Novina and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 1421
•22 May 2020
Novina and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1421 (22 May 2020)
Division:GENERAL DIVISION
File Number(s): 2020/1219
Re:Franci Novina
APPLICANT
Minister for Immigration, Citizenship, Migrant Services and Multicultural AffairsAnd
RESPONDENT
DECISION
Tribunal:Deputy President B W Rayment OAM QC
Date:22 May 2020
Place:Sydney
The Tribunal decides that the decision under review is set aside and that in substitution, the cancellation of the Applicant’s visa is revoked.
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Deputy President B W Rayment OAM QC
CATCHWORDS
MIGRATION – cancellation of visa on character grounds under s 501(3A) – where applicant’s offences involved drug – whether to exercise discretion under Direction No. 79 – primary considerations – protection of the Australian community – where offending was serious – where applicant has history of drug and driving offences – where applicant has spent most of his life in Australia – regard to role and remarks of the sentencing judge – where applicant was addicted to drugs but now rehabilitated – where applicant unlikely to reoffend – expectation of the Australian community – in accordance with government policy – best interests of minor children in Australia – other considerations – strength, nature and duration of ties and extent of impediments if removed – impact on the Applicant’s family – decision set aside and substituted
LEGISLATION
Crimes (Sentencing and Procedure) Act 1999 (NSW) s 3A
Migration Act 1958 (Cth) s 501CA
CASES
Parente v R [2017] NSWCCA 284
R v Wong [2018] NSWCCA 20
Veen v The Queen (No 2) (1988) 164 CLR 465
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President B W Rayment OAM QC
22 May 2020
The applicant is aged 53. He has been in Australia since he was two years old. His visa was the subject of a mandatory cancellation because he was serving a term of imprisonment and, as he was entitled to do, he applied to the respondent for revocation of the cancellation of his visa. A delegate of the respondent refused to revoke the cancellation. He applied to the Tribunal for a review of that decision.
He is the father of three sons, each of whom wrote a character reference tendered before me. His eldest son also gave oral evidence before me. That son is the father of his only grandchild, aged two.
He has, for the most part, had employment since his late teenage years, including in a managerial position. He apparently has good prospects of obtaining new employment if he is released from immigration detention.
He was born in Slovenia, part of the former Yugoslavia. The effect of the Migration Act 1958 (Cth) (‘the Act’) in the circumstances of this case is that unless the cancellation of the visa is revoked, he will be deported to Slovenia as soon as practicable. He does not speak any language other than English and has no contact with anyone there.
He represented himself in the proceedings before the Tribunal, as he had before the NSW District Court where he was sentenced to the term of imprisonment that led to the mandatory cancellation of his visa.
DIRECTION NO. 79
Direction No. 79 (‘the Direction’) has been issued by the Minister’s predecessor and binds decision-makers as to considerations that must be taken into account in determining whether the cancellation of the visa ought to be revoked. Those considerations are mandatory, but not exhaustive, and it is open to decision-makers to decide what weight should be given to them, and to any other considerations which are relevant to the question of revocation of the visa, in the particular circumstances of the case.
The Direction and its terms are published. Some of its provisions have no application to this case. Some are obviously more important than others to the proper exercise of the discretion involved in these proceedings.
The Direction gives prominence to the protection of the Australian community in many of its provisions. For example, cl 6.2(1) states that ‘the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.’ It also states that the principles which appear below are of ‘critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.’ The principles are described in cl 6.2(3) as providing a framework within which decision-makers should approach their task of deciding, amongst other things, whether to revoke a mandatory cancellation under s 501CA of the Act. The principles are set out in cl 6.3 which immediately follows.
Clause 6.3 provides as follows:
6.3 Principles
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clauses 6.3(5) and 6.3(7) will require consideration in this case. I invited further submissions from the parties about those clauses after the hearing had concluded. To some extent, the considerations in cls 6.3(5) and 6.3(7) are repeated in cl 14.2 of the Direction referring to the strength, nature and duration of ties of the applicant. However, cl 6.3(5) in its terms, and, in a more general way cl 6.3(7), also have relevance to the consideration of the protection of the Australian community, a factor which is described in the Direction in greater detail in cls 13.1.1 and 13.1.2. The later clauses do not refer back to what is said in cl 6.3(5) or in cl 6.3(7), but nevertheless, a decision-maker ought to treat cls 6.3(5) and 6.3(7) as part of the framework within which he or she considers what is stated in cls 13.1.1 and 13.1.2.
