VFQY and Minister for Home Affairs (Migration)
[2019] AATA 11
•9 January 2019
VFQY and Minister for Home Affairs (Migration) [2019] AATA 11 (9 January 2019)
Division:GENERAL DIVISION
File Number: 2018/6230
Re:VFQY
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Mr A. Maryniak QC, Member
Date:9 January 2019
Place:Melbourne
The Tribunal sets aside the decision under review and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s visa under s 501CA of the Migration Act 1958.
..............................[sgd]..........................................
Mr A. Maryniak QC, MemberCatchwords
MIGRATION – mandatory cancellation of applicant’s visa under s 501(3A) – applicant concedes he does not pass the character test – substantial criminal record – applicant sentenced to more than 12 months imprisonment – whether discretion to revoke mandatory cancellation should be exercised – protection of the Australian community – risk of reoffending – expectations of the Australian community – significant and positive family ties to Australia – extent of impediments if removed to the United Kingdom – decision set aside and substituted
Legislation
Migration Act 1958, ss. 5, 5(1), 29(1), 30, 31(2), 31(3), 36, 499(1), 499(2A), 501CA(4), 501(3A), 501(6) (a), 501(7)(c)
Migration Regulations 1994, reg. 2.53
Cases
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
R v McKee & Brooks [2003] VSCA 16
Secondary Materials
Migration Act 1958 – Direction No 65 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under
s 501CA (dated 22 December 2014)
REASONS FOR DECISION
Mr A. Maryniak QC, Member
9 January 2019
The Applicant seeks review of a decision made on 15 October 2018 by a delegate of the Respondent not to revoke the cancellation of his Class BF Transitional (Permanent) visa. The cancellation decision was made under subsection 501(3A) of the Migration Act 1958 (‘the Act’) on 16 February 2018.
The delegate decided that the Applicant had not passed the character test because he had a substantial criminal record and was at the time serving a sentence of imprisonment of over 12 months: ss. 501(6)(a) and (7)(c) of the Act.
The hearing of this matter occurred on 2 and 3 January 2019. The Applicant, the Applicant’s mother, the Applicant’s daughter to his second wife Ms D and Mr Tim
Watson-Munro, Consultant Psychologist, gave oral evidence on behalf of the Applicant, were cross-examined and questioned by the Tribunal.
Additionally, the G Documents and Supplementary G Documents were tendered, three further statements from the Applicant, together with other witness statements, letters and medical material relating to the health of the Applicant’s son in law and his mother: A1 to A13.
The evidence was at times highly personal with respect to the very unfortunate sexual abuse the Applicant was subjected to in his teenage years after arriving in Australia. The evidence of all witnesses was compelling and the Tribunal finds that all witnesses were witnesses of truth. Essentially, Counsel for the Respondent conceded as much, particularly in respect of the evidence of the Applicant’s sexual abuse.
The Tribunal has carefully considered the oral testimony together with all of the documentary evidence before it.
BACKGROUND
The Applicant’s Amended Statement of Facts Issues and Contentions sets out the relevant background and is not relevantly challenged by the Respondent. For convenience the Tribunal sets out such facts below and finds such facts established.
The Applicant was born in May 1954 in Cairo, Egypt. He is now aged 64 ½ years. He is a citizen of the United Kingdom (‘UK’).
The Applicant’s mother was born in Egypt but was a British subject because her father was born in Malta, which was then a British colony. At the time of her birth in 1936 her father was serving with the British armed forces stationed in Cairo.
When the Applicant’s mother was 17 she fell pregnant to the Applicant’s father and they married a few months before she turned 18. She gave birth to the Applicant shortly after her 18th birthday.
The Applicant’s father frequently assaulted the Applicant’s mother while they lived together.
Following the Suez Crisis in 1956, British subjects were required to leave Egypt. The Applicant’s mother left for the UK in 1957, taking her son with her. The Applicant’s father stayed behind. The Applicant has no memory of his time in Egypt.
The Applicant and his mother arrived in the UK in about September/October 1957 and moved to Gloucestershire, initially staying in a hostel for the Maltese people who had been displaced from Egypt. Later they moved to a council flat.
