WPDS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2023] AATA 3797
•21 November 2023
WPDS and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 3797 (21 November 2023)
Division:GENERAL DIVISION
File Number:2023/5642
Re:WPDS
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
REASONS FOR DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:21 November 2023
Place:Perth
The following decision was made and given to the parties on 26 October 2023 with a note that written reasons would be provided within a reasonable time:
The Reviewable Decision, being the decision of a delegate of the Respondent dated 25 July 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
These are the written reasons for my decision.
................[Sgd]........................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – mandatory visa cancellation – decision of delegate of Minister not to revoke mandatory cancellation of the Applicant’s Visa – character test – substantial criminal record – offences include aggravated burglary, numerous possess prohibited drug offences and breaches of court orders – Applicant is a 37 year old citizen of the United Kingdom who arrived in Australia as a seven year old child – Direction No 99 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – no family violence – strength, nature and duration of ties to Australia – best interests of minor Indigenous daughter – expectations of the Australian community – legal consequences of the decision – extent of impediments if removed to the United Kingdom – impact on victims – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) ss 494B(4), 494C(4), 499, 499(1), 499(2A), 500(6B), 500(6L), 501, 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
CASES
Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451
Minister for Immigration, Citizenship and Multicultural Affairs v HSRN [2023] FCAFC 68
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1143
QXZB v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 891
SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79
Webb v Minister for Home Affairs [2020] FCA 831; (2020) 170 ALD 511
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
Zaya and Minister for Immigration and Border Protection [2017] AATA 366
SECONDARY MATERIALS
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (23 January 2023) paras 4(1), 5.1, 5.1(3), 5.1(4), 5.2, 5.2(5), 6, 7, 7(2), 7(3), 8, 8(1), 8(2), 8(3), 8(4), 8(5), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1, 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(b)(ii), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.1(1)(h), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(1), 8.3(2), 8.3(3), 8.3(4), 8.4, 8.4(4), 8.4(4)(a), 8.4(4)(b), 8.4(4)(c), 8.3(4)(d), 8.4(4)(e) , 8.4(4)(f), 8.4(4)(g), 8.4(4)(h), 8.5, 8.5(1), 8.5(2), 8.5(2)(a), 8.5(2)(b), 8.5(2)(c), 8.5(2)(d), 8.5(2)(e), 8.5(2)(f), 8.5(3), 8.5(4), 9, 9(1), 9(1)(a), 9(1)(b), 9(1)(c), 9(1)(d), 9.1, 9.1(1), 9.1(2), 9.1(3), 9.2, 9.2(1), 9.3, 9.3(1), 9.4, 9.4(1)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
21 November 2023
BACKGROUND
The Applicant is a 37-year-old man who was born in the United Kingdom. He came to Australia with his mother and maternal grandparents to reside when he was a seven-year-old child.
On 8 April 2022, the Applicant was sentenced in the Perth District Court to 15 months’ concurrent imprisonment from 19 February 2022 for the offence of “aggravated burglary and commit” (R1/42).
On 30 May 2022, the Applicant’s Class BB Subclass 155 Five Year Resident Return visa (Visa) was mandatorily cancelled (Cancellation Decision) under s 501(3A) of the Migration Act 1958 (Cth) (Migration Act) on the basis that he had a substantial criminal record and was serving a full-time custodial sentence of imprisonment (R1/85).
The letter advising the Applicant of the Cancellation Decision advised that he could make representations to seek revocation of the Cancellation Decision. The Applicant sought revocation of the Cancellation Decision in a request for revocation dated 30 May 2022 (R1/137-155). This included a personal circumstances form containing submissions (R1/140).
In a letter dated 26 June 2022, the Applicant’s legal representative provided written notification that he had instructions to act for the Applicant in relation to the cancellation of his Visa and the request for revocation (R1/156-157). He provided a Form 956 whereby the Applicant and his legal representative notified the Department of Home Affairs (Department) that the legal representative had been appointed to act on his behalf (R1/164). The Applicant’s legal representative subsequently provided written confirmation in an email to the Department dated 3 October 2022, that any notices and letters were to be sent by post and not by email (Annexure A to Respondent’s Submissions on Jurisdiction).
The Applicant’s legal representative made submissions in the letter dated 26 June 2022 and provided further submissions and evidence to the Department (R1/156-167).
However, on 25 July 2023, a delegate of the Minister decided not to exercise discretion under s 501CA(4) of the Migration Act to revoke the Cancellation Decision (R1/13). This is the Reviewable Decision in this application.
The Reviewable Decision, and documents required to accompany it, were sent by registered post to the Applicant’s legal representative in a letter dated 26 July 2023 (R1/10). Relevant provisions of the Migration Act, namely s 494C(4) and s 494B(4) provide that the Applicant was taken to have received the notification of the Reviewable Decision seven working days after the date of the letter, being 4 August 2023. There was no error in providing the notification to the Applicant’s representative who was his authorised representative (Kassem v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 451 at [29]).
However, the Applicant lodged an application seeking review of the Reviewable Decision in the General Division of this Tribunal on 2 August 2023, two days before the deemed notification (R1/1).
I accepted that a valid application can be made, and was made, before the Applicant was deemed to have been properly notified under the Migration Act (Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs v Parata [2021] FCAFC 46 at [71] and SZOFE v Minister for Immigration and Citizenship [2010] FCAFC 79 at [69]). Although those cases concern Part 5 and Part 7 reviewable decisions, the principles apply equally to a Part 9 reviewable decision, as in this application. His application can therefore be considered as being lodged within the nine-day period prescribed by s 500(6B) of the Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which an applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the 84-day period started running from 4 August 2023 when notification was deemed to have been given (QXZB v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 891 at [18]), meaning that I must hand down a decision on or before 27 October 2023.
