Ozerski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 4775
•6 December 2021
Ozerski and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 4775 (6 December 2021)
Division:GENERAL DIVISION
File Number(s): 2021/6691
Re:Maciej Ozerski
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:Senior Member Theodore Tavoularis
Professor D. Ben-Tovim, MemberDate:6 December 2021
Date of written reasons: 21 December 2021
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 September 2021 to not revoke the cancellation of the Applicant’s visa.
............................[sgd]..........................
........................[sgd]........................
Senior Member Theodore Tavoularis
Professor D. Ben-Tovim, Member
Catchwords
MIGRATION – mandatory cancellation of the Applicant's Class BB Subclass 155 Resident Return visa – Migration Act 1958 (Cth) s 501CA(4) – Applicant fails to pass the character test – substantial criminal record – sentenced to a term of imprisonment for 12 months of more – whether there is another reason why the cancellation should be revoked – application of Direction No. 90 – where Applicant a citizen of Poland – international non-refoulement obligations – mental illness – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Makasa and Minister for Immigration and Border Protection (2021) 386 ALR 200
Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Buadromo (2018) 267 FCR 320
Minister for Home Affairs v Omar (2019) 272 FCR 589
NQKB and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 4054
Minister for Immigration and Citizenship v SZNWC (2010) 190 FCR 23
S270/2019 v Minister for Immigration and Border Protection (2020) 383 ALR 194
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619
Secondary Materials
Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
Department of Home Affairs, Complementary Protection Guidelines, [3.4.6.2], as re-issued 29 February 2020
International Materials
International Covenant on Civil and Political Rights, opened for signature 19 December 1996, 999 UNTS 171 (entered into force 23 March 1976)
Decision
REASONS FOR DECISIONIssues
Does the Applicant pass the character test?
Is there another reason for the revocation of the cancellation of the Applicant’s visa?The principles in paragraph 5.2
The Primary and Other ConsiderationsPRIMARY CONSIDERATION 1 – Protection of the Australian Community
The nature and seriousness of the non-citizen’s conduct to date
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The likelihood of the non-citizen engaging in further criminal or other serious conductThe parties’ positions
Expert evidence
Cross-examination of Dr Nathani
Conclusions about likelihood of re-offendingConclusion: Primary Consideration 1
Primary Consideration 2: Family Violence
Primary Consideration 3: The Best Interests of Minor Children in AustraliaThe parties’ respective contentions
Identification of relevant children
Christopher’s ChildrenApplication of factors in paragraph 8.3(4) of the Direction to Christopher’s children
Jack’s Children
Application of factors in paragraph 8.3(4) to Jack’s children
Conclusion: Primary Consideration 3
Primary Consideration 4: Expectations of the Australian Community
Conclusion: Primary consideration 4
Other Considerations
(a) International non-refoulement obligations
Law
The Applicant’s claims – written
The Applicant’s claims – oral evidence
A submission made by the Respondent
The Applicant’s stated fears of harm: analysis
Findings and Allocation of Weight to Other Consideration (a)(b) Extent of Impediments if Removed
(c) Impact on victims
(d) Links to the Australian community(1) Strength, nature and duration of ties
1. Impact of non-revocation on the Applicant’s immediate family
2. Strength, nature and duration of “other ties” – length of residence
3. Strength, nature and duration of “other ties” – family and other social links
(2) Impact on Australian business interests
Weight allocable to Other Consideration 4: links to the Australian communityFindings: Other Considerations
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Decision
REASONS FOR DECISION
Senior Member Theodore Tavoularis
Professor D. Ben-Tovim, Member21 December 2021
Maciej Ozerski (“Applicant”) is a citizen of Poland who was, at the time of our decision, just under 36 years old.[1] On 13 July 2020, a delegate of the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (“Respondent” or “Minister”) cancelled his Class BF Transitional (Permanent) visa under s 501(3A) of the Migration Act 1958 (Cth).[2]
[1]G, 243.
[2]See G, 4.
He made representations to have the mandatory cancellation of his visa revoked, in accordance with s 501CA of the Act. The Minister’s delegate decided not to revoke the mandatory cancellation decision on 13 September 2021 (“Reviewable Decision”).[3]
[3]G, 8.
The Applicant appealed to this Tribunal. The Applicant appealed the Reviewable Decision to this Tribunal on 6 September 2021. A hearing was held before us on 22 & 23 November 2021. The hearing received both oral and written evidence. The written evidence was reduced to an agreed Exhibit List, which is attached to this decision and marked Annexure A.
On 6 December 2021, to ensure the Tribunal discharged its statutory function on or before the 84th day, in accordance with s 500(6L) of the Act, we caused the Tribunal to publish our decision in this matter in short-form.[4] A copy of the short form decision is attached to these reasons and marked Annexure B.
[4]See Khalil v Minister for Home Affairs (2019) 271 FCR 326, which makes clear that there is a distinction between the Tribunal’s decision (which discharges the obligation in s 500(6L) of the Act) and the Tribunal’s reasons for decision.
We now publish our detailed reasons for that short-form decision.
Issues
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this sub-section provides that:
(4) 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.
As mentioned, the Applicant has previously made the necessary representations required by s 501CA(4)(a) of the Act. Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, it is necessary to refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[5]
[5](2018) 267 FCR 320, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337 [38] (North ACJ); Marzano v Minister for Immigration and Border Protection (2017) 250 FCR 548 [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal is compelled to find that the cancellation of the Applicant’s visa must be revoked.[6] We will address each of these grounds in turn.
[6](2018) 267 FCR 320 [21].
Does the Applicant pass the character test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person fails the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(d), which provides that a person will have a substantial criminal record if “the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”.
Before explaining our reasons for finding the Applicant has a substantial criminal record, we note it is legally significant that the Applicant has been considered under s 501 of the Act and its related provisions numerous times (See [36], below). The legal significance is because of the High Court’s decision in Makasa and Minister for Immigration and Border Protection,[7] and subsequent authorities which suggest the reasoning in Makasa applies to the mandatory cancellation scheme.[8]
[7](2021) 386 ALR 200.
[8]See, eg, XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 619.
Most recently, on 31 August 2018, the Applicant had a favourable outcome in relation to a mandatory cancellation decision (“August 2018 Revocation”).[9] Since the August 2018 Revocation, the Applicant has acquired new convictions which provide a new factual basis for a finding that the Applicant fails the character test.[10] The new offences commence with a conviction for common assault at the Downing Centre Local Court in October 2019. Since that date, the Applicant has accumulated more than 12 months imprisonment for various offences including a common assault, an assault occasioning bodily harm, and a breaking and entering with actual stealing.[11] In isolation, the post-August 2018 Revocation offences amount to a “substantial criminal record” under s 501(7)(d) of the Act.
[9]G, 244–245.
[10]Makasa, [57].
[11]G, 38; See also, G, 76–77.
Note: On this date the Applicant was also sentenced for one count of “destroy or damage property” less than or equal to $2000. He received a bond with an operative period of two years.
He therefore fails the character test. A concession to this effect appears in the Applicant’s Statement of Facts Issues and Contentions (“SFIC”).[12]
[12]A1, 3[9].
Is there another reason for the revocation of the cancellation of the Applicant’s visa?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“Direction” or “Direction 90”) has application.[13] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
“Informed by the principles in paragraph 5.2, a decision-maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.”[14]
[13]Direction 90 commenced on 15 April 2021. It revokes Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.
[14]Direction, paragraph 6. See also Direction, paragraph 4(1) which provides that “decision-maker” includes the Administrative Appeals Tribunal in making a decision under s 501 or 501CA of the Act.
The principles in paragraph 5.2
Paragraph 5.2 of the Direction is designed to “provide a framework within which decision-makers should approach their task” under s 501 or 501CA, as the case may be. Summarised where appropriate, the principles are:
(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.
(2)Non-citizens who engage in, or have engaged in, criminal or other serious conduct should expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they have engaged in conduct in Australia or elsewhere that raises serious character concerns (regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community).
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
The Primary and Other Considerations
Paragraphs 8 and 9 of the Direction respectively stipulate four “Primary Considerations”, and four “Other Considerations” which we must be guided by in making our decision.
The Primary Considerations we must take into account are:
“(1) protection of the Australian community from criminal or other serious conduct;
(2) whether the conduct engaged in constituted family violence;
(3) the best interests of minor children in Australia;
(4) expectations of the Australian community.”[15]
[15]Direction, paragraph 8.
The Other Considerations which, where relevant, we must take into account “include but are not limited to”:
“a) international non-refoulement obligations;
b) extent of impediments if removed;
c) impact on victims;
d) links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests”[16]
[16]Direction, paragraph 9(1).
Paragraph 7 of the Direction also provides guidance as to how to take into account each primary and other consideration. Briefly summarised, the Direction instructs decision-makers that:
(1)information from independent and authoritative sources should be given appropriate weight;
(2)Primary Considerations should “generally” be given greater weight than Other Considerations; and
(3)One or more Primary Considerations may outweigh other Primary Considerations.
The guidance in paragraph 7 of the Direction we have quoted above does not differ materially from the guidance which appeared in former directions. In Suleiman v Minister for Immigration and Border Protection, Colvin J said of the former Direction 65 that:
“…Direction 65 [a predecessor to Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 [(now Direction 90)] concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[17]
[17](2018) 74 AAR 545 [23].
