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

Rascovici and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 1640 (4 June 2020)
Division:GENERAL DIVISION
File Number: 2020/1695
Re:Cristian Rascovici
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Senior Member A. Nikolic AM CSC
Date:4 June 2020
Place:Melbourne

The Tribunal affirms the decision under review.
.........[sgd].......................................................
Senior Member A. Nikolic AM CSC
MIGRATION – Mandatory visa cancellation – citizen of Romania – Class BC Subclass 100 Partner (Migrant) visa – failure to pass good character test – extensive criminal history – whether another reason why the mandatory visa cancellation should be revoked – Ministerial Direction No. 79 applied – decision affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
CASES
Assistant Minister for Immigration and Border Protection v Splendido [2019] FCAFC 132
Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104
Brown v The Minister for Immigration and Citizenship (2010) 183 FCR 113
FYBR v Minister for Home Affairs [2020] HCA 056
FYBR v Minister for Home Affairs [2019] FCAFC 185
Hughes v The Queen [2017] HCA 20; 344 ALR 187
HVLC v Minister for Home Affairs [2019] FCA 616
Jagroop v Minister for Immigration and Border Protection [2016] 241 FCR 461
Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567
Minister for Immigration and Citizenship v Obele [2010] FCA 1445; (2010) 119 ALD 358
Murphy v Minister for Home Affairs [2018] FCA 1924
Nigro v Secretary to the Department of Justice [2013] VSCA 213; (2013) 304 ALR 535
RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 256
Viane v Minister for Immigration and Border Protection [2018] FCAFC 116; (2018) 162 ALD 13
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705; (2015) 148 ALD 117
SECONDARY MATERIALS
Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501C
REASONS FOR DECISION
Senior Member A. Nikolic AM CSC
4 June 2020
INTRODUCTION

The applicant, Mr Cristian Rascovici, seeks review of a decision by a delegate of the respondent, made under s 501CA(4) of the Migration Act 1958 (Cth) (“the Act”), not to revoke the mandatory cancellation of his Class BC Subclass 100 Partner (Migrant) visa (“the visa”).[1]
[1] Exhibit R1, 7.
The hearing was held in Melbourne on 27 May 2020. Mr Rascovici was represented by
Ms Souvlakis of Ethos Migration Lawyers. The Minister was represented by Mr Orchard of Sparke Helmore Lawyers.
For the following reasons, the Tribunal affirms the decision under review.
BACKGROUND
Mr Rascovici is a 38-year old citizen of Romania who came to Australia in 2006 when he was 25 years of age. He met and married his Australian citizen wife while she was holidaying in Romania in 2003,[2] and she subsequently sponsored his migration to Australia.
[2] Ibid, 45 [25]; 66 [16]; 128.
At the time of Mr Rascovici’s intended migration, consideration was given by Australian immigration authorities to refuse his visa application on character grounds, due to criminal offending in Romania. On 20 January 2006 it was decided not to refuse the visa application, but Mr Rascovici was advised through his authorised recipient[3] of the following:[4]
‘It is important that your client note that if he ever makes a future application for a visa or Australian Citizenship, or completes an incoming passenger card when entering Australia, he is required by law to disclose all of his criminal convictions in that application or on his passenger card. The consequences of failing to disclose his convictions are serious and include:
·Refusal of entry to Australia;
·Refusal of citizenship;
·Visa cancellation;
·Removal from Australia, and
· Criminal prosecution.’
[3] World-Aus Immigration and Community Services.
[4] Exhibit R1, 102-103.
Mr Rascovici arrived in Australia on 11 March 2006. In the section of his incoming passenger card that asks, ‘Do you have any criminal convictions?’ the ‘No’ box is crossed.[5]
[5] ibid, 115.
Approximately five years after arriving in Australia, Mr Rascovici returned to Romania for a three-month holiday.[6] On that occasion, in response to the question on the incoming passenger card ‘Do you have any criminal convictions?’ the ‘Yes’ box is ticked.[7]
[6] Ibid, 114; 225.
[7] Ibid, 116.
Mr Rascovici stated in his 2019 Personal Circumstances Form (“2019 PCF”) that his immediate family, including his parents, two brothers and other relatives live in Romania.[8] He stated at the hearing that one of those brothers now lives and works in Germany. The relatives Mr Rascovici has in Australia are his 16-year old daughter, a stepson who is almost 20 years of age,[9] and members of his wife’s immediate family.[10]
[8] Ibid, 133.
[9] Ibid, 129.
[10] Ibid, 133.
Mr Rascovici has an extensive criminal history in Australia between November 2008 and March 2019, consisting of approximately 100 convictions.[11] In 2013 consideration was again given to refusing a partner visa application he lodged on character grounds.[12] The application was subsequently approved, but on 6 March 2014 a delegate of the respondent warned Mr Rascovici of the potential consequences of any further offending in the following terms (“2014 Warning”):
‘On this occasion, a delegate of the Minister has decided not to exercise their discretion to refuse your visa application under subsection 501(1) of the Act. However you are warned that if you engage in any further conduct that might bring you within the scope of section 501, cancellation of any visa that you hold and/or refusal of any future visa applications may be considered and if so, the fact of this warning may weigh heavily against you…
It is important to note that if you ever make a future application for a visa or Australian citizenship, or complete an incoming passenger card when entering Australia, you are required by law to disclose any criminal convictions that you may have in that application or passenger card. The consequences of failing to disclose your convictions are serious…’
[11] Ibid, 26-29.
[12] Ibid, 109-113.
Mr Rascovici was convicted of multiple offences in the five years after the 2014 Warning. On 1 May 2019 his visa was mandatorily cancelled on character grounds under s 501(3A) of the Act.[13] Mr Rascovici made representations seeking revocation of the cancellation decision within the period and in the manner specified under the Act.[14]
[13] Ibid, 87-93; 98-101. The latter included notifications of previous decisions under s 501(1) of the Act dated January 2006 and March 2014, an Incoming Passenger Card in which it was alleged the applicant failed to declare his prior overseas convictions, a Romanian court document, and previous correspondence between the applicant and Department in 2013
[14] Ibid, 10 [3]; 144-149; 227.
On 13 March 2020 Mr Rascovici was informed of the decision not to revoke the cancellation of his visa.[15] On 20 March 2020 he asked the Tribunal to review the non-revocation decision,[16] stating the respondent’s decision was wrong because:
‘The decision did not take into account the effect the applicant’s removal from Australia will have to his minor daughter and other vulnerable members of his immediate family…’
[15] Ibid, 7-25.
[16] Ibid, 1-6.
Pursuant to s 500(6L) of the Act, the Tribunal must discharge its review function in respect of this application by 5 June 2020.
LEGISLATIVE FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) and s 500(1)(ba) of the Act are the sources of the Tribunal’s jurisdiction to review decisions under s 501CA.
Section 501(3A) of the Act, read in conjunction with ss 501(6) and 501(7), obliges the Minister to cancel a person’s visa if the Minister is satisfied the person does not pass the character test and is serving a full-time sentence of imprisonment.
The ‘character test’ is defined in s 501(6) of the Act and refers to a range of character matters that the Minister or their delegate may have regard to in deciding whether to revoke a mandatory visa cancellation. Section 501(6)(a) of the Act provides:
(6) For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or …
Section 501(7) of the Act sets out six sets of circumstances in which a person is taken to have a substantial criminal record for the purposes of the character test, including if the person has been sentenced to a term of imprisonment of 12 months or more (s 501(7)(c)).
Under s 501CA(3) of the Act, the Minister is obliged, as soon as practicable after deciding to cancel a visa, to give notice of the decision to the person and to invite them to make representations about revoking the original cancellation decision. Provisions relating to the form and process of those representations are found in reg 2.52 of the Migration Regulations 1994 (Cth).
Section 501CA(4) of the Act provides a discretion that the Minister may revoke the original decision, if the person whose visa has been cancelled makes representations in accordance with the invitation, and the Minister is satisfied that the person passes the character test, or that there is another reason why the original decision should be revoked.
Direction No. 79
The Minister is empowered by s 499(1) of the Act to give written directions to a person or body having functions or powers under the Act, provided the directions are about the performance of those functions or the exercise of those powers. The Minister has done so in the form of Direction No. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (“the Direction”). Section 499(2A) mandates that the Tribunal must comply with the Direction.[17]
[17] BQL15 v Minister for Immigration and Border Protection [2018] FCAFC 104, 9 (Collier, Flick and Perry JJ).
The purpose of the Direction is to guide decision-makers in performing functions or exercising powers under ss 501 and 501CA of the Act. Clause 6.1 of the Direction sets out several objectives, the first of which is to ‘…regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.’
By way of general guidance, cl 6.2 of the Direction provides that:
(1) The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
(2) ….
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA.
The principles referred to in the Preamble of the Direction are reproduced below and constitute a framework within which decision-makers apply the considerations in Parts A, B, or C of the Direction:
6.3 Principles
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Clause 7(1)(b) of the Direction provides that in cases relating to the mandatory cancellation of a visa, a decision-maker ‘…must take into account the considerations in Part C …’. The following primary considerations at cl 13(2) of the Direction must be applied to determine whether to revoke a mandatory visa cancellation:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia; and
(c)Expectations of the Australian community.
Clause 14(1) of the Direction requires that other considerations to be taken into account include but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
Clause 8(2) of the Direction states that in applying the primary and other considerations, information and evidence from independent and authoritative sources should be given appropriate weight.
Clause 8(3) of the Direction states that ‘Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.’
Clause 8(4) states that ‘Primary considerations should generally be given greater weight than the other considerations.’
Clause 8(5) states that ‘One or more primary considerations may outweigh other primary considerations.’ However, as held in Jagroop v Minister for Immigration and Border Protection and Another [2016] 241 FCR 461 at [57] and [78], in relation to previous ministerial directions:
[57] … the weighing process in each case is in substance left, as it must be, to the individual decision-maker exercising the power under s 501…
…
[78] … Ultimately…each decision-maker must return to the probative material and evidence in an individual case: it is not the content of the Direction which determines the outcome of the exercise of the s 501 discretion, but rather its application by a particular decision-maker to the evidence and material in an individual case.
DOES MR RASCOVICI PASS THE CHARACTER TEST?
On 28 March 2019 Mr Rascovici received sentences totalling an aggregate of 20 months imprisonment. Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, he does not pass the character test. Accordingly, s 501CA(4)(b)(i) of the Act does not provide a basis to revoke the cancellation of his visa.
ISSUE TO BE RESOLVED
It remains to be determined under s 501CA(4)(b)(ii) of the Act if there is ‘another reason’ why the mandatory visa cancellation should be revoked. The task of identifying ‘another reason’ was elaborated upon by the Full Court of the Australian Federal Court in Viane v Minister for Immigration and Border Protection [2018] 162 ALD 13 per Colvin J at [64]:
There is no statutory power to revoke under s 501CA(4)(b)(ii) unless the Minister is satisfied that there is a reason, other than a conclusion that the person concerned passes the character test, which means that the original decision ‘should be’ revoked. It is not enough that there is a matter that might be considered or may be said to be objectively relevant. It must be a reason that carries sufficient weight or significance to satisfy the Minister entrusted with the responsibility to consider whether to revoke the visa cancellation that the decision should be revoked. Only a reason of that character enlivens the statutory power to revoke. It is the absence of such a reason that will result in a decision not to revoke a visa cancellation.
EVIDENCE BEFORE THE TRIBUNAL
The following were tendered into evidence by the applicant:
(a)A letter to Mr Rascovici’s daughter dated 18 July 2018 from The Private Eye Clinic, estimating the cost of medical expenses for ‘Squint Surgery’;[18]
(b)A letter dated 3 May 2018 from medical oncologist Dr Muhammad Alamgeer, regarding treatment received by Mr Rascovici’s father-in-law following surgery;[19]
(c)A letter dated 20 May 2020 from general practitioner, Dr Constantin Jigau, stating that he provides medical care for Mr Rascovici, Mr Rascovici’s wife, children and parents-in-law;[20]
(d)An undated statement from the applicant’s wife;[21]
(e)A statement dated 6 May 2020 from Mr Rascovici’s stepson;[22]
(f)An undated statement purportedly from Mr Rascovici’s 16-year old daughter;[23] and
(g)An unsigned statement dated 5 May 2020, purportedly from Mr Rascovici’s former employer, Mr Dean Culibrk.[24]
[18] Exhibit A1.
[19] Exhibit A2.
[20] Exhibit A3.
[21] Exhibit A4.
[22] Exhibit A5.
[23] Exhibit A6.
[24] Exhibit A7.
The following were tendered into evidence by the respondent:
(a)Documents numbering 228 pages;[25]
(b)Supplementary documents numbering 667 pages;[26] and
(c)Further supplementary documents numbering 8 pages.[27]
[25] Exhibit R1.
[26] Exhibit R2.
[27] Exhibit R3.
The Tribunal heard oral evidence from Mr Rascovici, his wife, and stepson. The Tribunal was advised at the commencement of the hearing that witnesses included Mr Rascovici’s daughter, who would give evidence by telephone. Multiple efforts to contact her on the number provided were unsuccessful, notwithstanding advice that she was expecting the Tribunal to call. The Tribunal also attempted to contact Mr Dean Culibrk, from whom a statement was provided by Ms Liliana Rascovici. Multiple efforts to contact Mr Culibrk on the telephone number provided were unsuccessful. The statement, purportedly from Mr Culibrk, is discussed later in these reasons.
National Criminal History
Mr Rascovici does not dispute the evidence regarding his criminal convictions in Australia[28] or Romania.[29] The Tribunal accepts the accuracy of these records.
[28] Exhibit R1, 26-29.
[29] Ibid, 78-84.
Sentencing Remarks

