Pettigrew and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] ARTA 39
•13 November 2024
Pettigrew and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] ARTA 39 (13 November 2024)
Applicant/s: Dywayne Harry Archie Pettigrew
Respondent: Minister for Immigration, Citizenship and Multicultural Affairs
Tribunal Number: 2024/6181
Tribunal:General Member Gallagher
Place:Perth
Date:13 November 2024
Decision:The Reviewable Decision, being the decision of the Delegate dated 20 August 2024, to exercise the discretion not to revoke the mandatory cancellation of the Applicant’s Special Category (Temporary) (Class TY) (Subclass 444) visa under section 501CA(4)(b)(ii) of the Migration Act 1958 (Cth) is affirmed.
.................[SGD].......................................................
General Member Gallagher
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – Direction No. 110 – primary and other considerations – protection of Australian community – nature and seriousness of criminal offending – risk to the Australian community should the Applicant commit further offences or engage in other serious conduct – strength, nature and duration of ties to Australia – best interests of children – expectations of the Australian community – extent of impediments if removed – Applicant is a 36 year old citizen of New Zealand – extent of impediments if returned to New Zealand – Non-Revocation Decision is affirmed/set aside
Legislation
Migration Act 1958 (Cth) ss 15, 189, 196, 197C, 198, 499(1), 499(2A), 500(6B), 501, 500(1)(b), 501(6), 501(6)(a), 501(7)(c), 501(3A), 501CA(3), 501CA(4), 501F, 501E, 503
Cases
AJL20 v Commonwealth of Australia [2020] FCA 1305
Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
BHL19 v Commonwealth of Australia (No 2) [2022] FCA 313
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
CRNL v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 138
Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456
FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gage and Minister for Home Affairs [2020] AATA 326
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753
Hughes and Minister for Immigration, Citizenship, and Multicultural Affairs [2024] AATA 3158
HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121
Leo'o Olo and Minister for Immigration, Citizenship and Multicultural Affairs [2024] AATA 2774
Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32
Minister for Home Affairs v HSKJ [2018] FCAFC 217; (2018) 266 FCR 591
Nyemah and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 2107
Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165
QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1
Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666
Short and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3037.
SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344
Soames and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1955
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
XNBW and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 441ZFZM and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1633
Secondary Materials
Minister for Citizenship, Citizenship and Multicultural Affairs, Direction no. 110 — Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501C (21 June 2024) – paras 2, 3, 4(1), 5.1(3), 5.1(4), 5.2, 5.2(2), 5.2(3), 5.2(4), 6, 7, 7(2), 7(3), 8, 8(1), 8.1(1), 8.1(2), 8.1.1(1), 8.1.2, 8.1.2(2), 8.2, 8.2(3), 8.3, 8.3(1), 8.3(2), 8.4, 8.4(4), 8.5, 8.5(1), 8.5(2), 8.5(3), 9, 9.1, 9.2, 9.2(1), 9.3
Statement of Reasons
THE APPLICATION
The Applicant seeks review of a decision of a delegate of the Respondent (the Delegate) dated 20 August 2024, not to revoke the mandatory cancellation of his Special Category (Temporary) (Class TY) (Subclass 444) visa (the visa) under section 501CA(4) of the Migration Act 1958 (the MigrationAct) (the Reviewable Decision).[1]
[1] R1, G2, p 14.
The application for review was lodged with the Administrative Appeals Tribunal (the Tribunal)[2] on 22 August 2024,[3] within the time prescribed by s 500(6B) of the Migration Act. The application for review of the Reviewable Decision is made in accordance with
s 500(1)(b) of the Migration Act, which allows application to be made to the Tribunal for review of decisions of a delegate under s 501 of the Migration Act.[2] As it was then known. On 14 October 2024, a new federal administrative body called the Administrative Review Tribunal commenced, replacing the Administrative Appeals Tribunal. The Administrative Appeals Tribunal has ceased operations, with all current matters now transferred to the Administrative Review Tribunal. References to ‘the Tribunal’ in this decision refer to whichever of the Administrative Appeals Tribunal or the Administrative Review Tribunal was in operation at the relevant time.
[3] R1, G1.
BACKGROUND
The Applicant is a 36-year-old citizen of New Zealand.[4] The Applicant first arrived in Australia on 10 September 1999,[5] at the age of 11.
[4] R1, G2, p 92.
[5] R1, G2, p 186. Other than for a brief visit to Australia in 1997.
The Applicant’s offending history
The Applicant’s criminal history is set out in a Check Results Report by the Australian Criminal Intelligence Commission, run on 29 March 2023[6] and a History for Court Report by the Western Australian Police Force compiled on 2 September 2024.[7]
[6] R1, G2, pp 51 to 54.
[7] R2, TB1, pp 1 to 10.
The Applicant’s offending history is compiled in Annexure A.
The Applicant’s offending commenced in 2007 and continued until 2022. The Applicant committed 74 offences during this time.
Notably, on 25 November 2022 the Applicant was convicted of ‘Attempt to Possess Prohibited Drugs with Intent to Sell or Supply’ and sentenced to 3 years and 6 months imprisonment.[8]
[8] R1, G2, p 52.
Present proceedings
On 26 February 2010, the Applicant was granted the visa.[9]
[9] R1, G2, pp 175, 187.
On 29 September 2016, the Delegate cancelled the Applicant’s visa under section 501(3A) of the Migration Act on the basis that the Applicant had a substantial criminal record within the meaning of section 501(6)(a) of the Migration Act and was 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[10]. The Applicant was notified by letter dated 29 September 2016,[11] which he received by hand-delivery to Acacia Prison on 30 September 2016.[12]
[10] R1, G2, p 175.
