Redzic and Minister for Immigration and Border Protection (Migration)

[2017] AATA 445

Redzic and Minister for Immigration and Border Protection (Migration) [2017] AATA 445 (7 April 2017)

Division:GENERAL DIVISION

File Number:           2016/1316

Re:Armin Redzic

APPLICANT

Minister for Immigration and Border ProtectionAnd  

RESPONDENT

DECISION

Tribunal:Regina Perton, Member

Date:7 April 2017

Place:Melbourne

The Tribunal affirms the decision under review.

[sgd]........................................................................

Member

MIGRATION – visa cancellation – character test – protection of the Australia community – serious conduct – dishonesty, drug and driving offences – continuation of offences following formal warning of possible visa cancellation - expectations of Australian community – strength, nature and duration of ties to Australia – decision affirmed

LEGISLATION

Migration Act 1958 (Cth) ss 499, 501(3A), 501CA

CASES

AZAFQ v Minister for Immigration and Border Protection (2016) 152 ALD 421

Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166

Minister for Immigration and Border Protection v Le (2016) 244 FCR 56

Re Jupp and Minister for Immigration and Indigenous Affairs [2002] AATA 458

Re Leha and Minister for Immigration and Indigenous Affairs [2000] AATA 1054

SECONDARY MATERIALS

Ministerial Direction No. 65: Visa refusal and cancelation under s501 and revocation of a mandatory cancellation of a visa under s501CA issued on 22 December 2014

REASONS FOR DECISION

Regina Perton, Member

7 April 2017

1. Armin Redzic was born in the former Yugoslavia (Bosnia and Herzegovina) in 1983.  He arrived in Australia on 3 April 2001 as the holder of a Refugee and Humanitarian (Migrant)(Class BA) Subclass 200 visa and has resided here continuously since then.

2. Mr Redzic has a substantial criminal history which includes periods of imprisonment for offences involving dishonesty, drugs and driving offences.

3. On 20 March 2015 Mr Redzic’s visa was cancelled (the cancellation decision) under s 501(3A) of the Migration Act 1958 (the Act). This was a mandatory cancellation by the Minister for Immigration and Border Protection (the Minister) because Mr Redzic did not pass the character test as set out in s 501(6) of the Act as he had a substantial criminal record (under s 501(7)(c) of the Act) as he had been sentenced to a term of imprisonment of 12 months or more. In particular on 6 March 2009, he was convicted of Burglary and Commit Indictable Offence, for which he was sentenced to 18 months’ imprisonment.

4. On 17 April 2015 Mr Redzic lodged a Request for Revocation of a Mandatory Visa Cancellation with the Department of Immigration and Border Protection (the Department) under s 501(3A) of the Act.

5. On 24 February 2016 a delegate of the Minister made a decision under s 501CA(4) of the Act not to revoke the mandatory cancellation of Mr Redzic’s visa because the delegate was not satisfied that there was another reason why the original decision should be revoked.

6. On 14 March 2016 Mr Redzic applied to the Tribunal for review of the delegate’s decision.  He is currently detained in immigration detention on Christmas Island.    

7. The hearing of the matter was conducted over two days on 17 and 18 October 2016. Mr Redzic appeared via video-conference from detention and gave evidence under affirmation.

   ISSUE

8. Mr Redzic concedes that he does not pass the character test in accordance with s 501CA(4)(b)(i) of the Act. The sole issue for determination by the Tribunal is whether, having regard to the considerations set out in Direction No. 65 – Migration Act 1958 – Direction Under Section 499 - Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Direction 65), the discretion in s 501CA(4) of the Act should be exercised to revoke the mandatory cancellation of Mr Redzic’s visa if the Tribunal is satisfied that there is another reason why the original decision should be revoked.

   CONSIDERATION

   Mandatory visa cancellation

9. Section 501(3A) of the Act provides:

   Decision of Minister or delegate – mandatory cancellation

   501(3A)The Minister must cancel a visa that has been granted to a person if:

   (a)the Minister is satisfied that the person does not pass the character test because of the operation of:

   (i)paragraph (6)(a) (substantial criminal record), on the basis of (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 office against a law of the Commonwealth, State or Territory.

