Pajic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3794
•21 November 2023
Pajic and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3794 (21 November 2023)
Division:GENERAL DIVISION
File Number: 2023/6623
Re:Milan Pajic
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:21 November 2023
Place:Melbourne
The Tribunal affirms the reviewable decision.
.................................................................[SGD].......
Senior Member A. Nikolic AM CSC
CATCHWORDS
MIGRATION - Mandatory visa cancellation – citizen of Croatia – Class AH Subclass 101 Child visa
– multiple criminal convictions between 2009 and 2022 – whether another reason to revoke
mandatory cancellation –- Ministerial Direction no. 99 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Amendment (Aggregate Sentences) Bill 2023 (Cth)
Migration Regulations 1994 (Cth)
CASES
AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022]
FCAFC 175
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595
Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83
BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 199
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021)
287 FCR 294
CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 69
CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101
DOB18 v Minister for Home Affairs [2018] FCA 1523
Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60
Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
FCAFC 78
Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250
FYBR v Minister for Home Affairs (2019) 272 FCR 454
FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56
Ibrahim v Minister for Home Affairs (2019) 270 FCR 12
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA
1120
Marazano v Minister for Immigration and Border Protection (2016) FCA 1180
Marazano v Minister for Immigration and Border Protection (2017) 250 FCR 548
Minister for Home Affairs v Omar [2019] 272 FCR 589
Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021]
FCAFC 133
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Mouflih v Minister for Home Affairs (2019) 168 ALD 148
Murphy v Minister for Home Affairs [2018] FCA 1924
Nathanson v Minister for Home Affairs (2022) 96 ALJR 737
Pearson v Minister for Home Affairs [2022] FCAFC 203
Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497
Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219
QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA
1394
Shi v Migration Agents Registration Authority (2008) 235 CLR 286
Sorby v Commonwealth (1983) 152 CLR 281
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2021) 285
FCR 187
Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531
YKSB v Minister for Home Affairs [2020] FCAFC 224
Secondary Materials
Direction No. 99 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation
under s501 and revocation of a mandatory cancellation of a visa under s501CA
Sentencing Advisory Council (Vic), ‘Imprisonment’, (Web Page, 28 April 2022)
< Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems
Inc. 1995)
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
INTRODUCTION
The Applicant has appealed from a decision of the Respondent not to revoke the mandatory cancellation of his Class AH Subclass 101 Child Visa (“non-revocation decision”).
The hearing was held at the Tribunal’s Melbourne Registry on 14 and 15 November 2023. The Applicant was self-represented. The Respondent was represented by Mr David Brown and Mr Maximilian Plitsch from the Australian Government Solicitor.
For the following reasons the Tribunal affirms the reviewable decision.
LEGISLATIVE FRAMEWORK
The Tribunal’s jurisdiction to review non-revocation decisions is enlivened by s 500(1)(ba) of the Migration Act 1958 (Cth) (“the Act”), read in conjunction with s 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth).
Section 501(3A) of the Act obliges the Minister to cancel a visa granted to a non-citizen if satisfied that the person does not pass the character test. The ‘character test’ is defined in s 501(6) of the Act and a person does not pass it if they have a ‘substantial criminal record’. Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record. This includes if they have been sentenced to a term of imprisonment of 12 months or more.
Under s 501CA(3) of the Act the Minister must provide notice of the cancellation decision as soon as practicable and invite the affected person to respond.
Section 501CA(4) of the Act provides:
(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.
The word ‘may’ in s 501CA(4) of the Act has been interpreted to mean ‘must’.[1] A decision-maker must revoke the cancellation decision if satisfied that one of the requirements in s 501CA(4)(b) applies.
[1] Marazano v Minister for Immigration and Border Protection (2016) FCA 1180, [48] (Moshinsky J), as affirmed in Marazano v Minister for Immigration and Border Protection (2017) 250 FCR 548.
BACKGROUND FACTS
The Applicant is a 35 year old citizen of the Republic of Croatia whose parents divorced when he was 10 years’ old.[2] After their divorce he continued to live in Croatia with his mother, sister, and other relatives. His father re-partnered and migrated to Australia in December 2000.[3] The Applicant claims his mother and sister lived in Croatia until approximately three years ago,[4] then migrated to another European country. He has approximately 11 other relatives still living in Croatia and continues to communicate with several former school friends.
[2] Exhibit A1, 1.
[3] Exhibit R2, 18.
[4] Exhibit R1, 70.
The Applicant came to Australia in 2006 under the sponsorship of his father. He was almost 18 years of age on arrival and has not left Australia since.[5] His father, stepmother, an older stepbrother, and younger ‘half-brother’ continue to reside in Australia.[6] His stepbrother is married and has two young children. During his residence in Australia the Applicant has attended English classes and then worked in factory roles and as a painter.
[5] Ibid 32-37; Exhibit R1, 76.
[6] Exhibit R1, 70.
The Applicant has an extensive criminal history in Australia between 2009 and 2022.[7] This includes crimes involving violence, possession of weapons, dishonesty, breaches of conditional liberty, and possession of illicit drugs such as crystal methylamphetamine (“ice”), GHB,[8] and cannabis.
[7] Ibid 18-24.
[8] Gamma-hydroxybutyrate, commonly referred to as Fantasy, Grievous Bodily Harm, or Liquid Ecstasy.
The Applicant’s most recent convictions were in the Frankston Magistrates’ Court on 22 April 2022, for which he received several sentences of imprisonment.
On 31 May 2022, the Applicant’s visa was cancelled under s 501(3A) of the Act (“cancellation decision”).[9]
[9] Exhibit R1, 77-82.
In June 2022, the Applicant made representations to have the cancellation decision revoked.[10] He was then serving a fulltime sentence of imprisonment.
[10] Ibid 56-75.
In December 2022, the Applicant’s circumstances were impacted by the Full Court’s decision in Pearson,[11] which held that an aggregate sentence cannot be relied upon when assessing if a person has a substantial criminal record for the purpose of mandatory cancellation decisions. The Applicant was released into the community for approximately six weeks. In February 2023, however, he was notified that Parliament’s enactment of the Migration Amendment (Aggregate Sentences) Bill 2023 (Cth) had validated the cancellation decision with retrospective effect.[12] He was subsequently retaken into immigration detention where he has since remained.
[11] Pearson v Minister for Home Affairs [2022] FCAFC 203 (‘Pearson’), (Allsop CJ, Rangiah and Derrington JJ).
[12] Exhibit R1, 83-85.
On 30 August 2023, a delegate of the Minister decided not to revoke the cancellation decision.[13]
[13] Ibid 2-5.
On 7 September 2023, the Applicant asked the Tribunal to review the non-revocation decision.[14]
[14] Ibid 1.
Under s 500(6L) of the Act, the Tribunal must decide this application within 84 days of the Applicant being properly notified of the reviewable decision. If this does not occur, the decision is affirmed by operation of law. The 84th day in this matter falls on 23 November 2023, which is five working days after the hearing ended.
ISSUE
The Applicant has a substantial criminal record as defined by either s 501(7)(c) or (d) of the Act. He therefore fails the character test.[15] The statutory power to revoke the mandatory cancellation decision can only be enlivened by the Tribunal’s satisfaction that there is ‘another reason’ for doing so.[16]
[15] Pursuant to ss 501(6)(a) and 501(7)(c) of the Act.
[16] The Act, s 501CA(4)(b)(ii); Tohi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 125, [3]-[5] (Katzmann J); [24] (Derrington J) [103] (O’Bryan J).
The Full Court in Bettencourt[17] reflected with approval upon the approach taken in Viane[18] about how another reason is determined and summarised the following principles at [27]:
(1) If representations are made to the Minister, a statutory obligation arises on the part of the Minister to form a state of satisfaction as to whether the person passes the character test or there is 'another reason' why the original decision should be revoked.
(2) The state of satisfaction must be formed by reference to the representations such that a failure to consider the representations as a whole would be a failure to consider a mandatory relevant consideration.
(3) The individual matters raised in the representations are not each mandatory relevant considerations and therefore do not need to be brought to account in the making of the decision such that they must form part of the considerations that give rise to the required state of satisfaction.
