RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 437
•10 March 2020
RQRP and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 437 (10 March 2020)
Division:GENERAL DIVISION
File Number: 2019/8391
Re:RQRP
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member S Burford
Date:10 March 2020
Place:Perth
The Reviewable Decision is affirmed.
.........[sgd]............................................................
Member S Burford
CATCHWORDS
MIGRATION – Migration Act 1958 (Cth) - visa cancellation decision under s 501(2) - substantial criminal record – child sexual offending – traffic and general offending – Applicant does not satisfy character test – whether the Tribunal should exercise discretion to set aside or remit the Reviewable Decision – Direction no. 79 - primary considerations –protection of the Australian community – nature and seriousness of the non-citizen’s conduct – risk to the Australian community – expectations of the Australian community other considerations – strength, nature and duration of ties – extent of impediments if removed to United Kingdom – decision affirmed
LEGISLATION
Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA) – ss 60(1)(b), 60(4)
Community Protection (Offender Reporting) Act 2004 (WA) – s 13
Criminal Code (WA) – ss 220, 329(4)
Migration Act 1958 (Cth) - ss 499, 499(1), 499(2A), 500(1), 500(1)(b), 500(6B), 500(6H), 500(6J), 501, 501(b), 501(1), 501(2), 501(6), 501(6)(a), 501(6)(e)(i), 501(7), 501(7)(c), 501(7)(d), 501G(1)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
BSJ16 v Minister for Immigration and Border Protection [2016] FCA 1181
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
FYBR v Minister for Home Affairs [2019] FCAFC 185
FYBR v Minister for Home Affairs [2019] FCA 500
Hambledon v Minister for Immigration and Border Protection [2018] FCA 7
Hutchins v State of Western Australia [2006] WASCA 258
Minister for Immigration and Ethnic Affairs v Daniele (1981) 61 FLR 354
Nigro v Secretary to the Department of Justice (2013) 41 VR 359
Pinder and Minister for Home Affairs [2019] AATA 1398
Seyfarth v Minister for Immigration and Multicultural and & Indigenous Affairs (2005) 142 FCR 580
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
WAD 230/2014 v Minister for Immigration and Border Protection (No 2) (2015) 148 ALD 117
WSYT and Minister for Home Affairs [2019] AATA 462
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Minister for Immigration, Citizenship and Multicultural Affairs, Direction No. 79: Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (20 December 2018) – paras 6.1, 6.1(2), 6.1(4), 6.2, 6.3, 6.3(2), 6.3(5), 7, 7(1)(a), 8, 9, 9(1), 9.1, 9.1(1), 9.1(1)(c), 9.1(2), 9.1.1, 9.1.1(1), 9.1.1(1)(a), 9.1(1)(b), 9.1.2(1), 9.1.2(2), 9.1.2(2)(b)(i), 9.2, 9.2(4), 9.3(1), 10, 10(1), 10.1, 10.2(1), 10.5(1)
REASONS FOR DECISION
Member S Burford
10 March 2020
This is an application for review of a decision made by a delegate of the Respondent
(the Delegate) on 10 December 2019 to cancel the Applicant’s Class BF transitional (permanent) visa (the visa) under s 501(2) of the Migration Act 1958 (Cth)
(the Migration Act).[1] This is the Reviewable Decision that is currently before the Administrative Appeals Tribunal (the Tribunal).
BACKGROUND
The Applicant is a 55-year-old citizen of the United Kingdom (UK).[2] He arrived in Australia on 26 November 1972 at the age of eight[3] and acquired the visa on 1 September 1994.[4]
On 26 May 2008, the Department of Immigration and Citizenship (as it then was) sent the Applicant a “formal counselling letter”, indicating that it had become aware that he had a criminal record, and that further offending or other serious conduct may lead to cancellation of his visa.[5] The letter was sent to the Applicant in Acacia Prison.
The Applicant committed further offences commencing on 23 July 2008 (detailed further below).
On 11 September 2019, the Department of Home Affairs (the Department) sent the Applicant a notice of intention to consider cancellation under s 501(2) (the notice), inviting him to comment on information indicating he may not pass the character test including:
·National Criminal History Check released 20 June 2019;
·Sentencing remarks of the District Court of Western Australia on 20 August 2012;
·Sentencing remarks of the District Court of Western Australia on 26 October 2007;
·Immigration Report from the Western Australian Department of Justice dated 18 February 2008; and
·The “formal counselling letter”, dated 26 May 2008.[6]
Between 24 September 2019 and 20 October 2019, the Applicant provided material and information to the Department in response to the notice.[7]
On 10 December 2019, the Delegate of the Minister cancelled the Applicant’s visa under
s 501(2) of the Migration Act.[8] The Department notified the Applicant of this decision by email on 17 December 2019.[9]
On 18 December 2019, the Applicant sought review in the Tribunal in accordance with
s 500(1)(b) of the Migration Act,[10] providing further information and submissions in support of that application.
The basis for the cancellation of the Applicant’s visa was that the Delegate reasonably suspected that the Applicant did not pass the character test by virtue of s 501(6)(a) of the Migration Act with reference to s 501(7)(c) of the Migration Act and the Applicant did not satisfy the Delegate that he passed the character test.[11]
This was because the Applicant had been convicted in the District Court of Western Australia of “Possessing Child Exploitation Material” for which he had been given a suspended sentence of 12 months imprisonment.[12]
The Delegate decided to exercise their discretion to cancel the Applicant’s visa having regard to the risk of harm to the Australian community and the protection of the Australian community which the Delegate considered outweighed any other considerations.
The Tribunal’s decision must be made within the period of 84 days after the day on which the Applicant was notified of the Reviewable Decision. Accordingly, the date by which the Tribunal must make a decision being 10 March 2020.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal, standing in the shoes of the Delegate, should exercise discretion to cancel the Applicant’s visa having regard to the primary and other considerations in Direction no. 79 – Migration Act 1958 – Direction under section 499: Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA (Direction no. 79).
JURISDICTION
This application is made pursuant to s 500(1)(b) of the Migration Act. This section allows applications to be made to the Tribunal for review of decisions of a delegate of the Respondent under s 501 of the Migration Act.
As noted above, the Reviewable Decision of 10 December 2019 was communicated to the Applicant by email on 17 December 2019. He lodged his application for review on
18 December 2019 and is in the migration zone. He therefore lodged his application for review within the nine day period after he received the decision in accordance with s 501G(1) and s 500(6B) of the Migration Act.
The Tribunal is satisfied that the application was lodged within time and that it has jurisdiction to review the Reviewable Decision.
PROCEEDINGS BEFORE THE TRIBUNAL
Several directions hearings were held prior to the hearing. An initial directions hearing was held by Deputy President Boyle on 24 December 2019 at which directions were made to program the matter for hearing. The hearing was listed for 25 February 2020 before the Tribunal, as currently constituted, on 24 December 2019.
On 19 February 2020 the Applicant contacted the Tribunal to request an extension of time in which to provide his evidence and submissions. The Respondent agreed to the extension of time and to re-listing of the hearing for a future date in order to allow the Applicant to comply with the two-day rule specified in ss 500(6H) and 500(6J) of the Migration Act (the two day rule). The Tribunal agreed to extend time for the Applicant to provide material and vacated the scheduled hearing to allow time for him to do so. The hearing was relisted for 27 February 2020.
On 20 February 2020 the Tribunal received information which raised a concern that the Applicant may not have understood the nature of directions regarding the submission material. Further information was raised regarding the Applicant’s capacity to participate in the hearing with the suggestion that he may benefit from the presence of his sister as a support person.
