ZSQC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2021] AATA 1738
•15 June 2021
ZSQC and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2021] AATA 1738 (15 June 2021)
Division:GENERAL DIVISION
File Number: 2021/1894
Re:ZSQC
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member Dr M Evans-Bonner
Date:15 June 2021
Place:Perth
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
...................[Sgd].....................................................
Senior Member Dr M Evans-Bonner
CATCHWORDS
MIGRATION – decision of delegate of Minister not to revoke mandatory cancellation of visa – character test – substantial criminal record – driving offences and other general offending – Direction No 90 – primary and other considerations – protection of the Australian community – nature and seriousness of the conduct – risk to the Australian community – family violence – best interests of minor children – expectations of the Australian community – extent of impediments if removed – links to the Australian community – strength, nature and duration of ties to Australia – Applicant has a 15-year-old daughter and minor nieces and nephews – Applicant is a 56-year-old man who arrived in Australia as a four-year-old child – confirmation given by Department in 1994 that Applicant not liable for deportation – Applicant was born in Germany but is British citizen who has never been to the United Kingdom – extent of impediments if removed to United Kingdom – Tribunal found that there is another reason to revoke the Cancellation Decision – Reviewable Decision set aside and substituted
LEGISLATION
Migration Act 1958 (Cth) – ss 499, 499(1), 499(2A), 500(6B), 500(6L), 500(7A), 501(2), 501(3A), 501(6), 501(6)(a), 501(7), 501(7)(c), 501CA, 501CA(4), 501CA(4)(b)(i), 501CA(4)(b)(ii), 501G(1)
Migration Regulations 1994 (Cth) – reg 2.55(8)
CASES
Apire and Minister for Immigration and Border Protection [2014] AATA 193
Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561
JFSQ and Minister for Home Affairs [2019] AATA 616
Kohli and Minister for Immigration and Border Protection [2017] AATA 1326
MJNN and Minister for Home Affairs [2019] AATA 3205
NTTH and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 114
PNLB and Minister for Immigration and Border Protection [2018] AATA 162
Subasinghe and Minister for Home Affairs [2019] AATA 751
Wightman and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1208
SECONDARY MATERIALS
Minister for Immigration and Border Protection (Cth), Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014)
Minister for Immigration, Citizenship and Multicultural Affairs (Cth), Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018)
Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Cth), Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (8 March 2021) – 4(1), 4(2), 5.1, 5.1(3), 5.2, 5.2(4), 6, 7, 8, 8(1), 8(2), 8(3), 8(4), 8.1, 8.1(1), 8.1(2), 8.1(2)(a), 8.1(2)(b), 8.1.1(1), 8.1.1(1)(a), 8.1.1(1)(a)(i), 8.1.1(1)(a)(iii), 8.1.1(1)(b), 8.1.1(1)(c), 8.1.1(1)(d), 8.1.1(1)(e), 8.1.1(1)(f), 8.1.1(1)(g), 8.1.2, 8.1.2(1), 8.1.2(2), 8.1.2(2)(a), 8.1.2(2)(b)(i), 8.1.2(2)(b)(ii), 8.2, 8.3, 8.3(3), 8.3(4)(a), 8.3(4)(b), 8.3(4)(c), 8.3(4)(d), 8.3(4)(e), 8.3(4)(f), 8.3(4)(g), 8.3(4)(h), 8.4, 8.4(1), 8.4(2), 8.4(3), 8.4(4), 9, 9.1, 9.2, 9.2(1), 9.3(1), 9.4, 9.4.1, 9.4.1(1), 9.4.1(2), 9.4.2(3)
REASONS FOR DECISION
Senior Member Dr M Evans-Bonner
15 June 2021
BACKGROUND
The Applicant is a 56-year-old man who is a citizen of the United Kingdom and was born in Germany. He lived in Germany until he arrived in Australia with his mother, father, brother and two sisters in April 1969 when he was four years of age. He has never been to the United Kingdom and has not travelled outside of Australia since his arrival (G8/67; G36/164; G35/171–2; G37/173).
The Applicant has a lengthy offending history spanning approximately 36 years comprising 47 driving/ traffic related offences and 62 other offences, for which he was convicted between 1983 and 2020 (G4/32–6; R2/241–55). He has been to prison approximately eight times (G5/45). There have, however, been periods where the Applicant has not offended including a period of approximately 18 years between 1998 and 2016 without any driving/ traffic related offending and a period of approximately 11 years between 1999 and 2010 without any criminal offending.
The Applicant’s first adult conviction was on 3 March 1983 for “threatening behaviour” when he was 18 years of age. He was sentenced to his first term of imprisonment when he was 19 years of age on 31 August 1984 with a total effective sentence of eight months’ imprisonment (G4/35) for the offences of “breach of probation” and “unlawful wounding”.
The Applicant was also sentenced to two six-month terms of imprisonment on 4 June 1985 for “threatening violence” and “assault unlawful (common)”, and a three-year term of imprisonment on 10 March 1988 for “grievous bodily harm” (R2/249, 252). The Applicant also served a four-month term of imprisonment in 1987 for “no motor drivers license” and “no motor drivers licence – under suspension” (R2/249–50).
Following an enquiry from the Applicant’s mother, she was sent a letter dated 29 August 1994 from the Department of Immigration and Ethnic Affairs, which is now the Department of Home Affairs (Department). The letter confirmed that the Applicant was not liable for deportation under the Migration Act 1958 (Cth) (Migration Act) as a result of a provision that was applicable at that time. The letter stated that this was because the Applicant “had resided in Australia for more than 10 years before committing any offence which resulted in a sentence of at least 12 months’ imprisonment” (G38/174).
Up until the date of this letter from the Department, the Applicant had been convicted of approximately 81 offences, comprising criminal offences and driving/ traffic related offences. After the date of this letter, the Applicant committed a further 28 criminal and driving/ traffic related offences (R2/241–55).
More recently, on 5 April 2011, the Applicant was convicted of two counts of “deprivation of liberty”, “common assault” and “aggravated burglary and commit offence in dwelling” for offences that occurred on 3 January 2010 and was sentenced to a total effective sentence of 20 months’ imprisonment (R2/243–4).
On 20 July 2018, the Applicant committed the offences of two counts of “unlicensed person possess firearm/ammunition”, “possess a prohibited drug” and “possession of stolen or unlawfully obtained property” and on 30 January 2020, the Applicant was sentenced to a total effective sentence of 22 months’ imprisonment (R2/242). On 19 February 2020, the Applicant was sentenced to a further effective sentence of six months’ imprisonment for three counts of “possessed a prohibited weapon” and two counts of “possessed a controlled weapon”, which were also committed on 20 July 2018, and “no authority to drive (disqualified) … 2nd or subsequent offence; No M.D.L.”, committed on 20 September 2019 (R2/242–3).
In a letter dated 30 June 2020, the Applicant was notified by the Department of the intention to consider the cancellation of his Class BF transitional (permanent) visa (Visa) under s 501(2) of the Migration Act, which he had held since 1 September 1994 “by operation of law” (G40/177–82).
On 9 September 2020, the Applicant’s Visa was cancelled under s 501(3A) of the Migration Act (G41/183–8) (Cancellation Decision). The basis of the Cancellation Decision was that the Applicant did not pass the character test because he had a substantial criminal record and was currently serving a full-time sentence of imprisonment for an offence against a law of the Commonwealth, a State or a Territory. The Cancellation Decision advised the Applicant that he could make representations to seek revocation of the Cancellation Decision.