[11] R1, G2, p 175.
[12] R1, G2, p 179.
On 18 November 2016 the Delegate decided to revoke the Cancellation Decision.[13] The Applicant was notified of the Delegate’s decision by letter dated 18 November 2016 and signed for receipt of that letter on 28 November 2016.[14]
[13] R1, G2, p 180.
[14] R1, G2, p 182.
On 6 February 2023 the Minister again cancelled the Applicant’s visa under section 501(3A) of the Act on the basis that the Applicant had a substantial criminal record within the meaning of section 501(6)(a) of the Migration Act and was 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 (the Cancellation Decision).[15] The Applicant was notified of the Cancellation Decision by letter dated 6 February 2023 and hand delivered at Albany Regional Prison.[16]
[15] R1, G2, p 187.
[16] R1, G2, p 187.
On 6 February 2023, the Applicant made a request for revocation of the Cancellation Decision.[17]
[17] R1, G2, pp 92 to 93.
On 2 March 2023 the Applicant made representations to the Delegate in support of his request for revocation of the Cancellation Decision under s 501CA of the Migration Act.[18]
[18] R1, G2, pp 92 to 153. See R1, G2, p 32 at [3].
On 20 August 2024, the Delegate found that they were not satisfied that there was ‘another reason’ to revoke the Cancellation Decision, therefore the power under s 501CA(4) was not enlivened and the Delegate made the Reviewable Decision.[19]
[19] See [1] above.
The next day, the Applicant was notified of the Reviewable Decision[20] and on 22 August 2024, he lodged an application in the General Division of the Tribunal,[21] for review of the Reviewable Decision.[22]
[20] R1, G3, p 222.
[21] As it was then known.
[22] R1, G1.
The Applicant is currently being detained at Yongah Hill Immigration Detention Centre.
ISSUES
The issues before the Tribunal are:
(a)Whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)If the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked.[23]
LEGISLATIVE FRAMEWORK
[23] See s 501CA(4) of the Migration Act.
Migration Act
The Migration Act provides special powers for the Minister to refuse or cancel visas on character grounds. In some circumstances, where a visa is cancelled on character grounds, the Minister can revoke that cancellation decision.
These powers generally involve consideration of whether a person passes the character test, and if they do not, consideration of whether there is another reason that the decision to cancel or refuse a visa should be revoked.
The character test is set out in s 501(6) of the Migration Act and provides that a person does not pass the character test if the circumstances listed in that subsection apply. Section 501(6)(a) of the Migration Act relevantly provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); …(Original emphasis.)
A ‘substantial criminal record’ is relevantly defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of
12 months or more; …(Original emphasis.)
Under s 501(3A) of the Migration Act, the Minister must cancel the visa of certain persons, if the Minister is satisfied that the person does not pass the character test because the person has a substantial criminal record as a result of being sentenced to a term of imprisonment of more than 12 months.
Additionally, under s 501(3A) of the Migration Act, the person must be 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.
If a visa is cancelled under s 501(3A) of the Migration Act, the Minister must give the person a written notice inviting them to make representations about revocation of the original decision.[24] If the person makes representations in accordance with the invitation, then under s 501CA(4), the Minister may revoke the original decision if satisfied that the person passes the character test or that there is another reason why the original decision should be revoked.
[24] Migration Act s 501CA(3).
Making a revocation decision under s 501CA of the Migration Act requires the decision-maker to first decide whether the person passes the character test under s 501CA(4)(b)(i) and, only if satisfied that the person does not, to then decide under s 501CA(4)(b)(ii) if there is ‘another reason’ why the original decision should be revoked.[25]
[25] HZCP v Minister for Immigration and Border Protection (2019) 273 FCR 121, 136 [66].
THE HEARING AND THE EVIDENCE
The hearing was held on 30 October 2024 at the Tribunal’s Perth Registry. The Applicant was self-represented. Mr Ashley Burgess appeared for the Respondent, instructed by Ms Maggie Woollett, both of the Australian Government Solicitor. Both parties appeared in-person.
At hearing, the Applicant made submissions, gave evidence and was cross-examined. The Tribunal also took evidence from Mr Kyle Hinton by telephone.
The Tribunal admitted the following documents into evidence:
(a)
Applicant’s Statement of Facts, Issues and Contentions dated 18 October 2024
(Exhibit A1);
(b)Applicant’s letter dated 23 October 2024 (Exhibit A2);
(c)Letter from Mr Hinton (the Applicant’s friend) dated 25 October 2024 (Exhibit A3);
(d)Letter from Ms Naomi Wilson (the Applicant’s sister), undated (Exhibit A4);
(e)Letter from Ms HK (the Applicant’s ex-partner), dated 10 October 2024 (Exhibit A5);
(f)Letter from Mr Steen Robert Twyman (the Applicant’s friend), dated 19 October 2024 (Exhibit A6);
(g)Letter from Mr CP (the Applicant’s son), undated, filed 22 October 2024 (Exhibit A7);
(h)Letter from Ms LP (the Applicant’s (daughter), undated, filed 25 October 2024 (Exhibit A8);
(i)Letter from Ms Tamara Morrison (the Applicant’s friend), dated 23 October 2024 (Exhibit A9);
(j)Respondent’s Section 501G Documents, being a set of documents numbered G1-G3, filed 5 September 2024 (Exhibit R1);
(k)Respondent’s Tender Bundle, being a set of documents numbered TB1-TB3 (Exhibit R2);
(l)Respondent’s Supplementary Tender Bundle, being a set of documents numbered STB1-STB2 (Exhibit R3); and
(m)Respondent’s Statement of Facts, Issues and Contentions, dated 23 September 2024 (Exhibit R4).
