Rodchompoo and Minister for Immigration and Border Protection (Migration)
[2016] AATA 872
•4 November 2016
Rodchompoo and Minister for Immigration and Border Protection (Migration) [2016] AATA 872 (4 November 2016)
Division
GENERAL DIVISION
File Number
2016/3468
Re
Narongsak Rodchompoo
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Senior Member CR Walsh
Date 4 November 2016 Place Perth The Tribunal affirms the decision under review.
...........[Sgd].............................................................
Senior Member CR Walsh
CATCHWORDS
MIGRATION – mandatory cancellation of visa by respondent – applicant has substantial criminal record and does not pass the character test – primary and other considerations considered - decision under review affirmed
LEGISLATION
Migration Act 1958 – s 499(1) - s 501 – s 501(6) – s 501(7) – s 501(7)(c) - s 501(3A) – s 501CA(4)
SECONDARY MATERIALS
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA – 7(1) – 8(1) – 13(2) – 6.2(1) – 6.3(2) – 6.3(3) – 6.3(4) – 6.3(5) – 6.3(7) – 13.1(1) – 13.1(2) - 13.1.1(1) – 13.1.2(1) – 13.1.2(2) – 13.2(1) – 13.3(1) – 14(1) – 14.3(1) – 14.5(1)
REASONS FOR DECISION
Senior Member CR Walsh
4 November 2016
INTRODUCTION
Mr Rodchompoo seeks review of a decision of a delegate of the Minister for Immigration and Border Protection (the Minister) refusing his request to revoke the mandatory cancellation of his Class BF transitional (permanent) visa under s 501(3A) of the Migration Act 1958 (the Migration Act) because he was serving a sentence of imprisonment of 12 months or more, is deemed to have a “substantial criminal record” and does not pass the character test in s 501 of the Migration Act.
FACTUAL & PROCEDURAL BACKGROUND
Mr Rodhcompoo is a 36 year old citizen of Thailand. He first arrived in Australia on 3 August 1993 at the age of 13 and has resided here ever since.
Mr Rodchompoo has an extensive criminal history in Australia, comprising 68 convictions in the period April 1999 to September 2015. Mr Rodchompoo’s criminal history in Australia is set out in the Table below.
Court
Court Date
Charges
Result
Fremantle Magistrates Court
8/9/2015
Possession of a prohibited drug with intent to sell or supply (methylamphetamine)
Imprisonment 7 months. Concurrent.
Fremantle Magistrates Court
8/9/2015
Possession of stolen or unlawfully obtained property
Imprisonment 6 months. Concurrent.
Fremantle Magistrates Court
8/9/2015
Possession of prohibited drugs with intent to sell or supply (cannabis)
Imprisonment 5 months. Cumulative.
Fremantle Magistrates Court
8/9/2015
Carried (possessed) an article with intent to cause fear that someone
Imprisonment 2 months. Concurrent.
Fremantle Magistrates Court
8/9/2015
Process a prohibited drug (cannabis)
Imprisonment 2 months. Concurrent.
Fremantle Magistrates Court
8/9/2015
Damaging property
Imprisonment 1 month. Concurrent.
Fremantle Magistrates Court
8/9/2015
Possess a prohibited drug
Imprison 1 month. Concurrent.
Fremantle Magistrates Court
8/9/2015
Breach of Bail Granted (fail to appear soon after)
Imprisonment 1 month. Concurrent.
Fremantle Magistrates Court
8/9/2015
Possessed drug paraphernalia in or on which there was a prohibited drug or plant
Imprisonment 1 month. Concurrent.
Fremantle Magistrates Court
8/9/2015
Possessed drug paraphernalia in or on which there was a prohibited drug or plant
Imprisonment 1 month. Concurrent
Fremantle Magistrates Court
8/9/2015
Disorderly behaviour in a police station or lockup
Fined $300.
Fremantle Magistrates Court
8/9/2015
Give false personal details to police
Fined $300.
Fremantle Magistrates Court
31/7/2015
Criminal damage or destruction of property
Fined $750.