ISSUES
The issues that I need to determine are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if he does not pass the character test, whether I am satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 10 and 11 October 2023.
The Applicant was represented by Ms E Watts. The Respondent was represented by Mr J Papalia of The Australian Government Solicitor.
The hearing took place in person.
The Applicant gave evidence on the first day of the hearing.
The Applicant’s mother, M, gave evidence on the second day of the hearing. So did the Applicant’s cousin, L and the Applicant’s stepfather, S.
Psychologist Dr Lorraine Sheridan also gave evidence on the second day of the hearing.
I admitted the following documents into evidence at the hearing:
(a)“Document list” bundle excluding A21 (video) (Exhibit A1);
(b)Section 501 - G Documents, labelled G1-G3, comprising pages 1-430 (Exhibit R1);
(c)Respondent’s Tender Bundle, labelled SG4-SG44, comprising pages 1-377 (Exhibit R2); and
(d)Briefing letter to Dr Sheridan dated 28 August 2023 (Exhibit T1).
Prior to the hearing, the Applicant lodged a Statement of Facts, Issues and Contentions (SFIC) on 13 September 2023 and the Respondent lodged a SFIC dated 3 October 2023.
The Respondent also lodged Submissions on Jurisdiction dated 21 August 2023, which the Applicant agreed with. I thank the Respondent for these helpful submissions which were concise yet comprehensive.
LEGISLATIVE FRAMEWORK
Migration Act
Subsection 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
i. paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
ii. paragraph (6)(e) (sexually based offences involving a child); 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.
Subsection 501(6)(a) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by subsection (7)); or
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7)(c) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)the person has been sentenced to a term of imprisonment of 12 months or more; or …
(Original emphasis.)
Section 501CA of the Migration Act further provides, in part:
(1)This section applies if the Minister makes a decision (the original decision) under subsection 501(3A) (person serving sentence of imprisonment) to cancel a visa that has been granted to a person.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
i. a written notice that sets out the original decision; and
ii. particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
i. that the person passes the character test (as defined by section 501); or
ii. that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 99
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)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.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 23 January 2023, the Minister for Immigration, Citizenship and Multicultural Affairs made Direction No 99: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 99) under s 499 of the Migration Act, which commenced operation on 3 March 2023. This Direction replaced the previous Direction No 90: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA made on 8 March 2021 (Direction No 90).
Paragraph 5.1 of Direction No 99 sets out “[o]bjectives”, with paragraphs 5.1(3) and (4) being relevant to the current application:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
(4)The purpose of this Direction is to guide decision-makers in performing functions or exercising powers under section 501 and 501CA of the Act. Under section 499(2A) of the Act, such decision-makers must comply with a direction made under section 499.
Paragraph 5.2 of Direction No 99 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(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)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.
(3)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 measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(5) With respect to decisions to refuse, cancel, and revoke cancellations of a visa, Australia will generally afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age. The level of tolerance will rise with the length of time a non-citizen has spent in the Australian community, particularly in their formative years.
(6) Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen’s conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.55(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 99, when making a decision the decision-maker (in this case, the Tribunal – see definition of “decision-maker” in para 4(1) of Direction No 99) must consider the primary considerations listed in paragraph 8 of Direction No 99, and the other considerations listed in paragraph 9 where relevant (see para 6 of Direction No 99).
Specifically, paragraph 8 of Direction No 99 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)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;
(5) expectations of the Australian community.
Paragraph 9 of Direction No 99 lists other considerations to be considered as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), the considerations below must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a) legal consequences of the decision;
b) extent of impediments if removed;
c) impact on victims;
d) impact on Australian business interests
Guidance as to how a decision-maker is to apply the considerations in
Direction No 99 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if the Minister is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
The Applicant does not pass the character test due to the operation of s 501(6)(a) of the Migration Act because he has a “substantial criminal record” as defined by s 501(7) of the Migration Act, having been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). This is due to the term of 15 months’ concurrent imprisonment imposed by the Perth District Court for the offence of “aggravated burglary and commit” (R1/42).
As the Applicant fails the character test, the statutory power to revoke will only be enlivened if there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
PRIMARY CONSIDERATIONS
Protection of the Australian community (paras 8(1) and 8.1 of Direction No 99)
Paragraph 8.1(1) of Direction No 99 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind 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. In this respect, decision-makers should have particular regard to the principle that entering or 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.
Paragraph 8.1(2) of Direction No 99 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date; and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Nature and seriousness of the conduct (paras 8.1(2)(a) and 8.1.1(1) of Direction No 99)
Paragraph 8.1.1(1) of Direction No 99 provides:
(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 the following:
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)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i. causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii. crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii. any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv. where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , [sic] or an offence against section 197A of the Act, which prohibits escape from immigration detention;
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)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen’s favour).
h)where the conduct or offence was committed in another country, whether that offence or conduct is classified as an offence in Australia.
The Applicant has a Western Australian criminal history that is approximately eight pages long (R2/211-219). His offences include aggravated burglary and stealing offences, property offences, possess prohibited drug offences, driving offences, breaches of judicial orders and three child sexual offences.
