Reilly and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1368
•18 May 2021
Reilly and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1368 (18 May 2021)
Division:GENERAL DIVISION
File Number: 2021/1216
Re:Leslie Reilly
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
Decision
Tribunal:The Honourable Senior Member J Rau
Date:18 May 2021
Place:Adelaide
The decision under review is affirmed.
.......................[Sgnd].................................
Senior Member J RauCatchwords
MIGRATION – mandatory cancellation of Class BF Transitional (Permanent) visa under section 501(3A) - where Applicant does not pass the character test – Applicant has substantial criminal record - whether the discretion to refuse to grant the visa should be exercised – consideration of Ministerial Direction No. 90 – decision under review affirmed.
Legislation
Migration Act 1958 (Cth)
Cases
PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162
XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 238
Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561
FYBR v Minister for Home Affairs [2019] FCAFC 185
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
Afu v Minister for Home Affairs [2018] FCA 1311
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIAL
Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member J Rau
18 May 2021
INTRODUCTION
By application dated 3 March 2021, the Applicant seeks review of a decision of the delegate of the Minister dated 25 February 2021 not to revoke the mandatory cancellation (by virtue of s 501(3A) of the Migration Act 1958 (Act)) of the Applicant’s Class BF Transitional (Permanent) visa (visa) pursuant to s501CA(4) of the Act.
The application is made pursuant to s 500(1)(ba) of the Act, which allows applications to be made to the Administrative Appeals Tribunal (Tribunal) for review of decisions of a delegate of the Minister not to revoke a decision to cancel a visa.
The issues before the Tribunal are whether the Applicant meets the character test as defined in s 501(6) of the Act, and if he does not, whether there is another reason why the mandatory cancellation should be revoked (s 501CA(4)(b)(ii) of the Act).
The matter was heard before the Tribunal on 4 and 5 May 2021. The Applicant represented himself and appeared via Microsoft Teams. The Minister was represented by Mr Cummings, who attended the Tribunal in person. The Applicant gave oral evidence to the Tribunal. His son appeared as a witness and gave oral evidence. The Tribunal also received written material into evidence.
BACKGROUND
The Applicant is a 54-year-old citizen of the United Kingdom (DOB: 25 January 1967 (Exhibit A1, p 91). He arrived in Australia in 1971 at the age of four (though the written record of the precise arrival date is illegible – Exhibit A1, pp 129-130). He has lived here since that time but has left the country for short periods of time on a number of occasions (Exhibit A1, p 131-135).
He became the holder of a Class BF Transitional (Permanent) visa (visa) on 1 September 1994 by operation of the Migration Reform (Transitional Provisions) Regulations 1994 (Cth) (Exhibit A1, p 495).
On 24 April 2013, the Applicant was notified of a decision not to cancel his visa (Exhibit A1, p 491). The Applicant signed an acknowledgment by which he confirmed his understanding that he may again be considered for visa cancelation in the event further relevant information came to the attention of the Minister (Exhibit A1, p 494).
On 11 April 2018, the Applicant was given notice that his visa was cancelled under s 501(3A) of the Act with effect from that date (Exhibit A1, p 495). The visa was cancelled on the basis that the Applicant had a substantial criminal record as he had been sentenced to a term of imprisonment of more than 12 months and was serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory (Migration Act 1958 (Cth), ss 501(6)(a) and 501(7)(c)). The basis of that conclusion was the sentence the Applicant received on 17 December 2010 for the offence of aggravated break and enter and commit serious indictable offence while armed, namely, imprisonment for four years and two months. The Applicant was at the time of the cancellation decision imprisoned for the offence of commit an assault that causes harm – basic offence.
The Applicant requested revocation of the cancellation of his visa (Exhibit A1, p 87) and supported that request with submissions and evidence.
On 25 February 2021, a delegate of the Minister decided that the revocation power in s 501CA(4) was not enlivened (Exhibit A1, p 11). The Applicant was notified of the delegate’s decision on the following day (Exhibit A1, p 534).
On 1 March 2021, the Applicant sought review of the delegate’s decision in this Tribunal (Exhibit A1, p 3). The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
OFFENDING
The Applicant has a lengthy criminal history beginning with a conviction for disorderly behaviour in May 1988 (at which time he was aged 19) (Exhibit A1, pp 31-33). There was an earlier offence of assault in 1986 for which he was subsequently arrested on a bench warrant in 2006 and was put under a 12 month bond.
Since his earliest offence the Applicant has been convicted of 50 further offences including dangerous driving whilst under the influence occasioning grievous bodily harm, various driving offences, resist police, breaches of bail and other directions, offensive language, offensive behaviour, assaults, aggravated break and enter and commit serious indictable offence whilst armed, property damage, knife possession, drug possession, and public nuisance.
The pattern of his offending is related to the Applicant’s abuse of alcohol and other substances. He gave evidence of having regularly drunk himself into “oblivion”. His pattern of offending suggests angry, abusive and violent behaviour under the influence of drugs and in particular, alcohol. The Applicant conceded in evidence that he would frequently “black out” and not remember what he had done. There were instances during his evidence when the circumstances of offences or allegations were put to him and he either said “that didn’t happen” or “I don’t remember that”. I did not form the view that the Applicant was deliberately attempting to mislead the Tribunal but I did form the opinion that by reason of his substance abuse, his recall of events was often unreliable or entirely absent.
The Applicant has, on his evidence, not been consuming alcohol for nearly 5 years. He has undertaken courses in anger management and controlling alcohol abuse whilst in prison and immigration detention. The circumstances of his abstinence are however very controlled, by reason of his incarceration. The Applicant states that if released, he would seek appropriate community based treatment/support for his alcoholism. He has made no enquiries regarding a residential treatment programme. A psychological assessment of the Applicant dated 5 July 2019 relevantly states as follows:
“Mr Reilly requires further intervention to target his significant alcohol abuse history. Given his difficulties abstaining from alcohol when in the community, this would best be delivered in an environment where access to substances is limited. If Mr Reilly receives a custodial sentence, he could be referred to the Intensive Drug and Alcohol Treatment Program (IDAPT), currently offered by Corrective Services New South Wales (CSNSW). In the event that Mr Reilly receives a community-based order, it is recommended that he participate in a residential rehabilitation program.” (Exhibit A1, p 146).
