YVTG and Minister for Home Affairs (Migration)

YVTG and Minister for Home Affairs (Migration) [2019] AATA 934 (17 May 2019)
Division:GENERAL DIVISION
File Number: 2019/1144
Re:YVTG
APPLICANT

AndMinister for Home Affairs
RESPONDENT

Decision
Tribunal:The Hon. Matthew Groom, Senior Member
Date:17 May 2019
Place:Melbourne

The decision under review is affirmed.
...........[sgd].............................................................
The Hon. Matthew Groom, Senior Member
Catchwords
MIGRATION – mandatory cancellation of visa – applicant does not pass character test – substantial criminal history – whether discretion to revoke mandatory cancellation should be exercised – drug dependency - intellectual disability – legal and administrative guardian – risk of reoffending – no family connections in Australia - overall balance weighs in favour of revocation - decision affirmed
Legislation
Migration Act 1958
Cases
Mlinar and Minister for Immigration Multicultural Affairs (1997) 48 ALD 771
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Secondary Materials
Direction No. 79 - Migration Act 1958 - Direction under section 499 Visa refusal and cancellation under s501 and revocation of a mandatory cancellation of a visa under s501CA
REASONS FOR DECISION
The Hon. Matthew Groom, Senior Member
INTRODUCTION

This is an expedited review of a decision made by a delegate of the respondent under s 501CA(4) of the Migration Act 1958 (the “Act”) not to revoke a mandatory cancellation of the applicant’s Class BF Transitional (Permanent) visa (the “visa”).
The hearing in this matter was conducted on the 1 and 2 May 2019. The applicant was assisted at the hearing by his advocate and Legal and Administrative Guardian (the Advocate) together with two assistants. The respondent was represented by Mr Christopher Brinley of Clayton Utz.
In reaching its decision the Tribunal has carefully considered the oral testimony of the applicant as well as the oral evidence of the Advocate, Witness M and two other witnesses, together with all of the documentary evidence before it.
BACKGROUND
General background
The applicant is a 45-year-old man who was born in Scotland and arrived in Australia with his mother, brother and sister in 1974 when he was 11 months of age. He has held a Class BF Transitional (Permanent) visa since 1 September 1994. He has lived in Australia since his first arrival and has never travelled outside of Australia. His mother, brother and sister have since passed away. The applicant has no family connections in Australia and no meaningful family connections in Scotland.
Criminal history
The applicant has a very significant history of offending which is set out in the Annexed National Police Certificate[1].
[1] See Annexure 1.
The applicant’s offending includes more than 400 separate criminal offences committed as an adult over a 25 year period and involving more than 48 separate court appearances. In addition, the applicant appeared before the Children’s Court on a significant number of occasions and was found guilty or convicted of at least 35 offences. The applicant’s more serious offending includes:
(a)an extensive history of property based offending including a significant number of theft and burglary offences, multiple counts of theft of a motor vehicle, handle/receive/retention of stolen goods, intentionally damage property and wilfully damage property;
(b)an extensive history of violent offending including assault; assault police; assault with a weapon; intentionally or recklessly cause injury and recklessly cause serious injury;
(c)a significant history of drug based offending; and
(d)a significant history of offending involving dishonesty.
The applicant also has convictions for multiple counts of breach of suspended sentence and other Court orders.
The applicant’s most recent offending occurred in March 2015 and included aggravated burglary, intentionally cause injury, theft and possession of a drug of dependence. The applicant was sentenced to an aggregate term of 5 years imprisonment for these offences.
Cancellation decision
On 16 October 2017 the applicant’s visa was cancelled under s 501(3A) of the Act on the basis that he did not pass the character test under s 501(6)(a) as a result of having a substantial criminal record and because, at the time of the decision, the applicant was serving a sentence of imprisonment, on a full time basis, in a custodial institution for an offence against a law of the Commonwealth, or State or Territory of Australia.
The applicant was issued with a letter from the respondent inviting him to make submissions in relation to the cancellation decision. The applicant subsequently made representations under s 501CA(4)(a) of the Act seeking a revocation of the decision.
On 21 February 2019 a delegate of the Minister decided not to revoke the visa cancellation decision. The applicant subsequently sought a merits review of that decision, which is the subject of the application currently before the Tribunal.
ISSUE
There is no issue between the parties regarding the accuracy of the applicant’s criminal record as set out in the National Police Certificate. Nor is there any dispute that the applicant does not pass the character test under s 501(6)(a) as a result of having a substantial criminal record. The Tribunal is satisfied on each of these points.
Therefore, the issue before the Tribunal is whether there is ‘another reason’ to revoke the cancellation decision having regard to all relevant considerations, including those set out in Part C of Direction No. 79 made under s 499 of the Act on 20 December 2018 (“Direction 79”). Direction 79 came into effect on 28 February 2019.