Direction No 99 provides that certain categories of offences may be viewed as very serious, including “sexual crimes” (para 8.1.1(1)(a)(i) of Direction No 99). On 27 November 2012, the Applicant was convicted of “indecently deals with a child over 13 under 16”, and two counts of “sexually penetrated a child over 13 and under 16”. The circumstances of these offences were that the Applicant, who was 24, wrongly believed the victim was 17. The Applicant’s DNA was recovered from the victim after testing was done because of a complaint by the victim regarding another offender assaulting her later that evening. The victim did not wish for the Applicant to be charged with any offences and refused to cooperate with police.
Other categories of offences may be viewed as serious including crimes committed against government representatives or officials in the performance of their duties (para 8.1.1(1)(b)(ii) of Direction No 99). The Applicant’s first criminal conviction was on 9 May 2006 for “assault public officer”. The offence was committed on 3 March 2006. At the time the Applicant was 20 years old. This offence involved the Applicant spitting blood on a police officer’s face and shirt.
The Applicant has received fines for many of his offences which indicate that they are less serious in nature. For example, he has received fines for many offences involving drug possession or drug paraphernalia, property damage, stealing and traffic offences. I note that the Applicant was fined $400 for the “assault public officer” offence committed on 3 March 2006, which was most likely because this was his first criminal conviction and he only had one prior traffic conviction.
Some of his offending is, however, more serious, which is reflected in the terms of imprisonment imposed (para 8.1.1(1)(c) of Direction No 99). They include the following (the dates stated are the court date):
·2 December 2011: “no authority to drive – never held and disqualified” committed on 16 September 2011 for which he was sentenced to a six month and one day term of imprisonment, suspended for nine months.
·27 November 2012: “indecently deals with a child over 13 under 16” for which he was sentenced to six months concurrent imprisonment suspended for 12 months, and two counts of “sexually penetrated a child over 13 and under 16” for which he was sentenced to a 12 month and a six-month concurrent term of imprisonment, both suspended for 12 months.
·18 April 2016 (a final hearing following a six-month pre-sentence order imposed by the drug court on 5 October 2015): “aggravated burglary and commit offence in dwelling” for which he received a concurrent suspended imprisonment order of eight months, suspended for 12 months, and “possess a prohibited drug (Methylamphetamine)” for which he received a concurrent suspended imprisonment order of one month, suspended for 12 months.
·24 March 2017: “breach of bail (fail to appear soon after)”, “breach of bail undertaking”, and “breach of suspended imprisonment order” for which he was sentenced to three concurrent one month terms of imprisonment, and a fine of $1000; “breach of suspended imprisonment order” for which he was sentenced to an eight month concurrent term of imprisonment; “burglary with intent in place not ordinarily used for human habitation” for which he was sentenced to an eight month cumulative term of imprisonment; and two counts of “possession of stolen or unlawfully obtained property” for which he was sentenced to a two month concurrent term of imprisonment for each count.
·8 April 2022: “aggravated burglary and commit” for which he was sentenced to a 15-month concurrent term of imprisonment.
This latter offence was the offence which resulted in the mandatory cancellation of the Applicant’s Visa. The Applicant forced open a lock to a primary school classroom and stole a bag containing a rock collection. He also opened a computer server unit, pulling out the wires, causing damage and disrupting the CCTV system. He also entered a shed on the school premises and was challenged by a staff member. When confronted, the Applicant produced a paint tin opener which prevented the staff member following him. The Applicant left the bag of rocks next to the shed. The sentencing Judge stated that, “offences of this type are serious” (R1/47). Although the offence involved the victim being or feeling threatened by the Applicant holding a paint tin opener, the offence did not involve significant property damage and there was no violence. I do note that the Applicant was sentenced to a custodial term of imprisonment and the comments of the sentencing Judge were that the offence was serious. Considering the guidance in Direction No 99 regarding offences that may be regarded as serious and very serious, I would categorise the “aggravated burglary and commit” offences as being of moderate seriousness. On the same date and arising out of the same series of events, the Applicant was also convicted of “stealing” but received no further punishment. That offence can be categorised as a low level of seriousness.
The Applicant has been convicted of 12 traffic/driving related offences. His most recent was committed on 21 August 2021 “exceed 0.08g alcohol per 100ml of blood; >=0.11g/100ml but <0.12g/100ml”. He was fined $1800, and his drivers’ licence was disqualified for 17 months (R2/211). He had previously committed the same offence in 2010 and 2011 and a similar offence involving slightly less alcohol, “exceed 0.05g alcohol per 100ml of blood; >=0.07g/100ml but <0.08g/100ml” in 2010. The Applicant also has convictions for driving whilst suspended (2010, 2011, 2019 and 2020) and whilst disqualified (2011). The Tribunal has often regarded driving offences to be serious (see, for example, Zaya and Minister for Immigration and Border Protection [2017] AATA 366 at [54], per Deputy President Kendall, as His Honour then was). Driving under the influence of alcohol, whilst suspended or disqualified is serious because that type of conduct places innocent road users at risk.
The Applicant’s first traffic offence was committed on 7 December 2005 and his first criminal offence (the “assault public officer” offence) was committed on 3 March 2006. His most recent offences were committed on 15 October 2021, which were the “aggravated burglary and commit” offence for which he was sentenced to a term of imprisonment on 8 April 2022, as well as a “stealing” offence committed on the same date. During this period of approximately 15 years, the Applicant has committed 12 driving/traffic related offences and 46 criminal offences. Consequently, his offending can be characterised as being frequent. There is no overall trend of increasing seriousness when the nature and progression of the offences are considered. The sentences of imprisonment I outlined above start with three suspended sentences, and then progress to custodial sentences. However, I do not think that indicates an increase in seriousness. The increase is most probably due to the repeat nature of the Applicant’s offending (para 8.1.1(1)(d) of Direction No 99).
