Skipper and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)

Case •

[2024] AATA 931

•

11 April 2024

Skipper and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 931 (11 April 2024)

Division:GENERAL DIVISION

File Number:          2024/0332

Re:Raymond Skipper

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Senior Member Theodore Tavoularis

Date of decision:                   11 April 2024

Date of written reasons:        1 May 2024

Place:Brisbane

Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms decision made on 17 January 2024 made by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

.........................[SGD].........................

Senior Member Theodore Tavoularis

Catchwords

MIGRATION – non-revocation of mandatory cancellation of a visa – where Applicant does not pass the character test – where the visa was previously cancelled and subsequently revoked - whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 99 – where the criminal offending history spans a decade  – where level of Applicant’s rehabilitation cannot be ascertained - Tribunal finding Applicant’s recidivist risk as unchanged - factors against revocation outweigh factors in favour of revocation- Tribunal finding there is no another reason to revoke the mandatory cancellation decision- decision under review affirmed.

Legislation
Administrative Appeals Tribunal Act 1975 (Cth)
Migration Act 1958 (Cth)

Migration Regulations 1994 (Cth)

Cases

Arachchi v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1311
Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561
Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666
Ismail v Minister for Immigration, Citizenship and Multicultural Affairs [2024] HCA 2
Khalil v Minister for Home Affairs (2019) 271 FCR 326
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301

Walker v Minister of Home Affairs [2020] FCA 909

Secondary Materials

Ministerial Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (3 March 2023)

TABLE OF CONTENTS

Introduction

Procedural history

Legislative Framework

Primary Consideration 1: Protection Of The Australian community

Primary Consideration 2: Family violence

Primary Consideration 3: The strength, nature and duration of ties to Australia

Primary consideration 4: The best interests of minor children in Australia

Primary Consideration 5: Expectations of the Australian community

Other Considerations

Conclusion

Decision

Annexure A

Annexure B

REASONS FOR DECISION

Senior Member Theodore Tavoularis

1 May 2024

INTRODUCTION

  1. Mr Raymond Skipper (‘the Applicant’) is a 39-year-old citizen of New Zealand. He first arrived in Australia on 13 August 1990 as a five-year old.[1] Following this initial arrival, the Applicant spent various periods outside of Australia until his final arrival here on 16 September 2014. The total amount of time he spent outside of Australia between August 1990 and September 2014 amounts to approximately 11 years. Therefore, during that particular 24-year period he spent about 13 years here. He has been continually present in Australia since the date of his most recent arrival in September 2014. Taking into account these two periods of time, it can be safely found the Applicant has spent a total of approximately 22 years in this country from August 1990 to date. This means he has spent about 56 per cent of his life in this country.

    [1] R3, p 373.

    PROCEDURAL HISTORY

  2. The Applicant’s visa history in this country is a storied one. It transpired thus:

    ·7 May 2020: the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa (‘the Visa’) was mandatorily cancellated pursuant to s 501(3A) of the Migration Act 1958 (Cth) (‘the Act’);

    ·19 August 2020: a delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) that the immediately preceding mandatory cancellation decision had been revoked;

    ·9 November 2022: the Applicant was convicted in the Richlands Magistrates Court of ‘driving whilst disqualified’ and sentenced to 12 months’ imprisonment;

    ·1 December 2022: consequent upon his immediately preceding offending and sentence, there followed the second mandatory cancellation of the Visa pursuant to section 501(3A) of the Act;

    ·9 December 2022: the Applicant requested revocation of the second mandatory cancellation of his Visa;

    ·17 January 2024: a delegate of the Respondent decided, pursuant to section 501CA(4) of the Act, not to revoke the second mandatory cancellation decision. For the purposes of these Reasons, I will refer to this non-revocation decision as the ‘Decision Under Review’;

    ·19 January 2024: the Applicant applied to this Tribunal seeking review of the immediately preceding non-revocation decision which I have defined as the Decision Under Review.

  3. The instant hearing proceeded before me in-person on 2 and 3 April 2024 (‘the Hearing’). At the commencement of the Hearing the parties agreed that the Tribunal’s list of material should be consolidated into an agreed Exhibit List[2] which is attached to these Reasons and marked ‘Annexure A’. This Hearing received oral evidence from:

    ·the Applicant;

    ·the Applicant’s partner, Ms Chrystal Marie Cahill;

    ·the Applicant’s mother, Ms Cora Lee Randall; and

    ·the Applicant’s sister, Ms Nakita Skipper.

    [2] See generally, Transcript, p 2, lines 16-46; p 3, lines 1-16.

  4. This is an expedited application pursuant to section 500(6L)(c) of the Act which requires the Tribunal to make a decision within the period of 84 days after the day on which the Applicant was notified of the Decision Under Review. The 84th day in this matter fell on 11 April 2024. On that day I caused a short-form decision to be duly published to the parties such as to ensure this Tribunal met the decisional requirements of s 500(6L)(c) of the Act. Attached to these Reasons and marked ‘Annexure B’ is a true and correct of that short-form decision.

  5. Pursuant to the authority of Khalil v Minister for Home Affairs (2019) 271 FCR 326[3] , I now publish my detailed written reasons within a reasonable time after publication of my


    short–form decision.

    [3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 underscores that there is a distinction between the decision of the Tribunal, which discharges the obligation under s 500(6L) of the Act and the Tribunal’s written reasons (which can be delivered later): See specifically, paras [41]–⁠[48].

    LEGISLATIVE FRAMEWORK

  6. Revocation of the mandatory cancellation of visas is governed by s 501CA(4) 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.

  7. I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act. I am also satisfied this Tribunal has jurisdiction to review the non-revocation decision pursuant to s 500(1)(ba) of the Act.

  8. There are therefore two issues presently before the Tribunal:

    (a)whether the Applicant passes the character test; and if not

    (b)whether there is another reason to revoke the mandatory cancellation of the Applicant’s Visa.

    Does the Applicant pass the character test?

  9. The Applicant does not pass the character test as a matter of law.[4] He was sentenced to a term of imprisonment for 12 months on 9 November 2022[5] and thus meets the respective threshold requirements appearing in section 501(6)(a) of the Act (‘substantial criminal record’) and section 501(7)(c) of the Act (‘sentenced to a term of imprisonment of 12 months or more’). Accordingly, the Applicant cannot rely on section 501CA(4)(b)(i) of the Act for the mandatory cancellation of his Visa to be revoked.

    [4] Harrison and Minister for Immigration and Citizenship (2009) 106 ALD 666 at [63].

    [5] R1, p 40.