On 5 October 2020, the Applicant, through his legal representative, requested revocation of the Cancellation Decision, made representations and submitted evidence in support of his revocation request (G7; G8).
After considering the Applicant’s representations, on 24 March 2021 a delegate of the Minister decided not to revoke the Cancellation Decision under s 501CA(4) of the Migration Act (G3/14). This is the Reviewable Decision currently before this Tribunal.
The Applicant was notified of the Reviewable Decision in a letter dated 25 March 2021 delivered via email to his legal representative (G3/10–12). Therefore, the Applicant is taken to have received it on 25 March 2021 (reg 2.55(8) of the Migration Regulations 1994 (Cth)).
On 30 March 2021, the Applicant lodged an application in the General Division of the Tribunal seeking a review of the Reviewable Decision (G2/3–9). Therefore, the Applicant filed his application for review within the nine-day period prescribed by s 500(6B) of the
Migration Act.
Section 500(6L) of the Migration Act effectively provides that the Tribunal must make a decision on the application for review within 84 days after the day on which the Applicant is properly notified in accordance with s 501G(1) of the Migration Act. Consequently, the
84-day period started running from 25 March 2021, meaning the Tribunal must hand down a decision with respect to this application on or before 17 June 2021.
ISSUES
The issues for determination by this Tribunal are:
(a)whether the Applicant passes the character test, as defined by s 501(6) of the Migration Act; and
(b)if the Applicant does not pass the character test, whether the Tribunal is satisfied that there is another reason why the Cancellation Decision should be revoked (see s 501CA(4) of the Migration Act).
THE HEARING AND THE EVIDENCE
This application was heard on 1 June 2021. The Applicant was represented by Ms Angel and the Respondent was represented by Mr Burgess.
The Applicant gave oral evidence at the hearing and was cross-examined. The Applicant called the following witnesses:
(a)his partner, who gave evidence in person;
(b)his 15-year-old daughter, A, who gave evidence in person;
(c)his sister in law, M, who gave evidence by telephone; and
(d)his sister in law, C, who gave evidence by telephone.
The Tribunal admitted the following documents into evidence at the hearing:
(a)Applicant’s Bundle of Evidence, comprising pages 1 to 44 (Exhibit A1);
(b)Applicant’s Supplementary Bundle of Evidence comprising pages 1 to 6 (Exhibit A2);
(c)Section 501G Documents, numbered G1 to G44 and comprising 216 pages (Exhibit R1); and
(d)Tender Bundle, numbered R1 to R8 and comprising 367 pages (Exhibit R2).
The Tribunal also had before it the following submissions filed by the parties:
(a)Applicant’s Statement of Facts, Issues and Contentions dated 28 April 2021 (ASFIC);
(b)Respondent’s Statement of Facts Issues and Contentions dated 19 May 2021 (RSFIC); and
(c)Applicant’s Submissions in reply dated 26 May 2021 (Reply).
LEGISLATIVE FRAMEWORK
Migration Act
Section 501(3A) of the Migration Act provides that:
(3A)The Minister must cancel a visa that has been granted to a person if:
(a)the Minister is satisfied that the person does not pass the character test because of the operation of:
(i) paragraph (6)(a) (substantial criminal record), on the basis of paragraph (7)(a), (b) or (c); or
(ii) paragraph (6)(e) (sexually based offences involving a child); and
(b) the person is serving a sentence of imprisonment, on a full‑time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory.
Section 501(6) of the Migration Act provides that:
(6)For the purposes of this section, a person does not pass the character test if:
(a)the person has a substantial criminal record (as defined by
subsection (7)); or …
(Original emphasis.)
A “substantial criminal record” is defined by s 501(7) of the Migration Act as follows:
(7)For the purposes of the character test, a person has a substantial criminal record if: …
(c)
the person has been sentenced to a term of imprisonment of
12 months or more; or
(d)the person has been sentenced to 2 or more terms of imprisonment, where the total of those terms is 12 months or more; or …
(Original emphasis.)
Section 501CA of the Migration Act further 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.
(2)For the purposes of this section, relevant information is information (other than non‑disclosable information) that the Minister considers:
(a)would be the reason, or a part of the reason, for making the original decision; and
(b)is specifically about the person or another person and is not just about a class of persons of which the person or other person is a member.
(3)As soon as practicable after making the original decision, the Minister must:
(a)give the person, in the way that the Minister considers appropriate in the circumstances:
(i) a written notice that sets out the original decision; and
(ii) particulars of the relevant information; and
(b)invite the person to make representations to the Minister, within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision.
(4)The Minister may revoke the original decision if:
(a)the person makes representations in accordance with the invitation; and
(b)the Minister is satisfied:
(i) that the person passes the character test (as defined by section 501); or
(ii) that there is another reason why the original decision should be revoked.
(Original emphasis.)
Direction No 90
Section 499(1) of the Migration Act provides that the Minister may give written directions as follows:
(1)The Minister may give written directions to a person or body having functions or powers under this Act if the directions are about:
(a)the performance of those functions; or
(b)the exercise of those powers.
Further, s 499(2A) of the Migration Act states that “[a] person or body must comply with a direction under subsection (1)”.
On 8 March 2021, the Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs made Direction No 90: Visa Refusal and Cancellation Under Section 501 and Revocation of a Mandatory Cancellation of a Visa Under Section 501CA (Direction No 90) under s 499 of the Migration Act, which commenced operation on 15 April 2021. This Direction replaced the previous Direction No 79: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (20 December 2018) (Direction No 79).
Paragraph 5.1 of Direction No 90 sets out “[o]bjectives”, with paragraph 5.1(3) being relevant to the Reviewable Decision currently before the Tribunal:
(3)Under subsection 501(3A) of the Act, the decision-maker must cancel a visa that has been granted to a person if the decision-maker is satisfied that the person does not pass the character test because of the operation of paragraph (6)(a) (on the basis of paragraph (7)(a), (b) or (c) or paragraph (6)(e)) and the non-citizen is serving a sentence of imprisonment, on a full time basis in a custodial institution, for an offence against a law of the Commonwealth, a State or a Territory. A non-citizen who has had their visa cancelled under section 501(3A) may request revocation of that decision under section 501CA of the Act. Where the decision-maker considering the request is not satisfied that the non-citizen passes the character test, the decision-maker must consider whether there is another reason to revoke the cancellation given the specific circumstances of the case.
Paragraph 5.2 of Direction No 90 sets out “[p]rinciples” which “provide the framework within which decision-makers should approach their task of deciding whether to … revoke a mandatory cancellation under section 501CA”. The principles are:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(3)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measureable [sic] risk of causing physical harm to the Australian community.
(4)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other noncitizens who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct by noncitizens who have lived in the Australian community for most of their life, or from a very young age.
(5)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non-citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation. In particular, the inherent nature of certain conduct such as family violence and the other types of conduct or suspected conduct mentioned in paragraph 8.4(2) (Expectations of the Australian Community) is so serious that even strong countervailing considerations may be insufficient in some circumstances, even if the non-citizen does not pose a measureable [sic] risk of causing physical harm to the Australian community.