While they lived in the hostel the Applicant’s mother met the Applicant’s stepfather. Initially he seemed to be pleasant and to care for the Applicant, but later revealed himself to be a heavy drinker who was violent towards the Applicant and his mother.
The Applicant’s mother and stepfather had three children together, two half-sisters and a half-brother to the Applicant:
·His eldest half-sister was born in 1960, and died in January 2017;
·His half-brother was born in 1963; and
·His youngest half-sister was born in 1965.
In 1964 the High Court of Justice in England granted a decree nisi to dissolve the marriage between the Applicant’s mother and natural father on the ground that he had treated her with cruelty. The divorce became final in 1964. The Applicant’s mother and stepfather married shortly afterwards.
The family immigrated to Australia in April 1966, just prior to the Applicant’s 12th birthday. They lived with one of the Applicant’s mother’s sisters and then with another sister, before purchasing a home in the same suburb.
When the family lived with his mother’s eldest sister, the Applicant’s uncle sexually molested him on one occasion. Although the Applicant complained to his mother about this abuse, nothing was done.
The Applicant has not left Australia since arriving in April 1966. He has few memories of his years in Gloucestershire.
In 1969, shortly before turning 15, the Applicant changed his name to take his stepfather’s surname.
The Applicant was heavily involved in the upbringing of his younger siblings from an early age because both parents worked. The Applicant’s mother was away from the home for 12 hours most days. The Applicant’s stepfather also worked long hours, which for a while led to the abatement of his drinking and violence toward the Applicant and his mother.
The Applicant attended a local high school but did not cope well at school. His academic progress was slow and other children bullied him and called him a “wog”. He began to skip school. His truancy was unnoticed because of his parents’ absence from the home.
When the Applicant was 14, his stepfather arranged a job at the factory at which he was working, but because of his stepfather’s poor behaviour at work, the Applicant was embarrassed and worked there only briefly.
To earn money, the Applicant began to run errands for the owners of cafes and other small businesses on nearby Sydney Road. Sometimes he was paid for his work, but at other times they gave him drugs. Initially this was marijuana, but by the time he was 15, he had been exposed to ‘harder drugs’, such as LSD. When he was aged 18, he was first introduced to heroin. This led to his long-term addiction to heroin.
In 1968, when he was aged 14, the Applicant appeared before the Children’s Court for the first time. This Court appearance was in respect of two charges of larceny. The charges were adjourned for 52 weeks.
Around the time the Applicant was aged 16, he was held in custody at Turana Youth Training Centre in Parkville. He was threatened by some other boys and forced to perform oral sex on one of them. This sexual abuse was suppressed by the Applicant and he has only revealed it and started dealing with it over the last few years.
In 1970 the Children’s Court placed the Applicant on probation for 52 weeks on charges of larceny and larceny of a motor vehicle.
In 1972 the Applicant met his first wife, Ms B.
Also, in 1972 the Applicant was involved in a fight in a local suburb between a group of his friends and another group of young men. The Magistrates’ Court sentenced him to 14 days imprisonment and placed him on probation for 12 months for two charges of assault in company.
Between 1973 and 1977 the Applicant appeared in Court on five occasions. The most serious of the charges he faced in this time was for offences including breaking and entering to a shop (4 charges), robbery in company with violence (2 charges), attempted armed robbery in company and further charges of larceny of a motor vehicle. In 1973 he was sentenced by the County Court to three years detention in a youth training centre on each charge, to be served concurrently. While serving this sentence he was allowed to go home on weekends. He served part of this sentence and was released on probation for the balance of the sentence.
Through his first wife, the Applicant met another heroin addict Mr D. In April 1979 the Applicant and Mr D together committed a bank robbery, while Mr D was armed with his gun, a sawn-off rifle. They were arrested shortly after the offence. The Supreme Court sentenced the Applicant to six years imprisonment and fixed a non-parole period of 4 and a half years.
While the Applicant was serving this sentence, his wife gave birth to their first child, a son. In 1986 they had a second child together, a daughter. However around 1987 or 1988 the Applicant left the family, having taken the view they were better off without him. He was homeless for about 18 months, before being sentenced to another term of imprisonment for offences, including burglary (8 charges) and theft (8 charges).