    Is there another reason to revoke the mandatory cancellation of the Applicant’s Visa?

  10. In considering whether there is another reason to exercise the discretion in s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) of the Act to comply with any directions made under the Act. In this case, Direction No. 99 – visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (‘Direction’ or ‘Direction 99’) has application.[6]

    [6] Direction No 99 commenced on 3 March 2023. It replaces Direction No. 90 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA.

  11. For the purposes of deciding whether or not to revoke the mandatory cancellation of a


    non-citizen’s visa, the Direction contains several principles that must inform a decision maker’s application of the considerations relevant to the decision. The principles that are found in paragraph 5.2 of the Direction are as follows:

    1Australia 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.

    2Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

    3The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.

    4Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.

    5With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.

    6

    Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the


    non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.

  12. Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account and they are:

    (1)protection of the Australian community from criminal or other serious conduct;

    (2)whether the conduct engaged in constituted family violence;

    (3)the strength, nature and duration of ties to Australia;

    (4)the best interests of minor children in Australia; and

    (5)expectations of the Australian community.

  13. Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. These considerations are:

    (a)legal consequences of the decision;

    (b)extent of impediments if removed;

    (c)impact on victims; and

    (d)impact on Australian business interests.

    PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY

  14. In considering this Primary Consideration 1, paragraph 8.1(1) of the Direction compels decision-makers to

    keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by


    non-citizens. Decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.

  15. In determining the weight allocable to this Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:

    (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.

  16. I will consider each in turn.

    The nature and seriousness of the Applicant’s conduct to date

  17. Prior to assessing the nature and seriousness of the Applicant’s unlawful conduct in this country it is, to my mind, necessary to obtain a fulsome understanding of the totality of this Applicant’s convictions. As a result of his unlawful activity in this country, the Applicant:

    ·has compiled an offending history that, in terms of sentencing dates, runs from August 2013 to June 2022 which is a period of about nine years;

    ·has convictions for being found guilty of the commission of 62 offences;

    ·has been dealt with at 13 separate sentencing episodes;[7]

    ·has received fines in the total sum of approximately $4,050;

    ·has received an order to pay restitution in the sum of $50.50; and

    ·has received a cumulative period of head custodial time comprising three years and 42 days.

    [7] Note to reader: the Applicant’s criminal history in the material before the Tribunal (R1, pp 33-38) contains a record of 12 separate sentencing episodes, the last of which occurred at the Richlands Magistrates Court on 15 June 2022. However, the material also contains a transcript of proceedings before Magistrate Shearer at the Richlands Magistrates Court on 9 November 2022. That transcript appears to contain submissions on sentencing for the Applicant’s commission of the offence of disqualified driving. At the end of that transcript, no penalty is imposed and the transcript concludes with the words ‘TAKE IN DECISION’. I cannot locate actual sentencing remarks by Magistrate Shearer. However, the Applicant’s traffic history does contain (at R1, p 40) a reference to the Applicant’s convictions for disqualified driving on 9 November 2022 for which a custodial term of 12 months was imposed and consequent upon which the Applicant was disqualified from driving for a period of four years.

  18. He also has a similarly significant traffic history in this country. In particular, the Applicant:

    ·has compiled a traffic history that, in terms of offences committed, spans the period December 2013 to August 2022-a period of some nine years;

    ·has convictions for the commission of some 29 traffic offences;

    ·has accumulated 39 demerit points;

    ·has had his driving privileges suspended or disqualified for a cumulative period of 20 years and four months; and

    ·has received fines in the amount of $5,880.

  19. When assessing the nature and seriousness of a non-citizen’s criminal offending or other conduct to date, paragraph 8.1.1(1) of the Direction specifies that decision-makers must have regard to the following:

    (a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:

    (i)     violent and/or sexual crimes;

    (ii)    crimes of a violent nature against women or children, regardless of the sentence imposed;

    (iii)   acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;

    (b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:

    (i)     causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;

    (ii)    crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;

    (iii)   any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker’s opinion (for example, section 501(6)(c));

    (iv) where the non-citizen is in Australia, 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, or an offence against section 197A of the Act, which prohibits escape from immigration detention;

    (c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;

    (d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;

    (e)the cumulative effect of repeated offending;

    (f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;

    (g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).

    (h)where the offence or conduct was committed in another country, whether that offence or conduct is classified as an offence in Australia.

  20. Paragraph 8.1.1(1)(a)(i): the chapeau to paragraph 8.1.1(1)(a) contains a list of three offending modalities that are viewed very seriously by the Australian Government and the Australian community. Turning firstly to sub-paragraph 8.1.1(1)(a)(i), on 14 January 2022 at 10:30 pm in the evening the Applicant became involved in a violent altercation with intervening police officers. That altercation is particularised in the relevant Queensland Police material in these terms:

    ‘Facts of the Charge

    The Defendant in this matter is Raymond Teua Hirini SKIPPER (21/11/1984).

    Charge 1 of 3

    At about 10:28pm on Friday the 14th January 2022, Police were called to Sycamore Street, INALA in relation to three males fighting in the street and throwing rocks at houses after multiple 000 calls. Multiple Police units were sent to the scene Priority Two (emergency red and blue flashing lights and sirens) attending the scene.

    At about 10:36pm same night, Officers from Inala Police Station were doing mobile patrols along Sycamore Street, when at the intersection with Adonis Street, they heard a male person yelling and screaming angrily at someone. Officers turned on to Adonis Street and stopped, activating their service issued Body Worn Cameras (BWC). Officers observed a juvenile male walk past the Police vehicle in an easterly direction towards Sycamore Street yelling.

    Officers exited the Police vehicle and attempted to speak with the juvenile male, when they heard another male person yelling abuse and obscenities from the direction of Police then observed a large shirtless male person (who later identified as the defendant), walking in the middle of the street from the direction of with a second male person. Both the defendant and the second male were each carrying a glass beer. The defendant was walking towards Sycamore Street and was angrily yelling. The defendant and the other male were told to put the bottle down and both male persons placed their glass bottle on the roadway.

    Officers then attempted to speak with the defendant to find out why he was angry and yelling. The defendant was heavily intoxicated, was unsteady on his feet and acting aggressively. The defendant came right up into the face of Senior Constable

    (S/Con) [name redacted] and was warned to step back. The defendant stepped back and said: "Fuck you, you white cunt, I'm a black fella, fuck you, you white shit". When the defendant was told to calm down and he yelled: "Get fucked you white cunt".

    The defendant was warned he would be arrested if he continued. The defendant walked away from S/Con [name redacted] but continued to yell abuse saying: "Fuck you copper dog shit".