I will now turn to addressing the abovementioned Primary and Other considerations.
PRIMARY CONSIDERATION 1 – Protection of the Australian Community
In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to give consideration to:
a)The nature and seriousness of the non-citizen’s conduct to date; and
b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
I will consider each in turn.
The nature and seriousness of the non-citizen’s conduct to date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the factors set out in paragraph 8.1.1(1) of the Direction.
The Applicant’s criminal history is extraordinary. It runs for 11 pages and contains a very high number of court events and offences. Even if one disregards “call up” events, the sheer size and scope of the offending history still remains extraordinary.
He has committed offences of the following types which are viewed very seriously by the Australian community:
(a)multiple crimes of a violent nature such as common assault, assaults on police officers, and assaults occasioning actual bodily harm;[18]
(b)at least one crime of a violent nature against a woman.[19]
[18]Pursuant to paragraph 8.1.1(1)(a)(i) of the Direction.
[19]G, 121, lines 12–13; See also G, 41, third entry from top “Central Local Court – 16/01/2008 – common assault – T2”.
Further, he has committed the following crimes which are viewed seriously by the Australian community:
(a)crimes against vulnerable members of the community, including an elderly woman;
(b)crimes against law enforcement officers.
We have also had regard to the sentences imposed on the Applicant for each of his offences (except for those violent offences committed against women).[20] Although he has been sentenced to terms of imprisonment on numerous separate occasions, the Applicant generally received non-custodial sentences. Even when he went to prison for offences, the sentences were at the low end of the sentencing range for each offence. These facts tend toward a finding that the Applicant’s offending was only “serious”, subject to our findings about other parts of paragraph 8.1.1(1) of the Direction.
[20]Paragraph 8.1.1(1)(a)(ii) of the Direction.
We have earlier referred to the extraordinary length of the Applicant’s offending history. He has compiled 116 convictions across the 24 year period of the offending history. The offending (in terms of convictions) commences in June 1997. He has convictions for each of the years 1997–2004, 2006, 2008, 2010, 2012–2014, 2016–2020. These sheer numbers definitively speak to the frequency of this Applicant’s offending.[21] There can be no other finding.
[21]Direction, paragraph 8.1.1(1)(d).
Is there a trend of increasing seriousness? A holistic reading and understanding of the totality of his history suggests that this may not be the case. The dominant themes of his offending history are apparent from his history from its beginning or, at least, its very early stages. They include: (1) unlawful interference with the property of others – most usually to obtain money to buy drugs; (2) stubborn refusal to follow the lawful guidance and directions of police officers (including physically imposing himself in those situations); (3) anti-social and petulant conduct; (4) a failure to comply with the lawful requirements of instruments such as bail or other undertakings compelling his appearance at court; and (5) the imposition of violence upon others to achieve a desired outcome. Thus, it would be inaccurate (as opposed to unsafe) to find that there is a demonstrable trend of increasing seriousness in the Applicant’s offending. It has been serious from its beginning and has remained serious throughout its evolution.
There are a number of cumulative effects of this Applicant’s offending.[22] First, it is impossible to resist a finding that this Applicant has failed to develop any measure of respect for lawful authority. He has no boundaries when it comes to dealing with any direction from a police officer with whom he does not agree. Second, his unlawful conduct has adversely impacted upon the personal rights of others. People in the community have a right to go about their business and feel safe. This certainty is fundamentally grounded in a presumption that those around them will observe the law. This Applicant seems to have no compunction with imposing himself, in a physical sense, in situations where he disagrees with someone else or wants to achieve an outcome in his dealings with that other person.
[22]Direction, paragraph (e).
Third, in a similar vein, people in the community have suffered material loss to their property as a result of the Applicant’s offending. People work hard to save for and purchase their goods and chattels. They are entitled to unfettered ownership of those items. They should not be expected to deal with, or otherwise take into account, any suggestion that ownership, control and enjoyment of their assets should at any time be interfered with by offenders like the Applicant.
Fourth, this Applicant’s criminal history is so extensive that it is impossible to cavil with the finding that he has consumed an inordinate amount of law enforcement and judicial resources. The community should not be expected to foot the bill for the no doubt extraordinary cost to the public purse that this Applicant’s offending will have occasioned. Police resources could have been diverted to other activities that may very well have better benefitted the community. Judicial resources could have been better applied to dealing with the endless backlogs and delays in the completion of other cases rather than dealing with this Applicant’s unnecessarily repetitive pattern of offending across something like a quarter of a century.
In relation to whether the Applicant has provided false or misleading information to the department,[23] the material discloses that the Applicant arrived in Australia in December 1985 and has never left this country. Accordingly, there is no evidence that he has inaccurately completed any incoming passenger card that would otherwise require him to disclose his offending history in Australia. We are not aware of any other document in the material pointing to a finding that he has provided false or misleading information to the Department.
[23]Direction 8.1.1(1)(f).
The next inquiry involves ascertaining whether the Applicant has re-offended since being formally warned about the impact of ongoing offending on his visa status.[24] In this regard, four separate warnings have been issued to the Applicant. It is important to understand the nature of these four “warnings”. We will explain each of them in short form:
·In February 2007, the Applicant was warned that if he engages in any further conduct which might bring him within the scope of s 501, cancellation of his visa might be considered in future. There can be no doubt the Applicant received this warning. He signed a receipt for it.[25]
·In November 2012, the Applicant was provided with a warning that his visa was at risk were he to continue his pattern of criminal offending in Australia. The subject letter was forwarded to the Applicant by registered mail and there is a signed acknowledgement of that letter on behalf of the Applicant by his father.[26]
·In April 2015, the Applicant’s visa was cancelled under the mandatory cancellation provision in s 501(3A) of the Act. In November 2016, the Respondent Minister revoked that cancellation and the Applicant was warned that this revocation decision did not preclude a re-consideration of his visa status in the event of further offending. This warning appears to have been transmitted by email to his then-representative. The Applicant signed a receipt for this warning letter. There is a signed receipt dated 7 December 2016 before us which bears file number CLF2015/**475. That file number matches the number on the letter sent to the Applicant’s representative.[27]
·In August 2018, the Applicant’s visa was again cancelled as a result of his criminal offending. In March 2019, he was again notified the Respondent Minister had revoked that cancellation decision. Once again, he was warned that if he engaged in further criminal or other serious conduct, it could imperil his visa status to remain here. It would appear this correspondence (dated 14 March 2019) was emailed to his then-representative. Again, the Applicant signed a receipt for this warning letter on 7 May 2019. There is a signed receipt under cover a of a letter from Kingsford Legal Centre before us which bears file number CLF2015/**475.[28] That file number matches the number on the letter sent to the Applicant’s representative.[29]
[24]Direction, 8.1.1(1)(g).
[25]G, 267–269.
[26]G, 263–266.
[27]G, 253–255, 260.
[28]The file was apparently kept open after the 2016 revocation.
[29]G, 244–246, 251–252.
We are satisfied that the Applicant has received the abovementioned formal warnings and restorations of his visa status after initial cancellation. Further, with the Tribunal had the benefit of expert evidence that, at least in relation to the most recent cancellation, the Applicant was capable of understanding the content of the notification letters at the time he signed receipt for them:
“MS ROBERTS: And I am just going to refer to a document in a different bundle. In the G documents at page 252 and Dr Nathani, just for your reference, the document I am referring to is an acknowledgement that the applicant signed on 7 May 2019 and I will just read what he acknowledged.
I, Marciej Ozerski, acknowledge that I have received the notice of decision to revoke visa cancellation under Section 501CA(4) of the Migration act. I understand that if I engage in further criminal or serious conduct this may again result in any visa I hold being cancelled on character grounds and in this case my past conduct and previous relevant information held by the department can also be reconsidered.?
DR NATHANI: Yes.
MS ROBERTS: In your opinion does the applicant have capacity to understand that acknowledgement?
DR NATHANI: In my clinical opinion I believe that Marc does have capacity to understand that bit of the document that he signed off on. He was able to repeat this information to me when I interviewed him and he was able to demonstrate a degree of understanding about the current circumstances that conveyed to me that he understood that he faced deportation as a consequence of his actions thus far.”[30]
[Tribunal emphasis]
[30]Transcript, 53, lines 15–36.
We have had regard to all of the relevant sub-paragraphs in paragraph 8.1.1(1) of the Direction. With particular reference to the relevant sub-paragraphs to which we have referred, we are of the view that the Applicant’s offending can be characterised as very serious.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 8.1.2(1) 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 be repeated may be unacceptable.
Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;
(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
Sub-paragraph 8.1.2(2)(a) compels an inquiry into the risk to the Australian community in the event the Applicant were to re-engage in further criminal or serious conduct. Were this Applicant to re-commit his offences of violence, it would result in physical or psychological harm. Were he to re-commit his offences against the property of others it will result in measurable financial loss as well as emotional harm to those who are deprived of the use and ownership of their assets. Were he to re-commit his drug offences, the Australian community would again be subjected to direct and indirect serious harm resulting from the widespread distribution of illicit drugs in our community. A resulting measure of harm would be the sheer cost to the community in terms of its consumption of both law enforcement, judicial and health apparatus.
