Paszkiewicz and Minister for Immigration and Border Protection (Migration)

[2018] AATA 691

Paszkiewicz and Minister for Immigration and Border Protection (Migration) [2018] AATA 691 (27 March 2018)

Division:GENERAL DIVISION

File Number(s):      2018/0060

Re:Bartlomiej Paszkiewicz

APPLICANT

AndMinister for Immigration and Border Protection

RESPONDENT

DECISION

Tribunal:Senior Member D. J. Morris

Date:27 March 2018

Place:Melbourne

The Tribunal affirms the decision under review.

...........................[sgd].............................................

Senior Member D. J. Morris

Catchwords

MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of minor children in Australia – expectations of Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision affirmed

Legislation

Migration Act 1958 (Cth), ss 499, 500, 501, 501CA

Cases

Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 338
Re Gordon and Minister for Immigration and Border Protection [2018] AATA 39

Secondary Materials

Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member D. J. Morris

27 March 2018

1. Mr Bartlomiej Paszkiewicz (the Applicant) was born in Poland in October 1976 and is a citizen of that country. He arrived in Australia with his family on 31 October 1985. He held a Class BF Subclass C Transitional (Permanent) visa until 16 September 2015 when the Department of Immigration and Border Protection (now the Department of Home Affairs) cancelled that visa under section 501(3A) of the Migration Act 1958 (the Act).  The visa was cancelled because a delegate of the Minister for Immigration and Border Protection (the Respondent) was satisfied that Mr Paszkiewicz did not pass the character test. By operation of section 501(6)(a) of the Act, a person does not pass the character test if that person has a substantial criminal record. ‘Substantial criminal record’ is defined in section 501(7)(c) to include a person who has been sentenced to more than 12 months of imprisonment. At the time of cancellation, the Applicant was serving a sentence of full-time imprisonment for a criminal conviction.

2. On 3 January 2018 a delegate of the Respondent made a decision to refuse to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4) of the Act. The Applicant has asked the Tribunal to review this decision.

3. The Respondent contended that Mr Paszkiewicz has a ‘substantial criminal record’ under section 501(6)(a) of the Act. Counsel for Mr Paszkiewicz conceded in submissions that the Applicant does not pass the character test set out in the Act.

4. The hearing was held on 16 March 2018.  The Applicant was represented by Ms Georgina Costello, of counsel.  The Respondent was represented by Ms Laura Crick.  Mr Paszkiewicz gave evidence and was cross-examined.  A number of the Applicant’s family members also gave evidence as did Mr Patrick Newton, clinical and forensic psychologist. 

5. The Respondent tendered a volume of documents under section 501G of the Act (GD), which were taken into evidence.  The Tribunal also had before it Statements of Facts, Issues and Contentions from both the Applicant and the Respondent.  Other documents were also admitted into evidence.

   Issues and Legislation

6. Section 501CA(4) of the Act provides that the Minister may revoke the mandatory visa cancellation if two conditions are satisfied. The first condition requires that the Applicant make representations within the relevant time period (28 days under regulation 2.52 of the Migration Regulations 1994). The second condition is satisfied if the Tribunal determines that the Applicant passes the “character test” or alternatively, there is another reason why the mandatory cancellation decision should be revoked. It was not disputed before the Tribunal that Mr Paszkiewicz made representations within the relevant time period (G2).

7. Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:

   (a)       the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or

   (ii)      …; and

   (b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.

8. Before the Tribunal was a National Police Certificate dated 29 September 2017 (G3). This document recorded that Mr Paszkiewicz had appeared before the Melbourne County Court on 27 May 2009 and pleaded guilty to one count of causing serious injury by driving a motor vehicle in a dangerous manner.  The reasons of sentence of His Honour Judge Gullaci were in evidence (G3, p 44).  In those reasons at [20] the Court sentenced the Applicant to a 35-month term of imprisonment which was wholly suspended for three years.

9. The reasons for sentence of her Honour Judge Sexton when Mr Paszkiewicz appeared before the Melbourne County Court on 21 December 2012 were also before the Tribunal (G3, p 34).  At the 2012 court hearing, the Applicant pleaded guilty to armed robbery, and to breaching the earlier suspended sentence.  Her Honour restored the 3-year suspended prison term and imposed a 3-year sentence for armed robbery.  Mr Paszkiewicz received a total effective sentence of 5 years and 2 months of imprisonment (G3, p 42).  Her Honour directed that a minimum of three years be served before the Applicant became eligible for parole.

