QXYT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 2049
•12 July 2023
QXYT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 2049 (12 July 2023)
Division:GENERAL DIVISION
File Number(s): 2023/3279
Re:QXYT
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Mr Rob Reitano, Member
Date of decision: 12 July 2023
Date of written reasons: 13 July 2023
Place:Sydney
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XA (Subclass 866) Protection Visa.
.....................................[SGD]...................................
Mr Rob Reitano, Member
CATCHWORDS
MIGRATION – mandatory cancellation of Protection (Class XA) (Subclass 866) visa under section 501(3A) – whether there is another reason to revoke the cancellation – consideration of Ministerial Direction No. 99 – prospect of indefinite detention – decision under review is set aside.
LEGISLATION
Crimes Act 1900 (Cth)
Drug Misuse and Traffic Act 1985 (NSW)Migration Act 1958 (Cth)
CASES
Ali v Minister for Immigration and Border Protection [2018] FCA 650
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hands v Minister for Immigration and Border Protection [2018] FCAFC 225
MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35
RRFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594WKMZ v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 25
REASONS FOR DECISION
Mr Rob Reitano, Member
13 July 2023
The Applicant is a 39-year-old citizen of the Republic of Lebanon who arrived in Australia on 7 June 2009 with permission to enter and remain in Australia because he had been granted a student visa. On 30 October 2017 the Applicant was given permission to remain living in the community in Australia because he was granted a Class XA (Subclass 866) Protection Visa (visa). On 18 July 2022 a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (the Minister) was obliged to cancel the visa under s.501(3A) of the Migration Act 1958 (Cth) (Migration Act), because of the duration of the Applicant’s sentence for his criminal offending and the fact that he was then serving that sentence on a full time basis in a correctional centre.
ISSUES
This case is about whether I am satisfied that there is ‘another reason’ why the decision cancelling the visa should be revoked, so that the Applicant will be able to remain in Australia living in the community. It will be seen from these reasons that I am satisfied there is ‘another reason’ to revoke the decision cancelling the visa, which lays in the Applicant’s relatively low risk of criminal or other reoffending, his strong ties to Australia and the Australian community, the best interests of his children and the likelihood that absent restoration of the visa the Applicant will be placed in indefinite detention. It follows that the decision cancelling the visa should be revoked.
I should observe before going further that there is no issue that the visa was required to be cancelled for the reason I have referred to, namely the length of the Applicant’s criminal sentence and where the Applicant was on the day of cancellation. Nor is there any issue that the Applicant clothed the delegate with power to review the decision cancelling the visa because he had made representations within the time and in the manner prescribed by the Minister’s invitation to him to make representations as required by s.501CA(4)(a). Nor is there any question that the Tribunal now has jurisdiction and power to review the decision because the Applicant filed his application for review within the time prescribed.
The question about the revocation of the cancellation of the visa depends upon the Tribunal being satisfied that ‘there is another reason why the original decision [the decision to cancel the visa] should be revoked’. That is the test laid down by s.501CA(4)(b)(ii) of the Migration Act. The other basis for revocation of the decision cancelling the visa, which is found in s.501CA(4)(b)(i) of the Act, is that the Applicant passes the character test in s.501. This is not available as the Applicant has a ‘substantial criminal record’ as a result of his being sentenced to two or more terms of imprisonment where the total of those terms of imprisonment 12 months or more.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
The issue concerning satisfaction about whether ‘there is another reason why the original decision should be revoked’ requires an evaluative judgment about there being a reasoned basis or justification for revoking the visa cancellation.
The task of being satisfied about the existence of ‘another reason’ is guided by Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction) which commenced on 23 January 2023. The Tribunal is required by s.499(2A) of the Act to comply with the Direction in performing its functions and in the exercise of its powers, of which the review of a decision revoking a visa is one. The Direction and its predecessors are required to be applied by the Tribunal in determining whether there is satisfaction about there being another reason to revoke the cancellation of a visa.
The Direction identifies ‘principles’ which provide a framework to decide whether a decision to revoke a decision cancelling a visa should be made, and ‘considerations’ that are the matters a decision-maker must consider in making that decision, but they need only be considered to the extent that they are relevant to the decision[1]. The principles are found in paragraph 5.2 of the Direction and they are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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.
(3)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 measurable risk of causing physical harm to the Australian community.
(4)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.
(5)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally 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. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the noncitizen’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 8.5(2) (Expectations 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 Australian community.
[1] Paragraph 6 of the Direction.
The Direction refers to two categories of ‘considerations’ which are identified as ‘primary considerations’ and ‘other considerations.’ The ‘primary considerations’ are:
·protection of the Australian community from criminal or other serious conduct;
·whether the conduct engaged in constituted family violence;
·the strength, nature and duration of ties to Australia;
·the best interests of minor children in Australia; and
·the expectations of the Australian community.[2]
[2] Paragraph 8 of the Direction.