CONTENTIONS AND CONSIDERATION
The Preamble to Direction 79 specifies a number of principles which provide a framework within which decision-makers should approach their specific task:
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of Direction 79 provides that 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.
Direction 79 sets out that the primary considerations should generally be given more weight than the other considerations and that one or more primary considerations may outweigh other primary considerations. However, it is now well established that the Tribunal, in exercising its discretion, can give equal or greater weight to any consideration.[2]
Primary Considerations
[2] Re Schuster-McFadyen v Minister for Immigration and Citizenship (2011) 124 ALD 68; [2011] FCA 1303
The protection of the Australian community from criminal or other serious conduct
Paragraph 13.1(1) of Direction 79 states:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non‑citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 13.1(2) of Direction 79 states that 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.
The Tribunal notes that the Direction specifically states in the Principles at paragraph 6.3(3) that:
A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against women or children or vulnerable members of the community such as the elderly or disabled, should generally expect to be denied the privilege of coming to, or forfeit the privilege of staying in Australia.
Moreover, at paragraph 13.1.1(1) the Direction states that:
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;
As noted above, the Direction states specifically that violent offending against women or children is to be viewed very seriously and that a person who commits such a crime should generally expect to forfeit the privilege of staying in Australia.
The applicant’s most recent offending involved aggravated burglary where the applicant committed a burglary by entering the home of a single mother and in the course of the offence punched the mother in the head several times in the presence of her young daughter. In his sentencing remarks in relation to the applicant’s offending His Honour acknowledged the serious nature of the offence noting that the victim had sustained:
a bruise under her left eye, swelling to her nose, headaches, ongoing pain to her neck, nose head and face. She remained in hospital for five days… she continued to experience physical pain, post traumatic amnesia and psychological trauma as a result of the assault.
His Honour went on to say:
Aggravated burglary is always a serious offence. This was a particularly serious example of aggravated burglary. You made the situation worse by engaging in the assaults that you did.
The serious nature of the applicant’s most recent offending was further reinforced by the very significant five year term of imprisonment that was imposed by His Honour. As Senior Member Poljak noted in PNLB and Minister for Immigration and Border Protection [2018] AATA 162:
The seriousness of the applicant’s conduct is reinforced by the sentences imposed on him…Sentences involving terms of imprisonment are the last resort in the sentencing hierarchy and any such sentence must be viewed as a reflection of the objective seriousness of the offences involved.
Direction 79 also requires the Tribunal to have regard to the principle that:
…crimes committed against vulnerable members of the community (such as the elderly or the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties, are serious;
Accordingly, in applying the Direction an offence of assault against a police officer while on duty must be considered serious. The Tribunal notes that the applicant’s criminal record includes several assaults committed against a police officer in the course of their duty.
Further, Direction 79 requires the Tribunal to have regard to the frequency of the offending, whether there is any trend of increasing seriousness and the cumulative effect of repeated offending.
The Tribunal is satisfied that the applicant has a very significant criminal record that involves both frequent offending with a substantial cumulative impact, as well as a trend of increasing seriousness. This conclusion is supported by the fact that the applicant has offended on a regular basis over the course of more than 25 years and that his most recent offence of aggravated burglary must be considered to be amongst the most serious offending he has committed. This contention was strongly refuted by the Advocate on the grounds that the applicant’s offending occurred in a drug induced state and therefore the applicant cannot be said to have engaged in those crimes by design or with planned intent. However, the applicant has been convicted of a significant number of crimes including crimes involving substantial levels of violence. The applicant is criminally culpable for that offending and while it may be drug induced (and therefore not reflective of the Advocate’s perception of the “real” person the applicant is), it is the applicant himself who has made the decision to use drugs and put himself in a state where he is not in control. The Advocate told the Tribunal that as a drug addict the applicant effectively had no choice but was rather compelled to take drugs. The Tribunal does not accept the Advocate’s submission on this point. As an adult the applicant must ultimately take responsibility for his actions and for the consequences of those actions including the serious hurt he has caused innocent victims. The Tribunal is completely satisfied that the applicant’s most recent offending of aggravated burglary is amongst his most serious and that it does reflect a trend of increasing seriousness.