10. Sections 501(6)(a) and 501(7)(c) of the Act state that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.

11. Section 501CA then relevantly provides that:

    (1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.

    …

    (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.

12. Section 501(6) sets out the grounds for failing the character test.  It states, in part:

    (6)For the purposes of this section, a person does not pass the character test if:

    (a)The person has a substantial criminal record (as defined by subsection (7); or…

13. Section 501(7) states, relevantly in this matter, in setting out what a substantial criminal record is:

    (7)For the purposes of the character test, a person has a substantial criminal record if:

    …

    (c)the person has been sentenced to a term of imprisonment of 12 months or more…

14. The Tribunal had (G3) a National Police Certificate which set out the offences in the name of the Applicant:

COURT	COURT DATE	OFFENCE	COURT RESULT
Dandenong Magistrates Court	27 Jun 2013	Knowingly deal with proceeds of crime	1 month imprisonment concurrent.
Dandenong Magistrates Court	8 Feb 2013	Theft (2 charges) Att. Burglary Burglary (2 charges) Attempt theft Theft- from shop (shopsteal) Contravene fam violence intervention order Contravene fam violence final intervention order Att. Burglary Possess drug of dependence – prescription drug	Aggregate 18 months imprisonment concurrent Aggregate 18 months imprisonment concurrent Aggregate 18 months imprisonment concurrent
Dandenong Magistrates Court	8 Feb 2013	Retention of stolen goods Deal property suspected proceeds of crime Possess cannabis	Aggregate 18 months imprisonment concurrent. Aggregate 18 months imprisonment concurrent. With conviction, fined $200
Melbourne County Court	21 Dec 2012	Armed robbery Handle/receive/dispose of stolen goods Deal property suspected proceeds of crime Breach re 27/05/2009 drive manner dangerous cause serious injury Breach re 27/05/2009 drive whilst authorisation suspended	36 months imprisonment 20 months imprisonment, 14 months of sentence concurrent. 6 months imprisonment concurrent Breach of suspended sentence. Sentence reinstated. 35 months imprisonment. Breach of suspended sentence. Sentence reinstated. 4 months imprisonment. 3 months of sentence concurrent. 16 months of sentence concurrent with other order this day.
Dandenong Magistrates Court	18 Mar 2010	Variation re 18/03/2008 Burglary (8 charges) Theft (9 charges). Deal property suspected proceeds of crime (2 charges) Possess controlled weapon without excuse (2 charges). Attempt to commit indictable offence. Theft of a motor vehicle (2 charges). Go equipped to steal/cheat (2 charges). Intentionally cause injury (2 charges). Recklessly cause injury (2 charges). Unlawful assault (2 charges). Theft from motor vehicle. Drive whilst authorisation suspended (2 charges). Carry controlled weapon without excuse. Careless driving. Possess cannabis.	Treatment and supervision and custodial part of drug treatment order cancelled.
Melbourne County Court	27 May 2009	Drive manner dangerous cause serious injury. Drive whilst authorisation suspended.	35 months imprisonment. Sentence suspended for 3 years under section 27 of Sentencing Act. Licence cancelled and disqualified for 3 years. 4 months imprisonment. 3 months of sentence concurrent. Sentence suspended for 3 years under section 27 of Sentencing Act.
Dandenong Magistrates Court	18 Mar 2008	Burglary (8 charges). Theft (9 charges). Deal property suspected proceeds of crime (2 charges). Possess controlled weapon without excuse (2 charges). Attempt to commit indictable offence. Theft of a motor vehicle (2 charges). Go equipped to steal/cheat (2 charges). Intentionally cause injury (2 charges). Recklessly cause injury (2 charges). Unlawful assault (2 charges) Theft from motor vehicle. Drive whilst authorisation suspended (2 charges). Carry controlled weapon without excuse. Possess cannabis	Aggregate 20 months imprisonment. Sentence of imprisonment to be served by way of drug treatment order under section 18Z of the Sentencing Act 1991. Convicted and fined $70.
Dandenong Magistrates Court	8 Feb 2007	Possess amphetamine. Possess cannabis. Possess a drug of dependence. Possess controlled weapon without excuse (5 charges). Use cannabis.	On each charge: aggregate 6 months imprisonment concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 12 months. On each charge: aggregate 6 months imprisonment concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 12 months. With conviction, fined $300.
Sale Magistrates Court	4 Apr 2005	Attempt to send anything into a prison. Possess cannabis	3 months imprisonment concurrent. Sentence is wholly suspended under section 27 of the Sentencing Act 1991 for 12 months. With conviction, fined $200.