10. Section 501(6) of the Act provides:

    Character test

    501(6)For the purposes of this section, a person does not pass the “character test” if:

    (a)the person has a substantial criminal record (as defined by subsection (7)); or

11. Section 501(7)(c) of the Act provides:

    Substantial criminal record

    501(7)For the purposes of the character test, a person has a “substantial criminal record” if:

    …

    (d)the person has been sentenced to a term of imprisonment of 12 months or more.

    Discretion to revoke mandatory visa cancellation – s 501CA

12. Section 501CA(4) of the Act provides that the Minister may revoke a decision to cancel a visa under s 501(3A) of the Migration Act (referred to in s 501CA(4) of the Migration Act as the “original decision”) if:

    (a)       the person makes representation in accordance with the invitation; and

    (b)       the Minister is satisfied:

    …

    (ii)that there is another reason why the original decision should be revoked.

13. Direction 65 commenced on 22 December 2014 and is binding on all decision-makers (including the Tribunal on review) from that date. Direction 65 provides guidance to decision-makers on, among other matters, the exercise of the discretion in s 501CA(4) of the Act to revoke the cancellation of the visa by the Minister under s 501(3A) of the Act.

14. Paragraph 7(1) of Direction 65 provides guidance as to how the discretion in s 501CA is to be exercised:

    7.        How to exercise the discretion

    (1) 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 the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.

15. Paragraph 8(1) of Direction 65 states:

    8.        Taking the relevant considerations into account

    (1)Decision-makers must take into account the primary and other considerations relevant to the individual case…

    …

    (4)Primary considerations should generally be given greater weight than the other considerations.          

16. Paragraph 13(2) of Part C of Direction 65 sets out the primary considerations that a decision-maker must take into account in deciding whether to revoke the cancellation of a non-citizen’s visa.  Paragraph 13(2) states:

    13.      Primary considerations – revocation requests

    …

    (2)In deciding whether to revoke the cancellations of a non-citizen’s visa, the following are primary considerations:

    (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.

17. Due consideration is to be given by decision-makers (including the Tribunal) to the General Guidance and Principles set out in the Preamble in paragraph 6 of Direction 65:

    6.2      General Guidance

    (1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.

    …

    6.3      Principles

    …

    (2)The Australian community expects that the Australian Government can and should refuse entry to non-citizen’s, 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.

    …

    (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.

    Primary considerations

    (i)        Protection of the Australian Community

18. Paragraph 13.1(1) of Direction 65 states that decision-makers considering protection of the Australian community should be guided by paragraph 6.2(1) of Direction 65, and paragraph 13.1(2) of Direction 65 identifies the following two factors to which consideration should also be given:

    (a)       The nature and seriousness of the person’s conduct to date; and

    (b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.

    (a)      The nature and seriousness of the conduct

19. Paragraph 13.1.1(1) of Direction 65 provides a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct. Paragraph 13.1.1(1) of Direction 65 states:

    13.1.1 The nature and seriousness of the conduct

    (1) In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:

    (a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;

    …

    (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;

