Pinto Amante and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

[2021] AATA 1181

Pinto Amante and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1181 (7 May 2021)

Division:GENERAL DIVISION

File Number(s):      2021/0875

Re:Antonio Miguel Pinto Amante

APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member M Griffin QC

Date:7 May 2021

Place:Sydney

The decision under review is affirmed.

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

Senior Member M Griffin QC

Catchwords

MIGRATION – mandatory cancellation of visa – where visa was cancelled under s 501(3A) because applicant did not pass character test – substantial criminal record - Ministerial Direction No. 90 – primary considerations – protection of the Australian community from criminal or other serious conduct – nature of harm – intentionally damage property by fire - domestic violence - breach of apprehended violence order - risk of future re-offending – family violence - best interests of minor children - other considerations – decision under review affirmed

Legislation

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

Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Secondary Materials

Direction No. 90 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA

REASONS FOR DECISION

Senior Member M Griffin QC

7 May 2021

1.       The decision under review is a decision of a delegate of the Respondent made on 13 February 2021 (Reviewable Decision) not to exercise the discretion under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) to revoke the original decision made under s 501(3A) of the Act to cancel the Applicant's Class BB Subclass 155 Five Year Resident Return Visa (Visa) (the Original Decision).

BACKGROUND

2.       The Applicant was born in February 1976 and he is presently 45 years of age. The Applicant arrived in Australia in April 1988, aged 12 years. He is divorced and has an adult son, approximately 21 years of age with whom he is attempting to re-establish a relationship.

3.       The Applicant was first convicted in March 2001 and committed a variety of offences, culminating in conviction before the Parramatta District Court of an arson-type offence on 1 May 2019 for which he was sentenced to imprisonment for 3 years and 9 months, and subject to a non-parole period of 2 years. His appeal to the Court of Criminal Appeal was dismissed. Subsequent to his period of imprisonment and up until the time of his hearing, the Applicant has been held in detention at the Villawood Detention Centre.

ISSUES

4.       The Applicant does not pass the character test because he has a substantial criminal record by virtue of having been sentenced to a term of imprisonment of 12 months or more pursuant to subsections 501(6)(a) and (7)(c) of the Act. This is not disputed by the Applicant.

5.       The sole issue for the Tribunal's determination is whether it can be satisfied that there is another reason why the original decision should be revoked, such that the Tribunal may revoke the decision: s 501CA(4)(b)(ii) of the Act.

SOME ASPECTS OF THE APPLICANT’S EVIDENCE

6.       The Applicant gave evidence in the proceedings and the Tribunal questioned him at length, at times asking questions testily to illicit the Applicant's response. The Tribunal formed the view that the Applicant gave candid, honest answers to probing, perhaps even provocative questions, in order to test the witness.

7.       It was clear to the Tribunal that the Applicant was remorseful for all his past conduct, that he appreciated that his offending was fundamentally due to his drug addiction and that he was genuine in his desire to behave well in the future. In fact, he evinced a determination to do so. Evidence of the courses undertaken, negative drug urine samples and good behaviour whilst in custody and detention further support this view.

8.       These proceedings are, however, not simply about good intentions and remorse. They must, according to Direction no. 90, comprehend the consideration of many other factors including, importantly in this case, the risk of future re-offending.

9.       In the Applicant’s evidence he conceded that there was a possibility that, in the future, he may relapse into drug-taking but felt that he had the support and knowledge to address this in a remedial way by resort to probation, parole officers and counselling. The response by the Applicant that there was a possibility of relapse was given spontaneously and unprompted by any questioning. The Applicant’s frank admission on this topic adds to the Tribunal's concerns, discussed below, as to the risk of future re-offending.

10.     The Applicant's evidence included that even having been provided with assistance by way of sentence with probation and parole orders, and having been placed on good behaviour bonds because of his addiction, he nonetheless, recklessly continued to offend, even in the face of two warnings (as to the consequences of future re-offending and the likelihood of deportation) given to him by the Department in 2010 and 2013.

11.     Medication, which included anti-depressant medication that the Applicant still takes, assisted him in the past. However, the Applicant accepts that he has, in the past, also been non-compliant with taking prescribed medication.

12.     The Applicant was questioned about his continued driving whilst disqualified which exemplifies the sort of behaviour that he indulged in. The Applicant's evidence was simply that although he appreciated he was not allowed to drive, (even at times where he was apprehended by the police on three occasions within two weeks), he simply ignored the restraint on driving placed upon him for the purpose of continuing to work which, in turn, provided him with money to support his drug habit.

13.     All of this, on the evidence, leads to a great concern that the Applicant, should he be released into the community, although he denies further interest in associating with his undesirable friends, is at real risk of re-offending again despite the courses of domestic violence and drug abuse he has undertaken whilst in prison. The Applicant pursued further rehabilitation courses whilst in immigration detention. However, the plain fact is that the Applicant simply has not been in a position outside custody or detention where he is able to demonstrate suitably that he has truly rehabilitated.

RELEVANT LEGISLATION AND POLICY

14.     Section 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: see s 501CA(1).

15.     Section 501CA(4) 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:

(i)  that the person passes the character test (as defined by section 501); or

(ii)  that there is another reason why the original decision should be revoked.