The Tribunal has taken into account the additional letters of support from the Applicant’s relatives, friends and community contacts. At hearing, the Tribunal provided the opportunity for the parties to respond to matters put by the Member, directed at matters relevant to ‘Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction No. 110), in their oral closing submissions.
DOES THE APPLICANT PASS THE CHARACTER TEST?
As noted above, the character test is defined in s 501(6) of the Migration Act. Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a ‘substantial criminal record’, as defined by s 501(7). Relevant to the Applicant’s case, a person has a substantial criminal record if they have been ‘sentenced to a term of imprisonment of 12 months or more’.[26] Failure to pass the character test arises as a matter of law.[27]
[26] Migration Act s 501(7)(c).
[27] Re Harrison and Minister for Immigration and Citizenship [2009] AATA 47; (2009) 106 ALD 666 at 685 [63].
On 25 November 2022, the Applicant was convicted in the Perth District Court of Western Australia of ‘Attempt to Possess Prohibited Drugs with Intent to Sell or Supply’, was sentenced to 3 years 6 months imprisonment and was declared a Drug Trafficker.[28]
[28] R1, G2, p 52 and R2, TB1, p 1.
As the Applicant has been sentenced to a term of imprisonment of 12 months or more, he does not pass the character test by operation of s 501(7)(c) of the Migration Act.[29]
[29] The parties accept this is the case.
Accordingly, the Tribunal is not satisfied that the Applicant passes the character test.[30]
[30] See Migration Act s 501CA(4)(b)(i).
CONSIDERATION OF REVOCATION
As the Tribunal is not satisfied that the Applicant passes the character test, the Tribunal must then determine whether, having regard to the primary and other considerations contained within Direction No.110, there is another reason why the Cancellation Decision should be revoked. The statutory power to revoke will only be enlivened if there is ‘another reason’ why the Cancellation Decision should be revoked.[31]
[31] s 501CA(4)(b)(ii) of the Migration Act.
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the Cancellation Decision should be revoked, reasonably and on a correct understanding of the law. By reason of section 499(2A) of the Migration Act, in doing so, the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to section 499(1) of the Migration Act.[32]
[32] See [38] to [44] below.
Direction No. 110
The Tribunal is required to form a state of satisfaction as to whether there is ‘another reason’ why the original decision should be revoked, reasonably and on a correct understanding of the law.[33] By reason of s 499(2A) of the Migration Act, in doing so the Tribunal must comply with written directions about the performance of its functions or the exercise of those powers which are given by the Minister pursuant to s 499(1) of the Migration Act.
[33] FCFY v Minister for Home Affairs (No 2) [2019] FCA 1990 at [63] (Thawley J); Deng v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 1456 (Halley J) at [119].
On 7 June 2024, the Minister made Direction No. 110 under s 499 of the Migration Act, which commenced operation on 21 June 2024. This Direction replaced the previous Direction No 99.[34]
[34] Direction No. 110 paras 2-3.
An objective of Direction No. 110 is to guide decision-makers in exercising powers under ss 501 or 501CA of the Migration Act.[35] In exercising the power under s 501CA(4), the Tribunal must have regard to the primary and other considerations set out in Direction No. 110 where relevant to the decision.[36]
[35] Direction No. 110 para 5.1(4).
[36] Direction No. 110 para 6.
Paragraph 5.1 of Direction No. 110 sets out ‘[o]bjectives’ including para 5.1(3) which provides that:
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 fulltime 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 their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No. 110 sets out ‘[p]rinciples’ which must be taken into account by decision-makers under ss 501 and 501CA of the Migration Act. These principles ‘provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA’ and are expressed as follows:
(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 safety of the Australian Community is the highest priority of the Australian Government.
(3) Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(5) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6) With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8) The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
In making a decision under s 501CA(4), the primary considerations to be taken into account by the Tribunal are:[37]
(a)protection of the Australian community from criminal or other serious conduct;
(b)whether the conduct engaged in constituted family violence;
(c)the strength, nature and duration of ties to Australia;
(d)the best interests of minor children in Australia; and
(e)expectations of the Australian community.
[37] Direction No. 110 para 8.
The ‘other considerations’ that the Tribunal must take into account, insofar as they are relevant to the matter, include (but are not limited to):[38]
(a) legal consequences of the decision;
(b) extent of impediments if removed; and
(d) impact on Australian business interests.
[38] Direction No. 110 para 9.
Further guidance as to how a decision-maker is to apply the considerations in
Direction No. 110 can be found in para 7, which provides that:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)The primary consideration at 8.1 below (protection of the Australian community) is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
In his application for review, the Applicant claimed that:[39]
Some of the stuff put forward by the minister is wrong.says that I was caught with a homebrew.but it wasn’t at all it was sum fruit in bottle that I was like similar to adding lemons to make it healthier there was no actually active ingredient to make hi Ome brew [sic] and it was in my fridge.to home brew it need to cook in heat.Not sit in fridge.Using my case from 10 years ago is unfair because since then I have undertaken domestic violence rehab and have never committed violence agains woman since.and I hate DV.I have tried so hard since being arrested in 2020 to address all my issues and change my ways.Revocation process is not a fair way for me to make my case.
[39] R1, G1, p 6.
The Tribunal understands the Applicant’s position to be that the Cancellation Decision should be revoked for reasons of his low risk of reoffending following steps taken to rehabilitate, his strong and enduring family ties to Australia, the best interests of his three minor biological children and the significant impediments he would face in relocating to New Zealand.