The Respondent urges the Tribunal to be very concerned about the Applicant’s history of violent offending. We have little or no difficulty in reaching such a state of concern having regard to the Applicant’s multiplicity of convictions for violence against members of the community, law enforcement officers, and other government officials or employees going about their daily tasks. The Respondent contends that any person who comes into contact with the Applicant is at risk of serious physical or psychological harm.[31] We are in substantial agreement that, depending on the Applicant’s mental state, he may expose community members to a risk of serious physical or psychological harm.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
[31]R1, 11[62].
The parties’ positions
There is a ready acknowledgment on behalf of the Applicant that he represents a high recidivist risk. This acknowledgment is sought to be tempered on the basis that “[…] he should not be seen or taken as his criminal nature and craving for committing crime. The applicant realises the seriousness of his drug dependency and mental illness which has been scattered all over his past and trashed his teenage and adult life in Australia.”[32] In its SFIC, the Respondent is of the view that the Applicant’s past conduct has been so serious that any future risk of similar conduct in the future is plainly unacceptable.[33]
[32]A1, 15[31]–16[31].
[33]R1, 13[70].
Expert evidence
For the purposes of this hearing, the Applicant commissioned and obtained a report from consultant psychiatrist Dr Jai Nathani. Dr Nathani’s report appears in the material.[34] In terms of a diagnosis, Dr Nathani reviewed the material briefed to him and noted that diagnoses he referred to in his report were consistent with the Diagnostic and Statistics Manual version 5 (“DSM-V”). He recorded that “based on the information currently available, [the Applicant] has a diagnosis of schizophrenia.”[35]
[34]A6.
[35]A6, 20[7.2].
When Dr Nathani was briefed he did not have the benefit of certain material which was before the Tribunal. This material was put to him, because it indicated that some doctors who have treated the Applicant have formed a view the Applicant may simply have a personality disorder. At the hearing, Dr Nathani (during cross-examination) explained (in rough terms) that a diagnosis of schizophrenia does not necessarily exclude other mental disorders, such as personality illnesses:
“MS ROBERTS: And then you will see at the last sentence of that first paragraph, "Has been diagnosed with schizophrenia in the community but in prison the main issue has been with self-harming behaviour and features of personality disorder."?
DR NATHANI: Yes.
MS ROBERTS: Your report doesn't say anything about a personality disorder?
DR NATHANI: M'mm.
MS ROBERTS: Had you seen this record is that something that you would have considered in your assessment of the applicant?
DR NATHANI: It's a bit of a tricky question. There's the concept called a "Foulds Hierarchy" - F-o-u-l-d - F for foxtrot, and what the concept says is that if somebody has a diagnosis of a major psychiatric illness,, for example schizophrenia, then the symptoms as part of schizophrenia could mimic less severe psychiatric illnesses, for example, a personality disorder. So what I am saying is that if there was as person with repeated self-harming behaviour then a diagnosis of schizophrenia could still include symptoms like that whereas in the absence of schizophrenia then a diagnosis of a personality disorder would be the more appropriate diagnosis you would give that person. It doesn't exclude the fact that a person could have full schizophrenia as well as a personality disorder, however, going back to the concept of Foulds Hierarchy it is probably more accurate to try to pick one and the more severe illness is the one that trumps the other and it takes and encompasses all the symptoms including self-harming. Which is why my report reflected only schizophrenia.”[36]
[36]Transcript, 55, lines 9–31.
In assessing the Applicant’s recidivist risk, Dr Nathani applied version 3 of the Historical Clinical Risk-20 (“HCR-20”) risk assessment tool. This tool involves the application of some 20 factors by way of an actuarial approach. Dr Nathani explained in his report that 10 of the factors apply to the historical scale (i.e., the past), 5 apply to the clinical scale (i.e., the present), and 5 apply to the risk management scale (i.e., the future). The score which the tool outputs informs a clinician’s structured professional judgment about recidivist risk in relation to violent offending. Dr Nathani explored each of the 20 factors in the HCR-20 and how they related to the Applicant’s risk of violent re-offending.
Turning first to the 10 historical factors, Dr Nathani opined thus:[37]
[37]A6, [7.27]–[7.36].
·History of problems with violence: Dr Nathani noted a recurring history of the Applicant having problems with violence throughout his life. He thought “there is a clear pattern of violence defined by three or more district occasions of violence.” He thought this factor was present and of high relevance.
·History of problems with other antisocial behaviour: According to Dr Nathani, the HCR-20 checklist defines such behaviour as “any actual, attempted or planned violation of the rights, safety or well-being of others which constitutes a violation of explicit social norms.” Dr Nathani thought the Applicant’s antisocial behaviours have been present across a range of the Applicant’s developmental stages and that they have manifested in different settings of the community and institutions. He thought this factor was present and of high relevance.
·History of problems with relationships: Dr Nathani noted that this risk factor is reflective of a history of serious problems in establishing and maintaining stable personal relationships that results in a lack of positive social or emotional support. We note Dr Nathani’s opinion relied on a finding that “there was at least one episode of intimate partner violence.” We note for completeness that “intimate partner” violence is not “family violence” within the meaning of Direction 90.[38] Dr Nathani also relied on his view that “non-intimate relationships with family members were marred by violence, being socially isolated and having problems escalate over time.” That is consistent with what the Applicant’s family said in their evidence. He was of the view that this factor was present and of high relevance. There does not seem to be anything in the evidence which satisfies us the facts underlying this part of his opinion were wrong.
·History of problems with unemployment: Dr Nathani noted the Applicant did not complete high school and did not complete any discernible job training. He further noted the Applicant receives payments through the disability support pension. He noted this factor was partially present and was of moderate relevance.
·History of problems with substance use: Dr Nathani noted the Applicant’s almost life-long connection with illicit substance abuse and the extent to which it has interfered with his physical and mental health which has worsened over time. He opined that this factor was present and of high relevance.
·History of problems with major mental disorder: Dr Nathani explained that the Applicant’s various diagnoses engage this risk factor which involves a history of major mental disorders characterised by disturbances of cognition and affect, including psychotic disorders such as schizophrenia. He thought this factor was present and of high relevance.
·History of problems with personality disorder: Dr Nathani explained the basis of this risk factor and thought the Applicant’s personality structure has (1) interfered with previous rehabilitative efforts; (2) placed himself at risk of negative experiences, events and outcomes; and (3) placed others at risk of negative experiences, events and outcomes. He thought the Applicant has an unstable, disorganised and self-harmful personality style that resulted in his sense of self being chaotic and unstable. Dr Nathani thought this factor is partly present and of moderate relevance.
·History of problems with traumatic experiences: Dr Nathani defined this factor as “a history of experiencing harmful or traumatic events, at any point during the lifespan that may disrupt normative development, attachment processes, or learning of prosocial attitudes and problem solving skills” Dr Nathani found no verifiable evidence of parental abuse, substance use problems in the home or foster home placements for the Applicant. He opined this factor is absent and of low relevance.
·History of problems with violent attitudes: Dr Nathani described this risk factor as comprising attitudes supportive of violence, a history of entrenched violent attitudes, beliefs, values or thoughts, including a belief that the use of violent behaviour is justified to meet personal or material goals. Dr Nathani noted the Applicant did not minimise or deny his violence, and concluded that this factor was absent and of moderate relevance.
·History of problems with treatment or supervision response: Dr Nathani explained that this factor involves an ascertainable history of serious problems with non-compliance with or poor responses to forensic, mental health, correctional treatment, rehabilitation or supervision plans designed to improve psychosocial adjustment or mental health or to reduce the chances of violence. Dr Nathani noted the Applicant’s history of failing to engage in the treatment/supervision/rehabilitation process. He thought this factor was present and of high relevance.
[38]See [62], below.
Turning next to the five clinical (or current) factors, Dr Nathani opined thus:
·Recent problems with insight: Dr Nathani said that this risk factor reflected the applicant’s current problems with lack of awareness, understanding or appreciation of his violence – related functioning were all factors and processes that placed the Applicant at risk for violence. He said that most conceptualisations of insight can be separated into at least three dimensions. Dimension One is insight into the person’s mental disorder. On this point, Dr Nathani opined that the Applicant did not deny or greatly minimise the presence of schizophrenia or its symptoms in his psychopathy. But he thought that the Applicant “greatly minimised the presence of a substance-related disorder and its symptoms.” Dimension Two is insight into a person’s aggressiveness. On this point, Dr Nathani noted the Applicant did not deny or greatly minimise the interpersonal consequences of schizophrenia and substance-related disorders on his family; and that the Applicant understood these factors contributed to violent behaviour in the past. Dimension Three is insight into the person’s need for treatment. Dr Nathani thought the Applicant “did not deny or greatly minimize” that treatment may have a beneficial effect on his symptoms for schizophrenia.[39] Dr Nathani did not form a view on whether the Applicant thought treatment would be beneficial for the Applicant’s substance-related disorder. In the final analysis, Dr Nathani thought the Applicant did not demonstrate problems with insight into having a mental disorder. He thought the Applicant had partial insight into his violence risk/aggressiveness and, finally, he thought the Applicant had partial insight into the need for ongoing treatment.