    At this time, most of the front house lights in the street were turned on and a number of the residents were standing out the front of their homes and on the street.

    Charge 2 of 3

    The defendant has then bent down and picked up the two glass beer bottles and started to walk towards S/Con [name redacted] . The defendant was again told to put the bottles down, which he did and said: "Are you happy with that cunt?" The defendant was then told to move away from the bottles, and he started to advance towards S/Con [name redacted] and said: "Fuck you, I am gonna". At this time, S/Con [name redacted] believed the defendant was about to assault him and fearing grievous bodily harm, S/Con [name redacted] drew and deployed his service issued taser against the defendant while calling "Taser, taser, taser". The defendant was struck in the chest incapacitating him and he fell over backwards, striking the back of his head on the roadway.

    The defendant was arrested, Officers commenced after care/first aid and requested an ambulance for the defendant. Whilst being cared for by Police, the defendant continued to yell: "The cunt shot me, the fucking fat four eyed cunt shot me for no reason"

    Charge 3 of 3

    Members of the defendant's family then came out on to street and started causing a disturbance about the defendant's welfare, resulting in a male relative of the defendant being sprayed with capsicum spray and arrested. The defendant's partner [name redacted in original] and his mother [name redacted in original] then came out to where the defendant was laying on the ground and sat on the defendant and started to hug him. [Name redacted in the original] was asked to step back from the defendant so he could be helped to his feet, but she refused. At this time, [name redacted in original] grabbed hold of the defendant and refused to let go. Officers warned she would be arrested for obstructing Police. Officers were trying to physically remove her when started to intervene attempting to prevent being removed. was warned before being physically walked away from the defendant by Sergeant (Sgt) [name redacted].

    Moments later as the defendant was being helped to his feet, Sgt [name redacted] called out: "Can I get some help here with her?" S/Con [name redacted] went to assist Sgt [name redacted] who was wrestling with Sgt [name redacted] said: "She is also under arrest". As S/Con grabbed right arm, the defendant rushed forwarded and kicked S/Con [name redacted] in the lower back near his tail bone causing immediate pain, discomfort and causing S/Con [name redacted] to stumble forwards. The defendant said: "Don't fucking touch my mum". A male Officer told the defendant to stop assaulting Police, to which replied: "Then they shouldn't touch my mum".

    The defendant was then transported to the Richlands Watchhouse, where Queensland Ambulance Service (QAS) Officers attended and examined the defendant. On advice from QAS Officers, the defendant was transported to the Princess Alexandra Hospital for examination and observation.’[8]

    [8] R3, p 80.

  1. This incident resulted in the Applicant being convicted of (amongst other charges) ‘Obstruct Police Officer’[9] and ‘Assault Police Officer’[10] at the Richlands Magistrates Court on 15 June 2022. It is surely beyond argument that this offending falls squarely within the auspices of paragraph 8.1.1(a)(i) of the Direction and must be found to be ‘very serious’ unlawful conduct.

    [9] Pursuant to s 790(1)(B) of the Police Powers and responsibilities Act 2000 (Qld).

    [10] Pursuant to s 790(1)(A) of the Police Powers and responsibilities Act 2000 (Qld).

  2. Paragraph 8.1.1(1)(a)(ii)-(iii): the Applicant’s offending history does not include crimes of a violent nature against women or children, nor does it include acts of family violence regardless of whether there is a conviction for an offence or a sentence imposed for such family violence conduct. Both of these sub-paragraphs are not relevant to the instant determination.

  3. Paragraph 8.1.1(1)(b)(i): the chapeau to paragraph 8.1.1(1)(b) of the Direction stipulates four offending modalities that are considered by the Australian Government and the Australian community to be serious. Turning firstly to sub-paragraph 8.1.1(1)(b)(i), there is nothing in the Applicant’s offending history indicative of him causing a person to enter into or be a party to a forced marriage. This sub-paragraph is not relevant to the instant determination.

  4. Paragraph 8.1.1(1)(b)(ii): the Applicant has four convictions for crimes committed against government representatives or officials (i.e. the Police) due to the position they hold or in the performance of their duties. In particular:

    ·on 18 December 2017 the Applicant was convicted of ‘contravene direction or requirement’;[11]

    ·on 29 August 2018 the Applicant was convicted of ‘assault or obstruct police officer’;[12]

    ·on 15 June 2022 the Applicant was convicted of ‘obstruct police officer’;[13] and

    ·on 15 June 2022 the Applicant was convicted of ‘assault police officer’.[14]

    [11] Pursuant to s 791(2) of the Police Powers and responsibilities Act 2000 (Qld).

    [12] Pursuant to s 790(1) of the Police Powers and responsibilities Act 2000 (Qld).

    [13] Pursuant to s 790(1)(B) of the Police Powers and responsibilities Act 2000 (Qld).

    [14] Pursuant to s 790(1)(A) of the Police Powers and responsibilities Act 2000 (Qld).

  5. These convictions fall squarely within the auspices of sub-paragraph 8.1.1(1)(b)(ii) of the Direction and militate in favour of a finding that the Applicant’s unlawful conduct in this country has been at least of a serious, more likely, very serious nature.

  6. Paragraph 8.1.1(1)(b)(iii): given the formulation of the character test referable to the instant decision, which test the Applicant fails as a matter of law,[15] I am not required to make any finding about whether any of his conduct forms the basis for a finding that the he does not pass an aspect of the character test that is dependent on my opinion. This sub-paragraph is not relevant to the instant determination.

    [15] See [9] of these Reasons.

  7. Paragraph 8.1.1(1)(b)(iv): the material contains no reference to any crime committed by the Applicant during his time in immigration detention or on the basis of any other nominated categories referrable to the Applicant’s time in immigration detention. This sub-paragraph is not relevant to the instant determination.

  8. Paragraph 8.1.1(1)(c): in applying this particular paragraph, I am precluded from taking into account sentences imposed on this Applicant for:

    (i)any violent offending he may have committed against women and children;[16]

    (ii)acts of family violence;[17] and

    (iii)any sentence he received relating to conduct whereby he caused a person to enter into (or to become a party to) a forced marriage.[18]

    [16] Paragraph 8.1.1(1)(a)(ii) of the Direction.

    [17] Paragraph 8.1.1(1)(a)(iii) of the Direction.

    [18] Paragraph 8.1.1(1)(b)(i) of the Direction.