In light of this information, and in order to ensure the Applicant was in a position to make his case and participate in proceedings, the Tribunal, as currently constituted, listed the matter for a further directions hearing on 21 February 2020 and requested that the Applicant attend in person from immigration detention.
At that directions hearing, the Tribunal discussed with the Applicant the directions for the provision of submissions and evidence and explained to the Applicant the importance of the two-day rule. The Tribunal indicated to the Applicant that if he wished to call witnesses he would need to provide a list of those witnesses and witness statements to the Respondent and the Tribunal no later than the close of business two days prior to the scheduled hearing date. The Tribunal also indicated to the Applicant that it was open to him to rely on the witness statements which had already been provided to the Delegate in this regard.
The Tribunal discussed with the Applicant his participation in the hearing and the possibility of his sister providing support for him at the hearing. The Applicant initially indicated that he had been told by Serco that his sister would not be able to attend the hearing. The Tribunal made it clear that this was not the case and that his sister could be present at the hearing as a support person if he wished and that it may be preferable for her to be present if it would assist him in participating in the proceedings and making his case to the Tribunal. The Applicant indicated that his sister would not be available to do so and that she would not be coming to the hearing.
The Tribunal also discussed with the Applicant whether any other arrangements could be made to assist him to participate in hearing. The Applicant indicated that he had some issues in obtaining medication (anti-depressants) whilst in detention. The Respondent offered to make inquiries regarding that issue with the detention centre.
The Tribunal requested the Respondent make available to the Tribunal any medical assessments made while the Applicant was in detention which may relate to his capacity to participate in the hearing. These records were made available to the Tribunal and the Applicant prior to the hearing.[13]
The application was heard on 27 February 2020 in Perth.
The Applicant appeared in person and was unrepresented in relation to the application. The Respondent was represented by Mr Jon Papalia, the Australian Government Solicitor.
At the commencement of the hearing, the Applicant indicated that he had only received the material containing the medical records by email on his phone the evening before the hearing (26 February 2020) and had not had an opportunity to read the records.[14] The documents were provided to the Tribunal by email and copied to the Applicant on 25 February 2020. The Respondent in this email to the Tribunal informed that the Applicant would also be sent a copy via express post. While the Applicant indicated that he may not need to read the documents, the Tribunal decided in any case to adjourn the hearing for half an hour to enable the Applicant to do so. The Tribunal indicated to the Applicant that this would enable him to have an opportunity to raise any problems he had with the material including the medical report addressing the issues he had raised at the previous directions hearing. The Tribunal notes that the material was not extensive. Following the adjournment, the Applicant indicated that he had had an opportunity to look at the material and proceedings continued.
The medical records indicated that the Applicant attended an appointment with
Dr Peter Wynn Owen, a psychiatrist with International Health and Medical Services at the detention centre on 24 February 2020.[15] The progress notes from the clinical records relating to the Applicant include an assessment that the Applicant was “alert and oriented, easily able to follow and participate in conversation, articulate and linear, he clearly appears to have capacity to engage with court proceedings”.[16] The report also notes that “there is no indication for benzodiazepines” (anti-depressant medications).[17]The Tribunal formed the view based on this material and on its observations of the Applicant at the directions hearing and at the substantive hearing that the Applicant was able to fully participate in the proceedings. This was notwithstanding that the Applicant had not had had access to anti-depressant medication which he had indicated at the earlier directions hearing he had been seeking. The Tribunal accepted on the evidence, namely the medical assessment of Dr Wynn Owen, that the anti-depressant medication was not required.
The Tribunal checked regularly with the Applicant during the hearing to ensure that he understood the matters being raised by the Respondent or the Tribunal and the Tribunal took steps to ensure that the Applicant had opportunities to take a break from the proceedings, in particular after he had given evidence. The Tribunal notes that the Applicant provided clear responses to the questions he was asked and indicated that he understood the proceedings throughout. While it was clear that the Applicant found some aspects of the proceedings uncomfortable and distressing, in particular the cross-examination of his character witnesses, the Tribunal formed the view that this did not impact his capacity to participate in giving evidence and putting submissions in support of this application.
The Tribunal discussed these observations with the Applicant during the hearing and he agreed that he was able to participate and accepted that Dr Wynn Owen had assessed he did not require anti-depressant medication.
MATERIAL BEFORE THE TRIBUNAL
At the hearing, the Applicant made submissions, gave evidence and was cross-examined. The Applicant also called the following witnesses to give evidence in support of his application:
·Mr Shane Van Styn, a former employer and friend of the Applicant; and
·Mr Stephen Taylor, a former employer and friend of the Applicant.
These witnesses gave evidence via telephone from a regional town in Western Australia.
The Tribunal notes that the Applicant had also indicated prior to the hearing that he wished to call Mr Tony Rosser, another friend, as a witness at the hearing. However, on the day of the hearing several unsuccessful attempts were made to contact Mr Rosser. The Tribunal adjourned briefly to allow additional time before attempting to contact
Mr Rosser again. However, this attempt was also unsuccessful. The Tribunal notes that
Mr Rosser had provided a statement in the form of a letter to the Delegate dated
26 September 2019. In light of the inability to contact Mr Rosser, the Respondent indicated that it did not require Mr Rosser for cross examination and accepted that his evidence would be consistent with the letter provided. In this context it was noted by the Tribunal and accepted by the Applicant that while Mr Rosser had been informed by the Applicant of the general details of some of his offences, he was not aware of the Applicant’s full offending history. This was the case with the two other witnesses who testified. The Respondent accepted that notwithstanding this Mr Rosser was likely to stand by his reference to the extent of his personal engagement with the Applicant
(as was the case with the other witnesses). This issue is dealt with further below.On this basis the Tribunal was satisfied that the inability to contact Mr Rosser to testify did not impact on the ability of the Applicant to put forward his case for review to the Tribunal.
The Respondent provided the Tribunal an email from the Applicant on 24 February 2020, indicating the Applicant wished call to further witnesses. The Respondent had replied to this email indicating that if the witnesses were to be called, witness statements would be required to be provided by the close of business on that day, consistent with the directions of the Tribunal and having regard to the two-day rule. No additional witness statements were provided. At the commencement of the hearing the Tribunal raised with the Applicant the issue of the additional witnesses. The Applicant indicated the witnesses had contacted him at the last minute and offered to give evidence but that he had told them he thought it was too late.[18] The Tribunal queried what the purpose of these witnesses’ evidence was and he indicated that they were “just friends”.[19] The Tribunal indicated that, on the basis that the witnesses were to give general character evidence as friends of the Applicant, which appeared likely to be consistent with the evidence of character witnesses who had provided statements and gave evidence and did not appear likely to raise evidence critical to any other considerations, the Tribunal determined that the hearing could proceed on a fair basis without adjourning the hearing in order for those witnesses to be called. The Applicant accepted this.
The Tribunal admitted the following documents into evidence:
·Exhibit A1 – statement of the Applicant dated 21 February 2020 with attachments;
·Exhibit A2 – witness list provided by the Applicant dated 21 February 2020;
·Exhibit R1 – G Documents received 7 January 2020 (G1-G25);
·Exhibit R2
– supplementary relevant documents from the Respondent received
3 February 2020 (SG1-SG2);
·Exhibit R3 - further supplementary relevant documents from the Respondent received 27 February 2020 (SG3);
·Exhibit R4
- Respondent’s statement of facts, issues and contentions dated
28 January 2020, as amended at the hearing;
·Exhibit R5 – extract from “gofundme” page; and
·Exhibit R6 - page printout from Gov.uk website.