Frankston Magistrates Court	14 Oct 2003	Go equipped to steal/cheat. Possess controlled weapon without excuse. Loiter with intent to commit indictable offence. Possess property being proceeds of crime.	Aggregate 3 months imprisonment concurrent. Aggregate 3 months imprisonment concurrent. Aggregate 3 months imprisonment concurrent.
Ringwood Magistrates Court	4 Aug 2003	Theft from shop (shopsteal) (2 charges). Burglary (3 charges). Theft. Att. Burglary. Possess property being proceeds of crime. Theft.	Aggregate 2 years imprisonment concurrent. Aggregate 2 years imprisonment concurrent. Aggregate 2 years imprisonment concurrent. Pay compensation $3100.
Melbourne Magistrates Court	15 Mar 2002	Variation re 17/08/1998 careless driving exceed indicated speed in speed zone.  Exceed prescribed concentration 3 hrs-blood.	In default of payment of $1000 to be imprisoned for 10 days.
Dandenong Magistrates Court	30 Jan 2001	Act prejudicial good order/management gaol.	With conviction, fined $300.
Dandenong Magistrates Court	24 Jan 2001	Burglary Theft (7 charges). Burglary (6 charges). Possess property being proceeds of crime. Fail to answer bail. Att. Burglary.	Aggregate 21 months imprisonment concurrent. Aggregate 21 months imprisonment concurrent. Effective total state term imposed is 1 year 9 months. Non-parole period fixed at 15 months.
Dandenong Magistrates Court	1 Dec 1998	Breach of suspended sentence order. Breach re 15/12/1997 obtain property by deception.	Breach of suspended sentence admitted. Suspended sentence wholly restored. The restored term to be served is 4 months.  This restored suspended sentence is to be served concurrently with a 12 month sentence the defendant is presently undergoing.
Dandenong Magistrates Court	17 Aug 1998	Use heroin (2 charges). Unlawful assault. Escape from lawful custody. Theft (6 charges). Unlawful possession. Intentionally damage property. Possess heroin. Theft of a motor vehicle (2 charges). Go equipped to steal/cheat. Theft. Burglary. Theft of a motor vehicle. Obtain property by deception. Theft of a motor vehicle. Burglary. Burglary. Burglary. Careless driving. Exceed indicated speed in speed zone. Exceed prescribed concentration 3 hrs-blood.	Aggregate 12 months imprisonment concurrent. On each charge: aggregate 12 months imprisonment concurrent. Licence cancelled and disqualified for 18 months. Aggregate 12 months imprisonment concurrent. Aggregate 12 months imprisonment concurrent. Pay compensation $50. Aggregate 12 months imprisonment concurrent. Pay compensation $3,839. Aggregate 12 months imprisonment concurrent. Licence cancelled and disqualified for 18 months. Pay compensation $3000. Aggregate 12 months imprisonment concurrent. Aggregate 12 months imprisonment concurrent. licence cancelled and disqualified for 18 months. Pay compensation $425.00 Aggregate 12 months imprisonment concurrent. Pay compensation $4800. Aggregate 12 months imprisonment concurrent. Pay compensation $250. Aggregate 12 months imprisonment concurrent. Pay compensation $600 With conviction, fined an aggregate of $1,000.
Dandenong Magistrates Court	15 Dec 1997	Obtain property by deception. Theft. Breach of community based order.	4 months imprisonment. Sentence suspended for 24 months under section 27 of Sentencing Act. Convicted and fined $500. To pay $1,050 compensation and $48.50 costs. Convicted and fined $500.
Ringwood Magistrates Court	8 May 1997	Handle/receive/retention of stolen goods. Possess regulated weapon. Handle/receive/retention of stolen goods. Breach re 13/11/1996. Theft. Burglary.	1 month imprisonment. Convicted and fined $600. Convicted and fined $300. Breach of suspended sentence. Sentence partially re-instated. 1 month imprisonment on each charge concurrent.
Dandenong Magistrates Court	13 Nov 1996	Theft. Burglary. Burglary (2 charges). Theft (2 charges). Theft of a motor vehicle (5 charges). Go equipped to steal/cheat.	4 months imprisonment on each charge, concurrent sentence suspended for 12 months under section 27 of the Sentencing Act. All charges convicted. Community based order for 12 months to perform 180 hours unpaid community. Licence cancelled and disqualified for 6 months.
Ringwood Magistrates Court	2 Sep 1996	Drunk in a public place. Behave in offensive manner in public place.	Both charges without conviction fined aggregate $50 heard ex parte.
Lilydale Magistrates Court	26 Mar 1996	Fail to answer bail. Use drug of dependence. Possess drug of dependence.	Both charges without conviction, adjourned to 1.3.97. Both charges without conviction, adjourned to 1.3.97
Ferntree Gully Childrens Court	13 Oct 1993	Burglary	Without conviction adjourned for 12 months on $200 good behaviour bond.  To pay $100 to court fund.
Ferntree Gully Childrens Court	21 July 1993	Theft of a motor vehicle. Drive outside conditions of learner permit.	Both charges without conviction dismissed on entering an accountable undertaking for 6 months.