The Respondent, however, contended that the Tribunal should not be satisfied that there is another reason why the Cancellation Decision should be revoked and the correct or preferable decision is to affirm the Reviewable Decision. The Respondent’s summary position is that having regard to the Applicant’s circumstances as a whole,[40] while there are considerations weighing in the Applicant’s favour,[41] the primary considerations of the protection of the Australian community, family violence and the expectations of the Australian community weigh significantly against revocation.
[40] R4 [78].
[41] Being the strength, nature and duration of the Applicant’s ties to Australia, the best interests of minor children in Australia and the extent of impediments if removed.
First primary consideration: Protection of the Australian Community
The first primary consideration, paragraph 8.1(1), focuses on the protection of the Australian community.
Direction No. 110 requires decision-makers to keep in mind that the safety of the Australian community is the highest priority of the Australian Government and to that end the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, the Tribunal is directed to have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.[42]
[42] See also Direction No. 110 para 8(1).
Paragraph 8.1(2) of Direction No. 110 then provides that 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
The Tribunal must consider the nature and seriousness of the Applicant’s criminal offending and other conduct to date[43] by having regard to specific types of crimes or conduct which are ‘viewed very seriously’ by the Australian Government and the Australian community. The direction also provides that certain other crimes or conduct are considered to be serious. While there are categories of conduct considered to be very serious or serious, it does not limit the range of conduct that may be so regarded.[44]
[43] For completeness, the Tribunal notes there is no ‘other conduct’ to date that falls for consideration in this matter.
[44] Direction No. 110 para 8.1.1(1)(a).
Paragraph 8.1.1(1) of Direction No. 110 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 the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i violent and/or sexual crimes;
ii crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the impact of the offending on any victims of offending or other conduct and their family, where information in this regard is available and the non-citizen whose visa is being considered for refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
e)the frequency of the non-citizen's offending and/or 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 offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
In relation to the nature and serious of the Applicant’s conduct, the Applicant submitted that he is truly ashamed of his actions, for which he accepts full responsibility, that he feels saddened by the number of children affected by inmate fathers incarcerated for drug related offences. The Applicant considers his punishment (of being incarcerated) is going to have a negative effect on his children.
The Applicant emphasised that the police officer whom he assaulted in October 2012[45] during one of his offences spent a lot of time pursuing him and “dogging” him after his first arrest and that he has since apologised to this officer.
[45] See R2, TB1, pp 55 to 56.
The Applicant said he accepts full responsibility for his actions, although noting his ex-partner testified in court that he did not physically touch her (when he offended against her) rather he moved towards her in a way that caused her to react in shock, and she fell over. The Applicant said he failed to care for his then pregnant ex-partner and looks back on that day with utter contempt and shame. At hearing the Applicant challenged the facts of this offence as recorded in the statement of material facts,[46] namely that the Applicant had fallen, rather than him having pushed her, although her did accept the victim was scared that he was going to assault her.
[46] R2, TB1, p 51, being the Common Assault in Circumstances of Aggravation of Racial Aggravation offence for which he was convicted on 7 June 2013.
As to one of his assault convictions,[47] relating to his assault of a friend, the Applicant stated that the statement of material facts recorded by police does not tell the true story. The Applicant said that it was actually him and his friend (the victim) who were trying to stop the subsequent fighting that had transpired between an unknown assailant and his friend after their initial altercation.[48]
[47] See R2, TB2, p 90.
[48] Se A1, p 2.
The Applicant maintains, however that he is deeply remorseful for the harm he caused to the victims of his crimes, and feels an overwhelming shame in this regard along with deep regret regarding the impacts his absence has had on his two youngest sons.
In relation to the nature and seriousness of the Applicant’s conduct, the Respondent submitted that this should be viewed as ‘very seriously’ and weigh heavily against revocation for the following reasons:[49]
[49] R4, [20] to [38].
(a)The Applicant’s extensive criminal history should be regarded as significant. He has been convicted of 74 offences while in Australia. These are offences involving violence, drug offences and driving offences.
(b)The repetitive nature of these offences demonstrates the Applicant’s disregard for complying with the law, or for the safety of the Australian community. Of the Applicant’s convictions:
· 27 are for driving and traffic offences;
· 21 are for drug related offences;
· 7 are for offences involving violence or weapons;
· 8 are for breaches of orders; and
· 11 are offences involving stealing, trespass, property damage and disorderly conduct.
(c)The Applicant’s offending is not a one-off mistake, but reflects a consistent pattern of behaviour that endangers the Australian community. This pattern of behaviour is inconsistent with the expectation that non-citizens are law-abiding and respect our institutions and law enforcement framework.
(d)The offence dated 25 November 2022, Attempt to Possess Prohibited Drugs with Intent to Sell or Supply, involved the Applicant collecting a package sent from overseas which he was aware contained methylamphetamine. The package contained 55.7 grams of the drug with a purity of 81 per cent.
(e)The seriousness of this offending is reflected by the sentence imposed by the Court, being a term of imprisonment of 3 years and 6 months (paragraph 8.1.1(1)(c) of Direction No. 110). The Applicant has been sentenced to multiple terms of imprisonment over approximately an 8-year period, however this is the longest sentence he has received. This indicates the increasing seriousness of the offending and that the Applicant has not been deterred by prior (shorter) sentences of imprisonment and fines.
(f)Whilst this offending might not fall within the specific categories listed as ‘very serious’ and ‘serious’ in 8.1.1(1)(a) and (b) of Direction No. 110, the Tribunal has shared a view that there will be crimes or other conduct which can properly be characterised as such, but which are not specifically mentioned in this part of the Direction. Such crimes would include serious drug offences.[50] The amount of drugs involved in the Applicant’s offending was significant and contributed to the severity of the Applicant’s sentence. It also contributed to the Applicant being declared a drug trafficker. The sentencing Judge found the Applicant’s conduct had the potential to cause ‘great harm in the community’.[51] The insidious effects of methamphetamine in the community is well known.
