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

[2023] AATA 3066

Tkatschenko and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3066 (27 September 2023)

Division:                  GENERAL DIVISION

File Number:          2023/4966

Re:Christopher Tkatschenko

APPLICANT

AndMinister for Immigration, Citizenship and Multicultural Affairs

RESPONDENT

DECISION

Tribunal:Mrs J C Kelly, Senior Member

Date:27 September 2023

Place:Sydney

The reviewable decision is affirmed.

................................[sgd].......................................

Mrs J C Kelly, Senior Member

Catchwords

MIGRATION – visa was mandatorily cancelled previously and then revoked by a differently constituted Tribunal – applicant reoffended – mandatory cancellation of visa under s 501CA(4) because applicant did not pass the character test – whether there is another reason why the cancellation decision should be revoked – Ministerial direction no.99 – protection of the Australian community – family violence – strength, nature, duration of ties to Australia – best interests of minor children in Australia – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed – reviewable decision affirmed

LEGISLATION

Migration Act 1958 (Cth)

CASES

FYBR v Minister for Home Affairs [2019] FCAFC 185

Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524

Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; 97 ALJR 488

Suleiman v Minister for Immigration and Border Protection [2018] FCA 594

XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6

SECONDARY MATERIALS

American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013)

Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA

European Commission (TNS Opinion and Social), ‘Europeans and Their Languages’, Special Eurobarometer 386 (June 2012)

REASONS FOR DECISION

Mrs J C Kelly, Senior Member

27 September 2023

The decision under review

1. The Applicant, a 29 year old citizen of Germany, has resided in Australia since June 2000. On 5 July 2023, a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa under section 501CA(4) of the Migration Act 1958 (Cth) (the Act). That is the decision under review.

   The issue to decided

2. Both parties accept that the Applicant does not pass the character test (defined in section 501(6) of the Act) because he was sentenced to an aggregate term of imprisonment of three years and six months. Therefore, the issue to be decided is whether there is another reason why the cancellation decision should be revoked under section 501CA(4) of the Act, having regard to the considerations prescribed by ‘Direction No. 99 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA’ (Direction 99).

   Direction 99

3. Paragraph 5.2 of Direction 99 sets out six principles (the Principles) that provide the framework within which decision-makers should approach the task of deciding whether to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act. Informed by the Principles, the decision-maker must take into account the primary and other considerations in Part 2 of Direction 99 in deciding whether to revoke the mandatory cancellation of a visa.

4. Direction 99 requires that information and evidence from independent and authoritative sources should be given appropriate weight, and primary considerations should generally be given greater weight, although ‘other considerations’ should not necessarily be treated as secondary in all cases.[1]

   [1] Paragraph 7(1)-(2) of Direction 99; Suleiman v Minister for Immigration and Border Protection [2018] FCA 594, [23]-[32].

5. I will address each of the considerations that is relevant in this case after setting out a summary of the evidence that provides the context for the Applicant’s offending and his criminal history. The considerations impact on victims and impact on Australian business interests were not raised by the evidence or the parties and I do not address them.

   Preliminary issues

6. There are two preliminary issues to address. 

7. First, the Applicant’s visa has been mandatorily cancelled previously. He pursued his rights to seek revocation of that decision to this Tribunal. On 19 November 2018, a differently constituted Tribunal decided that there was another reason why the previous cancellation decision should be revoked. The Applicant contends that the judgement in XJLR v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 6 (XJLR) is authority for the proposition that he was ‘deemed’, by reason of the previous Tribunal decision, to not pose an unacceptable risk to the Australian community on 19 November 2018 and therefore the Tribunal may not take into account his criminal offending before that date in deciding this application. Alternatively, the Applicant contended that his previous criminal record should be given little weight.

8. This case concerns the exercise of the power pursuant to section 501CA(4) of the Act to revoke a mandatory cancellation decision. XJLR was concerned with the validity of the mandatory cancellation decision made pursuant to section 501(3A) of the Act because the person does not pass the character test. The majority, Rares and Yates JJ, held that the mandatory cancellation decision was invalid because it relied on the same period of imprisonment as a previous mandatory cancellation decision had relied, and therefore the power was spent. That is not this case. A different period of imprisonment based on new offending is the basis for the mandatory cancellation decision in this case.

9. I do not accept the contention that the Applicant was ‘deemed’ not to pose an unacceptable risk in the 2018 decision and that somehow this Tribunal is bound by that decision. The Tribunal decided in that case that there was another reason to revoke the mandatory cancellation decision then in issue, taking into account the evidence before it at that time.  My task is to consider a new reviewable decision arising from later, different offending, taking into account the Applicant’s present circumstances and his history as disclosed by the evidence in this case.

10. The second preliminary issue arises from the fact that the Applicant has a criminal record as a minor in New South Wales. In Minister for Immigration Citizenship, Migrant Services and Multicultural Affairs v Thornton [2023] HCA 17; 97 ALJR 488 (Thornton), the plurality in the High Court, Gageler and Jagot JJ, and Gordon and Edelman JJ, held that section 85ZR of the Crimes Act 1914 (Cth) prohibited an administrative decision maker taking into account a finding of guilt in circumstances where no conviction was recorded for the offence because of the operation of section 184(2) of the Youth Justice Act (Qld).