1. On the basis of the evidence in the National Police Certificate and the reasons for sentence given on 21 December 2012, the Tribunal finds that the Applicant fails the character test by virtue of his substantial criminal record as defined in the Act.

2. The sole issue before the Tribunal, therefore, is whether there is another reason why the original decision should be revoked.  Relevantly, North ACJ stated in Gaspar v Minister for Immigration and Border Protection [2016] 153 ALD 338 at [345]:

   The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation.  If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view.  There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…

   Direction No. 65

3. Section 499(1) of the Act provides that the Minister may give directions about the exercise of functions or powers under the Act. On 22 December 2014, the then Minister made Direction No. 65 (the Direction) and it came into operation on 23 December 2014.  

4. The Tribunal must, under section 499(2A) of the Act, comply with the Direction in considering this matter. Paragraph 6.1 of the Direction states, in part:

   6.1Objectives

   (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.

   …

   (3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.

5. Relevantly, the Direction includes the following principles at paragraph 6.3:

   (1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia.  Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

   (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

   (3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.

   (4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable.  In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing a visa.

   (5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

   (6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

   (7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.

1. In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into primary considerations and other considerations.

2. The primary considerations in Part C are set out in paragraph 13:

   ·    Protection of the Australian community;

   ·    The best interests of minor children in Australia affected by the decision; and

   ·    Expectations of the Australian community.

3. Other considerations set out in paragraph 14 of the Direction are:

   ·   International non-refoulement obligations;

   ·   Strength, nature and duration of ties;

   ·   Impact on Australian business interests;

   ·   Impact on victims; and

   ·   Extent of impediments if removed.

4. The Direction sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (paragraphs 8(4) and 8(5)).

   The Applicant’s contentions

5. The Applicant submitted that, notwithstanding the seriousness of his past offences, the Tribunal should find that there is another reason why the mandatory visa cancellation decision should be revoked.  Ms Costello argued that Mr Paszkiewicz has two young Australian citizen children who need his care and support. They would be adversely affected if the decision was not revoked.  Ms Costello also submitted that his many family members in Australia and his fiancée would also be adversely affected.  She drew the Tribunal’s attention to the fact that the Applicant’s parents are both elderly and his father is suffering from a terminal disease and, as such, would not be able to visit his son should he be removed to Poland.

6. Ms Costello further contended that, because Mr Paszkiewicz has been in this country for more than 30 years, a greater degree of tolerance should be extended to him than would otherwise be the case and that his return to Poland would be ‘a particularly harsh consequence’.

7. Ms Costello accepted that between July 1993 and June 2013, Mr Paszkiewicz was convicted of over 80 offences.  It was submitted to the Tribunal that he has matured since serving a lengthy term of imprisonment and being punished for his crimes.  He ‘now stands rehabilitated and drug free’, according to Ms Costello.  She submitted that the Applicant’s prospects of reoffending are ‘low’ because he has strong family support and a committed romantic partner.  In addition to this, Ms Costello led evidence that the Applicant will have a secure job upon release from detention. 

8. Ms Costello drew the Tribunal’s attention to a number of testimonials and reports from corrective service officers and other persons regarding Mr Paszkiewicz’s conduct while in prison.  In particular a statement from Brett Woods, Salvation Army officer (G3, p 115), stated that he had seen a change in the Applicant’s outlook on life and his future life choices.  Megan Cameron, a correctional officer, reported (G3, p 116) that Mr Paszkiewicz had completed an intensive 100 hour program which targets general offending and uses treatment methods known to be effective in reducing recidivism.  Ms Cameron reported she found the Applicant polite, considerate and thoughtful in his behaviour while in prison.

9. The Tribunal had before it urinalysis reports which consistently returned negative results for any unauthorised drug (bar Methadone which was a prescribed treatment).