In the 1990s the Applicant committed further offences, including burglary, theft and other dishonesty offences, for which he received further terms of imprisonment.
In 1992 the Applicant met his second wife Ms D, another heroin addict. Later she became pregnant and they married. The Applicant began working as a driver for Meals on Wheels, working 3 and a half hours each day.
In August 1994 their daughter Ms A was born. She was a “heroin baby”. The Applicant took care of her after she left hospital and during the period of detoxification, because
Ms D remained at the hospital.
Ms D continued to use heroin after coming home from hospital. The Applicant’s earnings were spent on her heroin habit. They lived together sporadically, but she would kick him out when he didn’t pay her, and allow him to return when he did. She effectively blackmailed the Applicant, using his close relationship to her.
In about 2001 the relationship ended, and the Applicant applied for shared custody of their daughter Ms A. The Court granted “week about” custody to both parents. The Applicant lived with his parents at this time.
In 2003 the Applicant commenced another relationship with a younger woman, Ms E, which lasted for about five years.
During the early 2000s the Applicant received further sentences of imprisonment, one suspended and the other served by way of an intensive correction order. The penultimate occasion on which he was sentenced to an immediate term of imprisonment was in 2008 for offences including the cultivation of cannabis. The Applicant and Ms E were caught when they were “crop-sitting” for one of her friends.
In 2012 the Applicant was placed on a suspended sentence of imprisonment for burglary and theft and also on a community correction order for using heroin. He complied with these orders and did not reoffend until October 2016.
In 2013 the Applicant’s daughter, Ms A, and her then boyfriend moved to live with the Applicant full-time.
From around September 2016 the Applicant’s half-sister Ms C, who was until then estranged from her family, frequently contacted the Applicant while she was drunk, seeking his help to intervene with their parents on her behalf. The Applicant encouraged his parents to speak to her, but they would not do so. The Applicant felt guilty that he could not assist her.
At this time the Applicant was on a methadone program. He was attending a pharmacy each day to collect his methadone and there reconnected with a former friend Mr S, who was attending the same pharmacy. In the past Mr S had lent small amounts of money to the Applicant.
In October 2016, on the day of the burglary, Mr S asked the Applicant for help with a safe. The Applicant agreed because of a misguided sense of loyalty to Mr S, who had helped him in the past. Mr S and the Applicant committed a burglary at a home. They stole a safe which contained two expensive wristwatches, a wallet, two rings and some Chinese currency. After the offence Mr S attempted to contact the Applicant on many occasions, but the Applicant did not answer the calls which he could see came from Mr S’s number. On one occasion when they saw each other at the pharmacy Mr S asked him to do “another job”. The Applicant refused and told Mr S not to call him again.
The Applicant was identified from CCTV footage taken in the home while he and Mr S were committing these offences.
In November 2016 the Applicant was arrested, interviewed and charged with burglary and theft. Police released him on bail to appear at Court on a later date.
In January 2017, the Applicant’s sister Ms C died.
In February 2017, the Applicant’s daughter Ms A married her boyfriend.
In August 2017 the Applicant pleaded guilty to the burglary and theft committed in October 2016. The Magistrates’ Court sentenced him to 12 months imprisonment, with a
non-parole period of six months. He appealed against that sentence and was released on bail pending the appeal.
In November 2017 the Applicant abandoned the appeal and commenced serving the sentence imposed by the Magistrate. For the period of more than 12 months since the offences of October 2016, the Applicant had remained drug free and had not reoffended.
On 16 February 2018 a delegate of the Minister cancelled the Applicant’s visa under subsection 501(3A) of the Act. The Department notified the Applicant of this by letter of the same date. In accordance with subsection 501CA(3)(b) the Department invited the Applicant to make representations to the Minister about revocation of the original decision.
On 20 February 2018 the Applicant requested revocation of the cancellation in the manner prescribed by Migration Regulations 1994: reg. 2.53.
In the following months there was further correspondence between the Department and the Applicant’s representative, including the submission of supporting material on behalf of the Applicant and further information given by the Department for comment.
On 15 October 2018 a delegate of the Respondent decided not to revoke the cancellation of the Applicant’s visa.
