Re Maikantis and Minister for Immigration and Border Protection
[2018] AATA 40
•19 January 2018
MAIKANTIS and MINISTER FOR IMMIGRATION AND BORDER PROTECTION (Migration) [2018] AATA 40 (19 January 2018)
Division:General Division
File Number: 2017/6561
Re:VASILIOS MAIKANTIS
APPLICANT
AndMINISTER FOR IMMIGRATION AND BORDER PROTECTION
RESPONDENT
DECISION
Tribunal:Deputy President S A Forgie
Mr A Maryniak QC, MemberDate:19 January 2018
Place:Melbourne
The Tribunal decides to:
1.set aside the decision of the delegate of the respondent dated 24 October 2017; and
2.remit the matter to the respondent with a direction that the applicant’s application for a Bridging E (Class WE) visa not be refused under s 501 of the Migration Act1958.
.............[sgd]........................................................
Deputy President S A Forgie
Catchwords
MIGRATION – refusal of visa on character grounds – identification of question to be answered on review – decision set aside and remitted.
Legislation
Migration Act 1958 ss 5, 29, 30, 31, 36, 45, 45AA, 46, 47, 65, 84, 86, 499, 501
Direction No.65
Cases
Alexandra Private GeriatricHospital Pty Ltd v Blewett(1984) 2 FCR 368; 56 ALR 265
Contreras v Minister for Immigration and Border Protection [2015] FCAFC 47
Harman v HomeDepartment State Secretary [1983] 1 AC 280; [1982] 1 All ER 532; [1982] 2 WLR 338
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125; 248 ALR 609; 82 ALJR 1259
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349
Re Smith and Minister for Immigration and Border Protection [2013] AATA 687
Williams v Minister for Immigration and Citizenship [2013] FCA 702; (2013) 136 ALD 299
Secondary Materials
REASONS FOR DECISION
Deputy President S A Forgie
On 24 October 2017, a delegate of the Minister for Immigration and Border Protection (Minister) refused Mr Vasilios Maikantis’s application for a Bridging E (Class WE) visa (sc 050 BE visa) (Bridging Visa) under s 501(1) of the Migration Act 1958 (Migration Act). The delegate did so on the basis that Mr Maikantis had not passed the character test under ss 501(6) and 501(7)(c). The Department of Immigration and Border Protection (Department) advised Mr Maikantis of the decision on 27 October 2017. There was no dispute between the parties that Mr Maikantis had not passed it because he had a substantial criminal record within the meaning of ss 501(1)(a) and 501(7)(c) and (d) of the Migration Act in that he has been sentenced to a term of imprisonment of 12 months or more and has been so sentenced on more than one occasion.
Mr Maikantis has applied for review of the Minister’s decision. He was born in Greece in 1947 and is a Greek citizen. He first came to Australia in 1965 with his parents and two siblings when he was 17 years of age and obtained permanent residence but did not apply for Australian citizenship. On 24 January 2001, Mr Maikantis went to Thailand for a holiday but omitted to obtain a Resident Return Visa before doing so. He applied for, and was granted, a Resident Return (Temporary) (Class TP) (Provisional Resident Return) subclass 159 visa (RRTP visa) while he was outside Australia. Relying on that visa, Mr Maikantis was able to return to Australia on 28 March 2001. The RRTP visa ceased on 28 June 2001 but he did nothing about his status as a resident in Australia until 2017 when he applied for a Return (Residence) (Class BB) (Five Year Resident Return) subclass 155 visa (Resident Return visa). A month later on 28 July 2017 and while his Resident Return visa was being processed, Mr Maikantis applied for a Bridging Visa, which has been refused.
In the barest outline, we have had regard to Mr Maikantis’s lengthy period of residence in Australia, the state of his health and that of his wife and 95 year old mother who both live in Australia and to the Treatment Plan and other steps that Mr Maikantis will, with the support of all of his family, put in place to ensure that he will finally overcome his gambling addiction. As we have found that his gambling addiction is at the heart of most of his criminal behaviour, we are satisfied that the risk of his re-offending, and so the risk of any harm to the Australian community of his re-offending, is low. We have decided to set aside the decision of the delegate of the Minister dated 24 October 2017 and remit the matter to the Minister with a direction that Mr Maikantis’s application for a Bridging E (Class WE) visa not be refused under s 501 of the Migration Act. We now set out our reasons in more detail.
LEGISLATIVE BACKGROUND
Visas
Subject to the terms of the Migration Act, the Minister may grant a non-citizen[1] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[2] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[3] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Migration Act. Regulations may specify the criteria that must be met for a visa of a specified class[4] as do specific provisions of the Migration Act.[5]
[1] A non-citizen is a person who is not an Australian citizen: Migration Act; s 5(1).
[2] Migration Act; ss 5 and 29(1)
[3] Migration Act; s 30
[4] Migration Act; s 31(3)
[5] See, for example, s 36 in relation to protection visas.
Subject to the Migration Act and regulations made under it, a non-citizen who wants a visa must apply for a visa of a particular class.[6] In certain circumstances, an application for a visa of a particular class may be taken to be an application for another class.[7] Section 47(1) requires the Minister to consider a valid application for a visa but the Minister is not to consider an application that is not a valid application.[8] An application for a visa is valid only if it satisfies the criteria set out in s 46.
[6] Migration Act; s 45
[7] Migration Act; s 45AA
[8] Migration Act; ss 47(1) and (3)
Subject to certain qualifications related to the suspension of the processing of visa applications under s 84 and visa limits under s 86, the Minister is to grant a valid application for a visa if satisfied that the health and other criteria specified for the visa have been satisfied, charges have been paid and the grant of the visa is not prevented by Commonwealth laws or the provisions of the Migration Act including s 501.[9]
[9] Migration Act; s 65
Refusal under section 501 of the Migration Act
Section 501(1) provides that:
“The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note:Character test is defined by subsection (6).”
The Minister may refuse to grant a visa if he reasonably suspects that the person does not pass the character test and he is satisfied that the refusal is in the national interest.[10]
[10] Migration Act; s 501(3)
The character test is set out in s 501(6). Only s 501(6)(a) is relevant:
“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));
…”
Section 501(7) sets out various situations in which a person is determined to have a substantial criminal record. They include the situation in which a person has been sentenced to a term of imprisonment of 12 months or more.[11] Mr Maikantis has been sentenced to three terms of imprisonment totalling more than 12 months and it makes no difference that one of them was suspended or that he has been released early on parole.