10. Ms Costello reminded the Tribunal that the Applicant immigrated to Australia when aged 9 and that he is now aged 41.  The Tribunal heard evidence that Mr Paszkiewicz had around 70 family and extended family members in Australia.  His parents, other members of his family and family friends were present at the hearing in his support.

11. Ms Costello submitted to the Tribunal that Mr Paszkiewicz has two minor Australian citizen children, a son born in 2005 and a daughter born in 2009.  Until he separated from their mother in 2011, the Applicant was highly involved in their lives and seeks to re-establish contact on release from incarceration.  Ms Costello also drew the Tribunal’s attention to the remarks of Deputy President McCabe in Re Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23]:

    A decision-maker is, to some extent, required to guess at the community’s expectations…as I begin my deliberations, I assume the Australian community would be fair-minded and mature…the community would certainly not be vengeful.  The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment.  I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.

12. Counsel for the Applicant also drew the Tribunal’s attention to the recent decision by Deputy President Boyle in ReGordon and Minister for Immigration and Border Protection [2018] AATA 39. The facts in that case had some similarity to this matter because the offending also stemmed from drug use.

    The Respondent’s contentions

13. For the Minister, Ms Crick submitted that the mandatory visa cancellation should not be revoked.  Ms Crick submitted that Mr Paszkiewicz has been convicted of violent criminal offences on at least seven occasions.  Those offences included armed robbery (whilst he was subject to a suspended sentence), unlawful assault, recklessly causing injury and driving in a dangerous manner causing serious injury.

14. Ms Crick submitted that Mr Paszkiewicz has been before the courts on 28 occasions in relation to more than 80 offences and sentenced to terms of imprisonment on 18 occasions.  It was further contended that his offending has demonstrated a frequent and sustained pattern of offending.

15. Ms Crick drew particular attention to the fact that previously, the Applicant has been warned about the consequences of further offending in relation to his migration status.  On that occasion the discretion was exercised in Mr Paszkiewicz’s favour not to revoke his visa under section 501.  The Tribunal had that decision, dated 22 June 2004, before it (G3, p 135).

16. The Respondent submitted that there was a ‘moderate to high likelihood’ of the Applicant re-offending on the basis that he had a repeated and consistent history of criminal offending over a 16-year period and that he had re-offended while on suspended sentences. Furthermore, the Respondent submitted, being aware of the potential effect of future offending on his migration status did not deter Mr Paszkiewicz’s re-offending.

17. The Respondent accepted that non-revocation of the cancellation of Mr Paszkiewicz's visa would have a detrimental impact on his family, especially his fiancée and his parents.

    Consideration of the Direction

    Primary consideration: Protection of the Australian community (paragraph 13.1 of the Direction)

18. The Direction sets out that the Tribunal should give consideration to the nature and seriousness of the non-citizen’s conduct to date and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.

    The nature and seriousness of the conduct (paragraph 13.1.1)

19. It was clear to the Tribunal that the Applicant has a long history of serious criminal conduct.  The Applicant himself provided a written statement (G3, p 66) which stated:

    I accept that my criminal record is substantial and how my past criminal behaviours are a concern to Australia and its citizens.  I am aware that I have committed offences of a serious nature.  If you could please take the time to let me explain the circumstances around my criminal behaviour. 

    By the age of ten I was spending less and less time at home and more time with friends.  This period saw the beginning of a rift between my parents and myself and as I grew older so too did this distance.  It was around these years I started to realise that I was more depressed than the peers around me, my self-esteem and feelings of self-worth were extremely low. 

    Not long after, I started experimenting with drugs as I found this was the only thing that made me feel better.  This in turn resulted in a vicious cycle of drug addiction and a downward spiral of bad actions and choices. 

    I have recently discovered my drug use is at the core of my past criminal behaviour and is why I had no previous concern on how my actions impacted on the lives of people within the community.

20. In his evidence, Mr Paszkiewicz agreed he had been warned about his criminal conduct by the Department in the past but that he disregarded the warning. 

21. The Applicant was asked about the circumstances surrounding his appearance in court in May 2009.  In that matter Judge Gullaci set out that Mr Paszkiewicz was driving a vehicle with false registration plates at high speed and struck another car from behind.  As a result, the other car left the road and collided with a power pole.  His Honour stated (G3, p 46):

    Police attended and both you and the victim were being treated by ambulance officers.  The victim was later admitted to Epworth Hospital where he remained for almost a month, receiving treatment for the following injuries. (A) a closed head injury, (B) a fractured skull, (C) a fractured right zygoma, (D) a fractured rib, (E) bilateral lung contusions, (F) bilateral scapula fractures, (G) splenetic contusions, (H) fractures to the right L1, L2 and L3 and post-traumatic amnesia for some two days.  In July 2007 the victim was re-assessed by an orthopaedic surgeon as having a normal stance, gait and a good range of movement in his lumbar spine.  However he continues to suffer as set out in his victim impact statement.

