Re Rabino and Minister for Immigration and Border Protection

[2016] AATA 999

Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999 (7 December 2016)

Division:  GENERAL DIVISION

File Number:  2016/2425

Re:  DOUGLAS RABINO

APPLICANT

And:MINISTER FOR IMMIGRATION AND BORDER PROTECTION

RESPONDENT

DECISION

Tribunal  Deputy President S A Forgie

Date  7 December 2016

Place  Melbourne

The Tribunal decides to:

(1)set aside the decision of a delegate of the Minister dated 26 April 2016 not to revoke the original decision dated 6 July 2015; and

(2)substitute a decision that the original decision dated 6 July 2015 be revoked.

……[sgd]……………….

Deputy President

CATCHWORDS – MIGRATION – revocation of mandatory visa cancellation for failure to pass character test – whether another reason why decision to cancel visa should be revoked – expectations of the Australian community – determined by reference to Principles in Ministerial Direction No. 65 – decision set aside and substituted with decision to revoke visa cancellation.

LEGISLATION

Migration Act 1958: ss 499, 499(1), 499(2), 499(2A), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA(1), 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii)

CASES

Comcare v Martin [2016] HCA 43
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Haoucher v Minister for Immigration & Ethnic Affairs [1990] HCA 22; (1990) 169 CLR 648; 19 ALD 577; 93 ALR 51; 64 ALJR 357; 11 AAR 508
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40, (1986) 162 CLR 24, 66 ALR 299, 60 ALJR 560
Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197, (1999) 91 FCR 234, 56 ALD 349
Minister for Immigration v Jia Legeng [2001] HCA 17, 205 CLR 507, 75 ALJR 679, 65 ALD 1, 178 ALR 421
R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62, (1979) 144 CLR 45, 27 ALR 321, 54 ALJR 94
Re Do and Minister for Immigration and Border Protection [2016] AATA 390
Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) [1979] AATA 179, (1979) 2 ALD 634
Re Visa Cancellation Applicant and Minister for Immigration and Citizenship [2011] AATA 690
Uelese v Minister for Immigration and Border Protection [2016] FCA 348, (2016) 69 AAR 8

OTHER MATERIALS

Direction No. 65; pars 6.1, 6.1(1), 6.1(3), 6.2(1), 6.3, 6.3(1), 6.3(3)-(6), 6.3(7), 7(1), 8(1), 8(2), 8(3), 8(4), 8(5), 13.1(1), 13.1(2), 13.1.1, 13.1.2, 13.2(1), 13.2(2), 13.2(4), 13.3(1), 14(1), 14.2(1), 14.3(1), 14.4(1), 14.5(1)

REASONS FOR DECISION

1. On 6 July 2015, a delegate of the Minister for Immigration and Border Protection (Minister) wrote to Mr Douglas Magalhaes Rabino advising him that his Class BB, Subclass 155 (Five Year Resident Return) visa had been cancelled on that day (original decision). It had been cancelled under s 501(3A) of the Migration Act 1958 (Migration Act), which provides that the Minister must revoke a visa in certain circumstances. Under s 501CA(4), Mr Rabino made representations to the Minister asking him to revoke the decision to cancel his visa. On 26 April 2016, a delegate of the Minister decided not to revoke the cancellation decision. I have decided to set aside that decision and to substitute a decision that the original decision dated 6 July 2015 be revoked. The effect of my decision is that Mr Rabino continues to be the holder of a Class BB, Subclass 155 (Five Year Resident Return) visa.

LEGISLATIVE FRAMEWORK

1. Section 501(3A) of the Migration Act provides that:

   “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

   (ii)…; and

   (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.”

1. Section 501(6) sets out eleven sets of circumstances in which a person does not pass the character test. The first, set out in s 501(6)(a), is that the person has a substantial criminal record as defined by s 501(7). Section 501(7) sets out six sets of circumstances in which a person is taken to have a substantial criminal record. Only those in s 501(7)(c) is relevant in this case. It provides that a person has a substantial criminal record if “the person has been sentenced to a term of imprisonment of 12 months or more”. 

1. Section 501CA is relevant if the Minister has made a decision, known as the “original decision”, under s 501(3A) to cancel a visa that has previously been granted to a person.[1] Section 501CA(4) provides that:

   “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.”

   [1] Migration Act; s 501CA(1)

1. In the circumstances of this case, s 501CA(4)(b)(i) cannot apply as Mr Rabino cannot pass the character test set out in s 501(7) as he has been sentenced to a term of imprisonment of 12 months or more. The only relevant provision is that in s 501CA(4)(b)(ii). It has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection:[2]

   “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. …”[3]

   [2] [2016] FCA 1166

   [3] [2016] FCA 1166 at [38]

BACKGROUND

1. Mr Rabino’s circumstances come within those specified in s 501(7)(c) because he was, on 14 August 2013, sentenced by Estcourt J in the Supreme Court of Tasmania to a term of four years’ imprisonment. The sentence was imposed after he and his co-defendant, Mr Rodney Allan Hinch, were convicted on the same day of one count of aggravated armed robbery that took place on 22 June 2013. He had earlier pleaded guilty to that offence.

1. There was no dispute between the parties regarding certain matters forming the background to the decision I must review.  In light of that and on the basis of the evidence, I have made the findings of fact set out in this section of my reasons.

1. Mr Rabino was born in 1991 in a small city in Bahia in Brazil.  He never knew his father who was murdered before he was born after being robbed at gunpoint.  Mr Rabino spent his first eleven years in Brazil with his mother.  They would move from place to place while his mother worked at various jobs.  They stayed with various relatives during this time.  Mr Rabino would work at bars and kiosks when he was a child in order to earn money from tourists.  His father was Argentinian but he has had minimal contact with his father’s family other than being a “Facebook friend” of his paternal aunts and cousins. 

1. When he was aged about seven years, Mr Rabino’s mother, Ms Regina Magalhaes, started dating his step-father, Mr Dean Clover, but it was some time before Mr Rabino was introduced to him.  In due course, his mother told him that they would be moving to Australia but it took some time and he was 11 years of age before they obtained the visas.  Initially, he was anxious about the move but quickly settled into life in Australia.  He had completed Grade 3 in Brazil and started in Year 3 at primary school in Australia in January 2003.  At the time, neither he nor his mother spoke any English but Mr Rabino picked up the English language and continued his schooling until part way through Year 7 at school in St Kilda.  He played sport and particularly soccer and Australian Rules football.  Although he was too young at the time to be a member of the Victorian Under 13’s State soccer squad, he had high hopes of becoming a member.

1. His schooling and his soccer were interrupted when his mother and step-father separated and they moved from St Kilda.  He and his mother moved to a women’s shelter where they stayed for two months before moving first to accommodation in Footscray for another two or three months.  They then moved to Altona.  During this period of four or five months, Mr Rabino did not attend school, play soccer or maintain his friendships with his friends in St Kilda.  Eventually, Ms Magalhaes and Mr Clover reconciled and they established a home in Altona.  Mr Rabino resumed school and he finished Years 7 to 9 at Altona Meadows before moving to Bayside Secondary College in Newport and completing his education to Year 12.  His mother and Mr Clover separated again after his brother was born in 2008.