There was substantial evidence presented to the Tribunal regarding the applicant’s personal background as context for the applicant’s offending. The evidence was compelling. In the course of his evidence the applicant told the Tribunal that:
(a)His sister died as a result of a heroin overdose at the age of 24 and when the applicant was around 8 years of age. Following this incident his mother experienced a mental break down and was placed in a psychiatric institution where she remained until her death in 2007;
(b)As a result of his mother’s institutionalisation, the applicant was made a Ward of the State and was then the subject of a series of placements in various boys’ homes and foster care arrangements. The applicant gave evidence of the traumatic and unsettled nature of this period in his life. He described having no substantive loving relationship during this period other than with his older brother who he saw occasionally and his mother whom he rarely saw due to her institutionalisation and who was very troubled during this time as a result of her psychiatric illness;
(c)Due to the chaotic nature of his living arrangements during this period of his life the applicant experienced a very interrupted and limited formal education. The applicant described having been bullied at school and also experiencing difficulty with learning when compared to his peers;
(d)At approximately 10 or 11 years of age the applicant was placed into the care of a foster parent who was subsequently identified as a convicted paedophile. There was some inconsistency in the evidence regarding the age at which this occurred. Some of the psychiatric assessment materials suggest that the applicant may have been placed into the care of this particular foster parent at around 14 years of age.
(e)During his time in this foster parent’s care the applicant was repeatedly sexually abused and also plied with alcohol and drugs. Following this, the applicant developed a dependency on drugs. After the police identified the foster parent as a convicted paedophile and while seeking to take the foster parent into custody, a siege took place during which a gun was placed at the head of the applicant. The applicant described in some detail the ongoing anguish he felt in his life which he continues to feel as a result of these events;[3]
[3] There were also references in the psychiatric assessments to extensive sexual abuse suffered by the applicant prior to this particular placement although the applicant did not describe this earlier abuse in detail in his oral evidence before the Tribunal.
(f)At approximately 14 years of age the applicant’s brother tragically committed suicide. Again, the applicant described the significant anguish this caused him particularly having regard to the special bond he felt towards his brother; and
(g)He felt ongoing anguish as a result of his mother’s institutionalisation and his inability to have any normal engagement with her. He described loving his mother very much but that due to her psychiatric condition she had not been able to give him the love and attention that might reasonably be expected from a mother.
The details of the applicant’s background as told by the applicant in his oral evidence were not challenged in any material respect by the respondent and the Tribunal accepts the truth of the applicant’s account.
In addition, there was evidence before the Tribunal that the applicant has been diagnosed with:
(a)a mild form of intellectual impairment;
(b)a number of mental health conditions including depression, anxiety, post-traumatic stress disorder and anti-social and borderline personality disorder; and
(c)chronic substance abuse.
There was also some evidence suggesting brain injury, memory impact and other impairments resulting from his extensive use of drugs over his life.
The Tribunal acknowledges that for the purposes of this decision it cannot contradict or go behind any of the applicant’s convictions and examine the facts upon which they were based.[4] However, there is nothing that prevents an applicant from presenting to the Tribunal matters that give context to his convictions.
[4] See Mlinar and Minister for Immigration Multicultural Affairs (1997) 48 ALD 771.
The Tribunal accepts that the applicant’s personal life story is relevant context in properly understanding his prior criminal conduct. There is no question in the mind of the Tribunal that the applicant has suffered significant trauma and has been forced to deal with very difficult personal circumstances and ongoing health challenges. However the Tribunal notes that the Courts have not accepted these factors as an excuse for the applicant’s offending and notwithstanding these circumstances have, on more than one occasion, sentenced the applicant to very lengthy terms of imprisonment. In imposing significant terms of imprisonment the Courts have acknowledged both the applicant’s personal culpability for his offending and the very serious nature of his crimes. The Tribunal is also of the view that the applicant’s personal circumstances, as tragic and difficult as they are, cannot take away from the very serious nature of his offending.