Informed by the principles set out in paragraph 5.2 of Direction No 90, the decision-maker (in this case, the Tribunal – see definition of “decision-maker” paragraph 4(1) of Direction No 90) must take into account the primary considerations listed in paragraph 8 of Direction No 90, and the other considerations listed in paragraph 9 where relevant (paragraph 6 of Direction No 90).
Specifically, paragraph 8 of Direction No 90 provides:
In making a decision under section 501(1), 501(2) or 501CA(4), the following are primary considerations:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the best interests of minor children in Australia;
(4)expectations of the Australian community.
Paragraph 9 of Direction No 90 lists other considerations to be taken into account as follows:
(1)In making a decision under section 501(1), 501(2) or 501CA(4), other considerations must also be taken into account, where relevant, in accordance with the following provisions. These considerations include (but are not limited to):
a)international non-refoulement obligations;
b)extent of impediments if removed;
c)impact on victims;
d)links to the Australian community, including:
i) strength, nature and duration of ties to Australia;
ii) impact on Australian business interests.
Guidance as to how a decision-maker is to apply the considerations in
Direction No 90 can be found in paragraph 7, “[t]aking the relevant considerations into account”, which provides:(1)In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(2)Primary considerations should generally be given greater weight than the other considerations.
(3)One or more primary considerations may outweigh other primary considerations.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The Minister may revoke the Cancellation Decision if he is satisfied that the Applicant passes the character test (s 501CA(4)(b)(i) of the Migration Act).
Section 501(6)(a) of the Migration Act provides that a person does not pass the character test if they have a “substantial criminal record” as defined by s 501(7) of the Migration Act.
A person has a substantial criminal record if they have been “sentenced to a term of imprisonment of 12 months or more” (s 501(7)(c) of the Migration Act). Further, s 500(7A) of the Migration Act provides: “[f]or the purposes of the character test, if a person has been sentenced to 2 or more terms of imprisonment to be served concurrently (whether in whole or in part), the whole of each term is to be counted in working out the total of the terms”.
The Applicant has been sentenced to several terms of imprisonment of 12 months or more, including on 10 March 1988, 26 June 1991, 26 May 1994, and on 5 April 2011. More recently, on 30 January 2020, the Applicant was convicted of two counts of “unlicensed person possess firearm/ammunition”, “possess a prohibited drug” and “possession of stolen or unlawfully obtained property” for which the Applicant was sentenced to a total term of 25 months’ imprisonment, with an effective sentence of 22 months’ imprisonment. Consequently, the Applicant does not pass the character test by virtue of ss 501(6)(a) and 501(7)(c) of the Migration Act.
The Applicant concedes that he does not pass the character test (ASFIC, para [18]).
Accordingly, the Tribunal must now consider whether there is “another reason” why the Cancellation Decision should be revoked (s 501CA(4)(b)(ii) of the Migration Act).
IS THERE ANOTHER REASON WHY THE CANCELLATION DECISION SHOULD BE REVOKED?
Protection of the Australian community (paragraphs 8(1) and 8.1 of Direction No 90)
Paragraph 8.1(1) of Direction No 90 provides that:
(1)When considering protection of the Australian community, decision-makers should keep in mind that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1(2) of Direction No 90 then provides:
(2)Decision-makers should also give consideration to:
a)the nature and seriousness of the non-citizen’s conduct to date;
and
b)the risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct.
Paragraph 4(2) of the “[i]nterpretation” section of Direction No 90 provides the following definition:
(2)In this Direction, serious conduct includes behaviour or conduct of concern that does not constitute any criminal offence.
(Original emphasis.)
Nature and seriousness of the conduct (paragraphs 8.1(2)(a) and 8.1.1(1) of Direction No 90)
Paragraph 8.1.1(1) of Direction No 90 provides:
(1)In considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following:
a)without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
(i) violent and/or sexual crimes;
(ii) crimes of a violent nature against women or children, regardless of the sentence imposed;
(iii) acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b)without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
(i) causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
(ii) crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
(iii) any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
(iv) where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, , or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c)with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
d)the frequency of the non-citizen’s offending and/or whether there is any trend of increasing seriousness;
e)the cumulative effect of repeated offending;
f)whether the non-citizen has provided false or misleading information to the Department, including by not disclosing prior criminal offending;
g)whether the non-citizen has re-offended since being formally warned, or since otherwise being made aware, in writing, about the consequences of further offending in terms of the non-citizen’s migration status (noting that the absence of a warning should not be considered to be in the non-citizen's favour).
As noted above, the Applicant has committed approximately 47 driving/ traffic related offences and 62 other offences between 1983 and 2020 and has served numerous terms of imprisonment.
Offending, for the purpose of a formal risk assessment, is often categorised as general, violent or sexual. Most of the Applicant’s offences would fall within the “general” category of offending. Broadly speaking, the majority of the Applicant’s offences are offences such as weapons possession, drug possession, wilfully misleading police, refusing to supply name or providing false name and address to police, stealing, possession of stolen property, breaches of bail undertaking, unlawful damage, being on a premises without lawful excuse, threatening behaviour and certain driving offences such as unlicensed driving, which constitute “general offending”. Indeed, when the Applicant was assessed by treatment assessors at the commencement of his most recent term of imprisonment, based on his offending history he was assessed as requiring treatment for “general offending” and was enrolled in the Medium Intensity General Offending Program (R2/68). This assessment will be discussed in further detail with respect to paragraph 8.1.2 of Direction No 90.
Some of the Applicant’s offences are, however, of a more serious nature. Paragraph 8.1.1(1)(a)(i) of Direction No 90 states that violent crimes “are viewed very seriously by the Australian Government and the Australian community”. The Applicant has convictions for two counts of “unlawful wounding” in 1984. The sentencing remarks for these offences indicate that the Applicant became involved in an altercation after one of the victims made derogatory comments about his girlfriend at the time. The Applicant, who was 19 years of age at the time and had been drinking alcohol with friends at a picnic location, slashed one of the victims across the left eyebrow with a 2 inch blade pocketknife which inflicted an
8 cm laceration. He then slashed the other victim twice with the pocketknife, inflicting a
6 cm wound on the left side of the victim’s upper nose and a deep 5 cm laceration through the victim’s left eyebrow (R2/184–6). The sentencing judge, Sadleir DCJ, stated that he was “contemplating a custodial sentence in view of what [he regarded] as the seriousness of these attacks” and his Honour further described the offending as “a vicious attack with a knife” (R2/189).The Applicant was convicted of a further serious offence, namely “grievous bodily harm” in 1988 when the Applicant was 23 years of age. The Applicant and two co-accused became involved in a fight at his local pub. The victim produced a knife and then a group of persons, which included the Applicant and two co-accused, set upon the victim who suffered blindness in one eye and partial vision loss in the other (R2/174, 176). In the summing up remarks to the jury, the trial judge referred to the “degree of intoxication of one or other or all of the accused” (R2/159). Further, the sentencing Judge referred to the incident being “a good example of what can happen when people drink to the extent of getting drunk and lose their self control”. These judicial remarks indicate that it was likely that the Applicant was intoxicated. The sentencing judge also referred to “the gravity of the offence” and the offending as being “mob violence at its worst” (R2/176).
