XFCS and Minister for Home Affairs (Migration)
[2019] AATA 201
•20 February 2019
XFCS and Minister for Home Affairs (Migration) [2019] AATA 201 (20 February 2019)
Division:GENERAL DIVISION
File Number: 2018/7013
Re:XFCS
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:R Cameron, Senior Member
Date:20 February 2019
Place:Melbourne
The Tribunal affirms the decision under review.
.......[sgd]................................................
R Cameron, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – failure to pass the character test – serious and violent offending – Ministerial Direction No. 65 – where primary considerations outweigh other considerations – decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Ayache v Minister for Immigration and Border Protection, Re [2018] AATA 310
Do and Minister for Immigration and Border Protection, Re [2016] AATA 390
Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11
NDFN v Minister for Immigration and Border Protection, Re [2017] AATA 892
Waits v Minister for Immigration and Multicultural and Indigenous Affairs, Re [2003] AATA 1336YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Ministerial Direction No. 65 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
The Immigration (European Economic Area) Regulations 2016 – 2016 No. 1052 Part 4 Regulation 27
Gov.UK Home Office report – Immigration Rules published 25 February 2016 updated 1 February 2019
Home Office report – Criminal record certificate requirement Version 2.0 published 11 January 2018
Gov.UK document – Settled and pre-settled status for EU citizens and their families
Gov.UK document – Existing UK residence documents for EU citizens
Balkan Transitional Justice – Intolerance Towards Serbs ‘Escalates in Croatia’: Report dated 7 March 2017
Refworld – Freedom in the World 2018 – Croatia dated 1 August 2018
Minority Rights Group report on “Serbs”
Croatia 2017 Human Rights Report
Refworld – Croatia: Treatment of minority groups, including, Roma, Serbs, Bosnians, and Romanians; state protection available in cases of violence and discrimination, including legislation (2012-June 2015) dated 15 July 2015
Serbo-Croatian language articleSerbian language article
REASONS FOR DECISION
R Cameron, Senior Member
20 February 2019
INTRODUCTION
The Applicant was born in Croatia. He arrived in Australia in February 2003 when he was aged 13. He has resided in Australia ever since.
On 15 March 2018, the Applicant’s Class XB Subclass 200 refugee visa (“the visa”) was cancelled under section 501(3A) of the Migration Act 1958 (Cth) (“the Act”) (“the original decision”).
Following cancellation of the visa the Applicant made representations to the Respondent seeking revocation of the original decision.
On 28 November 2018 a delegate of the Respondent decided, under section 501CA(4) of the Act, not to revoke the original decision (“the reviewable decision”). The Applicant has applied to this Tribunal for review of that decision.
RELEVANT LAW
Migration Act 1958
With regard to the mandatory cancellation of visas, section 501(3A) of the Act provides that the Minister (or his delegate) must cancel a visa that has been granted to a person if:
(a) the Minister is satisfied that the person does not pass the character test because of the operation of:
(i)paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); 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.
Section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly, for the purposes of the character test, section 501(7)(c) provides that a person has a “substantial criminal record” if they have been sentenced to a term of imprisonment of 12 months or more.
With regard to the revocation of a mandatory cancellation decision, section 501CA relevantly provides:
(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.
…
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way 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.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
…
Where a decision has been made by a delegate of the Minister under section 501CA(4) not to revoke a mandatory cancellation of a visa, the affected person may make an application to the Tribunal seeking a review of that decision under section 500(1)(ba) of the Act.
Under section 499(1) of the Act, the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (section 499(2A) of the Act). Currently, the applicable direction is Direction No. 65, Migration Act 1958 – Direction Under Section 499 (“the Direction”).
Direction No. 65
It is appropriate to set out several of the sections of the Direction that are applicable with respect to this application. Paragraph 6.2, “General Guidance”, relevantly provides:
(1)The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. The principles below are of critical importance in furthering that objective, and reflect community values and standards with respect to determining whether the risk of future harm from a non-citizen is unacceptable.
…
(3)The principles provide a framework within which decision-makers should approach their task of deciding… whether to revoke a mandatory cancellation under section 501CA. The relevant… factors that must be considered in making a revocation decision are identified in Part C of this Direction.
The principles referred to in paragraph 6.2 are contained in paragraph 6.3:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law-enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3)A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4)In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5)Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
…
(7)The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
Part C of the Direction provides guidance for revocation decision-making and contains a number of primary and other considerations. Finally, paragraph 8(4) of the Direction provides that Primary considerations should generally be given greater weight than the other considerations and paragraph 8(5) states that one or more primary considerations may outweigh other primary considerations.
ISSUES TO BE DECIDED
As mentioned above, section 501(6)(a) of the Act provides that a person does not pass the character test if they have a “substantial criminal record”. The Applicant has been sentenced to a term of imprisonment of 12 months or more.[1] Therefore, the Applicant does not pass the character test by virtue of section 501(7)(c) of the Act.
[1] The National Police Certificate (pages 45-48 of the G documents) reveals that he was sentenced to terms of imprisonment of 12 months or more at the Melbourne County Court on 1 August 2014 and 11 June 2009.
The Applicant has conceded that he does not pass the character test.[2]
[2] This concession is made in paragraph 45 of the Applicant's Statement of Facts, Issues and Contentions. The concession was also made on his behalf in page 8 of a letter of 4 May 2018 in support of his application for revocation of the mandatory cancellation of his visa. This concession in that letter is to be found at page 118 of the G documents.
Therefore, under section 501CA(4)(b) of the Act, the issue to be determined by the Tribunal is whether there is another reason why the original decision should be revoked.[3]
[3] Section 501CA (4)(b)(ii) of the Act.
THE EVIDENCE BEFORE THE TRIBUNAL
There was both documentary and viva voce evidence before the Tribunal.
The documentary evidence consisted of the following:
(a)Witness statement of the Applicant together with annexures dated 21 January 2019;
(b)Witness statement of the Applicant’s mother together with annexures dated 16 January 2019;
(c)Witness statement of the Applicant’s partner together with annexures dated 16 January 2019;
(d)Witness statement of previous employer dated 6 February 2019;
(e)A bundle of seven articles concerning various issues in Croatia;
(f)Supplementary Report of Mr Tim Watson-Munro, a Forensic Psychologist, dated 21 January 2019;
(g)The G documents; and
(h)Supplementary G documents.
There was viva voce evidence from the following witnesses:
(a)The Applicant;
(b)The Applicant’s mother;
(c)The Applicant’s partner; and
(d)Mr Tim Watson-Munro.
SOME OBSERVATIONS ON THE APPLICANT’S BACKGROUND
The Applicant was born in Croatia to Serbian parents in March 1989. His family was affected by the outbreak of war in Croatia following the disintegration of the former Yugoslavia.
The Applicant states that his family’s home was burnt down in 1995 or thereabouts. His father was also shot in the conflict. The Applicant apparently observed these events as a young boy.
As a result of the conflict in Croatia the Applicant’s family decided to flee. They travelled by tractor to Serbia. They remained there for some time until they eventually resettled in a refugee camp in Kosovo. They remained in Kosovo for another four years. Conflict ensued in Kosovo in approximately 1999. Once again, given the conflict that emerged, the family returned to Serbia.
The conditions which the family endured throughout this period after leaving Croatia can be best described as spartan. They resided in several refugee camps and frequently the entire family was living in a very small room.
Eventually, in December 2002 the family were granted refugee visas for Australia. They first arrived in 2003 having spent most of the previous eight years in refugee camps either in Serbia or Kosovo. Throughout this time the Applicant had witnessed and lived through difficult times which included conflict and war hardship, and has left the Applicant with some level of trauma. The history of the family’s experiences was very well articulated by the Applicant’s mother both in her witness statement and her viva voce evidence to the Tribunal.
The family’s first residence in Australia was in Bernie in Tasmania. They remained there for approximately one year before they moved to Melbourne in the greater Dandenong area as a result of various friendships that they had within the Serbian community.
The Applicant’s father, it appears, was frequently violent to both his children and his wife. The Applicant and his mother gave consistent evidence concerning this fact. The Applicant’s mother and her husband separated in approximately February 2004. The eldest son left home in approximately 2006. Later the Applicant left home and led a somewhat itinerant lifestyle. In terms of accommodation, he engaged in the practice of what he described as “couch surfing”. The evidence of the Applicant and his mother was that this did have an effect on the Applicant to the extent that he stopped attending school in approximately 2005.
The Applicant’s first recorded offending occurred in 2005.
THE PRIMARY CONSIDERATIONS
Paragraph 13(2) of the Direction with respect to revocation requests prescribes the Primary considerations to be taken into account by the decision-maker. It states:
(2)In deciding whether to revoke the mandatory cancellation of a non-citizen’s visa, the following are primary considerations:
a)Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
PROTECTION OF THE AUSTRALIAN COMMUNITY
Paragraph 13.1(1) of the Direction requires the Tribunal, when considering the protection of the Australian community, to acknowledge the principle that the government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens.
