Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 3953
•1 October 2020
Pattison and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 3953 (1 October 2020)
Division:GENERAL DIVISION
File Number(s): 2020/4106
Re:Matthew John Pattison
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Deputy President Boyle
Date:1 October 2020
Place:Perth
The decision of the delegate of the Respondent, dated 9 July 2020 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) is affirmed.
..................................[SGD]...................................
Deputy President Boyle
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) – mandatory visa cancellation – s 501CA(4) – another reason why the cancellation decision should be revoked – Direction 79 – protection of the Australian community – nature and seriousness of the conduct – the risk to the Australian community – best interests of the child – strength, nature and duration of ties – extent of impediments if removed – impugning convictions – whether the conviction is the foundation for the exercise of power by decision-maker – concurrent and cumulative sentences – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) – ss 499(1), 499(2A), 500(1)(ba), 501, 501(3A), 501(3A)(b), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(3)(b), 501CA(4), 501CA(4)(b)(ii)
CASES
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CZCV and Minister for Home Affairs [2019] AATA 91
DKXY v Minister for Home Affairs [2019] FCA 495
FYBR v Minister for Home Affairs [2019] FCA 500
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 3445
HZCP v Minister for Immigration and Border Protection [2018] FCA 1803
HZCP v Minister for Immigration and Border Protection [2019] FCAFC 202
Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 1524
Lansdowne and Minister for Home Affairs [2019] AATA 2448
McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 2939
Minister for Immigration and Multicultural Affairs v Ali [2000] FCA 1385; (2000) 106 FCR 313
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 363 ALR 32
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234
Pinder and Minister for Home Affairs [2019] AATA 1398
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2019] AATA 4424
Singh v Minster for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 556
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Toki and Minister for Home Affairs [2019] AATA 742
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
YYMT and MQCR and Minister for Immigration and Citizenship [2010] AATA 447
SECONDARY MATERIALS
Convention on the Rights of the Child, opened for signature 20 November 1989, 1577 UTS 3 (entered into force 2 September 1990) – Article 3
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s501CA (Department of Home Affairs, 28 February 2019) – paras 6.1,6.1(3), 6.2, 6.3, 7(1)(b), 8, 8(3), 8(4), 8(5), 13(2), 13(2)(a), 13(2)(b), 13(2)(c), 13.1, 13.1(2)(a), 13.1(2)(b), 13.1.1(1), 13.1.1(1)(a), 13.1.1(1)(b), 13.1.1(1)(c), 13.1.1(1)(d), 13.1.1(1)(e), 13.1.1(1)(f), 13.1.1(1)(h), 13.1.2, 13.1.2(1)(a), 13.1.2(1)(b), 13.2, 13.3, 13.3(1), 14, 14(1), 14(1)(a), 14(1)(b), 14(1)(c), 14(1)(d), 14(1)(e), 14.2, 14.2(1)(a), 14.5(1)(a), 14.5(1)(c), Part C
REASONS FOR DECISION
Deputy President Boyle
1 October 2020
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent dated
9 July 2020[1] to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of theMigration Act 1958 (Cth) (the Act).[1] R2, G2.
The Applicant’s visa was cancelled pursuant to s 501(3A) of the Act because the Applicant does not pass the character test by reason of his substantial criminal record and because he was serving a full-time term of imprisonment for an offence against a law of a State.
The application for review made on 9 July 2020,[2] was made in accordance with s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) of the Act not to revoke a decision to cancel a visa. The Tribunal is satisfied that it has the jurisdiction to review the decision.
[2] R2, G1.
THE ISSUE
The issue for determination is whether the Tribunal should exercise the power in s 501CA(4) of the Act to revoke the mandatory cancellation of the visa. That will require determination of:
(a)whether the Applicant passes the character test (as defined by s 501 of the Act); and
(b)if not, whether there is a ‘another reason’ why the mandatory cancellation decision should be revoked.
BACKGROUND
The Applicant is a 34-year old citizen of New Zealand who first arrived in Australia with his parents and two brothers on 5 November 1988 at the age of two. Since that time,
the Applicant has left Australia once, that being in 1994.The Applicant’s family initially settled in Victoria and moved to Western Australia in 1992. The Applicant completed his schooling up to year 10 at a Perth metropolitan high school and then completed traineeships in radiator mechanics and deep-sea diving.
In November 1998, when the Applicant was 12 years old, his brother died from a snake bite. He is buried in a Perth metropolitan cemetery.
From 2004 to 2006 the Applicant worked as a deck hand for Clipper Pearls. He then worked as a diver and deck hand for Kailis Pearls from 2006 to 2008. From 2009 to 2011 the Applicant was employed in construction work for West Force Construction and
Cimeco Construction.In or around January 2011 the Applicant suffered a work-related injury while working in Darwin and was unable to work for 12 months. He then resumed working as a labourer until April 2013, when he was remanded in custody.
In 2011 the Applicant was remanded in custody for four weeks at Roebourne Prison,
for breach of protective bail terms following his arrest for an assault on his ex-girlfriend
(see [22(c)] below).On 7 July 2014 the Department of Immigration and Border Protection (now Department of Home Affairs (the Department)) notified the Applicant that his visa was liable for cancellation on character grounds. A delegate of the Minister for Home Affairs made a decision not to cancel the Applicant’s visa and, by letter dated 21 October 2014, advised the Applicant of that decision and issued a formal warning to the effect that visa cancellation may be reconsidered if the Applicant committed any further offences or otherwise breached the character test (the formal warning). The Applicant signed an acknowledgement of receipt of the formal warning on 29 October 2014.[3]
[3] R2, G80.
From 2015 to 2017 the Applicant was self-employed as a motorbike mechanic and worked for his own and a friend’s business.
On 28 August 2015 police executed a Misuse of Drugs Act (WA) (MDA) search warrant on the Applicant’s residential address. Amongst other items, about 140 grams of methylamphetamine and $94,600 cash were found at the property. Before the search began the Applicant declared to police that he had a firearm in the house and led them to it.
The Applicant was arrested and charged with a number of offences (see [22(g)] below). He was taken into custody immediately following the execution of the search warrant and was released on bail on 31 August 2015.On 14 April 2016 the Applicant married Ms Y. Ms Y had a son, L, who was, at the time of the marriage, just short of his ninth birthday. In May 2018 L’s surname was changed to that of the Applicant. L is an Australian citizen by birth.
In March 2017 the Applicant was involved in a motorbike accident and suffered a serious injury to his spinal cord (the Accident). He was hospitalised for four months following the Accident. The Applicant continues to suffer from permanent partial paralysis in the right-hand side of his body. He also suffers from a neurogenic bowel and bladder dysfunction, as well as pain, sleep disturbance, muscular spasms and psychological distress and issues with standing, walking and general mobility.
In May 2017, following two rounds of IVF treatment, Y gave birth to the Applicant’s biological child, H. H is an Australian citizen by birth.
In March 2018, the Applicant was convicted in the District Court of 'Possession of a prohibited drug with intent to sell or supply (methylamphetamine)' and other offences
(for more detail, see [22(g)] and [43] below).On 26 June 2019 the Applicant's visa was mandatorily cancelled pursuant to subsection 501(3A) of the Act because a delegate of the Minister was satisfied that the Applicant did not pass the character test on the basis that he had a 'substantial criminal record' as a result of being sentenced to a term of imprisonment of 12 months or more. The Applicant was, at that time, serving a sentence of imprisonment on a full-time basis.
Pursuant to s 501CA(3)(b), by letter dated 26 June 2019,[4] the Applicant was invited to make representations as to why the decision to cancel his visa should be revoked. The Applicant provided representations, including a Personal Circumstances Form, on 5 July 2019.[5]
The Applicant, through his authorised representative, Estrin Saul, on 8 January 2020 provided further representations and supporting material including program reports,
prison records, medical records and a bundle of letters of support.[6]
[4] R2, G10.
[5] R2, G11.
[6] R2, G13–G79.
On 9 July 2020 a delegate of the Respondent refused to revoke the cancellation of the Applicant's visa.[7] The Applicant sought review of the delegate's decision by the Tribunal on 9 July 2020.[8]
[7] R2, G2, 17.
[8] R2, G1.
The Applicant is currently incarcerated at Bunbury Regional Prison. He will be eligible for parole on 6 January 2021.[9]
[9] R2, G6/53.
The Applicant’s criminal record
The Applicant’s more detailed criminal record is as follows:
(a)
According to the Western Australia Police Force Criminal and Traffic History,[10]
[10] R3, S1.
the Applicant has been convicted of 80 offences between 2005 and 2018.
The Applicant's offences include drug-related offending, violence, traffic and vehicle regulatory offences, theft and receiving offences, prohibited weapons offences and breaches of orders, for which he has received fines, periods of licence disqualification and sentences of imprisonment.
(b)Between January 2005 and May 2013, the applicant's criminal history records the following convictions:[11]
[11] R2, G3/35–36; R3, S1/6–11.
