Tsiaras and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)

Tsiaras and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 808 (6 April 2020)
Division:                  GENERAL DIVISION
File Number:          2020/0378
Re:George Tsiaras
APPLICANT

AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT

DECISION
Tribunal:Member R West
Date:6 April 2020
Place:Melbourne

The Tribunal sets aside the decision under review and in substitution decides that the mandatory cancellation of the Applicant’s Class BF Transitional (Permanent) visa under
s 501(3A) of the Migration Act 1958 (Cth), is revoked.
...[sgd]...................... ......................
Member R West
Catchwords
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record and does not pass the character test – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – protection of the Australian community from criminal or other serious conduct – best interests of a minor child – expectations of the Australian community – other considerations – cancellation revoked.
Legislation
Migration Act 1958 (Cth)
Cases
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Gordon and Minister for Immigration and Border Protection (Migration), Re [2018] AATA 39
Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583
Steve v Minister for Immigration and Border Protection [2018] FCA 311
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Secondary Materials
Direction No. 79 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA – Part C
REASONS FOR DECISION
Member R West
6 April 2020
INTRODUCTION

In these proceedings, the Applicant seeks a review of the decision of a delegate of the Respondent made on 13 January 2020 not to revoke the mandatory cancellation of his Class BF Transitional (Permanent) visa, which was cancelled on 17 April 2018 pursuant to s 501(3A) of the Migration Act 1958 (Cth) (“the Act”).
The Tribunal conducted a hearing of the application on 25 and 26 March 2020. The Applicant was represented by Mr Ryan Kornhauser of counsel. The Respondent was represented by Ms Katherine Whittemore, a solicitor.
The hearing was conducted in the context of restrictions placed on the community in response to the COVID–19 virus pandemic. These restrictions necessitated that the witnesses called by the Applicant be heard by telephone. The Applicant attended the hearing and gave his evidence in person and remained in the hearing room to provide instructions to his counsel.
In conducting the review the Tribunal has had regard to:
(a)the documents produced to the Tribunal by the Respondent pursuant to s 500(6F) of the Act, sequentially numbered from 1 to 202 (G Documents), and supplementary documents produced under summons and filed by the Respondent, sequentially numbered from 1 to 326 (SG Documents);
(b)documents tendered by the Applicant and marked as exhibits as stated in Attachment B;
(c)the oral evidence of:
(i)the Applicant;
(ii)Daniel Willmott;
(iii)XY;
(iv)Amaya Alnes;
(v)Vasilikis Tsiaras;
(vi)Tania Lois Alnes; and
(vii)Tim Watson-Munro, clinical psychologist.
BACKGROUND
The Applicant is a citizen of Greece. He was born in 1967 and came to Australia in May 1969.
On 31 March 2016 the Applicant was convicted in the Downing Centre District Court of New South Wales of offences of import/export marketable quantity of border controlled drugs or plants. He was sentenced to seven years imprisonment, with a non-parole period of four years and a three year parole period to conclude on 17 March 2022.
On 17 April 2018, the Applicant was notified that his Class BF Transitional (Permanent) visa had been cancelled under s 501(3A) of the Act.
On 8 May 2018, the Applicant applied for revocation of the cancellation decision.
The Applicant was released from prison at the end of the non-parole period in March 2019 and taken into immigration detention.
The delegate of the Respondent decided not to revoke the cancellation on
13 January 2020.
The Applicant lodged an application for review of the Respondent’s decision by the Tribunal on 22 January 2020.
LEGISLATIVE FRAMEWORK
Section 501CA(4) of the Act enables the Tribunal on review to revoke the mandatory visa cancellation decision if it is satisfied that:
(i)the Applicant passes the character test as defined in s 501; or
(ii)there is another reason why the cancellation should be revoked.
The Applicant has conceded that he does not pass the character test in s 501 of the Act. The sole issue before the Tribunal in these proceedings is whether, under

s 501CA(4)(b)(ii), there is another reason why the mandatory cancellation should be revoked.
The existence or otherwise of ‘another reason’ should be established on the balance of probabilities.[1]
[1] Re Gordon v Minister for Immigration and Border Protection (Migration) [2018] AATA 39 at [57].
Section 499 of the Act authorises the Minister to give written directions to a person or body having functions or powers under that Act, provided that the directions are about the performance of those functions or the exercise of those powers. Section 499(2A) of the Act mandates that the Tribunal must comply with the directions.[2]
[2] Rokobatini v Minister for Immigration and Multicultural Affairs (1999) 90 FCR 583 at 591.
In this case, Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA (“the Direction”), applies. The Direction provides guidance for decision-makers in determining, relevantly, whether there is another reason why the cancellation of the Applicant’s visa should be revoked. Subparagraph 8(1) of the Direction provides that decision-makers must take into account the primary and other considerations relevant to the individual case.
The relevant considerations in relation to the revocation of a cancellation decision are contained in Part C of the Direction. Paragraph 13 of the Direction provides for three primary considerations. They are:
(a)Protection of the Australian community;
(b)Best interests of minor children in Australia affected by the decision; and
(c)Expectations of the Australian community.
Paragraph 14 of the Direction provides for other considerations. They include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The principles in paragraph 6.3 of the Direction reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable, and are to inform the consideration of each of the primary and other considerations. The principles in paragraph 6.3 provide a framework within which decision-makers should approach their task of deciding whether to revoke cancellation.
The principles in paragraph 6.3 are as follows:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.

(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.

(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.

(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.

(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.

(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.

