RZMW and Minister for Home Affairs (Migration)
[2018] AATA 4620
•11 December 2018
RZMW and Minister for Home Affairs (Migration) [2018] AATA 4620 (11 December 2018)
Division:GENERAL DIVISION
File Number: 2018/5491
Re:RZMW
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Theodore Tavoularis
Date:11 December 2018
Place:Brisbane
The Tribunal affirms the decision under review.
...........................[SGD]............................................
Senior Member Theodore Tavoularis
CATCHWORDS
MIGRATION – non-revocation of mandatory cancellation of protection visa – expedited matter – where visa was cancelled under s 501(3A) – applicant does not pass character test – 12 month imprisonment – whether discretion in s 501CA to revoke mandatory cancellation should be exercised – considerations in Direction No 65 – consideration in Direction No 75 – applicant committed violent offences – applicant committed offences against personal and property rights of others – applicant committed offences indicating refusal to submit to lawful authority – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
Migration Regulations 1994 (Cth)
Qld Criminal Code 1899 (Qld)
CASES
Afu v Minister for Home Affairs [2018] FCA 1311
Ali v Minister for Immigration and Border Protection [2018] FCA 650
Allan and Minister for Immigration and Border Protection [2016] AATA 1077
BCR16 v Minister for Immigration and Border Protection [2017] FCAFC 96; 248 FCR 456
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409; 2 ALD 60
ETWK and Minister for Immigration and Border Protection [2017] AATA 228
Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166; (2016) 153 ALD 337
Greene v Assistant Minister for Home Affairs [2018] FCA 919
Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66; 250 FCR 548
Minister for Home Affairs v Buadromo [2018] FCAFC 151
Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Turay v Assistant Minister for Home Affairs [2018] FCA 1487
Waits and Minister for Immigration and Multicultural and Indigenous Affairs [2003] AATA 1336
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466SECONDARY MATERIALS
Direction No 65
Direction No 75
REASONS FOR DECISION
Senior Member Theodore Tavoularis
11 December 2018
BACKGROUND
RZMW (“the Applicant”) arrived in Australia on 4 November 2004 on a refugee (subclass 200) visa.[1] On 13 February 2017, his visa was mandatorily cancelled under s 501(3A) of the Migration Act 1958 (Cth) (“the Act”) on the grounds that he had been sentenced to a term of imprisonment of more than 12 months and was serving a full-time term of imprisonment.[2] The Applicant subsequently applied for this cancellation to be revoked. On 18 September 2018, a delegate of the Minister for Home Affairs (“the Minister” or “the Respondent”) refused to revoke the cancellation of the Applicant’s visa.[3] The Applicant has applied to the Tribunal to reconsider this decision.[4]
[1]Exhibit 6, G Documents, G25, Movement Records, p. 219; Exhibit 4, Respondent’s Statement of Issues, Facts and Contentions (“SIFC”), dated 9 November 2018, p. 2, para [4].
[2] Exhibit 6, G Documents, G3, Notice of visa cancellation, dated 13 February 2017, pp. 20 – 24.
[3]Ibid, G8, Notification of decision not to revoke visa cancellation under s 501(3A), dated 18 September 2018, pp. 86 – 87.
[4] Ibid G1, Application for Review, dated 24 September 2018, pp. 4 – 12.
ISSUES
Pursuant to s 501CA(4) of the Act the Minister is able to revoke the decision to cancel the Applicant’s visa under s 501(3A) of the Act. Relevantly, this provides that:
(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.
It is not disputed and indeed there is no question that the Applicant made the representations required by s 501CA(4)(a). Thus, the issue is whether the discretion to revoke the mandatory cancellation of the Applicant’s visa may be exercised. As a starting point, I must refer to the Full Court of the Federal Court of Australia’s observations in Minister for Home Affairs v Buadromo:[5]
“…there has been some discussion in the authorities as to whether s 501CA(4) contains a residual discretion in the decision-maker by reason of the use of the word ‘may’ in the chapeau of the subsection, or whether the balancing of the factors favouring a refusal to revoke the cancellation is part of the one exercise of determining whether there is another reason the original decision should be revoked. The weight of authority in this Court favours the latter view…[6]
[5] [2018] FCAFC 151.
[6]Ibid, [21], citing, inter alia, Gaspar v Minister for Immigration & Border Protection [2016] FCA 1166, (2016) 153 ALD 337, [38] (North ACJ); Marzano v Minister for Immigration & Border Protection [2017] FCAFC 66, (2017) 250 FCR 548, [31] (Collier J, with whom Logan and Murphy JJ agreed).
There are therefore two issues presently before the Tribunal:
(a)Whether the Applicant passes the character test; and
(b)Whether there is another reason why the decision to cancel the Applicant’s visa should be revoked.
If the Applicant succeeds on either ground, the weight of authority indicates that the Tribunal must find that the cancellation of the Applicant’s visa must be revoked.[7] I will address each of these grounds in turn.
[7] Ibid.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in s 501(6) of the Act. Under s 501(6)(a), a person will not pass the character test if they have “a substantial criminal record”. This phrase, in turn, is relevantly defined in s 501(7)(c), which provides that a person will have a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
The Applicant, helpfully, acknowledges the seriousness of his offending and, as best as I understood his evidence, he did not cavil with the suggestion that he does not pass the character test due to his substantial criminal record.[8] This concession was appropriately made: for one sentencing episode on 8 July 2013, the Applicant was sentenced to two and a half years’ imprisonment.[9] Although this sentence was suspended after the Applicant served roughly six months’ imprisonment, it has long been established that what matters is the term of imprisonment to which a person has been sentenced, not the amount of time they actually served.[10]
[8] Exhibit 1, Applicant’s Written Submission (undated), p. 2.
[9] Exhibit 6, G-Documents, PG11, p 108.
[10]See Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409; 2 ALD 60 pp. 415-416; p. 74.
Consequently, I am satisfied that the Applicant does not pass the character test. Accordingly, the Applicant cannot rely on s 501CA(4)(b) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON WHY THE CANCELLATION OF THE APPLICANT’S VISA SHOULD BE REVOKED?
In considering whether to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound in accordance with s 499(2A) to comply with any directions made under the Act. In this case Direction No 65 (“the Direction”) applies. The Direction provides guidance for decision-makers on how to exercise the discretion. Relevantly, it states that:
…a decision maker:
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.[11]
[11] The Direction, [7(1)(b)].
The considerations relevant in the context of a revocation decision appear in Part C of the Direction. Paragraph 13(2) of the Direction provides the three primary considerations that the Tribunal must take into account:
(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 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The other considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14 of the Direction. These considerations are:
(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.
I note and emphasise the importance of these considerations being “other” considerations, as opposed to “secondary” considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[12]
Direction 65 makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply.[13]
[12] [2018] FCA 594.
[13] Ibid at [23].
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker’s consideration. Briefly stated, they are as follows:
(i)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia;
(i)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;
(ii)A non-citizen who has committed a serious crime should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia;
(iii)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;
(iv)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;
(v)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 be allowed to come to or remain permanently in Australia; and
(vi)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 for determining whether to exercise the discretion.
I will now turn to addressing these considerations.
Primary Consideration A
The Tribunal must have regard to the protection of the Australian community from criminal or other serious conduct. Paragraph 13.1(2) of the Direction further provides 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.
Criminal History
It is necessary to summarise the Applicant’s criminal history. The National Police Certificate[14] discloses the following offences (and resulting sentencing outcomes).
[14] Exhibit 6, G-Documents, G10, pp. 107-112.
Date
Offence
Court Result
8 November 2005
Resisting Authorised Person after being Refused Entry to Premises
On both charges: No Conviction recorded. Fined $250
Obstruct Police Officer
10 April 2007
Failure to Appear in Accordance with Undertaking
On each charge: No conviction. Fined $100
Commit Public Nuisance
20 April 2007
Unlawful Possession of Suspected Stolen Property
Convicted. Fined $600
8 October 2007
Failure to Appear in Accordance with Undertaking
Convicted. Fined $400
Wilful Damage of Police Property
Convicted. Fined $300. Pay restitution $206.05
Commit Public Nuisance
Convicted. Fined $200
9 January 2008
Failure to Appear in Accordance with Undertaking (2 Charges)
On both charges: Convicted. Fined $500
11 February 2008
Wilful Damage of Police Property
On all charges: Convicted, Probation 9 months. Pay Restitution $1,374.
Commit Public Nuisance
Obstruct Police Officer
Contravene Direction or Requirement (2 Charges)
Failure to Comply with Requirement to Stop Private Vehicle
27 August 2008
Breach of Probation Order Imposed 11/2/2008
For breach of order: Convicted. Re-sentenced for totality of the offending constituting the breach of probation. Fined $1.850.
1 September 2008
Breach of Bail Granted Condition (5 Charges between 11/1/2008 and 25/1/2008)
On all charges: Convicted. No penalty imposed.
18 May 2009
Urinating in a Public Place
Convicted. Fined $50.
18 February 2010
Commit Public Nuisance
On both charges: Convicted. Probation for 9 months. Pay Compensation $100.
Serious Assault – Assault/Resist/Obstruct Police Officer/Person Acting in Aid of Police Officer (pursuant to s 340(1)(b) of the Qld Criminal Code 1899).
