Romanov and Minister for Immigration and Border Protection (Migration)
[2018] AATA 937
•18 April 2018
Romanov and Minister for Immigration and Border Protection (Migration) [2018] AATA 937 (18 April 2018)
Division:GENERAL DIVISION
File Number: 2018/0478
Re:Done Romanov
APPLICANT
AndMinister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal:Senior Member Linda Kirk
Date:18 April 2018
Place:Sydney
The Tribunal affirms the reviewable decision of the Minister’s delegate not to revoke the Mandatory Visa Cancellation Decision in respect of the Applicant.
.............................[sgd]...........................................
Senior Member Linda Kirk
CATCHWORDS
MIGRATION – mandatory visa cancellation – Class BC Subclass 100 spouse visa – failure to pass character test – substantial criminal record – sentenced to a term of imprisonment of 12 months or more – whether there is another reason why the original decision should be revoked – application of Direction 65 – protection of the Australian community – best interests of minor children – expectations of the Australian community – other considerations - decision affirmed
LEGISLATION
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
CASES
Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693
Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531
Do and Minister for Immigration and Border Protection [2016] AATA 390
Done Romanov v Minister for Immigration and Citizenship [2013] AATA 63
Gaspar v Minister for Immigration and Border Protection [2016fca 1166
Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999
SECONDARY MATERIALS
Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Senior Member Linda Kirk
18 April 2018
BACKGROUND
The Applicant was born in the former Yugoslav Republic of Macedonia (Macedonia) on 26 January 1975. He first arrived in Australia on 13 February 2005. Prior to its cancellation, the Applicant held a Class BC Subclass 100 spouse visa.
The Applicant is married to an Australian citizen, Dijana Romanova, with whom he has two Australian citizen children aged 13 and 9 years. He was previously employed as a forklift driver, flooring installer and rental car attendant over a cumulative period of approximately nine years.
The Applicant has a lengthy criminal history. His first offence in Australia was in 2010 when he had been in Australia for five years. On 11 November 2011 he was convicted of the offences Possess prohibited drug and Supply prohibited drug - commercial quantity in the District Court of New South Wales and sentenced to four years imprisonment with a non-parole period of two years.
On 30 November 2012, a delegate of the Minister advised the Applicant that his visa had been cancelled on character grounds, pursuant to s 501(2) of the Migration Act 1958 (the Act). On 4 December 2012, the Applicant applied to the Administrative Appeals Tribunal (the Tribunal) for review of this decision.
On 8 February 2013, the Tribunal set aside the delegate's decision to cancel the Applicant's spouse visa: Done Romanov v Minister for Immigration and Citizenship [2013] AATA 63 (Deputy President RP Handley) (the first Tribunal decision).
On 13 November 2013, the Department of Immigration and Border Protection (the Department) notified the Applicant that his spouse visa may be liable for cancellation under s 501A(2) of the Act on character grounds.
On 10 April 2014, the Department issued to the Applicant a Notice of Decision not to Cancel Visa under Section 501A of the Migration Act 1958 (Notice). Although the Minister decided not to cancel the Applicant's visa, the Notice contained the following warning:
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in the future. Disregard of this warning will weigh heavily against you if your case is reconsidered.
From July 2015 to October 2016 the Applicant committed a range of offences, which are detailed below, and received fines, disqualifications from driving and prison sentences.
On 30 January 2017, the Applicant was convicted of Possess prohibited drug and two counts of Deal with Property Suspected Proceeds of Crime in the Sutherland Local Court and was sentenced to 12 months imprisonment on each count to be served concurrently. He was also convicted of other offences that were called up on account of the fact that he had breached section 9 bond orders, in relation to offences for which he had earlier been convicted, namely Resist officer in execution of duty, Escape police custody, Custody of Knife in public place, and Fail to appear in accordance with bail granted acknowledgment. The Applicant was sentenced to one month and 27 days imprisonment for these offences. On appeal on 30 March 2017, his sentences were reduced to include imprisonment terms ranging between seven days to five months (concurrent).
On 24 March 2017 the Department of Immigration and Border Protection (the Department) issued the Applicant with a Notice of visa cancellation under s501(3A) of the Act (the Mandatory Visa Cancellation Decision). On this date the Applicant was serving a sentence of full-time imprisonment at South Coast Correctional Centre in New South Wales.
On 6 April 2017 the Applicant made a request for revocation of the Mandatory Visa Cancellation Decision, and made representations to the Minister in support of his revocation request.
On 10 April 2017 the Applicant was convicted of the offence Drive motor vehicle during disqualification period, 2nd + offence and was sentenced to one year imprisonment with a six month non-parole period.
On 23 January 2018 a delegate of the Minister decided not to revoke the Mandatory Visa Cancellation Decision under section 501CA(4) of the Act.
On 29 January 2018, the Applicant lodged an application with the Administrative Appeals Tribunal seeking a review of this decision.
The Applicant is currently detained at Villawood Immigration Detention Centre.
The matter was heard in Sydney on 11 April 2018. The Applicant attended the hearing in person, was represented by his migration agent and assisted by an interpreter.
THE RELEVANT LEGISLATION
Section 501(3A) of the Act compels the Minister to cancel a visa in certain circumstances:
(3A) The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) …; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Subsection 501(6)(a) relevantly provides that a person does not pass the character test if the person has a substantial criminal record. Relevantly, a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more: s 501(7)(c).
