Wardhana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3602
•11 October 2024
Wardhana and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3602 (11 October 2024)
Division:GENERAL DIVISION
File Number: 2023/8071
Re:Farid Yuliar Ranu Wardhana
APPLICANT
AndMinister for Immigration and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Rebecca Bellamy
Date:11 October 2024
Place:Brisbane
The decision under review is affirmed.
…………[SGD]……………..
Senior Member R Bellamy
CATCHWORDS
MIGRATION – Non-revocation of mandatory cancellation of a Partner (Subclass 100) visa – where Applicant does not pass the character test – whether there is another reason to revoke the mandatory cancellation decision – consideration of Ministerial Direction No. 110 – frequent offending – few ties to Australia – decision under review affirmed
LEGISLATION
Migration Act 1958 (Cth)
CASES
Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409
Minister for Home Affairs v Buadromo [2018] FCAFC 151
SECONDARY MATERIAL
Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
REASONS FOR DECISION
Senior Member R Bellamy
11 October 2024
The Applicant is a 39-year-old citizen of Indonesia who came to Australia in 2013 when he was 27 years old. In 2015 he was granted a Partner (Subclass 100) visa (“visa”). He had been addicted to heroin in Indonesia and he came to Australia hoping to get clean. He was clean for a period, but he relapsed, and this led him to commit a lot of drug-related crime, which in turn led to the cancellation of his visa on character grounds. He asked the Tribunal to revoke that cancellation.
The cancellation of his visa was mandatory. Section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) relevantly provides that the Minister must cancel a visa that has been granted to a person if:
·the Minister is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a), on the basis of paragraph (7)(a), (b) or (c); and
·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.
Under s 501(6)(a) of the Act, a person will not pass the character test if they have “a substantial criminal record”. Section 501(7)(c) of the Act relevantly provides that a person has a substantial criminal record if they have “been sentenced to a term of imprisonment of 12 months or more”.
On 15 November 2022, the Applicant was sentenced to imprisonment for 12 months with immediate parole. What matters for the purpose of the character test is the term of imprisonment to which a person has been sentenced, not the amount of time they serve under that sentence.[1] After committing more offences, he was sentenced, on 23 March 2023, to imprisonment for three months. While he was serving that sentence, a delegate of the Minister (“the Respondent”) mandatorily cancelled his visa because he did not pass the character test and he was serving a full-time custodial sentence. The Minister is required to notify a non-citizen whose visa has been cancelled under s 501(3A) of the Act. The notice must include an invitation to make representations to the Minister about revocation of that decision.[2]
[1] See Drake v Minister for Immigration and Ethnic Affairs (1979) 46 FLR 409, 415-416.
[2] Section 501CA(3)(b) of the Act.
A mandatory visa cancellation can be revoked under s 501CA(4) of the Act which provides:
The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
The Respondent decided not to revoke the cancellation. That decision was reviewable by the Tribunal pursuant to s 500(1)(ba) of the Act. The Applicant sought review, and a differently constituted Tribunal affirmed the decision. The Federal Court found that the decision was affected by jurisdictional error and remitted it to the Tribunal for reconsideration.
I am satisfied that the Applicant made the representations required by s 501CA(4)(a) of the Act and that he does not pass the character test. Thus, the sole issue is whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa. If there is, I should set aside the original decision.[3]
[3] Minister for Home Affairs v Buadromo [2018] FCAFC 151.
If the cancellation of the Applicant’s visa is revoked, he will be able to lawfully return to the Australian community. If it is not, he would be precluded from applying for another visa except for a protection visa or a limited term bridging visa.[4] He has not claimed to fear harm in Indonesia, nor has he made a protection claim. Non-revocation would also make him liable to be removed to Indonesia as soon as reasonably practicable, and in the meantime, he would remain in immigration detention.[5] There is no evidence that, in that event, there would be any likely difficulty or delay in bringing his detention to an end by deporting him. He did not claim, and the evidence does not suggest, that he is suffering any particular hardship in detention. Indeed, he has access to a drug-treatment program and mental health support there.
[4] Section 501E of the Act.
[5] Section s189 and 198 of the Act.
The hearing of this application took place on 1 October 2024. The Applicant did not have the assistance of a legal representative. He was the only witness who gave evidence. An interpreter assisted him. The Tribunal received the documentary evidence that is listed in the attached exhibit list, marked “Annexure A”. The evidence included the exhibits and written submissions from the previous Tribunal hearing, and the transcript of that hearing.
Determination of Whether There is Another Reason Why the Cancellation of the Applicant’s Visa Should be Revoked
In applying s 501CA(4) of the Act, the Tribunal is bound by s 499(2A) to comply with any directions made under the Act. In this case, Direction No 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (“the Direction”) applies.
For the purposes of deciding whether or not to revoke the mandatory cancellation of a non-citizen’s visa, paragraph 5.2 of the Direction contains several guiding principles. Those principles, as far as they relate to this matter, may be summarised as follows:
·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.
·The safety of the Australian Community is the highest priority of the Australian Government.
·Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
·The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
·Decision-makers must take into account the primary and other considerations relevant to the individual case.
·The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Paragraph 6 of the Direction provides that:
Informed by the principles in paragraph 5.2, a decision maker must take into account the considerations identified in sections 8 and 9, where relevant to the decision.
Paragraph 8 of the Direction sets out five Primary Considerations that the Tribunal must take into account. They are:
(1)the protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
Paragraph 9 of the Direction sets out four Other Considerations which must be taken into account. They are:
a)legal consequences of the decision;
b)extent of impediments if removed; and
c)impact on Australian business interests
Primary consideration 1 is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations.
The Applicant did not contend, and the evidence did not suggest, that Other Considerations (a) or (c) are engaged.
BACKGROUND AND OFFENDING
The Applicant was born 11 July 1985 in Indonesia. He started using heroin in 1999.[6] In December 2010 he was convicted in the Denpasar District Court of drug possession and sentenced to eight months’ imprisonment.[7] The drug was marijuana.[8]
[6] Exhibit RB, page 790.
[7] Exhibit RB, page 553.
