NMQG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 2150
•12 June 2024
NMQG and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 2150 (12 June 2024)
Division:GENERAL DIVISION
File Number(s): 2024/1853
Re:NMQG
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member A. Julian-Armitage
Date:12 June 2024
Date of written reasons: 28 June 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Respondent’s delegate dated 19 March 2024 to not revoke the mandatory cancellation of the Applicant’s visa.
.............................[SGD]...........................................
Member A. Julian-Armitage
Catchwords
MIGRATION - Non-revocation of mandatory cancellation of a Class BF Transitional (Permanent) visa - UK citizen - where Applicant does not pass the character test - where Applicant has a substantial criminal record - where numerous convictions include trafficking in dangerous drug - whether there is “another reason” why the decision to cancel the Applicant’s visa should be revoked - consideration of Ministerial Direction No. 99 - decision under review affirmed
Legislation
Administrative Appeals Tribunal Act1975 (Cth)
Domestic and Family Violence Protection Act 1989 (Cth)Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs (2019) 272 FCR 454
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
Secondary Materials
Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Member A. Julian-Armitage
28 June 2024
BACKGROUND
The Applicant is a 52-year-old citizen of the United Kingdom (UK) who arrived in Australia in 1980 at the age of eight.[1] He was last granted a Class BF Transitional (Permanent) visa (visa) on 1 September 1994[2] and commenced offending in 1991 at about the age of 19. He has accumulated some 80 convictions during his offending career including offences of violence, drugs and property-related crimes, as well as numerous weapons-based convictions and offences against the police.
[1] Exhibit R1, p 1, para 2; Exhibit Tr1, G43, p 199-201.
[2] Exhibit R1, p 1, para 2; Exhibit Tr1, G13, p 88.
On 24 November 2022, the Applicant was sentenced to eight years’ imprisonment for the offence of Trafficking in dangerous drugs,[3] to be served concurrently with other drug and weapon-related convictions.[4] On 26 May 2023, the Applicant’s visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (the Act),[5] due to the Applicant having a substantial criminal record.[6]
[3] Exhibit Tr1, G6, p 45.
[4] Exhibit Tr1, G6, p 45.
[5] Exhibit Tr1, G13, p 88-95.
[6] See ss 501(6)(a) and 510(7)(c) of the Act.
The Applicant sought the revocation of the mandatory cancellation of the visa[7] and on 19 March 2024, a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Respondent or the Minister) refused to revoke the mandatory cancellation.[8] On 11 March 2024, the Applicant lodged the instant application before this Tribunal seeking review of the non-revocation decision.[9]
[7] Exhibit Tr1, G15, p 97-118.
[8] Exhibit Tr1, G4, p 24; G5, p 25-43.
[9] Exhibit Tr1, G2, p 9. The Tribunal has jurisdiction to review the decision under subsection 500(1)(ba) of the Act.
It is common ground that the Applicant fails the statutory character test.[10] As such, the only question remaining for the Tribunal is to determine whether there is “another reason” why the cancellation should be revoked.[11]
[10] Exhibit R1, p 2, para 8-9; Exhibit A8, p 1, para 5.
[11] See subsection 501CA(4)(b)(ii) of the Act.
The application was heard in Brisbane on 30 May 2024. The Tribunal heard oral evidence from the Applicant, as well as the following parties:
·Ms Tabitha Jones (the Applicant’s step-daughter);
·Hugo (the Applicant’s father-in-law);
·Dr Steve Morgan; and
·MX (the Applicant’s partner and mother of his son).
The Tribunal also received written evidence with the totality of that material being consolidated into an Exhibit Register, a true and correct copy of which is attached to these Reasons and marked “Annexure A”.
Legislative Framework
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
“The Minister may revoke the original decision if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.”
I am satisfied that the Applicant made the representations as required by s 501CA(4)(a) of the Act.
Does the Applicant pass the character test?
For the sake of completion, the character test is defined in s 501(6) of the Act. It stipulates that a person will not pass the character test if they have a “substantial criminal record”. In turn, a “substantial criminal record” is where a person has been sentenced to a term of imprisonment of 12 months or more.[12]
[12] See ss 501(6)(a) and 501(7)(c) of the Act.
As mentioned above, it is without doubt that the Applicant fails the character test due to being sentenced to a term of imprisonment for eight years, for the offence of Trafficking in a dangerous drug.[13] Accordingly, I find that he cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
[13] Exhibit Tr1, G4, p 45.
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether there is another reason to exercise the s 501CA(4) discretion, this Tribunal is bound by s 499(2A) of the Act and must comply with any directions contained therein. In the present case, Direction No. 99 - Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (Direction or Direction 99) has application.[14]
[14] Direction No. 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA.
For the purposes of deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the Direction contains several principles that inform a decision-maker’s application of the considerations relevant to the decision. These principles are found in paragraph 5.2 of the Direction and are as follows:
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 framework, and will not cause or threaten harm to individuals or the Australian 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 to 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 engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies 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.
5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
6Decision-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 8.55(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.Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account, and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:
(a)legal consequences of the decision;
(b)extent of impediments if removed;
(c)impact on victims; and
(d)impact on Australian business interests.
THE OFFENDING
The Applicant has embarked on a continuous career of offending from the age of 19, having accumulated some 80 convictions for offences that could readily be viewed as very serious in nature. These include trafficking and possessing dangerous drugs, possessing weapons, assaulting police, stealing, trespassing, damaging police property, and breaking and entering into property. The Applicant’s extensive criminal history is summarised as follows:[15]
[15] see Exhibit Tr1, G6, p 44-51.