[11] Migration Act; s 501(7)(c)
Discretionary decision
Section 501(1) is drafted in discretionary terms in that the Minister “may” refuse to grant a visa to a person who does not satisfy the Minister that the person passes the character test. It is not an unfettered discretion but a discretion that must be exercised within boundaries found in the Migration Act. Those boundaries may be express or they may be implicit when regard is had to the subject matter of the enactment under which the decision is made as well as from its object and underlying policy.[12]
[12] Alexandra Private GeriatricHospital Pty Ltd v Blewett (1984) 2 FCR 368; 56 ALR 265 at 375; 272 per Woodward J and see also Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; Gibbs CJ, Mason, Brennan, Deane and Dawson JJ at 39-40; 308-309 per Mason J with whom Gibbs CJ and Dawson J agreed
In the case of a discretionary decision of the sort provided for in s 501, s 499 of the Migration Act provides that the Minister may give written directions to a person or body having functions or powers under that Act provided the directions are about the performance of those functions or the exercise of those powers.[13] Those directions must not be inconsistent with the Act or the Regulations made under it.[14] The person or body to whom the directions are given must comply with them.[15] The Minister has made a direction under s 499 for the purposes of decisions made under, among others, s 501(1). It is known as “Direction No. 65”.
[13] Migration Act; s 499(1)
[14] Migration Act; s 499(2)
[15] Migration Act; s 499(2A)
Direction No. 65: general principles
Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but we will refer only to the first:
“The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.”[16]
[16] Direction No. 65 at [6.1(1)]
The objectives are followed by passages described as “General Guidance” and “Principles”. The latter set the framework within which the individual considerations set out in Parts A, B and C of Direction No. 65 are set. They give those considerations their form and pattern and raison d’être. The Principles set out in paragraph 6.3 are:
“(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)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 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.”
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
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.”
Differing considerations are prescribed in each Part. Regardless of those differences, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker when considering whether to cancel a visa, refuse an application for a visa or when considering whether the mandatory cancellation of a visa will be revoked. Decision-makers must take into account the primary and other considerations relevant to the individual case.[17] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
“… Separating the considerations for visa holders and visa applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa applicant should have no expectation that a visa application will be approved.”
[17] Direction No. 65 at [8(1)]
In applying the considerations, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[18] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against refusal … of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary considerations may outweigh other primary considerations.[19]
[18] Direction No. 65 at [8(2)]
[19] Direction No. 65 at [8(4)] and [8(5)]
In the Statement of Facts and Contentions lodged on behalf of Mr Maikantis, reference is made to the judgment of North J in Williams v Minister for Immigration and Citizenship[20] (Williams). Particular reference is made to the following passage from his Honour’s judgment:
“ The reasoning process which the Tribunal adopted was, first, to address the factors listed in respect of the two primary considerations and the other considerations as stipulated by the Direction. The Tribunal then made a judgment as to whether each of the considerations favoured or told against cancellation of the applicant’s visa. At the end of the process the Tribunal placed those assessments into the balance to determine the question which it had posed for itself, namely, “Should the discretion to cancel the visa be exercised?”
This is not however the process contemplated by [7] of the Direction. The question which the Tribunal is required to determine is stated in [7(1)(b)]. That question is ‘whether the risk of future harm by a non-citizen is unacceptable’. This is a different question than the question whether by balancing the considerations for and against cancellation, the applicant’s visa should be cancelled. It is a narrower question which focuses on a particular reason why the visa should be cancelled. The Tribunal made a passing reference to [7] of the Direction but the relevant question was not asked by the Tribunal. Further, the process of considering and weighing the primary and other considerations does not necessarily produce an answer to the relevant question. It is, of course, not to the point that the Tribunal might have answered the relevant question in the same way as it answered the question which it in fact considered.
It was accepted by the first respondent that if the Court determined that the Tribunal had failed to ask the right question it will have made a jurisdictional error and that relief should be granted. This concession was correct. Consequently, the decision of the Tribunal will be quashed and the matter remitted for determination according to law.”
[20] [2013] FCA 702; (2013) 136 ALD 299 at [42]-[44]; 311
The reasoning process was further explained in Re Smith and Minister for Immigration and Border Protection[21] (Smith):
“ To understand the process as explained by North J, it is necessary to go back to the words of cl 7(1) as a whole and the particular words of cl 7(1)(a) as well as those in cl 7(1)(b). The question to be decided is that in cl 7(1)(b) but it is only answered after taking into account the considerations set out in Part A or B as appropriate and being informed by the principles in cl 6.3.
It may be thought that there is some overlap between the question asked in [7(1)(b)] and the considerations found, for the purposes of this case, in Part A but, as is implicit in his Honour’s judgment, there is not. I will take as an example, the primary consideration set out in cl 9.1.2, which I set out in full below. For the moment, it is enough to note that the clause is headed ‘The risk to the Australian community should the person commit further offences or engage in other serious conduct’. It goes on to state that ‘In considering whether the person represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community ...’ (emphasis added), 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. ...’. The clause goes on to require that, ‘In making this assessment, decision-makers must have regard to, cumulatively ...’ considerations that are then set out.”[22]
[21] [2013] AATA 687; Deputy President Forgie
[22] [2013] AATA 687 at [19]-[20]
Both Williams and Smith were decided when Direction No. 55, rather than Direction No. 65, was current. Although the wording of paragraph 8 is, in substance, the same, the wording of paragraph 7 is not. Both are headed “How to exercise the discretion” and both, together with paragraph 8, come under the broader heading of “Exercising the discretion”. Direction No. 55 refers only to Parts A and B as it was given on 25 July 2012 before ss 501(3A) and 501CA, relating to mandatory cancellation of visas and requests for revocation of that cancellation were enacted. Revocation of cancellation is the subject of Part C in Direction No. 65. We will reproduce paragraph 7 from each Direction side by side to show the differences:
Direction No. 65
Direction No. 55
“Informed by the principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) must take into account considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.”
“Informed by principles in paragraph 6.3 above, a decision-maker:
a) must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
b) is required to determine whether the risk of future harm by a non-citizen is unacceptable. This requires a balancing exercise, involving a consideration of the likelihood of any future harm, the extent of the potential harm should it occur, and the extent to which, if at all, any risk of future harm should be tolerated by the Australian community.”
There is a significant difference in the form in which paragraph 7(b) is drafted in each Direction. Although it was not the subject of submissions by either party and the Minister did not respond to the particular submissions made on behalf of Mr Maikantis, it is arguable that the change in drafting was a consequence of the observation made by North J in Williams when he said:
“ On the view taken of the operation of [7(1)(b)] of the Direction a question might arise whether the Direction is inconsistent with the Act and hence invalid
(s 499(2)) because it fetters the discretion to cancel the visa under s 501(2) by limiting the ground for the exercise of the discretion to circumstances where the risk of future harm by a non-citizen is unacceptable. That argument was not raised and hence this is not the occasion to consider it further.”[23][23] [2013] FCA 702; (2013) 136 ALD 299 at [42]-[44]; 311
The differences in the drafting were noted by the Full Court of the Federal Court in Contreras v Minister for Immigration and Border Protection[24] but it did not find it necessary to address them in the case before it.[25] Despite those differences, it seems to us that the general approach taken by North J in Williams remains equally valid provided regard is had to all of the relevant considerations that arise from a consideration of the subject matter of the Migration Act, its object and underlying policy.[26] That is to say, the correct decision need first be identified and then answered. The effect of paragraph 7(b) of Direction No. 55 was that the correct decision was whether the risk of future harm by a visa holder or visa applicant, as the case might be, was unacceptable. Paragraph 7 of Direction No. 65 does not formulate a question. Instead, the question is formulated by the relevant provision of the Migration Act. In the case of a visa refusal or cancellation under s 501, it is whether the visa should be refused or cancelled or, as the question is framed in paragraph 7(a), “… whether a non-citizen should forfeit the privilege of being granted, or of continuing to hold, a visa”. Where a visa has been the subject of mandatory cancellation under s 501(3A), the question is determined by s 501CA i.e. should the decision to cancel the visa be revoked?