There was a break in the Applicant’s offending of approximately 11 years from 1999 until 2010. Specifically, in 2011, the Applicant was convicted of “aggravated burglary and commit offence in dwelling”, “common assault” and “deprivation of liberty”. The draft sentencing remarks indicate that on 3 January 2010, the Applicant attended the home of the female victim, purportedly to purchase drugs from her, and with a view to providing two other male persons information for the two males to later do a “run through”, a colloquial term for a quick home invasion. After visiting the victim, the Applicant told the two males that there were items of value in the house, including money and drugs, and then departed. The two males entered the house and the victim was assaulted with her hands tied with cable ties. The victim “sustained horrific injuries” (G6/54) and died several days later. Although the Applicant was not physically present for the offences, he was charged as an accessory and pleaded guilty (G6/52–4). The sentencing judge, Simmonds J, stated that the Applicant was “not directly involved and [he] had reason to think that the offending would be of the run-through kind” (G6/58). Although these offences did not involve violence by the Applicant, the consequences were extremely serious because the victim died.
On 30 January 2020, the Applicant was sentenced to a term of imprisonment for the offences of “possess a prohibited drug”, “possession of stolen or unlawfully obtained property” and two counts of “unlicensed person possess firearm/ammunition”. The Applicant had taken the items in question from two males who had parked near his home. They had attended the Applicant’s house and had spoken to his partner and asked for a pen. The Applicant stated at the hearing that he was suspicious of the men because they did not have any paper (transcript/10). He followed the men in his car, and when they stopped two streets away, the Applicant hit the driver through the open window, opened the door, dragged him out and hit him several more times when he was on the ground. The Applicant then took a rifle bag and two other bags, which collectively contained a gun, money and drugs (G5/41–2). The Applicant admitted to pulling the driver out of the car and to “belt[ing] him” (transcript/10). The Applicant’s evidence was, in summary that he was protecting his family from the men who had come to the house searching for a drug dealer who had previously lived there (transcript/10). Even though the Applicant was not charged with assaulting the driver, his conduct on that occasion is of concern because it nevertheless involved violence.
Paragraph 8.1.1(1)(a)(iii) of Direction No 90 states that acts of family violence, regardless of whether there was a conviction, or a sentence imposed, are considered to be serious by the Australian Government and the Australian community. The Tribunal has considered an allegation of family violence made against the Applicant by his sister under the primary consideration concerning family violence below. For the reasons discussed below, the Tribunal finds that it is questionable whether the Applicant sending his sister a threatening voicemail message and a threatening text message would meet the definition of family violence. Even so, there was no physical violence involved and the incident was an isolated one.
Paragraph 8.1.1(1)(a) and (b) of Direction No 90 do not limit the range of offences that can be regarded as serious. The Tribunal has often regarded driving/ traffic related offences to be of a very serious nature. Road traffic laws are in place to protect the community, including innocent road users, from harm. There is significant potential to lose control of a motor vehicle whilst driving under the influence of alcohol, or at the very least for a driver’s judgment and reflexes to be impaired. This can result in road traffic accidents, which can have very serious consequences for other innocent road users and pedestrians, including injury or death (see Senior Member Poljak in Kohli and Minister for Immigration and Border Protection [2017] AATA 1326 at [20]). Additionally, repeated breaches of road traffic laws tend to indicate a disregard for laws and authority generally, an inability to distinguish right from wrong, and a selfish disregard for the safety of innocent members of the community who share the roads (see, for example, Apire and Minister for Immigration and Border Protection [2014] AATA 193 at [16]; Bartlett and Minister for Immigration and Border Protection [2017] AATA 1561 at [43]–[45]; and MJNN and Minister for Home Affairs [2019] AATA 3205 at [55]).
As noted above, the Applicant has approximately 47 driving/ traffic related offences. There was, however, a break of approximately 18 years between July 1998 and April 2016 when the Applicant did not commit any such offences. He was, however, convicted of the deprivation of liberty offences in 2011 so he would have been in prison for approximately 20 months during that 18-year period. In April, May, July and December of 2016, the Applicant committed offences related to his having “no authority to drive”. He did so again on 8 February 2018 and 20 September 2019. The Applicant explained that he made a conscious decision to stop driving illegally when he met his partner, but that he struggled not to drive when he became his mother’s carer and needed to be in two places at once (transcript/11). Whilst offences concerning unlicensed driving are indicative of a disregard for the law and can be considered selfish and irresponsible, they are (at least in the Applicant’s circumstances) not as potentially harmful to the community as driving offences involving the use of alcohol or drugs and there is no evidence that the Applicant was driving in a dangerous or unsafe manner. For completeness, the Tribunal notes that, approximately 35 years ago, the Applicant has a conviction for drink driving, “excess 0.08%” (in 1986) and four convictions for refusing a breath test in approximately 1987, but he has not committed any offences of a similar nature since that time.
Paragraph 8.1.1(1)(c) of Direction No 90 also requires the Tribunal to have regard to the sentences imposed by the courts for a crime or crimes. In PNLB and Minister for Immigration and Border Protection [2018] AATA 162, with regard to a similar consideration under Direction No 65: Visa Refusal and Cancellation under s501 and Revocation of a Mandatory Cancellation of a Visa under s501CA (22 December 2014), Senior Member Poljak stated at [22] that: “[s]entences 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”.
The Applicant was sentenced to four-month cumulative terms of imprisonment for each count of “unlawful wounding” in 1984, three years’ imprisonment for the 1988 “grievous bodily harm” offence and a total effective sentence of 20 months’ imprisonment in 2011 for the offences of “aggravated burglary and commit offence in dwelling”, “common assault” and “deprivation of liberty”. These prison terms are indicative of the serious nature of this offending. The Applicant has also been sentenced to other terms of imprisonment, including his current term of imprisonment which commenced on 25 January 2020 (R2/77; G4/33).
The Applicant was sentenced to a term of imprisonment of one month on 15 June 1987 for “no motor drivers licence – under suspension”. He received another term of three months’ imprisonment on 22 June 1987, two terms of three months’ imprisonment on 18 March 1988, a term of three months’ imprisonment on 18 April 1988, and a term of 12 months’ imprisonment on 26 June 1991 also for “no motor drivers licence – under suspension”. He received another term of imprisonment of four months for four counts of “no motor drivers licence – under suspension” on 26 May 1994, a suspended term of imprisonment on 10 February 2017 for “no authority to drive (disqualified); 2nd or subsequent offence: no M.D.L.” and finally, a term of six months’ imprisonment on 19 February 2020 for “no authority to drive (disqualified)” to be served concurrently with sentences for related offences. The Tribunal finds that the imposition of terms of imprisonment for driving offences, which are often dealt with by way of fines and license suspensions, indicates that the sentencing magistrates regarded the repeated nature of the offending to be serious and in need of deterrence.
The Tribunal is also required to consider the frequency of the Applicant’s offending, and whether there is any trend of increasing seriousness (paragraph 8.1.1(1)(d) of Direction No 90). As noted above, the Applicant has a lengthy offending history between 1983 to 2020 of approximately 47 driving/ traffic related offences and 62 other offences. The Applicant’s driving offences involving alcohol were committed in the 1980s, and as noted above, there was an 18-year gap between 1998 and 2016 when the Applicant did not commit any driving offences. Most of the Applicant’s offending is general in nature. His violent offences are infrequent and, in some instances, by association, with two unlawful wounding offences in 1984, a grievous bodily harm offence in 1988, and the “common assault” and “deprivation of liberty” offences in 2010. He did, however, admit to assaulting the person in 2018 who had approached his family home looking for a drug dealer who used to live there and who he believed was acting suspiciously. There was also a gap in his offending of approximately 11 years between 1999 and 2010. Overall, the Applicant has a lengthy criminal history but there is no trend of increasing seriousness.