Court Conviction Date Offence Sentence/Penalty Coffs Harbour Local Court 4 November 1991 Trespass Fine: $170 + $45 court costs Kingaroy Magistrates Court 21 September 1992 3 x Warrant of apprehension Fine: $215 Receiving Fine: $400 Possession weapon whilst not being the holder of a licence Fine option order
Fine: $600
100 hrs and 66 hrs community service
Nanango Magistrates Court 3 February 1993 Assault occasioning bodily harm Fine: $300
Costs of court: $48.75
Compensation: $400
Southport District Court 22 October 1993 Assault occasioning bodily harm whilst in company and armed with an offensive weapon Imprisonment:
2 years 6 months on each charge;
12 months on each charge;
2 years on each charge
2 x Break and enter dwelling house with intent 3 x Stealing 4 x Break, enter and steal 7 x Break, enter and steal Attempted false pretences 2 x False pretences Attempted break and enter with intent 28 February 1994 Break, enter and steal On each charge: Imprisonment 6 mth; Imprisonment 1 mth,
concurrent
Unlawful use motor vehicle for the purpose of facilitating the commission of an indictable offence Stealing 3 x Wilful & unlawful damage to property Southport Magistrates Court 31 May 1994 Possession pipe used in connection with smoking dangerous drugs Fine: $250 Brisbane Magistrates Court 15 February 1996 3 x False pretence Imprisonment: 3 months, cumulative 2 x Stealing Nanango Magistrates Court 3 December 1997 Assault/obstruct police officer in performance of duty Fine: $450 11 March 1998 Producing dangerous drugs Fine: $920 Possessing dangerous drugs Possessing instructions for producing dangerous drugs Maryborough Magistrates Court 13 April 2000 Possessing dangerous drugs Fine: $500 Kingaroy Magistrates Court 22 September 2003 Possess property suspected of having been used in connection with the commission of a drug offence Convicted and not further punish 2 x Unlawfully possession of weapons whilst not being the holder of licence 2 x Secure storage of weapons Kingaroy District Court 29 January 2004
(new proceedings 20 October 2004)
Dangerous operation of vehicle with circumstance of aggravation Imprisonment: 12 months, suspended for 2 years, after serving 6 months
Following appeal to Court of Appeal Qld and new proceedings: Imprisonment: 9 months, suspended for 2 years.
23 March 2004 Enter or in dwelling with intent and uses or threatens to use actual violence Imprisonment: 15 months, suspended 2 years after having served a term of 4 months imprisonment Nanango Magistrates Court 12 January 2005 Fail to stop vehicle Fine: $400 Kingaroy District Court 20 March 2007 Fail to properly dispose of needle and syringe Imprisonment: 1 month Fail to stop vehicle Imprisonment: 12 months Breach of suspended sentence Imprisonment: 184 days Caloundra Magistrates Court 6 April 2009 Fail to stop motor vehicle Imprisonment: 18 months Kingaroy Magistrates Court 22 June 2011 Possession of a knife in a public place or school Convicted and not further punished Fail to properly dispose of needle and syringe Contravene direction or requirement Possess property suspected of having been acquired for the purpose of committing a drug offence Fail to properly dispose of needle and syringe Authority required to possess explosives 4 x Possess dangerous drugs Imprisonment: 18 months, concurrent Producing dangerous drugs Imprisonment: 18 months, concurrent Possessing dangerous drugs 2 x Unlawful possession of weapons category D/H/R weapon 2 x Unlawful possession of weapons category A, B or M Kingaroy Magistrates Court 21 February 2013 Escape by person in lawful custody Imprisonment: 2 months, concurrent 16 May 2013 Commit public nuisance No conviction recorded,
Fine: $750
Wilful damage of police property 24 July 2014 Contravene direction or requirement Conviction recorded, not further punished Unlawful possession of restricted drugs Unlawful possession of weapons, category A, B or M Imprisonment: 2 months, concurrent Possessing dangerous drugs Imprisonment: 6 months, concurrent Possess utensils or pipes that had been used Imprisonment: 3 months, concurrent 2 x Fail to properly dispose of needle and syringe Brisbane Supreme Court 24 June 2016 2 x Unlawful possession of suspected stolen property Conviction recorded, not further punished Possession of a knife in a public place 2 x Receiving tainted property Possessing anything for use in the commission of crime Imprisonment: 12 months, concurrent Possessing dangerous drugs Imprisonment: 18 months, concurrent Brisbane Magistrates Court 6 July 2016 2 x Breach of bail condition Fine: $300.00 Unlawful use of weapons category A, B or M Brisbane Supreme Court 18 April 2019 2 x Possessing dangerous drugs Conviction recorded, not further punished Possess utensils for use Assault police officer Serious assault police officer/person acting in aid of police officer Imprisonment: 6 months, concurrent 2 x Supplying schedule 1 dangerous drugs Possessing dangerous drugs schedule 1 Imprisonment: 2 years Brisbane Supreme Court 24 November 2022 Unlawful possession of controlled drug Conviction recorded, not further punished Authority required to possess explosives Imprisonment: 3 months, concurrent 2 x Unlawful possession of weapons category A, B or M Imprisonment: 6 months, concurrent Receiving or possessing property obtained from trafficking or supplying Conviction recorded, not further punished Possess dangerous drug specified in Schedule 1 or 2 Imprisonment: 6 months, concurrent Unlawful possession of weapons category D/H/R weapon Imprisonment: 12 months, concurrent Possessing dangerous drugs Schedule 1 drug quantity of or exceeding Schedule 4 Imprisonment: 5 years, concurrent Trafficking in dangerous drugs Imprisonment: 8 years, cumulative
At the hearing, the Applicant did not deny or refute any of the contents of his criminal history.
In addition to the above offending, the Applicant also has a significant traffic infringement history including driving under the influence, excessive speeding, disqualified and unlicensed driving, careless driving and driving whilst using a handheld device.[16] These infringements have resulted in numerous SPER suspensions and disqualifications over the years.[17]
[16] Exhibit Tr2, S86, p 227-236
[17] Exhibit Tr2, S85, p 224-226.
The extensive nature of the Applicant’s offending is, simply put, staggering. He has demonstrably offended repeatedly and with criminal versatility. Concerningly, these include convictions for crimes that have been violent in nature:[18]
·Assault occasioning bodily harm, convicted on 3 February 1993;
·Assault occasioning bodily harm whilst in company and armed with an offensive weapon, convicted on 22 October 1993;
·Assault/obstruct police officer in performance of duty, convicted on 3 December 1997;
·Assault police officer, convicted on 18 April 2019; and
·Serious assault – assault/resist/obstruct police officer/person acting in aid of police officer, convicted on 18 April 2019.
[18] Exhibit R1, p 4, para 18.
Notably, on 22 October 1993, the Applicant was convicted and sentenced by the District Court of Queensland to a term of two and a half years imprisonment for the offence of Assault occasioning bodily harm whilst in company (the Applicant’s brother). The complainant was an off-duty police officer. The Sentencing Judge, in his remarks, described the conduct as “extremely serious”:[19]
“The photographs … show the extent of his injuries. They reveal a cut above his lip, a cut under his left breast … associated with that cut appears to be a stab wound with another cut underneath that and two further cuts under the right breast. There appear to be two further stab wounds in the back, the lower of which seems more significant that the other…
… The fact that a weapon was used in this case, a screwdriver, makes the offence extremely serious”.
[Tribunal bolding for emphasis]
[19] Exhibit Tr1, G12, p 83.