11. Currently the case of Lesianawai v Minister for Immigration, Citizenship and Multicultural Affairs (S12/2023) is before the High Court. The question to be decided is whether the equivalent New South Wales statute attracts the operation of section 85ZR of the Crimes Act 1914 (Cth) in the same way as the Queensland statute does.

12. The Respondent’s position is that the reasoning in Thornton does not extend to the equivalent New South Wales statute and that, in any event, the Tribunal is able to take into account the underlying conduct where probative material exists of that conduct aside from the finding of guilt itself, which it says is this case.

13. Having raised the matter, the Respondent submitted that the Tribunal was not required to resolve that question for the purpose of determining the issues before it and the Minister does not place significance on the Applicant’s conduct when he was a minor that was dealt with in Children’s Court. I therefore do not consider that conduct.       

    Criminal history and other relevant events

14. The Applicant has been found to have committed the following offences as an adult and the following sentences have been imposed. All offences were dealt with by local courts in New South Wales except where specified. Other relevant events are also included.

Date of Offence/Event	Date of Conviction	Offence/Event	Penalty/Result
3 February 2012	29 March 2012	· Possess prohibited drug	· section 10 bond for six months
21 February 2012	5 April 2012	· not pay train fare and hold valid ticket offences	· $250 fine
23 February 2012	12 April 2012	· not pay train fare and hold valid ticket offences	· $150 fine
21-22 January 2012	17 July 2012	· Affray	· 10 months’ imprisonment w/ a five month non parole period subject to supervision
22 February 2013	21 May 2013	· Drive with low range PCA	· section 10 bond for eight months
2 April 2015	20 May 2015	· Drive motor vehicle while licence suspended – 1st off	· section 9 bond for two years, ‘to attend for counselling, educational development, drug or alcohol rehab. Supv NSW prob services’ and 12 months driver disqualification
22 March 2015	28 May 2015	· Enter inclosed land not presc premises w/o lawful excuse	· $550 fine
8 May 2015	9 July 2015	· Possess prohibited drug	· section 9 bond for nine months, ‘Supv NSW Prob Service’
July 2015	· Birth of Child 1
9 September 2015	5 January 2016	· Contravene prohibition/restriction in AVO (Domestic)	· Imprisonment for 2 months commencing 12/10/2015
		· Stalk/intimidate intend fear physical etc harm (domestic)-T2	· Imprisonment for 3 months commencing 12/10/2015
		· Resist officer in execution of duty-T2	· Imprisonment for 9 months commencing 12/11/2015, non parole period with conditions for 3 months.
22 August 2016	4 October 2016	· Licence expired less than 2 years before – first offence	· $600 fine
20 November 2016	17 January 2017	· Bring/attempt bring thing into place of detention w/o auth	· $1,000 fine, drug to be destroyed
2 April 2015	6 December 2017	· Drive motor vehicle while licence suspended – 1st off	· (call up) $750 fine
19 December 2016		· Possess unauthorised firearm-T2	· Imprisonment for 6 months commencing 21/12/2016
		· Assault occasioning actual bodily harm-T2	· Imprisonment for 18 months commencing 21/12/2016, non parole period with conditions 12 months concluding 20/12/17 release subject to supv drug and alcohol rehab
13 December 2017	· Original mandatory visa cancellation decision made
20 December 2017	· Applicant transferred from prison to immigration detention
24 August 2018	· Decision made not to revoke visa cancellation decision
19 November 2018	· Tribunal made the decision to revoke the mandatory visa cancellation	· The Applicant was released from immigration detention shortly thereafter
26 July 2019	15 October 2019	· Drive vehicle, illicit drug present in blood etc – 1st off	· $550 fine, disqualification – driver 6 months
November 2019	· Birth of Child 2
9 May 2020 (charged on 8 July 2020)	District Court of NSW 10 December 2021	· Reckless wounding – in company-T1	· Imprisonment for 3 years and 6 months commencing 08/07/2020 concluding 07/01/2024; non parole period with conditions 2 years ending 07/07/22
7 July 2022	· Applicant transferred from prison to immigration detention

Primary considerations

Protection of the Australian community

1. When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity by non-citizens. Entering or remaining in Australia is a privilege conferred on non-citizens in the expectation that they are, and have been law abiding, will respect important institutions, and not cause or threaten to harm individuals or the Australian community.[2]

   [2] Direction 99, paragraph 8.1(1).

2. There are two factors in relation to the protection of the Australian community:

   (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.

   The nature and seriousness of the non-citizen’s conduct to date

3. The Applicant has committed violent offences in 2012, 2016 and 2020. 

4. The affray in 2012 was a brawl at a railway station on 21 January 2012 involving four males, including the Applicant. He was sentenced to imprisonment for 10 months from 13 July 2012 with a five month non parole period. That he was sentenced to imprisonment, the last resort in the sentencing hierarchy, for his first offence indicates that it was serious.