[8] Transcript, page 31, lines 25 to 26.
In 2012, the Applicant married “Janine” in Indonesia. They relocated to Australia in February 2013. The Applicant indicated that he did this in an effort to get clean from heroin. He was initially successful. On 13 January 2015, he was granted a Partner visa. He lived in Victoria with Janine.
The Applicant’s daughter, Child A, was born in February 2015.[9] According to Janine’s mother, the Applicant had struggled to get paid work, which caused him distress and isolation, and when he did get work, he was racially abused and bullied. She said he continued working for as long as he could endure it, and that he seemed beaten down by it all. Drugs were readily available on work sites and openly offered to him.[10] On top of that, according to the Applicant, the birth of his daughter caused things to change between him and Janine. They were arguing, he was being bullied at work, and he relapsed. After that, he used heroin every day.[11]
[9] Exhibit RB, page 594.
[10] Exhibit A1(e).
[11] Transcript, page 34, lines 10 to 23, page 35, lines 14 to 15,
In December 2017, the Applicant returned to Indonesia with a plan to get clean with the support of his family, who do not use drugs. He stayed with his brother, Dimas, for a week until he was fully clean, then he stayed with his sister, Diah. He saw “all the rest of family…sister, cousins, nephew”, and, in his words, “they protect me to not using again”.[12]
[12] Exhibit RB, pages 751 to 752.
He successfully stayed clean while he was in Indonesia. However, after he returned to Australia in February 2017, he relapsed within a month.[13]
[13] Transcript, page 35, lines 25 to 35.
In January 2019, the Applicant’s marriage broke up and he moved out of the family home. His daughter remained with his ex-wife.[14]
[14] Transcript, page 29, lines 15 to 20.
Later that year, the Applicant spent a week in a residential heroin detox program and he was then put on a Suboxone program.[15] Janine and his friends all supported his participation in the program, for example Janine drove him to the clinic to get the Suboxone injections. After around six months, he gradually reduced his dose until he was not using it at all. He moved to Queensland to start a new life and to find a new job to financially support his daughter.[16]
[15] Suboxone is a prescription drug that treats opioid addiction.
[16] Exhibit RB, pages 73 to 74.
By November 2019, the Applicant had a job in Brisbane as a forklift driver.[17] In December 2019, Janine brought Child A to Queensland to visit him. That was the last time he saw his daughter in person.[18] In early 2020, he worked at a fruit farm north of Brisbane. He then returned to Brisbane for scaffolding work.[19]
[17] Exhibit RB, page 74.
[18] Transcript, page 29, lines 25 to 30
[19] Exhibit RB, page 74.
In March 2020, the Applicant commenced a relationship with “Ms M”.[20]
[20] Exhibit RB, page 74.
According to a Police Protection Notice, on 9 September 2020, the Applicant came home and told Ms M that he smelled semen in the bin, and he accused her of cheating. He said that he was going to check her underwear for a condom or semen. He then put his index and middle finger inside her underwear and slightly inside her vagina. After finding nothing, he apologised. Ms M reported it to the police. She told them she was not afraid of the Applicant, but the police thought a Police Protection Notice was necessary.[21] The Applicant agreed with these facts in the hearing, and said he acted that way because he felt worried and jealous.[22] In October 2020, a protection order was made and served on the Applicant.[23] He was not prosecuted in relation to this incident.
[21] Exhibit RB, pages 146 to 147.
[22] Transcript, page 45, lines 10 to 20.
[23] Exhibit RB, page 150.
Ms M allowed the Applicant to stay with her as long as he stayed clean and abided by her rules. However, according to the Applicant, by 2021 the relationship had become toxic as they were both “back on drugs”.[24]
[24] Exhibit RB, page 74.
On 26 March 2021, the police were called to a disturbance between the Applicant and Ms M. They had argued in the car and Ms M had told him to stop yelling and that the yelling was abuse. She told the Applicant to pull over as she was getting upset and she wanted to walk the rest of the way home. As she got out, he took her handbag off her shoulder and refused to give it back. He threw the car key through the passenger window. He got a bar of soap out of her handbag and began destroying it with a small metal tool. When police caught up with him, he admitted that he had been yelling and screaming at Ms M, that he took her handbag and refused to give it back when she asked for it, and that he threw the car key at her. However, he denied having destroyed the bar of soap and said he did not threaten any violence. Ms M asked for a variation to the DVO, to include no contact conditions, due to the ongoing conflict and escalating aggression. [25]
[25] Exhibit RB, pages 168 to 169.
Ms M reported an incident that had occurred the day before. She said she and the Applicant had an argument in which he became emotionally abusive, calling her names and accusing her of infidelity. She said he pushed his car key into her right ear causing pain and discomfort. He also pushed her in the chest. She went to the hospital early the next morning, complaining of chest pains from the incident the day before. When the police asked the Applicant about these incidents, he denied having pushed Ms M in the chest.[26] In the first Tribunal hearing, he denied having pushed the key into Ms M’s ear, saying “I never car key near her. Because I love her; why I hurt her?”.[27]
[26] Exhibit RB, page 170.
[27] Exhibit RB, page 769.
On 27 March 2021, the Applicant was convicted of two offences of contravention of domestic violence order (aggravated offence) arising from those events. Further, on 31 March 2021, a Temporary Protection Order was made. The Applicant was present in court via telephone when the order was made, and he was personally served a copy on 2 April 2021. One condition was that he was prohibited from following or approaching to within 100 metres of Ms M without her written consent.[28]
[28] Exhibit RB, page 179.
According to the Applicant, after he ended up in the police watchhouse for domestic violence charges (it is not clear which occasion he was referring to), his relationship with Ms M became more toxic. He ended up back on heroin and she used heroin too. They had verbal arguments every day “about anything and everything”, although he claimed he never physically hurt her.[29]
[29] Exhibit RB, page 74.
On 17 April 2021, Ms M called the police after the Applicant refused to leave. The police asked the Applicant if he understood the current order, and he claimed to have Ms M’s consent to be within 100 metres of her. However, there was no written consent.[30] Two days later he was convicted of contravention of domestic violence order (aggravated offence).