1. Mr Rabino started working when he was 14 years and 9 months of age so that he could help his mother to cover their costs.  He worked after school, on weekends and on holidays at Prouds the Jewellers (Prouds) after applying for, and winning the job on his own merits.  For the first 12 months, he worked at the Melbourne CBD store and he then moved to the Prouds’ store at the Highpoint Shopping Centre, which was closer to his home.  In all, Mr Rabino worked for approximately six years at Prouds.  That included a period after he left school.  I find, on the basis of the evidence of Mr Dean Clover, that he was regarded as one of their best salespersons.  Mr Dean Clover works within the corporate structure under whose umbrella Prouds is operated.  Mr Rabino also worked at a butcher shop operated by one of his friends and his family.  He remained for four or five months but he did not like the work.  For about six months, he worked for Egans Office Removals (Egans).  At the time of the offence, he was not working.

SENTENCING JUDGE’S REMARKS

1. The sentencing Judge set out the circumstances in which he found the offence to have occurred:

   “On Thursday, 20 June 2013, the defendant, Hinch, travelled to Tasmania from Melbourne on the Spirit of Tasmania.  Upon arrival, he purchased a silver Ford Telstar in Devonport for $900, $550 of which had been provided by the defendant, Rabino.

   On Saturday, 22 June 2013, the defendant, Rabino, arrived in Tasmania via the Spirit of Tasmania from Melbourne and was collected by Hinch.  The two were known to each other as neighbours in Melbourne.  The sole purpose of their trip to Tasmania was to commit a previously planned robbery at the IGA supermarket at Branxholm where they believed the owner was rich and kept millions of dollars in a room.

   Prior to the defendant Rabino arriving, the defendant Hinch purchased a number of items for the robbery, namely:

   ·          A stainless steel kitchen knife

   ·          Plastic gloves

   ·          Two beanies which were made into balaclavas.

   The two defendants drove to Launceston where the defendant, Hinch, purchased a roll of duct tape in preparation for the robbery.  It seems the steel bar was a tyre lever that was already in the car when it was purchased.

   Sometime in the early afternoon both men drove to the Branxholm area and waited in bushland nearby for the day.  The defendant, Hinch, made two visits to the supermarket alone to survey it prior to the robbery.

   At about 6pm, they drove to the supermarket and parked their vehicle nearby.  They were wearing gloves, balaclavas and dark clothing.  They entered via an unlocked sliding door at the rear of the store.  The defendant, Rabino, was armed with a tyre lever and a knife and was carrying a large bag.  Upon being unable to force an internal door, behind which they believed was the large amount of money, they decided to hide in the storeroom and wait for the complainant, Frank Edwards, to finish doing the tills.  The defendant, Hinch, now had the tyre lever, Mr Rabino it seems having the good sense not to take the knife inside.

   The complainant could not see but was pushed by the back of his jacket to the door to the room containing the safe.  He unlocked it and stepped in, as he did, trying to shake the defendant, Hinch's grip. There was a struggle and the defendant, Hinch, struck the complainant several times to the back of the head with the tyre lever.  The complainant states that he heard a male voice say, "kill him, kill him" and the defendant, Rabino, punched the complainant to the head three or four times at full strength.  The complainant was knocked unconscious briefly and, after he woke, he opened the safe.  The defendant, Rabino, removed two cash tins containing $7000 as well as the float of $1700.  The defendant, Hinch, bound the complainant's hands and ankles with curtain wire and sticky tape.  The complainant was bleeding heavily from the head. The defendants fled in their vehicle.

   The complainant managed to free himself after a short period of time and raised the alarm with police.

   About 20km from Launceston the defendants' vehicle overheated and broke down on the side of the road.  A short time later a member of the public stopped and offered them a ride into Launceston.  This person was intercepted by police near Waverley at a police road block.  Both defendants were arrested at the scene and conveyed to Police Headquarters in Launceston after admitting immediately that they were responsible for the robbery.

   As a result of the injuries inflicted during the incident, the complainant was taken to the Launceston General Hospital and treated for head injuries.  He was kept overnight for treatment.  He sustained lacerations to his head and face which required 7 staples and 5 stitches.  There was also some swelling to the knuckles and palm of his right hand which required x-rays.  A CT scan was conducted of Mr Edwards' head, but no abnormality was detected.

   The seriousness of any injury is a factor in determining sentence and it is fortunate in this case that no major or long-term physical damage was suffered by the complainant.   Moreover it is fortunate that the complainant is a stoic individual who does not claim any victim impact beyond being suspicious of people who come into his shop and more suspicious of people generally.

   All property including the full amount of cash stolen, which was $8522.00, was recovered and the two defendants have been in custody since their arrest on 22 June 2013.”[4]

   [4] Exhibit 1, G documents; G8 at 63-65

1. Estcourt J described the background of each defendant and their relative roles in the robbery:

   “The defendant, Rabino, is 22 years old and has no prior convictions of any kind.  Mr Rabino came to Australia from Brazil 11 years ago and is well-educated and industrious and in good physical and mental health.  The commission of this crime is clearly completely out of character for him; however he does not say he was pressured into it.  The plan was suggested to him by the defendant, Hinch, and he thought about it ‘long and hard’ and decided to agree purely out of greed, reasoning that he could do one bad thing and gain some money and then revert to an honest life.

   The defendant, Hinch, is clearly the more culpable of the two men.  He is twice the defendant, Rabino’s, age and on his own admission he roped the defendant, Rabino, into the robbery plan and its commission.  The defendant, Hinch, came to Australia first, bought the vehicle to be used in the robbery, purchased the gloves, beanies, knife and duct tape and carried out the surveillance of the inside of the supermarket.  He laid in wait for the complainant and confronted him with the tyre lever and struck him with it hard, several times to the back of the head.  He did all the talking and he bound the complainant.

   The defendant, Rabino, was none the less a party to the planning, he knew that owner of the supermarket, would probably need to be subdued with violence and he fully participated in the actual robbery, carrying the tyre lever and the knife in the first instance and later punching the complainant to the heard three to four times with full strength, helping to subdue the complainant who was, I have noted, at one point rendered unconscious.  He took the money out of the safe and put it in a bag and he planned to share the money equally with the defendant, Hinch.  And along with the defendant, Hinch, he left the complainant bound and bleeding, dazed and concussed.”[5]

   [5] Exhibit 1, G documents; G8 at 65-66

1. He went on to refer to the level of remorse expressed by each of Mr Rabino and Mr Hinch:

   “I take into account that both defendants admitted their involvement to police at the first opportunity and pleaded guilty at the first reasonable opportunity.  I accept this as an expression of remorse, in particular I note that the defendant, Hinch, was apologetic to police and expressed concern about the condition of the complainant.  He said he regarded what he had done as cowardly and that he deserved to go to jail.  The Crown concedes that the tone and content of the defendant, Rabino’s record of interview with police is clearly indicative of implied and direct remorse on his part as well, and the Crown accepts that the immediate admissions of the defendants and their very early pleas of guilty are born of remorse.  This is therefore one of the clearest possible cases where both defendants are entitled, on well recognised principles of sentencing, to a significant discount on an otherwise appropriate sentence of imprisonment. … I have in the circumstances of this case adjusted each man’s sentence downwards in the order of approximately 20%.

