Riscuta and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 471
•28 February 2023
Riscuta and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 471 (28 February 2023)
Division:GENERAL DIVISION
File Number(s): 2022/10186
Re:Doru Riscuta
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member George
Date:28 February 2023
Date of written reasons: 22 March 2023
Place:Adelaide
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 6 December 2022 that the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
..............[Sgnd]..............
Senior Member George
CATCHWORDS
MIGRATION – Class BF Transitional (Permanent) visa – where Applicant does not pass the character test – decision under review affirmed
LEGISLATION
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)
CASES
Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162
FYBR v Minister for Home Affairs [2019] FCA 500
Pavey and Minister for Home Affairs [2019] AATA 4198
Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17
SECONDARY MATERIALS
Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member George
22 March 2023
Mr Riscuta (“the Applicant”) is a citizen of Romania and is aged 65 years.[1] The Applicant immigrated to Australia in 1980, arriving in Sydney, New South Wales.[2]
[1] Exhibit R2, G-Documents, G11, page 91.
[2] Exhibit R2, G-Documents, G11, page 104.
On 1 September 1994, the Applicant was granted a Class BF transitional (Permanent) visa.[3] On 3 June 2020, following criminal offending and a resultant term of imprisonment, the Applicant’s visa was cancelled under s 501(3A) of the Migration Act 1958 (“the Act”) as he failed the “character test”.[4] The Applicant made representations, dated 22 December 2020, to have his visa cancellation revoked under s 501CA of the Act.[5]
[3] Exhibit R2, G-Documents, G18, page 138.
[4] Exhibit R2, G-Documents, G3, Attachment 1, page 15.
[5] Exhibit R2, G-Documents, G11, pages 90-102.
On 6 December 2022, a delegate of the Respondent was not satisfied that the Applicant passed the “character test” and that there was not another reason why the cancellation should not be revoked.[6] This is the reviewable decision.
[6] Exhibit R2, G-Documents, G16, pages 15-35.
The Applicant lodged an application for review of the reviewable decision before the Tribunal on 13 December 2022.[7] The Tribunal has jurisdiction to review that decision pursuant to s 500(1)(ba) of the Act.
[7] Exhibit R2, G-Documents, G1, pages 1-6.
On 14 and 15 February 2023, the hearing proceeded by audio-visual means. The Applicant was self-represented. He gave evidence and did not call any further witnesses. The Respondent was represented by Ms Tattersall of Sparke Helmore.
The Tribunal received the written evidence that is listed in the Exhibit Register marked “Annexure A”.
LEGISLATIVE FRAMEWORK
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to Direction No. 90 (“the Direction”),[8] to revoke the cancellation.
[8] Direction No. 90 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA.
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 15 November 2017, the Applicant was convicted in the Supreme Court of Queensland at Brisbane of Trafficking in dangerous drugs, for which he was sentenced to 10 years imprisonment.[9]
[9] Exhibit R2, G-Documents, G4, page 36.
The operational effect of ss 501(6)(a) and 501(7)(c) of the Act is such that the Tribunal finds that the Applicant has a “substantial criminal record” and, therefore, he does not pass the character test.
Is there another reason why the refusal of the Applicant’s visa application should be revoked?
In considering whether to exercise its discretion, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, the Direction has application.[10]
[10] 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-citizen’s 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 of the Direction where relevant to the decision.
The principles that are found in paragraph 5.2 of the Direction are 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.
Paragraph 7(2) of the Direction provides that the “primary considerations should generally be given more weight than the other considerations”. Paragraph 7(3) provides that “[o]ne or more primary considerations may outweigh other primary considerations.”
BACKGROUND AND OFFENDING
The Applicant was born in Romania in 1957 and is an only child. In 1980, he escaped the communist regime in Romania and resettled in Australia via the UN Refugee Camp in Yugoslavia at aged 23 years.[11] His parents joined him in Australia in 1986 but have since passed away and are buried in Sydney.[12]
[11] Exhibit R2, G-Documents, G11, page 92.
[12] Exhibit A1, page 3, paragraph [5].
The Applicant married in 1985 for the first and only time. He has two sons born in 1985 and 1993 respectively. Both of his sons are now in relationships and have children of their own. The Applicant and his wife divorced in 2001 and they were sentenced in 2002 for conspiring to supply a prohibited drug, namely heroin.[13]
[13] Exhibit R3, Summons Bundle, pages 46, 51.
During the Applicant’s first few years of residence in Australia, he appeared in court several times for a series of driving offences resulting in fines and disqualification from driving.[14] As well as the driving offences, the Applicant has also been charged with a few relatively minor dishonesty matters and various drug offences. In the sentencing remarks of the Applicant’s most recent court appearance, Applegarth J stated the Applicant has a “serious history” of drug offending.[15]
[14] Exhibit R2, G-Documents, G4, pages 37-38.
[15] Exhibit R2, G-Documents, G5, pages 39-48.