    …

20. A summary of Mr Redzic’s criminal history is set out in the following Table:

COURT AND DATE	OFFENCE	COURT RESULT
Southport MC – 24 Apr 2015	Contravention of Community Service Order	Convicted. 1 month imprisonment 6 months wholly suspended.
21.     Southport MC – 03 Sep 2014	Wilful Damage	Community Service Order for 12 months to perform 50 hours
Southport MC – 15 Aug 2014	Possess Utensils Or Pipes That Had Been Used (2 charges) Breach of Bail Granted Condition (2 Charges) Possess Utensils or Pipes for Use Stealing Failure To Appear In Accordance With Undertaking (5 Charges) Unauthorised Dealing With Shop Goods (Maximum $150)	On all charges. Imprisonment for 7 months concurrent. Pay restitution: $2,150. License disqualified for a total of 3 years and 3 months. On each charge. Imprisonment for 1 month cumulative. Convicted. Fined $300. Pay restitution $400.
Southport MC - 04 Feb 2014	Common Assault	Without Conviction. Community Service Order for 12 months perform 60 hours
Southport MC – 08 Nov 2013	Contravention of Domestic Violence Order	Convicted. Fined $300.
Southport MC – 09 Oct 2013	Unauthorised Dealing with Shop Goods	Convicted. Fined $600. Pay restitution $60.05.
ACT MC – 09 Nov 2012	Numberplate/Rego not properly issued/Issued for another vehicle Use Unregistered/Suspended Vehicle Use Uninsured Vehicle Learner Driver Unaccompanied Learner Driver Not Display L Plates As Required	Fined $700 Fined $250 Fined $250 Fined $105 Fined $105
Brisbane DC – 31 Aug 2012	Possessing controlled precursors	Convicted. Sentence 6 months imprisonment. Release forthwith on entering recognizance self $1000, good behaviour 12 months.
Caboolture MC – 09 Jul 2009	Unlawful Use Of Motor Vehicles Aircraft or Vessels – Use	Imprisonment for 2 months
Southport MC – 06 Mar 2009	Burglary And Commit Indictable Offence Enter Premises And Commit Indictable Offense (7 charges)	Imprisonment for 18 months On each charge: Imprisonment for 3 months concurrent
Southport MC – 08 Aug 2008	Possessing Relevant Substances Or Things Possessing Dangerous Drugs Breach Of Bail Granted Condition Possess Utensils Or Pipes That Had Been Used	Imprisonment for 6 months On all charges: Convicted. No penalty imposed.
Southport DC – 08 Aug 2008	Breach Of Intensive Correction Order Imposed On 9 Jul 2007 Re: Burglary And Commit, Enter Premises And Commit	Breach proven, order revoked. Resentenced for original offences. Imprisonment for 9 months.
Southport MC – 12 Mar 2008	Failure To Appear In Accordance With Undertaking (2 Charges)	On all charges. Convicted. Fined $500.
Southport MC – 22 Nov 2007	Breach Of Probation Order Imposed On 06 Sep 2006  Re: Unlawful Entry Of Vehicle For Committing An Indictable Offence At Night, Damages Property (2 Charges), Stealing (2 Charges)	For breach of order: Convicted. Fined $400. Re-sentenced for original offences: On all charges: Imprisonment for 6 months wholly suspended for a period of 12 months.
Southport MC – 10 Jul 2007	Possessing Dangerous Drugs Unregulated High-Risk Activities Possess Utensils Or Pipes For Use	On all charges: Convicted. Fined $1,200.
Southport DC – 9 Jul 2007	Burglary And Commit Indictable Offence Enter Premises And Commit Indictable Offence	On all charges: Imprisonment for 12 months. To be served by way of an intensive correction order.
Southport MC - 06 Sep 2006	Unlawful Entry of Vehicle For Committing Indictable Offence At Night Damages Property (2 Charges) Stealing (2 Charges) 1) Breach Of Bail Granted Condition Failure To Appear In Accordance With Undertaking 2) Breach of Bail Granted Condition 3) Failure To Appear In Accordance With Undertaking	On all charges: Convicted: Probation for 12 months. Pay total restitution $1,357. 1) On all charges: Convicted. Fined $100. 2) Convicted: Fined $250. 3) Convicted: Fined $250.
Southport MC – 23 May 2005	Possessing Dangerous Drugs	Without conviction. Fined $550.
Southport MC – 28 Mar 2005	Breach Of Bail Granted Condition	Without conviction. Fined $100.
Southport MC – 03 Nov 2003	Behave In A Disorderly Manner	Convicted. Fined $100.

The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously: paragraph 13.1.1(1)(a) of Direction 65

1. The list of convictions demonstrates that Mr Redzic has committed a number of serious criminal offences over a period of almost eleven years since arriving in Australia.

2. In respect of dishonesty offences, on Mr Redzic’s own admissions, these have been contributed to by his drug use.  The offences include entering domestic houses where he has stolen property.  In July 2006 Mr Redzic broke into a motor vehicle and stole goods.  When questioned by police he denied any involvement.   

3. On 9 July 2007, while on probation, Mr Redzic was convicted of Enter Premises and Commit Indictable Offence after he scaled the outside of an apartment building and stole jewellery and other items.  He was sentenced to 12 months’ imprisonment, to be served by way of an Intensive Corrections Order.

