Ward and Minister for Home Affairs (Migration)

Ward and Minister for Home Affairs (Migration) [2019] AATA 581 (29 March 2019)
Division:GENERAL DIVISION
File Number(s): 2019/0232
Re:Christopher Ward
APPLICANT

AndMinister for Home Affairs
RESPONDENT

DECISION
Tribunal:Senior Member B J Illingworth
Date:29 March 2019
Place:Sydney

The decision under review is affirmed.
..............................[sgd].................................
Senior Member B J Illingworth
CATCHWORDS
MIGRATION – mandatory cancellation of applicant’s visa – applicant has substantial criminal record – whether discretion to revoke mandatory cancellation should be exercised – primary considerations – other considerations – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568
SECONDARY MATERIALS
Direction No. 79 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA, 20 December 2018
REASONS FOR DECISION
Senior Member B J Illingworth
29 March 2019
INTRODUCTION

This is an application for review filed by Mr Christopher Ward (“the Applicant”) on 14 January 2019. The decision the Applicant seeks to have reviewed is the decision of a delegate of the Minister for Home Affairs (“the Respondent”) dated 9 January 2019 not to revoke the mandatory cancellation of his visa.
The Applicant appeared unrepresented at the hearing. The Respondent was represented by Mr Tal Aviram of Clayton Utz solicitors.
BACKGROUND
The Applicant is a 53 year old citizen of the United Kingdom. He arrived in Australia on 20 October 1987, aged 22 years, with his wife and son. He was granted a Class BF Transitional (permanent) visa on 1 September 1994. This is the visa that is the subject of the application.
The Applicant has an extensive criminal history, having been convicted of over 20 offences between 1996 and 2016. There were two significant periods, namely between March 2003 and July 2011, and December 2013 and August 2016, where no convictions were recorded.
On 5 August 2016, the Applicant was convicted and sentenced in the Orange District Court for the following offences (“the subject offending”):
(a)assault with intent to rob armed with an offensive weapon (namely a knife); and
(b)reckless wounding.
For the subject offending, the Applicant was sentenced to five years and three months imprisonment, with a non-parole period of three years and three months. I will detail the facts of the subject offending later in this decision.
On 6 December 2017, the Applicant’s visa was mandatorily cancelled (“the Original Decision”) by a Ministerial delegate under s 501(3A) of the Migration Act 1986 (Cth) (“the Act”) on the grounds that he did not pass the character test because he had been sentenced to a term of imprisonment of at least 12 months and was serving a term of imprisonment on a full-time basis at Bathurst Correctional Centre.
On 18 December 2017, the Applicant made representations seeking revocation of the mandatory visa cancellation in the period and manner specified.
On 9 January 2019, a Ministerial delegate determined that the Minister was not satisfied that the Applicant passed the character test or that there was another reason why the Original Decision should be revoked. Accordingly, the delegate decided not to revoke the decision to cancel the Applicant’s visa.
On 14 January 2019, the Applicant lodged with the Tribunal an application for review of the delegate’s decision.
THE HEARING
The Applicant failed to file a Statement of Facts, Issues and Contentions, Outline of Argument, or Submission. He did not provide any witness statements, employment records, records of rehabilitation courses completed, or other documents in support of his application. The Tribunal was in receipt of an undated one and a half page handwritten statement addressed to the National Character Consideration Centre, Department of Home Affairs receipt stamped 22 February 2018,[1] and a Department of Immigration and Border Protection Personal Circumstances Form dated 18 December 2017.[2]
[1] Exhibit A, G Documents, pages 94 - 96.
[2] Ibid, pages 77 - 93.
The Applicant said in evidence he provided records relating to completion of the EQUIP drug rehabilitation program undertaken when in custody. He referred to a large bundle of documents sent to the Tribunal recently. Upon checking the Tribunal record after the hearing, the documents provided by the Applicant were those received with the Applicant’s original application for review on 14 January 2019.
Prior to the hearing, the Applicant was advised of his right to file such further or other material upon which he intended to rely. He said at the hearing he did not have any witnesses or other evidence. Hence, nothing further was provided to the Tribunal.
THE APPLICANT’S EVIDENCE
The Applicant was born and educated in England. He came to Australia aged 22 years with his wife and son in hope of a better life and employment. In England, he obtained his qualification as a sheet metal worker but, following the miners’ strike, there was a recession. There was no work and hence the Applicant made the decision to move to Australia.
The Applicant’s father and mother still live in England. They are aged 81 and 79 years respectively, and both receive a pension. His parents have sold their home because his mother can no longer use the stairs following a heart attack. They now live in a one bedroom Council bungalow. In November 2018, the Applicant’s mother suffered a stroke. She is now immobilised, uses a wheelchair, and cannot talk. He hopes for some improvement in her condition. His father is her carer.
The Applicant describes his father as a violent man who was a standover man for those involved in the drug trade, however he has never been imprisoned. It is in this context that the Applicant’s father was violent and, while no violence was directed towards the Applicant, this was also one of the reasons why he came to Australia.
The Applicant speaks with his parents regularly. Most recently they have told him that he cannot live with them should he return to England.
The Applicant had two brothers. His youngest brother was murdered in 1999. The Applicant returned to England for the funeral. This was the only time the Applicant has returned to England. That was also the last time he saw and spoke with his surviving brother who now lives in Glasgow, Scotland with his wife and two children. The Applicant does not know his brother’s address, nor has he met his brother’s children.
The Applicant himself has five children; three boys aged approximately 33, 21, and 19 years, and two girls aged approximately 23 and 12 years. He has no grandchildren.