On 25 October 2018 the Applicant applied to the Tribunal for review of the decision not to revoke the cancellation.
While the Applicant was completing his sentence and during the time he has been held in immigration detention, he did not use drugs. He has been a model detainee and has recently been transferred to a minimum security area.
The Applicant’s parents are both elderly and require assistance. The Applicant’s mother is 82 years old and in poor health. She suffers from depression and anxiety and is likely to develop a major depressive disorder if the Applicant were removed from Australia.
The Applicant’s daughter Ms A is pregnant with her first child and is due to give birth in April 2019. She suffers from symptoms consistent with depression/generalized anxiety and chronic post-traumatic stress disorder. She and the Applicant are very close, speaking to each other numerous times each day via telephone from detention.
Her husband, the Applicant’s son-in-law, suffers from a serious medical condition called beta thalassemia major, a life-threatening genetic disorder that affects the production of haemoglobin, resulting in severe anaemia. The Applicant has provided substantial support and assistance to him with his treatment for this illness and related complications.
LEGISLATIVE BACKGROUND
Subject to the terms of the Act, the Minister may grant a non-citizen[1] permission either to travel to and enter Australia or remain in Australia. That permission takes the form of a visa.[2] A visa may be subject to conditions. It may be permanent, allowing the person to remain in Australia indefinitely, or it may be temporary, allowing the person to remain during a specified period, for a specified event or while the holder has a specified status.[3] There are various classes of visa set out in s 31(2) and others may be specified in regulations made under the Act. Regulations may specify the criteria that must be met for a visa of a specified class[4] as do specific provisions of the Act.[5]
[1] A non-citizen is a person who is not an Australian citizen: Migration Act 1958; s 5(1).
[2] Migration Act 1958; ss 5 and 29(1).
[3] Migration Act 1958; s 30.
[4] Migration Act 1958; s 31(3)
[5] See, for example, s 36 in relation to protection visas.
The Minister must cancel a visa if satisfied that the Applicant does not pass the character test because of a ‘substantial criminal record’: s 501(3A) of the Act. The Applicant has a ‘substantial criminal record’ as he has been sentenced to a term of imprisonment of more than 12 months: s 501(7)(c) of the Act. The Applicant concedes he does not pass the character test.
The Minister and this Tribunal, may revoke the decision made under s 501(3A) if the Applicant makes representations and satisfies the Tribunal that there is ‘another reason’ why the original decision should be revoked: s 501CA(4).
Under s 499(1) of the Act, the Minister may give directions about the exercise of functions or powers under the Act and on 23 December 2014, Ministerial Direction 65 (‘the Direction’) came into operation. The Tribunal is mandated by s 499(2A) to comply with the Direction in making its decision.
The Tribunal is required to apply the relevant considerations of the Direction including the Preamble (Objectives, General Guidance and Principles) and the Primary and Other Considerations at Part C, as well as any other representations.
Clause 13 of Part C of the Direction sets out primary considerations to be taken into account when considering whether to revoke the mandatory cancellation of an Applicant’s visa:
(a)Protection of the Australian community from criminal or other serious conduct;
(b)The best interests of minor children in Australia;
(c)Expectations of the Australian community.
Clause 14 of Part C provides the other considerations which must be taken into account, where relevant. They include (but are not limited to):
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on victims;
(d)Extent of impediments if removed.
These considerations are given their raison d’être by the principles set out in paragraph 6.3 of the Direction which 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 vulnerable members of the community such as minors, 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.
PRIMARY CONSIDERATIONS
Protection of the Australian Community
The Applicant concedes that he does not pass the character test. The issue before the Tribunal is whether it is satisfied (standing in the shoes of the Respondent) there is another reason why cancellation of the Applicant’s visa should be revoked.
The Tribunal is to have regard to the nature, extent and seriousness of the Applicant’s conduct and the risk to the Australian community should he reoffend or commit other serious conduct.
The Tribunal considers that the Applicant’s offending is objectively serious, involving offences committed over a sustained period which include threats and use of violence and drug proliferation. It follows that if such offending were repeated it would pose a significant risk of harm to the Australian community and this risk must be assessed in detail.
At first glance, the Applicant’s life in Australia has not been one displaying any respect for the privilege of living in Australia. As the Respondent points out, he has been in and out of jail for over the last 50 years.