   The relative involvement of the two defendants to which I have referred and the relatively young age of the defendant, Rabino, and his lack of any prior convictions at all, also justify, in my view, a differentiation between his sentence and that of the defendant, Hinch, both as to the head sentence and as to the respective non-parole periods.”[6]

   [6] Exhibit 1, G documents; G8 at 66

MR RABINO’S INCARCERATION

1. Mr Rabino served 24 months of his sentence at the Launceston Reception Prison.  That represented the length of his non-parole period.  Soon after he arrived, he was employed as a Wardsman and retained that employment until he was transferred to a Victorian prison.  His work was based in the laundry and he was ultimately placed in charge of the laundry.  The Launceston Reception Prison did not have rehabilitation programs meaning that Mr Rabino could not participate in them.  The Tasmanian Prison Service (TPS) noted that Mr Rabino’s case notes indicate a good work ethic and an ability to work as a team.[7] 

[7] Exhibit J at 36

1. When he became eligible for parole, Mr Rabino chose not to participate in the community reintegration leave programme due to his lack of family or social contacts in Tasmania.  He had maintained contact with his family and friends by telephone during his incarceration and his mother would visit him every few months.  The TPS noted that Mr Rabino’s behaviour was of a consistently high standard during his incarceration with no formal warnings or prison offences recorded.  His classification was that of minimum security since 3 October 2013.  He had been subjected to two random urinalysis tests with one on 2 May 2014 and the other on 8 July 2014.  A negative result was obtained on each occasion.

1. Mr Rabino applied for parole in June 2015.  His mother purchased an airline ticket so that he could return to Melbourne in the expectation that he would be free to leave Tasmania.  Before he was able to use the ticket that his mother had bought him to return to Melbourne, he was advised that the Tasmanian Parole Board had refused it because the Victorian authorities did not approve his transfer to Victoria.[8]  Although it did not approve the transfer of his parole to Victoria, it approved his prison transfer to Victoria.[9]  The reason for reaching that decision was that:

   “Mr Rabino would be classified as a Serious Violent Offender (SVO) in Victoria and has not been ‘assessed for’ or ‘participated in’ offence-specific programs.”[10] 

   [8] Exhibit J at 38

   [9] Exhibit J at 37

   [10] Exhibit J at 38

1. Mr Rabino was transferred to Victoria to serve the balance of his sentence on 1 July 2015.  He is currently at Marngoneet Correctional Centre (Marngoneet) where he resides in a “lodge”, which he shares with eight other prisoners.  Each week, the lodge is given a budget and the nine have to negotiate among themselves as to the food they purchase and the decisions that they make in order to remain within the budget.  Since Mr Rabino has been at Marngoneet, he has undertaken a number of courses.  He has completed a Certificate III in Micro Business Operations[11] together with a range of competencies leading to a Certificate III in Cleaning Operations.[12]  He has also completed other competencies directed variously to a Certificate II in Engineering, Kitchen Operations, General Education for Adults and Horticulture.[13]  Others related to a Certificate I in Information, Digital Media and Technology.[14]

   [11] Exhibit I at 26 and 33

   [12] Exhibit I at 27

   [13] Exhibit I at 29-32.

   [14] Exhibit I at 28

1. On 17 July 2015, Mr Rabino was referred to the Offending Behaviour Programs.  His file was reviewed together with his Victorian Police Criminal History and his National Criminal Record.  Mr Rabino participated in the Serious Violent Offender Screening Interview.  Having regard to the reviews and the interview, a decision was made by Corrections Victoria that Mr Rabino was deemed to be low risk of violent re-offending.  As such, he was assessed as unsuitable for a full assessment and not required to participate in any additional intervention.[15]

   [15] Letter dated 30 October 2015: Exhibit 1, G documents; G15 at 113

   DIRECTION No. 65

1. Under s 499 of the Migration Act, 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.[16]  The person or body to whom the directions are given must comply with them[17] but there is one proviso. That is found in s 499(2), which reflects the common law, to the effect that the Minister is not permitted to give directions that would be inconsistent with the Migration Act or with regulations made under it.[18]  If he were to do that, it would follow that the person or body is not bound to follow the directions to the extent of the inconsistency.

   [16] Migration Act; s 499(1)

   [17] Migration Act; s 499(2A)

   [18] Migration Act; s 499(2)

1. Paragraph 6.1 of the Direction No. 65 begins with a statement of objectives but I 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.”[19]

   [19] Direction No. 65 at [6.1(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.”

1. 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.”

Parts A and B do not apply for they apply, respectively, when a non-citizen’s visa has been cancelled and his or her application for a visa has been refused. Part C does apply in Mr Rabino’s case for it is directed to revocation requests made in relation to cancellation decisions made under s 501(3A).

1. In applying any of the Parts, including Part C, paragraph 8 of Direction No. 65 sets out how the considerations are to be applied by a decision-maker.  Decision-makers must take into account the primary and other considerations relevant to the individual case.[20]  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.”

   [20] Direction No. 65 at [8(1)]

1. In applying them, whether primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[21]  Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation 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.[22]  I will expand upon the primary and other considerations in the course of considering them.

   [21] Direction No. 65 at [8(2)]  

   [22] Direction No. 65 at [8(4)] and [8(5)]

CONSIDERATION

1. Part C 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 13.

Protection of the Australian community

1. 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.  Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.  Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is determined.”[23]

   [23] Direction No. 65 at [13.1(1)]

1. That statement makes clear that the persons’ conduct, past and future, is relevant.  That is stated expressly in paragraph 13.1(2) when decision-makers are told that they:

   “… should also give consideration to:

   a)The nature and seriousness of the non-citizen’s conduct to date; and

   b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.”

The nature and seriousness of Mr Rabino’s conduct

1. Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal 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)       The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very 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 courts 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 repeat offending;

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

   g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);

   h)…”.

1. Mr Rabino does not seek to put forward a view of the events that occurred in Tasmania that led to his conviction in any light different from the findings of fact made by Estcourt J in passing sentence.  That is consistent with the principles expressed in Minister for Immigration and Multicultural Affairs v SRT that I am not permitted to make any findings of fact that led to Mr Rabino’s being convicted of an offence if to do so would be to impugn that conviction.[24]   

[24] Minister for Immigration and Multicultural Affairs v SRT [1999] FCA 1197; (1999) 91 FCR 234; 56 ALD 349; Branson, Lindgren and Emmett JJ

1. On any view of those events, the offence of aggravated armed robbery is a serious offence.  Even making allowance for Mr Rabino’s being less culpable than Mr Hinch and its being his only offence for which he has been convicted, Estcourt J described the offence as being a very serious offence.  The circumstances of the offence were that it was clearly premeditated and that it had been planned over a period of time.  A knife had been purchased by Mr Hinch and a tyre lever acquired when he purchased a car.  Mr Rabino carried those two items from the car but handed the tyre lever to Mr Hinch and left the knife outside the supermarket.  Although Mr Rabino was not armed and, unlike Mr Hinch, did not use any weapon against Mr Edwards, the supermarket’s owner, he used his fists to punch him in the head three or four times at full strength. The seriousness of the crime was reflected in the sentence imposed upon Mr Rabino.  Even allowing for a discount for an early plea, it was a sentence that reflected Estcourt J’s view that the particular offence was a serious instance of what is, in any event, regarded as a very serious offence.