Having considered all of the evidence, the Tribunal is satisfied that the cumulative impact of the applicant’s offending, together with the violent nature of some of his offending which includes threat to kill, unlawful assault (multiple offences), intentionally cause injury, recklessly cause serious injury, assault police officer on duty and aggravated burglary, must be considered very serious. The Tribunal now turns to an assessment of the risk of the applicant re-offending and the nature of the harm the community could potentially be exposed to should he reoffend.
The Advocate, on behalf of the applicant, put a number of contentions to the Tribunal in support of the proposition that the applicant’s risk of re-offending should be assessed as very low. They include that:
(a)the applicant is genuinely remorseful for his offending;
(b)the applicant has developed insight into his offending including understanding the role his drug dependency has played in his crimes and the triggers and circumstances that increase his risk of relapse. During his time in custody the applicant has participated in rehabilitation programs including a substance abuse program which has further improved his insight into his offending;
(c)the applicant has stated that he is determined to avoid a relapse back into drug dependency and crime and to do what is necessary to reduce the risk of him doing so;
(d)the applicant has the benefit of the personal support being offered by the Advocate to assist with his transition out of prison and back into the community. The Advocate contended that he will support the applicant in resisting a relapse into drug dependency and crime;
(e)the applicant now has a better understanding of his mental health conditions and disabilities and has demonstrated a commitment to obtaining the mental health counselling and other support services that he requires to effectively manage those conditions;
(f)as a result of his most recent time in prison the applicant has now had a prolonged period of abstinence from drugs and is therefore better placed than he has been in the past to avoid a return to drug dependency;
(g)the applicant has been of good behaviour during his most recent time in prison;
(h)during his time in prison the applicant has undertaken a number of vocation training programs which have the potential to improve his prospects of gainful employment on his release from prison; and
(i)the applicant is now seriously motivated to avoid re-offending given the seriously heightened threat of deportation should he be released back into the community and then reoffend.
While acknowledging the difficult personal circumstances the applicant has been forced to deal with in his life the respondent contends that the risk of the applicant re-offending must be considered to be high. The respondent noted in particular that:
(a)the threat of imprisonment or deportation has not deterred the applicant from re-offending in the past despite receiving several warning letters that his visa may be cancelled if he committed further criminal offences;[5]
[5] The applicant was issued with warning letters that his visa may be cancelled if he continues to criminally offend dated 4 April 2005, 5 December 2007, 23 July 2012 and 15 July 2014. In the course of his evidence the applicant acknowledged that he “probably” received the letters although the Advocate had dealt with the letters on his behalf. The applicant acknowledged that he was aware he had received multiple warning letters and that he understood them to be serious.
(b)the applicant has previously engaged in treatment for his mental health conditions and substance abuse issues and despite having done so the applicant continued to re-offend;
(c)the applicant has previously been given the benefit of significant support from the Advocate and despite that support the applicant relapsed back into drug dependency and re-offended;
(d)the applicant has engaged in a consistent pattern of offending over more than 25 years which would suggest a strong likelihood of him re-offending again in the future; and
(e)the offences the applicant has been found guilty of have displayed an escalation of seriousness, culminating in his most recent aggravated burglary offence and that the escalation of offending supports a conclusion that the applicant is at a high risk of re-offending.
Further, the respondent contends that given the serious nature of the applicant’s prior offending, and the serious harm likely to be suffered by members of the Australian community should the applicant engage in further similar conduct in the future, including the risk of very serious physical or psychological injury, any risk of re-offending presents a risk of harm to the Australian community that is unacceptable.
In assessing the risk of the applicant relapsing back into drug dependency and re-offending and based on all of the evidence before it the Tribunal makes the following findings:
(a)The applicant has demonstrated a level of insight into his offending including, in particular, the role his previous drug dependency has played in his offending. The Tribunal accepts that the applicant’s insight has been enhanced to a degree through programs he undertook while in prison and also through the counselling and support of the Advocate. The applicant told the Tribunal that “I have a lot of stuff in my head…I use drugs to black it out…when I’m on drugs I do bad stuff”. In his evidence before the Tribunal the applicant did appear to deflect personal reasonability for his criminal conduct to some degree by repeatedly referring to his earlier life circumstances and the impact of drugs rather than acknowledging that as an adult he is ultimately responsible for his actions.
(b)The applicant has demonstrated a level of understanding of the triggers and circumstances that increase the risk of relapse back into drug dependency. The applicant told the Tribunal that he knows he needs to stay away from his previous drug associates and ensure that he maintains regular counselling for his mental health conditions as well as adhere to any prescribed medication regime. The applicant demonstrated a strong desire to do what is necessary not to relapse back into drug dependency in the future and to not re-offend. He told the Tribunal “I think it’s different now… I’ve had enough”. However, the Tribunal notes that the applicant appeared to place a very heavy dependency on the ongoing support of the Advocate in ensuring that he continued to do what is necessary to avoid relapse. He told the Tribunal “I cannot do it by myself”. This was concerning to the Tribunal.