Fremantle Magistrates Court
31/7/2015
Disorderly behaviour in public
Fined $500.
Fremantle Magistrates Court
31/7/2015
Breach of Bail Granted undertaking.
Fined $250.
Fremantle Magistrates Court
31/7/2015
Possess a prohibited drug (cannabis)
Fined $200.
Fremantle Magistrates Court
17/7/2015
Assault public officer
Fined $750.
Fremantle Magistrates Court
17/7/2015
Possess a prohibited dug (Cannabis)
Fined $200.
Fremantle Magistrates Court
17/7/2015
Street drinking
Fined $50.
Fremantle Magistrates Court
17/4/2015
Disorderly behaviour in public
Fined $500.
Fremantle Magistrates Court
5/2/2015
Fail to provide sample of breath for breath analysis test
Fined $2,500. Licence disqualified for 32 months. Concurrent.
Fremantle Magistrates Court
12/1/2015
Carried (possessed) an article with intent to cause fear that someone
Fined $1,200.
Fremantle Magistrates Court
20/10/2014
Possess a prohibited drug (cannabis)
Fined $500.
Fremantle Magistrates Court
20/10/2014
Criminal damage or destruction of property
Fined $400.
Fremantle Magistrates Court
2/9/2014
Possess a prohibited drug (cannabis)
Fined $300.
Rockingham Magistrates Court
29/8/2014
No authority to drive (suspended due to a disqualification notice)
Fined $1,100. Licences disqualified for 9 months. Cumulative.
Perth Magistrates Court
25/7/2014
Without lawful excuse trespassed on a place
Fined $800.
Perth District Court of Western Australia
19/4/2012
Aggravated assault with intent to rob
Imprisonment 2 years.
Perth District Court of Western Australia
19/4/2015
Breach of Bail Granted undertaking
Imprisonment 2 months. Cumulative.
Perth District Court of Western Australia
19/4/2012
Possess a prohibited drug (cannabis)
Fined $350.
Perth District Court of Western Australia
19/4/2012
Unlawful damage
Fined $350, Total imprisonment 2 Years 2 Months
Fremantle Magistrates Court
30/9/2011
Possess a prohibited drug (cannabis)
Fined $300.
Fremantle Magistrates Court
2/8/2011
Wilfully & unlawful destroy or damage property
Fined $750.
Fremantle Magistrates Court
2/8/2011
Breach of Bail Granted (fail to appear soon after)
Fined $500.
Fremantle Magistrates Court
17/1/2011
Carried (possessed) an article with intent to cause fear that someone
Fined $600.
Fremantle Magistrates Court
17/1/2011
Disorderly behaviour in public.
Fined $600.
Fremantle Magistrates Court
5/11/2010
Without lawful excuse trespassed on a place
Fined $400.
Fremantle Magistrates Court
16/3/2010
Possess a controlled weapon
Fined $400.
Fremantle Magistrates Court
9/3/2010
Possess a prohibited drug (cannabis)
Fined $300.
Fremantle Magistrates Court
9/3/2010
Disorderly behaviour in a police station
Fined $250.
Fremantle Magistrates Court
9/3/2010
Breach of Bail Granted undertaking
Fined $250.
Fremantle Magistrates Court
9/3/2010
Disorderly behaviour in public
Fined $200.
Fremantle Magistrates Court
3/11/2009
Disorderly behaviour in public place
Fined $600.
Fremantle Magistrates Court
19/1/2009
Obtain financial advantage
Imprisonment for 8 months. Released on entering recognizance self $2,000 to be of good behaviour for 15 months. Fined $1,000.
Perth Magistrates Court
25/7/2006
Breach of sio (order of 6.4.05)
Imprisonment 8 months. Concurrent.
Perth Magistrates Court
25/7/2006
Knowingly obtain payment only part payable
Imprisonment for 6 months.
Perth Magistrates Court
25/7/2006
Obtain benefit not payable (c’wealth)
Imprisonment 6 months.
Perth Magistrates Court
30/5/2015
Disorderly conduct
Fined $500.
Fremantle Court of Petty Sessions
6/4/2005
False report to police
Imprisonment 8 months suspended on entering bond to be of good behaviour 12 months.