The number of the Applicant’s offences and his numerous sentences of imprisonment are likely to have burdened the resources of the police, the courts and corrective services. The Tribunal therefore finds that there is a cumulative effect of the repeated offending of the Applicant (paragraph 8.1.1(1)(e) of Direction No 90).
The Tribunal must also consider whether the Applicant provided false or misleading information to the Department, including by not disclosing prior criminal offending (paragraph 8.1.1(1)(f) of Direction No 90). There is no evidence that the Applicant has provided false or misleading information to the Department, and so this consideration is not relevant.
Paragraph 8.1.1(1)(g) of Direction No 90, requires the Tribunal to consider whether the Applicant previously received any formal or other written warnings that further offending may affect his migration status. The Tribunal notes that this subparagraph provides that the absence of a warning should not weigh in an applicant’s favour. Whilst the Applicant has not received a warning that further offending may affect his migration status, curiously, the Applicant’s mother received a letter from the Department dated 29 August 1994 (G38/174) confirming that he was not “liable for deportation”. The relevant part of the letter stated:
This letter is to confirm that I am satisfied that [the Applicant] is not liable for deportation under Section 55. The reason for this is that he had resided in Australia for more than 10 years before committing any offence which resulted in a sentence of at least 12 months’ imprisonment.
Direction No 90 does not provide any guidance as to how the Tribunal is to exercise discretion in this circumstance. On the one hand, it could weigh in favour of the Applicant because he has received an assurance that he was not liable to be removed to the United Kingdom. On the other hand, the receipt of the letter could weigh against the Applicant, who continued to offend after receiving it. Considering the principle in 8.1(1), which includes the expectation that non-citizens entering or remaining in Australia are, and have been, law abiding, the Tribunal finds that the proper construction in these circumstances is the one that weighs against him.
In summary, the Applicant has a long offending history in Australia, spanning several decades. His offences comprise both driving and criminal offences. Whilst some of the Applicant’s offences are general in nature, his offences involving violence in 1984, 1988 and 2010 are serious. The volume of his driving offences, despite an 18-year break from any driving offending, is also a cause for concern. The overall seriousness of the Applicant’s offending is further indicated by his numerous prison sentences, which seem not to have had a deterrent effect on him, particularly with respect to his unlicensed driving. Although the frequency of the Applicant’s offending and his sentences of imprisonment would have cumulatively burdened the resources of police, the courts and corrective services, there does not, however, appear to be an overall increase in the seriousness of the Applicant’s offending. Based on the analysis of each of the sub-paragraphs of paragraph 8.1.1(1) of Direction No 90 above, the Tribunal finds that the nature and seriousness of the Applicant’s conduct, weighs strongly against the revocation of the Cancellation Decision.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1(2)(b) and 8.1.2 of Direction No 90)
Paragraph 8.1.2(1) of Direction No 90 provides:
(1)In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government’s view that the Australian community’s tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
Paragraph 8.1.2(2) of Direction No 90 provides, in relation to assessing risk:
(2)In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a)the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b)the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i) information and evidence on the risk of the noncitizen re-offending; and
ii) evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since their most recent offence (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken). …
Nature of the harm (paragraphs 8.1.2(1) and 8.1.2(2)(a) of Direction No 90)
Broadly speaking, the Tribunal is required to assess the risk of harm to the Australian community if the Applicant were to engage in further criminal or other serious conduct. This firstly requires a consideration of the nature of the harm to individuals or the Australian community should the Applicant engage in further criminal or serious conduct (paragraph 8.1.2(2)(a) of Direction No 90).
The harm that could result to victims if the Applicant is to re-offend in a violent manner could include serious physical injury, impairment or even loss of life. Violent offending may also result in psychological harm to victims.
Should the Applicant commit further driving or traffic related offences, members of the public (including innocent road users and pedestrians) could also suffer physical injuries or loss of life, and possibly psychological harm. The nature of harm if the Applicant were to commit further general offences (for example drug possession, weapons possession, or property related offences such as possessing stolen property, stealing or unlawful damage) is varied and may include financial and psychological harm to members of the Australian community. However the nature of harm that results from such offending is generally less serious than the harm which results from violent offences. Although the Applicant only has approximately three convictions for drug offences, the Tribunal notes that purchasing and possessing drugs supports the illicit drug trade in the Australian community. The prevalence of drugs causes harm to the community on many levels, such as drug related crimes, including violence and theft, increases in property and health insurance premiums, as well as mental and other health issues for drug users, and the negative impact that this can have on their families.
Likelihood of engaging in further criminal or other conduct: Information and evidence on the risk of reoffending and evidence of rehabilitation (paragraphs 8.1.2(1) and 8.1.2(2)(b) of Direction No 90)
Next, the Tribunal is required to consider the likelihood of the Applicant engaging in further criminal or other serious conduct if he were permitted to remain in the Australian community, taking into account information and evidence on the risk of reoffending, and evidence of rehabilitation, giving weight to time spent in the community since the most recent offence (paragraph 8.1.2(2)(b)(i) and sub-paragraph (ii) of Direction No 90).
As noted above, the Applicant has a lengthy criminal history over approximately a 35-year period. He has served numerous sentences of imprisonment, and yet after serving terms of imprisonment, he has reoffended. This includes several sentences of imprisonment for driving related offending, including unlicensed driving, after which he continued to drive. This indicates a disregard for Australian traffic laws. Indeed, when sentencing the Applicant on 30 January 2020, O’Neal DCJ stated that “[y]ou have a substantial record of prior offending and there is good reason to think that you have entrenched attitudes about criminal offending” (G5/50). This lengthy history of repeat offending, despite the imposition of disqualifications, fines and prison sentences, tends to suggest that there is some likelihood of the Applicant reoffending in the future.
There is no report of a formal psychological assessment of the Applicant’s likelihood of re-offending before the Tribunal. However, as noted above, the Applicant’s Individual Management Plan approved on 19 February 2021 states that on 22 May 2020 the Applicant was assessed as having “treatment intervention needs” in the area of “general offending” (R2/68). The Applicant’s Parole Review Report, performed on 18 September 2020, similarly states that he was “assessed and recommended for participation in the … GENERAL OFFENDING: Medium Intensity Program” (R2/81). Although these reports did not specify any specific assessment regarding the likelihood of reoffending, it is evident that prison assessors thought that the Applicant required treatment for general offending, indicating a view that there was some risk of reoffending that required treatment intervention. The Parole Review Report also recommended that consideration of the Applicant’s parole be adjourned to allow for him to complete the Medium Intensity General Offending Program and so that a completion report for the Applicant could be received and considered (R2/83). At the hearing the Applicant confirmed that his parole review had been adjourned until the end of June pending his completion of the program (transcript/18).