Subsection 501CA of the Act applies if the Minister makes a decision under s 501(3A) to cancel a visa that has been granted to a person: s 501CA(1).
Subsection 501CA(4) confers on the Minister the discretion to revoke the original cancellation decision under s 501(3A), termed the original decision. Section 501CA(4) provides:
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
Subsection 500(1)(ba) of the Act provides that applications may be made to the Tribunal for review of decisions of a delegate of the Minister under s 501CA(4) not to revoke a decision to cancel a visa.
MINISTERIAL DIRECTION NO. 65
When considering whether to revoke the cancellation decision, the Tribunal is required under s 499(2A) to have regard to the Minister’s Direction relevant to s 501CA, Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (the Direction).
The Direction sets out the Government’s policy on visa cancellations and contains a number of introductory statements, including the expectation that non-citizens will obey Australian laws and behave in accordance with Australian community values and standards if they wish to retain the privilege of coming to or remaining in Australia.
The Preamble to the Direction provides a framework for the guidance of decision-makers considering cancellation of a visa. Paragraph 6.1 of the Direction begins with a statement of Objectives, the first of which is as follows:
(1) The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.[1]
[1] Direction No. 65 at para 6.1(1).
The Objectives are followed by paragraphs 6.2 and 6.3 described as General Guidance and Principles respectively. The latter set the framework within which the individual considerations set out in Parts A, B and C of the Direction are set.
The first paragraph of the General Guidance provides:
(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.
The following Principles are set out in paragraph 6.3:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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 consideration may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa Applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
(Emphases added)
Paragraph 7(1) sets out how the discretion under s 501 is to be exercised:
(1) Informed by the principles in paragraph 6.3 above, a decision-maker:
(a)must take into account the consideration in Part A or Part B, where relevant, in order to determine whether a non-citizen will forfeit the privilege of being granted, or of continuing to hold, a visa; or
(b)must take into account the considerations in Part C, in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
In the Applicant’s case, Part C is applicable as it is directed to revocation requests made in relation to mandatory visa cancellation decisions made under s 501(3A).
In applying any of the Parts, including Part C, paragraph 8 of the Direction sets out how the considerations are to be applied by a decision-maker. Decision-makers must take into account the primary and other considerations relevant to the individual case.[2] The considerations differ among the three Parts and the reason for that difference is explained in paragraph 8(1):
… Separating the considerations for visa holders and visa Applicants recognises that non-citizens holding a substantive visa will generally have an expectation that they will be permitted to remain in Australia for the duration of that visa, whereas a visa Applicant should have no expectation that a visa application will be approved.
31. Part C of the Direction provides more specific considerations in determining whether to revoke a mandatory cancellation of a non-citizen’s visa. These include Primary considerations and Other considerations. The Primary considerations are:
(a)Protection of the Australian community from criminal and other serious conduct;
(b)The best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
[2] Direction No. 65 at para 8(1).
Other considerations are:
(a)International non-refoulement obligations
(b)Strength, nature and duration of ties [to Australia];
(c)Impact on Australian business interests;
(d)Impact on victims
(e)Extent of impediments if removed.
Paragraph 8(2) of the Direction stipulates that in taking into account the primary or other considerations, a decision-maker must give appropriate weight to information and evidence from independent and authoritative sources.[3] Paragraph 8(3) provides that “Both primary and other considerations may weigh in favour of, or against … cancellation of the visa …”. Generally, primary considerations should be given greater weight than other considerations and one or more primary consideration may outweigh other primary considerations.[4]
[3] Direction No. 65 at para 8(2).
[4] Direction No. 65 at paras 8(4) and 8(5).
THE ISSUES FOR DETERMINATION
Before the power in subsection 501CA(4) to revoke the original decision is enlivened, the decision-maker must be satisfied that the conditions for the exercise of the power have been met.
It is not in dispute that the Applicant does not pass the character test in subparagraph (b)(i) of the subsection. It is therefore necessary to decide whether in accordance with subparagraph (b)(ii) of the subsection “there is another reason why the original decision should be revoked.”[5]
[5] Marzono v Minister for Immigration and Border Protection [2017] FCAFC 66 at [31].
Subsection 501CA(4)(b)(ii) has been interpreted by North ACJ in Gaspar v Minister for Immigration and Border Protection:[6]
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. …[7]
[6] [2016] FCA 1166
[7] Ibid, at [38]
Therefore, the sole issue before the Tribunal is whether there is another reason, pursuant to subsection 501CA(4)(b)(ii), why the Mandatory Visa Cancellation Decision should be revoked. This requires consideration of any mitigating or extenuating factors favouring the Applicant which might militate against the cancellation of his visa.
THE EVIDENCE BEFORE THE TRIBUNAL
The Applicant first arrived in Australia on 13 February 2005 with his Australian citizen wife, Dijana Romanova, as the holder of a spouse visa. The couple met in Macedonia in 1999 and were married on 1 May 2004. They have two boys, the eldest born in March 2005, and the youngest born in September 2008.
Criminal history
A National Police Certificate dated 13 June 2017 and NSW Department of Corrective Services Report dated 21 March 2017 issued in respect of the Applicant shows that he has been convicted of a number of offences in Australia.