22. The Judge noted that Mr Paszkiewicz was at the time suspended from driving and had 103 prior convictions from 16 court appearances between 1995 and 2007.  At this time Mr Paszkiewicz’s (then) partner was about to give birth to their second child.  The Judge decided to wholly suspend the 36 months’ imprisonment then imposed.  His Honour took what he termed “the risk of permitting [the Applicant] to continue in the community and not be immediately incarcerated.”

23. Regrettably, the Judge’s hopefulness, having given the Applicant a clear warning of the consequences otherwise, that Mr Paszkiewicz would amend his behaviour was not realised.  As the National Police Certificate illustrates, fewer than 10 months later, the Applicant was in court again on 38 fresh charges.  He went on to appear in Court on four more occasions.

24. The Tribunal accepts that much (but not all) of Mr Paszkiewicz’s criminality has stemmed from his drug addiction, which may have accounted for many of the theft, burglary and robbery charges.  It is also clear that the range of non-custodial orders imposed by the courts did not have the intended effect of alerting Mr Paszkiewicz to the error of his ways and the serious consequences if he continued along this path.

25. The Direction requires a decision-maker to view violent crimes very seriously.  The Tribunal is also required to take into account the frequency of the Applicant’s offending, any trend of increased seriousness and the cumulative effect of repeated offending.

26. The Direction, at paragraph 13.1.1(1)(g), also stipulates that the Tribunal must take into account whether the Applicant has re-offended since being formally warned about the consequences of further offending in terms of the Applicant’s migration status.  In the Department’s letter to Mr Paszkiewicz dated 22 June 2004, it states:

    On 26 February 2001, the Department of Immigration and Multicultural Affairs notified you that your visa may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.

    You responded in writing and were interviewed and your comments were carefully considered and taken into account.

27. Mr Paszkiewicz therefore had not only been warned in writing, he had also attended an interview with Department officers about his conduct and the migration consequences that may flow if his criminality continued.  On that occasion the discretion was exercised not to cancel his visa.

28. His offences have involved dishonesty, threatening people, perpetrating violence as well as several driving offences, one of which led to serious injury of another road user through no fault of that person.  On balance, applying the provisions set out in this part of the Direction, the Tribunal finds that this consideration weighs heavily against the Applicant.

    The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)

29. Ms Costello stated, rightly, that there can be no absolute guarantee against Mr Paszkiewicz re-offending. However she contended that the Applicant had rehabilitated, had matured and that the risk of re-offending is ‘acceptable’.

30. The Tribunal had before it a large range of testimonials from Corrective Services personnel and other persons commenting on Mr Paszkiewicz's conduct while in prison.  There was a consistent theme through these that he has been a well-behaved and co-operative prisoner.  He has completed a number of courses designed to help him improve his behaviour and prepare for life back in the community.  This is to his credit.

31. The Tribunal also notes from the urinalysis reports that Mr Paszkiewicz has kept himself drug-free.  Being aware of the unfortunate fact that prisoners do have illegal access to drugs, the Tribunal finds it is to his credit that he has resisted this temptation.  The Tribunal notes that submissions were also made about the support of his parents, other members of his family and notably his fiancée to stop him returning to drug-taking.  The Tribunal particularly had regard for the evidence of Mr Greg Szytow at the hearing.  Mr Szytow impressed the Tribunal for his frankness and commitment to helping the Applicant by employing him in his arborist business on release.

32. Mr Patrick Newton, who had examined the Applicant and provided a report dated 3 March 2018 (Exhibit A6), gave evidence that the physical components of Mr Paszkiewicz’s condition have largely abated while he has been in a controlled environment.  He said that the Applicant had a reasonable insight into his vulnerabilities.  Crucially, for the Tribunal, Mr Newton said in evidence Mr Paszkiewicz faces challenges of dealing with lack of contact with his children and this was a key factor. 