16.     In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38], North ACJ held that:

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

17.     Section 501(6)(a) relevantly provides that a person does not pass the character test if the Applicant has a substantial criminal history. Section 501(7)(c) states that a person has a substantial criminal history if they have received a sentence of imprisonment for 12 months or more.

18.     The Applicant was sentenced to terms of imprisonment for more than 12 months. The Applicant does not pass the character test.

19.     Section 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.

20.     The Minister has made a written direction pursuant to s 499 of the Act to guide decision-makers in the exercise of the power in s 501CA(4) (Direction 90). Section 5 of Direction No. 90 sets out preliminary matters, including general guidance and principles for decision-makers, which relevantly includes that:

(a)Australia has a sovereign right to determine whether non-citizens who are of character concern have a right to enter or remain in Australia. Being able to come or remain in Australia is a privilege 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 (paragraph 5.2(1));

(b)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 (paragraph 5.2(2));

(c)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 risk of causing physical harm to the Australia community (paragraph  5.2(3));

(d)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding 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. However, 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 (paragraph 5.2(4));

(e)decision makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non- citizen's conduct or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectation of the Australian community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australia community (paragraph 5.2(5)).

21.     Part 2 of Direction No. 90 identifies the considerations relevant to former visa holders in determining whether to exercise the discretion to revoke the mandatory cancellation of a non-citizen's visa. It comprises four Primary Considerations and several specified, but non-exhaustive, Other Considerations, which must be taken into account.

22.     Pursuant to Part 2 of Direction No. 90, the Tribunal must, to the extent that they are relevant to this case, take the relevant considerations (both primary and other) into account and:

(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight (paragraph 7.1).

(2)Primary considerations should generally be given greater weight that the other considerations (paragraph 7.2).

(3)One or more primary considerations may outweigh other primary considerations (paragraph 7.3).

23.     These principles are of course dependent upon the facts and circumstances of each case.

24.     The primary considerations are:

(1)Protection of the Australian community from criminal or other serious conduct (Primary Consideration 1);

(2)Whether the conduct engaged in constituted family violence (Primary Consideration 2);

(3)The best interests of minor children in Australia (Primary Consideration 3); and

(4)Expectations of the Australian community (Primary Consideration 4).

25.     The Tribunal must also take into account other considerations insofar as they are relevant. These considerations include (but are not limited to):

a)International non-refoulement obligations;

b)Extent of impediments if removed;

c)Impact on victims;

d)Links to the Australian community, including:
i)   strength, nature and duration of ties to Australia;
ii)  impact on Australian business interests.

THE CHARACTER TEST

26.     As set out above, s 501(6)(a) of the Act provides that a person does not pass the character test if the person has a "substantial criminal record" as defined in s 501(7) of the Act.

27.     For the purposes of the character test, a person has a substantial criminal record under s 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more.

28.     In circumstances where the Applicant has been sentenced to imprisonment of 12 months or more, the Applicant satisfies the definition in s 501(7)(c) of the  Act and therefore fails the character test.

EXERCISING THE DISCRETION

29.     In exercising the discretion in s 501CA(4) of the Act, the Tribunal must comply with Direction No. 90 (see s 499(2A) of the Act) which sets out the relevant considerations.

Primary Consideration 1 – Protection of the Australian community

30.     Paragraph 8.1(1) of Direction No. 90 provides that, when considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.

31.     Paragraph 8.1(2) of Direction No. 90 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.

The nature and seriousness of the Applicant's conduct to date

32.     Sub-paragraph 8.1.1 of Direction No. 90 provides a list of factors to be considered in determining the nature and seriousness of a person's criminal offending or other conduct to date, which includes:

a)without limiting the range of offences 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 (sub-paragraph 8.1.1(1)(a)(i)- (iii)):

(i)violent and/or sexual crimes;

(ii)crimes of a violent nature against women or children, regardless of the sentence imposed

(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australia community to be serious (sub-paragraph 8.1.1(1)(b)(i)-(iv)):

(i)causing a party to enter into or being party to a forced marriage (other than being the victim), regardless of whether there is a conviction for an offence or a sentence imposed;

(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision- maker's opinion (for example, section 501(6)(c);

(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention.

c)with the exception of crimes or conduct mentioned in subparagraph a)(ii), a)(iii) or b)(i) above, the sentences imposed by the courts for a crime or crimes;

d)the frequency of the non-citizen's offending and/or whether there is any trend of increasing seriousness;

e)the cumulative effect of repeated offending;

f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

g)whether the non-citizen has 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).

The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

33.     Paragraph 8.1.2 of Direction No. 90 provides that decision-makers must have regard to the following:

(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 or 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 non­ citizen 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).

c)where consideration is being given to whether to refuse to grant a visa to the non-citizen whether the risk of harm may be affected by the duration and purpose of the non-citizen's intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

The nature of the harm to individuals or the Australian community, should the Applicant engage in further criminal or other serious conduct

34.     The Applicant has an extensive and worryingly varied criminal history dating from 2001 and was last sentenced in 2019 for a particularly serious arson-type offence which was related factually to a serious domestic violence offence. The Applicant has breached Court orders including an Apprehended Violence Order against him. The Applicant breached that order by having contact with the complainant victim.