The Applicant has had numerous Court appearances for his offending and for breaches of judicial orders, suspended imprisonment orders and custodial sentences of imprisonment. This would have placed some burden on the resources of police, corrective services, and the Courts. I find that there is likely to have been a cumulative effect of the Applicant’s repeated offending (para 8.1.1(1)(e) of Direction No 99).
I am also required to consider whether the Applicant has provided false or misleading information to the Department, including not disclosing prior criminal offending (para 8.1.1(1)(f) of Direction No 99). There is no evidence of this before me.
Paragraph 8.1.1(1)(g) of Direction No 99, requires me to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Applicant previously had his Visa cancelled on 5 October 2017 and spent approximately 12 months in immigration detention. He successfully sought revocation of that cancellation decision but received a written warning on 25 October 2018 that “if you engage in further criminal or other serious conduct, this may again result in your visa being cancelled on character grounds” (R1/104). The Applicant also signed to acknowledge receipt of this warning on 25 October 2018. This signed acknowledgment stated that, “I understand that if I engage in further criminal or other serious conduct, this may again result in any visa I hold being cancelled on character grounds, and in this case my past conduct and previous relevant information held by the Department can also be reconsidered” (R1/111). When asked about this at the hearing the Applicant said he was so “ecstatic” to be released from immigration detention that he did not take much notice of the warning and did not take the paperwork home. He stated that he relapsed and reoffended after a relationship breakdown (transcript/15).
The Applicant has not committed any offences in another country, and so I am not required to consider whether any such offence is an offence in Australia (para 8.1.1(1)(h) of Direction No 99).
The Applicant has committed numerous traffic and criminal offences, ranging from less serious offences through to serious and very serious offences. Although there is no overall trend of increasing seriousness, there is a cumulative effect, and his offending is frequent. He was not deterred from further offending by fines, suspended sentences and custodial sentences. The Applicant also reoffended after previously having his Visa cancelled and being in immigration detention.
Overall, I find that paragraph 8.1.1 of Direction No 99, the nature and seriousness of the conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paras 8.1(2)(b) and 8.1.2 of Direction No 99)
Paragraph 8.1.2(1) of Direction No 99 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers 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.
Paragraph 8.1.2(2) of Direction No 99 provides, in part, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen 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:
i. information and evidence on the risk of the noncitizen re-offending; and
ii. evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
…
Nature of the harm (para 8.1.2(2)(a) of Direction No 99)
Broadly speaking, I am required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or to the Australian community should he engage in further criminal or serious conduct (para 8.1.2(2)(a) of Direction No 99).
A primary purpose of road traffic and driving laws is the protection of road users. For example, prohibitions against driving whilst suspended exist to ensure that persons driving cars are appropriately qualified and safe to do so. Prohibitions against driving under the influence of alcohol exist to ensure that drivers are not unsafe to themselves and others by driving when they are impaired. Contraventions of these laws can result in serious consequences, including fatalities from road traffic accidents, as well as physical and psychological injuries to innocent road users.
If the Applicant was to commit a sexual offence like his “indecently deals with a child over 13 under 16”, and “sexually penetrated a child over 13 and under 16” offences, the harms that could result to members of the Australian community are potentially very serious and could include psychological harms.
The nature of the harm if the Applicant were to commit further drug offences is varied. Drug offences are generally, less serious than violent offences. Although the Applicant’s drug possession offences appear to be for his personal use (and not for sale or commercial profit), purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs in the community causes harm to the community on many levels, including drug related crimes such as violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Offences against property, including those involving stealing and property damage can also result in financial detriment, and indirectly contribute to increased insurance premiums.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (para 8.1.2(2)(b) of Direction No 99)
Next, I am required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (sub-paras 8.1.2(2)(b)(i) and (ii) of Direction No 99).
The Applicant is a 37-year-old man who has a lengthy criminal history over a period of approximately 16 years. The Applicant continued to offend after receiving fines and suspended and custodial prison sentences. He relapsed to drug use and reoffended after previously having his Visa cancelled and spending approximately a year in immigration detention before he was released. Overall, his history suggests that there is a likelihood of future reoffending.
The Applicant was released on parole on 3 October 2022 (A1/A29) but as his Visa was cancelled, he has been in immigration detention since that time. His sentence came to an end on 18 May 2023 while the Applicant was in immigration detention. A period of parole with conditions and supervision can help a person’s rehabilitation and reintegration into the community which may in turn lower the likelihood of reoffending. However, if the Applicant is released into the Australian community, he will not have the benefit of parole because his parole period has now expired.
I note, however, that in making the parole order the Prisoners’ Review Board (PRB) decided that the Applicant’s release would present an acceptable risk to the safety of the community for reasons including that treatment interventions would be available in the community; his positive prison behaviour; and a viable parole plan with accommodation, prospective employment, and family support. The PRB imposed numerous conditions which included attending random urinalysis; not to consume alcohol; restrictions on entering licensed premises; submitting to random breath testing; complying with mental health treatment; attending programs and counselling as directed; engaging in employment, training or job seeking; and not to change address without prior approval. These are substantial conditions and indicate that the PRB was of the view that there was some risk to the community but that the risk could be managed to an acceptable level with these substantial conditions and supervision by a community corrections officer. This conclusion that there may be some risk to the community is further supported by opinion given on 3 August 2022 by the writer of the Applicant’s Parole Review Report who stated: “In view of the nature of the current offence, extensive criminal history, mixed response to previous supervision and the potential for unaddressed treatment needs, release to parole is not supported” (R2/203).