Court Result date Offence date Charge outcome Sentence detail Perth Magistrates Court 21 November 2013
16 May 2013 Breach of Bail (Fail to appear soon after).; Bail Act (WA) 1982; 51 (2) FINE: $500 1 February 2013 Give False Personal Details To Police; Criminal Investigation (Identifying People) Act 2002; 16 (8) FINE: $500 Possess a prohibited drug (Methylamphetamine); Misuse Of Drugs Act (WA) 1981; 6 (2) R FINE: $700 16 March 2013 Possess Unlicensed Ammunition; Firearms Act 1973; 19 (1) A FINE: $400 Possess Unlicensed Ammunition; Firearms Act 1973; 19 (1) A FINE: $400 Possessed drug paraphernalia in or on which there was a prohibited drug or plant; Misuse Of Drugs Act (WA) 1981; 7B (6) FINE: $200 30 May 2013 Possessed a prohibited weapon.; Weapons Act 1999; 6 (1)(b) B FINE: $800 27 October 2012 Possessing stolen or unlawfully obtained property; Criminal Code (WA);428(1) FINE: $500 30 May 2013 Possession of a Prohibited Drug With Intent to Sell or Supply (Methylamphetamine; Mis use Of Drugs Act (WA) 1981; 6( 1)(a) O FINE: $1500 1 February 2013 No Authority to Drive - Suspended; Road Traffic Act 1974; S. 4 9(1)(a) & (3)(c); 2nd or Subsequent Offence FINE: $1000
Mdl Disqualified: 9 mths
– Cumulative
Midland Magistrates Court
6 August 2013
22 May 2013
Possessed a controlled weapon.; Weapons Act 1999; 7(1) A FINE: $500 No Authority to Drive - Suspended; Road Traffic Act I974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence; Learner's Permit FINE: $1500
Mdl Disqualified: 9 mths
– Cumulative
7 April 2013 No Authority to Drive - Suspended; Road Traffic Act I 974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence FINE: $1300
Mdl Disqualified: 9 mths
– Cumulative
Perth Magistrates Court 18 July 2013 10 April 2013 Possess a Prohibited Drug (Cannabis); Misuse Of Drugs Act (WA) 1981; 6(2) B FINE: $400 Midland Magistrates Court 19 June 2013 17 May 2013 No Authority to Drive - Suspended; Road Traffic Act 1974 ; S. 49(1) (a) & (3)(c); 2nd or Subsequent Offence; Learner's Permit FINE: $1500
Mdl Disqualified: 9 mths
– Cumulative
False Name (Suspect); Road Traffic Act 1974; S. 53(4); Learner's Permit FINE: $200 Careless Driving ; Road Traffic Act 1974; S . 62; Learner's Permit FINE: $300 6 March 2013 22 January 2013
No Authority to Drive - Suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence; Learner's Permit FINE: $1000
Mdl Disqualified: 9 mths
– Cumulative
Unlicensed Vehicle (Owner/Driver); Road Traffic Act 1974; S. 15(3); Learner's Permit FINE: $100 23 January 2013 14 December 2012 No Authority to Drive (Fines Suspended); Road Traffic Act 1974; S. 49(1)(a) & (3)(d) FINE: $350 2 January 2013 20 November 2012 No Authority to Drive (Fines Suspended); Road Traffic Act 1974; S. 49(1)(a) & (3)(d) FINE: $400
MDL 7 DAY DELAY: 3
mths
22 November 2012 No Authority to Drive (Fines Suspended); Road Traffic Act 1974; S. 49(1)(a) & (3)(d) FINE: $400 28 December 2013 27 October 2012 Possess a prohibited drug (Methylamphetamine); Misuse Of Drugs Act (WA) 1981; 6(2) R FINE: $750 Perth District Court of Western Australia 13 July 2012 24 August 2011 Aggravated Burglary and Commit Offence in Dwelling; Criminal Code; S. 401(2)(a) COMM BASED ORDER: 1 YR CONC Common Assault (Agg 01/ 2/04); Criminal Code; S. 313(1)(a) COMM BASED ORDER: 1 YR CONC Perth Magistrates Court 3 April 2012 21 September 2011 Breach of protective bail conditions; Bail Act (WA) 1982 ; 51 (2a) FINE: $500 24 August 2011 Failed To Ensure Safe-Keeping of Firearm / Ammunition ; Firearms Act 1973; 23 (9)(a) FINE: $450 29 September 2011 Careless Driving; Road Traffic Act 1974; S. 62; Learner's Permit FINE: $300 Midland Magistrates Court 29 July 2009 23 April 2009 No Authority to Drive (Fines Suspended); Road Traffic Act 1974; S. 49(1)(a) & (3)(d); Probationary M.D. L. FINE: $400 MDL
Cancelled 51 RTA: 3 mths; and – Concurrent
4 February 2009 20 November 2008 Hinder An Authorised Officer; Liquor Control Act; S. 154(3)(a) FINE: $600 (global) Remain in Vicinity of Licensed Premises; Liquor Control Act; S. 115(6) FINE: $600 (global) Broome Magistrates Court 1 November 2007 31 October 2007
Common Assault; Criminal Code; S. 313(1)(b) FINE: $1000 Obstructing public officers; Criminal Code; S. 172(2) FINE: $300 Midland Magistrates Court 30 November 2005 13 October 2005 No Motor Drivers Licence – Under Suspension; Road Traffic Act 1974; S. 49(1)(a) & (2)(a); Probationary M.D.L. FINE: $400 MDL CANC & DISQ 9 MTHS CUM 3 August 2005 2 July 2005 Excess 0.08%; >=0.10% but < 0.11%;
Road Traffic Act 1974; S. 64(1); Probationary M.D.L.; Method is Breath
FINE: $600 MDL CANC & DISQ 6 MTHS Reckless Driving; Road Traffic Act 1974; S. 60; Probationary M.D. L. FINE: $600 MDL CANC & DISQ 6 MTHS CONC No 'P' Plates; Road Traffic (Drivers' Licences) Regulations 1975; S. 13(1); Probationary M.D.L. FINE: $150 Midland Court of Petty Sessions 15 April 2005 Disorderly conduct $150 11 January 2005 Disorderly conduct $500 (global) Resist arrest $500 (global) (c)On 28 January 2014 the
Applicant was convicted in the District Court of Western Australia of two counts of breaching community-based orders, for which he was sentenced to 18 months imprisonment on each count, to be served concurrently.[12] At the time of sentencing, the Applicant had been in custody so his sentence was taken by the sentencing judge to have begun in April 2013.[13] It is not clear why his Honour back-dated the commencement of his sentences to April 2013 given that the Applicant was not taken into custody until May 2013, however, nothing relevant to the matters to be determined by the Tribunal arises from that fact. The community-based orders which the Applicant breached were imposed by Fenbury DCJ in the District Court on 13 July 2012 in relation to the Applicant's convictions for 'Aggravated burglary and commit offence in dwelling' and 'common assault'.[14]
[12] R2, G3/35.
[13] Sentencing comments, R2, G8/69.
[14] R2, G3/36.
Those offences related to an incident on 24 August 2011 when the Applicant forced entry into his ex-girlfriend's home and confronted her while she was lying in bed, and, according to the parole review checklist,[15] the Applicant “slapped [her] with an open hand on the top of her head”. In his statement of 11 August 2020, the Applicant claims that he “slapped the phone out of her [his ex-girlfriend’s] hand”. At the hearing the Applicant’s evidence was that he had “snatched the phone out of her hands”.[16] Whichever version is correct, the fact is that he pleaded guilty to the charges.
[15] R3, S10/41.
[16] Transcript at 19.
(d)The Applicant was released from prison on 22 October 2014.[17]
[17] S10, 41; S12, 51.
(e)In October 2014 the Applicant received the formal warning letter (see [11] above).
(f)Between 23 March 2015 and 2 March 2018, the Applicant was convicted of the following offences:[18]
[18] R2, G3/35–36; R3, S1/6–11.
Court Result date Offence date Charge outcome Sentence detail Midland Magistrates Court 2 March 2018 27 November 2017 Stealing; Criminal Code (WA); 378 FINE: $1000 5 January 2018 7 November 2017 Stealing; Criminal Code (WA); 378 FINE: $400 Fremantle Magistrates Court 27 May 2015 13 December 2014 Drive Under the Influence of Drugs; Road Traffic Act 1974; S. 63(1); Method is Unknown Mdl Disqualified: 18 mths - Concurrent FINE:
$1600
Rockingham Magistrates Court 23 March 2015 No Authority to Drive - Suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence Mdl Disqualified: 12 mths - Cumulative FINE:
$1200
Exceed speed limit in a speed zone; Between 20 and 29km/h; Road Traffic Code 2000; S. 11(3); Alleged 102 in
80 zone
FINE: $400 25 November 2014 No Authority to Drive - Suspended; Road Traffic Act I974; S. 49(I)(a) & (3)(c); 2nd or Subsequent Offence FINE: $1200
Mdl Disqualified: 12 mths - Cumulative
(g)On 23 March 2018 the Applicant was convicted in the District Court of 'Possession of a prohibited drug with intent to sell or supply (methylamphetamine)' for which he was sentenced to four years and four months imprisonment, with a non-parole period of three years. He was also declared a drug trafficker.[19] On the same day the Applicant was convicted of 'Possession of stolen or unlawfully obtained property' for which he was sentenced to 18 months imprisonment, to be served concurrently with the drug possession offence, and 'Unlicensed person possess firearm/ammunition' for which he was sentenced to eight months imprisonment, to be served cumulatively with the sentence for the drug possession offence, making a total effective sentence of five years imprisonment.[20]
(h)
These convictions arose from the police search of the Applicant's property on
28 August 2015 (see [13] above). During the search, police located .22 Winchester bolt action rifle that had been stolen and five clipseal bags containing 138.2 grams of methylamphetamine, with a purity of between 78 and 81 percent. Police also found a bag containing $94,600 in cash.[21] The Applicant pleaded guilty to the firearm offence and was convicted of the drug and stolen property offences by a jury following a trial.[22]
(i)On 16 April 2018 the Applicant was convicted of 29 offences in the Perth Magistrates Court for which he received 17 separate sentences of imprisonment—totalling three years, 10 months and two weeks, to be served concurrently with one another and with the sentences imposed by the District Court in March 2018 (see [22(g)] above). The Applicant also received a number of fines and his driver's licence was disqualified for a total of 180 months (some periods of suspension to be served concurrently).[23] The April 2018 convictions in the Magistrates Court were for the following offences:[24]
[19] R2, G3/35.
[20] R2, G3/35; sentencing remarks R2, G5/52.
[21] R2, G5/46.
[22] R2, G5/51.
[23] R2, G3/33–34.
[24] R3, S1/1–4.
