VCBP and Minister for Home Affairs (Migration)
[2019] AATA 337
•6 March 2019
VCBP and Minister for Home Affairs (Migration) [2019] AATA 337 (6 March 2019)
Division:GENERAL DIVISION
File Number(s): 2018/7416
Re:VCBP
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:6 March 2019
Place:Melbourne
The Tribunal affirms the decision not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
........[sgd]................................................................
Senior Member D. J. Morris
Catchwords
MIGRATION – mandatory cancellation of visa – term of imprisonment exceeding 12 months – character test – new ministerial Direction No. 79 commences after hearing but before decision – new Direction applies – primary considerations – other considerations – any other reasons – previous cancellation of visa revoked – decision affirmed
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), ss 33, 35
Jury Directions Act 2015 (Vic), s 52
Migration Act 1958 (Cth), ss 499, 501, 501CAMigration Regulations 1994 (Cth), Reg. 2.52
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
Do and Minister for Immigration and Border Protection, Re [2016] AATA 390
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
GWSC and Minister for Home Affairs, Re [2018] AATA 4353
Jagroop and Minister for Immigration and Border Protection, Re [2015] AATA 751
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Migration Act 1958 – Direction No. 79 – Direction under section 499 – Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s 501CA (dated 20 December 2018/commenced 28 February 2019)
National Health Service (UK) information portal – Medicines A-Z – Sodium valproate ( (accessed 28 February 2019)
REASONS FOR DECISION
Senior Member D. J. Morris
6 March 2019
BACKGROUND
The Tribunal has made orders under section 35 of the Administrative Appeals Tribunal Act 1975 (the AAT Act) prohibiting the publication of the name of the Applicant or information that may tend to identify him or witnesses in this proceeding. The Applicant has been given the pseudonym ‘VCBP’ for the purposes of this proceeding. Certain other witnesses will also be given pseudonyms.
VCBP is aged 45. He first came to Australia in August 1989 aged 16, emigrating with his mother and two younger brothers from Perth, Scotland. In July 1990 he returned to Scotland and then in February 1992 re-joined his family in Australia. He has lived in Australia continuously ever since.
On 26 April 2018 the Department of Home Affairs (the Department) cancelled VCBP’s Class BB Subclass 155 Five Year Resident Return visa. The cancellation was mandatory under section 501(3A)(b) of the Migration Act 1958 (the Act) because VCBP was at that time serving a sentence of imprisonment on a full-time basis in a custodial institution for an offence against a law of the Commonwealth, a State or a Territory; and because VCBP had a ‘substantial criminal record’ under section 501(7)(c) of the Act in that he has been sentenced to a term of imprisonment of 12 months or more.
On 16 May 2018 VCBP made representations to the Department seeking revocation of the decision to mandatorily cancel his visa. On 12 December 2018 a delegate of the Minister for Home Affairs (the Minister) decided under section 501CA(4) of the Act not to revoke the mandatory cancellation decision. The delegate’s decision was notified to VCBP’s legal representative that day. VCBP has now asked the Tribunal to review the delegate’s decision not to revoke the mandatory cancellation of his visa.
The hearing was held on 25 and 26 February 2019. VCBP was represented by
Ms Veronika Drago of Counsel. VCBP gave evidence and was cross-examined by
Ms Kylie McInnes, of the Australian Government Solicitor, representing the Minister. VCBP’s parents, two brothers, stepbrother and the mother of VCBP’s children also gave evidence; as did Ms Donna Gee, a clinical psychologist. The Minister tendered three volumes of papers (described as ‘GD’ Documents in these reasons). Both parties submitted Statements of Facts, Issues and Contentions. Other documents were also taken into evidence and are listed in Appendix 2.
Legislative framework
Section 501CA(4) of the Act provides that the decision-maker may revoke the mandatory cancellation of VCBP’s visa if he made representations within the relevant time period, provided for in the Migration Regulations 1994 (Cth) (28 days in accordance with reg. 2.52) and the decision-maker determines that the Applicant passes the ‘character test’, or, as provided for under section 501CA(4)(b), there is another reason why the mandatory cancellation decision should be revoked. The Minister accepted that the Applicant had made representations within the prescribed period.
Section 501(3A) of the Act is a mandatory cancellation power. It relevantly provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c)…
(ii)…; and
(b)the person is serving a sentence of imprisonment, on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
A National Police Certificate dated 19 June 2018 (GD, p 38) was before the Tribunal. The list of offences recorded in that certificate is reproduced in Appendix 1 of these reasons, with pending matters omitted. Relevantly, the certificate records that on 11 April 2018 the Magistrates’ Court of Victoria at Latrobe Valley convicted VCBP of the offences of Recklessly causing injury, contravening family violence intervention order, intent to harm/fear threat to inflict serious injury, commit indictable offence whilst on Bail granted. VCBP was sentenced to an aggregate of 4 months’ imprisonment, concurrent and also given a Community Corrections Order (CCO) to perform 12 months’ unpaid community work for 100 hours.
Section 501(6) of the Act states that a person does not pass the character test if the person has a ‘substantial criminal record’. A person has a substantial criminal record under section 501(7)(c) of the Act if the person has been sentenced to a term of imprisonment of 12 months or more. The certificate also records that on
29 November 2000 at the County Court of Victoria at Morwell, VCBP was convicted of the offence of Armed robbery and sentenced to 18 months’ imprisonment. On the facts, the Tribunal finds that the Applicant fails the character test on the basis of the sentence passed on him on 29 November 2000 and him serving a full-time sentence at the date of cancellation.Section 501CA relevantly provides that:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
…
(4) The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i)that the person passes the character test (as defined by section 501); or
(ii)that there is another reason why the original decision should be revoked.
Having found that VCBP fails the character test, the sole issue before the Tribunal, therefore, is whether there is another reason why the original visa cancellation decision should be revoked.
The Federal Court stated in Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked…
New ministerial Direction – Direction No. 79
Section 499(1) of the Act provides that the Minister may give written directions about the exercise of functions or powers under the Act. The delegate who refused to revoke the mandatory cancellation of VCBP’s visa consulted Direction No. 65, made under
section 499. On 20 December 2018 the Minister for Immigration, Citizenship and Multicultural Affairs made a fresh direction under section 499, Direction No. 79. Direction No. 79 (hereafter referred to as ‘the Direction’) commenced on 28 February 2019 and (at section 3) revokes Direction No. 65 from that date. Section 499(2A) of the Act requires the Tribunal to comply with the Direction in considering this matter. Although the hearing was held before the date the Direction commenced, both the Applicant and Respondent submitted that, if the Tribunal makes a decision in relation to this review on or after 28 February 2019, the correct Direction for the Tribunal to consider is Direction No. 79.The question about which Direction to apply where a reviewable decision was made when one Direction was in force (or had been revoked), and then an Applicant sought review by the Tribunal and the Tribunal made its decision after a new Direction had commenced, was considered by Deputy President Forgie in Jagroop and Minister for Immigration and Border Protection [2015] AATA 751 wherein she said, at [59]:
It follows that my review of the delegate’s decision following the remittal from the Federal Court is a review that will consider the same issues and questions as considered by the delegate. I will not, however, be limited to the evidentiary material that was before the delegate or to evidentiary material that sheds light on that material. Provided the procedures in ss 500(6A) to (6L) are followed, I may have regard to all relevant evidentiary material regardless of when it came into being and regardless of whether it relates to subsequent events. My consideration will not be confined to whether or not the cancellation decision was the correct or preferable decision to make at the time it was made. It will, instead, be a consideration of whether or not the correct or preferable decision to make at the present time is to cancel Mr Jagroop’s visa. As I will be making that decision at a time at which Direction No. 65 is current, that is the Direction to which I must have regard. Direction No. 55 applied in a time past and no longer has relevance. Having identified Direction No. 65 as the relevant direction, I am obliged to comply with it as required by s 499(2A).