His youngest daughter (“S”) has just started high school. The Applicant said she was aged about four or five years when he and his wife separated, and that the separation occurred one to two years before the Applicant was taken into custody for the subject offending. Given S is now aged 12 years, the Applicant’s estimate of dates is incorrect.
At the time the Applicant committed the subject offending, he was associating with “the wrong crowd”. He had been in a relationship with his new partner for up to two years. He regrets that relationship and says that he and his wife had discussed reconciling before he committed the subject offending. The Applicant said he had asked his wife if he could “come back”. He described his wife as being “at sixes and sevens” about reconciliation.
The Applicant said that he used drugs when in England and he continued to take drugs in Australia, but never did so at home or in front of his family. At the time of his first offence in 1996, he was taking drugs and had been for a long time. He was then taking methylamphetamine (“speed”). His drug consumption then snowballed and, from the age of 30, he was taking heroin and “speed” daily.
Between August 1996 and December 2013, the Applicant was sentenced for a number of offences including assault officer in the execution of his duty, resist arrest, offensive behaviour, high range drink driving, common assault, possess prohibited substance, and shoplifting. He was then next before the courts nearly three years later for the subject offending. He said that in December 2013, following the loss of his employ with Coles, he became homeless and unemployed.
Employment History
Following his arrival in Australia, the Applicant quickly commenced worked in the sheet metal industry in air-conditioning, mainly in manufacturing and installing commercial air-conditioning in and around Sydney. He worked for various companies for a total of approximately 15 years. He said that he was “basically constantly employed”. He then worked as a forklift driver for Coles for around seven years. After losing his job, the Applicant separated from his wife and things “fell to bits”. It was all to do with drugs.
The Applicant said that if his visa revocation is cancelled he intends to get a job. He described himself as being handy at a lot of things, having done cash in hand work. In Orange, he did metal work and welding for farmers.
The Applicant said he has a friend (“PF”) who is a builder and works in roofing. He has known him for 10 years. He has not seen that friend since being in custody but speaks to him by telephone. They last spoke about two weeks ago. The Applicant said PF has offered him work and accommodation should he be released, and that his current intention is to accept that offer. However, PF was not called to give evidence, nor did he provide a statement to the Tribunal.
Wife and Children
Following separation from his wife, he still saw her about twice a week and would babysit S when his wife had to work. He would also see his other children but he did not elaborate on the frequency and duration of that contact.
When he was living in Orange, he did not see his family much. Since being in custody for the subject offending, and when in Bathurst Correctional Centre, three of his four eldest children came to visit on one occasion. His eldest son did not visit him. His wife would visit him every now and then. He then said she visited him once at Wellington Correctional Centre, once at Long Bay Correctional Centre, and two or three times at Bathurst Correctional Centre. She would bring S to visit him. Since being in immigration detention for the last three and a half months, his wife has visited four times; three of which have been with S. The Applicant said that when he and his wife spoke about a month ago, they talked about reconciling. The Applicant has previously asked his wife if he could return to live with her when released on parole.
Rehabilitation
The Applicant said that whilst in custody for the subject offending, he completed the EQUIPS drug program which covered three courses, namely (a) Education, (b) Aggression, and (c) Foundation. It was these certificates in proof of completion that he said he a sent by facsimile to the Tribunal about one and half months ago. I accept that the Applicant completed this program.
The Applicant said that prior to the subject offending, he attended the GROW drug rehabilitation program but was evicted from the program when he commenced a relationship with one of the group members. That person was his partner of approximately two years to whom I have referred.
The Applicant said it is his intention to return to rehabilitation should his visa cancellation be revoked, but that he has not made any inquiries about what rehabilitation courses are available because they will not accept him unless he is ready and able to start.
Medical history
In 2011, the Applicant was admitted to hospital after attempting suicide. He remained in hospital for a number of months. In 2012, he was admitted to a psychiatric hospital for a couple of weeks after another suicide attempt. The Applicant said in evidence before the Tribunal that he first attempted suicide by injecting himself with poison. His extended stay in hospital was because he contracted golden staph. His second attempt was an overdose of tablets. While in custody, he has been prescribed anti-depressant drugs.
The sentencing remarks[3] of Judge King SC in respect to the subject offending reference a pre-sentence report and reports of two psychologists dated July 2016. The psychologist reported that the Applicant no longer had thoughts of self-harm and was future-focussed.
[3] Ibid, pages 42 – 53.
The sentencing remarks also note that the Applicant suffered from sclerosis of the liver and hepatitis–C and, in respect of the latter, improved treatments mean it is likely he will be cured by a course of medication.
There was no other evidence before the Tribunal in relation to the Applicant’s health.
Cross examination
The Applicant said he had asked his wife to be at the hearing but she had to work. He did not ask his children to attend.
The Applicant admitted, consistent with the sentencing remarks of His Honour Judge King SC, that he drank alcohol from the age of 12, and used heroin and “speed” increasingly from the age of 16.[4] The Applicant was honest and frank about his drug use.
[4] Ibid, at pages 48 – 49.
In respect of the Applicant’s risk of reoffending, he was referred to the sentencing remarks which said:
