Say and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2020] AATA 694
•1 April 2020
Say and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 694 (1 April 2020)
Division:GENERAL DIVISION
File Number: 2020/0274
Re:Pheap Say
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:1 April 2020
Place:Melbourne
The Tribunal decides to affirm the decision under review.
........[sgd]................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of a Class BF Transitional (Permanent) visa – substantial criminal record – applicant is a citizen of the Kingdom of Cambodia – applicant does not pass character test – ministerial Direction No. 79 – whether another reason to revoke mandatory cancellation of visa – primary considerations – protection of the Australian community – best interests of minor children – expectations of Australian community – other relevant considerations – strength, nature and duration of ties to Australia – applicant has been resident of Australia since a young child – extent of impediments if removed – language barriers – discretion not enlivened – decision under review affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A
Migration Act 1958 (Cth), ss 499, 501CA
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338Say and Minister for Immigration and Multicultural Affairs [2006] AATA 454
Secondary Materials
Migration Act 1958 – Direction under s 499 – Direction No 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (Commenced 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
1 April 2020
Background
Mr Pheap Say, the Applicant in this matter, was born in 1977 in Cambodia and is a citizen of that country. He arrived in Australia in February 1985 on a humanitarian visa, with his parents, siblings and other family members. From September 1994, by operation of law, he held a Class BF Transitional (Permanent) visa (the visa). The visa was cancelled on 2 January 2019 under s 501(3A) of the Migration Act 1958 (the Act) because the delegate of the Respondent was satisfied Mr Say did not pass the statutory character test as he had a substantial criminal record under s 501(6)(a) of the Act and was serving a sentence of imprisonment on a full-time basis at the time.
Mr Say made representations to the Department of Home Affairs (the Department) under s 501CA(4)(a) of the Act about the mandatory cancellation of the visa. On 7 January 2020 a delegate of the Minister, the Respondent in this matter, decided not to revoke the mandatory cancellation of the visa. Mr Say lodged an application for review of this decision with the Tribunal on 14 January 2020.
A hearing was held on 16 March 2020. Mr Say made submissions and gave evidence, and was cross-examined by Mr Keith Sypott, of The Australian Government Solicitor, representing the Respondent. The Applicant’s wife, Ms ‘WX’, also gave oral evidence, by telephone by leave under s 33A of the Administrative Appeals Tribunal Act 1975 (Cth). The Tribunal appreciates the assistance of an interpreter in the Khmer language, in relation to the witness.
The Tribunal admitted into evidence two volumes collated by the Respondent, a volume of ‘G’ documents and a volume of supplementary, or ‘SG’ documents. The Tribunal also took account of a written Statement of Facts, Issues and Contentions from the Minister dated 26 February 2020.
The statutory framework
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or the Minister’s delegate) must cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test because of the operation of s 501(6)(ii) of the Act, and under s 501(3A)(b) of the Act the person is serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against the law of the Commonwealth, a State or a Territory.
Section 501CA(4) of the Act provides that a decision-maker may revoke the mandatory cancellation of a visa if the person makes representations within the relevant time period, and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under s 501CA(4)(b)(ii) of the Act, there is another reason why the mandatory cancellation decision should be revoked. The Respondent conceded that Mr Say had made representations within the prescribed period.
If the Tribunal finds that Mr Say fails the character test, the sole issue before the Tribunal then becomes whether there is another reason why the original decision to cancel the visa should be revoked. In undertaking this task, the decision-maker should examine the factors for and against revoking the cancellation. If the Tribunal is satisfied that the cancellation should be revoked, the Respondent must act on that view and reinstate the applicant’s visa (see North ACJ in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 338, at [38]).
Evidence in relation to the character test
Before the Tribunal was a Criminal History Check produced by the Australian Criminal Intelligence Commission (GD, pp 23-28), dated 13 December 2018. It stated that in December 1997 at Dandenong Magistrates’ Court, Mr Say was sentenced to 12 months’ imprisonment for the conviction of the offence of Trafficking in heroin. In February 2000 at the County Court of Victoria in Melbourne, Mr Say was convicted of the offences of: Theft of a motor vehicle; Go equipped to steal/cheat (2 charges); Use heroin; Burglary; Theft (2 charges); and Tamper with motor vehicle (2 charges). He was sentenced to an aggregate of 12 months’ imprisonment for these offences, three months of which was suspended.
In September 2003, at Dandenong Magistrates’ Court, Mr Say was sentenced to an aggregate of 12 months’ imprisonment for a group of convictions for the offences of Handle/Receive/Dispose of stolen goods; Obtain property by deception (2 charges); Theft-from-shop (Shopsteal); and Possess controlled weapon without excuse.