(c)The applicant has demonstrated a level of remorse for his offending and some level of recognition of the extent of harm it has caused other members of the community. The applicant told the Tribunal that “I’m very remorseful for what I’ve done… I don’t want to do it any more… I’ll do anything to improve my chances”. Notwithstanding this the applicant did indicate limited remorse for certain offending including a serious assault for which he was convicted in 2012. He indicated to the Tribunal that he did not feel sorry for his victim in that offence as the victim was a drug dealer who had assaulted the Advocate. While the applicant may well feel that such a view is well founded, it was somewhat concerning to the Tribunal as it suggested a willingness on the part of the applicant to take the law into his own hands in certain circumstances.
(d)The Tribunal accepts that the applicant has previously had interrupted access to counselling and support services to properly address his mental health conditions and manage his disabilities. In particular the Tribunal accepts that the applicant has had very limited support for his mental health conditions during his current incarceration and that he is determined to take advantage of any opportunity to receive counselling of that kind in the future. The Tribunal also acknowledges the strong personal commitment by the Advocate to help facilitate counselling and support services that the applicant requires to effectively manage his mental health conditions and disabilities on his release. The Advocate told the Tribunal that he was determined to do all that he could to assist the applicant in obtaining such services on his release from custody. He told the Tribunal that he believed the facilitation of proper support for the applicant in addressing his mental health conditions and his disabilities would provide the best possible opportunity for the applicant to avoid a relapse back into drug use and crime in the future.
(e)The Tribunal accepts that the applicant recognises the serious threat of deportation should his visa cancellation be revoked and he then engage in further criminal conduct.
(f)The Tribunal acknowledges that the applicant has made efforts to undertake vocational training and secure qualifications that may improve his prospects of obtaining gainful employment on his release.
(g)The Tribunal acknowledges that the applicant has maintained a record of good behaviour during his more recent period of incarceration and has also undertaken consistent work activities during this period. The Tribunal also accepts that the applicant has faced significant challenges in prison as a result of his mental health conditions and disabilities and also as a consequence of being kept in isolation on occasion and having limited capacity to contact the Advocate for extended periods.
(h)The Tribunal recognises that the applicant has, during his current period of incarceration, had an extended period of abstinence from drugs and that this presents an opportunity to avoid drug dependency in the future.
(i)The applicant does not have the benefit of family support networks that could potentially provide the type of support that would assist him in maximising his prospects of avoiding relapse. He does however, have the strong personal support of the Advocate together with a number of the Advocate’s associates and other acquaintances he has met through the Advocate.
(j)The applicant has previously been incarcerated and notwithstanding the availability of some level of support following his release back into the community he still relapsed back into drug dependency and crime. The Tribunal acknowledges that on previous occasions there may have been a more limited awareness regarding the applicant’s complex health needs and a less concerted effort to ensure that the applicant would receive the counselling and treatment that he required. However, again the Tribunal is concerned that the prospect of the applicant taking up and maintaining the necessary counselling and treatment in the future is dependent to a high degree on the ongoing support of the Advocate.
The Tribunal otherwise accepts the respondents contentions in relation to the risk of the applicant re-offending. In particular the Tribunal accepts the respondent’s contention that the applicant has a significant record of repeated criminal activity and also a trend of increasing seriousness of offences as described earlier in these reasons.
It is not possible to undertake a complete assessment of the risk of the applicant relapsing back into drug use and re-offending without making an assessment of the type and quality of support on offer from the Advocate. The applicant certainly places great reliance on the support being offered by the Advocate. Indeed, the Advocate himself has strongly emphasised it in making representations on the applicant’s behalf.
The Tribunal fully accepts that the Advocate’s support for the applicant is a significant mitigating factor in the risk of the applicant relapsing back into drugs and crime. In his evidence as well as through the course of these proceedings the Advocate was passionate about his commitment to the applicant. The Advocate’s commitment to the applicant is genuine and, in fact, quite remarkable. The Advocate met the applicant when the applicant was 18 or 19 through a program that assisted people in the justice system who were dealing with a disability or mental illness. He told the Tribunal he was determined to continue to do all he could to assist the applicant in transitioning back into the community and getting his life back on track.
In his evidence the applicant spoke of the important role the Advocate has played in his life for over 20 years. The applicant described the Advocate as a father figure who is determined to help him and act in his best interests. The applicant told the Tribunal that it is his intention to live with the Advocate on his release and that he is now determined to follow the Advocate’s guidance and not resort to drugs or re-offend.
