Re Gordon v Minister for Immigration and Border Protection (Migration)
[2018] AATA 39
•8 January 2018
Gordon and Minister for Immigration and Border Protection (Migration) [2018] AATA 39 (8 January 2018)
Division:GENERAL DIVISION
File Number: 2017/6325
Re:David Gordon
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Deputy President S Boyle
Date:8 January 2018
Place:Perth
The decision under review is set aside and substituted with the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) be revoked.
..............[sgd]...............................................
Deputy President S Boyle
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of the child – expectations of the Australian community – other considerations – strength, nature and duration of ties – extent of impediments if removed – decision under review set aside and substituted.
LEGISLATION
Migration Act 1958 (Cth) – s 499 – s 499(2A) – s 500(1)(ba) – s 501(3A) – s 501(6) –
s 501(6)(a) – s 501(7)(c) – s 501CA(3)(b) – s 501CA(4) – s 501CA(4)(a) –
s 501CA(4)(b)(ii)CASES
Do and Minister for Immigration and Border Protection [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Rabino and Minister for Immigration and Border Protection [2016] AATA 999Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
SECONDARY MATERIALS
Direction No. 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – paras 6.1, 6.2, 6.3, 6.2(1), 7(1), 8, 13(2), 13.1(1), 13.1(2), 13.1.1(1), 13.1.2(1), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.2(1)(a)(ii), 14.2(1)(b), 14.5(1) – Part C
REASONS FOR DECISION
Deputy President S Boyle
8 January 2018
THE APPLICATION
This is an application for the review of the decision of the delegate of the Respondent (the Minister) made on 4 October 2017 under s 501CA(4) of the Migration Act 1958 (Cth) (the Act) not to revoke the decision of the Minister under s 501(3A) of the Act to cancel the Applicant’s visa.
The application is made under s 500(1)(ba) of the Act.
The application was heard by the Tribunal on 15 December 2017. The Applicant was represented by Ms Graziotti instructed by Estrin Saul Lawyers. The Minister was represented by Mr Burgess instructed by Sparke Helmore Lawyers.
The Applicant gave evidence by video from New Zealand. The Applicant’s parents also gave evidence by video from New Zealand. The Applicant’s daughter gave evidence by phone and the Applicant’s son gave evidence in person.
In addition to the oral evidence given at the hearing, the evidence before the Tribunal consisted of the following documents:
·the Applicant’s Statement of Facts, Issues and Contentions (Applicant’s SFIC) (A1);
·the Applicant’s bundle of evidence (A2) which comprised of:
othe Applicant’s witness statement dated 5 December 2017;
ostatement of the Applicant’s mother dated 30 November 2017;
ostatement of the Applicant’s father dated 30 November 2017;
ostatement of the Applicant’s daughter dated 28 November 2017
ostatement of the Applicant’s son (undated);
oparole order dated 23 October 2017;
oThink First Cognitive Skills completion certificate dated 1 September 2017
oparole plan dated 12 June 2017;
owork report from peer support officer dated 30 March 2017;
oletter from senior counsellor Jeanette Fernandez, Holyoake Australian Institute for Alcohol and Drug Addiction Resolutions Inc.; and
odocuments (various) relating to the appeal to the Court of Appeal from the conviction of 13 May 2015 for possession of methylamphetamine with intent to sell and supply;
·a 163 page set of G documents (G1- G27) (R1);
·the Minister’s Statement of Facts, Issues and Contentions (Minister’s SFIC) (R2); and
·records produced under summons by WA Police (R3).
BACKGROUND
From 6 May 2005 up to the time of its cancellation the Applicant held a Special Category (subclass 444) visa (G9).
The visa was cancelled on 7 March 2017 under s 501(3A) of the Act on the basis that:
(a)the Minister was satisfied that the Applicant did not pass the character test; and
(b)the Applicant was serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (G13 at 67).
By signed acknowledgment dated 7 March 2017 the Applicant acknowledged receipt of the Notice of visa cancellation (G10)
By written request dated 27 March 2017 (G17) the Applicant made representations to the Minister for revocation of the visa cancellation.
By decision dated 4 October 2017 (G13) the delegate of the Minister decided under s 501CA(4) of the Act not to revoke the cancellation of the visa.
This application to review the decision of the delegate not to revoke the cancellation of the visa was lodged with the Tribunal on 24 October 2017 (G2).
The Facts
The Applicant was born in New Zealand on 18 March 1967. He is the younger of two children. His father was and is a New Zealand citizen and his mother was an Australian citizen who held no other citizenships at the time of the Applicant’s birth. His brother was born on 4 August 1963.
The Applicant is now 50 years old. He has spent the last 32 years living in Australia.
He first arrived in Australia when he was six years old, on 2 December 1973. He departed on 19 December 1973. He visited Australia during the following periods before migrating permanently in 1985, aged 18 years (G24):
(a)14 June 1975 – [illegible on immigration record];
(b)5 – 19 May 1977; and
(c)6 – 20 May 1978.
Since migrating in 1985 the Applicant has departed Australia for the following periods (G24):
(a)26 January – 10 February 1989;
(b)28 November – 13 December 2002;
(c)20 January – 4 February 2004;
(d)19 September – 24 September 2004; and
(e)22 April – 6 May 2005.
The Applicant has not left Australia since re-entering on 6 May 2005 (G3 at 18). His movement records show that upon departure from Australia in November 2002, he was not the holder of a Special Category (subclass 444) visa and that this visa was first granted on his re-entry in December 2002 (G24).
Between 1985 and 1987 the Applicant worked as an exhaust fitter for Perth Exhaust Centre. He then worked as a carpet cleaner between 1987 and 1990 (G5).