10 October 2011
Wilful Damage (2 Charges) (pursuant to s 469 of the Qld Criminal Code 1899)
On all charges: Convicted. Probation for 12 months.
Breach of Domestic Violence Order
12 December 2012
Failure to Appear in Accordance with Undertaking (3 Charges)
On all charges: Convicted. Fined $1,000.
Breach of Bail Granted Condition
Wilful Damage (pursuant to s 469 of the Qld Criminal Code 1899).
Convicted. Fined $200.
Breach of Probation Order Imposed 10/10/2011
Except for two wilful damage charges and the breach of the Domestic Violence Order, the Applicant was re-sentenced for the totality of the offending arising from the breach of his probation order and fined $2,600.
For the two counts of wilful damage and the breach of the Domestic Violence: on all charges, conviction recorded, sentenced to two months imprisonment, to be suspended until 11/82013.
19 December 2012
Breach of Probation Order (imposed on 12/12/2012)
The abovementioned suspended sentence was extended by a period of seven days.
Failure to Appear in Accordance with Undertaking
Conviction recorded, sentenced to two months imprisonment, to be suspended for six months and to be served concurrently with immediately preceding sentence.
8 July 2013
Breach of Order (imposed on 19/12/2012)
On all charges suspended sentence fully invoked with a parole release date of 7/11/2013.
Breach of Order (extended on 19/12/2012)
Suspended sentence fully invoked, parole release date 7/11/2013 (to be served concurrently with immediately following sentence).
Fail to stop motor vehicle (3 charges)
On all charges conviction recorded. Sentenced to 2 years, 6 months’ imprisonment with a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence – 178 days (11/1/2013 to 7/7/2013), parole release date of 7/11/2013.
Dangerous operation of a motor vehicle (pursuant to s328(a)(1) of the Qld Criminal Code 1899)
Contravention of domestic violence order
On all charges conviction recorded. Sentenced 4 months imprisonment to be served concurrently with the two immediately preceding sentences; declaration that time spent in pre-sentence custody be deemed as time already served under his sentence – 178 days (11/1/2013 to 7/7/2013), parole release date of 7/11/2013.
Possess tainted property
19 December 2016
Contravene Direction or requirement
Conviction recorded. Fined $300.
Unlawful use of Motor Vehicle (pursuant to s408(a)(1)(a) of the Qld Criminal Code 1899)
On all Charges: Conviction recorded. Fined $1000.
Possession of knife in a Public Place or School
19 January 2017
Wilful damage (pursuant to s 469(1) of the Qld Criminal Code 1899)
Conviction recorded. Sentenced to 6 months imprisonment, parole release date fixed for (19/1/2017) Restitution order of $1,710.
21 March 2018
Common assault – context of domestic violence offence (2 Charges) pursuant to ss 335 and 564(3)(a) of the Qld Criminal Code 1899)
On all charges: Conviction recorded. Sentenced 108 days imprisonment with a declaration that time spent in pre-sentence custody be deemed as time already served under this sentence: 108 days (between 22/1/2017 and 30/1/2017; 12/12/2017 and 20/3/2018).
Assaults occasioning bodily harm – domestic violence offence (pursuant to ss 339(1) and 564(3)(a) of the Qld Criminal Code 1899)
Contravention of domestic violence order
Traffic History
The only frank comment that can be made about the Applicant’s traffic history is that it is as equally appalling as his criminal history. The totality of his traffic history appears in the material.[15] Respective judicial officers have made comments about his traffic history. When sentencing him for certain criminal offending on 21 March 2018, Judge Horneman-Wren SC of the District Court of Queensland observed “And you also have, it must be said, a very, very poor traffic history. You have not performed well on parole in the past.”[16] Similarly, when sentencing the Applicant for criminal offences on 8 July 2013,
Shearer J of the Queensland Magistrates Court observed:“You’ve got a terrible traffic history that involves two previous – two previous convictions for disqualified driving, and six previous convictions for unlicensed driving. And those facts, as well, aggravate the seriousness of your conduct in this case.”[17]
[15] Exhibit 5, Material summonsed by Respondent (Police Material), pp. 100 – 106.
[16] Exhibit 6, G Documents, G11, p. 115, lines 30 – 31.
[17] Ibid, G13, p. 122, lines 31 – 34.
There is little utility in recounting the offences committed by the Applicant involving a motor vehicle that, in turn, became indictable offences. Those offences are dealt with later in these Reasons when I discuss the Applicant’s criminal history. However, what seems glaringly obvious from the other aspects of the traffic history is that the Applicant has never accepted or yielded to the lawful authority that regulates a citizen’s right to operate a motor vehicle. For example:
·as a younger man and a very new driver, the Applicant was apprehended on eight separate occasions in 2008 for failing to follow mandatory requirements for a learner drive (for example, failing to display “L plates” and driving without an open license driver seated beside the learner drive);
·during 2006 – 2008 there are five offences involving unlicensed driving;
·the seriousness of the traffic history worsens with the passage of years such that the Applicant is disqualified from driving in March 2009 and June 2011;
·there are approximately 12 instances of suspension or disqualification from driving from either driving disqualified, for excessive accumulation of demerit points, non-payment of fines levied for his traffic offending and for other traffic transgressions; and
·there are at least 17 offences relating to travelling on public transport without paying the correct fare and/or failure to produce a ticket and/or evading payment of part or all of a lawful fare.
The traffic history is demonstrative of an applicant who:
(a)has little or no insight into the nature of his traffic offending;
(b)does not respect the rules under which the rest of the community must operate a motor vehicle; and
(c)seems to regard public transport as a service that is available to him to utilize for free.
The Nature and Seriousness of the Applicant’s Conduct to Date
The Respondent contended that the Applicant’s offending conduct is of a very serious nature.[18] I accept this contention. The Applicant’s history of criminal conduct is one of escalating severity and demonstrates an absence of insight into his offending, together with a lack of respect for the authority of law enforcement.
[18] Exhibit 4, SIFC, pp. 7 - 8, para [24].
There can be no doubt about the seriousness of the Applicant’s offending. His criminal history is both lengthy heavily characterised by an increasing severity in the nature of the offending. Similarly, his traffic history does him no favours. Aside from the nature of the offending inherent in the traffic history, there is an obvious failure in the mind of the Applicant to comprehend the level of catastrophic harm that he could cause at the wheel of a circa two tonne motor vehicle. The Applicant has also been sentenced to multiple terms of imprisonment, which it would appear has not had a deterrent effect, despite the best efforts of judicial officers imposing those sentences.
The nature of the Applicant’s offending can only be categorised as having increased in seriousness over its 13 year history. It began with relatively minor or regulatory offences, namely, for example public nuisance and wilful damage to property. It then advanced in severity and culminated with a more recent trend of domestic violence, together with other violent offences and, of course, his very serious traffic offending.
The Applicant has not sought to deny the seriousness of his offending. At the hearing, it became apparent that much, if not all, of his offending arose from issues with substance abuse – most notably, alcohol. The further upshot from the evidence is that, on any reasonable view, the Applicant’s issues with alcohol remain unresolved. Putting that to one side, for reasons that follow, such a contention can only go so far. Further, a contention of this nature, without documentary evidence of rehabilitation certainly cannot justify the making of a decision to revoke the decision to mandatorily cancel the Applicant’s visa.
When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 13.1.1(1) of the Direction specifies that decision-makers must have regard to a number of factors. Relevant (for present purposes), amongst those factors are:
a) The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
…
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 repeated 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;
h) 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…
Sub-paragraph (a) of paragraph 13.1.1(1) of the Direction provides that crimes of violence (which, for present purposes must surely include acts of domestic violence) are to be viewed very seriously. There is an undeniable element of violence in the Applicant’s history of offending.
The Applicant has committed both serious and violent offences in Australia. As recently as March of this year (2018), he has been sentenced for common assault, assault occasioning bodily harm and for the contravention of a domestic violence order. The victim of his domestic violence offending has, unfortunately, been his partner. The Applicant violently dealt with her while she was pregnant with his child.[19] The violent conduct at first seemed rather low-level, because he was attempting to pull a ring off her finger. But he did not stop there: he then placed his arm around her neck, causing her to struggle to breathe, and then saw fit to bite her hand.[20] It is notable that he committed this domestic violence conduct while a domestic violence order – put in place to prevent exactly this kind of conduct – was current against him.
[19] Exhibit 6, G Documents, G11, p. 114, lines 39 and 42 – 43.
[20] Ibid, pp. 114 – 115, lines 45 – 52.
Of equal seriousness is the Applicant’s conduct involving very dangerous operation of a motor vehicle. He was sentenced for this offending at the Brisbane Magistrates Court on
8 July 2013. Shearer J, made these comments at the time of sentencing the Applicant:“It goes without saying that the offending conduct…is particularly serious, given the risk that – the obvious risk that is posed by virtue of your driving to public safety, more particularly, your own safety is – must be said less important than the safety of other people, who you may have – and are very lucky not to have collided with whilst you were dangerously operating a motor vehicle and whilst – and also in relation to the manner of your driving on each of the occasions when you failed to stop when you were given a direction to do so via the police.