Court Result date Offence date Charge outcome Sentence detail Perth Magistrates Court 16 April 2018 23 May 2015 Fail to Obey Data Access Order; Criminal Investigation Act 2006; S. 61(2) IMPRISONMENT: 2
Months CONCURRENT FROM 16-APR-2 018. -
Concurrent
Fail to obey Data Access Order; Criminal Investigation Act 2006; S. 6
1(2)
IMPRISONMENT: 2
Months CONCURRENT FROM 16-APR-2018. -
Concurrent
28 August 2015 Failed To Ensure Safe-Keeping of Firearm/Ammunition; Firearms Act; S. 23(9)(a) IMPRISONMENT: 1
Months CONCURRENT FROM 16-APR-2018. -
Concurrent
Possess Drug Paraphernalia containing prohibited drug/plant; Misuse Of Drugs Act 1981; S. 78(6) FINE: $250 8 April 2015 Possess Prohibited Firearm; Firearms Act; S. 19(1ac)(b) IMPRISONMENT: 1
Months CONCURRENT FROM 16-APR-2018. -
Concurrent
Possess a Prohibited Drug (Cannabis); Misuse Of Drugs Act I981; S. 6(2) FINE: $350 21 April 2015 Possess a Prohibited Drug (Amphetamine); Misuse Of Drugs Act 1981; S. 6(2) IMPRISONMENT: 7 Days CONCURRENT FROM 16-APR-2018. -
Concurrent
28 August 2015 Possess a Prohibited Drug (Cannabis); Misuse Of Drugs Act 1981; S. 6(2) FINE: $350 Possessed a prohibited weapon; Weapons Act 1999; S. 6(1)(b) IMPRISONMENT: 7 Days CONCURRENT FROM 16-AP R-2018. -
Concurrent
Possession of stolen or unlawfully obtained property; Criminal Code; S. 417(1) IMPRISONMENT: 2
Months CONCURRENT FROM 16- APR-2018. -
Concurrent
Possession of stolen or unlawfully obtained property; Criminal Code; S. 417( 1) IMPRISONMENT: 2
Months CONCURRENT FROM 16- APR-2018. -
Concurrent
27 March 2017 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4
Months CONCURRENT FROM 16-APR-2018. -
Concurrent Mdl Disqualified: 9 mths - Cumulative
22 August 2017 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4
Months CONCURRENT FROM 16-APR-2018. -
Concurrent Mdl Disqualified: 9 mths - Cumulative
16 February 2015 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4 MTHS CONC FROM
16.4.18 [EMAIL-CM]
8 April 2015 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4 MTHS CONC FROM
16.4.18 Mdl Disqualified: 9 mths - Cumulative
21 April 2015 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4 MTHS CONC FROM
16.4.18 Mdl Disqualified: 9 mths - Cumulative
17 September 2015 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4 MTHS CONC FROM
16.4.18 Mdl Disqualified: 9 mths - Cumulative
19 October 2016 No authority to drive - cancelled; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4 MTHS CONC FROM
16.4.18 Mdl Disqualified: 9 mths – Cumulative
27 March 2017 Driving with prescribed illicit drug; Road Traffic Act 1974; S. 64AC(1) ; Method is Oral Fluids - Drugs FINE: $500 22 August 2017 Driving with prescribed illicit drug; Road Traffic Act 1974; S. 64AC(1) ; Method is Oral Fluids - Drugs FINE: $500
Mdl Disqualified: 6 mths
- Concurrent
27 March 2017 Used an unlicensed vehicle; Road Traffic (Vehicles) Act 2012; S. 4(2) FINE: $150 2 April 2015 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4 MTHS CONC FROM
16.4.18 [ EMAIL-CM]
Mdl Disqualified: 6 mths
- Concurrent
24 March 2015 No authority to drive - suspended; Road Traffic Act 1974; S. 49(1)(a) & (3)(c); 2nd or Subsequent Offence IMPRISONMENT: 4 MTHS CONC FROM
16.4.18 [EMAIL-CM]
Mdl Disqualified: 9 mths
- Cumulative
2 April 2015 Drove a vehicle with number plate not issued to that vehicle; Road Traffic Act 1974; S. 97(2)(f)(iii) FINE: $500 24 March 2015 Drove a vehicle with number plate not issued to that vehicle; Road Traffic Act 1974; S. 97(2)(f)(iii) FINE: $500 21 April 2015 Drove a vehicle with number plate not issued to that vehicle; Road Traffic Act 1974; S. 97(2)(f)(iii) FINE: $500 19 October 2016 Used an unlicensed vehicle; Road Traffic (Vehicles) Act 2012; S. 4(2) FINE: $150 Drove or permitted vehicle with false plate to be driven; Road Traffic (Administration) Act 2008; S. 36(2)(e) FINE: $500 Drove a vehicle contrary to a defect notice; Road Traffic (Vehicles) Act 2012; s. 75(1) FINE: $500 THE HEARING AND THE EVIDENCE
The application was heard on 15 September 2020. The Applicant was represented by
Ms A Graziotti of Estrin Saul, lawyers, and the Respondent was represented by
Mr P Hannan of the independent bar instructed by Minter Ellison. Appearances were in person.The Applicant gave evidence and was cross-examined. The other witnesses to give evidence were:
(a)the Applicant’s mother;
(b)the Applicant’s brother, Wesley Pattison;
(c)Dr Phil Watts, clinical and forensic psychologist;
(d)Jamie Griffin, friend and former work colleague of the Applicant; and
(e)Donna Bracegirdle, friend of the Applicant.
The following documents were admitted into evidence:
(a)Applicant’s Statement of Facts, Issues and Contentions, dated 12 August 2020 (Exhibit A1);
(b)Applicant’s Bundle of Evidence, received 13 August 2020 (Exhibit A2);
(c)Applicant’s Reply to the Respondent’s Statement of Facts, Issues and Contentions; dated 9 September 2020 (Exhibit A3);
(d)Applicant’s Supplementary Bundle of Evidence, received 9 September 2020 (Exhibit A4);
(e)
Respondents’ Statement of Facts, Issues and Contentions, dated
2 September 2020 (Exhibit R1);
(f)G Documents, received 27 July 2020 (Exhibit R2);
(g)Supplementary G Documents; received 2 September 2020 (Exhibit R3); and
(h)History of Board Secretariat Decision Slips – Offender, Corrective Services, Department of Justice WA, generated 29 July 2020 (Exhibit R4).
The following documents were included in Exhibits A1 and A2:
(a)
statutory declaration of Steven Bruce, friend of the Applicant for 15 years, dated
12 August 2020;
(b)statement of Applicant, dated 11 August 2020;
(c)statutory declaration of Applicant’s mother, dated 6 August 2020;
(d)
statutory declaration of Applicant’s brother, Wesley Pattison, dated
8 September 2020;
(e)
statutory declaration of Leanne Kearney, friend of eight and a half years, dated
6 August 2020;
(f)statutory declaration of Donna Bracegirdle, dated 14 August 2020;
(g)statutory declaration of Kevin Mason, friend of 25 years who has lived, travelled and worked with the Applicant, dated 2 September 2020;
(h)statutory declaration of Leila Neil, friend of over 10 years, dated 13 August 2020;
(i)statutory declaration of Jamie Griffin, dated 24 August 2020;
(j)statement of Chris Robinson, unsigned;
(k)report of Dr Phil Watts dated 25 August 2020 and Estrin Saul request for report dated 3 August 2020;
(l)letter from Jabrulla Shukoor of Equality Psychology relating to the Applicant’s mother, dated 14 June 2020;
(m)letter from Dr Ross Littlewood relating to the Applicant’s mother, dated 27 May 2020;
(n)letter from Dr Mark Lee relating to the Applicant’s mother, dated 26 May 2020;
(o)letter from Dr Luciano Marino relating to the Applicant’s mother, dated 17 June 2019;
(p)letter from Dr Lee Kong relating to the Applicant’s mother, dated 7 September 2017;
(q)discharge summary from Royal Perth Hospital relating to the Applicant’s mother, extract date 19 June 2017;
(r)
letter from Dr Lara Jackson, Medical Officer, Bunbury Regional Prison, dated
24 July 2020;
(s)letter from Geoff Rayner of ARG Civil & Mining Services addressed “To the Members of the Board”, undated;
(t)letter from Jamie Griffin addressed “To the Members of the Board”, undated;
(u)letter from Dr Luca D’Orsogna, rehabilitation consultant, Fiona Stanley Hospital, dated 10 September 2018;
(v)two letters from Dr Paul Crow, urological surgeon, St John of God Hospital, dated 21 September 2018 and 3 April 2020;
(w)Department of Justice, Program Completion Report for the Pathways Program, signed 21 November 2018;
(x)
email to Applicant’s mother from the City of Kalamunda, sent 4 August 2020,
in relation to citizenship pledge ceremony; and
(y)Holyoake FAQ sheet.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act provides that:
The Minister 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.
A ‘substantial criminal record’ is defined by s 501(7) of the Act as follows:
For the purposes of the character test, a person has a substantial criminal record if:
(a) ...
(b) ...
(c) the person has been sentenced to a term of imprisonment of 12 months or more.
(d) the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;
Section 501CA of the Act provides:
(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.
Ministerial Direction 79
Section 499(1) of the Act provides that:
(1)The Minister may give written directions to a person or body having functions or powers under this Act ... if the directions are about:
(a) the performance of those functions; or
(b) the exercise of those powers.
Section 499(2A) of the Act states that:
[a] person or body must comply with a direction under subsection (1).
On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Act, titled “Direction no. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under 501CA” (Direction 79). The commencement date for operation of Direction 79 was
28 February 2019.
Paragraph 6.1 sets out the objectives of Direction 79. Paragraph 6.1(3) relevantly provides:
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.
Paragraph 6.2 of Direction 79 provides general guidance as follows:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2)In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3)The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction 79 sets out principles which must be taken into account by persons making decisions under s 501CA(4) of the Act, including the Tribunal. They are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Paragraph 7(1)(b) of Direction 79 provides that, informed by the principles set out in paragraph 6.3, the decision-maker (in this case the Tribunal) must take into account the considerations in Part C of Direction 79 in order to determine whether the mandatory cancellation of the visa will be revoked.
Paragraph 13(2), which is in Part C of Direction 79, provides:
In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
Further guidance as to how a decision-maker is to apply the considerations in Direction 79 can be found in paragraph 8 of Direction 79 which provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
CONSIDERATION
Does the Applicant pass the character test?