“…I accept that he is genuinely remorseful in respect of his offending. In respect of his risk of re-offending, the Pre-Sentence Report indicates that he has been assessed as a medium to high risk of re-offending.
I accept that on the basis of the material before me as an appropriate observation, noting however that should he address his alcohol and drug problems, I would consider that the risk would be no greater than medium. Successful treatment will of course be difficult as he has entrenched substance abuse issues dating back to his teenage years…”[5]
[5] Ibid, page 50.
When asked to comment, the Applicant said he has been locked up for three and a half years which is a great start to his rehabilitation. He has been drug tested in detention three to four times and each result has been negative. He said there are more drugs in the detention centre than there are in the street and he has “done well in staying clean”. He intends to continue his drug abstinence. The Applicant said he was previously with the wrong friends and associates and that this is no longer the case.
The Applicant was referred to four offences committed in custody. Two very minor offences of non-compliance with prison procedure occurred in 2000 and one in 2015. As for the 2017 offence of Offensive Weapon or Instrument, the Applicant said he used a razor blade to make models from matchsticks however, at this time, a stabbing incident had occurred in another section of the gaol and there was a clamp down. Consequently, the whole of the prison was searched and the Applicant’s razor blade was confiscated. In the absence of contrary evidence, I accept the Applicant’s account of that offending. I do not place any weight adverse to the Applicant on those offences committed in custody.
The Applicant gave his evidence frankly and I find he was truthful. He repeatedly expressed his contrition and remorse for his offending. He said he was ashamed for what he had done and for the injuries he caused. He said that it should never have happened and he was stupid, but that he cannot turn back the clock. I accept the Applicant’s evidence in that respect.
CLOSING SUBMISSIONS
The Applicant accepted that he committed the offences and repeated his contrition and remorse. I accept the Applicant was genuine in that respect.
He said he was not a bad person and was sorry for what he had done, but he can only change himself. He asked for the opportunity to get a job and have somewhere to live. He referred to his friend PF who had recently offered him employment and a place to live.
The Respondent referred to the lack of evidence produced by the Applicant to counter his long entrenched and frequent drug use, and offending history. In particular, there was insufficient evidence to counter the medium to high risk of reoffending he poses as referred to by Judge King SC in the sentencing remarks for the subject offending.
Even if the Tribunal accepts that the Applicant has completed the EQUIPS program and tested negative to drug consumption whilst in detention, this has not been tested in the community.
The Respondent referred to a lack of supporting evidence from the Applicant’s family, particularly his former wife about his relationship or parenting role with respect to his children.
In respect to S, there was no evidence as to the nature or duration of the Applicant’s relationship with her. It was submitted that it was his former wife who has played the parenting role.
The Respondent submitted that the Applicant may have a genuine hope of reconciliation with his former wife. However, there is no evidence to corroborate that there is any basis for that expression of hope, or that it may occur. The fact that his former wife has not furnished a statement or appeared before the Tribunal to give evidence is telling.
Further, the Respondent submitted that the Applicant has furnished no evidence from PF to corroborate the fact that there is an offer of employment and accommodation should the Applicant’s visa cancellation be revoked.
The Respondent also referred to the frequency of offending and the increased severity of the subject offending, particularly being one of violence against a woman and, although not of a domestic nature, is still a very serious offence. The Respondent referred to the vulnerability of potential female victims in a workplace such as at the checkout of a supermarket. It is true that the female victim entered into the affray in an attempt prevent the robbery. But this, it was submitted, does not militate against the seriousness of the offending. There was also a 12 year old child present at the checkout who witnessed the robbery.
The Respondent also referred to the sentencing remarks of Judge King SC which referred to the victim impact statements of both victims.[6] Both victims received stab wounds with permanent scarring. The female victim has lost trust in the public, and feels scared working in the afternoons or evenings or seeing anyone who looks like the offender. She has resigned her position at the supermarket, in part, due to the offending. The male victim had more significant injuries and was unable to use his right hand for two months, which caused significant inconvenience to his daily life and sporting activities. He too is more nervous in public particularly when he sees someone who looks similar to the offender.
[6] Ibid, pages 44 – 45.
The Applicant has lived in England until his early twenties, and he has a brother and both parents still residing in the United Kingdom. The Applicant is now 53 years of age. His health issues appear to relate only to alcohol and drug abuse, however there is no current medical evidence or diagnosis before the Tribunal.
The Respondent acknowledges, quite rightly, that it may not be easy for the Applicant to return to England initially, but he should be able to access the same medical and general services he enjoys in Australia.
LEGISLATIVE FRAMEWORK
Relevantly, s 501(3A) of the Act provides that the Minister must cancel a visa that has been provided to a person if the Minister is satisfied of the following:
(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); or
(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.
The character test is defined in s 501(6)(a) of the Act. A person does not pass the character test if he or she has a ‘substantial criminal record’ as defined in s 501(7) of the Act which provides that, for the purposes of the character test, a person has a substantial criminal record if:
(a)The person has been sentenced to death; or
(b)The person has been sentenced to imprisonment for life; or
(c)The person has been sentenced to a term of imprisonment of 12 months or more;
…