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

1. Paragraph 13.1.2 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 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 the rehabilitative courses to be undertaken).”

1. This is a case in which only one offence has been committed and a conviction recorded.  The influences that led to Mr Rabino’s committing that offence and the other factors that affect the way in which he lives his life and responds to its pressures are relevant.  In that regard, I have Mr Rabino’s evidence but I also have evidence from his family and friends.  As with all of us, how we see ourselves and how others see us are two different things just as how we react to circumstances and how others would think that we would react are two different things.  This is particularly apparent in this case.

1. On the basis of Ms Magalhaes’ evidence and that of Mr Dean Clover, I find that their marriage was initially happy.  Ms Magalhaes found Mr Dean Clover to be kind to her and to treat her son as his son.[25]  Things started to change in approximately 2002 leading to a turbulent relationship and, ultimately, to a separation in 2005, a reunion in 2006, a holiday for the family in Brazil in August and September 2007, a further separation in 2010 and, ultimately, a divorce.  Throughout these stages, Mr Rabino stayed with his mother.  As Mr Dean Clover described it in his statement, “Things became ugly and difficult and unfortunately Douglas was caught in the middle.”[26]  That description is consistent with the view taken by Mr Dean Clover’s brother, Mr Craig Clover.  It was to that effect that Mr Rabino had always had to mediate between his mother and his step father as his mother had limited English at the time.  His view is consistent with the statement made by Ms Magalhaes that Mr Dean Clover maintained contact with her son when they were separated.  Whether Mr Dean Clover persuaded him or whether he did it of his own volition, I find that Mr Rabino continually asked her to reunite with Mr Dean Clover during the first separation.  Ms Magalhaes agreed and all three began to live together in 2006.  She fell pregnant in 2006 but lost the baby before having a successful, although difficult, pregnancy in 2008.  Her younger son was born in that year.  The relationship between Ms Magalhaes and Mr Dean Clover deteriorated during that time and Ms Magalhaes went to a women’s shelter with her two sons in 2010. 

   [25] Statement of Ms Magalhaes dated 18 October 2015; Exhibit 1, G documents; G13 at 96

   [26] Exhibit D at [8]

1. On the basis of his own evidence, I find that Mr Rabino missed some months of his schooling after Mr Dean Clover and Ms Magalhaes separated on the first occasion.  Life after the second separation was very difficult for Ms Magalhaes and her two sons.  I find, on the basis of Mr Rabino’s evidence and that of his mother, that he obtained part time employment from the age of 14.  Ms Magalhaes came to rely on him for financial support and her reliance on him increased after her younger son was born.  I note also that Mr Jack Oliver, who has been friends with Mr Rabino since the beginning of 2008, said that he had been aware that Mr Rabino allocated much of his weekly earnings to help his mother and younger brother.[27]

   [27] Exhibit E at [5]

1. Up to this time, I find, Mr Rabino was a dutiful and well-behaved son.  He took on responsibilities for maintaining his family unit that were, when viewed in the context of the Australian culture, far beyond those expected of a boy of his years.  At the same time, he was able to find the time to connect with Mr Craig Clover and his family.  His connection and his acceptance as a family member was such that Mr Craig Clover was very comfortable leaving his daughters, then aged five and three years, in Mr Rabino’s care. 

1. Mr Rabino, I find, was also able to maintain friendships with others of his own age.  On the basis of the evidence of Mr Jack Oliver and Mr Jed Coleman, I find that Mr Rabino was regarded as a perfect gentleman, kind-hearted, caring and supportive.  Mr Oliver has known Mr Rabino since 2008 and would see him five days a week.  They were very close.  Mr Coleman has known him since 2009 and, up until the 12 months before the offence, would see him twice a week.  He regarded Mr Rabino as his best friend.

1. Both Mr Oliver and Mr Coleman regard Mr Rabino as having had a profound influence on shaping their lives.  I find that both regard him as instilling in them strong family values.  In the case of Mr Oliver, he acknowledges that Mr Rabino taught him a lot about friendship and maturity and from that, he learned to be kind to everyone and to let his empathy for others be revealed in the altruism of his actions.  Mr Rabino led Mr Coleman to find his passion which is dance.  Without Mr Rabino’s encouragement, he would not have attended dance classes with him at school and he would not now belong to a group that competes both domestically and internationally.

1. On the basis of his evidence, I find that Mr Rabino first experimented with marijuana as a teenager.  He would attend house parties where others were smoking joints and he would, at times, join them.  It was not until he was 19 or 20 that he began to use marijuana regularly.  That would have been in about 2010 or 2011. In giving evidence, Mr Rabino said that he did not know why he started smoking marijuana so much.  He started to do so with two friends from school but he is no longer friends with those people.  Initially, they smoked when they were not working but then they started to smoke every day.  That necessarily meant that more money was required for marijuana.  Mr Rabino said that he paid for his marijuana from his savings or, when he did not have money, one of his friends would buy it.

1. The effect of his smoking marijuana was something that was touched on by Mr Oliver and Mr Coleman.  Neither smoked marijuana with him.  For Mr Coleman, I find, the friendship grew weaker as Mr Rabino smoked more marijuana and associated with people with whom he did not wish to associate.  Mr Coleman raised his concerns with Mr Rabino but, when he did not receive a good response, did not pursue them.

1. Mr Oliver said that he first knew that Mr Rabino was smoking marijuana was around his 19^th birthday and so in about 2010.  Their friendship started to taper off around the time of Mr Rabino’s 22^nd birthday when Mr Rabino developed interests that he and his other friends could not match.  Mr Rabino was interested in “hanging out” with one particular individual with whom the others did not get on.  As a result, Mr Rabino became a lot less adventurous and became a bit of a hermit.  Mr Oliver said that Mr Rabino engaged in a little bit of drinking but not in the social way that they had done when they were growing up.  It was depressing to see his friend doing that and being with the people he was with.  He met Mr Hinch and thought him untrustworthy and crass but he was a person with whom Mr Rabino was associating.  Mr Oliver was not sure of the degree to which Mr Rabino was smoking marijuana.  Probably, Mr Oliver said, he and his other friends were being selfish but they maintained some distance from Rabino and they did not enjoy the same closeness with him during this stage.