Paragraph 13.1(2) further states:
(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 Applicant’s conduct
Paragraph 13.1.1 of the Direction relevantly provides that:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to factors including:
a)The principle that, without limiting the range of offences that may be considered serious, violent and/or sexual crimes are viewed very seriously;
b)The principle that crimes committed against vulnerable members of the community (such as minors, the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
c) The sentence imposed by the courts for a crime or crimes;
d)The frequency of the non-citizen’s offending and whether there is any trend of increasing seriousness;
e) The cumulative effect of repeated 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).
…
The Tribunal finds on all the evidence available to it that the Applicant’s offending is very serious in line with the factors contained in paragraph 13.1.1 of the Direction.
Details of the Applicant’s offending are contained in several documents that are before the Tribunal. Additionally, he also gave evidence concerning several of the offences that he committed. The National Police Certificate provides details of offences that have been committed by him, the sentences that were imposed and the particular courts concerned. His offending commenced in 2005, which it will be recalled was approximately two years after his arrival in Australia in February 2003. The first appearance was in the Children’s Court. His offending continued until his arrest in 2012 for various offences, which he was subsequently sentenced for in August 2014, including; blackmail, common-law assault, intentionally causing injury and theft.
The first offending, for which he was dealt with in the Children’s Court in August 2005, was for false imprisonment, assault with a weapon, assault in company and unlawful assault.
In September 2006 he appeared again in Children’s Court and was dealt with for, amongst other offences, several charges of theft, recklessly causing injury, failure to answer bail and intentionally causing injury.
There were further court appearances for sundry charges, again in 2006 and twice in 2008.
In June 2009 the Applicant appeared in the County Court in Melbourne and was convicted of, amongst other charges, breach of an intervention order, false imprisonment, possession of a prohibited weapon without approval, intentionally causing injury and recklessly causing serious injury. He received an aggregate of 12 months imprisonment, 11 months of the sentence was to be served concurrently with another sentence imposed. He was also fined.
On the same day in June 2009 the Applicant was convicted of the charges of aggravated burglary with an offensive weapon, aggravated burglary when a person was present and intentionally causing injury. He was sentenced to a total of 30 months imprisonment with several of the offences carrying concurrent prison terms. Unfortunately, the reasons of the sentencing judge in the County Court in 2009 were not available to the Tribunal.
In 2012 and 2013 the Applicant had further appearances in the Magistrates Court concerning driving whilst suspended, for which he was imprisoned. The material before the Tribunal, it should be observed, records that the Applicant has never held a driver’s license and has over the years been convicted of several driving offences including 13 charges of either driving whilst suspended or unlicensed driving. This conduct reveals a continuing and flagrant disregard for the law. It is a tendency that does not reflect well upon the Applicant.
The Applicant’s first offending for which he was dealt with in August 2005 when he was 15 or 16 years old at the Children’s Court, was for false imprisonment, assault with a weapon, assault in company and unlawful assault. The Applicant, when in the witness box, stated that he had a limited recollection of this matter. There is also reference to that offending in the report of Dr Mark Ryan a Forensic Psychiatrist from the Victorian Institute of Forensic Mental Health dated 4 July 2008, prepared pursuant to a request made by the presiding Magistrate at the Dandenong Magistrates Court. The Applicant recalled that the incident concerned occurred when he briefly worked at the Dandenong “Hungry Jacks” hamburger outlet. The Applicant and a fellow employee chased another female work colleague (who was apparently relatively young) to the point that she was so scared that she locked herself in the change room and the police were called. As was recorded in Dr Ryan’s report, the Applicant was present when the crime was committed but he denies being the perpetrator of the violence. He was a friend of the person who did. The Applicant did concede that he chased the female worker. In the witness box he expressed regret for the incident and stated that he wished he could turn his life back. He stated that there was no explanation for what he did and categorised it as “disgusting behaviour”. He stated that after that incident he lost his job with Hungry Jacks and to some extent his life went downhill after that.
The Hungry Jacks offending revealed a tendency on the part of the Applicant to either resort to or be present during acts of violence. It also demonstrated an unacceptable attitude to women, particularly young women. That a young woman, let alone any woman, is subjected to this behaviour, including acts of violence, is unacceptable. The Tribunal notes that the Applicant’s offending arising in the course of the Hungry Jacks incident was both violent within the meaning of paragraph 13.1.1(a) of the Direction, and also a crime committed against a vulnerable member of the community, being a young woman, within the meaning of paragraph 13.1.1(b) of the Direction.
The next incident for which the Applicant was dealt with by the Children’s Court was an incident where the Applicant was found to have intentionally caused injury when he was approximately 16 or 17 years of age by assaulting a victim with a hammer. This incident is also referred to in the report of Dr Ryan of 4 July 2008. Dr Ryan reported that the Applicant assaulted someone with a hammer because he had “looked at my girlfriend”. This incident was explored in cross-examination of the Applicant. He stated that the incident occurred at a skate park when the victim was looking at his girlfriend. He stated that the victim was “smirking, smiling and making comments”. The Applicant stated in the witness box that he then called several of his friends who arrived at the skate park by car. When one of those friends arrived he arranged for the friend to open the boot of the car and took a hammer from it. Armed with the hammer, he then struck the victim in the head. He stated he did not know if the victim had suffered any injuries. The Applicant further stated from the witness box that he was “probably drugged up at the time”. Additionally, he gave evidence that he was not completely certain what happened and that back then he didn’t think much about the consequences of his actions. When the details of his appearance at the Children’s Court in September 2006, as recorded in the National Police Certificate,[4] were put to him, he conceded that that was probably the court appearance relating to the skate park incident where he struck the victim with a hammer.
[4] Page 48 of the G documents.
Following his appearance in the Children’s Court in September 2006, the Applicant had three further appearances in 2006 and 2008 in the Children’s Court. Those offences involved dishonesty, theft, possession of and/or receiving stolen goods and breach of a good behaviour bond.
The Applicant was then convicted in June 2009 at the Melbourne County Court and sentenced to an aggregate of 12 months imprisonment. The sentencing judge’s reasons were not in evidence before the Tribunal. These convictions concerned offences he committed against his former girlfriend including false imprisonment and recklessly causing serious injury. There is reference to the charge of assault against his ex-girlfriend in the report of Dr Ryan. There was also a Victoria Police “LEAP” Summary Report concerning the incident itself in the evidence before the Tribunal.[5]
[5] The report is at page 481 of the Supplementary G documents.
From the evidence given by the Applicant and the documentary material before the Tribunal, it is possible to establish the factual matrix concerning this offending. At the time of this offending the Applicant was subject to an Intervention Order which presumably prevented him from contacting or approaching the victim in the way that such orders are normally framed.
The Applicant stated that the day before the incidents concerned, he had an argument with his former girlfriend. His evidence to the Tribunal was that “she was being smart over the phone and I told her not to, she kept on doing it”. The victim was going about her business in Frankston driving her car on 18 March 2008 and stopped at a traffic light. The incident occurred according to the police report at 6:40AM, and certainly on the Applicant’s evidence, as the victim was on her way to work. The Applicant was present at the same intersection. His evidence was that he was waiting at the traffic lights also. He said that he jumped into her car from an unlocked side passenger door. He stated that when he got into the car he slapped her. His evidence to the Tribunal was that it was “not a big slap. Just an assault to the face”.
The police report stated that the Applicant was holding a “large black Maglite” (which is a torch) and punched the front of the vehicle’s dashboard with his fist, instructing the victim to continue driving. The Applicant in his evidence stated he didn’t think he had the torch. The Tribunal does not accept this evidence on the part of the Applicant. The contemporaneous records taken by the Victoria Police are more inherently likely to be reliable rather than the Applicant’s memory which from time to time was not good. It should be recalled, much of the offending concerned occurred whilst the Applicant was under the influence of drugs or had been taking them comparatively recently. Therefore, the likelihood of his recollection being faulty is higher. The Applicant then refused to allow the victim to go to work and forced her to drive to various locations throughout the day including the Churchill National Park and other locations in the greater Dandenong area.
The Applicant readily conceded in the witness box that the victim was held against her will. He also gave evidence that the victim was crying and asking him to let her go. He stated that he then let her go not long after lunchtime. He further stated that he let her go after her friends from work called up and asked him if he could release her. The police report reveals that the Applicant and the victim were in the vehicle near the Dandenong Court when he then fell asleep. The victim then was able to use the phone to contact her family and advise them of her whereabouts. The police report also records that the Applicant awoke during the phone calls and after the victim pleaded with him they drove to the victim’s mother’s work address, whereupon she was ultimately released. The Applicant said he didn’t remember saying anything to the victim’s mother or her mother having any involvement. Once again, the Tribunal cannot accept the Applicant’s evidence on this issue.
This incident must have been horrifying for the victim. On whichever version of events are accepted, the Applicant’s acts were violent and certainly within the meaning of paragraph 13.1.1(a) of the Direction. They were violent acts against a young woman who was clearly vulnerable within the meaning of paragraph 13.1.1(b) of the Direction. The fact that an Intervention Order had been previously imposed against the Applicant to prevent him contacting the victim demonstrates that a Magistrates Court considered the victim to be in a vulnerable position vis-a-vis the Applicant.
The nature and seriousness of the Applicant’s offending on this occasion is also amplified by the fact that it was in blatant defiance of the terms of an Intervention Order. This defiance of the terms of the Intervention Order occurred after the Applicant had, by then, several encounters with courts and criminal justice processes. He must have known full well what he was doing. The disregard for orders of the court and such criminal justice processes does not reflect well upon the Applicant.