(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
EVIDENCE
The Applicant
The Applicant has a criminal history in Australia commencing in 1993. A complete statement of the Applicant’s offending is set out in the National Police Certificate dated
[3] G36 at pages 176-179.
27 July 2016,[3] a summary of which is attached as Attachment A.
The Applicant gave evidence that he arrived in Australia from Greece as a one year old child with his older brother, Evangelos (aka Evan), and his parents. Another brother, Mario, was born after the family arrived in Australia. The family lived in Melbourne.
The Applicant stated that his early life was difficult, mostly because his father gambled a lot and was violent and abusive toward his mother. His father left the family to pursue another relationship when the Applicant was about sixteen years old. His mother subsequently re-partnered in the late 1990’s and the Applicant became close to his step-father who died of lung cancer in 2012.
The Applicant said that he has had mental health issues, suffering from depression and anxiety, for many years. He stated that he is currently prescribed 45mg of Avanza daily to treat his depression. He acknowledged that he had chronic and problematic drug use since he was a teenager, using various drugs including cannabis, cocaine and heroin, as well as alcohol abuse. He stated that he had not used cannabis for a very long time and had not used cocaine since 2015. He said that he used heroin only briefly. The Applicant attributed his drug use to difficult periods in his life including the suicide of a close friend in 1992, the death of his step-father in 2012, his partner’s cancer diagnosis and difficulties with his family, in particular his brother Evan who had a drug addiction and had been convicted of several drug-related offences for which he is currently imprisoned.[4]
[4] See Exhibit A4.
The Applicant stated that he had been in a relationship with Tania Alnes since 1990, although there were periods over that time when they didn’t see much of each other. The Applicant acknowledged that his relationship with Ms Alnes was troubled due to his drug use and the financial problems it created. He said they argued about these matters and there were occasions where the police attended due to their arguments.
The Applicant and Ms Alnes have two daughters together, Amaya and XY. The Applicant maintained that he adored his children and was especially close to XY with whom he had had an opportunity to bond more closely. He admitted that when Amaya was born in 1993 he found the idea of being a father confronting and he had little to do with her and Ms Alnes for six or seven years after the birth.
The Applicant admitted that he had been a cannabis user from the age of 14 until his mid-thirties. During the 1990’s he was arrested and charged several times with possession of small amounts of the drug and he was also charged with a cultivation offence when he was about 25. He claimed the cultivation was for his own use and not for the purpose of sale. He was fined $500 for the offence.
He also admitted to a brief, but chaotic, period of use of heroin in the late 1990’s during which he fell in with another user and used the identity of an associate to open TAB and bank accounts in his name to fraudulently obtain credit. He said he did this to obtain money to support his habit. In 2000, he was convicted of theft and obtaining financial advantage by deception and given a six month sentence to be served by way of an intensive corrections order. He stated that he travelled to Greece in 1999/2000 and lived with his grandmother (since deceased) in a village for several months to break his heroin use.
He said that during the 2000’s, I basically got my life back together, certainly compared to the periods before and after then. He did some casual and part-time work and played a more active role in his family, particularly after XY was born in 2003. Nevertheless, during this period he was convicted of several driving offences, including driving under the influence of alcohol in 2009 for which he received a three month prison sentence partially suspended with one month to be served. He was also found guilty of breaching suspended sentence orders in 2003 and 2004. He admitted that during this time he was using cocaine.
He stated that in 2011, his step-father, with whom he was close, was diagnosed with lung cancer and he passed away in 2012. Also in 2012 a close friend passed away and
Ms Alnes was diagnosed with tongue cancer. He claimed that these events led him to increase his use of cocaine and he was basically out of control for a number of years. In 2012, he was convicted of several offences arising from a single incident of public drunkenness, including resisting arrest and unlawful assault.
The Applicant stated in his oral evidence that over the period from 2008 to 2015 he travelled to Argentina on seven occasions in order to access and consume the cheap cocaine available on the streets. Movement records provided to the Tribunal by the Respondent indicate that these visits were each of around three to four weeks duration.
The Applicant stated that by 2015 he was indebted to his dealer for around $80,000. He said he was offered a choice by his dealer to repay the debt by either taking part in an armed robbery or acting as a drug courier. The Applicant stated that he feared for his own safety and that of his family if he did not do as he was asked and he chose to act as a courier because he was not a violent person and did not wish to be involved in an armed robbery.
The Applicant travelled to Bolivia in late February 2015 and before returning to Australia, he ingested quantities of cocaine totaling 288.6 grams. The presence of the drugs in his body was detected upon his arrival at Sydney airport on 18 March 2015. He was charged and convicted of importing a marketable quantity of prohibited drugs and sentenced to seven years imprisonment with a minimum non-parole period of four years. The Applicant claimed in his oral evidence that he no longer regards himself as indebted to the dealer because under the underworld code his unsuccessful attempt to repay the debt by acting as a courier would be accepted as releasing him from the debt.
The Applicant served the four year minimum sentence in prisons in NSW and, for the last year or so, in Victoria. On 18 March 2019, he was released on parole, expiring on
17 March 2022, and immediately taken into immigration detention where he remains.
The Applicant stated that he has remained drug-free while in prison and in detention. He gave evidence that while in prison he completed the drug rehabilitation courses available to him as well as a number of vocational and religious education courses.[5] While in prison he was prescribed Seroquel, an anti-psychotic drug, to help him with withdrawal from cocaine but it made him lethargic. He was later prescribed Avanza for his underlying depressive illness and the use of Seroquel was stopped. The Applicant stated that Avanza had helped him to manage his depression much better and he has continued to take it.
[5] Details of the courses are set out in Exhibit A3.
In early 2019, while in immigration detention, the Applicant was convicted of possession of a small amount of Methyl-Amphetamine and fined $1,000. The Applicant explained the circumstances of the offence in his oral evidence. He said that a few weeks after he arrived at the detention facility he was called over to a fence by another detainee and handed a small package and asked to give it to his roommate. He said he took the package believing it to be tobacco, but once he took possession, he suspected that the package may have contained drugs and he hid the package by putting it down the front of his trousers with the intention of disposing of it later. The transfer of the package was observed by the guards at the facility using CCTV and the Applicant was questioned by the Police.
The Applicant confirmed, in his oral evidence, the Police record of the incident.[6] The record states that the Applicant was searched by the police and a foil satchel that appeared to be an open condom bag was found. The Applicant made no comment regarding the satchel. After the police had left the interview room a guard observed a suspicious package, being a condom with a balloon like ball of tissue on the inside, on the floor at the Applicant’s feet. The package was later found to contain 1.25 grams of Methyl-Amphetamine.
[6] G27 at page 115.
The Applicant was charged with an offence of possession of Methyl-Amphetamine to which he pleaded guilty and was fined $1,000. The Applicant insisted in his oral evidence that he had not taken possession of the drug for his own use and that he had not made any statement to the police because he did not want to be known as an informer in the detention facility. The Applicant affirmed that he thought the package contained tobacco although he admitted that tobacco was not a prohibited substance in the detention facility.
The Applicant stated that if he is released into the community he plans to live with his mother most of the time but, subject to his parole conditions, he would stay several nights each week with Ms Alnes and his daughter XY. He said that he desperately wants to make up for the time he has lost with his family and to help them manage the challenges they face in their lives including; his mother’s age and poor health, Ms Alnes’ health problems and the demands on her to assist her mother in caring for her disabled brother, and XY’s adolescent behavioural problems.
He said that he has made an appointment with the North Eastern Rehabilitation Centre for a face-to-face assessment for participation in a drug and alcohol rehabilitation program and intends to pursue that course when he is released. He added that he has seen
Mr Tim Watson-Munro, a clinical psychologist, for an assessment and Mr Watson-Munro has offered to assist him with appropriate referrals for treatment and rehabilitation services in the community and to oversee that process upon his release.
The Applicant also said that he has a firm job offer from a former employer and friend, Daniel Willmott.
Tania Alnes