On this evidence, the Tribunal finds that Mr Say has a substantial criminal record in the terms stipulated in s 501(7)(c) of the Act. Although, in these circumstances, having made that finding it is not necessary to aggregate other sentences of imprisonment Mr Say has received which are listed in the Criminal History Check, the Tribunal is also satisfied, in response to submissions from the Respondent, that the Applicant has been sentenced to two or more terms of imprisonment where the total of those terms is twelve months or more (see s 501(7)(d) of the Act).
In November 2018 at Dandenong Magistrates’ Court, the Criminal History Check states that Mr Say was convicted of the offences of: Assault emergency service worker on duty; Handle/receive/dispose of stolen goods; Fraud use identifying number authorisation required. He was sentenced to an aggregate of eight months’ imprisonment. Consequently he was serving a sentence of full-time imprisonment on the date the visa was cancelled (see s 501(3A)(b) of the Act).
Finding in relation to the character test
On the basis of this evidence, and because of the operation of s 501(7)(c) of the Act, the Tribunal finds that Mr Pheap Say fails the character test in s 501(3A) of the Act.
The remaining task for the Tribunal is to determine whether there is ‘another reason’ why the mandatory cancellation of the visa should be revoked.
The Ministerial Direction – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The Minister has made such a direction, Direction No. 79 (‘the Direction’). The Tribunal must, under s 499(2A) of the Act, comply with the Direction in considering this matter.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
The Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in Part C, which is divided into ‘primary considerations’ and ‘other considerations.’ The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: ‘Protection of the Australian community from criminal or other serious conduct;’ ‘The best interests of minor children in Australia;’ and ‘Expectations of the Australian community.’ Other considerations set out in paragraph 14(1) of the Direction are: ‘International non-refoulement obligations;’ ‘Strength, nature and duration of ties;’ ‘Impact on Australian business interests;’ ‘Impact on victims;’ and ‘Extent of impediments if removed.’
The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction). The Tribunal has considered each of the primary considerations and, as relevant, the other considerations.
EVIDENCE
The Applicant’s submissions
In his opening submission, Mr Say told the Tribunal he came to Australia in 1985 on a refugee visa with his family and siblings. He said that the others of them have since each become Australian citizens. He told the Tribunal that when his parents applied for citizenship he was 17 years old, so they did not include him in their citizenship application.
Mr Say said he did not dispute that he ‘did bad things when younger, from 1994 until today’, and that the majority of his offending has been related to his drug-taking. The Applicant said that he had come to Australia from Thailand (to where the family had initially fled from Cambodia) with two older siblings, and that he had two younger siblings who were born in Australia.
The Applicant said that he attended school in Australia and, aged about 14 or 15, started experimenting with illicit drugs, first marijuana and then heroin. Mr Say said he had no idea at that time how much it would ultimately affect his family. He said that he had previously had his visa cancelled, and it was later restored. He told the Tribunal that he is now married and has four children, all aged under 10 years.
The Applicant’s evidence
The solicitor for the Minister asked Mr Say about his early life in Cambodia. He confirmed that he was born during the time of the civil war in that country. His parents had met in a labour camp and, when he was aged three, they fled to Thailand, in around 1979 or 1980. Mr Say stated that he did not return to Cambodia and came to Australia direct from Thailand.
He said that he did not have memories of his time in Thailand but he knew the civil war had affected his parents greatly, especially his father, and how his father treated his family. Mr Say said that his father was violent towards his mother. He said that his father did not treat him well; he tended to drink and took his frustrations out on the Applicant, as the oldest child.
Mr Say said that his mother decided to separate from her husband because of the constant domestic abuse in around 1992 or 1993 when he was in high school. Around the same time, he said that he started experimenting with drugs. At the same time as he started taking drugs, he also started dealing in them, partly, he said, to make some money for the family. Mr Say said he ‘fell into the trap of abusing drugs.’ He said part of the reason he took drugs was as a ‘mechanism of coping with pain.’
In answer to a question from Mr Sypott, the Applicant said he developed a drug addiction quite quickly. He said he was using up to half a gram of heroin each day at the time, and dealing every day in heroin. He said he gave some of the money he earned from drug dealing to his mother to buy food and items for his younger siblings.
In terms of the Criminal History Check, Mr Say acknowledged that he had a large number of convictions for possessing, using, and trafficking in heroin. He said he also dealt in cannabis and experimented in growing cannabis.
Mr Say was asked about property offences of which he had been convicted. He said he did not remember details because he was under the influence of drugs at the time, and said that the offending was ‘probably to get money for drugs.’