5. The 2016 assault occasioning actual bodily harm was a prolonged assault on an associate, which included an attempt to stab the victim. The Applicant was sentenced to 18 months imprisonment with a 12 month non parole period. The Applicant was also found to be in possession of an imitation firearm, for which he was sentenced to 6 months imprisonment.  The Applicant said that he had no independent memory of the incident. They were at a party, all using drugs including ice, heroin and Xanax. The argument started because the victim was wearing the Applicant’s jewellery.

6. After being released from immigration detention in November 2018, he did not reoffend until May 2020 when he committed the offence of reckless wounding in company. He was drug affected. The Applicant threw punches at the male victim and stabbing him twice during a physical altercation with a co-offender on a residential street. The victim sustained two 2cm wounds to his abdomen and chest. The Applicant was sentenced to imprisonment for three years and six months with a non parole period of two years.

7. The sentencing judge took into account the following. There was a degree of provocation on the part of the victim, however it was a serious offence. The Applicant had suffered neglect and violence while living with his father who consumed alcohol heavily, and he witnessed domestic violence, leading him to run away aged 14. He had a history of offending. He had been sexually abused while in juvenile detention. He had shown a positive attitude while on remand. He had sustained a punctured lung aged 15 when an associate stabbed him and was admitted to ICU for emergency treatment. Some months before the 2020 offence, the Applicant had been stabbed to the back of the arm and chest by an associate and was treated in hospital.

8. The sentencing judge concluded that the Applicant would require counselling and treatment in the community to address his substance abuse and anger management issues. She determined that the offence fell below the middle of the range of objective seriousness.

9. Those violent offences are viewed very seriously by the Australian Government and the Australian Community. The prison sentences imposed reflect a trend of increasing seriousness of the Applicant’s violent offending. 

10. The 2016 convictions were for three offences that were committed on 9 September 2015 following a meeting between the Applicant and the mother of the Applicant’s first child (Child 1) that had been arranged at a hotel in order for the Applicant to see Child 1 who was about seven weeks old.  During the meeting, a friend of the mother arrived. They all drank alcohol.  An argument broke out between the mother and her friend. The Applicant got involved. The mother tried to leave with Child 1. The Applicant swore at her and grabbed the pram and walked to the other side of the bar. An argument broke out among all parties present and the Applicant yelled abuse. A staff member asked them all to leave. The Applicant left with Child 1 in the pram. The mother went to the local police station. She called the Applicant in the presence of police to ascertain where he was with Child 1. The stalk/intimidate intend fear physical etc. harm (domestic) involved the Applicant abusing and threatening the mother over the telephone, including that she would never get Child 1 back and that he was going to break her jaw. The offence was an act of family violence which is regarded very seriously by the Australian Government and the Australian community. He was subject to an Apprehended Violence Order (AVO) which he breached.

11. The resist officer in execution of duty offence was committed when the police tried to arrest the Applicant. The Applicant said that he was waiting for his mother to arrive to take Child 1. The Australian Government and the Australian community consider such an offence to be serious. 

12. The imposition of sentences of imprisonment for each of those offences reflects the seriousness of the offending.

13. The Applicant has offended repeatedly from 21 January 2012 until his arrest on 8 July 2020, a period of eight years but during a period of about five years and three months when he was in the community and not in prison or immigration detention. He committed a variety of offences and incurred increasingly lengthy prison sentences. He reoffended after his visa had been mandatorily cancelled and he had been successful in having that mandatory cancellation decision revoked. He was well aware of the consequences of further offending in terms of his non-citizen migration status. 

14. The Respondent pointed to a group of records from the Applicant’s most recent period in  immigration detention which it claimed was of concern.  A clinical record dated 14 July 2022 shows that the Applicant had been received into immigration detention and had spent 7 days in covid isolation which was finishing that day. A drug analysis of the same date of urine collected on 12 July 2022 showed that the Applicant tested positive for an amphetamine type substance and buprenorphine. A clinical note dated 18 July 2022 recorded that the Applicant stated that he was injecting ‘Bupe’ daily and smoked ice whenever he does not have Bupe. He had last injected half a strip that morning using his own needle. He denied sharing needles.

15. I will address his drug use in more detail in relation to the risk to the Australian community.

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

16. The nature of the harm to individuals should the Applicant engage in further criminal offending is serious physical injury, possibly death, and serious psychological injury.

17. The Applicant’s mental health, behaviour, and drug use are central to the assessment of the likelihood that he will reoffend. 

18. Ms Julie Dombrowski, psychologist, prepared a report dated 1 October 2021 at the request of solicitors then acting for the Applicant who required the assessment to examine psychological factors of possible relevance to his sentencing for his most recent offence, reckless wounding in company.  Ms Dombrowski spent one hour interviewing the Applicant by AVL.

19. It is necessary to set out Ms Dombrowski’s opinion and recommendations for the management of the Applicant in detail:

    He was using heroin and non-prescribed benzodiazepine heavily throughout the offending period to manage negative thoughts and feelings associated with childhood physical and sexual abuse. He had had a long-standing altercation and had received threats from the victim’s associates. He believed the victim intended to harm him, took possession of his knife and wounded him with it to protect himself from being harmed. He had used heroin, methylamphetamine and benzodiazepine heavily before the subject offending. His substance use likely impaired his judgement (and disinhibited his behaviour) at that time. He expressed remorse for his decision making and offending.