He thought this factor is partially present and is of high relevance.
·Recent problems with violent ideation or intent: Dr Nathani described this factor in terms of ascertaining a person’s violent ideation or intent, which means, thoughts, plans, desires, fantasies or urges to cause harm to others. He could not detect any such frequent or persistent thoughts in the mind of the Applicant and opined that this factor is absent and of low relevance.
·Recent problems with symptoms of major mental disorder: Dr Nathani explained that this risk factor pertains to whether symptoms of major mental disorder are currently or have recently been, active. While Dr Nathani was not of the view that the Applicant displayed symptoms of hallucinations, delusions or of poor self-care, he nevertheless thought that the Applicant’s unusual and “unrealistic”[40] recollections of setting his friend on fire and of throwing a child-sized doll onto the highway to cause a multi-vehicle collision may well reflect an interference with his ability to test reality. Dr Nathani opined that this factor is present and is of high relevance.
·Recent problems with instability: Dr Nathani said this factor is reflective of whether a person is experiencing serious problems maintaining stable adjustment with respect to (a) affective, (b) behavioural or (c) cognitive functioning. While he did not think the Applicant demonstrated a variable mood or hairtrigger temper or restlessness or hyperactivity, he nevertheless noted the applicant’s recent history of impulsive acts without considering alternatives to so acting or, in the alternative, giving prior thought to the consequences of his actions. He thought this factor is partially present and is of moderate relevance.
·Recent problems with treatment or supervision response: Dr Nathani described this factor as involving an assessment whether the person is experiencing difficulty in complying with rehabilitative interventions aimed at reducing that person’s recidivist risk for violence. While noting that there is no recent history of non- adherence by the Applicant with his prescribed medications while in detention, Dr Nathani nevertheless noted that the Applicant “shows little motivation or effort to address his poly substance use disorders and has not engaged with individual or group programs”[41]. He thought this factor is present and is of high relevance.
[39]A6, 34[7.37].
[40]See Transcript, 61, lines 20–34.
[41]A6, 36[7.41].
We now turn to the five factors on the risk management (or future) scale.
·Future problems with professional services and plans: Dr Nathani explained that this item looks for future recidivist risk from the perspective of a person’s plans to make appropriate and effective use of rehabilitative services and programs. He noted that the Applicant did not have any explicit or well-formed plans regarding the accessing of, and engagement in, such services and programs but thought this was unsurprising given that the Applicant now has a lawfully appointed Guardian to make treatment-related decisions on his behalf. Dr Nathani thought this factor is partly present and is of high relevance.
·Future problems with living situation: Dr Nathani explained that this factor deals with a person’s future recidivist risk being impacted by unstable or uncertain housing/accommodation arrangements together with a risk of exposure to risk – enhancing factors such as weapons or substances. While noting the applicant’s accommodation arrangements are presently “uncertain” and that the Applicant “is currently homeless”, he thought there was some measure of protection for the Applicant given that his brother had been appointed to act as his guardian. Dr Nathani thought this factor is present and is of high relevance. Needless to say, the extent of the Applicant’s past exposure to substance abuse has been of such magnitude that we cannot be reliably convinced that this guardianship issue will mitigate against this factor.
·Future problems with personal support: this factor, says Dr Nathani, refers to the extent to which violent recidivist risk factors can be ameliorated by a person’s capacity to source and engage with personal support. He noted the Applicant “has no real social network” and unless he is supported by external agencies, he will effectively be on his own insofar as his recurring everyday needs and problem solving requirements are concerned. Dr Nathani opined that this factor is present and is of high relevance.
·Future problems with Treatment or Supervision response: this factor is defined identically with the abovementioned fifth clinical (or current) factor except that it is forward-looking. Concerningly, Dr Nathani thought there is no objective indication that the Applicant’s compliance with rehabilitative interventions aimed at reducing his violent recidivist risk will not be problematic in future. in addition, Dr Nathani thought “there are contextual impediments to compliance such as homelessness. There are personal impediments to responsiveness including a low average FSIQ, as well as not showing objective indications that responsiveness will not be problematic in the future.”[42] Dr Nathani concluded that this factor is present and is of high relevance.
·Future problems with stress or coping: according to Dr Nathani, this factor is concerned with the extent to which violent recidivist risk is impacted by a person’s capacity to cope with stressful living circumstances and life events. In the opinion of Dr Nathani, the Applicant’s risk of removal to Poland will probably cause him to adopt inappropriate coping strategies such as self-harm. Given the Applicant’s low average FSIQ and problematic emotional regulation, Dr Nathani thinks the Applicant is likely to face ongoing difficulties in coping with recurring minor or common frustrations or problems. He thought this factor is present and is of high relevance.
[42]A6, 38[7.45].
In terms of concluded findings about the Applicant’s recidivist risk, Dr Nathani divided his findings into two categories. First, with reference to the Applicant risk for violent reoffending, he noted the Applicant had a number of historical, Clinical (ie current) and Risk management (ie future) factors that were / are present and which are of high relevance. On this basis, Dr Nathani found the Applicant’s risk of violent reoffending is in the high range. Second, with reference to the recidivist risk for non-violent reoffending, Dr Nathani again took into account (1) the applicable risk factors from the three categories, (2) the “ongoing complex interplay” between the Applicant low average FSIQ, (3) his persistent psychotic symptoms for schizophrenia, (4) his persistent symptoms for co-morbid polysubstance abuse and (4) the recurrent history of non-violent offending. On this basis, Dr Nathani thought the Applicant’s risk for non-violent re-offending is in the high range.
Cross-examination of Dr Nathani
In addition to providing his written report on a pro-bono basis (as best as we understood the evidence),[43] Dr Nathani also made his time generously available to provide oral evidence at the hearing. In the course of providing evidence in cross-examination, certain records and other documents were put to him with which he may not have been briefed at the time of writing his report. As best as we understood his evidence, little, apart from that which we have noted above, of a substantive nature relevant to his HCR-20 assessment was raised during his cross-examination so as to impugn or otherwise materially call into question any of his findings about the level of the Applicant’s recidivist risk for both violent and non-violent offending.
[43]Transcript, 70, lines 45–46.
Dr Nathani agreed that for almost 20 years of the Applicant’s engagement with community mental health services, there had been little or no progress in the management and control of symptoms predisposing him to repeatedly return to abusing illicit drugs, alcohol and to otherwise returning to a pattern of offending. Dr Nathani referred to a “vicious cycle” in the Applicant’s history of mental health care:
“MS ROBERTS: Yes, I would agree with that because many, many psychiatric reports going back close to 20 years and still discussing the same issues that you’ve covered in your report and it doesn’t seem as though there has been any progress. The applicant’s brother described it as a vicious cycle, would you agree with that?
DR NATHANI: I think it is a vicious cycle, that is correct and I think it’s more a reflection of failures within the healthcare system rather than anything else, that whatever - for all we know, maybe what I am proposing, which is that period of an involuntary admission, being off medications, reviewing the symptoms, to consider whether or not Clozapine is indicated, maybe all of this has been done already and it would be helpful to get discharge summaries from Long Bay Hospital, from periods of time when sometimes when he would have had long admissions. So, for all I know, it could have been done previously and if it was, we will need that information to then plan what the next step should be. Because even if it was done previously, there is no evidence that there has been any substantial efforts to increase the level of support or increase the level of monitoring and supervision in the community setting that would have helped to prevent relapses, which is why in my report I wrote things about dropping care from non-government organisations and NDIS support package, continuing with guardianship, continuing with trustees. Having all these restrictions and safety guides in place and then enhancing that further, are strategies that have not been tried in the past.”[44]
[44]Transcript, 68, lines 36–47; 69, lines 1–9.
A recurring element in the evidence of the Applicant’s lay witnesses (his mother and his brothers) was that despite their best efforts over the past 25 years, they have not, even with the assistance of clinicians, been successful in assisting the Applicant to (a) achieve any lasting abstinence from abusing illicit drugs, (b) comply with a treatment plan, or (c) refrain from continuing to voluntarily offend. As we understood the evidence of these lay witnesses (with whom the Applicant concurred) the only possible solution (in terms of treatment) for the Applicant was for him to be placed in some kind of locked ward or facility for the administration of involuntary rehabilitative treatment. Well-meaning and well-intended though this evidence was, there is no evidence before the Tribunal that the Applicant has any realistic prospect of securing a place in any such facility. We further note that contemporary mental health services do not generally make such services (involuntary rehabilitative treatment) readily available.
One of the difficulties with the Applicant securing admission into such a facility is that he is currently participating in the methadone program. The evidence is not clear or otherwise convincing about whether he could obtain admission to any involuntary treatment program while still being on the methadone program. The need for the Applicant to be involuntarily treated is readily apparent when one has regard to the extent and nature of therapy and support Dr Nathani says the Applicant needs. Dr Nathani has, for example, concerns about whether the interventions that are currently being provided to the Applicant are providing any reliable clarification as to whether he is suffering schizophrenia or a personality disorder:
“MS ROBERTS: Having reviewed the applicant’s clinical notes, do you accept that he’s receiving adequate medical and psychiatric care in the detention centre?