Offence(s) Offence Date Court date(s) Outcome (1) Possess prohibited drug
(2) Supply prohibited drug >= commercial quantity
17 June 2010
8 December
2010
11 November
2011
4 years imprisonment, non-parole period of 2 years Drive, licence suspended under s 66 fines Act - 1st offence 15 July 2015 13 August
2015
Dismissed: s 10 (1) Use unregistered registrable class A motor vehicle on road 20 September
2015
29 October
2015
Fine: $500 (2) Use uninsured motor
vehicle (3) Use vehicle on road or road related area m/v tax not paid
(4) Custody of knife in public place - first offence
(5) Escape police custody
20 September
2015
3 December
2015
(convicted)
30 January
2017
(sentenced)
30 March 2017 (sentence varied on appeal)
1 month and 27 days imprisonment, later varied to 7 days imprisonment (6) Resist officer in execution of duty (7) Fail to appear in
accordance with Bail Granted acknowledgement
29 October
2015
Drive, licence suspended under s 66 fines Act - 1st offence 24 March 2016 28 April 2016 Fine: $300 Auto/statutory period- driver Drive vehicle, illicit drug present in blood etc - 1st offence 10 April 2016 12 August
2016
Fine: $300
Disqualification from driving: 3 months
Drive, licence suspended under s 66 fines act - 1st offence 10 April 2016 12 August
2016
s 10a conviction with no other penalty
Disqualification from driving: 3 months
(1) Drive, licence 8-12 March 30 January 12 months imprisonment, later varied to 5 months imprisonment
Compensation: $2,700
s 10a conviction with no other penalty
suspended under s 66 2016 2017 fines act - 1st offence (convicted) 16-18 March
(2) Drive, licence
2016 30 March 2017 suspended under s 66 (sentence fines act - 1st offence varied on appeal) (3) Deal with property suspected proceeds of Crime (4) Deal with property
suspected proceeds of crime Possess prohibited drug 27 October
2016
30 January
2017
(convicted)
1 month imprisonment, later varied to s 10a conviction with no other
penalty
30 March 2017 (sentence varied on appeal) Drive while licence application refused - 1st offence 29 November
2016
30 January
2017
(convicted)
1 month imprisonment, later varied to s 10a conviction with no other
penalty
30 March 2017 (sentence varied on appeal) Disqualification from driving: 12 months
Drive motor vehicle
during disqualification period, 2nd+ offence
24 October
2016
10 April 2017 (convicted) 1 year imprisonment,
non-parole period of 6 months
5 June 2017 (appeal withdrawn)
In a letter dated 20 November 2017 to the National Character Consideration Centre of the Department, the Applicant stated that he did not dispute the charges and convictions in the National Police Certificate.
The circumstances of the commission of the more serious of the Applicant’s offences are detailed below.
Possess and supply prohibited drug – November 2011
On 11 November 2011 the Applicant was convicted of the offences Possess prohibited drug and Supply prohibited drug - commercial quantity in the District Court of New South Wales and sentenced to four years imprisonment with a non-parole period of two years. In his sentencing remarks, Chief Judge Blanch explained that the Applicant was associated with a major dealer of prohibited drugs, and on 17 June 2010 he participated in the sale of 251 grams of cocaine to an undercover police officer. He was also found to be in possession of 4.4 grams of cocaine on 10 December 2010. On this basis, Chief Judge Blanch found that the Applicant was not the main supplier, but his involvement "was no doubt significantly for the purpose of getting drugs for himself'’. His Honour further commented that because of the Applicant’s limited role:
the offence falls at the bottom end of the scale. But of course the scale that we are talking about is a significant scale because it is a commercial quantity ...".
Use unregistered and uninsured vehicle; Custody of knife, Escape police custody, Resist officer in execution of duty; Fail to appear in accordance with Bail Granted acknowledgement – September/October 2015
On 29 October 2015 the Applicant was convicted and fined $500 for the offences, Use unregistered registrable class A motor vehicle on road, Use uninsured motor vehicle and Use vehicle on road or road related area motor vehicle tax not paid, which were committed on 20 September 2015.
On 3 December 2015 the Applicant was convicted of the offences, Custody of knife in public place, Escape police custody, and Resist officer in execution of duty which were also committed on 20 September 2015. On 30 January 2017 he was sentenced to one month and 27 days imprisonment, which was later varied to seven days imprisonment.
At the hearing, the Applicant was questioned about the circumstances surrounding the commission of these offences. He told the Tribunal that he purchased a car without plates from a car-yard and was told by the salesman that he could drive the vehicle in order to get a ”blue slip” to have the car registered. En route to his destination, the Applicant was pulled over by police and questioned. He was charged with the motor vehicle related offences detailed above and his vehicle was searched.
The Applicant told the Tribunal that the knife that was found by police in his car was a plastic knife he used for cutting fruit and it was in his lunchbox in his backpack. He was questioned by the police about whether something under a car parked alongside his car belonged to him. The police told him he was free to go, but they then changed their mind and grabbed him and took him to the police station. He denied that he escaped from police custody or resisted arrest.
On 29 October 2015 the Applicant was convicted of the offence Fail to appear in accordance with Bail Granted acknowledgement for failing to appear in accordance with his bail conditions. When questioned about this at the hearing, the Applicant said that he had phoned the court the day before he was due to appear and notified the court officer to that he was unable to attend on the day specified as he was required to work. He appeared at court the following day and was convicted of the above offence.