  9. The Applicant has no convictions for commission of offences in any of the precluded categories. This means that all of his sentencing history can be taken into account for the purposes of this sub-paragraph 8.1.1(1)(c). He has received virtually the full ambit of sentencing options open to a judicial sentencing officer. In terms of his criminal history, those sentencing options range from (1) the imposition of fines in lieu of custodial time; (2) the imposition of an order for community service; (3) the imposition of actual custodial time but fully or partially suspended; and (4) the imposition of custodial time but with a provision for earlier release.  The Applicant’s criminal history of approximately nine years duration has seen him convicted of in excess of 60 offences resulting in the imposition of head custodial time exceeding three years.

  10. In terms of his traffic history, the sentencing courts have imposed (1) fines in the sum of $5,880; (2) demerit points in the cumulative amount of 39; (3) suspension of his driving privileges and/or disqualification of him from driving in the cumulative amount of 20 years and four months; and (4) actual custodial time for his traffic offending in the cumulative amount of two years and eight months. It is notable that the custodial time he received for his traffic offending is in addition to the totality of custodial time he received for his criminal conduct. To be clear, the Applicant would have received a given custodial sentence for an aspect of his criminal offending but would also have received a custodial sentence consequent upon his traffic offending. My point is that there were two parallel lines of sentencing to which he was subject but not that he was necessarily serving those criminal and traffic sentences cumulatively.

  11. The totality of his offending (i.e. criminal plus traffic) has spawned the imposition of head custodial time of almost five years. It is well-settled that sentences involving terms of imprisonment are the last resort in the sentencing hierarchy.[19] The imposition of a custodial term should be viewed as a reflection of the objective seriousness of the offending involved. Aggregating both the custodial sentences with the remainder of sentencing modalities imposed on him can only lead to a safe finding that the sentences imposed on this Applicant most certainly speak to the very serious nature of his offending in this country.

    [19] PNLB v Minister for Immigration and Border Protection [2017] AATA 1561 at [43].

  12. Paragraph 8.1.1(1)(d): this paragraph poses two questions. First, has the Applicant’s offending been frequent? As mentioned, the criminal history of nine years saw the commission of in excess of 60 offences dealt with at 13 separate sentencing episodes. This equates to the commission of about seven to eight offences for each year of that nine year offending period. He was dealt with at sentencing hearings at a rate of well more than once per each year of the offending history. Even greater frequency of the offending can be seen when one conjoins his traffic history to his criminal history. The traffic history evinces the commission of some 29 offences across a similar offending period of about nine years. One can be readily satisfied that the commission of in excess of 90 offences in a nine year timeframe to be frequent offending.

  13. The second question posed by this paragraph is whether there is a detectable trend of increasing seriousness across the history of the Applicant’s offending? The Applicant’s first conviction in August 2013 was for a public nuisance offence. The next group of convictions occurred on the one sentencing day (in March 2014). These convictions involved offending charged as ‘supplying dangerous drugs ’ (x3), ‘receiving or possessing property obtained from trafficking or supplying’ (x1) and ‘possessing anything for use in the commission of crime’ (x1). Thus, in the quite early phase of the Applicant’s criminal history there is a sharp spike in the level of its seriousness.

  14. This level of seriousness was maintained for the duration of the criminal history which involved essentially the same type of offending but with additional offending in the realm of repeated refusals to follow lawful authority be it in the form of a Police officer directing the Applicant to do (or refrain from doing) something or by failing to appear in a Court pursuant to a previously provided undertaking. Thus the ‘trend’ towards increasing seriousness occurs early in the offending history and is sustained at basically the same level thereafter.

  15. When my respective findings about (1) the frequency of the Applicant’s offending and (2) the identifiable trend of increasing seriousness are conjoined, it can be safely found that this paragraph 8.1.1(1)(d) strongly militates in favour of a finding that his unlawful conduct in this country has been of a ‘very serious’ nature.

  16. Paragraph 8.1.1(1)(e): this paragraph looks for any cumulative effect(s) resulting from the Applicant’s repeated offending. First, I am hard-pressed to identify any deterrent effect the Applicant may have experienced as a result of the sentencing regime imposed on him during the course of his offending. This finding is, to my mind, augmented by the relatively unique feature of this case which has seen the Applicant’s Visa mandatorily cancelled not once, but twice. It was initially cancelled in May 2020 but then reinstated in August 2020. Not even the existential threat to his Visa status was sufficient to deter the Applicant from reoffending to such an extent as to trigger a second mandatory cancellation in December 2022.

  17. Second, it can be readily gleaned that this Applicant has totally failed to develop any measure of respect for the lawful authority governing this country. He has at least 14 convictions for breaching the terms of a lawfully made instrument (example: a bail undertaking) compelling him to do (or refrain from doing) something. In a similar vein, he has at least four convictions for directly challenging the lawful authority represented by a Police officer in the Australian community.

  18. Third, it seems he has little regard for the safety of other community members when indulging in his abuse of illicit substances. He has at least five convictions for ‘fail to properly dispose of needle and syringe’ also charged as ‘fail to take reasonable care and precautions in respect of syringe or needle’ in the criminal history. The irresponsible disposal of syringes can lead to an innocent member of the public suffering a needle stick-type injury exposing that community member to whatever infectious implications may result from their skin being punctured by a syringe used by a drug user who may well have shared that syringe with another drug user as is often the case. It seems that while the Applicant has not had much regard for the impact of illicit drugs on himself, that wanton disinterest about his drug abuse also applies to the harm that could befall innocent members of the community.

  19. Fourth, there is surely no denying the logistical reality that the Applicant’s offending has well and truly consumed more than its fair share of the community’s policing, judicial sentencing and custodial resources. There is no other way to read a cumulative offending history comprising some 60 criminal offences and some 30 traffic offences across an offending period of about nine years. This is offending that has compelled Police to deploy physical restraining measures as a means of dealing with some of the Applicant’s conduct. His behaviour has required Police to present a taser directly upon him for the purposes of trying to control him. In one incident, so violently was the Applicant conducting himself that it took four Police officers to restrain him.[20] On something like 90 occasions, judicial sentencing officers have been required to pronounce sentences upon the Applicant. He has spent a not-insignificant period of time in criminal custody and, more recently, in immigration detention.

    [20] See generally, Police QP9 document at R3, p 2.

  20. Fifth, on his own admission, difficulties with illicit drugs and/or alcohol have been at the epicentre of his unlawful conduct. On any reasonable view, those substance abuse issues are serious and significant features of the Applicant’s psychopathology. They are so because the offending resulting from that psychopathology has been very serious. It follows that an absence of any clinical explanation of the factors behind the Applicant’s difficulties with substance abuse must be found to be a cumulative effect of his repeated offending. If this Tribunal cannot, with the benefit of independent clinical findings, rationalise the Applicant’s conduct, then this Tribunal will find that such dearth of clinical opinion is a significant cumulative effect of his repeated offending.