Mr Say said that he had made several attempts to stop using drugs. He told the Tribunal he had undertaken courses in prison and had been on opioid-replacement programmes, taking buprenorphine and methadone. He said he had also undertaken a counselling programme run by the Salvation Army. He said that although he had periods of sobriety, he had each time relapsed into drug taking.
Mr Say was shown a police resume of evidence (SGD, p 342) which stated that in June 2005 he had threatened a truck-driver with a screwdriver, after being discovered in the truck’s cab. Mr Say said he did not remember any of the details of the incident. The Tribunal noted that in the summary the police recorded that ‘the defendant appeared highly drug affected [and] admitted to taking a cocktail of heroin, Valium and Xanax.’
Also at SGD, p 342 was a summary of Mr Say being arrested the following day for stealing four gold chains from a shop. The Applicant said that he did not remember the incident but did remember ‘being dragged into a police station and charged.’ Mr Sypott noted that Mr Say admitted the theft offence to the police.
Mr Say was shown a police resume of evidence, at SGD, p 343, relating to an incident where the police attended his residence. The report stated the Applicant ‘was asked if he had any weapons on him and produced a large meat cleaver from inside his jacket.’ He was subsequently convicted for possessing a prohibited weapon without lawful excuse. Mr Say said he remembered the incident ‘weakly’ but was adamant that while he owned a meat cleaver, on that day it was in his kitchen, not on his person. In answer to Mr Sypott, Mr Say agreed that he had, in the past when younger, carried a meat cleaver around ‘to have a sense of protection.’
Mr Say was asked about receiving a notice of intention to cancel his visa in June 2002. He said he remembered that occurring. Mr Sypott said that it appeared the Department took no further action in relation to that notice. Mr Say was asked about a later notice of intention to cancel his visa in 2004. Mr Say said he did not remember that notice, but in answer to a direct question from the Tribunal, conceded that he probably did receive it.
Mr Say said he remembered his visa being cancelled in November 2005 and that he had a hearing before the Tribunal in 2006. The Tribunal notes (at GD, pp 119-146) a record of the Tribunal’s decision dated 25 May 2006 (SM Handley), which set aside the decision of the delegate of the Minister on that occasion and restored Mr Say’s visa.
Mr Sypott drew the Applicant’s attention to part of a statement dated 16 May 2006 that was reproduced in that earlier Tribunal decision in which Mr Say said:
I can assure the Tribunal that I am determined that I will not re-offend in the future. I can see that I cannot afford to get into any more trouble.
Mr Say said he remembers saying that in the statement, and agreed that he did go on to re-offend, and accepted Mr Sypott’s submission that he has committed some 45 more offences since that date.
Mr Say was taken to a police charge sheet (SGD, p 387) which stated that on 13 June 2008 he stole men’s aftershave from a K-Mart store to the value of $499.92. Mr Say said he did not remember the matter at all, but did not dispute it. He said in 2008 he was using both heroin and methylamphetamine, in combination, and estimated his usage was around two grams a day of each.
The Applicant was asked about an incident on the same day (SGD p 388) in which he was charged with carrying a dangerous article without lawful excuse in a public place, namely that he was charged with carrying a pair of secateurs at a shopping centre. Mr Say said he remembered the charges but couldn’t recall why he was carrying the secateurs. When asked whether he might have been carrying the secateurs for protection, the Applicant said that at the time he was working in a winery, and ‘was carrying them for work.’ The Tribunal asked him directly whether he had told the police that was the reason he had them on his person, he said that he had, but he was still charged.
Mr Say was asked whether he was using heroin in the period between 2008 and 2010. He responded that he was and in 2009 was using heroin valued at ‘about $50 to $60 a day, not as much ice, once or twice a week, the same in 2010.’ He said he used both drugs at about the same rate in the period between 2010 and 2015.
The Applicant was asked about a conviction for Unlawful assault on 7 July 2016, which relates to an incident on 5 July 2016. At the time, Mr Say was living with his wife and (then) two children in a residence where his mother and a sister (‘AS’) also resided. The police brief (SGD, p 319-321) relevantly stated that Mr Say had:
Verbally abused [AS] before hitting her repeatedly around the head and face. Their mother has tried to stop the accused and he has pushed his mother into [AS]. [AS] wanted to call police but her mother did not want police involved. [AS] did not feel safe in the house and called her sister who came to collect her and she left the house for the night. [AS] does not feel safe to return to the house because of the unpredictable behaviour exhibited by the accused. [AS] states that drugs are effecting [sic] the behaviour of the accused. The accused was issued with a Family Violence safety notice on the 6th of July, 2016 which excludes him from [address of residence]. The accused may be charged on summons in relation to unlawful assault.