There is a strong and direct correlation between the Applicant’s abuse of alcohol and his offending. The level of risk that the Applicant would present to the community if released is significantly determined by his capacity to continue to abstain from alcohol abuse, outside of a controlled environment. There are good reasons to doubt that the Applicant will succeed in abstaining if released into the community. In particular I note his lengthy, in fact life long history of alcohol abuse, and his breach of parole conditions (including no alcohol), contributing to a serious motor vehicle accident when he was driving in excess of a PCA. In sentencing the Applicant for dangerous driving occasioning grievous bodily harm, Justice Ellis made the following remarks:
“He does not seem to have been remorseful for drinking and then driving, given that subsequent to that offence, which I have indicated, took place in 2014 he returned to South Australia and there are two subsequent offences of drive under the influence of alcohol. He has a relatively lengthy criminal history and a bad traffic history, involving a total of four other drink driving offences, as I have said two post-dating the event in South Australia and two pre-dating the event in New South Wales, 2007 and 2010. This was in fact a second mid-range PCA within five years.” (Exhibit A1, p 36)
In relation to the allegations of domestic abuse (see below), the Applicant gave evidence of dysfunctional relationships with women who also abused drugs or alcohol. This does give some reason to be cautious about the accuracy of some uncorroborated statements given by these individuals. The Applicant suggested that some of the allegations made against him were untrue. Nevertheless, the Applicant agreed that many of the allegations made against him were true.
LEGISLATIVE FRAMEWORK
Section 501(3A) of the Act states the Minister must cancel a visa that has been granted to a person if he or she is satisfied the person does not pass the character test because he or she has a substantial criminal record, and 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.
The decision to cancel the visa can be revoked if the Minister, or the Tribunal in the place of the Minister, is satisfied either that the person passes the character test, or there is another reason why the original decision should be revoked.[1] A decision under s 501CA(4) of the Act involves an assessment and evaluation of facts for and against revoking the cancellation. If it is satisfied, following an assessment of those factors, that the cancellation should be revoked, the Tribunal is obliged to act on that view.[2]
[1] s 501CA(4) Migration Act 1958
[2] Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
Does the Applicant Pass the Character Test?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 17 December 2010 the Applicant was sentenced to a term of imprisonment of 4 years and 2 months. As the Applicant has been sentenced to a term of imprisonment exceeding 12 months, he does not pass the character test
Is there another reason the visa cancellation should be revoked?
In considering whether there is another reason to revoke the cancellation of the visa, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) has application.[3]
[3] On 15 April 2021, the former applicable direction, Direction No. 79 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA, was revoked and was replaced by Direction 90.
For the purposes of deciding whether to refuse or cancel a non-citizens visa or whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several principles that must inform a decision maker’s application of the considerations identified in Part 2 where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction may be briefly stated as follows:
(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)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, or by other non- citizens 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 by non- citizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the Primary and Other Considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out four Primary Considerations that the Tribunal must take into account and they are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia; and
(4)expectations of the Australian community.
Paragraph 9 of the Direction sets out five Other Considerations which must be taken into account. These considerations are:
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims; and
d)links to the Australian community, including:
i)strength, nature and duration of ties to Australia; and
ii)impact on Australian business interests
I note the importance of the Other Considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[4]
“…Direction 65 [now Direction 90] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.”[5]
[4] [2018] FCA 594.
[5] Ibid, [23].
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering Primary Consideration 1, paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to 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 the Applicant’s Conduct to Date
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. I will now turn to addressing these considerations.
8.1.1(1)(a)(i) Violent / sexual crimes
Sub-paragraph (a) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered very serious, violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
The Applicant gave evidence that he committed an assault in 1986, for which he was convicted in 2006. On 22 July 1992, the Applicant was convicted of common assault (Exhibit A1, p 33).
On 17 December 2010, the Applicant was convicted of aggravated break and enter and commit a serious indictable offence and sentenced to imprisonment for four years and two months. He and his friends had been removed from a nightclub. They later returned to the venue armed with weapons (hammers and a timber pole), broke in, and then assaulted the manager, terrorised staff and patrons, and damaged property (Exhibit A1, p 49).
On 22 April 2016, the Applicant received a suspended sentence of six months’ imprisonment for commit an assault that causes harm – basic offence (Exhibit A1, p 44). The Applicant repeatedly punched a bar employee in the face in response to the employee asking him to leave the bar (Exhibit A1, p 73).
8.1.1(1)(a)(ii) & (iii) Violent crimes against women/ family violence
A NSW police fact sheet dated 5 August 2008 records the following in respect of the Applicant and Ms Newman (former partner of the Applicant) (Exhibit A4, p 145):
“The family are terrified of the accused as Diane
NEWMAN's children has sought refuge at the victim's
house because of ongoing issues with the family and they
believe this was done as revenge. They are also fearful
there will be further offences attempted against them as
Diane NEWMAN has ended her relationship with him
and since then her car has been destroyed by fire, her
home broken into and items stolen and smashed.”
A final AVO was made against the Applicant to protect Ms Newman’s father (Exhibit A4, pp 159, 163-166). The order appears to have been made after the Applicant smashed a window at Mr Newman’s house by throwing a ceramic vase through it (Exhibit A4, pp 144-145). The vase landed near a baby’s cot (Exhibit A4, p 145). In the affidavit supporting the application Mr Newman states that he heard the Applicant call Mrs Newman “a fucking cunt” (Exhibit A4, p 167).
SAPOL records record the following as having occurred on 1 February 2016 (Exhibit A4, p 10, the victim was the Applicant’s then partner and the Applicant was the accused):
“Victim states that at about 1640Hrs on 1/2/16 she
returned to her home address of and found her
belongings out on the driveway. She states that she
thought the suspect had urinated or poured beer over it
and called out to him asking what he'd done. The suspect
has then come out of the house, holding a jerry can and
said, "It's petrol, get out of here before I pour petrol on
you". The victim has gone to leave after receiving further
threats and felt the accused push her in the back, causing
her to stumble forward. The victim has turned back to
face the accused, he has punched her to her nose with his
left clenched fist and broken her nose (As diagnosed by
GP), before pushing her backwards, causing her to fall
to the ground, landing on her right hand side. The
witness has pulled up in her vehicle and offered
assistance, the victim has refused and the witness has
driven up the road. The suspect has re-emerged from the
house and confronted the victim again telling her to leave
and the victim has walked off. The witness has again
come to the aid of the victim and told her to get into her
car and contacted police, before driving the victim to the
Port Lincoln Hospital. Nil permission/provoked. The
victim believed that the suspect was going to pour petrol
on her and set her on fire. Cause harm as the victim is
believed to have a broken nose as a result of the punch.”