DR NATHANI: I would say, no, because it depends on what the purpose of the follow up and monitoring is. If the question is for diagnostic clarification, monitoring of response to anti-psychotic, then, the short answer is no, I don’t think that there is enough follow up. He is seeing the psychiatrist at a frequency of once a month at most. And if the overall approach would be to stop medication and review symptoms then it would need to be a lot more frequent than that. So, I think it is sufficient if it was only to ensure that Mack is not getting side effects from Clopixol, for example. And yes, it would be sufficient to be reviewed once a month or once every few months because he’s stable on it and has been for several years. But if the question that we are asking is, if it’s schizophrenia or if it’s a personality disorder, then the overall approach, the interventions that are being offered are not providing any clarification at the moment. Because even though there is doubt, the plan is still to continue with the anti-psychotic medications and under schizophrenia care plan which is what the psychiatrist has documented at the end of all of his or her reviews.”[45]
[Tribunal emphasis]
[45]Transcript, 69, lines 11–28.
There is no escaping the conclusion that little, if anything, is known about any such involuntary treatment plan or course of therapy into which the Applicant could be admitted. As noted by the Respondent’s representatives during closing submissions, it is “a theoretical ideal world situation, not a real world situation, which is what the Tribunal is confronted with […]”.[46] The stark reality for the Applicant is that he will most likely be released into the community with little or no prospects of living with his family and having his treatment regime closely and constantly monitored. The irrefutable position to be taken from the evidence of his family members is that they cannot take him in because they apprehend a risk of harm to them were they to do so. The overwhelming likelihood is that he will probably return to live in the same or similar facilities to which he has previously been released at which time he returned to abusing illicit drugs and committing offences.
[46]Transcript, 133, lines 35–36.
The recidivist risk in the event the Applicant is not released into a properly configured and involuntary treatment scenario is that he is likely to relapse into psychosis. The main risk for the Applicant if he relapses into psychosis was explained in the following exchange (noting this passage was most directly related to the risk associated with a medication change):
“MS ROBERTS: Just on that point, as a lay person, one wonders why they would have him on a schizophrenia care plan if they doubt the diagnosis. But you mentioned earlier that it might be dangerous to take him off his medication. Can you explain why? You might have already explained that before, but - - -?
DR NATHANI: The main risk is that if Mack truly has schizophrenia and stopping the medications would lead to a relapse, then that would be risky if Mack was in the community. Whereas, if he was in a hospital setting or if he was in a detention centre setting, then at least he can have monitoring. The frequency and the intensity of monitoring is probably, if it’s provided in a hospital setting, where the people are specifically trained and qualified to manage these clinical risks, as opposed to the detention centre where the number of staff to clients is quite low. It’s significantly lower compared to what would be offered in a hospital setting. And also, the thing that would be significant to look out for would be best done in a hospital setting with a qualified staff members. So, that’s the main risk, is the risk of relapse into psychosis which, with Mack, it could be violent, it could be aggression, it could also be him experiencing auditory hallucinations that could be commanding in nature, meaning that the hallucinations instruct Mack to do certain things.”[47]
[Tribunal emphasis]
[47]Transcript, 69, lines 30–47.
At best, we have Dr Nathani’s observation that the Applicant’s risk of relapse into psychosis is in the moderate range if he manages to remain abstinent from illicit substance abuse and otherwise strictly adheres to his treatment. Dr Nathani agreed that when the Applicant has been released into the community in the past, he has never been able to achieve such abstinence and to otherwise adhere to treatment. The rather sombre conclusion to be taken from Dr Nathani’s evidence is that if this Applicant were to be returned to the community now, he represents a very high risk of again failing to comply with treatment modalities and consequently relapsing into substance abuse and a pattern of offending.
“MS ROBERTS: You’ve indicated that Mack’s risk of relapse into psychosis is in the moderate range if he remains abstinent from substances and adheres to his treatment. On the evidence you have seen, do you agree that he’s never been able to achieve this while he’s been in the community?
DR NATHANI: That he’s never been able to achieve what in the community?
MS ROBERTS: Abstinence from illicit substances?
DR NATHANI: That is correct, yes. Yes.
MS ROBERTS: And (indistinct) treatment?
DR NATHANI: I would support that. Yes. So, I think it would be very difficult to understand or to appreciate what Mack is like in the absence of substances because so far all the information of Mack being in the community has been influenced with substance use.
MS ROBERTS: Based on his history, if he’s allowed to move about freely in the community, the risk of him ceasing compliance with his medication and relapsing into substance is very high, isn’t it?
DR NATHANI: It would be in the high range, based on the information that we have at the moment. And I think community-based treatment is one that - community-based treatment would be best left for the future. Like, I think at this point in time, whatever treatment and interventions would most greatly benefit Mack would be those that are provided in hospital setting, in a restricted setting.”[48]
[Errors in original]
[48]Transcript, 70, lines 13–33.
Conclusions about likelihood of re-offending
We have had regard to the totality of the evidence and do not think it is safe to cavil with Dr Nathani’s findings about the Applicant’s level of recidivist risk. We are satisfied (and we find) that this Applicant’s risk of violent re-offending and non-violent re-offending are each in the high range. If returned to the community, there is a high risk of him ceasing compliance with his medication, relapsing into a pattern of illicit substance abuse, and consequently re-commencing a pattern of offending.
Conclusion: Primary Consideration 1
With reference to the weight attributable to this Primary Consideration 1:
(a)We have found that the nature and seriousness of the Applicant’s conduct has been very serious;
(b)We have assessed the risk to the Australian community of this Applicant committing further offences or engaging in other very serious conduct by having regard to our findings that:
(i)Were this Applicant to re-commit his offences of violence, it would result in physical or psychological harm.
(ii)Were he to re-commit his offences against the property of others it will result in measurable financial loss as well as emotional harm to those deprived of the use and ownership of their assets.
(iii)A resulting measure of harm would be the sheer cost to the community in terms of its consumption of both law enforcement, judicial and health resources.
Having regard to the totality of the material before the Tribunal, we are of the view (and find) that this Primary Consideration 1 carries heavy weight against the revocation of the mandatory cancellation of the Applicant’s visa.
Out of an abundance of caution and for the sake of completeness, we make reference to paragraph 8.1.2(2)(c) of the Direction. We do not consider that specific paragraph to be relevant to determination of the instant application. This matter does not involve a “refusal to grant a visa to a non-citizen”. It involves an application for the “revocation” of a decision to mandatorily cancel the Applicant’s visa.
Primary Consideration 2: Family Violence
At the hearing, the Respondent expressly conceded that this Primary Consideration is not relevant.[49] We agree. The only incident which might have amounted to family violence was not committed against a person who was a member of the Applicant’s family.[50] As best as we understood the material, they were merely share-house mates.
[49]Transcript, 137, lines 19–20.
[50]See generally Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 [135]–[166].
Primary Consideration 2 is not relevant.
Primary Consideration 3: The Best Interests of Minor Children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether non-revocation under section 501CA is, or is not, in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
Paragraph 8.3(4) of the Direction provides a list of factors to be considered in determining the best interests of the minor children. Those factors relevantly comprise for present purposes:
a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
e) whether there are other persons who already fulfil a parental role in relation to the child;
f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The parties’ respective contentions
In the SFIC filed on his behalf, the Applicant makes a certain contention about weight allocable to this Primary Consideration 3. We have misgivings about this contention in circumstances where it mis-counts the number of relevant children, and has clearly led the Respondent into error:
“The applicant has two brothers who have between them three children. It is submitted to the extent these children know the applicant as their uncle there is adverse emotional impact on them should their access to the applicant removed. To that extent, it is submitted this primary consideration weigh in favour of the applicant.”[51]
[Errors in original]
[51]A1, 17[35].
The Respondent contends:
“In the absence of any evidence to indicate that the children of the applicant’s brother would be impacted by a non-revocation decision, this primary consideration weighs neither for, nor against revocation.”[52]
[52]R1, 15[81].
Identification of relevant children
The Applicant has two brothers. The first of them is Mr Christopher Ozerski. He is currently in a relationship with a partner who has a 6 year old son from a previous relationship. As we understood the evidence, Christopher has two daughters from a previous relationship and they are respectively aged 6 and 9. They therefore have a blended family of three children. Christopher and his family reside in Sydney.
The Applicant’s second brother is Mr Jack Ozerski who has 5 children. Two of his children are twin boys who are 8 months old. He also has a daughter who is aged 12, and another daughter who is aged 8.5 years. As best as we understood the evidence, there is another daughter who was born between the 12 year old and the 8.5 year old. Jack lives with his family in Emerald, Queensland.
What follows from [68]–[69], above, is that there are eight relevant minor children in Australia. Not three. We will consider each of the Applicant’s brothers’ children as separate groups of children in turn.
Christopher’s Children
During his cross-examination, Christopher was asked about the nature of the Applicant’s relationship with his children. This is what he said:
“MS ROBERTS: Okay. And does your brother spend time with the children at all currently?
CHRISTOPHER: To be honest, no, not much. He's, like, he hasn't - let's be honest, he hasn't got the closest relationship with them. He spoke to them last time maybe 2 weeks ago. We FaceTimed and spoke a little bit to him.