(4) However, a state of satisfaction that is formed without considering a substantial or significant and clearly expressed claim made in the representations that there is a particular reason why the visa cancellation decision should be revoked is not a state of satisfaction of the kind required by the statute.
(5) Further, there must be a real and genuine consideration of each such substantial or significant and clearly expressed claim.
(6) If the state of satisfaction is formed that there is 'another reason' why the original decision cancelling the visa should be revoked then the Minister must revoke the cancellation.
[17] Bettencourt v Minister for Immigration, Citizenship, and Multicultural Affairs (2021) 287 FCR 294.
[18] Viane v Minister for Immigration and Border Protection (2018) 263 FCR 531, [64] (Colvin J).
More recently, in Plaintiff M1/2021,[19] the plurality of the High Court stated how representations made under s 501CA(4) of the Act should be approached:
22. Section 501CA(4) of the Migration Act confers a wide discretionary power on a decision maker to revoke a decision to cancel a visa held by a non-citizen if satisfied that there is “another reason” why that decision should be revoked. The statutory scheme for determining whether the decision-maker is satisfied that there is “another reason” for revoking a cancellation decision commences with a former visa holder making representations. In determining whether they are satisfied that there is “another reason” for revoking a cancellation decision, the decision-maker undertakes the assessment by reference to the case made by the former visa holder by their representations.
23. It is, however, improbable that Parliament intended for that broad discretionary power to be restricted or confined by requiring the decision-maker to treat every statement within representations made by a former visa holder as a mandatory relevant consideration. But the decision-maker cannot ignore the representations. The question remains how the representations are to be considered.
24. Consistently with well-established authority in different statutory contexts, there can be no doubt that a decision-maker must read, identify, understand and evaluate the representations…the decision-maker must have regard to what is said in the representations, bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate. The weight to be afforded to the representations is a matter for the decision-maker. And the decision-maker is not obliged “to make actual findings of fact as an adjudication of all material claims” made by a former visa holder.
25. It is also well-established that the requisite level of engagement by the decision-maker with the representations must occur within the bounds of rationality and reasonableness. What is necessary to comply with the statutory requirement for a valid exercise of power will necessarily depend on the nature, form and content of the representations. The requisite level of engagement – the degree of effort needed by the decision-maker – will vary, among other things, according to the length, clarity and degree of relevance of the representations. The decision-maker is not required to consider claims that are not clearly articulated or which do not clearly arise on the materials before them.
(Citations omitted).
[19] Plaintiff M1/2021 v Minister for Home Affairs (2022) 96 ALJR 497 (‘Plaintiff M1/2021’), [22]-[27] (Kiefel CJ, Keane, Gordon and Steward JJ).
DIRECTION 99
In considering whether to exercise the discretion in s 501CA(4)(b)(ii) of the Act, the Tribunal must comply with a ministerial direction made under s 499(1) of the Act, known as ‘Ministerial Direction 99’ (“the Direction”).[20] The Direction commenced on 3 March 2023. The Tribunal ‘stands in the shoes of the original decision-maker’[21] and determines applications based on currently available information rather than what was before an earlier decision-maker.[22]
[20] Section 499(2A) of the Act; CGX20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 69, [4] (Rares, O’Callaghan and Jackson JJ).
[21] Drake v Minister for Immigration and Ethnic Affairs (1979) 2 ALD 60 at 68 (Bowen CJ and Deane J); Shi v Migration Agents Registration Authority (2008) 235 CLR 286 at [96]-[98] (Hayne and Heydon JJ); Nathanson v Minister for Home Affairs (2022) 96 ALJR 737.
[22] AEK20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 175, [25] (Wigney, Abraham and Rofe JJ); Dzik v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 78, [10]-[11] (Logan, Perry, and Beach JJ); Frugtniet v Australian Securities and Investments Commission (2019) 266 CLR 250 at 271 [51].
The following principles at cl 5.2 of the Direction provide a framework within which decision-makers should approach their task, including whether to revoke a mandatory cancellation:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(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 noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5)With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)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 8.5(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 measureable risk of causing physical harm to the Australian community.
Clause 6 of the Direction provides that, informed by the principles in cl 5.2, a decision-maker must have regard to clauses 8 and 9, where relevant to the decision. Clause 8 of the Direction identifies the following primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)Whether the conduct engaged in constituted family violence;
(c)The strength, nature, and duration of ties to Australia;
(d)The best interests of minor children in Australia;
(e)Expectations of the Australian community.
Clause 9 of the Direction sets out a non-exhaustive list of other considerations:
(a)Legal consequences of the decision;
(b)Extent of impediments if removed;
(c)Impact on victims; and
(d)Impact on Australian business interests.
Clause 7(1) provides that appropriate weight should be given to ‘information and evidence from independent and authoritative sources’.
Clause 7(2) states that ‘Primary considerations should generally be given greater weight than the other considerations’. This does not preclude the Tribunal, however, from giving an ‘other’ consideration the equivalent of or greater weight than a primary consideration.[23]
[23] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, [23]; [28] (Colvin J).
Clause 7(3) states that ‘One or more primary considerations may outweigh other primary considerations’. The weighing process, however, is left to individual decision-makers.[24]
[24] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, [57].
EVIDENCE
In scheduling orders issued on 15 September 2023, the Applicant was given until 20 October 2023 to lodge any witness statements and other documents he intended to rely upon, but failed to do so. A case management hearing was held to enquire into his non-compliance on 24 October 2023. The Applicant stated he was still working on documents, had experienced computer connectivity issues, and could lodge his materials within two days. The Tribunal issued amended scheduling orders giving him until 26 October 2023 to lodge his documents. He again failed to do so. During oral evidence the Applicant adopted a two-page letter dated 14 September 2022 as his statement in this proceeding, which had been previously lodged with his revocation submissions.[25] Limited written submissions were therefore available in support of the grounds on which the Applicant seeks to overturn the cancellation decision. He did not call any witnesses during the hearing.
[25] Exhibit R2, 306-307.
The following documents were taken into evidence at the hearing:
(a)G-Documents lodged by the Respondent numbering 150 pages;[26] and
(b)Supplementary G-documents numbering 523 pages.[27]
[26] Exhibit R1.
[27] Exhibit R2.
Applicant’s evidence
During cross-examination the Applicant was asked questions about certain witness statements from his criminal proceedings that suggested he had engaged in drug trafficking. The Tribunal paused the proceeding to ensure the Applicant understood his privilege against self-incrimination[28] and advised him no negative inference would be drawn if he exercised his rights. The Applicant confirmed his understanding of this.
[28] Sorby v Commonwealth (1983) 152 CLR 281, 289 (Gibbs CJ) and Mason, Wilson and Dawson JJ, 309.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Clause 8.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
(2) Decision-makers should also 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.
Under cl 8.1.1 of the Direction, the following factors are to be considered in determining the nature and seriousness of the non-citizen’s criminal and other conduct to date:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197 A of the Act, which prohibits escape from immigration detention;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;
(e)the cumulative effect of repeated offending;
(f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
(g)whether the non-citizen has reoffended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen's migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
(h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
Tribunal consideration: The nature and seriousness of the conduct
Sentencing remarks of the Magistrates’ Court at Frankston dated 22 April 2022 include references to the Applicant long and persistent history of offending:
‘..it must be getting pretty plain to you by now that unless you deal with your drug issues you’re just going to end up spending longer and longer and longer in jail…
…You’re not a kid. You know your way around. You’ve got some wisdom. There’s the potential to have a really good life. But if you spend your 30s in jail you know that happens to you. You see that in those old prisoners who in their 40s, 50s and 60s who are so institutionalised that they can’t survive out of jail…
…Because you know through your own experience that if you use, things get out of control, you commit these offences, you end up in custody and the whole pattern just continues’.[29]
[29] Exhibit R1, 34-35.