Failure of the character test arises as a matter of law: Re Harrison and Minister for Immigration and Citizenship[25] at [63]-[45]. The character test is defined in s 501(6) of the Act. Under s 501(6)(a) of the Act, a person will not pass the character test if the person has ‘a substantial criminal record’. This phrase, in turn is defined, relevant to this case,
in s 501(7)(c) and (d) (see [28] above) which provides that a person will have a substantial criminal record if they have been sentenced to a term of imprisonment of 12 months or more or has been sentenced to two or more terms of imprisonment totalling 12 months or more.[25] [2009] AATA 47; (2009) 106 ALD 666.
The Applicant has been sentenced to a term of imprisonment in excess of 12 months as well as two or more sentences totalling more than 12 months. As a result, the Applicant has a substantial criminal record as defined in s 501(7) of the Act and, therefore, does not pass the character test (s 501(6) of the Act). That is conceded by the Applicant.[26] Therefore, the only issue for consideration is whether there is a reason to exercise the discretion to revoke the cancellation of the visa under s 501CA(4)(b)(ii) of the Act (see [29] above).
[26] ASFIC para. 30.
PRIMARY CONSIDERATIONS
First primary consideration: Protection of the Australian community from criminal or other serious conduct (Direction 79 para. 13(2)(a))
Paragraph 13.1 of Direction 79 provides that when decision-makers are considering the protection of the Australian community, they:
(1)...should have regard to the principle 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. Remaining in Australia is a privilege that Australia confers on noncitizens 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(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.
Nature and seriousness of the conduct (paragraph 13.1(2)(a))
Paragraph 13.1.1(1) of Direction 79 provides:
1.In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a. The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b. The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c. The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d. Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e. The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f. The cumulative effect of repeated offending;
g. Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h. Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i. Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
The Applicant has an extensive criminal record. The most serious offences, the ones for which the Applicant received terms of imprisonment, are those of which he was convicted in March 2018 and for which he received terms of imprisonment totalling six years and six months (see [22(g)] above). In sentencing the Applicant, Petrusa DCJ ordered that the terms of imprisonment for the drug possession with intent to sell or supply (four years and four months) and the possession of the firearm (eight months) were to be served cumulatively, with the term of imprisonment for the possession of unlawfully obtained property (18 months) to be served concurrently with the other two sentences, giving an effective term of imprisonment of five years.[27]
[27] R2, G5/52.
The circumstances of the trail and of the offences of which the Applicant was convicted in March 2018, were set out in the sentencing remarks of Petrusa DCJ as follows:[28]
[28] Transcript of sentencing R2, G5/46-48.
…on 9 January this year, which was to be the first day of the trial, you pleaded guilty to one count of unlicensed possession of a firearm. You pleaded not guilty to one count of possession of methylamphetamine with intent to sell or supply it to another, one count of unlicensed possession of ammunition and one count of reasonably suspected of being unlawfully obtained.
These charges proceeded to trial and you were acquitted of the count relating to the ammunition but convicted of the other matters. The three offences that I am now to sentence you for all arose out of a search of your home…on 28 August 2015…
Before the searching commenced you told the police that you had a firearm in the house. You directed them to a cupboard in the kitchen where they located a .22 Winchester bolt action rifle. This rifle had been stolen. You however told police that it had been left at your home a couple of days ago and that you had put it in the cupboard for in effect safe keeping. You said that you didn’t know who it belonged to.
…Police then proceeded to search the house and during the course of the search they located five clipseal bags of a white crystalline substance which were in turn in a vacuum sealed bag on top of the kitchen cupboards. The contents of the clipseal bags were subsequently analysed and found to be methylamphetamine.
The total weight of the methylamphetamine was 138.2 grams and it had a purity of between 78 and 81 percent…On the kitchen bench, near to the area where the methylamphetamine was located police found a black Harley-Davidson bag. The bag contained bundles of money wrapped in rubber bands. The total amount of money found was $94,600.
This is the subject of the possession of property reasonably suspected of being unlawfully obtained charge. Also in the kitchen, in the one location which was adjacent in some respects to where the drugs were found, police located a vacuum sealing machine and associated bags, empty clipseal bags of the same type and size as those that contained the methylamphetamine, a Taser disguised as a torch, a spoon with white crystalline material on it, digital scales and three BlackBerry mobile phones.
In the lounge room of the house the police located a further BlackBerry mobile phone together with some glass smoking implements. In relation to these matters, and during the course of the search, you told the police that you were moving out of the house and had friends of friends over the night before to help you pack. You said that some of the people who had come to help had used drugs at your home despite your opposition to it.
…
You denied to the police at the time of the search that you were a drug dealer or that the drugs were yours. Insofar as the money was concerned you denied that it was yours or that you had any knowledge of it.
…
…You told police that you had been a drug user in the past but that you no longer used drugs, and in particular that your current partner did not condone the use of drugs. Clearly the jury did not accept your account and neither do I.
Given the quantity and quality of the drugs found, the presence of the indicia of drug dealing, together with the substantial amount of money and Mer Huckle’s presence at the house the following day with $8,000, it is clear that you were engaged in the distribution of drugs in a significant way. Accordingly, I consider that you fall at the upper mid-range of seriousness of offences of this kind.
…
In fact you’ve previously been convicted for possession of methylamphetamine with intent to sell or supply in 2013. You also have other drug related convictions on your record. Your criminal record therefore tells me that you do not come before me as a person of prior good character…
The other major conviction that resulted in the Applicant receiving a substantial term of imprisonment was that for which he was sentenced in the District Court in January 2014. That conviction was for the breach of a community-based order that had been imposed on the Applicant by Fenbury DCJ in July 2012. In sentencing the Applicant to a term of imprisonment of 18 months, O’Neal DCJ in January 2014 commented:[29]
You come before me in respect of a breach of the community-based order imposed by his Honour Judge Fenbury on 13 July 2012. The order imposed was for a term of 12 months with a program. The term expired in July 2013.
The order was imposed in respect of an offence of aggravated burglary that was committed on 24 August 2011, the facts with respect to that offending have been read out by counsel for the State and are accepted by counsel on your behalf.
[29] R2, G8/65.
Unfortunately, the material before the Tribunal did not include the transcript of the facts as read by counsel for the State. His Honour continued:[30]
As I’ve observed in the course of the discussion that I’ve had with counsel here and as I think your counsel appreciates, the offence that you committed is quite a serious one. So far as burglaries go, forcing yourself into the house of someone knowing that they’re there in circumstances where you’ve been refused entry, committing these offences that you have; in fact, contrary to a view that the State has seemingly taken at various stages, this is far from an insignificant offence. It’s a serious offence of burglary.
I have to observe that but for the submissions made by the State with respect to the appropriateness of a community based order at that time it is – there could be no other reason for a sentence so lenient being imposed at that time. I also incorporate into these reasons the statement of material facts relating to the breach offences that have been referred to by counsel for the State which have also been accepted by counsel on your behalf.
[30] R2, G8/65.
Again, unfortunately, the material before the Tribunal did not include the statement of material facts relating to the breach offences referred to by counsel for the State. His Honour continued:[31]
It’s quite obvious that whatever thought was had about your circumstances when you were sentenced by his Honour Judge Fenbury, whatever was thought about whether you were remorseful and whether in fact you did have good prospects of rehabilitation, all of those assumptions turned out to be quite wrong for reasons, I suspect, best known to you.
…
As the Community Corrections officer observes, since you managed to avoid gaol for the serious aggravated burglary that Judge Fenbury was sentencing you for, there hasn’t been a significant improvement in your offending behaviour. In fact that would have to be regarded as a diplomatic understatement. Despite the fact that you were on a community based order you were convicted of, as we’ve heard, possession methylamphetamine; and offence committed just three months after you received the community based order and possession of stolen property at the same time.
There have been four convictions for driving while you had no authority to do so; offences committed on 22 November 2012, 30 November 2012, 14 December 2012 and 22 January 2013. In all there are some 23 offences that you committed in the 12 months, most of them punishable by terms of imprisonment. Somehow you managed to avoid a term of imprisonment.
[31] R2, G8/66
The other large group of offences for which the Applicant was sentenced at the one time are those for which he was sentenced by Magistrate Maughan in the Perth Magistrates Court on 16 April 2018. There were 29 offences in all. These comprised offences related to driving while under suspension, driving with false number plates, unlicensed possession of a firearm (a Ruger handgun), failing to comply with a data access order, possession of stolen and unlawfully obtained property (motorbikes and work tools), possession of a prohibited weapon (taser), possession of drug paraphernalia, possession of cannabis, failing to ensure safekeeping of a firearm and ammunition, driving a vehicle subject to a defect notice, driving an unlicensed vehicle and driving with prescribed illicit drug in the system. There are multiple charges in relation to many of those offences listed.[32]
[32] R2, G4/38; R2, G3.
In sentencing, Magistrate Maughan made the following comments:[33]
Mr Pattison, you come before to be sentenced in relation to 29 offences….
…
The facts in relation to those charges are self-evident from the nature of the offences or as otherwise described by me. For the sake of completeness, however, I propose to exhibit in these proceedings, the statement of material facts relating to all of you offending. It was indicated to me by your counsel Mr Margaretic on the last occasion that those facts were not disputed by you, and I therefore adopt them for the purposes of my sentencing remarks.
[33] R2, G4/38.
Unfortunately, again, the material before the Tribunal did not include the statement of material facts to which Magistrate Maughan referred. Magistrate Maughan then referred to the Applicant’s pleas of guilty, and the discount in sentence that that attracted, and his “poor health” as a result of the Accident and the discount in sentencing that that attracted.
He went on the comment:
…In sentencing you I have to have regard to the gravamen of the offending.
The most serious of the offences that I have to deal with are the driving under suspension charges and the possession of the firearms and the possession of the unlawfully obtained property.
Those charges are serious for different reasons. Firstly, in relation to the driving under suspension charge [sic], it’s serious because when a court imposes a punishment upon you, Mr Pattison, if you simply choose to ignore the punishment, the punishment has no punitive effect, and so therefore there comes a time, and that time is today, when a sentence has to be imposed that you can’t ignore, and that’s a sentence of imprisonment, and that’s what’s going to fall today in relation to the charges of driving under suspension.