He was fined a total of $1,480 for 13 traffic convictions (including four convictions for no seat belt) between 1985 and 1999. He was also fined $50 in October 1986 for possession of a smoking implement. He received no convictions between December 1999 and August 2006 (G14).
On 28 July 1989, the Applicant’s son was born (G18 at 110). He is an Australian citizen.
On 22 February 1992, the Applicant’s daughter was born at the Regional Hospital in Northam, Western Australia (G19). She is an Australian citizen.
Between 1992 and 1994 the Applicant worked for Movie World (Gold Coast) as an actor. From 1995 to 2006 he worked as a window cleaner, and between 2006 and 2008 he owned and ran West Key, a multi service kiosk in Alexander Heights Shopping Centre.
He was fined $150 for an unlicensed vehicle in August 2006.
In June 2007 the Applicant was fined a total of $2,550 for possession of a firearm in circumstances of aggravation, possession of unlicensed ammunition, possession of cannabis and possession of a smoking utensil (G14 at 78).
In June 2008 the Applicant was fined $1,150 for driving with a prescribed illicit drug in his oral fluid and possession of methylamphetamine and cannabis.
In October and November 2008, the Applicant was fined a total of $1,550 for possession of methylamphetamine and cannabis. A violence restraining order was initiated against him, but was later withdrawn by the applicant and revoked. The WA Police related incident report states “GORDON should not have been listed on this I/R as a POI as there is no evidence to support him being one”(R3 at 20).
On 28 January 2009, the Applicant was charged with three offences relating to a home invasion in Wanneroo. On 29 January 2009, Mr Corry Johnathon Maas provided a statutory declaration to police that named himself, a co-offender “Paul” and a third man, “Kendall”, as the offenders in the home invasion. These three charges against the Applicant were subsequently withdrawn on the basis that he was not present at the home invasion and was not involved in the commission of these offences.
The Applicant was also charged on 28 January 2009 with 17 charges for possessing stolen or unlawfully obtained property in relation to the home invasion. He was convicted in May 2009 of two counts of possessing stolen or unlawfully obtained property and the remaining 15 charges were withdrawn. The “stolen property” that was the subject of the withdrawn charges was later found to lawfully belong to the Applicant or the previous tenants of his home, who had stored their belongings in a spare room.
On 15 May 2009, the Applicant was sentenced to a total of 24 months’ imprisonment from 9 April 2009 for possession of methylamphetamine, possession of cannabis, aggravated possession of unlicensed firearm, possession of unlicensed ammunition, possession of amphetamine, possession of stolen or unlawfully obtained property and possession of a prohibited drug with intent to sell or supply (methylamphetamine).
On 7 April 2010, the Applicant was notified of a decision by a delegate of the Minister not to cancel his visa on character grounds and he was given a formal warning (G6).
In June 2010 the Applicant was released from prison subject to a parole order issued on 28 May 2010. The Applicant completed his parole period on 8 April 2011. He abided by all conditions of his parole, including abstinence, reporting, counselling and urine analyses. He recommenced living with his then partner, Ms [P] and her two children.
In or around May 2011 the Applicant relapsed into drug use.
In 2012 the Applicant made an application for Australian citizenship by descent. The application was refused due to his 2009 convictions.
Between 2012 and 2015 the Applicant worked as a self-employed banknote and coin dealer.
On 2 May 2012, police executed a search warrant on the Applicant’s home, which he shared with Ms [P]. Ms [P] was charged and arrested for possession of methylamphetamine and subsequently was released on bail. The Applicant was not arrested or charged at that time.
On 18 February 2013, the Applicant was arrested and charged with the following offences:
(a)one count of possess a prohibited drug with intent to sell or supply (methylamphetamine) (offence date 2 May 2012) (Sell and Supply charge);
(b)one count of possess stolen or unlawfully obtained property (offence date 2 May 2012);
(c)one count of possess a prohibited drug (MDMA) (offence date 2 May 2012);
(d)one count of possess a smoking utensil used for smoking prohibited drug (offence date 2 May 2012).
(e)two counts of possess a prohibited drug (cannabis) (offence dates 2 May 2012 and 18 February 2013);
(f)two counts of possess drug paraphernalia in or on which there was a prohibited drug or plant (offence date 18 February 2013); and
(g)one count of possess a firearm/ammunition whilst not the holder of a licence/permit (offence date 18 February 2013).
While the Applicant was in Hakea Prison he was served with an interim violence restraining order, initiated by the ex-partner of Ms [P] who was, at that time, in the midst of a protracted custody battle with Ms [P]. The Applicant has never met Ms [P]’s ex-partner. Upon his release from prison the Applicant entered a joint undertaking with Ms [P]’s ex-partner to not contact each other. The restraining order was subsequently revoked. There is no evidence or finding that any violent or other offending behaviour was committed by the Applicant against Ms [P]’s ex-partner at any time.
The Applicant was granted bail in May 2013 and remained in the community on bail until October or November 2013, when the Sell and Supply charge was discontinued. He then spent three or four months in the community, between November 2013 and February 2014, not subject to any bail or other conditions. He did not reoffend during this period.
His relationship with Ms [P] ceased in May 2013 and he has not resumed any relationship or contact with Ms [P].
On 26 September 2013, the Applicant’s daughter gave birth to [J] at Joondalup Health Campus. [J] is an Australian citizen by birth.
In February 2014 the Applicant was re-charged with the Sell and Supply charge. He was granted bail immediately. He remained in the community until May 2015.
Throughout 2014 the Applicant fought to overcome his addiction to methylamphetamine. He moved to Queensland in or around October or November 2014 to distance himself from former associates and to reinforce a drug free lifestyle. The Applicant claims that he has not been involved in drug use since that time. There is no evidence that he has been.
Between January and May 2015 the Applicant lived with his daughter and his granddaughter [J] at his daughter’s residence.