    Mr Tkatschenko’s offending is best understood within the context of his developmental history. He has a history of substantial disadvantage. His father removed him from his mother’s care at age two (and the quality of care he received while in his care during early childhood remains unknown). His father physically abused him, he regularly witnessed domestic violence and parental substance abuse, and he ran away from home to escape his father's violent abuse. Two workers also sexually abused him during mid-adolescence whilst he was in juvenile detention. He received little caregiver supervision and guidance during adolescence to manage these experiences or to positively shape his social and moral development. These experiences have resulted in the development of a man with lifelong emotional/psychiatric impacts consistent with Complex Posttraumatic Stress Disorder (e.g., intrusive thoughts and nightmares associated with past abuse; alterations to physiological arousal, panic attacks, feeling chronically unsafe; strong and overwhelming negative emotions, suicidal ideation; avoidant of intimacy and confined spaces). These experiences have disrupted his education/employment and relationships [e.g., difficulty forming trust, and forming antisocial peer associations that normalize (and possible glorify) his use of violence as a conflict resolution strategy]. He uses substances (primarily non-prescribed benzodiazepines and heroin) to manage negative thoughts and feelings associated with his experiences of physical and sexual abuse. His substance use further undermines the quality of his psychosocial functioning.

    High levels of stress and anxiety throughout the full course of Mr Tkatschenko's developmental years has likely interfered with the normal development of the frontal areas of his brain (the area of the brain responsible for higher-level cognitive processes such as emotional and behavioural regulation and moral reasoning and judgement) and shaped the development of an unstable personality structure (i.e., the lens through which he perceives, relates to, and thinks about the world and himself). Based on his history, his personality structure appears most in keeping with a Cluster B (Dramatic/Erratic) personality with antisocial features. His unstable personality structure operates on the background of his complex trauma. The emotional intensity and instability of people with Cluster B personality types increases their risk of engaging in emotionally reactive behaviours and falling foul of the law. The subject offending (and much of his past offending) functions from his unstable personality structure, complex trauma (arising from his childhood experiences of physical and sexual abuse), and his substance use. Antisocial peer association is also a critical factor in his offending.

    Management of Mr Tkatschenko’s personality functioning (and the erratic thoughts, feelings and behaviours that characterize his personality functioning, including his substance use) is needed to minimize his risk of re-offending and to support his psychological wellbeing more generally. It will be critical that his treatment targets his experiences of childhood physical and sexual abuse to achieve long-term treatment gains. He has never completed a therapeutic program and as such is largely naive to the therapeutic process. He will benefit from a pre-treatment program of motivational interviewing to increase his treatment readiness. Treatment will need to be delivered by a clinical or forensic psychologist who has experience treating people with unstable personality structures, complex trauma and substance use. Treatment will need to be ongoing for several years to be effective. He will also benefit from medical assessment and treatment for opioid dependency to reduce his reliance on non-prescribed buprenorphine whilst in prison.

    Management of psychosocial factors such as accommodation/housing, vocational training/employment, and social activities/peers will be important to support his rehabilitation. He will require professional monitoring and supervision (such as that which can be provided by Community Corrections NSW) to support his engagement in treatment and stable functioning in the community.

1. The previous Tribunal referred to the report of Dr Alexey Sidorov, consultant forensic psychiatrist dated 25 October 2018. The report was not in evidence in this case. The Applicant told Ms Dombrowski that he did not tell Dr Sidorov of the sexual abuse that he had reported to her.  

2. Following is a summary Dr Sidorov’s opinions as set out in the Tribunal’s 2018 decision. 

3. The Applicant meets the diagnostic criteria for Antisocial Personality Disorder according to DSM-V.[3] While not meeting the full diagnostic criteria for Borderline Personality Disorder, he displayed significant features of the condition, including being unable to control his anger at times, acting in an impulsive manner and at times perceiving others’ attitudes towards him as being negative or persecutory. The Applicant meets the diagnostic criteria for Substance Use Disorder – alcohol and benzodiazepines. He had a past history of Cannabis Use Disorder and a possible history of Drug-Induced Psychosis when he used the drug ice.

   [3] American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013).

4. The Applicant should indefinitely abstain from alcohol and other substance use, under the care of an addiction medicine specialist and with ongoing drug and alcohol counselling and possible adjunctive pharmacotherapy.

5. With regard to his Antisocial Personality Disorder and Borderline Personality style features, it would be beneficial for the Applicant to engage in long-term psychotherapy in order to shift some of his entrenched and longstanding behavioural patterns that are harmful to him and those around him. When Antisocial Personality Disorder is diagnosed in the patient’s mid-twenties, there is little prospect of cure. However, the associated behaviour can be controlled if the patient received long-term psychotherapy and has employment and a stable relationship. The risk of reverting to his previous patterns of behaviour would be significantly mitigated if he does not associate with criminal elements, abstains from substance use and engages in pro-social activities. Continued use of drugs and alcohol would increase the likelihood of reoffending because he would be more likely to associate with criminal offenders and the use would make it more likely he would engage in violent behaviour, particularly given his historical pre-disposition to violence.