Pursuant to s 501CA(4) of the Act, the Tribunal may revoke the Original Decision to cancel a visa 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.
ISSUES
The principal matter for determination is whether the discretion contained in s 501CA(4) of the Act should be exercised by the Tribunal, such that the mandatory visa cancellation is revoked. Pursuant to s 501CA(4)(a) of the Act, the Applicant made representations on [date] in accordance with the Respondent’s invitation. Thus, the two issues to be considered by the Tribunal are:
(a)Pursuant to s 501CA(4)(b)(i) of the Act, whether the Applicant passes the ‘character test’; and
(b)Pursuant to s 501CA(4)(b)(ii) of the Act, whether there is ‘another reason’ why the decision to cancel the Applicant’s visa should be revoked.
The Applicant has been sentenced to a term of imprisonment of at least 12 months. Consequently, I am satisfied that the Applicant does not pass the character test and cannot rely on s 501CA(4)(b)(i) for the cancellation of his visa to be revoked.
IS THERE ANOTHER REASON TO REVOKE THE CANCELLATION?
In considering whether there is another reason why the Original Decision should be revoked, the Tribunal is bound in accordance with s 499(2A) of the Act to comply with any directions made under the Act. Relevantly, s 499(1) of the Act provides:
The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)The performance of those functions; or
(b)The exercise of those powers.
In this case, Ministerial Direction No 79 (“the Direction”), issued on 20 December 2018, applies on and from 28 February 2019, and replaces what was previously Direction No 65.
Ministerial Direction No. 79
Paragraph 6.3 of the Direction sets out a number of principles that should inform the decision-maker. They are as follows:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or 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 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.
The Direction further provides guidance for decision-makers on how to exercise the discretion with respect to a mandatory visa cancellation. Relevantly, at paragraph 7(1)(b) of the Direction, it states that a decision-maker must take into account the considerations in Part C in order to determine whether the mandatory cancellation of a non-citizen’s visa will be revoked.
Paragraph 8 of the Direction provides:
(1)Decision-makers must take into account the primary and other considerations relevant to the individual case. There are differing considerations depending on whether a delegate is considering whether to … revoke the mandatory cancellation of a visa. These different considerations are articulated in Parts A, B and C …
(2)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3)Both primary and other considerations may weigh in favour of, or against … whether or not to revoke a mandatory cancellation of a visa.
(4)Primary considerations should generally be given greater weight than the other considerations.
(5)One of more primary considerations may outweigh other primary considerations.
Paragraph 13(2) in Part C of the Direction provides the three primary considerations that the Tribunal must take into account, namely:
(a)Protection of the Australian community from criminal or other serious conduct;
(b) The best interests of minor children in Australia; and
(c) Expectations of the Australian community.
The Other Considerations which must be taken into account are provided in a non-exhaustive list in paragraph 14(1) of the Direction. These considerations are:
(a)       International non-refoulement obligations;
(b)       Strength, nature and duration of ties;
(c)       Impact on Australian business interests;
(d)       Impact on victims; and
(e)       Extent of impediments if removed.
The Tribunal will now address these considerations.
Primary Consideration A: Protection of the Australian community
Paragraph 13.1 of the Direction sets out the first of the primary considerations the Tribunal should have regard to, and relevantly provides:
(1)When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
(2)Decision-makers should also give consideration to:
(a)The nature and the seriousness of the non-citizen’s conduct to date; and
(b)The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal will address each of the considerations 13.1(2)(a) and 13.1(2)(b) in turn with reference to 13.1(1).
(1) The nature and seriousness of the Applicant’s conduct to date
Paragraph 13.1.1 of the Direction provides a list of factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
(a)The principle that… violent and/or sexual crimes are viewed seriously;
(b)The principle that crimes of a violent nature against women or children are viewed very seriously, regardless of the sentence imposed;
(c)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
(d)Subject to subparagraph (b) above, the sentence imposed by the court for a crime or crimes;
(e)The frequency of the non-citizen’s offending and whether there is a trend of increasing seriousness;
(f)The cumulative effect of repeated offending;