1. Mr Craig Clover had, by this time, lost contact with Mr Rabino because of the breakdown of the relationship between his brother and Ms Magalhaes.  Mr Dean Clover had maintained contact with his brother following the breakdown of his marriage but their contact had been regular but strained for eight months or so preceding the offence.  Mr Rabino had not returned phone calls and Mr Dean Clover felt that he probably struggled in that period to get the regular contact they had enjoyed previously.  Mr Dean Clover felt that Mr Rabino had been caught up in the relationship issues for three to six months before the offence.  Ms Magalhaes also noticed the change in her son before the offence.  Before he committed the offence, he was at home and not working.  She thought that he was depressed.

1. On the basis of the evidence of his friends and of his family members and the findings that I have made in the previous paragraphs, I find that Mr Rabino had lost his way in 2013.  He changed from an extremely responsible, happy and gracious boy and young man, who shouldered responsibility with the dignity of a much older person into a person who avoided others whether physically by not contacting them or through the use of marijuana which was not a pastime followed by his friends. 

1. Although he initially resisted Mr Hinch’s suggestion that the two of them rob the supermarket in Tasmania, I accept his evidence that he was persuaded after about a week or a week and a half.  What enticed him and persuaded him to go ahead with the plan was threefold.  One was the thought that he could do one bad act to set his mother and brother up in better accommodation.  He could do one bad thing and spend the rest of his life doing right things.  The second was that Mr Hinch told him that no-one would be physically harmed.  The third was that he believed Mr Hinch when he told him that the owner of the supermarket was very rich and would not miss a little bit of his wealth. 

1. As Mr Rabino now acknowledges, all of this thinking was naïve and “really stupid”.  As he said in cross-examination, marijuana had affected his grip on reality.  It affected his ability to support his family.  There is no question that his thinking was flawed but it is one thing to think something that is naïve and “really stupid” and another thing to act upon it.  Mr Rabino, I find, had plenty of opportunity to walk away from the plan he had made with Mr Hinch.  After all, he did not travel to Tasmania with Mr Hinch and he could have decided not to get on the boat to go there.  He need not have sent Mr Hinch the money with which the car was bought.  Both were steps that he could have taken while Mr Hinch was not in Melbourne and in a position to influence him.  Mr Rabino states that he battled with himself in those two days and, on a few occasions, he wanted to call Mr Hinch and tell him that he would not go through with it.  In the end, he did not make the call because he felt that he had to do it because he had given his word that he would do it.

1. The fact that Mr Rabino continued with the enterprise despite his misgivings is, at some level, explicable.  Although he was engaging in a totally wrong way of thinking, I find that Mr Rabino was acting in accordance with his character as I have previously described it.  He is a loyal and caring friend and family member who takes on responsibility.  On this occasion, however, his loyalty and care and sense of responsibility were entirely misplaced.  Mr Hinch was not a worthy recipient as it turned out and their enterprise was immoral as well as illegal.  Mr Rabino’s actions in disposing of the knife before he entered the supermarket is consistent with his knowing what he was doing was wrong. 

1. What is less explicable is why Mr Rabino hit Mr Edwards in the head with his fists and using full force three or four times.  His explanation is that he hit him to stop him from struggling.  Mr Rabino had thought that Mr Edwards would just give them the money and he had been “stunned” when he struggled.  Mr Rabino denied that he had ever said to kill him during the struggle.  He agreed with Mr Eskerie that he could have fled the scene rather than punching Mr Edwards but he did not.  Leaving Mr Edwards dazed and bleeding, he could have refused to take the money out of the safe but he did not.  He and Mr Hinch took the money and left Mr Edwards to break from his bonds and call for assistance.  I do not accept that Mr Rabino tried to lessen his culpability in the offence.

1. While I find Mr Rabino’s behaviour on the day inexplicable and inexcusable, I do not think that its being inexplicable or inexcusable equates with a risk of his repeating it.  His conduct, as serious as it was on the day and more so because it was to some extent planned, must be seen in the light of his previous good, and indeed, exemplary behaviour in the company of his family and friends and up until the months before he committed the offence.  It must also be seen in light of his behaviour since being in prison.  He has an excellent record in both the Launceston Reception Prison and in Marngoneet. 

1. At the Launceston Reception Prison, he made good use of his time by working in the laundry.   This finding is supported not only by his not having committed any breaches but by the evidence of Mr Bruce Stronach, who has been a volunteer Prison Chaplain at the Launceston Reception Prison since 2010.  On the basis of his evidence, I find that Mr Rabino’s work meant that he enjoyed certain privileges.  He was, for example, exempt from the 4:30pm lock down, free to lock his cell at a time of his own choosing, free to use separate exercise areas, recreation and common rooms at the end of the working day.  I find that Mr Rabino did not abuse these privileges and used his spare time to study languages, music and literature.  Mr Stronach heard Mr Rabino to say on a number of occasions that he would not be returning.  By that, he understood, and I accept, that Mr Rabino was indicating that he would not do anything that would lead him to be returned to prison.  He has continued with more formal study since his return to Victoria and I have referred to the various Certificates that he has been granted.

1. From one point of view, the fact that Mr Rabino served the non-parole period of his sentence at the Launceston Reception Prison worked to his detriment.  It did so because he did not have the opportunity to undertake the relevant program tailored for those who have been convicted of a violent offence.  That said, on review after being transferred to Victoria, I find that he was not required to undertake such a program.  A decision was made by Corrections Victoria that Mr Rabino was deemed to be low risk of violent re-offending. 

1. All of the matters, to which I have referred, point to his being a low risk of re-offending whether it be a violent crime of the sort he committed or a crime at all.  He has acted very much out of character in a course of events over quite a short period of time committing one crime.  He has taken steps while in prison to improve his knowledge.  While in Launceston Reception Prison, Mr Rabino had few visitors but he did have visits from his mother and, on occasion, his brother and another from Mr Coleman as well as regular monthly visits by Mr Dean Clover.  Mr Coleman also telephoned him each week as did Mr Oliver.  Since he has been at Marngoneet, Mr Rabino’s mother and brother visit him as do Mr Oliver and Mr Coleman.  The family bonds have remained and the bonds between Mr Rabino and his friends have strengthened.  While one person can never stop another from taking a certain course of action, I accept that his friends will maintain their friendship with him and make sure that there is a continuing and strong bond with him.   They feel very strongly about making sure that Mr Rabino stays on the right path but I am satisfied that Mr Rabino wishes to stay on that path in any event.  Mr Oliver and Mr Coleman are not his only friends and I mention that, apart from his mother and Mr Dean Clover, Mr Oliver and Mr Coleman and Mr Craig Clover, 18 friends attended the hearing on each of the two days.  They were of all ages.

1. Apart from the support of his family and friends, I find that Mr Rabino has a job waiting for him with one of his previous employers, Egans.  Mr Matthew McKeown is its Operations Manager and is familiar with Mr Rabino’s history of offending.  He noted that Mr Rabino had worked for Egans for a period of six months in 2012 and had found him to be an honest, reliable and hardworking employee.  He said in a letter dated 24 April 2016:

   “… Whilst I agree with the punishment I also believe that Douglas is a genuinely good person and consider the offending an aberration.