On 18 April 2019, the Applicant was convicted and sentenced in the Brisbane Supreme Court for the offence of Assault on police officer. The statement of facts indicate that on arrest for possession of drugs, the Applicant “continued to struggle and physically pushed the officers [sic] arms away whilst the [officer] was attempting to restrain the [Applicant]”.[20]
[20] Exhibit R1, p 4, para 20.
In addition to the Applicant’s violent offending, his numerous drug-related convictions have also been considered to be “serious” by the Courts.
On 24 June 2016, the Applicant was again sentenced in the Brisbane Supreme Court for numerous drug and property related offences, including for possessing dangerous drugs, possessing stolen property and possessing a knife. In the sentencing the Applicant, Boddice J described the Applicant’s offending in the following terms:[21]
“… your offending is serious. It is made more serious by reason of the fact that you have been given lots of opportunities by the Court. You have breached most of those opportunities in the past. You have served time in custody and that does not seem to have changed your ways…”
[Tribunal bolding for emphasis]
[21] Exhibit Tr1, G8, p 65.
Whilst on parole, from 15 October 2019 to 6 February 2022, the Applicant continued to engage in drug-related conduct, including in the context of a commercial drug enterprise, which resulted in further convictions.[22]
[22] Exhibit R1, p 6, para 30.
On 24 November 2022, the Applicant was sentenced in the Brisbane Supreme Court for Trafficking in dangerous drugs and other related offences. In sentencing the Applicant, Bradley J held:[23]
“… it is well understood why there is such a high maximum penalty. It is because of the devastating consequences these drugs, and methylamphetamine in particular, have on individuals and on the community as a whole. They are drugs that very adversely affect the lives of people who use them and become addicted to them and, of course, the lives of people who depend upon addicted persons … [T]hese drugs underpin a very large component of other criminal conduct that happens in this state. Addiction leads people to commit other serious offences in order to continue to get access to and to use these drugs. Trafficking in them is the lifeblood of that entire criminal world.
[23] Exhibit Tr1, G7, p 53.
It is difficult to argue with the Minister’s contention that the Applicant’s criminal history reveals a pattern of regular offending and a general trend of increasing seriousness.[24] In fact, the Applicant concedes that he “has some notable criminal history”.[25]
[24] Exhibit R1, p 4, para 22.
[25] Exhibit A1, p 2, para 9.
The Applicant states his criminality is not a product of deviance, but a consequence of a significant addiction to methamphetamine.[26] Notably, methamphetamine was the drug which was the subject of his most recent conviction for Trafficking in dangerous drugs, attracting a sentence of eight years imprisonment. Undoubtably, the Applicant’s problem with drugs is a significant factor of his offending history, although I note that the varied nature of his criminal history is not limited to drug-related offences.
[26] Exhibit A1, p 3, para 17.
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 resulting from 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.
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 deal with each in turn.
The nature and seriousness of the Applicant’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).
(h) where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Paragraph 8.1.1 considerations
Subparagraph 8.1.1(1)(a): the essence of this area of the Direction provides for the types of offences committed within the genre of sub-paragraph (i), (ii) or (iii) to be viewed very seriously by the Australian Government and the Australian community. As transposed in the above reasons, the Applicant’s offending includes convictions for offences that could readily be described as violent in nature. Therefore, the Applicant’s offence falls squarely within subparagraph (1)(a)(i), which comfortably leads to a finding that the offending has been “very serious”.
Subparagraph 8.1.1(1)(b): this area of the Direction refers to the types of crimes that may be considered serious by the Australian Government and the Australian community. The Applicant’s crimes against the police are the three assault/serious assault convictions of police officers from 1997 and 2019.[27] These offences clearly fall within the ambit of subsection (1)(b)(ii), as crimes against government officials, in this case, the police in the performance of their duties. Therefore, this favours a finding that the Applicant’s criminal conduct has been “serious” in nature, and I so find.
[27] See paragraph 18 of these Reasons.
Subparagraph 8.1.1(1)(c): this sub-paragraph precludes me from taking into account the sentences imposed for certain precluded offending, namely, convictions falling under sub-paragraphs (1)(a)(ii)-(iii) and (1)(b)(i). The Applicant has had a wide variety of sentences imposed upon him by the Courts. Such sentences have included fines, orders to convict and not further punish, community service orders and actual terms of imprisonment.
With respect to the non-custodial sentences imposed, it is clear that despite the multiple opportunities the Courts have afforded him, the Applicant has continued to offend and breach Australian laws. With respect to the sentences of imprisonment, I note that sentences involving terms of imprisonment are a last resort in the sentencing hierarchy. The fact that the Applicant has been repeatedly sentenced to terms of imprisonment is, therefore, a reflection of the objective seriousness of the offences involved.[28]
[28] PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22].
Subparagraph 8.1.1(1)(d): two questions arise for consideration within this sub-paragraph. The first requires an assessment of the frequency of the Applicant’s offending and the second is whether there is a trend of increasing seriousness. The Applicant’s offending can readily be classed as frequent. Since 1991, from the age of 19, he has embarked on a campaign of repeated offending, resulting in the conviction of some 80 offences. Hence, as well as being frequent, his offending has been consistently serious.
Subparagraph 8.1.1(1)(e): it is clear that the cumulative effect of the Applicant’s repeated conduct has shown a tendency of violence and disregard for Australian laws. His violent offending has caused physical, and potentially, material and psychological harm, to his victims. Further, in the commission of the Trafficking offence, the Applicant has contributed to the dissemination of dangerous drugs that are a scourge on the community. His repeated convictions have, by necessity, required significant enforcement and judicial resources. Therefore, I am of the view, and so find, that the effects discernible from the offending, on a cumulative basis, are extremely serious.
Subparagraph 8.1.1(1)(f): the considerations in this sub-paragraph are not relevant to the conduct of this Applicant.
Subparagraph 8.1.1(1)(g): this subparagraph requires me to consider 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 his migration status. On 3 February 2012, 27 August 2007 and 22 April 2002, the Applicant was notified, in writing, of the consequences that any further offending would have on his migration status.[29] On all three occasions, the Applicant was provided with a notice of decision not to cancel his visa, as well as a formal warning. The most recent warning contained the following passage: “two earlier warnings have not stopped [the Applicant]’s criminal activity. If he wants to be assured of remaining in Australia, he must not reoffend. Any more convictions may well result in cancellation of his visa”.[30] The Applicant has shown total disregard to these warnings and continued to breach Australian laws.
[29] Exhibit Tr1, G39, p 187; G40, p 190; G41, p 193.
[30] Exhibit Tr1, G39, p 187.
Subparagraph 8.1.1(1)(h): the considerations in this sub-paragraph are not relevant to the conduct of this Applicant.