(g)…
(h)Whether the non-citizen has re-offended since being formally warned, or since being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status …
(i)Where the non-citizen is in Australia, that a crime committed while the non-citizen is in immigration detention … is serious …
In addressing this consideration, it is first necessary to have regard to the Applicant’s criminal history. The Applicant’s earliest convictions date back to August 1996 in the Campbelltown Local Court where he was dealt with for the offences of not stop after accident, use motor vehicle without consent, drive disqualified, and drive with high prescribed concentration of alcohol, for which he received fines and a three year licence disqualification.
The Applicant was next dealt with by the courts on varying dates in 1999 for offences including assault officer in execution of duty, resist an officer in the execution of his duty, drive while disqualified from holding a licence, behave in offensive manner, and interfere with the comfort or safety of others. Thereafter, the Applicant was regularly dealt with by the courts for offences such as shoplifting, larceny, assault, possessing prohibited drug, and custody of knife in public place. There were periods when he was not before the courts but I note the subject offending committed in August 2015 were offences of increasing seriousness.
The circumstances of the Applicant’s subject offending are summarised in the sentencing remarks of His Honour Judge King SC as follows:
(a)At about 4:10 p.m. on Saturday, 29 August 2015, the Applicant was witnessed in a supermarket carpark to be placing his hand down the front of his pants repeatedly as he was walking.
(b)He then entered the supermarket, approached the male cashier, and said “Give me the money…Give me the money or I will cut you”. The Applicant was holding a knife with a blade of about five to six centimetres in his right hand. As the cashier opened the till, the Applicant lunged forward with both hands reaching into the till. The male cashier grabbed the Applicant’s arms to prevent him stealing cash. A female cashier heard the male cashier say “Halt him, I will ring the bell”. The female cashier leaned over and also grabbed the Applicant’s arms to prevent him from stealing the money. Both cashiers received stab wounds to their hands. The male cashier received a 15 centimetre laceration across the palm of his left hand and a deeper laceration to his right hand which required nine stiches. The female cashier received a stab wound to her right hand when the Applicant used the knife to deliberately stab her. She suffered a one centimetre puncture to the ring finger of her right hand and a lesser cut to her right thumb.
(c)The Applicant freed himself from the grasp of the cashiers. He had two or three black square-shaped coin holders that he placed into a shopping bag. He escaped with the coins. He left the store and was pursued by a customer who witnessed the incident (a “Mr B”). Mr B was in the store with his 12 year old son. During the pursuit, the Applicant dropped some of the stolen coins. He was followed to a railway overpass at the train station where he collapsed. Mr B remained until police arrived. Police located the shopping bag. The Applicant was too intoxicated at the time to be interviewed however later stated that he had consumed a “point of ice” and a bottle of rum prior to the incident and had no recollection of what had happened in the store. He said that he carries around a knife to cut food as he has no teeth.
The Sentencing Judge described the offences as falling not far below the midrange of objective seriousness for offences of that type. It was also noted that the Applicant’s history of offending was comparatively of a minor nature, which was also highlighted by the fact that he had received only relatively minor fines for his prior offences.
In circumstances where a person armed with a knife robs from a supermarket checkout in the presence of bystanders including a young child, and uses the knife to inflict injury, the offending can only be regarded as serious. It is also demonstrative of an offence of increasing seriousness when viewed against the Applicant’s criminal history.
The Applicant has apologised for the offending. I accept that apology is genuine as do I also accept are his expressions of contrition and remorse. The fact that the offending was fuelled by drugs and alcohol does not mitigate the seriousness of the offending. Further, I infer the Applicant committed the offence with the intention of continuing to fund his drug habit. He said in evidence that he would shoplift to fund his drug habit. There is nothing before the Tribunal that mitigates the seriousness of the offending.