The Tribunal notes that the Applicant disputes that he punched the victim in the nose or that he set her belongings on fire. He said that her injury was acquired elsewhere before she came home. Otherwise he does accept that the incident occurred. Police records do suggest evidence of a fire. Even on the Applicant’s version of events, his actions were extreme and intimidating. His conduct was totally unacceptable. This is even more so if one were to accept that the above event occurred exactly as is set out in that extract from the police record. It is a contemporaneous statement given to the police by the victim on the day of the alleged incident (Exhibit A4, pp 8-9) and the police found blood on the footpath after the alleged incident together with other evidence suggesting that the incident had occurred as claimed (Exhibit A4, p 7). The victim’s subsequent withdrawal of the charges was not based on a concession that the event did not occur, but because she wished to continue her relationship with the accused and was pregnant with his child (Exhibit A4, p 5).
SAPOL records recount a witness having observed on 2 April 2016 “the victim [the Applicant’s then partner] up against the wall with the suspect [the Applicant] acting extremely aggressive towards her” and “the victim up against the wall with the suspect holding her forcefully by the arms then held his hand onto her throat” (Exhibit A4, p 16). The victim later gave sworn evidence of the Applicant forcing her up against a wall and choking her on 2 April 2016 (Exhibit A4, p 46). The Applicant accepted that this occurred.
SAPOL records recount the Applicant having been the subject of two intervention orders issued to protect the victim of the above incidents as of 26 April 2016 (Exhibit A4, p 23).
On 8 July 2016, the victim of the above incidents executed an affidavit in which she explained that the incident in February 2016 caused her to sustain “a concussion that was so significant that [she is] still suffering the effects of it” and a “brain injury whereupon [she] can’t work, [she] was a tattoo artist. [She] can’t cook. [She] can barely count or spell [her] name” (Exhibit A4, p 46). There was no evidence produced to support the assertion that there was such an injury.
The affidavit also refers to an event after the incident on 2 April 2016 in which the Applicant entered the victim’s house without warning, grabbed her around the throat, held her up against the wall and banged her head against the wall repeatedly (Exhibit A4, p 47).
The affidavit also refers to an event on 19 May 2016 in which the Applicant threw a sandwich at the victim, yelled at her, chased her, dragged her by the back of the hair across the road, and threw her on the ground. He later told her to “get the fuck up” and threatened that he would ram the victim’s head into a machine if she did not do so (Exhibit A4, pp 47-48).
The victim also asserts in the affidavit that she has “woken up to [the Applicant] stomping on [her] in the past” (Exhibit A4, p 48) and that the Applicant has kicked in the door to the victim’s daughter’s house on two occasions whilst looking for the victim (Exhibit A4, p 49).
It appears that the complainant and the Applicant were probably heavily intoxicated when many of these events were said to have taken place. These assertions have not been tested in Court. This may well mean that some of the details complained of are unreliable, but there is no doubt that the Applicant abused and assaulted the complainant on multiple occasions.
On 22 December 2017, the Applicant was convicted of breaching the intervention order that was in place for the protection of a former partner (Exhibit A1, p 32; pp 45-46).
The offence that resulted in the cancellation of the Applicant’s visa was also very serious. It occurred when he was on parole with conditions that included no consumption of alcohol. He breached this condition, having a PCA at the time of the accident. The victim of that offence, a passenger in a car the Applicant was driving, suffered rib fractures, a broken rib, broken arms, a fractured collarbone and injuries to his lungs. The Applicant was convicted of dangerous driving occasioning grievous bodily harm and drive under the influence of alcohol and was sentenced to 2.5 years imprisonment (Exhibit A1, pp 34-43).
8.1.1(1)(b)(ii) Offences against government officials
Sub-paragraph (b) of paragraph 8.1.1(1) of the Direction provides that without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i)causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii)crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii)any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));
(iv)where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention.
The Applicant was imprisoned for one month on 4 February 2015 for the offence of resist officer in execution of duty (Exhibit A1, p 32; Exhibit A4, pp. 57-59). The police fact sheet relevantly states the following (Exhibit A4, p 63):
“The accused [upon being awoken by the police]
immediately became aggressive towards police yelling
“Get the fuck out of my house!” Cst HARMER has said
“Leslie, you are under arrest, you are coming with us.”
Cst Harmer has taken hold of the accused’s right arm,
and attempted to pull him to his feet to lead him out of
the room. The accused pulled away from Cst. HARMER
and continued to yell and threaten Police stating “Take
off your badge and have a go! I’ll fucking smash you!”
Cst HARMER has attempted to pull the accused to his
feet, however, the accused grabbed Cst HARMER’s left
arm, pulling Cst HARMER down towards him. Cst
HARMER has landed on top of the accused on the bed,
immediately putting his right wrist into a wrist lock. At
this point I [the author of the fact sheet] have jumped
onto the bed, and placed the accused’s left wrist into a
wrist lock and placed handcuffs on the accused to stop
him from attempting to assault Cst HARMER or myself
any further.
The accused was placed in the rear caged area of
DEN19, as he continually shouted “I’ll fucking see you
in the streets, I’ll get you where you haven’t got a badge
on!”
The Applicant was fined on 2 December 2009 for the offence of resist officer in execution of duty (Exhibit A1, p 32; Exhibit A4, pp 173-174). The police fact sheet relevantly states the following (Exhibit A4, p 177):
“While Police attempted to obtain details from Club staff
and security, the accused REILLY exited the premises out
onto Victoria Ave. There he commence[d] to argue with
Officers regarding the arrest of REES and BOYD, the
accused REILLY was also yelling and inciting the
accused REES and BOYD while they were in the rear of
the Police vehicle.