4. On 6 March 2009 Mr Redzic was sentenced to 18 months’ imprisonment for Burglary and three months’ imprisonment for seven charges of Enter Premises and Commit Indictable Offence. 

5. In respect of drug-related offences, on 23 May 2005 Mr Redzic was convicted of Possessing Dangerous Drugs, after he was discovered in possession of white tablets which he knew to be ecstasy.  On 10 July 2007 he was further convicted of Possessing Dangerous Drugs, Possessing Utensils or Pipes for Use.  On 8 August 2008 he was convicted of numerous drug offences and sentenced to 6 months’ imprisonment.  On the same day he was convicted of breaching an Intensive Corrections Order.

6. On 31 August 2012 Mr Redzic was convicted of Possessing Controlled Precursors in relation to the manufacture of a controlled drug.  In August 2010 he had been found in possession of a parcel containing 2346 tablets that contained pseudoephedreine and pure ephedrine.  He was sentenced to six months’ imprisonment but was released on recognizance to be of good behaviour for 12 months.

7. On 15 August 2014 Mr Redzic was again convicted on charges of Possessing Utensils or Pipes for Use.  On 25 November 2014, while on parole for that offence, he returned a positive urine sample for methylamphetamine in breach of a direction to abstain from illicit substance use.  On 3 December 2014 his parole was cancelled.  

8. In respect of offences involving violence, on 4 February 2014 Mr Redzic was sentenced to a Community Service Order, without conviction, on a charge of Common Assault that occurred on 2 July 2013 following an argument with the victim.  Mr Redzic, while intoxicated, had gone to his ex-partner’s home and spat at her stepfather.    

9. In respect of breaching court orders, Mr Redzic has been convicted of more than 15 offences for breaches ranging from failing to appear in accordance with an undertaking, to breaches of bail and probation conditions.  On 8 November 2013 he was convicted of breaching a Domestic Violence Order involving his ex-partner.  On 15 August 2014 he was convicted of failing to appear in accordance with a bail undertaking and was sentenced to one months’ imprisonment.     

10. On 24 April 2015 Mr Redzic was convicted of Contravention of a Community Service Order and was sentenced to one months’ imprisonment suspended for 6 months. 

11. In respect of traffic offences Mr Redzic has an extensive history including driving unregistered vehicles, unlawful use of a motor vehicle and driving without a licence. 

12. In a written statement dated 7 September 2016 Mr Redzic said that after his parents separated when he was aged six months he continued to live with his mother and they were very poor.  He said that he suffered from epileptic seizures from a young age and developed depression, anxiety and post traumatic stress disorder.  He stated that he suffered verbal and physical abuse from his stepmother and his father.  When he was aged nine years he and his family were imprisoned during the Bosnian War.  They were eventually released and moved to Croatia and he went to live in Germany with his grandparents, but later returned to Bosnia.  His mother had migrated to Australia and he applied to come to Australia to be reunited with her.

13. Mr Redzic stated that he was aged 17 years when he arrived in Australia and attended secondary school in Queensland.  He completed Year 11 and commenced employment.  He said that he was forced to leave home after domestic violence perpetrated by his stepfather and became homeless, depressed and confused.  He turned to alcohol and drugs to cope with his circumstances, and commenced offending in 2003.  He said that in 2009 the Department advised him that further offending could result in the cancellation of his visa.  He moved to Canberra in about 2010 and worked in the building industry before returning to Queensland to be with his then partner.  In about 2013 a close friend was killed in a motor vehicle accident and he said that he became depressed and resumed using alcohol and drugs.  He claimed that mental health issues arising from childhood trauma in Bosnia, in addition to alcohol and drug use, were a major contributing factor to his offending.

1. In respect of court appearances, Mr Redzic stated that the first, second, third and fourth appearances directly related to his use of alcohol and drugs, and the offences were all dealt with by non-custodial penalties.  The first prison sentence was imposed more than six years after his arrival in Australia.  He maintained that the only offence involving violence of any kind was common assault for which he was convicted in 2014, but said that in the circumstances this should not properly be categorised as an offence of violence.  He explained that the offence of contravening a domestic violence order was a technical breach rather than one involving violence.  