This offending was committed against vulnerable members of the community and in circumstances best described as against a soft target, being a checkout person at a supermarket. Although not a domestic violence incident, it was offending in a workplace employing women and often young women and men who may still be attending school and enjoying the opportunity for weekend or out of school hours employment. Those who work at supermarket checkouts are entitled to feel safe in the workplace. Members of the public, including children, are reasonably expected to be present, as they were on this occasion. They too are entitled to feel safe. As the Learned Sentencing Judge observed “Each of the victims was in effect vulnerable because of their public positon and because they on behalf of their employers were dealing with the employers funds”.[7]
[7] Ibid, page 46.
Consequently, the offending must fall into the category of serious offending contemplated by this Primary Consideration. It was an offence of violence involving the use of a weapon. The offending was against two victims, one of whom was female, who were in a vulnerable position. This offending is also of increasing seriousness when viewed against a background of recidivist offending over a number of years relating the Applicant’s abuse of drugs and alcohol.
(2) The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct
Paragraph 13.1.2 of the Direction provides factors to be considered in determining the nature and seriousness of a non-citizen’s criminal offending or other serious conduct. It relevantly states:
(1)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
(a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
(b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The nature of the harm caused to the victims has already been addressed.
The Applicant has a long history of drug and alcohol abuse which commenced in England and escalated in Australia. It was in the context of drug use that the Applicant committed offences.
I referred above to the Learned Sentencing Judge’s assessment of the Applicant’s risk of reoffending as medium to high, but no greater than medium should he address his alcohol and drug problems. I agree with His Honour’s assessment. That assessment is too high a risk to reduce the weight properly attributed to this Primary Consideration.
The Applicant’s drug abuse contributed to the breakdown of his marriage, loss of employment, and his criminal offending. The fact that since he has been incarcerated for the subject offending he has engaged in the EQUIPS program and remained drug free in detention is to his credit. However, this abstinence has not been tested in the community. It is also to Applicant’s credit that he attended the GROW rehabilitation program at his own volition, although evicted.
In the absence of any evidence about his drug rehabilitation in particular future ongoing rehabilitation, family support including reconciliation with this wife, future employment and residence should he be released, there remains the real risk that he will return to drug or alcohol abuse and likely engage again in criminal offending.
If the Applicant continues to engage in criminal conduct of a similar nature following his release, the harm to individuals and the community is likely to be significant. That is clearly evidenced by the victim impact statements of the two victims of the subject offending.
Conclusion: Primary Consideration A
Having regard to this whole of the evidence, the nature of the Applicants’ offending associated with drug and alcohol abuse, the absence of any corroborative evidence provided on behalf of the Applicant relating to past and future drug and alcohol rehabilitation and his dedication to maintain his ongoing rehabilitation and how that will proceed, his medical health including from a mental health professional, his future employment and residence, and other support from family member or friends that is available to him, Primary Consideration A weighs heavily in favour of the Respondent and the continued cancellation of the Applicant’s visa.
Primary Consideration B: The best interests of minor children in Australia
Paragraph 13.2 of the Direction sets out the next primary consideration the Tribunal should have regard to and relevantly provides:
(1)Decision-makers must make a determination about whether revocation is in the best interests of the child.
(2)This consideration applies only if the child is, or would be, under 18 years old at the time when the decision is expected to be made.
(3)If there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
(4)In considering the best interests of the child, the following factors must be considered where relevant:
(a)The nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b)The extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c)The impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d)The likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e)Whether there are other persons who already fulfil a parental role in relation to the child;
(f)Any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g)Evidence that the con-citizen has abused or neglected the child in any way, including physical, sexual and/or mental abuse or neglect; and
(h)Evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.