The Applicant was convicted of the Sell and Supply charge on 13 May 2015 and was sentenced in the District Court of WA on 30 June 2015 to a term of imprisonment of four years and six months.
On 17 July 2015, the Applicant lodged an application to the Court of Appeal against both his conviction and sentence. The appeal was heard and decided in the Supreme Court of Western Australia on 9 May 2016. His appeal was allowed, convictions set aside, and a retrial ordered.
Following the Supreme Court’s decision, the Applicant was released into the community, subject to a surety bail of $5,000. Between May 2016 and January 2017 the Applicant lived with his daughter, her partner and his granddaughter [J] before moving into his own residence a short distance away. During this time the Applicant worked as a self-employed window cleaner. In the lead-up to his trial he was required to renew his bail daily.
On 18 January 2017, following the re-trial, the Applicant was sentenced by Goetze J in the District Court of WA to three years and six months’ imprisonment for the conviction of the Sell and Supply charge, backdated to 31 October 2015.
The Applicant was sentenced for the remaining charges listed in paragraph 35 above by the Perth Magistrates Court on 31 January 2017.
On 11 June 2017, his daughter gave birth to a second daughter who is an Australian citizen.
On 1 September 2017, the Applicant completed the Think First Cognitive Skills Program with reported gains at Casuarina Prison (A2 at 22).
On 23 October 2017, the Prisoner’s Review Board made an order that the Applicant be released on parole on 6 November 2017. He was released on 6 November 2017 and detained under s 189(1) of the Act at Yongah Hill Immigration Detention Centre before being removed to New Zealand on 17 November 2017.
THE LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act is a mandatory cancellation power, requiring that:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
…
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Act sets out eleven sets of circumstances in which a person will be taken not to pass the character test. The first, set out at section 501(6)(a), is that a person has a substantial criminal record. In the Applicant’s case, he has been sentenced to a term of imprisonment of 12 months or more and therefore has a substantial criminal record as defined at section 501(7)(c) of the Act. The Applicant does not contest that he does not pass the character test (Applicant’s SFIC paragraph 55).
Section 501CA applies if the Minister has made a decision, known as the ‘original decision’, under section 501(3A) to cancel a visa that has previously been granted to a person. Section 501CA(4) provides that:
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
As noted at paragraph 9 above, on 27 March 2017, responding to an invitation extended to him under section 501CA(3)(b) of the Act, the Applicant made representations seeking revocation of the Minister’s decision. He therefore satisfied the requirement of section 501CA(4)(a) of the Act.
THE ISSUES BEFORE THE TRIBUNAL
As it is clear that the Applicant does not pass the character test, the sole issue before the Tribunal, standing in the shoes of the Minister, is whether under section 501CA(4)(b)(ii) of the Act, ‘... there is another reason why the original decision should be revoked’.
In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166, North ACJ elaborated on how to approach this discretion (at [38]):
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the person or body must comply with the directions. The Tribunal is such a body and accordingly must comply with any relevant direction when exercising the discretion under s 501CA of the Act (Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591 per Katz J).
The Minister has made a direction under s 499 of the Act, namely Ministerial Direction No 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65). Direction 65 applies to the visa cancellation decision affecting the Applicant.
Paragraph 6.1 of Direction 65 sets out the objectives of the Act, with the following parts being relevant to the Applicant’s case:
6.1 Objectives
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
...
(3) Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against the law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. When the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2) of the Act, such decision-makers must comply with a direction made under section 499.
By way of general guidance, paragraph 6.2 of Direction 65 provides:
6.2 General Guidance
(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) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once the decision-maker is satisfied that a person does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The “principles” referred to in the General Guidance to be applied by decision-makers, including the Tribunal, are set out in paragraph 6.3 of Direction 65 as follows:
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 vulnerable members of the community such as minors, 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 a 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.
Paragraph 7(1)(b) of Direction 65 sets out how the discretion under s 501CA(4) of the Act to revoke the cancellation of a visa under s 501(3A) of the Act is to be exercised:
How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
…
(b) must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction 65 further states:
8. Taking the relevant considerations into account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. ...
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)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 the visa.
(4)Primary considerations should generally be given more weight than the other considerations.
(5)One or more primary considerations may outweigh other primary considerations.
Part C of Direction 65 (paragraphs 13 and 14) sets out considerations that are relevant when determining whether to exercise the discretion in s 501CA(4) of the Act.
PRIMARY CONSIDERATIONS
Pursuant to paragraph 13(2) of Direction 65, the following are “primary considerations” that the Tribunal must take into account in deciding whether to revoke the cancellation of an applicant’s visa:
(i)protection of the Australian community from criminal or other serious conduct;
(ii)the best interests of minor children in Australia; and
(iii)expectations of the Australian community.
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction 65 provides that decision-makers considering the protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above). Paragraph 13.1(2) then identifies two other factors to which consideration should also be given:
(a)The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
[Emphasis added]
(a) Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of a person's criminal conduct as follows:
13.1.1 The nature and seriousness of the conduct
(1)In considering the nature and seriousness of the person'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 committed against vulnerable members of the community (such as minors, 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;
(c) the sentence imposed by the court for a crime or crimes;
(d) the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e) the cumulative effect of repeated offending;
(f) whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g) where 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);
(h) 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.
It could not be disputed that the Applicant’s criminal record is serious and obviously is of concern to the Tribunal. The Minister points to:
(a)the number of offences, including driving offences;
(b)the fact that since 2007 he has appeared in court 10 times with most of the charges relating to drug and firearms offences;
(c)the Applicant’s first imprisonment sentence being in 2009 (various drug, firearms and stolen property) for a total of 24 months;
(d)the Applicant’s imprisonment in January 2017 for three years and six months for the Sell and Supply charge;
(e)the increasing seriousness of the Applicant’s offending;
(f)the Judge’s remarks in sentencing the Applicant in January 2017 in relation to the seriousness of drug dealing and the consequences to society that drugs, in particular methylamphetamine, have and the seriousness with which the Parliament treats such offences as indicated by the penalties in the legislation; and
(g)the fact that the Applicant has been sentenced to terms of imprisonment in relation to 20 of his offences.
