Pavey and Minister for Home Affairs (Migration)
[2019] AATA 4198
•11 October 2019
Pavey and Minister for Home Affairs (Migration) [2019] AATA 4198 (11 October 2019)
Division:GENERAL DIVISION
File Number(s): 2019/4518
Re:Steven Pavey
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 October 2019
Place:Brisbane
The decision under review is affirmed.
............................[SGD]............................................
Senior Member Theodore Tavoularis
Catchwords
MIGRATION – Non-revocation of mandatory cancellation of a Class BB Subclass 155 Five Year Resident Return Visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 79 – decision under review affirmed
Legislation
Criminal Code Act 1899 (Qld)
Drugs Misuse Act 1986 (Qld)
Migration Act 1958 (Cth)
Penalties and Sentences Act 1992 (Qld)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
DKXY v Minister for Home Affairs [2019] FCA 495
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337
FYBR v Minister for Home Affairs [2019] FCA 500
Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Stone and Minister for Immigration & Ethnic Affairs (1981) 3 ALN 81
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
TGXY and Minister for Home Affairs [2019] AATA 757
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
Senior Member Theodore Tavoularis
11 October 2019
INTRODUCTION AND BACKGROUND
Mr Steven Pavey (“the Applicant”) is a 27 year old citizen of the United Kingdom[1]. Movement records indicate that the Applicant first arrived in Australia on 16 April 1992 and has not left Australia since 2002[2]. The most recent visa granted to him was a Class BB subclass 155 Five Year Resident Return visa (“the visa”) which was granted on 8 August 2001[3].
[1] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (“SFIC”), page 2, paragraph [7].
[2] Exhibit 7, s 501 G-Documents, G29, page 202.
[3] Ibid, G4, page 10.
The Applicant has a lengthy criminal history in Australia, commencing on 1 April 2008 when he was 16 years old[4]. Since then he has offended consistently, committing offences including, but not limited to, offences involving property, unlawful drugs, weapons, breaches of domestic violence orders and trespass. His latest period of incarceration commenced on 7 June 2018[5].
[4] Ibid, G3, page 9.
[5] Ibid, G18, pages 125 – 129.
While serving this term of imprisonment, a delegate of the Minister for Home Affairs (‘the Minister” or “the Respondent”), pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”), decided on 12 July 2018 to mandatorily cancel the Applicant’s visa on the basis that he did not pass the character test.[6]
[6] Ibid, G4, page 10.
On 2 August 2018, the Applicant wrote to the Minister’s Department requesting a revocation of the decision to mandatorily cancel his visa.[7] The delegate of the Minister decided on 26 July 2019, pursuant to s 501CA(4) of the Act not to revoke the cancellation of the subject visa.[8]
[7] Ibid, G6, pages 66 – 71.
[8] Ibid, G17, page 109.
The Applicant lodged an application with this Tribunal on 29 July 2019 seeking a review of the abovementioned decision dated 26 July 2019 not to revoke the cancellation of his visa.[9] The Tribunal has jurisdiction to review this decision pursuant to s 500(1)(ba) of the Act.[10]
[9] Ibid, G2, pages 3 - 8.
[10] For the Tribunal to have jurisdiction to review the decision, the Applicant must also have lodged the application for review with the Tribunal within nine days after the day on which he or she received notification of the decision – see s 500(6B) of the Act.
Notably, this is the second time the Applicant’s visa has been cancelled because he did not pass the character test. On 1 February 2017, his visa was cancelled because he did not pass the character test[11] and on 27 April 2017, the Minister’s Department revoked the cancellation of his visa pursuant to s 501CA(4) after he made representations to the Department[12]. The notice of that revocation[13] contains the following warning:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
[11] Exhibit 7, s 501 G-Documents, G30, page 203.
[12] Ibid, G30, pages 203 – 204.
[13] Ibid.
Despite this warning, the Applicant went on to commit offences in June, August and December 2017.[14]
[14] Ibid, G18, pages 126-127.
ISSUES
Revocation of the mandatory cancellation of visas is governed by s 501CA(4) of the Act. Relevantly, this provides that:
(4) The Minister may revoke the original decision if:
a) the person makes representations in accordance with the invitation; and
b) the Minister is satisfied:
c) that the person passes the character test (as defined by section 501); or
d) that there is another reason why the original decision should be revoked.
There is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, we must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[15]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…”[16]
[15] [2018] FCAFC 151.
[16] Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
·whether the Applicant passes the character test; and
·whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[17] I will address each of these grounds in turn.
[17] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), 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”.
On 12 January 2015 the Applicant was convicted of assault occasioning bodily harm contrary to s 339(1) of the Queensland Criminal Code[18] and sentenced to 12 months imprisonment with immediate release on parole.[19]
[18] Criminal Code Act 1899 (Qld).
[19] Exhibit 7, s 501 G-Documents, G18, page 128.
On 16 November 2016 the Applicant was sentenced to imprisonment for 18 months to be suspended for three years after serving four months for:
(a)Four charges of supplying schedule 1 dangerous drugs contrary to s 6(1)(c) of the Drugs Misuse Act 1986 (Qld) (Drugs Misuse Act);
(b)Three charges of supplying schedule 2 dangerous drugs contrary to s 6(1)(f) of the Drugs Misuse Act; and
(c)One charge of supplying dangerous drugs contrary to s 6 of the Drugs Misuse Act.[20]
[20] Ibid, page 127.