Perth Court of Petty Sessions
19/1/2004
Unlawful wounding
Imprisonment 12 months suspended on entering bond to be of good behaviour 18 months.
Fremantle Court of Petty Sessions
18/2/2003
No motor drivers licence – under suspension
Imprisonment 4 months suspended on entering bond to be of good behaviour 12 months. Licence disqualified for 12 months. Cumulative.
Fremantle Court of Petty Sessions
18/2/2003
Driving under the influence
Fined $800. Licence disqualified for 6 months. Concurrent.
Fremantle Court of Petty Sessions
18/2/2003
Breach of Bail Granted (2 Charges)
On each charge: Fined $100.
Fremantle Court of Petty Sessions
29/10/2002
No motor drivers licence – under suspension
Fined $400. Licence disqualified for 9 months. Cumulative.
Fremantle Court of Petty Sessions
29/10/2002
Exceed Speed
Fined $200.
Fremantle Court of Petty Sessions
6/9/2002
No motor drivers licence
Fined $200. Licence disqualified for 3 months.
Fremantle Court of Petty Sessions
6/9/2002
Failing to stop after accidence
Fined $175. Licence disqualified for 3 months. Concurrent.
Fremantle Court of Petty Sessions
6/9/2002
Fail to report accidence
Fined $125. Licence disqualified for 3 months. Concurrent.
Rockingham Court of Petty Session
9/4/2002
Breach of violence restraining order
Fined $500.
Rockingham Court of Petty Session
9/4/2002
Threating words of behaviour
Fined $200.
Fremantle Court of Petty Sessions
22/6/2001
Possess smoking implement
Fined $100.
Fremantle Court of Petty Sessions
22/6/2001
Damage
Fined $100.
Perth Court of Petty Sessions
27/6/2000
Possess weapon
Fined $100.
Perth Court of Petty Sessions
27/6/2000
Cannabis possess
Fined $100.
Fremantle Court of Petty Sessions
1/4/1999
No motor drivers licence
Fined $75. Licence disqualified for 3 months.
On 22 January 2007, the Department of Immigration and Border Protection (the Department) wrote to Mr Rodchompoo formally warning him that he has become liable for cancellation of his visa, as follows:
WARNING OF POSSIBLE FUTURE LIABILITY UNDER S501 OF THE MIGRATION ACT
This letter is to inform you that, as a result of the offences for which you were sentenced on or before 25 July 2006, you have become liable for cancellation of your Family Migration visa subclass P101.
The Delegate of the Minister for Immigration and Multicultural Affairs has decided on this occasion not to order the cancellation of your Family Migration visa subclass P101 on the basis of these convictions. Nevertheless, you are warned that any further criminal conviction will lead to reconsideration of the cancellation of your visa.
Disregard of this warning will weigh heavily against you if your case is reconsidered.
…
On 7 August 2012, the Department again wrote to Mr Rodchompoo formally warning him, as follows:
NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501 OF THE MIGRATION ACT 1958
On 17 May 2012 the Department of Immigration and Citizenship notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class BF Transitional (permanent) visa will continue to provide you with permission to remain in Australia.
Please note: this decision does not mean that your case cannot be considered again under s 501 in the event of further criminal offending by you.
…
On 29 March 2016, the Department notified Mr Rodchompoo that his Class BF transitional (permanent) visa was cancelled by the Minister under s 501(3A) of the Act. This was a mandatory cancellation as Mr Rodchompoo was serving a sentence of imprisonment of 12 months or more.
On 5 April 2016, Mr Rodchompoo made representations to the Department seeking revocation of the mandatory visa cancellation.
On 24 June 2016, a delegate of the Minister decided not to revoke the decision to cancel Mr Rodchompoo’s visa (the Decision). In reaching the Decision, the delegate concluded the following:
CONCLUSION
…
53.In considering whether I was satisfied that there is another reason why the decision to cancel Mr RODCHOMPOO’s visa should be revoked, I gave significant weight to the serious nature of the crimes committed by Mr RODCHOMPOO, that of Unlawful Wounding and Aggravated assault with intent to rob, which are of a violent nature and find that Mr RODCHOMPOO should expect to forfeit the privilege of remaining in Australia.