On 23 August 1984, the Applicant appeared in the Petty Sessions Court of New South Wales at Fairfield in relation to possession and supply of heroin and was sentenced to 12 months hard labour in relation to supply. The Applicant appealed against the conviction and sentences imposed. The appeals were dismissed on 30 August 1985. However, his sentence relating to possession was deferred on entering a good behaviour bond and the sentence relating to supply was reduced to a fine.
On 6 November 1985, the Applicant was convicted of supply heroin and sentenced to 6 months imprisonment. He appealed against the sentence and the sentence was confirmed on 29 May 1986.
On 8 May 1989, the Applicant was convicted of traffick heroin in the County Court of Victoria at Melbourne and sentenced to 8 years imprisonment. His offending was uncovered following an undercover operation.
On 6 February 1991, the Applicant was being interviewed by the then Department of Immigration, Local Government and Ethnic Affairs regarding his visa status and his future in Australia. During that interview, the Applicant said in relation to the issue of “Difficulties encountered in former country/countries prior to arrival” as to why he should not be deported:
Everything. Police picking on you for no reason, lack of freedom, very difficult for my father (member of Communist party). I could be charged with treason or something like that for escaping illegally. I could have been shot at the border if they had caught me. I hope I don’t have to go back.[16]
[16] Exhibit R3, Summons Bundle, page 100.
On 1 December 1992, the Applicant received notification of a decision not to order his deportation resulting from his conviction of 8 May 1989. The letter stated:
This letter is to inform you that as a result of your conviction for trafficking in a drug of dependence at Melbourne County Court on 8 May 1989 you have become liable to deportation from Australia pursuant to Section 55 of the Migration Act 1958.
A delegate of the Minister for Immigration, Local Government and Ethnic Affairs has decided on this occasion not to order your deportation from Australia on the basis of this conviction. Nevertheless you are warned that any further conviction will lead to the question of your deportation being reconsidered by the Minister or his delegate. Disregard of this warning will weigh heavily against you if the Minister or his delegate reconsiders your case.[17]
[Emphasis added]
[17] Exhibit R3, Summons Bundle, SB2.
On 16 September 1994, the Applicant was convicted of Aid/Abet traffick heroin and sentenced to 2 years imprisonment in the County Court of Victoria at Melbourne. The sentence was suspended for 2 years.
On 12 April 2002, the Applicant was convicted of supply prohibited drug (heroin) and sentenced to 8 years imprisonment in the District Court of New South Wales. An appeal was lodged.
The appeal stated that the Applicant was involved in trafficking heroin with co-offenders that were under surveillance. On 23 November 1994, police observed a co-offender entering the Applicant’s residence and later leaving with a plastic bag which was found by police to contain 195.3 grams of heroin. Recording of conversations between the offenders implicated the Applicant. The appeal was dismissed.[18]
[18] Exhibit R2, G-Documents, G4, page 37; G6, pages 49-80.
On 16 June 2003, the Applicant was convicted of possess prohibited drug and sentenced to one month of imprisonment.
On 14 March 2008, the Applicant received a letter from the then Department of Immigration and Citizenship advising him a delegate of the Minister decided not to cancel his visa. However, the delegate formally warned the Applicant that his visa cancellation may be reconsidered if the Applicant incurs a liability on new grounds. The letter included the following comments:
Mr Risucta’s long history of involvement with drugs is a serious matter and of deep concern to the Department. It is of particular concern that he has chosen to ignore a previous warning about his immigration status. In deciding to warn Mr Riscuta I have given weight to his family connections in Australia and also to the time he has spent in Australia. However, should he continue to use or traffick heroin or other drugs Mr Riscuta must understand this will put at risk his right to live in Australia. Mr Riscuta would be unwise to ignore this warning.[19]
[Emphasis added]
[19] Exhibit R2, G-Documents, G16, pages 133-134.
In his personal circumstances form the Applicant was asked why he re-offended after receiving a warning, he wrote:
I don’t know if any one can explain properly what addiction is or why anyone relapse, or maybe that at the age of 52 not mature enough, or just to fit in with everyone around you.[20]
[20] Exhibit R2, G-Documents, G11, page 99.
Between 2008 and 2010, the Applicant was employed as a cook at a Mediterranean kitchen in Sydney. Between 2010 and 2013, he was self-employed as a “day trader in option on the stock market”.[21] In his personal circumstances form, the Applicant wrote that he attended and volunteered in Romanian cultural activities such as folk dancing and singing, including helping “youngsters to get involved in the cultural aspect of the Romanian community”.[22]
[21] Exhibit R2, G-Documents, G11, page 100.
[22] Exhibit R2, G-Documents, G11, page 100.
The Applicant submits that he has been in a de-facto relationship with Ms Maria Mitru since 2009.[23] Ms Mitru is an Australian citizen.[24] In an undated letter of support for the Applicant, Ms Mitru wrote that the Applicant was “terrified at the prospect of being potentially deported to a country which he is all now but a stranger”. The Applicant had also made a promise to Ms Mitru “to look after me upon his release”.[25]
[23] Exhibit R2, G-Documents, G12, page 104.