Ms Alnes gave evidence that she met the Applicant in 1990 when she was 21 years old and that they have been involved in a relationship since that time. She said they have two daughters together Amaya (born 1993) and XY (born 2003). She said her relationship with the Applicant has had some significant ups and downs over the years and there was a six year period between 1993 and 1999 when they didn’t see each other at all. She said that in 1999/2000 she and the Applicant got together again and the Applicant played an active role in the family for the first decade of the 2000’s. She said he worked on and off and contributed financially when he was able to. She said that he was particularly close to their youngest daughter, XY. She said that in 2011/2012 after the death of the Applicant’s step-father and her cancer diagnosis, the Applicant basically went off the rails for several years. In the years 2011 to 2015 there were times when he lost contact with her, although he did have contact with XY at his mother’s home where he was living. She described the Applicant as a troubled but nonetheless extremely kind and generous person. She confirmed that she had called the police on several occasions when she and the Applicant had argued, but insisted that the Applicant was never violent towards her or her children. She explained in her oral evidence that she took out an intervention order against the Applicant to give him a wakeup call.
Ms Alnes described her current circumstances. She has had surgery for cancer of the tongue and has had part of her tongue removed and lost her teeth requiring her to wear dentures. She said she has trouble eating, talking and swallowing. She said she is in daily pain and sometimes chokes. She is in receipt of a disability support pension, and has limited financial resources, as confirmed by the financial records produced to the Tribunal.[7] She indicated that these matters caused her stress and resulted in anxiety and depression and she said there are times when I feel close to being unable to cope.[8]
[7] Exhibit A14.
[8] Exhibit A12 at [26].
She also stated that she is required to assist her mother (age 68) in caring for her intellectually disabled brother, Shannon. While Shannon has assistance from an NDIS funded carer, Ms Alnes’ mother has to assist him with daily tasks including feeding, bathing, toileting and moving him within the home. Ms Alnes said that because Shannon is a large man but with significant muscle wastage, it is very difficult for her mother to manage him by herself. Ms Alnes said that she is the only member of her family in a position to help her mother as her two sisters are both estranged from the family and suffering from drug addiction.
Ms Alnes also said that her daughter, XY, is finding her identity and can be rebellious at times. She has been caught several times shoplifting from the local shopping centre and told that she will be prosecuted if she does so again.
Ms Alnes said that she would welcome the Applicant to stay with her and XY several nights per week and she is desperate to have the Applicant back with the family to provide some assistance to her, to support XY and to contribute financially to the family. She said that XY would be devastated if her father were deported to Greece.
The Tribunal was provided with a report by Ms Sandra Raponi-Saunders, a clinical psychologist, dated 20 March 2020 concerning Ms Alnes.[9] Although Ms Raponi-Saunders was not called to give evidence at the hearing, the Tribunal accepts that the report confirms the evidence of Ms Alnes regarding the effects of her tongue cancer and her anxiety and depression resulting from the external stressors in her life. Ms Raponi-Saunders’ observation that Ms Alnes’ stress may likely ameliorate if the Applicant is released is also accepted by the Tribunal.
[9] Exhibit A17.
Vasiliki (Vicky) Tsiaras
Ms Vicky Tsiaras is the Applicant’s mother. She confirmed in her evidence that the Applicant had a troubled childhood because of the conduct of his father who was frequently away gambling and drinking and was physically violent towards her in front of the children. She stated that the Applicant’s father had left the family in the 1980’s and moved to NSW and has had no contact with the Applicant since that time.
Ms Tsiaras gave evidence about her circumstances. She is 72 years old and in receipt of the aged pension. She gave evidence that she owns her own home valued at about $500,000 with a mortgage of around $50,000 but is unable to borrow against her home because of her age. She claimed to be of limited financial means and produced Centrelink and bank records to substantiate her financial situation.[10] She is in poor health as confirmed by a report from Dr Chris Clifopoulos dated 27 May 2019,[11] tendered in the proceedings. She has arthritis which significantly affects her mobility and she has suffered four heart attacks. She said that she can cook for herself but needs assistance with cleaning and shopping. She has been assisted for the last few years by her daughter-in-law, Ms Margaret Brown Bryan, who moved in with her with her two sons (aged 11 and 9). However, Ms Brown Bryan intends to move to Keysborough in the near future to enable her sons to go to school there and she will be moving out of Ms Tsiaras’ home. Ms Brown Bryan confirmed this in a written statement tendered in the proceedings.[12]
[10] Exhibit A19.
[11] Exhibit A20.
[12] Exhibit A21.
Ms Tsiaras’ intention is that the Applicant will reside with her if he is released into the community and that he will be able to provide the assistance currently provided by
Ms Brown Bryan. Ms Tsiaras stated that if the Applicant is deported to Greece she will be devastated and will worry about him every day. She expressed her confidence that the Applicant is a changed man and will not revert to drug use if he is permitted to stay in Australia. She said that he is now more open about his feelings and she believes would not try to hide his problems.
XY
XY is the Applicant’s youngest daughter. She was born in 2003 and will turn eighteen in 2021. She is currently in Year 11 at school and is undertaking a beauty therapy school-based apprenticeship.