[24] [2015] FCAFC 47; Kenny, Wigney and Beach JJ
[25] [2015] FCAFC 47 at [54]
[26] See authorities at above
In answering these questions, regard must be had to the considerations set in Part A, B or C as relevant. Those considerations that are determined to be primary considerations are identified. Other considerations must also be taken into account. Although other considerations are listed in paragraphs 10, 12 and 14 in relation to Part A, B or C as appropriate, each of those paragraphs makes it clear that a decision-maker is not limited to those other considerations and may consider any that are relevant. Determining other considerations that are relevant brings us back to the subject matter of the Migration Act, its object and underlying policy.
Although the ultimate question to be posed and answered differs under paragraph 7 of Direction No. 55 from that posed under paragraph 7 of Direction No. 65, the process of reasoning does not. It was not enough to assess the primary and other considerations under Direction No. 55 and make a judgment whether each favoured or told against refusal or cancellation of a visa and then place each in a balance to decide whether the visa should be refused or cancelled. Under Direction No. 65, it is still not enough. The ultimate question posed under s 501 is whether the discretion should be exercised to refuse or cancel a visa. That requires an assessment of the primary and other considerations as required by Direction No. 65 but, in order to answer the ultimate question, an assessment of all relevant matters in light of the subject matter of the Migration Act, its object and underlying policy.
Direction No. 65: Part B and refusal of application for visa
Part B of Direction No. 65 applies to a decision whether to refuse an application for a visa. We will expand on these later in these reasons but, in summary, the primary considerations are threefold:
“a) Protection of the Australian community from criminal or other serious conduct;
b)The best interests of minor children in Australia;
c)Expectations of the Australian community.”[27]
The secondary criteria:
“… include (but are not limited to):
a) International non-refoulment obligations;
b) Impact on family members;
c) Impact on victims;
d) Impact on Australian business interests.”
[27] Direction No. 65 at [11(1)]
Direction No. 65 expands upon each of these criteria and we will return to it later in these reasons.
BACKGROUND
In this section of our reasons, we will set out the facts that are either not in dispute or that we have found after hearing Mr Maikantis’s oral evidence and that of his wife, Mrs Philothea Maikantis, his daughter, Mrs Spiridoula Ahimastos, his son Mr Nickolaos Maikantis, his mother, Mrs Spiridoula Maikantis and that of consultant psychologist, Mr Tim Watson-Munro, as well as having regard to the written evidence. We will set out the facts by reference to the years in which they occurred.
Early life
Mr Maikantis was born in Greece and attended school until he was 11 years of age. He was functionally literate in Greek and remains so. After leaving school, Mr Maikantis worked on a farm for two years and then worked at a clothing factory in Greece.
When he came to Australia, he worked for 18 months on the assembly line at General Motors Holden. He then became a machinist at a clothing factory for a year before obtaining work at the Apex Metal Factory. Mr Maikantis remained at the Apex Metal Factory for two years but secured work in other factories when it closed down. He continued to work in factories until 1978 and then opened a fish and chip shop with his wife, brother, parents and children. The family operated that business for two years. He then bought three trucks and delivered potatoes to fish and chip shops for approximately four years but had to stop that undertaking when pre-cut chips were introduced. Mr Maikantis then owned and operated a coffee shop for some 14 years.
At or about the time that he was working at the Apex Metal Factory, Mr Maikantis married. The wedding took place in 1968 and he and his wife will have been married for 50 years this year. When they married, they and Mr Maikantis’s parents lived together and continued to do so when their daughter and son were born.
Convictions
Mr Maikantis has been convicted of a number of offences. We will set them out and intersperse them with events that were happening in Mr Makaintas’s life:
Date of conviction
Court
Nature of offence committed
Offence
Sentence
1 September 1977
County Court of Victoria
Theft from a bakery.
Theft
2 years imprisonment.
Served approximately three months after remission for good behaviour etc and release on parole.
19 September 1979
Oakleigh Magistrates Court
Play/bet at unlawful game
Fined $100.
28 November 1979
Oakleigh Magistrates Court
Suffer gaming
Fined $80.
5 December 1979
Oakleigh Magistrates Court
ACT in conduct common gaming house
Fined $300.
9 September 1982
Springvale Magistrates Court
ACT in conduct common gaming house
Fined $500.
Suffer gaming
Fined $300.
Pay $13.50 costs
Mr Maikantis’s brother died following a motor vehicle accident during the course of the Ash Wednesday bushfires in February 1983. He felt that his brother’s death had a major impact on his life.
4 August 1983
Springvale Magistrates Court
Care/manage common gaming house
Fined $250.
Pay $10.40 costs.
16 November 1983
Oakleigh Magistrates Court
Found in common gaming house
Fined $100.
5 April 1984
Springvale Magistrates Court
Care/manage common gaming house
Fined $300.
11 October 1984
Springvale Magistrates Court
Use premises betting
Fined $1,000 default 40 days.
25 October 1984
Springvale Magistrates Court
Found in common gaming house
Fined $50.
5 September 1985
Oakleigh Magistrates Court
Suffer gaming
Fined $200.
14 May 1986
Dandenong Magistrates Court
Refreshment house – suffer gaming
Fined $500.
14 August 1986
Springvale Magistrates Court
Possess/keep contrivance of gaming (3 charges)
Fined $400 on each charge.
Pay $23 costs.
9 September 1986
Oakleigh Magistrates Court
Possess/keep contrivance of gaming
Fined $1,000.
Pay $15 costs.
8 October 1986
Springvale Magistrates Court
Possess/keep contrivance of gaming
Fined $500.
2 December 1986
Springvale Magistrates Court
Possess/keep contrivance of gaming (2 charges)
Fined $750 on each charge.
8 January 1987
Springvale Magistrates Court
Possess/keep contrivance of gaming (2 charges)
Fined $750 on each charge.
8 February 1988
Dandenong Magistrates Court
Possess liquor in refreshment house
Fined $100.
7 December 1988
Dandenong Magistrates Court
Permit amusement machine remain – no label
Fined $300.
Between 1989 and 1991, Mr Maikantis and his whole family travelled to, and remained in, Greece.
17 October 1991
Oakleigh Magistrates Court: heard ex parte
Suffer gaming
Fined $1,000.