[24] Exhibit R2, G-Documents, G15, page 132.
[25] Exhibit R2, G-Documents, G15, page 129.
In his written evidence provided to the Tribunal, the Applicant stated the following about concerns on returning to his country of citizenship:
I own no real estate or other property in Romania. I have no close family in Romania. My parents moved to Australia in 1986. They have since died and are buried here. If I have any living relatives there I am completely unaware of where they are. Significant numbers of my more remote family left Romania during the Ceausescu regime. I do not know where they are.
Upon my return to Romania I would have nothing but my clothing. For the first night after arriving I literally have no idea where I would sleep.
The social security in Romania is not like Australia. The same as several European countries, being eligible for the pension depends on you having worked and paid taxes in that country for all, or most of your working life. Because I left when I was 23, I am not eligible for the aged pension at all. That would leave me to rely solely on unemployment benefits, which (unlike Australia) are not designed to support you for an extended period. Unemployment benefits there are only supposed to fill in the gaps between jobs. Given my health problems (see below) returning to Romania at the age of 65 makes it very likely that I will not be able to support myself, unable to work, and with no family to turn to for help.
Romania was a communist country when I fled in 1980 and I have never returned. Obviously I will never be in a position to pay for private health. I have no idea how the public health system operates in Romania. I am even assuming that there is one.
I literally know no-one in Romania. If I had to return, I would be a complete stranger with nowhere to stay, no idea how to make a living, and no-one to turn to if I need help. My whole life has been in Australia for 43 years.
My ability to visit the graves of my parents on their birthdays is culturally very significant to Romanian people (actually most Eastern European people). Culturally, my parents being buried here means that my home is here, not in Romania. It has been heartbreaking not being able to do that due to being in custody. The thought that I will never be able to visit them ever again due to being deported is unthinkable.[26]
[26] Exhibit R2, G-Documents, G2, page 11.
The Applicant has three grandchildren.[27] They were all born after the Applicant’s most recent period of incarceration. The Applicant wrote the following about his grandchildren:
My relationship with my Grandchildren – particularly the one in [QLD], would continue to grow if my visa cancellation was revoked. It has already been approved by Corrective Services and arranged with my family, that upon my release I will live with my son, daughter in law, and my granddaughter, at [QLD].
I think it is unfair for the decision maker to rely on the limited contact I have had with some of my grandchildren given my circumstances. Potentially those are about to change, and I think it is much more important to consider the relationships I would have with my 3 grandchildren if I am allowed to remain in Australia. In comparison if I return to Romania my entire relationship with them would be restricted to telephone calls and skype. This is no substitute for visiting them, playing with them, and being a regular part of their lives as they grow up.[28]
[27] Exhibit A1, page 3, paragraph [4].
[28] Exhibit R2, G-Documents, G2, page 10.
The Applicant’s eldest son, Mr Nathan Riscuta, has two minor children “E” and “L” aged six years and four years respectively. During cross-examination of the Applicant, the Applicant stated that had not met either child:
MS TATTERSALL: So then your grandchildren, we were speaking about them a little bit in your examination-in-chief, or the Member’s questions to you. So if we speak about Nathan’s children first. So [E], is that?
MR RISCUTA: [E] and [L].
MS TATTERSALL: [E] and [L]. Yes, sorry. Thank you?
MR RISCUTA: Yes, that’s all right.
MS TATTERSALL: So is it right to say that you haven’t met them?
MR RISCUTA: Correct.
MS TATTERSALL: And you seem to be saying that you had some contact with [E] up until she reached a certain age?
MR RISCUTA: Yes.
MS TATTERSALL: So at what age did you stop the contact?
MR RISCUTA: About three years ago. Well, if she was just starting speaking – when I talk – I rang Nathan in the weekends and, “Say hello to Bunu,” and, “Hello Bunu,” she just starts talking, and that’s when in that period of time when Nathan suggested that we stop talking until I get out.
MS TATTERSALL: So when she was about three that was your last contact?
MR RISCUTA: Yes, yes. Maybe earlier. I cannot be specifically now in time because that – sorry I can’t.
MS TATTERSALL: No, no, just remember to the best of your ability. That’s completely fine?
MR RISCUTA: Yes.
MS TATTERSALL: Then [L], I understand you also wouldn’t have met him?
MR RISCUTA: No, I just met him on the photos we have. And I still have a couple more, maybe another six, eight photos, but I though that’s what I sent – the photos which I send, that will be enough.
MS TATTERSALL: You haven’t met [L] but have you had any contact with [L]?
MR RISCUTA: No, no.[29]
[29] Transcript, page 7, lines 1-29.
The Applicant’s younger son, Mr Braden Riscuta, has one minor child “T” aged two years. During cross-examination of the Applicant, the Applicant stated the following about “T”:
MS TATTERSALL: Then [T], Braden’s daughter?
MR RISCUTA: Yes.