XY gave evidence at the hearing. She stated that she has a close relationship with her father and is in contact with him by phone and other electronic means on a daily basis. She visits him in detention two or three times per week. She said that she could discuss her problems openly with the Applicant and that he gave her calm and helpful advice. She said that she would be lost and broken if he were deported to Greece and wouldn’t know what to do. These statements were reflected in her letter of 6 May 2018 included in the G documents.[13]
[13] G12 at page 55.
A letter from the Student Welfare Coordinator at XY’s school, [name redacted] dated 19 March 2020,[14] documents the difficulties XY has experienced in recent times. It notes that she has had frequent detentions, has been suspended on three occasions and has become progressively disengaged from school and at risk of not completing her competency units for Year 11. The Coordinator concluded that he believed that if her father was deported her anger issues would escalate and she will completely disengage from her education.
[14] Exhibit A10.
Amaya Alnes
Amaya is the Applicant’s eldest daughter. She was born in 1993. She is employed as a customer service representative.
She gave evidence that she is close to the Applicant and talks to him every day by phone or text message. She acknowledged that the Applicant did not have contact with her for the first six or seven years of her life but stated that since then he has worked hard to build their relationship and get to know her. She said the Applicant offers her a different perspective on issues to her mother and she greatly values his calm advice. She said he’s my rock and keeps me grounded. She said that she would be devastated if he were deported to Greece and it would undo all of the good work he had done to address his problems with drugs. She said that XY gets very emotional when she leaves after visits to her father and she would find it very hard to cope if the Applicant was sent back to Greece. She also stated that her mother, Ms Alnes, needs practical and emotional support to deal with the issues she faces and she would be badly impacted if the Applicant were deported to Greece.
Daniel Willmott
Daniel Willmott is the principal of a family business called Maranatha Texture Surfaces Pty Ltd which specialises in lightweight wall systems, rendering and painting in both the commercial and domestic building sectors. Mr Willmott gave evidence that his business is expanding due to the recent changes introduced by the Victorian government to address the fire rating of protective coatings on buildings. He described this as a new wave of work.
Mr Willmott said that he had employed the Applicant in around 2012 to assist him with painting and preparation work and he had been very satisfied with the Applicant’s skill and diligence. He said, in his written statement,[15] that he was a friend of the Applicant and was committed to giving him a second chance. He stated that he had a definite need for another employee and had offered to employ the Applicant on a full-time basis if he is allowed to remain in Australia.
[15] Exhibit A9.
Tim Watson-Munro
Mr Watson-Munro, consultant psychologist, assessed the Applicant in February and March 2020 for the purpose of a psychological assessment and prepared a report dated 16 March 2020.[16] He also gave evidence at the hearing.
[16] Exhibit A11.
Mr Watson-Munro administered the Beck Depression Inventory test to the Applicant to canvas psychological and physiological symptoms of depression and anxiety experienced by the Applicant over the preceding fortnight. Mr Watson-Munro noted:
Testing confirms my clinical impressions of Mr Tsiaris [sic] referable to a Depressive Disorder (severe and recurring) (296.33) according to DSM-5 criteria. Mr Tsiaris [sic] endorsed a range of symptoms referable to his depression and of concern conceded suicidal ideation, although he has no plan. His sleep is poor with early morning wakening and his appetite is diminished. He describes diminished levels of energy and drive.
Mr Watson-Munro also applied the Hare Psychopathy Checklist to determine the risk of the Applicant reoffending and the probability of rehabilitation. He noted that:
Mr Tsiaris [sic] score is unremarkable and certainly is consistent with my view that he is not a psychopath criminal.
Mr Watson-Munro opined that the Applicant’s complex developmental history gave rise to long standing symptoms of depression, anxiety and low self-esteem which provided a platform for his vulnerability to develop substance abuse. He further noted that the Applicant’s cocaine abuse prior to 2015 had a devastating effect upon the Applicant’s capacity to effectively negotiate his life with occasional psychotic breaks, severe paranoia, rebound depression and cognitive impairment.
Mr Watson-Munro observed that the Applicant had matured since 2015 and has been drug free for five years and is arguably in full remission. He noted that there was a strong nexus between the Applicant’s offending behaviour and his drug addiction and concluded that, with continuing treatment, support and supervision, the risk of reoffending continues to trend towards low.
Mr Watson-Munro commented that the EQUIPS rehabilitation courses completed by the Applicant while in prison were comprehensive and were developed by the NSW Department of Corrective Services to reduce the risk of reoffending. The courses are based on cognitive behaviour therapy and focus on medium to high risk offenders. Mr Watson-Munro opined that the fact that the Applicant had completed 80 hours of intensive focused treatment in the EQUIPS program suggests that he has made considerable gains as a consequence of his involvement.
Mr Watson-Munro observed that there was no suggestion of violence in terms of the Applicant’s overall forensic history beyond some earlier issues referable to his family, which have now been resolved.
In answer to a specific question regarding the risk of reoffending by the Applicant,
Mr Watson-Munro stated:
Given the commitment to treatment and his strong desire for more intensive one-to-one psychotherapy in the community, the risk of him reoffending will continue to reduce. His offending history essentially relates to his addiction and it is clear in this regard if he remains drug free his judgement will be optimised and his impulse control enhanced. He has insight to the dynamics surrounding his offending behaviour and fully recognises the consequences which will accrue to him should he reoffend in any manner.