(Footnote omitted.)
Deputy President Forgie’s view was upheld by the Full Federal Court in Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461. The established principle therefore is that the Tribunal is:
(a) not constrained to consider only the material before the original decision-maker;
(b) may take into account fresh material; and
(c) should apply the law and policy in place at the time it makes its decision.
The Tribunal therefore considered, and will refer to, Direction No. 79 in these reasons.
Paragraph 6.1 of the Direction states, in part:
6.1Objectives
(1)The objective of the Act is to regulate, in the national interest, the coming into, and presence in, Australia of non-citizens.
…
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment on a full-time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had his or her visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the discretion to consider revocation is enlivened, the decision-maker must consider whether to revoke the cancellation given the specific circumstances of the case.
Relevantly, the Direction includes the following principles at paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to refuse to revoke the mandatory cancellation of a non-citizen’s visa, the Direction requires a decision-maker to take into account considerations set out in
Part C of the Direction. Part C is divided into Primary considerations and Other considerations. The primary considerations in Part C are set out in paragraph 13(2) of the Direction. They are: Protection of the Australian community from criminal or other serious conduct; The best interests of minor children in Australia; and Expectations of the Australian community.
Paragraph 14(1) of the Direction sets out other considerations in relation to revocation requests. They are: International non-refoulement obligations; Strength, nature and duration of ties; Impact on Australian business interests; Impact on victims; and Extent of impediments if removed. The Direction states that primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations (see paragraphs 8(4) and 8(5) of the Direction).
Evidence of VCBP
The Applicant gave evidence about growing up in Scotland. The family household consisted of his parents, WC and SC, and his two brothers, EDB and FGC. He said that the initial decision was made by his mother to immigrate to Australia in August 1989 to, in his words ‘escape from my father, basically.’ His father subsequently also immigrated to Australia. VCBP told the Tribunal that when he came out to Australia he had a return ticket and initially felt very homesick so returned to Scotland in July 1990 and stayed with a friend. He said he soon realised that returning was a mistake so, once he had saved sufficient funds, he returned to Australia in early 1992 and re-joined his family. Around the time of his return, his mother, SC, remarried a man, GC, who already had three children, a daughter, MAA, and two sons, MBB and MCC.
VCBP said he is the oldest of three sons, four years older than EDB and six years older than FGC. He gave evidence that the blended family with his mother and stepfather lived together happily. Sadly, one stepbrother MBB, died fifteen years ago, and his stepsister MAA died in June 2018.
VCBP told the Tribunal that he worked as a welder. He did not do a formal apprenticeship but had some TAFE training and had little difficulty in finding work, including for his stepfather, GC, who ran a small company. Lamentably, GC died in October 2018 after a serious illness.
VCBP said that he first started taking drugs when he was aged 15 or 16, while still living in Scotland. At first he took cannabis, because he said it was readily available and many in his cohort were also using it. Later, he experimented with amphetamines, crystal methamphetamine (ICE) and started using heroin as well. He told the Tribunal that at one stage he was taking heroin each day, 2 or 3 points of a gram.
VCBP said he started committing criminal acts to make money, not particularly to make money to buy drugs. The police certificate shows that the first time he appeared in Court was in February 1997, charged with the offences of Theft of a motor vehicle; Go equipped to steal/cheat; Burglary (3 charges); Theft (3 charges); and Attempt burglary. For these offences he was convicted and placed on a community-based order for 12 months to perform 250 hours of unpaid community work.
VCBP was back before the courts almost exactly a year later, in February 1998. He was charged with driving offences, including drink driving, and breaching the community based order imposed a year earlier. For this breach he was sentenced to 50 days’ imprisonment. In November 1998, VCBP appeared before Dandenong Magistrates’ Court. He was charged with the offences of Handle/receive/retention of stolen goods (3 charges); Obtain property by deception (4 charges); Burglary; Theft. He was sentenced to an aggregate period of 9 months in gaol.
In April and June 1999, VCBP was before the courts for drink driving and another driving offence, and possessing cannabis. The most serious offence for which VCBP has been convicted was Armed robbery, for which he was sentenced to 18 months’ imprisonment. This offence took place on 21 May 2000. The sentencing remarks of Her Honour Judge King of the County Court were before the Tribunal (GD, p 44). The Judge said:
The details of the armed robbery are that you were driven into Warragul by your step-father to enable you to catch a train to Dandenong. Your purpose in doing that was to enable you to score some heroin. You had with you a large yellow handled knife that you had taken from your parents’ home. You told the police that you took this knife with you intending to rip off a heroin dealer in Dandenong but that you had decided against this course as it could have become quite violent.
Instead, wearing a hooded jacket, trying to use that as a disguise, you attended at the Orient Hotel Bottle Shop in Warragul and holding the knife over your head in a threatening manner robbed the owner of approximately $600 in cash.
The Judge detailed how VCBP went and sat in a nearby restaurant directly after this robbery and was there arrested by police. He made full admissions and told the arresting officers he realised he had done something stupid and decided to sit in the restaurant and wait for them.
VCBP said that while in prison he undertook some drug education courses. At this stage he was not on a methadone programme. When released, he was on parole. He told the Tribunal that it was not long after he was released that he was back in custody. He said he could not remember what for, because his memory has been affected by years of drug-taking. The certificate records that on 1 September 2003 he was convicted of the offence of Theft from shop (shopsteal) and sentenced to 30 days’ imprisonment, partly suspended for 12 months (the sentence to be served was 2 days).
In December 2004 VCBP was convicted of the offences of Unlawful assault; Failure to answer Bail Granted (3 charges); Use amphetamine; State false name when requested; Breach of suspended sentence order; Possess amphetamine; Possess controlled weapon without excuse, breaching a suspended sentence order and a possessing amphetamine. He was sentenced to 4 months’ imprisonment, wholly suspended for 15 months.
When asked by his counsel whether he accepted that the courts had suspended various sentences and applied CCOs, VCBP said ‘Yes, I didn’t comply with any.’ When asked why he did not comply with the CCOs, the Applicant responded that he thought taking drugs was escapism and he had not realised he had a depressive condition, because it had not then been diagnosed.