35.     The criminal history also discloses a series of traffic offences, not only serious in themselves because of the continued offending in that regard, but also because the breaches involved the Applicant's disregard for rules in relation to driving whilst disqualified which is evidence of such disregard for Australian laws together with a road rage incident as part of his driving history.

36.     An examination of the history also reveals offences of violence including assault occasioning bodily harm and affray. The Applicant has been convicted of supplying a prohibited drug for which he was sentenced for two offences to a total of 24 months imprisonment.

37.     The Applicant was sentenced for publishing misleading material to obtain property (two offences), a sentence of nine months imprisonment for affray, one charge of accessory before the fact to demanding property with intent to steal (sentence was one year and three months imprisonment) and on 1 May 2019, the most serious offence of all his offending. On that occasion, the Applicant was convicted of damaging property by fire or explosion and was sentenced to three years and nine months in custody.

38.     The Applicant's history discloses an escalation in seriousness of offending and a consistent disregard for the law. The offences of violence, including domestic violence, also disclose that the Applicant has a disposition to violence of various kinds, culminating in the behaviour for which he was sentenced in May 2019.

39.     The circumstances of that offence and the prelude to the offence, domestic violence, are particularly worrying and serious. The Applicant's former partner and victim took out an Apprehended Violence Order against the Applicant in November 2017 according to the Applicant’s evidence. Whatever date the AVO was obtained against the Applicant, it was in force as at 6 January 2018.

40.     Within weeks, the Applicant disobeyed that order and approached the victim and engaged in conflict with the victim and her brother during which time the Applicant made threats to the victim, including the threat that “if the police come they won't be able to come through, they would have a murder scene”. The Applicant had earlier destroyed the victim’s mobile phone and at about 8:23pm on 6 January 2018 the Applicant sent a text message indicating a threat to light a fire. In fact, the Applicant carried out that threat in an apartment building in which the Applicant had previously lived with the victim and in which the victim and other persons were living.

41.     The Applicant caused an explosion by fire to that building which caused serious and extensive damage to the building at a time when the Applicant would have appreciated there were other people living in the building. The lives of Australian citizens were put at risk by this behaviour as well as the fireman who had to intervene. The damage was so severe that the apartment was uninhabitable.

42.     The sentence imposed by the Sentencing Judge was on the basis that this was a middle-range offence although the Trial Judge doubted the suitability of that submission. Nonetheless, the Applicant was sentenced on that basis. The Tribunal, of course, is entitled to take into account the level of sentence imposed on the Applicant in accordance with Direction no. 90. However, the Tribunal is not bound to accept the submissions made by both counsel jointly in the sentencing process, on which the Sentencing Judge acted. In the Tribunal’s opinion, on the facts, the sentence itself was a very modest and particularly lenient sentence.

43.     It cannot be doubted in the Tribunal's mind, whatever description may be applied to the level of seriousness in the sentencing process, that this offence involving arson and the real threat to the lives of Australian citizens and damage to property which was preceded by an offence of domestic violence is a particularly serious offence, made more so when one views the Applicant’s increasing criminal offending.

44.     The Tribunal is cognisant of and takes into account evidence that the Applicant suffered mental illness for a considerable time. However, that mental illness does not, on the evidence, excuse or diminish the seriousness of the Applicant’s offending in the Tribunal’s opinion.

45.     The Applicant was sentenced on two charges of supplying prohibited drugs, methylamphetamine and cannabis. The Applicant was not a youthful offender, being approximately 40 years of age at the time of the supply of a dangerous drug. This is also serious conduct viewed alone, having the potential to cause harm to those to whom the drug is supplied.

46.     Further, evidence of the Applicant’s concerning behaviour is his failure to declare criminal convictions on a number of incoming passenger cards when entering Australia. The Applicant's explanation for these offences is that he was concerned to declare them lest he be refused entry into Australia. This behaviour demonstrates a lack of concern and adherence to proper rules and regulations.

47.     The criminal history, including the variety of offending, the extent and dimension of the commission of the offences, the increasing seriousness of the Applicant's behaviour and the fact that he was not a youthful offender but a mature adult by the time of the 2019 offences, lead to a conclusion that the Applicant’s offending history is gravely serious. The gravity of that history might well of itself lend support to a conclusion that despite any other factors in the Applicant's favour, that grave history would be sufficient to disentitle the Applicant to a visa. The Tribunal’s decision is not, however, based on this factor alone.

The likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account  available information and evidence on the risk of the non-citizen re-offending

48.     Paragraph 8.1.2(1)(b) of Direction No. 90 requires the Tribunal to have regard to the likelihood of the person engaging in further criminal conduct, including evidence of re-offending and rehabilitation.

49.     The Applicant has been warned on two previous occasions as to the likely consequences should he re-offend and the effect of that on his right to retain a visa.