2. Mr Redzic conceded that he has committed many offences of dishonesty, but said that these were related to his alcohol and drug use and to the dire circumstances in which he found himself.  He referred to the most serious offence of possession of a precursor, and emphasised that he was foolish to collect a parcel for another person.  He noted that the sentencing Judge concluded that …it’s a not particularly serious example of the offence and imposed a sentence of only six months’ imprisonment, but released him immediately on a recognizance to be of good behaviour.  He added that even for the most serious offences which resulted in a sentence of imprisonment he was initially granted parole, which was subsequently breached.

3. Mr Redzic told the Tribunal that he has not offended against vulnerable persons, and the sentences imposed generally reflect that his offending has not been very serious, with the longest sentence of imprisonment being 18 months.  He said that although he has offended frequently, there has not been an increasing seriousness of offending.  He suggested that the cumulative effect of repeat offending has been no more than moderate, given the relatively minor nature of many of the offences.  Mr Redzic stated further that he has not sought to mislead the Department about his offending, and although he was issued with a warning in 2009 he progressed quite well after that and after his release from prison, but resumed alcohol use and subsequently re-offended.       

4. The Tribunal views Mr Redzic’s crimes very seriously, particularly his repeated failure to adhere to court orders.

   The sentence imposed by the Court – paragraph 13.1.1(1)(c) of Direction 65

5. On 9 July 2007 in the District Court of Queensland regarding the offences of Burglary And Commit Indictable Offence and Enter Premises And Commit Indictable Offence the Judge noted that Mr Redzic was on probation at the time of the offences and that another aggravating factor was the opportunistic nature of the theft, which was undertaken while Mr Redzic was scaling the outside of the apartment building.   

6. On 8 August 2008 in the District Court of Queensland the Judge noted that Mr Redzic had a drug problem and stated:

   Now, if you fail to comply with this order that I’ve made, then you could be taken into prison and have to serve the 9 months’ imprisonment.  So, you have to keep away from drugs over the next 9 months, because if you breach the order in that 9 months, you’ll be taken in and serve the 9 months; …

7. On 6 March 2009 in the Magistrates’ Court of Queensland the Magistrate referred to Mr Redzic’s drug use and stated, when sentencing him to 18 months’ imprisonment:

   I note that you did not show any interest in attending the Drug Court to resolve such issues.

   It appears that you’ve continued to offend and it appears that gaol is the only matter which will deter you, either from committing further offences today.  

   The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness; The cumulative effect of the repeated offending – paragraph 13.1.1(d) and (e) of Direction 65

8. The seriousness of Mr Redzic’s crimes can be demonstrated by his multiple sentences of imprisonment, up to 18 months in duration.  He has committed more than 50 offences over a period of 11 years.

9. The Tribunal finds that Mr Redzic continued to offend, despite periods of imprisonment.  This is indicative of the seriousness with which courts have viewed the cumulative effect of his offences.

   (b)      Risk to the Australian community

10. Paragraph 13.1.2 of Direction 65 sets out principles and factors to which decision-makers should and must have regard in assessing whether the non-citizen represents an unacceptable risk of harm to members of the Australian community. It states:

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

    (1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.

    (2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:

    (a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and

    (b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken.

11. Mr Redzic stated that he has significantly changed his life and that his focus is on remaining free from alcohol and drug use.  He recognised that this has not been tested in the community, but his circumstances of removal from Australia and separation from his family have placed him in a difficult situation.  He said that despite this, he has continued to make steady progress over a lengthy period of confinement and abstinence.  He said that he has the continued support of his family and friends, has work available to him, and a psychologist (Ms L Wu) who is willing to continue to assist him to address his mental health issues.  He said that he has been drug-free for more than one year.  He produced a Certificate of Appreciation from Australian Border Force dated 22 December 2016 in regards to the Immigration Detention Incentives Program, which identified him as someone who has demonstrated ongoing positive behaviours in immigration detention and has contributed to the good order of the Christmas Island Immigration Detention Centre.  He noted that since making his written statement in September 2016 he has been placed in the Privileges Unit at the Detention Centre as a result of nine months’ good behaviour.  He also referred to successful completion of a number of modules of the Transitions Program and the Getting Smart Program in 2009 while in prison.