The ‘other considerations’ include:
·legal consequences of the decision;
·extent of impediments if removed from Australia;
·impact on victims; and
·impact on Australian business interests.[3]
[3] Paragraph 9 of the Direction.
The class of ‘other considerations’ is not closed so that other things may be considered as ‘other considerations’, a matter which is left to the Tribunal to determine for itself.
The Direction says, ‘primary considerations should generally be given greater weight than the other considerations.’[4] The word ‘generally’ contemplates cases where it may not be appropriate to do that.[5] There are cases which in their specific circumstances may require departure from the general position. Colvin J observed in relation to one of the predecessors to the Direction, which is not materially different to the Direction in this respect:
The use by the Tribunal of the term 'secondary' indicates that the 'other considerations' are always of lesser importance. However, Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including nonrefoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[6]
[4] Paragraph 7(1) of the Direction.
[5] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [76] (per Charlesworth J).
[6] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23].
Further, the Direction lays down within each identified consideration particular matters that must be taken into account. The obligation to take matters into account carries recognition of the fact that there must be ‘real consideration of the circumstances of the people affected … confronting what is being done to people.’[7] Sight should not be lost of the fact that the subject matter with which the decision is dealing potentially involves the exclusion from Australia of someone who may have lived In Australia for a substantial or important part of their life or even someone who has made a decision to set up their whole life in Australia for the foreseeable future but has not in fact lived in Australia for a long time. It need only be said that the far-reaching ramifications to the community, particular people, and, naturally enough, an applicant and her or his family and friends, are important and point firmly to the very real need to consider all matters earnestly and deliberatively.
[7] Hands v Minister for Immigration and Border Protection [2018] FCAFC 225 at [3].
I will consider the matters that are relevant to each of the relevant primary and other considerations in turn noting that neither party suggested that considerations related to conduct involving family violence or to the impact on victims were relevant. The Applicant’s initial suggestion that the extent of impediments if required to leave Australia and the impact on Australian business interests were relevant was abandoned by the end of the hearing. I am satisfied that each of these four considerations are irrelevant to my decision about whether there is another reason to revoke the decision cancelling the visa.
Protection of the Australian community
I am required to consider the nature and seriousness of the Applicant’s conduct which includes both criminal offending and other conduct and the risk to the Australian community, should the Applicant commit further offences or engage in other serious (mis)conduct.
On 25 January 2016 the Applicant was found guilty of an offence involving his having had goods in his custody suspected of being stolen and of having in his possession a restricted substance, namely steroids. The Applicant received the benefit of a good behaviour bond for 12 months and no convictions were recorded. The penalty imposed for those offences reflects that they were not considered serious offences.
On 9 June 2022 the Applicant was convicted and sentenced for two offences under the Drug Misuse and Traffic Act 1985 (NSW) (DMT Act). The first was the offence of ‘supply prohibited drugs on an ongoing basis’ contrary to s.25A(1) of the DMT Act. The second was the offence of ‘manufacture prohibited drug greater than or equal to a commercial quantity’, namely testosterone in an amount of 17.467 kilograms, contrary to s.24(2) of the DMT Act. The quantity of testosterone was more than three times that which is legislatively prescribed as a commercial quantity. When he was sentenced the Applicant also asked the Court to take into account six other offences to which he admitted his guilt, which were an offence of ‘deal with property proceeds of crime greater than or equal to $100000’, namely $141,200 cash contrary to s.193C(1) of the Crimes Act 1900 (Cth) (Crimes Act); and five separate offences of ‘manufacture prohibited drug greater than an indictable quantity’ in respect of 4.47 kilograms of Nandrolone, 4.061 kilograms of Boldenone, 3.302 kilograms of Trenbolone, 2.418 kilograms of Methandienone and 2.503 kilograms of Oxandrolone which were all the subject of separate offences under s.24(1) of the DMT Act.
The offences under s.25A(1) and s.24(2) of the DMT Act carried a maximum penalty of 20 years imprisonment and/or a $385,000 fine. The maximum penalty for the offence under s.193C(1) was five years imprisonment. The maximum penalty for the offences under s.24(1) of the DMT Act was 15 years imprisonment and/or a fine of $220,000. The maximum penalties for the kinds of offences involved points to objectively serious criminal offending.
In order to understand the nature and seriousness of the Applicant’s actual offending it is necessary to say something about the facts that led to the Applicant being sentenced. The offences were committed over the period 8 July 2020 to 9 October 2020 although the ongoing supply offence concerned five supplies over a period of twenty-five days between 4 and 26 August 2020. All of the offences involved conduct over a period of four months. For the supply transactions, the Applicant received about $6,000. The offences involving manufacture were committed in the Applicant’s home where he lived with his wife and two children and at another property that they rented. At both properties various manufacturing equipment such as semi-automatic capsule fillers, empty capsules, a tablet press, labelling devices and prohibited drugs were found. The detail of the facts depict an enterprise of some magnitude and offending that involved thought and planning.