Mr Watson-Munro opined that should the Applicant lapse into drug use, it is most likely that his offending would be of a non-violent nature rather than violent, sexual or non-personal drug offending. He observed that a relapse into drug use would be mitigated by the continued motivation of the Applicant to deal with his problems, the support and supervision from his family and treatment in the community.
Mr Watson-Munro did not identify any risk that the Applicant would pose to his partner or children.
Mr Watson-Munro’s recommendations for future action upon release to address the risk of reoffending were:
(a)one-on-one psychotherapy from a clinical psychologist to address the root cause of his problems;
(b)participation in rehabilitation programs involving significant others in his family;
(c)support and supervision by his family; and
(d)the continued use of anti-depressants to stabilise his mood.
Mr Watson-Munro noted that a period of five years drug free is a significant period for the brain and the body to recover as well as to change a person’s impulsivity but he made it clear in his oral testimony that the Applicant clearly has more work to do to avoid a relapse into drug addiction. He stated that there is no guarantee that he will not relapse and it is essential that he get proper treatment and family support.
Mr Watson-Munro opined that deportation to Greece would result in a severe escalation in his psychological problems.
PRIMARY CONSIDERATIONS
Protection of the Australian community
In considering whether the Applicant represents a risk to the Australian community, the Tribunal has had regard to the matters set out in paragraph 13.1 of Part C of the Direction.
Paragraph 13.1 provides:
(1) When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community…
(2) Decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct
In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, the Direction requires that decision-makers have regard to the factors set out in paragraph 13.1.1(1)(a)-(i). A consideration of the factors, relevant in the Applicant’s case, is set out below.
Principle (a) – violent and/or sexual crimes are viewed very seriously
There is no evidence that the Applicant engaged in crimes of a sexual nature. However, he was convicted of two assault offences.
In June 1999, he was convicted of assault and possession of a knife. The knife in question was a pocket knife with a two inch blade which the Applicant had in his pocket when searched by police. The Applicant claimed the knife was a collector’s item and this is corroborated in a police report of 7 July 1999[17] There was no evidence that the Applicant had used the knife for any illegal purpose.
[17] See SG4 at page198.
The police also found a small silver foil in his wallet and when asked about it by a police officer the police report stated that the Applicant stepped towards [the officer] who was holding the foil with her hands. The [defendant] pushed his hands downwards with force striking [the officer’s] hands causing her to drop the foil and contents.[18] This incident was the basis for the charge of assault police officer in execution of duty.
[18] SG1 at page 7.
While the Tribunal is required to treat violent crimes very seriously, it is mindful that the assault offence in this incident was at the lower end of seriousness, as reflected in the sentence imposed by the court, a fine of $800. There is no evidence that any actual physical harm was caused to the police officer.
However, the circumstances related to the two assault charges arising out of the Applicant’s arrests for public drunkenness in February 2012 did involve a level of aggressive and potentially violent conduct. The offence was described in the police report as follows:
Police were notified by a member of the public to [the Applicant] passed out leaning against a pole with his legs on St Kilda Road at risk of on-coming traffic. [The Applicant] immediately combative when spoken to by police and refused to provide details or cooperate. Arrested for drunk and had to be taken to the ground. Yelled abuse at police and members of the public who gathered to watch. Attempted to bite one police member. Eventually secured in the rear of the divisional van after trying to kick members. Kicked van all the way to the custody centre. Continued abuse on police and staff at custody centre. Tried to kick G4S staff and twice spat on members. Refused to provide name until after approximately 3.5 hours of being in custody. Large amount of cash $2,420.00 located in front pocket despite being unemployed.[19]
[19] SG7 at page 273. See also SG6 at page 247.
Police reports of attendances at the home of the Applicant’s partner Ms Alnes[20] confirm that the Applicant and Ms Alnes argued heatedly, but the reports do not indicate any violent behaviour on the Applicant’s part. Nevertheless, Ms Alnes did take out an apprehended violence order against the Applicant, but she stated in her evidence that the Applicant had not been violent towards her or her daughters and she only took out the order to try to get the Applicant to wake up to himself.
Principle (b) – crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed
[20] SG5 at p.237-241
The evidence from Ms Alnes and her daughters was that the Applicant was not violent towards them. This is consistent with police reports. However, the assault offence in 1999 did involve a female police officer and accordingly is to be treated seriously notwithstanding that the court only imposed a monetary fine.
Principle (c) – crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious
The Applicant’s assault convictions in both 1999 and 2012 were committed against police officers in the performance of their duties and accordingly are to be treated as serious offences.
Principle (d) – the sentence imposed by the courts for a crime or crimes
The Applicant was convicted of over 20 offences over the period from 1993 to 2016. The most severe sentence was the sentence imposed for the importation offence in 2015. In sentencing the Applicant to seven years in prison with a non-parole period of four years the Court said:
The seriousness of the offence can be gauged from the penalty attaching to its commission. The maximum penalty here is the second most serious penalty available at law.[21]
[21] G4 at page 27.