  21. I am satisfied that the abovementioned five cumulative effects of the Applicant’s offending cause this paragraph 8.1.1(1)(e) to strongly militate in favour of a finding that this Applicant’s offending in Australia has been ‘very serious’.

  22. Paragraph 8.1.1(1)(f): the material contains two incoming passenger cards completed by the Applicant when he re-entered Australia on 1 August 2013 and 16 September 2014. Both of these cards posed the same question: ‘Do you have any criminal convictions?’ The Applicant answered both questions with ‘No’.[21] The Applicant was taken to these incoming passenger cards during cross-examination. He agreed that it was his signature that appeared in both of these cards and he also agreed that although he answered the relevant question in the negative, he did, at the time he provided that answer, in both cards, have criminal convictions in either New Zealand (in the case of the earlier card) and then Australia (in the case of the latter card). He was forthright enough to say that the respective negative answers he provided were ‘…not correct, yes’.[22]

    [21] See generally, R1, pp 209-210.

    [22] Transcript, p 21, line 11.

  23. He did not appear to cavil with the suggestions put to him in cross-examination to the effect that:

    ·the incoming passenger card completed on 1 August 2013 was incorrect because the Applicant did have one conviction in New Zealand for driving under the influence of alcohol in August 2011[23]; and

    ·the incoming passenger card completed on 16 September 2014 was incorrect because the Applicant had by 17 March 2014 accumulated six convictions for criminal offending in Australia.[24]

    [23] R1, p 58.

    [24] R1, p 38.

  24. I took the Applicant to these two incoming passenger cards during closing submissions. I asked him to clarify why he ticked the ‘No’ answer to both of the subject questions. He responded in these terms: (1) with reference to the first (in time) card he said that he did not think a drink driving conviction in New Zealand constituted a criminal charge referrable to the question ‘Do you have any criminal conviction/s?’ The Applicant said ‘It was, I made a mistake. It says “criminal charges” and I was just-I wasn’t thinking that a driving charge and a criminal charge sort of has the same meaning.’[25]

    [25] Transcript, p 102, lines 22-24.

  25. With reference to the second (in time) card, I also raised the incomplete answer in that card with the Applicant during closing submissions. His initial response was ‘It’s pretty much the same thing [as with the answer he gave in the first card]. When it comes to the law, I really have no idea about certain things that revolve around the law….And I don’t really take much notice at that time.’[26] This response evolved during the course of his evidence into a position of ticking the ‘No’ answer for this second card because he was fearful about an adverse impact on his Visa status to re-enter Australia:

    [26] Transcript, p 103, lines 16-17 and 21.

    ‘SENIOR MEMBER: Yet if you have a look at the criminal history, Mr Associate, on page 38, if you have a look at page 38, in March 2014 you went through the court at Southport on supplying dangerous drug charges, and they are serious crimes obviously. So there’s obviously a mistake, obviously, isn’t there, in the second card.

    MR SKIPPER: Yes.

    SENIOR MEMBER: What do you say about that mistake?

    MR SKIPPER: It was an honest mistake. I didn’t really understand what all of this means, so to fill in a plane card, you know, it’s just.

    SENIOR MEMBER: It is what it is.

    MR SKIPPER: Yes, it was a big mistake.

    SENIOR MEMBER: Might you have ticked ‘No’ because you were scared that if you ticked ‘Yes’ the people at the airport might do something about your visa? Were you worried about that then?

    MR SKIPPER: Most probably. I don’t know. I can’t – that’s a long time to think back to.

    SENIOR MEMBER: Sure. Sure. But you might have ticked the card ‘No’ in 2014.

    MR SKIPPER: Just to get through.

    SENIOR MEMBER: just to get through the process and – yes. All right. And not have trouble with your visa, perhaps.

    MR SKIPPER: Yes.’[27]

    [27] Transcript, p 104, lines 9-41.

  26. The inescapable reality is that both incoming passenger cards are incorrectly completed. One might have some measure of sympathy for the Applicant’s incorrect answer in the first card due to his claimed inability to define a drink driving conviction as a criminal conviction necessary to be borne in mind when answering the relevant question posed in the earlier card. The credibility of his answer about the incorrect completion of the second card is significantly impugned because he must have surely been aware of his six convictions in Australia at a time relatively close to the date he completed this second card. The first of those six convictions occurred in August 2013. The following five convictions occurred in March 2014 and they involved three convictions for ‘supplying dangerous drugs’, one conviction for ‘receiving or possessing property obtained from trafficking or supplying’ and one conviction for ‘possessing anything for use in the commission of crime’. It would extraordinary if at the time the Applicant completed this second incoming passenger card (i.e. September 2014), these relatively recent six convictions did not resonate or otherwise compel him to tick the ‘Yes’ option about whether or not he had any criminal conviction/s at the time he completed that second card.

  27. I am therefore of the view that the Applicant’s unconvincing responses for the incorrect completion of both of these cards (especially the second one) causes this paragraph 8.1.1(1)(f) to strongly militate in favour of a finding that the Applicant’s offending in Australia has been ‘very serious’.

  28. Paragraph 8.1.1(1)(g): this paragraph 8.1.1(1)(g) of the Direction involves the question of whether the Applicant has reoffended since being formally warned about the consequences of further offending on his Visa status to remain here. As mentioned earlier,[28] the Applicant’s Visa has been mandatorily cancelled twice. When it was reinstated after the first mandatory cancellation, the Applicant received a stern warning about the consequences that further offending would very likely have on his Visa status to remain here. The explicit terms of that warning appear in the material. [29] I will refer again to this warning later in these Reasons when addressing the issue of recidivist risk.

    [28] See [2] of these Reasons.

    [29] See R1, pp 59-60.

  29. For the purposes of this paragraph 8.1.1(1)(g) of the Direction it suffices to say that (1) he received the abovementioned warning on about 19 August 2020; and (2) he thereafter committed three further criminal offences in January 2022.[30] He also committed the traffic offence of ‘disqualified driving’ in August 2022 for which he was disqualified from driving for four years and jailed for a head custodial term of 12 months.[31] This paragraph 8.1.1(1)(g) thereby very strongly militates in favour of a finding that the Applicant’s offending has been of a ‘very serious’ nature.

    [30] R1, p 34.