The behaviour of the accused REILLY was deemed to be
offensive towards the safety of Officers and his
impediment of the investigation. He was subsequently
issued an official Move Along Direction by A/Inspector
DOOLEY. The accused refused to comply with this
direction, where he was again given a direction and that
his failing to comply, he was committing an offence and
he would be arrested. The accused REILLY still refused
to comply with the Direction of a Police Officer, where
he was informed that he was under arrest.
Officers approaching the accused to restrain him, he has
resisted their attempt by struggling and thrashing his
arms about. There Officers had to use reasonable force
to force the accused to the ground to restrain him by way
of handcuffs to the rear of his body. The accused being
restrained and stood up he has forcefully exhaled saliva
from his mouth in the direction of officers. The accused
was then removed from the area and taken to the
awaiting caged Police vehicle.
…
Whilst in custody the accused continued to be of an
aggressive and violent nature towards Police, they were
all non compliant …”
The Applicant was fined on 14 January 2009 for the offence of resist officer in execution of duty (Exhibit A1, p 33; Exhibit A4, pp 207, 209). The police fact sheet relevantly stated the following (Exhibit A1, p 211):
“About 1220am Tuesday 23 December, 2008 the accused
Les REILLY was walking east along the southern
footpath of Eastern Road Bateau Bay, with three other
males. As Police drove past them going west, one of the
group shouted out "Fucking dogs".
Police did a U-Turn and stopped beside the accused. At
this time, it became apparent that the accused's
appearance matched that of a suspect who had damaged
a house nearby about 9.15pm earlier that night in
company with four other males. One of the males who
had been walking with the accused ran south into scrub,
and was not seen again. Two of the others, Ricki Laws
and James Case stopped. The accused looked at Police
and loudly said, "Fuck off." The accused was told to stop
swearing or he would be arrested, to which he yelled,
"Get fucked and fuck off you fucking dog." The accused
was placed under arrest, and his arm was taken hold of.
The accused violently pulled away saying "Get away
from me you cunt."
Fearing that a violent confrontation was about to occur,
Police sprayed the accused with pepper spray. This
appeared to affect the accused, and Police stepped
forward to take hold of him once more. However, he
again pulled violently away from Police, and was
sprayed once again. The accused's face was sprayed with
pepper spray and he was repeatedly told to lie down on
the ground. He refused. Police observed what appeared
to be a knife handle protruding from the accused's rear
pants pocket. When challenged about this, the accused
drew the knife from his pocket and threw it past Police to
the other side of the road. Police struck the side of the
accused's left leg with a long baton and told him to get
on the ground. The accused finally complied and sat
down on the ground.”
The Applicant was convicted of hindering police on 29 September 1991 and resisting police on 24 April 2006 and 16 November 2016 (Exhibit A1, pp 32-33). The circumstances of these offences are unknown.
8.1.1(1)(c) Sentence imposed
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction directs a decision-maker (subject to sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1) of the Direction) to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen/Applicant. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending. The imposition of a custodial sentence is the most serious penalty that can be imposed by the Australian Court and is indicative of the objective seriousness of any offending.
The Applicant has been sentenced to imprisonment for significant periods, including:
·Dangerous driving occasioning GBH – 2 years and 6 months (non-parole period 1 year and 5 months)
·Drive with middle range PCA – 6 months
·Failure to comply with bail agreement – 1 month
·Breach of bond – 6 months
·Commit an assault that causes harm – 6 months (suspended sentence)
·Resist officer in execution of duty – 1 month
·Aggravated break & enter & commit serious indictable offence (armed) – 4 years 2 months (non-parole period 2 years)
·Destroy/damage property in company – 1 year
·Damaging property – 6 weeks (suspended sentence)
The sentences of imprisonment represent the Applicant’s very serious pattern of offending, which is extensive and includes family violence. This should be regarded as very serious.
8.1.1(1)(d) and (e) Frequency of offending/ cumulative effect
Sub-paragraph (d) of paragraph 8.1.1(1) of the Direction points a decision-maker to the frequency of a non-citizen’s offending and whether there is any trend of increasing seriousness.
Since 1986 the Applicant has been a regular offender with the nature of his offending becoming more serious over time.
Regard must also be had to the fact that the Applicant has been sentenced to more than one term of imprisonment for his offending. Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy (PNLB and Minister for Immigration and Border Protection (Migration) [2018] AATA 162 at [22]).
Sub-paragraph (e) of paragraph 8.1.1(1) of the Direction concerns itself with an examination of the cumulative effect of an Applicant’s repeated offending.
The Applicant has committed over 50 offences in the past three decades with a trend of increasing seriousness. The cumulative effect of the Applicant’s offending has been to repeatedly disrupt community safety and to disrupt the peace. This has had a damaging effect on the community.
This behaviour must be seen as cumulatively having had an adverse impact on the Australian community.
8.1.1(1)(f) Making false or misleading statements to the Department
On occasions where the Applicant travelled overseas between 2004 and 2007, he did not disclose his criminal offending on various incoming passenger cards completed by him (Exhibit A1, pp 466 – 474).
In evidence, the Applicant said that he misunderstood the question and thought it referred only to imprisonment. Whilst in immigration detention, the Applicant signed a statutory declaration to this effect (Exhibit A1, p 196). The question on the passenger card refers not to imprisonment but to convictions. It is difficult to see how the Applicant could have honestly made such a mistake.
8.1.1.(1)(g) Re-offending after a warning
Sub-paragraph (g) of paragraph 8.1.1(1) of the Direction looks for evidence about whether the non-citizen has re-offended since being formally warned about the consequences of further offending in terms of the non-citizen’s migration status. The Applicant has re-offended since being formally warned in writing about the consequences that further offending may have on his visa status) (Exhibit A1, p 494). He conceded in his evidence that he “didn’t take the warning seriously”.
Conclusion
The Applicant’s offending and other conduct must be viewed as very serious and weighs heavily against revocation.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 8.1.2(1) provides that in considering the need to protect Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view 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.