The Tribunal notes the sentencing remarks from the Magistrates’ Court in Melbourne dated 28 March 2019 (“2019 sentencing remarks”),[30] and the Magistrates’ Court in Dandenong dated 9 February 2017 (“2017 sentencing remarks”).[31]
[30] Ibid, 30-51.
[31] Ibid, 52-71.
Medical Evidence
Three medical records in evidence were discussed during the hearing:
(a)Exhibit A1 is an ‘Estimate of Medical Expenses for Squint Surgery,’ dated almost two years ago and addressed to Mr Rascovici’s daughter. The Tribunal notes from publicly available information that this is an elective procedure designed to ‘improve the alignment of the eyes’ by either weakening or strengthening tissue adjacent to the eyes.[32] When put to Mr Rascovici, he agreed this is the relevant procedure, claiming it was performed on his daughter sometime after July 2018. This is the only medical evidence tendered in support of Mr Rascovici’s submissions that his daughter has ‘special needs relating to her eyesight,’ which ‘is likely to affect her capabilities…as a young adult,’ and ‘is a vulnerable member of the Australian community.’[33] Exhibit A3 from general practitioner Dr Constantin Jigau states that Mr Rascovici’s daughter ‘has been suffering severe visual impairment,’ but does not refer to the type of condition or any other details. Dr Jigau was not called as a witness;
(b)Exhibit A2 is a letter from medical oncologist Dr Muhammad Alamgeer to general practitioner Dr Jigau dated almost two years ago, stating that Mr Rascovici’s father-in-law underwent pancreatic cancer surgery on 13 September 2017. The letter stated that eight months after surgery, the patient was ‘independent…and…eating quite well at home.’ Further tests showed ‘there is no evidence of recurrent disease’ and chemotherapy had ceased. Dr Alamgeer stated ‘I am planning to see him again in three months’ time…hopefully he remains in remission…’
(c)Exhibit A3 is a letter from Dr Jigau, which refers to a person ‘suffering from metastatic pancreatic cancer,’ with a different first and last name to the one used by Dr Alamgeer. When asked during the hearing, Mr Rascovici opined that perhaps Dr Jigau had gotten the name of his father-in-law wrong. No reference is made in Dr Jigau’s letter to any medical condition suffered by Mr Rascovici’s mother-in-law. The Tribunal was advised by Ms Souvlakis that no further medical evidence was being tendered in relation to family health issues, and the two letters above are the only medical evidence supporting Mr Rascovici’s submission that his mother-in-law and father-in-law are ‘vulnerable members of the public with serious medical conditions.’[34]
[32] Applicant’s Statement of Facts, Issues and Contentions dated 6 May 2020, 5 [26].
[34] Applicant’s Statement of Facts Issues and Contentions (“ASFIC”), 6 [30].
Mr Rascovici’s evidence
Unusually in these matters, Mr Rascovici did not tender a statement. The Tribunal has had regard for his earlier written submissions, including his 2019 PCF[35] and representations made on his behalf following visa cancellation.[36] The latter concedes that Mr Rascovici’s offending is ‘serious,’ and attributes his criminal conduct to drug and gambling addictions, and financial debts arising from those addictions. It was submitted that these factors caused him to ‘inadvertently’ become involved in criminal conduct.[37] Mr Rascovici has also attributed his offending to his wife’s drug and gambling addiction.[38] He claimed that his offending did not involve violence and, while conceding he had committed multiple crimes over more than a decade, contextualised his offending as mostly relating to ‘theft, handling stolen goods, driving offences, drug-related offences and breach of bail.’[39]
[35] Exhibit R1, 120-137.
[36] Ibid, 144-149.
[37] Ibid, 146 [14].
[38] Ibid, 146 [16].
[39] Ibid, 146 [15].
Mr Rascovici’s oral evidence at the hearing can be summarised as follows:
(a)When asked why his surname was the same as his wife’s parents, Mr Rascovici said he ‘took [his] wife’s name’ after their marriage in Romania, because it was easy to do so, but did not elaborate on the reasons why he changed his birth name;
(b)Mr Rascovici described his relationship with his wife Liliana, their children and his wife’s parents as close. He claimed to communicate with them daily by telephone and through social networking. He enjoyed their visits and said he played an active role in his daughter’s life. This included helping her deal with persistent problems with her eyes. When asked about the 2018 letter relating to the costs of ‘Squint Surgery,’[40] Mr Rascovici said the surgery was performed in Melbourne sometime after July 2018, but he could not specifically recall when or who performed the procedure. He claimed there was approximately $5,000 in out-of-pocket expenses, which was funded by him, his wife and his wife’s parents. Mr Rascovici said a doctor subsequently told the family that the surgery would need to ‘be done again,’ because a young person’s eyes develop until the age of 21. When asked who provided this advice, and what the nature of the repeat procedure was, Mr Rascovici could not recall the doctor’s name and was unsure what the repeat procedure was. When asked about any limitations resulting from his daughter’s eye condition, Mr Rascovici said she could ‘never drive, can’t be by herself [and has] depression because of her eyes.’ When asked what medical evidence he relied upon to corroborate these claims, Mr Rascovici agreed none had been provided to the Tribunal;
[40] Exhibit A1.
(c)Mr Rascovici was taken through aspects of his criminal history, agreeing it was ‘really bad.’ He confirmed that convictions for ‘Recklessly cause injury’ and two counts of ‘Make threat to kill’ in November 2009, related to offending against his wife in April 2008. This included punching her to the head, face and upper body, kicking her while she was on the ground, and threatening to kill her on two occasions.[41] Mr Rascovici explained he ‘was really drunk,’ was ‘not intending to hurt her,’ and deeply regretted his actions:
[41] Exhibit R2, 74.
‘It’s all just my anger. I was so drunk. I can’t recall everything that happened. The next day we were together as if nothing happened. It wasn’t my intention to hurt her, just to scare her.’
(d)When asked if he still considered his offences ‘do not involve violence,’[42]
Mr Rascovici responded ‘Yes – I’m not a violent person.’ When challenged Mr Rascovici stated ‘I didn’t hit her.’ When pressed, he said his level of drunkenness was such that he had no recollection of punching or kicking his wife. When asked what facts he had pleaded guilty to, Mr Rascovici eventually accepted he was violent, but insisted his conduct was unintentional. He also accepted that his threats to kill, contravention of a family violence intervention order, and possessing controlled weapons without excuse constituted violent offending.
[42] Exhibit R1, 146 [15].
(e)When asked about a period between 2009 and 2012 where no convictions were recorded against him, Mr Rascovici said this was the ‘best time,’ during which he felt part of a ‘normal family.’ He claimed to be working full time, not using drugs, and took his children on outings like fishing. He blamed a relapse into drug addiction on ‘bad friends…we met someone who was using…she said try something and slowly, slowly, we started using again.’ Mr Rascovici stated: ‘It was happening very slowly, and I didn’t think it would lead to bad things.’ He claimed to have ‘learned from that mistake’ and was ‘different now’ because he knew ‘how to fight against those things…I’m more experienced to deal with these things than before.’ The Tribunal put to Mr Rascovici that he had failed drug tests twice while imprisoned in 2019, suggesting he had not learned how to resist illicit drugs. Mr Rascovici insisted he had learned from that experience as well, because it caused him to lose visitation rights and he was determined not to repeat such conduct;
(f)When asked about his conviction in 2012 for ‘Knowingly deal with proceeds of crime,’ for which he was imprisoned for 14 months, Mr Rascovici said he was ‘buying stolen things like tools and jewellery.’ When asked how he coped with a lengthy sentence of imprisonment, Mr Rascovici said it was ‘easy’ because it was an ‘open camp [that] didn’t feel like prison.’ When pressed about whether this sentence was a salutary experience, Mr Rascovici responded: ‘Not really it was feeling like I was pretty much on a holiday. Prison didn’t scare me at that time.’ Mr Rascovici agreed that after being paroled from that sentence, he contravened a court-ordered Family Violence Protection Order within three months.[43] He agreed that his conduct included yelling and insulting his wife in their daughter’s presence, who tried to intervene and soiled herself because of fear from his conduct;[44]
[43] Exhibit R2, 52-53.
[44] Ibid, 41.
(g)Mr Rascovici agreed he had stolen cars in the past, used cancelled registration plates, drove unlicensed while affected by drugs and alcohol, used other people’s credit cards, and stole from department stores.[45] Mr Rascovici agreed that driving vehicles while under the influence of methylamphetamine had the potential to cause serious injury or death to other road users;
[45] Ibid, 98-99.
(h)Mr Rascovici agreed his most recent offending included multiple occasions where he entered residential premises while people were at home, stealing goods worth tens of thousands of dollars. When asked about the theft of a $165,000 Mercedes Benz, Mr Rascovici said ‘No, I didn’t do that crime, someone gave me the Mercedes’. He agreed that he subsequently used the vehicle and stole several credit cards, which he used 24 times for transactions approximating $2,000. He also agreed that when apprehended by police in the stolen car, illicit drugs, jewellery, a knife and sword were found;
(i)When asked about the decision of immigration authorities in 2014 not to refuse his visa application and to issue a formal warning instead, Mr Rascovici agreed he received this letter through his migration agent.[46] He also agreed that he had gone on to commit further offences in the five years after that warning. This included possessing drugs and controlled weapons while on parole. When asked what drugs he was found with, Mr Rascovici said it was 300 Endone tablets, explaining they were a ‘prescription medication’. He agreed that he told police they were for personal use,[47] claiming he had ‘really bad back pain.’ When asked if the Endone was prescribed to him for back pain, Mr Rascovici agreed it was not, claiming he sourced them from his ‘Godfather’ who was neither a doctor nor pharmacist;
[46] Exhibit R1, 104-105.
[47] Exhibit R2, 16.
(j)Mr Rascovici agreed some of his offending occurred while he was on bail and under other conditional liberty arrangements. He breached bail on several occasions and failed to complete Community Corrections Orders (“CCO”). He claimed to have started a 2017 CCO positively, but then started using drugs again and did not complete it. Mr Rascovici agreed with Ms Souvlakis that he had referred himself to a residential rehabilitation course but could not remember when. Mr Rascovici accepted he had returned positive drug tests in February and April 2019 while imprisoned.[48] He explained that he tested positive on both occasions for Buprenorphine. When asked why he took illicit drugs in prison, Mr Rascovici said he was feeling depressed following his sentence. As a result of these positive drug tests, he claimed to have been moved to another prison and prescribed anti-depressant medication (Avanza). He had since ceased all prescribed medications sometime between March and May 2019, and had not taken any prescription medication or illicit drugs in the last year;
[48] Exhibit R3, 3-6.
(k)In terms of rehabilitation, Mr Rascovici said he completed drug and gambling rehabilitation in the past, which he estimated was around 2013 and 2014. He agreed that he committed multiple offences after this time, but aspired to continue his rehabilitation if released, referring generally to Salvation Army programs. Mr Rascovici said he had continued ‘rehabilitating’ during the last two years, repeatedly claiming to have ‘been clean’ during that period and felt ‘much better.’ When the Tribunal put to him that he could not have been abstinent from illicit drugs for two years given the positive drug tests in February and April 2019, he insisted: ‘I feel clean even though I didn’t pass those tests.’ Mr Rascovici said he now felt ‘more confident’ about being able to remain abstinent. When asked if there was any independent medical evidence to support this, he responded ‘No’;
(l)Mr Rascovici claimed his wife introduced him to methylamphetamine after he arrived in Australia, and they had since suffered persistent drug and gambling addictions. He described his wife as a kleptomaniac and gambling addict, whose financial demands led him into debt. He stated that their past relationship was characterised by constant fighting: ‘When we were using drugs it was very bad between us.’ Mr Rascovici said 2017 and 2018 were particularly bad years for his drug addiction, during which he concurrently used ‘ice’ and GHB, which he said was also called ‘liquid G.’ When asked how often he used illicit drugs, Mr Rascovici said up to 10 times daily, which he funded through crime. He claimed to be grateful for his most recent imprisonment, stating: ‘If I’m not in jail, I’m dead.’ When asked if his wife also used drugs more heavily during this period, Mr Rascovici said she did not because of her imprisonment during 2017 and 2018. He said she had only been released in about April 2018 after serving a 14 to 16-month sentence;
(m)Mr Rascovici said his wife had changed for the better following her release in 2018: ‘now she’s good – doesn’t gamble anymore and doesn’t use anymore.’ He said they are ‘doing really well’ and their relationship had stabilised since his imprisonment. Mr Rascovici agreed he had told the court that when his wife was in custody he did ‘really well’.[49] When asked about the risks highlighted by the sentencing magistrate in 2017 about Mr Rascovici reuniting with his wife, he stated: ‘Now because I’m clean, we don’t argue.’ He said they wanted to support each other and grow old together. Mr Rascovici agreed they had not had any counselling as a couple. If released he planned to immediately return to work, claiming to have a guaranteed offer of work from a former employer;[50]
(n)Mr Rascovici agreed he had very limited employment while living in Australia, which he summarised in his 2019 PCF as ‘painting’ between 2007 and 2009, work as an ‘egg packer’ between 2009 and 2011, and ‘farming’ between 2015 and 2016.[51] When asked how he supported his family given the intermittent nature of his work, Mr Rascovici replied: ‘I was on Centrelink…[and]…working casually.’ Mr Rascovici agreed his family were supported predominantly by government payments during frequent gaps in employment and while imprisoned. He stated that an offer of immediate fulltime work had been made by an ex-employer, Mr Dean Culibrk, who worked in the carpentry trade. Mr Rascovici said he had worked for Mr Culibrk on a ‘part-time, casual’ basis between 2014 and 2016. The Tribunal notes there is no mention of this work in Mr Rascovici’s 2019 PCF, in which he claimed his occupation during 2015 and 2016 was ‘farming’;[52]
(o)Mr Rascovici was asked about custody arrangements for his daughter. He thought his wife’s parents were given custody around 2012 and still had custody of the child to the present day. When asked why custody had transferred, Mr Rascovici said it was because he and his wife were ‘having problems all the time.’ When asked about his submissions that his wife’s parents were in ill health, Mr Rascovici agreed his father-in-law’s cancer tests were ‘negative for now.’ He could not explain why the name of the person with pancreatic cancer referred to by Dr Alamgeer and Dr Jigau were different;
(p)When asked about the references in evidence to Department of Human Services (DHS) involvement in respect of his daughter, Mr Rascovici said that when he was in prison some years ago, his daughter stopped going to school, which came to the attention of authorities. He claimed that his wife was ‘very soft’ with their daughter. Mr Rascovici agreed that for about three years between 2013 to 2015, his stepson resided with his grandparents instead of with him and his wife. When asked if that was because of reported fighting between he and his wife,[53] Mr Rascovici disagreed, stating it was because of the proximity to his stepson’s then school;
(q)
Mr Rascovici said he spoke fluent Romanian and was fit and healthy. He claimed repatriation to Romania would result in emotional and practical hardship for his family, given their reliance on him emotionally and financially. He claimed it was likely his daughter would accompany him if he was repatriated to Romania.