    [31] R1, p 40

  30. Paragraph 8.1.1(1)(h): the material contains reference to the Applicant’s conviction in New Zealand for on one count of ‘Breath Alcohol Level Over 400 Mcgs/Litre of Breath Blood/ Breath=442’[32]. For this offence the Applicant was convicted and fined NZD $325, was ordered to pay court costs in the sum of NZD $132.89 and was disqualified from driving for six months. While not necessarily conduct of any significant level of seriousness, the Applicant’s conduct giving rise to his conviction in New Zealand-if committed in Australia-would be classified as an offence in this country.

    [32] R1, p 58.

  1. One should, I think, be cautious about now suggesting that the Applicant’s drink driving conviction in New Zealand was an ominous precursor of his appalling traffic history he has accumulated in Australia. This is because, dreadful though his traffic history is in this country, it does not contain a single conviction for drink-driving. Be that as it may, the reality remains that the conduct giving rise to his conviction for drink-driving in New Zealand would give rise to a similar conviction in Australia. Accordingly, paragraph 8.1.1(1)(h) strongly militates in favour of a finding that the Applicant’s offending in Australia has been ‘very serious’.

    Conclusion about the nature and seriousness of the Applicant’s conduct

  2. I have applied each of the relevant paragraphs appearing in paragraph 8.1.1(1) of the Direction to the evidence. The relevant paragraphs applicable to the instant facts safely lead me to the conclusion (and finding) that the totality of this Applicant’s unlawful conduct in this country can be readily characterised as ‘very serious’.

    The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct

  3. Paragraph 8.1.2(1) provides that in considering the risk to the Australian community, a decision-maker should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk of it being repeated may be unacceptable.

  4. Paragraph 8.1.2(2) provides that in considering the risk to the Australian community, a decision-maker must have regard to the three following factors on a cumulative basis:

    (a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct;

    (b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:

    (i)     information and evidence on the risk of the non-citizen re-offending; and

    (ii)    evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence; and

    (c)where consideration is being given to whether to refuse to grant a visa to the non-citizen – whether the risk of harm may be affected by the duration and purpose of the non-citizen’s intended stay, the type of visa being applied for, and whether there are strong or compassionate reasons for granting a short stay visa.

    The nature of the harm to individuals or the Australian community were the Applicant to engage in further criminal or other serious conduct

    The Applicant’s concessions

  5. During the closing submissions phase of the Hearing, the Applicant rightfully conceded that his offending has resulted in harm to other people.[33] He agreed that his conduct had unduly consumed the community’s policing resources and judicial sentencing resources.[34] He also agreed that his appalling traffic history indicated that he had presented a risk to other road users.[35] These concessions are, in my respectful view, rightly made. The Applicant has a criminal history spanning almost a decade involving convictions for something in the order of 60-70 offences. Both his criminal history and traffic history involve a pattern of intensely sustained offending.

    [33] See generally, Transcript, p 101, lines 29-35.

    [34] See generally, Transcript, p 101, lines 37-45.

    [35] See generally, Transcript, p 102, lines 6-9.

  6. Were he to resume his pattern of violent and drug-related offending, there is little to cavil with the proposition (and finding) that significant physical, psychological and measurably material harm would befall both victims of that conduct and those around victims responsible for assisting those victims to overcome the harm they have experienced. There is likewise little to cavil with the reality that unresolved difficulties with illicit substance abuse have been at the epicentre of the Applicant’s pattern of offending conduct. The Respondent has helpfully reproduced a quote from the Final Report of the National Ice Taskforce (2015)[36] which described the disorienting effect of methylamphetamine abuse in these terms:

    ‘Unlike cannabis and heroin, ice [methamphetamine] is an extremely powerful stimulant. For some people, it can trigger psychological disturbances or violent and aggressive behaviour. Long term use may damage the brain and cause impaired attention, memory and motor skills. The distress ice causes for individuals, families, communities and frontline workers is disproportionate to that caused by other drugs.’[37]

    [36] R2, p 10 [43].

    [37] R3, p 395.

  7. I have earlier summarised the Applicant’s traffic history which demonstrates a total failure on his part to understand, respect and observe the rules governing the management and control of a motor vehicle on Australian carriageways. He has at least 16 infringements for speeding across the nine-year traffic history. Speeding imperils a driver’s capacity to properly manage the trajectory of a vehicle. It also lessens the reaction time a driver has to avoid an impact.

  8. Regulators have intentionally set speed limits commensurate with the nature of the road and the surrounding features (both natural and man-made) areas of a particular area. Those regulators have obviously formed the view that any exceeding of the stipulated speed limit has the potential for giving rise to a dangerous outcome. I have previously written of the significant risk to other road users that can result from the irresponsible and/or unlawful driving, management and control of a motor vehicle.[38] Accordingly, were the Applicant to recommit this specific part of his traffic history, it would realistically have the potential of causing catastrophic harm to other road users.

    [38] Bartlett v The Minister for Immigration and Boarder Protection (Migration) [2017] AATA 1561 at [43].

  9. To repeat, the Applicant has both an intensively committed criminal and traffic history. In my view, the Australian community would suffer measurable harm due to the significant level of resources that have been thus far deployed to deal with his conduct. The Applicant has not committed minor offences whereby he is quickly dealt with at the scene by the Police given a ‘Notice to Appear’ and then sent on his way. On the contrary, his conduct has been reckless and violent which has caused the Police to deploy a significant level of resources in an effort to control him.

  10. On 15 March 2018, four Police officers were required to subdue the Applicant. One of those officers eventually presented a taser device to bring his conduct under control. Eventually, ‘Police used an open hand tactic to subdue [the Applicant] who continued to resist.’[39] On 14 January 2022, an incident was reported to Police via a triple-zero emergency call. This caused ‘Multiple Police Units were sent to the scene Priority Two (emergency red and blue flashing lights and sirens) attending the scene’.[40] Upon arrival the Police were confronted by the Applicant who shouted profanities at them such as to say ‘fuck you, you white cunt, I’m a black fella, fuck you, you white shit’. In the course of trying to subdue him the Police actually deployed a taser. The Applicant then refused to be subdued and proceeded to kick one of the intervening Police officers trying to restrain him resulting in the Police officer sustaining a soft tissue injury.

    [39] R3, p 2.

    [40] R3, p 80.

  11. This is not idle offending which the Police would regard as ‘run-of-the-mill’ law enforcement. It is offending that has required the allocation of significant Police resources to bring under control. A similar argument (and finding) can be made about the extent to which the totality of the Applicant’s history has unduly consumed the community’s judicial sentencing resources.