18 November 1992
Melbourne Magistrates Court: heard ex parte
“Police ATT A/A & found males playing manilla [sic[28]]with money on table. Deft was playing, he bought business 5 days before & allowed gambling.”[29]
Suffer gaming
Gaming in public placeConvicted.
Fined aggregate of $250.
12 January 1994
Springvale Magistrates Court
Possess machine for gaming or betting
Convicted.
Fined $500.
Temporary Melbourne Casino opened on 30 June 1994.
24 November 1994
Dandenong Magistrates Court: heard ex parte
“Offender is part owner in premises, premises in an amusement café with machines for use by public, machine located and seized whilst being used without licence label displayed.”[30]
Permit play amusement machine without label
Convicted.
Fined $350.
Melbourne Casino opened on 8 May 1997.
Mr Maikantis’s father, who was an Australia citizen, died in 1999.
Mr Maikantis and his family travelled to Thailand in 2001 for a holiday.
06 February 2012
Dandenong Magistrates Court
Offence occurred on 22 March 2011 at Mulgrave.
Drive whilst authorisation suspended
Convicted.
Suspended from driving in Victoria for six months.Fined $1,500 as part of an aggregate order.
Court costs of $70.Offence occurred on 22 March 2011 at Mulgrave.
Use hand held mobile phone – vehicle moving
Fined $1,500 as part of an aggregate order.
Court costs of $70.Offence occurred on 23 March 2011 at Southbank.
Fail to state name and address
Convicted.
Fined $1,500 as part of an aggregate order.Court costs of $70.
Offence occurred on 23 March 2011 at Southbank.
Drive whilst authorisation suspended
Convicted.
Suspended from driving in Victoria for six months.
Fined $1,500 as part of an aggregate order.Court costs of $70.
Offence occurred on 29 March 2011 at Glen Waverley
Use hand held mobile phone – vehicle moving
Convicted.
Fined $1,500 as part of an aggregate order.
Court costs of $70.Offence occurred on 29 March 2011 at Glen Waverley.[31]
Drive whilst authorisation suspended
Convicted.
Suspended from driving in Victoria for six months.Fined $1,500 as part of an aggregate order.
Court costs of $70.Offence occurred on 12 May 2011 at Keysborough.[32]
Drive whilst authorisation suspended
Convicted.
Suspended from driving in Victoria for six months.
Fined $1,5000 as part of an aggregate order.
Court costs of $70.[33]Mr Maikantis was granted a social security pension in 2012.
30 September 2013
Melbourne County Court
In or about February 2009, Mr Maikantis had substantial gambling debts and needed, on his evidence, approximately $150,000. His friend needed $10,000 but did not want to pay high interest rates. Mr Maikantis undertook to obtain a loan for him and did so after asking his friend for the title deeds to his house. Relying on that title deed, he arranged a loan through a third party that left his friend with either $5,000 or $14,000 in hand and a debt of $240,000. The mortgage documents were forged although Mr Maikantis denies forging them and states that he signed documents without reading them because he was told to do that by the third party. The loan was obtained from a finance company, which would not have made it had it known that the loan application contained fraudulent documents and information.[34]
Obtain financial advantage by deception
12 months’ imprisonment.
Sentence suspended for 24 months under s 27 of Sentencing Act 1991.
14 February 2014
Heidelberg Magistrates Court
On 6, 9, 10, 19, 20 and 21 January 2013, Mr Maikantis would select iPhones and other phones and accessories and sign plans with Telstra or other businesses relating to those phones in the name of a legitimate business but one who had not authorised him to purchase the phones. In all, the phones were worth $22,656.00. He would then sell the phones for $500 each.[35]
Obtain property by deception
Convicted.
Community Correction Order for 12 months.Perform 120 hours of unpaid community work.
Be supervised by the Secretary.
Undergo a Problem Gambling Program and any other treatment and rehabilitation as directed.
Pay compensation $19,632.00
Obtain property by deception (7 charges)
Convicted.
Community Correction Order for 12 months.
Perform 120 hours of unpaid community work.24 April 2014
Prahran Magistrates Court
Medical report submitted providing details of Mr Maikantis’s health issues. Those details had not been available at the time of sentencing.[36]
Variation of Community Correction Order to delete unpaid community work.
7 November 2016
County Court of Victoria
Cultivate narcotic plant in commercial quantity: cannabis
54 months’ imprisonment.
Traffick drug of dependence
1 year imprisonment. 9 months of sentence concurrent
Contravene Community Corrections Order
3 months’ imprisonment concurrent.
Contravene suspended sentence order
Proven.
Breach of sentence re convictions on 30 September 2013 for obtain financial advantage by deception
Breach of suspended sentence.
Sentence re-instated.
12 months’ imprisonment with 9 months of sentence concurrent.[37][28] We understand the reference to “manilla” to be a reference to manila poker.
[29] Exhibit 2 at 23
[30] Exhibit 2 at 22
[31] Exhibit 2 at 158-159 re Glen Waverley offences on 29 March 2011
[32] Exhibit 2 at 156 re Keysborough offence on 12 May 2011
[33] Exhibit 2 at 158-163
[34] Mr Maikantis’s oral evidence and see also Exhibit 2 at 15-16 and 19, 205-208 and 216-217
[35] Mr Maikantis’s oral evidence and see also Exhibit 2 at 13-14 and 164-165, 167-188
[36] Exhibit 2 at 189-190
[37] Exhibit 2at 192-193
Sentencing remarks of Judge Allen in relation to cannabis related offences
Mr Maikantis pleaded guilty to the charges that led to his convictions in the County Court of Victoria (County Court) on 7 November 2016. In passing sentence, Judge Allen set out the events that had led to Mr Maikantis’s being charged together with Mr Chung and Mr Tran:
“5. In relation to the charges concerning the cultivation of cannabis, for which each of you have pleaded guilty to, it can be said, by way of introduction, that between July 2014 and January 2015 the three of you, together with others, were engaged in what can be described as a business of cultivating and trafficking cannabis on a very large scale. There is no actual evidence before me of trafficking, per se; although you, Mr Tran, have pleaded guilty to a charge of trafficking, as I understand it, on the basis that the cultivation in which you were involved was for the purpose of trafficking. This cannabis was cultivated as part of a joint criminal enterprise, in which each of you had separate and distinct roles. The joint criminal enterprise included the following activities:
i.the procuring of rental properties for the purpose of cultivating cannabis.
ii.arranging for the inspection of these properties to determine their suitability for that purpose;
iii.the payment of rent and bonds;
iv.the setting up of the properties with hydroponic equipment;
v.illegal electrical bypasses;
vi.planting cannabis plants in those properties;
vii.the arranging of crop sitters, as well as, the arranging for managers;
viii.dealing with crop sitters;
ix.the arranging for the removal of the cannabis plants, that is, for their harvesting in preparation for sale; and
x.the arrangement for the properties to be rehabilitated and cleaned prior to being returned to their lawful owners at the end of the lease terms.