The sentencing judge placed the seriousness of the supply offences at the lower end of objective seriousness and the manufacturing offences ‘well towards the mid-range’ for the kind of offence involved. This had regard to what the sentencing judge viewed as the lack of sophistication in the supply and most probably the fact that there were only five individual transactions associated with the supply. The manufacturing offences were objectively more serious given the dimensions of the enterprise.
The actual sentence imposed also reflects something about the seriousness of the offending. The Applicant was sentenced to an aggregate sentence of four years and six months imprisonment with a non-patrol period of two years and three months. The aggregate sentence reflects where the sentencing judge placed the seriousness of the offences so far as offences of the kind were concerned – having regard to the offences, generally their seriousness was somewhere below the mid-range of seriousness, but certainly approaching that level of seriousness especially so far as the manufacturing offences were concerned. On any view four and half years out of someone’s life to be spent in the strictures of a custodial institution with everything that one might well imagine travels with that reflects something that is at a heightened level of seriousness. And even if only the non-parole period of two years and three months is considered that is still a significant period. It is to be noted that the sentencing judge found special circumstances that entitled her Honour to reduce the standard non parole period. Those special circumstances were said to lay in the Applicant’s strong subjective factors.
In assessing the seriousness of an offence, it is also appropriate to have regard to the fact that in sentencing the sentencing judge would necessarily have embarked upon a comparison between the nature and seriousness of the offences committed by the Applicant and the worst possible case for which the maximum penalty is prescribed. The offences in this case are far from the most serious offences of their kind, but they do reflect serious offences having regard to the fact that they involved incarceration for a very lengthy period of time. Although none of the offences involved violence to people or property, they did involve participation in a criminal activity of a serious kind involving the manufacture and supply of prohibited substances which is a serious anti-social phenomenon that in a general sense inflicts grief and pain on the community on a large scale.
Finally, it should be observed that the 2020 offences reflected something of an escalation of prohibited substance offending from that involved in the 2016 offending, to the extent that the two tranches of offending involve a ‘trend’ that is indictive of increasingly serious offending. The 2016 offences taken together with the 2020 offences nonetheless only marginally add to the seriousness of the overall offending because the earlier offences appear on their face to have been treated leniently and their gravamen seemingly pales into insignificance when measured against the later offences.
I am satisfied that the nature and seriousness of the Applicant’s criminal offences for which he was convicted are objectively very serious. I am satisfied that the Applicant’s criminal offending generally is very serious.
Next, it is necessary to consider the risk to the Australian community should the Applicant commit further offences or engage in other serious misconduct. There is little doubt that the manufacture and supply of commercial quantities of prohibited drugs has the potential to do great harm to the Australian community. There was some evidence before me about the harmful longer-term effects of steroid use upon individuals, such as serious and permanent damage to vital organs such as the liver, heart and kidneys. It seems more latterly the Applicant himself has been a victim of those consequences as a result of his own steroid use having had liver operation only in the last month or so. There are, of course, the more general social problems that associate themselves with illicit drug use; the social cost in terms of law enforcement and to the health system are but two examples. The Applicant’s contribution to the larger social cost stemming from illicit drug manufacture, supply and use is likely to be fairly insignificant, especially if his offending only involves more of the same. Nonetheless given the potential direct harm to members of the community from steroid use I consider that the potential harm visited on the community should the Applicant reoffend to be serious, although certainly not at the highest level of seriousness.
As is often the case in matters like this one the more problematic issue is the risk, or likelihood, of the Applicant reoffending. There are a number of factors that are relevant to this that in my assessment place the likelihood of the Applicant reoffending towards the lower end of the range of probability. As the Minister submitted, the matters I refer to below must be considered against the Applicant’s known history of having committed criminal offences which is a firm indicator of what may be likely in the future.
First, the Applicant has expressed remorse and contrition for his conduct both when he was sentenced and before me. I do not place a lot of store in his plea of guilty at an early stage because it seems that the plea was in the context of what appears to have been a very strong case and his plea was most probably just an acceptance of the inevitable. It is not irrelevant though that he admitted his guilt and accepted responsibility for his wrongdoing. The Applicant’s expressions of remorse and contrition when sentenced are also relevant in this regard. That was contained in a letter to the Court which reflected what he had said to others, a psychologist, a Chaplin and was also found in some character references tendered upon his sentencing. Again, the Applicant took responsibility for the offences and acknowledged that his own use of steroids over a very long time had prevented him from seeing that what he was doing was wrong. He expressed shame about what he had done. He acknowledged that he had by his conduct harmed the community and those who used steroids. The sentencing judge accepted the Applicant’s regret as real. I do too.