12. Ms Wu prepared an undated report for one of Mr Redzic’s court appearances.  She stated that he had been consulting her since 17 June 2014 and that he had been diagnosed with depression which had manifested in emotional/behavioural difficulty and the committing of offences.  She said that underlying Mr Redzic’s depression were …multiple issues of cross-cultural readjustment difficulties and unresolved traumas of bullies, feelings of alienation and isolation to sort out.  She added that she was in the process of assisting Mr Redzic to …rebuild his self-esteem/confidence, proper boundary setting and problem solving skills to improve his emotional/behavioural coping and to reduce his chance of re-offense [sic].

13. Clinical records from the International Health and Medical Services (IHMS) on Christmas Island during the period December 2015 to May 2016 indicate that Mr Redzic presented with symptoms of anxiety, depression and low mood.  The records refer to recommendations for regular psychological support sessions and to maintain daily activities to reduce anxiety and depression. 

14. On Mr Redzic’s behalf it was submitted that, although he has breached court orders directed towards rehabilitation and parole orders, he has now matured and that the risk of re-offending is low, and the nature of harm if he re-offends is not very serious.  It was also submitted that none of the offences committed by Mr Redzic is so serious as to warrant a conclusion that any risk of repetition is unacceptable, and the community would be willing to afford him a higher level of tolerance in this respect.          

15. The Tribunal acknowledges that Mr Redzic suffered trauma and mental illness during his childhood in Bosnia during the war, and that his family circumstances in Bosnia were difficult.

16. The Tribunal takes into consideration that, despite successfully completing alcohol and drug programs in prison in 2009, he continued to reoffend when released, including serious drug offences committed in 2010.  He has not provided any proposed steps that have been put in place to minimise the risk of re-offending, other than assuring the Tribunal that he has been drug-free while in immigration detention.  The Tribunal places little weight on the report from Ms Wu as the report is undated, brief and non-specific about measures to reduce Mr Redzic’s likelihood of reoffending.  The clinical notes from IHMS do not provide any insight into the effectiveness of recent treatment, particularly taking into account an extensive criminal history of more than 11 years.          

17. In all the circumstances the Tribunal considers that the risks of recidivism and drug rehabilitation are uncertain.  Mr Redzic has breached numerous court orders in the past and has reoffended despite warnings about the need to remain alcohol-free and drug-free.  Despite his assertions about his progress while in immigration detention, there is no persuasive evidence to suggest that he has rehabilitated properly.  If he reoffends in a manner similar to his past offending, the cumulative impact would cause significant harm to the Australian community.         

18. For these reasons, the Tribunal finds that the first primary consideration weighs strongly in favour of non-revocation of the mandatory cancellation of Mr Redzic’s visa.

    (ii)       Best interest of minor children in Australia

19. The second primary consideration listed in Direction 65 is the Best interests of minor children in Australia affected by the decision.  Paragraph 13.2(1) of Direction 65 states:

    (1)Decision-makers must make a determination about whether revocation is, or is not, in the best interests of the child.

20. It is common ground that the second primary consideration is not relevant to Mr Redzic’s application.

    (iii)      Expectations of the Australian Community

21. The third primary consideration listed in paragraph 13(2) of Direction 65 is Expectations of the Australian Community.  Paragraph 13.3 of Direction 65 provides:

    13.3     Expectations of the Australian community

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

22. On behalf of Mr Redzic it was submitted that the Tribunal should approach the expectations of the community in a similar manner as in previous versions of Directions under the Act; that the Act would be administered in a fair and humane way (Re Leha and Minister for Immigration and Indigenous Affairs [2000] AATA 1054 at [34]; and that expectations should be viewed from the point of view of reasonable members of the Australian community who hold middle-of-the-road views as to migration issues and who do not hold extreme views one way or another (Re Jupp and Minister for Immigration and Indigenous Affairs [2002] AATA 458 at [7(m)]. It was submitted further that the circumstances of Mr Redzic’s offending and his circumstances involving his significant time in Australia, close family ties and mental health issues, are not such that the community would consider non-revocation of the visa cancellation to be appropriate simply because of the nature of the offending. It was submitted that Mr Redzic is not the sort of person whom the community would expect should not hold a visa.