Both the applicant and the Advocate emphasised that as the Advocate is now an appointed Guardian and Administrator of the applicant he has the capacity to issue legally binding directions to the applicant subject to his obligation to act in the applicant’s best interest. They also emphasised that on this occasion there was a clearer commitment to ensure the applicant received the counselling necessary to address his mental health conditions and a better understanding of the challenges he faces as a result of his mental health conditions and his disabilities.
The Tribunal acknowledges that as the applicant’s legally appointed Guardian and Administrator, the Advocate is now in a better position to guide and direct the applicant including in respect of accommodation arrangements and medical and health care. However the Tribunal also notes that the Advocate has provided a significant level of support for the applicant previously, albeit in the absence of a formal Guardianship, and yet despite that support the applicant relapsed back into drug use and reoffended.
The Tribunal also acknowledges the applicant’s stated commitment and determination to remain free of drugs and avoid a return to crime and does not question in any way the Advocate’s determination to assist the applicant in achieving that outcome. However, no matter how much the Advocate may wish to do so, he cannot control the applicant’s intent or actions. In fact the Tribunal notes that on at least one occasion the Advocate has been a victim of the applicant’s violent behaviour. In the end the applicant will only avoid drugs and a return to crime if he himself remains absolutely determined to do so and maintains a high level of self-discipline. Therefore any assessment of the risk of the applicant relapsing back into a life of drugs and crime must focus most heavily on the likely actions and intent of the applicant himself. The applicant’s capacity to control his own behaviour and avoid drugs and crime under his current circumstances has not been fully tested in the community. The challenges he will face in doing so are immense. There is no avoiding the fact that the greatest indicator of the applicant’s likely future conduct is his past conduct and that would strongly suggest that, at its lowest, the risk of him relapsing back into drugs and crime is significant. The risk is certainly not trivial or minimal.
The Tribunal notes that the materials included an assessment from Dr G which included an assessment of the applicant reoffending as low. As was acknowledged by the delegate who made the decision under review, that assessment was made in 2010 and following the assessment the applicant has engaged in further serious criminal offending. Accordingly the Tribunal agrees with the Delegate’s view that in those circumstances Dr G’s assessment should be afforded little weight.
The Tribunal is satisfied that, should the applicant relapse back into drug dependency, then his risk of re-offending again is high. The applicant himself recognised as much when he told the Tribunal “when I’m on drugs I do bad stuff”. The Advocate’s evidence was that he had observed the applicant in a drug induced state and that he had the potential to be violent and unpredictable in those circumstances.
Further, the Tribunal is satisfied that should the applicant re-offend, based on his past conduct it is likely that the types of offending behaviours the applicant has previously engaged in is at risk of being repeated. This has the potential to cause very significant harm to members of the Australian community including women and children, police officers, and members of the broader public. The Tribunal is satisfied that this represents an unacceptable risk of harm to the Australian community.
Accordingly, the Tribunal is of the view that the protection of the Australian community weighs very heavily in favour of not revoking the mandatory cancellation of the applicant’s visa.
The best interests of minor children in Australia
There was no evidence before the Tribunal of any minor children in Australia relevant to this aspect of the Tribunal’s consideration. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Expectations of the Australian community
Paragraph 13.3(1) of Direction 79 provides:
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.
Consistent with the Federal Court decision in YNQY v Minister for Immigration and Border Protection[6], the Tribunal acknowledges that this consideration is inextricably linked to the other primary considerations regarding the protection of the Australian community.
[6] [2017] FCA 1466
A number of witnesses were presented on behalf of the applicant to give evidence of their personal expectation of what should happen to the applicant as a member of the Australian community. While the Tribunal appreciates the personal thoughts of the witnesses in this respect, as was acknowledged in YNQY, it is not the Tribunal’s role to receive evidence as to what members of the community might expect should happen to the applicant, but rather to determine the weight to be given to the stated expectations of the Australian community as set out in Direction 79.
In light of the findings above relating to a significant risk of reoffending and an unacceptable risk of future harm, the Tribunal is satisfied that the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.
The applicant has engaged in very serious offending over an extended time period including violent crimes involving women, children and police officers. The Australian community has a low tolerance for serious criminal offending of this kind and would expect the existence of such a criminal record to weigh heavily in favour of not revoking the mandatory cancellation of the applicant’s visa.
In weighing this consideration the Tribunal has had regard to the tragic personal circumstances experienced by the applicant over the course of his life including his difficult and chaotic upbringing, the loss of his sister and brother at an early age, the limited love and support he was able to secure from his mother, his drug dependency, the sexual abuse he suffered as a child, his mental health conditions and mild intellectual impairment.
The Tribunal has also had regard to the fact that the applicant has lived almost his entire life in Australia. In addition, the community would expect that regard be had to the impediments the applicant would be likely to face should he be returned to Scotland, particularly given the absence of family and other support networks in Scotland.