A suspended sentence requires an offender to be of good behaviour for its duration[21]. On 7 June 2018 the Applicant was convicted of offences that he committed during the period of his suspended sentence. He was further convicted of breaching the suspended sentence and sentenced to serve the unserved balance of his original 18 month sentence, being 14 months imprisonment.[22]
[21] Section 144, Penalties and Sentences Act 1992 (Qld)
[22] Ibid.
At the hearing, the Applicant did not appear to cavil with the contention that he did not pass the character test. In his written material he makes the concession that he:
“…does not pass the character test, as prescribed by s 501(6)(a) through the operation of s 501(7)(c), the sole issue for determination is whether there is another reason why the Original Decision should be revoke”.[23]
[23] Exhibit 1, Applicant’s Statement of Facts, Issues and Contentions (‘SFIC’), dated 2 August 2019, page 6, paragraph [37].
For the purposes of the character test, there is no getting around the Applicant’s criminal history. More particularly, there is no getting around the custodial sentence of 12 months that was imposed in 2015, the custodial sentence of 18 months that was imposed in 2016 and the custodial sentence of 14 months that was imposed in 2018. It should be noted that the critical point for present purposes is the term of imprisonment to which a person has been sentenced, not the amount of time they have actually served[24].
[24] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
Consequently, I am satisfied that the Applicant does not pass the character test. The Applicant cannot rely on s 501CA(4)(b)(i) of the Act for the mandatory cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction” or “Direction 79”) has application.[25] The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
(1)…a decision maker:
…
b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.[26]
[25] On 28 February 2019, the former applicable direction, Direction No 65 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 79.
[26] The Direction, sub-paragraph 7(1)(b).
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13 of the Direction provides the three Primary Considerations that the Tribunal must take into account:
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.
Paragraph 8(1) of the Direction provides that decision-makers must take into account the Primary and Other Considerations relevant to the individual case.
The Other Considerations which must be taken into account are provided in a
non-exhaustive list in paragraph 14 of the Direction. These considerations are:
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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[27]
…Direction 65 [now Direction 79] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[28]
[27] [2018] FCA 594.
[28] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(ii)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;
(iii)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 forfeit the privilege of, staying in Australia;
(iv)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;
(v)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;
(vi)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 be allowed to come to or remain permanently in Australia; and
(vii)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A – Protection of the Australian Community
In considering this Primary Consideration A, paragraph 13.1(1) of the Direction compels decision-makers to 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. This paragraph stipulates that remaining in Australia is a privilege that this country confers on non-citizens. Further, this paragraph stipulates an expectation that those non-citizens are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining whether the mandatory cancellation of an Applicant’s visa serves to protect the Australian community, this paragraph of the Direction points out to decision-makers that mandatory cancellation “without notice of certain non-citizen prisoners is consistent” with the abovementioned principle that: (a) it must be acknowledged that remaining in Australia is a privilege conferred on non-citizens in this country; and (b) that those non-citizens must not abuse that privilege by breaking this country’s laws or by otherwise disrespecting its important institutions.
In determining the weight applicable to this Primary Consideration A, paragraph 13.1(2) of the Direction requires decision-makers to give consideration to:
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.
In making these assessments, it is necessary to have regard to the Applicant’s criminal history. The totality of the Applicant’s offending can be gleaned from his criminal history which appears in a document entitled ‘Check Results Report’ from the Criminal Intelligence Commission[29], a document entitled ‘Queensland Court Outcomes’ and a bundle of court briefs from the Queensland Police Service[30] and a document entitled ‘Queensland Court Outcomes (Juvenile) from the Queensland Police Service[31], all of which appear in the material. The material discloses that between 2008 and 2019,[32] the Applicant came before the courts for sentencing on some 17 occasions (including two sentencing episodes as a juvenile) and that he was convicted of some 78 offences that include:
·Offences relating to the possession and supply of illegal drugs;
·Assault;
·Possession of weapons and explosives;
·Damaging property;
·Offences relating to stolen property, and fraud;
·Trespass;
·Breach of Domestic Violence Orders; and
·Breaching bail conditions, failing to comply with a police direction and obstruct police and breaching a suspended sentence.[33]
[29] Exhibit 7, s 501 G-Documents, G18.
[30] Exhibit 6(a), Summonsed material – Qld Police Records.
[31] Exhibit 7, s 501 G-Documents, G3.
[32] This includes sentencing episodes as a juvenile.
[33] Exhibit 7, s 501 G-Documents, G18.
The Applicant also has an extensive history of road traffic offences including unlicensed driving.[34]
[34] Exhibit 6(b), Summonsed material – Qld Department of Transport and Main Roads.
The Nature and Seriousness of the Applicant’s Conduct to Date
In his oral evidence at the hearing, the Applicant seemed aware of the nature and extent of his offending. He seemed to appreciate that his offending had in fact caused harm and could potentially have caused catastrophic harm to other members of the Australian community. The Respondent’s contention is that the Applicant’s offending is of a very serious nature and that this level of offending is born out from an application of the factors appearing at paragraph 13.1.1 of the Direction.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
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)…
d)Subject to paragraph (b) above, the sentence imposed by the Court 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)…
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...;
i)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention.
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of a violent and/or sexual nature are viewed very seriously. The Applicant has a history of violent offending. This violence has manifested in offending involving grievous bodily harm (in 2009), the obstruction of a police officer in the course of their duty (in 2012), domestic violence related offending (in 2012 and 2014), further assaults occasioning bodily harm (in 2014) and common assaults (in 2018).