[30] Exhibit RB, page 179.
On 26 April 2021, the Applicant drove under the influence. The registration of the car he was driving had expired four days earlier, and he was aware of that. He said he was waiting to be paid his salary and was only driving short distances between towns because the registration was expired.[31]
[31] Exhibit RB, page 183.
On 14 May 2021, the Applicant committed a stealing offence, and he was fined $250 for that in July 2021.[32]
[32] Exhibit RB, page 32.
On 15 June 2021, Ms M and the Applicant had an argument, and she had a panic/anxiety attack. She told ambulance officers that she was fearful of him and wanted to get away from him. The Applicant tried to find out where she was being taken and tried to follow the Ambulance. He was taken to the police watchhouse.[33]
[33] Exhibit RB, page 192.
When the Applicant was released, he signed a bail undertaking that included a condition that he have no contact at all with Ms M except through lawyers or at a court or tribunal.[34]
[34] Exhibit RB, page 489.
On 21 June 2021, a varied Domestic Violence Protection Order was made, and it was served on the Applicant a week later.[35]
[35] Exhibit RB, page 486.
On 3 August 2021, the police saw the Applicant driving with a disqualified licence and pursued him. He sped up, and when caught, he said he was rushing to get his COVID vaccine and not trying to avoid police. Ms M told the police that she was inside the vehicle and she was scared of his manner of driving. The DVO and his bail conditions did not allow him to be with Ms M.[36]
[36] Exhibit RB, page 196.
On 22 August 2021, Ms M called Triple Zero. A male was heard in the background. The next day, the police attended her home and found the Applicant there.[37] On 24 August 2021, he was sentenced to probation for 12 months for contravention of domestic violence order and contravention of domestic violence order (aggravated offence) as well as breaching bail.[38]
[37] Exhibit RB, page 202.
[38] Exhibit RB, page 32.
The Queensland Corrective Services probation completion summary (“report”) that was made a year later noted that domestic violence attitudes and behaviours were a primary criminogenic need, and that the primary focus of supervision was to encourage the Applicant to attend a men’s domestic violence program. He was also encouraged to engage with an alcohol and drug service or a psychologist. The report noted that the Applicant was briefly engaged in an opioid program with a Dr Reece at Highgate Hill with his last attendance on 17 September 2021. During his probation, he continued to deny ongoing use of illicit substances, but often he presented as drowsy and unable to engage. He failed to attend eight scheduled appointments in September, October and December 2021 and in February 2022. The report stated that “His engagement with this service is sporadic, with his participation only existing when it suits [him]”.[39]
[39] Exhibit RB, page 469.
On 15 October 2021, an informant told the police that the Applicant was with Ms M in public. The police went to her home and saw the Applicant through a window lying on a bed. When they entered, he was hiding in a wardrobe. He was remanded in custody.[40]
[40] Exhibit RB, page 214.
On 17 November 2021, the Applicant was sentenced to three months’ imprisonment, suspended for 12 months for contravention of domestic violence order (aggravated offence). The presiding Magistrate accepted that Ms M had invited the Applicant over to look after her as she was unwell but noted that he had six previous contraventions of domestic violence orders that year. His Honour commented that the Applicant “treats with complete and utter contempt the domestic violence orders of the Court” and warned the Applicant “There is no excuse. You comply with the order, or else you will end up in jail. Do you understand that?”.[41]
[41] Exhibit RB, page 48.
On 1 December 2021, the Applicant’s best friend passed away. He used heroin daily from then, until he was incarcerated in July 2022.[42]
[42] Transcript, pages 36 to 37.
During the period of probation and the period of the suspended sentence, the Applicant committed more offences. He committed unlawful use of motor vehicles aircraft or vessels - use on 4 February 2022.[43]
[43] Exhibit RB, page 30.
Later in February 2022, he committed unlawful use of motor vehicles aircraft or vessels – use, and fraud - dishonestly gain benefit/advantage (x 3). The facts of those offences are that on 15 February 2022, the victim had discovered that his vehicle was missing from his home. He had left a spare set of keys taped under the glovebox. The victim had to spend $10,000 replacing the tools that had been in the vehicle. The Applicant traded the tools at Cash Converters.
Between 21 and 23 February 2022, the Applicant contacted the victim by text and phone. He told him he had located his vehicle and he wanted $950 in return for the vehicle, saying he needed the money to pay for cancer medication for his wife. He claimed to have found the vehicle outside the West End Police Station unlocked, with all doors open and the key inside. He admitted that he had been using it for the past week as he needed to go to Caboolture for his wife’s medical treatment. On 23 February 2022, the Applicant took the victim to the vehicle and gave back the keys in exchange for $300.[44]
[44] Exhibit RB, pages 250 to 253.
The Applicant committed stealing offences on 27 and 30 March 2022. He committed the following property offences on the following dates in April, May, June and July 2022:
·stealing on 1, 2, and 7 April;
·stealing after previous conviction on 11 April;
·enter premises and commit indictable offence and stealing on 22 April (he stole $3,500 worth of goods from Myer);
·enter premises and commit indictable offence on 25 April;
·stealing after previous conviction on 5 and 8 May;
·stealing on 16 May;
·enter premises and commit indictable offence on 18 May;
·stealing on 19 and 23 May;
·stealing on 1 June;
·stealing, and stealing after previous conviction on 2 June;
·stealing on 5 June;
·stealing after previous conviction on 9, 10 and 11 June;
·enter premises and commit indictable offence on 15 June;
·enter premises and commit indictable offence by break on 28 June;
·fraud - dishonestly gain benefit/advantage on 26 June;
·stealing after previous conviction on 27 June;
·stealing on 3, 6, 7 and 14 July;
·enter premises and commit indictable offence by break on 15 July; and
·possess tainted property on 16 July.
The offence on 15 June 2022 arose from the Applicant stealing a bicycle from a Goodlife gym.[45] The offence on 28 June 2022, arose from the Applicant forcing entry to a Myer store by breaking a sliding glass door and stealing 15 pairs of designer sunglasses.[46] The Applicant was also later convicted of some breach of bail condition offences that he committed in that period, and unlawful possession of weapons (knuckledusters) on 16 July 2022.[47]
[45] Exhibit RB, page 432.