LEGISLATIVE FRAMEWORK
Sections 501(1) and (2) of the Migration Act provide:
(1)The Minister may refuse to grant a visa to a person if the person does not satisfy the Minister that the person passes the character test.
Note: Character test is defined by subsection (6).
(2)The Minister may cancel a visa that has been granted to a person if:
(a)the Minister reasonably suspects that the person does not pass the character test; and
(b)the person does not satisfy the Minister that the person passes the character test.
(Original emphasis.)
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)
the person has a substantial criminal record (as defined by
subsection (7));…
(b)………
(c)……….
(d)………
(e)A court in Australia or a foreign country has:
(i) Convicted the person of one or more sexually based offences involving a child; …
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if:
(a)the person has been sentenced to death; or
(b)the person has been sentenced to imprisonment for life; or
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more;…
(Original emphasis.)
DIRECTION NO. 79
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1).”
On 20 December 2018, the Minister for Immigration, Citizenship and Multicultural Affairs made a direction under s 499 of the Migration Act, being Direction no. 79.
Paragraph 6.1 of Direction no. 79 sets out the Objectives of the Migration Act, with paragraphs 6.1(2) and (4) of Direction no. 79 being relevant to the Reviewable Decision which is currently before the Tribunal:
(2) Under subsection 501(1) of the Act, a non-citizen may be refused a visa if the non-citizen does not satisfy the decision-maker that they pass the character test. A non-citizen may have their visa cancelled under subsection 501(2) if the decision-maker reasonably suspects that the non-citizen does not pass the character test, and the non-citizen does not satisfy the decision-maker that they pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider whether to exercise the discretion to refuse or cancel the visa given the specific circumstances of the case.
…
(4) The purpose of this Direction is to guide decision-makers performing functions or exercising powers under section 501 of the Act, to refuse to grant a visa or to cancel a visa of a non-citizen who does not satisfy the decision-maker that the non-citizen passes the character test, or to revoke a mandatory cancellation under section 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 6.2 of Direction no. 79 provides general guidance as follows:
(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.
(2) In order to effectively protect the Australian community from harm, and to maintain integrity and public confidence in the character assessment process, decisions about whether a non-citizen’s visa should be refused or cancelled under section 501 should be made in a timely manner once a decision-maker is satisfied that a non-citizen does not pass the character test. Timely decisions are also beneficial to the client in providing certainty about their future.
(3) The principles provide a framework within which decision-makers should approach their task of deciding whether to refuse or cancel a non-citizen’s visa under section 501, or whether to revoke a mandatory cancellation under section 501CA. The relevant factors that must be considered in making a decision under section 501 of the Act are identified in Part A and Part B, while factors that must be considered in making a revocation decision are identified in Part C of this Direction.
Paragraph 6.3 of Direction no. 79 sets out principles which must be taken into account by persons making decisions under ss 501 and 501CA of the Migration Act, including the Tribunal:
(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 women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(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.
Paragraph 7(1)(a) of Direction no. 79 outlines how a decision-maker is to exercise 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;…
Informed by the principles set out in paragraph 6.3 of Direction no. 79, the decision-maker (in this case the Tribunal) must take into account the primary considerations in Part A of Direction no. 79, with regard to the specific circumstances of the case, in deciding whether to cancel a person’s visa under s 501(2) of the Migration Act (paragraph 9(1) of
Direction no. 79). Specifically, paragraph 9(1) in Part A of Direction no. 79 provides:
(1)In deciding whether to cancel 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.
Paragraph 10 in Part A of Direction no. 79 lists other considerations as follows:
(1)In deciding whether to cancel a visa, other considerations must be taken into account where relevant. These considerations include (but are not limited to):
a) International non-refoulement obligations;
b) Strength, nature and duration of ties;
c) Impact on Australian business interests;
d) Impact on victims;
e) Extent of impediments if removed.
Further guidance as to how a decision-maker is to apply the considerations in Direction no. 79 can be found in paragraph 8 of Direction no. 79 which provides:
(1) Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to refuse to grant a visa to a visa applicant, cancel the visa of a visa holder, or revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C. 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.
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
THE APPLICANT’S BACKGROUND AND OFFENDING HISTORY
The Applicant’s offending history is set out in the “Nationally Coordinated Criminal History Check Results Report” dated 21 June 2019.[20] The Applicant did not dispute the contents of the report and the Tribunal accepts it as accurate.
Based on the “Nationally Coordinated Criminal History Check” and the Western Australia Police “History for Court – Criminal and Traffic” report dated
20 January 2020,[21] the Applicant’s offending history is summarised at Appendix A to this decision.The Tribunal notes the Applicant has a juvenile record which has been relied on by the Respondent, and taken into account by the Tribunal only for the purpose of establishing the time that the Applicant began offending in Australia[22]. Accordingly, his juvenile record has not been included in the summary of offences.
The records of offending show that the Applicant’s convictions primarily comprise of child sexual or exploitation related offending, driving and traffic offences and general offending. In summary, the Applicant’s offences include the following adult offences for which the Applicant was convicted between January 1983 and August 2012 :
(a)convictions for possession and supply of child pornography or child exploitation material;
(b)offences relating to unlawful damage, break enter and steal, unlawfully being on premises;
(c)offences related to stealing and stealing as a servant;
(d)breaches of court imposed orders including bail, probation, reporting obligations and recognisance;
(e)offences relating to obstruct police officers, refusing to provide an address, giving a false name and refusing a breath test;
(f)assault occasioning bodily harm;
(g)several cannabis related drug offences; and
(h)25 driving and traffic offences (excluding offences as a juvenile) including driving without a licence and driving under the influence of alcohol.
Sexual offending
On 21 April 2008, the Applicant was convicted in the Perth District Court of Indecent dealings with a child who is a lineal relative or de facto child contrary to s 329(4) of the Criminal Code (WA).[23] The offence occurred on 1 January 2006[24] and the victim was the 12-year-old daughter of the Applicant’s then de facto partner. The Applicant pled guilty to this offence and was sentenced to a Community Based Order for 12 months (with supervision requirements). He was also made a Reportable Offender (Class 1) under s 13 of the Community Protection (Offender Reporting) Act 2004 (WA).[25]
The circumstances of the offence are outlined in the Western Australia Police Statement of Material Facts for the offence[26] which indicates that, at some time between 1 March 2006 and 30 June 2006, the Applicant asked his partner’s daughter to go for a drive with him to the river. The child did not wish to go but the Applicant told her to get in the car. They drove to the river crossing in [Town C].[27] The Applicant asked the child to take off her clothes, so that she could have a swim, but she declined. The Applicant then reached over and put his hand up the child’s skirt and rubbed the top of her thigh. The victim pushed his hand away, but the Applicant again put his hand under her skirt and rubbed the top of her thigh area again. However, he stopped when the victim indicated that she would tell her mother. The Applicant had been in a de facto relationship with the victim’s mother for seven years.[28]
The maximum sentence for indecent dealing with a de facto child who is under 16 years of age is 10 years’ imprisonment.[29]
On 26 October 2007, the Applicant was convicted of three counts of possessing child pornography in the form of a computer image and one count of supplying child pornography in the form of a computer image, contrary to the then ss 60(4) and 60(1)(b) [30] of the Classification (Publications, Films and Computer Games) Enforcement Act 1996 (WA).[31] The Applicant pled guilty to the offences and was sentenced to a total effective sentence of 14 months’ imprisonment.[32] The maximum penalty for the supply charge was seven years’ imprisonment, and for the possession charges, five years’ imprisonment.[33]
The facts of those offences are set out in the Sentencing Remarks of Wager DCJ,[34] and the Western Australia Police Statement of Material Facts.[35] According to this material, on 7 May 2007, the Applicant made contact, via the Internet, with an undercover police officer in Queensland (“James”), who was using a persona. They maintained an Internet chat conversation for several days, and, on 11 May 2017, the Applicant sent the police operative 11 images of children in a naked state, in various sexual poses with each other and men.[36] The Applicant also sent the operative a non-sexual image of his de facto step-daughter.[37] The Sentencing Judge noted that this image had been sent to the persona who had disclosed to the Applicant “predatory and repugnant conduct” including with respect to her (the persona’s) own daughters.[38]
On 17 May 2007, computers in the Applicant’s possession were seized under warrant by police. On those devices police located:
·797 images of naked children, in various sexual positions with adults and each other;
·10 videos of children involved in sexual activity with adults and each other; and
·three sexually explicit stories relating to children.[39]
The Sentencing Judge noted that the images had been classified into categories four, three and one.[40] The Respondent submitted, and the Tribunal accepts, that her Honour was referring to the classification scheme expressed in, or in similar terms to, the Australian National Victim Image Library (ANVIL) schema for classification of child exploitation material (CEM), namely:[41]
Child Exploitation Tracking System (CETS) Classification
CETS Classification Guide 1. CEM – No Sexual Activity Depictions of Children with No Sexual Activity – However must be sexually suggestive in nature. Can include nudity, surreptitious images showing underwear (upskirt), sexually suggestive posing, explicit emphasis on genital areas, solo urination by a child.