VCBP told the Tribunal that his father, WC, could fly off the handle and, growing up, he had always to be very careful. He described life at home as walking on eggshells and said that his mother would be bashed for stupid little things. He retailed one incident where his mother came home late from visiting a friend in a snowy winter and was dragged from the house by her hair and locked outside. He said that he intervened and his father never physically harmed his mother after that day.
VCBP said that, at the time, he and his brothers did not appreciate that their mother’s motivation to immigrate to Australia was to start a new life away from her husband, but subsequently came to realise that. He said that he maintained certain contact with his father and that their relationship had improved in more recent years, and that WC has warmed up, especially as he now has grandchildren.
VCBP told the Tribunal that he entered into a relationship about thirteen years ago with TD. TD is the mother of their children together; two boys now aged 10 and 8. He said that his relationship with TD ended but they agreed that would not affect decisions they make about the upbringing of their children. VCBP said that he had maintained amicable relations with TD, speaking to her regularly about matters affecting the children and always co-operating when family decisions were needed.
VCBP told the Tribunal that he saw his two sons regularly, approximately every, or every second, weekend, and often took them to his mother’s farm outside Melbourne. There they would play games and explore the bush. They would also interact with two of their cousins, both boys, sons, respectively, of his middle brother EDB and his late stepsister MAA. He said that TD had brought the children to visit him regularly both when he has been in prison and when he has been in immigration detention.
In terms of his physical health, VCBP said that he was diagnosed with epilepsy around seven years ago, but believed he had had the condition much longer. He told the Tribunal that he has had epileptic seizures around every two to three months but believed they were becoming more frequent since being in immigration detention. He said he has been prescribed Epilim (sodium valproate) twice a day. VCBP also said that he had cardiomyopathy. These medical conditions are recorded in a medical history dated August 2015 from Monash Health (GD, p 188).
On 23 September 2015, VCBP was convicted before Dandenong Magistrates’ Court of the offences of: Internationally cause injury; Unlawful assault; Unlawfully beat another person; Refuse to leave place after warning; Internationally damage property; State false name when requested; Use other drug of dependence; Fail to answer Bail Granted (2 charges); Possess prohibited weapon without exemption/approval; Possess drug of dependence (not named). For the first of these offences, he received an 8 month prison sentence and a CCO for 12 months.
In relation to these offences, VCBP told the Tribunal that he was living in a domestic relationship with his then partner (not TD) and had been taking ICE. He got into an argument and kicked her in the face. She sustained a bad black eye. The Court transcript (GD, p 58) records:
He’s returned home. He’s consumed a large amount of alcohol. He and his then partner have had an ongoing argument about infidelity. Allegations have gone back and forth, and that’s on top of using ice in that afternoon as well. Its then descended into basically the three [acts of] physical violence; in the backyard, the back door and then the inside of the actual kicking that Your Honour has heard.
The Magistrate recorded that VCBP said how ashamed he was of his conduct, and that this was a view he expressed immediately after the event to the police. Under cross-examination at the Tribunal VCBP agreed that he recalled dragging his partner by her hair and kicking her in the face, and that he was disgusted with myself, and needed to be locked up.
Ms McInnes took VCBP through a police report of an earlier incident in October 2014 where he visited an acquaintance and demanded a prescription morphine tablet. The person refused, and pushed him out the door. The report continued:
The accused has then approached the front door again and entered the bungalow. The accused has grabbed [name redacted] around the throat and again demanded he give him prescription morphine tablets. The secondary victim, [name redacted], has started to call Triple Zero before the accused has suddenly dived towards her and grabbed her, trying to prevent her from calling Police. [She] has hit her head on the back of the bed as the result of the accused actions.
VCBP said he had no memory whatsoever of these events, but conceded that if the police report stated this, he accepted that it had occurred. Ms McInnes put to VCBP that he had a tendency to be violent, to which he agreed. He agreed that he had got into one fight while incarcerated and that he had, on one occasion, drank water to ‘mask’ a urine sample, and that he had also returned a ‘dirty’ urine sample (i.e. one that may indicate the presence of illegal substances).
VCBP agreed that in April 2016 his visa was cancelled under section 501(3A) of the Act and that he made representations to the Department in relation to that cancellation. Before the Tribunal was a letter of advice to the Applicant from the Department dated 3 March 2017 (GD, p 293). The letter advised VCBP that after consideration of his representations, the decision-maker had decided to revoke the original decision to cancel the visa.
VCBP was asked about an incident on 28 October 2017 (GD, p 72). VCBP was in a domestic relationship with a new partner. Late one evening they had a dispute about obtaining some drugs from a third party. The Magistrate said (GD, p 75):
VCBP started yelling and swearing at the victim. As they were still lying in bed at this point, VCBP launched himself over the victim to try and grab her phone from her hands. The victim tried to push him off her. VCBP then grabbed the victim by the throat, pushing her down, so her head was down between the side of the bed and the bedside table. The victim couldn’t breathe and stated she felt her eyes flickering and rolling back in her head and her arms went like jelly. The victim stated…that she couldn’t speak at all. Whilst VCBP was choking the victim, he said “I’m going to bite your face off and I’m going to kill you,” The applicant…eventually let go. Once the victim stopped coughing, she told VCBP to leave, as he was still yelling and swearing at her.
(Pseudonym interpolated)
The following day, the victim went to the local Police Station and made a statement.
VCBP accepted the nature of the injuries he had caused to his partner in this incident, although he disputed her evidence about precisely what occurred and where it occurred in their residence. He said that his then partner had become aware that he had previously been through a visa cancellation process and she constantly used this knowledge, he said, to blackmail him to make him stay with her and to do things she wanted him to do.
VCBP was also taken to evidence that his mother took out an intervention order after an incident at her farm, where he smashed a glass door. He said he was drunk at the time and had scuffled with his brother when he had been asked to leave the house. He said he deeply regretted the incident and had never been physically violent to any member of his family, and never would be.
VCBP – assertion of sexual abuse
Ms Drago submitted in the Applicant’s Statement of Facts, Issues and Contentions, at [27]:
The Applicant was exposed to domestic violence from an early age and at the hand of his father. As the eldest child, he felt responsible for protecting his mother and siblings from the violence. He was also sexually abused as a child by his soccer coach. The Applicant has been diagnosed with Post-Traumatic Stress Disorder (PTSD), believed to stem from childhood sexual abuse as well as the childhood exposure to family violence. It should be strongly noted that this diagnosis of PTSD, arising out of the childhood sexual abuse, has only been made since the previous revocation and has been a significant instructive factor to the Applicant in relation to his recidivism. It is against this background that the Applicant’s drug use and criminal offending, and the prospects and risks of future offending, ought to be viewed.