23. The Tribunal refers to Mr Redzic’s extensive history of offending since he arrived in Australia.  He also has an extensive history of non-compliance with court orders including breaches of bail, probation, intensive corrections orders, a domestic violence order and a community service order.  In view of this history, the Tribunal considers that the Australian community would not tolerate such behaviour and would expect that he should not hold a visa.  

24. For these reasons, the Tribunal finds that the third primary consideration weighs strongly in favour of non-revocation of the mandatory cancellation of Mr Redzic’s visa.

    Other considerations

25. Paragraph 14(1) of Direction No 65 states:

    14.      Other considerations – revocation requests

    (1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):

    (a)       International non-refoulement obligations;

    (b)       Strength, nature and duration of ties;

    (c)       Impact on Australia business interests;

    (d)       Impact on victims;

    (e)       Extent of impediments if removed.

    (a)       International non-refoulement obligations

26. Paragraph 14.1(1) of Direction 65 states:

    14.1     International non-refoulement obligations

    (1)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm.Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention); the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or punishment (the CAT); and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the OCCPR). The Act reflects Australia’s interpretation of those obligations and, where relevant, decision makers should follow the tests enunciated in the Act.

27. Mr Redzic told the Tribunal that as he came to Australia on a refugee visa, which is the subject of the cancellation decision, non-refoulement obligations are relevant.  He said that he would be at risk of harm if returned to Bosnia and Herzegovina because of the circumstances in which he came to leave that country.  In his written statement he claimed that his life would be in danger and he …could get executed...He agreed that he has not made an application for a protection visa.  

28. Paragraphs 14.1(4) and (5) of Direction 65 provide:

    (4)Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.

    (5)If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determined that section 48A does not apply to them – sections 48A and 48B of the Act refer).

29. In AZAFQ v Minister for Immigration and Border Protection [2016] FCAFC 105 at 443 the Full Federal Court of Australia noted that the applicant was able to apply for a protection visa while in the migration zone, and the assessment of such an application would require an up-to-date assessment of the conditions in the applicant’s country of origin. Mr Redzic’s circumstances are similar to the extent that he was able to make an application for a protection visa. In Minister for Immigration and Border Protection v Le [2016] FCAFC 120 at 69-71 and 72 the Full Federal Court referred to AZAFQ and held that Australia’s non-refoulement obligations are not a mandatory consideration under s 501(2) of the Act where an application for a protection visa can be made subsequently in Australia.

30. Accordingly Australia’s non-refoulement obligations do not assist Mr Redzic in this case.         

    (b)     Strength, nature and duration of ties

31. Paragraph 14.2(1) of Direction 65 provides:

    14.2Strength, nature and duration of ties

    (1)The strength, nature and duration of ties to Australia.  Reflecting the principles at 6.3, decision-makers must have regard to:

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

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

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

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

32. Mr Redzic stated that he has strong and close ties to the Australian community.  He noted that he came to this country as a child and has lived here for more than 15 years.  His mother and sister are Australian citizens.  He said that he has made a positive contribution to Australia by working, and that his offending did not commence shortly after his arrival in Australia.  He maintained that his mother, who is ill, has been affected significantly by the cancellation decision and his detention and also by the prospect of his removal from Australia.  Mr Redzic stated that his mother and sister would be affected adversely by the non-revocation of his visa cancellation.

33. In a letter to the department dated 2 April 2015 Ms B Prguda, Mr Redzic’s mother, stated:

    My son has asked me to provide you, the Department of Immigration and Citizenship, with a letter in support of reinstating his refugee visa so he can continue to live in Australia.  Armin has tried his best and has promised to get help with his drug addiction, find employment and take control back of his life.  I ask you to please reconsider revoking his visa so he can continue to live in Australia.    