The Applicant did not cavil with the accuracy of his criminal history or the sentencing remarks. He has committed over 140 crimes during the past 13 years, which fall into several categories of offending. This includes crimes involving violence, possession of controlled / prohibited weapons, illicit drugs, dishonesty, and breaches of conditional liberty. He has intentionally or recklessly caused injury, resisted or assaulted police, committed assault with a weapon, an aggravated assault against a woman,[30] and been found guilty of false imprisonment. He has frequently committed dishonesty offences and breached conditional liberty orders like bail and Community Correction Orders (“CCO”). The Applicant has also been convicted of careless driving and speeding. Other aspects of his criminal history are comparatively less serious, such as unlicenced and unregistered driving, criminal damage, tampering with a motor vehicle, refusing to provide a sample of oral fluid, and stating false details to police.
[30] Exhibit R2, 103, 106-113.
The Applicant stated during oral evidence that he stole cars for transport and then ‘ditched them’ on the side of the road. He referred to doing so in part because of the ‘adrenalin rush’. He said these thefts were committed to support his drug habit by selling items like clothes and alcohol. The Applicant explained he does not drink alcohol. He said his only other source of income was Centrelink benefits, which he estimated was $800 per fortnight.
The Applicant agreed he has been the aggressor during physical conflict with others and referred to ‘fights here and there’. He said weapons found by police were for his ‘safety’ because ‘when you use drugs you owe money and people come after you’. The Applicant agreed he was involved in assaults against two homeless people in October 2014. When asked what happened during the first of these assaults, the Applicant said the victim ‘got slapped’. He agreed that he took money from one victim, but said it was not as much as the victim claimed.[31] He denied trying to force this victim to ‘run’ drugs for him.[32] In relation to violence against a second homeless victim, the Applicant said he could not recall this because he was ‘heavy on drugs’ but accepted that he pleaded guilty to injuring the victim.[33] He also agreed that he assaulted a police officer who subsequently tried to arrest him.[34]
[31] Ibid 190 [7]-[8].
[32] Ibid 190 [9].
[33] Ibid 195-220.
[34] Ibid 48.
In addition to the Applicant’s criminal history, the Tribunal can consider ‘other conduct to date’ under this primary consideration.[35] The Applicant accepted that he drove vehicles while drug-affected and that his drug habit was more extensive than the relatively few drug-related convictions recorded in his criminal history.
[35] The Direction cl 8.1.1(1).
In terms of conduct in custodial settings, there are several positive reports about the Applicant’s behaviour and work ethic.[36] The Applicant agreed, however, that adverse incidents were also recorded against him. He recalled being ‘put in the slot’, a type of solitary confinement, on two occasions. One prison record refers to him having ’11 incidents recorded’ while imprisoned, albeit none during his most recent period of imprisonment.[37] The same record noted he was put into ‘protection’ because of ‘a few issues in mainstream’. Another record refers to the Applicant being removed from the Nicotine Replacement Therapy Program in April 2022 for suspected misuse of nicotine patches.[38] Another dated 5 June 2022 states the Applicant ‘has a bad attitude towards staff who challenge him’.[39] The Applicant agreed he had occasional disagreements with custodial staff, stating: ‘we all have bad days in prison’. He referred to an incident a week or two prior to the hearing where a fellow detainee was purportedly ‘rude and disrespectful’, which resulted in some ‘push and shove’ and the Applicant spending ‘one night in the slot’. He denied any knowledge about an assault on another detainee on 22 June 2023, despite reportedly being in the room during this incident.[40] He thought there may have been some sort of ‘argument’. The Applicant said he was falsely accused of participating in the assault despite having done nothing wrong and ‘still went to the slot’. When asked about a report relating to the theft of kitchen scales on 27 July 2023,[41] the Applicant agreed he stole the scales because another detainee needed it for ‘parts’.
[36] See for example Exhibit R2, 376-378; 381-82.
[37] Exhibit R2, 286.
[38] Ibid 375 (21/04/2022)
[39] Ibid 377 (05/06/2022).
[40] Ibid 433.
[41] Ibid 419; 436.
The Applicant denied any past involvement in selling drugs.
Tribunal findings: The nature and seriousness of the conduct
Police or custodial records routinely form part of the evidence in mandatory visa cancellation cases. They are obtained under summons and their value is tested during questioning. The Tribunal is not bound by the rules of evidence[42] and although such records may not have been substantiated in court, there is nothing preventing the Tribunal from considering them. Witnesses must be afforded procedural fairness, however, by having records put to them for response, as occurred during this hearing. As Kenny J has pointed out, however, the Tribunal should treat these contemporaneous records carefully and acknowledge the ‘limits to the material before it that was said to evidence such conduct, including its cogency and reliability’.[43] Anastassiou J has similarly expressed the need for care about ‘reaching a view that criminal conduct has occurred, absent a prosecution and conviction’.[44] Given the dearth of evidence about charges or convictions for selling drugs, the Tribunal places no weight on the witness statements referred to during the hearing suggesting the Applicant did so.
[42] AAT Act, s 33(1)(c).
[43] CVN17 v Minister for Immigration and Border Protection (2019) 163 ALD 101, [98]-[100].
[44] QDQY v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1394, [74].
Turning to the Applicant’s conduct in custody, this has generally been good although the Applicant has not been entirely compliant. The Tribunal accepts that the incidents referred to above are relatively minor, did not result in any formal charges or convictions, and reflect an environment where maintenance of a perfect conduct record is difficult. On balance, the Tribunal finds the Applicant has been generally compliant and well regarded in custody, including for his work in prison industries and in most day-to-day engagements with officers.
In terms of the relevant mandatory considerations under cl 8.1.1 of the Direction:
(a)8.1.1(1)(a): The Applicant has committed several violent crimes, including assaults in the company of others and an aggravated assault of a female.[45] Such offending is considered very serious.
(b)8.1.1(1)(b): The Applicant has committed crimes against police in the performance of their duties.
(c)8.1.1(1)(c): Sentences of imprisonment are a last resort and the most severe sanction available to the judiciary.[46] The Applicant has received increasing sentences of imprisonment in recent years. While it is accepted these have routinely been below the maximums available, periods of incarceration have not dissuaded the Applicant from relapsing into drug use and committing further crimes.
(d)8.1.1(1)(d): The Applicant has offended frequently since 2009. There is a period between 2012 and 2014 where no convictions are recorded against him, although his 2015 convictions relate to very serious violent conduct occurring in 2014. Except for 2017, the Applicant has had multiple convictions recorded yearly thereafter until 2022. His conduct has become more serious over time and the repetitive nature of many offences only adds to their overall seriousness.
(e)8.1.1(1)(e): The cumulative impact of the Applicant’s crimes since 2009 weighs heavily against him. He has adversely impacted the lives of numerous victims. Considerable law enforcement, judicial, and corrections resources have been applied to deal with the consequences of his behaviour.
[45] Exhibit R2, 102-119; 170-234.
[46] See for example: Sentencing Advisory Council, ‘Imprisonment’ <
In relation to other conduct, the Applicant’s possession and use of illicit drugs is more extensive than that solely disclosed by his criminal history. He has also driven vehicles while drug-affected, which had the potential to cause devastating consequences on other road users or pedestrians. The Applicant agrees he has outstanding infringement fines, debts from a ‘mobile phone plan’, and court warrants for driving and summary offences, which he has attempted to deal with while in custody.[47]
[47] Exhibit R2, 271 [6.1].
The Applicant’s crimes and other misconduct are characterised by their frequency, persistence, and impact upon multiple victims over a 13-year period. The totality of his offending and other misconduct is very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 8.1.2(1) of the Direction provides:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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 that it may be repeated may be unacceptable.
Clause 8.1.2(2) of the Direction states that in assessing the risk non-citizens pose to the Australian community, decision-makers must consider, cumulatively:
(a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
(i) information and evidence on the risk of the noncitizen re-offending; and
(ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk posed to the Australian community if the Applicant reoffends, taking into consideration the nature of any harm and its probability. The courts have held that past actions are legitimate predictors of future behaviour.[48]
[48] Mouflih v Minister for Home Affairs (2019) 168 ALD 148 [55], referring to Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 575); Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595 at 618 [71] - [79]; Leota v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 1120, [63]; Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v ERY19 [2021] FCAFC 133, [81].