50.     An analysis of the Applicant’s risk of re-offending and attendant considerations must take into account his mental health. The most authoritative analysis of his mental health which should also be viewed together with an extensive history of drug taking is before the Tribunal in the form of two reports. In the psychiatric report of Doctor Furst, dated 26 November 2018, Doctor Furst diagnosed the Applicant with a major depressive disorder, in remission, substance-abuse disorder which included methylamphetamine dependence and drug-induced mental disorder, drug-induced psychosis.

51.     The history provided to the doctor and to another professional psychologist, Borkowski, who provided a report on 18 April 2019, is consistent with the Applicant's evidence before the Tribunal. The history of both illicit drug use and alcohol demonstrates periods of dependence on methylamphetamine which, in Doctor Furst's opinion, is the Applicant's primary mental disorder and alcohol abuse which have fluctuated for a number of years often, it seems, depending on his circumstances, for example, whether he is in a satisfactory and healthy relationship or not. The victim of what the Tribunal will call “the domestic violence and arson offences” was an ice user with the Applicant. In particular, in Doctor Furst's opinion, the decision to light the fire in the 2018 offence “was suggestive of purposeful action and intention”.

52.     There is little support for the proposition that although the Applicant was affected by this primary mental disorder that he should be considered less culpable for his actions because of it. The underlying condition, according to Doctor Furst, is that the depressive disorder was largely in remission at the time of the psychiatrist’s report in November 2018. The report of Borkowski, psychologist, stated:

“Mr. Amante described a subsequent pattern of ongoing illicit substance use since his late 20s, usually increasing at times of distress, interspersed with brief periods of abstinence ... His ongoing drug use compounded his negative affectivity and depressed moods when not under the influence of substances and overtime, his substance use and psychological discomfort became cyclical ... He used drugs as a way to alleviate the negative affectivity he was experiencing, his use gradually increased and he developed a physical and psychological dependence on drugs … with drugs causing an exacerbation of his negative mood states”.

53.     Later in the psychologist's report, the Applicant's:

“excessive ice consumption appears to have caused the onset of delusions, paranoia and hallucinations, all of which are consistent with a substance medication-induced psychotic disorder due to his mental condition at the time of the offences combined with his drug intoxication. Mr Amante's capacity for rational judgement and decision making was significantly impaired ... ”

54.     The Applicant expressed what appeared to be genuine remorse to the psychologist for his actions.

55.     The Applicant argues that having spent the last years in custody and immigration detention has given him a real opportunity to consider his actions and that he has matured in appreciating his poor behaviour and the ways in which he has been led into committing criminal offences and is determined not to behave in that way in the future. His mother, and other family also consider that he is a changed person.

56.     The Applicant says that he has been drug-free for most of the recent period of incarceration. The Applicant has undertaken various courses whilst in custody and detention which include the ‘EQUIPS Domestic Violence Program’ and the 'EQUIPS Addiction Program’. Commendably, the Applicant commenced rehabilitation courses prior to notification his visa was cancelled, tending to demonstrate that his attitude to rehabilitation was genuine.

57.     The Tribunal accepts that he has undertaken those courses with a genuine determination to affect a change in his behaviour. Were the Applicant to be released from detention, he would reside with his aged mother who is, however, in poor physical health. She is also the survivor of domestic violence on the part of her husband, the Applicant's father.

58.     The Tribunal accepts that the Applicant's remorse and determination to change are genuine, and further that he has attempted courses which he has completed with a view to changing his behaviour. However, this must be viewed against the background of his offending and the history of that offending.

59.     The Applicant received two warnings concerning the consequences of further offending. At the time of the commission of the offence he was a mature man, approximately 40 years of age.

60.     Furthermore, the Applicant has not been in a position to demonstrate that, were he released into the community, his behaviour would change, although the Tribunal recognises and accepts that he has not, at least whilst in custody and detention, resorted to drug taking.

61.     In the Tribunal’s view, the Applicant has in the past been able to demonstrate some periods where without the effects of drugs his conduct has been acceptable. On the other hand, the history of his offending demonstrates constant relapses into drug-taking which affects his mental health and as Borkowski says, such drug intoxication affected the Applicant's capacity for rational judgement and decision-making which was significantly impaired.

62.     The Applicant has family members and friends who speak well of him and in the past, the Applicant has been able to work, earlier in his life holding a responsible job which included overseeing a number of people. The Applicant has received offers of work in a variety of trades, including from his brother-in-law, and although this may be thought to be a somewhat protective factor in preventing him from offending in the future, his past history indicates that he has both worked and taken illicit drugs during the time that he was working.

63.     The Tribunal accepts that the Applicant will have the support of his family and friends, although the Tribunal notes his family have been present in his life in the past and had apparently no effect on his criminal conduct.

64.     The Applicant's history of relapse involving drug abuse is a factor which the Tribunal cannot ignore. The Applicant has, in the past, been provided with drug counselling through probation and parole orders. In the past, they were ineffectual. Furthermore, the Applicant accepted both in evidence and final submissions that there was a possibility of a relapse into drug use. In the Tribunal’s view, this raises real concerns about the efficacy of any rehabilitation the Applicant considers that he has undergone and, in turn, indicates a real likelihood of re-offending in the future.