[46] Exhibit RB, page 279.
[47] Exhibit RB, page 419
During this spree, on 6 June 2022, the Applicant was dealt with in the Magistrates Court for breaching the suspended sentence.[48]
[48] Exhibit RB, page 133.
On 16 July 2022, the Applicant was remanded in custody.
On 6 October 2022, whilst on remand, the Applicant and another prisoner hit another prisoner from behind, leaving him with a red face and a slightly bloody nose.[49]
[49] Exhibit RB, page 501.
On 15 November 2022, the Applicant was sentenced for some 40 offences that were mostly property offences. He was sentenced to 12 months imprisonment for entering premises and committing an indictable offence by break (x 2) and entering premises and committing an indictable offence (x 2), with immediate release on parole. For unlawful use of a motor vehicle, he was sentenced to nine months imprisonment and he received some shorter sentences for some other offences.
The learned sentencing Magistrate observed that “property-related offences are of serious concern to the community. Stealing of items from shops is likely to increase the price of those items for all members of the community”.[50] Her Honour accepted that the Applicant did not intend to use the knuckledusters and that he only had them because he thought they “looked cool”. The Applicant was immediately released on parole.
[50] Exhibit RB, page 40.
According to the Applicant, he was on a Suboxone program after his release from prison, but he could not afford the $6 for his daily dose. He relapsed and felt sick from not having heroin every day, so he tried to self-medicate with alcohol that he stole.[51] On 23 December 2022, he stole a $300 Ralph Lauren jacket from David Jones and a bottle of wine from a BWS.[52]
[51] Transcript, page 37, lines 35 to 39; page 46, lines 30 to 46.
[52] Remittal Bundle, page 35.
On 20 January 2023, he contravened the DVO again. He was involved in a heated argument with Ms M outside a hospital. Members of the public alerted police. Ms M entered the emergency room and the Applicant followed her in. They continued to argue, and the Applicant then physically harassed her such that staff had to ask him to leave.[53] In the hearing, the Applicant claimed that Ms M was yelling for no reason, and he asked her not to because “the cops going to pick me up and they thinking I’m doing something to you, but I’m not arguing you”. She kept screaming for no reason because they were both drunk “and on something else”.[54] The Applicant was remanded in custody.
[53] Remittal Bundle, page 441.
[54] Transcript, page 36, lines 25 to 28.
On 23 March 2023, the Applicant was sentenced to imprisonment for three months for contravening the DVO. He was sentenced to one month imprisonment for stealing the Ralph Lauren jacket and convicted but not further punished for stealing the wine.[55]
[55] Remittal Bundle, page 29.
On 9 May 2023, the Applicant was notified that his visa had been cancelled. On 23 May 2023, he requested revocation of the cancellation of his visa.
An International Health and Medical Services (“IHMS”) clinical note dated 3 October 2023 recorded that the Applicant had “Declined a D&A” (drug and alcohol counselling), and that “He said he has no concern of drug and alcohol”.[56] A note dated 4 October 2023, indicated that he reported that he had been sporadically snorting small amounts of Buprenorphine for the past 12 months. He reported that he did not want to be on an Opioid Substitution Treatment Program (“OSTP”) because he had previously been on one, but he could not maintain stability, he did not like daily dosing and felt he was still experiencing the effects of withdrawals. He declined drug and alcohol counselling and SMART recovery.[57] On 15 November 2023, he was offered a mental health consultation, but he declined.[58]
[56] Remittal Bundle, page 609.
[57] Remittal Bundle, page 608.
[58] Remittal Bundle, page 598.
In the first hearing, in January 2024, the Applicant admitted that he was having cravings for heroin.[59] He started the OSTP in March 2024, and he receives monthly injections of Bivudal[60] from a nurse.[61]
PRIMARY CONSIDERATION 1: PROTECTION OF THE AUSTRALIAN COMMUNITY
[59] Remittal Bundle, page 798.
[60] An opioid substitute for treating opioid dependence.
[61] Transcript, page 38 lines 4 to 14.
Paragraph 8.1 of the Direction requires decision-makers to keep in mind the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. I should have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens in the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community. The Direction provides that “serious conduct” includes behaviour or conduct that does not constitute a criminal offence.
In determining the weight applicable to this Primary Consideration, paragraph 8.1(2) of the Direction requires me to give consideration to:
a)The nature and seriousness of the Applicant’s conduct to date; and
b)The risk to the Australian community should the Applicant commit further offences or engage in other serious conduct.
The Nature and Seriousness of the Applicant’s Conduct to Date
When assessing the nature and seriousness of the Applicant’s criminal offending or other conduct to date, I must have regard to the following relevant matters:
(a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i)violent and/or sexual crimes;
(ii)crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii)acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
(b)…;
(c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
(d)…;
(e)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
(f)the cumulative effect of repeated offending;
(g)…;
(h)…;
(i)…[62]
[62] The Direction, paragraph 8.1.1(1)
The Applicant has convictions for more than 50 separate offences that mostly arise from breaking into vehicles or properties, stealing, driving stolen vehicles, possessing stolen property, breaking road rules, breaching bail conditions, possession of weapons and contravening domestic violence orders. His offending was frequent, with a large number of offences committed in a two-year period. The theft of the vehicle and $10,000 worth of tools, and the subsequent extraction of money from the victim in exchange for the return of his vehicle is particularly serious.
The Applicant was not convicted of any sexual or violent crimes, and he did not admit to having been violent in relation to any of the contraventions of a DVO for which a conviction was recorded. There is no evidence that he used, or intended to use, the knuckledusters to threaten or harm anyone. He his friends gave them to him and he did not realise they were a weapon. I am satisfied that he did commit multiple acts of family violence, which I address in more detail under Primary Consideration 2. Acts of family violence are considered to be very serious.