The Applicant had occasionally used methamphetamine when working as a concreter, but his use became more frequent from 2015 after the breakdown of his relationship with the mother of his daughter, the shame of being charged with the sexual offences and experiencing depression. He described using methamphetamine to self-medicate (A1/A1, para [22]) and developed an addiction. He has unsuccessfully undertaken treatment programs to address his drug addiction in the past, including a six-month Fresh Start program from approximately mid-2015 where he was given a naltrexone implant. He attended Shalom House for nine months from February 2020 but upon his release he started using methamphetamine again. He described both programs as having minimal or no cognitive behavioural or psychological treatment, so they did not address his underlying emotional and psychological issues. I also note that the Applicant previously completed the intensive Pathways drug and alcohol program in prison between 13 July 2017 and 29 September 2017 (R2/157-163; R1/418) and despite “significant treatment gains” being identified by the program facilitators he later relapsed to drug use and reoffended. The Applicant also participated in the Life Skills Re-entry Program, which he completed in July 2017 (R1/419) and the 50-hour emotional intelligence program, Standing on Solid Ground in approximately September 2017 (R1/420). He also undertook some vocational training study (R1/421). Despite completing these voluntary programs, the Applicant resumed drug use and reoffended after the completion of his prison sentence.
To the Applicant’s credit, during his most recent sentence of imprisonment he attended six Narcotics Anonymous sessions (R2/201). He has also completed numerous voluntary courses in immigration detention with an accredited provider (A1/A25). These included (the dates stated are the approximate completion dates based on the dates that the certificates of course completion were issued):
·Spiritual Counseling [sic], 2 August 2023 (eight contact hours).
·Drug and Alcohol Abuse 101, 3 August 2023 (seven contact hours).
·Understanding Addictions, 4 August 2023 (10 contact hours).
·Workplace Drug Use – An HR Guide, 5 August 2023 (six contact hours).
·Healthy Relationships, 5 August 2023 (seven contact hours).
·Emotional Intelligence, 7 August 2023 (five contact hours).
·Stress Management, 9 August 2023 (four contact hours).
·Goal Setting 101, 14 August 2023 (five contact hours).
·Anxiety Therapy 101, 22 August 2023 (five contact hours).
·Building Self Esteem, 28 August 2023 (three contact hours).
·Positive Parenting Techniques, 2 September 2023 (five contact hours).
At the time of the hearing the Applicant was undertaking a 13-week SMART Recovery drug and alcohol program. He said it comprised a weekly hour and a half session with a counsellor, and an hour-long session with a psychologist (transcript/16).
The Applicant undertaking and completing these courses shows his willingness and motivation to change, and to address his drug addiction issues which are the main contributing factor in his offending.
I also note that the Applicant is taking medication for anxiety and depression which he described as “really helpful”, that he had noticed a positive difference in his mood, and that he is now able to eat and sleep properly (transcript/16). This shows that the Applicant appreciates that he requires mental health treatment and places him in a more positive mindset if he is released into the community.
The Applicant was asked about how his situation is different this time. His answer demonstrated some insight into the impact drug use has had on his life (transcript/15-16):
APPLICANT: I have worked on myself this time. I’ve done a lot of courses. I think I’ve matured a lot. My nephews are growing up. My daughter is getting older. I have worked on my addiction this time. Last time in detention 12 months I basically exercised. This time I’m constantly doing courses trying to better myself. I think I have dealt with my addiction this time. I’m not willing to borrow dopamine from the future. I’ve just – my head back’s to level. My …
MS WATTS: What does that mean, borrow dopamine from the future?
APPLICANT: That is a thing to do with addiction. When you use drugs it borrows dopamine from the future making everything – making everything better at the time but then it comes off the future because it’s not that good again. I just don’t want to take drugs anymore.
The Applicant also plans to attend Narcotics Anonymous meetings and counselling in the community. This is likely to assist him to abstain from drug use if he is released into the community. He has also been drug-free since he went to prison in February 2022. This period of abstention is also likely to help him not to use drugs, and not to reoffend, if he is released into the Australian community.
My impression of the Applicant is that he is a loving father to his 11-year-old daughter and that he feels a great deal of guilt and remorse for being absent from his daughter’s life because of his behaviour. He stated that he felt, “gutted and physically ill” about not being present in her life for significant events and achievements (A1/A1, para [65]). He appreciates that he has not been there when she has needed his care and support. The Applicant appears genuinely motivated to care for his daughter and “to be the stable and consistent parent” (A1/A1, para [64] and [68]). He also appreciates the burden that his mother is undertaking to look after his daughter when she has her own health issues, as well as caring for his stepfather who has a terminal illness and assisting to care for his grandfather who has Alzheimer’s disease. Having the care and parental responsibility for his daughter (in circumstances where her mother cannot responsibly care for her due to her drug addiction) is likely to provide the Applicant with strong motivation to abstain from drugs and not to reoffend.
The Applicant has an extended family in Australia, and he has very strong support from his family members, with numerous family members willing to provide him with emotional and practical support, despite knowing about his drug addiction and his offending. The Applicant’s mother is a very strong, pro-social support person. She will provide him with stable accommodation in her home where he will have his own bedroom and living area. Her evidence is that she will provide the Applicant with emotional and practical support, including taking him to counselling and paying for his treatment. The Applicant’s mother also stated that family members were looking at options for a family business as an alternative to the Applicant returning to concreting, an industry which she thinks is associated with access to drugs (A1/A5, para [40]-[41]).