Drive while suspended, deal with property suspected proceeds of crime – March 2016
On 30 January 2017 the Applicant was convicted of Drive, licence suspended and Deal with property suspected proceeds of crime for offences committed in March 2016. For these offences he was sentenced to 12 months imprisonment, later varied to 5 months imprisonment, and required to pay compensation of $2,700.
When questioned about this at the hearing, the Applicant said in relation to the first offence that he missed a re-payment that was due and his licence was suspended. However he was unaware of the suspension because he had not been advised of this in writing. In relation to the second offence the Applicant said he bought a BMW at St George and paid $6000 for the vehicle and had it checked and registered. The vehicle had been purchased fraudulently, and the Applicant was charged as it was assumed he was complicit in the offence.
Driving vehicle with illicit drug present in blood – April 2016
On 28 August 2016 the Applicant was convicted of Drive vehicle, illicit drug present in blood for an offence committed on 10 April 2016. The Applicant was questioned about this offence at the hearing and he told the Tribunal that he did not recall it. He said that he previously had a cocaine addiction and that he was using cocaine in 2016 for a short period of time.
Possess prohibited drug – October 2016
On 30 January 2017 the Applicant was convicted of Possess prohibited drug for an offence committed on 27 October 2016. The Applicant was questioned about this offence and he told the Tribunal that he was a passenger in a car that was searched by police and drugs (crystalline methamphetamine or “ice”) were found. He said that he does not know why he was charged and that he was pressured by police to say that the drugs were his although he did not know to whom they belonged.
Drive motor vehicle during disqualification period – October 2016
On 10 April 2017 the Applicant was convicted of Drive motor vehicle during disqualification period for an offence committed on 24 October 2016. He was sentenced to one year imprisonment with a non-parole period of six months.
When questioned about this offence at the hearing, the Applicant told the Tribunal that he drove on this occasion as he had made a promise to his son that he would drive him to soccer. He knew that it was wrong for him to drive, but he felt it was important to keep his promise to his son.
Applicant’s responsibility and remorse for criminal behaviour
In a letter dated 18 January 2018 to the National Character Consideration Centre, the Applicant stated:
…I am not making excuses I have offended and I took absolute responsibility for my recent offences. I will never offend again in my life. I beg for a warning be (sic) given to me to make a change.
…
I am asking you to please give me another chance to prove myself. I am truly sorry for the decision I made. I just need one chance to go back into the community again as a proud law abiding person.
…
I now realise the consequences of engaging in such activities, both in relation to myself and the broader community. I would never engage in anything similar in the future and would distant (sic) myself from any potential disregarding of Australia (sic) law and order.
In a Statutory Declaration dated 27 February 2018 the Applicant referred to the circumstances surrounding the offence Drive motor vehicle during disqualification period and stated:
…
7I have paid heavily for my mistake. I have spent a long time being imprisoned, in jail and now in detention.
8I have had a lot of time to realise how valuable and important my family is to me.
9It is only my family that makes my life worthwhile.
10I know this because the pain and angst of losing my liberty and my family has changed me.
…
14I misunderstood the seriousness of my offence.
15I made a terrible error of judgment in deciding to drive my children to soccer.
16I learnt a very harsh lesson that I will never repeat.
At the hearing, the Applicant was questioned about the inconsistency between his statements that he takes full responsibility for his criminal conduct and his evidence to the Tribunal that he was not responsible for a number of the crimes for which he was convicted.
The Applicant told the Tribunal that he has made mistakes and he apologises for these ‘from the bottom of his heart’. He has learned his lesson from the separation from his family and he needs to ‘do the right thing’ so he can stay with his family.
The Applicant was asked why his period of incarceration in 2012 and 2013 and the cancellation of his visa in 2013 (which was subsequently revoked by the first Tribunal) did not cause him to change and cease his criminal behaviour. He said that ‘we learn every day as humans’ and that he will try not to repeat his mistakes. He is apologetic and he has learned his lesson as family is most important to him. If he goes back into the community he will ‘take the law seriously’ and will be ‘a law abiding citizen’. He will not drive and will take public transport in future.
Time in Prison and Immigration Detention
During his time in prison, the Applicant participated in a number of self-improvement programs including ‘Enough is Enough’, ‘English as a Second Language’ and the ‘12 Step Program’. Documents tendered in evidence show that he regularly sees the International Health and Medical Services (IHMS) psychologist in Villawood Detention Centre and he has recently been tested and found to be drug free.
In his Statutory Declaration dated 27 February 2018 the Applicant stated that his family visits him in Villawood.
Intentions and future plans
The Applicant told the Tribunal that if he were to remain in Australia his mates could get him work either in the construction industry or cleaning. Prior to coming to Australia he worked in his brother-in-law’s spare part business.
The Applicant said that if he returns to Macedonia it would be very difficult for him and his children. He said that his children would not go with him to Macedonia and that there is no assurance that they will be able to visit him. His mother and sister, his wife’s mother, father and brothers, and two or three good friends reside in Macedonia. However life is very difficult in Macedonia and his friends and family cannot help themselves and therefore will not be able to assist him.
The Applicant told the Tribunal that he suffers from a number of medical conditions, including back and abdominal problems and he is not sure that he could get the medication he needs in Macedonia.