MS TATTERSALL: Have you met her?
MR RISCUTA: Yes.
MS TATTERSALL: How many times have you seen her – met her in person?
MR RISCUTA: Four or five times. I think the last one was just in December, I believe, I put it one of those applications. In November or December. And then for the last month or so we got again the visits and it’s hard.
MS TATTERSALL: Yes, and so you’ve seen her in person a few times. Do you otherwise have any contact with her?
MR RISCUTA: On the phone. She just started talking, mumbling, and again, “Bunu. Say hello to Bunu.” And she started giggling with my younger son, and especially when he put the phone on speaker.
MS TATTERSALL: So she’s only two; is that right?
MR RISCUTA: In [redacted] March.[30]
[30] Transcript, page 7, lines 30-45.
In an undated letter, Mr Braden Riscuta has stated that he is willing for the Applicant to live with his family. Mr Braden Riscuta went on to write:
My father aged in his sixties will require family to care for him as time goes on, I worry that if he is not located in Australia, it will become exceedingly difficult for my family and I to care for him in his older age, predominantly in the areas of financial, health and welfare. My father has no living relatives in Romania. Due to the cost of living and lack of affordable rental properties in Romania, my father could be left to live in dire and possibly life-threatening circumstances. If my father remains in Australia, he will be able to live with my family and I and we will be able to support and care for him including financially.[31]
[31] Exhibit A2, page 5.
In cross-examination of the Applicant, he stated that communication with Mr Nathan Riscuta’s children has ceased at the request of Mr Nathan Riscuta. The Applicant stated the following at the hearing:
MS TATTERSALL: Do you communicate with [your family] now?
MR RISCUTA: Yes, except my older son, Nathan, which we have an understanding and we’ll recommence our communication and – we have a few bridges to cross if I will be released in the community.
MS TATTERSALL: So when you say you haven’t spoken to Nathan, when did you stop speaking?
MR RISCUTA: About three years ago, just before I went to (indistinct). I’m in (indistinct) for about two and a-half years, so about three years.
MS TATTERSALL: Was there a reason why you stopped speaking with him or you stopped communicating?
MR RISCUTA: Yes, at his suggestion. He didn’t want his children to know that the grandfather’s spending time in gaol because [E] start to ask questions. And I didn’t take offence. I was upset but I understand.[32]
[32] Transcript, page 5 lines 37-46, page 6 lines1-2.
For his most recent offending, the Applicant was convicted on 15 November 2017 in the Supreme Court of Queensland at Brisbane of Trafficking dangerous drugs. He was sentenced to 10 years imprisonment. In the sentencing remarks of 15 November 2017, Applegarth J described the offending in the following terms:
Mr Riscuta, you are to be sentenced on the count of trafficking in the dangerous drug cocaine. You pleaded guilty on 29 September 2015 to trafficking in that dangerous drug between 1 November 2009 and 20 March 2010 at the Gold Coast and elsewhere in the State of Queensland. You have a serious criminal history, including past offences of drug trafficking, to which I will return.
In 2009 police targeted drug trafficking in the Hervey Bay area. Investigations led to the identification of your co-accused, Mr B, and you. Police undertook electronic and physical surveillance upon you. That surveillance, both electronic and physical, revealed communications and meetings between you and Mr B. It became apparent that you trafficked cocaine to Mr B on the Gold Coast. You had only one customer in that sense, and so you were an essential link in Mr B’s downstream distribution of cocaine, with all the misery that use of that drug does to users and the community.
The evidence established that Mr B sourced cocaine from you and then regularly supplied multiple ounces to others in the Gold Coast area. He was generally selling cocaine between $6,000 and $6,300 per ounce. What you sold the cocaine to him for per ounce is not known, and you apparently cannot remember.
…In summary, during the trafficking period, you supplied at least 46 ounces of cocaine to Mr B. There was an occasion to which you referred of a previous supply of 20 ounces of cocaine. You facilitated the supply of the substantial quantity of a schedule 1 drug by a variety of means. Mr B would travel to your residence near Liverpool in Sydney; there would be arrangements for others to courier the drugs to Mr B in Queensland; or you might transport the drugs personally to Mr B.
To make matters worse, you were on parole for serious drug offences committed in New South Wales during this period of trafficking. Your parole only ceased in early-2010. You were, in a sense, an accomplished drug trafficker, not only by reason of your history, but by the way in which you would speak in code with Mr B. And when you were dealing with couriers, you would speak to them in a foreign language.
…The statement of facts provides example of your dealings with Mr B over this period of approximately five months, and the transactions that were undertaken, sometimes in excess of 10 ounces of cocaine. In early-2010 Mr B complained about the quality of some of the cocaine, and you told him some more would arrive in a day or two. I do not infer that you were sitting on a large inventory of cocaine. For example, in early-December 2009, after discussions of a previous supply of 20 ounces, Mr B asked you whether you could supply the same. You told him you could only get seven ounces of cocaine. Accordingly, you must have sourced your cocaine from other persons in a distribution network, about which I know very little.