The notion of risk and its nexus to future possibility were explored by Justice Mortimer, as her Honour then was, in Murphy:[49]
‘That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[49] Murphy v Minister for Home Affairs [2018] FCA 1924, [37]. See also her Honours remarks in Tanielu vMinister for Immigration and Border Protection (2014) 225 FCR 424.
The Applicant’s life has unfortunately involved persistent drug addiction. There are references in the evidence to his ‘daily use’ of ice over a decade,[50] and use of other drugs like GHB, cannabis, and heroin of ‘2 points per day’.[51] During the hearing, however, the Applicant denied ever using heroin, which he regards as a particularly serious drug. A prison record dated 4 May 2022 stated the Applicant was ‘excited’ by the prospect of release ‘but also anxious about…the temptations of returning to drug use’. He claims, however, that he has made positive progress regarding his addiction:
‘…I can finally say that I am clear of drugs and have been attending have completed drug and alcohol programs the Corrections Victoria has provided.
For the first time in a long time I find myself looking forward and not back. This does not mean that I have forgotten what I have done and the people I have hurt during my struggle with drug addiction. I deeply regret having done the things I have and words can not convey just how sorry I am. I would like to apologise to the people I have hurt, If only I knew who they were ...
(Errors in original.)
[50] Ibid 251; 255; 339.
[51] Ibid 236-237; 240.
The Applicant did not adduce expert evidence predictive of his recidivism risk, which would have been relevant.[52] Custodial records refer to a risk assessment in June 2022 using the Level of Service Inventory – Revised (“LSI-R”) methodology, which assessed the Applicant as a ‘Medium’ risk of reoffending.[53] The Applicant stated in written and oral submissions he does not intend to reoffend[54] and believes his past poor judgement ‘can be turned around’. He wants to become a community leader[55] by using his life story to avert others from the same path. He said that he deserves another chance and expressed an intention to ‘completely change’ if allowed to stay.[56] He expressed contrition about the adverse impact of his crimes on victims and contextualised his offending as resulting from ‘rough times’. This included his parent’s divorce, ‘growing up without a father for six years in a country…in the middle of…a civil war’, leaving his mother and younger sister behind when migrating to Australia, ‘the culture shock of starting a new life in a country on the other side of the world’, and the purported discovery that a girlfriend had an abortion without his consent.[57] The Applicant said the latter event caused him to spiral into deep depression and use illicit drugs to counter grief. In later evidence, however, he stated: ‘Maybe the baby wasn’t mine. Maybe she was lying. I don’t know’.
[52] Assistant Minister for Immigration and Border Protection v Splendido (2019) 271 FCR 595, [72] (Mortimer J).
[53] Don Andrews and James Bonta, The Level of Service Inventory–Revised (Multi-Health Systems Inc. 1995). This is an internationally validated actuarial tool used in custodial settings to assess an offender’s recidivism risk and identify their criminogenic needs.
[54] Exhibit R1, 71.
[55] Ibid.
[56] Ibid 74.
[57] Exhibit R2, 306.
The Applicant stated he has consistently been abstinent from illicit drugs while in custodial settings but agreed he relapsed and reoffended after release. He referred to past family support but said contact with his father is now ‘once in a blue moon’. He explained this is because his father is disappointed by the Applicant’s rejection of an offer about three years ago that they live and work together. The Applicant said family members in Australia had tried to support him ‘any way they could’ but ‘they don’t want to help [him] anymore because they tried to and [he] didn’t accept it’. This has resulted in continuing estrangement. The Applicant said he has not informed his family about the prospect of repatriation to Croatia and only told a few ‘associates’.
The Applicant claimed to have a job waiting for him if released and said there is nothing from a health perspective preventing his immediate return to work. He said a previous employer from 2010 to 2015 would give him a job as a painter, or he could work with friends who own motorbike and panel-beating businesses. The Applicant did not provide evidence from any potential employers. During oral evidence the Applicant said he did not pursue work with these three sources of employment during a six-week period of release in early 2023. When asked why, he said he was ‘not ready’. He claimed to be ‘100%’ certain, however, about returning to work as a painter, because his former boss had re-employed him 3 or 4 times in the past despite the Applicant having ‘messed up’.
The Tribunal notes a prison record dated 4 May 2022 that states the Applicant has nowhere to live if released and refers him to a housing intake Assessment and Planning Worker.[58] During oral evidence the Applicant said he withdrew his parole application because the house he intended to live in was occupied by someone with a criminal record and deemed unsuitable by parole authorities. The Applicant is also noted to have responded ‘No’ to questions about engagement with Alcohol and Other Drug services while in the community and stated he had no supports to assist him with drug concerns if released.[59]
[58] Exhibit R1, 277.
[59] Exhibit R2, 268 [3.5].
In terms of rehabilitation, the Applicant is recorded as telling prison staff in 2022 that ‘meth is an issue for him’ which is why he self-referred for drug and alcohol programs. He has since completed two short courses, including a ‘6 Hour Ice Effects’ program on 8 September 2022. He was noted to be ‘moderately anxious or stressed’ about relapsing into drug use and being returned to prison if released.[60] The Applicant explained during oral evidence: ‘Once you get out the craving comes back…knowing you can get it.’ He expressed determination to remain abstinent, however, because he is ‘getting older’, wants to find a partner, settle down, and have children.
[60] Ibid 276.
The Applicant expressed willingness to undertake further counselling and rehabilitation if required. When challenged that he had declined to attend interviews with a drug and alcohol psychologist in immigration detention in August and September 2023,[61] the Applicant initially claimed he was not advised about these appointments. When pressed, he changed his evidence to not attending because he could not get a certificate for use in the current proceeding, so he saw no benefit. The Applicant agreed he has been afforded several past opportunities to nudge his life in a law-abiding direction. An example is the aggregate 18-month sentence of imprisonment he received on 17 October 2018, which the Court ordered via a Drug Treatment Order (“DTO”) pursuant to s 18Z of the Sentencing Act 1991 (Vic). The Applicant was convicted on 16 January 2019 of breaching the DTO. This was subsequently cancelled, and he was required to serve the unexpired portion of his sentence. The Applicant’s lawyer also conceded during sentencing on 22 April 2022 that the Applicant breached a CCO through further offending and his participation in an alcohol and drug treatment program ‘was less than satisfactory’.[62]
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[61] Ibid 382; 484; 450-451.
[62] Exhibit R1, 32 [40].
The Applicant’s most recent categories of offending include possession of weapons, dishonesty, drug, and conditional liberty breaches. Convictions relating to actual violence are noteworthy in his criminal history in 2015, 2016, and 2020. The harm that could be caused by a repeat of the Applicant’s violent offending or while possessing a weapon, or if he again drove a vehicle carelessly, is potentially catastrophic. This is particularly so if he committed these crimes while drug affected. Significant physical or psychological injury or death could result. A repeat of the Applicant’s dishonesty offending could cause financial or psychological harm, including because of the sense of violation owners experience when vehicles or possessions are stolen from their homes.
Having regard for the longstanding persistence of the Applicant’s drug addiction and crimes, coupled with the absence of expert evidence regarding rehabilitative progress, the Tribunal is unwilling to accept that his recidivism risk can be safely disregarded. There has been little sustained interruption in his drug use and offending despite multiple rehabilitative opportunities. The Tribunal is unconvinced that the two relatively short AOD courses he completed while imprisoned have meaningfully advanced his rehabilitation. It is noteworthy that he declined to attend drug assessments with a psychologist in immigration detention during August and September 2023.[63] Any insight or rehabilitative progress he may have achieved in a controlled custodial setting is untested in the community where his aspiration to live an abstinent and law-abiding life remains unrealised. On his own evidence he has consistently relapsed and committed crimes after release. The Applicant has considerable unmet rehabilitative needs, including in relation to drug abuse, violence, and developing better strategies to live a law-abiding life. Decisions should not be delayed, however, for rehabilitation to be undertaken.[64]
[63] Exhibit R2, 450-451.