[50] Short and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021]
AATA 3037.
[51] G1, p 58.
(g)The Applicant also has approximately 27 driving and traffic offences, committed over a 13-year period. These offences include reckless driving, driving with a prescribed illicit drug and driving without a license.[52] These offences placed the lives of other road users at risk. The Tribunal has repeatedly observed the seriousness of driving offences.[53]
[52] R2, TB1, pp 1 to 10.
[53] See Pokrywka and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 5165 at [35]; Gage and Minister for Home Affairs [2020] AATA 326 at [75]- [76]; SLNY and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 344 at [43]; Berryman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 421 at [80]-[81].
(h)In Mayes and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 32 (Mayes) at [50], Senior Member Dr Evans-Bonner noted:
... Licensing rules are in place to ensure drivers are suitably qualified and responsible in order to protect innocent road users from harm. Additionally, as well as these types of licensing related offences, the Applicant also has convictions for driving under the influence of alcohol (2008), reckless driving (2008) and driving under the influence of an illicit drug (2014). Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that “...driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly.
(i)In Mayes at [51], Senior Member Dr Evans-Bonner then went on to cite the comments of Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]-[45] which graphically encapsulate the serious nature and adverse consequences to the community of driving offences.
(j)The Applicant’s prior offending which resulted in sentences of imprisonment include:
(i)Conviction date of 25 January 2013 for:
Unlawfully assault and thereby did bodily harm with circumstances of aggravation – he received a 2-month cumulative sentence;
Obstructing public officers – he received a 1-month concurrent sentence;
Breach of protective bail conditions – he received a 1-month concurrent sentence; and
Assaulted a public officer – he received a 6-month concurrent sentence.
(ii)Conviction date of 29 August 2014 for:
Reckless Driving – Inherently Dangerous (to escape pursuit by police) – he received a 6-month concurrent sentence; and
No Authority to Drive – Suspended – he received a 1-month cumulative sentence.
Conviction date of 15 January 2016 for:
Driver failed to comply with directions to stop – he received a 6-month concurrent sentence;
Reckless Driving – Dangerous to Public or Person (to escape pursuit) – he received a 12-month cumulative sentence;
No authority to drive – suspended – he received a 6-month cumulative sentence;
Unlawful Wounding – he received a 5-month cumulative sentence;
Stealing – he received a 4-month concurrent sentence; and
Steal Motor Vehicle – he received a 3-month concurrent sentence.
(k)The Assaulted a public officer offence above involved the Applicant punching a police officer to his left eye, resulting in immediate bleeding from a 2.5-centimetre laceration above his eyebrow.[54] The police officer received 3 sutures to the laceration.
(l)The Unlawful Wounding and Stealing offences above involved the Applicant and the victim having a dispute over money, relating to a period where the Applicant rented a room at the victim’s address. The Applicant picked up a small wooden TV stand and forcefully struck the victim on his head. The victim required 2 stiches to a cut on his arm and medical intervention for an 8-centimetre cut and swelling to his head.[55] The Applicant then stole a flat screen TV, microwave oven and other items from the victim’s house.[56]
(m)The Applicant has been convicted of the above violent offences, where the victims of his offending required medical attention. These offences are very serious, as Direction No. 110 states that violent crimes are viewed very seriously by the Australian Government and the Australia community.[57]
(n)As a result of the above offending, the Applicant’s visa was previously cancelled on 29 September 2016.[58] After seeking revocation, the cancellation was revoked on 18 November 2016.[59] The letter that advised of the revocation, stated in bold:
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.
(o)The Applicant went on to commit 13 offences after having his visa cancellation revoked.[60] The Applicant’s lengthy history of reoffending despite receiving the above warning means that he remains an unacceptable risk of reoffending if the cancellation is revoked (paragraph 8.1.1(1)(h). It can be expected that if the Tribunal revoked the cancellation in this case (again), the Applicant would go on to offend (again).
(p)On 13 October 2021, the Applicant was convicted of Common Assault and received an $800 fine. The statement of material facts describes the Applicant and an unknown male punching the victim several times to the face and body, during which the victim sustained a broken nose.[61] The victim was assisting the Applicant to fix his car at the time. This offence is very serious as it involves violent offending, where the victim sustained injury.[62]
(q)In relation to paragraph 8.1.1(1)(g), whether the non-citizen has provided false or misleading information the Department, the Applicant failed to declare his convictions on his passenger cards dated 26 February 2010.[63] The Applicant answered ‘no’ to the question ‘Do you have any criminal convictions?’. The Applicant completed these passenger cards after he had been convicted of 9 offences in 2007 including driving offences and a trespass offence. The Applicant states that it was his first time travelling internationally since arriving in Australia to reside, and he interpreted the question to mean whether he had any criminal convictions in New Zealand.[64] He further states it was an ‘honest mistake’. The passenger card advises incoming passengers to mark ‘yes’ if they are unsure about the question. This should weigh lowly-moderately against the Applicant.
[54] R2, TB p 55-56.
[55] R2, TB p 76-77.
[56] R2, TB p 76-77.
[57] Direction No. 110 para 8.1.1(1)(a)(i).
[58] R1, G2, p 175.
[59] R1, G2, p 180.
[60] R1, G2, p 52.