The violent nature of the Applicant’s offending has been the subject of previous judicial notice by those who have sentenced the Applicant. On 12 January 2015, the Applicant found himself before the Hervey Bay Magistrates Court for sentencing involving offending as diverse as (1) contravention of a domestic violence order; (2) wilful damage; (3) stealing; (4) possession of tainted property; (5) possession of dangerous drugs; and (6) assaults occasioning bodily harm.
In sentencing the Applicant, the learned sentencing Magistrate noted the following:
“You’re rather out of control, Mr Pavey, and you’ve got to do something, and do something about it very quickly. The assault occasioning bodily harm and the breach of domestic violence [sic] was a callous attack by a drunken male on a female where injuries were received. It’s not acceptable in our community, and you know that well and truly. You’ve been before the court before for those similar type offences. I don’t intend to say anything more in relation to that history, Mr Pavey, except to you: wake up to yourself very quickly, otherwise you’re going to spend lengthy periods in custody.”[35]
[35] Exhibit 7, section 501 G-Documents, G21, page 138, lines 6-13.
The reason for the learned sentencing Magistrate’s concern about the Applicant having to change his ways most likely had its basis in the reality that the applicant had a previous history of resorting to physical means against third parties. For example, the Applicant came before the Hervey Bay Magistrate’s Court on 7 June 2012 on one count of assaulting or obstructing a police officer in the course of their duty. This conduct is detailed in the relevant Queensland Police Service Court Brief. That brief reveals that on 19 May 2012 the Applicant obstructed a police officer in the performance of that officer’s duties. The facts make for sobering reading:
“The defendant in this matter is Steven Andrew PAVEY.
At about 17.20hrs on the 19th day of May 2012 Police from Hervey Bay attended [location redacted] in relation to a wanted person that was staying at the unit. The person was wanted for assault occasioning bodily harm and wilful damage arising from a domestic dispute. The victim of these offences was outside the address and stated that the wanted person was inside.
Police have attempted to enter the court yard area through a wooden gate next to a locked garage. The fence and gate are approximately 109cm tall. The gate had been padlocked from the inside. The defendant in this matter was at the address visiting and attended the front gate refusing Police entry into the court yard. The defendant has on several occasions told Police to ‘go and get fucked, your [sic] not coming in here. Police have told the defendant that he was obstructing Police in the performance of there [sic] duties and would be arrested if he refused police entry. The defendant has again told Police to ‘get fucked’.
Police have attended the front of the unit where there was a locked security screen and internal wooden door. Police have knocked on the door and the defendant has looked out through a widow next to the front door. The defendant was told to open the door to which he opened the wooden door. The Police have tapped on the handle of the locked security door and told the defendant to unlock the security door. The defendant has started to tap on the handle and has then said ‘go get fucked you cunts’. The defendant has then slammed the door shut.
Police have re-attended the rear of the unit near the gate and the defendant has climbed up on furniture and sat up on top of a side boundary fence and continued to abuse police and telling them to take off there [sic] uniforms and he would fight them. The defendant has not exited the fenced area but has continued his verbal attack on Police. Police have left the address and returned to the Hervey Bay Police Station where a crime report was furnished for the obstruct police.
At about 10.00pm Police intercepted the defendant driving and he was transported to the Hervey bay Police Station where he was issued with a Notice to appear for this offence.
…’[36]
[36] Exhibit 6(a) Summonsed material – Qld Police Records, page 23.
At the hearing, the Applicant was asked to explain this offending and sought to suggest that the incident was not necessarily violent and that he was merely being obstructive. At the hearing, the following exchange transpired between the Applicant and the Respondent’s representative[37]:
MR HAWKER: You’ve also in your exchanges with the Police Service, there has been at least 1 – I want you to be honest with the tribunal and explain to the tribunal your full exchanges with the police Service where you’ve been obstructive or threatening towards a Queensland Police Service officer. That’s correct?
APPLICANT: Yes. Like, no, like a few times when they’ve arrested me they’ve like tried to lift my arms up and like I throw my arm back, I’ve never – I never hit the officer, it was just always obstruct, you know, like.[38]
[37] Mr Matthew Hawker, Partner, Sparke Helmore Lawyers.
[38] Transcript of Proceedings, 26 September 2019 (‘Transcript’), page 20, lines 17-24.
I do not accept the Applicant’s evidence purportedly trying to ameliorate his conduct towards the Police as merely evasive or obstructive. The reality apparent from the facts is that the Police came to speak with him and he deliberately made it difficult for them to do so. The conduct does not end there. The Applicant used very aggressive language which, for the Police hearing it, would only have caused them apprehension and fear of having to deal with a potentially quite violent situation. In addition, the facts clearly demonstrate that the Applicant did assume physical means in trying to have his way with the enquiring police because he accompanied his very aggressive language with, as noted in the facts, “…the defendant has slammed the door shut”.
There can be no question that the abovementioned profile of the Applicant’s offending demonstrates its inherent violence or propensity towards violence. As such, it can only be viewed very seriously. In his evidence, the Applicant sought to ameliorate much of his offending by suggesting it was committed under the influence of alcohol and/or illicit substances which, in turn, had been the result of him:
“…started to hang around with a bad crowd. In that bad crowd I got myself tied up with a couple of people that, you know, that did crime all the time and, yes, like we got on – had a drinking spree…”[39]
[39] Transcript, page 12, lines 41-44.
The Applicant also sought to attribute his offending to the loss of his father in a motor vehicle incident but there is no independent evidence of the asserted psychological impact of that bereavement being a contributing factor behind his offending. Traumatic though it may have been for the Applicant, the question of whether his offending is attributable to the abuse of alcohol or illicit drugs or otherwise directly or indirectly as a result of the loss of his father is immaterial to my finding in relation to this sub-paragraph (a) of paragraph 13.1.1(1) of the Direction. I am of the view that the often reckless circumstances of the totality of the Applicant’s offending must be viewed very seriously.