…Rather than indicating a plea of guilty would be forthcoming, you defended the charges, which were then in a different form, charging a longer trafficking period. Rather than appear at your trial, you failed to appear and bench warrant was issued for your arrest. That was in August 2013. You remained unlawfully at large for a period of nearly two years. It was only in April 2015 that you handed yourself in to police on the Gold Coast.[33]
[Emphasis added]
[33] Exhibit R2, G-Documents, G5, pages 39-48.
The Applicant’s evidence is that he did not commit any offences whilst unlawfully at large.[34]
[34] Exhibit A1, page 5, paragraph [15].
Queensland Corrective Services classified the Applicant as a low security classification on 4 March 2019. They stated the following:
I considered the offence for which you are currently imprisoned to be serious in nature. You have been sentenced to a total of 10 years imprisonment for trafficking in dangerous drugs. You also have a history of convictions for trafficking offences, however I am of the view that your current risk is able to be managed in accordance with a low security classification given the period of time elapsed since the date of the offence.
…You have been assessed as having a Risk of Reoffending Prison Version (RoR-PV) score of 1 which indicates you fall into the category of prisoners who pose a low risk of further general offending. I note that the score does not indicate your risk of violent re-offending. You have not been recommended for any interventions at this time, however, are encouraged to participate in the voluntary low intensity substance intervention program.[35]
[35] Exhibit R2, G-Documents, G13, pages 123-124.
The Applicant submits that weight should be placed on this evidence.[36]
[36] Exhibit A1, page 5, paragraph [16].
Whilst imprisoned at Palen Creek Correctional Centre, the Applicant received positive reporting from correctional officers. He maintained employment in the laundry, was “polite and compliant”, and “has not been involved in any alcohol or drug related incidents”.[37]
[37] Exhibit A2, page 4.
The Applicant was granted parole in an order made on 7 February 2023. The conditions of that order are relatively strict. The Applicant is to be released into the custody of Australian Border Force on 24 April 2023 and his parole remains in force until 23 April 2025.[38]
[38] Exhibit A3.
In the Applicant’s personal circumstances form he stated the following about his risk of reoffending:
(Sydney) For many years I have been involved in the hospitality industry where the use of cocaine is rampant, it is easy to start to take part in, getting addicted to the drug and the social circle.
Getting involved with Maria, and moving to the Gold Coast in first half of 2010 was the good think that happen to me, but it was to late, the police already was investigating me for my activity
I know that re-offending is not a option any more, just stepping back and take a look at my age and at my failing health. Also I have broken any ties with my previous life style in the hospitality and also my dedication to maria my children and all concern.[39]
[39] Exhibit R2, G-Documents, G11, page 103.
The Applicant has also stated that his health conditions reduce his risk of re-offending. These conditions include ischaemic heart disease with a stent inserted in 2009, hypertension, diabetes, and a L4-5 degenerative back condition with sciatic nerve complications.[40]
[40] Exhibit A1, page 5, paragraph [15].
In his written evidence provided to the Tribunal he stated “I am a 65 year old man now. Even if I wanted to, I could not be a drug trafficker again. I am too old and too unwell”.[41]
[41] Exhibit R2, G-Documents, G2, page 9.
PRIMARY CONSIDERATION 1 – PROTECTION OF THE AUSTRALIAN COMMUNITY
In considering this 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, which the Tribunal will now turn to addressing.
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.
It is unnecessary to repeat the Applicant’s criminal history for the purpose of this consideration. Apart from the driving offences and minor dishonesty matters, the Applicant has numerous convictions for possession, supplying and trafficking of illicit drugs that have resulted in several significant terms of imprisonment in three states of Australia. The possession, supply and trafficking of dangerous drugs are viewed very seriously by the Tribunal.
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 evidence before the Tribunal does not indicate that the Applicant’s offending was of a type contemplated by this sub-paragraph. Accordingly, the Tribunal does not regard this consideration to be relevant.
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.[42]
[42] Pavey and Minister for Home Affairs [2019] AATA 4198, [44].
On 8 May 1989, the Applicant was convicted of trafficking heroin and sentenced to eight years of imprisonment.
On 12 April 2002, the Applicant was convicted of supplying a prohibited drug, namely heroin, and sentenced to eight years of imprisonment.
On 15 November 2017, the Applicant was convicted of trafficking dangerous drugs and sentenced to 10 years of imprisonment.
These are significant custodial sentences, which reflect the objective seriousness of his offending.
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.
The Applicant was charged in 1984 and 1985 for two separate offences of supplying heroin. He was charged in 1989 for trafficking heroin. He was charged in 1994 for aiding and abetting the trafficking of heroin. He was later charged for supply prohibited drug, namely heroin, in 2002. Most recently, he was charged for trafficking dangerous drugs in 2017. The Applicant’s offending has increased with frequency and seriousness between 1984 and 2017.