MS ROBERTS: Okay. It would be fair to say, wouldn't it, that even putting aside your role as an advocate and a guardian for your brother, you have a lot of other responsibilities?
CHRISTOPHER: Yes, I'm a busy person. I've just actually come off six night shifts as we speak, but I'm out the front of my gym ready to go for the gym work, and I've got to pick my kids up after this. But I can still find time to help my brother when needed.”[53]
[53]Transcript, 28, lines 5–15.
Application of factors in paragraph 8.3(4) of the Direction to Christopher’s children
It would be patently unsafe to allocate any distinct nature or ascertainable duration to the relationship between Christopher’s children and the Applicant. As Christopher said, the Applicant has not “got the closest relationship with them.” It is therefore safe to find that the relationship between the Applicant and these children has been non-parental. Conversely, it would be safe to find that there is no existing relationship between the Applicant and those children. However, any contact he may have had with them has been limited. Sub-paragraph (a) of paragraph 8.3(4) is of only marginal assistance to the Applicant.
The guarded nature of Christopher’s evidence about the extent of any relationship between the Applicant and his children makes it difficult to safely find that the Applicant will play a positive parental role in their future. There is certainly little or no evidence that he has done so to this point. As against that, there are something like 33 years of cumulative parenting time until both of these children attain the age of 18 years. Sub-paragraph (b) of paragraph 8.3(4) is of marginal assistance.
We do not know whether the Applicant’s past or future conduct has had or will have any negative impact on Christopher’s children. Sub-paragraph (c) of paragraph 8.3(4) is not relevant.
We do not know about any likely effect upon Christopher’s children resulting from separation of the Applicant from their lives. To the extent there may be any such negative effect(s), it can be safely found– as Christopher said in cross-examination – that some of his children maintain telephone contact with the Applicant. Further, Christopher tells us that “[w]e FaceTimed and spoke a little bit to him.” It is therefore safe to find that were the Applicant to be removed to Poland, he would be able to maintain electronic contact with Christopher’s children. Sub-paragraph (d) of 8.3(4) is of marginal assistance to the Applicant.
Christopher was clear in his evidence that the three children in his blended family are primarily parented by himself and his partner. There is no evidence that the Applicant has fulfilled any kind of parental role in the lives of these children and little to suggest he will do so in future. Sub-paragraph (e) of paragraph 8.3(4) does not assist the Applicant.
We do not know the views of any of Christopher’s children about how they would feel in the event of the Applicant’s removal. The children are aged 6, 6, and 9 respectively. One would have to seriously question whether they have capacity to express such views in any verifiable sense. We have checked the material and there is nothing in the material from these children to that effect. Sub-paragraph (f) of paragraph 8.3(4) does not assist the Applicant.
There is no evidence that any of Christopher’s children have been exposed to family violence perpetrated by the Applicant or that he has abused or neglected them in any way. Sub-paragraph (g) of paragraph 8.3(4) is not relevant.
There is no evidence that any of Christopher’s children have suffered any physical or emotional trauma resulting from the Applicant’s conduct. Sub-paragraph (h) of paragraph 8.3(4) is not relevant.
Jack’s Children
During his cross-examination, Jack was questioned about whether it would be in the best interests of his children for the Applicant’s visa status to remain in Australia being restored to him. This is what he said:
“MS ROBERTS: In addition to considering the risks that your brother poses to society if he is going to continue to re-offend, the tribunal will also have to consider some other matters, including whether there are any children whose best interest would be affected by the decision and your brother's risk to the Australian community. So you mentioned earlier I think that you have five children?
MR JACK OZERSKI: Yes.
MS ROBERTS: And you live in Emerald?
MR JACK OZERSKI: Yes, in Queensland.
MS ROBERTS: So do your children know your brother, Mack?
MR JACK OZERSKI: Yes. Well - - -
MS ROBERTS: They do?
MR JACK OZERSKI: So two of them are only new - two - my youngest two are only eight months old, they are twin boys but the - my eldest daughter who is 12 and my third-eldest daughter who is eight and-a-half, they both know him, they've seen him and spoken to him several times.
MS ROBERTS: So they've spoken to him on the phone while he has been in detention?
MR JACK OZERSKI: Yes, so they've spoken to him on the phone, probably two times in - I think whether - last time was probably two years ago and I don't think he was in detention at the time. He was in Sydney, I think he wasn't detained at that point.
MS ROBERTS: I think you're right. So he was in the community for a period of time I think between April 2019 - or March 2019 and April 2020, does that sound about right?
MR JACK OZERSKI: Yes, yes, exactly, yes. I would've - from memory I think it was around Christmas time. They have spoken to him before, they know of him, they know his name, they know he is part of the family, but that's about it.”[54]
[Errors in original]
[54]Transcript, 81, lines 45–47; 82, lines 1–24.
In the course of re-examination, Jack said the following:
“MR NIKJOO: How often they are in touch by communication, any way?
JACK OZERSKI: They’ve - yes. They’ve only spoken - I think they’ve only spoken to my brother - definitely once, perhaps twice in the last - since, you know, since the last eight years. Since my youngest girl was born. So they don’t know him that well, but they know of him. They know who he is. They know he’s my brother. They know him as their uncle, and they’ve spoken to him once or twice in the last - since they were born, both my eldest girls.
MR NIKJOO: Do they ask you about him?
JACK OZERSKI: Very rarely. […]”[55]
[55]Transcript, 85, lines 14–22.
Application of factors in paragraph 8.3(4) to Jack’s children
To our minds, the nature and duration of any relationship between the Applicant and Jack’s children goes no higher than Jack’s evidence telling us that two of his three daughters (aged 12 and 8.5) “both know him, they’ve seen him and spoken to him several times.” It would be patently unsafe to suggest that the Applicant’s relationship with Jack’s children has been parental. Clearly this is not the case. Additionally, there is no existing parental relationship and there appear to have been long periods of absence from the lives of Jack’s children. Sub-paragraph (a) of paragraph 8.3(4) is of only marginal assistance to the Applicant.
It should be borne in mind that, differently to the circumstances of Christopher’s children, Jack and his family reside in country Queensland, thousands of kilometres away from the Applicant. To our minds, there are lower prospects of the Applicant playing any positive parental role in the lives of Jack’s children compared to the children of Christopher because of that distance. As against that, there is ample cumulative parenting time to facilitate the Applicant’s establishment of some kind of role – perhaps even a quasi-parental role – with Jack’s children in the future. This prospect is, at best, speculative. Sub-paragraph (b) of paragraph 8.3(4) is of only marginal assistance to the Applicant.
We do not know whether the Applicant’s past or future conduct has had or will have any negative impact on Jack’s children. Sub-paragraph (c) of paragraph 8.3(4) is not relevant.
We do not know about any likely effect upon Jack’s children resulting from separation of the Applicant from their lives. To the extent there may be any such negative effect(s), we have Jack’s evidence that which tells us that his 12 year old and 8.5 year old daughter both know the Applicant and have seen and spoken to him several times. It should also be borne in mind that were he to be removed to Poland, the Applicant would be able to maintain electronic contact with Jack’s children because Jack confirmed the daughters have spoken to the Applicant on the phone, and the last time they did so was “probably two years ago”. In terms of electronic contact, an inference can safely be drawn that because Christopher and his children FaceTimed the Applicant recently, the Applicant possesses a modern mobile phone. Sub-paragraph (d) of 8.3(4) is of marginal assistance to the Applicant.
It seemed clear from Jack’s evidence that his five children are primarily parented by himself and, presumably, his partner. We are not aware of any evidence that the Applicant has performed any sort of parental role in the lives of any of Jack’s children. There is little to suggest he will do so in the future. Sub-paragraph (e) of paragraph 8.3(4) does not assist the Applicant.
We do not know the views of any of Jack’s children about how they would feel in the event of the Applicant’s removal. The children of Jack who have spoken with the Applicant are aged 12 and 8.5. There is nothing in the material from these children or the further daughter[56] of Jack telling us about impacts upon them in the event of the Applicant’s removal to Poland. One would have to seriously question about any extent to which they would have capacity to express such views in any verifiable sense. we have checked the material and there is nothing in the material from these children to that effect. Sub-paragraph (f) of paragraph 8.3(4) does not assist the Applicant.
[56]Noting, of course, that the two remaining children are twin boys aged 8 months who are clearly incapable of providing any ascertainable views about the impact of the Applicant’s removal upon them.
There is no evidence that any of Jack’s children have been exposed to family violence perpetrated by the Applicant or that he has abused or neglected them in any way. Sub-paragraph (g) of paragraph 8.3(4) is not relevant.
There is no evidence that any of Jack’s children have suffered any physical or emotional trauma resulting from the Applicant’s conduct. Sub-paragraph (h) of paragraph 8.3(4) is not relevant.
Conclusion: Primary Consideration 3
We have had regard to the applicable factors in paragraph 8.3(4) of the Direction as they relate to each of the two groups of children. Put at its highest, with reference to both groups of children we have only allocated marginal weight in the Applicant’s favour pursuant to sub-paragraphs (a)–(b) and (d). Given this dearth of weight, we find this Primary Consideration weighs, at best, only moderately in favour of revocation of the Reviewable Decision.