[64] The Direction, cl 8.1.2(2)(b)(ii).
The protective factors relied upon by the Applicant are somewhat unpersuasive given his claims about stable accommodation, prospects of employment, and support from prosocial peers, rest on assertion alone.[65] The Tribunal accepts the Applicant has some employable skills, including in painting, plastering, and cooking, but there is no corroborating evidence about immediately available employment as he contends.
[65] Exhibit R2, 358-59; 469.
The Applicant’s relationship with his immediate family in Australia has broken down and he did not advance a persuasive narrative about how he might restore that, achieve successful reintegration into the community, and live an abstinent/law-abiding life. It is noteworthy he withdrew his most recent parole application because the house he intended to stay at was deemed unsuitable by authorities because someone with a criminal history lived there. The Tribunal also notes that a needs assessment dated 4 May 2022 stated the Applicant has no supports in the community to assist him with drug concerns if needed.[66] This assessment scored him as falling into a ‘High’ needs category.[67]
[66] Ibid 268 [3.5].
[67] Ibid 264.
The Applicant has offended frequently and habitually throughout almost all his residence in Australia. In doing so he has caused harm to multiple victims. Any community tolerance extended because of his 17-year residence in Australia has been substantially diminished by a persistent lack of respect for Australian laws and the rights of others. He has been undeterred by the court’s corrective penalties. Multiple unsuccessful past attempts to overcome drug addiction diminish the persuasiveness of his latest claims about intending to remain abstinent and law-abiding if given another opportunity. The Applicant constitutes at least a moderate risk of resuming drug use and committing further crimes if released. This has the potential to cause significant physical, psychological and/or financial harm. The need to protect the Australian community weighs very substantially against revocation.
FAMILY VIOLENCE COMMITTED BY THE NON-CITIZEN
The evidence does not reflect any conduct falling within the meaning of this primary consideration, nor does the Respondent advance submissions in this regard. Neutral weight is therefore attributed to this primary consideration.
STRENGTH, NATURE, AND DURATION OF TIES TO AUSTRALIA
Clause 8.3 of the Direction provides:
(1) Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2) In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3) The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(4) Decision-makers must also consider the strength, nature and duration of any other ties that the non-citizen has to the Australian community. In doing so, decision-makers must have regard to:
a. The length of time the non-citizen has resided in the Australian community, noting that:
i.considerable weight should be given to the fact that a non-citizen has been ordinarily resident in Australian during and since their formative years, regardless of when their offending commenced and the level of that offending; and
ii.more weight should be given to time the non-citizen has resided in Australia where the non-citizen has contributed positively to the Australian community during that time; and
iii.less weight should be given to the length of time spent in the Australian community where the non-citizen was not ordinarily resident in Australia during their formative years and the non-citizen began offending soon after arriving in Australia.
Tribunal consideration: The strength, nature, and duration of ties to Australia
There is a reference in prison records dated 28 April 2022 about the Applicant ‘recently finding out he has a child [but] has had minimal contact up until he returned to prison’. In revocation submissions dated 7 June 2022, the Applicant made no claims about children’s interests.[68] A prison record later noted he was ‘questioning and wondering if [the child] is his [and had] blocked the mother on social media when first told’.[69] At the current hearing the Applicant disavowed having any children, claiming the mother of the child referred to during sentencing in 2022 subsequently told him the child is not his. The Applicant has also previously claimed to have a partner prior to his most recent imprisonment,[70] but similarly excluded any current romantic relationship during oral evidence.
[68] Ibid 66-69.
[69] Exhibit R2, 273
[70] Exhibit R2, 264.
The Applicant stated in revocation submissions that his father, stepmother, ‘half-brother’ and stepbrother reside in Australia.[71] He claimed during oral testimony that his stepbrother has two small children, which is the first time he has raised this issue, but said he has no contact with them. The Applicant previously claimed his family in Australia are supportive of him and ‘will be devasted and disapointed with the outcom of the s501(3A) decision as well as myself’ (sic).[72] The Applicant’s counsel in his most recent criminal matter, however, stated that his family in Australia ‘have disowned him…due to his previous behaviour’.[73] The Applicant’s oral evidence is that the relationship with his immediate family in Australia has broken down, in part because of his past unwillingness to accept their offers of support.
[71] Exhibit R1, 70.
[72] Ibid.
[73] Ibid 31 (25).
A prison note records the Applicant’s claim that he played soccer for an ethnic community club in the past ‘but stopped when started using drugs’.[74] Another record dated 4 May 2022 stated the Applicant would like to re-connect with his ethnic community ‘as he could not identify any community connections’.[75] During oral testimony the Applicant said he last attended church, played soccer, and engaged with his ethnic community prior to 2011. He said that it will take him some time after being released to earn the trust of ethnic community members ‘because people talk’ and are aware of his criminal history.
[74] Exhibit R2, 274.
[75] Ibid 375.
In terms of friends, a custodial record states the Applicant told officers he has a ‘couple of friends but does not have any contact [with them] whilst in prison – keeps outside separate’.[76] In oral evidence the Applicant said ‘there a lots of people’ who will support him, he ‘just needs to find a way to get in contact with them’. These include a former employer he worked for as a painter, and friends who run motorbike and panel-beating businesses. There are no statements from these people, however, nor did the Applicant call them as witnesses. There is also no evidence from an ‘Army veteran’ the Applicant purportedly stayed with during his six-week period of release from detention in early 2023.
[76] Ibid 272.
In terms of past work in Australia, the Applicant claims to have worked in factories and to have been a ‘SOLD TRADER’ (sic) from 2011 until 2022.[77] During the current hearing, however, he agreed the claim about being a sole trader for over a decade was untrue.
[77] Exhibit R1, 72.
In terms of positive contributions in Australia the Applicant referred to: ‘Volunteer at my local church during special ocations (sic) as: Easter, Christmas and other various ocation’ (sic).[78]
[78] Ibid 73.
Tribunal findings: The strength, nature, and duration of ties to Australia
The Applicant’s formative years until almost 18 were spent in Croatia. He has been ordinarily resident in Australia for about 17 years, which constitutes all his adult life. Considerable weight in favour of revocation accrues on this basis. He began offending within 2 or 3 years of arrival in Australia and his first conviction was on 3 July 2009. It cannot be said, however, that his offending commenced relatively soon after arrival in Australia.
The Applicant’s father is an Australian citizen.[79] Little weight is placed on his claims about the purportedly devastating consequences of a non-revocation decision on immediate family members in Australia. There is no evidence from them, and his previous lawyer stated they have ‘disowned’ him.[80] The Tribunal accepts, however, that a non-revocation decision has the potential to cause adverse emotional effects on immediate family members.
[79] Ibid 38.
[80] Ibid, 31 (25).
There is a dearth of evidence regarding the Applicant’s prosocial community links or ties to his ethnic community, or about his aspiration to become a community leader, or that members of his ethnic community would be ‘devastated and disappointed’ by a non-revocation decision.[81] There is no corroborating evidence from prosocial peers, ethnic community organisations, or others. The totality of the evidence suggests the Applicant’s community ties are very limited. It is also not possible to place much weight on the Applicant’s assertions about past positive community contributions. That said, the Tribunal accepts he has engaged in some work in the past, had some engagement with his ethnic community prior to 2011, and has some friends who may be saddened by a non-revocation decision.
[81] Exhibit R1, 71; 73.
Despite having lived in Australia for 17 years, the strength and nature of the Applicant’s ties is quite limited. On balance this consideration weighs moderately at best in favour of revocation.
BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Clause 8.4 of the Direction requires decision-makers to determine, where relevant, whether revocation is in the best interests of any minor children in Australia. This provision applies only if the child is, or would be, under 18 years old at the time when the application is decided. If there are two or more relevant children, the best interests of each child affected by the decision whether to revoke cancellation of a visa should be given individual consideration, to the extent that their interests may differ.