In his written statement (Exhibit A2), VCBP said:
I know I let everyone down in relapsing back to drugs. It was my fault but I know that this occurs because I am self-medicating about my PTSD sex assault…
Ms Donna Gee, the clinical psychologist who gave evidence to the Tribunal, examined VCBP on two occasions, 19 July 2018 and 19 January 2019. In her first report she wrote (GD, p 143):
VCBP reports that his soccer coach, Norman Shaw, sexually assaulted him after training. He recalled this occurring on four or five occasions at his coach’s house, with progressive levels of abuse from touching to “inserting his finger in my bum while I was fondling his penis.” VCBP recalled that after that he stopped going to soccer training and his coach rang a few times to find out where he was. His mother became suspicious and asked him whether something had happened and VCBP said it had but refused to provide details as he was too embarrassed. He recalls that his mother rang the coach and said she had heard what was happening and that she would go to police if she heard anything further. VCBP recalls begging his mother not to take the incident any further as his mother had wanted to go to the police. VCBP reports that following this he never played soccer again. He also recalled that he went to secondary school with some of the boys from the soccer team who had also been abused, but although they knew this about each other they never spoke and actively avoided each other because of their embarrassment.
(Pseudonym interpolated)
Ms Gee made three diagnoses, and in her oral evidence said they were comorbidities. She diagnosed a Major Depressive Disorder, Post Traumatic Stress Disorder, and Opioid Use Disorder, in sustained remission and on maintenance therapy.
The Respondent said, in written submissions, that the Applicant’s claims of sexual abuse by a soccer coach when aged 12 or 13 years old are not supported by any reports made to police, or otherwise documented in the 30 years following the sexual abuse. The Applicant’s statement in support of the restoration of his visa in 2016 made no mention of the alleged sexual abuse. Ms McInnes said that the Minister does not accept as a ‘fact’ that the Applicant was sexually assaulted as a teenager, and went on:
These fresh claims made at a late stage, and after the applicant has previously had a cancellation of his visa revoked, appear directed at constructing an explanation for the applicant’s drug addiction and criminality that might attract the Tribunal’s sympathy so as to achieve a migration outcome, namely the setting aside of the decision under review.
In her oral submissions, Ms McInnes said that it should give the Tribunal pause for thought that the reports of the sexual abuse made by VCBP are a creation. She submitted that it was in VCBP’s interests to raise this matter not only in 2016 but in pleas for mitigation made on his behalf in his previous appearances before the courts, but he has never done so until now.
Ms Drago put before the Tribunal various documents which support the view that victims of childhood sexual abuse, and particularly male victims, often do not come forward with assertions until many years after the abuse may have occurred.
To this end Ms Drago particularly drew the Tribunal’s attention to a University of Sydney Law School submission made to the Royal Commission into Institutional Responses to Child Sexual Abuse (Exhibit A10), and to recommendations of that Royal Commission (Exhibit A11), which said that records should be retained for 45 years to take account of delayed reporting and that, although these recommendations related to abuse in institutional care, in her submission the Tribunal should consider that the same general principles should apply to child sexual abuse in the broader community: that a delay in reporting should not be taken to adversely affect the credibility of a complainant.
Ms Drago also drew the Tribunal’s attention to amendments to the Jury Directions Act 2015 (Vic) in Victoria (Exhibits A12 and A13) which reflect this new general principle when judges are making charges to juries in child sex abuse trials (see for example section 52 of that Act).
Ms Drago submitted that this background to VCBP’s offending should be taken into the account in addressing the primary consideration relating to the expectations of the Australian community.
Evidence of TD
VCBP’s former partner, the mother of his children, gave oral evidence. She is a cardiac nurse. TD said that VCBP stopped living with her two weeks before their younger son was born. She said she had decided they could no longer reside together because of his drug use. TD said that it was about one month after they commenced a romantic relationship that she realised he was taking drugs, and that he would go off somewhere; he did not take drugs at home, other than cannabis.
TD said VCBP sees their children every second week, or sometimes every week. She said she had imposed a rule that he was not allowed to see the children unsupervised, in the sense that she did not want any possibility of him taking drugs in their presence and she felt his medical conditions (e.g. seizures) made supervision essential. She said they would meet together for a meal or a visit to the park, and VCBP would also take his sons to his mother’s farm for a weekend, or sometimes longer during school holidays.
TD impressed the Tribunal as a truthful witness. She was strong in her view that, in spite of VCBP’s past drug addiction and criminal activity, as the children’s father she wanted him to be involved in their lives.
Under cross-examination she said she tried to get VCBP to give up drugs and that there would be periods where he would do so for up to 8 months, and then I’d bust him. It was her view that the Applicant needs to be given the help to change his behaviour. TD said that there was no occasion where he had been intoxicated by drugs which meant he could not see his children at a prearranged time. She said VCBP would not do that, because of his love for his sons.
Evidence of MCC, Applicant’s step-brother
MCC gave evidence that he was aged 7 when his father married VCBP’s mother. He said the blended family was very close when they were young and he looked up to VCBP as the oldest. He said in his mid-teens he had an inkling that VCBP had become involved in drugs.
MCC said he VCBP was great with his children and with his nephews, and that he had never seen VCBP as someone with mental health problems. He said that he was always up-beat and cheerful.
In terms of the 2016 visa cancellation decision, MCC said he was aware of the process at the time but had not been asked to give a statutory declaration in relation to that cancellation. MCC said he was not, at that time, fully aware of the seriousness of VCBP’s criminal offending. He said there was, at this time, very much a collective effort by all the family to help VCBP.
Evidence of WC, Applicant’s father
The Applicant’s father, WC, gave evidence that he was aware that VCBP began taking drugs in Scotland when he was aged around 16. He said he had never seen him on drugs, but was aware of his addiction.
Under cross-examination, WC agreed that what VCBP said about an incidence of domestic violence at their home when he locked SC out was, essentially, true, and that VCBP had witnessed that as a young adolescent.
WC said that he came to Australia subsequent to his then wife and the children but that the marriage had then ended. He said he now lives in Mildura and was ready to offer employment to VCBP if his visa is restored, as he is involved in laying irrigation pipes. He said that he had previously worked with VCBP in fencing and had seen his work as a welder, and that he was a good worker.
Evidence of FGC, Applicant’s younger brother
FGC gave oral evidence that his older brother was kind, caring and loving when not affected by drugs. He was aware of his drug-taking and had been so since he was aged about 14 or 15. FGC said he recalled several years ago discussing with VCBP a third person who had been sexually abused as a child and his brother said that he had been abused, too. FGC said that information was a shock to him, but he decided not to press his brother on it as he decided VCBP would speak about it more, when he wanted to.
FGC said he was involved in the 2016 cancellation process and gave a statutory declaration in support of his brother. When asked what was different today, FGC said that VCBP realises that he is running out of chances and is suffering from depression. He said a return to Scotland would be devastating for VCBP because there was no family support there. The few relatives they have there they are disconnected from.
FGC said he had seen VCBP under the influence of drugs and that he could become angry. He had heard of him being violent with ex-girlfriends, but never to him.
Evidence of EDB, Applicant’s middle brother
EDB gave evidence that he has seen VCBP as a father figure. He said he was aware of the Applicant’s drug problem and that it had started in Scotland before the family emigrated. He said that he has a son who visits the family farm and plays with VCBP’s two sons. He said his son is very close to his uncle.
EDB said he had suspicions about the behaviour of the soccer coach in Scotland at the time but no clear evidence. He said VCBP always kept to himself. EDB said he was aware of the 2016 cancellation process and thinks that VCBP realises he has to come to terms with his conduct and make a change. He said that he knew from friends who still live there that Perth in Scotland is riddled with drugs, and he feared for his brother if he returned to that environment.