6. If the Applicant adhered to the proposed treatment, engaged in his regular employment as a scaffolder and is able to re-engage with his family and Child 1, it is likely that his risk of future re-offending would be significantly mitigated. 

7. Motivation alone to address his behavioural and substance abuse problems is insufficient and there will need to be a good plan in place with support from medical services and personal supports. Without this, the relapse rate is high. (Emphasis added.)

8. The Applicant has a history of non-compliance. Therefore, the likelihood of him adhering to a treatment plan is ‘mild but not impossible’. The positive factors in his life that may contribute towards him adhering to a treatment plan are his relationship with Child 1 and his commitment to his religion.

9. The Applicant had told Dr Sidorov and the Tribunal in 2018 that he had converted to Islam which had taught him to be a calmer person and to think about actions and consequences prior to acting. Islam had taught him to be motivated by love and to be more accepting of others. It had helped him to turn away from alcohol and other drugs.

10. There was no mention in this proceeding that the Applicant was an adherent of any religion.

11. The Tribunal recorded in the 2018 decision that the Applicant acknowledged that he required ongoing psychological treatment and expressed his intention to commit to such treatment. He did not. 

12. He said that he wished to receive counselling and therapy and that his mother had contacted several psychotherapists but the waiting list for those who bulk billed was 18 months which got worse during and after the COVID-19 pandemic. His mother does not have the financial means to finance such therapy. He did not mention his own financial resources. Relying on his mother to find a psychotherapist does not demonstrate that he was committed to pursuing a treatment program.

13. The Applicant claims that he has changed. He expressed regret for his unacceptable actions and asked the Tribunal to take into account his history of trauma, his mental health issues, and what he now says is his past drug use and past association with anti-social peers.

14. When asked what was different, he said that he had grown a lot, had addressed the sexual abuse, and stopped taking drugs and does not speak to anti-social individuals. He has another child to whom he is very close. He is no longer that angry person. 

15. The Applicant emphasised that he had not been involved in incidents while in prison or immigration detention during the last three years. That is in contrast to his involvement in one incident in prison in 2017 and six incidents in immigration detention in 2018 as set out in the Tribunal’s 2018 decision. I accept that evidence.   

16. The Applicant claimed in his written evidence that he has not used drugs since his arrest in July 2020.  

17. Almost 16 months after the Applicant’s arrest, Ms Dombrowski referred to his reliance on non-prescribed buprenorphine whilst in prison.

18. The Corrective Services NSW Pre-Release report dated 19 April 2022 states that the Applicant admitted to the occasional use of buprenorphine since being incarcerated. He completed the Remand Addictions program from 11 January to 8 February 2021 and had attended a number of Narcotics Anonymous meetings while incarcerated but after moving to a different facility and the COVID-19 restrictions coming into force, he was unable to access any substance abuse inventions.

19. Despite the seriousness of his violent offending, the Applicant was deemed ineligible for offence related programs. He was assessed at a medium risk of reoffending according to the Level of Service Inventory – Revised. For the first six weeks following release, he must have weekly contact with the Community Corrections Officer (CCO), including a home visit in the first two weeks. After that, contact with the CCO was every two weeks, including a home visit every eight weeks.

20. The report recommended parole. The supervision requirements were that the Applicant obtain a mental health care plan from his GP so he can engage with a Forensic Psychologist to address his history of psychological and physical trauma. He will be referred to an Alcohol and Drug Clinic for assessment for suitability for an opioid treatment program. During his interview with his Community Correction Officer, he will be required to participate in Practice Guide for Interventions exercises that may assist him to understand his criminogenic factors. The modules will include managing stress and anger, conflict resolution and managing the environment. He will be referred to the next available EQUIPS Aggression Program.

21. Regular contact would be maintained with police to ensure there are no concerns regarding the Applicant’s behaviour or contact with anti-social peers. Post-release, he would live with his infant daughter, his mother, and her partner.

22. The report recommended additional conditions that he abstain from drug use and not be permitted contact with the victim.

23. Should the Applicant be released into the community, he would be subject to parole until 7 January 2024, only about three months.

24. The Applicant was transferred from prison to immigration detention on 7 July 2022.  During cross-examination he said that he had last used drugs in 2020, 2021. He had started to see drug and alcohol doctors and was on a program. He had changed from a ‘bupe’ injection to methadone.

25. He claimed that the positive drug tests on 14 July 2022 were a consequence of drug use in prison and that he had lied on 18 July 2022 because it was very hard to get on to the methadone program. You could not get on to the program if you were clean. He then said that he was on drugs and did not lie to the doctor, and was sorry, he did not mean to lie.  He had said 2021 because he made a mistake about when he got onto the program. He denied using drugs.

26. An incident report dated 3 April 2023 shows that the Applicant attended an Opioid Substitute Treatment Program and denied having any items on his person. A pat down search located a BIC lighter and a capped syringe with no needle. 

27. In his letter in response to a natural justice letter from the Department, the Applicant explained that he found the lighter on the oval and kept it to light his smokes. The syringe had been planted in his room and he hid it in his underwear in order to return it to the clinic and was stopped in a random search. ‘I was held down and that officer placed his hand into my underpants and felt my genitals where I had been carrying the plunger and the lighter’.  He believes the officer who searched him planted the syringe in his room because of the circumstances of the search, the consequent search of his room where no contraband was found, two strip searches and the treatment of his ‘girlfriend’ when she visited him from Melbourne.  