  12. I have had regard to the totality of the Applicant’s offending history. I am satisfied that in the event of its recommission, the nature of the harm it would cumulatively represent to either individual victims or the Australian community would range from psychological harm, physical harm, measurably material harm up to, quite conceivably, catastrophic harm in the event of its recommission. I so find.

    The likelihood of the non-citizen engaging in further criminal or other serious conduct

    Independent evidence

  13. There is no current or historical independent clinical assessment and reporting on factors predisposing the Applicant to offend and the extent to which those factors are under some kind of clinical management and control such as to now reliably speak to the extent of the Applicant’s recidivist risk. To the best of my understanding of the material, there are two relatively recent reports speaking to his recidivist risk. First, there has been recidivist risk testing conducted by Queensland Corrective Services (‘QCS’) most recently on 14 November 2022 and, prior to that, on 26 March 2020. On 14 November 2022 QCS conducted a Risk of Re-Offending Assessment (RoR-PV). The salient part of that report notes that the Applicant scored a total of 16 points. The report also notes the following: ‘(Range of Scored 1 to 22: 22 being highest risk of re-offending).’[41]

    [41] R3, p 331.

  14. The QCS referred to this testing result of 14 November 2022 in determining the Applicant’s security classification.[42] In its letter of 5 December 2022, the QCS determined that the Applicant’s ‘Approved Security Classification’ to be ‘Low’. However, the report goes on to say that:

    ‘You have been assessed as having a Risk of Reoffending Prison Version (RoR- PV) score of 16 which indicates you fall into the category of prisoners who pose a high risk of further general offending; however, I note that this score does not indicate your risk of violent re-offending. You are not recommended for participation in programs aimed at addressing offending behavior [sic] as you have been assessed under the Immediate Placement Considerations.’[43]

    [My emphasis]

    [42] R3, p 352-354.

    [43] R3, p 352.

  15. Second, the QCS conducted an earlier Risk of Re-Offending Assessment (RoR-PV) test on the Applicant on 26 March 2020. The salient part of that report notes that the Applicant scored a total of 19 points. The report also notes the following: ‘(Range of Scored 1 to 22: 22 being highest risk of re-offending).’[44] The QCS referred to this testing result of 26 March 2020 in determining the Applicant’s security classification.[45] In its letter of 15 April 2020, the QCS determined that the Applicant’s ‘Approved Security Classification’ to be ‘High’. This report goes on to say that:

    ‘You have been assessed as having a Risk of Reoffending (RoR-PV) score of 19 which indicates you fall into the category of prisoners who pose a high risk of further general offending, however I note that this score does not indicate your risk of violent re-offending. I note that you have demonstrated a poor response to community supervision as evidenced by your return to custody. You were released to court ordered parole on 18/4/2019 and your parole order was automatically cancelled on 18/3/2020 when you were sentenced for offences committed whilst subject to parole. I note that 125 days of time not served has been calculated from the date you reoffended 14/11/2019 to the day before you were sentenced (17/3/2020).’[46]

    [My emphasis]

    [44] R3, p 333.

    [45] R3, pp 355-357.

    [46] R3, p 355.

  16. The Applicant was taken to the most recent of these two QCS recidivist risk assessments during cross-examination. His response to the assessed recidivist risk in this most recent report was put in less than convincing terms:

    ‘MS HELSDON: This is a Queensland Corrective Services risk of reoffending assessment dated 14 November 2022. You see that?

    MR SKIPPER: Yes.

    MS HELSDON: At the bottom of the page it gives you a total. The second bottom line says, ‘Total, 16’?

    MR SKIPPER: Yes.

    MS HELSDON: Then the last line says, ‘Range of scores, 1 to 22,’ 22 being the highest risk of reoffending. Given your total of 16, I mean, do you have anything to say about this document?

    MR SKIPPER: This was done off the computer. So when I first went into gaol I – that’s my – I think that is my – because when I went to the farm, I was on a – I was on – what’s it called? A low classification. When I first entered – if I’m correct, when I first entered to prison, just would’ve been just an old score from the last time I was in gaol. And then I went to low classification, which made me eligible to go to Palen Creek Farm. And I spent, I think, the last two months of my time at Palen Creek Farm.

    MS HELSDON: In terms of the risk of reoffending being 16, would you say that’s a moderate-high risk of reoffending?

    MR SKIPPER: I can’t answer that question, to be honest. But all I can say is I’ve – 17 months away from my family for driving.’[47]

    [47] Transcript, p 47, lines 16-35.

    The Applicant’s own evidence on recidivist risk

  17. In his Personal Circumstances Form[48] (‘PCF’) the Applicant responds to certain questions about the factors behind his offending and his level of recidivist risk in these terms:

    ‘10. CRIMINAL HISTORY AND RISK OF REOFFENDING

    Outline any factors you believe help explain your offending, that you want the decision-maker to take into account.

    As a small business owner of Dun Rite Cleaning Services. i [sic] take pride in my Job [sic] & customer service that doesn’t excuse my driving disqualified. I’m a bond cleaner and all of my clients pay a full deposit & rely on my team to receive their full bond refu [sic] . On the day of my offence my driver was uncontactable. I took it on board to get to th [sic] location to finish the job since the following day was [the] deadline. My client deposit $1700. I.ve been running my business successfully for almost 2yrs. I have 20 Star google rating & review due to my professionalism and work ethic. I’m contracted to major cleaning companies & realestates [sic]. I also attain [sic] Jobs through word of mouth. I’m good at meeting deadlines and highly recommend [sic] in the cleaning Industry. I love my Job love what I do. I’m good at getting positive results & very passionate at my Job. I’m embarrass and sorry for driving. My employees are relying on me for work upon my release from prison.

    If you have completed any courses or programs that will help you to avoid further offending, provide details of these and attach evidence.

    Queensland traffic offenders programs. I am willing to attend any courses or programs if needed to..’[49]

    [Bold in original]

    [48] That is, the Personal Circumstances Form prepared as part of his representations to revoke the second mandatory cancellation of his Visa.

    [49] R1, p 78.

  18. Earlier in this PCF, the Applicant purports to express regret for his offending. He expresses that regret in these terms:

    ‘Provide information on what you believe to be the risk of you offending in the future, and your supporting reasons

    I believe and Know [sic] I won’t reoffend as I have a responsibility to my kids, my family, my employees and the community this time in prison has been an eye opener for me I have missed birthdays, [C]hristmas and new years with my family and will miss the birth of my 2nd child to my partner. My family means the world to me. My family has suffered enough consequences for my actions and don’t deserve to suffer anymore. I know I will be a better role model & father for my family. I’m deeply sorry to my family & community and have learnt a valuabl [sic] lesson. My past offending doesn’t define who I am but I believe I deserve another chance to prove I will be a changed man.’[50]

    [Bold in original]

    [50] R1, p 78.