In relation to the firearm, self-evidently, the community doesn’t want unlicensed firearms on the street. We have a very strict regimen where if you want to have a firearm, you have to have a licence, and you have to pass certain tests as to your character and suitability to hold that licence, and so possession of weapons and firearms and keeping firearms unsafely stored is a matter of concern to the community. And in relation to the stolen property, obviously, given the nature of the offence, it’s not a long bow to draw to find that you received that property perhaps for payment of drugs.
I don’t need to find – make a positive finding as to that fact. The reality is that when you accept stolen property you create a market, and without people like you who are prepared to accept this stolen or unlawfully obtained property, there’s no incentive for people to steal because they can’t pass the property on. So for those reasons it’s a serious matter.
…
…I have to have regard to your record. Your record doesn’t increase the penalties which I have to impose, but nor can you come to the court and say that this offending is an aberration. Clearly, it’s not.
Assessing the Applicant’s history of offending against the considerations identified in paragraph 13.1.1(1) of Direction 79, the Tribunal observes that:
(i)
the Applicant’s offending has included offences involving violence.
The Tribunal accepts that these offences occurred some considerable time ago (common assault in October 2007 and common assault and aggravated burglary in August 2011[34]). Nonetheless, these offences must be viewed very seriously (paragraph 13.1.1(1)(a));
[34] R3, S1/9-10.
(ii)the aggravated burglary and assault in August 2011 involved his former girlfriend and, again, must therefore be viewed very seriously (paragraph 13.1.1.(1)(b));
(iii)
the Applicant’s first convictions, in January 2005 were for disorderly conduct and resisting arrest. He has a conviction in November 2007 for obstructing a public officer, contrary to the Criminal Code, and a conviction in
February 2009 for hindering an authorised officer under the Liquor Control Act (WA) in November 2008 (paragraph 13.1.1(1)(c)). The Applicant’s evidence at the hearing was that the last of those charges arose out of him and a friend failing to leave licensed premises when directed to.[35] He was also convicted at the same time of remaining in the vicinity of licensed premises. The Tribunal accepts that, while the offences referred to would technically fall into the category of offences identified in paragraph 13.1.1(1)(c) of Direction 79, they are not significant offences;
[35] Transcript at 18.
(iv)the sentences imposed by the courts have been significant (paragraph 13.1.1(1)(d)). The Applicant has been sentenced to terms of imprisonment totalling 18 years, four months and two weeks. Many of these sentences were to be served concurrently;
(v)
on any measure, the Applicant’s offending has been frequent. Since his first conviction in January 2005 the Applicant has, up to April 2018,
been convicted of a total of 80 offences. The most serious of the Applicant’s offences are those for which he was sentenced in the District Court in
March 2018 to terms of imprisonment totalling 6 and a half years, some to be served concurrently. Those convictions arose out of the execution of the MDA search warrant in August 2015. Prior to that time the most serious of the Applicant’s offences was the assault on his former girlfriend and aggravated burglary in August 2011 and his conviction for possession of methylamphetamine with intent to sell or supply in November 2013 (offence committed in May 2013). It is the case that after August 2015 the Applicant’s offences were mainly driving related (four convictions for driving under suspension, two conviction for driving with a prescribed illicit drug in his system, two convictions for driving unlicensed vehicles, driving a vehicle contrary to a defect notice and driving a vehicle with false plates). Up to August 2015 there had been a trend of increasing seriousness in the Applicant’s offending, however, there is no clear trend of increasing seriousness in the Applicant’s offending after the serious offences in August 2015 for which he was sentenced in March 2018 (paragraph 13.1.1(1)(e));
(vi)the cumulative effect of the Applicant’s repeat offending, eighty offences in all, is a matter of significant concern and must weigh heavily against the Applicant (paragraph 13.1.1(1)((f));
(vii)
the Applicant received a formal warning from the Department in
October 2014 (see [11] above). Notwithstanding that warning, the Applicant continued to offend. It is clear that the Applicant basically disregarded the formal warning. He signed an acknowledgement of receipt of the formal warning on 29 October 2014[36] but resumed offending within weeks.
On 25 November 2014 he was again caught driving while under suspension[37] and on 13 December 2014 he was again caught driving under suspension, speeding and driving under the influence of drugs. On 24 March and
2 April 2015 Applicant was again caught driving while under suspension and in March and April 2015 the Applicant was caught three times driving a vehicle with a number plate not registered to the vehicle. The Applicant’s offending continued at a steady rate thereafter with, as noted above,
an increase in the seriousness of his offending culminating in the drugs and weapons related charges arising out of the execution of the MDA search warrant on 28 August 2015 (paragraph 13.1.1(1)(h)).
[36] R2, G80.
[37] R3, S1/6.
The nature, seriousness, regularity and sheer volume of the Applicant’s offending,
in particular the offences involving possession of methylamphetamine with intent to sell or supply, possession of weapons and the continual driving while under suspension,
weigh very heavily against the revocation of the cancellation of the Applicant’s visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (13.1(2)(b))
Paragraph 13.1.2 of Direction 79 provides:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a. The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b. The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Tribunal in CZCV and Minister for Home Affairs[38] (CZCV) summarised the task for the Tribunal as follows:
In summary, the Tribunal is required to assess whether the Applicant poses an unacceptable risk of harm to individuals, groups or institutions in the Australian community. In order to make this assessment, the Tribunal is assisted by the following passage from Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 41 VR 359, [111]; [2013] VSCA 213 (which was cited with approval by Mortimer J in Tanielu v Minister for Immigration and Border Protection [2014] FCA 673; (2014) 225 FCR 424 at [95], as well as Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]- [43]):
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
[38] [2019] AATA 91.
In BSJ16 v Minister for Immigration and Border Protection[39] Justice Moshinsky stated,
at [68]:
...there is no statutory constraint on the way that the Minister assesses risk, save that whatever he or she takes into account must be logical and rational.
[39] [2016] FCA 1181.
The Tribunal agrees with and adopts the approach indicated in the above cases.
Nature of harm to individuals or the Australian community (13.1.2(1)(a))
The nature of the harm to individuals and to the community if the Applicant were to deal in drugs as he has in the past, are obvious and serious. As Petrusa DCJ noted in sentencing the Applicant in March 2018:[40]
[40] R2, G5/51.
The principal sentencing consideration of offences involving the distribution of drugs is general and personal deterrence. And the reason for that is that trafficking in drugs results in significant adverse consequences for drug users and the community as a whole..
Drug use and drug abuse is a very significant problem in our community, and it accounts for an enormous amount of distress and misery, not only for those who use it and their immediate family and friends, but it also causes distress to the wider community because it underlies the commission of a lot of our property offences and personal violence offences. It places a strain on community resources to repair the damage that’s been done both physically and emotionally to the individuals involved, and that’s the individuals using the drugs, their family members, their friends, and those who are the victims of crime, that … drug use can generate.
…
A sentence that marks a community’s condemnation of this level of drug distribution is required. The fact that you had a weapon in your possession that was readily available is a further matter of concern. Possession of firearms is always a matter of concern, and that’s why Australia has such strong drugs – firearms legislation.
But where one is available in circumstances where drug dealing is taking place,
this aggravates, in my view, the offending overall.
Further, in relation to the impact of drugs and dealing drugs, in Jacobs and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[41] (Jacobs) and subsequently in McCarthy and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[42] (McCarthy), this Tribunal adopted the summary of Lonsdale DCJ set out at [40] of the decision in Jacobs which included the following assessment:
It is the experience of these courts that illicit drugs cause or materially contribute to a very significant proportion of the criminal offences committed in this State.
And that is either as a result of users acting under the influence, or because of their need to finance or secure a supply of drugs. There are often strong financial incentives to deal in prohibited drugs. Further, significant public resources are devoted to the difficult task of detecting and apprehending persons involved in the supply and distribution of illicit drugs.
[41] [2020] AATA 1524.
[42] [2020] AATA 2939.
On the subject of the impact of drugs and drug dealing on the community, the Tribunal agrees with and adopts the observations of Member Eteuati in Lansdowne and Minister for Home Affairs:[43]
[43] [2019] AATA 2448.
107.The deleterious effects of drug trafficking on the community are well-known and often stated. Australia’s National Drug Strategy 2017-2026, referred to by the Respondent, notes that:
“Over the last five years there has been an increase in the availability and purity of methamphetamine... As a consequence, states and territories are reporting an increase in the harms associated with its use including increased presentations to drug treatment services, ambulance attendances and presentations/admissions to Australian public hospitals.”
108.In Ngo v The Queen [2017] WASCA 3, the Court of Appeal of the Supreme Court of Western Australia (Buss P with whom Mazza JA agreed) stated that the victim of trafficking or attempted trafficking in illicit drugs was the Australian community generally and that:
“The illicit drug trade is a scourge. It inflicts very significant damage on the people who consume the drugs. Also, the deleterious effects of illicit drug consumption extend to the families, friends and associates of the consumers and society generally.”
109.The Respondent in his written submissions referred to the Tribunal’s decision in SCJD and Minister for Home Affairs (Migration) [2018] AATA 4020 (“SCJD”). In SCJD, Senior Member Cameron stated the following in relation to the harmful effects of drug trafficking at [80] to [83]:
The seriousness of drug trafficking is well known. It has been commented on by several of the trial judges before whom the Applicant has come.
The corrupting effect of drug trafficking on the community has many facets. In many instances such as with overdosing on heroin it leads to death. The heroin toll in this country is almost as high as the road toll but rarely rates the same attention. It destroys families. Parent and children relationships frequently cease as a result of a person’s drug dependency. There is a massive toll on the nation’s mental health system caused by consumption of drugs. Frequently, this leads to the triggering of or early onset of a variety of mental health afflictions. These can include anxiety, psychosis, schizophrenia, bipolar disorders and paranoia. Tragically, drugs are all too frequently trafficked to young people including secondary school pupils. It leads to lives and potential careers being derailed, if not finished. It places demands on hospitals, health care systems, disability support networks and agencies, ambulance services, police, courts and other associated organisations and entities.