The sentence imposed on the Applicant for these offences was an aggregate of 12 months imprisonment. As required by paragraph 13.1.1 of the Direction, the Tribunal takes this sentence into account. The sentence reflects the gravity and seriousness with which the sentencing judge of the County Court viewed the Applicant’s offending.
Further offences were committed by the Applicant on or about 18 July 2008[6]. Police observed the Applicant driving on the Princes Highway in Dandenong on that day. They were aware that the Applicant had never held a license. The police executed a search warrant shortly thereafter at premises situated on the Princes Highway, Dandenong. The Applicant was found to be in possession of the drug “ice” and associated drug paraphernalia. A search was also conducted of the premises which resulted in police finding a large set of keys and a toolbox. The keys included car keys and security keys. Particularly coloured security keys. The coloured security keys had been stolen approximately two weeks previously from an RACV Battery delivery van parked outside premises in Blackburn South.
[6] G documents page 47. Supplementary G documents pages 494-500 and 503-506.
Further offending on the part of the Applicant that involved violence occurred on 2 August 2008 when the Applicant forced his way into the room of a person living at premises in Dandenong. Once again, he was in possession of the metal torch which he apparently used to strike a person present at those premises. He was convicted of aggravated burglary with an offensive weapon, aggravated burglary when a person was present, and two charges of intentionally causing injury to two separate individuals who were on the premises at the time.
The reasons for sentence in the County Court of Victoria for these offences are also not before the Tribunal. However, they are again crimes of violence and involved a serious violation of the victims’ rights. In the context of the Direction, particularly paragraph 13.1.1(c), the Court imposed a period of imprisonment of 30 months for the aggravated burglary with an offensive weapon charge and 30 months imprisonment for the aggravated burglary with the person present, 24 months of which was to be served concurrently with the earlier sentence. The sentence imposed for the two charges of intentionally causing injury were 12 months imprisonment on each count, to be served concurrently with the first term of imprisonment. The sentence obviously reflects the seriousness and gravity with which the sentencing judge of the county Court considered the Applicant’s offending.
The most recent offences committed by the Applicant which have resulted in him serving a lengthy jail term are described in some detail in the Reasons for Sentence of Judge Sexton of August 2014, which are in evidence before the Tribunal.
There were two indictments before the Court upon which Judge Sexton sentenced the Applicant. The first indictment concerned three charges upon which the Applicant was convicted after a jury trial. Those charges were one charge of common assault and two charges of blackmail.
Judge Sexton in her reasons stated that she was satisfied of the facts described in her reasons from the evidence adduced at the trial which she considered were consistent with the verdicts of the jury. There was one fact in particular, or series of facts, which the Applicant hotly contested that was referred to in the sentencing judge’s reasons. This was the question of whether or not the Applicant had produced a sawn-off shot gun, as observed by the judge in her reasons. This will be addressed later.
The relevant facts arising from the first indictment upon which the Applicant was convicted on three charges were as follows:
(a)In or about November 2011, one “MF” owed the Applicant $1500 for a drug debt;
(b)On 23 December 2011, the Applicant attended the house of one “DK” endeavouring to find MF. MF was hiding from the Applicant and DK informed the Applicant that MF was not present;
(c)The Applicant returned to DK’s house later that night and told him that the debt was “transferred” to him;
(d)On 25 December 2011, the Applicant informed DK that he could clear the debt by bringing MF to him and arrangements were made to meet later that night.
(e)DK brought MF to the prearranged meeting place but when he realised what was occurring ran away;
(f)As MF was running away the Applicant arrived with another individual and chased him;
(g)The trial Judge stated the Applicant produced a sawn-off shot gun which was seen by DK, whereas MF gave evidence that he saw a long object held by the Applicant or the other person present;
(h)The Applicant returned the gun or the long object, to his car and either the Applicant or his accomplice struck MF on the side of the head causing him to fall to the ground (Charge 1-common assault);
(i)MF was able to get up and escape and the Applicant, in company with DK, drove around the neighbourhood looking for him but he could not be found;
(j)The Applicant then informed DK that the debt was now clear, and told him what he had done to hurt many people previously;
(k)On 26 December 2011, the Applicant telephoned DK and informed him that the debt was revived and it increased in value to $6,000 (Charge 2-blackmail);
(l)Subsequently, the Applicant continued to contact DK attempting to obtain payment and informed him that the debt was increasing;
(m)The Applicant then attended at DK’s house and produced the shotgun, advising the debt was now $10,000 and demanding that he report his car stolen, make an insurance claim, and pay the $10,000 from the insurance proceeds (Charge 3‑blackmail);
(n)On 4 January 2012 the Applicant demanded that DK attend a Dandenong address where several men were present in the garage including one “MK”;
(o)DK was told to sit on a chair and was then punched by the Applicant;
(p)The Applicant and MK stood over DK whilst he remained in the chair repeating demands for $10,000;
(q)After the Applicant had punched DK, MK threatened DK with a wrench and then tapped him lightly on the head with it, the Applicant and MK then attempted to drag him from the garage through a back door;
(r)MK was sufficiently frightened by the behaviour of the Applicant and MK that he escaped by slipping out of his upper clothing and running out of the garage through the front roller door.
Judge Sexton found that there were several features of the offending which made it more serious. These included the fact that there were several threats made against the victim in his own home, the menacing behaviour with a gun (or if the Applicant’s version of events is to be believed, a piece of wood or iron bar), and the making of demands reinforced by menaces as occurred in the garage.
Judge Sexton concluded in her reasons that she was satisfied on the evidence contained in DK’s original statement that the Applicant did produce the shotgun on two occasions. She was also reinforced in this conclusion because references to the shotgun were contained in the original statement made by that individual which was connected to the charges on which the jury convicted the Applicant. The reasons also explained that the victims of the Applicant’s actions were very frightened by what happened. Her Honour observed that DK was sufficiently frightened by the Applicant’s threats to move out of his home to stay first at his then girlfriend’s house, and then another friend’s house, in order to avoid the Applicant. She cited with approval a passage from a decision of the Court of Appeal in R v Son Vo[7] concerning characteristics of the offence of blackmail.
[7] (Unreported, 14 May 1998). The passage stated "Blackmail is an offence that is frequently hard to detect, especially where, as in this case, the perpetrator preys, or attempts to prey, on the fear that his conduct inspires." That observation of the Court of Appeal is very apposite to the facts in this case.
In terms of the seriousness of the Applicant’s offending with respect to the offences contained in the first indictment, the maximum sentence fixed by Parliament should not be forgotten. Blackmail is an offence with a maximum sentence of 15 years imprisonment. Common assault has a maximum sentence of five years imprisonment.
The Applicant pleaded guilty to 3 charges on the second indictment before Judge Sexton which were for one count of theft, intentionally causing injury and blackmail[8].
[8] The account of the facts in the following paragraphs are derived from the Reasons for Sentence of Judge Sexton. They are also derived from the Summary of Prosecution Opening for Plea dated 25 July 2014 filed by the prosecution at Pages 437-442 of the Supplementary G documents, as admitted in the response prepared by the Applicant's counsel at Pages 443-447 of the Supplementary G documents. Under the relevant Criminal Procedure Rules in the State of Victoria where there is a guilty plea the prosecution prepares a summary which the Defendant responds to. If the Defendant disputes some aspect of the prosecution summary it is dealt with by the trial judge plea hearing prior to reasons for sentence being given.
In early March 2012 the victim owed some money to two men who were associates of the Applicant. The victim obtained a laptop computer with a view to selling it to the Applicant. Upon completion of such sale to the Applicant, the victim intended to use the funds derived to satisfy his debt to these two individuals. The laptop did not work. When the Applicant found out the laptop did not work he demanded that the victim attend his residence.
The victim complied with the demand in company with two others. Upon doing so, the Applicant stated “You get bashed a lot don’t you”. He further stated “Do you know anyone with guns?” The Applicant then searched the victim’s car taking various belongings. The two associates to whom the victim owed money then arrived at the Applicant’s home. The Applicant took the victim’s car for a drive before returning and removing a baseball bat. The Applicant returned to the lounge room and struck the victim on the head with the baseball bat hitting him in the face; breaking some of his teeth and making him bleed from the mouth. The victim then fell to the floor near the couch and the Applicant started to punch him in the face shouting at him because he was bleeding on the couch. The victim recalled three punches to the left side of the head and two slaps to the face.
The Applicant then provided the victim with a cloth to wipe his face and then wiped his couch. He stated “How about I break your legs so you can’t walk out of here”. This threat was made whilst he was holding a baseball bat against his thigh. The victim apparently pleaded for the Applicant not to. The Applicant then flicked and punched the victim again on the back of the head.
The Applicant then demanded $5000 from the victim and his vehicle for himself and a further $2000 for one of his two associates. The Applicant threatened the victim and told him not to report the matter to the police. The victim stated that he would not and that he would borrow money from his family the following morning. The Applicant said words to the effect that he had until only midnight to produce the money.
The victim received lacerations to the inside of his mouth, split lip, bruising to his face and crown root fractures to 2 teeth. There was other damage caused to one of his other teeth and he required root canal treatment with crowns on two of those teeth.