… … 3. CEM – Non-Penetrative, Adult/Child Non-Penetrative Sexual Activity, between child and Adult(s). May include mutual masturbation and other non-penetrative sexual activity.
4. CEM – Penetrative, Child – Child/ Adult-Child Penetrative Sexual Activity Between Children only or Adult(s) and children - may include, but is not limited to, vaginal/anal intercourse, cunnilingus and fellatio. Penetrative use of sex toys and/or foreign objects
On 20 August 2012, the Applicant was convicted of one count of possession of child exploitation material, contrary to s 220 of the Criminal Code (WA).[42] The offence was committed on 14 October 2011. The Applicant initially denied the offence, however,
he later pled guilty and was sentenced on that basis to 12 months’ imprisonment, conditionally suspended with programme and supervision requirements.[43] The maximum penalty for the offence was seven years’ imprisonment.
The facts for this offence are set out in the Sentencing Remarks of Goetze DCJ[44] and the WA Police Statement of Material Facts.[45] According to this material, between October 2011 and November 2011, the Applicant borrowed a laptop computer from a friend while his computer was being repaired. The Applicant used the computer to access a number of internet sites containing explicit stories involving the sexual abuse of children.[46]
The computer was surrendered to police by the owner when the content was discovered. The police identified 27 fantasy stories that fall within category 4 of the CEM Classification Scheme.[47] His Honour described that category of material as depicting “penetrative sexual activity between children and adults including but not limited to intercourse, cunnilingus and fellatio”.[48] The Respondent submitted the classification scheme referred to was the ANVIL scheme described in the Standard Operating Procedure on ANVIL Categorisation of Child Exploitation Material. This scheme was not referred to in the material and the classification document referred to in the Sentencing Judges’ remarks and the relevant attachment to the statement of material facts was not before the Tribunal. The description of the classification grouping broadly correlates with that described in the ANVIL scheme. In any event, the classification is outlined in the Sentencing Judge’s comments.This offence breached a suspended imprisonment order imposed in the Karratha Magistrates Court in 2010, however, the Sentencing Judge determined that it would be unjust to require the Applicant to serve the head sentence, in circumstances where he appeared to have taken steps to rehabilitate himself and would be required to complete a sex offender treatment programme as part of the conditional suspended imprisonment order imposed for the possession of child exploitation material offence.[49]
Further consideration to the conditionally suspended sentence for the possession of child exploitation material offence is detailed later in this decision.Traffic and General Offending
As noted above, the Applicant has an extensive record of driving and traffic offences including speeding and driving repeatedly without a licence. He has been convicted
11 times for driving under the influence of alcohol. His driving offences were sufficiently serious that he has been disqualified from driving on a number of occasions. His motor driver’s licence was permanently cancelled and he was disqualified for life on
20 March 1998. He continued to drive following the mandatory lifetime cancellation of his licence with his last recorded driving offence being in November 2009. As noted above, the Applicant has also been convicted of a number of burglary and stealing related offences, assault, unlawful damage, cannabis related drug offences and breach of court imposed orders.
The nature and seriousness of the Applicant’s offending is considered further below.
DOES THE APPLICANT PASS THE CHARACTER TEST?
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
Section 501(7)(c) of the Migration Act provides that a person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more”.
As noted in the Applicant’s criminal history above, the Applicant was convicted in the District Court of Western Australia on 20 August 2012 of possessing child exploitation material contrary to s 220 of the Criminal Code (WA) for which he was sentenced to
12 months’ imprisonment, conditionally suspended for 12 months. The Tribunal notes that s 501(7)(c) is concerned with the sentences imposed in person rather than the term of imprisonment actually served.[50]
In any event, s 501(7)(d) of the Migration Act provides that a person has a substantial criminal record if they have been “sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more”.
Also as noted in the Applicant’s criminal history above, on 26 October 2007 the Applicant was sentenced to concurrent terms of imprisonment of six months for each of the three counts of possessing child pornography (18 months) and a term of imprisonment of eight months for supplying child pornography. The total combined term for these offences was 26 months. In addition, the Applicant was sentenced on 29 April 2010 to imprisonment for seven months (suspended for two years) for driving under the influence of alcohol. Also on 8 June 2010, the Applicant was sentenced to imprisonment for two months (suspended for one year) for obstruct police officer. On 4 October 1991 he was sentenced to nine months’ imprisonment on each of the two counts of breaching probation
(18 months). On 26 September 1991 he was sentenced to two months’ imprisonment for driving while not authorised and six months’ imprisonment for driving under the influence of alcohol. On 6 August 1991 he was sentenced to two months’ imprisonment for driving while not authorised and six months’ imprisonment for driving under the influence of alcohol. He was also sentenced on this date to six months’ imprisonment for each of two charges of break, enter and steal (12 months). On 20 February 1990 he was sentenced to three months’ imprisonment for stealing. These sentences of imprisonment are in addition to the 12 month suspended sentence he received for possessing child exploitation material on 20 August 2012. The Applicant has been sentenced to a combined total of over 80 months’ imprisonment for his offences.
In the further alternative, s 501(6)(e)(i) provides that a person does not pass the character test if a court in Australia or a foreign country has “convicted the person of one or more sexually based offences involving a child”. In the Tribunal’s view, the Applicant’s conviction for indecently dealing with his step-daughter is a sexually based offence against a child, evidenced by his inclusion on the Australian National Sex Offenders Register as part of his sentence for this offence.
The Tribunal finds that the Applicant has a substantial criminal record pursuant to
s 501(7)(c) of the Migration Act. In addition or in the alternative, the Tribunal finds that the Applicant has a substantial criminal record pursuant to s 501(7)(d) of the Migration Act. On this basis, and having considered the Applicant’s criminal record, the Tribunal reasonably suspects that the Applicant does not pass the character test by virtue of
s 501(6)(a) of the Migration Act. The Applicant has not satisfied the Tribunal that he passes the character test. On this basis the Tribunal is satisfied that the Applicant does not pass the character test.