The Applicant confirmed that he has returned to Macedonia on two occasions since 2005. The first was in May 2007 when he and his wife returned there for the christening of their first-born son. His father was diagnosed with cancer and he and his family stayed in Macedonia to care for him until August 2008. His second visit was for a holiday in August-September 2010.
Evidence of Applicant’s wife – Dijana Romanova
The Applicant’s wife, Dijana Romanova provided a Statutory Declaration dated 13 March 2018 and gave evidence in person at the hearing.
She told the Tribunal that she and the Applicant met in Macedonia in 1999 and were married on 1 May 2004. She was born in Australia but spent periods of her early years in Macedonia with her parents who currently reside there.
She works shift work part-time at the international airport as a screening officer and often has very early starts. Without the Applicant at home to care for the children she must rely on assistance from friends and also the soccer coach.
In her Statutory Declaration she states that her life is very difficult living without the Applicant and she lives “in a constant state of anxiety and depression”. Her life without the Applicant “consists of a constant struggle to juggle work, mothering and doing domestic chores.” She needs the Applicant to be part of the family and their second son is “especially attached to his father”. They “will all suffer greatly if [the Applicant] is deported…”.
She told the Tribunal that she and the Applicant lived in Macedonia when his father was sick between May 2007 and August 2008, and she and her children lived in Macedonia with her parents during the Applicant’s incarceration from January 2011 to January 2013.
The Applicant’s wife states in her Statutory Declaration that she cannot live in and could not support her children in Macedonia. She and her children are Australians and Australia is their home. Without the Applicant in their life it will “only ever be a daily struggle to manage.” Their children “need both their mother and their father”.
She told the Tribunal that the Applicant ‘made stupid mistakes’ but he is not violent or aggressive. She believes he has learned from his mistakes and he will change. He is a caring and loving father.
Other statements of support
The Applicant provided the following additional supporting evidence:
·Undated handwritten letter of his son;
·Email dated 13 March 2018 from Margret Popovski;
·Urine drug analysis results dated 13 March 2018; and
·Clinical reports of IHMS psychologist.
EXERCISE OF DISCRETION TO REVOKE MANDATORY CANCELLATION
The Tribunal must consider any mitigating circumstances which may militate in favour of setting aside the decision not to revoke the mandatory cancellation of the Applicant’s visa. In doing so, it must be guided by the terms of the Direction.
Principle 1 of the Direction in paragraph 6.3(1) notes that the grant of a visa 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.
Primary Consideration 1 - Protection of the Australian community
Primary Consideration 1 of Part C is the Protection of the Australian community. Paragraph 13.1(1) of the Direction provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens … Mandatory cancellation without notice of the visas of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) directs that decision-makers should also give consideration to:
(a)the nature and seriousness of the non-citizen's conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 13.1.1 goes on to expand on the nature and seriousness of the non-citizen’s criminal offending or other conduct to date. It sets out a number of factors to which a decision-maker must have regard in considering this matter. In the circumstances of this case, the following factors may be relevant:
(a)The principle that, without limiting the range of offences that may be considered serious, violent and/ or sexual crimes are viewed very seriously;
(b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(c)The sentence imposed by the courts for a crime or crimes;
(d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
(e)The cumulative effect of repeat offending;
(f)Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
(g)Whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(h)Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention … is serious…
Nature and seriousness of the Applicant’s conduct to date
In assessing the seriousness of the Applicant’s past criminality, and the risk posed should he commit further offences, the Tribunal is mindful of his persistent pattern of offending which commenced in 2010, five years after arriving in Australia.
Having regard to paragraph 13.1.1(1)(a) and paragraph 13.1.1(1)(b) of the Direction, the Tribunal finds that whereas the Applicant’s crimes are not violent or sexual in nature, they are nevertheless serious. The Tribunal notes and endorses the remarks of Deputy President Handley in the first Tribunal decision at [16] that "[drug] crimes are viewed very seriously by the Australian community, especially the offence of "supply", since this impacts on vulnerable members of the community'.
Having regard to paragraph 13.1.1(1)(c) and paragraph 13.1.1(1)(d) of the Direction, the Tribunal finds that the Applicant has been sentenced to terms of imprisonment on three occasions, and his offending has demonstrated a sustained pattern of offences of similar seriousness.
The Tribunal has had regard to the cumulative effect of the Applicant’s offending in determining the seriousness of his conduct in accordance with paragraph 13.1.1(e) of the Direction. The Applicant's recent criminal offending, which includes resisting a police officer, escaping police custody, drug possession, and failing to comply with bail, and various driving offences, indicates the seriousness of his conduct.
The Tribunal has taken into account both the Applicant’s criminal offences and his disregard for various driving restrictions and bail conditions imposed on him over an extended period of time, and finds that his behaviour demonstrates a blatant disregard for Australian law and indicates the Applicant’s lack of respect for Australia’s law enforcement framework and disregard of judicial authority and Australian law, contrary to the Principles in paragraph 6.3(1) of the Direction.
Having regard to paragraph 13.1.1(1)(g), the Tribunal finds that, despite being formally warned by the Department in April 2014 about the consequences for his visa status of any future offending, the Applicant continued to engage in criminal behaviour. This finding is further supported by the fact that, despite the revocation of the cancellation of his visa in 2013, the Applicant continued to engage in criminal activity.