The Applicant was sentenced to multiple terms of imprisonment, including a sentence of 12 months. Imprisonment is normally the last resort in the hierarchy of available sentencing options, so the sentences of imprisonment imposed on the Applicant signal the seriousness with which the court regarded some of his offending. While I do not discern a trend of increasing seriousness in the individual offences committed by the Applicant, his offending became more frequent in 2022, so his offending as a whole had become more serious. The most obvious cumulative impact of his repeated offending was financial loss and inconvenience to the victims of his property offences, and repeated distressing encounters for Ms M.
The Risk to the Australian Community Should the Applicant Commit Further Offences or Engage in Other Serious Conduct
Here I should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.[63]
[63] Paragraph 8.1.2(1) of the Direction.
I must have regard to the following relevant factors on a cumulative basis:
(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; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[64]
[64] Paragraph 8.1.2(2) of the Direction.
While the physical violence the Applicant engaged in was at the lower end of the scale of seriousness, Ms M reported feeling afraid of him on more than one occasion. Extrapolating from her experience, the nature of harm from further acts of family violence like the ones the applicant previously engaged in includes physical and psychological harm to the immediate victim. Further driving under the influence increases the risk of collisions which can cause serious injury or death. The nature of harm from stealing includes financial loss and inconvenience, especially when a person’s means of transport or equipment they need to earn a living are stolen.
The Applicant said that since coming here, he has tried to do the best for Australia by working hard and trying to be the best father for his daughter. He expressed remorse for his offending and a will to do better. He indicated that he is doing programs that are helping him mentally. He will stick to them because he will do anything to stay here for his daughter.[65]
[65] Transcript, page 58 lines 1 to 6.
I do not have the benefit of a current, expert risk assessment. Three years ago, Corrective Services assessed the Applicant to have a moderate risk of re-offending.[66] He re-offended many times after that indicating that the risk assessment underestimated the risk.
[66] Exhibit RB, page 471.
It is uncontroversial that the key contributors to the Applicant’s offending were drug dependence and lack of strong familial or social support. Alcohol was involved in the DUI and at least one act of family violence. When the Applicant was abusing drugs, and in an unstable relationship featuring drug and alcohol abuse, he was not deterred from offending by community-based orders or the threat or imprisonment. Nor did he have any respect for DVOs or bail conditions.
I accept that the Applicant has not used heroin since January 2023 when he was most recently incarcerated. His most recent reported craving was in January 2024. He has been on an OSTP, having monthly Bivudal injections since March 2024. He is complying with this program in a controlled environment where his Bivudal is provided to him, and Mirtazapine to help with anxiety is also provided.
The Applicant has previously done well on OSTPs and later relapsed. On previous occasions, he served periods in prison and then relapsed upon release.
In the last year, the Applicant has engaged in some rehabilitative courses and counselling. He completed ‘Understanding Addictions’ and ‘Drug and Alcohol Abuse 101’.[67] Since arriving in immigration detention he has been attending weekly group sessions of SMART Recovery drugs and alcohol counselling. In the last six months, he has also had monthly one-on-one counselling.[68] He accepts that he needs ongoing therapy.[69] SMART recovery is also accessible in the wider community. Previously when the Applicant was in the wider community, he had not done these courses and counselling, and he was not connected to any drug and alcohol support groups.
[67] Exhibit RB, pages 76 to 77.
[68] Transcript, page 12, lines 13 to 39.
[69] Transcript, page 42, lines 37 to 49.
If the Applicant gets his visa back, he intends to initially live with a friend, Ahmed, who lives in Brisbane and can give him full-time employment in a green waste business. When he saves enough money, he will move to Victoria to be near his daughter.[70] The Applicant met Ahmed in prison. Ahmed used to use drugs and he was in gaol for domestic violence offending. The Applicant did not admit those facts in the first hearing. He said he wanted to protect Ahmed.[71] According to the Applicant, Ahmed no longer uses drugs and the domestic violence was not serious – it was “yelling and their neighbour calling cops, like that”.[72] However, it is hard to take that at face value when the Applicant previously lied to conceal Ahmed’s transgressions. The is no evidence from Ahmed. I am satisfied that the Applicant potentially has accommodation and a full-time job waiting for him with a friend who is potentially living a clean, crime free life. However, I do not accept that these things are certain.
[70] Transcript, page 16, line 14 to page 17 line 7.
[71] Transcript, page 25 line 40 to page 27 line 35.
[72] Transcript, page 17, lines 20 to 23.
The Applicant does not have a strong support network around him of close family or friends in Brisbane who would assist him to avoid him relapsing into drug use and offending. He will need to rely on his own resolve and community support such as SMART recovery. It may well be that he is better placed this time around to maintain his abstinence in the wider community, but that cannot be predicted with any certainty.
The Queensland Corrective Services report identified domestic violence attitudes and behaviours as a primary criminogenic need. He also has some propensity for aggressive behaviour, separate to his relationship with Ms M, having assaulted a prisoner in gaol. He has done very little to address these issues. He has recently done a 10-week Circuit Breaker course that addresses anger management and partner relationships.[73] He acknowledged that he and Ms M used to lose control and scream at each other, and that that behaviour is “not right”. He said the course helped him to understanding that he should not scream and hurt the other person’s feelings. He identified that such behaviour might make the other person sad.[74] However, he did not identify fear as a feeling that behaviour would evoke. He acknowledged that he is at the start of his rehabilitation journey (in general),[75] and I think that is accurate.
[73] Transcript, page 9, lines 45 to 47.
[74] Transcript, page 10, lines 42 to 45.
[75] Transcript, page 42, lines 35 to 40.
The Applicant has a long-standing vulnerability to heroin addiction that has in recent years led him to offend. While the steps he has taken in the last 12 months are promising, it is not enough to give me confidence that he presents a low risk of re-offending. Rather, I assess his risk of re-offending to be at least moderate.
Primary Consideration 1 weighs moderately against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 2: FAMILY VIOLENCE
Paragraph 8.2 of the Direction provides that the Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen.
I am not only to consider family violence that is the subject of a conviction. I am to consider information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, where the non-citizen has been afforded procedural fairness.