The Applicant’s SFIC points to the following matters:
(a)throughout his 32 years in Australia, the Applicant has never been convicted of a violent or sexual crime nor has he committed crimes against any vulnerable members of society;
(b)the Applicant did not receive a sentence of imprisonment until more than 20 years after he arrived in Australia;
(c)the Applicant accepts the seriousness of his offending; and
(d)that, according to the Applicant, all of his offences since 2007 have been as a direct result of his methylamphetamine addiction.
The Tribunal agrees that methylamphetamine dealing and firearms offences are to be viewed as serious, particularly when these offences are repeated. The seriousness of the Applicant’s offences weighs against the revocation of the cancellation of his visa.
(b) The risk to the Australian community should further offences be committed
Paragraph 13.1.2(1) of Direction 65 sets out the principles and factors to which the Tribunal should have regard in assessing whether a non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In 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).
In relation to the issue of the likelihood of the Applicant offending in the future, the Applicant’s SFIC points to the following factors:
(a)the time the Applicant spent in the community;
(b)his rehabilitation;
(c)the family support that he will receive with his rehabilitation; and
(d)his behaviour while incarcerated.
The Minister’s SFIC submits that when assessing whether the Applicant represents an unacceptable risk to the Australian community, regard must be had to paragraph 13.1.2 of Direction 65 which provides that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. In considering that risk, decision makers must have regard to the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and 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 Applicant re-offending.
The Minister submits that in looking at this issue the Tribunal needs to consider the following (R2 paragraph 38):
(a)that the Applicant’s visa was previously considered for cancellation and he was given a warning of cancellation should he re-offend;
(b)the Applicant made comprehensive submissions at the time of the previous cancellation consideration to the effect that he would not re-offend yet, within a short time he resumed dealing methylamphetamine.
The Minister submits that the Applicant’s submissions in relation to his not re-offending and his rehabilitation should be given little weight because (R2 paragraph 39):
(a)he is a serious offender with an extensive criminal record;
(b)he has a long-standing history of substance abuse and the Tribunal cannot be satisfied that he has rehabilitated and that notwithstanding previously satisfying his parole requirements, he has relapsed into drug use;
(c)in 2012 he guaranteed that he would not reappear before the courts only to be arrested in 2012 for the same crimes that he was incarcerated for previously; and
(d)that his rehabilitation has not been successful to date and has not recently been tested in the community.
The last of those issues, that the Applicant’s rehabilitation has not been tested in the community, is disputed by the Applicant who contends in his SFIC as follows:
74.The Respondent states that the Applicant’s “rehabilitation has not been successful to date and has not recently been tested in the community environment.”
75. The following table shows the periods the Applicant spent in the community and detention since being arrested and charged in February 2013:
Dates (approx.)
Length
Location
Conditions
Feb – May 2013
3 months
Custody
Remand
May – Aug 2013
3 months
Community
Personal bail (reporting conditions)
Aug – Nov 2013
3 months
Community
Personal bail (no reporting conditions)
Nov 2013 – Feb 2014
3 months
Community
None
Feb 2014 – May 2015
15 months
Community
Bail
May 2015 – May 2016
12 months
Custody
Remand and term of imprisonment
May 2016 – Jan 2017
7 months
Community
Surety bail
Jan – Nov 2017
11 months
Custody
Term of imprisonment
76.Of the four years between February 2013, when the Applicant was originally charged, and January 2017, when his sentence was finally determined, the Applicant spent a total of approximately 31 months (two years and seven months) in the community.
77.On 18 January 2017, Goetze J acknowledged that the Applicant had spent 444 days in custody (equating to approximately 15 months) since 18 February 2013. Given there were 1,431 days between 18 February 2013 and 18 January 2017, this means the Applicant spent 987 days in the Australian community prior to being sentenced for the second time in January 2017.
78. Between November 2013 and February 2014, the Applicant was not subject to any bail or parole conditions and did not reoffend. An argument that he was law-abiding during this period only because he was anticipating being sentenced for the Sell and Supply charge cannot be made, as the charge at this time had been discontinued and he was not aware that he would be re-charged.
79. The 15-month period he spent in the community between February 2014 and May 2015 occurred after the Applicant had been originally convicted and sentenced for the Sell and Supply charge, and shows that he has been tested in the community following being sentenced for this offence.
In relation to the issue of the Applicant’s rehabilitation, the Applicant’s SFIC submits that:
80.The Respondent contends that the “Tribunal cannot be satisfied that [the Applicant] is rehabilitated. He has previously satisfied his parole requirements, but then relapsed into drug use.”
81.As discussed above, the Applicant’s behaviour has clearly been linked to his methylamphetamine addiction and it contributed significantly to his offending behaviour. Since being released on bail in May 2013, and the subsequent birth of the Applicant’s first granddaughter in September of the same year, the Applicant has made an obvious and successful effort to rehabilitate himself and cease drug use altogether.
82.Given the Applicant’s prior history of offending behaviour, this is an extraordinary achievement and has been recognised not only by the Applicant himself but by officials, family and others.