The schedule of facts…indicates that you’re very lucky not to have been charged with dangerous operation of a motor vehicle in respect of those incidents as well, given they involved you crossing double lines into oncoming traffic, and speeding away from police. So, to that extent, they are very serious examples of a failure to stop. The remaining offences really cascade from that behaviour, given that they involve various types of unlawful conduct whilst you were in the process of driving whilst disqualified, or dangerously operating a motor vehicle, either in terms of the specific offence of dangerous operation, or generically speaking, having regard to your matter [sic] of driving.
You’ve got a terrible traffic history that involves two previous – two previous convictions for disqualified driving, and six previous convictions for unlicensed driving. And those facts, as well, aggravate the seriousness of your conduct in this case.”[21]
[21] Ibid, G13, p. 122, lines 13-34.
There is, therefore, no other way to characterise the totality of such offending except as being “very serious”. This is augmented by certain incidents that can be found in certain police material summonsed by the Respondent.[22] On 17 February 2010, police were contacted by Queensland Rail about a male person laying on the train tracks and armed with rocks. Police were also told that the Applicant was creating a public nuisance earlier that evening and was involved in kicking train doors and windows and yelling at the public. According to what Queensland Rail told police, train services had to be stopped until the Applicant was removed. When confronted by police, the Applicant’s response – after continuing to resist police and eventually being handcuffed – was as follows: “Fuck you, you fucken pigs, you mother fuckers, fuck off cunts.”[23] The summonsed material indicates the Applicant continued to be verbally threatening and that he also attempted to kick out at police in the course of apprehending him, police also detected the Applicant to have slurred speech and a strong smell of liquor.[24]
[22] Exhibit 5, Material summonsed by the Respondent (police material).
[23] Ibid, p. 21.
[24] Ibid.
There are further instances of serious and indeed violent conduct set out in the Police material that was summonsed by the Respondent. On 31 October 2016, the Applicant again found himself before police, specifically, at the Beenleigh Police Station.[25] The Applicant voluntarily attended that police station to report an incident involving the alleged removal of money from an online gaming account. When police eventually spoke with the Applicant, they were notified that he has a black steak knife in his possession. Police eventually located the knife in a bongo drum belonging to the Applicant. After seizing the knife, police then asked the Applicant to take part in an electronic record of interview. This is what transpired during the interview:
During the interview the defendant admitted that he had walked to the Police Station with the knife in his hand for protection. He stated that if someone was going to attack him he would take them out. The defendant was of the belief that persons were following him and after him. He could offer no lawful or emergent reason for having the knife.[26]
[25] Ibid, p. 71.
[26] Ibid.
As contended by the Respondent, the Applicant’s attitude towards possession of this steak knife indicates a propensity to readily commit further violent offences. This is a contention with which I agree.
A further instance of the Applicant’s serious and violent conduct can be seen in the incident that occurred on 7 January 2013. This incident involved police intercepting a motor vehicle driven by the Applicant for the purpose of conducting a license check and breath test. The Applicant stopped his vehicle that contained him plus three male persons and one female person. Police asked the Applicant to produce a driver license and he told them that he had no identification on him. The Applicant did provide his full and correct name. He was then directed by police to keep the vehicle exactly where it was while they conducted a license check. During this license check, one of the police officers was leaning on the passenger window while speaking to a male passenger seated in the front of the vehicle. While doing so, the Applicant caused the vehicle to accelerate:
“…extremely quickly away from police causing [the police officer’s] hand to be knocked away from the vehicle and causing [the police officer] to stumble forwards towards the vehicle as it drove away. [The police officer] has shouted for the driver to ‘STOP’. The driver has continued to accelerate and turn sharply right in front of oncoming traffic without indicating into Cutbush Street then right again into Worsfold Street which is a dead end street. The [Applicant] has stopped the vehicle in the middle of the street and left the vehicle running in gear without the handbrake on. The [Applicant] has exited the vehicle and decamped through houses away from police.
On the 10/01/2013 the [Applicant] was located at [redacted in original] and arrested for this matter. The [Applicant] was transported to the Brisbane City Watchhouse where he took part in a record of interview regarding this and other matters. The [Applicant] made full admissions to driving the motor vehicle and being unlicensed. The [Applicant] further admitted to accelerating quickly however stated that he did not know that [the police officer] was standing near the motor vehicle with her hand on the window. He stated that as long as she was not in front of the vehicle it didn’t matter and his only thought was to avoid police.”[27]
[27] Ibid, page 55.
Having regard to sub-paragraph (a) of paragraph 13.1.1(1) of the Direction, I am of the view that the totality of the Applicant’s offences against other persons must be viewed very seriously. His predisposition towards violence and violent outcomes does not differ between violence towards random members of the public (as evidenced by his conduct towards Queensland Rail), his domestic partner (as evidenced by the episodes of domestic violence offending) or towards members of the law enforcement community that are charged with responsibility of maintaining law and order in the community to which the Applicant now seeks to be returned.
Sub-paragraph (c) of paragraph 13.1.1(1) of the Direction concerns itself with the sentence(s) imposed by the court(s) for a crime(s) committed by the Applicant. The removal of a person from mainstream society is viewed by the Courts as a measure of last resort in any reasonably applied sentencing process. As is often seen in matters such as this, the imposition of progressively more severe sentences across a given criminal history is suggestive of its inherent seriousness.
In the early phases of the Applicant’s offending, he received the benefit of leniency from those sentencing him. He received the benefit of penalties involving the non-recording of a conviction, the imposition of fines and orders for restitution. As his offending increased in severity, particularly from December 2012 and, more importantly, July 2013 onwards, the sentencing authorities imposed harsher penalties in the form of custodial terms of imprisonment.
As will be noted from the criminal history, the severity of the sentences imposed on the Applicant are commensurate with the increasing level of seriousness of his offending. The sentencing courts have seen fit to impose custodial terms for six separate offences:
·12 December 2012 – two months’ imprisonment;
·19 December 2012 - two months’ imprisonment;
·8 July 2013 – two years and six months’ imprisonment
·8 July 2013 – four months’ imprisonment
·19 January 2017 – six months’ imprisonment
·21 March 2018 –108 days imprisonment.[28]
[28] Exhibit 6, G Documents, G10, pp. 109 – 112.
The circumstances of the Applicant’s violent offending, be it against random members of the public, law enforcement officers, or in the form of domestic violence, were not just very serious, they involved an element of potential danger for the victims. None of his violent offending can be construed in the context of a social disagreement that quickly resolved. His offending is wanton, random and with little or no regard for the safety of others. The Applicant cannot explain away his offending on the basis of momentary lapses of self-control. Each circumstance of his violent offending was administered with a discernible disregard for lawful authority and for any quite likely adverse outcome resulting from his very serious behaviour.
The Applicant has a criminal history spanning 13 years (November 2005 to March 2018) Having regard to that 13 years, the Applicant has received custodial terms totalling approximately four years.
The period of four years, when expressed as a percentage of his 13 year offending history, equates to just under one third of his total offending period of 13 years. This means that for one third of his total offending period, his unlawful conduct has been punished by way of imposition of custodial terms. Of perhaps greater concern is the reality that the Applicant started offending barely a year after his arrival in Australia and has continued to offend for the totality of his time in this country.
Accordingly, there can be no doubt that the sentences imposed by the court for crimes committed by the Applicant clearly point to the nature and seriousness of his criminal offending.
Sub-paragraph (d) of paragraph 13.1.1(1) of the Direction requires a decision-maker to look at the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness. Even a cursory review of the National Police Certificate is demonstrative of an undeniable escalation in the seriousness of the Applicant’s offending. Prior to his Court appearance in July 2013, the Applicant’s offending primarily involved a failure to respect lawful authority (in the form of breaches of bail or failing to follow a lawful direction or requirement), together with regulatory offences. The escalation of severity occurred from July 2013. His offending post this date involved serious transgressions against the personal rights and safety of other people, primarily in the form of domestic violence and his reckless conduct when in charge of a motor vehicle.
To my mind, it is not possible for the Applicant to deny the increasingly serious trend of his offending. Whatever factor(s) can be said to be causative of his offending, the Tribunal cannot be satisfied that such factor(s) have been either diagnosed or treated, nor for that matter, is there any independent prognosis as to how those factors may influence the Applicant’s future conduct. No comfort or assurance can be taken from the Applicant’s apparent assurance given in his evidence in the hearing that, were he to be allowed to return to the community, all would be well and that no further harm or damage would be caused by him because he would no longer offend.
In terms of frequency of the Applicant’s offending, he has, as mentioned, a criminal history that runs for approximately 13 years. During that 13 year period, the frequency of his offending has been such as to cause him to find himself before lawful authority on at least 17 occasions – and that is just for his criminal and lesser derived offending, it does not include his traffic offending. Focussing solely on the former category of offending, the Applicant has therefore found himself before the sentencing courts at least once every 9 months for that 13 year history. This 13 year period, of course, virtually equates to the entirety of the Applicant’s time in this country. There can be no question that his offending is frequent.
Accordingly, the only conclusion one can draw from an application of this sub-paragraph (d) of paragraph 13.1.1(1) of the Direction is that the frequency of the offending and its trend of increasing seriousness are significant factors confirming the very serious nature of the Applicant’s criminal offending to date.