54.I also find that that the Australian community could be exposed to great harm should Mr RODCHOMPOO reoffend in a similar fashion. I could not rule out the possibility of further offending by Mr RODCHOMPOO. The Australian community should not have to accept any risk of further harm.
55.Given the crimes committed by Mr RODCHOMPOO, I am of the view that the Australian community would expect that Mr RODCHOMPOO’s visa would remain cancelled and that I would not revoke the mandatory cancellation decision.
…
58.In reaching my decision I conclude that Mr RODCHOMPOO represents and unacceptable risk of harm to the Australian community and that the protection of the Australian community outweighed all countervailing considerations…
On 4 July 2016, Mr Rodchompoo applied to the Tribunal for a review of the Decision.
Mr Rodchompoo is currently in detention at the Christmas Island Immigration Detention Centre awaiting the outcome of this application.
CONSIDERATION
The character test
The Tribunal must first consider whether the applicant has satisfied the Tribunal that he passes the character test pursuant to s 501 of the Migration Act.
Section 501 of the Migration Act deals with refusals or cancellations of visas on character grounds. Section 501(3A) of the Migration Act provides that the Minister “must” cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a)(substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); and
…
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or Territory. [Emphasis added]
Subsection 501(6) of the Migration Act provides that a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)). [Emphasis added]
Subsection 501(7) of the Migration Act relevantly provides:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(c)the person has been sentenced to a term of imprisonment of 12 months or more. [Emphasis added]
As a consequence of receiving a sentence in excess of 12 months, Mr Rodchompoo is deemed to have a “substantial criminal record” and does not pass the character test in s 501 of the Migration Act. As Mr Rodchompoo was serving a sentence of imprisonment, on a full-time basis, in a custodial institution for offences against Australian law he was liable for mandatory cancellation pursuant to s 501(3A) of the Migration Act.
Revocation
Having determined that Mr Rodchompoo does not pass the character test and was liable for mandatory cancellation of his visa the Tribunal must consider whether the mandatory cancellation of Mr Rodchompoo’s visa should be revoked.
Section 501CA(4) of the Migration Act provides that the Minister may revoke the original decision to mandatorily revoke a visa if:
(a) the person makes representations in accordance with the invitation; and
(b) the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
On 22 December 2014, the Minister, in accordance with his powers under s 499(1) of the Migration Act, issued “Direction No 65 Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA” (Direction No 65). Direction No 65 commenced on 22 December 2014 and is binding on all decision-makers, including the Tribunal, from that date. Direction No 65 provides guidance to decision-makers on the application of the character test and the exercise of the discretion.
Paragraph 7(1) of Direction No 65 provides guidance as to how this discretion is to be exercised. Paragraph 7(1) states:
7. How to exercise the discretion
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the considerations in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8(1) of Direction No 65 states:
8. Taking the relevant considerations in account
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case…
…
(4)Primary considerations should generally be given greater weight than the other considerations.
Paragraph 13(2) of Direction No 65 sets out the primary considerations that a decision-maker must take into account:
13. Primary considerations – revocation requests
(2)In deciding whether to revoke the cancellations of a non-citizen’s visa, the following are primary considerations:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Due consideration is to be given to the General Guidance and Principles set out in the “Preamble” in paragraph 6 of Direction No 65. In particular, paragraphs 6.2(1), 6.3(2) 6.3(3), 6.3(3), 6.3(4), 6.3(5)and 6.3(7) provide that:
6.2 General Guidance
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
6.3 Principles
…
(2)The Australian community expects that the Australian Government serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct or people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that noncitizen’s visa should be cancelled, or their visa application refused.
Primary considerations
(i) Protection of the Australian Community
Paragraph 13.1(1) of Direction No. 65 provides that decision-makers considering protection of the Australian community should have regard to the principle in paragraph 6.2(1) (set out above) and paragraph 13.1(2) identifies two factors to which consideration should also be given:
(a) The nature and seriousness of the person’s conduct to date; and
(b)The risk to the Australian community should the person commit further offences or engage in other serious conduct.