The Applicant was arrested the following day by the Special Operations Group[9] and has been in custody ever since.
[9] This was recorded in the Victoria Police Incident Summary report at page 475 of the Supplementary G documents. The Applicant also conceded this fact in the course of his evidence in the witness box.
Blackmail, as noted earlier in these reasons, carries a maximum sentence of 15 years imprisonment; and intentionally causing injury has a maximum sentence of 10 years imprisonment[10]. Once again these maximum sentence provisions reflect the gravity with which Parliament views such offending.
[10] Paragraph 8 of the Reasons for Sentence of Judge Sexton at page 53 of the G documents.
Judge Sexton, in her reasons, stated that the offences of causing injury and blackmail were made more serious by the Applicant’s use of the baseball bat as a weapon to cause injuries. She further described it as an act which was also part of the menacing behaviour that he engaged in to frighten the victim into complying with his demands for money.
The Judge stated that she was satisfied the injuries sustained by the victim were “at the higher end of the scale”. She also found that the victim had suffered considerably. Further, she noted that the victim feared for his life when he was in the Applicant’s home.
For these offences collectively the Applicant was sentenced to a total of 5 years and 10 months imprisonment with a minimum non-parole period of three years.
There are some other comments made by Judge Sexton in her reasons that should be noted. Firstly, she stated that the Applicant, for a young man, has a very bad criminal record. She also considered the question of whether the Applicant was intellectually impaired. She considered that if he was intellectually impaired, she was not persuaded that it reduced the moral culpability of his offending conduct.
The importance of general deterrence in cases of blackmail were emphasised by the judge. She emphasised the need for protection of the community, which gave rise to the need for specific deterrence.
On the question of the likelihood of the Applicant reoffending, the Judge concluded there was “a high risk” of that occurring, but it would be lessened if he remained free of drugs and received treatment for drug addiction and personality disorders.
In the context of the relevant paragraphs of the Direction, with respect to the matters for which the Applicant was sentenced in 2014, several things are applicable. In each instance of offending recounted there was not only violence but a pattern of threats, and in the case of the first indictment, threats over some days that culminated in the events that took place in the garage. The thoroughly unacceptable behaviour of transferring the debt to a third party in the threatening manner that it was warrants attention. Also, there was the production of a weapon, whatever it may have been. Of further note was the intimidating, or as the Judge described it the “menacing” behaviour that the Applicant engaged in.
The resort to the baseball bat in the circumstances was exceptionally violent. Another feature of the Applicant’s offending surrounding the incident with the baseball bat is that there was the element of him assisting two friends (or associates) in the way that he did. He should not have been involved. Yet he readily intervened. It does not reflect well upon him.
The Tribunal observes that the frequency of the Applicant’s offending, which is a relevant consideration by reason of paragraph 13.1.1(d) of the Direction, is of concern. There has been a trend of increasing seriousness which is apparent from the account of the Applicant’s offending over the years which has been given in these reasons. One might have thought, after his 2009 appearance in the County Court and subsequent imprisonment, that he might have learned his lesson. Unfortunately, he did not. The victim of the incident with the baseball bat suffered terrible injuries as the result of an act of wanton violence and a blatant attempt to stand over an individual to extract a financial gain. It was mindless thuggery and is completely unacceptable.
The Respondent, in support of its contentions concerning the nature and seriousness of the Applicant’s conduct and offending, has also relied upon the Applicant’s conduct in prison and immigration detention. The Respondent contends that the conduct of the Applicant in prison and immigration detention is such that it shows a tendency to disregard the law and is further evidence that the Applicant represents too great a risk of harm to justify his visa being reinstated.
To the Applicant’s credit, he did admit most of the matters that were alleged and referred to in the prison records that were in evidence before the Tribunal.
The Applicant admitted to returning at least two positive urine samples whilst in prison. Those positive samples were for drugs. He readily conceded that he had been taking drugs when he was in prison. He admitted that for returning positive urine samples for drugs that he was convicted at a Governor’s hearing in the prison.
He also agreed that in August 2015 he had punched a prisoner in the face, knocking him to the ground and causing him some injury. Apparently, this incident was as a result of a long-standing feud or disagreement between that prisoner and the Applicant. He stated that he immediately admitted to prison authorities what he did to the other prisoner and said it was a mistake.
Another matter that arose from his time in prison occurred in July 2017 when he informed a prison officer who he did not like because she said she could have him transferred to another prison, that he had been a “patched” member of a motorcycle club but no longer was. He further stated to the prison officer that he still associated with people who were patched members of a motorcycle club. He declined to identify the motorcycle club that he was allegedly a member of. In the witness box he stated that this statement to the prison officer was false. When asked why he made the statement, he said he wanted to get back at her and he described her as a “smartarse”. This deliberate attempt to mislead and deceive the prison officer did not reflect well on the Applicant. This incident is another example of the way he tends to treat obedience to the law and react to authority. His credibility certainly is affected by this fact.
There were several other incidents put to the Applicant in the course of his evidence which were confirmed by the notes and records of the relevant prisons concerned[11] and that the Tribunal will not detail in these reasons. Once again, unfortunately, they do not reflect particularly well upon him.
[11] Detailed prison records being Local Plan File Notes and Corrections Victoria Sentence Management reports contained at pages 319-431 of the Supplementary G documents.
The Applicant’s evidence was that he finally stopped using drugs at approximately the end of 2017 and has remained drug-free since. He stated that he has been drug-free whilst he has been in immigration detention. The Tribunal acknowledges this and it is consistent with the observations made by Mr Watson-Munro in his two reports.
The attitude and behaviour of the Applicant after he was imprisoned for the offences for which he was sentenced in 2014 by Judge Sexton is difficult to comprehend. He was given a lengthy sentence, and ordinarily, one would have expected that he might have reflected carefully on the predicament that he had got himself into. Upon so reflecting about his predicament, it should have been expected that he might have made serious attempts to be a model prisoner so as to ensure his release from custody at the earliest possible opportunity. It should be recalled that he was taken into custody in late March 2012. On his own admission, for the next five years he continued using drugs in prison. It should also be recalled that he was given a three-year non-parole period. Whilst it was not canvassed in the evidence, he was not released at the earliest opportunity. He did not seem committed until relatively recently to coming to terms with the fact that he was in custody for serious offending and endeavouring to reform or rehabilitate himself. Considering all of the evidence on this topic concerning his conduct whilst in prison, the Tribunal finds that it can have little confidence in the evidence given by the Applicant that he has learned the lesson of his ways and that his risk of reoffending is comparatively low.
The Applicant relies upon the reports of Mr Watson-Munro[12] for several purposes. Mr Watson-Munro, in those reports, arrives at the following conclusions:
(a)that the Applicant has a low IQ;
(b)that he has been primarily addicted to crystal methylamphetamine which has impacted upon his judgement and impulse control. This addiction must be viewed in the setting of his compromised intellect;
(c)the effect of his drug taking on cognitive functioning must be taken into account; and
(d)it is arguable that if he ceases drug use such deficits in his judgement and associated behaviour will be remedied.
[12] The reports of Mr. Watson-Munro are dated 25 April 2018 and 21 January 2019.
Mr Watson-Munro, in his evidence, corrected the contents of his report of 25 April 2018. He revealed such report was in error when it stated that the Applicant had previously been assessed with a Full Scale IQ of 62, which places him in the intellectually disabled range[13]. He corrected that report and stated that the correct figure for the Applicant’s IQ was 72. Mr Watson-Munro did not test the Applicant for his IQ. The figure that he ascribed to the Applicant’s IQ was derived from a report of 22 April 2008 prepared by Forensic Psychologist David Ball for the Applicant’s previous solicitors in anticipation of the appearance at the County Court in relation to the various charges for which he was subsequently sentenced.[14]
[13] The references to the Applicant being assessed with a Full Scale IQ of 62 are to be found in the second page of the 25 April 2018 report of Mr Watson-Munro (page 167 of the G documents) and the eighth page (page 173 of the G documents). On page 8 of the 25 April 2018 report Mr Watson Munro stated that because the Applicant had been assessed with a Full Scale Intelligence Quotient of 62: "This places him firmly in the intellectually disabled range." When in the witness box as noted above Mr Watson-Munro's evidence shifted considerably from this conclusion.
[14] Mr Ball’s report is at page 182 of the G documents.
When probed about this, both in evidence in chief and cross-examination, Mr Watson‑Munro’s evidence was that on a day-to-day level with an IQ of 72, the Applicant is on the “cusp of intellectual disability” or placed in the “borderline range”. He sought to contend that, making allowance for an actuarial analysis and statistical adjustment, the Applicant could be in the intellectually disabled range. Mr Watson-Munro largely agreed with the conclusions of Mr Ball that the variation between the Applicant’s verbal and non‑verbal IQ (described in Mr Ball’s report as “Performance IQ”) was probably related to his limited education and the fact that English is not his first language[15].
[15] This observation is made by Mr Ball at page 3 of his report (page 185 of the G documents).