Paragraph 8.1.2(2) provides that in assessing the risk that may be posted by the non-citizen 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;
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account (i) information and evidence on the risk of the non-citizen re-offending; and (ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; and
(c)where consideration is being given to whether to refuse to grant a visa to the non-citizen - whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.
Nature of harm should the Applicant engage in further criminal or other serious conduct
The assessment of the nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct, is properly informed by the nature of his offending to date, including any escalation in his offending. This assessment is also informed by the provision in the Direction which stipulates that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases.
The Applicant is a serial offender with multiple convictions. The seriousness of these offences have increased over time. His offending to date is very serious.
The harm that could ensue if the Applicant committed further crimes of violence includes physical, psychological and financial harm to members of the Australian community.
The potential harm arising out of further domestic violence offending by the Applicant is particularly serious for the reasons given by DP Kendall (as his Honour then was) in XFKR and Minister for Immigration and Border Protection (Migration) [2017] AATA 238 at [45]:
“The Tribunal would add that, in a society that adheres to fundamental
sex equality principles, violence that is gendered and directed at women
(and which seeks to degrade and dehumanise women on the basis of sex)
is both individually and systemically intolerable. Its harms are threefold.
First, it results in direct physical and psychological harm for those
women against whom the violence is directed. Second, it psychologically
harms the children of these women – children who, as in this instance,
witness their mothers being abused, degraded and dehumanised ̶ and
sends a message to these children (male and female) that behaviour of
this sort is to be tolerated. Third, it normalises those socially enforced
gender imbalances that allow sex based inequalities and violence to
arise in the first place. The impact this has, socially, on systemic equality
between the sexes cannot be underestimated.”
Contrary to ASFIC[49], serious risk of harm would also be present were the Applicant to engage in further driving offences. As explained by Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection (Migration) [2017] AATA 1561 (Bartlett) at [43] and [45]:
“The Applicant’s driving offences may, at first blush, be considered
relatively minor when viewed against the balance of his history.
However, the theme of attendant recklessness and indifference to laws
and rules governing the operation of a motor vehicle is, in and of itself
significant. Indeed laws that protect road users “go to the essential
safety of the community”. Other parts of his criminal history are
perhaps more serious than his driving/traffic convictions. But, his
failure to understand right from wrong when operating a motor vehicle
— be it drinking and driving, driving without a licence, or driving an
unregistered vehicle — can only lead me to conclude that this
component of his history further confirms the seriousness of his
offending and potential risk to the community.”
The nature of the harm to individuals should the Applicant engage in further criminal or other serious conduct is so serious that any risk of similar conduct in the future is unacceptable.
Likelihood of engaging in further criminal or other serious conduct
The Applicant has engaged in the following rehabilitative courses during the course of his imprisonment and detention (Exhibit A1, p 195, 341 – 347):
·Remand Addictions Program
·Mens Group at Yongah Hill Detention Centre
·Drug and Alcohol education
·Anger management
·Dads connecting with kids
As mentioned above, the Applicant has said he would seek rehabilitative treatment upon his release from detention, but has not made any arrangements yet.
There is insufficient independent evidence provided to demonstrate the Applicant has been successfully rehabilitated in circumstances where:
(i)Neither the Applicant’s earlier term of imprisonment (which was several years long), nor the warning he received in 2014 that future offending may lead to a reconsideration of whether the Applicant’s visa should be cancelled (Exhibit A1, p 494); led him to stop offending.
(ii)The Applicant’s decades-long history of breaching bail and other orders suggests he does not respect lawful authority (Exhibit A1, pp 31-33).
(iii)The Applicant has been a drug consumer and an alcoholic for most of his life (Exhibit A1, p 141). Although the psychological report in which this fact is stated also states that the Applicant’s alcohol abuse disorder is in remission within a controlled environment, the remission has not been tested outside the confines of incarceration or criminal detention (paragraph 8.1.2(2)(b)(ii) of Direction 90). The report indicates that the Applicant’s treatment needs in this regard exceed those which could be given to him in a group setting such as Alcoholics Anonymous or Narcotics Anonymous (Exhibit A1, pp 141-142) and it is unclear what the Applicant plans to do by way of more targeted treatment in the event his visa is returned to him. The Applicant’s assertion that he will remain drug and alcohol-free needs to be considered by this Tribunal in the context of his past attempts to abstain from alcohol having failed (Exhibit A1, pp 391-392).
(iv)The Applicant’s abuse of alcohol appears to be tied to his lack of employment (Exhibit A1, p 140) and his past employment history suggests the Applicant finds it difficult to maintain steady employment.
(v)The Applicant acted violently in immigration detention in the recent past which suggests the Applicant’s reform is incomplete. In October 2020, he swore at and abused a detention centre employee (Exhibit A1, pp 475-476). In the result, the Minister contends that the Applicant remains an unacceptable risk of committing further criminal offences and that the Primary Consideration of the protection of the Australian community therefore weighs very heavily against the revocation of the cancellation of the visa.
(vi)Whilst on parole, a condition of which was that he did not consume alcohol, the Applicant was involved in a serious motor vehicle accident and had been drinking in excess of the legal limit for driving a vehicle.
It is my view, based on all of the evidence, that if the Applicant was released into the community, where he would not be in a controlled environment, he would be very likely to return to heavy consumption of alcohol and as a result be very likely to reoffend.
Conclusion: Primary Consideration 1
This consideration weighs very heavily against revocation.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen (see paragraph (3) below).
(2)This consideration is relevant in circumstances where:
a)a non-citizen has been convicted of an offence, found guilty of an offence, or had charges proven howsoever described, that involve family violence; and/or
b)there is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
(3)In considering the seriousness of the family violence engaged in by the non- citizen, the following factors must be considered where relevant:
a)the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
b)the cumulative effect of repeated acts of family violence;
c)rehabilitation achieved at time of decision since the person’s last known act of family violence, including:
i.the extent to which the person accepts responsibility for their family violence related conduct;
ii.the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children);
iii.efforts to address factors which contributed to their conduct; and
d)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware by a Court, law enforcement or other authority, about the consequences of further acts of family violence, noting that the absence of a warning should not be considered to be in the non-citizen’s favour. This includes warnings about the non- citizen’s migration status, should the non-citizen engage in further acts of family violence.