Sub-paragraph (b) of paragraph 13.1.1(1) of the Direction stipulates that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed. The material contains quite explicit details about three offences committed by the Applicant on 16 June 2014. This conduct immediately engages the provisions of this sub-paragraph (b). Again, the conduct and offending summarised in the relevant Queensland Police Service Court Brief is both very serious and sobering. It is necessary to summarise the offending by quoting from the relevant portions of each factual matrix relating to each of the three charges committed on that day:
“Charge 1 of 3 [CC] 469(1) Wilful Damage
…
On the 16th day of June 2014 at approximately 7:30pm, the defendant and victim became involved in a verbal argument, after consuming a number of alcoholic beverages since lunchtime. During this argument the defendant became increasingly aggressive towards the victim asking her to hit him in his face.
At this time the defendant has punched the victim in the stomach with a closed fist in an attempt to provoke some type of retaliation from the victim.
The respondent has then picked up the victim’s Samsung Galaxy 4 mobile telephone from the kitchen bench before throwing it against the ground and stomping on it. This has resulted in the phone being destroyed and irreparable.
The defendant has then repeatedly picked up three glass cups and thrown them against a brick wall, smashing each into pieces. The victim has become fearful and taken their child upstairs to her bedroom and put her to sleep. Upon the victim leaving her daughter’s bedroom the defendant has again punched her in the stomach and when told to stop this has only infuriated the defendant.
The defendant has then gone into the victim’s bedroom and grabbed some sex toys and ripped them apart. The victim has tried to push the defendant out of her room, where she was then thrown to the floor.
The defendant then began to urinate on the bedroom floor, before grabbing the victim and throwing her into that urine. The defendant has then punched the victim approximately six to eight times to the face with a close fist.
The victim has attempted to block her face with her arms and hands, yelling for the defendant to stop. The defendant has then picked up a stuffed toy from her bed and ripped it apart, spreading fluff all over the bedroom.
The victim has then observed an altercation between the defendant and the witness in the bathroom, before the defendant has then run down the stairs. The defendant has then smashed the mirror on the victim’s makeup dresser that was situated next to the front door before leaving that address.
…
Facts of the charge 2 of 3 – Assault occasioning actual bodily harm
…
[The facts for this charge repeat and recount the factual circumstances of the abovementioned wilful damage charge but add the following]:
…
On 27th day of June 2014, the victim attended the Acacia Ridge Police Station, made a complaint and provided a Statement, Medical Release form & photographs of her injuries.
The victim states that at no time did she give the defendant permission or authority to assault her in any way.
Injuries include:
Bruise to chin
Bruise to right elbow
Brusie [sic] to left eye
Bruise to left knee
On 4th day of July 2014, Police from Burpengary Station have intercepted the defendant in relation to another matter. At this time Police have conducted checks which revealed that the defendant was currently WFQ [wanted for questioning] in relation to this matter.
Police have transported the defendant to Burpengary Police Station where he participated in an Electronic Record of Interview. During the course of this interview the defendant admitted that he had consumed approximately two litres of “goon” wine and half a bottle of vodka. The defendant admitted that he was very intoxicated and cannot recall much from this night, other than having a physical altercation with the aggrieved and waking up in a neighbouring yard with cut knuckles.
…
Facts of the charge 3 of 3 – Contravention of domestic violence order
[The facts for this charge repeat and recount the factual circumstances of the abovementioned wilful damage and assault occasioning actual bodily harm charges but add the following]:
The Respondent and Aggrieved are subject to a current Varied Domestic Violence (Family Protection) Act Order. DV Index Number QP1200601161. DV Order implemented on: 26/06/2012, expires: 25/06/2014. The Respondent was present in court. This order contains (2) conditions, both of which were breached –
The respondent must be of good behaviour towards the aggrieved and must not commit domestic violence.
the respondent is prohibited from having or attempting to have ANY contact (including by any means of communication) either directly or indirectly with the aggrieved.
...[40]
[My underlining; emphasis in original]
[40] Exhibit 6(a) Summonsed material – Qld Police Records, pages 67-68 and 71-73.
The Applicant was cross-examined about this offending during the hearing. His evidence was tepid and unconvincing. He said that he did not recall the factual circumstances that occurred on 16 June 2014 giving rise to the three abovementioned charges. The offending is, quite simply, beyond reasonable excuse. It squarely meets the requirements of this sub-paragraph (b) because it involved extremely violent, destructive and potentially catastrophic treatment of a woman. It also meets this sub-paragraph’s requirements because the violence was committed in the presence of a child – albeit for part of the episode of the offending conduct. The Applicant’s conduct could have resulted in catastrophic harm to the victim. Any suggestion that the offending was committed while intoxicated or otherwise affected by any substance or substances does not ameliorate its extreme seriousness.
Accordingly, sub-paragraph (b) of paragraph 13.1.1(1) of the Direction has application to the offending perpetrated against this victim and, at least partially, in the presence of an infant child. Regardless of the sentences imposed for these three offences, the Applicant’s violent conduct as described above renders his offending as very serious indeed.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraph (b) above) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/applicant. As is well known, the imposition of a custodial term is regarded as the last resort in any reasonably applied sentencing process. Custodial terms must necessarily be viewed as a reflection of the objective seriousness of a given offence committed by an Applicant.