The Direction defines family violence to include violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes them to be fearful. The Direction provides that a member of a person’s family includes a person who has, or has had, an intimate personal relationship with the relevant person. Ms M satisfies that definition as she was in an intimate relationship with the Applicant throughout the period of offending.
The earliest episode of family violence was on 9 September 2020, when the Applicant put his index and middle finger inside Ms M’s vagina in circumstances where she did not invite him to do that. Unwanted, invasive physical contact is inherently violent.
The second episode of family violence was on 14 December 2020. The police records indicate that they were called by a witness to a disturbance between the Applicant and Ms M. She told the police that she and the Applicant had been arguing and he pushed in her the chest with two hands. The witness reported seeing the Applicant pull Ms M and yell at her. Ms M said she left on foot and the Applicant followed her, yelling at her. He grabbed her by the wrists and pulled her towards him. Then, still holding her wrists, he began hitting himself in the face with her hands as she tried to pull away from him. Ms M said she and the Applicant had been at a hostel consuming alcohol with a group of friends prior to the incident. The police observed that the Applicant was unsteady on his feet and smelt strongly of liquor. He told the police he had done nothing wrong, and that Ms M had “flipped out” at him.[76]
[76] Exhibit RB, page 160
In the hearing, the Applicant initially said he had never used force on a partner. However, he later said, in relation to this incident that Ms M pushed him first and he pushed her back, and that “that’s the biggest thing I ever done, because we get really drunk”.[77]
[77] Transcript page 10, lines 43 to 44.
On 25 March 2021, according to what Ms M told the police, the Applicant called her names, accused her of infidelity, pushed his car key into her ear and pushed her in the chest. He denied having pushed her or pushed a key in her ear. However, his admissions to the Tribunal that he had pushed Ms M in the chest on another occasion, lend some credibility to her allegation that he pushed her in the chest on this occasion. I think it is likely that he pushed her, and that constitutes family violence.
On 26 March 2021, the Applicant, by his own admission, yelled and screamed at her, threw a car key at her, and took her bag off her shoulder and refused to give it back. This conduct, together, is aggressive with an element of coercion, so I am satisfied that it constitutes family violence.
I do not consider that a contravention of a protection order is, of itself, family violence. It is necessary to assess whether the conduct that contravened the protection order constitutes family violence. Committing acts of family violence in contravention of a protection order adds to the seriousness of that conduct. The second, third and fourth episodes of family violence contravened protection orders.
In considering the seriousness of the family violence engaged in by the Applicant, the following relevant factors must be considered:
·the frequency of the non-citizen’s conduct and/or whether there is any trend of increasing seriousness;
·the cumulative effect of repeated acts of family violence; and
·rehabilitation achieved at time of decision since the Applicant’s last known act of family violence, including:
(i) the extent to which the person accepts responsibility for their family violence related conduct;
(ii) the extent to which the non-citizen understands the impact of their behaviour on the abused and witness of that abuse (particularly children); and
(iii) efforts to address factors which contributed to their conduct.
The episodes of family violence were relatively frequent, as there were four in a seven-month period. The seriousness did not escalate. The cumulative impact was that Ms M went from not being afraid of the Applicant, her partner, to being afraid of him. For example, on 15 June 2021, Ms M and the Applicant had an argument, and she had a panic/anxiety attack. She told ambulance officers that she was fearful of him and wanted to get away from him. The Applicant, in disregard of her feelings, tried to find out where she was being taken and tried to follow the Ambulance. He was taken to the police watchhouse.[78]
[78] Remittal Bundle, page 445.
The Applicant’s last known act of family violence was in early 2021. In January 2023, the Applicant had achieved little, if anything, in terms of rehabilitation. He followed Ms M to hospital, arguing with her to the extent that members of the public called the police, and then he physically harassed her. There is insufficient detail in the police report to make a finding that this was family violence, but it was a breach of a protection order, and it is intrusive, somewhat controlling conduct.
I have addressed the other matters in my discussion under Primary Consideration 1 and I apply that analysis here. The Applicant is at the beginning of his rehabilitative journey and has some way to go.
Primary Consideration 2 weighs moderately against revocation of the cancellation of the Applicant’s visa.
I will now address Primary Consideration 5, as it is the last of the mandatory considerations that weighs against the Applicant.
PRIMARY CONSIDERATION 5: EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that he may do so, the Australian community, as a norm, expects the government not to allow the non-citizen to enter or remain in Australia.[79]
[79] Paragraph 8.4(1) of the Direction.
Non-revocation of a mandatory visa cancellation 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 be granted or continue to hold a visa. In particular, the Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they raise serious character concerns through specified conduct that includes acts of family violence These expectations apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.[80]
[80] Paragraph 8.4(3) of the Direction.
The Applicant spent seven years in Australia living a productive, law-abiding life, even though he was using heroin for some of that period. I accept that for the majority of his time in Australia, he conformed to the expectations of the Australian community. However, since 2020, he has engaged in some acts of low-level family violence and committed numerous offences. The constant violation of the criminal law, court orders and bail conditions from 2020 to his incarceration in early 2023 showed a lack of regard for the administration of justice in the community in which he seeks to live. Further, there is a substantial risk of further offending.
Primary Consideration 5 weighs moderately against revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 3: STRENGTH NATURE AND DURATION OF TIES TO AUSTRALIA
Here, I should consider any impact of the decision on the Applicant’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
I should also consider the strength, nature and duration of any other ties that the Applicant has to the Australian community, having regard to:
· how long the Applicant has resided in Australia, including whether s/he arrived as a young child, noting that:
o less weight should be given where the Applicant began offending soon after arriving in Australia; and
o more weight should be given to time the Applicant has spent contributing positively to the Australian community
· 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.
The applicant moved to Australia in 2013 when he was 27 years old. He is now 39 years old. He did not start offending soon after arrival. He has held employment in warehousing, scaffolding, fruit picking, and as a truck driver, salesman and forklift driver. He has also been involved in the music industry. His voluntary work includes tending to a community garden in for a year when he first came to Australia and helping an elderly neighbour with odd jobs. He was a member of a band and that played in a charity even held by the motorcycle community[81] to raise money for children in hospital or who otherwise need support. He did that twice. [82] Janine and her mother each wrote letters that described him in very positive terms, and they referred to his willingness to help members of their family and other people with tasks around the house and garden.[83] I accept that.