The Applicant was also sentenced to a six month intensive corrections order in relation to theft offences in 1999/2000. He served two terms in prison for three months (partially suspended) in 2009, and a further four months in 2013.
These sentences strongly indicate the seriousness of the Applicant’s offending.
Principle (e) – the frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness
The Applicant’s offending was consistent over the period from 1993 to 2015. His criminal record notes convictions in 1993, 1995, 1997, 1998, 1999, 2000, 2002, 2003, 2004, 2009, 2012, 2013 and 2016.
The Applicant’s offending was frequent and prolonged and the most serious offence was committed at the end of the period in 2015. However, the Tribunal is not satisfied that the pattern of the Applicant’s offending necessarily involved a trend of increasing seriousness. Essentially the Applicant’s convictions throughout the period were for various minor crimes with his final conviction in 2016 for importation of a prohibited substance being a one off offence.
Principle (f) – the cumulative effect of repeated offending
The cumulative effect of the Applicant’s offending clearly establishes a pattern of antisocial behaviour on his part. It demonstrates a lack of respect for the law and for law enforcement.
Principle (g) – whether the non-citizen has provided false or misleading information to the department, including by not disclosing prior criminal offending
There is no evidence that this principle is relevant in the Applicant’s case.
Principle (h) – 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)
There is no evidence that the Applicant was formally warned about the consequences of his offending in terms of his migration status, although the Applicant was in effect warned about the consequences of his continued offending by the courts in handing down various non-custodial sentences. The Applicant clearly did not heed those warnings.
Principle (i) – a crime committed while the non-citizen was in immigration detention… is serious
The Applicant pleaded guilty in 2019 to possession of a small amount of Methyl-Amphetamine and was fined $1,000. The offence was committed while the Applicant was in detention and is to be regarded as serious.
Conclusion
Applying the principles set out in paragraph 13.1.1(1) of the Direction, the Tribunal is satisfied that the Applicant’s past criminal offending was serious. It involved violent behaviour towards police officers, one of whom was a woman. It involved an offence attracting a sentence of seven years imprisonment and it involved an offence committed while in immigration detention. The Applicant’s conduct over the period from 1993 to 2015 was characterised by a consistent disregard for the laws of Australia and an apparent disrespect for the Australian community.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction states:
(1) In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a) The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
Nature of the harm
In assessing the nature of the harm that the Applicant might present should he engage in further criminal conduct, it is instructive to assess the nature of his past offending.
A review of the Applicant’s criminal record as set out in Attachment A, reveals four general categories of offences. First, there are a number of offences of ‘possession’ directly related to his drug use in 1993, 1997, 1998, 1999 and 2000. Secondly, there are a series of offences related to anti-social behaviour arising out of his drug and alcohol use including driving offences in 1995, 2002, 2004 and 2009, possession of a knife in 1999, assaults in 1999 and 2012 and for public drunkenness in 2012. Thirdly, there are several convictions for breaches of court orders in 1997, 1998, 1999, 2003 and 2004. Fourthly, there are two significant serious offences. In 2000 he was convicted of theft and obtaining financial advantage by deception and given a six month sentence to be served as an intensive corrections order. In 2016 he was convicted of offences related to the importation of a prohibited drug and sentenced to seven years in prison with a minimum four year non-parole period.
Each of these offences has the potential to cause harm to members of the Australian community. With the exception of the two serious offences, most of the harm resulting from the Applicant’s conduct was in the nature of self-harm, although there was some violence involved in the Applicant’s offending. The assault of a female police officer in 1999 did not result in any actual physical injury. The offences in 2012 were more serious, but arose in circumstances where the Applicant was heavily intoxicated and experiencing the psychological effects of stressors in his life, being the death of his step-father, the death of a close friend and the cancer diagnosis of Ms Alnes. The Tribunal accepts that these incidents, which it is noted were some 13 years apart, do not generally indicate that the Applicant has a violent disposition. The evidence of his partner Ms Alnes and his daughters was that he was not prone to violence. Police reports of their attendances at Ms Alnes’ property tend to corroborate this evidence. The Applicant’s prison record shows no sign of violent behaviour.
Mr Watson-Munro observed that there was no suggestion of violence in terms of the Applicant’s overall forensic history. He opined that should the Applicant lapse into drug use, it is most likely that his offending would be of a non-violent nature rather than violent, sexual or non-personal drug offending.
Taking account of the totality of these matters, the Tribunal is satisfied that the nature of the harm posed by the Applicant should he re-offend is unlikely to involve any significant risk of violence or any significant injury to other members of the community.
The Applicant’s driving offences were primarily offences of driving while disqualified except for one offence in 2009 which was for driving under the influence of alcohol. Clearly, driving under the influence of alcohol or drugs represents potential significant harm to members of the community. If the Applicant were to repeat this conduct it would amount to a significant risk of harm to members of the community. The Applicant gave evidence that he had undertaken a rehabilitation course following this offence and the Tribunal accepts the Applicant’s remorse in relation to his actions.
The two serious offences on the other hand, did involve significant potential harm to members of the Australian community. The police reports related to the theft and related offences[22] attest to a deliberate and systematic fraudulent use of various financial instruments and accounts over a period between January and April 1999 resulting in a total loss of over $23,000 for various financial institutions. If the Applicant were to engage in further conduct of this kind it could cause significant financial harm to the individuals and institutions involved.
[22] SG5 at pages 226-234.
The drug importation offence committed in March 2015, involved the attempted importation of a quantity of drugs identified as cocaine with a pure weight of 288.6 grams. The importation and ultimate sale of illicit drugs has the potential to seriously harm the physical and psychological wellbeing of members of the Australian community. One only has to look at the devastating effect of prolonged cocaine use on the Applicant to see the harm which can result from such conduct.
The likelihood of re-offending
The Applicant has invited the Tribunal to accept that he is no longer the person who committed the importation offence in 2015. He stated in his evidence that prior to his arrest in 2015; his cognitive functioning was severely impaired because of his drug use. He said that in some respects his arrest was the best thing to happen to him as it gave him the opportunity to reassess his life. He said that he has remained drug free for over five years while in prison and immigration detention and can now think clearly and understand the consequences of his actions. He insisted that he has no intention to go back to drug-taking and is now motivated to make up to his family for his past behaviour. The Tribunal accepts that the Applicant has a positive record while in prison and apart from the possession offence in 2019, also in detention. Importantly, the Applicant’s prison records indicate that he was subject to urine testing on several occasions while in prison and these returned a negative result corroborating his assertion that he had abstained from drug use.
The Applicant said that if released he will take up employment with Mr Willmott and live with his mother so that he can support her to deal with her health issues and spend some time with his partner Ms Alnes and his daughter XY. He said that he will support