Second, the Applicant is otherwise of good character having no other criminal convictions, although there is the episode in 2016 where he received the benefit of not being convicted and subjected to a good behaviour bond. A number of references that were submitted to the delegate and the Tribunal attest to his otherwise good character. On their own these references perhaps mean little but when taken with the other matters they add to the suggestion that the Applicant’s prospects of repeat offending are towards the lower end of the scale. Although not disinterested, his wife’s written testimony about his character as a husband and father had an air of genuineness when considered alongside what others said about the Applicant and the Applicant’s own statements of remorse and contrition.
The Minister pointed to an incident involving the Applicant whilst he was incarcerated, which involved the Applicant in an assault on another inmate, as indicating something of the Applicant’s likelihood of reoffending. The Applicant gave evidence about the circumstances of the assault, which he relevantly admitted. An inmate who was regarded as something of a bully had taken a young inmate’s buy up (that is some food) and had refused to return it. The Applicant became involved because he came to the defence of the younger inmate. The Applicant frankly admitted his wrongdoing by engaging in the incident in the way he did. There is nothing that would suggest that this incident was anything but isolated. It happened against the background of a long period of good behaviour whilst in custody. I do not consider it significantly reflects adversely on the Applicant’s character or that it is suggestive that the Applicant will in the community engage in conduct of that kind. I also note what was said about this incident in the pre-sentence report prepared immediately before the Applicant’s release on parole, to which I will refer in a moment.
Third, the sentencing judge considered the Applicant’s prospects of rehabilitation to be good subject to his continuing abstinence from drugs and on release removing himself from previous associates and the ‘drug milieu’. He has whilst incarcerated undertaken programs of learning designed to deal with his circumstances: the Positive Lifestyle Program for Individuals, the Health Survival Tips Program and the ‘Getting Equip’d’ program. In his evidence on a number of occasions the Applicant showed what came across as a genuine understanding of at least some of the lessons he had learnt from these courses which were to the effect that if he needed help, he needed to ask for it and that in order to rehabilitate himself he needed to ‘work hard’.
The Applicant worked whilst incarcerated as a sweeper and in the furniture workshop. He has enrolled in rehabilitation programs which he intends to pursue upon his release from detention, even though he did not do so in the six weeks when he was released from detention. His failure to quickly enrol in courses upon his temporary release is perhaps understandable given that he was likely to be adjusting to life on the outside. In any event if that detracts from the Applicant’s statements about his rehabilitation, I do not consider it does so in a significant way. The things the Applicant has done and learnt suggest that he has some commitment to rehabilitation and that he is intent upon changing his ways. It is true, as the Minister submitted, that his long history of steroid use, exceeding something like 20 years, will mean that the road to rehabilitation will be long and difficult, but the Applicant’s efforts to date have laid firm foundations for the road ahead. I accept that it is difficult to say much more about the likelihood of the Applicant’s rehabilitation being successful, but the early indicators are positive.
I should deal here with one aspect of the evidence that suggested that the Applicant admitted that whilst in detention he was taking steroids. The evidence relied upon for this suggestion was an entry in a clinical note dated 13 April 2023 that read ‘admitted getting and taking steroids whilts (sic) here at detention centre’. The author who made the clinical note was not called to give evidence and was made not available for cross-examination. The Applicant denied ever taking steroids whilst in detention. The Applicant denied telling the author of the clinical note that he had been using steroids whilst in detention. His evidence was that he told the author that he had been taking steroids ‘all his life’ and that the clinician must have misunderstood this to include his time in detention. Given the Applicant’s denial and the unavailability of the author of the note for cross examination I am not prepared to make a finding that the Applicant used steroids whilst in detention. Amongst other things it is a curious thing for the Applicant to have admitted to, given that he was awaiting this hearing and would have known taking steroids was illegal and would hurt his case to remain in Australia. There is another reason for not acting on this material, which lay in the Applicant’s blood test about three weeks earlier that returned results that on the face of things were inconsistent with him using steroids whilst in detention.
There was also an earlier note on the Applicant’s drug and alcohol induction screen conducted in February that circled the word ‘steroids’ and had the words ‘8 months’ and an arrow alongside it. Again, quite apart from the fact that the note is meaningless, I would not be prepared to rely on it in a manner adverse to the Applicant given his denial and the absence of the author being available for cross examination.