Tribunal consideration: Best interests of minor children in Australia
The Applicant claimed during sentencing in April 2022 that he discovered ‘not long ago’ that he has a two-year-old daughter.[82] There is a reference in a prison record dated 28 April 2022 about him ‘recently’ finding out ‘he has a child [but] has had minimal contact up until he returned to prison’. There are other references in custodial records to the Applicant claiming his daughter resides with her mother and because the Applicant grew up without his father, he ‘doesn’t want the same for his daughter’.[83] In his revocation submissions dated 7 June 2022, however, the Applicant made no claims regarding the interests of minor children.[84] A later prison record stated the Applicant is ‘questioning and wondering if [the child] is his [and had] blocked the mother on social media when first told’.[85] There is no evidence of any contact between the Applicant and a minor child. At the current hearing the Applicant disavowed having any children, claiming the mother of the child referred to during sentencing in 2022 subsequently told him the child is not his.
[82] Ibid 35 [17]-[25].
[83] Exhibit R2, 287.
[84] Exhibit R1, 66-69.
[85] Exhibit R2, 273
During oral testimony, the Applicant stated his stepbrother has two children who are 3 and 4 years of age respectively. There is no evidence from his stepbrother or other caregivers of the children to shed light on any relationship the Applicant may have with these children. The evidence instead reflects continuing estrangement with immediate family in Australia.
Tribunal findings: Best interests of minor children in Australia
On current evidence, the Applicant has no biological children in Australia.
The Tribunal is willing to accept that the interests of the Applicant’s minor niece and nephew are invoked. This is admittedly on a highly speculative basis given there is no evidence from the children’s caregivers. That said, there may be some prospect the Applicant could play a positive avuncular role in the future if he is able to repair the relationship with his immediate family, remain abstinent from drugs, and stop committing crimes. On balance, however, this primary consideration carries only very slight weight in favour of revocation.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Clause 8.5(1) of the Direction identifies the expectations of the Australian community:
(1) The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.
Tribunal consideration: Expectations of the Australian community
Clause 8.5(2) of the Direction states that visa cancellation, refusal or non-revocation may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa. Serious character concerns are raised because of conduct in Australia or elsewhere, of the following kind:
…
(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
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties…;
Clause 8.5(3) provides that the above expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community. As per cl 8.5(4), this consideration is ‘about the expectations of the Australian community as a whole’, and decision makers are to proceed based on the Government’s views as articulated in the Direction, without independently assessing the community’s expectations in each case.[86]
[86] FYBRv Minister for Home Affairs (2019) 272 FCR 454, (FYBR’), [61], [66]-[67] and [75] per Charlesworth J and [86], [97], [101] and [103]-[104] per Stewart J).
Clause 8.5(4) of the Direction correlates with the reasoning in FYBR.[87] Notwithstanding the different pathways in judicial reasoning, the plurality held that this primary consideration is a deeming provision with normative principles, ascribing to the community an expectation aligning with that of the executive government. The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[88] The majority ‘agreed the expectations of the Australian community, as expressed by the Government in the Direction, do not determine the outcome of the decision because all relevant factors have to be weighed up and considered’.[89] The High Court has refused an application for special leave to appeal from the orders in FYBR.[90]
[87] Ibid (Charlesworth J), [91] (Stewart J).
[88] Ibid [75]–[76] (Charlesworth J).
[89] Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68 (Moshinsky, Stewart and Jackman JJ), 34.
[90] FYBR v Minister for Home Affairs and Anor [2020] HCA Trans 56.
The Applicant stated during oral evidence that notwithstanding his persistent criminal conduct, he deserves another chance to remain in Australia.
The Respondent submitted that the Applicant ‘has committed a vast number of criminal offences, including violent offences, a violent offence against a woman, and an offence against a police officer in the performance of his duties’. It was further submitted by Mr Brown that the Applicant’s crimes against two homeless men in 2014 falls within the meaning of ‘vulnerable members of the community’. Finally, Mr Brown contended that the unacceptable risk of reoffending posed by the Applicant is such that the community would expect the visa should remain cancelled
Tribunal findings: Expectations of the Australian community
The Applicant has committed very serious offences over a long period of time and continues to pose a measurable risk of causing physical and other types of harm to the Australian community. In the absence of more information, however, the Tribunal does not accept that the incidents involving two homeless men injured by the Applicant in 2014 raise serious character concerns within the meaning of cl 8.5(2)(c) of the Direction. His aggravated assault of a female in 2020 and crimes against police in the performance of their duty, however, fall within the meaning of cll 8.5(2)(c)-(d) of the Direction and raise serious character concerns.
The Applicant’s persistent crimes are such that he should expect to forfeit the privilege of remaining in Australia. Notwithstanding positive aspects of his case, including his long residence in Australia, the community would expect, as a norm, that the Government would not allow him to remain here.[91] On balance, this primary consideration weighs very substantially against revocation.
[91] The Direction, cls 5.2(1)-(2).
OTHER CONSIDERATIONS
No submissions were made by the parties regarding cll 9.3 (Impact on victims), and 9.4 (Impact on business interests). Having considered the available evidence, the Tribunal agrees and does not consider these aspects of the Direction further.
Legal consequences of the decision
Clause 9.1 of the Direction states:
9.1 Legal consequences of decision under section 501 or 501CA
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen.
(2) A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3) International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
9.1.1 Non-citizens covered by a protection finding
(1) Where a protection finding (as defined in section 197C of the Act) has been made for a non-citizen in the course of considering a protection visa application made by the non-citizen, this indicates that non-refoulement obligations are engaged in relation to the non-citizen.
(2) Section 197C(3) ensures that, except in the limited circumstances specified in section 197C(3)(c), section 198 does not require or authorise the removal of an unlawful non-citizen to a country in respect of which a protection finding has been made for the non-citizen in the course of considering their application for a protection visa. This means the non-citizen cannot be removed to that country in breach of non-refoulement obligations, even if an adverse visa decision under section 501 or 501CA is made for the non-citizen and they become, or remain, an unlawful non-citizen as a result. Instead, the non-citizen must remain in immigration detention as required by section 189 unless and until they are granted another visa or they can be removed to a country other than the country by reference to which the protection finding was made.
(3) Decision-makers should also be mindful that where the refusal, cancellation or non-revocation decision concerns a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will Page 12 of 24 Direction No. 99 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations.
9.1.2 Non-citizens not covered by a protection finding
(1) Claims which may give rise to international non-refoulement obligations can also be raised by a non-citizen who is not the subject of a protection finding, in responding to a notice of intention to consider cancellation or refusal of a visa under section 501 of the Act, or in seeking revocation of the mandatory cancellation of their visa under section 501CA. Where such claims are raised, they must be considered.
(2) However, where it is open to the non-citizen to apply for a protection visa, it is not necessary at the section 501/section 501CA stage to consider non-refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non-refoulement obligations as given effect by the Act and where it is open to the person to make such an application a decision-maker, in making a decision under section 501/section 501CA, is not required to determine whether non-refoulement obligations are engaged in respect of the person. Having considered the person’s representations, the decision-maker may choose to proceed on the basis that if and when the person applies for a protection visa, any protection claims they have will be assessed, as required by section 36A of the Act, before consideration is given to any character or security concerns associated with them.
(3) Non-refoulement obligations that have been identified for a non-citizen with respect to a country, via an International Treaties Obligations Assessment or some other process outside the protection visa process, would not engage section 197C(3) to preclude removal of the non-citizen to that country. In these circumstances, in making a decision under section 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct. However, that does not mean an adverse decision under section 501 or 501CA cannot be made for the non-citizen. A refusal, cancellation or non-revocation decision will not necessarily result in removal of the non-citizen to the country in respect of which the non-refoulement obligation exists. For example, consideration may be given to removal to another country, or the Minister may consider exercising his/her personal discretion under section 195A to grant another visa to the non-citizen, or alternatively, consider exercising his/her personal discretion under section 197AB to make a residence determination to enable the non-citizen to reside at a specified place in the community, subject to appropriate conditions. Further, following the visa refusal or cancellation decision or non-revocation decision, if the noncitizen makes a valid application for a protection visa, the non-citizen would not be liable to be removed while their application is being determined.