The Applicant’s criminal history demonstrates that his offending history has run from approximately July 2009 until October 2018.[41] This is a period of approximately nine years. His offending across this nine year period has been such as to attract the imposition of custodial sentences on the following occasions:
[41] Exhibit 7, s 501G-Documents.
·12 July 2012: a probationary period of nine months was imposed for respective offences comprising:
oWilful damage (two counts);
oCommission of public nuisance; and
oContravention of a direction or requirement of lawful authority.
·12 January 2015: sentenced to a cumulative custodial term of 25 months imprisonment for:
oContravention of domestic violence order;
oWilful damage (two counts);
oStealing;
oPossession of tainted property;
oPossession of dangerous drugs; and
oAssaults occasioning actual bodily harm.
·16 November 2016: sentenced to a cumulative custodial term of 19 months imprisonment for:
oSuppling dangerous drugs (four counts);
oSupplying schedule 2 dangerous drugs (three counts);
oSupplying dangerous drugs (further count);
oPossession of dangerous drugs (three counts);
oPossessing anything used in the commission of a crime defined in Part Two;
oPossess utensils or pipes etc that had been used;
oOffence in relation to unauthorised and prohibited explosives;
oUnlawful possession of controlled drug.
·7 June 2018: sentenced to a cumulative custodial term of 20 months imprisonment for:
oSupplying schedule 2 dangerous drugs (five counts);
oSupplying dangerous drugs – schedule 1 and 2; and
oBreach of suspended sentence imposed on 16 November 2016.
·21 June 2018: sentenced to a cumulative custodial term of nine months and seven days imprisonment for:
oReceiving tainted property (three counts);
oReceiving tainted property (firearm/ammunition);
oBreach of bail condition;
oUttering;
oFraud – dishonestly obtain property from another;
oPossess utensils or pipes etc that had been used;
oPossessing dangerous drugs;
oPossessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4;
oPossession of dangerous drugs (two counts);
oPossess property suspected of having been acquired for the purpose of committing a drug offence;
oUnlawful possession of weapons category D/H/R weapon;
oUnlawful possession of weapons category A, B or M weapon;
oPossession of dangerous drugs;
oFailure to appear.
·15 April 2019: sentenced to a cumulative custodial term of seven months and imprisonment for:
oCommon assault (two counts).
There can be no doubt that the abovementioned and very extensive regime of custodial terms is sufficient to attract application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction in favour of a finding that the sentences imposed by the courts for the crimes of this Applicant are supportive of a finding that his offending to date is of a very serious nature.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness. The investigatory exercise required by this sub-paragraph (e) largely mirrors that required in an application of the immediately preceding sub-paragraph (d). This is because any increasing trend in the seriousness of offending is usually analogous to the regime of sentencing imposed for it.
First, with reference to the frequency of his offending, the Applicant’s criminal history discloses the he has found himself before lawful authority as a result of his offending on at least 15 occasions between July 2009 and April 2019.[42] Some 69 individual offences were dealt with by the sentencing courts on these 15 sentencing occasions.[43] There is no other finding than that the Applicant’s conduct has clearly been of a frequent nature.
[42] This number does not include the two additional sentencing episodes committed by the Applicant as a juvenile that was dealt with in the Hervey Bay Children’s Court on 12 February 2009 and 24 February 2009 respectively.
[43] If one includes the two sentencing episodes as a minor, the Applicant had committed 76 offending episodes over 17 sentencing occasions.
Second, with reference to the question of whether there is a trend of increasing seriousness in the Applicant’s offending, one need look no further than his criminal history. Differently to other criminal histories that are reviewed in applications of this type, this particular Applicant’s offending does not reveal an offending history of perhaps less serious offences early in the history that eventually graduate and increase in seriousness. On the contrary, even his offending as a juvenile can be construed as serious or very serious. His offending as a juvenile involved:
·four counts of wilful damage;
·one count of grievous bodily harm;
·dangerous conduct with a weapon; and
·unlawful possession of weapons category A, B or M.
Put at its highest, the very early phases of the Applicant’s offending as an adult might be said to have involved perhaps less serious offences than those offences he committed thereafter. In 2009, he was convicted of trespass, in 2010 he was convicted of receiving and possessing tainted property and in November 2011 he was convicted of contravening a direction or requirement of lawful authority. Be that as it may, there is no escaping the stark reality that from mid-2012, his offending became significantly more serious and it culminates in sentencing episodes in 2015, 2016, 2018 and 2019 where, as has been outlined earlier, the totality of the imposed custodial terms imposed amounts to multiple years. There is thus little or no detectable trend in the seriousness of this Applicant’s conduct. It can be fairly said to have been serious virtually from its commencement (committed as a juvenile) and certainly from no later than the sentencing episode in June 2012.
Thus, an application of this sub-paragraph (e) of paragraph 13.1.1(1) of the Direction points to an inevitable finding that both the relative frequency of the Applicant’s offending and its severity from shortly after its commencement is such as to render his offending in this country as very serious.
Sub-paragraph (f) of paragraph 13.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending and how such an effect does or does not demonstrate the seriousness of that offending. The cumulative effect of this Applicant’s offending can be noted from its various themes. Generally speaking, his offending has involved the occasioning of actual harm on members of the Australian community. His offending has also involved the promotion or circulation of illicit substances within our community which inevitably has the effect of adversely consuming our community’s policing, judicial and medical treatment resources when trying to deal with the consequences of those drugs on our community.