Clauses 13.1.1 and 13.1.2 of the Direction provide as follows:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)The principle that 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, are serious;
d)Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)The cumulative effect of repeated offending;
g)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)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);
i)Where the non-citizen is in Australia, that 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 is serious, as is an offence against section 197A of the Act;
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
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 available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
I will return to the significance of cls 6.3(5) and 6.3(7) later in these reasons, after dealing with his offences and the judge’s remarks on sentence, in the context of his history, and with his subsequent attempts in prison and in detention at rehabilitation.
BACKGROUND
The applicant lived in the Wollongong area all his life. He went to high school there and left in year 11, when he was 17 years old. Shortly after he left school, he began occasional use of marijuana at parties with school and local friends. He bought that product at local pubs. He discontinued marijuana use when he trained to be a panel beater.
He went to TAFE for three years. After working full time for a year, he became a qualified panel beater. Thereafter, for several years, he worked for a Sydney panel beater in his Artarmon and St Leonards premises. He would typically catch the train to Sydney at about 4:30 am and return to his station near Wollongong about 8:30 pm. He was later promoted to a managerial role by his employer. He bought a house and later sold it to buy a better house.
He had a partner, later his wife, from 1986. In 1987, his first son was born and during the 1990s his second and third sons were born.
From 1984, he was given infringement notices or fines for a series of motor vehicle offences. In the early 1990s, he was fined for driving without a licence on three occasions.
In 1993, he began to take methylamphetamine in the form of what is known as speed. He took it in company with some eight or nine people who went to the same school or lived nearby. He took speed mostly at home but occasionally when he was working overtime at work. He obtained a supply of the drug for himself and five others. His house was raided, and he was arrested in April 1995 and put in gaol.
He told me that because of the quantity involved, he was charged with the offence of supplying a prohibited drug and spent three months in gaol. His sentence was for one year, but he was released on parole with conditions after his three months non-parole period expired. After that three-month period in gaol, he refrained from using drugs for several years. He then returned to his Sydney employment.
In about 1998, when he was 32 years old, a friend visited and introduced him to speed administered intravenously. His occasional use of the drug gradually increased. His employment continued. He also began to work as a subcontractor to others at night and on weekends.
In 2001, he was fined for possession of a prohibited drug.
During 2003 to 2004, the applicant described himself as having become enveloped in the lifestyle and began to spend less time with his family.
In 2005, he was sentenced in the Local Court to two months imprisonment for possession of a drug.
Around this time, his wife left him. They divorced in 2006.
In 2007, he was given a s 9 bond for a contravention of an apprehended violence order.
A number of other motor vehicle offences took place between the early 1990s and 2007. In 2007, he was treated as a habitual offender and sentenced to imprisonment for 20 months commencing on 3 October 2007, with a non-parole period of 15 months. Release was to be subject to several conditions. At the same time, he was disqualified from driving for five years.
To complete his driving record, in 2012 he was given by the Local Court a community service order of 300 hours and was disqualified from driving for two years for driving while disqualified. He was also sentenced to home detention for 12 months from 17 November 2014 for further driving offences, including driving without a licence, use of an unregistered motor vehicle and use of an uninsured motor vehicle. In 2016, the District Court ordered him to be imprisoned for twelve months from 4 October 2016 with a non-parole period of nine months for driving while disqualified.
Reverting to the applicant’s general and drug history, in 2009 he returned to TAFE, studying Community Service. While attending TAFE, he volunteered for St Vincent de Paul. He graduated with a Certificate IV in Community Service. This was part of his attempt to give something back.
He then began work for a logistics company at Port Kembla from 2010. In 2015, he was subject to a urine analysis by his employer and failed the test. He was summarily dismissed.