Conclusion about the nature and seriousness of the Applicant’s conduct
Upon applying each of the relevant sub-paragraphs contained in paragraph 8.1.1(1) of the Direction, I am satisfied that the evidence before me leads me to the conclusion that the totality of the Applicant’s unlawful conduct in this country has been very serious, and I so find.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Sub-paragraph 8.1.2(1) 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.
Sub-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:
(a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(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
(c) 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
It is incontrovertible from the nature of the Applicant’s offending that, were he to engage in further criminal offending of the same or similar nature, such conduct could cause significant physical, psychological and financial harm. The victims of such conduct could conceivably be the police, as well as members of the Australian community. Furthermore, the harm could conceivably have tragic outcomes for any victims.
It is difficult to argue with the conclusion of Bradley J, who classified the Applicant’s drug-related offending as having possible “devastating consequences” on the Australian community.[31] Drug dependency and addiction wreak havoc, not only upon the users of drugs, but also the community as a whole. In undertaking trafficking activities of a commercial nature, the Applicant has contributed to that blight on society. It follows that, should the Applicant re-offend in a like manner, the harm that would be visited upon the Australian community, including the individuals who are the end-users of drugs, could conceivably be catastrophic in nature.
[31] Exhibit Tr1, G7, p 53.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
The Applicant contends that he represents a “significantly reduced risk profile”, and that I should have regard to the following points:[32]
·He experienced a long period of rehabilitation during his time in custody by abstinence and engagement with rehabilitation programs;
·he has significant insight into his addiction;
·he maintains a network of supportive family members to reinforce his rehabilitation efforts;
·if he were to remain in Australia, he would be returning to a household devoid of drugs, with the household being supervised by the Department of Child Safety (Child Safety);
·his return will also be under the guidance of prolonged community supervision, including urine tests; and
·there looms the reality of the Applicant returning to custody if he does not cooperate with parole authorities.
[32] Exhibit A1, p 3-4, para 22.
There is no doubt that the Applicant’s predilection for drugs is substantially linked to his offending. However, the Applicant has, on several previous occasions, made similar submissions with respect to insight and remorse. In response to the notice of intention to consider cancellation of the Applicant’s visa dated 4 February 2002, the Applicant’s then migration agent made the following claims:[33]
“In early 2001 [the Applicant] became depressed and was diagnosed with depression and anxiety… in this depressed state our client turned to drugs and alcohol.
…
Today he is alcohol and drug free, has acknowledged that he has a mental illness as well as a substance abuse problem and is determined to address both matters. To this end, he has completed the Substance Abuse Course and is due to commence the Cognitive skills course.”
[33] Exhibit R1, p 6, para 32; Exhibit Tr2, S180, p 693.
In response to the notice of intention to consider cancellation of the Applicant's visa dated 2 September 2011, the Applicant made the following representations in November 2011:[34]
“when you get to a point that low in life, something happens to you, like an awakening, something inside of you says I've had enough of this, its got me no-where in life, and the only way for me to go now is up. I'm sick of letting my loved ones down. Its taken till now for me to realise… I am not a violent person, I've just had a bad habit of drugs and driving without a license…
…I have been off drugs for 6 months now and I have never felt better along with the right prescription of anti-depressants. I look at the whole world through different eyes now… I have finally woken up to myself and I'm in the process of turning my life around for the better.”
[34] Exhibit R1, p 6, para 32.
In response to the most recent notice of intention to consider cancellation of the Applicant’s visa on 26 May 2023, the Applicant made the following representations:[35]
“I believe every one grows up on day and for me that day was 2 ½ years ago when my partner and I were incarcerated and we were separated from our son who we love dearly. That changed everything from then on, I wake up and realised this isn’t a game anymore, time to man up, put drugs and the lifestyle that goes with it in the bin”.
[35] Exhibit R1, p 6-7, para 32.
It is, therefore, evident that the Applicant has, on repeated occasions, claimed that his problems with drugs are in the past, that he has insight into his offending and, crucially, that he has reached a turning point. Despite such attestations, the Applicant has repeatedly and consistently re-offended in a very serious manner.
In making its assessment as to the likelihood of the Applicant re-offending, this Tribunal has had the benefit of evidence from Dr Steve Morgan (Registered Psychologist), who prepared a report dated 22 May 2024[36] and also gave oral evidence at the hearing. His report states that the Applicant has made moves towards addressing his illicit drug dependency since 2021.[37] Dr Morgan notes that the Applicant has accepted responsibility for his history of offending and illicit drug use, including his lack of judgment with respect to the anti-social associations the Applicant maintained in terms of his other general offending.[38]
[36] The Tribunal notes that the report itself contains a typographical error dating the report to be from “2044”. This was rectified to be 2024 at the hearing.
[37] Exhibit A7, p 18.
[38] Exhibit A7, p 18.
However, Dr Morgan’s ultimate finding was that the Applicant’s recidivistic risk was within the “medium-range”; a view that was consistent with an earlier 2022 report completed by Dr Yoxall.[39] Dr Morgan further opined that while the assessment of a medium risk stands, in his view, the Applicant has been on a trajectory of reduction of risk since 2021.[40]
[39] Exhibit A7, p 19.
[40] Exhibit A7, p 19.
I found Dr Morgan’s evidence to be balanced and insightful, both in written form and orally. Ultimately, however, the fact that the Applicant carries a medium-range risk of re-offending cannot provide me with comfort that the Australian community will not be subjected to further criminal conduct by this Applicant. He has ostensibly been on a trajectory of rehabilitation in the past, with extensive submissions on the level of insight that he had achieved, only to further offend time and time again.
Furthermore, to the extent that the Applicant may have been on a rehabilitative trajectory since 2021, a large portion of this time has been spent in a relatively controlled prison environment. It is another matter entirely as to whether this trajectory will continue if he were to be released into the Australian community. The Applicant contends that he will have the assistance of prolonged community supervision should he be released into the Australian community, by way of urine tests and the oversight of Child Safety, to underpin his rehabilitation. However, previous supervisory regimes of a similar nature have not deterred the Applicant from re-offending. One need only refer to the Court finding that the Applicant’s Trafficking offence whilst on parole was an aggravating factor.[41]
[41] Exhibit R1, p 6, para 30; Exhibit Tr1, G7, p 53.
One of the reasons the Applicant has given for his “significantly reduced risk profile” is the support network offered by his family. There is no evidence before this Tribunal to indicate that, in future, the family support would be markedly more helpful in the prevention of his re-offending than it has been in the past. In fact, his de-facto spouse, MX, was a co-offender in relation to the latest Trafficking offence.