The approach to this determination is to first identify the best interests of S with respect to the exercise of the discretion and then assess whether the strength of any other considerations, or the cumulative effect of other considerations, outweigh the best interests of the child.[8]
[8] Wan v Minister for Immigration and Multicultural Affairs [2001] FCA 568 at [32].
The Tribunal notes that the Applicant and his wife had separated before his imprisonment. He said that after separation he would see his wife fortnightly and babysit S on occasion. He rarely saw his family whilst living in Orange for two years immediately prior to being taken into custody for the subject offending. There is no other evidence from which the Tribunal can assess the Applicant’s contribution to his daughter’s development and his parenting role.
I note the Applicant has given evidence that he has seen S on occasion when in custody or detention, but again this is not corroborated in any way.
Conclusion: Primary Consideration B
In as much as there is no satisfactory evidence about the Applicant’s parenting role and relationship with S, there is no evidence to suggest that the relationship is a poor one and absent of any parenting role whatsoever. In general terms, the ability for a child to maintain his or her relationship with a parent, absent of any adverse fact with respect to that relationship, is likely to weigh in favour, to varying degrees, of the revocation of the cancellation of an Applicant’s visa. I am satisfied that it is in the best interests of S to revoke the mandatory cancellation of his visa. Given the inadequacy of the evidence before me, I attribute only slight weight to Primary Consideration B in favour of the revocation of the Applicant’s visa cancellation.
Primary Consideration C: Expectations of the Australian Community
Paragraph 13.3 of the Direction sets out the third of the primary considerations the Tribunal should have regard to and relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
The Tribunal is also to be informed by paragraph 6.3(2) of the Direction such that where a person has committed serious crimes, the deeming effect of this provision is that it weighs adversely against the Applicant.
Further guidance is provided in paragraph 6.3(5) of the Direction, which states:
Australia has a low tolerance of any criminal or other series conduct by people who have been participating in, and contributing to, the Australian community for only 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.
The Applicant moved to Australia as an adult in 1987 and began offending in 1996. I have referred to that offending. The offending increased in seriousness over time and I have referred to the Applicant’s apology contrition and remorse.
The Respondent has submitted that the seriousness and frequency of the Applicant’s offending, his risk of reoffending, and lack of rehabilitation places little confidence in the Applicant that he will obey the law in future.
Conclusion: Primary Consideration C
The Australian community rightly expects non-citizens to obey Australian laws while in Australia. 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. The Applicant has spent a substantial part of his life in Australia.
The Respondent referred the Tribunal to paragraph 6.2.1 of the Direction which states that the “Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by noncitizens”. That is very relevant with respect to the Applicant.
From the moment the Applicant arrived in Australia, albeit not convicted of any criminal offence, he was conducting himself contrary to the laws of Australia by using drugs. His first conviction was nine years after he arrived in Australia. Accordingly, the Applicant is not to be afforded a higher level of tolerance for his criminal offending.
There is a clear expectation that the Applicant will be law-abiding and not abuse the privilege conferred upon him in respect of the grant of the visa. I find that it would be the expectation of the Australian community that, having regard to the serious and recidivist nature of the Applicant’s offending culminating in the very serious subject offending involving the armed robbery of a supermarket and the injuring of two staff with a knife, the fact that the court when sentencing the Applicant assessed him as a medium to high risk of reoffending, the absence of any corroborative evidence led by the Applicant particularly in relation to ongoing and future rehabilitation and supports, the Australian community would expect the Applicant’s visa to be cancelled. This Primary Consideration C weighs heavily in favour of the Respondent and non-revocation of the mandatory visa cancellation.
The Other Considerations
In deciding whether to revoke the mandatory cancellation of a visa, Other Considerations must be taken into account where relevant. These considerations, as set out in paragraph 14 of the Direction, include, but are not limited to:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims; and
(e)Extent of impediments if removed.
The Tribunal will address these elements, where relevant, in turn.
Other Consideration 1: International non-refoulement obligations
No evidence was advanced that the revocation of the Original Decision would have an impact on Australia’s non-refoulement obligations such that it is of any relevance in determining the application.
Other Consideration 2: Strength, nature and duration of ties
Paragraph 14.2(1) of the Direction provides that decision-makers must have regard to the following:
(a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
(i)less weight should be given where the non-citizen began offending soon after arriving in Australia; and
(ii)more weight should be given to time the non-citizen has spent contributing positively to the Australian community; and
(b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australian indefinitely) must be examined.
As referred to above, the Applicant consumed drugs immediately following his arrival in Australia and his first conviction was recorded in 1996. Albeit he was not before the courts and sentenced until 1996, on his own admission, his drug abuse continued immediately upon his arrival in Australia. This demonstrated his contempt for the laws of Australia. Hence, less weight should be attributed in favour of the Applicant.