65.     Nor can the Tribunal ignore the fact that, in the past, the Applicant ignored Court Orders in relation to prohibiting him from driving and the prohibition of the Apprehended Violence Order which he ignored within a number of weeks of the making of the Order. This is not a matter where, in the Tribunal’s view, some leniency can be extended to someone who is a youthful offender. In fact, the Tribunal is concerned that the Applicant's criminal offending has increased in seriousness even to the age of 40 years, at which time his most serious offences were conducted.

66.     Even taking into account the Applicant's genuine attempts at rehabilitation and the offer of assistance from family should he be released, the overwhelming impression is that there is no convincing evidence that the Applicant will be unlikely to offend in the future. In fact, on the Applicant's history, the real likelihood is that he will offend given the wrong circumstances, leading to drug-taking.

67.     The Tribunal is comfortably satisfied that the Applicant is indeed at real risk of re-offending and that offending is likely to be offences committed in a variety of his past offending, including domestic violence and general disregard for rules and regulations, including laws which apply to the Applicant.

68.     The Tribunal is of the view that the Applicant's past offending is extremely serious and that there is a real risk of the Applicant offending against Australian citizens in the future. In this regard, this consideration weighs very heavily against the Applicant.

Primary Consideration 2 – Family violence committed by the non-citizen

69.     Paragraph 8.2(1) of Direction 90 provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government's concerns are proportionate to the seriousness of the family violence engaged in by the non-citizen.

70.     Paragraph 4(1) defines family violence to mean "violent, threatening or other behaviour by a person that coerces or controls a member of the person's family (the family member), or causes the family member to be fearful".

71.     Primary Consideration 2 is relevant in circumstances where (paragraph 8.2(2)):

a)a non-citizen has been convicted of an offence, found guilty of offence, or had charges proven howsoever described, that involve family violence (sub-paragraph 8.1.2(2)(a)); and/or

b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen has been afforded procedural fairness (sub-paragraph 8.1.2(2)(b)).

72.     Paragraph 8.2(3) of Direction 90 provides that, in considering the seriousness of family violence engaged in by the non-citizen, the following factors must be considered, where relevant:

a)the frequency of the non-citizen's conduct and/or whether there is any trend in increasing seriousness (sub-paragraph 8.1.2(3)(a));

b)the cumulative effect of repeated acts of family violence (sub-paragraph 8.1.2(3)(b));

c)rehabilitation achieved at the time of the decision since the person's last known act of family violence, including (sub-paragraph 8.1.2(3)(c)):

(i)the extent to which the person accepts responsibility for their family violence related conduct (sub-paragraph 8.1.2(3)(c)(i));

(ii)the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children) (sub-paragraph 8.1.2(3)(c)(ii));

(iii)efforts to address factors which contributed to their conduct (sub- paragraph 8.1.2(3)(c)(iii)); and

d)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence (including warnings about the non-citizen's migration status), noting that the absence of a warning should not be considered in the non-citizen's favour (sub-paragraph 8.1.2(3)(d)).

73.     In March 2018, the Applicant was convicted of breaching an Apprehended Violence Order in the Parramatta Local Court. The breach was serious in that the breach occurred within weeks after the Court had ordered that protective order for the victim. The Applicant came to the residence of his former partner, turned off the power and used particularly threatening words which included the assertion that if the police came, they would have a murder scene to deal with. A verbal argument ensued with the victim in which the Applicant grabbed the mobile phone of the victim and damaged the phone.

74.     Although the subsequent arson-type offence does not come within the definition of domestic violence, the domestic violence offence was a prelude to even more serious conduct. That conduct included again a breach of the AVO by the Applicant going to the victim’s property once again the next day and threatening to set fire to the property. The Applicant carried out that threat which has been referred to above. It is apparent that the Applicant is remorseful for his conduct and, at some level, appreciates the seriousness of his offending and the factors that contributed to it and, in fact, to his offending in general.

75.     In September 2020 the Applicant successfully completed the EQUIPS education programs whilst in custody, comprising the domestic abuse program and drug programs and undertook further rehabilitation whilst in immigration detention. It is also apparent to the Tribunal that the Applicant’s offending generally and in particular the offences in relation to domestic violence, has been fuelled by his drug-taking and underlying mental health problems as discussed by Doctor Furst.

76.     Much of what the Tribunal has said above in relation to the risk of future re-offending is also applicable to this consideration. It is the Tribunal’s view that although the Applicant is remorseful, and appreciates the triggers which caused him to offend and has taken steps to rehabilitate himself with the potential of having family assistance, nonetheless, on the whole of the evidence, consistent with the opinions expressed by the Tribunal in this decision, there can be no satisfaction that the Applicant is truly rehabilitated in the sense that, although it is his genuine wish to be so rehabilitated, there is the real risk of his re-offending because of his drug abuse. It cannot be said, in the Tribunal's opinion, to be satisfactorily dealt with having regard to the history of the Applicant over the past many years.

77.     On all the evidence, this consideration weighs against the Applicant.

Primary Consideration 3 – Best interests of minor children in Australia

78.     Paragraph 8.3(1) of Direction No. 90 provides that decision-makers must make a determination about whether revocation is, or is not, in the best interests of a child affected by the decision.