I emphasise that not each of you three men were involved in all of those activities. …
6. In relation to your particular roles … Mr Chung and Mr Maikantis, you became involved at a later stage, sometime in August 2014. The three of you were involved in procuring the rental properties …
7. Mr Maikantis, your main role was in procuring the rental properties. … There were various managers and crop sitters engaged by you, Mr Tran, as I’ve said, and with whom you, Mr Maikantis, had some involvement. …. As far as the rental properties were concerned, each of you had pleaded guilty on the basis that you were, each of you separately, directly involved in the 12 properties. It should be noted that those are not the same 12 properties in each case. There is a certain amount of overlap. No one has actually calculated how many properties, all together, are involved between the three of you.
8. Police eventually searched each of the rental properties in question. The police found, either, hydroponic cannabis cultivations underway; or, evidence that the property in question had previously been used for such purposes. Each of the properties exhibited limited signs of habitation and, in each of them, all or at least most of the rooms in the buildings had been set up for highly sophisticated hydroponic cultivation. Each property in question included storage facilities for hydroponic equipment and supplies, and the like. This was clearly a carefully planned and manage, sophisticated hydroponic cultivation business. Investigations eventually revealed that each of the properties had been leased for this purpose, for periods ranging between six and 12 months. Nearly all of the properties were residential properties throughout the suburbs of Melbourne. … Mr Maikantis, in relation to the 12 properties in which you were involved, the police seized 901 cannabis plants weighing a total of just under 294 kilograms.
9. ‘The summary of prosecution opening’, which was tendered and marked Exhibit A, sets out in comprehensive detail the particular role each of you played and the details of evidence gleaned by investigation; particularly, the analysis of the relevant telephone intercept material. … Exhibits C, D and E, respectively, were synopses in relation to the involvement or particular role that each of you carried out in the business. …
10-11. …
12. In relation to your role, Mr Maikantis, Exhibit D confirms that the Crown case against you is that your main role was as the procurer of the rental properties, which Mr Tran sought for the purpose of growing cannabis. You were named on the rental agreements for each of these properties. The telephone intercept material reveals that you were involved in collecting the rent for some of those properties and in the clean-up of the properties before they were returned to the landlords. The Crown conceded, as they were bound to do, that your involvement means that you are significantly less culpable than Mr Tran.
13. In relation to Charge 2 on your indictment, Mr Maikantis, this involved an agreement you made to sell 20 pounds of dried cannabis to Mr Fortakis for $2,450 per pound. The telephone intercept evidence revealed that Xuan Phuc Ha was to supply you with dried cannabis for $2,400 a pound. You were to make a very minor profit from this proposed arrangement; further evidence of your desperation to obtain money to gamble. As it turned out there is no evidence that your arrangement was ever concluded, or that the sale ever took place. You pleaded guilty to trafficking on the basis that you agreed to sell those drugs to Mr Fortakis.
14. …
15. As far as the arrests and chronology of the proceedings are concerned, as I understand it, Mr Maikantis, you were the first of the three offenders to be arrested. On 8 January 2015, the police executed a search warrant at your home in Wheelers Hill. It must have been a most distressing experience for your wife and your mother. They also searched your car and various items were seized. They searched other premises that were significant in your life; the Sports Bar in Clayton, where you spent your day’s playing cards and gambling; and, the offices of City Wide Real Estate, through which the premises had been rented and the gambling records of Crown Casino were obtained. These records revealed that, in the year 2014 alone, apart from any money that you wasted at the Sports Bar in Clayton, you lost $210,331 at the casino. You were interviewed by the police later that day, on 8 January 2015, after you had been arrested. To your credit, you made significant admissions throughout the course of the interview and expressed remorse. You were totally cooperative with the police. Amongst other things, you admitted renting all of the houses. You admitted that they had been rented, or re-rented, in connection with Mr Tran and Mr Chung. You claim that you were initially unaware that they were going to be used for cultivating cannabis, but admitted that you became aware of that and continued to remain involved. You admitted organising and paying for the clean-up of properties and paying the rent for the houses. You said to the police that your motive for being involved in this way was, quote, ‘… to make a bit of money.’ You told them that you received somewhere between $800 and $2,000 a month for what you did. You admitted that you had, quote, ‘… done the wrong thing’, and explained that you were, quote, ‘desperate for money because I’m a gambler.’ …
16-26. …
27. In relation to your [Mr Maikantis’s] prior convictions, I accept Mr Saunders’ submission that they must be seen in the context of dishonesty and gaming. It is noted that you have no prior convictions in relation to drug offending and that your prospects of rehabilitation, in relation to any offending, are of course dependent upon you finally, at this late stage of your life, curing your gambling addiction.
28. Mr Saunders conceded that your offending was serious, in light of the fact that it took place over approximately six months and involved a large quantity of cannabis. He conceded that sentencing principals [sic] of general deterrence, just punishment, and denunciation were important factors which resulted in an inevitable sentence of imprisonment.
29. Mr Saunders referred to the psychological report of Mr Newton … I have considered that report carefully and I accept, on the whole, Mr Newton’s findings and observations. Mr Newton found, upon testing you carefully, as he always does, that you are experiencing what he describes as ‘noteworthy anxiety’, and that you also reported ‘noteworthy depressive symptoms’. Mr Newton reported that that these symptoms were significantly worse by September 2016, than when he had previously seen you in May 2015. As I understand it, it would seem that your symptoms of anxiety and depression are situational. I must say, for a man of your background, your health problems, and your family circumstances, to find yourself where you are, it is no surprise at all that you are extremely anxious and depressed; so would I be. I do not mean to play down the severity of those symptoms by saying that. I acknowledge that they are serious. Not surprisingly, Mr Newton also found that you have a, ‘history of uncontrolled gambling behaviour, dating from the early 1970s’. Mr Newton referred to your medical problems, your physical problems, your physical illnesses, which I will refer to in a moment, and your psychological difficulties and said:
‘Mr Maikantis’ chronic medical problems and psychological difficulties which he suffers are of such severity that they have already resulted in significant difficulties coping with the custodial environment. … The rigors of a custodial penalty would continue to weigh upon Mr Maikantis in a particularly onerous fashion, and would continue to cause him considerable distress over and above the usual hardship that would be experienced by an individual in custody.’
I accept and take into account Mr Newton’s findings.
30. Mr Saunders relied upon the medical report of your general practitioner, Dr Kounnas. Dr Kounnas says that your medical problems which include type 2 diabetes, otherwise known as myelitis, which has been difficult to control. Dr Kounnas had referred you to an endocrinologist for specialist treatment. Dr Kounnas says that your other major problem is that of rheumatoid arthritis; arthritis which is zero positive, and which requires various forms of medication to control. This medication has an adverse effect on the control of your diabetes. Finally, your general practitioner describes you as suffering from recurrent infections in your legs and right leg ulcer. By way of summary, your general practitioner, who knows not you only but your wife and your mother, and has treated you for 35 years, stated the following:
‘The stress of being in a prison setting would exacerbate both his type 2 diabetes, as well as his rheumatoid arthritis. It would also make his complication of diabetes, such as neuropathy, and the neuropathy more unstable because of the stress factors involved in him being in a hospital system.’