(a)Nature and seriousness of the conduct
Paragraph 13.1.1(1) of Direction No. 65 gives a non-exhaustive list of factors to which decision-makers must have regard in considering the nature and seriousness of the person's criminal conduct. Relevantly, they include:
13.1.1 The nature and seriousness of the conduct
(1) In considering the nature and seriousness of the person's criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c) The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the person’s offending and whether there is any trend of increasing seriousness;
(e) The cumulative effect of repeat offending;
…
(g) Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
The Tribunal considers that the offences for which Mr Rodchompoo was convicted are clearly serious offences of the type identified in Direction No 65. It is well-recognised that drug offences, of the nature committed by Mr Rodchompoo, are the cause of considerable harm to the community. Mr Rodchompoo’s convictions are not limited to personal drug possession but include property offences and convictions for supply. Mr Rodchompoo has also received convictions for violent offences, providing false reports to police and offences of dishonesty. The serious nature of those offences are demonstrated by the sentencing remarks of the court.
In relation to the applicant’s conviction for “unlawful wounding” on 19 January 2004, Bromfield SM stated:
Well needless to say Mr Rodchompoo, the circumstances giving rise to your conviction of this offence of unlawfully wounding, are matters of great concern.
You were armed with an implement, a sword and in the altercation with your landlord, he sustained significant injury both to his hand and lower forearm.
Bromfield SM noted that “the seriousness of the matter is such that I’ve concluded that the only appropriate disposition is a term of imprisonment”.
In relation to Mr Rodchompoo’s conviction for making a “false report to the police” on 6 April 2005, Michelides SM stated:
Mr Rodchompoo, the offence that you’ve committed was one that was done out of a sort of vindictive desire to get another man into trouble, who may or may not have been a nice person and he may or may not have been fair to you, but that doesn’t change the fact that what you did was a deliberate attempt to get him charged with a very serious offence. You yourself know how serious the offence of unlawful wounding is; you yourself have been sentenced to a term of imprisonment for just that same offence, much later, after this incident.
It seems that your vindictiveness was so strong that you were determined to maintain your story despite being warned by the police who were well - I think, well-aware or at least very highly suspicious of the nature of the story.
Micehlides SM noted that the matter “is of a high grade of seriousness”.
In relation to Mr Rodchompoo’s 25 July 2006 convictions for “breach of order”, “knowingly obtain payment only part payable” and “obtain benefit not payable”, Magistrate Tarr stated:
You were placed on suspended terms of imprisonment in 2004 and 2005. You started defrauding the Commonwealth in a blatant way, during the first suspended term, on the unlawful wounding charge, you were placed on the second on the 6th of April 2005, during your offending in relation to Social Security fraud.
Social Security fraud is a serious matter, the courts have made that quite clear. Section 80 of the Sentencing Act requires me to suspend you unless special circumstances exist and it’s my view, in this case, they don’t.
In sentencing Mr Rodchompoo in relation to the “aggravated assault” conviction on 19 April 2012, Scott DCJ stated:
… this was a cowardly attack on a defenceless and vulnerable man at night on an oval. You were in the grounds of the Fremantle Primary School. He was obviously a person who was ill. He ultimately escaped. He wasn’t let go, it was out of his own ingenuity that he got away.
You say that Mr Copperwaite played a more active or major role and I accept without reservation that Mr Copperwaite was the one who punched the victim in the first place, and to that end, that was the main violence that was perpetrated.
Be that as it may, this offence occurred over a period of time. There were a number of events to which I have referred. You were in Mr Copperwaite’s company, you were with him. Insofar as the victim was concerned, you were available to assist and participate in this crime.
You would have been perceived by the victim as being a person who could and would step in, in the event that it became necessary. As it turned out, it wasn’t necessary because he had already been punched and the wind had been taken out of his sails.
You say in your pre-sentence report you wished you’d walked away, but you didn’t. I hear what Ms Roche says about the fact that you were apprehensive about Ms Copperwaite, but the bottom line is, you were with him on the night on a social occasion.