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 evidence in this matter does not support an objective finding regarding the cumulative effect of the Applicant’s repeated offending. However, it can be inferred from the Applicant’s lengthy periods of incarceration that his persistent offending has consumed significant resources of the state that could have been otherwise used for the benefit of the Australian community.
Sub-paragraph (f) of paragraph 8.1.1(1) of the Direction points to an inquiry as to whether a non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending.
There is no evidence before the Tribunal that the Applicant has provided false or misleading information to the Department, including by not disclosing prior criminal offending. Accordingly, this consideration is not relevant.
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 Tribunal notes that the absence of a warning should not be considered to be in the non-citizen’s favour.
The Applicant was warned twice by a delegate of the Minister of the consequences of further offending in terms of his migration status. The Applicant re-offended after each warning.
The Tribunal does not consider that factors (b) and (f) of paragraph 8.1.1(1) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.1.1(1) of the Direction, in their totality, weigh very heavily against revocation of the cancellation of the Applicant’s visa.
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 the 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 posed 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; and
(b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
oinformation and evidence on the risk of the non-citizen re-offending; and
oevidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence; (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
(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.
Likelihood of engaging in further criminal or other serious conduct
As the Applicant has submitted, the Tribunal places weight on the assessment of Queensland Corrective Services of 4 March 2019. This assessment placed the Applicant “into the category of prisoners who pose a low risk of further general offending”.[43] The Tribunal also places weight on the Applicant’s lack of recent alcohol or drug related incidents.[44] The Tribunal notes that the Applicant is advancing in age and declining in health, however this does not necessarily correlate with an inability to commit further serious drug offending.
[43] Exhibit R2, G-Documents, G13, pages 123-124.
[44] Exhibit A2, page 4.
The Tribunal has considered the Applicant’s parole order and the pro-social circumstances that he seeks to return to in the Australian community, especially with Ms Mitru and Mr Braden Riscuta. However, weighing against this is the Applicant’s previous breaches of orders and the fact that a pro-social family life has not stopped him from offending in the past. Indeed, the Applicant has been warned twice by the Department of immigration of the risks his offending has caused to his visa status, and he did not heed these warnings.
The seriousness of the Applicant’s offending causes this to be a matter where his 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 is unacceptable. This weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 1
Primary Consideration 1 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2(1) of the Direction informs the Tribunal of the Government’s serious concern about conferring on non-citizens who have engaged in family violence the privilege of remaining in Australia. That concern is proportionate to the seriousness of the family violence engaged in by the non-citizen as referred to in paragraph 8.2(3).
The term “family violence” is defined in paragraph 4(1) of the Direction to mean violent, threatening or other behaviour that coerces or controls a member of the person’s family or causes that family member to be fearful. A non-exhaustive list of family violence includes:
(a)an assault; or
(b)a sexual assault or other sexually abusive behaviour; or
(c)stalking; or
(d)repeated derogatory taunts; or
(e)intentionally damaging or destroying property; or
(f)intentionally causing death or injury to an animal; or
(g)unreasonably denying the family member the financial autonomy that he or she would otherwise have had; or
(h)unreasonably withholding financial support needed to meet the reasonable living expenses of the family member, or his or her child, at a time when the family member is entirely or predominantly dependent on the person for financial support; or
(i)preventing the family member from making or keeping connections with his or her family, friends or culture; or
(j)unlawfully depriving the family member, or any member of the family member’s family, [of] his or her liberty.
There is evidence before the Tribunal of several allegations made against the Applicant by a former sexual and business partner, dating back to 2001.[45] The evidence before the Tribunal does not support a finding that the Applicant and this person were family members. They were not united by marriage, be it formal or de facto. There is no evidence before the Tribunal that they formed a household. Whether or not they were domestic partners is an irrelevant consideration for the purposes of Primary Consideration 2. Accordingly, family violence does not arise on the evidence before the Tribunal, and therefore this consideration is not relevant.
[45] Exhibit R3, Summons Bundle, pages 711-714.
Conclusion: Primary Consideration 2
Primary Consideration 2 is not relevant.
PRIMARY CONSIDERATION 3: THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
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. The Tribunal will now turn to addressing these considerations.
Sub-paragraph (a) of paragraph 8.3(4) of the Direction requires the Tribunal to consider 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 Applicant does have meaningful contact with his granddaughter, “T”, through his son Mr Braden Riscuta. However, the Applicant does not have meaningful contact with his two grandchildren, “E” and “L”, through his son Mr Nathan Riscuta. All of these children are young, and the Applicant’s incarceration has caused him to be substantially absent from their lives.
Sub-paragraph (b) of paragraph 8.3(4) of the Direction causes a decision-maker to examine 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 evidence before the Tribunal does not support a finding that the Applicant is likely to play a parental role in the lives of his three grandchildren, be that a positive parental role or otherwise. At most, the evidence indicates that the Applicant may play a positive grandparental role in the lives of these children in due course.
Sub-paragraph (c) of paragraph 8.3(4) of the Direction points to 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.