I believe what is meant by ‘hospital system’ is ‘prison system’. I also received the medical evidence of your 93-year of mother’s serious health difficulties.
31. Mr Saunders informed me of your personal history, of which I will summarise. You are now 69 years of age; you will turn 70 in April. You were born in rural Greece. You grew up on a small farm in circumstances of poverty. You had limited education, leaving school at grade 5 because you needed to help your parents on the family farm. Mr Newton has described your level of literacy as rudimentary literacy in Greek, and basic rehabilitation skills, you obtained employment originally in an automobile factory where you remained for some years. Afterwards, you undertook various forms of factory work. Until most recently, you were engaged as a delivery driver. You retired about six years ago and have since then been on the pension. You were married in 1968. This period of incarceration represents the first time you and your wife have been separated. You have two adult children. As I understand it, your elderly 93-year old mother had been living with you and your wife, and you significantly involved in her care and management.
32. Mr Maikantis, your counsel asked me to take into account the following matters by way of mitigation. First, your plea of guilty, I accept that it has substantial weight in the circumstances of this case. It has avoided a lengthy and expensive trial. I regard it as being an early plea. I accept that it is evidence of general remorse on your part, an acceptance of responsibility, as well as, your willingness to facilitate the course of justice. I take into account what the authorities say about the sentencing of elderly prisoners, particularly where they suffer ill health. I accept, as was indicated in the case of Gordon, that, in particular, those circumstances justify a more substantial gap between the non-parole period and the head sentence that I might have otherwise imposed in the objective circumstances of this case. [1]
[1] R v Gordon [2012] QCA 334 at [40]
33. I accept, consistent with the principles at paragraph 20 in Markovic, that whilst the circumstances of your family are not exceptional, imprisonment will weigh more hardly upon you; that is, it will be an additional burden for you to sit in gaol, knowing that your wife and mother struggle in your absence, without you being there to assist them in the way that you normally do. [2]
[2] Markovic v R [2010] VSCA 105; 30 VR 589; 200 A Crim R 510
34. I accept that you have excellent prospects of rehabilitation, in relation to being involved in further drug offending. Having served what will be a lengthy prison sentence for someone your age, I am satisfied, in relation to the principle of specific deterrence, that you will be deterred from engaging in this sort of conduct again. I can only hope, however, that your prospects of avoiding crime altogether will be minimised by you putting an end to your gambling addiction.”[38]
[38] G documents; Attachment B
Having regard to the 669 days he spent in custody following his arrest on 8 January 2015 and continuing until he was sentenced on 7 November 2016, Mr Maikantis was released from gaol on 6 July 2017 when he first became eligible for parole and was immediately taken into immigration detention.
CONSIDERATION
Primary considerations
Part B begins with three considerations that are characterised as primary considerations: protection of the Australian community from criminal or other serious conduct; the best interests of minor children in Australia; and the expectations of the Australian community. Each of these considerations is developed in the remainder of paragraph 11 of Direction No. 65.
A. Protection of the Australian community
The first primary consideration relating to the protection of the Australian community begins with the general statement:
“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. There is a low tolerance for visa applicants who have previously engaged in criminal or other serious conduct. 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.”[39]
[39] Direction No. 65; [11.1(1)]
A.1 The nature and seriousness of Mr Maikantis’s conduct to date
Paragraph 11.1.1 goes on to expand on the nature and seriousness of the non-citizen’s offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
“a) …;
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)…;
d)…;
e)The sentence imposed by the courts for a crime or crimes;
f)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
g)The cumulative effect of repeated offending;
h)…;
i)…”
A.1.1 Consideration
Mr Maikantis has a long history of offending behaviour that is reflected in the convictions recorded against him. Apart from a conviction for theft in 1977, it might be thought that the charges between 1979 and 1994 were relatively minor. They all relate to gambling. For the most part, they relate to his permitting gambling on his premises in some form or other or to his possessing a machine or contrivance for gaming. He was convicted for each offence but fined rather than sentenced to a term of imprisonment. The fines might appear relatively low by modern standards but were not so insignificant when viewed in the context of wages and standards at the time.[40] What is more worrying is the regularity of his convictions. We accept that he had and has a gambling addiction. That is suggested by the regularity of the convictions but is supported by his own evidence and that of Mr Tim Watson-Munro, a Consultant Psychologist.[41] It is also supported by the fact that his convictions for gambling type offences stopped abruptly with the opening of the temporary Casino.[42]
[40] Taking as an example the monetary value of the $100 fine imposed in 1979 would have been $455.80 in 2016 according to the Inflation Calculator prepared by the Reserve Bank of Australia: Exhibit B
[42] Allowing for investigation, laying the charge and the court processes, we think it reasonably likely that his last conviction on 29 November 1994 for permit play amusement machine without a label occurred earlier in the year and before the opening of the lawful temporary Casino in Melbourne.
What the convictions also show, however, is that he not only gambled himself but provided facilities in the form of premises or, on some occasions, machines or contrivances to assist others to gamble and persisted to do that despite being charged and convicted on a number of occasions. Gambling was not consistent with the community view as reflected in the law at the time but Mr Maikantis appears to have thought himself above that law.
His driving convictions again show a disregard for the law that is consistent with his thinking he is above it. He was convicted and sentenced for each of the offences in an aggregate sentence on 6 February 2012 but there were seven of them committed on four days: 22, 23 and 29 March 2011 and 12 May 2011. Apart from one instance of failing to give his name and address, they related to his driving while his licence was suspended and his using a mobile phone while his vehicle was moving. The circumstances of these offences were not explored at the hearing and we can take them no further.
There is a considerable gap of almost eighteen years in Mr Maikantis’s record of convictions between 1994 and the driving convictions in 2012. We are satisfied that his gambling continued throughout these years and, by 2009, he had amassed substantial gambling debts. He then had a need for money to pay those gambling debts and that led to a change in nature of the offences with which Mr Maikantis was charged and has been convicted. We have summarised the first of those offences – obtain financial advantage by deception – in the table of convictions above. Mr Maikantis pleaded guilty to that offence and he did not seek to resile from his plea, which related to $150,000 of the total sum of $240,000 obtained by using his friend’s title deed.[43]
[43] Exhibit 2 at 357
Mr Maikantis did say, though, that he thought that he was a victim of the others involved in the deception. He was a victim, he said, because he did not use his brain and he cannot read. They told him to do these things and that they were all right. At the same time, he was being threatened to repay gambling debts. That is supported by reports Mr Maikantis made to the police over the years between 1995 regarding the theft of a motor vehicle in 1995, a burglary and theft at a holiday house in 1999, theft from a motor vehicle in 2005 and 2006, criminal damage to his motor vehicle in 2010, which post-dates the deception but pre-dates the charges.[44] Having said that, we do not understand Mr Maikantis to be attempting to walk away from responsibility for his own actions. He accepts that he used the title to his friend’s house to obtain dishonestly money for himself as well as his friend.[45]
[44] Exhibit 2 at 29-34
[45] In making findings of fact in an administrative tribunal, care must be taken not to make any that contradict the factual finding necessary to support the conviction. That is consistent with the principles expressed in Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 that we are not permitted to make any findings of fact that are inconsistent with: “… at least the essential facts found by a sentencing judge in the course of his or her deliberations concerning sentence and upon which the sentence is based must be accepted by the Tribunal. The most obvious example of such a fact is a finding as to the circumstances of the commission of the offence. …”: [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349 at [40]; 244; 358 per Branson, Lindgren and Emmett JJ
The criminal damage to his car in 2010 occurred after an argument he had over an outstanding debt of $75,000 that Mr Maikantis owed to another.[46] That was not explored at the hearing but it is consistent with his evidence that he continued to gamble throughout the years and we so find.