Information and evidence on the risk of the non-citizen re-offending including evidence of rehabilitation
While assessing risk, I must have regard to evidence of any rehabilitation undertaken by the Applicant. Based on the material before me, the Applicant has completed a number of rehabilitative courses. These have included drug rehabilitation programs with organisations such as Drug Arm and Lives Lived Well,[42] as well as numerous courses aimed at recovery and employment.[43] Of particular note is the “RECLAIM Wellness” program completed by the Applicant, which was a regular group program that consisted of 12 sessions over a 6-week period.[44]
[42] See for example Exhibit Tr1, G36, p 155; G37, 156; Tr2, S12, p 37.
[43] Exhibit A8, p 6, para 33; Exhibit Tr2, S10, p 35.
[44] Exhibit Tr2, S12, p 37.
The Applicant has also completed a relapse prevention and management plan, in which he lists the following plan for managing his situation into the future:[45]
“…getting a job
Keeping busy
Making new friends
Staying off drugs
Getting my son back
Going to councilling [sic]”
[45] Exhibit Tr1, G23, p 134.
Assessment of recidivist risk
Based on these rehabilitative efforts, the Applicant appears to have taken concrete steps, in a controlled environment, to rehabilitate himself with respect to his drug-related issues and offending generally. Such efforts may pay dividends towards the Applicant’s long-term recovery, provided that these attempts are continued and developed into the future. Accordingly, they should be afforded some weight in the Applicant’s favour insofar as my assessment of risk of reoffending is concerned.
Whilst these efforts may be laudable, they ultimately fall short of providing this Tribunal with confidence that the Applicant has comprehensively turned the corner and now presents an acceptable recidivistic risk. Against a backdrop of extensive and varied offending, the Applicant has previously attested to learning from his past, only to reoffend and relapse into his prior conduct. Overall, the Applicant’s completion of courses, plans and counselling sessions, in a controlled environment, are insufficient to counterweigh the real recidivistic risk that is present, which, on the expert evidence before me, is clearly, at best, within a medium range.
Both the evidence of the Applicant’s repeated offending and the expert evidence point to the conclusion that the Applicant presents a real recidivist risk. I have already discussed the nature of the harm that could befall on the Australian community should the Applicant re-offend. Accordingly, I find that the Applicant’s risk of re-offending is unacceptable. The evidence of his rehabilitation, though commendable, is not nearly comprehensive or fulsome enough to ameliorate such a risk. For these reasons, I find that the Applicant presents a real and unacceptable recidivistic risk.
Conclusion: Primary Consideration 1
With respect to the weight attributable to this Primary Consideration 1, I find:
·The nature and seriousness of the totality of the Applicant’s conduct to date to have been very serious;
·That were the Applicant to re-offend in any aspect of his history, it could give rise to physical, psychological, financial and potentially catastrophic harm; and
·That in respect of recidivist risk, the Applicant represents a real and unacceptable recidivistic risk.
In considering and analysing all the material before me, I am led to the finding that this Primary Consideration 1 confers a very heavy level of weight against the 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.
Paragraph 4(1) of Direction 99 defines family violence to mean violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member) or causes the family member to be fearful. Paragraph 4(1)(b) of Direction 99 provides examples of family violence relevantly including sexual assault or other sexually abusive behaviour.
It was raised at the hearing that the Applicant was the subject of a Temporary Protection Order (TPO), made on 5 January 2007 in respect of a previous partner. The Respondent contends that the issuance of the order indicates that the Court was satisfied that there were grounds for the previous partner to fear the conduct of the Applicant, being conduct that, in the Court’s view, was sufficient to warrant the making of the order.[46] Overall, the Respondent says that this consideration should weigh against revocation.
[46] Exhibit R1, p 8, para 38-39; section 20 of Domestic and Family Violence Protection Act 1989 (Cth).
The Applicant gave evidence that a TPO was issued and was only in effect for six days with no judicial finding or supporting evidence of any allegations against him.[47]
[47] Exhibit A8, p 2, para 11-12.
Overall, there is a dearth of evidence on the materials before me regarding whether any incident led to the issuance of the TPO, much less one that constituted an act of family violence within the meaning of the Direction. Neither party was able to provide any tangible evidence with respect to this incident. In any event, the Respondent acknowledges that there is limited contemporaneous evidence in relation to the TPO.[48]
[48] Exhibit R2, p 5, para 17.
Therefore, in the circumstances, I find that there is insufficient evidence to support a finding in relation to this Primary Consideration 2 and will treat it as neutral.
PRIMARY CONSIDERATION 3: STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction requires decision-makers to have regard to the strength, nature and duration of an Applicant’s links to the Australian community. There are four requisite considerations to be addressed in paragraph 8.3 of the Direction. I will address each in turn. On the evidence before me, it appears that the Applicant’s nuclear family for the purposes of Primary Consideration 3, as well as minor children to be considered for the purposes of Primary Consideration 4, are as follows.
Immediate family members:
·MX, the Applicant’s partner;
·Margaret, the Applicant’s mother;
·AX, the Applicant’s minor biological son (aged eight years);
·Ms Tabitha Jones (the Applicant’s step-daughter);
·Ms Jessica Jones (the Applicant’s step-daughter);
·An infant step-grandson; and
·Neil (the Applicant’s brother).
Extended family members:
·Hugo (the Applicant’s father-in-law).
At the hearing, the Applicant confirmed that his father has passed away.
Paragraph 8.3(1): Consideration of the impact of this decision on the Applicant’s immediate family members
This sub-paragraph requires me to firstly identify the Applicant’s immediate family in Australia who are citizens, permanent residents or persons who have the right to remain indefinitely in Australia. I have transposed the Applicant’s relevant immediate family above and do not propose to transpose them again here. It suffices to say that a key aspect of this consideration will be the impact this decision will have on the Applicant’s nuclear family, including his biological child.
The Tribunal heard evidence from MX, the Applicant’s partner and mother of his minor son. MX’s statement provide insight into the problems with drugs that both her and the Applicant have struggled with, as well as the fact that MX has also been incarcerated.[49] Consequently, at some point, the Department of Child Safety assumed care of the child, which MX posits has been a “wake-up call” for her and the Applicant.[50]
[49] Exhibit A2, p 1, para 3. MX has also provided letters of support; see Exhibit Tr1, G26, p 143 and G32, p 151. These support letters state the negative impacts MX would suffer if the Applicant were removed from Australia, as well as information regarding the Applicant’s background/circumstances.
[50] Exhibit A2, p 1, para 3.
In the main, it appears that MX has made some gains with respect to her recovery from her drug-related issues. Her evidence was that in December 2023, Child Safety was satisfied with the progress she has made, especially with respect to maintaining a drug-free home.[51] At the hearing, MX gave oral evidence that she has since commenced legal studies, whilst assuming full-time care as a single parent.