Mr Rascovici said he would be unable to support himself in Romania, because his mother was old and he had no father: ‘I grow up with no father, just mother’. When asked by the Tribunal why he had declared in his 2019 PCF that his mother and father were alive and living in Romania,[54] Mr Rascovici said his father left him when he was three years old and although still living in Romania, he did not know where. The Tribunal asked Mr Rascovici about the reference in the 2019 sentencing remarks from his then counsel that: ‘He instructs that his upbringing was good…quite loving. His parents are still together,’ Mr Rascovici said the reference to a father was actually his stepfather who he named, and not his biological father. When asked why he had included his absent father and not stepfather’s details in the 2019 PCF, Mr Rascovici said he did not believe this needed to be included. Contrary to Mr Rascovici’s initial submissions, he agreed that he had grown up with a paternal influence in the home;
(r)Mr Rascovici described life in Romania as ‘very poor’ and with no prospect of employment. When asked how he knew that, having returned only once a decade ago, Mr Rascovici stated ‘no one has jobs, no one is working. I know because my parents told me.’ When challenged, Mr Rascovici explained: ‘I’m saying the bigger part don’t have jobs.’ Mr Rascovici said his older brother who is 44 lives in Romania, while the younger one is 30 and worked in Germany as a truck driver. When asked if his relatives in Romanian could assist him if repatriated, Mr Rascovici said they could not even support themselves. When asked how they provided for their needs, Mr Rascovici said they lived day-to-day, kept livestock, and grew fruit and vegetables to sustain themselves. When asked if there was any other harm he feared in Romania apart from finding work and being able to provide for himself, Mr Rascovici responded ‘No’.
[49] Exhibit R1, 46 [19]-[22].
[50] Exhibit A7.
[51] Exhibit R1, 135.
[52] Ibid.
[53] Exhibit R2, 65.
[54] Exhibit R1, 133.
Evidence of Mrs Liliana Rascovici
A summary of Mrs Rascovici’s evidence follows:
(a)When asked by the Tribunal why her handwritten statement and that of her mother and daughter were in the same hand, Mrs Rascovici said she had asked a friend called Tracey to write them. Tracey was not called as a witness at the hearing;
(b)Mrs Rascovici said she had been imprisoned 11 times in the past, most recently in 2017 and 2018 for dishonesty offences. She claimed to be responsible for introducing her husband to drugs and involving him ‘in that kind of life,’ for which she felt ‘big regret.’ When asked if her husband could have declined involvement, Mrs Rascovici said: ‘sometimes he said no and stayed at home and looked after the kids.’ She agreed that when she was in jail, her husband got into less trouble, describing herself as a kleptomaniac who exerted a bad influence on him. Since release from her last sentence in 2018, Mrs Rascovici claimed to have turned her life around by going to church, and had confidence that her husband could change his life as well;
(c)Mrs Rascovici said her father was an insulin-dependent diabetic with cancer, while her mother was disabled. She claimed to have been imprisoned when her father had a cancer operation in 2018, from which he was still unwell. When about her mother’s disabilities, Mrs Rascovici said it was a ‘mental problem, cholesterol, heart and things like that;’
(d)Mrs Rascovici said the cumulative effect of her problems had caused depression requiring counselling, support from her church, and ‘lots of things.’ The Tribunal notes there is no corroborating expert evidence about any medical or psychological conditions currently diagnosed for Mrs Rascovici, including in the letter submitted by her general practitioner;[55] and
(e)Mrs Rascovici said she loved the applicant and would do her best to help ensure he would not reoffend. She said he was ‘such a good father and husband,’ who ‘likes to work’ and she hoped he would ‘get another chance’.
[55] Exhibit A3.
Evidence of Mr Rascovici’s stepson