Fourth, the Applicant has some fairly strong protective factors that will encourage him to refrain from further criminal offending. He has a wife and two children. He squarely acknowledged in his evidence the pain it had caused him to have been away from them whilst incarcerated and in detention. He has his friends who have supported him and who have indicated some willingness to support him further upon his release from detention. He has employment arranged for when he is released with a friend who he had worked for before he went to prison. It is true that the Applicant had many of those things available to him before his incarceration and subsequent detention. Those things take on a different light not just for the Applicant but for all around him where it has been made transparently clear that the real and most likely consequence of him reoffending will be cancellation of any visa he may hold. The Minister suggested that the Applicant’s wife’s conviction and sentence for related offences counted against the Applicants likelihood of not reoffending. I am not at all certain as to the basis for the suggestion, but I note the fact that she too has seen the consequences for her husband, herself and more importantly perhaps her young children of the criminal offending. All of that together with her own conviction and sentence should be a stark reminder of what follows from reoffending by her husband.
Fifth, there are some strong professional expert opinions that bear upon the Applicant’s likelihood of reoffending. A pre-release report prepared by a Community Corrections Officers employed by the Department of Justice for the purpose of determining the Applicant’s suitability for being released on parole dated 24 October 2022 recorded that that Community Corrections assessed the Applicant’s likelihood of reoffending as being in the medium/low range. That report recorded a raft of other matters that suggested that the Applicant had good prospects of not reoffending such as his insight into his offending, the ‘pro-social’ factors that would be available to him on release and his remorse. Significantly the report observed that whilst the in-custody assault that had occurred earlier in the year was ‘less than ideal’ it was relevant that it did not ‘demonstrate a patter behaviour during his incarceration’. The report recommended release on parole subject to a condition that the Applicant not use prohibited drugs or substances unless prescribed.
There was also a report prepared by a psychologist Mr Tim Watson-Munro dated 21 June 2023. Mr Watson-Munro agreed to be bound by the Tribunal’s Guidelines for Persons Giving Expert and Opinion Evidence. The report appears to present a reasonably comprehensive and balanced opinion about the matters with which it deals. It is not necessary to detail all of what is in that report. The report recorded that the Applicant was confronting surgery relating to an enlarged liver, which was a consequence of his prolonged steroid use, as being something that was reinforcing ‘his strong desire to not use steroids or any other illicit drugs’. The report detailed much of the Applicant’s history and observed that the Applicant’s time in custody and in detention had had ‘a salutary effect upon him’. Significantly, Mr Watson-Munro considered, like I do, the prospects of rehabilitation to be positive referring to the protective factors, the absence of drug use and the Applicants willingness to engage in rehabilitation programs. The report concluded that the Applicant’s risk of reoffending ‘is trending towards low’. In that respect the report confirms the opinions in the pre-release report.
Sixth, there is the rehabilitative effect of incarceration itself. It should not be presumed that being locked up and deprived of liberty for more than two years may not in and of itself have had rehabilitative effect.
The Minister submitted that there were some things that pointed against these factors as being indicative of a low prospect of reoffending. In particular the Minister submitted that some of the Applicant’s evidence about his history of drug use was problematic and that I should find that the Applicant was attempting to minimise or downplay his use of illicit drugs.
The Applicant was asked about his use of other illicit drugs around 2016 to 2017 when his son was diagnosed with Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. The Applicant said that he had used other drugs ‘occasionally’ but did not use them ‘often’ because they interfered with his training. This was compared to what a psychologist who saw the Applicant in May 2022 had recorded in her report (which is incorrectly dated 20 May 2020) which was that the Applicant said he had been using those illicit drugs ‘regularly’ over a 12-month period. A more recent psychologist’s report dated 21 June 2023 recorded that the Applicant had been taking two illicit drugs for 12 months ‘in the context of his depression referable to his son’s autism and him being impacted by COVID lockdowns’, although the Applicant denied a ‘pattern of illicit drug use, beyond his involvement with anabolic steroids’. The denial of a ‘pattern’ is consistent with the Applicant’s evidence about the periodicity in which he was taking illicit drugs over the 12 months, namely occasionally.
Although the Applicant’s evidence and what the psychologists have recorded him saying are different, they are not so different to cause me to reject the Applicant’s evidence or to find he is lacking in credit. For one thing, neither psychologist records anything about the number of times the Applicant took illicit drugs (other than steroids), presumably because they did not ask this question. Nor is there any identification of the periodicity involved in the word ‘regularly’. The more recent psychologist appears to place the 12-month period somewhere different in time to the son’s diagnosis, because that was some years before the pandemic and lockdown. Further, the first report was apparently prepared for the Applicant’s sentencing in May 2022. The second was prepared for this hearing. It is not immediately obvious why the Applicant would downplay his evidence about using illicit drugs to the Tribunal but not to the psychologists who were dealing with him for the purpose of criminal sentencing and potential visa cancellation. The fact that he admitted to using illicit drugs in the context of both reports must have been something he knew could not help him with either case. His admissions say something that goes to the Applicant’s credit. In the absence of evidence from the psychologists about their recollection of what exactly they asked and what their recollection was about what was said I am not prepared to make a finding adverse to the Applicant. In any event the more important fact is that the Applicant has been free from any illicit drugs since he was taken into custody in October 2020 which is a significant factor in his rehabilitation.