28. If he had  possession of the syringe innocently as he claimed, why did he deny having any items on him when asked? Why was it concealed in his underpants? Denying having any items in his possession raised the possibility that he would be searched.

29. I am not persuaded that the Applicant has stopped using non-prescription drugs. His evidence is inconsistent and therefore unreliable.

30. The Applicant has not engaged in any professional treatment as recommended by Dr Sidorov and Ms Dombrowski to address the issues relating to his behaviour and mental health. It appears that he has participated in an Opioid Substitute Treatment Program.  His evidence was that he would like to receive ongoing therapy from Ms Dombrowski but such treatment by her or other practitioners is impossible in prison or immigration detention and the waiting lists for bulk-billing practitioners remains long. He claimed to be talking to drug and alcohol doctors but I was not taken to any corroborative evidence, apart from the incident report about the pat down search.  

31. It is essential that the Applicant engage in the long term treatment recommended by Dr Sidorov and Ms Dombrowski if he is released into the community. Dr Sidorov’s opinion that the relapse rate is high without a good plan in place with appropriate supports, was borne out by the Applicant’s relapse when he reoffended in 2020.

32. The Applicant lacks insight into the therapy both psychologists described and the commitment it will require of him which are fundamental to minimising his risk of reoffending.  For example, he claimed to have addressed his sexual abuse in his one hour interview with Ms Dombrowski. As Ms Dombrowski observed, the Applicant is ‘largely naïve to the therapeutic process’. The parole conditions addressing his mental health and substance use will only be in force for three months.   

33. Just saying that he has changed and grown as a person is not sufficient. That is the same claim he made before the Tribunal in 2018. He went on to commit his most serious crime. 

34. The assessment of his mother and the family friend that the Applicant has changed is not persuasive. That was effectively their evidence before the Tribunal in 2018. Their assessment was not borne out by his subsequent behaviour.

35. The Applicant pointed to a number of matters which would assist him not to reoffend: his two children, the support he has from his mother, the family friend, a new partner of ten months, and future employment. 

36. The Applicant said that he was unemployed because of the COVID-19 pandemic when he reoffended in May 2020. I accept that being employed would assist to prevent him reoffending. He plans to undertake tertiary studies in software development with the goal of qualifying as a software engineer and programmer. 

37. The Applicant’s mother and the family friend strongly support him, as they did in 2018 and I infer all the time since then. His parole conditions require him to live with them and Child 2. 

38. He has not been in contact with Child 1 since Christmas 2022. Child 2 is cared for by the Applicant’s mother. He sees Child 2 once or twice a week and they speak five times a day.

39. Unfortunately, the support of his mother, the family friend, and his commitment to his two  children did not prevent the Applicant from reoffending in 2020. I do not consider that those protective factors will assist him not to reoffend in the absence of his understanding of and commitment to a substantive long term treatment program as set out by Ms Dombrowski and Dr Sidorov. 

40. I give little weight to the Applicant’s relationship with his new partner. The first time the relationship was raised was in his letter dated 19 June 2023. She was present at the hearing. He said that she has moved from Melbourne to Sydney and was living with his mother. He seemed to suggest that she could play a role in caring for Child 2. His mother’s evidence was that only she, Child 2, the Applicant’s father, and the family friend were living in the home, although she, Child 2 and the family friend were moving very soon. She did not mention the Applicant’s new partner.

41. A case worker who was assisting the Applicant’s mother gave evidence.  I give her evidence no weight because she was repeating what the Applicant’s mother had told her. She had had little contact with the Applicant.

42. The evidence leads me to conclude that the Applicant’s risk of reoffending is moderate to high.

43. Principle 5 of Direction 99 is relevant, that is, Australia will generally afford a higher level of tolerance of criminal 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. 

44. I am unable to agree with the Applicant that applying this principle in this case leads me to find that the consideration protection of the Australian community weighs in favour of revocation. I do afford a higher level of tolerance to the Applicant because he has lived in the Australian community for about 25 of his 30 years of life, including most of his formative years from the age of four or five, however, the nature and seriousness of his offending and the risk to the Australian community should he commit further offences, lead me to conclude that the protection of the Australian community weighs against revocation, for the reasons set out above.

    Family violence committed by the non-citizen 

45. The stalk/intimidate intend fear physical etc harm (domestic)-T2 committed on 9 September 2015 was family violence as defined in Direction 99, committed by the Applicant against his former partner, the mother of then seven week old Child 1 who was with him when he made the threats over the telephone. 

46. I accept the Respondent’s contention that the seriousness of the offence was aggravated by Child 1 being with the Applicant because that caused the child’s mother to be fearful for the safety of Child 1 as well as for her own safety. It was a serious offence for which the Applicant was imprisoned for three months commencing 12/10/2015.

47. In his Response to Natural Justice Letter dated 1 May 2023, the Applicant claimed that he had never been involved in domestic violence of any kind whatsoever and went on to state that his past offending has been violence related and confined to his peer group. His convictions and sentences of imprisonment for the above offence and for the consequential breach of AVO have not helped him to gain insight to what constitutes family violence. 