Tribunal consideration: Legal consequences of the decision
Section 5 of the Act defines ‘non-refoulement obligations’ non-exhaustively as including Australia’s obligations as a party to certain Conventions, Protocols and Covenants, and ‘any obligations accorded by customary international law…of a similar kind to those mentioned’ in those treaties. As held in Ibrahim v Minister for Home Affairs,[92] non-refoulement obligations are ‘not confined to the protection obligations to which s 36(2) refers’.
[92] Ibrahim v Minister for Home Affairs (2019) 270 FCR 12, 35 [103].
The Tribunal must give active intellectual consideration to the Applicant’s clearly articulated representations about risk of harm, regardless of characterisation.[93] This is in the context of ‘another reason’ for revocation under s 501CA(4) of the Act, where claims are not required to meet predetermined benchmarks and can be less categorical than the more comprehensive Protection Visa assessment process under s 36A of the Act.[94] Active intellectual consideration of the Applicant’s claims requires the Tribunal to:
‘…bring their mind to bear upon the facts stated in them and the arguments or opinions put forward, and appreciate who is making them. From that point, the decision-maker might sift them, attributing whatever weight or persuasive quality is thought appropriate.’[95]
[93] YKSB v Minister for Home Affairs [2020] FCAFC 224, 5; Minister for Home Affairs v Omar [2019] 272 FCR 589, [34]–[44].
[94] The Direction, cl 9.1.2(2); Plaintiff M1/2021, [39]; Ayoub v Minister for Immigration and Border Protection [2015] FCAFC 83 [27]-[28]; Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [28].
[95] Plaintiff M1/2021, [9]; [24].
The Applicant stated in revocation submissions dated 7 June 2022 there is ‘a lot of conflict between CROATIA - SERBIA – ALBANIA and some othe (sic) countries’.[96] He referred during oral evidence to childhood experiences during the Croatian War of Independence from 1991 to 1995 (“conflict period”). Custodial records from 2022 also refer to the Applicant requesting an appointment with a Mental Health Nurse because his ‘childhood memorys (sic) are coming back’. The Applicant did not tender any corroborating evidence regarding his claims about continuing conflict between Croatia and other countries, or any expert evidence regarding a past diagnosis of PTSD,[97] or why these factors bear upon his possible removal or enliven protection obligations under the Act. When asked about his claims during the hearing, the Applicant said he had ‘seen things as a 10 year old that [he] shouldn’t have seen’. The basis of this claim remains unclear given the Applicant was between 3 and 7 years of age during the conflict period. When asked to elaborate about his experiences, the Applicant said he hid in ‘bunkers during the night’, heard ‘aeroplanes flying over houses’, and ‘gunshots’, which still cause him nightmares. The Applicant agreed, however, that he has never received a formal diagnosis for any psychological condition or counselling or medication. He claimed to have seen a psychiatrist once ‘maybe 4 or 5 years ago’ as part of a corrections order, who purportedly told him he ‘was probably suffering from PTSD’ but had not followed up on this. He expressed an intention to do so if released.
[96] R1 74.
[97] Ibid 73.
Tribunal findings: Legal consequences of the decision
The Tribunal is satisfied the country of reference is Croatia, which has been a member state of the European Union (“EU”) since 1 July 2013. Although the Applicant has not returned to Croatia for 17 years, no claim is made that he could not be returned.
The Applicant’s visa cancellation rendered him an unlawful non-citizen within the meaning of s 14 of the Act. In the event of non-revocation, he would continue to be detained under s 189 of the Act until it was reasonably practicable to remove him to Croatia or he was granted another visa.[98] Because of the operation of s 501E of the Act, he would be prevented from applying for visas other than a Protection Visa or a Bridging R (Class WR) Visa, pursuant to reg 2.12AA of the Migration Regulations 1994 (Cth).
[98] The Act, s 196.
There is no evidence about how the process of removal to Croatia may evolve, but there is no evidence it is not reasonably practicable. The course of events after a non-revocation decision are uncertain, including because an applicant may appeal to the Federal Court, lodge a Protection Visa application, or ask the Minister to consider the exercise of a non-compellable discretion.[99] Detention of a non-citizen is permissible while such applications are considered. Other factors that can influence the course of future events include rapidly changing circumstances in a receiving country, a request for voluntary removal, or the possibility of third-country relocation. There is no evidence regarding what the Applicant may do in the event of an adverse decision, or about any of these options. The Tribunal is not required to speculate[100] and respectfully adopts the reasoning in Aliv Minister for Immigration and Border Protection (“Ali”):[101]
‘The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4). No matter how real the prospect may be of future decisions being impacted upon by the adverse assessment made by the Assistant Minister on 25 October 2017 for the purposes of s 501CA(4)(b)(i), the power exercised on that date was to be exercised – and was in fact exercised – by reference to the facts and circumstances then prevailing...’
[99] For example, under s 195A or s 197AB of the Act. Plaintiff S4/2014 v Minister for Immigration and Border Protection (2014) 253 CLR 219; Minister for Immigration and Border Protection v SZSSJ (2016) 259 CLR 180, 191 [16].
[100] BFMV v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 199.
[101] [2018] FCA 650.
In DOB18 v Minister for Home Affairs at [35], Griffiths J reflected favourably on the reasoning in Ali and similarly cautioned against speculating about the course of future decision-making:[102]
…Justice Flick’s reasoning in Ali was adopted and applied by Logan J in Greene at [19] and by Farrell J in Turay at [40]…Contrary to the applicant’s submissions, I do not consider that the reasoning in this trio of cases is plainly wrong. Indeed, I consider that it is plainly correct. In my respectful view, it properly recognises the importance of the different stages of decision-making under the Act and the need to avoid speculation as to what might or might not occur in future decision-making...
[102] [2018] FCA 1523.
The Applicant is eligible to apply for a Protection Visa. If he did and the application is rejected, he would be on a pathway to removal as soon as reasonably practicable.[103] If his claims were accepted however, s 197C(3) of the Act provides that s 198 does not require or authorise removal of a person for whom a protection finding is made. Irrespective of the course of future events, however, non-revocation would represent a significant, adverse outcome for the Applicant. It gives rise to the prospect of removal, possible deterioration of his mental health, and adverse emotional effects for those closest to him in Australia.
[103] The Act, s 198(2B).
The Applicant’s current claims are very general, uncorroborated, and relate to purported experiences as a child over 30 years ago. The Applicant accepted during the hearing that much has changed in Croatia and Europe since the conflict experiences he invokes. He is a Croatian citizen, born of Croatian parents, and lived in Croatia until almost the age of 18. This is about 11 years after the end of hostilities in the Former Yugoslavia. His passing references to unfamiliarity with life in Croatia, a dearth of familial or other contacts, and uncertainty about how to access comparable support, do not rise to the level of non-refoulement claims. They are more relevant to Extent of impediments if removed, which is next considered. The Tribunal finds that the claims currently advanced by the Applicant do not enliven this consideration, which carries neutral weight.
Extent of impediments if removed
Tribunal consideration: Extent of impediments if removed
Clause 9.2(1) of the Direction provides:
(1) Decision-makers must consider 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 substantial language or cultural barriers; and
c) Any social, medical and/or economic support available to them in that country.
The Applicant is currently 35 years of age. In terms of health, he stated in revocation submissions dated 7 June 2022: ‘My psyc state’s tha i suffer from PTSD’ (sic).[104] There are also references in evidence to high blood pressure for which he takes medication. Some custodial records, however, record the Applicant’s claims that: ‘his physical and mental health are in good order’, that he has no medical condition or disability requiring support, and had ‘not seen a Dr in years’.[105] During oral testimony the Applicant agreed he has not received a formal diagnosis for PTSD, nor has he followed up the single consultation he claims to have had with a psychiatrist some years ago. The Tribunal notes a passing reference to PTSD by a counsellor in immigration detention in April 2023,[106] but there is no evidence this person has any diagnostic qualifications. Nor is it clear what this passing reference is based on. Moreover, the accuracy of this report is questionable given it refers to the Applicant wanting to ‘resume his life with his mother in AU…’ yet his mother has never been to Australia. Other references to PTSD also seem to be entirely based on the Applicant’s claims or the earlier counsellor report.[107]
[104] Ibid 73.