[51] Exhibit A2, p 2, para 11.
Given MX’s current position as a single parent, the Applicant’s deportation would clearly have a negative impact on MX. Based on her evidence and the material before me, she has clearly taken concrete steps towards her own recovery, and her ability to raise her son may prove more challenging without the physical input of the Applicant. Indeed, MX’s statement speaks to her plans to provide a stable home if the Applicant were to be released. The fact that she and the Applicant’s minor son will be negatively impacted by a non-revocation decision is incontrovertible and should attract significant weight in the Applicant’s favour. I will deal with the minor child in greater detail when I consider the child’s best interests, pursuant to Primary Consideration 4.
The Tribunal was provided with written statements of support from the Applicant’s stepdaughters, Ms Tabitha Jones and Ms Jessica Jones. These statements generally spoke to the support the Applicant has provided them, including a sense of security and assistance with improving their relation with their mother. At the hearing, Ms Tabitha Jones gave evidence that she has a one-year-old child and that she visits her mother’s home on a daily basis. With respect to her son, she gave evidence that the Applicant was “the only one I trust with my son”.
The Applicant’s brother Neil also provided a statement addressing how the Applicant has “always been there” for him.[52] Although no statement or oral evidence was provided by the Applicant’s elderly mother, she too lives in Australia. Conceivably, both of them would also be negatively impacted should the Applicant be required to depart.
[52] Exhibit Tr1, G31, p 150.
This evidence confirms that the Applicant enjoys the support of his immediate family and that he is an important part of their lives. However, the Applicant has been absent from their lives for considerable periods of time due to his lengthy periods of incarceration. Presumably, the family, including the nuclear family have, through necessity, adjusted to maintaining a relationship with the Applicant through means other than physical contact. There is nothing to prevent these methods from continuing in future should the Applicant be required to re-settle elsewhere. It is also not inconceivable that in the future, subject to the approval of Child Safety, MX and the Applicant’s son could join him.
Paragraph 8.3(2): Consideration of the Applicant’s ties to Australia having regard to a child/ren who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely
This element in Primary Consideration 3 requires a determination of whether more weight should be given to the Applicant’s ties to Australia where he has Australian citizen biological children. The Applicant has a biological minor son who is, presumably, an Australian citizen, and there is also the minor step-grandson. Clearly, the Applicant shares familial ties with these Australian citizen/permanent resident children. Whilst he has not met the step grand-son due to his incarceration, his son is of an age that he may well be impacted by his father’s departure. However, this would be tempered by the fact that the Applicant has been incarcerated for a large part of his son’s life. Nevertheless, insofar as the ties to Australia are concerned, the Applicant has clearly started a family here, something which, in any objective view, should afford the Applicant considerable weight in his favour.
Paragraph 8.3(3): Strength, nature and duration of ties with any family or social links generally
Having been in Australia since his early childhood, the Applicant has forged substantial familial and social links in this country. The Tribunal received evidence from Hugo, the Applicant’s de facto father-in-law, who gave evidence of the support he has provided the Applicant and his daughter MX, confirming that he would be “devastated” if the Applicant was deported.[53] He went on to say in oral evidence that his daughter would most likely join the Applicant, should he be required to leave.
[53] Exhibit A3, p 1, para 5.
Evidence of the Applicant’s positive social ties mainly stems from the employment-related links he has forged. The Tribunal received a letter of support from Mr Andrew Sindel of A+ Concreting:[54]
In the time I've known [the Applicant] I've seen him be a dedicated and loving family man and an enthusiastic worker who is always going above and beyond regardless of the job he's doing. [the Applicant] has worked on and off for me casually for about 5 years and is one of my most valued team members. He is a fast and efficient worker who puts in 110 percent effort to finish any task he is given to a high standard.
…
I’ve remained in contact with [the Applicant] through his family and still consider him a close friend.
[54] Exhibit Tr1, G35, p 154.
The Applicant has some positive pro-social links that have resulted in him maintaining periods of gainful employment, as well as some experience volunteering as a lifeguard and fire fighter.[55]
Paragraph 8.3(4): Consideration of the nature of the Applicant’s ties to the Australian community having regard to the length of time he has resided here
[55] Exhibit Tr1, G16, p 113.
This component of Primary Consideration 3 requires me to look at the length of time the Applicant has resided in the Australian community and to take account of the following three elements:
(a)whether the Applicant has been ordinarily resident here during his formative years;
(b)whether the Applicant has positively contributed to the Australian community during his time here; and
(c)can the weight be allocable to the strength of the Applicant’s ties to Australia based on the length of time he has spent in the Australian community be lessened because (1) he did not spend his formative years here and (2) he began offending soon after arriving here.
The Applicant has resided in the Australian community from the age of eight. Therefore, the Applicant has spent a significant portion of his formative years here. Accordingly, I am directed to ascribe “considerable weight” to the fact that the Applicant has resided in Australia during, and since, his formative years, and I so find.[56]
[56] Direction 99, para 8.3(4)(a)(i).
Following his completion of secondary school in Australia, the Applicant has, to some extent, positively contributed to the Australian community through his sporadic employment history in this country as a concreter and tree lopper.[57]
[57] Exhibit Tr1, G16, p 112. The Applicant also appears to have completed studies at TAFE in “Advanced Bricklaying & Carpentry” (see G16, p 112).
In relation to subparagraph 8.3(4)(a)(iii), the weight I allocate in the Applicant’s favour cannot be reduced, given that he has spent the majority of his formative years here. Further, as his offending commenced at the age of 19, it cannot be said that he started offending shortly after his arrival in Australia.
Conclusion: Primary Consideration 3
In applying the relevant components of Primary Consideration 3 to the evidence and facts before me, I find that the Applicant has substantial and deep-rooted familial and social ties in Australia. The predicament of his immediate family should he be deported is a factor in this case that merits considerable weight. Therefore, I find that the evidence, in its totality, leads me to a finding that this Primary Consideration 3 is of a heavy level of weight in favour of exercising the power to revoke the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
I must determine whether the non-revocation of the Applicant’s visa would be in the best interests of minor children in Australia that would be affected by the decision. This primary consideration only applies with respect to children under the age of 18 years at the time of the decision. Relevantly, the minor children are the Applicant’s minor son, AX, and his minor step-grandson.
The Applicant has provided evidence that he keeps in contact with AX through telephone calls and virtual visits.[58] MX has the full-time care of their child, under the auspices of oversight from Child Safety. In her evidence, MX spoke of her ongoing efforts to maintain a drug-free and stable home for their child. The Applicant also gave evidence that it is his priority to create a nurturing environment for AX.[59]
[58] Exhibit Tr1, G16, p 105-109.