The Applicant’s substantial criminal history was closely related to his use of heroin. His offences involving violence were committed many years ago. None of his offending has involved the actual infliction of physical harm to any person. However, all his offending including his most recent offence in October 2016 are conceded to be, and found by the Tribunal, to be serious.
It is clear from the evidence that the Applicant is not a sophisticated or necessarily hardened criminal. The evidence suggests rather that he was easily influenced by others and mostly a secondary participant. In many cases, pure stupidity seems to have been a relevant factor leading to his criminal behaviour together with the negative influences of former associates and drug use and dependency. Such factors of course, do not excuse the Applicant’s criminal behaviour.
Yet a darker, more sinister aspect to the Applicant’s life lies at the foundation of his years of anti-social behaviour in Australia. Mr Tim Watson-Munro, Consultant Psychologist, gave independent evidence in respect of the Applicant in a report dated 6 December 2018 and through oral evidence. Mr Watson-Munro was of the following opinion:
His addiction has had a major impact upon his ability to negotiate his life. He has had three failed relationships and has three children from his first two. The first marriage ended because of drug use and criminal activity and the second de facto relationship ended under similar circumstances. The third relationship ended due to co-dependency drug issues. He describes a very close relationship with his younger daughter and indeed this was confirmed through separate conversations with her. [The Applicant] is highly anxious about the impact of his deportation upon his children, as well as his elderly parents who have been apparently highly distressed by his current predicament.
Reflective of his prior stability before he reoffended, [the Applicant] had procured a housing commission home. This has been left available to him until February 2019. He stated that if he is permitted to remain in Australia, he will recommence with treatment and return to his house. He has some aspirations of part-time work, although as noted, in the context of him suffering a range of health problems and him being on a Disability Pension, the likelihood of this occurring I believe is remote. He has been diagnosed with Diabetes Type 2 in recent times and is also suffering a thyroid deficiency.
[The Applicant] requires ongoing psychological attention to address his problems. His depression is of lifelong duration, as is his anxiety. It arises from early childhood abuse involving not only physical and emotional abuse from his step-father but also a claim that he was sexually abused by an uncle, as well as being sexually attacked at the Turana Youth Training Centre as a teenager. He would respond well to Cognitive Behaviour Therapy focussed upon the further development of relapse prevention strategies, systematic desensitisation for his anxiety, social skills training for his low self-esteem, as well as supportive and motivational psychotherapy. At his age, I believe that he has reached a point of “criminal burnout” and that with continuing support, supervision and treatment, the likelihood of him reoffending in the future is low.
The compelling evidence of the sexual abuse of the Applicant (then aged 12) by an uncle and a later incident where the Applicant was forced to perform oral sex by a group of older boys whilst in custody at Turana Youth Training Centre, has only come to light since the delegate’s decision not to revoke. The recent aspect of this evidence was thoroughly tested by the Respondent’s representative through cross-examination and by questions from the Tribunal. The Respondent makes no point regarding the fact that the Applicant has essentially buried these traumatic past events over decades and has only commenced dealing with them in a meaningful way over the last few years.
True it is that the Applicant’s ‘low’ likelihood of reoffending is inextricably linked to him receiving continuing ‘support, supervision and treatment’. The Respondent properly highlighted this.
However, now that the Applicant has faced up to two very unfortunate instances of sexual abuse and perhaps more importantly has seen his daughter Ms A (who has virtually no contact with her mother), develop into a most impressive young woman, the Tribunal is of the opinion that the Applicant is and will be highly motivated to make more positive contributions to Australia. The threat of deportation is highly likely to prevent any
reoffending.
Despite a very difficult upbringing with a heroin addicted mother, the Applicant’s daughter, Ms A, at 24, is six months pregnant, has a full-time job and two part-time jobs and has a husband who is very, very ill and requires lengthy blood transfusions about three times a week at hospital.
The evidence shows that the Applicant has since at least around 2012 seen the joy, value, responsibilities and stability of family life and his pride and love for his
daughter Ms A, was clearly obvious from the evidence. The Applicant’s daughter Ms A sees the Applicant as her ‘Mum and Dad’.