83.For example, Goetze J in January 2017 recognised that the Applicant had been rehabilitated, as evidenced by the following excerpts from His Honour’s sentencing remarks:
a.the Applicant “went to Queensland in 2014 and you have been clean since…I gather now, that you have been abstinent.”
b.“...the Corrections officer said that drug use is [the Applicant’s] main risk issue…given your attitude now, there is no need for you to be supervised save for monitoring purposes.”
c.“…I can have regard to the fact that there’s been rehabilitation for both of [you].You both tell me now you’re clean and that’s the way you’re going to stay. So rehabilitation versus the need for retribution is something that can be taken into account.
d.“Your daughter says that you are a good grandfather, you have now got a job and she now regards you as a normal member of the community, which is something that she didn’t do previously. She says in…2015 you went to live with your daughter and you were then off drugs.”
e.“It is your son who told me in January ’15 you were no longer using drugs and you have become a positive influence in his life, such that he has now also rehabilitated. Your daughter says that your rehabilitation is such that she is now confident enough to leave you to babysit her child and she is about to have a second child, so she trusts you. And it’s this involvement of family that now has led you to a better, more productive outlook on life.”
84.The Applicant states that he began his rehabilitation in the community following his release in May 2013. He states:
I ended my relationship with Ms [P] and made it clear to everyone that I wanted nothing more to do with drug dealing. I battled with my addiction from there. I started to have periods of abstinence which were encouraging periods for myself. The birth of my first grandchild in September 2013 also helped strengthen my resolve to get clean.
85.He states that a further driving factor for him to cease using drugs was a conversation with his daughter in 2014:
It was around March 2014 that I was beginning to see light at the end of the tunnel. I had reacted to a previous conversation with my daughter, [J], in regards to her worry about my health, and also to her concerns that I would never be the sort of “Poppy” that she wanted for her child unless I got on top of my methylamphetamine addiction.
86. He was also compelled by the realisation that his son [M] was also addicted to methylamphetamine, and states that this made him “even more determined for myself to succeed.” [M] states:
My father desperately tried to get me clean but I resisted until I was incarcerated myself…My father was freed on appeal three weeks before my parole and assured me that he would do everything in his power to make sure I completed my parole and remained drug free. All of this I have done successfully now.
87.The Applicant’s attitude now towards drug use remains resolutely opposed. He states:
My motivations for not relapsing and reoffending are that I am a much better and complete person now than I was in previous years. This is a benefit for the community and for my own family. I am fully aware of the carnage and destruction that drugs cause in the community and in the past few years I have made many changes in my life so I am no longer a cause of this problem.
88. The Applicant’s other family members, namely his parents and daughter, now consider him to be fully rehabilitated. They state:
a.Daughter [J]: “During this time on bail he has met every bail condition and my own conditions in regards to living with me such as no drugs, no people at my home and home at a reasonable time and no coming and going at ridiculous times which he also was able to do, never causing any disagreements or a feeling of uneasiness when living at my home…Please see past the poor decisions he has made as he is not that person any more.”
b.Mother: “I believe that David is rehabilitated and has proved this by the amount of time he has spent in the community on bail before and after trials.”
c.Son [M]: “I believe, because of [Applicant]’s changed ways, he poses no threat whatsoever to the Australian community…I believe it is fundamentally wrong for [Applicant] to be separated from his family and am 100 percent sure he has learned his lesson and will not go back to his old ways.”
89. The Applicant cannot take back his relapse and reoffending in February 2013. Before the birth of his granddaughter and the development of a closer relationship with his children, he was not as highly motivated to address his addiction and to recognise it as destructive for both his life and those around him. In regards to his relapse in 2011, the Applicant states:
Unfortunately I relapsed into drug use in May 2011 due to “peer pressure.” My partner, Ms Poole, was using methamphetamine at this time as were many of my friends. This does not excuse my weakness. It does, however, show that I am aware of the reason for my relapse and can prevent this by not associating with other drug users. This relapse was wrongly noted in the Judge’s sentencing remarks as being in 2015 when, in fact, it was in 2011 after I fulfilled my parole conditions…
I was kidding myself by downplaying this drug use as “only recreational” and did not seek help, even though I had means of support. I continued to associate with other drug users and negative associates.
Methamphetamine addiction is a very powerful thing. So strong is its grip on you that it will give your mind all the answers you want to hear when you are reoffending, despite receiving the warning from the Department in 2010.
90. He made serious and substantial changes to his habits and way of life four years before his visa was cancelled. He admits to a history of drug abuse commencing in or around 2008, following separation from the mother of his children, and reflected in his Australian Federal Police clearance by increased drug-related offending from that year onwards.
91. The statement provided by the Applicant in support of his revocation request shows that he now has insight and maturity into his addiction and his offending behaviour, to an extent that he did not have before. In his parole plan, the Applicant stated:
I am fully aware of the carnage and destruction that drugs cause in the community and in the past few years I have made many changes in my life so as I can now become a part of the solution and no longer be a cause of the problem…I am the first to admit my past mistakes and the remorse I feel is very deep and powerful. By taking ownership of this it has empowered and motivated me to finally “get things right” and I feel that I am now close to this.
92There are clear differences in the Applicant’s circumstances now, when compared with his release from prison in 2010. Namely:
a. the Applicant is now 50 years old;
b. he has spent almost three of the last five years in the community and has not committed an offence since February 2013;
c. he has not used methylamphetamine for a period of over three years and is aware of its destructive impact on the Australian community;
d. he has two young grandchildren, one of whom he has developed a strong and loving connection with;
e. his family is aware of his offending behaviour and has actively supported his rehabilitation;
f. he is now aware of his options for and willing to seek help in maintaining his rehabilitation; and
g. he has been actively involved in supporting the rehabilitation and non-offending strategies of others whilst in prison.
As noted above, oral evidence was given at the hearing by the Applicant, the Applicant’s parents and the Applicant’s daughter and son. The Tribunal was impressed by their evidence. Obviously care must be taken in considering evidence given by family members, particularly when, as has been pointed out by the Minister, similar evidence was given when the Applicant’s visa was previously being considered for cancellation.