79.     This consideration applies only if the child is, or would be, under 18 years old at the time when the decision to revoke or not revoke the mandatory cancellation decision is expected to be made (sub-paragraph 8.3(2)).

80.     Paragraph 8.3(3) provides that the best interests of each child should be given individual consideration to the extent that their interests may differ.

81.     Paragraph 8.3(4) provides a list of factors to be considered in determining the best interests of the child, which includes:

a)the nature and duration of the relationship between the child and Applicant. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence or limited meaningful contact (including whether an existing Court order restricts contact) (sub-paragraph 8.3(4)(a));

b)the extent to which the Applicant is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements (sub- paragraph 8.3(4)(b));

c)the impact of the Applicant's prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child (sub- paragraph 8.3(4)(c));

d)the likely effect that any separation from the Applicant would have on the child, taking into account the child's or Applicant's ability to maintain contact in other ways (sub-paragraph 8.3(4)(d));

e)whether there are other persons who already fulfil a parental role in relation to the child (sub-paragraph 8.3(4)(e));

f)any known views of the child (with those views being given due weight in accordance with the age and maturity of the child) (sub-paragraph 8.3(4)(f));

g)evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the Applicant, or has otherwise been abused or neglected by the Applicant in any way, whether physically, sexually or mentally (sub-paragraph 8.3(4)(g)); and

h)evidence that the child has suffered or experienced any physical or emotional trauma arising from the Applicant's conduct (sub-paragraph 8.3(4)(h)).

82.     The three relevant minor children are nieces and nephews of the Applicant who reside in Australia. T, born March 2008, A, born May 2009, and K, born May 2017.

83.     On the evidence, the Applicant has different relationships with each of the four minor children.

84.     In relation to T and A, the Applicant asserts that he has spent a substantial amount of time with the children in a variety of social activities and settings and, whilst in prison, has provided A with gifts that he has crafted. The Applicant has established a special relationship with T, who has autism, and a special connection has been established with the child.

85.     As to K, the Applicant says that he plans to enjoy a burgeoning relationship with her.

86.     The Applicant has continued contact with the children, especially T and A, by phone and visual electronic communication. He accepts that he does not contribute financially to the children’s upkeep.

87.     The Tribunal is prepared to accept the Applicant's description and level of relationship with each of those children in the varying degrees which the Applicant describes. Furthermore, the Tribunal accepts that the children would be deeply affected should the Applicant be removed from Australia and that removal would cause them emotional distress. This is particularly so in relation to T and A who appear to be minor children who have the strongest relationship with the Applicant.

88.     The Tribunal also recognises that the minor children’s relationship with the Applicant is not parental but nonetheless, of a close familial kind, being an uncle to those children. The Applicant has, of course, been in custody since April 2018 and it is clear that the relationship has been affected in respect of each minor by the uncle’s incarceration and detention. There is no satisfactory evidence that the Applicant supports, or needs to support, those children.

89.     This consideration nonetheless weighs significantly in the Applicant's favour.

Primary Consideration 4 – Expectations of the Australian community

90.     Paragraph 8.4(1) of Direction No. 90 provides as follows:

The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government not to allow such a non- citizen to enter or remain in Australia.

91.     Paragraph 8.4(2) also provides that it may be appropriate simply because the nature of the character concerns or offences committed is such that the Australian community would expect that the person should not be or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:

(a)   acts of family violence; or

(b)   causing a person to enter into, or being party to (other than being a victim of), a forced marriage;

(c)    commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in the context, 'serious crimes' include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial, abuse/material exploitation or neglect;

(d)   commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or

(e)   involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or

(f)    worker exploitation.

92.     The above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community (sub- paragraph 8.4(3)).

93.     This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government's views as articulated above, without independently assessing the community's expectations in the particular case (sub-paragraph 8.4(4)).

94.     This consideration has been the subject of extensive judicial discussion and ultimately determinative (see FYBR v Minister for Home Affairs [2019] FCAFC 185). Although these principles are discussed in relation to the former Direction No. 79, those principles are not relevantly different in principle with respect to Direction No. 90.

95.     It is not for the Tribunal to substitute its own view for the expectations of the Australian community by reference to the Applicant’s circumstances. The Tribunal rather, must give effect to the “norm” stipulated in Direction No. 90 at 13.3(1). per Stewart J and Charlesworth J (93); (100 to 104); (68).

96.     In this case, the Tribunal accepts that by virtue of the cumulative effect and seriousness of the Applicant’s offending and the view already formed as to the risk of future re-offending that community expectations would be that this consideration weighs against the Applicant, particularly because of the domestic violence offences and the related arson-type offence.

OTHER CONSIDERATIONS

97.     A decision-maker must also take into account Other Considerations where relevant. These considerations include (but are not limited to) (paragraph 9.1 Direction No. 90):

a)international non-refoulement obligations;

b)extent of impediments if removed;

c)impact on victims;

d)links to the Australian community, including:

(i)strength, nature and duration of ties to Australia;

(ii)impact on Australian business interests.

International non-refoulement obligations

98.     The considerations at paragraph 9.1 of Direction No. 90 include (but are not limited to):

(1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has Convention and Protocol non-refoulement obligations.