Mr Say said that he had an argument with his sister, ‘I slapped her and she put an IVO on me.’ He denied that he hit her repeatedly around the head and face, as referred to in the police brief.
Mr Say was asked about an incident in a suburban street where it was stated that he was injecting drugs in his car and a local resident came up to remonstrate with him. He was asked whether he remembered threatening the resident with a screwdriver, driving at him with his car, and later saying to the police ‘I did have a screwdriver on the passenger floor. I would like to kill him. He is lucky I did not kill him. I was just giving him a warning.’ Mr Say said he could not recall the incident.
The Applicant was asked about a conviction in July 2016 for the offence of Child U/14 in front row of vehicle. Mr Say said that his child was in the car but not in the front seat, and had unbuckled the safety belt when he had stopped the car and come forward to the front seat area of the car. When asked directly by the Tribunal why he had pleaded guilty to the offence, Mr Say said his lawyer had told him to.
In relation to his previous hearing before the Tribunal when his visa was cancelled in 2015, Mr Say wrote in a statement (SGD, p 406): Prior to my current offence, of which I am very sorry for and hope you will forgive, ... I had not been in trouble with the law for over 12 years. The Tribunal directly asked, given the evidence of the Criminal History Check, what he meant by that statement. Mr Say said that when he wrote this, he was referring to sentences of imprisonment only, not other offences of which he had been convicted.
The Applicant was asked about a conviction on 19 November 2018 for the offence of Assault emergency service worker on duty (GD, p 23). Mr Say said that he was on medication at the time and told a female police custody officer that ‘she was too gorgeous to work here.’ He said a male police custody officer ‘then came at me. I put my hand up to defend and protect me. He fell on top of me. Six of them fell onto me.’ He said he was going to contest the charge, but his lawyer told him not to. Mr Sypott asked the Applicant whether he remembered calling police officers who attended the incident ‘rats’ and directing an obscenity at them, and Mr Say said he did not.
The Applicant was asked whether he recalled a burglary at a farm at Somerville in April 2018 (SGD, pp 235-249). Mr Say said he did; he said he drove to the farm with the intention to steal money and took ‘a bit over $1,500’ from a wallet in the staff locker room at the farm. He said as he had worked on similar farms he knew the layout and where the staff lockers were likely to be.
Mr Say was asked about an incident in immigration detention in Western Australia (GD, p 172) in which his room was being searched and he became verbally abusive to detention centre officers and attempted to strike an officer, leading to him being physically restrained. The Applicant said that the report was incorrect. He said that the rules states that a detainee’s room cannot be searched after 10 pm and he was deeply asleep when awoken by the officers arriving to conduct the search. Mr Say said an officer dislocated his arm and shoulder and he was seeking compensation. The Applicant said he was not aggressive at the time, but calm, and then amended that to say he was ‘aggressive in a verbal way.’
Mr Say gave evidence about his relationship with each of his four children, particularly his two older children, and told the Tribunal that his older daughter had been hit by a car some years ago and that she still experiences some ongoing effects from that. In answer to the solicitor for the Respondent, he said that he had never taken drugs in front of his children, and then said that he might have sometimes smoked late at night in the car when they were in bed.
The Applicant’s wife
Mr Say’s wife, Ms ‘WX’ gave evidence by telephone. The Tribunal appreciates the assistance of an interpreter in the Khmer language in relation to Ms WX’s evidence. Ms WX said she had met Mr Say when both were working at the same place in 2009 and they married in 2011. She said he has been very caring for their children and that the children ask for their father every day.
Ms WX said that Mr Say made money to provide for the family from working at the winery and then doing some factory work, but she denied that he made any money dealing in drugs. She said that the Applicant’s sister occasionally visits to help with the children, and that Mr Say’s mother also helps out, when Ms WX is not well.
Ms WX was asked whether she had considered what she would do if her husband’s visa was not restored and he had to go back to Cambodia. Ms WX said that she had made the decision that she would stay in Australia with the children. In terms of her own health, Ms WX said she had recently undergone a three month course of treatment for a health condition, and was currently awaiting a medical review.
In terms of their oldest child, Ms WX confirmed the Applicant’s evidence that she had been involved in a car accident when younger but has now recovered from the injuries she sustained, although she sometimes complains of lower back pain. Their general practitioner had not been able to find a medical cause.
Ms WX said that Mr Say had a good relationship with his two oldest children, a girl and a boy, especially the latter, and spoke to them both regularly by telephone. In terms of their younger daughter, she said she was very young but did occasionally talk to her father on the phone, and that their youngest is only 13 months. Ms WX said that all the children would be sad at ‘losing their father’ if Mr Say is repatriated. Ms WX said that Mr Say had never used drugs around the children, or around the house that she had seen.