[61] R2, TB 91 – the offence listed in the statement of material facts is Assault Occasioning Bodily Harm. As
the offence date is 30 May 2020 and matches that in the History for Court for Common Assault, we
assume these refer to the same offence, but the offence name was changed.
[62] Direction No. 110, para 8.1.1(1)(a)(i).
[63] R1, G2, p 183.
[64] R1, G2, p 156.
The Tribunal has considered the parties submissions in relation to the nature and seriousness of the Applicant’s offending conduct by reference to matters or considerations raised in paragraph 8.1.1 of Direction No. 110.
The Tribunal notes the facts and circumstances of the Applicant’s offending and the convictions imposed. The Tribunal notes the Applicant has been sentenced to multiple terms of imprisonment. In particular, on 25 November 2022, the Applicant was found guilty of Attempt to Possess Prohibited Drugs with Intent to Sell or Supply,[65] which resulted in a sentence of 3 years and 6 months concurrent imprisonment and a drug trafficker declaration. The Tribunal notes the facts and circumstances of that offence and the related sentencing remarks.[66]
[65] The Tribunal understands that the drugs were intercepted and did not reach the community. See R2, TB1, p 102.
[66] R2, TB1, p 102 and R1, G2, pp 55 to 62.
In relation to para 8.1.1(1)(a) of Direction No. 110, the Tribunal finds that the Applicant’s offending is very serious. The parties’ consensus that this is the case is of sound basis, given the Applicant having reoffended after a formal warning and prior visa cancellation, the high number of offences and the fact that his offending led to several and significant terms of imprisonment.
The Tribunal has had regard to the Applicant’s prior violent offending and family violence offending convictions detailed in the evidence,[67] including assaulting a public officer, punching a police officer in the face, unlawful wounding, striking a victim with a wooden TV stand and inflicting a number of blows upon his former partner (who was heavily pregnant at the time) and slamming her head into a toilet wall. The Applicant’s criminal offending or other conduct that constitutes violent offending and family violence are viewed very seriously by the Australian Government and the Australian community.[68]
[67] See [57] above and Annexure A.
[68] Direction No. 110 para 8.1.1(1)(a)(i) and para 8.1.1(1)(a)(iii).
The Tribunal notes that some of the conduct it regards as very serious does not fall squarely within the conduct referred to in para 8.1.1 of Direction No. 110. It is not strictly required to. Indeed, para 8.1.1(1)(a) of Direction No. 110 makes clear that the range of conduct that may be considered ‘very serious,’ is not limited to the types of crimes or conduct expressly referred to in that paragraph.[69]
[69] Direction No. 110 para 8.1.1(1)(b) makes clear the same, in relation to conduct that may be considered ‘serious,’ using the same prefix ‘without limiting the range of conduct that may be considered serious…’
Namely, the Tribunal has regard to the fact that the Applicant’s history of offending of 27 driving and traffic offences are serious crimes against other road users,[70] and 21 drug related offences, which the Tribunal has also often cited as serious.[71] The repeated nature of the Applicant’s driving and drug offences further demonstrates the seriousness of the offending and the increased potential for catastrophic harm.
[70] See for example QJYD and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1 at [51] to [54].
[71] See for example Harris and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 753 at [75].
The Applicant’s offending involved conduct for which he was ultimately sentenced to several terms of imprisonment, two of which totalling 12 months or more and most recently for a term of 3 years and 6 months concurrent. This conduct forms the basis of the finding that the Applicant did not pass the character test,[72] and is, in the Tribunal’s view, probative of the overall seriousness of that offending conduct.[73]
[72] Direction No. 110 para 8.1.1(1)(b)(iii).
[73] Direction No. 110 para 8.1.1(1)(c).
In considering para 8.1.1(1)(b) of Direction No. 110, the Tribunal is also to have regard to whether the Applicant has caused a person to enter into or be a party to, a forced marriage,[74] whether the crimes were committed against vulnerable members of the community or government representatives or officials[75] and any crime committed while in immigration detention.[76] None of the Applicant’s offending or other conduct falls within these categories, nor have the parties made claims in this regard.
[74] Direction No. 110 para 8.1.1(1)(b)(i).
[75] Direction No. 110 para 8.1.1(1)(b)(ii).
[76] Direction No. 110 para 8.1.1(1)(b)(iv).
The Applicant’s offending has been frequent in the Tribunal’s view, particularly from 2012 to 2016,[77] and marked with a trend of increasing seriousness in the sense that his most recent conviction attracted a three and a half year term of imprisonment because the nature of the offending was so serious that no other sentence in the circumstances would be justified.
[77] Direction No. 110 para 8.1.1(1)(e).
The Tribunal also considers that any cumulative effect of the Applicant’s offending (repeated offending to the extent the Applicant committed a considerable number of offences) is a significant feature of the offending, culminating in part in a total effective sentence of three years and six months’ imprisonment .[78]
[78] Direction No. 110 para 8.1.1(1)(f).
The Applicant reoffended since being formally warned about the consequences of further offending in terms of his migration status[79] and, in failing to declare his convictions on his passenger card dated 26 February 2020, provided false or misleading information by not doing so.[80]
[79] Direction No. 110 para 8.1.1(1)(h). See [57(p)] above.
[80] R1, G2, p 183. See Direction No. 110 para 8.1.1(1)(g)
For completeness, the Tribunal notes that none of the Applicant’s offending or other conduct falls within the scope of paras 8.1.1(1)(d) or 8.1.1(1)(i) of Direction No. 110.
Overall, the Tribunal finds that, applying Direction No. 110, the Applicant has engaged in a range of drug and traffic offending. The Applicant has a substantial criminal record, involving considerable drug and traffic offending, which has escalated over time as evidenced by the terms of imprisonment ordered and the total effective sentences imposed.