In the further alternative, the Applicant has a substantial criminal record by virtue of s501(6)(e)(i) of the Migration Act, having regard to his conviction for indecent dealings with a child who is a lineal relative or de facto child.
The Applicant does not contest that he does not pass the character test but argues that the discretionary power to cancel his visa under s 501(2) of the Migration Act should not be exercised. Accordingly, the Tribunal, standing in the shoes of the decision-maker, will consider whether to exercise this discretionary power by considering the relevant primary and other considerations in Direction no. 79.
IS THE TRIBUNAL SATISFIED THAT IT SHOULD EXERCISE DISCRETION TO SET THE VISA CANCELLATION DECISION ASIDE?
Following the notification of the intention to cancel his visa, the Applicant made representations to the Department requesting that his visa not be cancelled. This included a written statement from the Applicant, supporting statements from friends or referees, medical statements and other material.
Before the Tribunal, the Applicant’s application, written statement (taken to be his Statement of Facts, Issues and Contentions),[51] and oral submissions to the Tribunal outlined the Applicant’s central contentions as to why his visa should not be cancelled in similar terms to submissions made before the Department.
In his application to the Tribunal, the Applicant stated that he thought that the Delegate’s decision was wrong because:
I believe that the decision made has not placed enough emphasis on that I have lived in this country for 47 years, my good standing since completing my prison sentence, and the fact that I am due more open heart surgery. I am also on much medication and am having ongoing counselling regarding my past criminal history and why I did what I did. I also drink very little these days, which is what led to my criminal behaviour. I am older now and no longer have the urges that I once had. I also volunteered to undertake a sex offenders [sic] treatment program but this does not seem to be addressed in the decision. I would still be willing to do this if it helped even though it would entail a 3day 1000km bus trip each week.
These reasons were supported in his Statement of Facts, Issues and Contentions and submissions to the Tribunal.
The Respondent submitted that the Applicant’s case offends many of the principles set out in Direction no. 79.[52] Those principles make it clear that Australia has a low tolerance for criminal and other serious conduct by non-citizens, and that being able to remain in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been, law abiding and will not threaten or cause harm to members of the Australian community.[53] The principles make it clear that a non-citizen who has committed a sexual crime against children should generally expect to forfeit the privilege of staying in Australia.[54]
The Respondent submitted that the Australian community would expect the Applicant’s visa to remain cancelled given the nature of his criminal offending and that this and the protection of the Australian community outweighed other considerations including the Applicant’s ties to Australia and the impediments to his removal to the United Kingdom (UK). The Respondent submitted on this basis that the Applicant’s visa should remain cancelled.
These submissions are considered further below.
First primary consideration: Protection of the Australian Community (paragraph 9.1)
Paragraph 9.1(1) of Direction no. 79 provides that when decision-makers are considering the protection of the Australian community they:
(1)… 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. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 9.1(2) of Direction no. 79 continues on to provide that:
(2) 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.
Nature and seriousness of the conduct (paragraph 9.1.1(1))
Paragraph 9.1.1(1) of Direction no. 79 further provides:
(1) In considering the nature and seriousness of the non-citizen’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 of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
c) The principle that crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
d) Where the non-citizen is in Australia, that a crime committed while the non-citizen was in immigration detention; during an escape from immigration detention; or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again is serious, as is an offence against section 197A of the Act;
e) The principle that any conduct that forms the basis for a finding that a non-citizen does not pass a subjective limb of the character test is or is not of good character under section 501(6)(c), is considered to be serious;
f) Subject to subparagraph (b) above, the sentence imposed by the courts for a crime or crimes;
g) The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
h) The cumulative effect of repeated offending;
i) Whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending;
j) 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 noncitizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour);
(k)Where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant’s offending history is outlined above and is summarised in Appendix A.
A summary of the Applicant’s offending indicates that his convictions are primarily comprised of online child sex offending, driving and traffic offences, theft related and other general offences.
The Applicant did not seek to diminish the seriousness of his offending but submitted that it had been a significant time since he was last convicted (2012) and that he had since made changes to his life which had assisted him to cease offending. However, the Applicant challenged the factual circumstances of several of the offences, notably the indecent dealing offence in which his step-daughter was the victim. With respect to that offence the Applicant said he did not commit the offence but pled guilty to spare his then partner and step-daughter the pain of a trial and because he was told he would not serve any time in gaol for that offence. To a lesser extent the Applicant also challenged the seriousness of the 2012 offences stating that:[55]
the offence that was committed in 2012, stated by the judge, was at the lower end, and involved fantasy texts. No pictures were involved. I was given no custodial sentence, as I just read the stories, and deleted them straightaway. Nothing was stored on my computer, as also stated by the judge. I did not realise at the time that I could be charged for reading something on the Internet.
These submissions are dealt with further below. Further, the Applicant highlighted that the Sentencing Judge’s recognised his difficult childhood with a history of alcohol and physical abuse. The Tribunal acknowledges the Applicant has had a difficult childhood and that this has been a factor in his offending. However, while this may go some way to explaining why the Applicant has offended it does not, in the Tribunal’s view diminish the seriousness of the offences.
The Respondent submitted that having regard to the factors set out in Direction no 79 the Applicant’s sexual and traffic offending (particularly his repeated driving under the influence offences), should be viewed as very serious.
Applying paragraph 9.1.1(1)(a) of Direction no. 79, violent and/or sexual crimes are to be viewed very seriously. The Tribunal notes that the Applicant has one conviction for assault occasioning bodily harm for which he was convicted on 15 March 1988. While there are limited details before the Tribunal as to the circumstances of that offence, for which the Applicant was sentenced to 100 hours community service, the Tribunal accepts that such offences are violent crimes and are to be viewed very seriously.
Further, the Tribunal notes that the Applicant has a conviction for indecent dealing with a child who is a lineal relative or de facto child. This is a sexual crime which according to the direction should be viewed very seriously. With respect to this particular offence, there are additional aggravating factors including that the sexual crime was committed against a child and in respect of whom the Applicant was in a position of some care and responsibility. In the Tribunal’s view, these factors further contribute to the seriousness with which that offence should be regarded.
In addition, the Applicant has a number of convictions for the possession and supply of pornographic material relating to children. In the Tribunal’s view, having regard to the direction, these offences are very serious, both because they involve sexual crimes against children and because they are crimes committed against vulnerable members of the community.[56]
With respect to the seriousness of this type of offending, Her Honour Wager DCJ noted:
The fact that you went on and supplied material, including one of a child who was in your car[e], albeit it wasn’t a sexual matter, to a person who had disclosed predatory and repugnant conduct, is really the reason why that offence is so very serious. So I accept that you didn’t start the chat, but you should have got out of there, and the fact that you sent this material to somebody who you believed condoned and encouraged that sort of conduct makes it so serious.
The laws set out why offences of this type have to be dealt with by way of serious punishment, and her Honour Wheeler J in a case called Hutchins [v State of Western Australia [2006] WASCA 258] said this, at paragraph 7:
[T]here is a potential, which the Act is aimed at suppressing, for such images to stimulate persons who may have such an inclination to commit offences upon children (R v Liddington (1997) 18 WAR 394 at 403 per Ipp J). So far as that question is concerned, material may be regarded as more or less serious depending upon how explicit is the depiction of sexual activity, if any, which involves children, and the type of activity depicted. A related purpose, it seems to me, is to ensure that those who may have some inclination towards sexual activity with children do not derive, from any source, encouragement to regard such an inclination as normal or appropriate. Material will be more serious, in relation to that purpose, if it tends to depict sexual activity with children as attractive or desirable (whether for the adult concerned or for the child).