You were in the same location as he is and you walked over with him to this victim. You didn’t persuade him over the entire event not to take any step or further action or further violent action against this victim.
In sentencing Mr Rodchompoo in relation to his most recent offences, on 8 September 2015, Magistrate Langdon said:
You have been found in possession and you’ve pleaded guilty today to possessing both cannabis and methamphetamine with intent to sell or supply. In addition to that you’ve been found in possession of $1,025 cash that was reasonably suspected to be unlawfully obtained.
Now, that combination of those three offences in and of themselves, in my view, do call for immediate sentences of imprisonment. People who deal in drugs in the community really ought to expect to go to jail. It’s a fact that you have no idea about the misery that you have caused for other people in the community when you’re prepared to deal in drugs, particularly methamphetamine, where the side effects and other offences that are the result of people using drugs is something that you’ve got to take responsibility for.
Taking into account the nature, frequency and seriousness of Mr Rodchompoo’s offences, the comments of the sentencing Magistrates and Judges, Mr Rodchompoo’s deception of Immigration authorities and disregard of formal warnings (refer to paragraphs 4 and 5 above), together with the “General Guidance” and “Principles” set out in Direction No 65 (refer to paragraph 22 above), the Tribunal finds that on that the offences committed by Mr Rodchompoo weigh in favour of the cancellation of his visa and do so to a significant degree.
(b)The risk should further offences be committed
Paragraph 13.1.2(1) of Direction No. 65 sets out principles and factors to which decision-makers should and must have regard in assessing whether the non-citizen represents an unacceptable risk of harm to members of the Australian community. It provides:
13.1.2 The risk to the Australian community should the non-citizen commit further offences or engage in other serous conduct
(1) In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken.
Nature of the harm if further criminal conduct
The nature of the harm to the community, including the families of those affected by drug dependency, should Mr Rodchompoo again commit similar offences means that the community should not be expected to tolerate a high risk of similar offences being repeated. Mr Rodchompoo’s involvement in violent crimes causes the Tribunal considerable disquiet and the Tribunal considers that the Australian community should not be expected to tolerate any risk of future harm: paragraph 13.1.2 of Direction No 65.
Likelihood of further criminal conduct
Mr Rodchompoo has an extensive criminal record comprising of 68 offences including convictions for violence, drugs, dishonesty, criminal damage and breach of court orders, committed over a 17 year period and continuing unabated up until his most recent convictions and imprisonment last year: refer to paragraph 3 above.
It is clear to the Tribunal, and by his own admission, Mr Rodchompoo’s offending relates to his drug addiction. There is no evidence before the Tribunal of any serious attempts by Mr Rodchompoo to rehabilitate himself. In any event, the fact that Mr Rodchompoo has been convicted recently for drug offences suggest that little has been done to address his addiction: refer to paragraph 3 above.
The Courts have also expressed pessimism in relation to Mr Rodchompoo’s addiction and commitment to rehabilitation. Magistrate Langdon, in relation to the offences of 8 September 2015, stated:
I have determined that in the light of your record where you have repeatedly been misusing drugs, you have a number of convictions for drug use, that - and in light of your lifestyle issues I don’t have any confidence at this stage that you would be able to comply with a community order and I’m not prepared to waste the court’s resources and simply set you up to fail on such an order.
In sentencing Mr Rodchompoo on 29 April 2012 Scott DCJ noted that Mr Rodchompoo’s record “does indicate to a degree an ongoing disregard for the law and the rights of others in our community”.
This pessimism has been echoed by the Prisoners Review Board of Western Australia who, on 21 October 2015, denied Mr Rodchompoo release on parole for the following reasons:
1.Your unmet treatment needs (substance abuse, violence and consequential thinking) as evidence by the current offences, your significant court history and unsatisfactory prison behaviour (charges received in July 2015 relating to diverting medication and assaulting another prisoner). The Board notes that you have not been assessed for intensive treatment intervention due to the backdating of your sentence.