The Applicant’s mother also gave compelling evidence of how she was ‘stupid’ years ago in the handling of the abuse the Applicant had reported to her from his uncle, basically going into denial. The Tribunal notes that matters of sexual abuse were generally dealt with very inadequately decades ago as the recent Royal Commission in Australia has established.
The Applicant’s relatively isolated recent serious offence (since 2012) appears to have occurred at a weak moment, again through sheer stupidity as much as anything else. It occurred after a period of some years of non-offending and abstinence from illegal drugs.
The comments of Buchanan JA in R v McKee & Brooks[6] are apposite here, particularly when one adds the overlay of abuse which the Applicant was subjected to during his childhood:
The extent to which a decision to experiment with drugs is freely made, in my view, bears upon the moral culpability of the offender who commits a crime as a consequence of addiction to drugs. Age is relevant to the question, as Spigelman, C.J. acknowledged. I would add that in the case of adults, despair and low self-regard may also play a significant part in the decision to use drugs and that condition may be the result of social or economic disadvantage, poor education or emotional or physical abuse. An addiction to heroin may also bear upon the question of rehabilitation, where the prospects of success will often depend upon the likelihood of the addiction being successfully treated. In my view, a sentencing judge may have regard to the circumstances which led to an addiction that caused the commission of the offence and to whether the addiction has continued or is being treated in deciding upon a sentence appropriately tailored to the personal circumstances of the offender.
[6] [2003] VSCA 16 at [13]
The other highly motivating factor for the Applicant is that he now realises that this is his last chance. Should the Applicant commit any further relevant offences it is highly likely that his visa will be revoked permanently and his entitlement to live in Australia will end. The Tribunal finds it is unlikely the Applicant will reoffend in circumstances which may result in him being removed from Australia and his family members, especially his daughter Ms A.
The Applicant has over recent years been turning his life around and presently has stable housing. His daughter Ms A and her husband plan to again live with him, in his house. It is evident that they and the extended family members will assist each other with the many challenges which they face. It is apparent that with effort and commitment, such an environment will be a positive one for the Applicant’s granddaughter as well. Whilst beyond the role of this Tribunal, it is hoped that the Applicant’s daughter Ms A is getting any psychological support she may require.
The circumstances leading up to the Applicant’s latest offending in October 2016 are important. His offending on that occasion was more driven by his stupidity and weakness. The Applicant was reluctant but agreed to the request of Mr S.
The Applicant then took about two hours to drive from the Coburg area to the Glen Waverley area delaying his journey, hoping that the residents would arrive home so that the burglary could be abandoned. Upon arrival, the Applicant took a hit of heroin, his first for a number of years to get the ‘courage’ to assist physically in the burglary.
This lead up behaviour of the Applicant, whilst in no way excusing his serious offending, suggests that at October 2016, the Applicant had reached the stage in his difficult life as a drifter and criminal to appreciate that he should no longer participate in offending the laws of Australia, and get his life together. The Tribunal accepts that this has occurred quite late in the Applicant’s life yet finds that it has, in fact, occurred.
Consistent with this is the fact that he told his much loved daughter Ms A of his offending very shortly after it took place. Further, the evidence confirms that the Applicant’s participation in the offending was not motivated by greed or access to heroin, and the Tribunal so finds. Again, it appears to have occurred as an act of stupidity and an inability to stand up to an unwelcome request from an old acquaintance.
The Respondent put the concern before the Tribunal of the lack of any structured arrangement to facilitate the requisite ‘support, supervision and treatment’ as discussed by Mr Watson-Munro, to maintain the Applicant’s risk of reoffending at low. The Tribunal is satisfied, on balance, that the Applicant’s daughter, Ms A, his mother, his son-in-law and his family (and indeed the Applicant himself) will facilitate such arrangements to keep the Applicant on ‘the straight and narrow’ and hence ensure his continuing ability to remain a resident of Australia.
The Applicant’s daughter Ms A is exceptionally strong as is the love between the Applicant and his daughter. The Tribunal would be surprised if the Applicant let himself and her down by any future reoffending. Now more than ever, the Applicant’s daughter Ms A needs her “Mum and Dad” in the Applicant.