Sub-paragraph (e) of paragraph 13.1.1(1) of the Direction requires me to consider whether the cumulative effect of the Applicant’s repeated offending is such as to render it serious. This consideration can only be answered in the affirmative. The Applicant is a serious repeat offender. During his time in Australia, offending has been his primary and virtual sole preoccupation. He started offending barely one year after arriving here and has continued to virtually offend up to and including this year.
There is little or no evidence that he has either engaged with or commenced with any rehabilitative treatment for his issues with alcohol, such that the Tribunal can confidently release the Applicant back into the community with a visa. The cumulative effect of his offending is such that offending has dominated his life and caused him to fail in any genuine attempt to place the responsibility of his life in the hands of expert people who can assist him with identifying and treating the causative factors behind his offending. He lives, for all intents and purposes, an unregulated life. His offending history tells us that his life is not regulated by respect or fear for lawful authority, nor is it regulated by a respect for the personal and property rights of those around him.
This unregulated and uncontrolled method behind his pattern of life extends to a blatant disregard for the traffic laws of this country. His conduct in this realm is clearly very serious. Not only does he fail to stop when reasonably and lawfully requested to do so, his conduct in and around the control of a motor vehicle is such that he could have killed or seriously injured a police officer and also killed or seriously injured himself and other road users. It is clear to this Tribunal that the Applicant cannot regulate his conduct to bring it within lawful parameters. He elects to drive away from police at speed when they wish to speak with him (or one of the passengers in his vehicle). As will be referred to later in these reasons, he elects to kick an immigration officer in the face and then attempts to punch another immigration officer while in immigration detention. Such is the cumulative effect of his offending that The Tribunal can reach no other conclusion but that the Applicant’s offending is:
(a)very serious; and
(b)very likely to continue were he to be returned to the community.
The cumulative effect of his repeated offending leads one to the conclusion that his offending days are not yet over, and that the time he has spent in custody has not somehow made him “learn his lesson” or become a better person, as he contended in his oral evidence. Whether or not he has learnt a lesson or has otherwise been convinced to change his ways, is yet to be demonstrated by:
(a)the Applicant himself in the context of time spent positively in the community; and
(b)any independent and expert medical or other evidence detailing diagnosis, treatment and ongoing management of the factor(s) arising from abuse of alcohol that seems to be the primary motivator behind his very serious offending history to date.
Sup-paragraph (g) of paragraph 13.1.1(1) of the Direction compels a decision-maker to examine whether the non-citizen has re-offended since being formally warned, in writing, about the consequences of further offending in terms of that non-citizen’s migration status. This factor is clearly not favourable to the Applicant. He was warned not once, but twice, about the adverse consequences to his migration status arising from his offending.
First, by letter dated 21 August 2013,[29] the Minister notified the Applicant that the visa authorising his continued stay in Australia could be liable for cancelation on character grounds. On this occasion the Applicant was given the benefit of the doubt, while at the same time, the Minister made his position abundantly clear to him:
“Dear [Applicant],
It has come to the attention of the Department of Immigration and Citizenship (the department) that you have been convicted of a criminal offence. This means that it may be necessary to consider cancellation of your visa under section 501 of the Migration Act 1958. However, please note that the question of whether or not to cancel your visa is not under formal consideration at this time.
Before deciding what action to take in your case, the department is seeking more information about your personal circumstances. This information would be used to determine if formal consideration should or should not be given to cancelling your visa. For this purpose, it would be helpful if you could complete the attached forms and return them in the enclosed envelope or, if you prefer, by one of the other methods shown at the foot of this page. Please reply within 28 days of the date of this letter.
…
Yours sincerely,
…”
[Emphasis in original]
[29] Exhibit 6, G Documents, G21, p. 190.
The Applicant completed the Personal Details Form contained in the abovementioned correspondence and returned it to the Minister. Therefore, there can be little or no doubt that the Applicant: (1) received this letter and (2) understood its contents.
Second, by letter dated 5 February 2014,[30] the Minister again notified and warned the Applicant about the potential adverse impact of his offending on his visa status. This second letter was sent by way of prepaid registered post and it contains an acknowledgement of receipt for signing and dating by the Applicant. It is clear from the material that the Applicant received this correspondence because on 10 April 2014, he signed an acknowledgement confirming receipt of it.[31] This is what the letter said:
“Dear [Applicant],
NOTICE OF DECISION NOT TO CANCEL VISA UNDER SECTION 501
OF THE MIGRATION ACT 1958
On 27 September 2013, the Department of Immigration and Border Protection notified you that the visa which authorises your continued stay in Australia may be liable for cancellation under section 501 of the Migration Act 1958 on character grounds.
After taking into account all relevant considerations, a delegate of the Minister has made a decision not to cancel your visa on character grounds on this occasion. Your current Class XB subclass 200 Refugee visa will continue to provide you with permission to remain in Australia. However, the delegate decided that you are to be given the following formal warning.
Please note that visa cancellation may be reconsidered if you commit further offences or otherwise breach the character test in future. Disregard of this warning will weigh heavily against you if your case is reconsidered.”
[Emphasis in original]
[30] Ibid, G22, pages 200-202.
[31] Ibid, page 202.
Following his receipt of this second letter of warning, the Applicant committed the following further offences, which came before the sentencing courts as follows:
·19 December 2016 – unlawful use of a motor vehicle pursuant to s 408(a)(1)(a) of the Qld Criminal Code 1899;;
·19 December 2016 – possession of a knife in a public place or a school;
·19 December 2016 – contravention of a direction or requirement of lawful authority;
·19 January 2017 – wilful damage pursuant to s 469(1) of the Qld Criminal Code 1899;
·21 March 2018 – common assault in the context of committing a domestic violence offence (pursuant to ss 335 and 564(3)(a) of the Qld Criminal Code 1899;
·21 March 2018 – assaults occasioning bodily harm in the context of committing a domestic violence offence (pursuant to ss 339(1) and 564(3)(a) of the Qld Criminal Code 1899; and
·21 March 2018 – contravention of a domestic violence order.
The content and terms of the two letters of warning issued by the Minister to the Applicant could not have been clearer. His blatant disregard of both of these letters, despite receiving the benefit of the doubt in the first warning letter, is palpable and beyond excuse. The reality that the Applicant has not once, but twice, ignored duly issued warnings by the Minister about the adverse impact his offending conduct would have on his migration status in this country is confirmatory of the very serious nature of his conduct. He was given an opportunity to modify and ameliorate his conduct. He failed to do so after two warnings and, indeed, has persistently offended after receiving both written warnings. This refusal to heed both warnings demonstrates the “very serious” nature of the Applicant’s offending.
Sub-paragraph (h) of paragraph 13.1.1(1) of the Direction directs a decision maker to look for evidence and determine whether, in the case of a non-citizen who is in Australia, that non-citizen committed a crime while in immigration detention. In cross-examination, the Applicant was taken to couple of incidents that occurred in October 2017 while he was in immigration detention. The evidence before the Tribunal says this:
“This Incident Report is being created by Acting Detainee Service Manager on the 22nd of October 2017.
At approximately 18:55hrs Detainee [the Applicant] was in the Detainee Mess verbally abusing other Detainees.
Emergency Response Team (ERT) Officers who were in the mess approached Detainee [the Applicant] and asked him to calm down and reminded him of his code of conduct and how he was disturbing the other detainees having their meals.
ERT Officers noted that [the Applicant] appeared to be intoxicated. Detainee [the Applicant] then became abusive towards the ERT. Detainee [the Applicant] tipped his plate full of food over the mess table with no regard towards other Detainees and threatening them and telling them all to “fuck off” causing a minor disturbance in the detainee mess.
Detainee [the Applicant] told the ERT Officers to “fuck off” and threw a closed fist punch towards ERT Officer.
At approximately 1900 hours ERT Officers ground stabilized and placed detainee [the Applicant] in Mechanical Restraints.
Detainee [name redacted in original] a friend of Detainee [the Applicant] became agitated and started verbally and physically interfering with the ERT Officers who were looking after Detainee [the Applicant]. ERT Officers asked politely for Detainee [name redacted in original] to calm down and help his friend to also calm down. Detainee [name redacted in original] assisted ERT Officers in removing his friend Detainee [the Applicant] from the detainee mess.
ERT Officers also noticed that Detainee [name redacted in original] appeared to be intoxicated.
Whilst the ERT Officers and Detainee [the Applicant] were in the Greenheart, the Detainee [the Applicant] became aggressive towards ERT Officers and kicked Officer [name redacted in original] in his face. Detainee [the Applicant] was then ground stabilized by ERT officers in an attempt to calm him down.”[32]
[32] Ibid, G23, p. 208.
These incidents were put to the Applicant by the Respondent during cross-examination and he agreed with the version of events put to him by the Minister’s representative. The Applicant also conceded during cross-examination that his offensive conduct while in custody was the result of him drinking home-brewed beer.
Also during cross-examination, the Applicant was taken to the details of a further incident that occurred on 30 June, 2018. This is how the detaining authorities reported the incident:
“This incident report created by Detainee Services Manager (DSM) on the 30th day of June 2018 at approximately 1440hrs.
This incident occurred on 30th day of June 2018 at approximately 0734hrs.
