singular statement appears in the material.[154] He says ‘…we found him to be honest, trust worthy and respectable young gentleman.’[155] He says that if returned to the community ‘…I would not hesitate to rehire him again.’[156] He refers to the Applicant’s positive qualities as a family man. He concludes his statement with saying the Applicant is a ‘…good young lad with a lot of potential that went off track unfortunately.’[157]
·Ms Janine Kinnear has provided a statement which appears in the material.[158] She appears to be a resident of New Zealand. As such, I cannot take her statement into account she is not an Australian citizen, Australian permanent resident and/or a person who has an indefinite right to remain in Australia.
·Mr Freddie Adams – although this person is named in the Applicant’s PCF, I am not able to locate any written statement from him in the material.
[141] G1, pp 82-83.
[142] Ibid.
[143] Ibid, p 83.
[144] Ibid, pp 101-102.
[145] Ibid, p 101.
[146] Ibid, p 84.
[147] Ibid.
[148] Ibid.
[149] Ibid, p 89.
[150] G1, p 89.
[151] Ibid, p 99.
[152] Ibid.
[153] Ibid.
[154] Ibid, p 103.
[155] Ibid.
[156] Ibid.
[157] Ibid.
[158] Ibid, pp 106-107.Note: This letter from Ms Kinnear is dated 2018 and she states in the letter that she will be moving to Perth, WA in Australia at the end of August 2018. I cannot be certain from the material before me that Ms Kinnear ever made the move from New Zealand to Perth, Australia and I therefore deal with this letter as it presently appears in the material.
With specific reference to the Applicant’s ‘other ties’ to these extended family members, I am safely led to the view (and finding) that each of them (with the exception of the final two) would be adversely impacted by his removal. Accordingly, the strength, nature and duration of the Applicant’s ties to his immediate family members in Australia carries a heavy level of weight in favour of this Tribunal setting aside the decision under review to cancel the Applicant’s visa. I make this finding conditional on the presumption that each of the
above-listed immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
There is some evidence in the material of the Applicant having ‘other ties’ in Australia beyond immediate and extended family. I will refer only to those statements in the material made by people in Australia, none of whom were called to give oral evidence at the Hearing:
·Petrus Botha has known the Applicant for the past six years (as of 2018). They met while both working as mechanical fitters on a construction project on an iron ore mine site in the Pilbara. His singular statement appears in the material.[159] He is aware of the Applicant’s criminal offending but nevertheless regards the Applicant as a ‘respectful young man.’[160] He refers to the loving family environment from which the Applicant has emerged as well as the Applicant’s commitment to his own immediate family. He describes the Applicant as ‘…a good young man and not many people win me over like he has.’[161]
·Zane Patel has known the applicant for about 4/5 years (as of 2018). They met while working together at mine sites are mechanical fitters. His singular statement appears in the material.[162] During their work time together, Mr Patel says he ‘…found him to be hard working and pleasant to work alongside.’[163] Mr Patel says he found the Applicant to be ‘family oriented [and] always there if one need [sic] to chat and was forthcoming with encouragement and advice.’[164]
·Ms Jenny Fox (as of 2018) had known the Applicant’s family for approximately three years. She has mainly had contact with the applicant through their mutual attendances at church. Her singular statement appears in the material.[165] She refers to the Applicant’s strong family ethic both towards his own immediate family and his parents and siblings. She is aware of the Applicant’s difficulties with the law in Australia. She refers to the Applicant’s unlawful conduct in Australia ‘regrettable hiccup’.[166] She thinks the applicant has a bright future in this country provided he can be reunited with his wife and children.
·Ms Alexis Paternoster has been friends with the Applicant and his family since 2013-14. Her singular statement appears in the material.[167] She describes the Applicant as a ‘good and honest man.’[168] She thinks he ‘…has always navigated his way through life with dignity and grace; often putting the needs of others ahead of his own.’[169] She is aware of his criminal offending. She suggests that the Applicant’s ‘…actions may make him a criminal in the eyes of our government but to us he is still a loving father…’[170] She concludes her statement by saying ‘Don’t let this innocent family carry the weight of the consequences of your decision to deport their Dad and husband.’[171]
·John Bezuidenhout has provided a short-written statement which appears in the material.[172] He has known the Applicant since birth and has been close to his family and has observed him grow up ‘to be a good hardworking and family man’.[173] He says that the Applicant ‘…is needed in our workforce, he’s [sic] expertise should not be lost as he could be an asset to our industry.’[174]
·Ms Diana Heynes has provided a short statement (dating from August 2018) which appears in the material.[175] She regards the Applicant as ‘…a fine young man.’[176] She thinks his lengthy incarceration has taught the applicant ‘a bitter lesson’. She says she has known him all his life and that he ‘…has the strength of character to reform.’[177]
·Ms Naomi Bent is a childcare educator who runs her own family day care business in Perth, Western Australia, she provided a singular statement (dating from August 2018) appearing in the material.[178] She has known the Applicant and his immediate family for over eight years. She speaks of the Applicant’s positive qualities as a husband and a father. She believes the Applicant needs to be situated in Perth where he will be able to derive support from his immediate family.