Ms Alnes financially and in dealing with her own health issues, as well as the demands placed on her by the needs of her mother in caring for her disabled brother. He said he will also provide parental support for XY to help her deal with the adolescent issues she is currently dealing with. He also said that he would like to be a role model as an uncle to his brother’s two boys.
The Applicant presented as a candid witness who readily accepted responsibility for his past misconduct. While he sought to offer an explanation for various offences he did not seek to attribute blame to anyone other than himself. The Tribunal accepts that the Applicant is genuinely remorseful for his past offending and that he genuinely wants to avoid further drug-taking and to live a productive life and care for his family.
In assessing the likelihood of the Applicant re-offending, the Tribunal is not only concerned about the Applicant’s intentions, rather about his ability to live up to those intentions given the realities he is likely to face if released into the community.
Mr Watson-Munro noted that the Applicant has long standing symptoms of depression, anxiety and low self-esteem which provided a platform for his vulnerability to develop substance abuse. He noted that there was a strong nexus between the Applicant’s offending behaviour and his drug addiction.
Mr Watson-Munro observed that the Applicant had matured since 2015 and is arguably in full remission having been drug free for five years, but there is no guarantee that the Applicant will not relapse and it is essential that he get proper treatment and family support. Mr Watson-Munro concluded that, with continuing treatment, support and supervision the risk of re-offending continues to trend towards low. He stated:
Given the commitment to treatment and his strong desire for more intensive one-to-one psychotherapy in the community, the risk of him reoffending will continue to reduce. His offending history essentially relates to his addiction and it is clear in this regard if he remains drug free his judgement will be optimised and his impulse control enhanced. He has insight to the dynamics surrounding his offending behaviour and fully recognises the consequences which will accrue to him should he reoffend in any manner.
Mr Watson-Munro’s recommendations for future action upon release to address the risk of re-offending were:
(a)one-on-one psychotherapy from a clinical psychologist to address the root cause of his problems;
(b)participation in rehabilitation programs involving significant others in his family;
(c)support and supervision by his family; and
(d)the continued use of anti-depressants to stabilise his mood.
The Applicant has undertaken drug rehabilitation courses in prison and has said that he will undertake further rehabilitation if released into the community. Mr Watson-Munro suggested that the Applicant had made considerable gains as a consequence of his involvement the EQUIPS program while in prison.
The Tribunal is satisfied that the Applicant is likely to continue to take Avanza as an effective way to stabilise his mood, which has been effective in the past, but the Applicant has not received one-on-one psychotherapy. He gave evidence that he has arranged an appointment with North Eastern Rehabilitation Centre for a face-to-face assessment for participation in a drug and alcohol rehabilitation program in anticipation of his release. It is not clear whether this will facilitate the Applicant’s access to the one-on-one psychotherapy that Mr Watson-Munro has said he needs. While the root of the Applicant’s underlying depression remains untreated, the platform for his relapse into drug use will remain.
Mr Watson-Munro noted the importance of the Applicant receiving support and supervision from his family. The Applicant asserted that he has strong support from his family and that they will provide a protective support factor if he is released.
The Tribunal is satisfied that the Applicant has the love and support of his immediate family, principally his mother, his partner and his two daughters. The Tribunal also accepts that members of the Applicant’s immediate family are genuine in saying that they intend to support him if he is released into the community. This support will clearly have a positive psychological and emotional effect on the Applicant. However, the Applicant’s family has limited capacity to actually provide the support and supervision that the Applicant needs. The Applicant’s mother is in poor health and of limited financial means. While she gave evidence that she will closely supervise the Applicant and confront him directly if she suspects that he might relapse into drug use, she lacks any experience and knowledge which would equip her to fulfil a supervisory role. Ms Alnes already has her hands full dealing with her own health issues and caring for her mother and disabled brother. She too has little financial capacity to support the Applicant. Both Ms Alnes and the Applicant’s mother were ineffective in dealing with his prior drug problems. There is no evidence that other members of the Applicant’s extended family have any substantial capacity to support him in a practical sense.
While Mr Watson-Munro focussed on the support and supervision of the Applicant’s family, the Tribunal is conscious that the Applicant would, if released, be subject to the terms of his parole which will apply until March 2022. Parole conditions have not yet been set because the Applicant is being held in immigration detention, but it can be expected that the Applicant will be subject to close supervision by his parole officer on release and this may go some way to compensating for the family’s limited capacity for supervision.