Therefore, having regard to the evidence which paras 8.1.1 of Direction No. 110 are relevant and the comments and assessment on the offending in sentencing and by the courts generally, the Tribunal considers the Applicant’s offending conduct to be very serious and weighs heavily against revoking the Cancellation Decision.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Tribunal must also consider the risk to the Australian community should the Applicant commit further offences. Paragraph 8.1.2 of Direction No. 110 states, in part:[81]
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In assessing the risk that may be posed by the non-citizen 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:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
[81] See also Direction No. 110 para 8.1(2)(b).
This requires an assessment of the nature of the harm should the Applicant engage in further criminal or other serious conduct.[82] It also requires an assessment of the likelihood of the Applicant engaging in such conduct.[83]
[82] Direction No. 110 para 8.1.2(2)(a).
[83] Direction No. 110 para 8.1.2(2)(b).
There is no statutory constraint on the way that risk is assessed by the decision-maker other than that there must be a rational and probative basis for the assessment.[84]
Nature of the harm
[84] See BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181, at [68] per Moshinsky J; Hambledon v Minister for Immigration and Border Protection [2018] FCA 7, at [41] per Kenny J.
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must consider the nature of the harm to individuals or the Australian community should the Applicant reoffend.[85]
[85] Direction No. 110 para 8.1.2(2)(a).
The Applicant made no particular submission in relation to the nature of the harm to individuals or the Australian community should he reoffend, other than general agreement with the proposition that his offending conduct would continue to cause serious harm if repeated. It appeared to the Tribunal that the nature of the harm the Applicant was contemplating in this context was the harm his family and children would suffer by his absence to date due to incarceration and detention and his potentially being absent from Australia, rather than the broader notion entertained by Direction No. 110.[86]
[86] See A2, p 3 in this regard.
In relation to the nature of the harm to individuals or the Australian community should the Applicant reoffend, the Respondent contended that the Applicant's offences are very serious, and any likelihood that they may be repeated is unacceptable. The Respondent also contended that the potential harm caused by further acts of criminal or other serious conduct committed by the Applicant could involve significant physical, financial and psychological harm to members of the Australian community.[87]
[87] R4 [40].
The Respondent added that this contention is consistent with the Tribunal's findings in Tahuriorangi and Minister for Immigration and Border Protection [2018] AATA 2158 at [51]-[54], on the nature of potential future harm involved in the sale of dangerous drugs:
This Applicant had a significant involvement in the trafficking and supply of dangerous drugs. The consumption of such substances may cause catastrophic harm to individual users. However, there are other and perhaps slightly less obvious deleterious effects of this unlawful activity. As is now well-known, addicted individual users of these substances all too often resort to committing crimes themselves in order to raise sufficient funds to meet their habit.
As well, there is a quantifiable cost to the community both in terms of an increased imposition on (1) the public health system to cope with the physical and psychological consequences of these substances in our community; and (2) resources to be allocated to law enforcement agencies to detect and apprehend the wrongdoers and the justice system to hear and adjudicate offences arising from this activity.
It is clear that any return or resumption by the Applicant to his previous drug offending conduct would represent a quite significant risk of physical and psychological harm to members of the Australian community.
… given the serious nature of the Applicant’s prior offending, were he to reoffend, the nature of the harm he could cause to either individuals or the Australian community more generally, is plainly serious and includes the risk of injury or death.
The Tribunal accepts that the Applicant has developed a level of insight that may be seen as being remorseful for his family violence offending, even though at hearing the Applicant still cavilled with some aspects of the facts recorded by police for those offences. For example, whether the victim landed on the ground from him having pushed her, or whether she had fallen on her own accord.
That being said, the Tribunal remains largely unconvinced of this in relation to the Applicant’s driving offences where he continued to drive where he had no authority to do so, where he continued to offend when he was subject to protective bail conditions or orders at the time and in circumstances where he knew doing so would likely result in cancellation of the visa (having been warned on this from his prior visa cancellation).
As such, the Tribunal views the Applicant’s remorse as being tied to the consequences that would flow should he be removed, in relation to be unable to see his family, friends and community contacts in the future.
In the Tribunal’s view, should the Applicant commit further similar offences, in particular violence offences, family violence and drug-related offences, this would clearly result in further very serious harm that may cause considerable and widespread physical, psychological, emotional and economic harm to members of the Australian community, including the Applicant’s children and other family members.
Likelihood of the non-citizen engaging in further criminal or serious conduct
In order to determine the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must also consider the likelihood of the Applicant reoffending if he were permitted to remain in the Australian community.[88]
[88] Direction No. 110 para 8.1.2(2)(b).
The Applicant considers he will not reoffend for the following reasons:
(a)Serving his current term of imprisonment has served its purpose of deterring him from relapse and recidivism.
(b)He has taken steps to address the abuse he suffered as a child, which has been a confronting and uncomfortable experience. He cannot keep using this as an excuse for his offending and drug abuse and has truly engaged with mental health support and counselling to gain perspective and this has given him strength.
(c)He will not reoffend because he has gained techniques to address his behaviours, he is now comfortable to speak openly with family and counsellors and no longer suffers from methamphetamine addiction.
(d)In his view, the ability to abstain from drugs is highly tested in the immigration detention community, because drug abuse and crime are rampant there. His ability to come off medication, to stay away from offending and gangs in detention demonstrates his conviction to live a drug free and crime free life.
(e)He has completed 58 individual units of educational and personal development courses whilst in prison and detention, including in relation to anger management and drugs and alcohol. He has learned techniques such as consequential thinking and distraction like exercise and engaging in activities, such that he is better equipped to stay on track and avoid past mistakes.