   I would have no hesitation in employing Douglas in the future and would hope that this would be considered in his current situation.”[28]

   [28] Exhibit I at 25

1. As I have said, all of these matters lead me to conclude that, although the consequences of a violent crime of the sort of which he was convicted can be very grave, the risk of Mr Rabino’s offending is very low.  He does not present as a risk to the Australian community.

Best interests of minor children in Australia affected by the decision

1. Paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the bests interests of the child.  That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[29]  In considering the best interests of the child, paragraph 13.2(4) provides:

   [29] Direction No. 65 at [13.2(2)]

   “In considering the best interests of the child, the following factors must be considered where relevant:

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

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

   c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;

   d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;

   e)Whether there are other persons who already fulfil a parental role in relation to the child;

   f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);

   g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and

   h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.”

1. The evidence consistently points to Mr Rabino’s having a close and enduring relationship with his younger brother.  I have already found that Mr Rabino started work at a very young age in order to help his mother and his brother.  His evidence is that he washed his brother when he was a baby, took his brother with him on the bus so that he could drop him off at crèche on his way to school and then picked him up so that his mother could work and do errands.  Later, he picked him up from crèche.  As he got older, Mr Rabino taught his brother to play soccer and they watched television together.  Even though his brother was young when he was incarcerated, Mr Rabino felt that he had done a lot to raise him and had given a lot to him.  He has continued to build on his relationship with his brother and especially since being transferred to Victoria.  Mr Rabino said that he talks with his brother about his school and kicks the soccer ball with him when his brother visits him for two hours every second weekend.  His brother, Mr Rabino said, is always asking him about coming home.  Mr Rabino said that he was never “stoned” when he took him to the crèche as he took him in the morning and he would never smoke marijuana at work.  He would never put his brother in the car when he was “stoned” and so would never take him or pick him up in that state.

1. Mr Rabino’s evidence is supported by the evidence of Mr Dean Clover who is the father of Mr Rabino’s brother.  It is also supported by Mr Rabino’s mother.  She spoke of the love that the brothers have for each other and how her younger son misses his brother.  Apart from taking her younger child to crèche, her older son was always there if she had to work on Sundays.  Without her older son, life is much more stressful.

1. The evidence given by Ms Magalhaes, Mr Dean Clover and Mr Rabino is consistent with that given by Mr Craig Clover regarding the way in which Mr Rabino became part of his extended family.  Mr Craig Clover was happy to leave his two daughters in Mr Rabino’s care.  It is also consistent with the evidence given by Mr Oliver who said in his statement that Mr Rabino would, on many occasions, sacrifice time with his friends in order to pick up his brother.   

1. In light of this evidence, I am satisfied that the relationship between Mr Rabino and his brother is one that goes beyond that of mere siblings.  Mr Rabino has, from the beginning, taken a nurturing and caring role for his brother.  The nature of that nurturing and caring has changed as his brother has grown but I find that Mr Rabino continues to feel very responsible for his well-being.  His imprisonment means that the ways in which he can put his feelings of responsibility into a more concrete display are limited but he clearly gives his brother every attention when he visits the prison.  The absence of Mr Rabino from his brother’s life has been a negative factor in the child’s development, Mr Dean Clover thought.  He believed that his son was missing Mr Rabino’s maturity and, although now aged eight years, his maturity was closer to that of a five year old.  Without his brother in his everyday life, Mr Dean Clover thought that his son was behind in his English language development. 

1. If Mr Rabino were permitted to remain in Australia, I find that would resume his responsibilities towards his brother as a part of his daily life.  Were he not permitted to remain in Australia, I find Mr Dean Clover’s evidence persuasive that his son would continue to lag in his development without the presence of his brother.  The opportunity for the two brothers to spend time together would be limited.  Although Mr Dean Clover would be prepared to take his son to Brazil to visit Mr Rabino if Ms Magalhaes consented, he would not be able to do that as a regular thing as he has a new wife and a ten month old baby.

Expectations of the Australian community

How are those expectations determined?

1. Paragraph 13.3(1) states:

   “The Australian community expects non-citizens to obey Australia’s laws while in Australia.  Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person.  Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.”

1. This paragraph is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but its specificity stops at that point.  It leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when 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.  In Re Do and Minister for Immigration and Border Protection,[30] Deputy President McCabe set out his understanding of the paragraph.  Deputy President McCabe made the following observations about paragraph 13.3(1):

   “A decision-maker is, to some extent, required to guess at the community’s expectations.  The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values.  I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature.  Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances.  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. ”[31]

   [30] [2016] AATA 390

   [31] [2016] AATA 390 at [23]

1. I respectfully suggest that a couple of the points made in this passage need to be teased out a little lest they mislead. The first point is that the Direction is a statement prepared by the community’s elected representatives. The Direction is prepared under the authority of s 499 of the Migration Act by the Minister as a member of the Executive Government and not as an elected member of Parliament. Certainly, the Minister is an elected member of the Parliament but his being so is quite separate from his role as a Minister as it must be for the Parliament and the Executive are two of the three arms of government that are, in the Commonwealth, separate from each other. Parliament has placed in the Minister’s hands certain responsibilities under the Migration Act and the Minister is responsible to Parliament for their execution. Referring to the Minister’s powers under the Migration Act but in a different context, Kirby J described those responsibilities in Minister for Immigration v Jia Legeng:[32]

   “… The Minister must report the exercise to the Parliament ….  However, this does not mean that a Minister is at liberty to give vent to personal biases, idiosyncratic opinions, prejudice against a particular applicant or blanket rules, applied without regard to any specific features of the case in hand.  Nor is a Minister at liberty to apply blindly his own, a departmental, a Party or even a Government policy which is inconsistent with the assumptions of individual justice and administrative decision-making that are inherent in the grant of power by the Parliament.”[33]

   [32] [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 65 ALD 1; 178 ALR 421

   [33] [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 65 ALD 1; 178 ALR 421 at [137]; 550; 702; 32; 453

1. That brings me to a second point arising from the passage in the reasons for decision in Re Do and Minister for Immigration and Border Protection.  It is said that “… I must form my view having regard to contents of the Direction … the sentencing remarks of the court and common sense. …” in forming a view about the expectations of the Australian community.  This statement is, I respectfully suggest, both too broadly and too narrowly formulated.  Although it is no doubt implicit in the statement, it does not explicitly acknowledge that the starting point of any discretionary power and any policy statement relating to its exercise is the subject-matter, scope and purpose of the enactment conferring that power.  A decision-maker is under an obligation first to determine the limits of a discretionary power by reference to the subject-matter, scope and purpose of the legislation granting the power to make that discretionary decision.[34]  In other words:

   “… the law obliges the Minister, in the particular case, to reach a decision on the merits of that case by reference only to considerations that are relevant to the grant of power and compatibly with the exercise of that power with respect to an individual. …”[35]

   [34] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560 at 39-40; 309; 565 per Mason J with whom Dawson J agreed. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321; 54 ALJR 94 at 49; 325; 95-96 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505