2.Insufficient protective strategies to support release to the community. The Board notes that you have significant mental illness and require a release plan to support the management of this.
Mr Rodchompoo has also breached numerous court orders. In this regard, Scott DCJ noted Mr Rodchompoo’s “apparent disregard for your obligations to appear in court when required to do so”.
Mr Rodchompoo has also received two formal warnings from the Department that future offending would expose him to the risk of visa cancellation and removal: refer to paragraphs 4 and 5 above. Since receiving the last warning, in August 2012, Mr Rodchompoo has received a further 28 convictions. This is a clear indication that Mr Rodchompoo’s risk of recidivism is very high. The fact that Mr Rodchompoo has continued to spurn all chances and opportunities offered to him, together with the pessimistic assessments of his prospects of rehabilitation by the Courts, make it difficult for the Tribunal to reach any other conclusion that Mr Rodchompoo is highly likely to re-offend.
At the hearing of this application, during cross-examination, Mr Rodchompoo was asked by the Minister’s representative to describe, in his own words, the circumstances of his offending in relation to a number of separate convictions. On each occasion, Mr Rodchompoo sought to minimise his involvement in the offending, seeking to impute blame onto the person(s) he was with at the relevant time, stating that he was simply “in the wrong place, at the wrong time”. This demonstrates that Mr Rodchompoo has failed to take ownership of and personal responsibility for his offending, demonstrating that Mr Rodchompoo is far from rehabilitated and is extremely likely to re-offend if he is allowed to remain in Australia.
The length, frequency, nature, seriousness and pattern of Mr Rodchompoo’s offences all give rise to a clear probability that the risk of Mr Rodchompoo re-offending is very high. Given the nature of the offences and the nature of the harm to individuals should Mr Rodchompoo engage in further criminal conduct of this nature, the respondent contends that the Australian community should not be expected to tolerate such a high risk of recidivism: see paragraphs 6.3(3) and 13.1.2(1) of Direction No 65, at paragraphs 22 and 34, respectively, above.
The Tribunal finds that this primary consideration should weigh significantly and determinately in favour of non-revocation of Mr Rodchompoo’s visa.
(ii) Best interests of minor children in Australia affected by the decision
The second primary consideration listed in Direction No 65 is the best interests of any minor children in Australia affected by the decision and, paragraph 13.2(1) of Direction No 65, requires decision-makers to make a determination about whether the refusal is, or is not, in the best interests of the child.
Mr Rodchompoo has not raised any claims in relation to this consideration and none are apparent from the material before the Tribunal.
(iii) Expectations of the Australian Community
The third primary consideration listed in Direction No 65 is the expectations of the Australian Community. Paragraph 13.3 of Direction No 65 provides:
13.3 Expectations of the Australian community
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to cancel the visa held by such a person. Visa cancellation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal again refers to the stated principles in paragraph 6.3 of Direction No 65 (refer to paragraph 22 above) and, in particular, the principle that the Australian community expects the Australian Government to cancel the visas of non-citizens, like Mr Rodchompoo, who commit serious crimes and should generally expect to forfeit the privilege of staying in Australia.
Having regard to those principles, the Tribunal finds that whilst the Australian community may have a greater tolerance for a person, like Mr Rodchompoo, who has lived in Australia for 23 years, in Mr Rodchompoo’s case that tolerance would have long ago been exhausted in light of the extensive number of convictions, the frequency of offending, the blatant disregard of warnings, the pessimistic assessment of rehabilitation and the significantly high risk of re-offending. In such circumstances, the Australian community would expect that Mr Rodchompoo’s visa be cancelled: paragraph 13.3 of Direction No 65.
Other considerations
Paragraph 14(1) of Direction No 65 states:
14. Other considerations – revocation requests
(1)In deciding whether to revoke the mandatory cancellation of a visa, other considerations must be taken into account where relevant, including. These considerations include (but are not limited to):
(a) International non-refoulement obligations;
(b) Strength, nature and duration of ties;
(c) Impact on Australia business interests;
(d) Impact on victims;
(e) Extent of impediments if removed.