[105] Exhibit R2, 270.
[106] Ibid 468.
[107] Ibid 522; 239; 242; 255; 361; 371.
The Applicant’s migration application for Australia stated he was a Croatian citizen, spoke Croatian fluently, and could also speak, read, and write fluently in Serbian.[108] In his oral evidence he stated that these skills have somewhat diminished over the years and he sometimes mixes English words into his speech.
[108] Ibid 3.
The Applicant’s evidence is that he has worked in Australia in factories and as a painter and plasterer.[109] There is no corroborating evidence from employers, however, or those who have used his services. The Applicant referred during the hearing to a passion developed for cooking while in prison, which he intends to pursue. He said that he was promoted to ‘head cook’ because of his efforts.
[109] Exhibit R1, 72.
The Applicant said all his support are in Australia and he has none in Croatia. A prison summary dated 3 December 2022 records the following claim from the Applicant: ‘Milan states that his family is most all over seas, (Croatia), and struggles to keep in contact with them’.[110] In his oral evidence the Applicant said his sister and mother moved to Norway ‘3 or 4 years ago’ after his sister married. There is no evidence, however, from family members or other sources of prosocial support in Australia, Croatia, or Norway. The Applicant said he is still in contact through social networking with some school friends overseas, including in Croatia, but does not believe he can count on them for any support. He fears homelessness if repatriated and compared his access to work, benefits, and opportunities in Australia with an unfamiliar environment in Croatia.
[110] Exhibit R2, 282.
Tribunal findings: Extent of impediments if removed
The Applicant’s place of habitual former residence until almost 18 years of age was Croatia. He speaks Croatian, Serbian, and English. No substantial language or cultural barriers are disclosed.
There is no expert corroboration for the Applicant’s purported consultation with a psychiatrist some years ago, or that the psychiatrist suggested he may have PTSD. There is no evidence of any treatment or medication provided for PTSD, nor was any claim made regarding treatment for PTSD being unavailable in Croatia.
The Applicant’s painting, plastering, cooking and other past work skills appear transferrable to the Croatian labour market. He expresses an immediate desire to return to work and stated there is no impediment to him doing so. The Tribunal considers he has some prospects of employment if repatriated to Croatia.
There is no corroborating evidence about the Applicant’s family or other prosocial links in Australia or Croatia who may be able to provide him with practical, financial, or emotional support if returned. His mother and sister purportedly live in Norway, while other more distant relatives continue to live in Croatia. The Applicant referred to some school friends overseas, including in Croatia, that he remains in contact with. The ability or willingness of family or friends to provide the Applicant with support until he re-establishes himself is untested. There is no evidence that if he needed it, however, the Applicant would not have the same entitlement to healthcare and other support services available to Croatian citizens who meet relevant prerequisites. The Applicant’s passing references to the difference in opportunity and entitlements in Australia and Croatia is not the test under the Direction. This relates to a non-citizen’s ability to establish themselves and maintain basic living standards ‘in the context of what is generally available to other citizens of that country’ – not by comparison with what is available in Australia.
The Tribunal accepts that after living in Australia for the last 17 years, without returning to Croatia, the Applicant would be confronted by impediments in locating stable accommodation, work, and accessing social, medical, and/or economic support. This includes because his removal from Australia would follow a relatively lengthy period in custodial settings. Relapse into drug addiction or offending would also likely bring him to the attention of Croatian authorities. That said, he is relatively young, speaks English, Croatian, and Serbian, and has some employable skills. He also maintains some contact with school friends overseas, including in Croatia, who may be sources of prosocial support. The totality of the evidence nevertheless supports a reliable finding that the Applicant would be confronted by practical, financial, and emotional hardship in trying to re-establish a life for himself in Croatia. This cannot be underestimated but is not insurmountable. On balance, this consideration weighs no more than moderately in favour of revocation.
Impact on victims
Clause 9.3(1) of the Direction states:
Decision-makers must consider the impact of the 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 are undoubtedly numerous victims of the Applicant’s past crimes, but no evidence about the impact of a decision in this matter on victims or their family members. This consideration is not enlivened and carries neutral weight.
Impact on Australian business interests
Clause 9.4 provides that a decision-maker must have regard to any impact on Australian business interests if the non-citizen is not allowed to remain in Australia. There is no evidence that Australian business interests are enlivened within the meaning of the Direction and this consideration carries neutral weight.
CONCLUSION AND DECISION
The Applicant does not pass the character test. In determining whether there is ‘another reason’ for revocation, the Tribunal has applied the Direction to the specific circumstances of his case. There is no reason, on these facts, to depart from the guidance in the Direction that greater weight ‘should generally be given’ to the primary considerations.
The Applicant has committed multiple crimes in the 13 years since 2009, which have adversely impacted the lives of numerous victims. Considerable law enforcement, judicial, and corrections resources have been applied to address the consequences of his conduct. His reference to difficult life circumstances is unpersuasive. Many people experience parental divorce, relationship problems, or adaptation challenges in a new country without committing persistent crimes for over a decade. He has continued to reoffend despite multiple rehabilitative opportunities and there is no independent corroboration of the protective factors he currently invokes.
Any insight or rehabilitative progress the Applicant may have achieved in a controlled custodial setting is untested in the community where his intention to remain abstinent and law-abiding remains unrealised. He has considerable unmet rehabilitative needs relating to drug addiction and anger. He continues to pose a measurable risk of causing physical and other types of harm to the Australian community, such that he should expect to forfeit the privilege of remaining in Australia.
The Applicant’s formative years almost to the age of 18 were spent in Croatia and he began offending within a few years of arrival in Australia. Much of his stay here is contextualised by persistent crimes, periods of conditional liberty, imprisonment, or immigration detention. Considerable weight nevertheless accrues in favour of revocation on the basis that he has been ordinarily resident in Australia for all his adult life. There is a dearth of evidence about the Applicant’s prosocial support in Australia and the totality of the evidence reflects quite limited ties. The Applicant has made a limited positive contribution to Australia through work and somewhat dated engagement with his ethnic community.
The Applicant is currently 35 years old, and no substantial language or cultural barriers are evident. There is no expert corroboration of the PTSD he claims a psychiatrist referred to during a single consultation some years ago. Other custodial records refer to his physical and mental health being ‘in good order’, no medical condition or disability requiring support, and that he has ‘not seen a Dr in years’. The Applicant refers to considerable past work experience in Australia and there is no evidence his skills are not transferable to Croatia. He referred to continuing contact with some school friends overseas, including in Croatia, and has 11 other more distant relatives who live there. There is no evidence that if he needed it, the Applicant would not have the same entitlement to healthcare and support services available to other Croatian citizens.
The Tribunal accepts that after living in Australia for the last 17 years, the Applicant would be confronted by challenges in re-establishing himself. This includes finding stable accommodation, employment, and accessing social, medical, and/or economic support, without close family assistance. Any relapse into drug addiction or offending, which the Tribunal considers there is at least a moderate risk of, would also likely bring the Applicant to the attention of Croatian authorities. That said, the Applicant is relatively young, speaks several languages and has employable skills. It may be that a new life in Croatia may be the circuit-breaker he needs to make more meaningful changes in his life.
Having weighed all the relevant considerations individually and cumulatively, the Tribunal is not satisfied there is another reason to revoke the cancellation decision. That is because the primary considerations Protection of the Australian community and Expectations of the Australian community, substantially outweigh the primary considerations Strength, nature and duration of ties, Best interests of minor children, and the other countervailing consideration.
It follows that the Tribunal affirms the reviewable decision.
I certify that the preceding 118 (one hundred and eighteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC
…………[sgd]……………………….
AssociateDated: 21 November 2023
Date of hearing: 14 and 15 November 2023 Advocate for the Applicant: Applicant, In person Advocates for the Respondent: Mr David Brown and Mr Maximilian Plitsch Solicitors for the Respondent: Australian Government Solicitor
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