The witness is pursuing undergraduate studies and said his father had helped him become the person he is today. When asked by Ms Souvlakis how his father supported the family, the witness said it was by keeping them together emotionally, by helping his sister with her eye problem, and helping his mother financially.
When asked if his parents fought as he was growing up, the witness responded: ‘I wouldn’t say fought, they had a lot of disagreements.’ The witness was aware of his parents yelling at each other in the past but said he had not seen that ‘for a long time.’ His parents had been intermittently in prison during the last ten years, which he said was due to the influence of ‘drugs and mental health.’ He claimed that ‘nowadays my dad and mum are on good behaviour and clean. I’ve seen a difference in my dad’s character in the last few years,’ which he said coincided with imprisonment two years ago. His father had since ‘calmed down a lot and become a better man.’
When asked if he remembered being the subject of a family violence intervention order in the past, the witness said he could not, recalling instead a ‘great childhood.’ The witness said he lived with his grandparents for several years because it was closer to his school.
PRIMARY CONSIDERATIONS
Protection of the Australian community from criminal or other serious conduct
Clause 13.1 of the Direction states:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on 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. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Clause 13.1.1(1) sets out factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other conduct to date. Decision-makers must have regard to factors including:
a)    The principle that, without limiting the range of offences that may be considered serious, violent and / or sexual crimes are viewed seriously.
b)    The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c)    The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d)    Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
e)    The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
f)     The cumulative effect of repeated offending;
g)    Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
h)    Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
i) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act.
Tribunal consideration: The nature and seriousness of the conduct
There is no dispute that Mr Rascovici’s prior criminal history in Australia is serious. That is evident from the 2019 sentencing remarks, which state:
‘Mr Rascovici, some of this offending is appalling. The residential burglaries are serious offences and there’s a spate of them, particularly stealing motor vehicles, ransacking people’s premises while they’re home. It’s appalling. It is traumatic for the people involved and I have to denounce that behaviour.’[56]
[56] Exhibit R1, 49-50.
Mr Rascovici agreed that his offending traversed several categories, including dishonesty offences, offences involving violence or the threat of violence, conditional liberty offences, drug offences, and vehicle/driving offences. He also agreed that media reports about him being apprehended with drugs in his car,[57] stolen goods in his car while holidaying with his wife and daughter,[58] and stealing a puppy from a pet shop in 2008 with the help of his children,[59] were correct.
[57] Ibid, 64.
[58] Ibid, 72-73.
[59] Ibid, 77.
Mr Orchard submitted that the totality of Mr Rascovici’s offending must be considered very serious and weighed heavily against revocation. That was particularly so given the violent nature of some offending and persistent dishonesty, motor vehicle and driving offences, which reflected an ‘ongoing (and cumulative) belligerence to Australian laws.’ In relation to the convictions for recklessly cause injury and make threats to kill in November 2009, Mr Orchard referred to records in evidence showing that Mr Rascovici punched and kicked his wife to her head, face and upper body, kicked her while she was on the ground, and made threats to kill her on two occasions.[60] Mr Orchard also highlighted Mr Rascovici’s multiple custodial sentences, repeated recidivism after being formally warned by immigration authorities in March 2014,[61] and provision of false or misleading information by not disclosing Romanian convictions on his incoming passenger card in 2006.[62]
[60] Exhibit R2, 74.
[61] Exhibit R1, 104.
[62] Ibid, 115.
Tribunal findings: The nature and seriousness of the conduct
Mr Rascovici’s criminal history discloses several categories of offending as follows:
(a)Dishonesty offences: Comprising multiple convictions since November 2008, when he was first convicted of dealing with property suspected of being the proceeds of crime.[63] He was convicted of that offence on subsequent occasions in 2012, 2017 and 2019. Numerous theft and attempted theft convictions are recorded, which the courts dealt with variously through fines, community-based orders, unpaid community work, compensation, and multiple sentences of imprisonment. Most recently, he was convicted in March 2019 and sentenced to an aggregate of 20 months imprisonment for:
[63] Ibid, 29.
(i)four counts of Burglary;
(ii)four counts of Theft;
(iii)24 counts of Obtain property by deception;
(iv)two counts of Theft of motor vehicle;
(v)Deal property suspected proceed of crime;
(vi)Theft from shop (Shopsteal); and
(vii)Handle stolen goods.
(b)Offences involving violence, threat of violence, or possession of weapons:
(i)10 November 2009: Recklessly cause injury and two charges of Make threat to kill, which the Tribunal finds were committed against his wife, with some offending occurring in the presence of their daughter;[64]
(ii)12 January 2015: Possess controlled weapon without excuse, and Contravene family violence intervention order; and
(iii)28 March 2019: Four counts of Possess controlled weapon without excuse; Aggravated burglary – person present.
(c)Conditional liberty offences: Such as those Mr Rascovici was convicted of in January 2015 (Breach prescribed term / condition of parole); April 2016 (Fail to answer bail); February 2017 (Contravene Community Correction Order; Fail to answer bail; two counts of Commit indictable offence whilst on bail);
(d)Drug offences: Such as those Mr Rascovici was convicted of March 2019, February 2017, January 2015, and September 2013. Having regard for the totality of the evidence, including Mr Rascovici’s claims about the persistent nature of his drug addiction, it is clear that his use of drugs encompasses a much broader period than that solely described by the incidents for which he was convicted;
(e)Vehicle/driving offences: Such as those Mr Rascovici was convicted of in November 2008, April 2016, February 2017, and March 2019. The Tribunal notes the reference during sentencing in 2019 to Mr Rascovici driving a vehicle while affected by methamphetamine (ice)[65] and having a ‘relevant prior.’[66] Drugs like GHB and Tramadol, and weapons like a knife and a sword were also found in a stolen vehicle Mr Rascovici was driving.[67]
[64] Exhibit R2, 70-71.
[65] Exhibit R1, 34 [6].
[66] Ibid, 50 [19].
[67] Ibid, 39 [26]; 40 [19]-[30]; 41 [1]-[7]; 47 [30]; 56 [30].
The following aspects of cl 13.1.1(1) of the Direction are relevant to the specific circumstances of Mr Rascovici’s case:
(a)13.1.1(1)(a): Mr Rascovici has multiple convictions for offences involving violence, the threat of violence, or possession of weapons without excuse, which are viewed very seriously. The aggravated burglary offence involved forced entry into a home while the occupants were asleep inside. Mr Rascovici has also driven a vehicle while under the influence of methylamphetamine. This type of offending is considered serious given the potential for serious injury or even the death of other road users;
(b)13.1.1(1)(b): Mr Rascovici has punched, kicked, threatened to kill his wife, and contravened a family violence intervention order. Such offending is viewed very seriously regardless of the sentence imposed;
(c)13.1.1(1)(d): Imprisonment is the last resort in the Court’s available sentencing options, whether suspended or not. The Tribunal adopts the reasoning of Rares J in Brown v The Minister for Immigration and Citizenship, where His Honour held that the imposition of a suspended sentence of imprisonment is nevertheless ‘a selection of a very serious form of punishment in the hierarchy of sentencing options.’[68] Mr Rascovici received his first sentence of imprisonment in November 2008, and further sentences of imprisonment followed in 2009, 2012, 2015, 2017, and 2019. It is noteworthy that the Court’s initial leniency and then a 14-month sentence of imprisonment in December 2012, were insufficient to spur Mr Rascovici into leading a law-abiding life. A concerning feature is the multiple offences he has committed while under judicial orders,[69] including indictable offences while on bail, reflecting a persistent disregard for Australia’s law enforcement framework;
(d)13.1.1(1)(e): Mr Rascovici has offended very frequently since 2008 and there is a discernible increase in the seriousness of his offences. Initial dishonesty offending was followed by offences of violence and possession of weapons, resulting in increasingly severe sentences. Although there is a three-year period between November 2009 and December 2012 with no convictions recorded against him, Mr Rascovici committed multiple serious crimes after this period;
(e)13.1.1(1)(f): The compounding effect of Mr Rascovici’s crimes has imposed significant costs and consequences on the Australian community, including on numerous victims. Costs have also been imposed on the community through the requirement for frequent intervention by the police and courts;
(f)13.1.1(1)(g): The Tribunal does not accept Mr Rascovici’s explanation that he failed to declare his Romanian criminal history on his incoming passenger card in 2006,[70] because of a lack of English. All other sections of the card are correctly completed and do not evince any language issues. Moreover, Mr Rascovici had been told of the importance of correctly declaring his criminal history in his arrival card prior to travelling to Australia;[71] and
(g)13.1.1(1)(h): Mr Rascovici has reoffended despite immigration authorities previously considering refusal of his visa applications on character grounds and following the issue of a formal warning on 6 March 2014.[72] He committed multiple serious offences in the five years after this warning.
[68] (2010) 183 FCR 113, 115.
[69] Exhibit R1, 42 [22]; 44 [8]; 47 [29]; 48 [17]; 65 [22]; 69 [5].
[70] Exhibit R1, 78-79.
[71] Ibid, 102-103.
[72] Ibid, 104; 109-113.
For the reasons outlined above Mr Rascovici’s offending is objectively very serious.
Tribunal consideration: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Clause 13.1.2 of the Direction states in part:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
This aspect of the Direction requires the Tribunal to assess the risk Mr Rascovici poses to the Australian community in the event he reoffends, taking into consideration both the nature of any harm and its probability. In Murphy v Minister for Home Affairs [2018] FCA 1924 at [37], Mortimer J reflected on this task as follows:
That is, part of the Tribunal’s task was to decide not only whether the applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community… of how serious the risk was, or whether the risk should be “tolerated.”
In Nigro v Secretary to the Department of Justice (2013) 304 ALR 535; [2013] VSCA 213 (cited with approval by Gilmour J in WAD 230/2014 v Minister for Immigration and Border Protection (No 2) [2015] FCA 705 at [42]-[43]), the following passage, at [111], related to unacceptable risk:
An unacceptable risk thus requires consideration of the likelihood of offending and, if it eventuates, what the consequences of such offending are likely to be. Whether a risk is unacceptable will depend not only upon the likelihood of it becoming reality but also on the seriousness of the consequences if it does.
(footnote omitted)
The High Court has held that past actions are legitimate predictors of future behaviour.[73] In Minister for Immigration and Citizenship v Obele (2010) 119 ALD 358; [2010] FCA 1445, Katzmann J reasoned at [59] that the ‘risk of harm posed by the conduct in which the person has engaged in is obviously relevant to the risk…he might in the future engage in.’
[73] Minister for Immigration and Ethnic Affairs v Guo (1997) 144 ALR 567, 578-579 (“Guo”).
In both the 2017 and 2019 sentencing hearings, Mr Rascovici’s offending is contextualized as funding his and his wife’s gambling and drug addictions.[74] His ‘drug of choice’ was reportedly ice,[75] although Mr Rascovici’s oral evidence was that in 2017 and 2018 he concurrently took ice and GHB, which he recalled was the worst time of his addiction. At both the 2017 and 2019 sentencing hearings it was submitted that the influence of Mr Rascovici’s wife was a significant contributing factor to his offending, and that he did ‘really well’ when she was in custody.[76] Mr Rascovici’s co-accused at the 2017 sentencing hearing was his wife, during which counsel for Mr Rascovici submitted:
‘…they both have a troublesome background. When they’re together, he says that he finds things in life difficult. They’re always fighting, they have some DHS involvement with their children, she’s a drug user, he then starts using drugs again… They fight because of the drug use, they fight because of the gambling… She’s got a lot of priors, and what my client says is when his wife is in custody he does really well. Your Honour will see from my client’s priors…- I think it’s around 2009 or 2010 - he has a break in any sort of offending, and that’s because…his wife was incarcerated and he was doing really well. He was working, he was doing well and not using any drugs and not gambling.
As soon as he starts using drugs, Your Honour, he starts gambling and that’s when things fall down for Mr Rascovici. Whilst he’s been in custody, he’s obviously detoxed from all illicit substances…The most significant thing which is odd for him to say is the fact that his wife is in custody now for quite a period of time…he thinks that will give him enough time to at least start all of his treatments and put himself back on the right track again, because he is a person who can lead a law-abiding life, and he has shown that from the gaps in his priors.’[77]
[74] Exhibit R1, 45 [1]; 46 [12]-[29]; 63 [1]-[8].
[75] Ibid, 67 [2].
[76] Ibid, 46 [20]; 63 [1]-[7]; 64 [18]-[26]. In the latter reference, Mr Rascovici’s counsel referred to the break in his offending as being ‘around 2009 or 2010.’
[77] Ibid, 62 [30]-[7]; 64 [18]-[31]; 66 [1]-[9].
The sentencing magistrate did not accept Mr Rascovici’s blame-shifting onto his wife,[78] cautioning him that if he remained in a relationship with her, there were ‘risk factors’ he would have to address.[79] His Honour also voiced concerns about Mr Rascovici’s inability to meaningfully alter the course of his life:
‘So when you look at these charges…the arrogance of it all…and it shows in my view your level of thinking. It’s all about you and nobody else, and in the main that’s down to your drug use…something hopefully will jolt in you in terms of you wanting to change your behaviour.
With you…there’s two children… If children don’t motivate you as a parent I don’t know what will. Nothing has.
…
You’re much better to get a job…and not operate at this artificial level… You will be released now and it will start all over again and hopefully this time it will be a better outcome for you.’[80]
[78] Ibid, 68 [11].
[79] Ibid, 68 [18].
[80] Ibid, 70-71.
The Tribunal notes that in the aftermath of his sentencing in 2017, Mr Rascovici did not engage meaningfully with ‘his treatments,’ or ‘put himself back on the right track,’ as he undertook to do without the purported negative influence of his wife. He instead committed further serious offences. Moreover, in his 2019 PCF, as confirmed at the present hearing, Mr Rascovici stated that if released, he intends to reunite with his wife:
‘I plan to spend time with my wife and daughter. I don’t want to be seperated from loved ones…If I am deported it will cause all soughts of problems for my family.’[81]
[81] Ibid, 128
The Tribunal notes the following evidence regarding rehabilitative progress by Mr Rascovici:
(a)In the 2017 sentencing remarks, it refers to Mr Rascovici ‘trying to do as many courses as he can, he’s been working in the nuts and bolts factory in Port Phillip Prison, he’s studying English, handling food course and a barista course.’ No evidence of this work or courses completed were in evidence. In any event, the Tribunal notes Mr Rascovici committed multiple further offences after this time;
(b)In the 2019 sentencing remarks, Mr Rascovici’s counsel conceded: ‘he had the opportunity to address all of these things on the Corrections order, and he knows he didn’t take that opportunity;’[82]
(c)Mr Rascovici stated in his 2019 PCF that he hopes to address his rehabilitation needs by ‘completing drug and alcohol courses whilst incarcerated…I am about to start drug and alcohol… classes whilst incarcerated… I am now aware of the triggers / factors that make me use illicit substances. I will avoid these situations in the future. My upcoming drug and alcohol awareness courses will assist me greatly also.’[83] The Tribunal notes a Certificate of Completion certifying Mr Rascovici’s attendance on a ‘Skating on Ice Program’ while imprisoned at Fulham Correctional Centre.[84] This is the only course completion certificate submitted; and
(d)Mr Rascovici said he completed parenting, drug, alcohol and gambling rehabilitation in 2013 or 2014, agreeing that he had gone on to commit multiple offences after this time. When asked why he reoffended despite completing these rehabilitative courses, Mr Rascovici said he did not take the courses seriously and ‘didn’t have enough time to recover and rehabilitate.’ He claimed to have done so more recently, however, insisting (erroneously) that he was ‘clean’ from drugs during ‘the last two years.’ For reasons previously discussed, that evidence is factually inconsistent with the two positive drug tests he returned in February and April 2019.
[82] Exhibit R1, 65 [21]-[23].
[83] Ibid, 134.
[84] Ibid, 149.