[81] Motorcycle enthusiasts, not motorcycle gangs.
[82] Transcript, page 22 lines 40 to 46.
[83] Exhibit A1, pages 8 to 10; Exhibit A2, pages 5 to 6.
The Applicant has limited social ties to the Australian community. He has a friend who wrote a letter of support and he has some other friends in the music industry, although he is only in contact with one of them, and the last time he spoke with that person was around Christmas.[84] He has another friend, Ahmed, who he met in prison and who has offered him employment. It is not known what Ahmed’s migration status is, but I will give the Applicant the benefit of the doubt and take this relationship into account as a social tie to Australia.
[84] Transcript, page 22, lines 35 to 46.
The Applicant is not in contact with Ms M and did not express any desire to reconnect with her.
The only familial ties the Applicant has to the Australian community are with Janine and his daughter, although it seems he is well-liked by the rest of Janine’s family. Janine, Child A and Janine’s mother wrote letters of support. I accept that they all regard the Applicant in a positive light, and Janine and her mother believe Child A would be better off with him living in the wider Australian community. I accept that it is in Janine’s interests, and to some extent, her mother’s, that he gets his visa back.
I accept on the evidence before me that the Applicant has a loving relationship with Child A that is beneficial to her. I further accept that he has made a consistent effort to maintain and nurture this relationship, for example by calling her every evening.[85] I accept that, if the Applicant remains abstinent, his presence in Australia would be a good thing for his daughter, whether he lives near her or lives in Queensland and visits her. It would also be more feasible for him to provide some financial support to her is he were earning Australian dollars than Indonesian currency.
[85] Transcript, page 13, lines 23 to 25.
I do not accept, as Janine and her mother stated, that his daughter would feel abandoned if he were removed to Indonesia. There is no evidence that she felt abandoned when he moved to Queensland or was imprisoned or detained. Nor am I satisfied that he would be so indigent in Indonesia that he would not have means to contact her from there. The Applicant’s daughter wrote two letters to the Tribunal.[86] I accept that she dearly wishes the Applicant could stay in Australia and be a physically present parent to her.
[86] Exhibit A1, pages 6 to 7; Exhibit RB, pages 722 to 723.
None of the people mentioned above are dependent on the Applicant, except to the extent that his daughter is emotionally bonded to him. However, I accept that his friends will feel saddened if he is removed, and so will Janine and her mother because of the impact it will have on his daughter. I accept that his daughter will suffer some emotional hardship because deportation would remove the potential for him to ever live near her while she is in Australia. It is not known if her family has the financial means or will to take her to Indonesia for visits with the Applicant. It appears that she has a stable home with her mother looking after her in the context of a blended family, as Janine has since re-partnered.
This Primary Consideration weighs to a moderate extent in favour of revocation of the cancellation of the Applicant’s visa.
PRIMARY CONSIDERATION 4: BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA
Here, I must determine whether a non-revocation decision is or is not in the best interests of a child (under the age of 18 at the time) affected by the decision.[87]
[87] Paragraph 8.3 of the Direction.
The Direction sets out a number of factors to take into consideration, which relevantly include:
· the nature and duration of the relationship between the child and the Applicant. 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);
· the extent to which the Applicant 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;
· the impact of the Applicant’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
· the likely effect that any separation from the Applicant would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
· whether there are other persons who already fulfil a parental role in relation to the child; and
· any known views of the child (with those views being given due weight in accordance with the age and maturity of the child).
The Applicant’s daughter is nine years old and she lives with her mother, step-father and a child they had together, in Victoria. There is no suggestion that her living situation would change if the Applicant got his visa back.
The Applicant’s relationship with Child A has been marked by lengthy absences. First, he moved out of the family home in 2019, when she was around four years old. Then he moved interstate. The last time he saw her in person was in December 2019, when Janine brought her to visit him.
The Applicant wants to be involved in his daughter’s life, for example to walk her to school, and to provide financial support.[88] I accept that she has missed him while he has been physically absent and she wants him to be physically present. If he gets his visa back, he plans to live in Brisbane first, earn enough money to move to Victoria without risking homelessness, and then move to be close to his daughter. I accept that if he were to achieve this, he would potentially have a significant, regular presence in his daughter’s life, which is what she wants. If he remained drug free, this would be a very positive thing for her for the next nine or so years that she is a minor. The comments I made under Primary Consideration 3 about their relationship and the impact of the decision on her apply here. Ultimately, the significant positive contribution the Applicant could make in his daughter’s life by being physically present in Australia is contingent and uncertain.
[88] Transcript, page 59, lines 1 to 5.
If the Applicant does not get his visa back, his daughter will miss out on this potentially beneficial situation. She will suffer some emotional hardship. However, this would be somewhat mitigated by her ability to maintain contact with him in the same way that she does now.
I note that there is evidence that Ms M was, at one time, pregnant. The Applicant does not know whether she had a baby.[89] The Applicant did not claim, and the evidence does not indicate, that there is any minor child, apart from Child A, who engages this Primary Consideration.
[89] Transcript, page 47 lines 12 to 17. Exhibit RB, page 441
Taking into account the best interests of Child A, this Primary Consideration weighs in favour of the revocation of the cancellation of the Applicant’s visa, but it only attracts low weight.
EXTENT OF IMPEDIMENTS IF REMOVED
I must take into account the extent of any impediments that the Applicant may face if removed from Australia to Indonesia in establishing himself and maintaining basic living standards (in the context of what is generally available to other citizens of Indonesia) taking into account:
(a)the Applicant’s age and health;
(b)whether there are any substantial language or cultural barriers; and
(c)any social, medical and/or economic support available to the Applicant in Indonesia.
The Applicant is a 39-year-old man who is able bodied and suffers from asthma for which he sometimes needs an inhaler.[90] He does not have any diagnosed mental health conditions but he has an opioid dependency and he currently needs medication for anxiety and to help him sleep.