·Mr and Ms Ian and Anna Butler have provided a joint statement which dates from August 2018 and appears in the material.[179] As of 2018 they say they have known the Applicant, his wife and their three biological children who attend the same school as their own children. They speak of the Applicant’s close ties to his family and of his qualities as a father/parent. They also have a common connection with the Applicant and wife via the network of their local church. Any removal of the Applicant from Australia as ‘a tragedy’.[180] They think it is imperative that the Applicant and his immediate family unit should stay together in Australian.
·Mr Heremaia Mackenzie has provided a statement which appears in the material.[181] He is a small business proprietor in Western Australia and he met the Applicant via their church network three-four years ago (as of 2018). He is aware of the Applicant’s history of offending in Australia and considers he should not be removed for three reasons: (1) he is rehabilitated; (2) his immediate family; and (3) his potential to contribute to the community. He concludes ‘I would love to be a part and walk along side [the Applicant] in integrating him back into the community.’[182]
[159] G1, p 80.
[160] Ibid.
[161] Ibid.
[162] Ibid, p 90.
[163] Ibid.
[164] Ibid.
[165] G1, p 96.
[166] Ibid.
[167] Ibid, pp 97-98.
[168] Ibid p 97.
[169] Ibid, p 97.
[170] Ibid, p 97.
[171] Ibid.
[172] Ibid, p 100.
[173] Ibid.
[174] Ibid.
[175] G1, p 110.
[176] Ibid.
[177] Ibid.
[178] Ibid, p 111.
[179] Ibid, p 112.
[180] Ibid.
[181] Ibid, pp 116-117.
[182] Ibid, p 117.
With specific reference to the Applicant’s ‘social links’ to the Australian community, I am safely led to the view (and finding) that each of them would be adversely impacted by his removal. Accordingly, the strength, nature and duration of the Applicant’s social ties to Australia carries a heavy level of weight in favour of this Tribunal setting aside the decision under review to cancel the Applicant’s visa. I make this finding conditional on the presumption that each of the above-listed immediate family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) Impact on Australian business interests
Paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on, ‘Australian business interests’. I am of the view (and I find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration (d): links to the Australian community
With reference to the first part of this Other Consideration (d) (the strength, nature and duration of the Applicant’s ties to Australia), I am of the view – after having analysed its three above referred elements – that the totality of the evidence points to the allocation of a heavy level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a heavy level of weight in favour of a finding that this Tribunal restoring his visa status to remain here.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant;
(b)extent of impediments if removed: is of a moderate, but not determinative, level of weight in favour of setting aside the decision under review;
(c)impact on victims: is of a strong level of weight in favour of setting aside the decision under review; and
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: is of heavy weight in favour of setting aside the decision under review.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration 1: carries a certain, but not determinative weight in favour of affirming the decision under review;
·Primary Consideration 2: carries a moderate, but not determinative weight in favour of affirming the decision under review;
·Primary Consideration 3: is of a heavy level of weight in favour of setting aside the decision under review;
·Primary Consideration 4: carries a certain, but not determinative weight in favour of affirming the decision under review;
I have outlined the weight attributable to each of the Other Considerations. I am of the view (and I find) that the combined weights I have allocated to Primary Consideration 3 and Other Considerations (b), (c) and (d) respectively, are sufficient to outweigh the combined weights I have allocated to Primary Considerations 1, 2 and 4.
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours setting aside of the Respondent’s decision under review made on 8 January 2019.[183]
[183] Notified to the Applicant on 10 January 2019.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision made by the delegate of the Respondent dated 8 January 2019 and substitutes it with a decision to revoke the cancellation of the Applicant’s visa.
I certify that the preceding 208 (two hundred and eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
................[SGD]..........
Associate
Dated: 31 March 2023
Date(s) of hearing: 16 and 17 January 2023 Counsel for the Applicant: Dr Jason Donnelly
(Latham Chambers; Direct brief)
Solicitor for the Respondent: Mr Jake Kyranis (Senior Associate) Sparke Helmore Lawyers ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
G1
Remittal Bundle
(Paged 1-830, Numbered 1-5)
R
Various
7 Nov 2022
R1
Respondent’s Statement of Facts, Issues and Contentions
(Paged 1-18)
R
9 Jan 2023
9 Jan 2023
R1.1
Annexure to Respondent’s SFIC
R
7 Jan 2019
9 Jan 2023
A1
Applicant’s Statement of Facts, Issues and Contention
(Paged 1-31)
A
13 Dec 2022
16 Dec 2022
A2
Statement of Cleedon Nathanson
(Paged 1-3)
A
16 Dec 2022
16 Dec 2022
A3
Statement of Leonard Nathanson
(Paged 1-3)
A
15 Dec 2022
16 Dec 2022
A4
Statement of Miranda Bernadette Nathanson
(Paged 1-12)
A
15 Dec 2022
16 Dec 2022
A5
Statement of the Applicant
A
15 Dec 2022
16 Dec 2022
A6
Statement of Aslyn Nathanson
A
21 Dec 2022
21 Dec 2022
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Statutory Construction
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Natural Justice
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Jurisdiction
0
3
0