During a matrix led, routine room search in the Hawk compound on room number 3B, Detainee Service Officer (DSO) [name redacted in original] located a toothbrush with a sharpened handle, secreted inside the shower curtain pole. The room is occupied by 2 x detainees and they are [the Applicant] and
[name redacted in original]. Both detainees denied ownership and knowledge of the altered toothbrush, stating that it must have been left there by the previous detainee that occupied that room.
The altered toothbrush was placed in an evidence bag and taken to the security department for further investigation.
As there is no more information, pertaining to this incident, I now consider it closed.
CEP Item – Controlled – Sharp items (knife/syringe…)-1-Toothbrush with sharpened handle.”[33]
[33] Ibid, G33, page 230.
The Applicant sought to deny both knowledge and ownership of this sharpened toothbrush handle. He said in his evidence “I have no idea whose it was and I am 100% sure it wasn’t a weapon.”
As mentioned earlier, the Applicant says he wants a chance to come back into the community and to immediately engage with rehabilitative treatment. One wonders about the veracity of that evidence given that even when the Applicant has been placed in strictly controlled and monitored environment of immigration detention, it has not led to any reduction in the Applicant’s propensity to immediately resort to a violent solution for any disagreement or problem presented to him.
Having regard to the totality of the evidence to which the abovementioned relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction are relevant to this decision, I am of the view that the Applicant’s conduct is readily capable of characterisation as “very serious”. I have looked at the whole of the Applicant’s criminal history. Being fair to him, the Applicant’s offending which was dealt with prior to July 2013 was not particularly serious. However, there is a different characterisation to the offending which was dealt with after July 2013. From that time, the Applicant’s offending took a serious and violent turn. His acts of violence had the potential to impact anyone who came into its orbit, whether they were random members of the public, his partner, or members of the law enforcement community. This post-July 2013 offending can only be described as being “very serious”.
His offending is such that the nature of the harm that would result were he to reoffend would indeed be very serious and quite capable of causing significant physical or psychological harm to members of the community. Upon:
(a)an application of the relevant sub-paragraphs of paragraph 13.1.1(1) of the Direction to the Applicant’s conduct giving rise to his criminal history; and
(b)taking a longitudinal view of that history in the absence of any rehabilitative or other measures having been taken to ameliorate the conduct predisposing the Applicant to offending:-
I find that the nature and seriousness of the Applicant’s conduct to date is of a very serious nature.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Paragraph 13.1.2(1) provides that a decision-maker 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. In assessing the risk, the Tribunal must have regard to the two factors cumulatively listed in paragraph 13.1.2(2). They are:
(a)Paragraph 13.1.2(2)(a) requires me to consider 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)Paragraph 13.1.2(2)(b) requires me to consider 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 reoffending.
The totality of the Applicant’s conduct is such as to lower the Australian community’s tolerance for any risk of future harm this Applicant may cause, given the increasing seriousness of his offending. The trajectory of his offending is such that, were it to be repeated, it would likely be so serious that any risk of such repetition would be unacceptable to the Australian community.
The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct
There is little doubt that in relation to the Applicant’s risk of re-offending, there remains an unacceptable risk that he will re-offend, primarily because he has not accurately addressed the primary cause(s) of his offending behaviour.
There can be no denying that the Applicant has a serious issue with alcohol, which is yet to be addressed.
At the hearing, he acknowledged that “alcohol is my problem, my number one problem.” He spoke in some detail about his “significant problem” with alcohol. He was asked whether in his view, alcohol was the primary cause of his offending, to which he unreservedly replied, “yes”. He told the Tribunal that he started drinking from about the ages of 11 or 12, but that he was not drinking very much during that phase of his life. He said that his significant drinking started “when I came to Australia.” He said that since he arrived here in 2004:
“I started drinking a lot; started drinking alcohol every day; I met a friend who was drinking a lot; we would drink a carton of beer every two days, plus spirits – Jim Beam – different ones.”
He was asked under cross-examination by the Respondent when he last had alcohol. He said “while here in detention – it’s home brew – I was having one or two drinks with them – it didn’t make me feel good.”
In terms of rehabilitation, the Applicant acknowledged that if released back into the community he would:
“hope to get help but I haven’t had any help at the moment…I did a five day course while in detention but did not complete it; I have been going to drum classes plus doing some counselling.”
He was also asked about whether he had undertaken any rehabilitation for his predisposition to violent behaviour and his response was largely aspirational in the sense that he intended to undertake such rehabilitation if he were released back into the community, “at some future point”. He gave similar evidence about undertaking counselling for any anger management issues he may have.
This aspirational tone of seeking critical rehabilitation at some future point for his issues with alcohol, his predisposition towards violence and likely anger management issues appears in a submission he made to the Minister’s delegate prior to the making of the decision under review:
“I do wish to seek counselling when I get out but being made to leave Australia will obviously impact my mental health and I will be prepared to go to any rehab or community programmes if necessary so I do not find myself in this situation again. As life is too short to be wasting time in here as my ambitions are of a high standard.”[34]
[My underlining]
[34] Ibid, G34, page 231.
In my view, an assessment of the nature of the harm resulting from further criminal or other serious conduct by this Applicant is informed by the following factors:
·He has a demonstrated lack of insight into the nature of the harm that his violent offending has occasioned on others;
·This lack of insight extends to the potential catastrophic outcomes that could have and may in future result from his very serious and violent conduct;
·His propensity towards yielding to the escapist effects of alcohol which, in turn, predispose him to both violent, antisocial and disruptive behaviour when responding to an impasse or challenge that is presented to him;
·His demonstrated refusal to accept, respect and defer to lawful authority, whose purpose it is to protect the community from the danger presented by very serious and violent conduct of the type he has perpetrated;
·His demonstrated inability to derive any deterrent benefit from punishments ranging from relatively mild and non-custodial sentences, to lengthy and significant terms of imprisonment;
·His failure to moderate his behaviour in circumstances where:
oHe has the “benefit” of a deterrent effect imposed by the courts in terms of sentencing;
oHe has significant parental and familial responsibilities having four infant children with various partners; and
oHe has received (and ignored) two warnings from the Minister to stop offending or there would otherwise be adverse consequences for his migration status; and
·A failure to engage with a rehabilitative process to identify, address, treat and manage the symptomology behind his propensity to offend and, indeed, to offend in a very serious and violent way.
I agree with the Respondent’s contention to the effect that there is a greater risk than a remote risk of the Applicant re-offending. He has been in either criminal custody or immigration detention since December 2016 and has been largely absent from the community during the intervening period. The further contention from the Respondent is also correct, this being that the Applicant’s evidence about refraining from using alcohol in future is not reliable because it has not been tested in the open forum of the community, where alcohol would be freely available to him.
Similarly, being placed in immigration detention has not lessened his predisposition towards abuse of alcohol and its resulting effect of causing him to conduct himself in a violent way. His conduct while in immigration detention demonstrates just what he is capable of if placed in a situation where alcohol is available to him. The controlled environment of immigration detention did not stop him from abusing alcohol and offending, and there is no reason to expect that his return to the community would do so either.
A range of witnesses gave evidence on behalf of the Applicant. Their evidence was largely unhelpful because none of them had any appreciation or level of awareness of the Applicant’s criminal history. They appeared to be aware of the fact that the Applicant was in custody but they each showed a distinct lack of knowledge about the violent nature of his offending that has caused him to be initially incarcerated in criminal custody and now in immigration detention.
In her evidence, the Applicant’s sister said she thought the Applicant had been placed into custody for some type of failure to report or for breaching his parole. His brother’s evidence went no further than the Applicant being in custody as a result of his
“being cheeky” to police.
With reference to the evidence given by the Applicant’s partner, I agree with the Respondent’s contention that the Tribunal should exercise a degree of caution in receiving her evidence as she has been a victim of the Applicant’s domestic violence offending. It is difficult to give any credibility to the partner’s evidence when she speaks of not being concerned that the Applicant may commit another act of domestic violence against her. She obviously thought the domestic violence he has perpetrated upon her to date merited reporting to law enforcement authorities and the making of an order against him.
She ultimately agreed that their spousal relationship has been an intermittent affair, punctuated by periods of them being together but also being separated. She accepted the undeniable reality that the Applicant was the subject of a domestic violence order, which effectively prohibited him from seeing her between December 2016 to March 2018. It seems plausible from the totality of the partner’s evidence that the relationship between her and the Applicant is, as contended by the Respondent, strained at its highest. I found the partner’s evidence to be less than forthright when asked whether she and the Applicant would continue to be in a relationship were he to be released back into the community.
The Applicant’s conduct clearly demonstrates:
(a)he has not engaged – and is not likely to voluntarily engage in seeking any rehabilitative assistance for the factors predisposing him to offend;
(b)he has derived no benefit from the deterrent effect of sentences imposed upon him by the courts; and
(c)that he has ignored the encouragement and urgings of people such as his current partner and members of his family to get his life in order.
Having regard to the totality of his history with its evolving level of seriousness, I am of the view that, should the Applicant reoffend in a similar manner, the risk that he would pose to a member of the general public, his domestic spouse or a member of the law enforcement community would be very significant. That harm could result in others suffering anything from financial loss to serious physical or psychological injuries or, conceivably, death. I am therefore of the view that the potential future harm he may cause to members of the Australian community is very significant.