EDB gave evidence about the incident at the farm when VCBP smashed a glass door. He said an argument had started and his brother became very angry, which he could do when he was on drugs. He said this behaviour was out of character and he was very sure that his brother would not have physically hurt him, his mother or his stepfather.
Evidence of SC, Applicant’s mother
The Applicant’s mother, SC gave evidence about their home life in Scotland and how she made the decision to come to Australia to get away from her (now ex-) husband. She said she became aware of VCBP’s drug taking when he was around 20, and that he was using heroin. SC said in Scotland that a friend of hers, whose son was also in the same soccer team, had raised with her rumours about the soccer coach and inappropriate behaviour with the young boys. She said she asked VCBP about it at the time but he denied anything had gone on. She said VCBP said he did not want to continue with soccer and, as he was also a talented rugby player, she allowed him to swap sports.
SC said she remembered a call from the soccer coach asking why VCBP had not been coming to training, and that she thought she told the coach that her son simply doesn’t want to play soccer anymore and would prefer to play rugby.
SC said she was aware of VCBP’s mental health challenges and it was her view that his depression had got worse. She feared he might take his own life and had very serious concerns for his future if he is returned to Scotland because he wouldn’t have family around him.
SC said she was aware of some of VCBP’s offending and thought that he had been locked up about three times. She visited him in prison and in detention and would speak to him every day or every second day.
CONSIDERATION
The Tribunal considered each of the primary considerations in the Direction and, as relevant, the other considerations.
Primary considerations
Protection of the Australian community (paragraph 13.1)
This part of the Direction requires the Tribunal to have regard for the nature and seriousness of the conduct of the non-citizen to date and the risk to the community should he commit further offences.
The nature and seriousness of the conduct (paragraph 13.1.1)
The Direction requires the decision-maker to take into account the nature and seriousness of the Applicant’s offending or other conduct to date. The National Police Certificate records VCBP’s first conviction in February 1997. There has been a melancholy succession of offences since that time, amounting to more than 75 offences.
The Courts initially took a rehabilitative approach to VCBP’s offending, including imposing a variety of orders, fines and suspended sentences. VCBP said in evidence that he thinks he has never complied with any of the conditions of such orders. Of particular note are the many convictions for breaching bail granted, which illustrates, at worst, a wanton defiance of the authority of the courts, and at best wilfulness to disregard conditions imposed, known to, and accepted by, the Applicant.
Many of the offences of which VCBP has been convicted relate to the well-trod path of an offender committing petty theft and burglary in order to fund a drug habit, and that has been recognised by magistrates in the sentencing remarks before the Tribunal. It is accepted that many of the offences are cannabis-related, which may be at the lower end of the drug spectrum.
However, and noting that it was on the evidence a somewhat spur of the moment offence, VCBP’s armed robbery of the bottle shop at Warragul shows his willingness to deploy a weapon to threaten and gain money.
Apart from the property crimes, the two domestic assaults that VCBP perpetrated on his domestic partners, one a kick to the eye and the other placing his partner in a chokehold, are objectively serious, and the Direction exhorts decision-makers to view crimes against women particularly seriously, regardless of the sentence imposed (see paragraph 13.1.1(b)). It is noted that VCBP was frank in his evidence about the facts of this offending and his earnest regret for what occurred.
Ms Drago submitted that the most serious offending was the armed robbery in 2000, some 19 years ago. That is so, in terms of the sentence imposed, but it cannot be said that there has been no trend towards more serious offending because of the two more recent serious physical assaults, in 2015 and February 2018, on his then domestic partners.
The Direction also requires the Tribunal to assess the cumulative nature of repeated offending and, at paragraph 13.1.1 (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.
The Tribunal notes (GD, p 293) that VCBP was sent a letter on 3 March 2017 which states, in bold type:
Please note: this decision does not mean that your case cannot be reconsidered again on character grounds in the event of further criminal offending by you.
The Tribunal considers that this is a significant factor in this merits review. VCBP has been through the visa cancellation process before, as he openly acknowledged; as did several members of his family. He cannot claim that he did not know, in detail, what are the possible consequences in terms of his immigration status if he continued to offend, and yet that is precisely what he did.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 13.1.2)
Ms Drago submitted that there was not ‘no risk’ of VCBP re-offending, but that the risk can be reduced to an acceptable level given the supports available to him, now that he has been diagnosed with PTSD. She said that there is evidence that the Applicant now has insight that he did not have before which will help him address his challenges. She said that he has a new starting point because he had finally spoken about the trauma of being sexually abused in his early adolescence. Ms Drago said that VCBP plans to consult psychologists or a psychiatrist if released from detention.
The Respondent argued that VCBP continues to pose a real risk to the Australian community and that his recent offending was of a violent nature and flowed directly from his inability to control his aggression and anger, as well as rampant drug use. Although Ms Gee gave evidence that VCBP’s Opioid Disorder was in remission because he had been ‘clean’ while in detention, she agreed that he had not been tested in the community.
The Tribunal has considered the history of drug abuse and VCBP’s admissions about returning ‘dirty’ urine samples when in custody, together with the various personal assurances he gave to the Department in 2016, during the previous visa cancellation decision, about not returning to drug use or offending, which he has broken.
The Respondent submitted that VCBP did not mention any childhood sex abuse in the 2016 process and drew the Tribunal’s attention to the report of Mr Jeffrey Cummins, forensic and clinical psychologist, who assessed the Applicant on 16 May 2016 and took a history from VCBP. In the report (GD, p 659), Mr Cummins recorded:
He stated he was never the victim of any physical domestic violence during his upbringing.
He has never been the victim of any sexual abuse.
Mr Cummins also reported that VCBP told him that he decided to turn his life around as a result of his offending behaviour of September 2015.
Dr Aaron Cunningham, forensic psychologist, examined VCBP on 9 April 2018 by video link (GD, p 151). Dr Cunningham accepted VCBP’s evidence that he was sexually abused by his soccer coach and reported that VCBP said his mother:
…confronted the coach. However VCBP begged and pleaded with her not to take the matter further. As a result the perpetrator did not face any charges and VCBP did not receive any support. He continues to have distressing recollection of this abuse.
Dr Cunningham said (GD, p 153):
In my opinion VCBP presents with a diagnosis of Post Traumatic Stress Disorder. In my opinion VCBP’s Post Traumatic Stress Disorder was predisposed by the violence in his childhood home. He was exposed to physical violence from his father. He experienced additional trauma when he was sexually abused at the age of 11.
The Applicant submitted to the Department a news item from the Scottish Daily Record (GD, p 176) about the gaoling of a man who Perth Sheriff Court found had sexually abused a number of victims, including setting up a football team and abusing young players in the 1980s.
The Tribunal has carefully considered the oral evidence of the Applicant and the evidence and reports of Ms Gee and the report of Dr Cunningham. There are inconsistencies, as set out above, in what VCBP told Mr Cummins in 2016 and what he subsequently told the other two psychologists in 2018. It is reasonable for the Respondent to submit that it was incongruous that VCBP had not raised his childhood sexual abuse before, not only when his visa was cancelled in 2016 but in pleas of mitigation at Court.