48. The Applicant’s limited rehabilitative efforts have not addressed family violence.

49. This consideration weighs against revocation.

    The strength, nature and duration of ties to Australia

50. The Applicant’s longest ties to Australia are with his parents who are permanent residents.  They have lived separately under the one roof for 15 years. He is estranged from his father. He is very close to his mother who has sole parental responsibility for Child 2 and has cared for Child 2 almost since her birth in November 2019. They both claim that the Applicant needs to remain in Australia to assist her to care for Child 2 because his mother is nearly 61 years old and although not in poor health now, she will be 76 when Child 2 is 18 years old. He is close to Child 2 and has regular contact with her in person and by digital communications.  His mother will be adversely impacted if he returns to Germany.

51. He has a close relationship with the family friend who is an Australian citizen. They have known each other for about 20 years but have become closer in the last several years. It is apparent from the correspondence that the family friend assisted the Applicant to seek revocation of the mandatory cancellation decision.

52. The Applicant’s two children are Australian citizens. Child 1 is eight years old and in the care of her maternal grandmother. He has not seen Child 1 for three years and spoke to her most recently about Christmas 2022.

53. The Applicant says that he plans to go to court to gain parental responsibility for her if he is released into the community. 

54. The Applicant’s relationships with his mother, family friend and two children have been marked by his drug use, criminal activity, and physical absence when he has been in prison or immigration detention. Most recently he has been physically absent since his arrest on 8 July 2020. His mother and Child 2 visit him in immigration detention. To the extent that he has been able to continue to contact them by means of digital communication he can do so if he is removed from Australia.

55. For the reasons given above, I give little weight to the Applicant’s claimed relationship with his new partner.

56. The Applicant claims to be involved in a compensation case in relation to his sexual abuse and that he will be unable to participate in that case if he is removed from Australia.  Whether that is so is not clear without understanding the precise nature of the case.

57. He has contributed positively to the Australian community by working during periods he has been in the community, at least until he went to prison in December 2016. Two former employers have provided letters of support dated January 2018. There is no reliable corroborative evidence that he worked after he was released from immigration detention in November 2018.  He has been ordinarily resident in Australia during and since his formative years.

58. This consideration weighs in favour of revocation.

    Best interests of minor children

59. Child 1 is eight years old and has mostly been in the care of her maternal grandmother who has prevented any communication between Child 1 and the Applicant since about Christmas 2022. She has prevented the Applicant from seeing Child 1 for about three years. He claims that he and Child 1 were close before that. Until Child 1 was five years old he used to see Child 1 when his mother had Child 1 at her house for two or three days a week. The Applicant and his mother are concerned that Child 1 is not being well treated and possibly abused and is being brain-washed to believe that he and his family are ‘rubbish people’. The Applicant plans to take court proceedings to gain parental responsibility for Child 1 and to have her medically assessed independently.

60. If he returns overseas, his capacity to gain any communication with Child 1 is negligible.

61. Court records show that an interim AVO was taken out by police on 10 April 2019 in response to a request from Child 1’s maternal grandmother who was the protected person.The matter was to go before the court on 15 May 2019.  The court records do not show that a final AVO was granted.    

62. A Parental Plan Agreement dated 26 March 2019 between the Applicant and the mother of Child 1 was in evidence. I give it no weight because the Applicant said that the mother did not comply with it. The evidence is compelling that the maternal grandmother controlled whether her daughter, the mother of Child 1, cared for the child.

1. The application for the AVO appears to have been made in response to the Applicant arriving with his mother at the home of the maternal grandmother, banging on the front door and stating that they were there to take Child 1, the maternal grandmother refusing his request and calling police, in the context of a previous threat to harm her and her family, which he denied.

2. The Applicant has not played  a significant parental role in Child 1’s life and has been physically absent from her life for a lengthy period overall. It is unlikely in the reasonably foreseeable future that he will play a positive parental role in the child’s life if he remains in Australia given the maternal grandmother’s hostility towards him. His moderate to high risk of reoffending reinforces that finding. Continuing separation will have little effect on Child 1. I give no weight to her presence during the family violence incident when she was about seven weeks old.

3. The best interests of Child 1 weigh slightly in favour of revocation.

4. Child 2 was born in November 2019. The mother of Child 2 has had no contact with the child since the mother went into custody in 2020, shortly after the Applicant went into custody. The Applicant’s 60 year old mother has played the primary parental role to Child 2 since her birth. Having her father also present to be able to care for Child 2 in the event that his mother is unable to or has reduced capacity to do so, is important.