(2)In making a decision under s 501 or 501CA, decision-makers should carefully weigh any non-refoulement obligation against the seriousness of the non-citizen’s criminal offending or other serious conduct.

(3)However, that does not mean the existence of a non-refoulement obligation precludes refusal or cancellation of a non-citizen's visa or non-revocation of the mandatory cancellation of their visa.

(4)Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in response to a notice of intention to consider cancellation or refusal of their visa in a request to revoke the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen holds a protection visa).

(5)International non-refoulement obligations will generally not be relevant to a consideration of the refusal, cancellation, or revocation of a cancellation, of a visa that is not a protection visa, where the person concerned does not raise such obligations for consideration and the person is able to apply for a protection visa in the event of an adverse decision.

(6)It may not be possible at the section 501/section 501CA stage to consider non­refoulement issues in the same level of detail as those types of issues are considered in a protection visa application. The process for determining protection visa applications is specifically designed for consideration of non­refoulement obligations as given effect by the Act. A decision-maker, in making a decision under section 501/section 501CA, is not required in every case to make a positive finding whether claimed harm will occur, but in an appropriate case may assume in the non-citizen's favour that claimed harm will occur and make a decision on that basis.

(7)Where a non-citizen, in responding to a notice for the purposes of section 501 or 501CA, makes claims which may give rise to international non-refoulement obligations as given effect by the Act, and that non-citizen is able to make a valid application for a protection visa, those claims will, if and when the non­citizen makes such an application, be conclusively assessed before consideration is given to any character or security concerns associated with the non-citizen. This process would ordinarily be followed even in the highly unlikely event that consideration of the protection visa application is undertaken by the Minister personally.

(8)If, however, the refusal, cancellation or non-revocation decision is regarding a protection visa, the person will be prevented by section 48A of the Act from making a further application for a protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - see sections 48A and 48B of the Act). Further, as a result of a refusal or cancellation decision under section 501 or a non-revocation decision under section 501CA, the person will be prevented from applying for any other class of visa except a Bridging R (Class WR) visa (see section 501E of the Act and regulation 2.12AA of the Regulations). In these circumstances, decision-makers should seek an assessment of Australia's international non­refoulement obligations.

99.     There is no evidence in this matter that this consideration has any relevance to the facts and circumstances of the Applicant’s case.

Extent of impediments if removed

100.    Paragraph 9.2(1) of Direction No. 90 provides:

(1)Decision-makers must consider the extent of any impediments that the non­citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

a)     the non-citizen's age and health;

b)     whether there are substantial language or cultural barriers; and

c)     any social, medical and/or economic support available to them in that country.

101.    The Applicant asserts that his mental health would deteriorate particularly because he would be returned to a place where he was sexually assaulted as a child; that he would have economic and social difficulties and no financial support because he is not eligible for unemployment benefits.

102.    The Applicant says he does not speak, read or write Portuguese and has no family or social ties to Portugal.

103.    The Applicant's parents, sister, brother-in-law and adult son, together with nieces and nephews, all reside in Australia.

104.    Clearly on the evidence, the Applicant will suffer social, economic and personal deprivations should he be returned to Portugal. Furthermore, the Tribunal is not satisfied that the Applicant would not be able to receive help under the Portuguese social system and would be entitled to welfare. This is evidenced by the Social Integration Income documents tendered at the hearing by the Respondent and marked Exhibit 1. The level of monetary assistance that Exhibit 1 suggests would be available to the Applicant appears to be 189.66 Euros monthly.

105.    The Applicant asserts that this would be insufficient to cover monthly rent. The Tribunal therefore accepts significant difficulties for the Applicant in establishing himself and being able to exist financially were he to be returned to Portugal, at least in the short, and probably medium term. On the evidence, the Applicant, however, is capable of performing a variety of manual-type activities, including working as a mechanic although the Tribunal recognises that there will no doubt be initial difficulties at least in obtaining work not least because the Applicant cannot speak the country’s language.

106.    It does not seem plausible that the Applicant would be disentitled to mental health assistance or treatment for his diabetes, however, he says, such treatment, including medication, will be expensive. This factor, considered alone, will create economic and emotional difficulties should the Applicant have to re-settle in Portugal.

107.    The very removal of the Applicant from Australia to Portugal, the loss of his family and friends, and the knowledge that they, likewise, will be affected will, in turn, affect this Applicant emotionally in a significant way.

108.    On the evidence, the Applicant would be the primary carer for his aged and infirmed parents who are now separated. The father has recently suffered a stroke and the mother, in her mid-sixties, is in failing health and infirm. The parents, likewise, will be particularly impacted should their son be removed from Australia.

109.    There are clearly real issues of a financial, social and welfare assistance that will attend the Applicant’s removal to Portugal should that occur. The Tribunal gives full recognition to that, and accepts in the main that there will be real problems described above to be dealt with by the Applicant and, in that way, this consideration weighs extremely strongly in the Applicant's favour.

Impact on victims

110.    Paragraph 9.3(1) of Direction No. 90 provides:

Decision-makers must consider the impact of the s 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims.