The Tribunal notes that SC did not give evidence that she confronted the alleged perpetrator, as was the evidence of VCBP to the Tribunal and what he told Dr Cunningham. However, in spite of the lacunae in the evidence, the Tribunal, on balance, accepts that it is plausible that there was, in a confined period of time, at least one incident (perhaps more than one) of sexual abuse of VCBP in Scotland when he was aged around 11 or 12. It is reasonable that a young boy would be embarrassed to discuss such a matter with his parents (noting his father gave evidence that he heard nothing about it at the time), and it is noted in the submission to the Royal Commission referred to above that peer-reviewed literature concludes that adult men subject to childhood sexual abuse are more likely not to report it until many years later, if at all.
Given that the Tribunal accepts that this was a significant, long repressed, matter in VCBP’s background, it contextualises some of his conduct, and may inform the treatment that will better assist him in the future. On the other hand, VCBP’s own evidence was that he started taking drugs in Perth because they were freely available and commonplace among his cohort of friends. He did not say that he now realises that a precipitator was the abuse at the hands of his soccer coach. Ms Drago submitted that the diagnosis of PTSD was ‘new’ and provided an explanation to VCBP of the triggers and, by inference, that knowledge would inform him on how to modify his conduct.
In this respect, the remarks of Dr Cunningham are significant. His opinion was that the PTSD was present because VCBP had witnessed domestic violence perpetrated by his father on his mother in his early childhood and teenage years, not because of the sexual abuse (although Dr Cunningham said that was an added factor).
The Tribunal is not satisfied that, accepting this submission from the Applicant, this new self-realisation is pivotal in terms of lessening the risk of re-offending. What makes the Tribunal unable to accept the Applicant’s submissions that the risk is ‘acceptable’ is that there have been two serious offences of domestic violence against domestic partners in recent years, and the second of these happened a matter of months after VCBP had been through the 2016 visa cancellation process, and had made significant commitments to change his behaviour, which regrettably he was unable to follow through. It is also significant that VCBP frankly admitted that he had, and still has, an anger-management problem.
In coming to this conclusion, the Tribunal makes two points. The Tribunal accepts VCBP’s evidence that his partner, the subject of the most recent assault offence, manipulated him and may have used her knowledge of his immigration status as a blackmail tool to manipulate him. This, however, does not excuse his violent physical assault on her.
The second point is that the Tribunal was impressed by the genuineness of the evidence given by members of VCBP’s family, particularly his two brothers and stepbrother. Regrettably their frank willingness to support him, as he needs, was also offered and available to VCBP at the time of the 2016 visa cancellation process and unfortunately having a loving support network readily at hand did not prevent VCBP’s serious re-offending. With the long history of offending, and defiance of behavioural management measures imposed by the courts, coupled with the recent history of assaults, the Tribunal cannot therefore safely conclude that the risk of re-offending is other than high.
This primary consideration weighs strongly in favour of the mandatory cancellation of the visa.
Best interest of minor children in Australia affected by the decision (paragraph 13.2)
The Direction requires decision-makers to determine whether revocation is in the best interests of the child (paragraph 13.2 (1). Where there are two or more children, the best interests of the children should be given individual consideration to the extent that their interests may differ.
VCBP has two sons with TD. The older is aged 10 and the younger is 8. There was extensive evidence that, although he and TD separated when the older son was very young (aged 2) and before his younger son was born, VCBP has maintained a close interest in their lives, with the full support of TD. He sees them regularly and they have visited him in immigration detention. He takes them to his mother’s farm for weekends and for longer periods in school holidays. TD said she has stipulated that VCBP cannot be with her sons unsupervised, but that seems to have been a condition that has caused no difficulty. TD gave evidence that she often telephones VCBP to discuss matters relating to the children and for them to talk to their father.
There was little evidence before the Tribunal that the best interests of VCBP’s two sons differ significantly. They are close in age and no specific different needs were contended. However, SC said that the older of the boys is more sensitive and she felt would be affected more if his father was repatriated. There was no evidence before the Tribunal that, in spite of VCBP’s chequered drug history and his admission of certain domestic violence offences with two former domestic partners, that this type of conduct had ever been displayed in relation to TD or his sons.
As is clear from the Direction, and emphasised by Mortimer J in YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 (YNQY), at [33], this primary consideration is not limited only to children to whom an Applicant may have a parental relationship. It may relevantly include the best interests of other children below the age of 18 where there is evidence of a connexion with an Applicant. The Tribunal also had evidence before it of the relationship that exists between ‘A’ and ‘F’, two nephews of VCBP. Both are young children who also visit their grandmother’s farm regularly and play with VCBP’s children. Witnesses gave consistent evidence about how good VCBP was with all the children, teaching them games and bushcraft.
Counsel for both the Applicant and the Respondent submitted that this primary consideration weighs in favour of revocation of the mandatory cancellation of VCBP’s visa, but Ms McInnes submitted that the weight is lessened in respect of VCBP’s relationship with ‘A’ and ‘F’ because they had their own parental supports.
The Tribunal has carefully considered the evidence in regard to this primary consideration, noting TD’s decision to end her relationship with VCBP because of his persistent drug use, coupled with her strong view about the importance to her sons of having their father play a role in their lives. The Tribunal finds that, even though VCBP has not lived with his older son for many years, and never with his younger son, the Applicant has maintained close and regular contact with his children (even when in custody) which has had a positive effect on their upbringing. Accordingly, this primary consideration weighs significantly in favour of revoking the mandatory cancellation of the visa.
Expectations of the Australian community (paragraph 13.3)
Ms Drago drew the Tribunal’s attention to the remarks of Deputy President McCabe in Re:Do and Minister for Immigration and Border Protection [2016] AATA 390, where he said, at [23]:
A decision-maker is, to some extent, required to guess at the community’s expectations. The Direction does not refer to studies or other evidence which would enable me to formulate a precise view of public attitudes and values. I must form my view having regard to contents of the Direction (which is, after all, a statement prepared by the community’s elected representatives), the sentencing remarks of the court and common sense. As I begin my deliberations, I assume the Australian community would be fair-minded and mature. Modern Australia was founded by convicts and their gaolers, after all: we are a nation built on second chances. The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
The Respondent submitted that the Federal Court has held that this consideration in the Direction (the predecessor of Direction No. 79 but with the same wording) is inextricably linked to the protection of the Australian community and makes clear that a person convicted of a serious crime should not hold a visa (see YNQY, at [76]).
The Tribunal remarked at the hearing that it took the view (see GWSC and Minister for Home Affairs [2018] AATA 4353) that, properly considered, the weight of this consideration in the Direction may nevertheless undulate significantly according to the context and circumstances in which a non-citizen’s offending has occurred. Ms McInnes said that the Respondent agrees with this view. The Respondent also drew the Tribunal’s attention to a more recent Federal Court decision, Bromwich J in Afu v Minister for Home Affairs [2018] FCA 1311, where His Honour said, at [85]:
The concept of community expectations is not a matter as though it is a provable fact. It is an assessment of community values made on behalf of the community. That would be so even in the absence of the express terms of Direction 65.