In 2015, he took up a relationship with a younger woman, who used methylamphetamine, supplied to her by a person named Wong. She introduced the applicant to Wong and the applicant began to use intravenously the same drug again. The drug was supplied to him by Wong. He used up his savings and then earned some income to supply his habit.
With Wong and another person, in June 2016, the applicant began to distribute and continue to use the drug. He supplied about a dozen people, most of whom he knew as fellow drug users or who learned of him by word of mouth. Some were already addicted, and others used the drug less frequently. He distributed drugs to repay debts to Wong and to feed his own addiction.
The distribution continued until July 2016. He and Wong were arrested on 8 August 2016. He began a term of imprisonment which concluded with him being given parole in 2019.
He and the other man with whom Wong worked with, Zlatanovic, had discussed the possibility of supplying cocaine from a supplier other than Wong. There was an arrangement to supply one ounce of cocaine. He was also dealt with for allowing Wong to use his rented home for another drug sale and for participating in a criminal gang with Wong and Zlatanovic.
Although he remained on remand, his trial was delayed until a Crown appeal from Wong’s sentence was heard in the NSW Court of Criminal Appeal in 2018: see R v Wong [2018] NSWCCA 20 (‘R v Wong’).
The Court of Criminal Appeal (Beazley P, Garling J and Hidden AJ) resentenced Wong to an aggregate sentence of four years non-parole with a balance of term of two years commencing on 8 August 2016. In the course of his reasons, Garling J (with whom Beazley P and Hidden AJ agreed) mentioned that in accordance with s 3A of the Crimes (Sentencing and Procedure) Act 1999 (NSW), the courts were bound to take into account in sentencing the protection of the community. A five-judge Court of Criminal Appeal in Parente v R [2017] NSWCCA 284 at [107]–[113] summarised the considerations when sentencing for drug offences which may be shortly stated as follows:
(a)that whilst all of the objectives of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act must be kept in mind, general and specific deterrence, and protection of the community, are of most direct relevance;
(b)having regard to the concealed and covert nature of illicit drug supply which requires the dedication of significant public resources for detection and prosecution, a consistent message of deterrence by a sentencing Judge is necessary;
(c)protection of the community is usually of significance because of the social impact of drug use, including it being an underlying cause of other criminal offending; and
(d)careful attention must be paid by sentencing Judges to the maximum penalties for offences, and where fixed, to standard non-parole periods: R v Wong at [47].
The applicant was sentenced on 5 April 2018 and the judge had the reasons of the Court of Criminal Appeal in R v Wong. In the course of his remarks on sentencing, his Honour said:
Novina was born in Slovenia. He came to Australia as a young person. His mother had a significant mental health issues [sic]. I am prepared to accept that he was subject to violence in the home. He did not take to schooling. He had a serious bike accident, but he was able to obtain employment and at various times in his life has been able to lead a productive life able to make a contribution to the community between 2009 and 2015.
At various times in his past he has offended. His offending history goes back to 1989. He went to gaol for supplying a drug in 1995. He has been before courts for driving and domestic violence offences. During the course of his current remand he served a short sentence for driving while disqualified. I have taken it into account in my overall synthesis but I believe in fairness this sentence should date from his date of arrest on 8 August 2016.
His criminal record does not entitle him to the leniency often shown to court offenders. He must have known consequences of his behaviour as he had been to gaol for supplying a drug before.
I am prepared to accept that he engaged in this offending when at a low period in his life. He was unemployed with a new partner who herself was a drug user. He was using drugs and if you purchase of drugs you associate with people who supply drugs. If you are using drugs at the level Novina was using drugs, one you can support that habit is by supplying. Once you start supplying drugs the incentive to continue to supply is there. As I have said that is no excuse, it just helps me understand how he got into this predicament.
His evidence today indicates a degree of regret for himself, his family and the community. He has shown some insight. He is capable of working. He has a position of responsibility within the gaol. He is obviously well regarded and has a contribution to make. He has had limited access to drug and alcohol programs while on remand. I recommend that he have access to those programs during the balance of the sentence.