The likelihood of the non-citizen engaging in further criminal or other serious conduct
Paragraph 13.1.2(2)(b) of the Direction requires me to assess the likelihood of the Applicant engaging in further criminal or other serious conduct, taking into account available information and evidence in relation to that risk.
The Respondent rightly acknowledges that the Applicant has had a difficult upbringing, including witnessing the murder of his father when the Applicant was just five years of age. This background was taken into account by the judge who sentenced him for his offending on 21 March 2018. That learned sentencing judge also accepted that the Applicant had significant issues with alcohol and that it featured in all or most of his history of criminal offending. The sentencing remarks of the learned sentencing judge, however, can be tempered with the comments of the learned Magistrate who sentenced the Applicant for his offending on 8 July 2013. The learned sentencing Magistrate noted:
“You’re [sic] early life is a matter for some sympathy, but it is difficult to see how that experience – and then being given the opportunity of living in this country can serve as a mitigating factor for then committing quite a lengthy list of criminal offences since you’ve been here.”[35]
[35] Ibid, G13, p. 122.
I have taken into account a psychiatrist’s diagnosis of chronic schizophrenia that was apparently affecting the Applicant in July 2017. This diagnosis occurred while the Applicant was in immigration detention. With reference to the Applicant’s drug and alcohol history, the psychiatrist notes that the Applicant told him:
“I…use no drugs in this country until they sent me to jail and I met some bad people who told me that ICE is a good drug to have. I had some in November last year and I ended up going to the mental ward because it disturbed me…;I decided not to take it anymore…”
The psychiatrist noted that the Applicant “Used to use marijuana in Liberia…Has only used it a couple of times in Australia. Sometimes on the weekends.” Further, the psychiatrist records that the Applicant told him that “I did have a bit of an issue with alcohol…Started drinking in Liberia age 12/13, only occasional use in Liberia.” The psychiatrist also noted that the Applicant told him he “Started drinking daily when he came to Australia.”[36]
[36]These various quotes both from the Applicant and the psychiatrist appear at Exhibit 6, G Documents, G24, p. 213.
Interesting though this commentary from the psychiatrist may be, it is difficult for the Tribunal to afford any weight to it because the psychiatrist’s findings and comments are descriptive but contain little or nothing in the form of a prescriptive current and future regime of treatment and a prognosis about the Applicant’s prospects of overcoming his tendency to abuse alcohol.
There are three factors informing any assessment of the likelihood of the Applicant engaging in further criminal or other serious conduct. First, having regard to the longitudinal nature of the Applicant’s criminal history from its inception in 2005 until its present culmination in 2018, it demonstrates that the frequency of the offending is not abating and neither is its seriousness. The seriousness is actually increasing.
Second, the Applicant has had the benefit of ameliorative and beneficial interventions designed to assist him to see the errors of his ways at various stages of his offending history. None of those have changed his conduct. He has had the benefit of:
(a)the non-recording of convictions when it would otherwise have been open to a sentencing judge to record a conviction;
(b)immediate releases on parole;
(c)fines and wholly suspended sentences;
(d)orders to pay restitution for property he has damaged;
(e)written warnings from the Minister telling him his visa was in peril if he did not change his offending ways; and
(f)actual imprisonment, be it in the form of corrective detention or, as is the case now, immigration detention.
Third, he speaks of having a lower likelihood of offending because he wants to immediately avail himself of rehabilitation in the event he were to be released back into the community. Such a contention is difficult to sustain in circumstances where he has not commenced any rehabilitation, nor has he identified any person or clinic that can administer that rehabilitation. While I will not engage in supposition, it is nevertheless significant that there is no evidence before me to suggest that the Applicant has cavilled with the seriousness of his offending and its impact on others.
Analysing all of the available evidence in relation to this Primary Consideration A, one simply cannot say that the Applicant has “turned a corner” with his offending. While he has shown some remorse for his offending, he has limited or no insight into his offending due to an absence of any engagement with a rehabilitative process. I therefore find that there is a high likelihood that the Applicant will reoffend in the same manner that he has in the past – that is, in a very serious way.
Conclusion: Primary Consideration A
To summarise, my finding is that the Applicant’s demonstrated unwillingness or inability to control or moderate his behaviour, or to otherwise understand the adverse consequences arising from his offending conduct, points to a strong likelihood that he will engage in further serious conduct if returned to the Australian community. It is also quite likely that harm would be occasioned to others were he to re-offend and that such harm would be both substantial and serious, as has been the harm caused by his offending to date. In consideration of all relevant factors contained in the Direction, I find that Primary Consideration A weighs heavily in favour of the Applicant’s visa being cancelled.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2(1) of the Direction compels a decision-maker to make a determination about whether revocation is, or is not, in the best interests of a child who may be affected by cancellation of the Applicant’s visa. Paragraphs 13.2(2) and 13.2(3) respectively contain further stipulations. The former provides that, for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The material, at the commencement of the hearing, indicated that the Applicant had five minor children[37] that could potentially be affected by any decision to refuse to revoke the mandatory cancellation of his visa. Those children comprise a 12 year old, an 11 year old, a nine year old, a six year old and a one year old. The initial impression to be taken from the material is that it contains little evidence of the relationship (if any) between the Applicant and each of the children. At the hearing before me, the Applicant gave evidence that the 12 year old child is in fact not his child. The Applicant was content with the Tribunal not taking into account the interests of that 12 year old child for the purposes of this decision.
[37]Because this matter has been de-identified in terms of the Applicant’s identity, I have likewise de-identified the relevant minor children for the purposes of this decision.
For the further purposes of this decision, I will assume the Applicant has four minor children, and as best as I understood the evidence, two of the children were from the same mother and the remaining two were from separate mothers. Those four minor children engage the provisions of paragraphs 13.2(1) - (3) and, accordingly, I am required to make a determination about whether a refusal to revoke the mandatory cancellation of the Applicant’s visa is, or is not, in the best interests of the four relevant children.
There was scant evidence about there being any relationship between the Applicant and any nieces and nephews of his. I cannot recall any evidence being led as to their interests so I cannot make a finding as to how the revocation or non-revocation of the cancellation of the Applicant’s visa would potentially affect them.
Paragraph 13.2(4) of the Direction sets out a number of factors that must be taken into account when assigning weight to this consideration. Relevantly, those factors comprise:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where there have been long periods of absence, or limited meaningful 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;
(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 other ways they could maintain contact;
(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.
I acknowledge the genuine possibility that all four of the Applicant’s minor children will be impacted by this decision. However, that possibility must be tempered by the reality that the Applicant’s time with them has been impacted by his absence, either voluntary or while he has been in one form of custody or another.
The evidence disclosed that the Applicant’s relationship with the eldest child (the 11 year old) appears to be weak. The Applicant told the hearing that he has not spoken to this
11 year old child for almost two years. His relationship with the nine year old and six year old children appears to be stronger and there is a ready acknowledgement by the Respondent that there is a demonstrably genuine relationship between the Applicant and those two particular children, despite the fact that he has not seen either of those two children for almost two years.The Applicant’s relationship with the youngest child (the one year old) is far less developed. In fact, he has only met this child once and that was in the back of a Court room at the Ipswich District Courthouse at the conclusion of his sentencing hearing on
21 March 2018. It is not possible to glean from the Applicant’s evidence that he has anything in the way of a historically strong and well-developed relationship with his youngest child.The Applicant acknowledged that each of his four children have people who already care for them. The totality of the evidence confirms that each of the four children have a mother who acts as their primary carer and that each of those mothers have people that assist them to care for each of their respective children.
I have taken into account the Applicant’s history of offending involving, as it does, violent offending, and in those circumstances, it is difficult to be convinced that there is any likelihood that the Applicant will play an active and positive role in any of the lives of his four children. Of particular concern is the evidence around the Applicant’s commission of domestic violence offending. To my mind, his offending is significant considering that it was perpetrated upon the Applicant’s partner at a time when she was pregnant with his child.
In his evidence, the Applicant said that he spoke to the children “one or two times a week on the phone” and that this was his primary form of contact with them. He noted that there are no court orders preventing him from seeing the children. His further evidence was that “I used to see them before I went to jail, whenever I wanted. But I haven’t seen them in person for two years”. It seems clear from the evidence that were the Applicant to return to Liberia, he would be able to continue to communicate with the children by telephone and via digital platforms such as Skype and face time - in the same way he has been doing since he has been in criminal custody or immigration detention.
I turn now to an application of the abovementioned factors appearing at paragraph 13.2(4) of the Direction. Sub-paragraph (a) refers to the nature and duration of the relationship between the children and the Applicant. As a general proposition, less weight should be given to this factor in circumstances where there have been long periods of absence or limited meaningful contact between an applicant and his children. As noted, it cannot be said that the Applicant has had a particularly involved relationship with any of his four children. While the witnesses may have spoken positively about his general demeanour and tone towards the children, none of them could give any evidence of him having actively engaged or being a positive role model in their lives. The evidence is similarly unclear and incomplete about any material support - in the form of child support payments or a similar arrangement – that the Applicant may or may not have provided to any or all of the mothers of the four children.