In the course of ruining lives drug abuse leads to its victims often having to descend into crimes such as burglary, shoplifting and robbery (amongst others) to support their habit. Innocent people going about their lives can be the subject of robbery and attack by drug affected persons.
There is also the organised crime element involved in drug trafficking. The insidious trade of drug trafficking generates vast amounts of cash upon which no tax is paid. This loss of the revenue which is enormous, means that society as a whole is deprived of income that could be provided towards and possibly improve essential public services such as schools, hospitals, police and emergency services.
The Applicant has been convicted twice, March 2018 and November 2013, for possession of methylamphetamine with intent to sell or supply. He has been convicted on six occasions for possession of drugs and twice for possession of drug paraphernalia. He has eight convictions for unlawful possession of firearms, ammunition or weapons or failure to store a firearm properly. The Tribunal notes, and agrees with, the comments of Petrusa DCJ relating to the concern about the presence of weapons in the drug dealing context (see [57] above).
On any criterion, the Applicant’s driving record, particularly the repeated driving while under suspension and driving with illicit drugs in his system, is appalling. The consequences of this conduct, if that Applicant were to repeat his previous behaviour, are serious and obvious. For an example of the consequences one need look no further than the Accident in 2017 which resulted in the Applicant being a partial paraplegic with severe, debilitating life-long injuries. At the time of that accident the Applicant was riding an unlicensed motorbike while under suspension and with prescribed illicit drugs in his system.[44]
[44] R2, G4/39, R3, S1/2-3 and transcript at 37.
Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection[45] observed:
43.There is a further theme to his offending and it relates to his offences involving unlicensed driving and driving with a high range concentration of alcohol in his blood. When he was well past his fortieth birthday, he was sentenced for both of these types of offences. There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
44.I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
45.The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Footnote omitted.)
[45] [2017] AATA 1561.
The above comments of Senior Member Tavoularis are applicable to the Applicant’s behaviour. He has been convicted of driving while disqualified or without a licence on 21 occasions, driving with illicit drugs/excess alcohol in his system on four occasions, driving an unlicensed vehicle or a vehicle contrary to a defect notice on four occasions, driving a vehicle with false number plates or plates not issued in respect of the vehicle on four occasions, speeding, careless driving (twice) and reckless driving. As noted at [22(i)] above,
his driver’s licence has been suspended for a total of 180 months.
The Applicant himself concedes that:[46]
72.In relation to the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or other serious conduct, based on his previous offences, future offending behaviour may result in drugs being available to members of the Australian community. This may result in financial loss and an exacerbation of the physical, mental and social problems that are caused by methamphetamines.
73.Further driving offences may also place other road users at risk.
The likelihood of the non-citizen engaging in further criminal or other serious conduct – risk of re-offending (13.1.2(1)(b))
[46] Para 72 of ASFIC.
While conceding, as he must, that the nature of the harm that would be caused if he were to reoffend as he has in the past is serious, the Applicant argues that:[47]
While the potential harm described above is serious, when considered cumulatively with the likelihood of the Applicant engaging in further criminal or other serious conduct the risk represented by him to the Australian community is low and should not be considered “unacceptable”.
[47] ASFIC para. 74.
Paragraph 81 of the Applicant’s SFIC contends that:
The Applicant began using methamphetamine in his 20s (in or around 2006).
He states that at first his drug use was “not a problem” because he was required to undergo drug and alcohol testing for work, so had a motivation for being “clean”. However once he stopped working on mine sites, he “started using [methamphetamine] on a regular basis and hanging out with people I would not normally associate with, and started getting into trouble with the law.” He received his first conviction related to methamphetamine in March 2013 and was fined $1,500.
(Footnote omitted.)
The Tribunal takes issue with some of the claims made in the above passage. By 2006 the Applicant already had several convictions including two counts of disorderly conduct and one count of resisting arrest. In relation to being “clean” because of drug testing for work, the Tribunal notes paragraph 4 of the Applicant’s statement of 11 August 2020[48] wherein the Applicant says that:
I started using meth in my early 20s. I would use drugs recreationally during my “off swings”. I was subject to urinalysis tests for the site work I was doing so would always abstain if I was going to be working or otherwise engaging in activities involving others’ safety.
[48] A2.
The Tribunal takes the Applicant to be saying that while on site and in the days before he was due to go to the construction sites in the North of the State he would abstain long enough for the methylamphetamine to leave his system so it was not detected in site drug tests, but that otherwise he used methylamphetamine on a regular basis. That is hardly “being clean”.
The other aspect of the Applicant’s claim that appears not to be correct is that assertion that the Applicant’s first conviction for methylamphetamine was in March 2013. The Applicant’s History for Court – Criminal and Traffic[49] indicates that he was convicted of possession of methylamphetamine in December 2012 with the offence date being 27 October 2012.
[49] R3, S1/9.
The Applicant was imprisoned for the first time, except for brief periods on remand,
in May 2013 when he was taken into custody for breaching the community-based order.
He was released, the Applicant says, on 14 October 2014, although the Corrective Services Offender Summary[50] notes the release date as 22 October 2014. In any event, because of the relative shortness of the Applicant’s sentence and the fact that he had been on remand from May 2013 up to the time of his sentencing by O’Neal DCJ in January 2014 (see [45] above), the Applicant was not eligible for any rehabilitative courses while in prison.[51]
[50] R3, S12/51.
[51] Transcript at 20.
The Applicant says[52] that after his release from prison in October 2014, in December 2014 he committed three further driving offences, he says, when driving to job interviews.
The Applicant’s record produced by the Western Australian Police, however, shows that he was caught driving while under suspension on 25 November 2014, speeding (29 kph over the limit) on 13 December 2014, driving while under suspension on 13 December 2014 and driving while under the influence of drugs on 13 December 2014. He conceded these convictions in cross-examination.[53]
[52] Applicant’s SFIC para. 84.
[53] Transcript at 36.
The Applicant’s evidence at the hearing was that:
When I got out of prison, I had trouble finding work. I think – I believe I was busted for driving without a licence. I just wasn’t in the right state of mind. I just relapsed back into drugs, and started hanging around antisocial people again.
He says that around this time, December 2014, he met his future wife, Ms Y, who had a son, and his meeting her, together with the convictions for the traffic offences, was a “wake-up call” to turn his life around.[54]
[54] Applicant’s SFIC para. 84.
As we know, however, despite this claim of turning his life around, the Applicant’s offending, not only continued, but increased in seriousness, culminating in the police search of his house on 28 August 2015 and the numerous serious charges that arose from that search (see [44] above). The Applicant in his statement of 11 August 2020[55] and at the hearing[56] claimed that, before the raid by the police on 28 August 2015, he had decided to move away from the people with whom he was associating at that time, who, he says, were
“bad people”.[57] In relation to the drugs, money, scales, ammunition, bags, taser, BlackBerries and drug paraphernalia found in the search, the Applicant claimed:
The night before – I was actually moving out of that house, because myself and my ex-wife decided to move out, away from the area. It was just – bad people, I wanted to change my life around. So we were packing up the house the night before. I had a good half a dozen to a dozen mates around, helping me pack up. And then the next morning – well, the next morning the police attended the house and executed a misuse drugs warrant on the house.
[55] Para. 13.
[56] Transcript at 21.
[57] Transcript at 21.
The Applicant claimed,[58] that the methylamphetamine and the $94,600 belonged to
Paul Huckle. As noted by Petrusa DCJ, the jury did not accept the Applicant’s story nor did she (see [44] above). Similarly, the Tribunal does not accept the Applicant’s account.
In any event, the Applicant’s account is inconsistent with the findings of guilt by the jury and the comments made by Petrusa DCJ in sentencing. It was the sentence handed down by Petrusa DCJ which resulted in the cancellation of the Applicant’s visa under s 501(3A) of the Act. This Tribunal is bound by that verdict and those comments. Even if the Tribunal were to believe the Applicant’s account of the events immediately prior to the search on
28 August 2015, which it does not, it cannot accept facts which would contradict or impugn the guilty verdicts and the judge’s remarks in sentencing. The Applicant was found guilty of, amongst other charges, possession of methylamphetamine with intent to sell or supply, unlawful possession of a firearm and possession of stolen or unlawfully obtained property, being the $94,600 in cash. As the Full Court (McKerracher, Derrington and Colvin JJ) noted in HZCP v Minister for Immigration and Border Protection[59] (HZCP) at [79] per McKerracher J:
The Tribunal was correct in concluding that the evidence that the appellant sought to rely upon, by which he impugned the facts found by the sentencing judge, could not be entertained. The primary judge was correct in refusing the application on this ground.
[58] Statement dated 11 August 2020, para. 14.
[59] [2019] FCAFC 202.
H is brought by the Applicant’s parents to visit him on a regular basis, monthly if not fortnightly up until the restrictions resulting from COVID-19. Regular visits resumed in
June 2020.
H’s mother, Y, has made it clear that she will not allow H to visit the Applicant if he were to be deported to New Zealand.
In his statement of 7 May 202 the Applicant said:
My daughter is my world. I see her every fortnight only because I am in Bunbury otherwise it would be every week. As soon as she sees me her eyes light up and she runs to me it is the most overwhelming feeling knowing someone loves you so much…If I were unable to stay in Australia she would be lost and so would I,
every child needs to have their father in their life.
…
I hope the restrictions are lifted soon as not being able to see her is eating me up.
If this is how I feel after not seeing her for five weeks I don’t want to try and imagine what it would be like if I am removed from the country.
The Applicant submits, and the Tribunal accepts, that there is no evidence that the Applicant’s prior conduct has had a negative impact on H, apart from resulting in the current separation, or that he abused or neglected H in any way, or that she has suffered or experienced any trauma arising from his criminal conduct.
The Applicant’s father, his mother and his brother all gave statements, and in the case of the Applicant’s mother and brother, evidence at the hearing, that the Applicant’s relationship with H was loving, close and positive. Statements to similar effect were also provided by
Ms Leanne Kearney, Ms Leila Neil and Mr John Bruce and others.