I was referred to a police record for 1 May 2017 that included statements that the Applicant had taken ‘a cocktail of ice GBH and steroids’ and that the Applicant’s wife had told the police that that the Applicant had taken ‘ice’. The person making the note was not made available for cross-examination. The Applicant denied taking any drugs at that time and said he recalled having a ‘panic attack’. He was fairly adamant in his evidence. The Applicant’s wife denied telling the police that her husband had taken ice or any drugs on that occasion. I am not prepared in the face of the corroborated denials and the failure to call the author of the note to make any finding adverse to the Applicant about this incident, especially because I found the Applicant to generally be a credible witness.
It was suggested that the Applicant having owned an investment property and a business suggests that the offences were committed not by necessity but rather by greed. This was in circumstances where the Applicant said that at the time of the offending his family was struggling financially. There is no evidence that would permit me to make a finding one way or another about this but I note that the sentencing Judge appeared to proceed upon an acceptance of the Applicant’s concern over his inability to work and derive an income to support his family in the early days of the pandemic and, in particular, during lock down. I incline to the view that not being able to ply his trade as a personal trainer in the early days, weeks and months of the pandemic probably did create some financial stress for the Applicant. In the end I do not consider it matters a great deal whether the motivation for the offending was greed or financial stress, because in either case the matters I have referred to above remain in play: the Applicant’s remorse, rehabilitative efforts and prospects of rehabilitation, and his protective factors which all firmly suggest that the likelihood of him reoffending should be assessed as medium to low, or as Mr Munro-Watson described it ‘trending towards low’.
These matters lead me to conclude that whilst there is a real risk that the Applicant might reoffend the likelihood is towards the lower end of the probabilities.
I am satisfied that the nature and seriousness of the Applicant’s criminal conduct to date is very serious, and that the consequences of reoffending will harm the community and individuals, but that likelihood of the Applicant reoffending is towards the low end of probabilities. This consideration is one that counts against revoking the decision cancelling the visa although only moderately so.
Strength, nature and duration of ties to Australia
I am required to consider the impact of my decision upon the Applicant’s immediate family members in Australia where those family members are Australian citizens, Australian permanent residents or people who have a right to lawfully remain in Australia indefinitely. I am required to give more weight to this consideration where the Applicant’s ties involve his children who are Australian citizens. I am required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community and have regard to the length of time the Applicant has resided in Australia, giving more weight to this consideration where the Applicant has contributed positively to the Australian community and less weight to the length of time spent in the community where the Applicant was not in Australia in his formative years and began offending soon after arrival in Australia.
The Applicant came to Australia when he was 25 years of age and lived in Australia in the community for about 12 years before his incarceration and detention.
The Applicant’s wife and nine-year-old son are Australian permanent residents. The Applicant’s 11-year-old daughter is an Australian citizen. The two children have lived in Australia with their parents for the whole of their lives excluding the period whilst the Applicant has been incarcerated and in detention. I will deal later with the best interests of the children: it is sufficient here to say that the impact on the two children of a decision refusing to revoke the cancellation of the visa will be significant as both will be separated from their father, who most likely will remain in indefinite detention.
The Applicant’s wife will be left to care for her children separated from her husband which will undoubtedly present its own difficulties and challenges. The impact upon her will be significant as she will be left to raise her two young children without the day-in, day-out support, emotional, physical and financial, of her children’s father in addition to having to deal with the emotional separation from her husband who she wishes to have in her life and who she described as being ‘everything’ to her. She described him as being ‘…like a father, mother, sibling and entire family wrapped into one person. He is my life’. It is tolerably clear that that separation will represent a substantial negative impact upon her.
The impact on the Applicant’s immediate family of not revoking the decision cancelling the visa will be significant in emotional terms.
The Applicant has other family living in Australia comprising of several aunts and uncles. The Minister quite properly conceded that given the time the Applicant has lived in Australia the Applicant would have relationships with other members of the Australian community. The Applicant gave some examples of these people and some of them provided evidence by way of references as well. The Applicant’s ties to the community are found, at least in some cases, in his deep sense of caring for his friends who he has supported through their difficult times. The Applicant has also owned a business during his time in Australia which employed people and he has held employment in several different capacities including in his own gym as a personal trainer which undoubtedly would have involved in him forming ties with members of the community and contributing to their lives. These things involve a positive contribution to the community over many years which I am required to give more weight to.
The Applicant’s criminal offending for which he was found guilty but not convicted commenced about six or seven years after he arrived in Australia, although it would seem he was engaging in unlawful conduct by illegally using steroids since his arrival or at least shortly afterwards. The Applicant’s offending from an early time in Australia means that I should give this consideration less weight than I might otherwise give it.