Primary Consideration 4: 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.[57] 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 8.4(1)–(3) of the Direction], without independently assessing the community’s expectations in the particular case”[58]
[57]Direction, paragraph 8.4(3).
[58]Direction, paragraph 8.4(4). Paragraph 8.4(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 8.4(1) of the Direction, the architecture of this sub-paragraph can, to our mind, be expressed thus:
(a)the Australian community expects non-citizens to obey Australian laws while in Australia; and
(b)as a norm, where a non-citizen has either:
(i)breached the expectation in the immediately preceding sub-paragraph (a); or
(ii)there is an unacceptable risk that the non-citizen will breach the expectation in the immediately preceding sub-paragraph (a);
– then, the Australian community expects that the Australian government will not allow such a non-citizen to enter or remain in Australia.
Clearly, the Applicant has breached the Australian community’s expectations by his breaches of Australian laws. Therefore, the Australian community “as a norm” expects the Australian government not to allow him to remain in Australia.
In addition to the guidance provided by paragraph 8.4(1) of the Direction, paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the 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:
(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.
We have identified the specific areas or categories referable to the Applicant’s stated fear(s) of degrading treatment upon a return to Poland. They comprise (1) uncertainty as to accommodation; (2) uncertainty as to known contacts and support; and (3) uncertainty as to mental health care and treatment.
We are of the view that his articulated and propounded claims consequent upon a return to Poland are not sufficiently advanced to reach the threshold of engaging Australia’s non-refoulement obligations. Overall, we are of the view (and we find) that the actual or possible degrading treatment the Applicant may experience on a return to Poland are factors that attract a certain, but not determinative, level of weight in favour of revocation. This weight is outweighed by the combined heavy weights we have attributed to Primary Considerations 1 and 4.
(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 Respondent makes the following concession:
“The respondent concedes that the applicant will face difficulties in establishing himself and maintaining basic living standards if he is returned to Poland, as he has in Australia for much of his adult life, albeit with added language and cultural barriers. It is doubtful that the health and social security situation of any country has the capacity to support a person with the applicant’s mental health and substance abuse issues if they are unwilling to engage in treatment, as is demonstrated by the amount of time the applicant has spent incarcerated, in hospital or in immigration detention since he turned 16. On balance, this Other Consideration weighs in favour of revocation, however it should not outweigh the primary considerations.”[87]
[87]R1, 18[97].
Sub-paragraph (a): the Applicant is 40 years old. He has a complex mental health symptomatology, with diagnostic uncertainty. He has a history of diagnoses which have from time-to-time included substance-related disorders. His current treatment is predicated on a historic diagnosis of schizophrenia which is currently managed with Clopixol. Dr Nathani has deposed to the Applicant’s functional level of intelligence with specific reference to his current and future recidivist risk. In his report, Dr Nathani said the following about the impact on the Applicant’s mental state in the event of removal to Poland:
·the Applicant would be highly unlikely to manage the symptoms of his illness, abstain from substances, achieve the social stability required for his recovery in terms of accommodation and finances and to function in society while in Poland, given that he had been generally unable to achieve these whilst in Australia with his family;[88]
·the risk of self-harm in the context of deportation is in the high range;[89]
·the risk of suicide in the context of deportation is in the high range;[90]
·the risk of a relapse into psychosis during the anxiety-provoking process of deportation is in the high range.[91]
[88]A6, 23[7.9].
[89]A6, 24[7.10].
[90]A6, 24[7.11].
[91]A6, 24[7.12]
Sub-paragraph (b): the Applicant was born in Poland and came to Australia when he was four years old. He has lived the significant majority of his life in Australia. He has never returned to Poland over the last 36 years.[92] It is inevitable that he will face substantial cultural barriers. The extent to those impediments will be substantial can be, to an extent, moderated by the fact that he was raised in a household with native-born Polish parents. It is thus reasonable to infer that he would have surely received some measure of exposure to the Polish cultural norms as a young child and adolescent. In his written evidence, the Applicant clearly suggested that he can speak Polish to some level when he wrote: “[…] I can hardly talk to mum and dad in Polish.”[93]
[92]G, 243.
[93]A10.
Sub-paragraph (c): we have earlier outlined the nature and extent of the mental health issues confronting the Applicant. While we appreciate a level of unresolved tension in the material about the state of availability of social security resources for individuals with mental health or other disabilities between the material referring exclusively to Poland (on the one hand) and the material emanating from the European Union (on the other), we have earlier found that there are reasonable prospects of him qualifying to receive social security benefits (or the equivalent) in Poland. To repeat, the extent to which he will be able to support himself on the level of those benefits depends on the cost of living in Poland. In terms of social support, we have earlier found in the Applicant’s favour that he can be reasonably expected to have concerns about not having social supports available to him in Poland. This must be tempered by the reality that while he has had his family around him in Australia, he has repeatedly relapsed into illicit drug abuse and an extraordinarily long pattern of offending. In any event, the Respondent has tendered evidence which shows there are homelessness focussed charities who may be able to provide assistance to the Applicant.[94]
[94]R1, 348.
With specific reference to medical support available to him, we have earlier referred to the nature and extent of the Polish mental health care system. of the Respondent has tendered evidence which shows healthcare is available to all citizens of Poland.[95] Any such finding is, of course, dependent upon the Applicant’s resilience and determination to remain connected with treatment modalities. As we have seen from the evidence, his record of doing so in Australia has been less than exemplary.
[95]R1, 324–347.
Overall, this Other Consideration (b) is of a certain, but not determinative, weight in favour of the revocation of the mandatory cancellation of his visa.
(c) Impact on victims
Paragraph 9.3(1) states that decision-makers must consider the impact of a section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence from any of the victims of the Applicant’s offending about their views on whether the Applicant should remain in Australia. Therefore, this Other Consideration (c) is not relevant.
(d) Links to the Australian community
Paragraph 9.4 of the Direction requires that decision makers must have regard to an Applicant’s links to the Australian community.
There are two factors which we must assess in determining the level of weight allocable to Other Consideration (d). They comprise: (1) the strength, nature and duration of ties to Australia; and (2) the impact on Australian business interests. we will consider each in turn.
(1) Strength, nature and duration of ties
With reference to the first part of this Other Consideration, it is necessary to consider three elements. First, it is necessary to have regard to the impact of any non-revocation decision on the Applicant’s “immediate family” where those people have a right to remain in Australia indefinitely. Second, it is necessary consider the impact of a non-revocation decision by taking into account the strength, nature and duration of any other ties the Applicant has to the Australian community. Third, it is necessary to assess the strength, nature and duration of any family or social links the Applicant may have with people who have an indefinite right to remain in Australia. We will address each component in turn.
1. Impact of non-revocation on the Applicant’s immediate family
The Applicant’s immediate family comprise:
(a)His mother;
(b)His father;
(c)His brother, Christopher;
(d)His brother, Jack.
The Applicant’s parents provided a joint written statement. The reason for the joint statement is likely because of the Applicant’s father’s ill health: he has been diagnosed with dementia. In their joint statement, they recount the Applicant’s descent into using illicit drugs and committing offences. They say they have “tried everything” to assist him.[96] They are concerned the Applicant “does not have the skills, means or support to survive in Poland.” They say that in Australia the Applicant will have “our family support and he has Chris, his brother as his guardian.”
[96]A9. Note: all quotations in this paragraph are from this document.
The Applicant’s mother also gave oral evidence at the hearing. As would be expected, she gave emotional and traumatic evidence about the impact of the Applicant’s removal upon her and her husband. In her evidence in chief, she said:
“The moment he touched drugs, we tried to do everything to protect him from every bad doing. I was just the mother of two boys, staying home, I raised them, the same food, the same roof, everything and I knew that from the moment Marc start using drugs something changed - devil gets into him.”[97]
[Errors in original]
[97]Transcript, 90, lines 27–31.
In the event of the Applicant’s removal to Poland, she said this:
“MR NIKJOO: And are you worried this time if he is deported?
MRS OZERSKI: Look, if he will be deported, it’s the same, like they threw him in the middle of the ocean from the plane, swim. That’s what will happen to my - - -
[…]
MRS OZERSKI: He’s not ready.”[98]
[98]Transcript, 92, lines 1–5.
The Applicant’s brother Christopher has provided both oral and written evidence. In his written statement he speaks of the fear he harbours in the event of the Applicant’s removal:
“We are fearful that given he cannot cope and manage independently in Australia, there is no chance of him being able to survive living in Poland. As this is evident, it seems very inhumane to knowingly deport him to an environment where he will certainly not survive, due to mental illness and drug dependency.”[99]
[99]A7.
In his oral evidence, Christopher said:
“MR NIKJOO: You said you worry about him being deported from Australia. What kind of worry you have?
CHRISTOPHER OZERSKI: Oh, yes. I just fear for his life. If he goes over there, I could not see him lasting more than a few weeks or months. I don't know where he would live. I don't know how he would survive. He barely speaks the language. He won't be able to look after himself. In his mindset, he's told me that he's going over there for a few months; he's going to get accommodation, he's going to get money; he'll just travel around Poland for a while; maybe he might travel around Europe and then come back. So he's obviously a bit delusional. I just worry for his safety. I don't think he'll make it. He'll basically die if he goes over there.”[100]
[100]Transcript, 24, lines 27–36.