On 30 April 2021, shortly before the hearing of this application, the Applicant completed the Medium Intensity General Offending Program. The completion certificate states that the applicant “completed this 132.5 Hour General Offending Program offered by the Department of Justice” (A2/1). Unfortunately, the completion report from the program’s facilitators was not available at the time of the hearing of this application. In a written statement dated 25 May 2021, the Applicant described what he had learnt from undertaking the program, including how he would have approached the situation that led to the offences he is currently serving a term of imprisonment for differently (A2/2, paras [2]–[6]; see also transcript/13):
The course went on for about 5 months. The main gist was being aware of how I’m feeling and why I do things, and creating alternative ways of dealing with things. With me, my focus was antisocial behaviour and emotional management. I think I did well. I found other ways of looking at the situation and stepping back from it and dealing with it the right way. I learnt about consequential thinking and things like this. For example, if I did this, what would happen? What would the impact be my partner and kids? This course shone a light on how there are different ways of doing it and that the choices I have made in the past are wrong. We looked at these sort of things from a lot of different angles but it all came back to the same thing - processing the situation and making better choices.
Before I started the program I was sceptical of what it would teach me. Even at the start I wasn’t too sure how it would help me. Once I got a little way into it my whole attitude changed. I think by the end I was even one of the facilitators favourite students. I found it so useful and informative. I understand myself far better now and also why I offend.
For example, for the offences I’m currently in prison for, knowing what I know now, I wouldn’t have even moved into the house because we kicked a drug dealer out for my friend and then we moved in. That was a bad move from the start. That was putting my family into a dangerous situation. I wouldn’t do that again because I would look forward and see the potential consequences.
The actual incident when they came to the house, I would have tried to talk him out of it and said I would call the cops. When they drove off and threatened us and I saw them, I should have just drove past and called the police, but at the time I was my mother’s carer and trying to live a normal life. I couldn’t think clearly because there was some friction with my partner, and my daughter had just rocked up who was a drug addict. I was angry, frustrated and at that time I was against drug dealers because of my daughter.
If one thing was different about the situation, for example if my daughter hadn’t just re-entered my life, I think I would have dealt with the situation differently. I loathe drug dealers, but at that time I hated them even more. My daughter was doing unspeakable things for drugs, so I was very angry and my hatred for drug dealers was at an all-time high. I know what I did wasn’t right and I’m so sorry that I took things into my own hands instead of calling the police like I should have. I have learned from it and won’t let it happen ever again.
(Paragraph numbers omitted.)
The Tribunal finds that the Applicant’s insight about what he learnt in the program and how he would have done things differently indicates that he made some gains with respect to his consequential thinking as a result of completing the program. It is unfortunate that the completion report is not available so that the Tribunal could see how the program’s facilitators viewed the Applicant’s performance and any treatment gains that he may have made in the program and their impact on the likelihood of his reoffending.
When sentencing the Applicant on 30 January 2020, O’Neal DCJ referred to the Applicant’s “complete lack of remorse” (G5/50). Expressing remorse can be indicative that an applicant accepts responsibility for his or her offending (JFSQ and Minister for Home Affairs [2019] AATA 616 at [65] cited in Subasinghe and Minister for Home Affairs [2019] AATA 751), which may in turn be a factor that lowers the likelihood of reoffending. The evidence currently before the Tribunal suggests that the Applicant has gained insight into the impact of his offending and that he is remorseful. For example, in a written statement dated 15 February 2020, the Applicant stated (G9/88, para [31]):
I believe the recent offences happened because I felt protective of my family and threatened by the two men, particularly the one who had threatened me. In the heat of the moment I thought I was protecting my family. The second altercation I could have handled better. In hindsight I should have just seen them on the side of the road, gone back to [the Applicant’s partner] and told her to lock the doors and call the cops. I’m regretful for how I behaved. I’m remorseful as I could have handled it better.
In the Applicant’s parole plan, under the heading, “My victim/s”, he stated (G35/159):
I am currently incarcerated for possession. I believed that I was doing the right thing at the time but now see that I contributed to a negative cycle that existed in the community. I could have called the police at the time instead of taking the matter into my own hands. I’m very remorseful for this as I have let down the community, police, my family and myself.
In a subsequent written statement dated 25 May 2021 (A2/2, paras [7]-[9]), the Applicant stated:
In relation to the offences I’m currently imprisoned for, I only pleaded not guilty to the offence I was found not guilty of by the jury – possession with intent to sell and supply. I pleaded guilty to all the offences I was convicted of and accept responsibility for all of those offences. Because I hate drugs so much I could not plead guilty to intent to sell and supply as I was never going to do that.
I never thought I was a victim. I’ve never tried to portray myself as a victim. I’m honestly remorseful for my actions because of the impact they have had on my family.
Since I have been with [the Applicant’s partner], I have been in prison twice. The convictions from 2011 were horrific. I will never get over what happened to my friend. It messes with me even today. I can never say how sorry I am for what happened.
(Paragraph numbers omitted.)
In relation to the 2010 deprivation of liberty offence, the Applicant further stated (G9/87, paras [16]–[17]):
I pleaded guilty as soon as I had the opportunity and I still feel terrible about what happened to the victim. I was sentenced to serve 20 months’ imprisonment from 14 October 2010.
I had no idea that that was going to happen. I pleaded guilty because I knew the guys did it, and I gave them information before they went into the house. I never really got over this – someone died. I often wonder what would have happened if I had not talked to those guys or if I had given different information – maybe it would not have happened. I had no idea what they were planning to do. This is always in the back of my mind and I don’t think I’ll ever get over it.
The Applicant appeared to the Tribunal to be genuinely distressed and remorseful about this offence when giving evidence about it at the hearing (transcript/9). Further, the evidence of his partner in her written statement dated 11 December 2020 was that the Applicant feels guilt about his offending and appreciates the negative impact that it has had on his family (G12/109, para [12]):
[The Applicant] feels extremely guilty about what his offending behaviour has done to our family. The 2011 offences in particular he feels very remorseful. It was his friend that was killed. Many many times he has been in tears over what happened. This still happens.
In another written statement dated 27 April 2021, the Applicant’s partner described how he “broke down and cried” when he found out that the victim of the 2010 deprivation of liberty and assault offences had died. She further stated (A1/6, para [18]):
We had months of tears and he was a shell of a man. [The Applicant] does not cry easily but this went on for months. He started seeing a psychologist in the city and it was the first person who was able to get him to open up. This is the only time he has seen a psychologist.
At the hearing the Applicant described the impact of his offending on the community and his family and stated his resolve not to reoffend (transcript/19):
I’ve had a look at my record. It’s long. It’s a little bit ashamed about it, embarrassed about it. I can’t – I don’t know. I don’t feel good at all about it. I know I’ve let a lot of people down, including my ex-missus and my daughters with her. I’ve let them down. Even the community – even the community have got to be wondering who is this guy, so I feel for them. I even feel for the police that had to deal with me. I really feel for my – my missus and my kids now that I’m with now. My mum I really feel for. I can’t change my record. It’s done, but what I can change is my future actions. How I can be with them. Be a better member of a community. Look after my missus and my kids better. They deserve a lot better. So does the community. I’ve learned other ways so I can deal with things better. I really feel for my mum. She doesn’t know none of this. It’s been me and my – my mum for a long time. She’s in very ill health.
With respect to his driving offences, the Applicant’s partner stated in her written statement dated 11 December 2020 (G12/109, para [17]):
[The Applicant] will not reoffend. The driving related offence will not occur. We have deregistered and sold all the vehicles and I have even bought him a bicycle to ride. He knows that this is his last chance so he won’t mess it up. He knows that his offending cannot happen again so he will not engage in any violent behaviour regardless of the circumstances.