33. In his report, Mr Newton wrote (at paragraph 31):

    When challenged in our interview to be more specific about how he would handle challenges after his release (including the predictable challenges associated with establishing contact with his children, establishing a household with his fiancée and obtaining work), Mr Paszkiewicz had considerable difficulty identifying strategies and techniques for dealing with the potential for relapse which such challenging situations may cause.  Beyond that, and of particular significance, Mr Paszkiewicz could discuss his previous relapses – particularly those that followed treatment – in only a superficial manner and I was concerned that he had not truly internalised the lessons from these past experiences.  That is, I concluded that his relapse-prevention skills require further development before they could be considered to be fully robust.

34. Mr Newton reiterated his written opinion in the hearing that the Applicant’s “relapse skills are not sufficiently robust” and he needs to improve the ability to withstand emerging stresses.  Mr Newton stated that the Applicant’s “risk of relapse to drug use is not insignificant”; he needs not only self-management but also requires others to help him.

35. The Tribunal also heard from the Applicant’s mother and his fiancée, Miss Smith.  The Tribunal had no doubt of their sincerity in their common intention to help Mr Paszkiewicz if he is able to stay in Australia.  Miss Smith told the Tribunal how in the past when they were living together, the Applicant would ‘disappear for a few days’ and no one would know what he was doing.  She said she had not been aware of the details of his offending but was aware of his drug addiction. She stated without drugs in his life he is a good person.

36. Judge Sexton concluded in her sentencing reasons in 2012 (G3, p 41) that the Applicant had a “high risk of re-offending”.   The Tribunal concludes, on the basis of the evidence and the other information, that the risk of re-offending is not insignificant.  The Tribunal accepts Mr Paszkiewicz has behaved well in prison and has avoided drugs there. However, this is a controlled environment, to use the term of Mr Newton. The chances of relapse in the community are real.  The Tribunal also takes into account Mr Newton’s professional opinion that the Applicant’s skills to hold to his drug abstention are not robust.  In particular, Mr Newton’s opinion that, in spite of undertaking a number of courses and having a long prison sentence to contemplate his past conduct, the Applicant still in March this year had difficulty setting out how he would deal with the temptation of returning to drug-taking, if released.  In spite of the clearly genuine statements of his family members, the Tribunal notes that these supports were also available to Mr Paszkiewicz in the past, and they did not then prevent him returning to drugs and  serious crime. 

37. The Tribunal concludes that the risk to the community under this part of the Direction is unacceptable; people have been threatened and in one instance badly injured, directly as a result of the Applicant’s conduct.  I am not satisfied, on the evidence, that the strategies in place to deter him from re-offending in the same serious manner are durable.  This consideration weighs against revocation of the mandatory cancellation decision.

    Primary consideration: Best interests of minor children in Australia affected by the decision (paragraph 13.2)

38. The Tribunal notes that Mr Paszkiewicz has two Australian citizen children who are minors.  He gave evidence he had not seen them for six years.  The Tribunal is aware that he had previously arranged, through the Salvation Army, to send gifts to his children but on the last occasion the parcel had been returned.  The Applicant does not know where his former partner or the children currently are.

39. The Direction requires me to take into account whether there have been long periods of absence or limited meaningful contact.  That is so in this case.  However, I accept Mr Paszkiewicz is genuine in his desire to make contact with his children, including if necessary by court orders.  On balance, I find that this consideration weighs in favour of revoking the mandatory cancellation of the Applicant’s visa, but given the lack of regular contact, not heavily so.

    Primary consideration: Expectations of the Australian community (paragraph 13.3)

40. Counsel for Mr Paszkiewicz drew the Tribunal’s attention to paragraph 6.3 in the Direction which states:

    Australia has a low tolerance for any criminal or other serious conduct by people who have been participating in and contributing to the Australian community only for a short period of time.  However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their [sic] life, or from a very young age.

41. Ms Costello also quoted the remarks of Deputy President McCabe in Re Do (referred to above) that the Australian community can be expected to be fair-minded and mature, and not vengeful.  It is difficult for the Tribunal in any of these cases to try and predict what ‘the Australian community’ would adopt as a view; in fact that task is impossible because views about criminal conduct by non-citizens vary widely across the spectrum.  However, the Tribunal thinks it is fair to say that fair-mindedness is a feature of public opinion, where that public opinion is informed by the facts, and that people would look at the situation where a person has resided in Australia for a long period differently from a case of someone who recently arrived in Australia.