[citations and text inserted from the original quote, rather than the transcript].
She said finally:
Finally, there is the important consideration that the existence of a market for material of this kind frequently requires that children will be sexually abused in order to supply it.
[citations and text inserted from the original quote, rather than the transcript].
I don’t think it is argued by anyone that some of the images, indeed most of the images, and indeed the information you received from the undercover office[r], came within that category, so that is why the offences are so serious.[57]
Further, with respect to the later offence with respect to child exploitation material,
His Honour, Goetze DCJ remarked:[58]
Offending in this way is a serious matter, as the state suggests. It might be in the lower level of offending but people do access photographs and movies of children in sexual activity. This is only written text but people progress from one to the other. It is legislation that has brought you here and that is because the parliament – and the parliament is made up of people elected by members of the community – that has decided that it’s not just movies and photos but also written text, anything along the line that is offensive to proper standards within the community and that is why this sort of thing has to be controlled.
The Tribunal respectfully agrees with these observations and regards the Applicant’s offending in this manner to be very serious.
The Applicant took full responsibility for his offending behaviour at the Tribunal hearing with the exceptions of the indecent dealing offence against his step-daughter and with respect to there being any sexual connotation in providing her photograph to the persona. He said that he pled guilty to the offence against his step-daughter to save her and her mother the trauma of a trial and because he would not serve time in goal for that offence. He said he did not know he would be made a reportable offender.[59] With respect to the picture of his step-daughter provided to the persona, he said he was just providing it to because th persona had daughters and he was showing a picture of his.[60] This does not accord with the Sentencing Judges’ remarks which noted that the context in which the photograph had been provided contributed to the seriousness of the offending.
The Tribunal regards that it is not entitled to question the fact of a conviction once it has been determined by a court, however, there is some scope to examine the circumstances surrounding the offending. In Minister for Immigration and Ethnic Affairs v Daniele (1981) 5 ALD 135, 138, 61 FLR 354, 358, the Federal Court stated that:[61]
There are powerful reasons of public policy why the Tribunal cannot ignore the conviction or seek to set it at nought. That is not to say that the circumstances surrounding the commission of the offence or matters relating to the trial itself cannot be examined by the Tribunal. However such examination is for the purpose of enabling the Tribunal to make its own assessment of the nature and gravity of the applicant’s criminal conduct and not for the purpose of assessing the propriety of the conviction or the fairness of the trial.
Nevertheless, the Applicant pled guilty to this conviction and did not offer any evidence in support of his contested version of events which might discharge the heavy onus which he bears to convince the Tribunal to adopt an alternate version or characterisation of the facts for those offences. Having regard to offences and to the authorities, the Tribunal considers it appropriate to accept these facts which are indicative of a serious offence against a child.
As noted above, a significant number of the Applicant’s offences are driving and traffic offences. Member Webb, in Apire and Minister for Immigration and Border Protection [2014] AATA 193 stated at [16] that “…driving a motor vehicle without a license while under the influence of alcohol is a serious matter that should not be trivialised or passed off too lightly”. Similarly, Senior Member Tavoularis in Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 (Bartlett) observed at [43]-[45]:
43.… There is, to my mind, nothing to be said in mitigation for serious irresponsibility in the management and control of a motor vehicle. His offences of drink driving and unlicensed driving clearly point to an incapacity to distinguish right from wrong and to otherwise conform to the rules of Australian society insofar as operation of a motor vehicle on a public road is concerned. The catastrophic potential of losing control of a motor vehicle as a result of being affected by alcohol and/or prohibited substances is the subject of constant campaigns by governments at all levels.
44.I have similar concerns about the Applicant’s failure to realise the potential adverse impact arising from unlicensed driving. This Applicant (as is the case with virtually all drivers) knew or ought reasonably to have known the potentially serious adverse consequences of unlicensed driving, or driving an unregistered/uninsured vehicle, for other road-users. Whilst no expertise in the motor insurance industry, it is common knowledge that there are insurance implications for unlicensed drivers and/or drivers of unregistered/uninsured vehicles who become involved in motor vehicle accidents. Again, for the Applicant to ignore this obvious and serious consequence of his driving conduct demonstrates an incapacity to distinguish right from wrong and to otherwise conform to the insurance/registration regime of the Australian community as it relates to the ownership and operation of a motor vehicle.
45.The Applicant’s driving offences may, at first blush, be considered relatively minor when viewed against the balance of his history. However, the theme of attendant recklessness and indifference to laws and rules governing the operation of a motor vehicle is, in and of itself significant. Indeed laws that protect road users “go to the essential safety of the community”. Other parts of his criminal history are perhaps more serious than his driving/traffic convictions. But, his failure to understand right from wrong when operating a motor vehicle – be it drinking and driving, driving without a licence, or driving an unregistered vehicle – can only lead me to conclude that this component of his history further confirms the seriousness of his offending and potential risk to the community.
(Original emphasis and footnotes omitted.)
The Applicant does not pass the character test under s 501(6) of the Migration Act.
The Tribunal has considered whether to exercise its discretion remit or set aside the decision to cancel the Applicant’s visa under s 501(2) of the Migration Act should be exercised, having regard to the primary and other considerations in Direction no. 79.
The first primary consideration, being the protection of the Australian community weighs strongly against the Applicant.[125] The third primary consideration, being the expectations of the Australian community, also weighs against the Applicant.[126]
The strength, nature and duration of the Applicant’s ties to Australia weigh strongly in favour of the Applicant. The extent of the impediments to his removal to the UK also weigh in his favour.
There are no easy answers in a case like the Applicant’s. By any measure he has a serious history of offending against the laws of Australia including offences which place some of the most vulnerable members of our community, its children, at risk of serious harm. The community’s tolerance for this type of offending is very low because of the unacceptable risk it presents to the community. The Applicant has acknowledged those impacts but has done so after repeat offending. Further, the Applicant has an extensive history of disregarding the laws which the community puts in place to protect its members from harm. This includes an extensive history of serious driving offences.
Balanced against this, it must be recognised that the Applicant has been in Australia most of his life and considers himself to be Australian. Many in the community would share this view. However, by his own admission, his offending has cost him his close ties in Australia and has caused him to move communities a number of times. In such circumstances his ties to the community in this country cannot, in the Tribunal’s view, be said to be strong. And while he faces challenges on return to the UK, on the evidence, the Tribunal does not regard these to be insurmountable.
Having regard to the evidence before it the Tribunal considers that the primary considerations of the protection of the Australian community and the expectations of the Australian community outweigh the other relevant considerations of the strength, nature and duration of the Applicant’s ties to Australia and the extent of impediments if he is removed to the UK.
On balance, and having regard to all of the primary considerations and the other considerations in Direction no. 79, the Tribunal is of the view that the correct and preferable decision is that the discretion be exercised to cancel the Applicant’s visa. Consequently, the Reviewable Decision is affirmed.
DECISION
The Reviewable Decision is affirmed.
I certify that the preceding 203 (two hundred and three) paragraphs are a true copy of the reasons for the decision herein of Member S Burford
......[sgd].........................................................