It is of some concern to the Tribunal that the Applicant’s partner, as she confirmed in her evidence at the hearing, knew that he was driving when he was a carer for his mother, despite not having a licence and having served terms of imprisonment for unlicensed driving. When asked about this she stated that (transcript/37–8):
You have to understand he was under so much pressure. He was trying to take care of his mum, take her place, and he was trying to look after me. He was just under so much pressure. He really was. …
It won’t be happening, I can tell – any vehicle that he had has been deregistered and gone. He has a brand new, sparkly pushbike sitting at home waiting for him.
The Applicant was, however, able to show some insight into his driving offences and demonstrated consequential thinking when asked about these offences at the hearing
(transcript/28–9):
MS ANGEL:In regards to the driving offences, Mr Burgess took you through whether or not it was important for you to look after your mother and why, you know, your disregard and continuing to drive didn’t show that. You mentioned that you were under pressure, at the time. Can you please elaborate a bit more on what those pressures were?
APPLICANT: I was looking after my mum, trying to look after my daughter, trying to look after my missus and other kids. I was just – my missus was trying to keep the house together as better she could. She was part time working and there was just no one for me. I had no backup. No backup whatsoever. I had nothing. I – I just drove. In my own head, because of necessity, I had so much going on. I had to report to the cop shop every second day. Doctors appointments. All sorts of things. And I’ve got to tell you, I drove my mum to one doctors appointment because there was just no other way. I just had no help at the time. That’s different this time around. And as for reoffending driving, anything that’s – was licensed, I’ve got rid of. Bikes, cars, anything. My niece has taken over the job of taking care of my mother. So I don’t have that pressure. So that’s why I can go back to work. My daughters have got licenses, which is not bad because since her dad can never get one, that’s good. Ubers are that cheap these days. My boss picks me up, drops me off. So there just is no excuse for driving this time round. I’m under no pressure whatsoever. That’s all I can say about that. And it wasn’t disregard of – for the law. I just wasn’t right in the head. Just through consequences of these now, what can happen. This is one huge wake up call. A huge wake up call. Yes. I just can’t see me driving ever again, that’s for sure. Yes. The whole thing has been – brought me down to Earth in a big way.
Based on the evidence before it, the Tribunal finds that he Applicant appreciates the impact of his offending and incarceration and the emotional, financial and also physical strain it has put on his family, particularly on his partner and 15-year-old daughter, A (see G9/88, para [33]; G9/89–90, paras [49]–[50]). In his written statement dated 25 May 2021, the Applicant stated (A2/4, paras [18]–[19]):
As I’ve gotten older I now realise there are bigger consequences not just for me but for everyone around me including the people I love more than anything.
Even though I’m 56, this time in prison I’ve done a lot of growing up. I’ve watched my mum grow older and my family struggle without me. At this stage in my life, I feel different. Life is too short and this is getting too hard. My family are everything to me and I’m too old to be doing this and to be putting my family through this. My poor partner! She deserves a fair bit better than what I’m giving her. I know I won’t reoffend because her and my girls are the ones that ultimately suffer. If I’m removed, they will be the ones punished. That is a real wake up call.
(Paragraph numbers omitted.)
With respect to his daughter, A, the Applicant stated (A2/5, para [35]–[36]):
There is just no way that I will be able to provide [A] with a positive father role model she needs by electronic communication. While I have been in prison she has struggled, and we are still able to have weekly physical visits. There is just no way I can be there for her the way she clearly needs if I am on the other side of the world.
I’m so worried about my little girl and she has not done anything to deserve this. I know I will not reoffend because I would never want to jeopardise my future here with her. She will also need me into her adult years, but right now, my child needs me.
(Paragraph numbers omitted.)
In a written statement dated 27 April 2021, A stated (A1/3, para [18]–[20]):
I can see that dad feels very remorseful for the situation we are in. He hates that I am at home alone and that mum has to work all the time. He hates that he cannot do anything about it and he feels sorry that his actions lead us here.
My dad will not reoffend, especially after all of this. Watching my mum, sister and me struggle every day. He never wants to put any of us through this again. He knows that this is his last chance to be in Australia with his family who need him so incredibly much.
I would be so disappointed, hurt and betrayed if he ever offended again. I would be so angry. I do not believe he will though because he knows we would all feel like this, and he would never want to put us through this again. I do not think he poses any risk to the Australian community. He knows that he cannot keep doing what he was doing. The man’s getting old, and he is changing his ways.
(Paragraph numbers omitted.)
The Applicant was not aware that he could face removal from Australia as a result of his offending, due to the letter from the Department confirming that he could not be deported (G9/88, para [28]). The Applicant’s partner described the cancellation of the Applicant’s visa as being a wakeup call (A1/7, para [24]):
[The Applicant] has various other convictions which he has taken full responsibility for. He knows that his behaviour in the past has been very wrong. The wake-up call of his revocation request being refused and him being in prison facing deportation makes me confident that he has definitely moved on from these sorts of behaviours.
The Respondent submitted that the Applicant had not taken responsibility for some of his offending as indicated by the Applicant seeking to minimise the two “unlawful wounding” offences in 1984 (transcript/59). In a recent statement dated 15 December 2020 (G9/87, para [23]), the Applicant stated that three men (including the two victims) had kicked his pregnant partner to the ground. However, the original handwritten statement dated 29 January 1984 described the victims making derogatory and abusive comments towards the Applicant’s girlfriend and kicking his dog but did not refer to the victims kicking his girlfriend (R2/193-194). The Applicant, under cross-examination, denied writing the handwritten statement himself, stating that the police had written it. He agreed that he had signed the statement but stated that he did so after coercion by police. He agreed that he pled guilty and did not raise the issue of coercion in court (transcript/21-23). Overall, whilst reference to his girlfriend being kicked was not in the handwritten statement, the Applicant accepted that he committed these offences and that he had slashed the two victims faces. That is, he did not seek to minimise the other key aspects of the offences. There are several possible explanations for the discrepancy between the statements regarding his girlfriend being kicked. The omission from the handwritten statement about the Applicant’s girlfriend being kicked could indicate that it did not happen, and that the Applicant is now seeking to revise the facts to present himself to the Tribunal more favourably. Alternately, if the Applicant did not write the statement himself his girlfriend may have been kicked but, for some reason that fact was not included in the original handwritten statement. Another alternative is that the Applicant may now have a different recollection of the incident due to the passage of time, given that the “unlawful wounding” offences occurred in 1984, some 37 years ago. The Tribunal’s overall impression about the Applicant was that he was frank about his offending and that he accepted responsibility for it. If the Applicant was trying to present himself to the Tribunal in a more favourable light, it is more likely that he would have sought to minimise the 2010 “deprivation of liberty” offences which led to the death of the victim, or the offences he is currently imprisoned for.
A further example emerged during cross-examination with respect to the “grievous bodily harm” offence in 1988. This was that although the Applicant stated in his written statement that he had “belted” the victim to the ground (G9/87, para [21]), he did not mention chasing after the victim. The Applicant did, however, admit that he chased the victim when it was put to him under cross-examination (transcript/23).