111.    There is no evidence that this consideration is relevant in these proceedings.

Links to the Australian community

112.    Reflecting the principles of Direction No. 90 at paragraph 5.2, decision-makers must have regard to Direction No. 90, paragraphs 9.4.1 to 9.4.2 provided below.

9.4.1.   The strength, nature and duration of ties to Australia

(1)Decision-makers must consider any impact of the decision on the non-citizen's immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.

(2)Where consideration is being given to whether to cancel a non-citizen's visa or whether to revoke the mandatory cancellation of their visa, the decision-maker must also consider the strength, nature and duration of any other ties that the non­ citizen has to the Australian community. In doing so, decision-makers must have regard to:

a)    how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:

i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and

ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community.

b)    the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.

113.    The Tribunal does not accept the Respondent’s contentions in respect of this consideration including the fact that the weight to be given to this consideration is diminished by the Applicant's criminal history spanning 18 years and the Applicant’s drug use has meant that the Applicant has been unable to maintain stable employment.

114.    The Applicant has lived in Australia since 1988, arriving as a 12-year-old and considers himself to be Australian. The length of time he has lived in Australia, having arrived as a child, is a relevant consideration in his favour. He has worked in a variety of jobs, apparently quite successfully and was well-liked by his companions including in a senior position in a motor mechanic business for approximately 10 years, thereby contributing to Australian society and the Australian taxation system.

115.    The Applicant contends that he has undertaken activities as a Jehovah's Witness and donated and volunteered to a Children's Hospital and to a charitable organisation. Of greater significance is the fact that the Applicant's parents, brother, sister, brother-in-law and his adult son all reside in Australia and are Australian residents.

116.    The Tribunal recognises and accepts that there will be significant emotional and practical hardship should the Applicant be removed. The Applicant’s parents are elderly, and he expects to care for them in their ill-health. The Tribunal accepts a close relationship between the Applicant and his parents. Furthermore, the Applicant is close to his sister and brother-in-law who independently would be extremely distressed should the Applicant be removed from Australia.

117.    On all the relevant facts pertaining to the Applicant’s circumstances, the strength, nature and duration of his ties, the Tribunal is satisfied these provide potent weight to the consideration in the Applicant's favour.

9.4.2    Impact on Australian business interests

(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under  section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.

118.    The Tribunal does not consider that there is sufficient evidence, or any evidence, to engage this aspect of the consideration.

CONCLUSION

119.    There are strong and compelling reasons discussed above which bear significant weight, overall, in the Applicant's favour in considering whether the mandatory cancellation of the Applicant's visa should be revoked. Those considerations, the Tribunal concludes, should be viewed both individually and in a cumulative sense.

120.    However, the grave cumulative seriousness of the Applicant’s offending, the variety of offending, particularly the domestic violence offence committed collaterally with the arson-type offence are gravely serious, in the Tribunal’s opinion and may, of itself, provide sufficient basis for refusing to revoke the mandatory cancellation.

121.    In weighing the competing considerations and the weight to be given to that variety of matters, the Tribunal has also taken into account the fact that the entirety of the Applicant's behaviour should be viewed against a background of his mental illness and his drug-related offending, which the Tribunal accepts.

122.    As to the risk of re-offending, although the Tribunal accepts the Applicant has a genuine desire not to re-offend, and that he has commendably undertaken courses, the purpose of which is to divert him from offending, together with family support, (which has failed in the past to be effective) and some objective evidence of rehabilitation, including the statements of family and friends, and good behaviour whilst in custody and detention, nonetheless, the Tribunal is not satisfied that the Applicant is not at risk of re-offending in a variety of ways of criminal conduct.

123.    In the Tribunal’s opinion, it is not sufficient that the Applicant demonstrate a genuine desire not to re-offend. The steps taken by the Applicant for rehabilitation, the objective evidence referred to above, and family support, are not sufficiently convincing to the Tribunal to negative the Tribunal’s assessment that the Applicant nonetheless, is at risk of re-offending in the future. The Tribunal notes, in particular, both in the Applicant’s evidence at hearing and in oral submissions that there was an acceptance by him that he may relapse into drug use in the future. In the Tribunal’s opinion, a relapse into drug use would lead inevitably into offending of the type and catalogue of offences committed in the past by him.

124.    Notwithstanding all of those considerations and the Applicant's mental illness, the seriousness of the Applicant’s offending, the real risk, apprehended by the Tribunal, that the Applicant is likely to re-offend again in a variety of ways, demonstrated, in part, by the variety of past offending, and the expectations of the Australian community in this regard, lead the Tribunal to conclude that the mandatory cancellation of the Applicant’s visa is nonetheless the correct or preferable decision.

125.    On all the evidence, there is, in the Tribunal's opinion, not another reason, even taking into account the impediments to the Applicant’s removal, and other factors that weigh in the Applicant’s favour, why the mandatory cancellation should be overturned.

126.    The decision under review is affirmed.

I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member M Griffin QC

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

Associate

Dated: 7 May 2021

Date(s) of hearing:	28 April 2021
Applicant:	Self-represented
Solicitors for the Respondent:	Rachael Law, Clayton Utz