It was also evident to me that the Applicant appreciated the stress and pressure that he has subjected his mother to because of his drug use, offending, imprisonment and detention and the prospect of his deportation. My impression was that he now seems to appreciate that he is facing deportation to a country that he is unfamiliar with, where he has no friends, family or support. Given that a successful outcome in these proceedings will be a second chance for the Applicant, he realises that he is unlikely to get a third chance if he reoffends and his Visa is cancelled again.
When sentencing the Applicant for the “aggravated burglary and commit” and “stealing” offences on 8 April 2022, the sentencing Judge remarked that the likelihood of the Applicant “reoffending in a like manner [was] relatively high, given the extent of [his] record”, but that if he could seek help for his drug addiction and underlying psychological issues it would “assist [him] in terms of the prospects of re-offending in the future” (R1/52). I infer that the sentencing Judge was expressing the view that with treatment interventions the likelihood of the Applicant reoffending would be reduced.
On 26 April 2022 the Applicant was assessed using the Risk of Reoffending Prison version tool which assesses the risk of general reoffending. He was given a score of 13, with the range of scores being one to 22, with 22 being the highest risk of reoffending (R2/197).
Dr Lorraine Sheridan conducted a formal assessment of the Applicant’s risk of reoffending on 30 August 2023 and produced a report dated 5 September 2023 (A1/A2). Dr Sheridan also gave evidence at the hearing of this application. Dr Sheridan assessed the Applicant’s risk of reoffending using the “IORNS” (Inventory of Offender Risk, Needs, and Strengths) risk assessment tool. She assessed him as falling into the 69th percentile, which meant that 31 people ahead of him were more likely to reoffend. She described this as an “above average chance of reoffending” (A1/A2, para [48]) and later clarified that it was a “moderate” risk. However, Dr Sheridan opined that if the Applicant were to cease associating with negative peers and to stop using drugs “his risk falls down radically”. Dr Sheridan also observed that the Applicant did not have pro-criminal attitudes which was also positive for the Applicant because attitudes are more difficult to change. Her opinion was that if the Applicant did these things (avoided negative peers and stopped using drugs, together with his lack of pro-criminal attitudes), he is likely to move to the 20th percentile, which could be regarded as a “low” category of risk. This means that there would be 80 people in the sample group in front of him who were more likely to reoffend. Dr Sheridan recommended that the Applicant needed to engage in “ongoing and intensive psychological support” in the form of “regular, long term and compulsory” therapy if he is to stay away from drugs and not to reoffend (transcript/96-98; A1/A2, para [57]-[58] report).
Dr Sheridan was also asked about the Applicant’s sexual offences. She stated that she did not “detect anything related to sexual deviancy, beliefs or supportive beliefs of the behaviours” (transcript/96). I note that the Applicant has no other child sexual offences on his record and taking into account the circumstances of these offences which I outlined above, and which occurred on the one occasion, I do not think there is a likelihood of future sexual offending.
Given the treatment recommendations in Dr Sheridan’s report, I was concerned that the Applicant had initially planned to attend residential rehabilitation at Shalom House if he was released into the Australian community. However, he decided not to go to Shalom House, and instead reside with his mother, stepfather and his 11-year-old daughter so that he could help care for his daughter. The Applicant intends to engage in treatment with Dr Donna Stambulich. Dr Sheridan was supportive of this plan and opined that the Applicant was better placed being treated by Dr Stambulich than attending Shalom House. She explained the holistic approach of Dr Stambulich who she described as “ground-breaking”. Dr Sheridan further stated that Dr Stambulich will “put together a program that targets hard people’s individual tailored needs” and that “it’s individual tailored needs that’s the paramount issue” (transcript/98). She opined that “for [the Applicant] personally, it would be more motivating for him to stay clean and away from stuff if he’s looking at his daughter every day” (transcript/99). I accept Dr Sheridan’s opinion that he is better placed being treated by Dr Stambulich and caring for his daughter in the community. In forming this view, I note Dr Sheridan’s assessment of the triggers for the Applicant’s offending, which was as follows (A1/A2, para [33] of report):
Essentially, [the Applicant] takes drugs as a maladaptive method of coping with emotional pain that arises from relationship problems and low self-esteem, feelings of failure and not belonging. He then engages in criminal activities to help fund his addiction.
It seems to me that the holistic approach of Dr Stambulich will assist the Applicant to address the emotional issues that underpin his drug use. If he can effectively engage in treatment with Dr Stambulich, it is likely to reduce the likelihood of his reoffending.
In summary, the following factors are not protective or suggest some likelihood of reoffending:
(a)His lengthy and repeated criminal history and the fact that he has not been deterred by fines, suspended sentences of imprisonment, sentences of custodial imprisonment and the previous cancellation of his Visa, for which he spent approximately a year in immigration detention.
(b)His parole period has expired and so he will not have the benefit of parole supervision to assist with his reintegration and rehabilitation in the community. Although the PRB released him on parole, he was subject to substantial conditions which indicate that the PRB was of the view that there was some risk to the community but that the risk could be managed to an acceptable level with substantial conditions and supervision by a community corrections officer.
(c)The Applicant’s significant history of methamphetamine use, and his resumption of drug use and offending after completing the Fresh Start program, residential rehabilitation at Shalom House, and the intensive Pathways drug and alcohol program.
(d)The recent comments of the sentencing Judge on 8 April 2022 that the likelihood of the Applicant reoffending in a similar manner was “relatively high”; the 26 April 2022 Risk of Reoffending Prison version tool which indicated that he was a moderate risk of general reoffending; and the assessment of Dr Sheridan that he is a moderate risk.