Ms Drago submitted that, with the recent public debate about childhood sex abuse and the inadequacy of government and health architecture to properly respond to it, as was exposed through the deliberations of the Royal Commission into Institutional Responses to Child Sex Abuse, properly apprised members of the community would take evidence of a non-citizen having experienced childhood sex abuse significantly into account in calibrating their expectations relating to a non-citizen retaining a visa.
The Tribunal takes the view that the hypothetical member of the Australian community must, axiomatically, not be a person randomly plucked from the street, but a person who has the full facts of a particular non-citizen’s conduct before them. Such a person may well have some sympathy for a person who was subject to the trauma of sexual abuse as a child, and for the fact that experience may have contributed to the development of a drug habit. However, the Tribunal concludes that such reasonable sympathy would not override an expectation that a non-citizen like VCBP, who has been before the courts on so many occasions but who has breached court orders, conditions of suspended sentences and bail, and has continued to re-offend with only relatively short breaks, would not jeopardise his or her visa by such actions.
This putative community member would also, the Tribunal finds, take significantly into account the fact that there was a 2016 visa cancellation, which was revoked after representations were made of reformed behaviour by VCBP, and the nature and extent of the offending that thereafter occurred.
The Tribunal finds that this primary consideration weighs in favour of mandatory cancellation of the visa.
Other considerations
International non-refoulement obligations (paragraph 14.1)
The Respondent submitted that this other consideration was not relevant in VCBP’s situation. Australia’s obligations in regard to non-refoulement relate to this country being a signatory to the 1951 Convention relating to the Status of Refugees. The Tribunal may also consider complementary protection, where it is relevant. VCBP is a citizen of the United Kingdom and made no submissions about a risk of a specific type of harm, should he be repatriated. The Tribunal finds that this other consideration is not engaged.
Strength, nature and duration of ties (paragraph 14.2)
The Direction requires decision-makers to have regard to how long the non-citizen has resided in Australia, and that less weight should be given where the non-citizen began offending soon after arriving in Australia and more weight should be given to the time the person has spent contributing positively to the Australian community.
As set out above, VCBP has spent almost all his adult life in Australia. His parents are Australian citizens, as are his siblings and his two sons. His offending regrettably began not many years after arrival in Australia and as the National Police Certificate shows, is extensive; although there have been periods where VCBP has clearly tried to reform. VCBP’s periods of work are positive contributions, but he has also been incarcerated on several occasions.
Because of his significant family structure here, especially his children, the Tribunal finds this other consideration weighs against mandatory cancellation of VCBP’s visa.
Impact on Australian business interests (paragraph 14.3)
Counsel submitted that this consideration was not relevant to the VCBP’s circumstances. The Tribunal notes that VCBP has worked as a welder and made some contribution to the national economy, but the Direction states that this consideration should generally only be given weight where non-revocation would significantly compromise the delivery of a major project or important service in Australia. The Tribunal finds that this other consideration is not engaged in this review.
Impact on victims (paragraph 14.4)
The Direction requires a decision-maker to consider the impact on victims of a non-citizen’s criminal behaviour and impact on their family members where that information is available. The Respondent submitted that there was no information before the Tribunal on this subject. While there were statements contained in the papers about the immediate impact on VCBP’s two former domestic partners in relation to incidents of assault, they were not in the nature of contemporary information on subsequent impact. The Tribunal finds that this consideration weighs neutrally in this review.
Extent of impediments if removed (paragraph 14.5)
The Direction requires that a decision-maker must consider the extent of impediments on a person in re-establishing themselves and maintaining basic living standards in their home country, in the context of what is generally available to other citizens of that country. The Tribunal must take into account VCBP’s age and health, any language or cultural barriers and any social, medical or economic support available to him in the United Kingdom.
The Tribunal notes that VCBP has been diagnosed with epilepsy which is not completely stable. The Tribunal, under section 33 of the AAT Act, has informed itself about support for persons with epilepsy under the National Health Service (NHS), the United Kingdom’s universal health system. The NHS on-line information sheet relating to sodium valproate states:
Can I get epilepsy medicines for free?
If you have epilepsy, you’re entitled to free prescriptions for all your medicines (not just your epilepsy ones). To claim your free prescriptions you’ll need a medical exemption certificate. The application form for the medical exception certificate is called FP92A. You can get this from your doctor’s surgery. You will need to fill in the form, then your doctor will sign it and send it off.
It would appear to the Tribunal that, should VCBP be repatriated, being a citizen of the United Kingdom he would be able to avail himself of the free medicine scheme referred to in this information sheet. The Tribunal notes that the NHS also has methadone programmes available for eligible persons and, as VCBP has been deemed to be eligible for such treatment in Australia, he could present this documentation in the UK.
It is clear that VCBP has some mental health challenges from his drug addiction and perhaps added to by the childhood trauma and it is noted that the NHS has a range of professional mental health support services to which he would have access, as a UK citizen.
VCBP has been in Australia continuously since the age of 19, some 26 years. This is almost all his adult life. The Tribunal accepts, as did the Respondent in submissions, that there would be difficulties in him re-establishing himself. WC states in his written statement (Exhibit A5) that he has siblings in the UK but that he has had no contact with them for years and there was a falling out with some of them. The consistent evidence from family witnesses was that any relatives in Scotland are distant.
The Tribunal notes the evidence from EDB that Perth, the Scottish city they grew up in, has a significant drug culture. However, if VCBP is deported, he is not being deported to his town of origin. He would be able to re-establish himself in any constituent country of the United Kingdom.
The Tribunal finds that this consideration weighs in favour of the mandatory cancellation, but not strongly so.
CONCLUSION
In considering the question of is there ‘any other reason’ that the mandatory cancellation of a non-citizen’s visa should be set aside, the Tribunal is not limited only to consider the matters set out in the Direction. Apart from potential separation from his children and his wider family, the significant matter which counsel submitted should be taken into account was the trauma of childhood sex abuse and how that has affected the subsequent behaviour of the Applicant. The Tribunal has considered those submissions above and accepts that the abuse claim has foundation, but not that this is determinant in regard to restoration of VCBP’s visa. He has a long history of offending, much of it at the lower end of the scale and directly related to his drug addiction, but he also openly accepted responsibility for an armed robbery; and for two recent and serious domestic assaults against his domestic partners.
It is the finding of the Tribunal that the primary consideration which weighs in favour of revoking the mandatory cancellation of VCBP’s visa, the best interests of minor children, and the other consideration which also weighs in his favour, the strength, nature and duration of ties, are outweighed by the primary and other considerations which weigh against revocation.
DECISION
The Tribunal affirms the decision not to revoke the mandatory cancellation of the Applicant’s Class BB Subclass 155 Five Year Resident Return visa.
129. I certify that the preceding 128 (one hundred and twenty-eight) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
130.
131.