The Applicant accepts and the Tribunal finds that there is an evidentiary ‘wrinkle’ within the Applicant’s early statements regarding the date of the unfortunate death of the Applicant’s sister Ms C. In the context of the entirety of the evidence and in light of the explanation of the chronological error, the Tribunal does not consider that such a ‘wrinkle’, now explained, detracts from what it considers to be the overall truthfulness of the Applicant’s evidence, which was relevantly supported by the evidence of other witnesses.
On balance, upon the facts found and discussed above, including the sexual abuse inflicted upon the Applicant as a teenager whilst in the custody of an Australian state institution, the Tribunal finds that the Applicant should be permitted to remain in Australia, continue to deal properly with his past through psychological and related support and continue his family life with the support of his daughter Ms A, son-in-law and mother. It is clear that he will also provide support to these individuals and his future granddaughter, once she is born.
In the premises, the Tribunal finds that the risk of the Applicant reoffending is low, and powerful family issues will keep the Applicant from reoffending. The Tribunal holds that on the evidence, this primary consideration weighs just in favour of the Applicant.
Best interests of minor children
The Applicant’s daughter is expecting a daughter in April. At the time of this decision there are no relevant minor children to consider the interests of. This consideration is therefore not inapplicable.
Expectations of the Australian community
The Federal Court has held that this primary consideration is inextricably linked to the primary consideration regarding protection of the Australian community.[7]
[7] YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
The analysis and findings above with respect to protection of the Australian community are also applicable here. In addition, the Tribunal finds that a fair minded ordinary Australian would expect the Applicant to be given a chance to continue his life in Australia in the circumstances of this case. The Tribunal finds that this consideration militates in favour of revoking the visa cancellation.
OTHER CONSIDERATIONS
The strength, nature and duration of the Applicant’s ties to Australia
The Applicant’s mother, his daughter Ms A, his son-in-law, his parents and the Applicant himself will be devastated if the Applicant is removed from Australia. He has lived in Australia for over 50 year and has significant and positive family ties in Australia.
The Tribunal finds that this consideration very strongly favours the revocation of the cancellation of the Applicant’s visa.
Extent of impediments if removed
Whilst the Tribunal accepts that if removed to the UK the Applicant would have access to similar government assistance and services, his life would be ‘hollow’ and again without purpose – as his life appeared to be years ago following his very difficult childhood. The severe consequence of being deprived of any meaningful future contact with his mother, his daughter Ms A, his son-in-law and their unborn baby daughter would be a lifetime punishment for those innocent individuals. They will support the Applicant and encourage him to improve himself.
The Tribunal finds that this consideration strongly favours the revocation of the cancellation of the Applicant’s visa.
The remaining other considerations are not applicable in this matter.
CONCLUSION
The Tribunal concludes that, on balance, in light of the very unfortunate circumstances of the Applicant’s early life in Australia and the clear evidence that the Applicant has turned his life around, assisted by his devoted and impressive daughter Ms A and brave and loving son in law, the Applicant should be permitted to remain in Australia. Too much will be lost by all involved against the possibility of any reoffending by the Applicant, as is clear from the analysis above.
However, the Applicant must realise that if he reoffends or returns to illicit drug use, it is unlikely in the extreme that Australia will give him any second chance. Where any future misconduct warrants it, the Applicant is on clear notice that his entitlement to remain in Australia will end.
The Tribunal holds that the primary and other considerations fall just in favour of revoking the mandatory cancellation of the Applicant’s visa.
The correct and preferable decision is to revoke the mandatory cancellation of the Applicant’s visa.
DECISION
The Tribunal sets aside the decision under review and substitutes it with a decision to revoke the mandatory cancellation of the Applicant’s visa under s 501CA of the Act.
I certify that the preceding 106 (one hundred and six) paragraphs are a true copy of the reasons for the decision herein of Mr A. Maryniak QC, Member.
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Associate
Dated: 9 January 2019
Date(s) of hearing: 2 – 3 January 2019 Counsel for the Applicant: Mr G. Hughan Solicitors for the Applicant: Ms S. Verma
Clothier Anderson Immigration LawyersSolicitors for the Respondent: Mr D. Brown
Australian Government Solicitor
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