The close connection the Applicant has to his children and wife, his extended family members and others in the community which has been formed over many years means that consideration should be given weight in favour of revoking the decision cancelling the visa.
Best interests of minor children in Australia
The Applicant is the father of two young children, a daughter aged 11 years and a son aged nine years. I am required to consider the best interests of each child separately to the extent that their interests differ. Except for one very significant factor concerning his son’s diagnosis concerning Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder, the best interests of the children are much the same.
The Applicant lived together with both children for the whole of their lives until he was taken into custody on 9 October 2020. He again lived with them briefly for about six weeks in early 2023 before he was required to return to detention for reasons that do not need to be explained here. He was in detention until the hearing of this matter concluded. There has been no other father figure in their lives.
The Applicant’s wife said of the Applicant as a father that ‘Before [the Applicant], I believed that no one could compare to my own father, but he has shown me that extraordinary fathers exist. Our children are incredibly fortunate to have him as their father, and I am proud to have chosen him to be their dad’. The evidence is that the children miss their father a great deal and have remained in contact with him by phone since his incarceration and detention. The children spend a considerable amount of time talking to their father on the phone and for a time they visited him weekly when he was in detention.
I am required to consider the extent to which the Applicant is likely to play a positive parental role in the future taking into account the time until the children are 18 years of age. Both children have some time to go before their eighteenth birthdays and both can fairly be described as being in their formative years. The Applicant’s commitment to rehabilitation to which I have referred earlier suggests that if he is able to abstain from steroids, and he will be a strong positive influence in his children’s lives. His remorse and contrition and his acceptance of responsibility for his wrongdoing are valuable and powerful indicators that he has the capacity to be and will be a positive influence in both children’s development. This is particularly so given his wife’s evidence about the kind of father he has been to date.
The Applicant’s past conduct will impact on his children having regard to the fact that they will know at some stage that their father has been convicted of and sentenced for serious wrongdoing. The likelihood is given my assessment of his prospects of reoffending that his future conduct will be a positive for them as well. This is because I do not consider his prospects of his reoffending are high.
It is also important that both children want their father in their lives and they are old enough to express a meaningful opinion about that. I do not consider that the children being able to talk to their father on the phone or by some other technology is in their best interests – their best interests would be served by having a day-to-day relationship with their father who they obviously love dearly and who loves them dearly.
I earlier mentioned the son’s diagnosis concerning Autism Spectrum Disorder and Attention Deficit Hyperactivity Disorder. He has been diagnosed as having Level 3 Autism Spectrum Disorder, which according to the literature means he needs a high or very high level of support. It is not necessary to set out all of the symptoms associated with his diagnosis. It is sufficient to say that that his son exhibits various kinds of challenging behaviours that are described as involving ‘anxiety, crying and meltdowns’, aggression, difficulties with verbal and non-verbal communication and learning difficulties. The Applicant gave evidence about how it was necessary to teach his son things on a daily basis, like simple tasks such as feeding and going to the toilet, and the use of ‘reward therapy’. He also gave evidence about his own role even whilst in detention assisting with aspects of the child’s behaviour by fielding and dealing with calls from the child’s teachers following various episodes involving tantrums and outbursts. The Applicant clearly had before his incarceration and detention a hands-on role in assisting with his son’s needs and continued that so far as he could whilst in detention.
The son’s diagnosed condition places his position in a different light, given all the things that go with caring for a child with such special needs. The evidence referred to the need for the son to attend four medical or other appointments each week and the Applicant’s desire to assist with that. Also, it should not be forgotten that the ordinary day to day responsibilities of care of children with disabilities present their own special emotional needs for their carers which are likely to be best enhanced by shared responsibility. Although the child receives support from the National Disability Insurance Scheme, that is no substitute for the care, love and affection that would be brought to him by having two parents, one of whom is his father, available to him on a day in day out basis. The Applicant’s son’s best interests would be served by having his father physically present in his life.
I am satisfied that the best interests of each of the Applicants children in question weighs strongly in favour of revocation given the likely impact upon the children of not having their father in their lives on a day-to-day basis
Expectations of the Australian community
I am required to give weight to the expectations of the Australian community, the expectations that people who are allowed to live and be in Australia will obey Australian laws and that where someone who has been permitted to stay in Australia ’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 to not allow such a non-citizen to enter or remain in Australia’.
This means that ‘non revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the non-citizen should not … continue to hold a visa.’ Specifically, the expectation is that a visa should be cancelled if character concerns are raised through conduct involving acts of family violence, commission of serious crimes against women or children, or commission of crimes against government representatives, amongst others.
I must decide whether more or less weight is to be given to the community expectation of non-revocation of mandatory cancellation ‘that might otherwise arise simply because of the nature of the non-citizen’s character concerns or offences.’[8] This involves an evaluation about how strong this factor is in the particular circumstances of the case.