Associate
Dated: 10 March 2020
Date(s) of hearing: 27 February 2020 Applicant: In person Counsel for the Respondent: Mr J Papalia Solicitors for the Respondent: Australian Government Solicitor APPENDIX A
Summary of the Applicant’s offending history (excluding juvenile offences)
Court Result Date Offence Offence Date Result Sex Offending Geraldton District Court 20 Aug 2012 Possessing child exploitation material; Criminal Code s 220 14 Oct 2011 12 months’ imprisonment, conditionally suspended for 12 months with programme and supervision requirements Perth District Court 21 Apr 2008 Indecent dealings with a child who is a lineal relative or defacto child; Criminal Code s 329(4) 1 Jan 2006
(notional date)
Community Based Order for 12 months; Reportable offender class 1 under s 13 of the Community Protection (Offender Reporting) Act 2004 (WA) Perth District Court 26 Oct 2007 Possess child pornography in the form of a computer image s 60(4) Classification (Publications, Films, and Computer Games) Enforcement Act (x 3) 17 May 2007 6 months’ imprisonment (on each charge) (concurrent) Supplied child pornography to another s 60(1)(b) Classification (Publications, Films and Computer Games) Enforcement Act 11 May 2007 8 months’ imprisonment (cumulative)
Total effective sentence: 14 months’ imprisonment.
Traffic Offending Karratha Magistrates Court 8 Jun 2010 Obstruct police officer (contrary to s 273(4) of the Road Traffic Code 2000 (WA)) 18 Nov 2009 2 months’ imprisonment, suspended for 1 year Karratha Magistrates Court 29 Apr 2010 Drive under the influence of alcohol; Extraordinary Motor Driver’s Licence (EDL) 18 Nov 2009 7 months’ imprisonment, suspended for 2 years; Motor Drivers’ Licence (MDL) disqualified for life No authority to drive – Suspended Fine $1,000; MDL disqualified for 9 months - cumulative Karratha Magistrates Court 12 May 2009 Refuse breath test 14 Feb 2009 Fine $3,000; MDL disqualified for life Drive contrary to conditions of EDL Fine $600; EDL cancelled Pannawonica Magistrates Court 16 Jun 2005 Drive contrary to conditions of EDL 25 Mar 2005 Fine $1,000 Carnarvon Court of Petty Sessions 23 Mar 1998 Drive contrary to conditions of EDL x 2 Fine $600; EDL cancelled Drive under the influence of alcohol Fine $3,500; MDL disqualified for life Carnarvon Court of Petty Sessions 20 Mar 1998 Driving under the influence 21 Dec 1997 Fine $3,500; MDL cancelled and disq for life Drive contrary to conditions of EDL x 2 Fine $600; EDL cancelled. Perth Court of Petty Sessions 26 Sept 1991 No MDL – under suspension 16 Jun 1991 2 months’ imprisonment; MDL cancelled and disqualified for 9 months (cumulative) Driving under the influence 6 months’ imprisonment; MDL cancelled and disqualified for life Perth Court of Petty Sessions 6 Aug 1991 Drive under the influence of alcohol 6 months’ imprisonment (concurrent); MDL disqualified for life No MDL – under suspension 26 Jun 1991 2 months’ imprisonment; MDL cancelled and disqualified for 9 months (cumulative) Midland Court of Petty Sessions 5 Sep 1989 Driving under the influence 11 Jul 1989 Fine $1,000; MDL cancelled and disqualified for 2 years and 6 months (concurrent) Driving under the influence of alcohol; Probationary MDL 12 Jul 1989 Fine $600; MDL cancelled and disqualified for 18 months (concurrent) Perth Court of Petty Sessions 29 Aug 1989 Driving under the influence of alcohol; Probationary MDL 24 Aug 1989 Fine $800; MDL cancelled and disqualified for 18 months Midland Court of Petty Sessions 22 Nov 1988 No motors drivers licence x 2 204. 6 Jul 1988
4 Jul 1988
Fine $200 Midland Court of Petty Sessions 10 Mar 1987 205. Driving under the influence of alcohol 9 Nov 1986 Fine $600; MDL cancelled and disqualified for 1 year (concurrent) No motors drivers licence; Road Traffic Act 1974; s 49(1) Fine $100 Midland Court of Petty Sessions 9 Feb 1987 Driving under the influence of alcohol 7 Feb 1987 Fine $500; MDL cancelled and disqualified for 9 months 206. Drive contrary to learner’s permit; Road Traffic Act;
s 507 Feb 1987 Fine $100 Unlicensed vehicle 7 Feb 1987 Fine $50 Midland Court of Petty Sessions 18 Apr 1986 207. Speeding by more than 10km/h but less than 20km/h Fine $40
78 km/h in a 60km/h zone
208. No motors drivers licence; Road Traffic Act 1974; s 49(1) Fine $100 Driving under the influence of alcohol Fine $200; MDL disqualified for 3 months Perth Court of Petty Sessions 4 Feb 1983 Unauthorised use of a motor vehicle 12 months’ probation; MDL cancelled and disqualified for 3 months No motor drivers licence Fine $50 Criminal Code; Probationary MDL Fine $200 Perth Court of Petty Sessions 14 Jan 1983 No motor drivers’ licence Fine $50 Unauthorised use of a motor vehicle
12 months’ probation General offending Karratha Magistrates Court 30 Mar 2010 Breach of bail undertaking 20 Jan 2010 Fine $50 Karratha Magistrates Court 30 Sep 2008 Failure to comply with reporting obligations, Community Protection (Offender Reporting) Act 2004, s 63(1)) 29 Aug 2008 Fine $300 Karratha Magistrates Court 24 Jul 2008 Unlawful damage 23 Jul 2008 Fine $50 Carnarvon Court of Petty Sessions 5 Feb 2001 Cultivate Cannabis Fine $200 Possess Cannabis Fine $150 Possess smoking implement Fine $150 Carnarvon Court of Petty Sessions 5 Jul 1999 Disorderly conduct Fine $100 False name and/or address Fine $100 Carnarvon Court of Petty Sessions 31 Dec 1993 False name Fine $75 Carnarvon Court of Petty Sessions 26 Jul 1993 Possess Cannabis Fine $150 Carnarvon Court of Petty Sessions 3 May 1993 Criminal damage Fine $100 Perth Court of Petty Sessions 24 Oct 1991 Stealing as a servant Fine $1,000 Perth District Court 4 Oct 1991 Breach of probation (sentence of 20.6.91) x 2 9 months’ imprisonment (on each charge) (concurrent) Perth Court of Petty Sessions 6 Aug 1991 Break enter and steal x 2 6 months’ imprisonment (on each charge) (concurrent) Perth District Court 20 Jun 1991 Break and enter dwelling with intent 2 years’ probation with 150 hrs of community service (on each) Enter dwelling with intent Midland Court of Petty Sessions 18 Jun 1991 Breach of bail undertaking Fine $200 Criminal damage Fine $50 Trespass x 2 Fine $500 (total) Midland Court of Petty Sessions 20 Feb 1990 Stealing 3 months’ imprisonment Midland Court of Petty Sessions 15 Mar 1988 Assault Occasioning Bodily Harm 100 hrs of community service Midland Court of Petty Sessions 14 Aug 1987 Breach of recognisance Fine $100 Refuse to provide address Fine $20 Perth Court of Petty Sessions 21 Mar 1984 Breach of probation Fine $200 Perth Court of Petty Sessions 23 Feb 1983 Trespass 2 years’ probation Perth Court of Petty Sessions 14 Jan 1983 Breach enter and steal Fine $200 Criminal damage 12 months’ probation [1] R1, G3, page 20.