Paragraph 8.2(2) of Direction 90 states that this consideration is relevant where the non-citizen has been convicted of an offence that involves family violence and/or there is information or evidence from independent and authoritative sources indicating that the non-citizen has been involved in the perpetration of family violence.
The Applicant has a significant history of family violence, as described above.
The cumulative effect of repeated acts of family violence on the Australian community is a very serious matter.
The Applicant’s conviction for contravening an intervention order falls within the inclusive definition of what constitutes family violence in paragraph 4(1) of Direction 90, as do the other acts of uncharged family violence set out above. The Tribunal must consider the factors in paragraph 8.2(3) of Direction 90 where relevant.
In oral evidence, the Applicant accepted responsibility for some of his actions that constituted family violence. The Applicant also acknowledged, to some extent, that his actions constituting family violence have impacted upon his former partners who were the subject of those actions.
The Applicant has, in a controlled sense, made efforts to address factors which contributed to his conduct, by participating in "Mens Group", “Lifeskills” and “Managing Anger” courses whilst in Detention (Exhibit A1, pp 341, 343 – 345).
The nature of his family violence is so serious that he should not be extended the privilege of holding an Australian visa.
Conclusion: Primary Consideration 2
The Applicant has engaged in very serious family violence. Primary Consideration 2 weighs heavily against revocation.
Primary Consideration 3: The best interests of minor children in Australia
Paragraph 8.3(1) of the Direction compels a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision. Paragraphs 8.3(2) and 8.3(3) respectively contain further stipulations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Direction sets out a number of factors to take into consideration with respect to the best interests of minor children in Australia. Those include, relevantly:
· the nature and 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);
· 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;
· 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;
· the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child;
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
· evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
· evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has a grandson in Australia (“Child A”). Child A is the Applicant’s son’s child. Child A is the Applicant’s only grandchild.
Child A is 2 years old. The Applicant has never met the child due to his incarceration and detention. The Applicant has maintained regular electronic communication with Child A. He has never performed a parenting role or provided financial support for Child A.
Child A’s father, (“DR”), does not reside with Child A and Child A’s mother. DR gave oral evidence to the Tribunal. He said that, although he and the child’s mother have had an on and off relationship in the past, they are not currently in a romantic relationship. He said he visits the child for a few regular hours each Tuesday and Sunday at the child’s home. According to his evidence, Child A is essentially in the full-time care of his mother. The Tribunal did not hear about the Applicant’s relationship with Child A’s mother.
Given the apparent estrangement between the DR and Child A’s mother, opportunities to interact with Child A would be limited even if the Applicant were in the community. The Tribunal accepts that it would be in Child A’s best interest to have the opportunity to further develop his relationship with the Applicant in Australia, albeit possible for the Applicant to maintain his current level of contact with Child A electronically.
The Applicant has 12 nieces, nephews and grandnieces and nephews under the age of 18 in Australia, as set out in a family chart annexed to this decision (Annexure 2). I have had regard to the interests of these children.
There is limited evidence before the Tribunal that a meaningful connection exists between the Applicant and these children. There is no evidence that the Applicant maintains communication with them. There is also no evidence before the Tribunal that the children are, or will be, affected by the prior or future conduct of the Applicant. Nor is there evidence that the interests of these children differ from one another. It is my view that the best interests of these children are not materially affected by the decision under review.
Conclusion: Primary Consideration 3
Primary Consideration 3 weighs moderately in favour of revocation.
PRIMARY CONSIDERATION 4: THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
In making the assessment for weight to be allocated to Primary Consideration 4, paragraph 8.4(1) of the Direction provides that the Australian community expects non-citizens to obey Australian laws while in Australia. I should consider whether the Applicant has breached, or whether there is an unacceptable risk that he would breach, this expectation by engaging in serious conduct.
Paragraph 8.4(2) of the Direction directs that a visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through conduct, in Australia or elsewhere, of the following kind:
(a)acts of family violence; or
(b)causing a person to enter into, or being party to (other than being a victim of), a forced marriage;
(c)commission of serious crimes against women, children or other vulnerable members of the community such as the elderly or disabled; in this context, ‘serious crimes’ include crimes of a violent or sexual nature, as well as other serious crimes against the elderly or other vulnerable persons in the form of fraud, extortion, financial abuse/material exploitation or neglect;
(d)commission of crimes against government representatives or officials due to the position they hold, or in the performance of their duties; or
(e)involvement or reasonably suspected involvement in human trafficking or people smuggling, or in crimes that are of serious international concern including, but not limited to, war crimes, crimes against humanity and slavery; or
(f)worker exploitation.
Paragraph 8.4(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.4(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.4(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs [2019] FCAFC 185 (“FYBR”) which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. The Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[6]
[6] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.4 contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
·The Applicant has repeatedly broken the law, committing serious offences;
·He has a long-term history of alcohol abuse relating to his offending;
·There is a very high risk that he would not abstain from alcohol if released into the community;
·He has engaged in acts of family violence and violence against women;
·He has offended against public officials, such as police;
·He has made false declarations on entry cards.
There is a lengthy history of serious offending which is not mitigated to any significant extent by the Applicant’s personal circumstances. Accordingly, the community would expect that the Applicant no longer be extended the privilege of holding an Australian visa.
Conclusion: Primary Consideration 4
In these circumstances, Primary Consideration 4 weighs heavily against revocation.
Other Considerations
It is necessary to look at the Other Considerations listed at paragraph 9 of the Direction. I will now consider each of the four stipulated sub-paragraphs (a), (b), (c) and (d.
(a) International non-refoulement obligations
The Applicant does not make any claims with respect to Australia’s non-refoulement obligations, and none arise on the evidence. This Other Consideration is not relevant.
(b) Extent of Impediments if Removed
As a guide for exercising the discretion, paragraph 9.2 of the Direction directs a decision-maker to take into account 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 any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to that non-citizen in that country.
If the Applicant is returned to the UK he will be returning to a modern European Nation with the same language and a similar culture and political system to that of Australia. The UK has a sophisticated Public Health system and welfare safety net. The Applicant could find work in jobs similar to those he had in Australia when he last worked. He will be able to achieve the same standard of living as other citizens in the United Kingdom.