It should be noted that Mr Ball’s report found that the Applicant had a Performance IQ (non-verbal) of 80. Mr Watson-Munro was probed on this in cross examination and conceded that performance IQ can be a better indicator of a person’s IQ where there are as he put it “language discrepancies”. He stated that the Applicant’s limited English would have impacted upon his full IQ result. Further, he conceded that with some remedial education, his language skills may improve. Another factor that Mr Watson-Munro identified during cross-examination that could impact an IQ test is whether at the time there had been a pattern of alcohol and substance abuse. If so, it was likely to lead to a consistently poor performance in IQ testing.
The observation of the Applicant’s lack of developed English language skills and its effect on his IQ was also made in the report of the Forensic Psychologist Ian Mackinnon (“Mr Mackinnon”) dated 20 February 2009[16]. He stated that he was not convinced that the IQ assessment of 72 accurately reflected the Applicant’s intellectual functioning. He contended that formal IQ tests such as the Wechsler Adult Intelligence Scale[17], which is designed for native speakers of English, has no validity in the context of the Applicant. He concluded that the Applicant possesses an average functional intelligence and with the benefit of professional assistance (in the form of remedial education and English literacy) and stabilisation of his living circumstances, his formal IQ scores are likely to rise significantly.
[16] Page 109 of the G documents.
[17] This was the IQ test administered by Mr Ball to the Applicant and referred to in his report of 22 April 2008.
Mr Mackinnon further opined that he was not convinced that the Applicant has a significant intellectual disability. He did agree with Mr Ball’s conclusions that Applicant’s lack of developed English language skills and low level of formal education significantly hamper his day-to-day living skills and his ability to formulate and pursue positive educational, recreational and social goals.
There is another matter of concern to the Tribunal arising from Mr Mackinnon’s report. He makes the observation that because of the Applicant’s personal history it is suggestive that he still has a greater than average propensity for relapsing into substance abuse and/or dependence. This is particularly so whilst his various issues remain unaddressed and unresolved.
The Respondent placed significant emphasis on this argument in light of the fact that the report of the Forensic Psychiatrist Dr Mark Ryan, from the Victorian Institute of Forensic Mental Health dated 4 July 2008, did not conclude that the Applicant suffered from an intellectual disability. It is a point that is fairly made. Dr Ryan also concluded that the Applicant did not present as someone with evidence of a major mental illness in so far as he was not currently experiencing any significant mood problems or psychotic experiences such as persistent hallucinations or delusional thinking. Dr Ryan emphasised the Applicant’s anger management problems. These anger management problems were consistently conceded by the Applicant in his evidence and also acknowledged by Mr Watson-Munro.
Had it been apparent to an experienced Forensic Psychiatrist such as Dr Ryan, one would have expected such an intellectual disability to have been commented on in his report for the court. Indeed, Judge Sexton in her Reasons for Sentence (at paragraph 36) made the observation that Dr Ryan made no mention of an intellectual impairment in his report.
Another variance between the two reports of Mr Watson-Munro and Dr Ryan’s report concerns Mr Watson-Munro’s references to the Applicant suffering from features of PTSD. As noted above, Dr Ryan did not diagnose the Applicant as suffering from such a disorder. Once again, given that Dr Ryan’s report had been commissioned by a court, one would have expected reference to such a disorder in any report were it apparent to a highly qualified and experienced Forensic Psychiatrist such as Dr Ryan.
The Tribunal should observe that the Applicant was in the witness box for some time and did not exhibit any hallmarks of an intellectual disability. He was able to answer the questions that were put to him comparatively easily. He demonstrated powers of comprehension, thinking and expression that enabled him to give his evidence in a logical and proper way. He seemed perfectly capable of interacting with others on a day-to-day basis and also acutely alive to protecting his own interests.
Overall, it is very difficult for the Tribunal to reach an opinion on the limited evidence available before it concerning this matter. The material does enable a conclusion that the Applicant has a comparatively low IQ and therefore the Tribunal accepts that the Applicant suffers some level of intellectual impairment. However, in making this finding, the Tribunal notes the evidence of Mr Watson-Munro that the Applicant may well be in the borderline range or on the cusp of such a disability.
The Applicant contends that if he addresses his drug addiction a likelihood of reoffending or the risk of reoffending is correspondingly low.
In further support of these contentions, the Applicant highlights that:
(a)he has completed several drug and alcohol courses of varying types, of which there was evidence before the Tribunal;
(b)he has completed 67 sessions of the Disability and Support Pathways Violence Intervention Program; and
(c)has become drug-free.
There was emphasis on what is said to be his drug-free status since entering immigration detention.
Mr Watson-Munro considered that the Applicant must undergo continuing treatment, supervision and support. He must remain abstinent from drugs and cease association with his former associates.
The Applicant gave evidence to the Tribunal of his intentions to adhere to this recommended program of treatment, and perhaps one might describe it as lifestyle choices, to prevent a relapse into drug taking. These expressions of intention were also supported by evidence from his mother and current partner. The Tribunal acknowledges this evidence given by those witnesses and has no doubt that it was given in the genuine belief that he will change his ways.
However, the Tribunal notes the extensive professional evidence that was prepared for the Applicant’s appearance in the County Court in June 2009 and is now before the Tribunal. In the reports of Mr Mackinnon prepared in February 2009, and Dr Ryan in July 2008, the Applicant stated that he had withdrawn from methylamphetamine or drugs as the case may be. He subsequently relapsed. Also, it was observed by Judge Sexton that once the Applicant was released on parole, after the June 2009 sentences imposed by the County Court had been served, he worked for some time as a painter, did not reoffend, did not take drugs, and completed required drug and alcohol counselling. Unfortunately, he relapsed. He gave an account of relapsing as a result of showing up to work as a painter one day and in effect not wanting to do it. It did not take much pressure for him to not only relapse into drug taking, but into the unfortunate world that he mixed in, including peers who had a tendency to lead him into misadventure.
Overall, when the Tribunal considers the history of the Applicant it finds that, as required by paragraph 13 of the Direction, the nature and seriousness of his offending involving, amongst other things, violence, the cumulative effect of his offending including his disregard of court orders and repeat offending, weigh heavily against the revocation of the decision to cancel his visa.
Risk to the Australian community should the Applicant reoffend
Paragraph 13.1.2 of the Direction provides that:
(1)In considering whether the non-citizen represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, decision-makers should have regard to the principle 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.
(2)In considering the risk to the Australian community, decision-makers must have regard to, cumulatively:
a)The nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)The likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant has contended both in his submissions and evidence to the Tribunal that the likelihood of him reoffending is significantly lower than when he was sentenced by the County Court in August 2014. As noted earlier, he relies upon the opinions of Mr Watson‑Munro coupled with the support that he has from his mother and his current partner. Additionally, there was a statement from the Applicant’s previous employer who is prepared to employ the Applicant again as a painter in the event that he is released into the community. The Tribunal has considered all of this material and has no doubt that it has been put genuinely.
The Tribunal also acknowledges the position adopted by Mr Watson-Munro, that the 67 sessions of violence awareness program attended by the Applicant is a big step forward and probably provides him with skills that he has not had in the past. It was canvassed by Mr Watson-Munro in his evidence, and evidence was given to this effect by the Applicant, that recently in detention he was subject to a random attack by another inmate and he did not react. Previously, had he been confronted with that situation he would have reacted, or perhaps more accurately retaliated, in a violent fashion. This was advanced as further evidence of how he has genuinely changed. Whilst this may be so, this approach to violence is only of more recent origin. It should be noted that the Applicant did randomly attack a prisoner in the latter part of his gaol term. Apparently, this attack was to settle some long-running score.
Mr Watson-Munro candidly acknowledged in cross-examination that whilst the Applicant is abstinent, he believes that it would require the Applicant to remain drug-free for a period of approximately four to five years before he could be described as being in full remission. This evidence is of course consistent with the conclusions expressed by Mr Watson‑Munro at page 7 of his 21 January 2019 report on this question. In the paragraph numbered 3 on that page, he described the Applicant as being in “Partial Remission in relation to his drug use”. He also properly contended that the Applicant is in an artificial environment at the moment. It would therefore require the Applicant, upon release, to focus on relapse strategies such as attending Narcotics Anonymous and seeking assistance from appropriately qualified professionals.
The Tribunal is concerned that Judge Sexton in her conclusions described the likelihood of the Applicant reoffending as high. His previous track record, particularly after the 2009 sentences, does not give the Tribunal much confidence. He will be, if released to the community, on his evidence, returning to live with his mother. She lives in the greater Dandenong area where many of the associates with whom the Applicant previously mixed were a bad influence on him. What is to occur if he does not enjoy working as a painter again? As was contended for by the Respondent, although he adhered to parole conditions, once that time expired and he was working, it did not take him very long to simply stop and then relapse into a life of drugs and crime.
Were the Applicant to relapse, the indicators are that more likely than not the consequences would be a resort to some level of violent behaviour. This risk of future harm to the Australian community, were he to reoffend is unacceptable. Even if the Applicant offers a low probability of reoffending as he contends (which the Tribunal does not accept), the risk if he were to reoffend is that great harm would result. Such a risk of future harm from the Applicant is unacceptable. Therefore, this consideration weighs heavily in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa.