A psychologist’s report was not tendered at Mr Rascovici’s 2017 plea hearing,[85] but a report by psychologist Mr Geoffrey Cummins was before the Court in 2019.[86] Several observations in the sentencing remarks draw on this report and make other observations relevant to risk, which can be summarised as follows:
[85] Ibid, 62 [21].
[86] Ibid, 46 [10].
(a)Mr Rascovici pleaded guilty to the charges against him at both hearings;[87]
[87] Ibid, 31 [27]; 36 [12]; 62 [20].
(b)The sentencing magistrate in 2019 referred to Mr Rascovici’s compliance with conditional liberty provisions and rehabilitative opportunities as follows:
‘Overall his attendance was poor…I don’t consider that very particularly good. Unless you accept that the only way you can be really hopeless on an order is not to attend at all, that doesn’t really impress me much. The reality is this. What his report says is, “He engages in denial around many of his offences…He has shown little regard for the conditions of the order.” He was referred to ASCO COATS, failed to attend. A subsequent appointment was made which he attended. He was assessed as suitable, disclosed amphetamine use. He failed to take full advantage, having again been exited from each program due to nonattendance.
He was re-brokered to the substance recovery short program, again failed to attend. He was given a subsequent test, failed to attend as directed for testing, did not provide a valid reason for his nonattendance. I mean, that’s the reality of it. He has come and gone as he has pleased.’[88]
[88] Ibid, 43 [11]-[31]; 44 [1]-[3].
(c)Counsel for Mr Rascovici at the 2019 sentencing explained that Mr Rascovici:
‘started using drugs again and then stopped doing his corrections order…He did attempt positively and then the wheels fell off and unfortunately, he finds himself back in custody…I’m told [he] was doing these things to fund his drug habit and also that of his partner and also a gambling addiction…He instructs that his upbringing was good…as quite loving…He says that he was introduced to methamphetamines when he arrived in Australia by his wife. They have both struggled with that addiction ever since…Your Honour, I’m instructed that his wife is a kleptomaniac or has been diagnosed with kleptomania and she also has a gambling addiction. There’s a psychological report here written by Geoffrey Cummins. In that report it details how Mr Rascovici’s main issues are obviously his drug use and the drug use of his wife this and is somewhat warped idea that he is to fund these things…
Your Honour, he has shown that he can be a law-abiding citizen. Your Honour will note in his priors there is a break from offending. That break…coincides with a period of time that his wife spent in custody. He instructs that sometimes when they’re apart they seem to do better.’[89]
(d)Referring to Mr Cummins’ report and other evidence before the Court, counsel stated that Mr Rascovici:
(i)was then suffering from ‘mild depression’ and required ‘intensive treatment’ for his drug addiction;[90]
(ii)had made attempts to ‘refer himself to residential rehab’ but was ‘found unsuitable’ because his court matter had not yet resolved;[91]
(iii)was found ‘unsuitable by Odyssey House, but he did not want to go down that path;’[92]
(iv)had ‘engaged in courses, drug and alcohol (sic), painting, [and] anger management’ while in custody;[93] and
(v)would ‘be back here soon after’ if released without ‘any supports.’[94]
[89] Ibid, 44-46.
[90] Ibid, 46 [29]; 47 [1].
[91] Ibid, 47 [4].
[92] Ibid, 47 [6].
[93] Ibid, 47 [11].
[94] Ibid, 48 [21].
Ms Souvlakis submitted on Mr Rascovici’s behalf in August 2019 that he ‘has shown signs of rehabilitation.’[95] Ms Souvlakis submitted at the present hearing:[96]
[95] Ibid, 148 [31].
[96] ASFIC, [6]-[18].
9. In their decision, the Minister’s Delegate relies heavily on the Applicant’s criminal offending history and in particular the likelihood of re-offending, based on the listed convictions and sentences imposed relating to his offending over the years as they appear on the Applicant’s Australian Federal Police Clearance Certificate.
10. The Applicant submits that the Australian Federal Police Clearance Certificate recites the criminal offending history of the Applicant and in particular, the identification of the offences, the court date, and the sentencing disposition or outcome. However, it cannot be said that it predicts the future behaviour of the Applicant.
11. Thus, it does not adequately reflect the likelihood that the Applicant will or will not re-offend in a way that creates a risk of harm to the Australian community (Assistant Minister for Immigration and Border Protection v Splendido (“Splendido”) [2019] FCAFC 132 per Mortimer J at para 71). Hence, the Australian Federal Police Clearance Certificate is no more probative of the Applicant re-offending than it is for the Applicant not to re-offend.
12. A probative basis must be established if an assertion is to be made that a belief exists of the Applicant reoffending and/or will pose a risk to the Australian community (Splendido ibid). Thus, the Minister must make enquiries or produce evidence (i.e. sentencing remarks, police statements) which establish that the likelihood of re-offending and of resultant harm to the community is real.
13. If the evidence presented by the Minister do not clearly set out the reasons as to why this belief for re-offending exists, then the Minister has engaged in mere speculation about the Applicant’s future conduct. (Splendido per Mortimer J at para 52; see also Hughes v The Queen [2017] HCA 20; 344 ALR 187 at [70]-[72] – “tendency reasoning”).
14. A qualitative assessment of the seriousness of the risk that the Applicant will engage in further offending is mandatory. The fact that the Applicant has a long history of convictions over a period of time, does not necessarily mean that he is at a greater risk of re-offending compared to a hypothetical person with a single conviction.
15. Whether or not the Applicant will indeed re-offend, largely depends on an assessment of the factual circumstances of the Applicant’s life as it stands today and more importantly, an assessment of whether the Applicant is genuinely rehabilitated and no longer exposed to the circumstantial factors which caused his prior offending.
16. The Applicant has been able to produce statements in support from not only his close family members but also, from friends that have known him for years. Through his turbulent life and although the Applicant made mistakes that have inadvertently caused distress to members of the Australian community, he has also been able to create relationships with friends who are prepared to support him once he is released to the public.
17. Furthermore, the Applicant has been able to obtain an employment offer from his previous employer, with whom he has maintained a close relationship over the years. With knowledge of his previous conduct, the employer has offered the Applicant employment upon his release. It can be said that steady employment and appropriate support will be key factors in the Applicant’s rehabilitation back to the community.
18. It is crucial that all of the above should also be taken into consideration when an assessment of the risk for re-offending is being made. The impact on children and family
S 501 of the Act as well as Ministerial Direction No 79 as they currently stand, reflect the need to protect the Australian community. Ministerial Direction No 79 in particular, allows other considerations to be taken into account in exercising the discretion to cancel the visa of a non-citizen who does not satisfy the Minister that they pass the Character Test.
The Applicant does not contest that the protection of the Australian public is and should remain a primary consideration as part of this assessment. However, the Applicant submits that the other primary considerations contained in the legislative provisions and policy relating to visa cancellations should be given equal weight.
In her closing, Ms Souvlakis said Mr Rascovici had previously shown he was able to ‘remain in public without causing any trouble under the right circumstances,’ which she said encompassed a ‘stable family home and support from friends and family.’ The Tribunal inferred that to mean the period between late 2009 and late 2012, when no convictions were recorded against him.
The Tribunal notes records in evidence referring to Mr Rascovici returning positive tests for illicit drugs in February and April 2019, which he confirmed in his oral evidence. These are recorded as having been proven at a Governor’s Disciplinary Hearing on 7 May 2019,[97] and Mr Rascovici said he lost visitation rights and other privileges as a result.
[97] Exhibit R3, 3; 5.
The respondent’s submissions can be summarised as follows:[98]
(a)The nature of the harm if Mr Rascovici were to reoffend is serious and could involve physical, psychological and financial harm to members of the Australian community;
(b)The cumulative nature of Mr Rascovici’s prolonged criminal offending, and poor compliance with judicial and other conditional liberty provisions is poor. This demonstrates ‘a disregard for orders of the court and for rehabilitation generally, and that this increases his risk’;
(c)This matter is distinguishable from Splendido, because the Court in that matter held that a criminal certificate ‘in isolation’ was insufficient to determine the “likelihood” of reoffending. In the present matter, there is a much broader evidentiary basis to draw upon;
(d)Mr Rascovici has provided no independent evidence about his risk of reoffending or rehabilitative progress, particularly how he proposes to meaningfully address the persistent link between his drug/gambling addictions and offending. Given his unrealised representations in the past, the Tribunal should have no confidence in his latest representations about living a law-abiding life;
(e)Mr Rascovici has not provided a persuasive plan to address his financial issues or prevent a relapse into his addictions while living with his wife, who he has previously blamed as a significant contributor to his drug use and offending.[99] Instead of taking personal responsibility for his actions, Mr Rascovici’s tendency to blame shift indicates a lack of insight and personal responsibility; and