[59] Exhibit A6, p 2, para 11.
At first glean, the best interests of the Applicant’s son are for him to be under the care of both his parents in a supportive nuclear family environment. The Applicant has spoken of having an “unwavering commitment” to his family,[60] and doubtlessly, should such a commitment prove sustainable, the child’s best interests are for the Applicant to remain in Australia. This clearly affords considerable weight in the Applicant’s favour with respect to whether the cancellation of his visa should be revoked.
[60] Exhibit A6, p 2, para 14.
However, of importance with respect to the Applicant’s role as a father vis-à-vis his son is the information before the Tribunal with respect to the involvement of Child Safety. In the context of the Trafficking offence, Child Safety recorded the following at the time of the Applicant’s arrest:[61]
“[AX] is only 4 years of age and his exposure to his parents’ criminal activity, drug use and the impacts that this is having on their ability to provide him a safe living environment is going to have a significant impact on both his physical and emotional wellbeing. He has access to dangerous drugs and firearms in his home and these may cause him serious physical harm or even death. He has been living in a home where there are cockroaches in the kitchen and numerous uncapped syringes that he may touch. He is also being put at risk by the people coming to his home to purchase drugs. In addition to this, his ongoing exposure to his parents’ dysfunctional behaviour is likely to lead to him feeling sad, scared, isolated, anxious and not meet his developmental milestones. It also appears he is not attending school or a day-care facility, limiting his visibility within the community.”
[61] Exhibit R1, p 9, para 44.
Shortly after the Applicant’s arrest in connection with the Trafficking offence, his son was removed from his and MX’s care by Child Safety.[62]
[62] Exhibit R1, p 9, para 45.
During the sentencing for the Trafficking offence, the Sentencing Judge remarked that methylamphetamine “can be devastating … to children who are dependent on people who become addicted”.[63]
[63] Exhibit R1, p 9, para 46.
The evidence of Child Safety’s previous involvement and continuing oversight and supervision is illustrative that the prior situation in the Applicant’s home was not an acceptable environment for a child. The child has subsequently been returned to the care of his mother who is required to comply with certain conditions, including maintaining a drug-free home. Therefore, whilst it may be in AX’s best interests for the Applicant to remain in Australia, this is only on the condition that the Applicant abstains from substance abuse and further offending.
As previously mentioned, the Applicant has spent a considerable part of his son’s life incarcerated and has been able to maintain their relationship by electronic means. There is no reason why this could not continue in the event that the Applicant were removed from Australia until such time as it is possible for MX and the child to join the Applicant.
In relation to the infant step-grandson, the evidence is that the Applicant is yet to meet this child and there is no evidence that the Applicant has played or will play a parental role in this child’s life.[64]
[64] Exhibit Tr1, G33, p 152.
Conclusion: Primary Consideration 4
The Applicant’s position as a father and the need for his son to be raised in a supportive household clearly suggests that AX’s best interests would be for the Applicant to remain in Australia. However, the involvement of Child Safety, which has resulted in the Applicant and MX having the child taken out of their care in the past, is an important factor. Further, there is insufficient evidence with respect to his infant step-grandson to allow me to make a determination in relation to that child’s best interests. Therefore, in considering the best interests of AX, I find that this Primary Consideration 4 weighs heavily in favour of revoking the mandatory cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Direction makes clear that the expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[65] The Direction further explains:
“This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated [in paragraph 8.5(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case.”[66]
[65] Paragraph 8.5(3) of the Direction.
[66] Paragraph 8.5(4) of the Direction. Paragraph 8.5(4) codifies the position laid down by the Full Court of the Federal Court in FYBR v Minister for Home Affairs (2019) 272 FCR 454.
With reference to the propositions in paragraph 8.5(1) of the Direction, this sub-paragraph is expressed thus:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
This Applicant has breached the Australian community’s expectations by the nature of his criminal offending in this country. Therefore, the Australian community, “as a norm” expects the Australian Government not to allow him to remain in Australia.
The Direction also states that visa cancellation or refusal, or non-revocation of a mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa.
In particular, the Australian community expects that the Australian Government can and should refuse entry to
non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:[67]
(a) acts of family violence; or
(b) causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c) commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d) commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e) involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f) worker exploitation.
[67] Paragraph 8.5(2) of the Direction.
The Applicant’s offending falls squarely within the parameters of subparagraph (d) above, given his offending against the police. As such, the Australian community would expect that the Australian Government can and should cancel the Applicant’s visa.
The remaining question is whether there are any factors which modify the Australian community’s expectations. This question is informed by the principles in paragraphs 5.2(4), (5) and (6) of the Direction. In summary these are:
(a)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa;
(b)the Australian community has a low tolerance of any criminal or other serious conduct by non-citizens who have been participating in, and contributing to, the Australian community for only a short period of time;[68]
(c)Australia will generally 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 lives or from a very young age;[69]
(d)the community’s level of tolerance will rise based on the length of time a non-citizen has spent in this country and, in particular, whether their formative years were spent here;
(e)the nature of a 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 a visa outcome that is not adverse to the non-citizen;[70] and
(f)if a non-citizen’s unlawful conduct is inherently of the type captured by any of the categories stipulated in paragraph 8.5(2)(a)-(f)(inclusive) of the Direction, then even strong countervailing considerations may not assist a non-citizen even where the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
[68] Paragraph 5.2(4) of the Direction.
[69] Paragraph 5.2(5) of the Direction.
[70] Paragraph 5.2(6) of the Direction.
In relation to sub-paragraph (a) above, the term “limited stay” is not defined in the Act. In the present case, the Applicant held a Class BF Transitional (Permanent) visa. This appears to be a visa allowing permanent residence in Australia, meaning that the Applicant was not the holder of a “limited stay” visa for the purposes of this sub-section.
In relation to sub-paragraph (b) above, the Applicant has grown up in Australia. Whilst his time in Australia has doubtlessly been coloured by his offending career, it is clear that he has set up roots in Australia and contributed to the community through employment and volunteering initiatives.
With respect to sub-paragraph (c), the Applicant has lived in Australia since he was eight years old, forging his familial roots here, including fathering a child. Therefore, the Australian community’s tolerance of the Applicant’s criminal conduct would be higher.
With respect to sub-paragraph (d), I have found that the Applicant has spent a significant portion of his formative years in Australia. Therefore, the Australian community’s tolerance of the Applicant’s conduct rises commensurate with the amount of time the Applicant has spent here, which, on any objective assessment, can be assessed to be most of his life.