His guilty plea recognised more than the reality of his situation. I am prepared to accept it as a measure of the man. He has some support in the community, which give me confidence he may not reoffend.
His Honour added:
I intend to make a finding of special circumstances. There are two reasons for this. First, I am reasonably confident that with supervision you can lead a law abiding life in the community. Secondly, I am confident that you have a capacity to work in the community although your background indicates that you are vulnerable to relapse into drug use in periods of stress.
While you have received some reduction of sentence because of that background, I also have to take into account the community interest in you being supervised for as long as possible to prevent relapse and to give you someone to turn to should that be required.
His Honour sentenced the applicant to an aggregate sentence of four years and nine months from 8 August 2016, consisting of a non-parole period of three years and one month expiring on 7 September 2019 and with the sentence to expire on 7 May 2021.
He was granted parole on 7 September 2019 and was immediately taken into immigration detention.
The sentencing judge referred to the fact that he discounted the indicative sentences for the offences because of the applicant’s plea of guilty to each charge. He described the applicant as having offended at a low period in his life. That is also indicated in his evidence before me. His Honour said early in his remarks that the ‘principle of sentencing that requires I have regard to community protection demands that he be removed from the community for a period of time.’ His Honour’s fixing of the non-parole period of one year and eight months had regard to the desirability of having him supervised after any release on parole.
The applicant had received notification that the cancellation of his visa was revoked before his sentencing hearing. That revocation related to the earlier mandatory cancellation of his visa arising for the sentence of one year’s imprisonment for driving while disqualified. His Honour had no notice that his visa would again be subject to mandatory cancellation on account of the sentence which he imposed. Hence, his Honour assumed that parole might result in his release into the community.
PRIMARY CONSIDERATIONS
The fact that the District Court had regard, as a material matter, to the protection of the community is a matter to be taken into account when a decision-maker including this Tribunal considers the matters in cls 13.1.1 and 13.1.2 of the Direction set out above. The Direction also refers a decision-maker to the sentence itself in cl 13.1.1(d). Protection of the community in the sentencing principles necessarily refers to the nature and seriousness of the crime and to the risk to the community if the non-citizen reoffends.
Sentencing for serious crimes always requires a court to take into account as a material matter when determining the length of the sentence the protection of the community: see Veen v The Queen (No 2) (1988) 164 CLR 465.
The sentencing judge had regard to some of the records of the applicant’s history while in gaol. There is before me a fuller list of that history.
First, the applicant abstained from all drugs while in prison. He underwent six urine analyses while imprisoned to confirm that he had not taken drugs and each test was clear. He told me that the shock of imprisonment for some years caused him to immediately desist from drug-taking as soon as he entered gaol. Today, for almost four years, he has been abstinent.
He also underwent courses while in prison. They included two EQUIPS courses, the Foundation course and the Addiction course. The records showed that he attended all sessions and participated well. He followed those courses, which were taught by professional psychologists in 2018. While still incarcerated he then did AA and NA courses. He pursued a qualification in forklift driving and attained that qualification.
He worked in the gaol, at first in the metal shop, where he was described as one of the core workers, having a high degree of skill and helpful to others working there. He became the head painter. He was described as having a great work ethic. He was then transferred to a sawmill and became a saw sharpener. He was appointed as the leading hand and was described as taking great pride in his work.
In the gaol he was moved to the honour unit, which he enjoyed.
His behaviour in the gaol records was consistently described as appropriate, with no issues. His EQUIPS teachers described his participation and insight favourably.
After he arrived in the Villawood Immigration Detention Centre, he was appointed to represent the detainees in meetings with Serco and Border Force officers. He suggested to Serco that a SMART program be established in the detention centre. Serco did so and the applicant participated in those meetings. The purpose of the SMART program was to encourage rehabilitation.
As he did before the sentencing judge, he expressed remorse for all his offences, describing his offending of June and July 2016 as atrocious. I accepted his statement of remorse as genuine.
The applicant has maintained communication with his sons, each of whom wrote letters of support for this application. He wants to stay close to them and his grandson and knows that personal contact would be all but impossible if he is deported. A friend of his has arranged employment for him in the panel shop of a bus company, to start immediately if he is released. Those things, and his apprehension about deportation, are likely to motivate him not to reoffend. He has no contact with his fellow drug takers or their suppliers.