The Applicant’s brother Jack also provided written and oral evidence. In his written statement he said:
“I love my brother and know that because his troubled soul and damaged mind he is helpless in Australia, which is why he is continuously getting into trouble with the law. He needs serious sustained professional intervention if he is to have any chance of restoring his life and become a productive member of society.”[101]
[Errors in original]
[101]A8.
During re-examination, Jack confirmed that the family was feeling powerless about how to deal with the Applicant’s pattern of conduct. This powerlessness was expressed in the context of the Applicant’s history in Australia. It is reasonable to infer that this powerlessness will be significantly exacerbated in the event of the Applicant’s removal to Poland:
“JACK OZERSKI: So we are kind of a little bit powerless when it comes to family helping him, you know. And that’s why the only thing we can think of that may be successful is some kind of mandatory, or you know, mandatory rehabilitation, some kind of power of attorney. Something like that, so that - because he can’t make his own decisions correctly. So that’s the problem. I mean, we don’t really know what else to do as a family, you know? Like, what else can we do? He’s not - he can be - he’s had outburst of violence towards - at my mum’s house, smashing windows. And you know, we’ve got children, like you said. You know, we’ve got children. My dad’s elderly now, with dementia. We can’t - I kind of don’t really know what else we can do as a family, you know.”[102]
[102]Transcript, 83, lines 12–22.
Having regard to the evidence of the Applicant’s parents and his brothers, Christopher and Jack, we are of the view (and we find) that the strength, nature and duration of the Applicant’s ties to his immediate family members carries a certain, but not determinative, weight in favour of revocation.
2. Strength, nature and duration of “other ties” – length of residence
The first enquiry relevant to determining the extent of the Applicant’s “other ties” involves the question of how long he has resided in Australia and whether he came here as a young child. He arrived in Australia as a 4 year old. He has exclusively resided in Australia since the time of his first arrival some 36 years ago. Indeed, the movement records indicate he has never left Australian shores.
We now make specific reference to the two tempering sub-elements in paragraph 9.4.1(2)(a). With reference to the first of those tempering sub-elements, we note that the Applicant’s earliest conviction in Australia dates from June 1997 when he was aged 16 years. This is some 12 years after his arrival. It is thus unsafe to find that he began offending “soon after arriving in Australia”. There is an argument from the Respondent that the Applicant began offending soon or near after attaining the age of criminal responsibility.[103] That argument can be rejected. The Applicant had been in Australia for 12 years at this time. It is not possible to apply this first tempering sub-element against the Applicant.
[103]See Transcript, 143, lines 5–14.
With reference to the second tempering sub-element, we are required to ascertain the extent of the Applicant’s positive contributions to the Australian community. We have already found he has not had a steady work history in Australia. He has not parented Australian citizen children. We are hard-pressed to find anything material or significant referable to contributions to the Australian community. We are likewise not convinced that were he returned to the Australian community, that he would play any meaningful role in the lives of his nieces and nephews. The Applicant is not assisted by this second tempering sub-element.
To our minds, neither of these two sub-elements facilitate or otherwise temper any weight the Applicant may attain for this Other Consideration (d) on the basis of how long he has resided in Australia.
3. Strength, nature and duration of “other ties” – family and other social links
We have searched the material and cannot locate any information before the Tribunal about any “other ties” the Applicant may have with extended family members or other social links with Australian citizens, permanent residents, or people who have an indefinite right to remain in Australia. That said, in the Applicant’s PCF dated 19 September 2018, he refers to the following “close family members” in Australia who he claims are all citizens:
·1 Uncle;
·1 Aunt;
·4 Cousins.
Due to an absence of evidence from the above extended family members, we are not in a position to safely allocate any weight to the extent of the Applicant’s strength, nature and duration of ties with those people.
(2) Impact on Australian business interests
We are mindful that paragraph 9.4.2(3) compels an assessment of the Applicant’s employment links to Australia with particular reference to any impact his removal may have on “Australian business interests”. We are of the view (and we find) that this component of Other Consideration (d) is not relevant.
Weight allocable to Other Consideration 4: links to the Australian community
Referring firstly to the first part of this Other Consideration (the strength, nature and duration of the Applicant’s ties to Australia), we are of the view – after having analysed its three specific elements – that the totality of the evidence points to the allocation of a certain, but not determinative, level of weight in favour of the Applicant. The second part of this Other Consideration (impact on Australian business interests) is not relevant. Overall, the Applicant’s links to the Australian community carry a certain, but not determinative, level of weight in favour of a finding that his visa status to remain here should be restored to him.
Findings: Other Considerations
With reference to the Other Considerations contained in the Direction, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations 1 and 4, each of which weigh in favour of non‑revocation. The weight allocable to the Other Considerations (nominated in the Direction) relevant to the present matter can be summarised as follows:
(a)international non-refoulement obligations: of a certain, but not determinative weight in favour of revocation;
(b)extent of impediments if removed: of a certain, but not determinative weight in favour of revocation;
(c)impact on victims: not relevant; and
(d)links to the Australian community: of a certain, but not determinative weight in favour of revocation.
Conclusion
Is there another reason to revoke the cancellation of the Applicant’s visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or we must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted above, the Applicant does not pass the character test.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, we have had regard to the considerations referred to in the Direction. We find as follows:
·Primary Consideration 1 carries a heavy level of weight in favour of non-revocation;
·Primary Consideration 2 is not applicable;
·Primary Consideration 3 carries, at best, marginal weight in favour of revocation;
·Primary Consideration 4 weighs heavily in favour of non-revocation; and
·we have outlined the weight attributable to the Other Considerations. We do not consider that the totality of the weight attributable to the relevant Other Considerations (a), (b) and (d), even when combined with the moderate weight we have allocated to Primary Consideration 3, outweigh the significant, combined and determinative heavy weights we have attributed to Primary Considerations 1 and 4;
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the decision to cancel the Applicant’s visa.
·Consequently, we cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
Decision
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 September 2021 to not revoke the cancellation of the Applicant’s visa.
169. I certify that the preceding 168 (one hundred and sixty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis and Professor David Ben-Tovim.
................................[sgd]........................................
Associate
Dated: 21 December 2021
Date(s) of hearing: 22 & 23 November 2021 Advocate for the Applicant: Mr F Nikjoo Solicitors for the Applicant: Nikjoo Lawyers Advocate for the Respondent: Ms S Roberts with Ms M Harradine Solicitors for the Respondent Mills Oakley
ANNEXURE A
EX.
DESCRIPTION OF EVIDENCE
DATE OF DOCUMENT
DATE RECEIVED
G1
Section 501 G-Documents
(paged 1–424)Various
30 Sep ‘21
R1
Respondent’s Statement of Facts, Issues and Contentions (paged 1–20)
8 Nov ‘21
8 Nov ‘21
R2
Respondent’s Tender Bundle (paged 1–356)
Various
8 Nov ‘21
R3
Corrective Services Bundle (paged 1–689)
Various
8 Nov ‘21
R4
Agreed bundle of IHMS Records (paged 1–537)
Various
8 Nov ‘21
R5
Agreed bundle of materials before Dr Nathani (paged 1–104)
Various
22 Nov ‘21
A1
Applicant’s Statement of Facts, Issues and Contentions (paged 1–23)
20 Oct ‘21
20 Oct ‘21
A2
Australian Government Department of Human Services – Social Security Guide [10.26.1.30] ‘Social Security System in Poland’ (paged 1–2)
19 Oct ‘21
20 Oct ‘21
A3
OECD and European Observatory – State of Health in the EU: Poland – Country Health Profile 2017 (20 pages)
2017
20 Oct ‘21
A4
Notes from Poland – Stigmatisation and medication: Poland’s outdated approach to mental health (paged 1–15)
1 May ‘21
20 Oct ‘21
A5
Applicant’s Reply (3 pages)
21 Nov ‘21
15 Nov ‘21
A6
Medico-Legal Report (paged 1–46)
12 Nov ‘21
15 Nov ‘21
A7
Statement of Chris Ozerski (1 page)
12 Nov ‘21
22 Nov ‘21
A8
Statement of Jack Ozerski (1 page)
12 Nov ‘21
22 Nov ‘21
A9
Statement of Piotr and Barbara Ozerski (1 page)
12 Nov ‘21
22 Nov ‘21
A10
Statement of the Applicant (1 page)
12 Nov ‘21
22 Nov ‘21
ANNEXURE B
Administrative Appeals Tribunal
ADMINISTRATIVE APPEALS TRIBUNAL ) ) No: 2021/6691 General Division ) Re: Marciej Ozerski
Applicant
And: Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RespondentTRIBUNAL: Senior Member Theodore Tavoularis
DATE: 6 December 2021
PLACE: Brisbane
DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms the decision made by the delegate of the Respondent dated 13 September 2021 to not revoke the cancellation of the Applicant’s visa.
The Tribunal will give written reasons for this decision within a reasonable time of the decision.
[sgd] Senior Member Theodore Tavoularis
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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Natural Justice
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Procedural Fairness
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Expert Evidence
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Statutory Construction
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Remedies
1
10
0