[46] Exhibit 2 at 29
The convictions for obtaining the mobile phones and related accessories also arose out of Mr Maikantis’s need for money to pay his gambling debts. We accept his evidence that, whatever money he had to hand, he gambled be it large or small amounts. His need for money also led to his becoming involved in the cultivation and trafficking of cannabis. They were offences of significant seriousness as reflected in the effective cumulative sentence of 60 months’ imprisonment imposed upon him. The seriousness is underlined by the imposition of a prison term on a man who was then 69 years of age and who had been held in remand for approximately 22 months at the time of his sentencing.
We are satisfied that the seriousness of Mr Maikantis’ offending has increased over the years. Apart from his first conviction for theft in 1977, the offences in the earlier years related to his own gambling and in providing facilities for others to gamble. Those gambling offences did not harm those who did not choose to go to premises where he committed the offences. Putting aside the driving offences, the nature of the offences he has committed over the past decade has changed. They have involved either his deceiving others in order to obtain money for gambling or his engaging in the cultivation and trafficking of drugs for monetary gain. In either case, his offences have brought harm to others by his deception or have had the potential to bring harm to those who purchase the illicit drugs. They must, we find, be regarded as serious offences and as indicative of his becoming engaged in more serious offending as the years have gone by.
A.2Risk to the Australian community should the non-citizen commit further offences or engage in serious conduct
Paragraph 11.1.2 of Direction No. 65 states:
“(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 addition, decision-makers should have regard to the principle that 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.
(3)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:
i.information and evidence on the risk of the non-citizen reoffending; and
iievidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken); and
iii.the duration of the intended stay in Australia.
(4)Decision-makers should consider the risk of harm in the context of the purpose of the intended stay, and the type of visa being applied for, including whether there are strong or compassionate reasons for granting a short stay visa.”
A.2.1 Consideration
Having considered the nature of the offences and the evidence given by Mr Maikantis and Mr Watson-Munro in particular but also by Ms Carla Lechner, a Clinical Forensic Psychologist,[47] we are satisfied that the fundamental motivation for Mr Maikantis’s behaviour is firmly rooted in his gambling addiction. Until 2014, he had done nothing to address his behaviour and it had not come to the attention of the court system or his family. In 2014, it did come to the attention of the Heidelberg Magistrates Court and, as part of the sentence it imposed on convicting him of obtaining property (phones) by deception, it required him to undergo a Problem Gambling Program. On the basis of his evidence, we find that Mr Maikantis did attend some sessions addressing his gambling. The extent of his efforts is unclear but, whatever they were, they all came to an end when he was arrested in January 2015 and held in remand.
[47] Report at Exhibit 2 at 240-248
The Local Plan Agreement – PPP Reception signed by Mr Maikantis on 9 July 2016 showed that he agreed to meet various standards of behaviour but that he had not agreed to attend any external programs regarding his gambling addiction.[48] The Sentence Management Panel met on 10 November 2016 after he was sentenced and considered the placement of Mr Maikantis in the prison system. In the course of its discussion, it noted that “… Vasilios reported that he is not willing to do programs while in prison as he stated that he is too old for that stuff.”[49]
[48] Exhibit 2 at 86
[49] Exhibit 2 at 122
Mr Maikantis was received into Middleton, which is part of the Loddon Prison Precinct, on 16 November 2016.[50] Due to his heart problems, he was not required to work and, on 19 February 2017, was reported as having suffered a mild stroke. His case worker asked him on 20 February 2017 whether he had begun a Gambling Help Program. He or she noted that he had “… said that he was completely unaware of any need for it.”[51] His response is borne out by the Local Plan Agreement – Middleton that Mr Maikantis signed on 21 November 2016. He did not tick the box that he would attend Gamblers Help info/Programs.[52] Mr Maikantis’s case worker strongly suggested that he should and also raised the possibility of his undertaking an English course as his English was poor. The case worker noted that he had said that he was too old and did not see any need to do that. The case notes reveal that Mr Maikantis took steps to do his own washing, cooking and housekeeping as the months went by.
[50] Exhibit 2 at 76
[51] Exhibit 2 at 79
[52] Exhibit 2 at 85
This was Mr Maikantis’s attitude to his addressing his gambling addiction in 2016. Since then, he has had time to reflect on his addiction and the effect that it has had on his life, his family and others whom he has deceived. He lost the family home in 2003 due to his accumulation of gambling debts. His addiction has led to his committing the offences of which he has been convicted and it has led to the Minister’s decision to refuse his application for a visa. He has come to the view that gambling is out of his system but acknowledged to Mr Watson-Munro that he requires treatment and is motivated for this to occur.
Mr Watson-Munro identified that Mr Maikantis has significant symptoms of depression and anxiety as well as low self-esteem and had done so for many years. His gambling has been a form of escape from his underlying psychopathology. If he were to be permitted to remain in Australia and if he were to continue to gamble, we are satisfied that Mr Maikantis would be a serious risk of committing further serious crimes in order to maintain his habit. We are, however, satisfied that the risk of his continuing to gamble is low. While worrying that Mr Maikantis has not sought treatment for his issues in the past, we are satisfied that he is now aware of his problems and of the need for him to address them. He has talked with his family about this and his daughter, Mrs Spiridoula Ahimastos, has spoken of the shame and remorse that her father feels.[53]
[53] Exhibit 1 at 95
As important as his recognition of his addiction and its consequences is and of his will to address that addiction, what is more important is that his family now knows of them. His family knows the full extent of his addiction. We are satisfied that the members of his family have been aware that he has gambled in the past to some extent but that they have had no knowledge of the extent of it. As unusual as this may seem to some people, we accept Mr Watson-Munro’s evidence that it is not unusual. He has assessed in excess of 3,000 people in his career and is well-experienced. Now that his family knows, we are confident that they will make sure that their son, husband and father walks a very straight and narrow path in life. Having read statements and heard evidence from his 95 year old mother, his wife, daughter and son, we find that they have formulated plans to make sure that Mr Maikantis will not gamble in the future. As his son said, the family made the mistake of giving his father too much autonomy. In future, he will be given an allowance that covers only his everyday needs. The family will monitor and track his movements and do all in their power to keep him from accessing his own funds.[54] If that requires the imposition of a curfew, that is what will be imposed, his daughter said, and we accept that is what she, his wife and his mother will impose.