His history at the time of his 2016 arrest gives great cause for concern, not only because his offending became increasingly serious as time passed. His addiction has previously been interrupted, only to resume later. His motor vehicle offences suggest that he was prepared to flout the requirements of the law, and to do so repeatedly, and, it may be added, inexplicably. He said he sold his car in 2007 to avoid thinking of reoffending, but then later drove the cars of others on two separate occasions. It could be that his driving record was another product of his drug addiction.
On the other hand, there is reason for hope in the case of the applicant when one considers the steps he has taken in gaol and in detention. That is not to say that his risk of recidivism is absent. If he is released, he is likely to have a job, regular contact with his sons and grandchild, the help of a parole officer, and the support of his friend who arranged employment for him. His sons will give him support. His work ethic is strong. For many years he contributed to the community, and the work he did in gaol suggests that his work ethic is still strong.
I have previously mentioned cl 6.3(5) of the Direction. The respondent submitted that its effect is to enable a decision-maker to take into account in evaluating the issue of protection of the community the fact that he has spent almost all his life here, such that this country may have greater tolerance for criminal conduct in his case. I accept that submission. The fact that he has never sought citizenship despite this being the only country he regards as his own is very unfortunate. His main, most recent offending took place when he was heavily addicted and at a low time in his life. But his offending was very serious, and repetition of drug distribution could be productive of great harm. He is now not addicted to drugs, and that is very important. His outlook is not such as to suggest that he will reoffend, but there will always be a risk that he will do so.
Moreover, as I have said, the sentencing judge fixed his sentence having regard to the protection of the community. The sentence imposed suggests that community protection required no longer period of detention.
He will need the services of a general practitioner to obtain medication for various conditions including high blood pressure and type 2 diabetes. If he requires or requests the help of any professional to continue his effort to maintain abstinence from drugs, his general practitioner will be able to put him in touch with such professionals in his community, including in the Wollongong community. He knows where a return to addiction may lead him, including loss of employment, and far worse consequences, including deportation. I think that reoffending by the applicant is unlikely and that he has every incentive to avoid temptation even if his circumstances deteriorate.
The consideration of the expectations of the community, in accordance with binding authority, is to be approached based on statements of government policy in the Direction. There is no liberty for the decision-maker to embark on its own opinions or surmise on that matter. That consideration will generally favour non-revocation, but its weight will remain a matter for the decision-maker in the circumstances of the case.
I have mentioned that he has a small grandson. His sons may produce others. He has what must seem to his grandson to be a small role in his life, but if he is released, it seems likely that he will play a real role in the life of his grandson and, no doubt others. The grandchild should not be deprived of the influence one of his two grandfathers and it is in his best interests for cancellation to be revoked.
OTHER CONSIDERATIONS
Of the expressly mentioned other considerations in the Direction, it is the strength, nature and duration of ties, and the extent of impediments if removed that are of importance in the applicant’s case.
In effect, he would be permanently removed from this country if sent to Slovenia. That would be a great loss to his sons, all of whom were born here and are citizens. Reducing him to a person who may be in contact with his family by telephone or social media would be the consequence of his deportation.
Slovenia is one of the many countries in the world affected by COVID-19 and travel there is impossible at this time. When it becomes possible to deport the applicant, the break from his family is likely to be devastating. It is difficult to judge how he will manage, but he might obtain employment in trades he knows. He has no support there at this time.
EXERCISE OF DISCRETION
Weighing together the various considerations which I have mentioned above, I have decided that the correct or preferable decision is to revoke the cancellation of the applicant’s visa.
I certify that the preceding 62 (sixty -two) paragraphs are a true copy of the reasons for the decision herein of Deputy President B W Rayment OAM QC
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Associate
Dated: 22 May 2020
Date(s) of hearing: 20 & 21 April 2020 Date final submissions received: 18 May 2020 Applicant: By video Solicitors for the Respondent: MinterEllison
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