(f)The likelihood of Mr Rascovici reoffending is high, he constitutes an unacceptable risk of reoffending, and the protection of the Australian community weighs heavily against revocation.
Tribunal findings: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
[98] RSFIC, [28]-[34].
[99] Exhibit R1, 64.
In response to Ms Souvlakis’ submissions about Splendido, the Tribunal notes the commentary about assessing risk on a rational basis.[100] As Mortimer J held, the Tribunal must give due weight to valid expert opinions and avoid speculation:
‘…consideration and exercise of power must be grounded in probative material, and not in speculation or guesswork, or (worse), assumptions based on material incapable of supporting those assumptions.’[101]
[100] Splendido at [71]-[78] cites RJE v Secretary to the Department of Justice [2008] VSCA 265; 21 VR 256 at [26]-[36].
[101] Splendido at [111].
Pursuant to cl 13.1.2(1)(b) of the Direction, the Tribunal ‘must’ consider ‘available information and evidence on the risk of the non-citizen re-offending.’ The Tribunal would not rely solely on an applicant’s National Police Certificate if other probative evidence was available or engage in tendency reasoning based on past conduct. It is worth noting that Splendido at [72]-[76] refers to the decision of the High Court in Hughes v The Queen,[102] in which Nettle J observes that evidence of a past offence is not significantly probative of the committal of another offence. His Honour states that to make evidence of conduct or offending probative of subsequent offending, what is required is ‘something more about the nature of the offences or the circumstances of the offending in each case…’[103] The High Court’s reasoning in Guo is apposite to this discussion, and is often cited for its relevance to administrative decision-making and the inter-relationship between past events and evaluating the prospect of an event occurring in the future. The majority in Guo observed there are several factors arising in making such evaluations, and that it is ‘ordinarily an integral part of the process of making a determination concerning the chance of something occurring in the future that conclusions are formed about past events.’[104]
[102] [2017] HCA 20; 344 ALR 187, [72]-[76] (“Hughes”).
[103] Hughes at [154].
[104] Guo, 574-575.
Reflecting on the context in which the present decision is being made, it is relevant to note that the Tribunal is required to consider the risk to the Australian community ‘should the non-citizen engage in further criminal or other serious conduct’ (cl 13.1.2 of the Direction). As is the case here, Splendido related to a mandatory cancellation decision under s 5013A of the Act. Unlike Splendido, however, the Tribunal has the benefit of reviewing the kind of material not available in in that matter.[105] This includes sentencing remarks from 2017 and 2019, as well as approximately 1,000 pages of other evidence. It is for the parties to make their best possible case on this material, which informs consideration of the ‘nature and circumstances of past offending’ and ‘a range of other factors about the present circumstances of an individual which may bear on a risk of whether past offending conduct might or might not be repeated’.[106] In circumstances where there is an extensive criminal record, an adverse inference can more reliably be drawn given the findings of fact, for example, in sentencing remarks. As the High Court observed in Guo, past actions are often a reliable basis for determining the probability of future behaviour.[107]
[105] Splendido at [97].
[106] Ibid [78]
[107] Guo, 574-576.
Contrary to the written submissions of Ms Souvlakis, the onus does not fall on the respondent to establish that an applicant’s risk of recidivism is unacceptable.[108] It is for both sides to put their best evidence. In Mr Rascovici’s case, as part of his broader contention that there is ‘another reason’ to revoke the mandatory cancellation of his visa.
[108] ASFIC, 3 [12]-[13].
The Tribunal is satisfied Mr Rascovici has caused harm to numerous victims in Australia. This encompasses financial, physical and psychological effects. The Tribunal found his evidence about the violent assault on his wife to be evasive, self-serving, and reflecting incomplete insight. The harm Mr Rascovici has caused is apparent not just from his violent crimes, but the larger number of dishonesty offences, including while residents were in their home.[109] His most recent convictions encompass 24 burglaries and thefts, which the sentencing magistrate described as ‘appalling’ and ‘traumatic’ for the victims.
[109] Exhibit R1, 37 [26]; 38 [17]; 45 [6], [10] and [20]; 57 [21].
The Tribunal rejects the submissions that Mr Rascovici ‘inadvertently’ became involved in criminal conduct,[110] or that his persistent crimes are referable in large part to the influence of his wife. The Tribunal found this aspect of his evidence to be a continuing attempt at blame-shifting, and rejects it for the same reason it was rejected by the Court.[111] Consider, for example that while Mrs Rascovici was imprisoned in 2017 and 2018, Mr Rascovici said he concurrently took ice and GHB, describing this as the two worst years of his addiction. He clearly did not ‘do better’ while his wife was imprisoned during that period.
[110] Ibid, 146 [14].
[111] Ibid, 68 [11]-[15].
It is apparent from the occasions when Mr Rascovici was caught driving a vehicle with drugs in his system, or in his possession, that he could have caused serious injury or even the death of other road users. Moreover, his persistent crimes, including while under judicial orders, have resulted in significant financial cost to the community through the frequent intervention of police, the courts and other agencies.
Mr Rascovici’s expressions of remorse are diminished by the persistent nature of his crimes. Someone truly remorseful would have taken advantage of the rehabilitative opportunities offered and altered the course of their life. That includes almost five years of persistent offending after a formal warning from immigration authorities. The evidence discloses that Mr Rascovici came to Australia as an adult aged 25. His first convictions were at the age of 26 and his most recent convictions were at the age of 36. His actions are not isolated, impulsive, or youthful indiscretions. They are persistently bad decisions by a grown man who should know better. His conduct can only be regarded as habitual and encompassing most of his residence in Australia. That he continues to attribute blame to his wife and bad friends reflects a lack of insight and personal acceptance of responsibility.
Apart from the ‘Skating on Ice’ certificate, there is no independent evidence to corroborate Mr Rascovici’s rehabilitative claims, or the extent to which he engaged with or has benefited from that course. The 2019 sentencing remarks convey his unsatisfactory motivation to engage with rehabilitative opportunities. He has previously promised to meaningfully change his life and be law-abiding, which has not endured after release. It must be acknowledged there is an approximately three-year period between 2009 and 2012 during which Mr Rascovici did not have any convictions recorded against him, which appears indicative of a change in behaviour. He resumed offending, however, and was convicted of further offences in 2012, 2013, 2015, 2016, 2017, and 2019. The rehabilitation he claimed to have completed in 2013 and 2014 did not result in meaningful changes. After being imprisoned in early 2019, he failed two drug tests for illicit drugs in February and April 2019, then erroneously claimed to have been ‘clean’ for two years. That he took illicit drugs rather than seek professional help for any depressive symptoms, shows that he continues to make bad choices even in custodial settings and when his ability to remain in Australia is at risk. The Tribunal has little confidence in Mr Rascovici’s claimed ability to remain abstinent from illicit drugs, or to follow-up on his unresolved rehabilitative needs if released.
The highest the evidence gets about Mr Rascovici’s future rehabilitative plans, is very general claims about engaging with programs upon release. It remains unclear, despite Mr Rascovici’s explanations, as to how he has gained his purported awareness about the triggers causing him to relapse into drug addiction. In response to Ms Souvlakis’ submission that as a result of the ‘signs of rehabilitation’ shown by Mr Rascovici, the focus should be on ‘providing the support required to allow for a smooth integration back to the community,’[112] the Tribunal respectfully disagrees. He has not shown persuasive signs of rehabilitative progress and pursuant to cl 13.1.2(1)(b) of the Direction, decisions should not be delayed for rehabilitative courses to be undertaken.
[112] Ibid, 148 [31].
The protective factors referred to in the evidence as potentially reducing Mr Rascovici’s risk of recidivism include reunion with his wife and children, living with his mother-in-law, guaranteed prospects of work, and rehabilitative plans. It is of note that the proposed resumption of the relationship with his wife follows Mr Rascovici’s attempts to blame her at his 2017 and 2019 sentencing hearings as a significant cause of his addictions and recidivism. There is no evidence to corroborate Mrs Rascovici’s rehabilitative claims after release from what she claims was an 11^th term of imprisonment in April 2018. The Tribunal considers that a resumption of domestic living arrangements between Mr and Mrs Rascovici would return the applicant to the same contextual circumstances existing during much of his offending. Far from this relationship being a claimed protective factor, the Tribunal considers it a risk factor accentuating the risk of Mr Rascovici resuming his addictions and crimes. Similarly, the other protective factors Mr Rascovici relies upon have previously been present but did not curtail his offending. He has not taken advantage of past rehabilitative opportunities. The availability of support from his church and the interests of his children and wife’s parents have been insufficient motivation to change his ways. The fulltime work he claims to have undertaken between 2009 and 2012 was followed by a resumption of drug use and offending. That history reduces the force of his current reliance on similar protective factors.