1. The Applicant has spent around three-quarters of his life, and all his adult life, in Australia.  On his evidence he has not visited Poland since emigrating.  He does not have any strong connections there. Ms Costello also urged the Tribunal to consider the reasoning adopted in Re Gordon (referred to above).  Some of the facts are similar but the difference in the case of Mr Gordon is that he migrated to Australia in 1985 aged 18.  As Deputy President Boyle said, Mr Gordon’s serious offending only commenced after he had been in Australia for 22 years.  Regrettably, that cannot be said for Mr Paszkiewicz.  As the National Police Certificate shows, his offences have risen on the scale of seriousness and have involved threatening behaviour, violence and inflicting serious injury.  He has failed to comply with bail orders and domestic violence orders and has continued to commit offences whilst under suspended sentence.  The fact that there had been a previous warning from the migration authorities, which was blithely ignored, would substantially weigh public expectations against the Applicant.

2. The Tribunal concludes, notwithstanding the length of time Mr Paszkiewicz has been in Australia, because of the sustained pattern of criminal conduct, and its serious nature, this primary consideration in the Direction weighs against revocation of the mandatory cancellation decision.

   Other consideration: International non-refoulement obligations (paragraph 14.1)

3. This matter was not raised by parties.  The Tribunal has given it consideration but finds that, if Mr Paszkiewicz is removed, he would be able to return to his country of citizenship, Poland, and have access to other member states of the European Union.

   Other consideration: Strength, nature and duration of ties (paragraph 14.2)

4. Since emigrating from Poland at the age of 9, the Applicant has not returned there.  His parents have also not returned and have made Australia their home.  Mr Paszkiewicz has some 70 relatives in Australia and only a handful in Poland.  The Applicant’s mother gave evidence about two of her siblings who live in Poland; her sister is on a state pension in impecunious circumstances and her brother suffers from mental illness.

5. Having been in Australia from such a young age, the Tribunal considers the Australian community may be more tolerant of the Applicant’s criminal conduct in terms of deportation.  However, that is coloured by the fact that he started offending at age 16 and has not responded positively to various attempts by the justice system to make him correct his behaviour.

6. The Tribunal notes that Mr Paszkiewicz is engaged to an Australian citizen. Miss Smith gave evidence that, because of her own personal circumstances in having primary care of a younger sister, she would be precluded from relocating to Poland with the Applicant, at least in the next few years.  The Tribunal also takes into account and places weight on the serious ill health of the Applicant’s father, which would make it impossible for him to visit his son if Mr Paszkiewicz was deported.

7. The Tribunal finds that this other consideration weighs in favour of revoking the mandatory cancellation decision.

   Other consideration: Impact on Australian business interests (paragraph 14.3)

8. This matter was not raised by parties and the Tribunal has given it consideration but does not find it relevant; Mr Paszkiewicz has skills as a plasterer which would be transferable if the mandatory cancellation decision was not revoked.

   Other consideration: Impact on victims (paragraph 14.4)

9. There was little material before the Tribunal on the effect a decision to revoke the mandatory cancellation of Mr Paszkiewicz’s visa would have on victims, other than reference to a victim statement in relation to the dangerous driving causing serious injury offence, so the Tribunal did not consider this other consideration further.

   Other consideration: Extent of impediments if removed (paragraph 14.5)

10. There would be impediments for the Applicant if he is returned to Poland.  Evidence was given that his Polish language skills were not strong.  He also has some health challenges, namely Hepatitis C and is undertaking a course of Methadone.  The Direction requires decision-makers to assess this consideration in the context of what is generally available to other citizens in the country to which the non-citizen would be returned.  On balance, I conclude that this other consideration weighs marginally in favour of revoking the mandatory visa cancellation decision.

    Conclusion

11. The Tribunal finds that the delegate’s decision should be affirmed.  In coming to this conclusion, the Tribunal is aware that the consequences of the Applicant’s removal will have a greatly detrimental effect on his family, in particular his parents and fiancée.  There are certain considerations that weigh in favour of the Applicant but the Tribunal concludes that on balance that the seriousness of his criminal conduct coupled with the risk to the community of the Applicant re-offending is not an acceptable one, given his past propensity to return to drug-use (and, therefore, offending to fund it) and the considered professional opinion that his skills to equip him not to relapse are not strong. 

    DECISION

12. The Tribunal affirms the decision under review.

I certify that the preceding 72 (seventy-two) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris

...........................[sgd].............................................

Associate

Dated: 27 March 2018

Date(s) of hearing:	16 March 2018
Counsel for the Applicant:	Georgina Costello
Solicitors for the Applicant:	Coenraad van der Westhuizen
Solicitors for the Respondent:	Laura Crick