The following factors are protective and may reduce the likelihood of the Applicant reoffending:
(a)His engagement with Narcotics Anonymous during his most recent term of imprisonment, the numerous voluntary courses in immigration detention, and his engagement with the 13-week SMART Recovery drug and alcohol program which he was undertaking at the time of the hearing.
(b)The Applicant is now taking medication for his anxiety and depression and is now in a more positive mindset.
(c)He has developed insight into his drug use and has a genuine desire not to use drugs in the future. He has a plan to address the underlying emotional issues that contribute to his drug use and offending through attending counselling with Dr Stambulich and Narcotics Anonymous meetings in the community. He has had a period of abstinence from drug use in prison and immigration detention which may assist him to stay drug free in the community, which also may in turn reduce the likelihood of his reoffending.
(d)The Applicant wants to be a good father to his daughter and appreciates the detriment she has suffered in his absence. He also appreciates the burden on his mother who currently has parental responsibility for his daughter and the stress and pressure he has subjected her to because of his situation.
(e)His strong support from his extended family members who are aware of his offending and drug history.
(f)The deterrent effect of the time the Applicant has spent in prison and immigration detention, and the prospect of returning to an unfamiliar country with no friends or family.
(g)Dr Sheridan’s endorsement of Dr Stambulich’s holistic approach which will assist the Applicant to address the underlying psychological issues to his drug use and offending and her assessment that this is likely to reduce the likelihood of his reoffending from moderate to low.
(h)Accepting Dr Sheridan’s evidence of a lack of any sexual deviancy, I do not think there is a likelihood of any future child sexual offending. The main likelihood of reoffending is drug-related, including general and traffic related offending.
Overall, after balancing the protective factors against those that suggest a likelihood of reoffending, as I stated above, I find that the Applicant is likely to be a moderate likelihood of reoffending.
After also considering the nature of the harm that could result if the Applicant reoffended, which ranges from less serious to very serious, overall, I find that paragraph 8.1.2 of Direction No 99, being the risk to the Australian community should the Applicant commit further offences, weighs strongly against the revocation of the Cancellation Decision.
Summary on para 8.1 of Direction No 99
I have found that paragraph 8.1.1 and paragraph 8.1.2 both weighed strongly against the revocation of the Cancellation Decision. Therefore, overall, I find that primary consideration 8.1, being the protection of the Australian community, weighs strongly against the revocation of the Cancellation Decision.
Family violence committed by the non-citizen (paras 8(2) and 8.2 of Direction No 99)
Paragraph 8.2 of Direction No 99 requires decision-makers to have regard to family violence committed by the non-citizen.
There is no evidence before me that the Applicant has committed any family violence offences or that he has engaged in family violence conduct. I therefore find that this consideration is not relevant.
The strength, nature and duration of ties to Australia (paras 8(3) and 8.3 of Direction No 99)
Paragraph 8.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider any impact of the decision on the non-citizen’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.
Paragraphs 8.3(2) and (3) of Direction No 99 direct decision-makers to consider the non-citizen’s ties to any children, and the strength, duration, and nature of any family or social links to members of the Australian community who are citizens, permanent residents or who have an indefinite right to remain in Australia:
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens. Australian permanent residents and/or people who have the right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
In other words, if I affirm the Reviewable Decision, the Applicant will likely be removed to the United Kingdom as soon as is reasonably practicable and he will remain in immigration detention until he is removed.
Further, if he is removed to the United Kingdom, it is likely that the Applicant will face a range of restrictions which would make it unlikely that he would meet the criteria under the Migration Act for a visa to enable him to re-enter Australia.
The next two sub-paragraphs of Direction No 99, 9.1(2) and (3), address Australia’s non-refoulement obligations:
(2)A non-refoulement obligation is an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Australia has non-refoulement obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol (together called the Refugees Convention), the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (the CAT), and the International Covenant on Civil and Political Rights and its Second Optional Protocol (the ICCPR). The Act, particularly the concept of ‘protection obligations’, reflects Australia’s interpretation of non-refoulement obligations and the scope of the obligations that Australia is committed to implementing.
(3)International non-refoulement obligations will generally not be relevant where the person concerned does not raise such obligations for consideration and the circumstances do not suggest a non-refoulement claim.
As contemplated by sub-paragraph 9.1(3) of Direction No 99, the Applicant has not raised any non-refoulement obligations, nor do they arise from the Applicant’s circumstances or on any of the materials before me.
The Applicant’s removal would be a consequence of the operation of Australia’s migration laws, and as there are no non-refoulement considerations that would apply to the Applicant, I give this consideration neutral weight.
Extent of impediments if removed (paras 9(1)(b) and 9.2 of Direction No 99)
Paragraph 9.2(1) of Direction No 99 provides:
(1)Decision-makers must consider the extent of any impediments that the non citizen may face if removed from Australia to their home country, in establishing themselves 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 Applicant is 37 years of age. He has lived in Australia for the last 29 years since he was a seven-year-old child.
A Mental Health Assessment states that as of May 2023 the Applicant has an “indirect inguinal hernia”, toothache, low back pain and insomnia (R2/124). Apart from these issues, he is in relatively good physical health.
There is some evidence that the Applicant has suffered from anxiety and depression in the past (R1/53).