Ms WX said she knew her husband was a drug user, but not what kind of drugs he used. She said she was not aware of the details of his criminal history. She said she knew that he had been in custody but that they had never discussed in detail the kind of crimes of which he has been convicted.
When asked how confident she was of Mr Say giving up illicit drugs, Ms WX responded that she earnestly hoped he would ‘because if he loves the children and the family, he has to stop.’ She said that she had never seen any evidence of violence from her husband, and she was unaware of the previous conviction for assaulting his sister.
CONSIDERATION OF THE DIRECTION
Primary considerations
Protection of the Australian community (paragraph 13.1)
The nature and seriousness of the non-citizen’s conduct to date (paragraph 13.1.1)
The Direction sets out a number of principles that the Tribunal should take into account. One of those is that crimes of a violent nature against women are to be viewed very seriously regardless of the sentence imposed. Mr Say denied that he had, in the words of the police brief, ‘repeatedly hit’ his sister around her face in 2016, telling the Tribunal that he had ‘slapped’ her.
The Tribunal does not accept the Applicant’s description of this incident, which has the character of minimising the offence. While there is not a pattern of offending against women in Mr Say’s criminal history, this is nonetheless a serious offence which led to a conviction for unlawful assault.
Paragraph 13.1.1(2)(c) of the Direction sets out the principle that crimes committed against government representatives or officials due to the position they hold or in the performance of their duties are serious. Mr Say’s conviction in November 2018 for Assault emergency worker on duty falls squarely in that category. The informant’s statement (SGD, p 276) in relation to the incident that led to this conviction stated:
At approximately 1810, the Victim escorted the accused – Pheap SAY out of his cell to provide him with his scheduled night time medication. The victim was assisted by witness – PCO [name redacted of female officer]. The victim and [female officer] walked the accused down the hallway of the custody area towards the custody counter where the accused’s medication was. As they were walking, the accused said “hello gorgeous” to PCO [female officer]. PCO [name redacted] asked the accused not to say that to her as it was inappropriate. The victim advised that it was not acceptable to talk to staff in that nature. The accused was standing in close proximity to the victim. The victim put his hand up to create distance between himself and the accused. As he did this, the accused came closer to the victim in a confrontational manner.
The accused then grabbed the victim’s wrist and shirt. The accused started to become aggressive towards the victim. The accused started to struggle with the victim. The accused scratched the victim’s arm, causing it to bleed. The accused then ripped the victim’s shirt pocket completely off.
The victim and PCO [redacted] restrained the accused on the hallway floor, however the accused continued to fight with staff. Acting Sergeant [redacted], (witness), Constable [redacted] (witness) and First Constable [redacted] (informant) assisted in subduing the accused, as he called staff “c----" and “rats”.
The accused was then placed in the holding cell, where he continued to bang loudly on the floor, scream and yell abuse towards PCO’s, showing no remorse for his actions. The victim required first aid and his short was unusable and was disposed of.
While this summary shows that the assault was not at a higher end of violence, it was nonetheless totally unjustified. Mr Say’s oral evidence to the Tribunal that he was affected by drugs at the time may be some explanation for his aggressive conduct, but it is no excuse.
The Direction also requires the Tribunal to consider the frequency of a non-citizen’s offending and any trend of increased seriousness. There is no doubt that Mr Say has offended frequently. In the period spanning 1994 to 2018, the Applicant has appeared in Court every year in that period apart from 1999, 2004, and 2007-08. That is a lamentable record. Generally, the Applicant did not seek in his evidence to deny his offending, although he queried some details, and told the Tribunal that for some of the offending he was ‘off his face’ (i.e. intoxicated by illicit drugs) to such an extent that he did not recall the details.
This part of the Direction also requires a decision-maker to take into account whether the person has re-offended since being formally warned, or since otherwise being made aware in writing, about the consequences of further offending in terms of his migration status. Mr Say accepted that he had received written warnings from the Department on four occasions, in June 2002, July 2004, April 2005 and July 2016. His visa was cancelled in November 2005 by a delegate of the Minister, and restored in May 2016 after review by this Tribunal.
Mr Say’s visa was also mandatorily cancelled in July 2016, and that cancellation revoked by a delegate following representations from the Applicant in October 2016. It is clear to the Tribunal on this evidence that Mr Say was completely aware that any further offending could have grave consequences in terms of the tenure of his visa.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
The Tribunal must have regard, cumulatively, to the nature of the harm to individuals or the Australian community should the person engage in further criminal or other serious conduct, and the likelihood of him re-offending or so engaging.