[8] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [77] (per Charlesworth J).
The nature of the criminal offending, as I have found, is very serious such that the expectations of the community weigh in favour of non-revocation. The offences are very serious, but the conduct if repeated and the harm likely to be caused if they were to be repeated is not so serious that revoking the mandatory cancellation is out of the question. The offences are not in the category of the ‘particular’ offences identified in the Directions that make non revocation appropriate simply because of the nature of the offences. The Applicant has been in Australia for about 16 years and most of his adult life. He has contributed to the community during that time through his work as a personal trainer and his ownership of his petrol station. He has also contributed through the ties and friendships he has.
The expectations of the Australian community should be afforded moderate, but not heavy, weight in favour of non-revocation in light of those considerations.
Legal consequences of the decision
The Applicant is a person who has been found to be owed protection obligations and for whom a protection finding within the meaning if s.197C(5)(a) of the Migration Act has been made. The consequence of which is, as the Direction squarely identifies, the Applicant ‘must remain in immigration detention as required by section 189 unless and until [he is] granted another visa or [he] can be removed to a country other than the country by reference to which the protection finding was made.’ As the Minister put it ‘It is therefore very likely that the Applicant would remain in immigration detention for the foreseeable future’ or alternatively, that ‘the Applicant would face prolonged detention until the occurrence of one of the events in s.196(1) of the Act.’ It would be, of course, open to the Minister to exercise the powers available in s.195A and 198AD of the Migration Act at some time in the future but as the Minister correctly pointed out I should not speculate about that any more than I should speculate about the prospect that the Applicant might at some stage in the future request to be returned to Lebanon because he does not wish to be indefinitely detained (see Ali v Minister for Immigration and Border Protection [2018] FCA 650 at [31] – [34] which was cited with approval in RRFM vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 27 at [31] and in MNLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 35 at [150]. The immediate consequence of a decision refusing to revoke the mandatory cancellation of the visa is that the Applicant would be placed in indefinite detention.
As the Full Court observed in WKMZ vMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCAFC 25 at [123]:
The continued deprivation of a person’s liberty by reason of the operation of the statutory scheme remains a matter a visa decision maker should take into account, on the basis that liberty is one of the most basic human rights and fundamental freedoms known to the common law. As we explain below, for our own part we see no difficulty in attaching the adjective “indefinite” to such further period of detention, in circumstances where there is no fixed chronological end point, and where the person whose liberty is lost has no way of ascertaining when she or he might regain her or his freedom.
I am required to give weight to the fact that if I were to refuse to revoke the decision cancelling the visa, I would be perpetuating the Applicant’s detention and his continued deprivation of liberty with no identifiable fixed end point. That would be a significant consequence for the Applicant, denying as it does his fundamental human right and freedom. The significance of that consequence lead to me to conclude that I should give this consideration significant weight in favour of revoking the mandatory cancellation.
WHY THE CANCELLATION SHOULD BE REVOKED
I have found that the protection of the Australian community weighs firmly in favour of non-revocation of the visa cancellation. In doing so I consider that the consequences of the Applicant’s reoffending, should he do so, are not so serious as to preclude revocation especially because I consider that the prospect that the Applicant will reoffend to be towards the lower end of probabilities. I have found that the expectations of the Australian community weigh moderately against revocation. I have found that the best interests of the Applicant’s two children strongly weigh in favour of revocation and that the Applicant’s ties to the Australian community weigh in favour of revocation as well. The primary considerations when weighed together favour revocation of the decision cancelling the visa.
So far as the other considerations are concerned, I have found that the prospect of the Applicant being placed in indefinite detention and therefore losing the most fundamental of human rights, his liberty, to strongly favour the revocation of the decision cancelling the visa. The removal of someone’s liberty is so fundamental that taking it away would require strong and cogent justification which is not found in this case, especially given the assessment I have made of the primary considerations.
In all of the circumstances I am satisfied that there is another reason to revoke the mandatory cancellation of the visa which reason is found in the Applicant’s relatively low risk of criminal or other reoffending, his strong ties to Australia and members of the Australian community, the best interests of his children and the likelihood that absent restoration of the visa the Applicant will be placed in indefinite detention.
DECISION
I set aside the delegate’s decision and substitute in its place a decision revoking the cancellation of the Applicant’s Class XA (Subclass 866) Protection Visa.
I certify that the preceding seventy-two (72) paragraphs are a true copy of the reasons for the decision herein of Mr Rob Reitano, Member
....................................[SGD]....................................
Associate
Dated: 13 July 2023
Date(s) of hearing: 12 July 2023 Solicitors for the Applicant: Ms A Battisson, Human Rights For All Solicitors for the Respondent: Mr M Gao, HWL Ebsworth Lawyers
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