Similarly, there is scant and unconvincing evidence about the relationship between the Applicant and the mothers of the children. As mentioned earlier, I have misgivings about both the currency and the prospects of longevity of the relationship between the Applicant and his current partner who, of course, is the mother of the one year old child. That mother was the victim of the Applicant’s abovementioned domestic violence offending and it is difficult to see how the Applicant could convincingly demonstrate that he either has or will play a positive parental role in the life of that particular child. The evidence is even less convincing given that the Applicant has not had any kind of active or lengthy involvement in the lives of his other three children.
There is no evidence of any parenting plan or court orders governing the Applicant’s time and relationship with any of his four children. Prior to incarceration, the Applicant seemed to have an arrangement to see the children on an “as and when” basis, but little more than that. There was no evidence to the effect that any of the mothers of the children regarded the Applicant as a “first port of call” to care for one or more of the children were he to come back into the community.
Having regard to the abovementioned evidence as a whole, I am of the view that having regard to sub-paragraph (a) of 13.2(4) of the Direction, there appears to be limited meaningful contact between the Applicant and his four children. Such contact has been seriously and adversely affected by his considerable period of absence from their lives while he has been in one form of custody or another. Accordingly, the nature and duration of the relationship between the Applicant and his four children is not a factor militating in favour of revoking the decision to cancel the Applicant’s visa. That is to say, it would not be in the best interests of his children to return the Applicant’s visa.
Sub-paragraph (b) of 13.2(4) of the Direction points a decision-maker to make an assessment of the extent to which the Applicant is likely to play a parental role in the children’s future, taking into account the length of time until the children turn 18. As mentioned above, there is relatively scant detail in the evidence about what sort of role the Applicant has played in the lives of the children thus far. I accept he can play a more limited role in at least the life of the youngest child, given that he seems to be still in a relationship with that child’s mother – despite, as I have mentioned, her being the victim of his domestic violence offending.
It can be fairly said that his time in custody and the impact of his offending on preventing him spending any meaningful time with the children has deprived the Applicant of any capacity to demonstrate a positive track record of past parental involvement and thus any future capacity to parent any of his four children. There is no reference in the evidence to the Applicant spending overnight time with any of the children before going into criminal custody and then immigration detention, nor is there any reference to him spending “block periods” of school holiday time with the children. There was no evidence about him taking any of the children away for a weekend nor of him taking any active interest in any sport or recreational activity done by the children such as taking them to their own football or, netball matches or even to a professional football match, for example.
The eldest child is aged 11 and, thus, has seven years until the age of majority. The youngest child is aged one year and, thus, has 17 years until the age of majority. Given:
(a)the unresolved nature of the factors predisposing the Applicant to offend and my finding that there is a significant likelihood that he will re-offend; and
(b)the absence of any remotely formal or enforceable parenting orders or regime between the Applicant and his former partner for the older child; and
(c)the absence in the evidence, both from his current partner and any other witness, about any detailed parenting role the Applicant has played in the lives of the children:-
I have difficulty in ascertaining the extent of any positive parental role the Applicant is likely to play in the lives of his children until they attain the age of
18 years.
Having regard to the totality of the Applicant’s role in the lives of both children thus far, I have difficulty in applying this sub-paragraph (b) to any consideration of whether restoration of the Applicant’s migration status is in the best interests of the children.
At the hearing, the Applicant spoke of wanting to return to the community to, in effect,
re-connect with his family, attend rehabilitation (if necessary) and re-ingratiate himself back into the community. Does he deserve such an opportunity? The answer depends on the circumstances of his case to be considered in light of the overriding purpose of the legislation.[44]
[44]See Allan and Minister for Immigration and Border Protection [2016] AATA 1077 at [65] per Senior Member Toohey.
The Applicant came to Australia in 2004, aged 17 years. He commenced offending barely a year after coming here, when aged 18 years. It is not an unfair interpretation of his criminal history to say that his offending only stopped as a result of him being placed in either corrective custody or immigration detention. The history runs from November 2005 until March 2018. The frequency of his offending has seen him before lawful authority on at least 17 occasions, and that excludes his traffic history. Put another way, this Applicant has found himself before the sentencing Court at least once every 9 months of his 13 year history of offending.
In terms of remunerative employment, if one accepts what he says in a previous Personal Details Form[45], he has not been entirely dilatory while in Australia. That form says that his employment in Australia has been thus:
·From 2009 to 2009 – employed as a slaughterman by Smith Australia;
·From 2007 to 2008 – employed as an air-conditioning worker with Holio;
·From 2004 to 2006 – employed as a welder with Triple M Holdings; and
·From 2006 to 2007 – employed in construction.
[45] Exhibit 6, G Documents, G21, p. 195.
While he has a work history of sorts, it seems undeniable that the majority of his adult life has been dominated by his criminal and other offending. I take no confidence from the virtually complete lack of evidence that any form of employment awaits him were he to be returned to the community. There is little or nothing before the Tribunal indicating that employment or an employer awaits his return, or that he is readily employable in a given field. At the Hearing the Applicant’s partner said that were he to be returned to the community, the Applicant would most likely go back on to the Newstart Allowance.
I have taken into account that his current partner, his siblings and a family friend have spoken favourably of him at the hearing before me. It would be trite to surmise that he has made absolutely no contribution to the Australian community during his time here. However, none of his supporting witnesses spoke with any conviction or certainty that he would not reoffend. Indeed, none of his witnesses had any credible level of awareness about the Applicant’s offending history. They seemed to know he was and had been in custody but they knew little or nothing about the nature of the offending that warranted his incarceration. In terms of his contribution to the community, he has spoken of:
“…. involvement with soccer teams in Greenslopes, Woodridge and Townsville. Volunteered to help clean up after the 2011 floods at Ipswich. Involved with World Refugee Day at Greenslopes in 2006.”[46]
[46] Ibid.
My greatest concern arising from the factual circumstances of this matter is that the issues giving rise to this Applicant’s propensity to offend remain unresolved. His previous offending has been so serious that the only prediction one can make about the likelihood of his offending in future is:
(a)he indeed is likely to reoffend; and
(b)if he does, the consequences will most likely be very serious:-
In these circumstances, I am of the view that the Australian community would consider that if released back into the community, this Applicant represents an unacceptable risk of further breaching the trust the community reposed in him when he first came here.
The Applicant speaks of having an extra chance to come back into the community and remain in Australia. He has had those chances, be it in the form of initially less harsh sentences and by way of two written warnings from the Minister. He has ignored each of those chances or opportunities and actually conducted some of his most serious offending after he had the benefit of those chances. I am of the view that a reasonably minded member of the Australia community would conclude that there is little more that our community can do for him.
I therefore do not consider that the Australian community would be prepared to give this Applicant a chance to be released from immigration detention and to resume his life here.
Conclusion: Primary Consideration C
Having regard to this Primary Consideration C, I find that the community’s expectations in respect of this Applicant would endorse a finding of non-revocation of the mandatory cancellation of his visa. I accordingly find that this Primary Consideration C weighs heavily in favour of non-revocation.
Other Considerations
There are five “other considerations” disclosed in the Direction:
(b)International non-refoulement obligations;
(c)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.[47]
[47] The Direction, [14(1)].
I will address each of these considerations, and their respective weights, in turn.
(a) Non-Refoulement Obligations
The Applicant has contended and continues to contend that he fears the prospect of returning to Liberia. In his Request for Revocation of a Mandatory Visa Cancellation under s 501(3A), he said:
·“When I came to Australia it was under a protection visa due to my father being murdered in front of me when I was 5 years old. My country is violent and stricken by war and I will not be safe there.
·I have been in Australia 13 years after being held in a detention centre/refugee camp in Guinea for 10 years.”[48]
[48] Exhibit 6, G Documents, G16, p. 129.
Judicial officers who have sentenced him have also noted his past in Liberia. Justice Horneman-Wren SC while sentencing the Applicant on 21 March 2018 noted:
“You have had a terribly disrupted life, Mr [Applicant]. Your personal experiences of the civil war in your native Liberia were horrific. Those of us who have never been exposed to such horror could never fully understand the extent of what you experienced. And you fled, and for about two years you were in a refugee camp in Guinea, and then sought asylum here in Australia.”[49]
[49] Ibid G11, p. 115, lines [34] – [38]..
The question of non-refoulement obligations is perhaps one of the most difficult issues to be resolved in this case. The inquiry must start, as ever, with the terms of the Direction, paragraph 14.1 provides:
1A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm…
2The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
3Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
4Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether the non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
5If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WK) visa…
6In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
Consistent with paragraph 14.1(4), above, it was previously the practice for the Tribunal to not determine whether protection obligations are owed to an applicant where the visa that was cancelled was a visa other than a Protection visa. This position was changed after the Full Court of the Federal Court of Australia handed down its decision in the matter of BCR16 v Minister for Immigration and Border Protection (“BCR16”).[50] There, Bromberg and Mortimer JJ held that a decision-maker may fall into error if they assume that non-refoulement obligations would necessarily be considered in the assessment of a Protection visa, therefore obviating the need for the decision-maker at hand to consider the non-refoulement obligations. This decision seems to seriously undermine paragraph 14.1(4).