The Tribunal does not accept on the evidence that Mr Rascovici’s daughter ‘is a vulnerable member of the Australian community,’ with ‘special needs relating to her eyesight’ that are ‘likely to affect her capabilities…as a young adult.’[132] Mr Rascovici’s evidence about this was general and unpersuasive. He was unaware of the specific eye condition his daughter suffers from and his knowledge about past and future treatment was vague. Apart from a two-year-old letter about squint surgery costs, there was no corroborating expert evidence about any current eye condition. Past repair of a ‘squint’ does not persuasively correlate with current ‘special needs relating to…eyesight.’ Whatever eye condition Mr Rascovici’s daughter may have, or whatever her future care needs may be, Mr Rascovici has played a limited role at best during periods of imprisonment and incapacity arising from his addictions. His daughter did not give evidence and could not be contacted. Her principal carers (grandparents) also did not give evidence at the hearing, and it is not apparent she requires Mr Rascovici’s continuing care and attention.
[132] ASFIC, 5 [26].
The totality of the evidence supports a reliable finding that Mr Rascovici has been a neglectful father for significant periods of his daughter’s life. His conduct has undoubtedly affected his daughter’s life in adverse ways. This is evidenced by persistent addiction, the frequent nature of his offending since 2008, violence in his daughter’s presence, care responsibilities being transferred to the child’s grandparents, and the involvement of DHS. The child’s interests have not motivated meaningful changes in Mr Rascovici’s behaviour in the past, diminishing the force of his current reliance on her interests as she approaches adulthood.
If, as Mr Rascovici submits, his daughter is likely to accompany him to Romania, there would be no effect from separation pursuant to cl 13.2(4)(d) of the Direction. If the child remained in Australia with her current carers, there may be an adverse emotional and potentially financial effect resulting from Mr Rascovici’s repatriation, the extent of which cannot be reliably ascertained. There are undoubtedly other, perhaps less satisfactory, ways of maintaining contact such as telephone calls and visits to Romania. There is also no evidence that Mr Rascovici’s daughter is unable to travel to Romania to see him.
It is generally in a child’s best interests for both parents to support and nurture them. Given Mr Rascovici’s daughter is approaching adulthood in less than two years, the Tribunal considers the prospect of him playing a positive parental role from release until early 2022, remains an open question at best. If Mr Rascovici had demonstrated a more consistent ability to remain abstinent from drugs and gambling, remain in work, and live a law-abiding life, the Tribunal may have been more optimistic about the prospect of him playing a positive parental role in the next two years. Given the adverse findings about his incomplete rehabilitation and unacceptable risk of recidivism, however, it is more likely he would continue to have a negative impact on his daughter.
On balance, it cannot be reliably ascertained that revoking the mandatory cancellation of Mr Rascovici’s visa is in the best interests of the child. Given the totality of the evidence, this primary consideration weighs neutrally at best.
Tribunal consideration: Expectations of the Australian community
Clause 13.3 of the Direction states:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”), the Full Court of the Australian Federal Court dealt with the construction and application cl 11.3(1) (Expectations of the Australian community). Although this case refers to a different part of a previous Direction and relates to visa refusal, the clause is in identical wording as cl 13.3 of the current Direction. The majority in FYBR held that this primary consideration is a ‘deeming’ provision with normative principles, ascribing to the community an expectation aligning with that of the executive government.[133] As Stewart J held at [104], ‘it is not the decision-maker who makes an assessment of community values on behalf of the community’.[134] His Honour summarised the community’s expectations at [101] and [103]:
101. Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.
…
103. …In a particularly egregious case, the weight to be afforded the community expectations would be such that a refusal might be thought to be inevitable, and at the other end of the spectrum a refusal might be thought to be unlikely...
[133] FYBR at [66] per Charlesworth J; and [91] per Stewart J.
[134] Ibid at [104] per Stewart J.
The reasoning in FYBR establishes that the ‘deemed community expectation’ will in most cases call for cancellation, but that ‘the question of whether it is appropriate to act in accordance with the deemed community expectation is in all cases left for the decision-maker to determine’.[135] The Direction helps inform the weight a decision-maker attributes. For example, cl 6.3(3) of the Direction states that non-citizens who commit serious crimes, including ‘of a violent…nature, and particularly against women or children…should generally’ expect to forfeit the privilege of staying in Australia. That being said, use of terms like ‘should generally’ convey discretion and judgements turn on the specific circumstances of each case (cl 6.1(3)). The reasoning in FYBR also reflects the potential inherent in cl 8(3) of the Direction, that: ‘Both primary and other considerations may weigh in favour of, or against...’ Moreover, it reinforces the flexibility in cl 8(4) that requires the government’s assessment of community expectations to be ‘generally…given greater weight than the other considerations’, which ‘contemplates a case in which the decision-maker considers it appropriate not to afford the expectation of the Australian community more weight than favourable countervailing factors…’[136]
[135] Ibid at [75]-[76] per Charlesworth J.
[136] Ibid at [76] per Charlesworth J.
The Tribunal notes the High Court has handed down a decision in respect of an application for special leave to appeal against FYBR.[137] In refusing the application, the High Court held at [301]-[303], that ‘there is no reason to doubt the correctness of the decision of the majority of the Full Court of the Federal Court.’
[137] FYBR v Minister for Home Affairs [2020] HCA 056.
Mr Rascovici stated that the Australian community would reflect on his past conduct as ‘very bad,’ but thought he deserved another opportunity to return to the community and make a positive contribution. Ms Souvlakis submitted he had demonstrated an ability in the past to ‘remain in public without causing any trouble under the right circumstances’ and with adequate support.
Mr Orchard submitted that in circumstances where Mr Rascovici had committed serious and violent crimes, as well as the potential consequences of further offending, the Australian community would expect that ‘he should be seen as having forfeited the privilege of staying in Australia.’ It was further submitted that given Mr Rascovici is ‘very likely to reoffend,’ this is a case where the expectations of the Australia community weigh very substantially against revocation.
Tribunal findings: Expectations of the Australian community
Given the specific circumstances of this case, the deemed community expectation is that the mandatory cancellation of Mr Rascovici’s visa should not be revoked. That follows from his extensive criminal history, including after a formal warning in 2014, failure to grasp previous rehabilitative opportunities, and misconduct while imprisoned. This primary consideration weighs very substantially in favour of non-revocation.
OTHER CONSIDERATIONS
International non-refoulement obligations
Mr Rascovici stated in his 2019 PCF that his concern about repatriation to Romania was: ‘it would be a very hard life, possible starvation etc.’[138] His oral evidence was similarly general and speculative about his capacity to find work, fund daily living expenses, and access social safety networks. Mr Rascovici sought to draw parallels in his documentary evidence between comparable opportunities in Australia and Romania. No country or other information was tendered in support of his poverty or starvation claims, or that factors relevant to his specific circumstances meant he was at greater risk than other Romanian citizens. The Tribunal finds that Mr Rascovici’s claims do not enliven Australia’s non-refoulement obligations.
[138] Exhibit R1, 137
Tribunal consideration: Strength, nature and duration of ties
Clause 14.2(1) of the Direction states:
… Reflecting the principles at 6.3, decision-makers must have regard to:
a)        How long the non-citizen has resided in Australia, including whether the non‑citizen has arrived as a young child, noting that:
i.          less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.         More weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)        The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non‑citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
Mr Rascovici claims to have established strong family and social links in Australia during the last 14 years, which he would lose if repatriated. In his 2019 PCF, he claims to have completed English classes and studied English at TAFE, for which there is no corroborating evidence. He also claimed to have worked between 2007 and 2016 as an ‘egg packer’ and in ‘painting’ and ‘farming.’[139] There is no independent evidence to corroborate these work claims.
[139] Ibid, 135.
The Tribunal notes the unsigned letter purportedly from Mr Culibrk as the owner a carpentry business, and for whom Mr Rascovici worked ‘as a labourer on domestic job sites for…3 years.’ The letter states that the author has known Mr Rascovici for five years on both a ‘social and work-related basis,’ and has been ‘kept up to date [with] Cristian’s charges and court proceedings.’ It is claimed Mr Rascovici is ‘hardworking, honest, reliable, and efficient.’ The letter states that Mr Rascovici ‘will be a great asset to have working again for my company and I can vouch and confirm secure employment for Cristian at any date in the near future.’ It is noteworthy that Mr Rascovici made no reference in his 2019 PCF to working for Mr Culibrk between 2014 and 2016 but made several references to this work at the hearing, and the beneficial protective effect of Mr Culibrk’s offer of work.
In the ASFIC, Ms Souvlakis submitted that Mr Rascovici’s parents-in-law are ‘both vulnerable members of the public with serious medical conditions.’[140] It was further submitted that Mr Rascovici is close to his parents in law and plays a role in assisting them.
[140] ASFIC 6 [30].
Mr Orchard submitted that all of Mr Rascovici’s family reside in Romania, with only his wife’s side of the family residing in Australia.[141] Mr Rascovici claimed to have been introduced to methamphetamines by his wife, who he describes as a kleptomaniac and a gambling addict.[142] Mr Rascovici had described their relationship as ‘very difficult’ and ‘always fighting,’ contending that he does ‘really well’ when his wife is in custody.[143] Mr Orchard submitted that Mr Rascovici has a stepson who is approaching 20 years of age. The Tribunal notes the letter from the stepson dated 6 May 2020, referring to Mr Rascovici as ‘an incredible man and my hero!’[144] The Tribunal also notes his oral evidence during the hearing that Mr Rascovici had helped him and other members of the family emotionally and financially, had ‘calmed down a lot,’ and become ‘a better man.’
[141] Exhibit R1, 66.
[142] Ibid, 46.
[143] Ibid, 64.
[144] Exhibit A5.
Mr Orchard contended that limited weight should be placed on this consideration in circumstances where Mr Rascovici began offending two years after arriving in Australia and frequently thereafter.
The Tribunal notes an unsigned reference from a person purporting to be Mr Rascovici’s ‘family friend of 10 years…’ This reference was not tendered into evidence, but the Tribunal elected to consider it as a Tribunal exhibit. The person was not called as a witness and could not be cross examined about the extent of their knowledge about ‘Mr Rascovici’s charges,’ and about Mr Rascovici being a ‘person of good moral character,’ who is an ‘honourable individual...[and]…valuable member of the community, who has developed new skills…to avoid making any further poor decisions.’
Tribunal findings: Strength, nature and duration of ties
Mr Rascovici has lived in Australia for approximately 14 years and it can be accepted he has made some contribution through limited, intermittent work. That is despite the absence of corroborating evidence about the work history he claims, and the Tribunal’s previously expressed concerns about the statement lodged in Mr Culibrk’s name. Little weight can be placed on Mr Rascovici’s past work claims.
Less weight is placed on this consideration because Mr Rascovici started offending within two years of arrival and the evidence discloses approximately 100 convictions since.
It is not possible to attribute more weight to this consideration as a result of Mr Rascovici’s positive contribution to Australia, for which evidence is sparse. Little weight can be placed on the unsigned references from people not called as witnesses. Despite the claimed close relationship between Mr Rascovici and his wife’s parents, neither was called to give evidence at the hearing and the statement purportedly from Mr Rascovici’s mother-in-law was lodged by Mrs Liliana Rascovici, which she claimed had been written by a friend.
The Tribunal accepts that Mr Rascovici’s wife and stepson are understandably anxious about his circumstances and want him to be given another opportunity to remain in Australia. The evidence does not persuasively support Mr Rascovici’s submission that his mother-in-law and father-in-law are ‘vulnerable members of the public with serious medical conditions.’ The evidence suggests that the father-in-law’s cancer is in remission and Dr Jigau makes no reference to any conditions suffered by the mother-in-law. Moreover, there is no direct evidence from either person about their medical conditions, or that they are in any way reliant on Mr Rascovici, or that any needs they have were neglected during the last two years of Mr Rascovici’s custody. The evidence discloses instead that they have been the primary carers of Mr Rascovici’s daughter since about 2012, in circumstances where he and his wife were unable to play that role due to addictions and imprisonment.
It cannot be said on the evidence that Mr Rascovici has particularly deep or enduring ties to the community. On balance it can be accepted some members of his family would be emotionally affected by his repatriation, but there is no evidence that their relationship could not be maintained by telephone, visits or in other ways. It is submitted that Mr Rascovici’s daughter, with whom he claims to have a particularly close relationship, is likely to accompany him to Romania if repatriated. There is no evidence from the child or her current carers about whether that is possible or would be permitted. If it was, it may help alleviate the sense of dislocation from loved ones that Mr Rascovici fears. It is unclear what Mrs Liliana Rascovici’s intentions may be about accompanying her husband to Romania if he is repatriated, but the Tribunal accepts if she did remain it Australia, it may accentuate Mr Rascovici’s sense of dislocation and emotional distress. The Tribunal finds on balance, particularly after Mr Rascovici’s 14-year residence in Australia, that this consideration weighs moderately in favour of revocation.
Impact on Australian business interests
Clause 14.3(1) of the Direction states:
Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
There is no evidence that the work Mr Rascovici claims to have undertaken while living in Australia enlivens consideration of Australian business interests within the meaning of the Direction. The Tribunal places no weight on this consideration.
Impact on victims
Clause 14.4(1), of the Direction states:
Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Federal Court has previously held that this consideration ‘requires a particular focus upon the consequences of the exercise of discretion to grant a visa with the result that the applicant will remain in Australia,’ where that information is available.[145]
[145] HVLC v Minister for Home Affairs [2019] FCA 616, 13 (Colvin J). Perram J has recently dealt with this issue in Bale v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646.
Although no submissions were made by the parties in respect of this consideration, there is a clear overlap in Mrs Liliana Rascovici’s evidence as the applicant’s wife and a past victim of his offending. The Tribunal has considered and given due weight to her claims as the former under ‘Strength, nature and duration of ties.’ In respect of the latter, Mrs Rascovici expressed hope and confidence that her husband would not repeat his objectionable conduct if released and wants them to lead a drug-free and law-abiding life together. The Tribunal inferred from her evidence that she had forgiven Mr Rascovici and was unconcerned he would hurt her again or cause her to seek protection from the authorities. Moreover, she claims to be dependent on him for emotional and financial support and would find it very difficult without him. The latter submission contrasts with other evidence before the Tribunal that Mr Rascovici has only worked intermittently, has been largely dependent on Centrelink payments, and ran up significant debts as a result of his and his wife’s drug and gambling addictions.
For the reasons highlighted earlier in relation to the purported reference from Mr Dejan Culibrk, as well as Mrs Rascovici’s evidence about her persistent dishonesty offending resulting in 11 terms of imprisonment, the Tribunal has decided to treat her evidence with caution. That is even more so given her professed reliance on Mr Rascovici, despite the violence he has perpetrated against her in the past. Given the Tribunal’s earlier finding about Mr Rascovici’s risk of resuming his addictions and committing further offences, the Tribunal considers Mrs Rascovici does not fully appreciate the risks. In particular, the Tribunal holds continuing concerns about Mr Rascovici’s claim during the hearing that his offences ‘do not involve violence,’ and he is ‘not a violent person.’ The Tribunal considers that if he again became angry, drug-affected, or ‘really drunk,’ he may become violent against his wife or breach an order protecting her.