The Respondent submitted that: [97]
While the best interests of these children may be served by the cancellation decision being revoked (paragraphs 13.2(4)(a) and (b) of Direction 79), the Minister contends that this factor should be given limited weight in favour of revocation of the applicant's visa. The Minister notes that the applicant does not have direct care of his daughter and step-son as they are cared for by his ex-wife: paragraphs 13.2(4)(a) and (e) of Direction 79. Further, the Minister contends that this factor is mitigated considering the applicant could maintain contact in other ways (paragraphs 13.2(4)(d) and (e)).
[97] Respondent’s SFIC para. 45.
The Applicant’s reply to the that contention in the Respondent’s SFIC, was:
22.…The evidence before the Tribunal demonstrates that if the Applicant were removed from Australia, he would not be able to see his child in person until she was able to travel internationally on her own. To say this is mitigated by the ability to call and video call over the next 15 or so years ignores the psychological and emotional toll that ongoing separation will have on [H].
The Applicant’s reply asserts that there is a plethora of research that demonstrates the detrimental physical, emotional and psychological impact that ongoing separation from one or both parents has on a young child. The Applicant’s reply cites the Handbook of attachment: theory, research and clinical applications and an article published in the BMJ Paediatrics Open in September 2018, an article published on the website Psychology Today and an article published by Neuroscience News which support that assertion.
In relation to the best interests of L, the Applicant submits that prior to his incarceration the Applicant was heavily involved in his stepson’s life. L did not have another father figure in his life and changed his surname to Pattison in 2018. When the Applicant and Y commenced their relationship, Y had a court order for sole custody of L. His biological father is not involved in L’s life according to the Applicant.
The Applicant also refers to a statement provided by Y before she and the Applicant separated in which she said that the Applicant had, at that time, been the “only dad he has ever known to be part of his life”. While L visited the Applicant in prison initially, those visits stopped after the Applicant and Y separated. The Applicant’s mother described the relationship between her son and L now as follows:[98]
MR HANNAN: Now, according to the records of the Bunbury Regional Prison, during 2019, [L] only visited Matthew twice. Does that surprise you?
MS PATTISON: No.
MR HANNAN: So the relationship between Matthew and [L] is not quite as strong as it used to be, isn’t it?
MS PATTISON: [L]’s at that teenage years where boys don’t want to travel. He wants to stay home and play his video games.
[98] Transcript at 85.
L’s mother Y is now engaged. According to the Applicant’s mother, Y’s new partner is a bikie. In her statutory declaration of 6 August 2020 she seemed to suggest that there may be safety issues in the home that Y, L and H share with her new partner and said that Y had told her that social services had visited the property twice. She did not, however, expand on that claim at the hearing and the Applicant’s counsel did not seek to develop any argument based on there being any safety issues in the home shared by Y and her new partner and the two children.
The Respondent, as noted at [146] above, concedes that the best interests of both H and L “may be served by the cancellation decision being revoked”. The Tribunal is satisfied that the best interests of both L and H, in particular H, would be served by the revocation of the decision to cancel that Applicant’s visa. This consideration weighs in favour of the revocation of the cancellation of the Applicants visa.
Third primary consideration: Expectations of the Australian community (13(2)(c))
Paragraph 13.3 of Direction 79 provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal also refers to the principles and expectations set out in paragraph 6.3 of Direction 79 (see [35] above).
The proper construction of paragraph 13.3 of Direction 79 has been the subject of much judicial analysis. The starting point for most of the recent analysis was Justice Mortimer’s decision in YNQY v Minister for Immigration and Border Protection[99] (YNQY). The two approaches that emerged following her Honour’s decision in YNQY were the so-called broad approach of the type taken by Griffiths J in DKXY v Minister for Home Affairs[100] (DKXY) and the so-called narrow approach of the type taken by Perry J in FYBR v Minister for Home Affairs[101] (FYBR) (for an analysis of those approaches see [99]-[114] of Pinder and Minister for Home Affairs[102]).
[99] [2017] FCA 1466.
[100] [2019] FCA 495.
[101] [2019] FCA 500.
[102] [2019] AATA 1398.
That debate as to which approach is correct appears to have been resolved by the
Full Court of the Federal Court in FYBR v Minister for Home Affairs[103] (FYBR (FC)).
The Full Court, in effect, found that the narrow approach taken by Mortimer J in YNQY and by Perry J in FYBR is the correct approach. That is the approach that the proper characterisation of this consideration is a ‘kind of deeming provision’ – expressing“an expectation deemed by the government to be held by the Australian community” (FYBR (FC) at [61] and [80] per Charlesworth J; see also Stewart J at [89]). A thorough analysis of the Full Court decision in FYBR (FC) is set out by Member Burford at [162]-[170] in her decision in Rehman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[104] (Rehman). See also decisions of the Hon. John Pascoe AC CVO, Deputy President in Hovhannisyan and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs[105] at [77]-[78].[103] [2019] FCAFC 185.
[104] [2019] AATA 4424.
[105] [2020] AATA 3445.
Special leave was sought to appeal the decision in FYBR (FC). On 24 April 2020 the
High Court (Kiefel CJ and Keane J) refused special leave.[106]
[106] FYBR v Minister for Home Affairs & Anor [2020] HCATrans 56.
Justice Stewart in FYBR (FC) found:
89.It is therefore to be expected that the Government of the day may wish to set the norms by which decisions to refuse or cancel visas are made. Where those norms are expressed, at least in part, as reflecting “community expectations” then, in that sense, they might accurately be understood as “deeming” what the community expectations are. That is because, as indicated, as a matter of practical reality there is no one or even necessarily dominant set of community expectations in this field.
90.However, it is not to be expected that the Government of the day would seek, via the device of “community expectations” or otherwise, to dictate to the statutory decision-maker the outcome of a visa refusal or cancellation in any particular case. That would be inimical to the process of decision-making that has been set up under the Migration Act and it would constitute unlawful dictation to the decision-maker: Drake v Minister for Immigration and Ethnic Affairs (1979) 24 ALR 577 at 590-591 per Bowen CJ and Deane J; Bread Manufacturers of NSW v Evans [1981] HCA 69; 180 CLR 404 at 429-430 per Mason and Wilson JJ; CPCF v Minister for Immigration and Border Protection [2015] HCA 1; 255 CLR 514 at [37] per French CJ and [292] per Kiefel J.
91.The above contextual factors lead to two guiding considerations to the proper construction of Direction 65. First, “community expectations” as expressed normatively are what the Government says that they are, even though in actual fact if they were ascertainable community expectations might be quite different. Second, “community expectations” as expressed by the Government do not speak to the outcome in any particular case – they are to be understood and applied normatively.
Justice Charlesworth also observed:
75.Having regard to all that is said above, cl 11.3 should be understood as expressing a deemed community expectation that all persons who have committed serious criminal offences giving rise to character concerns should have their visa applications refused. The nature of the character test is such that the deemed expectation will arise in most if not all cases falling for consideration under s 501(1) of the Act, having regard to the nature and seriousness of the non-citizen’s conduct, assessed in accordance with cl 11.1. The text of the clause emphasises that it may be appropriate to act in accordance with that expectation, so anticipating a class of cases in which it may not be appropriate to do so.
...
79.…The Tribunal must in all cases determine whether it is appropriate to refuse to grant the visa. In an appropriate case, the Tribunal may make a decision that does not give effect to community expectations as the government has assessed them to be. In such a case, the decision-maker would depart from the relative ascription of weight for which cl 8(4) “generally” provides, as he or she is permitted to do. Read as a whole, the reasons of the primary judge should not be understood as suggesting otherwise.
Member Burford put it in Rehman as follows:
173.It follows that in deciding whether or not to revoke a cancellation decision, the Tribunal must have due regard to the statement of the Government’s view deeming the expectations of the Australian community to be that the Applicant, having committed a serious crime, should not hold the visa.
Those expectations remain a primary consideration to which appropriate weight must be given. As expressed, or “deemed” in the Direction, they weigh against revocation with respect to “serious crimes”.
174.However, it remains for the Tribunal to determine what constitutes appropriate weight to be given to this consideration in the ultimate decision. This will depend on the Tribunal’s assessment of the totality of the relevant considerations including the primary and other consideration.
The Applicant has a long history of offending and has displayed a disregard for Australian laws. He has previously been given a second chance when his visa was considered for cancellation in October 2014 during his first term of imprisonment. Having regard to the provisions of paragraphs 6.3 and 13.3(1) of Direction 79 and the Applicant’s serios history of offending and the serious nature of his crimes, the Australian community would expect that the Applicant is not given the privilege of holding an Australian visa. This consideration weighs against the revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
Paragraph 14 of Direction 79 provides:
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
International non-refoulement obligations (14(1)(a))
The Applicant is a citizen of New Zealand. There are no non-refoulement obligations owed by Australia to the Applicant. This is not a relevant consideration in this matter.
Strength, nature and duration of ties (14(1)(b))
Paragraph 14.2 of Direction 79 is as follows:
(1) The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision-makers must have regard to:
a.How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b.The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia with his parents and two brothers on 5 November 1988 at the age of two. Since that time, the Applicant has left Australia on one occasion only,
in 1994. The Applicant arrived as a young child and the Tribunal gives weight to that fact and to the fact that the Applicant has lived in Australia for 31 of his nearly 34 years (14.2(1)(a)).
The Applicant has a reasonable employment record and has, through that employment, contributed positively to the Australian community.
The Tribunal also accepts that the Applicant’s family and social links are in Australia with Australian citizens. The Applicant’s immediate family, his mother, father, brother and infant daughter are Australian citizens or permanent residents. It is also clear from the many statutory declarations, statements and letters filed in support of the Applicant (see [26] above), that the Applicant has many social links in Australia. There were also further statements and letters of support (some from those who also gave statements in these proceedings) included in the representations made to the delegate leading up to the decision under review.[107] It is clear that the Applicant is well-liked and that his being forced to leave Australia would have an emotional impact on his family and friends.