The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
In assessing the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct, the Tribunal must have regard to paragraph 13.1.2 of the Direction:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for the rehabilitative courses to be undertaken).
In having regard to the nature of the harm if the Applicant were to re-offend, the Tribunal notes that the Applicant’s criminal offences have not involved violence nor the threat or use of force. However it finds that, should the Applicant continue to engage in conduct similar to that which were the subject of his previous convictions, including drug supply and repeated driving offences, this would potentially cause harm to individuals or the Australian community.
In having regard to the likelihood the Applicant will engage in further criminal or other serious conduct, the Tribunal notes the Applicant’s claims in his submissions and his wife in her evidence that he has learned his lesson and will in future be a law-abiding citizen. However, it notes that in the first Tribunal decision Deputy President Handley was satisfied, on the basis of the evidence before the first Tribunal, including similar assurances from the Applicant, that the Applicant's "prospects for rehabilitation are excellent and the risk of his engaging in future criminal conduct is minimal” at [51]. This finding has since, with respect, been shown to be without foundation given the Applicant’s continuing criminal conduct.
Based on the evidence before it, the Tribunal finds that there is a not insubstantial risk of the Applicant continuing to re-offend. It makes this finding on the basis of the evidence before it including that, despite a period of imprisonment from 2011 to 2013, the cancellation of his visa in 2013, and a warning in relation to the consequences for his visa status of future criminal behavior in 2014, the Applicant was not been deterred from continuing his offending.
The Tribunal makes this finding also on the basis of the Applicant’s evidence to the Tribunal that indicates that he has not taken full responsibility for his past criminal behaviour, and that he does not appear to appreciate the significance and seriousness of the offences for which he was convicted. Furthermore, despite having undertaken various rehabilitation programs when he was in prison for two years from 2011 to 2013, the Applicant again engaged in criminal activity shortly following his release. Similarly, although the Applicant undertook a program in prison to address his addiction, he resumed taking drugs and was convicted driving with an illicit substance in his blood in April 2016 and of possession of ice in October 2016.
The Tribunal further finds that despite the support of his wife and his claims that he had rehabilitated following two years’ imprisonment for his first drug offence, his offending continued after his release. The Tribunal finds that there is little to indicate that the Applicant’s behaviour would change if he were to be permitted to return home and live with his family. Whereas his wife believes that the Applicant is a changed person since the time of his offences and following his most recent incarceration, her belief in him and his rehabilitation is not borne out by the evidence of his continuing offending following his release from prison in 2013.
The Tribunal has had regard to the other statements in support of the Applicant and notes that these do not refer to the specifics of his offences. Accordingly, the Tribunal has placed limited weight on these statements in reaching its findings in relation to the risk to the Australian community should the Applicant re-offend.
On the basis of the evidence before it, the Tribunal finds that there is a not insubstantial risk of the Applicant engaging in further criminal conduct, and having regard to paragraph 13.1.2 of the Direction, the Australian community’s tolerance for any risk of future harm is lower in view of the seriousness of the increased potential harm of such behaviour. The Tribunal therefore finds that the Applicant presents a risk to the Australian community.
For the reasons above, and applying the guidance in paragraphs 13.1.2(1) and (2) of the Direction, the protection of the Australian community strongly weighs in favour of not revoking the Mandatory Visa Cancellation Decision.
Primary Consideration 2 - The best interests of minor children in Australia affected by the decision
Primary Consideration 2 of Part C in paragraph 13.2(1) requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of the child. That consideration applies only if the child is expected to be under the age of 18 years at the time the decision is made.[8] In considering the best interests of the child, paragraph 13.2(4) provides:
[8] Direction No. 65 at [13.2(2)]
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and the duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or the non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the non-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
Having regard to the factors outlined in paragraph 13.2(4) above, the Tribunal notes that the Applicant has two minor Australian citizen children aged 9 and 13 years respectively.
The evidence before the Tribunal, including that provided by the Applicant and his wife, is that the Applicant needs to remain in Australia in order to provide emotional support and parental guidance to his sons, and that he is a caring and loving father.
Having regard to paragraph 13.2(4)(c) above, the Tribunal finds that, whereas the Applicant has a close and loving relationship with his sons, his previous criminal activity and the potential for him to continue to engage in criminal behaviour is likely on balance to have a negative impact on the children, and is not therefore in their best interests.
Having regard to paragraph 13.2(4)(d) and (e) above, the Tribunal finds the Applicant’s children would benefit from him remaining in Australia and being involved in their daily care and upbringing together with their mother. The Tribunal accepts that it will be difficult for his children to maintain their relationship with their father should he be removed from Australia, and that they will be negatively impacted by his absence and the long distance between them.
For the reasons above, and applying the guidance in paragraph 13.2(4) of the Direction, the second primary consideration of the best interests of minor children weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Primary Consideration 3 - The expectations of the Australian community
Primary Consideration 3 of Part C in paragraph 13.3(1) states:
(1) The Australian community expects non-citizens to obey Australia’s laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
As Deputy President Forgie observed in Rabino and Minister for Immigration and Border Protection (Migration) [2016] AATA 999 (Rabino) at [61]:
[t]his paragraph is quite specific in its statement that the Australian community expects non-citizens to obey Australia’s laws while in Australia but its specificity stops at that point. It leaves open, for example, what is an “unacceptable risk” that non-citizens will breach that expectation or when the nature of the character concerns or offences are such that the Australian community would expect that the person should not continue to hold a visa.