34. In a written statement dated 13 October 2016 Mr M Ramic, self-employed gyprocker (plasterer), stated that he met Mr Redzic in 2003 and they became friends and work colleagues.  He said that Mr Redzic started mixing with the wrong crowd in 2004 and stopped working, so they lost contact.  Mr Ramic stated that several years later he offered a job to Mr Redzic, who worked on and off because the past was still haunting him.  Mr Ramic described Mr Redzic as …a very kind, helpful, honest, intelligent, loyal and a good hearted person.  However he is also naïve and a gullible person…I believe Armin Redzic will change his life for the better this time as he’s becoming much wiser and mature…Mr Ramic said that he would provide Mr Redzic with full-time work as a sub-contractor doing gyprocking in Brisbane as well as helping with accommodation.

1. In oral evidence Mr Ramic said that he used to hear from Mr Redzic from time to time in between periods of imprisonment.  Under cross-examination he agreed that he was not aware of the type of offences committed or the details of the offences, but maintained his offer of assistance with employment and accommodation on the condition that there is no reoffending.                  

2. In an undated written statement Mr S Tupkovic, mechanic, said that he has not known Mr Redzic for long but has spent time with him and is aware of his difficult childhood in Bosnia and his criminal history in Australia. He said:

   I believe that Armin has left this behaviour, when I speak to him he only ever shows respect  and kindness, he has very strong faith and regrets the things that he has done in the past…I truly believe that he would never do this again, in all honesty he doesn’t seem like a criminal to me, he seems like a polite and bright young gentleman that you can have a conversation with and would help anyone in need, his[sic] very kind and gentle, he loves nature and animals, I believe he is of good character.     

3. The Tribunal accepts that Mr Redzic has performed well and contributed to Australian society when employed, and that Mr Ramic has offered to assist with employment and accommodation.  However Mr Redzic arrived in Australia on 3 April 2001 and his first offence was recorded on 3 November 2003, less than three years later, so the Tribunal concludes that the offending occurred relatively soon after arrival.  Despite his claims about the effect of removal from Australia on his mother and sister, there is no evidence to support such claims.  His mother made only a brief written statement and did not refer to the effect of removal on her.  His sister did not make a written statement, and neither his mother nor his sister attended the hearing.  In all the circumstances the Tribunal finds that, although he has lived in Australia for more than 15 years and has ties through his mother and sister, Mr Redzic does not have strong or close ties to Australia.         

   (e)      The extent of any impediments

4. Paragraph 14.5(1) of Direction No 65 provides:

   14.5     Extent of impediments if removed

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

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

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

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

5. Mr Redzic told the Tribunal that if he were removed to Bosnia and Herzegovina he would have a very difficult life.  He said that he has no close family or friends there and would need to try to access mental health services to assist him with psychological issues including depression.  He stated that he has no employment available and that the social welfare system in that country is inadequate in comparison to that in Australia.  However he conceded that he has some extended family in Bosnia and Herzegovina.   

6. The Tribunal accepts that after living in Australia for 15 years there would be some difficulty for Mr Redzic in adjusting to life in Bosnia and Herzegovina.  However he has extended family there, he speaks the language and has a degree of familiarity with that country’s culture.  He would be able to access the health and social welfare services to the same extent as other citizens.  His work skills should assist him to seek employment. 

7. On balance the Tribunal finds that that there are no impediments to Mr Redzic’s removal that weigh in favour of revoking the mandatory cancellation of his visa.

   CONCLUSION

8. In Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 North ACJ stated at [38]:

   The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked.

9. Having regard to the primary considerations and the other relevant considerations specified in Direction 65, and in particular Mr Redzic’s extensive criminal history over a significant period and the seriousness and nature of the offences for which he was convicted, the Tribunal concludes that it cannot be satisfied that there is another reason why the cancellation decision should be revoked.

   DECISION

10. The Tribunal affirms the decision under review.

I certify that the preceding 77 (seventy-seven) paragraphs are a true copy of the reasons for the decision herein of Regina Perton, Member.

[sgd]........................................................................

Associate

Dated: 7 April 2017

Dates of hearing:	17 and 18 October 2016
Representative for the  Applicant:	Mr G Hughan
Solicitors for the Applicant:	Asylum Seeker Resource Centre
Representative for the  Respondent:	Ms J Lucas
Solicitors for the Respondent:	Australian Government Solicitor