(a) International non-refoulement obligations
No claims are made by Mr Rodchompoo in respect of this consideration and none arise on the evidence before the Tribunal.
(b) Strength, nature and duration of ties
In assessing the strength, nature and duration of a non-citizen’s ties to Australia, paragraph 14.2(1) of Direction No 65 requires decision-makers to have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizens immediate family in Australia (where those family members are Australian citizens who have a right to remain in Australia indefinitely).
Mr Rodchompoo has been ordinarily resident in Australia since arriving at the age of 13 in 1993. His immediate family (namely his Mother, Ms Alanya Morris, his brother, Mr Benjamin Morris, his sister, Ms Sandra Morris and his other brother, Mr Henry Morris) reside in Australia. Mr Rodchompoo claims to have worked, albeit to a limited degree, in Australia for “Honbits Australia, Plant Supply, Ace Auto and CTP Export”.
Balanced against this, though, is Mr Rodchompoo’s history of criminality and unemployment. The Tribunal notes that, in relation to Mr Rodchompoo’s recent offences, Magistrate Langdon noted:
… you lead a very transient lifestyle. And you mix with antisocial peers; so negative type peers. And you, unfortunately, with that combination of lifestyle, have been attracted to living a drug dealing lifestyle.
Mr Rodchompoo’s lengthy criminal record, history of unemployment and transient lifestyle clearly does not reflect a positive contribution to the Australian community.
Although it may be said that Mr Rodchompoo has strong ties to Australia, they should not outweigh the protection of the Australian community, being a primary consideration under Direction No 65.
(c) Impact on Australia business interests
Paragraph 14.3(1) of Direction No 65 states “an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivery of an important service in Australia”.
There is no evidence of any impact on Australian business interests. Indeed, given Mr Rodchompoo’s history of unemployment and criminality it is difficult to perceive of any possible impact.
(d) Impact on victims
There is no evidence before the Tribunal of the impact on any victims. However, given that Mr Rodchompoo has a history of convictions for supplying drugs in Australia his removal from Australia would diminish the harm which flows from such conduct.
(e) The extent of any impediments that Mr Rodchompoo may face
Paragraph 14.5(1) of Direction No 65 provides:
14.5 Extent of impediments if removed
(1)The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintain basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a) The non-citizen’s age and health;
(b) Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
Prior to moving to Australia at the age of 13, Mr Rodchompooo lived with his grandfather and uncle in a small village in Thailand. Mr Rodchompoo’s grandfather and uncle are now both dead and he does not know whether his uncle has any remaining family in Thailand. The Tribunal acknowledges that Mr Rodchompoo may experience some hardship as a consequence of moving to Thailand, particularly given he has not returned to Thailand since the age of 13 and claims that he cannot speak or write Thai. However, Mr Rodchompoo told the Tribunal that he did speak Thai before he moved to Australia (at the age of 13) and that it is possible that he could learn to speak it again.
The Tribunal also acknowledges that there is some evidence in the sentencing remarks that Mr Rodchompoo has complex mental health issues and he may have access to a superior health system in Australia in this regard.
Nevertheless, Mr Rodchompoo is a citizen of Thailand and will have the same access to services as any other citizen in Thailand.
CONCLUSION
Having considered and weighed all of the primary considerations and other relevant considerations required to be taken into account by the Tribunal under Direction No 65 and the available evidence, the Tribunal finds that the correct and preferable decision is that the mandatory cancellation of Mr Rodchompoo’s visa should not be revoked. The Australian community is entitled to be protected from the very high risk that Mr Rodchompoo will continue to commit serious offences if he is allowed to remain in Australia, this risk is unacceptable and is not outweighed by considerations favourable to Mr Rodchompoo.
DECISION
For the above reasons, the Tribunal affirms the Decision.
I certify that the preceding 66 (sixty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member CR Walsh ........[Sgd]................................................................
Administrative Assistant
Dated 4 November 2016
Date of hearing 2 November 2016 Representative for the
ApplicantMs S Morris Representative for the
RespondentMr A Gerrard
Solicitors for the Respondent
Australian Government Solicitor
1
0
0