The Direction does not refer to studies or other evidence which may guide the decision-maker in relation to public attitudes and values in determining the expectations of the Australian community: Candemir and Minister for Immigration and Border Protection (Migration) [2017] AATA 531 (Candemir) at [61]. This is therefore a matter ultimately for the decision-maker to determine having regard to guidance found in existing jurisprudence.
In Re Do and Minister for Immigration and Border Protection, Deputy President McCabe made the following observations in relation to paragraph 13.3(1):
A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.[9]
[9] [2016] AATA 390 at [23].
In Anaki and Minister for Immigration and Border Protection (Migration) [2016] AATA 693 at [89] the Tribunal observed:
The consideration of Australian community expectation allows, impliedly at least, reasonable judgement by a decision-maker, bringing appropriate perspective and proportionality to bear in the assessment of risk. Furthermore, the expectation must be considered contextually, relative to factors arising in relation to other principles set out in [paragraph] 6.3 of the Direction 65.
The Tribunal finds that in determining the scope of its discretionary power, particularly in relation to the ‘expectations of the Australian community’ in paragraph 13.3(1) of the Direction, it is necessary to have regard to the “subject-matter, scope, and purpose of the legislation granting the power to make that discretionary decision.”[10]
[10] Rabino and Minister for Immigration and Border Protection [2016] AATA 999 [63] citing Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24; 66 ALR 299; 60 ALJR 560 at 39-40; 309; 565 per Mason J with whom Dawson J agreed. See also R v Australian Broadcasting Tribunal; Ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45; 27 ALR 321; 54 ALJR 94 at 49; 325; 95-96 per Stephen, Mason, Murphy, Aickin and Wilson JJ citing with approval Water Conservation and Irrigation Commission (NSW) v Browning [1947] HCA 21; (1947) 74 CLR 492 at 505
Accordingly, in this context, it is necessary to be mindful of the subject matter, scope and purpose of the Act in determining the limits of the relevant discretionary power. These were identified by Deputy President Forgie in Rabino as follows:
The purpose of the Migration Act is to regulate those who may come to and those who may remain in Australia and the circumstances in which they may do so. There are various types of visa, some of which permit a person to remain on a temporary basis and others which permit a person to remain permanently. Parliament has decided that those who have committed offences attracting certain penalties may be refused a visa or have a visa cancelled and, in some instances, must be refused a visa or have a visa cancelled. Against that background, the Minister has developed considerations in the Direction that are consistent with the Migration Act’s subject-matter, scope and purpose.[11]
[11] at [64].
Against this background, the Objectives, General Guidance and Principles contained in paragraphs 6.1 to 6.3 of the Direction are of specific relevance in determining the ‘expectations of the Australian community’ pursuant to paragraph 13.3(1): Rabino at [65]. The Principles in particular are, within their parameters, “directed to whether the Australian community is prepared to give the person another opportunity to remain in Australia.” Rabino at [68].
The Applicant came to Australia as a mature adult. Within five years of arriving in Australia he committed a serious offence that attracted a two year prison sentence. Upon his release from prison in 2013, he recommenced offending in 2015 and this offending has since continued. His offending continued despite his visa being cancelled in 2013, him being given a ‘second chance’ following the decision of the first Tribunal to revoke this cancellation, and a warning by the Department in 2014 of the consequences for his visa status should he continue to engage in criminal activity.
Given the serious and repeated nature of the Applicant’s offending from 2011 and his apparent lack of insight into, or concern for, the seriousness and consequences of this behaviour, it is reasonable to assume that the Australian community would believe that the Applicant has demonstrated his disregard for Australian law, its institutions and its law enforcement framework. Further, that he has not respected the privilege conferred on him that is afforded by the grant to a non-citizen of an Australian visa entitling them to permanently remain in Australia.
Accordingly, the Tribunal finds that, given the Applicant’s offending behaviour and his unwillingness or inability to learn from it and appreciate its consequences, the Australian community would expect that he should forfeit the privilege of staying in Australia which his visa confers.
The Tribunal therefore finds that the third primary consideration weighs heavily in favour of not revoking the Mandatory Visa Cancellation Decision.
Other considerations
While the Primary considerations carry particular weight, the Direction acknowledges at paragraph 14 that Other considerations must be taken into account by the decision-maker where relevant.
The five other considerations are summarised in paragraph 14(1):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
International non-refoulement obligations
A non-refoulement obligation is an obligation not to require a person to return, deport or expel a person to a place where he or she will be at risk of a specific type of harm. There is no suggestion that the Applicant is at risk of harm of the nature that raises Australia’s non-refoulement obligations under the 1951 Convention on the Status of Refugees as amended by the 1967 Protocol (Refugee Convention). Therefore, the Tribunal finds that this consideration does not arise on the evidence in this case.
Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction states:
…Reflecting the principles at 6.3, decision-makers must have regard to:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen has arrived as a young child, noting that:
(i) less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii) more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The evidence before the Tribunal is that the Applicant has substantial ties to Australia, particularly his wife and two sons, all of whom are Australia citizens. He has other ties to Australia, including members of the Australian Macedonian community.