At hearing, the Applicant gave evidence that he was unsure when he started taking methamphetamine, however he recalls his drug use spiralling at the end of 2011, when he broke up with his then partner.
When asked, the Applicant said that at the time of his assault offences, he knew he was breaching brail or protective orders, however this did not stop him from offending. As to the assault in 2012 for which he was imprisoned,[89] the Applicant accepted this was a ‘fairly violent’ incident, recalled that he had smoked marijuana that day ‘but not meth’ and then breached his parole conditions three weeks after his release.
[89] R2, TB1, p 55.
The Applicant explained that following his release from prison in Albany, he completed a 3-month residential rehabilitation program in Broome with his partner, during which time his son JP was conceived. The Applicant said he and his partner resided in Broome for 8 months after competing the program, where he self-managed his continued rehabilitation and participated in men’s groups. The Applicant said that it was after their return to Perth that he again ‘spiralled’ and he began taking drugs and offending again.
Following his release from prison in 2017, there was approximately a three period where the Applicant did not offend where he said that he completed Breathing Space (a Domestic violence residential rehabilitation centre in Kwinana) and was working and raising his son.
As to what triggered his offending in 2020, the Applicant said after he underwent bariatric surgery in November 2019, he had time off work, then COVID saw him at home, isolated from society and in a situation where he was receiving money from the Government. The flaws in his relationship with his then partner became apparent and he returned to drug use.
When asked, the Applicant accepted he had a lot of driving offences and knew that when he was convicted of dangerous driving in 2007, or at any other time he was pulled over whilst driving, that he did not hold a drivers licence and continued to drive afterwards.
The Respondent submitted that there remains a real risk that the Applicant will reoffend, for the following reasons:[90]
(a)The Applicant has struggled with drug addiction, and suffers from childhood trauma.[91] The sentencing Judge for the cancellation offences noted that ‘voluntary consumption of drugs is never of itself a mitigating factor, but it’s relevant … that your addiction has – is a result of what happened to you as a child’.[92]
(b)The Applicant states he has completed courses to help him avoid further offending, including, Narcotic Anonymous, Man Up, Fresh Start, Standing on Solid Ground and Pathways.[93]
(c)The Applicant contends he has ‘sobered now for 18 months and [he] feels like [he] has control of [his] mind and body’.[94] The Applicant’s substance use has not been tested outside of a controlled environment such as prison or detention. It is questionable whether the Applicant will be able to refrain from substance use in times where he may experience substantial life stresses, which may lead to further offending.
(d)The Applicant intends to avoid high risk scenarios by not getting involved in serious relationships, a realisation that came to him during his most recent term of imprisonment.
[90] R4, [41] to [43].
[91] G2, pp 59-60, 104.
[92] G2, p 60.
[93] G2, pp 104, 162.
[94] G2, p 162.
The Respondent contended that the presence of any risk should therefore be considered unacceptable, given the serious harm that could be caused to the community if the Applicant were to reoffend and this being the case, this consideration weighs heavily against revocation.[95]
[95] R4 [44]
The Applicant is asking the Tribunal to accept his claims of rehabilitation and low or no risk of reoffending give his claims of remorse, completion of rehabilitation courses, including two residential courses, steps taken towards sobriety and to address childhood abuse and mental health issues, his desire to raise his children and nieces and his claimed employment prospects should he be released.[96]
[96] Mr Hinton has indicated he would be willing to offer the Applicant employment should he be released: A3.
As there is no expert report regarding the risk of the Applicant reoffending for the Tribunal to consider, the Tribunal is tasked with considering risk based on the lay evidence available to it.
The Tribunal considers that the weight to be placed on the Applicant’s claims of rehabilitation should be mitigated by the following:
(a)The Applicant continued to offend at time where, for example, he knew he wasn’t licensed to drive, was in breach of bail conditions or protective orders, where his visa had previously been cancelled and when he had been formally warned about the consequences of continuing to offend.
(b)As to the previous visa cancellation in 2016, this was due to the Applicant’s high speed pursuit and driving without a licence. The cancellation was revoked, the Applicant underwent intensive rehabilitation in 2017, then in 2020 committed a further two no authority to drive offences. The earlier visa cancellation had, at best, a short term effect on the Applicant’s offending.
(c)The Applicant offended after using drugs. Whilst the Applicant had completed numerous rehabilitation courses, including two residential courses spanning several months each, he continued to offend and continued to use drugs. This calls into question the extent of the personal growth and rehabilitation, anger management techniques and consequential thinking the Applicant says he gained from these courses.
(d)The Applicant has not lived in the community since his incarceration at the end of 2020, other than a period of six months in home detention in May 2022.[97] The majority of the Applicant’s courses are educational and vocational, rather than with a drug use or violent offending focus, however the Tribunal accepts these courses were less available to the Applicant in prison and detention and he has taken every opportunity to complete whatever courses were available to him at the time.
(e)After a three year period of no offending, the Applicant began to offend again in the face of resumed drug use and general life stressors.
(f)The link between likelihood of reoffending and remorse is well accepted. The Applicant’s evidence, for example that the victim fell on her own accord and that he had not been swinging his arms during this incident, or that the officer he assaulted had been dogging him, presents as though the Applicant doesn’t consider his offending to be as serious as it is or that his conduct was somewhat justified. The Tribunal does accept however, the applicant’s evidence that he was not trying to minimise his offending, rather he was trying to add context to the circumstances in which he offended. In either case there is no justification for the Applicant’s behaviour.
[97] R2, TB3, p 455.
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