In specific terms, it is, first, clear from the offending that the Applicant’s physical violence has been such as to place at least one member/victim of the community directly in harm’s way, and it should be said, almost catastrophically so. Second, the Applicant has a series of offences in his history demonstrating a failure to respect the lawful authority governing the community to which he now seeks to be returned. His criminal history contains at least seven instances of a refusal to follow or comply with a direction of lawful authority, comprising (1) contravention of a direction of lawful authority, (2) breach of a bail condition, (3) assaulting police and (4) failure to appear in accordance with an undertaking.
Third, the Applicant’s offending has involved a demonstrated failure to respect the personal and property rights of others. His criminal history contains at least 24 instances of a refusal to respect the personal and property rights of others, be it in the form of (1) stealing; (2) wilful damage/destruction of property; (3) receiving and possession of tainted property; (4) Fraud – dishonestly obtaining property from another; and (5) Assault/grievous bodily harm (offending against the person).
An additional cumulative effect of the Applicant’s offending can be seen from his traffic history. His refusal to respect lawful authority clearly extends to the lawful requirements relating to the management and control of a motor vehicle on our roads.[44] Putting aside speeding infractions and suspensions of his licence due to accumulation of demerit points, his driving history is littered with examples of failures to properly respect the rules, laws and regulations governing the operation of motor vehicles. Those specific examples can be succinctly stated thus:
[44] Exhibit 6(b) – summonsed material – Queensland Department of Transport and Main Roads, pages 1-10.
·1 April 2008: unlicensed driving;
·28 December 2008: failure to display L plates;
·25 March 2009: unlicensed driving;
·21 September 2009: unlicensed driving;
·8 October 2011: failure to display L plates;
·24 November 2011: failure to display L plates;
·26 November 2012: driver drive with unrestrained passenger 16 years old or older;
·26 November 2012: failure to display L plates;
·15 August 2017: use/permit use/park vehicle if parts/equipment not in safe condition
·15 August 2017: unlicensed driving.
The application of this sub-paragraph (f) to the present factual matrix involving, as it does, in (1) placing members of the community in harm’s way; (2) actually harming those members of the community; (3) a failure to respect lawful authority and (4) a failure to respect the personal and property rights of others, clearly gives rise to a finding that the cumulative effect of the Applicant’s repeated offending, is such as to render it very serious.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction compels a decision maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status. This factor is clearly not favourable to the Applicant. He was indeed warned about the adverse consequences to his migration status arising from his offending.
In the context of this sub-paragraph (h), the Applicant’s circumstances are somewhat unique. In the overwhelming number of these types of applications that come before the Tribunal, an Applicant either receives no letter of warning or, in the alternative actually receives a clearly termed letter of warning from the Respondent which is duly ignored. In the instant case, the Applicant’s visa was actually cancelled in 2017 but that cancellation decision was subsequently revoked by the Respondent after the requisite representations were made by the Applicant.
For the purposes of this sub-paragraph (h), it is important to cite the terms of the abovementioned revocation which were made abundantly clear to the Applicant:
“…
27 April 2017
…
Dear Steven Andrew Pavey,
Notification of decision to revoke visa cancellation under s501CA(4) of the Migration Act 1958
On 1 February 2017 your Class BB Subclass 155 (five year resident return) visa was cancelled under s501(3A) of the Migration Act 1958 (the original decision). You were invited to ask for revocation of the original decision and you made representations to the decision maker about why the original decision should be revoked.
After consideration of your response, the decision-maker has decided to revoke the original decision to cancel your visa.
…
Please note: the decision does not mean that your case cannot be reconsidered again on character grounds in the event of criminal offending by you
...”[45]
[My underlining; emphasis in original]
[45] Exhibit 7, s 501G-Document, G30, pages 203-209.
This letter was forwarded by email to the Applicant’s then legal representative. In addition, the Applicant signed an acknowledgement of receipt of the abovementioned letter on 27 April 2017.[46] There can be no question the Applicant received this letter. There is no contention that he did not understand its contents.
[46] Ibid, G31, page 210.
Despite receiving this letter, the Applicant continued to offend. The pattern of offending is such as to confirm the Applicant’s total disregard of the warning contained in this letter. Subsequent to receiving the letter, the Applicant committed the offences dealt with during the abovementioned sentencing episodes on 7 June 2018, 21 June 2018 and 15 April 2019 comprising the following offences:
·7 June 2018: sentenced to a cumulative custodial term of 20 months imprisonment for:
oSupplying schedule 2 dangerous drugs (five counts);
oSupplying dangerous drugs – schedule 1 and 2; and
oBreach of suspended sentence imposed on 16 November 2016.
·21 June 2018: sentenced to a cumulative custodial term of nine months and seven days imprisonment for:
oReceiving tainted property (three counts);
oReceiving tainted property (firearm/ammunition);
oBreach of bail condition;
oUttering;
oFraud – dishonestly obtain property form another;
oPossess utensils or pipes etc that had been used;
oPossessing dangerous drugs;
oPossessing dangerous drugs schedule 1 drug quantity of or exceeding schedule 3 but less than schedule 4;
oPossession of dangerous drugs (two counts);
oPossess property suspected of having been acquired for the purpose of committing a drug offence;
oUnlawful possession of weapons category D/H/R weapon;
oUnlawful possession of weapons category A, B or M weapon;
oPossession of dangerous drugs;
oFailure to appear.
·15 April 2019: sentenced to a cumulative custodial term of seven months and imprisonment for:
oCommon assault (two counts).
The content and terms of the letter restoring his visa issued by the Minister to the Applicant in April 2017 could not have been clearer. He blatantly disregarded the letter’s terms. The reality that the Applicant resumed very serious offending conduct after receipt of the letter is merely confirmatory of the very serious nature of that subsequent conduct.