THE BEST INTERESTS OF MINOR CHILDREN IN AUSTRALIA AFFECTED BY THE DECISION
Paragraph 13.2(1) of the Direction requires decision-makers to make a determination about whether revocation is, or is not, in the best interests of any minor children.
The Applicant did not identify any minor children in Australia who would be affected by a decision not to revoke the mandatory cancellation of his visa. No submissions were made either in the Statement of Facts, Issues and Contentions filed on his behalf or in submissions from his counsel, concerning this primary consideration[18].
[18] It should also be recorded that there was no reference to any minor children affected by the decision in the Request for Revocation of a Mandatory Visa Cancellation Under s501 (3A) and the attached Personal Circumstances Form which were contained in the G documents at Pages 90-110.Similarly, there was no reference to this primary consideration in the extensive submission prepared by his then lawyers dated 4 May 2018 that was submitted to the Respondent. This submission is found that page 111 of the G documents.
As was observed by the Respondent in its submission, there was a statement contained in the material forwarded to it on behalf of the Applicant with the request to revoke the mandatory cancellation from a friend of his. This statement attested to the help and support that the Applicant had provided her and her children over some time.[19]
[19] The Statement is at page 156 of the G documents.
There is little evidence in the statement about the assistance that has been provided by the Applicant to the maker of the statement and her children. The statement does not identify the frequency of the contact or what he actually did for them. It makes it virtually impossible for the Tribunal to reach any concluded view on the content of this statement and enable it to adjudicate on this primary consideration. Additionally, as the relationship between the Applicant and these children is non-parental, less weight should generally be given to such a relationship.[20]
[20] Paragraph 13.2(4)(a) of the Direction.
For these reasons the Tribunal places no weight on this consideration.
EXPECTATIONS OF THE AUSTRALIAN COMMUNITY
Paragraph 13.3 of the Direction relevantly provides:
(1)The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has breached, or where there is an unacceptable risk that they will breach this trust or where the non-citizen has been convicted of offences in Australia or elsewhere, it may be appropriate to not revoke the mandatory visa cancellation of such a person. Non-revocation may be appropriate simply because the nature of the character concerns or offences are such that the Australian community would expect that the person should not hold a visa. Decision-makers should have due regard to the Government’s views in this respect.
In applying this paragraph, the Tribunal has to construe the language used. The expectation contained in the first sentence of this paragraph, requiring obedience to Australian laws, is not an unrealistic expectation; nor is it difficult to understand. Where the debate sometimes arises is in the subsequent sentences, where the Tribunal has to consider what the expectations of the Australian community might be in the particular circumstances of the case before it[21].
[21] The Applicant contended that the decision of Re Ayache v Minister for Immigration and Border Protection [2018] AATA 310, [66]-[70], shows that in the context of revocation under s 501CA of the Act the effect of this consideration will depend on the particular circumstances of the case. The Tribunal agrees with this contention.
The Applicant in his submission refers to several authorities concerning this question.[22] The contention is then developed that when the circumstances of this case are assessed, the consideration weighs heavily in favour of revocation of the mandatory cancellation of his visa. The grounds relied upon by the Applicant in support of such contention are:
(a)the very existence of the s 501CA(4) discretion is a reflection of an expectation that some people in the light of their individual circumstances should be permitted to remain;
(b)the Applicant’s individual circumstances include a diagnosed intellectual disability;
(c)the intellectual disability, and the cognitive limitations that it entails, will mean that the Applicant has no knowledge of a means to find employment, medical assistance or support for his disability should he be returned to another country;
(d)by way of contrast, he is able to receive the support that he needs for his intellectual disability from service providers, his family and partner in Australia;
(e)the community would expect that the punitive consequences for the Applicant’s past criminal actions have been discharged fully by the sentence imposed upon him by the courts and the time served; by refusing to revoke the visa cancellation he is suffering further punishment and it is a measure that is unnecessarily punitive.
[22] They were the Federal Court decision of Minister for Immigration and Border Protection v Stretton [2016] FCAFC 11 at [70], Re Ayache v Minister for Immigration and Border Protection [2018] AATA 310 at [66]-[70] and Re NDFN v Minister for Immigration and Border Protection [2017] AATA 892, [70].
On the other hand, the Respondent refers to several factors that would lead to the Australian community expecting the Applicant’s visa to remain cancelled: the extensive criminal history of the Applicant, the offences for violence and blackmail, his relapse into a life of drug use and offending after release from prison in 2011, the consumption of illicit substances whilst in prison, and the various observations of Judge Sexton including the Applicant’s high risk of reoffending.
In Re Do and Minister for Immigration and Border Protection[23], Deputy President McCabe provided some guidance:
A decision-maker is, to some extent, required to guess at the community’s expectations … As I begin my deliberations, I assume the Australian community would be fair-minded and mature … The community would certainly not be vengeful. The applicant has already been punished for his offence, and the community would not want to see visa cancellation misused to inflict further punishment. I would also expect the community to be conscious of the length of time the applicant has lived in Australia and other circumstances which might assist the community to form a proper judgment about the individual and what should be done.
[23] [2016] AATA 390 at [23].
In Re Waits v Minister for Immigration and Multicultural and Indigenous Affairs[24] Deputy President Block also helpfully observed:
…the expectations of the Australian community should be taken to be the expectations of the informed, reasonable member of the Australian community, rather than a member of the Australian community who is only prepared to consider the punitive aspects of the power under s 501.
[24] [2003] AATA 1336 at [36].
The Applicant relied upon the decision of Mortimer J in the Federal Court decision of YNQY v Minister for Immigration and Border Protection[25], where she observed that, in substance, this consideration is adverse to any person who has failed the character test and has been convicted of serious crimes. Her Honour further noted that this paragraph of the Direction was, in effect, a deeming provision about how the executive government wishes to articulate community expectations, whether or not there is any objective basis for such belief. Her Honour concluded that it was inevitable that such a consideration will weigh against an Applicant and indeed that was the intention of that paragraph.
[25] [2017] FCA 1466 at [75]-[77]. The approach of Mortimer J in YNQY was also helpfully considered by Deputy President Forgie in Re Ayache and Minister for Immigration and Border Protection [2018] AATA 310 at [60]-[75].
The Applicant has conceded that he has committed crimes of a serious nature. The Tribunal accepts that the discretion conferred by s 501CA(4) does permit the Tribunal or decision-maker, after having assessed an Applicant’s individual circumstances, to revoke the mandatory cancellation of a visa.
In finding that the Applicant has some level of intellectual impairment, as qualified by Mr Watson-Munro’s evidence that such level is on the cusp or in the borderline range of such a disability, the Tribunal cannot accept that the Applicant suffers from his disability to the extent that the Australian community expects that this consideration would weigh heavily in favour of revocation of the visa cancellation.
The Tribunal also refers to and repeats the observations made by Judge Sexton in her Reasons for Sentence in 2014. The Applicant knows very well the effect that drugs have on him. She considered whether the Applicant’s intellectual impairment reduced the moral culpability of his offending conduct. She concluded that it did not. She also concluded that she was not satisfied that his intellectual impairment as a sentencing consideration moderated or reduced the requirements for general or specific deterrence.
Consequently, the Tribunal is not satisfied that the Applicant does not have knowledge of the means to find employment, medical assistance or support should he be returned to another country. It is asserted by the Applicant that there are cognitive limitations with which he has to contend by reason of the intellectual disability. The various specialist reports do not identify cognitive limitations as asserted. Unquestionably, there will be challenges that the Applicant will face if he is returned to Croatia or for that matter Serbia. They cannot be underestimated. However, the Tribunal does not believe they are insurmountable or will place him in a position where he will struggle to survive, as is contended. The evidence is that he has shown a capacity to survive in some level of adversity from the time he left his mother’s home.
It is accepted that the Applicant will be able to obtain support for his condition, however it may be described. The fact that such service providers are available in Australia together with the support of his family and partner does not mean that he cannot obtain support were he no longer in Australia. As was contended for by the Respondent, Croatia is now a member of the European Union. This cannot be without its benefits.
The Tribunal does not accept the Applicant’s contention that the consequences of non‑revocation of the mandatory cancellation would be punitive. It is acknowledged that he has served all the sentences imposed upon him. The proposition as put by the Applicant presupposes that non-revocation amounts to further punishment. It should not be lost sight of that Parliament has passed s501CA. It is within its power to do so. A decision-maker is also obliged to, under paragraph 13.3(1) of the Direction, have due regard to the Government’s views.
The community would have consideration of the number of criminal offences that the Applicant has committed. It was, as Judge Sexton observed, a very bad criminal record. There were several acts of violence, some of them in the extreme. There were also the acts of blackmail which were disturbing.
Judge Sexton, as noted earlier, concluded in her Reasons for Sentence that it was clear from all the reports before her that the Applicant knew very well the effect of drugs, particularly methylamphetamines, had on him[26]. In the face of this awareness he took no steps to seek help or stop taking them. This is of considerable concern.
[26] Page 61 of the G documents.
Judge Sexton assessed the Applicant’s likelihood of reoffending as being a high risk. However, it is a risk that is lessened if he remains free of drug abuse and receives treatment for drug addiction and personality disorders. She further observed that if there were to be a chance of rehabilitation, it would require intensive structure around him were he to return to the community, to address his antisocial personality disorder and drug addiction. She stated it would require commitment from him which may be difficult for him to keep up.[27]
[27] Page 62 of the G documents.