[2] R1, G13, page 89; R1, G19, page 108.
[3] R1, G19, page 107-108.
[4] R1, G18, page 101.
[5] R1, G17, pages 96-98.
[6] R1, G18, pages 101-105; R1, G5, pages 32-33; R1, G25, pages 154-155.
[7] R1, G9-G16, pages 49-94.
[8] R1, G3, pages 20-30.
[9] R1, G2, page 16-19.
[10] R1, G1, pages 1-7.
[11] R1, G3, page 21.
[12] R1, G3, page 21.
[13] R3.
[14] Transcript, pages 5-6.
[15] R3.
[16] R3.
[17] R3.
[18] Transcript, page 3.
[19] Transcript, page 3.
[20] R1, G5, pages 32-34.
[21] R2, SG1, pages 166-175.
[22] Respondent’s submissions on the relevance and admissibility of the Applicant’s juvenile record dated 28 January 2020.
[23] R1, G25, page 155.
[24] It appears from the Statement of Material Facts that this is a notional date for the offence which occurred between March and June 2006; R1, G24, page 148.
[25] R1, G25, page 155.
[26] R1, G24, page 148.
[27] R1, G24, page 148.
[28] R1, G24, page 148.
[29] Criminal Code (WA) s 329(10)(a).
[30] These provisions were deleted with Act No 21 of 2010 s 9.
[31] R1, G25, pages 155-156.
[32] R1, G25, pages 155-156.
[33] R1, G7, page 43.
[34] R1, G7, pages 41-46.
[35] R1, G24, pages 149-150; see also R1, G8, page 47.
[36] R1, G24, page 149; R1, G7, page 43.
[37] R1, G7, page 43.
[38] R1, G7, page 43.
[39] R1, G24, page 150; R1, G7, page 43.
[40] G1, G7, page 43.
[41] R2, SG2, pages 182-185.
[42] R1, G25, page 154; R1, G6, pages 35-40.
[43] R1, G25, page 154; R1, G6, pages 35-40.
[44] R1, G6, pages 35-40.
[45] R1, G24, page 153.
[46] R1, G24, page 153.
[47] R1, G24, page 153.
[48] R1, G6, page 36.
[49] R1, G6, pages 39-40.
[50] Seyfarth v Minister for Immigration and Multicultural and & Indigenous Affairs (2005) 142 FCR 580 at [27] (Sundberg, Jacobson and Bennett JJ).
[51] A1.
[52] Preamble, Direction no. 79.
[53] Direction no. 79, para 6.3.
[54] Direction no. 79, para 6.3(3).
[55] A1.
[56] Direction no. 79, paras 9.1.1(1)(a) and (c). The Tribunal notes that while children are not listed as vulnerable members of the community in 9.1.1.1(1)(c) the list contained in the paragraph is not exhaustive and, in the Tribunal’s view children are clearly vulnerable members of the community. See the approach of Senior Member Evans-Bonner in Di Stefano v Minister for Home Affairs [2019] AATA 676 at [56].
[57] R1, G7, pages 43-44.
[58] R1, G6, pages 37-38.
[59] Transcript, page 21.
[60] Transcript, page 20.
[61] See also the Tribunal’s review of the case law in Gage v Minister for Home Affairs [2020] AATA 326.
[62] Direction no. 79, para 9.1.1(g).
[63] Direction no. 79, para 9.1.1(1)(g).
[64] Direction no.79, para 9.1.1(1)(c).
[65] Direction no. 79, para 9.1.1(1)(b).
[66] Direction no. 79, paras 9.1.1(1)(d),(i) and (k).
[67] Direction no. 79, para 1.1.1(1)(i).
[68] Direction no. 79, para 9.1.1(1)(e).
[69] Direction no. 79, para 9.1.1(1)(f).
[70] Direction no. 79, para 9.1.1(1)(h).
[71] Direction no. 79, para 9.1.1(1)(j); R1, G17, pages 96-97.
[72] A1.
[73] A1, see also Transcript, page 72.
[74] R4, citing Direction no 79 paras 6.3(3) and (4) and 9.1.2(1).
[75] Paragraph 9.1.2(2)(b) of Direction no 79.
[76] Paragraph 9.1.2(2)(a) of Direction no. 79.
[77] R1, G7, page 44.
[78] These reports were not before the Tribunal.
[79] R1, G7, page 45.
[80] R1, G1, page 8; R1, G11, pages 85-86; R1, G7, pages 45-46.
[81] R1, G25, page 155.
[82] R1, G25, p 155; R1, G24, p 151.
[83] R1, G6, pages 37-38.
[84] The nature of the objections mentioned was not detailed in material before the Tribunal.
[85] R1, G11, page 85.
[86] Transcript, pages 39-40.
[87] A1.
[88] R1, G1, 5.
[89] R1, G15, page 92.
[90] Transcript, page 10.
[91] Transcript, page 50.
[92] Pinder and Minister for Home Affairs [2019] AATA 1398; WSYT and Minister for Home Affairs [2019] AATA 462.
[93] R1, G15, page 92; R1, G1, page 10.
[94] R1, G14, page 90.
[95] R1, G16, pages 93-95; Transcript, pages 51-59.
[96] Transcript, pages 53-54 and 58.
[97] Direction no 79, paragraph 6.3(2).
[98] Direction no 79, paragraph 6.3(2).
[99] R4, pages 11-12.
[100] While the case of FYBR (FC) concerns Direction No. 65 and in particular paras 6, 8 and 11.3 of that Direction, the text of the relevant provisions is largely unchanged in Direction No 79. The Tribunal considers that the Court’s consideration of the issue of “community expectations” is directly applicable to paras 6, 8 and 13.3 of Direction No. 65 which are applicable to applications under Direction No. 79. Further, although the Justices in FYBR (FC) were considering the provisions with respect to visa refusal their comments are, in the Tribunal’s view, equally applicable to the cancellation of a visa (though the other considerations and weighing exercise may differ).
[101] Although the Full Court was considering an earlier version of the direction (Direction no 65) and was considering paragraph 13.3(1) the Tribunal notes that that paragraph is in identical terms to the provision in 9.1 and that there was not a substantive difference between Direction no 65 and the current direction with respect to these provisions. Accordingly the Tribunal regards the Court’s consideration as applicable to the considerations arising in this case.
[102] Charlesworth J at [73]-[74]; Stewart J at [93] and [103].
[103] See Charlesworth J (at [74]), Stewart J (at [91]-[93]).
[104] See for example Direction No. 79 paras 13.1.1(1)(a), (b) and (c).
[105] Paragraph 10.2(1)(a)(i) of Direction no. 79; R1, G25, page 164
[106] R1, G25, pages 154 -164.
[107] A1.
[108] R1, G16, pages 93-95; see also G10, page 80.
[109] R1, G16, pages 93-95.
[110] Transcript, pages 53-54 and 58-59.
[111] Ibid.
[112] R1, G10, page 78.
[113] R1, G10, page 78.
[114] Transcript, page 44.
[115] A1.
[116] Ibid.
[117] A1.
[118] R4, pages 14-15.
[119] R1, G14, page 90.
[120] R1, G14, page 90; see also G15, page 92.
[121] R3.
[122] Transcript, pages 48-49.
[123]R4 pages 14 - 15, citing R4, page 15 referring to Paragraph 9.1 of Direction no. 79.
[126] Paragraph 9.3 of Direction no. 79. The Tribunal notes that it limited its consideration of the Applicant’s juvenile offence history to taking account of when he commenced offending as this element is required by the direction.
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