Even so, the Tribunal is not satisfied that the Applicant will have the supervision and support to the level that Mr Watson-Munro has said is important for him to avoid relapsing into drug use.
In addition, the Tribunal is concerned that the family’s circumstances present a challenge for the Applicant which may make it more difficult for him to avoid lapsing into drug dependency.
The Tribunal accepts that the Applicant is genuine in saying that he wants to make up to his family for all of the mistakes he has made in his life. However, if he is released into the community his family will make significant demands on him physically, financially and emotionally. His mother is of an advanced age and in poor health and stated that she needs the help and support of the Applicant to replace the assistance currently provided by Ms Brown Bryan. Ms Alnes has significant health problems of her own and in addition has responsibilities to care for her own mother and her disabled brother. She too has stated that she expects the Applicant to support her. The Applicant’s two brothers each have their own problems. His older brother, Evan, is in prison and facing deportation. Evan’s partner has two young sons to care for. The Applicant’s younger brother, Mario, is a single parent with two daughters and has significant health problems. He is in receipt of a disability support pension. The Applicant’s younger daughter XY has behavioural problems, being described as ‘rebellious’ by her mother and Amaya has only recently recovered from her own past troubles. Each of the daughters stated that they will look to the Applicant for support and Ms Alnes says she expects the Applicant to support her in parenting XY at a difficult time in her life.
In addition, the evidence indicates that the family has limited financial resources. The Applicant’s mother stated that she is on the aged pension and lives fortnight to fortnight. The Applicant’s partner is living on a disability support pension.
The family’s difficult circumstances can be expected to place a significant burden on the Applicant who really has little or no recent practical experience in dealing with such issues. For several years before his incarceration he had a significant cocaine addiction which his partner described as causing him to go off the rails. This led to five years’ incarceration during which he was physically isolated from his family and community responsibilities. It must be recognised that for the last five years the Applicant has been directly responsible only for his own welfare. He has been subject to an imposed discipline and has had his material needs provided for him. It can be expected that he will find it difficult to adjust to the demands of his family and with his underlying mental health issues; it is quite likely that he will come under significant stress. Mr Watson-Munro conceded that increased stresses arising from the family dynamic could increase the Applicant’s risk of relapse.
The nature and extent of the Applicant’s prior offending is clearly linked to his use of illicit drugs. The Tribunal is satisfied that avoiding a relapse into the use of drugs is the key to the Applicant avoiding future criminal behaviour. This conclusion is consistent with Mr Watson-Munro’s professional assessment. Having regard to the factors identified by Mr Watson-Munro as essential for the Applicant to avoid relapsing, the Tribunal is concerned that there is a significant risk of relapse and a resumption of drug-related offending. This concern relates principally to the following factors:
(a)the Applicant’s long involvement with drugs commencing when he was 14 years old;
(b)the lack of a definite plan for one-on-one psychotherapy to address the Applicant’s underlying mental health issues;
(c)the limited capacity for effective support and supervision by the Applicant’s family; and
(d)the likelihood that the family’s circumstances will result in stressors which the Applicant will be ill-equipped to deal with.
In addition to the issue of the Applicant’s risk of reversion to drug use, the Tribunal is not satisfied that the underlying reason given by the Applicant for engaging in the importation of drugs is resolved. The Applicant said he undertook the role of a drug courier because his dealer insisted on it in order to expunge a debt of some $80,000 the Applicant owed the dealer. The Applicant admitted that the debt has not been repaid. He said it was no longer a problem because there is an underworld code that the debt was forgiven when he was caught attempting to do what was asked of him by the dealer. The Tribunal does not accept this explanation. Any assessment of the risk of re-offending must take into account the possibility that, if released into the community, the Applicant will come under renewed pressure to address the debt. The Applicant made it clear in his evidence that he did what he was told by the dealer in 2015 because he feared for his own safety and that of his family. Those circumstances may arise again, but in the absence of any evidence as to the circumstances regarding the debt, the Tribunal cannot assess the level of risk beyond it being a possibility.
Conclusion

·Exhibit A19 - bundle of records comprising:
oCentrelink Income Statement for Vasiliki Tsiaras dated 18/03/20
oWestpac Bank Records for the period 16/08/19-18/02/20

·Exhibit A20 - Medical Records of Vasiliki Tsiaras as at 27/05/19
·Exhibit A21 - Letter of Margaret Brown Bryan undated

[2020] AATA 808

6 April 2020

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Natural Justice

Jurisdiction

Statutory Construction