5. On 10 June 2022, Child 2’s mother applied to the Federal Circuit and Family Court of Australia for orders preventing the Applicant and his mother removing Child 2 from Australia. She stated that she was a proud Indigenous woman. On 24 March 2023, Child 2’s mother did not appear and the court ordered that Child 2’s paternal grandmother have sole parental responsibility for Child 2. The Applicant and Child 2’s mother can spend time with Child 2 as agreed between the paternal grandmother and the Applicant or the mother or failing agreement, at the sole discretion of the paternal grandmother. Both parents are restrained by injunction from consuming any illicit substances 72 hours prior to or during the time the parent spends with Child 2. The Applicant and his mother have a Joint Parental Responsibility Agreement in respect of Child 2, as long the Applicant remains drug free and does not reoffend. The Applicant said that Child 2’s mother had returned to custody. The Applicant’s mother plans to ensure Child 2 is educated about her indigenous culture

6. The Applicant has been in prison or immigration detention since Child 2 was seven months old. Since he has been in immigration detention she sees and speaks to him regularly. She is almost four years old.  Whether the Applicant will play a positive parental role in the next 14 years of her life depends on whether he engages in appropriate long term therapy and uses drugs and reoffends.  He has a moderate to high risk of reoffending. If he left Australia, he could continue to communicate with her by digital means as he does now, which is not the same as being physically present.

7. The best interests of Child 2 weigh in favour of revocation.

   Expectations of the Australian community

8. The Applicant conceded that the consideration Expectations of the Australian community weighs against revocation of the reviewable decision but contended that individually or together with other considerations, it should not outweigh the considerations that favour revocation.

9. He has engaged repeatedly in serious conduct in breach of the Australian community’s expectation that non-citizens obey Australian laws while in Australia and that the Australian community, as a norm, expects the Government to not allow such a non-citizen to remain in Australia.[4]

   [4] Direction 99, Paragraph 8.5(1).

10. Contrary to authorities referred to by the Applicant, it is not for a decision-maker to make an assessment of the community’s expectations.[5] The decision-maker determines the appropriate weight to be given to this consideration.[6]

    [5] FYBR v Minister for Home Affairs [2019] FCAFC 185 at [66]-[67] (Charlesworth J) and at [104] (Stewart J) and Direction 99, paragraph 8.5(4).

    [6] Jacobs and Minister for Immigration and Border Protection (Migration) [2020] AATA 1524 at [72].

11. The nature of his offending is such that the Australian community would expect that his visa be cancelled. He has committed an act of family violence and a crime against a police officer.[7]

    [7] Direction 99, paragraph 8.5(2)(a) and (d).

12. The above expectations apply regardless of whether the Applicant poses a measurable risk of causing physical harm to the Australian community.[8] 

    [8] Direction 99, paragraph 8.5(2).

13. The expectations of the Australian community weigh against revocation of the reviewable decision.

    Other considerations

    Legal consequences of the decision

14. The legal consequence of a decision not to revoke the mandatory cancellation decision is that pursuant to section 198 of the Act the Applicant will be liable to removal from Australia to Germany as soon as reasonably practicable in the circumstances specified in that section and in the meantime, detained under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of the Applicant.[9] If the Applicant sought review of a negative decision, it is likely that he would remain in detention until the proceeding was determined. The Applicant has raised no non-refoulement obligations and none arise from the evidence.

    [9] Direction 99, Paragraph 9.1(1).

15. The legal consequences of the decision weigh in favour of revocation.

    Extent of impediments if removed

16. The Applicant is a young man who is in good physical health. He has mental health and substance use issues as addressed above. 

17. He spoke German until he was five years old. A Corrective Services document recorded in 2017 that English was his first language and he spoke German and Russian.  The Applicant told the Tribunal that he does not speak Russian and is not fluent in German but can understand ‘a little bit’ of German. I accept that he is not fluent in German.  However, conversational English is spoken by a majority of the German population.[10]

    [10] European Commission (TNS Opinion and Social), ‘Europeans and Their Languages’, Special Eurobarometer 386 (June 2012), 21.  

18. His inability to speak German fluently will impede his capacity to establish and maintain himself in that country until he improves his German.

19. The evidence does not suggest that the Applicant will face any substantial cultural barrier.

20. He will have no family support. His mother has no means to support him financially. There was no suggestion that his father could or would assist him. He, his mother, and the family friend were cross-examined about the possibility that was raised some time ago that his mother, Child 2 and the family friend would relocate overseas. That is not likely in their present circumstances.

21. He will have the same social, medical and economic support that is available to any German citizen. 

22. The Applicant claimed that the German economy is not doing well and jobs are limited. There was no independent country information supporting that claim.

23. This consideration weighs in favour of revocation.

    CONCLUSION

24. The primary considerations protection of the Australian community, family violence committed by the non-citizen and expectations of the Australian community weigh very heavily against revocation of the mandatory cancellation decision. The primary considerations, the strength, nature and duration of ties to Australia and best interests of minor children, and the other considerations legal consequences of the decision and extent of impediments if removed, weigh in favour of revocation. However, the considerations weighing against revocation outweigh those favouring revocation.

25. There is not another reason to revoke the mandatory cancellation decision.

    DECISION

26. The reviewable decision is affirmed.

I certify that the preceding 121 (one hundred and twenty-one) paragraphs are a true copy of the reasons for the decision herein of Mrs J C Kelly, Senior Member

...................................[sgd].....................................

Associate

Dated: 27 September 2023

Dates of hearing:	18-19 September 2023
Solicitors for the Applicant:	Mr F Nikjoo, Nikjoo Lawyers
Solicitors for the Respondent:	Mr M Burnham, Sparke Helmore