The Applicant was given considerable assistance and opportunity to change his pattern of behaviour. There have been several professional reports from a Forensic Psychiatrist and psychologists that identified what needed to be done and how it could be achieved, to overcome drug addiction and his anger management programs. Yet he did not do so.
The Applicant cannot say he was not given a chance or did not have access to services that could have enabled him to avoid further offending. After he was released on parole from the 2009 convictions, he eventually relapsed into a life of drug use and crime. He mixed with thoroughly undesirable people and committed violent and serious crimes.
There are limits to how far the Australian community would be prepared to tolerate such behaviour. Those limits have been reached, such that the Tribunal finds that a fair‑minded, informed, mature and reasonable member of the Australian community would expect a non-citizen with the criminal record of the type that the Applicant has poses an unacceptable risk of future harm; and therefore it is appropriate not to revoke the mandatory visa cancellation. This consideration weighs heavily against the Applicant.
INTERNATIONAL NON-REFOULEMENT OBLIGATIONS
Paragraph 14.1 of the Direction provides as follows in relation to Australia’s non‑refoulement obligations:
(1) 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 reflects Australia’s interpretation of those obligations and, where relevant, decision-makers should follow the tests enunciated in the Act.
(2) The existence of a non-refoulement obligation does not preclude non-revocation of the mandatory cancellation of a non-citizen’s visa. This is because Australia will not remove a non-citizen, as a consequence of the cancellation of their visa, to the country in respect of which the non-refoulement obligation exists.
(3) Claims which may give rise to international non-refoulement obligations can be raised by the non-citizen in a request to revoke under s501CA the mandatory cancellation of their visa, or can be clear from the facts of the case (such as where the non-citizen held a protection visa that was mandatorily cancelled).
(4) Where a non-citizen makes claims which may give rise to international non-refoulement obligations and that non-citizen would be able to make a valid application for another visa if the mandatory cancellation is not revoked, it is unnecessary to determine whether non-refoulement obligations are owed to the non-citizen for the purposes of determining whether the cancellation of their visa should be revoked.
(5) If, however, the visa that was cancelled was a Protection visa, the person will be prevented from making an application for another visa, other than a Bridging R (Class WR) visa (section 501E of the Act and regulation 2.12A of the Regulations refers). The person will also be prevented by section 48A of the Act from making a further application for a Protection visa while they are in the migration zone (unless the Minister determines that section 48A does not apply to them - sections 48A and 48B of the Act refer).
(6) In these circumstances, decision-makers should seek an assessment of Australia’s international treaty obligations. Any non-refoulement obligation should be weighed carefully against the seriousness of the non-citizen’s criminal offending or other serious conduct in deciding whether or not the non-citizen should have their visa reinstated. Given that Australia will not return a person to their country of origin if to do so would be inconsistent with its international non-refoulement obligations, the operation of sections 189 and 196 of the Act means that, if the person’s Protection visa remains cancelled, they would face the prospect of indefinite immigration detention.
In addressing this consideration, the task of the Tribunal is to consider whether there is another reason to revoke the mandatory cancellation of the Applicant’s visa under section 501CA(4). Paragraph 14.1 of the Direction requires the Tribunal to assess whether the Applicant will be at risk of a specific type of harm, such that it would trigger Australia’s international non-refoulement obligations.
The Applicant did not make any submissions either in his Statement of Facts, Issues and Contentions filed with this application, or in the Request to Revoke Visa Cancellation Under S501CA (4) of the Act.
There was a bundle of articles tendered in evidence by the Applicant concerning various human rights issues in Croatia[28]. The Tribunal was not referred to any specific sections of those articles. The Tribunal has read those articles. Of relevance is reference to harassment and discrimination of the small Serbian community remaining in Croatia. This is acknowledged. It is possible that the Applicant, should he return to Croatia, would face some possible discrimination and harassment. However, this is contrary to the Croatian Constitution. It is also contrary to the applicable laws of the European Union as introduced into Croatian domestic law. The Croatian Constitution does provide for specific respect for civil liberties. This material does not demonstrate that the Applicant is under threat of a specific type of harm within the meaning of this consideration.
[28] Exhibit A5.
There is no evidence before the Tribunal that establishes therefore, that the Applicant would be at risk of a specific type of harm that would trigger any international non-refoulement obligation of a type identified or contemplated by this paragraph of the Direction.
Accordingly, no weight can be attached to this consideration.
STRENGTH, NATURE AND DURATION OF TIES TO AUSTRALIA
The Direction at paragraph 14.2 addresses the matters to be taken into account for this consideration:
(1)The strength, nature and duration of ties to Australia. Reflecting the principles at 6.3, decision makers must have regard to:
a)How long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i.less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii.more weight should be given to time the non-citizen has spent contributing positively to the Australian community.
b)The strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia, including the effect of non-revocation on the non-citizen’s immediate family in Australia (where those family members are Australian citizens, permanent residents, or people who have a right to remain in Australia indefinitely).
The Applicant arrived in Australia in 2003 at the age of 13 years.
The Applicant relies upon the effect that refusal of the revocation would have upon his mother and his partner. They have both made witness statements and given evidence from the witness box about the effect that a decision not to revoke the cancellation of the Applicant’s visa would have on them.
His mother gave strong evidence that she would be completely crushed if the Applicant left Australia.
The Applicant’s partner stated that she would be devastated if the Applicant were required to leave Australia. She also gave evidence that she would be unable to continue the relationship that she has with him.
There was considerable evidence given by both the Applicant and his mother about their unfortunate family history. This included their flight from Croatia due to the wartime conditions that evolved out of the breakup of what was then known as Yugoslavia. The family then had several moves to Serbia, Kosovo and the return to Serbia. The living conditions were challenging in each instance.
The circumstances leading to their arrival in Australia and the challenges that posed to the family unit were recounted by both the Applicant and his mother. There was the evidence of frequent acts of violence from the Applicant’s father towards his mother and his brother.
The family unit became fractured after the Applicant’s father left the family home and separated from his mother. After that event the Applicant’s older brother followed his father. The Applicant became estranged from his mother and left home at 16. There was a reconciliation between them in 2010.
The Respondent accepts that it is in the interests of the Applicant’s mother and partner for the mandatory cancellation of his visa to be revoked. However, it contends that in the light of the pattern of behaviour that he has engaged in with respect to his offending, the known consumption of drugs and violent behaviour soon after his release in 2011, means that less weight should be placed upon this consideration by the Tribunal.
The Tribunal accepts that the Applicant’s reconciliation with his mother has led to them speaking regularly. It accepts that the Applicant’s mother suffers from a range of health issues. Further, it accepts that a refusal to revoke the mandatory cancellation of his visa will have a significant impact upon her.
The Tribunal also accepts that a decision not to revoke the mandatory cancellation of the Applicant’s visa will have a devastating effect on his partner, whom the Tribunal found to be an impressive witness who genuinely has the Applicant’s best interests at the forefront of her considerations. She was also impressive in the way that she recounted the opportunity she had taken in Australia to obtain a degree and secure a very good job with a major bank. She expressed the hope that ultimately she and the Applicant would be able to live together, buy a house and raise a family. They are commendable aspirations.
In terms of other factors that the decision-maker is obliged to take into account under paragraph 14.2 of the Direction, several of them warrant comment.
The Applicant arrived in Australia as a teenager. He commenced his offending relatively soon after arriving in Australia.
During his time in Australia, the Applicant has had very few jobs. Indeed his Personal Circumstances Form it reveals only three types of employment. There was the employment at Hungry Jacks in 2006 as a kitchen hand. He then describes the years from 2006 to 2008 as having various short-term jobs; and then from 2010 to 2011 working as a painter. It is fair to say he has not made a particularly positive contribution to the Australian community.
After assessing all of the evidence concerning this consideration, the Tribunal concludes that it weighs marginally in favour of revocation of the mandatory cancellation of the Applicant’s visa.
IMPACT ON VICTIMS
Paragraph 14.4 of the Direction provides as follows in relation to impact on victims:
Impact of a decision not to revoke 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 that information is available and the non-citizen being considered for revocation has been afforded procedural fairness.
There is no evidence before the Tribunal concerning the impact of a decision not to revoke on members of the Australian community, including the Applicant’s victims.
However, the Tribunal has to acknowledge the extremely serious injuries suffered by the victim of the attack with the baseball bat. Judge Sexton’s reasons on this question are referred to and repeated.[29] She observed that no Victim Impact Statement was required to recognise that the victim suffered considerably as a result of the Applicant’s actions. She said that apart from fearing for his life when he was in the Applicant’s house, he sustained an injury which she was satisfied was at the higher end of the scale.
[29] Page 55 of the G documents at paragraph 16.
However, in the absence of more evidence, the Tribunal is unable to place any weight on this consideration.
EXTENT OF IMPEDIMENTS IF THE APPLICANT IS RETURNED TO CROATIA OR SERBIA
The Applicant contends that his intellectual disability would cause a significant impediment should he be removed from Australia.
Much has already been canvassed concerning this question earlier in these reasons. That discussion is referred to and repeated.