Mr Say’s offending has involved some violence through several convictions for assault offences, and many property offences, such as burglary, theft from shops, and theft from motor vehicles. He has convictions for trafficking in heroin, which has a significant and harmful effect on society. He has shown a cavalier disregard for orders of the Courts, with several convictions for failing to answer bail, and contravening community protection orders. He has many driving offences, in spite of the fact that he has never held a full driver licence, and has thus put other road users in danger.
Mr Say’s consistent evidence to the Tribunal was that his offending has been driven by his drug addiction. He told the Tribunal that he had engaged in counselling and a number of opioid-replacement courses, but each time had relapsed. When asked directly by the Tribunal why there should be confidence that he would not re-offend, if allowed to remain in Australia, Mr Say’s response was that he ‘has four children now.’ When the Tribunal pointed out that he has committed a stream of offences since his eldest child was born in 2011, Mr Say said ‘I should have another chance’ and that he ‘believed he could do well by his wife and kids about what is right and wrong to do.’
Ms WX’s response about whether she was confident that Mr Say would not re-offend was, in the view of the Tribunal, candid. She said ‘if he loves the children…he has to stop.’ However, given the history of relapsing which was freely admitted by the Applicant, and the lack of any concrete plan for taking steps to keep away from illicit drugs, other than a willingness to engage with any programme offered, to stay on opioid-replacement medication, slowly reducing the dosage, and to undergo counselling sessions, the Tribunal was left with the strong impression that there is not only a real risk of Mr Say re-offending, but probably a relatively high risk.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Best interests of minor children in Australia affected by the decision (paragraph 13.2)
The Tribunal must make a determination about whether revocation is in the best interests of relevant children. If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their best interests may differ. The Tribunal has identified four children in this consideration, the children of Mr Say and Ms WX.
‘SX’ is Mr Say’s elder daughter and oldest child. She was born in 2011. Both Mr Say and Ms WX gave evidence about the relationship that the Applicant has with her. Mr Say said they had a strong relationship, that he had taught SX to read and write and used to take her to school. SX was injured in a car accident some years ago, which Mr Say spoke about in detail, but Ms WX said her health has been restored. Mr Say said that SX had been told her father was away for work, to shield her from the fact he has been in prison and is now in detention.
The Tribunal finds that it would be in the best interests of SX if the mandatory cancellation of the visa were revoked.
‘CX’ is Mr Say’s older son and second child. He was born in 2013. Mr Say said, if anything, his relationship with CX is even stronger than with SX. He said he had taught him how to kick a ball and took him shopping and otherwise undertaken regular parental responsibilities with CX.
The Tribunal finds that it would be in the best interests of CX if the mandatory cancellation of the visa were revoked.
‘EX’ is the Applicant’s younger daughter and third child. She was born in 2017. ‘AX’ is Mr Say’s younger son and fourth child. He was born in December 2018. The Applicant said that both are young and did not really understand his absence.
The Tribunal finds that it would be in the best interests of both EX and AX if the mandatory cancellation of the visa were revoked. There has been more contact between EX and Mr Say and so the weight, in relation to her, is slightly heavier. In respect of AX, the weight is lighter, because he has had little contact with his father. Because of their age, their appreciation of their father’s situation has not had much effect on them, which is not to say that as they grow older the effect may not become greater
The Tribunal is satisfied that Mr Say has attempted to compartmentalise his offending and illicit drug-taking away from his immediate family. The evidence of Ms WX in terms of the four children’s relationship with their father was unequivocal, that they would be greatly affected, especially the elder two, if he was repatriated. Ms WX wrote (GD, p 110):
My children miss their father’s love and his physical presence. If he were to be deported, it would break my children’s heart as they would grow up without a father and it would break their bond with their father….I can tell they are already suffering as they are unable to spend their childhood with their father.
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa, and relatively heavily so.
Expectations of the Australian community (paragraph 13.3)
Paragraph 13.3(1) of the Direction reads:
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate not to revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In FYBR v Minister for Home Affairs [2019] FCAFC 185 (which was considering identical wording in an earlier version of the Direction), the majority (Charlesworth and Stewart JJ) held that this part of the Direction expresses a ‘norm.’ It is not for a decision-maker to make his own personal assessment of what the ‘expectations’ of the Australian community may be. In this respect, the expectations articulated in the Direction are deemed – they are what the executive government has declared are its views, not apprehensions, presumptions or values that may be gleaned by some other subjective evaluative process.