On the negative side, the Applicant has no friends or other social support networks in the UK. He has no assets and would be unable to afford to establish himself, at least initially.
Overall, having regard to these factors and the totality of the evidence, including the Applicant’s age and health, this Other Consideration weighs moderately in favour of revocation.
(c) Impact on victims
This Other Consideration (c) requires that decision-makers must consider the impact of the section 501 or 501CA decision 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 information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal relating to the impact that the Applicant’s continued presence in Australia would have on any victims. Weight to be given to this Other Consideration (c) is therefore neutral.
(d) Links to the Australian Community
In consideration of this Other Consideration (d), paragraph 9.4 of the Direction requires that decision makers must have regard to the following two factors set out in paragraph 9.4.1 and paragraph 9.4.2 respectively:
·the strength, nature, and duration of ties to Australia; and
·the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Applicant has family in Australia although his only strong connection seems to be with his son who resides, (as the Applicant would if returned to the community), in Adelaide.
A psychologist report relating to DR, dated 2 August 2019, was before the Tribunal. In the report, psychologist Mr Sukovic outlines that DR is “suffering anxiety and depression and the fear of his father’s prospective deportation is detrimentally affecting his mental health” (Exhibit A1, p 215).
When DR was asked in oral evidence whether he was still seeing a psychologist, he said no. He said the psychologist made him feel a lot better and his mental health is going ok at the moment. He said that he and his father’s relationship would be stronger if his father could remain in Australia, but if his father returns to England, he will continue their relationship electronically, and will keep in touch no matter what.
The Applicant’s daughter lives in New Zealand. They maintain communication electronically. The Applicant said that his daughter wants to come live with him in Australia if he is released back into the community, but there are no firm plans.
The Applicant has two brothers on the east coast as well as some of their children and grandchildren, with whom he is not particularly close. His third brother lives in Macedonia.
The Applicant has a niece who lives in Adelaide. He says he has formed a close bond with over the last few years. He gave evidence that she has children, however the Applicant has never met any of these children. I infer from his lack of contact with them that the bond between the Applicant and his niece is not as close as the Applicant states.
On the evidence provided, the Applicant does not have such a close relationship with his brothers such that they would be affected by his removal from Australia. In fact, he gave evidence of being on poor terms with one of them. Although the Applicant says that he would like to strengthen relationships with his son and a niece in Adelaide, it seems that this is more of a plan than a resumption of a previous relationship.
9.4.1(2)(a) How long the non-citizen has resided in Australia
The Applicant has lived in Australia for almost the whole of his life, having moved from England when he was 4 years of age. He considers himself to be Australian, not English. This weighs in his favour.
The Applicant arrived in Australia as a child and began offending in 1986, when he was 19. He has continued to offend since.
The Applicant has, in the past, worked as an asphalter in a full-time capacity. However, he stated in oral evidence that he has not had full time employment for the last 18 years. He has demonstrated limited other positive contributions to society.
9.4.1(2)(b) Strength, duration and nature of family or social links
The Applicant has many friends and non-immediate family in Australia who have written to the Tribunal and expressed a desire to see him remain here (Exhibit A1, p 206ff, pp 231 - 270).
In oral evidence, the Applicant accepted that none of these people were dependent on him for financial or emotional support. The Applicant said that were he to be removed from Australia, he would maintain his relationship with these people via electronic communication.
The Tribunal accepts that there will be an adverse impact on these individuals, but not insurmountable hardship, if the Applicant were to be removed from Australia.
9.4.2 Impact on Australian business interests
The Applicant does not claim that his removal from Australia would adversely impact on Australian business interests. No weight can be allocated under paragraph 9.4.2 of the Direction.
Overall, Other Consideration (d) weighs moderately in favour of revocation.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: neutral;
(b)extent of impediments if removed: moderately in favour of revocation;
(c)impact on victims: neutral;
(d)links to the Australian community including the strength, nature, and duration of ties to Australia: moderately in favour of revocation; and
(e)the impact on Australian business interests: neutral.
CONCLUSION
For the reasons expressed above, I have found that the Applicant has not satisfied me that he passes the character test and I have turned to consider the various matters I must consider in deciding whether to revoke the cancelation of the visa as a consequence.
I consider that the nature of the Applicant’s offending is very serious. It has continued almost without interruption, but for periods of incarceration, since 1986. It has included crimes of violence, domestic violence and disregard for lawful authority.
I consider that there is a very high risk, even a probability, that the Applicant will engage in further serious criminal conduct were he to be released into the community. I have placed significant weight on this consideration. This is a case in my view where the Applicant presents an unacceptable risk to the community.
I consider that the best interests of the Applicant’s grandchild child would be served by revoking the decision to cancel the visa.
However, in all of the circumstances as set out above, I only place moderate weight on this Primary Consideration.
I consider that the expectations of the community, formed in accordance with the norms set out in the Direction, would be that the visa cancellation should not be revoked. I have placed significant weight on this consideration in all the circumstances of this case, for the reasons elaborated upon above.
I have found that Other Considerations (b) and (c) each weigh moderately in favour of revoking the cancellation of the visa for the reasons set out above.
The very heavy weight I have given to the need to protect the Australian community and the Applicant’s high risk of reoffending (as set out above) far outweigh the best interests of the Applicant’s grandchild and the Other Considerations that each weigh only moderately in the Applicant’s favour.
I therefore determine that in the proper application of the direction, the visa cancellation should not be revoked.
Decision
The decision under review is affirmed.
I certify that the preceding 140 (one hundred and forty) paragraphs are a true copy of the reasons for the decision herein of Senior Member John Rau
............................[Sgnd]............................................