It is clear that the impact on his family of the Applicant returning to Macedonia will be very significant, particularly the emotional hardship they will endure and the impact on their daily lives. They will undoubtedly be detrimentally affected by the physical separation between them and the Applicant and the lack of daily involvement of the Applicant in their lives.
However, there is no evidence before the Tribunal to indicate that his family would not be permitted to visit the Applicant in Macedonia or that they could not relocate to Macedonia should they wish to do so, although the standard of living and education would be less favourable than that which they enjoy in Australia. The Applicant’s wife gave evidence that she and the children would not relocate to Macedonia due to the economic hardships they would face there should they do so.
The evidence before the Tribunal is that the Applicant and his family have previously lived in Macedonia, before 2005 and for an extended period when his father was unwell from May 2007 to August 2008. The Applicant’s wife and children also lived in Macedonia for the two years the Applicant was in prison from 2011 to 2013. There is no evidence to indicate that the Applicant’s family would not be able to maintain regular contact with him via phone and other forms of communication if he returns to Macedonia.
On the basis of the evidence before it, the Tribunal finds on balance that this consideration weighs in favour of revocation of the Mandatory Visa Cancellation Decision.
Impact on Australian business interests
Paragraph 14.3(1) of the Direction states:
(1) Impact on Australian business interests if the non-citizen’s visa cancellation is not revoked, noting that an employment link would generally only be given weight where non-revocation would significantly compromise the delivery of a major project, or delivers an important service in Australia.
The Tribunal finds that there is no specific evidence on this issue and the Applicant does not claim that any Australian business interests would be affected by his removal to Macedonia.
Impact on victims
Paragraph 14.4(1) of the Direction states:
(1) Impact of a decision not to revoke on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims where that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
The Tribunal finds that there is no evidence of any potential impact on the victims of the Applicant’s criminal activity of a decision not to revoke the Mandatory Visa Cancellation Decision.
Extent of impediments if removed from Australia/not permitted to return
The Direction states in paragraph 14.5(1) that:
(1) The extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Applicant claims that if he is returned to Macedonia that he will have limited support from family and friends and he will find it difficult to find employment. The evidence before the Tribunal is that the Applicant was born and lived in Macedonia until the age of 30 and that he has maintained family and social ties in the country in that his mother, sister and some close friends reside there.
The Tribunal finds that, whereas the Applicant will face some initial difficulties in establishing himself in Macedonia and that living standards will be inferior to those in Australia, these are not insurmountable obstacles. The Applicant is aged 43 and has previous work experience, including as a forklift driver, flooring installer and rental car attendant and therefore he should be able to find paid employment. He will not face any language or cultural barriers on his return, and he will have the same access to welfare benefits as all Macedonian nationals.
The Applicant claims to suffer from a range of health conditions and he fears that these cannot be adequately treated in Macedonia and that he will not be able to access necessary medications. There is no evidence before the Tribunal to indicate that the Applicant’s medical conditions are such that his removal to Macedonia would cause immediate and/or irreversible harm to this health or that the medical treatment and medications he requires will not be available.
On balance, the Tribunal finds that the impediments the Applicant will face if he is returned to Macedonia weigh in favour of non-revocation of the Mandatory Visa Cancellation Decision.
CONCLUSION
In summary, Primary Considerations 1 and 3 weigh strongly in favour of non-revocation of the Mandatory Visa Cancellation Decision. In particular, the nature and seriousness of the Applicant’s offences and the not insubstantial risk of him re-offending that is illustrated by his past criminal offences, the continued pattern criminal behaviour following his release from prison, and his blatant disregard for Australian law and institutions. Whereas the Applicant clearly regrets his past criminal behaviour, his apparent lack of appreciation of the consequences of such behaviour, coupled with the fact that the programs he completed in prison designed to address this behaviour and his addiction have not changed his behaviour, together with his disregard of the previous cancellation of his visa and the warning from the Department in relation to the consequences for his visa status of any future offending, indicates that there is a not insubstantial risk of him re-offending.
Primary Consideration 2, the best interests of minor children, weighs in favour of revocation of the Mandatory Visa Cancellation Decision. The Applicant’s sons will be emotionally impacted by the removal of their father from Australia at a time in their lives when they need the care and support of both their parents.
In regard to the Other Considerations, the strength, nature and duration of the Applicant’s ties to Australia weigh in favour of revocation of the Mandatory Visa Cancellation Decision. The extent of the impediments the Applicant will face if he is removed from Australia on balance weigh in favour of non-revocation.
The Tribunal finds that Primary Considerations 1 and 3 weigh strongly in favour of non-revocation of the Mandatory Visa Cancellation Decision, and whereas Primary Consideration 2 and one of the Other Considerations weighs in favour of revocation, these are not sufficient to outweigh the Primary Considerations which support non-revocation of the Mandatory Visa Cancellation Decision.
DECISION
The Tribunal affirms the reviewable decision of the Minister’s delegate not to revoke the Mandatory Visa Cancellation Decision in respect of the Applicant.
I certify that the preceding 133 (one-hundred-thirty-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Linda Kirk
.............................[sgd]...........................................
Associate
Dated: 18 April 2018
Date of hearing: 10 April 2018 Advocate for the Applicant: Ms J Mclallen, Migration Agent Solicitors for the Respondent: Mr L Gell, Clayton Utz
13
0