In weighing the impact of a decision not to revoke Mr Rascovici’s visa cancellation on victims, the Tribunal finds this consideration has neutral impact at best.
Tribunal consideration: Extent of impediments if removed
Clause 14.5(1) of the Direction states that:
The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a) The non-citizen’s age and health;
b) Whether there are substantial language or cultural barriers; and
c)Any social, medical and/or economic support available to them in that country.
Mr Rascovici submitted in his 2019 PCF that his concerns about repatriation to Romania were: ‘it would be a very hard life, possible starvation etc.’[146] It was submitted by counsel for Mr Rascovici at sentencing in 2017, that Mr Rascovici ‘hasn’t ever been diagnosed with any mental health conditions, although he does say that since he’s been in custody he thinks maybe he’s got some sort of anxiety…That hasn’t been explored as yet.’[147] It was noted at sentencing in 2019 from a psychologist’s report tendered to the Court that Mr Rascovici was then suffering from ‘mild depression’ and his addictions required ‘intensive drug treatment.’[148] There is no independent expert evidence before the Tribunal about any currently diagnosed conditions. In his May 2019 PCF, Mr Rascovici responded ‘No’ to the question ‘Do you have any diagnosed medical or psychological conditions?’[149] At the present hearing, Mr Rascovici said he was fit and well and had discontinued anxiety medication some time ago.
[146] Exhibit R1, 137.
[147] Ibid, 67 [6].
[148] Ibid, 46 [29]; 47 [1].
[149] Ibid,136.
The Tribunal notes a letter in evidence from general practitioner Dr Jigau dated 20 May 2020, stating he has known Mr Rascovici as a patient since October 2010. Dr Jigau states that Mr Rascovici is ‘fit and healthy and able to work and to support the family. I use to know him as an hard working and handy man’ (errors in original).
As previously detailed, the name of the person who had suffered pancreatic cancer in the letters from Dr Alamgeer and Dr Jigau is different. Dr Alamgeer states that surgical follow-up in relation to the person referred to in his letter revealed ‘no evidence of recurrent disease’ and chemotherapy had ceased. The author planned to see the patient in three months’ time and ‘hopefully he remains in remission.’ A more recent record from Dr Jigau refers to a person of a different name who has been suffering from ‘metastatic pancreatic cancer.’ Notwithstanding the explanations provided during the hearing, the Tribunal is unable to reconcile that the two people referred to are the same person (Mr Rascovici’s father in law), or the current status of any illness he suffers, or any limitations arising from that illness, or the extent to which Mr Rascovici’s repatriation may constitute an impediment to his father-in-law’s care. It seems more probable on the evidence that Mr Rascovici’s in-laws have borne the burden of any care requirements for themselves and their grandchild.
Ms Souvlakis submitted that Mr Rascovici ‘is in need and will significantly benefit from continuous support, including rehabilitation programs, counselling individually as well as along with his family members and further, the presence and support of his family and friends.’[150] The Tribunal notes there is no expert corroboration for the extent of Mr Rascovici’s unmet rehabilitative needs or support requirements.
[150] ASFIC, [34].
Mr Orchard submitted that Mr Rascovici is relatively young and the evidence does not disclose any significant medical or psychological condition beyond past anxiety.[151] It is further submitted that Mr Rascovici has provided no evidence to corroborate his claims about facing ‘possible starvation,’ and there is no evidence his entire extended family in Romania, would be unwilling or unable to support his repatriation. Mr Orchard contends Mr Rascovici is unlikely to face substantial language or cultural barriers, and as a citizen of Romania, would have access to the same social, medical and economic support as other citizens.
[151] Exhibit R1, 147.
Tribunal findings: Extent of impediments if removed
The Tribunal finds that:
(a)Mr Rascovici is relatively young at the age of 38 and does not refer to any diagnosed medical or psychological conditions, or current medication. There is no independent expert evidence about any conditions he suffers. The Tribunal notes Dr Jigau’s evidence that Mr Rascovici is ‘fit healthy and able to work and support his family’;
(a)There is no substantial cultural or language impediment to Mr Rascovici’s repatriation. He lived in Romania until the age of 24, returned on a holiday, and members of his immediate family live there. Notwithstanding Mr Rascovici’s claims to the contrary, there is no other evidence his family in Romania are unlikely or unable to provide some emotional or practical support if he is repatriated;
(b)There is no evidence that Mr Rascovici would be unable to competitively seek work in Romania or that he faces ‘starvation’ as a foreseeable consequence of repatriation, or that he would not have access to the same organised social supports available to all Romanian citizens. That includes any support requirements for his future rehabilitative needs. His claims in this regard were uncorroborated and speculative; and
(c)Mr Rascovici may suffer a sense of dislocation from family members in Australia if he is repatriated. The extent of that is uncertain and turns on his claim about his daughter accompanying him to Romania. His wife’s intentions are not known and there is no evidence that his wife’s parents have any intention of relocating to Romania. In circumstances where Mr Rascovici’s wife and their daughter decided to remain in Australia, Mr Rascovici may experience a sense of dislocation and emotional distress.
On balance, this consideration weighs slightly in favour of revocation.
Other Considerations
No additional considerations were advanced by the parties and I have not identified any additional ‘other considerations’ relevant to the specific circumstances of Mr Rascovici’s application, as provided for at cl 14(1) of the Direction.
CONCLUSION
Because of the combined effects of ss 501(6)(a) and 501(7)(c) of the Act, Mr Rascovici does not pass the character test. In determining if there is ‘another reason’ why the mandatory cancellation of his visa should be revoked, the Tribunal has applied the considerations at Part C of the Direction to the specific circumstances of his case.
Considering he has committed approximately 100 convictions since 2008, the nature and seriousness of Mr Rascovici’s offending is a significant factor weighing heavily against revoking his visa cancellation. Mr Rascovici’s conduct reflects a persistent disregard for Australia’s law enforcement framework and a degree of recklessness towards the wellbeing of other community members.
Mr Rascovici’s rehabilitation claims are aspirational at best. He has failed to take advantage of the court’s leniency and previous opportunities to meaningfully alter the course of his life. He has not been dissuaded from further offending despite undertaking some rehabilitation in the past, or by increasingly severe sentences, or after a formal warning from immigration authorities, or by the interests of his family. The Tribunal found his claims about protective factors unpersuasive, particularly his intention to reside with his wife, who he previously blamed for his drug addiction and propensity to reoffend. Mr Rascovici’s post-release plans would return him to the same contextual circumstances in which much of his past offending occurred. Mr Rascovici’s risk of recidivism is unacceptably high.
Mr Rascovici’s daughter has been in the care of her maternal grandmother for some years including periods when Mr Rascovici and his wife were unable to do so as a result of their addictions, imprisonment, or when intervention orders restricted Mr Rascovici’s contact. This has resulted in prolonged absences and limited meaningful contact, during which Mr Rascovici did not play the parental role he now aspires to. Given Mr Rascovici’s daughter is approaching adulthood in under two years, the Tribunal considers the prospect of him playing a positive parental role is unpersuasive and speculative at best. The totality of the evidence shows Mr Rascovici has been a neglectful father, and the interests of his child have not previously motivated the meaningful changes he again promises to make.
In terms of the deemed community expectation, Mr Rascovici has persistently acted in ways that are contrary to the privilege bestowed on visa holders to remain in Australia. Considering the very serious and persistent nature of his crimes since 2008, the community would expect him to forfeit the privilege of remaining in Australia.
Mr Rascovici has spent approximately 14 years in Australia, started offending two years after arrival and has reoffended frequently since. There is little evidence of any positive contribution. In terms of his ties to Australia, the Tribunal accepts he has some family, work and community ties to Australia, and his repatriation would have an emotional and perhaps financial effect on some family members.
There are no discernible cultural, language or health-related impediments to Mr Rascovici’s repatriation. There is also no persuasive evidence that his family in Romania would be unwilling or unable to provide some practical or emotional assistance. Perhaps most notably, repatriation to Romania may separate Mr Rascovici from family and social links established in Australia during the last 14 years.
Having weighed all relevant considerations individually and cumulatively, the Tribunal finds there is not another reason why the decision to cancel Mr Rascovici’s visa should be revoked. That is because the primary considerations ‘Protection of the Australian community’ and ‘Expectations of the Australian community’ weigh very substantially against revocation. These considerably outweigh the primary consideration ‘Best interests of minor children,’ which weighs neutrally, and the other considerations of ‘Strength, nature and duration of ties,’ which weighs moderately in favour of revocation, and ‘Extent of Impediments if removed,’ which weighs slightly in favour of revocation.
DECISION
It follows that the Tribunal affirms the decision under review.

147.

I certify that the preceding 146 (one hundred and forty six) paragraphs are a true copy of the reasons for the decision herein of Senior Member A. Nikolic AM CSC

……[sgd]…………………….
Associate
Dated: 4 June 2020

Date of hearing: 27 May 2020

Advocate for the Applicant: Ms Zafiroula Souvlakis

Solicitors for the Applicant:

Advocate for the Respondent:

Ethos Migration Lawyers

Mr Christopher Orchard

Solicitors for the Respondent:

Sparke Helmore Lawyers

[2020] AATA 1640

4 June 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction

Standing

Date of hearing:	27 May 2020
Advocate for the Applicant:	Ms Zafiroula Souvlakis
Solicitors for the Applicant: Advocate for the Respondent:	Ethos Migration Lawyers Mr Christopher Orchard
Solicitors for the Respondent:	Sparke Helmore Lawyers