In evidence, the Applicant described his employment history. However, he has produced no independent or corroborative evidence and I do not accept that he has made a substantial contribution to the Australian community in that respect.
The strongest of the Applicant’s potential ties to Australia are those with his wife and children. Again, the nature of the relationship is uncertain. There is no evidence from his wife or children. There is no satisfactory evidence upon which I can rely as to the parenting role he has provided to his children, including S particularly.
There is also no evidence from PF about future employment or residence.
Conclusion: Other Consideration 2
The evidence in respect to Applicant’s familial relationships comes solely from the Applicant and is limited in the absence of corroborative evidence. Therefore, this consideration weighs only slightly in favour of the Applicant.
Other Consideration 3: Impact on Australian business interests
No evidence was advanced that the revocation of the Original Decision would have an impact on Australia’s business interests such that it is of any relevance in determining the application.
Other Consideration 4: Impact on victims
The only evidence before the Tribunal about the victim impact is that referred to in the sentencing remarks for the subject offending. No evidence was advanced about the impact that the revocation of the Original Decision would have on either victim. However, both victims of the subject offending were psychologically affected in that they experienced fear and anxiety when seeing someone in the community who was similar in appearance to the Applicant.
The Respondent submits that revocation of the mandatory visa cancellation would have a negative effect on the victims of the subject offending.
Conclusion: Other Consideration 4
I infer from the victim impact statements that there is likely to be some impact upon those victims if the Applicant is to be returned to the community. However, given the lack of evidence before the Tribunal, I attribute no weight to this Other Consideration.
Other Consideration 5: Extent of impediments if removed
Paragraph 14.5(1) of the Direction considers the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing himself, and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
(a)The non-citizen’s age and health;
(b)Whether there are substantial language or cultural barriers; and
(c)Any social, medical and/or economic support available to them in that country.
The Respondent submits that the Applicant is unlikely to face any language or cultural barriers as he was born, and resided, in the UK until he was 22 years of age, and that any impediment is mitigated by the fact that his parents and brother reside in the UK.
The Respondent rightly acknowledged that there will be some initial difficulty for the Applicant upon his return to England, including employment, place of residence and immediate integration back into the community. However, there is no evidence that this should be for an extended period of time.
Further, it is reasonable to conclude that rehabilitation and medical and/or economic supports similar to those in Australia will be available to the Applicant upon his return to England. Accessing those services and supports might be challenging to the Applicant at least for the immediate future, but not significantly so.
The Respondent submits that whilst this Other Consideration may favour the Applicant, it does not do so to any significant extent and is outweighed by Primary Consideration A and Primary Consideration C.
Conclusion: Other Consideration 5
I accept the Applicant’s evidence that his parents have refused him accommodation should he return to England. I also accept that he has had no communication with his brother since 1999 and has not enjoyed cordial relations with him following the Applicant’s original decision to move to Australia. The Applicant described his brother as being jealous of that decision.
The Applicant will have some initial difficulty particularly directed to his continued rehabilitation and abstinence from drug and alcohol consumption, obtaining appropriate residence, employment, and medical, financial and other supports in England. I accept the Respondent’s submission that this Other Consideration may favour the Applicant, but only slightly.
There are no more Other Considerations to be considered on the available evidence.
CONCLUSION
Section 501CA(4)(b) of the Act stipulates two alternate conditions precedent to the exercise of the discretion to revoke the Applicant’s visa: either (1) the Applicant must be found to pass the character test, or (2) the Tribunal must be satisfied that there is another reason, pursuant to the Direction, to revoke the cancellation.
Based upon the Applicant’s serious offending, he does not pass the “character test” as defined in s 501(6) of the Act. In then considering whether there is another reason to exercise the discretion afforded by s 501CA(4) of the Act to revoke the mandatory visa cancellation decision, the Tribunal has had regard to those considerations referred to in the Direction. Accordingly, I find:
(a)Primary Consideration A weighs heavily in favour of the Respondent;
(b)Primary Consideration B weighs slightly in favour of the Applicant;
(c)Primary Consideration C weighs heavily in favour of the Respondent; and
(d)The combined weight of the Other Considerations is such that they do not outweigh Primary Considerations A and C combined.
I therefore find that, taking into account all of the considerations in the Direction, they do not weigh in favour of the revocation of the cancellation of the Applicant’s visa.
Consequently, I do not exercise the discretion to revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision under review is affirmed.

126. I certify that the preceding 125 (one hundred and twenty-five) paragraphs are a true copy of the reasons for the decision herein of Senior Member B J Illingworth

..........................[sgd]............................
Associate
Dated: 29 March 2019

Dates of hearing: 18 March 2019

Applicant: In person

Advocate for the Respondent: Tal Aviram, Clayton Utz

[2019] AATA 581

29 March 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Legal Concepts

Judicial Review

Procedural Fairness

Statutory Construction

Natural Justice

Dates of hearing:	18 March 2019
Applicant:	In person
Advocate for the Respondent:	Tal Aviram, Clayton Utz