[107] R2, G55-G63.
The Applicant submits that:[108]
Affirming the Reviewable Decision will result in severe and long-lasting emotional and psychological distress and hardship for the Applicant’s family members. There are also concerns that it will exacerbate the Applicant’s Mother’s already precarious health status. She stated in 2018:
As I have stated we are a truly loving and caring family, and to take him away from us would have the effect of two of our children dying. Not only for us but also for his daughter who idolises him, when we take her to visit Matthew the smile and kiss is worth more than anything. We know Matthew done wrong [sic], but all he wants its [sic] to start afresh, leave criminal ways behind him, and to focus on his children.
[108] Para. 186 of Applicant’s SFIC.
In her statement dated 6 August 2020, the Applicant’s mother stated:
38.If Matthew is removed from Australia, the stress of it would kill me. The stress of this has already had such an impact on me. That would be the end of us all.
While the Applicant’s mother’s above statement is clearly hyperbolical, the Tribunal accepts that the Applicant’s removal from Australia would have a significant emotional and potentially health impact on his mother and on the Applicant’s other family members and friends. Considerable medical evidence as to the Applicant’s mother’s physical and mental state, including the inability of the Applicant’s mother to travel, and the likely impact that the Applicant’s deportation would have on her, was presented to the Tribunal. The Tribunal accepts that medical evidence and the evidence of the Applicant’s mother given at the hearing as to the potential impact that deportation of the Applicant would have on her health.
The Tribunal finds that this consideration weighs in favour of revocation of the cancellation of the Applicant’s visa.
Impact on Australian business interests (14(1)(c))
This consideration has no application in the present matter.
Impact on victims (14(1)(d))
Both parties agree that there is no information before the Tribunal regarding the impact that a decision to not revoke the reviewable decision would have on any victims. This is not a relevant consideration in this matter.
Extent of impediments if removed (14(1)(e))
Paragraph 14.5(1) of Direction 79 provides:
(1)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.
In his Personal Circumstances Form dated 26 June 2019, submitted with the request to the delegate to revoke the visa cancellation, in response to the request “describe your concerns and what you think will happen if you return”, the Applicant said:[109]
My concerns are my medical problems, I believe it will be hard for me to work, live, and support myself as I still require intense medical help and ongoing physio, I need ongoing help and support which my family and friends can offer me here. And I know no one in New Zealand. So have no help.
[109] R2, G12/97.
In her statement dated 6 August 2020, the Applicant’s mother stated:
33.His biggest fear about returning to New Zealand, apart from being separated from his child, is having another back injury or operation and not having any family support. I think he is scared but he will not admit it to us. He will be lonely there, doesn’t know anyone there, doesn’t know the system. The problem is not that there isn’t medical support in New Zealand – the problem is a lack of social support to help with recovering after medical operations/issues.
…
35.Matthew would be lost in New Zealand. I don’t think that he would be able to survive there.
The Applicant submits that the hardships that he would face if he were returned to
New Zealand are above and beyond what a “typical” New Zealand citizen would face upon removal from Australia.[110] If, by that submission, the Applicant is suggesting that the exercise to be undertaken in considering paragraphs 14.5(1)(a) and (c) of Direction 79 (see [174] above) is comparing the ability of the Applicant to establish and maintain himself to the level identified in paragraph 14.5(1) to that of an able-bodied New Zealand citizen, then the Tribunal disagrees. The phrase “in the context of what is generally available to other citizens of that country” in paragraph 14.5(1) must be read to mean available to other citizens in the same circumstances, including physical circumstances, as the Applicant.
[110] Applicant’s ASFIC paragraph 195.
The Applicant contends that:[111]
He fears an inability to financially support himself, homelessness and an exacerbation of his health issues due to a lack of stable accommodation and social support in his recovery. If he undergoes a further operation on his back or feet then he will need assistance with daily tasks such as catheterizing, transporting himself around the home, showering, cooking, cleaning and getting to medical appointments during the post-operative periods.
[111] Applicant’s SFIC para. 197.
While the Applicant may hold the fear described above, the mere holding of a fear by the Applicant is not an impediment of the type to be considered under paragraph 14 of Direction 79 which is directing the decision maker to consider actual impediments of the type described, not simply someone’s subjective fear. The Applicant concedes that
“…the Applicant would be entitled to the social security afforded to other citizens of New Zealand”.[112] There is no evidence before the Tribunal that the health supports that would be available to the Applicant if he were to have a further operation would be any different to those that would be generally available to other citizens of New Zealand.
[112] Applicant’s SFIC para. 199.
The other “impediment” identified by the Applicant is his inability to “regularly see his family due to the distance between Perth and New Zealand, COVID-19 travel restrictions,
the associated expenses of regular travel, issues with his child’s custody arrangements,his inability to ever enter Australia again and his mother’s health issues, meaning she is unable to travel”.[113] Again, while that may be the case, that is not an impediment, or at least a direct impediment, in the Applicant establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of that country).[113] Applicant’s SFIC para. 198.
The Tribunal does, however, agree that, while they may not come specifically within the scope of paragraph 14(1) of Direction 79, the Applicant will inevitably face hardships,
and even impediments, in establishing himself and maintaining basic living standards because of his physical disabilities and medical needs. The Tribunal also accepts that an inability to have physical contact with members of his family (and L), particularly his daughter and his mother, would be a hardship, noting that paragraph 14 of Direction 79 refers to impediments in establishing and maintaining a basic living standard, not emotional hardships that separation would bring.
The Tribunal accepts that the Applicant would be likely to have more support, both financial and emotional, if he were allowed to stay in Australia, particularly if the Applicant is to have further surgery. If he were not deported, he would also obviously not have the emotional burden of being physically separated from his family and children. Although hardships are not expressly identified as a relevant consideration under paragraph 14 of Direction 79,
the Tribunal accepts that the hardships that the Applicant will face if deported, even if not technically impediments, are a relevant consideration. As the Tribunal has noted in previous matters (see McCarthy at [121]) the considerations in paragraph 14 of Direction 79 are not expressed to be exhaustive.
The Tribunal finds that while the Applicant would not face any cultural or language barriers, because of his physical disabilities he would face physical, and possibly financial, impediments and hardships in establishing and maintaining himself. These would include his reduced prospects of employment as discussed above and the possibility of future medical procedures and the lack of direct family support through those procedures and recovery therefrom.
These considerations weigh in favour of revocation of the cancellation of the Applicant’s visa.
The Weighing Exercise
Guidance is given by Direction 79 as to how the decision-maker should apply the primary and other considerations. Paragraphs 8(3) - (5) of Direction 79 are relevant. They provide:
(3)Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
A number of cases have dealt with how the exercise of balancing the considerations is to be undertaken. While these cases were generally looking at that exercise under Direction 65, the same considerations apply to the exercise required by Direction 79 which is materially in the same terms. The leading case in this regard is Suleiman v Minister for Immigration and Border Protection[114] (see also the Full Court of the Federal Court decision in Minister for Home Affairs v HSKJ[115]).
[114] [2018] FCA 594.
[115] [2018] FCAFC 217; (2018) 363 ALR 32.
The Tribunal in CZCV at [164] summarised the legal position following the various cases referred to above as follows:
Thus, when read together, these passages from Suleiman and HSKJ are consistent with guidance to be given in the express wording of Direction no. 65, specifically, in paragraphs 8(3) and (4). The Tribunal must ensure, that in considering the primary and other considerations in Direction no. 65, that it must undertake a genuine weighing exercise during which it is not automatically assumed that primary considerations will always weigh more than other considerations (as the use of the word “secondary” tends to suggest). Although, as a general rule, primary considerations should generally be given greater weight, the Tribunal must not fetter itself against giving another consideration greater weight than a primary consideration, if in the circumstances of the case it is correct and preferable to do so.
This Tribunal agrees with the above approach.
Looking at the first primary consideration, the protection of the Australian community,
the relevant consideration is whether the risk is an unacceptable one taking into account the nature and seriousness of the harm that would be caused if there was a repeat of the behaviour and the likelihood of that occurring. For the reasons set out above, the Tribunal assesses the likelihood of the Applicant offending, particularly committing offences, involving drugs, as medium. The harm that would be caused if the Applicant were to repeat the offending that he has engaged in in the past is serious. The risk is an unacceptable one. The Tribunal finds that the first primary consideration weighs heavily against revocation of the cancellation of the Applicant’s visa.
The Tribunal finds that the second primary consideration, the best interests of minor children, in this case H and L, would be served by revocation of the cancellation of the Applicant’s visa.
The third primary consideration, the expectations of the Australian community, weighs against the revocation of the cancellation of the Applicant’s visa.
In relation to the “other considerations” identified in Direction 79, the consideration of strength, nature and duration of the ties that the Applicant has to Australia (paragraph 14.2), weighs in favour of the revocation of the cancellation of the visa. The considerations of the impediments (14.5) and the hardships that the Applicant would face if he is returned to New Zealand, weigh in favour of revocation of the cancellation of the visa.
Having undertaken the weighing of the consideration for and against the revocation of the cancelation of the Applicant’s visa, the Tribunal finds that the considerations which weigh against the revocation of the cancellation of the visa, in particular the first primary consideration; the protection of the Australian community, outweigh the considerations which weigh in favour of the revocation of the cancellation of the Applicant’s visa. Accordingly, the Tribunal finds that there is not another reason why the original decision should be revoked.
DECISION
The decision of the delegate of the Respondent, dated 9 July 2020 to not revoke the mandatory cancellation of the Applicant's Class TY Subclass 444 Special Category (Temporary) visa pursuant to subsection 501CA(4) of the Act is affirmed.
I certify that the preceding 194 (one hundred and ninety-four) paragraphs are a true copy of the reasons for the decision herein of Deputy President Boyle
..................................[SGD]...................................
Associate
Dated: 1 October 2020
Date(s) of hearing: 15 September 2020 Counsel for the Applicant: Ms A Graziotti Solicitors for the Applicant: Estrin Saul Counsel for the Respondent: Mr P Hannan Solicitors for the Respondent: Minter Ellison
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