Stewart J stated, at [100]:
To summarise, as expressed in Direction 65, the Australian community has only three relevant expectations:
. non-citizens will obey Australian laws when in Australia;
.it may be appropriate to refuse a visa application where a non-citizen has breached, or where there is an unacceptable risk that they will breach, the expectation that they will obey the law or where they have been convicted of offences in Australia or elsewhere.
.in a particular case, the refusal of the visa may be appropriate simply because of the nature of the character concerns or offences is such that they should not be granted a visa.
Understood in this way, community expectations are simply, and informally, expressed as follows: “If you break the law that will be held against you, the more serious the breach the more it will be held against you, and it may even be decisive.”
(Emphasis added.)
His Honour later said (at [102]) that the character assessment, even through the prism of community expectations, may not be decisively against an Applicant, which is why the decision-maker must assess what is ‘appropriate’ in the particular circumstances. Mr Say has a long criminal history. He has amassed more than 140 convictions. The risk of him re-offending is real, and objectively, given his history of convictions, re-offending is relatively likely.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
This consideration requires a decision-maker to consider whether any of Australia’s international treaty obligations may be agitated in a particular case. Mr Say is a Cambodian citizen and neither party submitted to the Tribunal that this consideration is relevant in his matter.
The Tribunal finds that this consideration is not engaged, so therefore weighs neutrally.
Strength, nature and duration of ties (paragraph 14.2)
This consideration requires the Tribunal to have regard for how long a non-citizen has resided in Australia, including whether they arrived as a young child, noting that less weight should be given where the non-citizen began offending soon after arrival and more weight should be given to time the non-citizen has spent contributing positively to the community. The Tribunal must also consider family or social links, and the strength and nature of those, between the Applicant and his immediate family, who are Australian citizens.
The Tribunal notes that Mr Say arrived in Australia in February 1985 aged five. He attended primary and high school in Australia. His parents have resided here since 1985 (although he has had no contact with his father since he was aged around 14). His siblings, a step-sibling and other extended family members reside here, as well as his Australian citizen wife and four children. The Applicant’s first Court appearance is recorded in the Criminal History Check as in October 1994, more than nine years after his arrival in this country. The Tribunal assesses that the Applicant has strong ties with Australia. Mr Say says that he thinks of himself as Australian and was not included on his mother’s citizenship application only because he was then aged 17.
The solicitor for the Respondent submitted that the Tribunal should consider Mr Say’s offending as a ‘negative contribution’ to Australia. The Tribunal stated during the hearing that it considers this would be a misreading of this part of the Direction, where weight may be heavier because of certain stipulated factors, but facts that may point in the opposite direction cannot ‘weigh against;’ they may however dilute the weight assigned.
The Tribunal notes that there has been some limited positive contribution Mr Say has made to Australia through his periodic employment positions in factory work, a winery, an orchard and in road construction.
The Tribunal notes that the Applicant has provided supportive statements from his brother (GD, p 106 and SGD, pp 407) and a sister (GD, p 107). Both speak of Mr Say’s qualities as a parent and the effect his deportation would have on his children, and his brother wrote of how difficult it was for the Applicant having an abusive father growing up. The Tribunal also notes the Applicant’s oral evidence of his relationship with his sisters (including the one he assaulted with whom he said he has now reconciled) and with a cousin who grew up with him in the same household, as she had been orphaned.
The Tribunal notes that the Respondent submitted that this consideration weighs in favour of the Applicant, and has also arrived at that conclusion, especially because of what the evidence illustrates is a genuine and loving marriage Mr Say has with his wife, and the strong parental relationship the Applicant has with his children. The Tribunal notes that Ms WX wrote (GD, p 110): In terms of my relationship with my husband, we love and support each other. He is very respectful of me and his mother with whom he shares a special bond. The fact that there would be some detrimental financial impact on Ms WX and the children, in the sense of an expectation that if the Applicant was in the community, he would earn income to support the household, which he says he has done in the past, is also a relevant factor to take into account.
The Tribunal finds on all the evidence that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
Impact on Australian business interests (paragraph 14.3)
The Respondent submitted that this consideration was not engaged. The Tribunal notes that a decision-maker would only generally give weight to an employment link where visa cancellation would significantly compromise the delivery of a major project or important service in Australia. Mr Say gave evidence of his employment history, working for a packaging company as a factory hand, also undertaking seasonal work in a winery in winter and an apple orchard in summer. Mr Say said at one stage he had a management role at a winery, responsible for around twenty other people. The Tribunal accepts that, although his terms of imprisonment have interrupted his work, the Applicant has an employment history but finds that it does not rise to the level contemplated in the Direction, in that the work he has undertaken has not been central to the delivery of an important project or service
The Tribunal finds that this consideration weighs neutrally.