He was afforded an opportunity to modify and ameliorate his offending conduct. He has failed to do so even after the unique circumstances involving an initial revocation of his visa and its subsequent restoration to him. There can be no other finding other than that, pursuant to this sub-paragraph (h) of paragraph 13.1.1(1) of the Direction, the Applicant’s history of offending can only be construed as “very serious”.
Sub-paragraph (i) of paragraph 13.1.1(1) of the Direction has, inter alia, application where a non-citizen commits a crime while in immigration detention. The material discloses that the Applicant has committed common assaults in 2018 during his time in immigration detention. The assaults were occasioned upon an employee of the SERCO security company while the Applicant has been in immigration detention. The material discloses (via the Queensland Police Service Court Brief) the following factual circumstances of the offending:
“…
The defendant is Steven [middle name redacted] PAVEY
Victim 1 is [name redacted]
Victim 2 is [name redacted]. Both are employed by SERCO security company who are contracted at the Brisbane Immigration Centre.
The offence location is Brisbane Immigration and Transit Centre, located at [location redacted]
CHARGE 2 – Common assault
At 11.05am on Wednesday 24th October 2018 a major disturbance broke out inside the “Fraser Compound” at the Immigration centre involving the defendant and multiple other detained persons. The defendant was violently kicking a steel gate connecting the outside recreation yard area and the inside compound area. The defendant was attempting to force the gate open. Victim 2 spoke to the defendant regarding his behaviour. Whilst doing so the defendant immediately pushed Victim 2 to the chest with both his hands causing Victim 2 to stumble backwards. Victim 2 did not give any person permission to assault him.
CHARGE 1 – AOBH [Assault occasioning bodily harm] in company[47]
A few minutes later, around 11.06am the disturbance continued and moved from the outside yard of the complex and continued to the inside rooms.
The defendant became increasingly agitated and aggressive towards the security staff. Victim 1 was situated inside the Officer’s Station inside “Moreton” compound when disturbance for “Fraser” compound was called over the radio. Victim 1 subsequently attended the “Fraser” compound to assist the other Emergency Response Team members (ERT). Victim 1 entered the room and stood near a doorway to enable detainees to leave the area unobstructed. As another detainee, [name redacted], rounded the corner towards the courtyard exit door where Victim 1 was standing, Victim 1 moved to permit him access to the doorway. As Victim 1 was moving, Detainee [name redacted] lunged towards Victim 1, grabbing him around the shoulders and neck with his hands. At this point the defendant in the company of 4 other detainees, [names redacted] rushed towards Victim 1 yelling verbal abuse at him as the mob gathered momentum. Victim 1 was backed into the corner next to the Officer’s Station as the detainees began grabbing him around the neck. Victim 1 was against a wall and unable to escape the assault. The assault consisted of multiple closed hand punches striking the head and neck area, force applied to the upper body, wrists and Victim 1’s hands were grabbed and pulled in the assault. CCTV footage showed the defendant run from one side of the room to the other to get involved. Further showed the defendant push grab and strike towards the victim and the other guards.
Two other ERT officer [sic] positioned themselves between Victim 1 and the defendant/s to enable Victim 1 to escape the assault. Victim 1 required medical attention as a result of the assault and received bruising to right lower ribs, scratches to the skin on the left side of jaw, and upper right eye. Contusion to left side of neck, right side of nose and in region of right thumb and right thigh.
Victim 1 did not give any person permission to assault him.
…”[48]
[My underlining, emphasis in original]
[47] Note: in the interests of fairness to the Applicant and for accuracy, it should be noted that in the course of the Applicant being sentenced for both common assault charges, this “assault occasioning actual bodily harm charge” charge was not proceeded with by the prosecution. The Applicant pleaded guilty to two counts of common assaults simpliciter. See Exhibit 7, s 501 G-Documents, G22, page 139.
[48] Exhibit 5, Respondent’s SFIC, dated 13 September 2019, Attachment A, page 135.
On 15 April 2019, the Applicant was sentenced to, respectively, (1) a custodial term of three months to be suspended for an operative period of six months for the common assault offence and (2) a custodial term of four months to be suspended for an operative period of six months for the for a further charge of common assault.[49] The nature and circumstances of the Applicant’s offending while in immigration detention clearly demonstrates that his offending is of a very serious nature. This specific offending not only resulted in the sustaining of injuries to at least one victim while at the same time, the incident will have no doubt activated certain security measures that would have been taken by the supervising authorities to ensure the maintenance of order at the facility.
[49] Ibid, page 8.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs (a), (b), (d), (e), (f), (h) and (i) of paragraph 13.1.1(1) of the Direction are relevant, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the two following factors on a cumulative basis:
(i)Paragraph 13.1.2(1)(a) requires me to consider the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(ii)Paragraph 13.1.2(1)(b) requires me to consider 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 reoffending.
The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct
The assessment of the nature of harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is, to my mind, properly informed by the nature of his offending apparent from his criminal history to date. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
One does not need any formal qualifications in forensic psychology to comprehend that the recurring common denominator in the Applicant’s offending has been an inability to deal with his consumption of alcohol and/or illicit substances. Time and again in the factual summaries relating to his offending, he himself has told police that the offending for which he is being dealt with is due to his loss of self-control and/or the loss of his moral compass as a direct result of the effect alcohol (in particular) has on him. He seems incapable of resolving difficulties and impasses when sober. Consumption of substances – both legal and illicit – clearly disorients him and causes him to resolve arguments and disputes by way of physically violent means. Of perhaps of greater concern from his history of physical violence is a preponderance towards behaving violently even when not under the influence of alcohol or illicit substances. The relevant example comprises his dual convictions in 2019 for assaults committed while in immigration detention in 2018. One can take the Applicant’s oral evidence at face value when he told the hearing he did not consume alcohol and/or illicit substances while in detention. Be that as it may, this unsettling incident means that he nevertheless yielded to another physically violent resolution to a difficulty presented to him even when, apparently, sober.