The Tribunal accepts that the applicant’s personal circumstances are significant mitigating factors in assessing the weight to be given to this consideration. However, the Tribunal is satisfied that the nature and seriousness of the applicant’s offending, the significant risk of him reoffending and the unacceptable risk of harm that could be caused to the community is such that, despite other mitigating issues, the Australian community would expect that the mandatory cancellation of the applicant’s visa not be revoked.
For these reasons, the expectations of the Australian community weighs in favour of not revoking the mandatory cancellation of the visa.
Other Considerations
Non-refoulement obligations

There was no evidence before the Tribunal of any non-refoulement obligations owed to the applicant and therefore this consideration weighed neither for nor against revoking the mandatory cancellation of the visa.
The Strength, nature and duration of ties
The applicant clearly has strong ties to Australia given that he has lived here for almost his entire life.
The applicant has no surviving family in Australia with whom he has any relationship.
There was very little evidence of a positive contribution that the applicant has made to the Australian community other than the community support work he has undertaken with and through the Advocate. There is no question he has assisted the Advocate in his volunteer work for a number of community groups and assisting with various support programs and fundraising activities. The applicant has also provided comfort and support for the Advocate’s mother as well as other members of various aged care facilities that he visited with the Advocate. The Advocate described the applicant sitting with residents who had dementia and other age related conditions and demonstrating great care and concern for them. There was some limited evidence of work that the applicant had undertaken as a young adult including working in the building industry. Again, the applicant has also assisted the Advocate in various work activities including in his business. The Advocate gave evidence of the strong work ethic of the applicant and his capacity to relate to a broad cross section of the community.
The Tribunal is satisfied that overall the applicant has had a limited positive impact on the community, although it is recognised that given the extremely difficult life he has lived and the personal challenges he has faced that this limited positive impact is understandable to some reasonable degree. Having said that the applicant must also accept reasonability for his drug use and criminal offending which has also played a significant role in limiting the contribution he could make to society.
For these reasons, the Tribunal gives this consideration some limited weight.
Impact on Australian business interests
There is no evidence that Australian business interests would be impacted if the cancellation of the applicant’s visa is not revoked. Therefore, this consideration weighs neither for nor against revoking the mandatory cancellation of the visa.
Impact on victims
There was no evidence before the Tribunal of the impact revocation of the cancellation of the applicant’s visa would have on victims of his past offending. The Tribunal therefore places limited weight on this consideration.
Extent of impediments if removed
There was evidence before the Tribunal of significant impediments that the applicant is likely to face if he is returned to Scotland.
The Tribunal accepts that given the applicant’s lack of connection to Scotland, his mild intellectual impairment and mental health conditions, the difficulties he may face in seeking to avoid relapse into drug dependency, the absence of close family ties or other support networks, would together make a return to Scotland challenging for the applicant. The Tribunal accepts that given his extensive criminal history and limited work experience the applicant is likely to find securing paid employment challenging.