   [35] Minister for Immigration v Jia Legeng [2001] HCA 17; 205 CLR 507; 75 ALJR 679; 65 ALD 1; 178 ALR 421 at [139]; 550; 703; 33; 454

1. The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.

1. Consistently with the Migration Act, the heart of the Direction is the protection of the Australian community and its institutions. That is reflected in the considerations set out by the Minister for decision-makers exercising one of the three types of discretion dealt with more fully in Parts A, B and C. It is also reflected in paragraph 6 of the Direction when it sets out the Objectives, General Guidance and Principles all of which underpin the exercise of the particular discretions that are the subject of Parts A, B and C. It is to this paragraph that regard is to be had in determining the matters that underpin and inform paragraph 13.3(1) of Part C (or the equivalent paragraphs in Parts A and B) when it addresses the expectations of the Australian community. In particular, it underpins and informs when it may be appropriate to revoke the mandatory visa cancellation or when the Australian community would expect that the person should not hold a visa. It is appropriate for the Minister to make such a statement.[36]

   [36] Uelese v Minister for Immigration and Border Protection [2016] FCA 348; (2016) 69 AAR 8 at [65]; 22-23 per Robertson J

1. Particular aspects of paragraph 6 have relevance in considering the expectations of the Australian community in the context of a s 501CA(4) application. They are:

   (1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens: paragraph 6.1(1);

   (2)In determining whether to exercise the discretion, a decision-maker must have regard to the specific circumstances of the case: paragraph 6.1(3); and

   (3)The principles set out in paragraph 6.3 reflect community values and standards in determining whether the risk of future harm from a non-citizen is unacceptable: paragraph 6.2(1).

1. The Principles set out in paragraph 6.3 are based on the notions that:

   (1)Entry to and presence in Australia are privileges conferred on persons in the expectation that they are, and have been, law-abiding, will respect its institutions and will not cause or threaten harm to individuals or the Australian community: paragraph 6.3(1);

   (2)Australia has a low tolerance or any criminal or other serious misconduct but the level of its tolerance in any particular case will be determined by reference to matters such as the nature of the offending or misconduct, the time that a person has been in Australia and the contribution made in the past to the Australian community: paragraphs 6.3(3)-(6); and

   (3)Regard must be had of the consequences of a visa refusal or cancellation on minor children and other immediate family members: paragraph 6.3(7).

2. Within their parameters, the Principles are directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.  Given the precision with which the Direction is drafted makes me hesitate to adopt, without qualification, statements such as that made by Toohey J in Haoucher v Minister for Immigration & Ethnic Affairs:[37]

   “… ‘These are not generally matters of logical proof or evidentiary demonstration’, to borrow the language of Brennan J. in Re Drake (No. 2) [1979] AATA 179; (1979) 2 ALD 634, at p 639. …”[38]

   [37] [1990] HCA 22; (1990) 169 CLR 648; 19 ALD 577; 93 ALR 51; 64 ALJR 357; 11 AAR 508; Deane, Dawson, Toohey, Gaudron and McHugh JJ

   [38] [1990] HCA 22; (1990) 169 CLR 648; 19 ALD 577; 93 ALR 51; 64 ALJR 357; 11 AAR 508 at 668; 589; 64; 365; 521

1. This statement was made some seven years before the first Direction, Direction No. 5, was made on 25 November 1997.  The context in which Brennan J made the earlier statement in Re Drake and Minister for Immigration and Ethnic Affairs (No. 2) and again in the absence of any Direction is:

   “… But to some degree, each decision-maker will vary from another in his perception of Australia’s interests, the effect of offending conduct, and the effect of a decision, one way or another, upon those interests.  These are not generally matters of logical proof or evidentiary demonstration.  After allowing for the variations in the facts of particular cases, the degree of inconsistency in decision-making will depend upon the extent of the disparity in the respective decision-makers’ perceptions of Australia's best interests and the way in which those interests are affected.”[39]

   [39] [1979] AATA 179; (1979) 2 ALD 634 at 639

1. I respectfully suggest that the consideration of Australia’s best interests is now more circumscribed by the Principles set out in the current Direction.  I would also exercise the same caution regarding the following passage from the reasons for decision given by Downes J, the Tribunal’s then President, in Re Visa Cancellation Applicant and Minister for Immigration and Citizenship:[40]

   “Relevant community values will not depend on transient or fashionable thinking.  They will not be found in the publications of vocal minorities or the fulminations of the media, motivated by short term considerations and the improvement of circulation or ratings.  They will not necessarily reflect the views of individual politicians.  Community standards will be found in more permanent values.  They will be informed in part by legislation of the parliaments, and especially legislation applicable to the decision-making.  Formal statements by ministers will be relevant, but not when they are not speaking officially or when their remarks are not carefully considered or do not appear to reflect ‘a broad consensus of opinion’ (Mason, Courts and Public Opinion at 36).  Decisions will also be informed by the decision-maker’s belief based on experience.  Evidence will rarely be of any practical assistance.  

   It will often be impossible for decision-makers to articulate the basis for their determination of what community standards require in a particular case, because the conclusion will not be based on evidence.  Nevertheless, decision-makers are members of the community and exposed to the processes of its instrumentalities.  They may not always be able to empathise with particular individuals or groups, because of lack of exposure to local considerations, but they are exposed to the short term and long term thinking and dissemination of ideas which determine the way society changes and develops.”[41]

   [40] [2011] AATA 690

   [41] [2011] AATA 690 at [79]-[80]

1. Although I would not quibble with this statement as one of general principle, it seems to me that paragraph 6 generally, and paragraph 6.3 in particular, must be borne in mind in the task of determining the expectations of the Australian community.  That is particularly so when regard is had to the general statement in 6.2(1) that:

   “… 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.”

1. Although ultimately a matter for judgment, the facts on which that judgment is made must be made on the basis of facts established by the evidence.  That evidence will not be limited to what is said in the sentencing remarks.  The judgment that is ultimately made by a decision-maker must be able to be explained.  Common sense is a nebulous concept and, just as the High Court has said that it doubts whether there is “… any ‘common sense’ approach to causation which can provide a useful, still less universal, legal norm”,[42] I suggest that its use in the context of ascertaining the expectations of the Australian community in this context is equally doubtful.  If it is useful, a decision-maker will have to articulate what it is about “common sense” that is relevant in any particular instance.

   [42] Comcare v Martin [2016] HCA 43 at [42]; French CJ, Bell, Gageler, Keane and Nettle JJ

Consideration of the expectations of the Australian community

1. There can be no question that Mr Rabino has betrayed the trust of the Australian community in committing a very serious crime of violence.  He does not attempt to walk away from his responsibility.  Although it was Mr Hinch’s idea, he does not attempt to minimise his fault in allowing himself to become involved in what was an ill-conceived plan at best.  It was an ill-conceived plan that was very likely to end in violence because it was to be expected that Mr Edwards, the supermarket’s owner, would resist.  Although throwing away the knife was to his credit, Mr Rabino did not need a weapon other than his fists and he used them on Mr Edwards.  It was a crime of stupidity.