[54] Exhibit C
Should Mr Maikantis stray from the path the family wishes to put him upon, they are aware that the consequences for him and them will be likely to be dire. In making this finding, we are not putting responsibility for Mr Maikantis’s future in the hands of his family. What we are saying is that he is a man who needs the support of his family and only now that they know the psychological conditions and addiction from which he suffers can they properly support him. Part of that support will be to keep Mr Maikantis away from opportunities to gamble and the means to gamble. Another part will be to ensure that he follows the Treatment Plan prepared by Mr Watson-Munro.[55] That entails his undergoing psychotherapy involving a Cognitive Behaviour Therapy model with a Psychologist. Mrs Ahimastos has already made an appointment with a Greek speaking psychologist.[56] She will also take him to meetings of Gamblers Anonymous regularly. That is another part of the Treatment Plan recommended by Mr Watson-Munro.
[55] Exhibit B
[56] Exhibit G
For his own part, Mr Maikantis has demonstrated that he can keep away from gambling in prison which is an environment in which a person may play cards. Mr Maikantis, we find, did pass a lot of his time in playing cards[57] but we find on the basis of his evidence, which is consistent with the notes of his case worker to the effect that he did not commit any breaches, that he has managed to avoid gambling from his being held in custody from January 2015 until his release on parole on 27 October 2017.
[57] Exhibit 2 at 65
In summary, we are satisfied that the risk of Mr Maikantis’s committing further serious offences of the sort he has committed in the past is low.
B.Best interests of minor children in Australia affected by the decision
There are no minor children in Australia whose interests are relevant in this case.
C.Expectations of the Australian community
Paragraph 11.3(1) of the Direction states that:
“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 refuse the visa application of such a person. Visa refusal 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. Decision-makers should have due regard to the Government’s views in this respect.”
C.1 Consideration
Mr Maikantis has breached the expectations of the Australian community. His using the title deed to his friend’s house in order to obtain funds to pay gambling debts is contrary to any spirit of mateship that might be thought to be part of the Australian psyche. Engaging in the cultivation and trafficking of a narcotic drug in order to obtain money to repay gambling debts incurred as a result of his addiction is to place his own needs and wants above the safety of other members of the Australian community who seek it for their own addictive needs or otherwise.
Feeling let down by a breach of expectations is one thing but acting without compassion is another. Mr Maikantis has been his own worst enemy. He presents as a naïve, stubborn and proud man, who has struggled throughout his life in Australia with his lack of education and command of the English language. He has not sought assistance either from his family or otherwise when he should have. As his priest, Father George Athanasiadis wrote on 2 December 2016, Mr Maikantis has participated in many of the Church’s fund raising functions and contributed generously to its needs. He has also gladly and willingly supported people in emotional and financial need. When the Church had such people, Father Athanasiadis and the members of the Church knew that Mr Maikantis was there for them. This is the other side of Mr Maikantis and is consistent with a proud man who would always want to be there for everyone, including his family. We are satisfied that the Australian community would want us to recognise the good that Mr Maikantis has done as well as the bad and would want us to give him a second chance.
Secondary considerations
Paragraph 12 of Direction No. 65 requires us to take into account other relevant considerations. Those considerations include, but are not limited to, international non-refoulement obligations, impact on family members, impact on victims and impact on Australian business interests. International non-refoulement obligations do not arise in Mr Maikantis’s situation and nor does the impact of refusal of a visa on Australian business interests for he is neither employed nor engaged in business endeavours in Australia. What are relevant are those in paragraphs 12.2(1) and 12.3(1) being the impact on family members and the impact on victims.
A. Impact on family members
Paragraph 12.2(1) of Direction No. 65 states:
“Impact of visa refusal on immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely”.
A.1 Consideration
If Mr Maikantis were not permitted to remain in Australia, I accept the evidence of the members of his family that they would not return to Greece with him. His daughter, Mrs Ahimastos, is married and she and her husband have their own business in Australia. His son, Mr Nickolaos Maikantis, also has his own business in Australia. He cannot leave Australia as he has put all of the savings that he had earmarked for the purchase of a house into funding his father’s legal costs as well as borrowing. In all, he has committed some $140,000 to those costs. Mr Maikantis’s wife and his mother have both made their lives in Australia since the 1960s. Neither is in good health and do not intend to return to Greece where it is unlikely that the same standard of public health care would be available to them.
It would not be an easy decision for any of the family to make. Apart from Mrs Ahimastos, the family members live together. Mr and Mr Maikantis have been married 50 years next month and, in all of that time, his mother has lived with them. They all help each other and, when Mr Maikantis is missing from their home, as he has been since January 2015, his mother and wife find it very difficult to cope even though his children are very attentive to their needs.
B.Impact on victims
Paragraph 12.3(1) states:
“Impact of a decision to grant a visa 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 can be disclosed to the non-citizen being considered for visa refusal.”
B.1 Consideration
We have little evidence regarding the impact on the victims of Mr Maikantis’s crimes. With the mobile phone deception, the victims were corporate. Those of the cultivation and trafficking cannot be identified other than in general terms as those who use cannabis. The victim of whom we do know something is his friend, who allowed him to have the certificate of title to his house. He was placed in a position of owing a considerable sum of money to a lending institution. Whether he was able to obtain any relief is not known to us.
Decision
Having regard to all of the matters that we have considered in these reasons, we have decided that Mr Maikantis’s application for a visa should not be refused. While he has a lengthy criminal history and has committed gradually more serious crimes, we find that the risk of his reoffending is low for the reasons we have given above. We also find that he is not in good health. He is suffering from diabetes and has suffered a stroke and a heart attack. Although he is only 71 years of age, he presents, behaves and sees himself as an old man. He is prepared to undergo the Treatment Plan prepared by Mr Watson-Munro and his family is intent on ensuring that he does so and that he is not given the opportunity to revert to his former ways. In the 53 years since he came to Australia, Mr Maikantis has done much that is bad but he has also done good things for members of the Greek community and that also needs to be recognised. At this late stage of his life, we find, there is a very good chance that he will, with the assistance of his family, overcome his gambling addiction and so his offending behaviour.
For these reasons, we set aside the decision of the delegate of the Minister dated 24 October 2017 and remit the matter to the Minister with a direction that Mr Maikantis’s application for a Bridging E (Class WE) visa not be refused under s 501 of the Migration Act.
| I certify that the preceding sixty four (64) paragraphs are a true copy of the reasons for the decision herein of Deputy President S A Forgie and Mr A Maryniak QC, Member |
..........[sgd]......................................................
Associate
Dated: 19 January 2018
| Date of hearing: | 15 January 2018 |
| Counsel for the Applicant: Solicitor for the Applicant: | Mr Guy Gilbert S.C. Mr Dennis Shen |
Solicitor for the Respondent: | Mr Zeng He |
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