  19. There is a typed statement comprising one of the attachments to the Applicant’s PCF. He acknowledges the unacceptable nature of his offending pattern and attributes it to (1) difficulties with spending time with his minor children; (2) dealing with the deterioration of his mother’s health; and (3) his difficulties with illicit drug abuse:

    ‘I am writing this letter with a heavy heart and deep remorse over my actions that led to the cancellation of my temporary visa TY444. I understand that my actions are unacceptable and that my behaviour has not only affected my family but also the community, through this time spent not only in prison but also in the detention centre has given me alot [sic] of time to reflect on my past offences that has contributed to the cancellation of my visa TY444. From the duration time 2013 to 2017 was one of the most toughest time of my life I have had to deal with not only with the separation from my partner but also my kids mother not returning my kids back into my custody, I was also dealing with the deterioration of my mother health who was diagnosed with cancer she has raised me as a sole parent her whole life and going through this tough process I found it hard to deal with. It lead [sic] to me using drugs and criminal activities which were not ordinary behaviour for me as the years went by I found myself with a new circle of friends and my drug use increased majorly I was soon to be incarcerated…’[51]

    [51] R1, p 83.

  20. In this statement he provides no substantive explanation for reoffending after his release from criminal custody in 2020:

    ‘Even though I was released i was still finding it difficult to deal with my past addictions and personal matters…

    …..

    …upon my release [sic] 12th November 2020 I made the choice that I wasn't going to live life the way I did in the past. I started my own business for cleaning services I've worked hard for the past yr and a half payed [sic] my contribution as a law abiding citizen as a business owner I attained contract work through the real estate and major companies Ive employed employees through job service providers I'm so embarrassed that I am in the detention centre at this present moment I regret disregarding the law and it has really opened my eyes to what's really important in life like my family my kids my partner but most of all being there for them when they need m[e].’[52]

    [52] R1, p 83.

  21. In his two most recent statements, the Applicant repeated the factors behind his offending comprising (1) a tempestuous end to a previous relationship; (2) his mother’s illness; and (3) his difficulties with drug and alcohol:

    ‘Most of my charges was due to personal matters from my mother terminal illness to an unhealthy spilt up with my old partner. The way I dealt with these matters was through drugs and alcohol which lead to a hard working man/father making the wrong choices and I end up with a new circle of friends as time carried on I spiralled out of control since meeting my partner Chrystal Cahill I have calmed down and found peace and prosperity …’[53]

    [53] A1, [7].

  22. In a further statement filed for the purposes of this instant proceeding, the Applicant says he is ‘very remorseful’ for his unlawful conduct and that he is otherwise ‘a decent man’. He refers to his familial responsibilities and the period of time he has had for reflection in immigration detention as protective factors against his future recidivist risk. He refers to the rehabilitative courses he has completed ‘to help with my rehabilitation’:

    ‘I am writing this letter first off to say that I am sorry and I'm very remorseful for my actions and the risk I put my community in but in all honesty I am a decent man. I have been in a relationship with my partner Chrystal Cahill who identifies as Indigenous Australians we have been together for atleast [sic] 7yrs and engage for about 3 and a half yrs we have 2 babies [Child NJ] who is 3 yrs of age and [Child N] who is 1 yrs of age. Throughout my incarceration I have had a lot of time to think throughout my 15 months away from my family Through that time I have done counselling with in the centre I have enrolled myself in drug and alcohol counselling I have also completed numerous courses to help with my rehabilitation’[54]

    [54] A2.

...........[SGD]......

Associate

Dated: 1 May 2024

Dates of hearing: 2 and 3 April 2024
Representation for the Applicant: Self-represented litigant
Solicitor for the Respondent: Ms Leith Helsdon (Special Counsel)
Sparke Helmore Lawyers

ANNEXURE A

EXHIBIT DESCRIPTION OF EVIDENCE DATE OF DOCUMENT DATE RECEIVED
RESPONDENT SUBMISSIONS
R1 G documents Various 24 January 2024
R2 Statement of Facts, Issues and Contentions 12 March 2024 12 March 2024
R3 Tender bundle Various 12 March 2024
APPLICANT SUBMISSIONS
A1 Applicant’s statement dated 19 February 2024 19 February 2024 19 February 2024
A2 Applicant’s undated statement Undated 19 February 2024
A3 List of minor children Undated 19 February 2024
A4 Family details Undated 19 February 2024
A5 Employment history Undated 19 February 2024
A6 Letter from Dr McLean regarding Ms Cora Randall 14 September 2020 8 February 2024
A7 Applicant’s reintegration plan, counselling session documents and bundle of certificates Various

8 and 15 February 2024
A8 Letter of support from Ms Nakita Skipper Undated 19 February 2024
A9 Bundle of employment contracts Various

16 February 2024
A10 Bundle of financials and invoices Various

19 February 2024
A11 Bundle of miscellaneous business documents Various

16 February 2024
A12 Bundle of payslips Various

19 February 2024
A13 Bundle of photos Undated

8 and 19 February 2024
A14 Drawings by [Child NJ] Undated

19 February 2024
A15 Video files (x 2) Undated

19 February 2024
A16 Hand-written stated from Ms Chrystal Cahill Undated 19 February 2024
A17 Hand-written statement from Ms Cora Randall Undated 19 February 2024

ANNEXURE B

Administrative Appeals Tribunal

ADMINISTRATIVE APPEALS TRIBUNAL              )

)    No: 2024/0332

GENERAL DIVISION  )

Re: Raymond Skipper

Applicant

And: Minister for Immigration, Citizenship and Multicultural Affairs

Respondent

DECISION

TRIBUNAL:              Senior Member Theodore Tavoularis

DATE:   11 April 2024

PLACE:                    Brisbane

DECISION:Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal affirms decision made on 17 January 2024 made by a delegate of the Respondent to not revoke the mandatory cancellation of the Applicant’s Class TY Subclass 444 Special Category (Temporary) visa.

The Tribunal will give written reasons for this decision within a reasonable time of the decision.

……….............[SGD].............................

Senior Member Theodore Tavoularis


Key Legal Topics

Areas of Law

  • Immigration

  • Administrative Law

  • Statutory Interpretation

Legal Concepts

  • Judicial Review

  • Natural Justice

  • Procedural Fairness

  • Statutory Construction

  • Jurisdiction

  • Standing

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