The Applicant’s conduct is therefore unpredictable. He is not only violent when consuming alcohol and/or illicit substances. He also has a tendency towards violence at other times as well. His behaviour, viewed holistically, has been unpredictable and largely unregulated. The Applicant has displayed such behaviour towards (1) the police, (2) a domestic spouse, and most recently, (3) towards the SERCO security guards who are charged with responsibility for the maintenance of order and safety of detainees in a secured detention centre. The unregulated and unpredictable nature of his disposition towards violence remains unmanaged and unresolved. It is therefore reasonable to find that the potential consequences flowing from further similar or identical violent offending would be very serious. Were he to re-offend, I am of the view that its effect on a member or members of the Australian community would be very serious indeed.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
In his Personal Circumstances Form, the Applicant was asked “Do you believe that there are any factors that help to explain your offences which should be taken into account by the decision maker? The Applicant responded with:
“Yeah well when I was 17 me and my dad were walking home down a road in Hervey Bay when he was struck by a car and hit me. We both ended up in the ditch. When I got up I ran over to my dad and he was dead. He was my best friend, my father. We did everything together. I lost my role model and never got over what happened that night witch [sic] has led me to being hear [sic]. I am taking the right steps to better myself and get the help.[50]
[50] Exhibit 7, s 501 G- Documents, G24, page 154.
The Applicant was asked two further questions in his Personal Circumstances Form and the answers he provided were as follows:
“…
What do you think is the likelihood that you may re-offend now? Please give reasons for your answer.
I believe if I am given a second chance things will be different as I’m getting the help I need to better my life. Bridges Aod. Councilling [sic] Appointments. And I have moved away from Hervey Bay to start a new life. I can do it. I’m in a better place now in getting the right help.
Have you completed any courses or programs that will help you to avoid further offending and to make a positive contribution to the community? Please provide evidence e.g. course completion certificates.
Im registered with Bridges Aod Salvation Army Uniting Care. And in hear [sic] Ive done Drug and Aclhole [sic] Programs Stress Anger And I am completing them all Will attach completion certificates.[51]
[emphasis in original]
[51] Ibid.
The material discloses a letter from “Bridges” – a drug and alcohol treatment facility.[52] The difficulty with this sort of correspondence is that it is couched in terms of the future. That is, the letter speaks of treatment the Applicant may in future receive, not treatment he has in fact received and/or is currently receiving. In the Bridges letter it is stated that:
“Bridges is happy to provide you with assistance in the form of treatment and counselling that you may require upon your release. We will assign one of our clinicians to you once we have confirmation of your release date.
We ask if you could please contact Bridges as soon as you have confirmation of this date so we can make a future appointment with you.”
[my underlining]
[52] Ibid, G51, page 244.
The Tribunal agrees with the abovementioned submission that there is nothing in these medical records that suggests the Applicant is receiving any sort of unique or novel treatment in Australia that would not be available to him in the United Kingdom.
There are no significant or substantial language or cultural barriers to the Applicant’s return and re-establishment in the United Kingdom. As a citizen of that country, he will have access to social, medical and/or economic support in the context of what is generally available to other citizens of the United Kingdom.
The United Kingdom is culturally and linguistically similar to Australia. It cannot be said the Applicant will face significant linguistic or cultural barriers were he to be compelled to return there. To the extent that he may face some difficulty in re-establishing himself in the United Kingdom, this would only present as a short term hardship and would not preclude resettlement.
The Applicant appeared motivated to return to remunerative employment upon release from immigration detention. He spoke of operating a car parts business. He also spoke of becoming involved in the solid plastering trade and possibly running his own plastering business. There is little or nothing precluding him from doing the type of work he has done in Australia (or that he intends to do here) in the United Kingdom were he to be returned there.
I are thus of the view that this Other Consideration (e) is of neutral weight to the determination of this application.
Findings: Other Considerations
With reference to these Other Considerations, to the extent that any of them may weigh in favour of revoking the mandatory visa cancellation decision, they are outweighed by Primary Considerations A and C, which weigh heavily in favour of non-revocation. The application of the Other Considerations in the present matter can be summarised as follows:
·International non-refoulement obligations: not relevant.
·Strength nature and duration of ties: is of limited weight in favour of revocation.
·Impact on Australian business interests: not relevant.
·Impact on victims: not relevant.
·Extent of impediments if removed: is of neutral weight.
CONCLUSION
Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by
s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. I find as follows:
·Primary Consideration A weighs heavily in favour of non-revocation;
·Primary Consideration C weighs heavily in favour of non-revocation;
·Primary Consideration B weighs moderately in favour of revocation;
·I have outlined the weight attributable to the Other Considerations. I do not consider that any of them, even when combined with each other or with Primary Consideration B, outweigh the very significant weight I have attributed to Primary Considerations A and C; and
·A holistic view of the considerations in the Direction therefore favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 158 (one hundred and fifty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
...............................[SGD].........................................
Associate
Dated: 11 October 2019
Date(s) of hearing: 26 September 2019 Applicant: In person (via videolink) Counsel for the Respondent: Mr Matthew Hawker (Solicitor) Solicitors for the Respondent: Sparke Helmore Lawyers
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