There was evidence presented to the Tribunal by Witness M of the difficulty the applicant may have in understanding the complex social security and other government support arrangements in Scotland and that this may impact on his capacity to access such services. Witness M also gave evidence to the Tribunal that while the support systems may be in some respects comparable to those on offer in Australia she did not believe that the United Kingdom had a support system that was comparable to Australia’s National Disability Insurance Scheme. The Tribunal accepts that in the absence of a scheme equal to Australia’s NDIS it is possible that the applicant may have greater difficulty in accessing some level of disability supports. However, the Tribunal is satisfied that the applicant would otherwise be entitled to social support and other health services in Scotland that are comparable to those available to him in Australia. While the Tribunal accepts that the support arrangements in the United Kingdom are complex and somewhat confusing, the Tribunal is not satisfied that the applicant would be denied assistance in navigating those arrangements at least to the degree that they would effectively be denied to him.
There was also evidence presented to the Tribunal of the applicant’s heightened vulnerability to suicide if he were to be returned to Scotland. While the Tribunal acknowledges that the applicant has attempted suicide in the past and that if he were to be returned to Scotland he is likely to face additional challenges and therefore be at a heightened risk (at least until he was able to establish himself), the Tribunal is not satisfied that the applicant would be denied the types of support services to assist him in addressing his mental health conditions in Scotland that would otherwise be available to him here in Australia.
For these reasons the Tribunal finds that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Other
The Tribunal is satisfied that there are no other considerations relevant to deciding whether or not to revoke the mandatory cancellation of the applicant’s visa.
CONCLUSION
The Tribunal is satisfied that the applicant does not pass the character test set out in s 501(6) of the Act. Therefore, the Tribunal is required to exercise the discretion in s 501(1) of the Act in accordance with Direction 79 – Part C. The Tribunal has carefully assessed each of the considerations of Direction 79 as set out above.
In weighing all of the relevant considerations in this matter the Tribunal acknowledges the sad and tragic personal circumstances the applicant has been forced to deal with in his life and also the additional challenges he may face if returned to Scotland. However, having carefully assessed each of the considerations the Tribunal accepts the contention put by the respondent and reflected in the principles of the Direction itself, that in some circumstances the nature of the criminal offending 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 the visa. The Tribunal is satisfied that this is such a case. The applicant’s criminal record is extensive and notwithstanding his stated remorse and determination not to reoffend, some effort at rehabilitation and the personal support being offered by the Advocate, there remains a significant and unacceptable risk of future harm to the Australian community should the applicant be released back into the community. The Tribunal is satisfied that in all the circumstances of this case, the unacceptable risk of harm to the Australia community the applicant would present if released back into the community outweighs the other considerations and that therefore the correct or preferable decision is to not revoke the mandatory cancellation of the applicant’s visa.
DECISION
The decision under review is affirmed.

I certify that the preceding 76(seventy-six) paragraphs are a true copy of the reasons for the decision herein of The Hon. Matthew Groom, Senior Member

....[sgd]..................................................................
Associate
Dated: 17 May 2019

Dates of hearing: 1 and 2 May 2019

Advocate for the Applicant: The Advocate

Advocate for the Respondent:

Mr Christopher Brinley

Solicitors for the Respondent: Clayton Utz
Annexure 1 – National Police Certificate

[2019] AATA 934

17 May 2019

Key Legal Topics

Areas of Law

Immigration

Administrative Law

Statutory Interpretation

Legal Concepts

Judicial Review

Natural Justice

Procedural Fairness

Jurisdiction

Standing

Statutory Construction

Dates of hearing:	1 and 2 May 2019
Advocate for the Applicant:	The Advocate
Advocate for the Respondent:	Mr Christopher Brinley
Solicitors for the Respondent:	Clayton Utz