Notwithstanding that, the evidence of the Applicant’s family members points to the Applicant being a different person to the one who relapsed into drug use after his previous conviction. The Applicant’s father said that he considers that he now has back the son that he had before his decline into drug abuse. The Applicant’s daughter gave evidence that she now is satisfied that her father’s addiction to methylamphetamine is behind him and that she is happy to leave her daughter in his care. He has become a trusted father and grandfather figure and has given support to her in raising her daughter while she was separated from the father of her children and then, after their reconciliation, at times when the father of the children has been away on fly-in-fly-out work. The Applicant’s son, who has had his own issues with methylamphetamine and spent time in prison with his father, gave evidence of the support that his father has provided him in trying to overcome his drug problems and expressed the view that he doubted that he could succeed in that battle without his father’s support.
While caution must be taken in accepting evidence of close family members, there is no doubt that the evidence given by the Applicant’s parents and children was heartfelt and frank. All of them, in particular the Applicant’s parents and daughter, made it clear that the Applicant was on his last chance. His daughter’s evidence was that if the Applicant were to relapse she would have nothing further to do with him and would cut off all contact with his grandchildren. His parents similarly made it clear that if he were to reoffend not only would they have nothing to do with him, but they would also cut him off from the discretionary trust which provides substantial financial support to the Applicant.
The Applicant’s evidence was that he too appreciated that he was on his last chance, not only with remaining in Australia, but with his family.
The Tribunal also notes that role played by the Applicant while he was in prison. During his most recent incarceration the Applicant held the position of peer support worker. This role requires participants to undergo strict security checks, including urinalysis.
In December 2015, staff at Acacia wrote to the Applicant stating “Thank you for all your help this year. We truly value your willingness to assist others and make a positive difference at Acacia. All the best for the coming year.”
Ms Kerry Lennon, a Peer Support Officer at Acacia Prison, stated that the Applicant (G22):
…has returned to Peer Support [following his time in the community] with a can do attitude which clearly shows his enthusiasm to help others where needed…We have had no issues whatsoever with Mr Gordon’s conduct, and is always courteous and respectful. Mr Gordon seems to have a natural ability to build rapport and engage with peers of all backgrounds and ages…Mr Gordon’s review is conducted on a weekly basis with no issues to note. Additionally, he is commended on his above average work performance.
His residency in self-care (between May 2015 and May 2016) was recognised by Goetze J in his sentencing remarks (G15 at 88):
When you were in custody; that is, in relation to this matter, you were ultimately in the self-care block. Now, from what I understand, that’s a reward for good behaviour in custody. The officers spoke well of your response to their requirements and you were a peer support worker.
Prior to his release in November 2017 the Applicant completed the Think First Program, a cognitive skills program with the objective of helping group members develop their skills for thinking about problems and for solving them in real life situations. To apply these skills to the problem of offence behaviour and reduce the risk of reoffending. It is a 60-hour group program run over ten weeks. In his statement dated 5 December 2017 (A2 at 005) the Applicant says in relation to this program:
The drug and alcohol assessment team were very happy with the way I had rehabilitated myself and thought that this would be a good course for me to brush up my skills with before being released into the community. It covered such things as problem solving, decision making, social skills and self-management. This was an excellent course and helped to affirm the steps I was following were indeed the correct ones to help me avoid any re-offending.
On 23 October 2017, the Prisoners Review Board made an order that the Applicant be released on parole on 6 November 2017. The Parole Order stated that:
In making this decision the Board took into account the release considerations in s.5A of the Sentence Administration Act 2003 (WA), giving paramount consideration to the safety of the community. The Board decided that your release would not present an unacceptable risk to the safety of the community due to;
(i)Successful completion of the Think First Program with reported gains.
(ii)Excellent prison conduct including undertaking peer support which demonstrates an ability to act pro-socially and comply with supervision and direction.
(iii)The conditions of parole will further reduce the risk to the safety of the community.
The Order imposed several conditions on the Applicant, to be adhered to up until the supervision and parole expiry date (30 April 2019).
The Applicant’s criminal record is serious and the scourge of methamphetamine and dealing in that drug can only be considered a serious risk to the Australian community. The Tribunal accepts that the Applicant’s offending has been driven by his addiction to methylamphetamine. While the Applicant’s criminal record is substantial and serious, his serious offending only commenced after the Applicant had been in Australia for 22 years and seems to have been completely tied to his methylamphetamine addiction. He has not been convicted of any crimes of violence or of a sexual nature or of any crimes against vulnerable members of the community.
It appears to the Tribunal that the Applicant has taken very considerable steps towards addressing his drug issues. The Tribunal considers that the Applicant has shown:
(a)commitment to his family and a realisation that he is on his last chance with them;
(b)no signs of an ongoing drug addiction subsequent to his last offending behaviour in February 2013;
(c)that he has changed his lifestyle and those with whom he previously associated to distance himself from drugs.
The Tribunal also takes into account that the Prisoners Review Board in setting the Applicant’s terms of parole did not consider it necessary to impose any conditions relating to further drug rehabilitation. While there is always a risk of reoffending and the offences for which the Applicant has been convicted are particularly serious with serious consequences for the Australian community, on the evidence available to the Tribunal, the Tribunal accepts that the risk of the Applicant reoffending is low. As has been pointed out in a number of cases, the decision that the Tribunal must make under paragraph 13.1.2 of Direction 65 is whether the non-citizen poses an “unacceptable risk”, not whether there is no risk that applicant will re-offend. In the present case, notwithstanding the seriousness of the offences committed by the Applicant, because of the rehabilitation undertaken by the Applicant which has been tested in the community and because of the consequences personally faced by the Applicant should he reoffend, the Tribunal considers that the Applicant’s risk of reoffending is sufficiently low as not to be unacceptable.