It is likely that the Applicant would be eligible to receive treatment under the National Health Service if he was returned to the United Kingdom. Although there are no substantial language or cultural barriers that the Applicant would face if returned to the United Kingdom, I have concerns about his lengthy history of drug addiction and that being returned to the United Kingdom may detrimentally impact on his rehabilitation and that he may relapse. This concern is, in part, due to Dr Sheridan’s opinion that if the Applicant was returned to the United Kingdom, he would find it “just too difficult to cope” and “he’d go straight back into drugs”. Dr Sheridan stated the basis for this opinion was that “a lot of the issues that led to his offending and his addiction was all about trauma and loss and not belonging” (transcript/96). If the Applicant were to resume drug use in the United Kingdom, it is likely to be a significant impediment to his establishing himself and maintaining basic living standards.
The Applicant has worked as a concreter but has no formal vocational qualifications. This, together with his lack of contacts or support networks in the United Kingdom and his status as a returnee with a substantial criminal history, may make it difficult for him to find employment.
In Webb v Minister for Home Affairs [2020] FCA 831; (2020) 170 ALD 511 at [100], Anastassiou J stated that, “I also agree that common knowledge is a sufficient basis for finding … that the standards of health care, education, social welfare and housing support in the United Kingdom would be ‘comparable’ to those in Australia”. However, I do not have any evidence as to whether the Applicant would be entitled to any social security payments in the United Kingdom. Although he is likely to have the same rights as other United Kingdom citizens, I am uncertain whether he would be eligible to receive social security payments because he has not lived or worked in the United Kingdom.
All the Applicant’s immediate family are in Australia, including his parents, grandparents, and his minor daughter. He does not have any family or social connections in the United Kingdom who could provide any support (transcript/75). He is likely to experience emotional hardship if he is separated from his daughter and immediate family in Australia and returned to an unfamiliar country that he has not resided in since he was a young child.
Overall, I find that there are some impediments to the Applicant being able to establish himself and maintain basic living standards if he was returned to the United Kingdom.
I therefore find that paragraph 9.2 of Direction No 99, being the extent of impediments if removed, weighs moderately in favour of revocation of the Cancellation Decision.
Impact on victims (paras 9(1)(c) and 9.3 of Direction No 99)
Paragraph 9.3(1) of Direction No 99 provides that:
(1)Decision-makers must consider the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen's criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no information before me regarding the effect of a decision to revoke or not to revoke the Cancellation Decision on the Australian community (other than as discussed above under the protection of the Australian community and the expectations of the Australian community primary considerations), or on any victims of any of the Applicant’s offences.
Consequently, I give this other consideration neutral weight.
Impact on Australian business interests (paras 9(1)(d) and 9.4 of Direction No 99)
Paragraph 9.4(1) of Direction No 99 states that decision-makers should consider the impact of a decision whereby the Applicant is not allowed to remain in Australia on any business interests. It provides:
(1)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before me and is therefore not relevant.
THE WEIGHING EXERCISE
The Applicant does not pass the character test under s 501 of the Migration Act.
I have therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 99.
For the reasons set out above, I made the following findings about the relevant primary considerations in Direction No 99. These were:
(a)The protection of the Australian community from criminal or other serious conduct weighed strongly against the revocation of the Cancellation Decision.
(b)The strength, nature and duration of the Applicant’s ties to Australia weighed strongly in favour of the revocation of the Cancellation Decision.
(c)The best interests of the Applicant’s 11-year-old daughter weighed very strongly in favour of the revocation of the Cancellation Decision. The best interests of the Applicant’s two nephews weighed slightly in favour; the best interests of the Applicant’s goddaughter, AV, weighed slightly in favour, and the best interests of the minor children of the Applicant’s cousins were neutral.
(d)The expectations of the Australian community weighed moderately against the revocation of the Cancellation Decision.
I made the following findings with respect to the other considerations that were relevant. These were:
(a)The legal consequences of the decision, which I gave neutral weight.
(b)The extent of impediments if removed weighed moderately in favour of revocation of the Cancellation Decision.
(c)The impact on victims, which I gave neutral weight.
I have weighed the primary and other considerations against each other and after doing so, I am satisfied that the weight I have assigned to each of them above is appropriate.
Although primary considerations are generally to be given greater weight, they are not hierarchical and other considerations can outweigh primary considerations (para 7(2) and (3) of Direction No 99).
Overall, I find that the primary considerations of the best interests of the Applicant’s 11-year-old Indigenous daughter, which weighed very strongly, and the strength, nature, and duration of the Applicant’s ties to Australia, which weighed strongly, in favour of the revocation of the Cancellation Decision, were determinative. They outweighed the considerations that weighed against the revocation of the Cancellation Decision, namely the primary consideration of the protection of the Australian community, which weighed strongly, and the expectations of the Australian community, which weighed moderately, against the revocation of the Cancellation Decision. The extent of impediments if removed other consideration, which weighed moderately in favour, adds to the overall weight being in the Applicant’s favour. Further, the best interests of the Applicant’s two nephews (which weighed slightly in favour) and the best interests of the Applicant’s goddaughter, AV, (which weighed slightly in favour), further added to the overall weight being in the Applicant’s favour.
In summary, I am satisfied that there is another reason why the Cancellation Decision should be revoked. Therefore, the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision, being the decision of a delegate of the Respondent dated 25 July 2023, is set aside and substituted with a decision that the cancellation of the Applicant's Visa is revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 193 (one hundred and ninety-three) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
..........[Sgd]........................................................
Associate
Dated: 21 November 2023
Dates of hearing: 10 and 11 October 2023 Representative for the Applicant: Ms E Watts, Inclusive Migration; Dominic McKenna Representative for the Respondent:
Mr J Papalia, The Australian Government Solicitor
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