……[sgd]…………………………………
Associate
Dated: 6 March 2019Date of hearing: 25 – 26 February 2019
Counsel for the Applicant: Ms Veronika Drago
Solicitors for the Applicant: Abode Migration Lawyers
Counsel for the Respondent: Ms Kylie McInnes
Solicitors for the Respondent: Australian Government SolicitorAppendix 1
Court
Court Date
Offence
Court Result
Latrobe Valley Magistrates Court
11 Apr 2018
Recklessly cause injury Contra-fam viol interv order – int harm/fear Threat to inflict serious injury
Commit indictable offence whilst on bail grantedAggregate 4 months imprisonment concurrent.
Convicted and a community correction order for 12 months.
Unpaid community work perform 100 hours of community workDandenong Magistrates Court
20 Sept 2017
Contravene community correction order
Proven
Heidelberg Mag Crt Sit at Melb
22 Mar 2016
Possess controlled weapon without excuse (2 charges)
Possess heroin
ACT prejud sec/good order/management gaol
Aggregate 7 days imprisonment.
ConcurrentWith conviction, fined an aggregate of $200.00
With conviction, fined an aggregate of $200.00Dandenong Magistrates Court
23 Sept 2015
Intentionally cause injury
Unlawful assault
Unlawfully beat another person
Refuse to leave place after warning
Intentionally damage property
State false name when requested
Use other drug of dependence
Fail to answer bail granted (2 charges)Possess prohibited weapon w/o exemption/approval
Possess drug of dependence (not named)
Contravene community correction order
8 months imprisonment.
ConcurrentConvicted and a community correction order for 12 months
Convicted and a community correction order for 12 months
Convicted and a community correction order for 12 monthsProven
Dandenong Magistrates Court
16 May 2014
Unlawful assault
(2 charges)
Fail to answer bail granted (6 charges)
Theft from shop (shopsteal) (3 charges)
Possess amphetamine
Deal property suspected proceed of crime
Possess cannabis
Possess drug of dependence (not named)Convicted and a community correction order for 12 months
Dandenong Magistrates Court
18 May 2010
Failure to comply with cbo
Breach re 20/04/2009
Intentionally damage property
Unlawful assault
Carry proh weapon w/o exemption/approval (3 charges)
Unlicensed drivingProven
Aggregate 4 months imprisonment
Concurrent
Sentence is wholly suspended under s 27 of the Sentencing Act 1991
Operational period is 2 years
Melbourne Magistrates Court
20 Apr 2009
Intentionally damage property
Unlawful assault
Unlicensed driving
Carry proh weapon w/o exemption/approval
Carry proh weapon w/o exemption/approval
Carry proh weapon w/o exemption/approvalConvicted and a community based order for 18 months to perform 100 hours of unpaid community work over 12 months
Convicted and a community based order for 18 months to perform 100 hours of unpaid community work over 12 months
Convicted and a community based order for 18 months to perform 100 hours of unpaid community work over 12 months
Convicted and a community based order for 18 months to perform 100 hours of unpaid community work over 12 months
Dandenong Magistrates Court
9 Dec 2004
Unlawful assault
Fail to answer bail granted (3 charges)
Use amphetamine
State false name when requested
Breach of suspended sentence orderPossess amphetamine
Possess controlled weapon without excuse
Possess amphetamine
Breach of suspended sentence orderAggregate 4 months imprisonment
Concurrent
Sentence is wholly suspended under s 27 of the Sentencing Act 1991
For 15 months
With conviction, fined an aggregate of $500.00Aggregate 4 months imprisonment.
Concurrent.
Sentence is wholly suspended under s 27 of the Sentencing Act 1991.
For 15 months.With conviction, fined an aggregate of $500.00
Proven
Dandenong Magistrates Court
5 Sep 2003
Possess a drug of dependence
Use cannabis
With conviction, fined an aggregate of $300.00
With conviction, fined an aggregate of $300.00
Dandenong Magistrates Court
1 Sep 2003
Theft from shop (shopsteal)
30 days imprisonment.
Concurrent.
Sentence is partially suspended under s 27 of the Sentencing Act 1991.
Term to be served is 2 days.
For 12 months.Dandenong Magistrates Court
25 March 2002
Possess controlled weapon without excuse
With conviction, fined $200.00 with $34.00 statutory costs.
Morwell County Court
29 Nov 2000
Armed robbery
18 months imprisonment.
Moe Magistrates Court
15 Jun 1999
Possess cannabis
With conviction, fined $250.00 with $33.00 statutory costs.
Melbourne Magistrates Court
1 Apr 1999
Breach re 16/02/1998
ex. prescribed concentration
3 hrs – breath drive without “p” plates displayed
Fail to notify change of name/addressIn default of payment of $110.50 to be imprisoned for 2 days
Dandenong Magistrates Court
12 Nov 1998
Handle/receive/retention stolen goods (3 charges)
Obtain property by deception (4 charges)
BurglaryTheft
Aggregate 9 months imprisonment.
ConcurrentAggregate 9 months imprisonment.
Concurrent.Pay compensation $900.00
Moe Magistrates Court
16 Feb 1998
Ex. prescribed concentration 3 hrs-breath
Drive without “p” plates displayedFail to notify change of name/address
Failure to comply with cbo
Breach re 14/02/1997
Theft of a motor vehicle
Go equipped to steal/cheat
Burglary (3 charges)
Theft (3 charges)
Attempt burglaryConvicted and fined $310.
License cancelled and disqualified for 6 months.
To pay $50.50 cost.Convicted and fined $75 on each charge.
All license and permits suspended for 1 month.Convicted and fined $75 on each charge.
Convicted and discharged.
Breach of community based order. Order cancelled. 50 days imprisonment on each charge concurrent.Dandenong Magistrates Court
14 Feb 1997
Theft of a motor vehicle
Go equipped to steal/cheat
Burglary (3 charges)
Theft (3 charges)
Attempt burglaryConvicted community based order for 12 months. To perform 250 hours unpaid community work.
Appendix 2
Exhibits
A1 Medical report from Dr Dennis Joyce dated 29 January 2019
A2 Statement of the Applicant dated 4 February 2019
A3 Statutory declaration of TD dated 5 February 2019
A4 Statutory declaration of MCC dated 1 February 2019
A5 Statutory declaration of WC dated 5 February 2019
A6 Statutory declaration of FGC dated 4 February 2019
A7 Report of Donna Gee, clinical psychologist, dated 5 February 2019
A8 Statutory declaration of EDB dated 4 February 2019
A9 Statutory declaration of SC dated 4 February 2019
A10University of Sydney Law School submission to the Royal Commission into Institutional Responses to Childhood Sexual Abuse titled ‘The Impact of Delayed Reporting on the Presentation and Outcomes of Child Sexual Abuse Claims’ dated August 2016
A11 Final Report of the Royal Commission into Institutional Responses to Childhood Sexual Abuse – recommendations (extract)
A12 Hansard, Legislative Council of Victoria 5 May 2015 (Extract)
A13 Explanatory Memoranda for Jury Directions Bill 2015 (Victoria)
R1 G documents (volumes 1 to 3)
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