(ii) Best interests of minor children in Australia
The Applicant has two grandchildren resident in Australia one aged four years and one aged around six months. Both were born in Australia and are Australian citizens.
The Applicant has only had meaningful contact with the older of the children. On the evidence available it appears that the children’s parents fulfil the parenting roles. Based on the evidence of the Applicant and the Applicant’s daughter, the tribunal accepts that there is natural love and affection between the Applicant and the older child and that, insofar as the applicant has had contact with that child, he has played a positive role.
Given the limited contact that the Applicant has had with the children and the fact that the children in question are supported by their parents and the role that the Applicant would play in the children’s upbringing would be secondary, the Tribunal does not place significant weight on this consideration. None of the factors that the Tribunal is directed to take into account by paragraph 13.2(4) of Direction 65 is particularly applicable to the present case.
(iii) Expectations of the Australian community
The third consideration listed in Direction 65 is the expectations of the Australian community. In this regard, paragraph 13.3(1) of Direction 65 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 cancel the visa held by such a person. Visa cancellation 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 continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In analysing this third and primary consideration, the Tribunal is to take into account the principles stated in paragraph 6.3 of Direction 65. These include the principles that:
·the Australian community expects the Australian Government to cancel the visas of non-citizens who commit serious crimes (6.3(2));
·non-citizens who commit serious crimes should generally expect to forfeit the privilege of staying in Australia (6.3(3)); and
·in some circumstances if the offence were to be repeated the consequences would be so serious that any risk of similar conduct is unacceptable (6.3(4)).
The Applicant, however, points to the principle set out in paragraph 6.3(5) which provides that;
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.
[Emphasis added]
The Tribunal also notes the Principle identified in paragraph 6.3(7) which is as follows:
(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.
The Minister’s SFIC makes the submission that:
46.The Direction indicates, at paragraph 13.3(1), that non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted a visa. It further notes that decision makers should have due regard to the government’s views in this respect.
47. The Australian community would expect that the applicant, being a visa holder who has repeated drug dealing and weapons related offences would not have his visa reinstated.
The Applicant cites Deputy President Forgie’s comments in Rabino and Minister for Immigration and Border Protection [2016] AATA 999 that “the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.” The Applicant contends that that assessment should be made on the basis of the individual circumstances of each case considered in light of the purpose of the legislation. The Tribunal agrees that that is the appropriate approach.
The Applicant also cites Deputy President McCabe’s comments in Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23]:
A decision-maker is, to some extent, required to guess at the community’s expectations...As I begin my deliberations, I assume the Australian community would be fair-minded and mature...The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done
The Applicant also submits in his SFIC that:
151.Numerous recent Tribunal decisions have found that Australian values and standards would favour giving applicants a second chance where there has been a demonstrated, genuine and successful effort at rehabilitation and family members in Australia who will be adversely affected by the decision.
152.The Tribunal in Waits and Minister for Immigration and Multicultural and Indigenous Affairs[2003] AATA 1336 at [36] stated that:
the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s501.
153. Wallace J in R v Rowe (1991) 53 A Crim R 196 at 201, recognised that:
Whilst protection of the public against the commission of crimes of violence must remain of paramount concern, if it is possible, consistent therewith, for a court to be compassionate and assist in the rehabilitation of a human being so as to avoid destroying his life, then the courts ought surely do so: Webb v O’Sullivan [1952] SASR 65 at 66. Nor is mercy to the individual offender inconsistent with the recognition of the seriousness of an offence: Scott v Cameron (1980) 26 SASR 321 at 32.80
154.Considering the information before the Tribunal regarding the Applicant’s circumstances, namely that the Applicant:
a.was born to an Australian citizen;
b.began living in Australia when he was 18 years old;
c.has been living in Australia for over 30 years;
d.was sentenced to his first sentence of imprisonment after more than 20 years of residing in Australia;
e.committed most of his offending, including that following his previous warning from the Department about further criminal offending, whilst in the grips of an addiction to methylamphetamine;
f.was recently present in the Australian community for a period of almost three years without reoffending;
g.has never breached a bail or parole condition;
h.has an excellent prison record with no concerning behaviour noted;
i.was not assessed in prison as requiring any drug or alcohol rehabilitation courses;
j.no longer associates with negative peers, associates or drug users at all;
k.has strong family ties to Australia through his healthy, supportive and ongoing relationship with his children and young grandchildren; and
l.has not used drugs and has been fully rehabilitated since 2014;
the Tribunal should be satisfied that the Australian community would not say that the Applicant presents an unacceptable risk of harm, and that the Australian values and standards would favour giving him a second chance.
While the final observation that the Applicant should be given a “second chance” might be met with the response that he has already had a second chance following the Minister’s decision not to cancel his visa after his previous conviction for drugs and firearms charges, the Tribunal agrees with the general sentiment of the Applicant’s submission. While the offences for which the Applicant has been convicted are beyond any doubt serious and the impact of methylamphetamine on the community and the individual is severe, the Tribunal does not consider this to be a case, as submitted by the Minister, where the nature and character concerns or the offences are such that the Australian community would expect the cancellation of the visa to stand irrespective of the circumstances of the individual applicant. The other factors identified by the Applicant which are, in a number of instances, recognised in the General Principles set out in paragraph 6.3 of Direction 65, would support the non-cancellation of the Applicant’s visa. On balance, therefore, this consideration weighs, albeit marginally, in favour of revoking the cancellation of the Applicant’s visa.
(iv) Other considerations
Paragraph 14(1) of Direction 65 provides:
14.Other considerations - revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations 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.