There is no evidence before the Tribunal that the Applicant’s prior conduct, and any likely future conduct, has, or will have, a negative impact on any minor children. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (d) of paragraph 8.3(4) of the Direction causes a decision-maker to consider 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. Where the evidence indicates that there may be ongoing harm to a child caused by separation from the non-citizen, the decision-maker should evaluate the significance of the harm, its quality and character.[46]
[46] Bettencourt v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] FCA 162, [44].
There is no objective evidence that any ongoing harm would be caused to any minor children were they to be separated from the Applicant.
Sub-paragraph (e) of paragraph 8.3(4) of the Direction points to whether there are other persons who already fulfil a parental role in relation to the child.
The evidence is clear that all the Applicant’s grandchildren presently have persons who already fulfil a parental role in relation to each of those children.
Sub-paragraph (f) of paragraph 8.3(4) of the Direction causes a decision-maker to examine any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
No minor children gave evidence during these proceedings. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (g) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any 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.
There is no evidence before the Tribunal that any 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. Accordingly, the Tribunal does not regard this consideration to be relevant.
Sub-paragraph (h) of paragraph 8.3(4) of the Direction causes the Tribunal to consider any evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
There is no evidence before the Tribunal that any child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct. Accordingly, the Tribunal does not regard this consideration to be relevant.
The Tribunal does not consider that factors (c), (f), (g), (h) of paragraph 8.3(4) of the Direction apply to the Applicant’s offending or circumstances. The rest of the relevant sub-paragraphs of paragraph 8.3(4) of the Direction, in their totality, have limited weight in favour of revocation of the Applicant’s visa.
Conclusion: Primary Consideration 3
Primary Consideration 3 has limited weight in favour of the revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4 – THE EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The relevant paragraphs in the Direction
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. The Tribunal 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, 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.[47]
[47] 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.
Analysis – Allocation of Weight to this Primary Consideration 4
Accordingly, in assessing the weight attributable to Primary Consideration 4, it is necessary to have regard to the following matters:
(a)The Applicant moved to Australia in 1980, when he was twenty-three years old, and commenced his criminal record in 1981 with traffic offences.
(b)The Applicant has repeatedly committed serious drug offences and has served several lengthy terms of imprisonment.
(c)In 1992 and 2008, the Applicant received formal warnings that his offending would impact his visa status.
(d)In August 2013, a bench warrant was issued for the Applicant’s arrest after failing to attend his trial for trafficking in dangerous drugs. He remained unlawfully at large until April 2015.
(e)The Applicant’s criminal conduct is very serious.
The sub-paragraphs of paragraph 8.4 of the Direction weighs very heavily against revocation of the cancellation of the Applicant’s visa.
Conclusion: Primary Consideration 4
Primary Consideration 4 weighs very heavily against revocation of the cancellation of the Applicant’s visa.
OTHER CONSIDERATIONS
It is necessary to look at the Other Considerations listed at paragraph 9(1) of the Direction. The four stipulated sub-paragraphs are considered at (a), (b), (c) and (d), respectively.
(a) International non-refoulement obligations
The issues of Australia’s non-refoulement obligations have not been clearly advanced by the Applicant in support of his present application.[48] Nevertheless, historic claims arise on the evidence. The Applicant escaped Romania to Australia, through the former Yugoslavia, and many years later he feared that he would suffer if he were returned.
[48] Exhibit A1.
This is a matter where it is open to the Tribunal to defer assessment of whether the Applicant is owed non-refoulment obligations,[49] given his ability to apply for a Protection visa if he sees fit to do so. That would be the preferable course of action rather than the Tribunal taking the step in these proceedings to determine whether or not the Applicant is owed non-refoulement obligations on evidence that may be incomplete. Accordingly, a consideration of Australia’s non-refoulement obligations is not relevant.
[49] Plaintiff M1/2021 v Minister for Home Affairs [2022] HCA 17, [9].
(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.
The Applicant is aged 65 years old, turning 66 in August of this year. In his written evidence provided to the Tribunal he stated he suffers with various health difficulties. They include ischaemic heart disease with a stent inserted in 2009, hypertension, diabetes, and a L4-5 degenerative back condition with sciatic nerve complications.[50]
[50] Exhibit A1, page 5, paragraph [15]; page 5, paragraph [17].
The Applicant concedes Romanian was his first language and that he “would remember it after a period back there”.[51] However, he is not “terribly fluent at the moment” and his “ability to read Romanian is a lot worse”. He stated that were he deported his ability to communicate will be at its worse at the beginning, where he would need it the most.
[51] Exhibit R2, G-Documents, G2, page 10.
The evidence before the Tribunal does not support meaningful findings as to the objective levels of social, medical, or economic support that would be available to the Applicant in Romania. However, the Tribunal does place weight on the Applicant’s concerns that he that he does not have real estate in Romania and that he believes that he is ineligible for the pension. From the Applicant’s evidence, the Tribunal infers that the Applicant’s ability to access medical services in Australia would be better than in Romania.