Associate
Dated: 18 May 2021
Date of hearing: 4 & 5 May 2021 Solicitor for the Applicant/Applicant:
Self-represented
Solicitor for the Respondent: Sam Cummings, SPARKE HELMORE
Annexure 1 – Applicant’s Conviction History
| Court | Court date | Offence | Result |
| NEWCASTLE DISTRICT COURT | 15/08/2019 | Dangerous driving occasioning GBH - drive under the influence | Imprisonment: 2 years and 6 months (Non parole period: 1 year and 5 months) Driver’s license disqualification: 3 years |
| NEWCASTLE DISTRICT COURT | 15/08/2019 | Drive with middle range PCA - 1st off | Imprisonment: 6 months Driver’s license disqualification: months Participation alcohol interlock program: 2 years |
| Pt Adelaide MC | 22/12/2017 | Fail to comply with bail agreement | Convicted Discharged without penalty |
| Pt Adelaide MC | 22/12/2017 | Other than programs-contravene term of intervention order (2) Drive under disqualification or suspension Drive unregistered motor vehicle on a road | Convicted Imprisonment: 1 month |
| Pt Adelaide MC | 22/12/2017 | Breach of BOND re 22/4/16 | Found proved on original offence Suspension revoked Imprisonment: 6 months |
| Pt Adelaide MC | 08/12/2017 | Drive with excess blood alcohol | Convicted Fined $1100 Drivers licence disqualification: 8 months 9 days |
| Berri MC | 16/11/2016 | Resist police | Convicted 40 hours community service within 3 months |
| Berri MC | 16/11/2016 | Breach of BOND re 22/4/16 | Found proved No further penalty for breach of order |
| Pt Adelaide MC | 31/08/2016 | Offensive language | Convicted Discharged without penalty |
| Pt Adelaide MC | 22/04/2016 | Commit an assault that causes harm - basic offence | Convicted Imprisonment: 6 months (Suspended sentence: bond $500, 12 months 100 hours community service within 4 months) |
| Pt Adelaide MC | 01/10/2015 | Drive with excess blood alcohol | Convicted Fined $900 Drivers licence disqualification: 5 months |
| MUSWELLBROOK LOCAL COURT | 05/02/2015 | Resist officer in execution of duty | Imprisonment: 1 month |
| GOSFORD DISTRICT COURT | 17/12/2010 | Agg B&E & commit serious indictable offence-armed-SI | Imprisonment: 4 years and 2 months (Non parole period with conditions: 2 years) Release subject to participation in drug & alcohol addiction counselling & anger management programs |
| GOSFORD DISTRICT COURT | 17/12/2010 | Destroy/damage property in company >$2K <=$5K-T2 | Imprisonment: 1 year |
| MAITLAND LOCAL COURT | 15/06/2010 | Drive with low range PCA | Fined $450 Court costs $76 Driver’s license disqualification: 6 months |
| WYONG LOCAL COURT | 02/12/2009 | Behave in offensive manner in/near public place/school | Fined $150 Court costs $76 |
| WYONG LOCAL COURT | 02/12/2009 | Refuse/fail to comply with direction | Fined $150 Court costs $76 |
| WYONG LOCAL COURT | 02/12/2009 | Resist officer in execution of duty | Fined $400 Court costs $76 |
| WYONG LOCAL COURT | 14/01/2009 | Custody of knife in public place | Fined $400 Court costs $73 |
| WYONG LOCAL COURT | 14/01/2009 | Use offensive language in/near public place/school | Fined $200 Court costs $73 |
| WYONG LOCAL COURT | 14/01/2009 | Resist officer in execution of duty | Fined $600 Court costs $73 |
| WYONG LOCAL COURT | 14/01/2009 | Possess prohibited drug | Fined $400 Court costs $73 Drugs to be forfeited |
| GRIFFITH LOCAL COURT | 26/11/2008 | Use uninsured motor vehicle | Fined $480 |
| GRIFFITH LOCAL COURT | 26/11/2008 | Use unregistered registrable Class A motor vehicle | Fined $480 |
| GRIFFITH LOCAL COURT | 26/11/2008 | Licence expired less than 2 years before-1st offence | Fined $500 Court costs $73 Driver’s license disqualification: 6 months |
| WYONG LOCAL COURT | 06/08/2008 | Behave in offensive manner in/near public place/school | Fined $200 Court costs $73 |
| NOOSA MAGISTRATES COURT | 13/05/2008 | SOA Commit Public nuisance | No conviction recorded Fined $350 I/d imp. 4 days Time to pay 28 days |
| Berri MC | 22/04/2008 | Estreatment of bail | Found proved estreatment $1000 |
| WYONG LOCAL COURT | 20/02/2008 | Destroy or damage property <=$2000-T2 | Fined $400 Court costs $70 |
| WENTWORTH LOCAL COURT | 04/09/2007 | Drive with low range PCA | Fined $500 Court costs $70 Driver’s license disqualification: 6 months |
| WENTWORTH LOCAL COURT | 04/09/2007 | Possess prohibited drug | Fined $400 Drug to be destroyed |
| Berri MC | 31/07/2007 | Estreatment of bail | Found proved estreatment $500 |
| Pt Adelaide MC | 01/02/2007 | Drive uninsured motor vehicle on road Duty to hold licence or learner's permit Drive unregistered motor vehicle on a road | Convicted Fined $500 Drivers licence disqualification until the Rising of the Court |
| Pt Adelaide MC | 24/04/2006 | Disorderly behaviour Resist police | Convicted Fined $500 |
| PARRAMATTA DISTRICT COURT | 20/02/2006 | AOABH (Bench warrant) | BOND S9: 12 MONTHS |
| CESSNOCK LOCAL COURT | 09/11/2005 | Bring into prison prohibited drug (Cannabis) | BOND S9: 12 MONTHS |
| Pt Adelaide MC | 15/02/2001 | Unregistered vehicle No insurance | Convicted Fined $150 Drivers licence disqualification: 3 days |
| Pt Adelaide MC | 05/04/1995 | Unregistered vehicle Drive uninsured | Convicted Fined $75 |
| Pt Adelaide MC | 28/04/1993 | Offensive language | Convicted Fined $100 |
| Pt Adelaide MC | 22/07/1992 | Common assault | Convicted |
| Pt Adelaide MC | 22/07/1992 | Damaging property | Convicted Imprisonment: 6 weeks (Suspended sentence bond $200, 12 months 60 hours community service) |
| Pt Adelaide MC | 27/09/1991 | Disorderly behaviour | Convicted Fined $200 |
| Pt Adelaide MC | 27/09/1991 | Hinder police | Convicted Fined $100 |
| Pt Adelaide MC | 19/05/1988 | Disorderly behaviour | Convicted Fined $80 |
Annexure 2 – Applicant’s Family Chart
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