The primary thrust of the Applicant’s contentions concerning the extent of impediments is derived from the contents of the report of Mr Watson-Munro of 25 April 2018. The elements of that report relied upon can be summarised as follows:
(a)the Applicant’s IQ falls within the intellectually disabled category;
(b)he will struggle to survive if returned to his country of origin;
(c)he has reported high levels of anxiety should he be returned to Croatia in the context of his poor coping skills;
(d)he has limited capacity to effectively negotiate his environment; and
(e)this aspect of his functioning will become more relevant should he be deported and consequently rely upon his own means in order to survive.
The Applicant contends that the consequences for him as an intellectually disabled man returned to a country where he has no supports would be devastating.
The contentions on behalf of the Applicant also emphasised that by reason of living a significant portion of his life in Australia, the Applicant is far more Australian than he is Croatian. The Applicant now considers English to be his first language. He has never returned to Croatia and/or Serbia since his arrival in Australia. He has no remaining family or social connections upon which he could rely to re-establish himself there. The Applicant’s counsel in her final submissions even went so far as to submit that this consideration should be treated as or equal to a primary consideration.
The Respondent submitted that there was sufficient evidence before the Tribunal to establish that the Applicant is entitled to or is in fact a citizen of Croatia. The contention is that as both of his parents were Croatian he is entitled to Croatian citizenship under Article 4 of the Law on Croatian Citizenship. A corollary of this contention is that Croatia is a member of the European Union. As a citizen of a European Union member state, he has a right to live in any other European Union nation. The Tribunal accepts this contention.
The Respondent accepts that the Applicant has resided in Australia for approximately 15 years. It further accepts that the Applicant’s mother and partner reside in Australia and that he does not have any immediate family in Croatia. There is further acceptance on the part of the Respondent that the Applicant suffers from an intellectual impairment, however it may be categorised, which presents as an impairment in establishing himself in Croatia if he were to be returned. It is acknowledged by the Respondent therefore that these considerations weigh in favour of revocation.
However, the Respondent contends that the weight the Tribunal should attach to this consideration should be limited, given the fact that the Applicant apparently speaks Serbian which is a language understood by many in Croatia, together with the fact that he has employable skills as a painter.
Therefore, the contention of the Respondent is that, to the extent that this “other” consideration weighs in favour of revocation, any such weight is insufficient to outweigh the seriousness of the Applicants offending and the likelihood that he will commit further offences. Together with the cumulative nature of his offending, which has become progressively more serious over the years, the conclusion must be reached that the Applicant presents an unacceptable risk to the Australian community.
In addressing this consideration, as required by paragraph 14.5(1) of the Direction, it is important to bear in mind the language of the paragraph itself. The decision-maker is required to identify the extent of any impediments the non-citizen may face 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 the matters identified thereafter in the paragraph.
There is surprisingly little material before the Tribunal that expressly addresses these questions.
The Tribunal notes that the Applicant is 29 years old. Apart from the matters identified in the expert reports of the clinical psychologists and the psychiatrist, the Applicant appears to be in quite good physical condition. He does speak a language that is understandable in either Croatia or Serbia.
There is really little evidence before the Tribunal concerning social, medical and/or economic support available, or unavailable, to the Applicant in the event that he were to be returned. Croatia is a developed economy and a member of the European Union. This of itself must mean that the Applicant would be able to avail himself of social, medical and economic support of a reasonable standard.
The Tribunal accepts that the Applicant would face significant challenges in re‑establishing himself after such a long absence whether this be in Croatia, Serbia or another member nation of the European Union as he would be entitled to do.
The Tribunal is mindful of, and accepts that, there would be some difficulty faced by the Applicant in the early stages of his return to Croatia, in familiarising himself with the available social, medical and/or economic supports that could assist him. There may be some cultural barriers due to his Serbian background. However, those barriers are not clear to the Tribunal.
Of concern to the Tribunal is the issue identified in the reports of the Forensic Psychiatrist and psychologists arising from the Applicant’s low IQ and borderline intellectual disability. Regrettably, there is no evidence available to the Tribunal which describes the range of available services for a citizen of Croatia who suffers from this affliction. It needs treatment, and if it is not addressed the Applicant will be in a position of some disadvantage.
On the point concerning the Applicant re-establishing himself in another member nation of the European Union, there was some debate before the Tribunal about whether the Applicant could gain entry to the United Kingdom. The reason being of course that English is the spoken language in that country. The Tribunal observes that English is widely spoken throughout the European Union, particularly in major cities. Some materials were produced to the Tribunal by the Respondent after the conclusion of the hearing concerning the requirements of a citizen of another European Union nation should they seek to reside in the United Kingdom. The Applicant would be required to produce a police certificate and under the relevant rules would probably be refused entry because he has been convicted of an offence for which he was sentenced to a period of imprisonment of at least four years. He can also be excluded if it is in the interests of public policy or public security. It is not known whether other European Union nations have similar restrictions. However, for the purposes of this consideration the Tribunal will infer they do. Therefore, more likely than not the Applicant’s capacity to relocate to other European Union nations is limited.
The Tribunal has also taken into account under this consideration the content of the articles tendered by the Applicant (which were addressed earlier in these reasons under the consideration of Australia’s International non-refoulement obligations contained in paragraph 14.1 of the Direction). It is possible that the Applicant could face some level of harassment or discrimination by reason of his Serbian ethnicity were he to return to Croatia. The Tribunal reiterates that this is contrary to the provisions of the Croatian Constitution and the applicable laws of the European Union. A citizen of the European Union does have rights, such as under the European Convention on Human Rights, which can be enforced in an appropriate court of competent jurisdiction, including the Croatian courts, and if for instance such behaviour were state-sanctioned or tolerated, in the European Court of Human Rights[30]. These remedies could be exercised by the Applicant.
[30] Possibly also the European Court of Justice could have jurisdiction in certain cases.
The Tribunal concludes that this consideration weighs in favour of revocation of the mandatory cancellation of the Applicant’s visa.
CONCLUSION
The Applicant arrived in Australia in 2003 at the age of 13 years. Approximately two years after his arrival he committed his first offence which included an act of violence against a young woman. He continued to offend. His continued offending included violence. That violence included violence against women, breaching an intervention order and violence using a weapon, namely a baseball bat. His last offence resulted in him being sentenced to a term of imprisonment of five years and 10 months with a minimum term of three years before becoming eligible for parole. As a result there was a mandatory cancellation of his visa.
The Applicant seeks to have the mandatory cancellation decision revoked.
The Tribunal has taken into account several of the factors identified in paragraph 13.1.1 of the Direction concerning the nature and seriousness of the Applicant’s conduct. Those factors and the matters arising under them have been canvassed in detail in these reasons. In these circumstances the Applicant should, as noted in the Principles at paragraph 6.3 of the Direction, expect to be denied the privilege of remaining in Australia. The nature and seriousness of the offending of the Applicant, the violence, the cumulative effect of his offending including his disregard of court orders together with his repeat offending, weigh heavily against the revocation of the mandatory cancellation of his visa. The risk of future harm by the Applicant is unacceptable.
The Tribunal has assessed the risk to the Australian community should the Applicant commit further offences or engage in other serious conduct. It has reached the conclusion that were the Applicant to reoffend, the consequences would be more likely than not a return to some level of violent behaviour. This risk of future harm to the Australian community is unacceptable and therefore this consideration weighs heavily in favour of refusing to revoke the mandatory cancellation of the Applicant’s visa.
The expectations of the Australian community are such that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. The Tribunal finds that the Applicant poses an unacceptable risk of future harm if he remains in Australia. The Australian community therefore would expect the mandatory cancellation of the Applicant’s visa not to be revoked.
The strength, nature and duration of the Applicant’s ties to Australia weigh marginally in favour of revocation of the mandatory cancellation of the Applicant’s visa. His mother is here, his partner is here, and his removal would have a significant impact on them. His mother’s health is deteriorating and not having her son present will cause her significant distress, and most likely deny her support both physically and in a mental capacity that otherwise may have been the case. This is even though the Applicant has now been in custody for almost seven years.
Finally, the extent of impediments, although not fully clear, to the Applicant if he is returned to Croatia do weigh in favour of revoking the mandatory cancellation of his visa. The Applicant does have some level of intellectual disability. He now considers English to be his first language. He has no remaining family in Croatia. There will be challenges to him re‑establishing himself.
However, when one considers the primary considerations, on the evidence available to the Tribunal of the nature and seriousness of the Applicant’s conduct, the risk to the Australian community should the Applicant reoffend and the expectations of the Australian community, they outweigh the considerations in favour of the Applicant; namely the strength, nature and duration of his ties to Australia and the extent of impediments if he is returned to Croatia.
DECISION
The Tribunal affirms the decision under review.
I certify that the preceding 187 (one-hundred and eight-seven) paragraphs are a true copy of the reasons for the decision herein of R. Cameron, Senior Member
.....[sgd].....................................................
Associate
Dated: 20 February 2019
Date(s) of hearing: 11-12 February 2019 Solicitors for the Applicant: Lawson Bayly Lawyers & Migration Agents
Lawson BaylyCounsel for the Applicant: Ms Tanya Skvortsova Solicitors for the Respondent: Australian Government Solicitor
Mr David Brown
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