1. That said, Mr Rabino was about 11 years of age when he came to Australia.  In the 11 years that followed until he committed the crime in 2013, Mr Rabino endured a lot of upheaval in his home life because of the seemingly tumultuous relationship between his mother and Mr Dean Clover.  Ms Magalhaes had lost their house due to foreclosure of her mortgage in 2012.  Throughout that period, Mr Rabino showed maturity far beyond his years while caring first for his mother and then for his mother and little brother.  He became a contributing member of the Australian workforce at the age of 14 years.  All the while, he maintained his schooling and his friends as well as his outside interests in music and dance.  Mr Oliver and Mr Coleman speak with unreserved admiration for him and they were both impressive witnesses.  They will both be there for him if he is permitted to remain in Australia as will their families and Mr Craig Clover and his extended family.  Mr Dean Clover will also be a presence.

1. In the circumstances of Mr Rabino’s case, I have concluded that the Australian community would consider that the risk of Mr Rabino’s committing further offences is very small.  He is a young man who has breached the trust of the Australian community but his risk of doing so in the future is equally very small.  He has breached that trust in circumstances in which he has endured a decade or more of carrying far more responsibility for his family than he should have been expected to carry.  Since then, his behaviour in prison has been that of a responsible person who is contrite and wanting to make the best of every opportunity that he has to better himself whether by engaging in self-motivated study or in formal courses.  In these circumstances, I am satisfied that the Australian community would expect that Mr Rabino be permitted to remain a member of the Australian community.

Other considerations

1. The five other considerations are summarised in paragraph 14(1):

   “a)       International non-refoulment obligations;

   b)Strength, nature and duration of ties;

   c)        Impact on Australian business interests;

   d)        Impact on victims;

   e)        Extent of impediments if removed.”

1. A non-refoulment obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm.  There is no suggestion that Mr Rabino is at risk of harm of the sort that raises Australia’s non-refoulment obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugees Convention).  Therefore, I find that this consideration does not arise on the evidence in this case.

Strength, nature and duration of ties

1. Paragraph 14.2(1) of Direction No. 65 states:

   “… Reflecting the principles at 6.3, decision-makers must have regard to:

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

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

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

   b)    The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).”

1. Mr Rabino came to Australia as an eleven year old.  In the eleven years that he had until he committed the offence in 2013, he had contributed positively to the Australian community by supporting his family unit emotionally but also financially.  He had put a lot into those eleven years because, in that time, he was also able to forge strong and enduring friendships with a number of people.  Mr Oliver and Mr Coleman are two of the strongest but they are only representative of Mr Rabino’s other friends, some of whom attended each day of the hearing.  Mr Coleman credits him with introducing him to his lifelong passion for dance that he now engages in professionally.  Both speak of the profound positive influence that he has had on them.

   Impact on Australian business interests

2. Paragraph 14.3(1) of Direction No. 65 states:

   “Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.”

3. I find that Mr Rabino’s being in Australia or in Brazil has no particular impact on Australian business interests other than that it always requires a reliable and hardworking workforce.  Mr Rabino has shown that he is such a worker and I am satisfied that the evidence points to his being so in the future.

Impact on victims

1. At paragraph 14.4(1), Direction No. 65 states:

   “Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.”

1. The impact on the victim of the crime committed by Mr Rabino and Mr Hinch has been small.  As Estcourt J found, Mr Edwards suffered head injuries but was only hospitalised overnight.  The long term effects of the robbery are that he suspicious of people who come into his shop and more suspicious of people generally.  Mr Edwards does not claim any other long term effect.

Extent of impediments if removed from Australia/not permitted to return

1. Direction No. 65 also states in paragraph 14.5(1) that:

   “The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:

   a)The non-citizen’s age and health;

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

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

1. Although Mr Rabino was born in Brazil and remained there until he was 11 years of age, he states that he has forgotten most of its language.  I do not place great weight on his statement in that regard for he was teaching himself Spanish in Tasmania and, although I do not suggest that Spanish and Portuguese are the same, he clearly has an interest in language.  I accept his mother’s evidence that she did not speak Portuguese with him when they came to Australia.  They both had to learn English.  It is likely that his childhood memory of Portuguese would return to some extent making it easier for him to pick up the language were he to return to Brazil.

1. Although Mr Rabino said that his mother had about 15 brothers and sisters in Brazil, I find that he has misunderstood the relationships.  On the basis of Ms Magalhaes’ evidence, I find that she has one brother, two half-brothers and two sisters living in Brazil as well as her mother.  They live in various parts of Brazil.  Ms Magalhaes has returned to Brazil when she was reunited with Mr Dean Clover and her elder son travelled with them.  They stayed with her mother but not with her other relatives. 

1. I find that too many years have passed for Mr Rabino to have any meaningful connections with his family in Brazil.  He would struggle initially with the language and with the culture but he is a resourceful young man and it is to be expected that he would make the best of the situation.

Conclusion

1. Having regard to all of these matters, I have decided that, although the crime committed by Mr Rabino was very serious, the risk of his committing such a crime, or any crime, in the future is very low.  When taken in its context of the hardship that Mr Rabino and his mother, and later his brother, endured by virtue of the circumstances in which they found themselves and the way in which he responded to that hardship with responsibility and maturity far beyond his years, I am satisfied that the Australian community would expect that he be given an opportunity to remain in Australia where he has lived since he was 11 years of age.  Putting aside a serious, but isolated, transgression, Australia is a place to which he has already shown his strong sense of responsibility to his mother and young brother and where he has shown a very strong work ethic.  It is in the best interests of his young brother to have Mr Rabino present in his life.  Circumstances, including Mr Dean Clover’s new family, mean that Mr Rabino’s continuing presence in the child’s life is a very important element in his development.

1. Mr Rabino has considerable support from a section of that Australian community both in the form of emotional support but also in the form of employment with Egans.  Both the support and the offer, I am satisfied, are genuine and ongoing.  As important as that support and the faith of Egans is, what is more important is what I find to be Mr Rabino’s determination to return to the path of responsibility and decency from which he briefly strayed.  When all is said and done, only he can make himself take that path and, as I have found, the risk of his straying from it is very low.

1. For these reasons, I find that there is reason, other than that he passes the character test, why the original decision should be revoked under s 501CA(4)(b)(ii). Therefore, I set aside the decision of a delegate of the Minister dated 26 April 2016 and substitute a decision that the original decision made under s 501(3A) cancelling his visa should be revoked. The effect of my decision is that Mr Rabino continues to be the holder of a Class BB, Subclass 155 (Five Year Resident Return) visa.

I certify that the ninety preceding paragraphs are a true copy of the reasons for the decision herein of
Deputy President S A Forgie.

Signed:       ……….................[sgd].....................................

Associate

Dates of Hearing   19 and 25 October 2016

Date of Decision  7 December 2016

Counsel for the Applicant               Mr G Hughan

Solicitor for the Applicant                Ms S Nyabally

Carina Ford Immigration Lawyers

Solicitor for the Respondent           Mr K Eskerie

Sparke Helmore