[90] Exhibit RB, page 625.
The Applicant was born, and spent the first 27 years of his life, in Indonesia. He speaks Indonesia’s official language and he is very familiar with Indonesian culture.[91] I am satisfied that he would not experience substantial language or cultural barriers.
[91] Exhibit RB, page 755.
As a citizen of Indonesia, the Applicant would have the same access to social, medical and economic support as other citizens. He said the inhaler he sometimes needs for his asthma is available in Indonesia but it is expensive.[92] He indicated that his mental health is good at the moment with the constant counselling support.[93] It is doubtful that he would have that structured, constant support outside immigration detention. Presumably, anxiety medication and counselling would be expensive in Indonesia.
[92] Transcript, page 19, lines 38 to 47.
[93] Transcript, page 24, lines 20 to 25.
The Applicant has a history of employment in Indonesia, having worked as a professional musician in four venues from 2007 to 2010.[94] He also has some work skills from his employment in Australia. He gave evidence at the first Tribunal hearing that he would be able to find work as a musician in the Java area.[95] In this hearing, he did not express such confidence. He said he would need to start making money to buy equipment, and he would probably try to use the skills from his previous employment to get work but it would be very hard.[96]
[94] Exhibit RB, page 748.
[95] Exhibit RB, page 751.
[96] Transcript, page 24, lines 34 to 41.
The Applicant will need accommodation in Indonesia and, given his vulnerability to drug addiction, he will need support around him. His biological parents have both passed away and I accept that he does not have a good relationship with his step-mother.[97] He has five siblings in Indonesia and some extended family. In the first Tribunal hearing he said he was close to Dimas and Diah, and also with a step-brother who taught him to play music.[98] Dimas and Diah live in Java. In the first hearing, the Applicant said his connections are in Java and it is cheaper than Bali.[99]
[97] Exhibit RB, page 483.
[98] Exhibit RB, page 754.
[99] Exhibit RB, page 752.
In this hearing, he said he was not in contact with anyone in Indonesia but he could find a way to contact them. He was not confident that his family would let him live with them because he thought they would see his return as a failure.[100] He said he would have to start from nothing. However, Dimas and Diah both accommodated him for short periods in 2017 and 2018 when he needed their help. I do not accept that they would refuse to help, at least on a short-term basis, if the Applicant were removed to Indonesia.
[100] Transcript, page 25, lines 5 to 10; page 18, lines 30 to 46.
The Applicant said he would contact friends in Indonesia if he could find their numbers.[101] He does not know what is available in Indonesia in terms of drug and alcohol support, but he said he could look into it.[102] He could continue to participate in online support groups if he could afford a phone.
[101] Transcript, page 25 lines 13 to 34.
[102] Transcript, page 20, lines 8 to 24.
The Applicant said he would find a way to contact his daughter in Indonesia. I am satisfied that, contact with her would be psychologically beneficial to him.
I am satisfied that the Applicant would find it difficult to re-establish himself and maintain basic living standards if he were removed to Indonesia. He would have to start with nothing and he would be without the OSTP, structure, counselling and support groups that he has benefitted from while in immigration detention. It will also be harder for him to access medication for financial reasons. However, there are family members who he could call on for help, and he is willing to reconnect with friends, look for community support, engage in online support groups, use his skills to get paid work and do what he can to maintain contact with his daughter. The challenges he faces are not insurmountable.
This Other Consideration attracts moderate weight in favour of revocation of the mandatory cancellation.
CONCLUSION
I am now required to weigh all of the Considerations in accordance with the Direction. Primary Considerations 1, 2 and 5 each weight moderately against revoking the visa cancellation. Primary Consideration 3 and Other Consideration (b) each weigh moderately in favour of revoking the visa cancellation. Primary Consideration 4 attracts low weight in favour of revoking the visa cancellation. Primary Considerations 1, 2 and 5 combined outweigh Primary Considerations 3 and 4, and Other Consideration (b).
Therefore, there is not another reason to revoke the cancellation of the Applicant’s visa. Section 501CA(4) of the Act is not satisfied.
DECISION
The decision under review is affirmed.
I certify that the preceding 130 (one-hundred and thirty) paragraphs are a true copy of the reasons for the decision herein of Senior Member R Bellamy
………...[SGD]..............
Associate
Dated: 11 October 2024
Date of hearing: 1 October 2024 Applicant:
Self-Represented
Solicitor for the Respondent Mr Jake Kyranis,
Sparke Helmore
Annexure A: Exhibit List
EXHIBIT DESCRIPTION OF EVIDENCE PARTY DATE OF DOCUMENT DATE RECEIVED RB Remittal Bundle (RB1 to RB6, 919 pages)
R Various 3 July 2024 A1 Applicant’s Material filed 25 August 2024, including:
(a) Letter signed by Mark Finnigan (1 page)
(b) Applicant’s Resume (3 pages)
(c) Letter from Aaron Dunn (1 page)
(d) Letter signed by Applicant’s daughter (2 pages)
(e) Letter signed by Dorothy Marlene Rew (3 pages)
(f) Applicant’s Certificates (10 pages).
A Various 25 August 2024 A2 Applicant’s Material filed 13 September 2024, including:
(a) Applicant’s employment history (2 pages)
(b) Applicant’s volunteer work history (2 pages)
(c) Letter signed by Janine Rew (5 pages)
(d) Document entitled ‘Issues the Applicant may address in personal statement to Department or Tribunal’ (2 pages)
(e) List of minor children (5 pages)
A Various 13 September 2024 R1 Respondent’s Statement of Facts, Issues and Contentions (19 pages) R 13 September 2024 13 September 2024 R2 National Plan to end Violence Against Women and Children (144 pages) R Undated 13 September 2024 R3
Applicant’s Opioid Substitution Treatment Program Agreement (16 pages)
R
1 March 2024
1 October 2024
Key Legal Topics
Areas of Law
-
Immigration
-
Administrative Law
Legal Concepts
-
Judicial Review
-
Natural Justice
-
Procedural Fairness
-
Statutory Construction
0
3
0