Based on the evidence currently available, the only other considerations that may be relevant in the present case are the strength, nature and duration of the Applicant’s ties with Australia and extent of impediments to him if removed.
Strength, nature and duration of ties
Paragraph 14.2(1) of Direction 65 requires the Tribunal to consider the Applicant’s ties to Australia as follows:
14.2 Strength, nature and duration of ties
(1)The strength, nature and duration of ties to Australia. 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 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).
The Applicant has spent over 32 years in Australia. As noted above, the Applicant spent over 22 years in Australia before he started committing what could be considered serious criminal offences. The evidence is that during periods when the Applicant has not been in prison he has contributed to the Australian community through paid employment. The evidence is also that while incarcerated he contributed positively through the Peer Support program.
Apart from his elderly parents, the whole of the Applicant’s family with whom he has contact is resident in Australia. The Applicant has spent the whole of his adult life in Australia and all of his meaningful social and family links are in Australia.
It is clear that he is very close to his daughter and at least the older of her children and that he has, as far as possible given his incarceration over the last several years, played a supportive role to his daughter.
The Tribunal also considers that while he was not a good early role model for his son, he was, shortly before and during his son’s incarceration, a positive influence and will be important in helping his son with his struggle with drug addiction. The Applicant’s son’s evidence was that he really had no-one else but his father to rely on in his struggle with methylamphetamine addiction and does not know what he will do if his father is not there to support him.
Based on the above, the Tribunal finds that the considerations to be taken into account in paragraph 14.2 of Direction 65 favour revocation of the cancellation of the Applicant’s visa.
Extent of impediments if removed
Paragraph 14.5(1) of Direction 65 requires the Tribunal to consider the extent of any impediments if an applicant is removed from Australia as follows:
(1)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.
In his Personal Circumstances Form (G18 at 114) the Applicant identified “onset of severe depression leading to suicide” if he were to be separated from his children and his grandchildren. His parents’ and his daughter’s evidence was also to the effect that the Applicant had suffered from depression and was on medication. There was no independent professional psychological evidence to support the Applicant’s claim that his depression was such that a separation from his children and his grandchildren would cause him to be suicidal. The Tribunal accepts that, like any father or grandfather, the Applicant would rather be with his children and grandchildren as they grow up. That is only natural. In order to be considered an impediment to his removal, however, the Tribunal considers that something more than a natural desire to be with his children and his grandchildren must be shown.
Further there was no evidence led by the Applicant to suggest that appropriate medical care, including care for mental health issues, would not be available to the Applicant in New Zealand. The Applicant is a New Zealand citizen and would have access to the basic social, medical and economic support in that country.
The Tribunal finds that there are no relevant impediments to the Applicant’s removal to New Zealand.
CONCLUSION
Having received a sentence of a term of imprisonment in excess of 12 months, the Applicant has a “substantial criminal record” and does not, as a result, pass the character test in s 501(6) of the Act. Further, as the Applicant was serving a sentence of imprisonment on a full-time basis in a custodial institution, he was liable for mandatory cancellation of his visa pursuant to s 501(3A) of the Act. His visa was mandatorily cancelled on 7 March 2017.
In determining whether there is any reason why the decision to cancel the Applicant’s visa should be revoked, the Tribunal has attached weight the seriousness of the Applicant’s criminal record and the fact that his offending was repeated.
The Tribunal is mindful of the seriousness of methylamphetamine dealing and the risk that it poses to the Australian community. The Tribunal, however, is of the view that the risk of the Applicant reoffending is sufficiently low to counterbalance the seriousness of the Applicant’s offences. It seems clear that prior to his addiction to methylamphetamine which started in around 2007, by which time he had been in Australia for over 22 years, the Applicant was generally a law abiding citizen although he did have a number of traffic related convictions. As is so often the case with methylamphetamine, the Applicant’s criminal behaviour was driven by the drug addiction. While there can never be any guarantee that any individual who has found himself or herself in circumstances such as the Applicant will not reoffend, the Tribunal accepts the evidence of the Applicant and his family members who gave evidence that the Applicant is a changed person from the person who committed the offences for which he was most recently charged and which gave rise to the cancellation of his visa. The Tribunal is also encouraged by the very positive feedback provided by those supervising the Peer Support program while he was in prison and by the fact that the evidence points to the Applicant as having been drug free since 2014 and having made every effort to change his lifestyle and associates to avoid sliding back into the drug scene.
On balance, while it could not be said that there was no risk that the Applicant would reoffend, the risk is not unacceptable.
In relation to the other considerations the Tribunal is of the view that;
·while it is only of marginal weight in the present case, the best interests of the Applicant’s grandchildren are, on balance, served by the Applicant not being repatriated to New Zealand;
·the expectations of the Australian community would be that in the particular circumstances of the Applicant, taking into account all of the primary considerations, on balance the Applicant should be given the chance to stay in Australia; and
·the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of the Applicant being given the chance to remain in Australia. In this regard the Tribunal takes into account the role that the Applicant is likely to have in assisting his son with his drug issues and the support that he will be likely to continue to provide to his daughter.
Overall, the Tribunal finds that having regard to all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction 65; the correct and preferable decision is to revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is set aside substituted with the decision that the cancellation of the Applicant’s visa pursuant to section 501(3A) of the Migration Act 1958 (Cth) be revoked.
I certify that the preceding 123 (one hundred and twenty -three) paragraphs are a true copy of the reasons for the decision herein of Deputy President S Boyle
.......[sgd]...........................................................
Administrative Assistant - Legal
Dated: 8 January 2018
Date of hearing: 15 December 2017 Representative for the Applicant: Ms Graziotti Solicitors for the Applicant: Estrin Saul Lawyers Representative for the Respondent: Mr Burgess Solicitors for the Respondent: Sparke Helmore Lawyers
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