[50][2017] FCAFC 96; 248 FCR 456. The Full Court of the Federal Court of Australia refused to regard this decision as wrongly-decided: Minister for Immigration and Border Protection v BHA17 [2018] FCAFC 68.
In the wake of BCR16, the Respondent made another Direction under s 499 of the Act. This Direction, Direction No 75 – Refusal of Protection Visas Relying on Section 36(1c) and Section 36(2c)(b) (“Direction No 75”), provides guidance on the assessment of Protection visas. At Part 2 of Direction No 75, decision-makers are directed to assess individuals’ refugee and complementary protection claims “before considering any character or security concerns”. In this way, decision-makers such as the Tribunal can now take solace that errors such as those identified in BCR16 are no longer as relevant as they once were.
Direction No 75 was discussed by the Federal Court in Ali v Minister for Immigration and Border Protection (“Ali”).[51] In Greene v Assistant Minister for Home Affairs,[52] Logan J referred to Direction No 75 in summarising, in my respectful view very aptly, the decision in Ali:
The existence of that particular direction [in Part 2 of Direction no 75] persuaded Flick J in Ali v Minister for Immigration and Border Protection [2018] FCA 650 (Ali) that, adverting to that practice by the Assistant Minister in reasons was sufficient recognition, even assuming the consideration was relevant, of non-refoulement and related obligations. In this case, the Assistant Minister’s reasons, at para 29, evidence a like recognition on this direction and related departmental practice. It suffices to say that, for the reasons given by Flick J in Ali, with which I respectfully agree, there is no substance in the allegation that non-refoulement obligations have not been taken into account.[53]
[Emphasis in original]
[51] [2018] FCA 650.
[52] [2018] FCA 919; cited with approval in Turay v Assistant Minister for Home Affairs [2018] FCA 1487.
[53] Ibid, [19].
Consequently, it seems that the present position has – at least in part – somewhat returned to the preferred position prior to when BCR16 was decided.
Here, the Applicant has been residing in Australia on a Class XB, Subclass 200 Refugee visa. This visa is distinct from Protection visas, and is not a visa, the holding of which, would bar a person from applying for a Protection visa.[54] Accordingly, I find that the Applicant may still apply for a Protection visa. In making that determination, the decision-maker would be bound by Direction No 75, and so would have to make an assessment of the Applicant’s refugee and complementary protection claims before assessing any character or suitability concerns that may exist.
[54] Cf Migration Regulations 1994 (Cth), Sch 1, Pt 4, cl 1401.
As the Applicant is already on a Refugee visa, it seems like there has already been an assessment that Australia owed the Applicant non-refoulement obligations on the basis of those refugee claims. I note that assessment was made before the Applicant came to Australia, just over 14 years ago. Regardless, the critical question before the Respondent would therefore likely be whether any character or suitability concerns exist such that the Applicant does not qualify for a Protection visa. However, as noted by Flick J in Ali:
“The prospect that future decision-making may confront the Minister with difficult choices, it is respectfully considered, cannot presently impact upon the present exercise of the power conferred by s 501CA(4).”[55]
[55] Ali v Minister for Immigration and Border Protection (2017) 248 FCR 456, [2017] FCAFC 96, [33].
As things stand, the Applicant has given evidence that his father was killed when he was a child in his country of origin. While the Respondent sought to test the Applicant’s evidence about this during the cross-examination of the Applicant, those claims were nevertheless sufficient for the Applicant to satisfy the Respondent’s predecessor more than 14 years ago that his claims for a refugee visa were genuine. In the hearing before me, the Applicant said that no-one in Liberia had threatened to harm him and that he is not aware of the current political and regulatory climate in Liberia since the election of the new and broadly popular President, George Weah, and his Coalition for Democratic Change, who was sworn in on January 2018.[56] However, without more evidence, I cannot totally discredit the notion that he is owed non-refoulement obligations. I therefore find that this consideration weighs somewhat in favour of the revocation of the cancellation of the Applicant’s visa.
[56] President Weah captured 61.5% of the popular vote in free elections.
On the balance of the evidence before me, while this factor should to some extent weigh in the Applicant’s favour, I cannot find that it weighs heavily in his favour. The effect of Direction No 75 and subsequent Federal Court decisions is such that the Applicant will have further avenues through which he can pursue his refugee status in Australia. In those processes, Australia’s non-refoulement obligations to the Applicant will be assessed in a fulsome manner. I find that this limits the extent to which the non-refoulement obligations in this matter favour revocation. Consequently, I find that this other consideration weighs slightly in favour of the revocation of the cancellation of the Applicant’s visa.
(b) Strength, nature and duration of ties
There is a ready (and, in my respectful view, correct) acknowledgement by the Respondent that the Applicant arrived in Australia as a teenager, has resided here for
14 years and, as a consequence, there would be some impact on his family members were he to be returned to Liberia. There was some corroboration from his family members in this regard.However, I am of the view that less weight should be given to this Other Consideration (b) because of the operative effect of paragraph 14.2(1)(a) of the Direction. The Applicant commenced offending within one year of arriving in Australia. Paragraph 14.2(1)(a) stipulates that less weight should be given to this factor when a non-citizen begins offending soon after arriving here. Taking into account all of the evidence in and around the Applicant’s offending history, I concur with the Respondent’s contention that this Other Consideration (b) weighs slightly in favour of the Applicant, but is not
out-weighed by the Primary Considerations weighing against him.(c) Impact on Australian business interests
I cannot recall any evidence that this Other Consideration is of any relevance in determining this Application.
(d) Impact on victims
While there is commentary by judicial officers sentencing the Applicant at various points of his offending history, there are no actual victim impact statements (or equivalent) for any of the people who fell afoul of the Applicant’s very serious conduct. Similarly, there is nothing by way of a victim impact statement (or equivalent) from:
(a)his partner, who has clearly felt the adverse effects of the Applicant’s domestic violence offending;
(b)victims of his offences involving the wilful damage and/or deprivation of their property as a result of the Applicant’s conduct; and
(c)any law enforcement officer who may have suffered either physical or psychological trauma as a result of the Applicant’s refusal to follow a lawful direction.
The Respondent has not provided any evidence of the impact the Applicant’s continued presence in Australia would have on his victims. Without such evidence, it would be irresponsible for me to enter the realm of mere conjecture and guess as to the impact this would have on the Applicant’s victims. Accordingly, I cannot find that this Other Consideration (d) attracts any weight either in favour of, or against, the revocation of the Applicant’s visa. Therefore, this Other Consideration (d) is neutral.
(e) Extent of impediments if removed
Despite my initial misgivings, the evidence evolved in such a way that it is likely that the Applicant will be able to establish himself and maintain basic living standards if returned to his country of origin. Pursuant to sub-paragraphs (a), (b) and (c) of paragraph 14.5(1) of the Direction, the Respondent makes the following submissions (in my respectful view, correctly):
· that the Applicant is a young man with no significant health concerns;
· that while the Applicant may face some hardship in re-establishing himself in Liberia, this would only be for the short term and not insurmountable; and
· that the Applicant would have the same access to social, medical and economic support as other citizens of Liberia.[57]
[57] Exhibit 4, Respondent’s SIFC, p. 15, para [59] – [60].
Consequently, I am of the view that this Other Consideration (e) is of neutral weight in terms of exercising the discretion to revoke the decision to cancel the Applicant’s visa.
Conclusion: Other Considerations
The application of the Other Considerations in this matter can be summarised as follows:
(a)International non-refoulement obligations: weighs slightly in favour of the Applicant;
(b)Strength, nature and duration of ties: weighs slightly in favour of the Applicant;
(c)Impact on Australian business interests: not relevant;
(d)Impact on victims: weighs neither in favour of nor against the Applicant and is thus of neutral weight;
(e)Extent of impediments if removed: weighs neither in favour of nor against the Applicant and is thus of neutral weight.
Conclusion: Is there Another Reason to Revoke the Cancellation of the Applicant’s Visa?
Under s 501CA(4)(b) of the Act, there are two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either the Applicant must be found to pass the character test, or I must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation. As I have noted above, the Applicant does not pass the character test. Having reference to the Direction and to the totality of the evidence before me, I find that there is not another reason for me to revoke the cancellation of the Applicant’s visa.
In considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, I have had regard to the considerations referred to in the Direction. Primary Considerations A and C weigh heavily in favour of non-revocation. Primary Consideration B is of neutral weight. I have outlined the effect of the Other Considerations above. I do not consider that any of them, even when combined with Primary Consideration B, outweigh the significant weight I have attributed to Primary Considerations A and C. Accordingly, I find that a holistic view of the considerations in the Direction favours the non-revocation of the cancellation of the Applicant’s visa.
Consequently, I cannot exercise the discretion to revoke the cancellation of the Applicant’s visa.
CONCLUSION
The decision under review is affirmed.
I certify that the preceding 167 (one hundred and sixty -seven) paragraphs are a true copy of the reasons for the decision herein of Senior Member Theodore Tavoularis
..........................[SGD]..............................................
Associate
Dated: 11 December 2018
Date of hearing: 21 November 2018 Applicant: Appeared by video-link Advocate for the Respondent: Mr Kyranis Solicitors for the Respondent: Sparke Helmore
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