The Tribunal notes Mr Braden Riscuta’s evidence that he would provide support for the Applicant. Similarly, the Tribunal notes the evidence of Ms Mitru of her relationship with the Applicant. On this basis, the Tribunal finds that the social and economic support available to the Applicant is significantly better in Australia and Romania.
Accordingly, the Tribunal is satisfied that the extent of the Applicant’s impediments if removed from Australia carries heavy weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
(c) Impact on victims
This Other Consideration 9(1)(c) requires that decision-makers must consider the impact of the s 501 or s 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.
The Tribunal notes the Applicant’s extensive criminal offending. Nevertheless, there is no evidence before the Tribunal to support a finding regarding the outcome of these proceedings on members of the Australian community, including victims of the Applicant’s criminal behaviour, and the family members of the victim or victims. Accordingly, the Tribunal does not regard this consideration to be relevant.
(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:
(a) the strength, nature, and duration of ties to Australia; and
(b)the impact on Australian business interests.
The strength, nature, and duration of ties to Australia
The Tribunal is bound to consider the impact of its decision on the Applicant’s immediate family members in Australia, where those family members have citizenship, permanent residency, or an indefinite right to remain in Australia.
The Applicant has resided in Australia for 43 years. However, in recent decades much of this time has been spent in custody.
The evidence is clear that the Applicant’s removal from Australia would have a particularly significant effect on his son, Mr Braden Riscuta. Ms Mitru would also be significantly affected. Although the evidence is that the Applicant and Mr Nathan Riscuta are not presently in contact, nevertheless the Tribunal infers that the Applicant’s removal from Australia would also impact him.
Although several issues of minor grandchildren have already been considered, for the purposes of this consideration the Tribunal is satisfied that the Tribunal’s decision would have an impact on them.
Accordingly, the Tribunal is satisfied that the Applicant’s strength, nature, and duration of his ties to Australia carry heavy weight in favour of exercising the discretion to revoke the mandatory cancellation of his visa.
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.
Findings: Other Considerations
The application of the Other Considerations in the present matter can be summarised as follows:
(a)international non-refoulement obligations: not relevant.
(b)extent of impediments if removed carries heavy weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
(c)impact on victims: not relevant.
(d)links to the Australian community carries heavy weight in favour of exercising the discretion to revoke the mandatory cancellation of the Applicant’s visa.
CONCLUSION
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the mandatory cancellation of the Applicant’s visa: either the Applicant must be found to pass the character test; or the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As noted, and as found above, the Applicant does not pass the character test.
In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to the totality of the evidence and those considerations referred to in the Direction. Accordingly, the Tribunal finds as follows:
(a)Primary Consideration 1 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa;
(b)Primary Consideration 2 is not relevant.
(c)Primary Consideration 3 has limited weight in favour of revocation of the mandatory cancellation of the Applicant’s visa;
(d)Primary Consideration 4 weighs very heavily against revocation of the mandatory cancellation of the Applicant’s visa;
(e)The weight attributable to the four-listed Other Considerations as found above.
The Tribunal considers that the totality of the very heavy weight it has attributed to Primary Consideration’s 1 and 4, outweighs the weight it has allocated to the remaining Primary and Other Considerations.
A holistic view of the considerations in the Direction therefore favours the non-revocation of the mandatory cancellation of the Applicant’s visa.
Consequently, the Tribunal cannot exercise the discretion to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the reviewable decision made by the delegate of the Respondent dated 6 December 2022 that the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa not be revoked under subsection 501(CA)(4) of the Migration Act 1958 (Cth) is affirmed.
I certify that the preceding 134 paragraphs are a true copy of the reasons for the decision herein of Senior Member George
.............................[sgnd]..................................
Associate
Date of Decision:
Date of Written Reasons:
28 February 2023
22 March 2023
Date of Hearing:
14 & 15 February 2023
Solicitor for the Applicant:
Self-Represented
Solicitor for the Respondent:
Ms E Tattersall
Sparke HelmoreANNEXURE A – EXHIBIT REGISTER
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
DATE TENDERED
R1
Respondent’s Statement of Facts, Issues and Contentions
R
30/01/23
30/01/23
14/02/23
A1
Applicant’s Statement of Facts, Issues and Contentions
A
10/01/23
10/01/23
14/02/23
R2
Section 501 G-Documents
R
Undated
22/12/22
14/02/23
R3
Summons Bundle
R
Undated
30/01/23
14/02/23
A2
Bundle of Document’s
· Photos
· Periodic Prisoner Report
· Letter of Braden Riscuta
· Email of Applicant to Ms Tattersall
A
Undated
16/01/23
14/02/23
A3
Parole Order (7/2/23) and Letter to the Court (6/2/23)
A
Various
08/02/23
14/02/23
A4
Document addressed to AAT and R signed by Doru Riscuta (undated)
A
Undated
08/02/2023
14/02/23
0
8
0