Impact on victims (paragraph 14.4)
This consideration is only relevant where a victim of a non-citizen’s criminal offending is aware of the decision in relation to the person’s visa. There was no evidence before the Tribunal of this nature, so the Tribunal finds that this consideration weighs neutrally.
Extent of impediments if removed (paragraph 14.5)
The Tribunal must consider the extent of any impediments that a person may face if removed from Australia to their home country in establishing themselves and maintaining basic living standards, in the context of what is generally available to other citizens of that country. A decision-maker should take into account the person’s age and health, any substantial language or cultural barriers, and any social, medical or economic support available to them in the country of reference.
Mr Say submitted that his physical health is satisfactory, although he had some difficulties with his shoulder which he said had been dislocated. He told the Tribunal he had been prescribed certain medication over the years for depression and anxiety, which he had been ‘off and on for the last ten years in prison,’ but not whether he was continuing to take that medication. The Respondent submitted, rightly in the Tribunal’s view, that Mr Say’s long-term drug addiction may present as a barrier to future employment and maintaining basic living standards.
The Applicant said that he spoke Khmer to his mother and to his wife, whose English is not yet fluent, but that owing to the fact that he had left Cambodia aged five, he did not write and nor could he read the language. Ms WX in her statement expresses the view that this would be an impediment if he returned to Cambodia, and the Tribunal accepts this.
The Respondent noted that there is no indication that Mr Say would have any less right to economic or medical support that is available to Cambodian citizens, but that it is probable that the support he would receive would be of a lesser standard than what is available in Australia. While observing that submission, the Tribunal notes that the Direction does not require decision-makers to use that comparison; the correct measure is what is available to a repatriated person in the context of what is generally available to other citizens of that country.
The Respondent also noted that Mr Say does not appear to have any close family members in Cambodia who would be able to help him reintegrate into society in that country, and that he would experience emotional pain as a result of separation from his wife and children, and wider family.
The Tribunal notes that the Applicant’s parents, siblings and other extended family, as well as his wife and four children, all reside in Australia. There was no evidence of any relatives in Cambodia with whom Mr Say has contact. While the culture of Cambodia would not be completely unfamiliar to the Applicant because of his own family background, the Tribunal considers that his local language limitations would be an impediment, as would the fact that he left Cambodia at a very young age.
The Tribunal finds that this consideration weighs in favour of revoking the mandatory cancellation of the visa.
SUMMARY AND CONCLUSION
The Tribunal has found that two of the three primary considerations weigh against revoking the mandatory cancellation of the visa. One primary consideration weighs in favour of revocation, which is what is in the best interests of the Applicant’s minor children.
In regard to the relevant other considerations, two weigh in favour of revoking the mandatory cancellation of the visa, the strength and nature of Mr Say’s ties with Australia, and the extent of impediments if he is removed.
A significant factor to which the Tribunal has had regard in this matter is the number of times that the Applicant has been warned about the immigration consequences of his continuing to offend. These warnings and two previous visa cancellations seem to have had no effect in abating his regular appearances before the Courts. It may be that much of his offending has been fuelled by his drug addiction, including attempting to fund it. But that has not been the basis of all the offending, Mr Say has also been violent and blithe in his disregard for the law. The Tribunal was left with the strong impression that Mr Say had good intentions of trying to end his drug habit, but not much more than that, especially as he ruefully admitted the several other attempts and interventions to this same end, all of which had ultimately failed.
The Tribunal is very conscious that the Applicant has lived in Australia for the majority of his life, and all of his adult life, that he has an Australian citizen wife and four children, and that all of his known extended family lives in this country. These factors, however, are detracted from by his criminal history and previous hollow promises both to the Tribunal and directly to the Department that he will not re-offend, he did in fact commit further crimes. On balance, I think there is a likelihood of this cycle continuing.
Weighing all the considerations individually and cumulatively, and considering all the particular circumstances of the case, as required by paragraph 6.1(2) of the Direction, the Tribunal finds that the discretionary power provided for in s 501CA(4)(b)(ii) of the Act is not enlivened. There is not ‘another reason’ why the mandatory cancellation of the visa should be revoked. Consequently, the Tribunal finds that the decision under review was the correct decision in law and the preferable decision where a discretionary power may be exercised.
DECISION
The Tribunal decides to affirm the decision under review.
I certify that the preceding 104 (one hundred and four) paragraphs are a true copy of the decision and reasons for decision herein of Senior Member D. J. Morris
……[sgd]………………………………………
Associate
Dated: 1 April 2020Date of hearing:
16 March 2020
The Applicant:
In person
105. Advocate for the Respondent:
Mr Keith Sypott
106. Solicitors for the Respondent:
The Australian Government Solicitor
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