With respect to sub-paragraph (e), I have assessed the Applicant’s unlawful conduct to be very serious. His varied criminal history has included violent offences and property and drug related offending. The pinnacle of his drug offending was Trafficking in dangerous drugs. Countervailing considerations in this case are the familial ties that the Applicant has here in Australia, including his partner and minor son. Notwithstanding this, such is the seriousness of the Applicant’s conduct, that countervailing considerations are not sufficient to warrant a positive visa outcome.
With respect to sub-paragraph (f), the Applicant’s conduct is captured by paragraph 8.5(2)(d) of the Direction, given the crimes he perpetrated against police. Again, the countervailing considerations that operate in the Applicant’s favour are, in my view, insufficient to provide him with any assistance.
Conclusion: Primary Consideration 5
The nature of the Applicant’s offending confirms that the expectations of the Australian community would be a finding against the revocation of the mandatory cancellation of his visa. Whilst I have found that the Australian community has a higher level of tolerance to the offending in the Applicant’s case, based on the length of time the Applicant has spent here, neither this nor the other countervailing issues are sufficient to assist the Applicant with respect to this consideration. Therefore, Primary Consideration 5 confers a heavy level of weight against revocation of the mandatory cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Other Consideration (a): Legal consequences of the decision
Per paragraph 9.1(1) of the Direction, decision-makers must be mindful that unlawful non-citizens are liable to removal from Australia as soon as practicable, and in the meantime, detention. I acknowledge that in the event of a non-revocation decision, the Applicant will be liable to removal from Australia as soon as reasonably practicable and will not be able to apply for another visa while in Australia with the exception of a protection visa.[71]
[71] Ss 189, 198 and 501E of the Act.
As far as I understand the evidence before me, there is no claim and otherwise nothing on the material to suggest, that Australia’s non-refoulment obligations are enlivened in respect of the Applicant.
The parties have otherwise not raised anything further of substance with respect to this Other Consideration. Therefore, I allocate neutral weight to it.
Other Consideration (b): Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)the non-citizen’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant may face emotional, practical and financial barriers upon returning to the UK.[72] He is a 52-year-old man who has not lived in the UK since he was a child. In addition, the Applicant has confirmed that he does not suffer from any medical or psychological conditions.[73]
[72] Exhibit R1, p 11, para 62.
[73] Exhibit Tr1, G16, p 113.
He did, however, raise the following concerns he will face returning to the UK:[74]
I don’t know a single person in [the UK] … it will be hard for me to gain employment … not knowing anyone. [A]t least in Australia, I already have people that will employ me once im [sic] released.
[74] Exhibit Tr1, G16, p 114.
Further, the Applicant has described the following problems he would face if returned to the UK:[75]
Housing, employment, not knowing anyone there.
[75] Exhibit Tr1, G16, p 114.
The UK is culturally and linguistically similar to Australia, meaning that the Applicant will not likely face any language or cultural barriers hindering his re-settlement there. With that said, I accept that the Applicant may face some practical difficulties in re-establishing himself in the UK, given the relative absence of familial or social links for the Applicant in that country. In re-settling there, the Applicant may face financial hardship in the short to mid-term, including difficulty in securing employment (noting that he is someone with an extensive criminal record). However, this difficulty may be alleviated by virtue of the Applicant’s volunteering and employment history. The Respondent has also noted that he may be eligible for social security payments and can obtain medical care through the National Health Service.[76]
[76] Exhibit R1, p 11, para 62.
Findings on impediments
A consideration of the extent of impediments if removed leads me to the conclusion that some weight should apply in the Applicant’s favour due to his age, the period of time he has spent in Australia and the lack of social and familial support options. Therefore, I am of the view, and find, that Other Consideration (b) confers a minimal level of weight in favour of revocation of the mandatory cancellation of the Applicant’s visa.
Other Consideration (c): Impact on victims
Neither party has agitated the relevance of this Other Consideration (c). I do not view it as relevant and treat it neutrally.
Other Consideration (d): Impact on Australian business interests
Neither party has agitated the relevance of this Other Consideration (d). I do not view it as relevant and treat it neutrally.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
·Legal consequences of the decision: is of neutral weight;
·extent of impediments if removed: is of minimal weight in favour of revocation of the mandatory cancellation of the Applicant’s visa;
·impact on victims: is of neutral weight; and
·impact on Australian business interests: is of neutral weight.
CONCLUSION
Pursuant to s 501CA(4)(b) of the Act, there are two alternate conditions for exercising the power 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 I am satisfied if there is another reason 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: weighs very heavily against revocation of the mandatory cancellation.
·Primary Consideration 2: weighs neutrally.
·Primary Consideration 3: weighs heavily in favour of revocation of the mandatory cancellation.
·Primary Consideration 4: weighs heavily in favour of revocation of the mandatory cancellation.
·Primary Consideration 5: weighs heavily against revocation of the mandatory cancellation.
I have found that the combined weights I have allocated to Primary Considerations 1 and 5 respectively, are sufficient to outweigh the combined weights I have allocated to Primary Consideration 3 and 4 and Other Consideration (b).
A holistic view of the evidence relevant to the Primary and Other Considerations in the Direction therefore favours affirming the Respondent’s decision under review made on 19 March 2024.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the Respondent’s delegate dated 19 March 2024 to not revoke the mandatory cancellation of the Applicant’s visa.
I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Member A. Julian-Armitage.
.................[SGD]......................
Associate
Dated: 28 June 2024
Date of Decision: 12 June 2024
Date of Hearing: 30 May 2024
Representative for the Applicant: Mr M Rawlings of Counsel
Instructed by Jones + Associates
Representative for the Respondent: Ms Lucinda Taylor of Minter Ellison
ANNEXURE A – EXHIBIT REGISTER
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED A1. Applicant Statement of Facts, Issues and Contentions A
09/05/2024 A2. Statement of MX 03/05/2024 09/05/2024
A3. Statement of Hugo 03/05/2024 A4. Statement of Jessica Jones 03/05/2024 A5. Statement of Tabitha Jones 03/05/2024 A6. Statement of Applicant 24/05/2024 27/05/2024 A7. Report of Dr Morgan 22/05/2024 A8. Applicant Closing Submissions 03/05/2024 R1. Respondent Statement of Facts, Issues and Contentions R 24/05/2024 R2. Respondent Closing Submissions 05/05/2024 Tr1. Section 37 G-Documents - - 08/04/2024 Tr2. Supplementary Documents - - 28/05/2024 Tr3. Supplementary 37 G-Documents - - 29/05/2024
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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Natural Justice
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Statutory Construction
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Jurisdiction
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Standing
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