Overall, the Applicant accepted responsibility for his offending, he did not seek to minimise his offending or to present himself more favourably than the facts of the offending suggested. The Tribunal finds that the weight of the evidence demonstrates that that the Applicant is genuinely remorseful for his offending, that he appreciates the negative impact that his incarceration and potential deportation has had on his family, and particularly his partner and 15-year-old daughter, A. He is also fearful that he will not see his elderly mother again (G9/87, para [13]). This insight is likely to motivate the Applicant not to reoffend. The Tribunal also finds that following confirmation from the Department that his Visa would not be cancelled, the cancellation of his Visa and the potential to be permanently removed from his family in Australia to a country that he has never been to has been a shock to him, which will provide further motivation for him not to reoffend.
As discussed above, alcohol was noted to have been a factor in the Applicant’s two “unlawful wounding” convictions in 1984 and his grievous bodily harm conviction in 1988. At the hearing, the Applicant explained that he stopped using drugs approximately 10 years ago and that, following his doctor’s advice, he had also stopped drinking when he turned 50 due to his heart condition (transcript/13–14):
MS ANGEL:So drugs and alcohol have been a factor in your offending in the past. Do you still use drugs and alcohol?
APPLICANT: No.
MS ANGEL: No?
APPLICANT: No.
MS ANGEL: So when did you stop using drugs and why?
APPLICANT: Roughly just over a decade ago. My partner was a big part in that because she doesn’t use drugs. [A] was born and it was time to start peeling back off it – get off the drugs. It was the money situation. Quality time with your missus and your kids. You miss that on drugs. You – you don’t do the right things on drugs. You don’t – even though you’re with your kids, you’re not with your kids, in the head. And it wasn’t fair, your Honour. Yes. A lot of things like that. Just – yes. And it doesn’t lead anywhere, yes. Drugs are with a certain crowd of people and that’s just not me at this age. And not my missus especially. So yes. It was a done deal to let that go. It took a few years to get off it. I – it has been a – over a solid decade.
MS ANGEL: Yes. So when did you stop – stop drinking alcohol and why?
APPLICANT: That was around my 50th birthday. Basically, I stopped drugs but, you know, I still had one vice and that was alcohol and sometimes I would drink a lot. That become a big problem with my health. I ended up lethargic, on the couch for a long – you know, week – a few weeks at the time. I was very lethargic. So I basically went to the doctors. My heart was working on, like, 25 per cent, basically. And he says, “The problem is alcohol, the alcohol is doing it. If you do not stop, it’s going to kill you.” And I’m currently on medication now, for life. I’m on the advanced heart failure clinic – I’m on the list to go there to find out if there’s an underlying problem. So, yes. That was a no brainer to stop that.
MS ANGEL:… So what’s your main motivation to never use drugs or alcohol again?
APPLICANT: Well, one way or another it has got me here. It’s very antisocial. I’ve got my missus, my kids, the money side of it. They deserve better quality of life. They should expect better of me. I’ve got my mum, of course. I’m her only son, now. Her good one died about two years ago as well. He died of a brain tumour as well as my dad. Motivations is there – to be there for my missus, kids, my mum.
Curiously, the Applicant’s current term of imprisonment includes a term of imprisonment for drug (methylamphetamine) possession, which he acquired when he took the bags containing the drugs, money and weapons from the car of the two men acting suspiciously near his family home. When sentencing the Applicant, the Judge noted that the jury accepted the Applicant’s evidence that he had a negative view about methylamphetamine because members of his immediate family had been harmed by it (G5/40, 42). The Tribunal also notes the Applicant’s evidence in his written statement (G9/87) in relation to these offences that, “I have nothing to do with methamphetamine and I hate it – its effect on my family and on the community”. At the hearing, the Applicant also gave evidence about the devastating effects of his adult daughter’s methylamphetamine addiction, which contributed to his reaction to the two men who he believed to be drug dealers (transcript/11):
… my daughter rocked up. She was a drug addict. She was doing really unspeakable things for drugs and that breaks a father’s heart. It’s just really hard, you know. I wasn’t thinking straight. If my daughter wasn’t in this equation I probably wouldn’t have pulled over the second time and smacked those pricks, but drug dealers were not my favourite people at the time. Just were not. I hate them. They cause 80 per cent of the violence and crime in society today. Not that I'm much better I belted them. Like, I don’t know, I was just under a lot of pressure.
The Applicant’s partner also stated (A1/5, para [9]):
[The Applicant] has generally been successful in ceasing all illicit drug use, although I am aware that he does have the occasional relapse, where he will start using drugs again for a period of around one week. He has been able to work through all of these with the support of me and our family. In particular, I do not tolerate illicit drug use. [The Applicant] has not used any drugs in around a decade. He hates what it has done to our family and the impact it has on the community. He will never use drugs again, I know this for certain.
With regard to the likelihood of the Applicant engaging in further criminal or other serious conduct, the Respondent referred to the Applicant’s 2011 conviction for the 2010 offences including deprivation of liberty, when he had attended the victim’s house to purchase drugs (before providing the information about valuables in the property to the two co-offenders), as well as his 2006 offence relating to cannabis cultivation (RSFIC, para [37.4]). However, the purchase of drugs in 2010 is consistent with the evidence of the Applicant and his partner that he ceased drug use approximately 10 years ago. Additionally, while the Applicant was not asked about his 2006 cannabis offence, it was within the period before the Applicant said he ceased using drugs. Based on this evidence, the Tribunal accepts that the Applicant has ceased using drugs and alcohol and that he is highly motivated to continue his abstinence. This is likely to reduce the likelihood of his reoffending in the future.
Both the Applicant’s Individual Management Plan and Parole Review Report refer to his good prison behaviour. The Individual Management Plan states that the Applicant “is a well behaved prisoner who has no adverse reports and is not a management issue” (R2/67). The Parole Review Report states that the Applicant “is always polite and respectful” towards staff and other prisoners (R2/81). It states that he works as a cleaner and that:
He has an excellent work ethic and attendance record. [The Applicant] is an energetic worker who completes his tasks very quickly whilst maintaining a high standard and with minimal supervision. He often completes additional tasks when required and with no issues. [The Applicant] follows the rules and instructions with no issues and he appears to interact well with the other workers.
The Applicant’s good behaviour in prison is to his credit. However, prison is a controlled environment and the Applicant has been in prison since January 2020 and so any changes in his behaviour have not been tested in the community.
The Applicant has confirmed employment with a landscaping business upon his release from prison (G31/134). His partner has also set up a food business that he may also be able to assist with upon his release into the community (A1/10, para [41]). In his written statement dated 15 December 2020, the Applicant stated that a friend had invited him to become involved in a football club by being a fitness coach. The Applicant also stated that he would also like to continue with his boxing coaching (G9/89, para [40]). Employment and engagement with football and boxing activities would be a meaningful and productive use of the Applicant’s time which may also reduce the likelihood of his reoffending.
The Applicant has strong support from his partner, sisters in law M and C, and his daughter A, each of whom gave evidence at the hearing. He has many family friends who have submitted statements and letters of support (G25/128; G26/129; G27/130; G28/131; G29/132; G30/133; G31/134; A1/14–15; A1/16–18; A1/25–6). Having this support may assist the Applicant to reintegrate into the community and to not reoffend, although the Applicant did have this support at the time he committed offences. Indeed, the Applicant has served two sentences of imprisonment (in 2011 and his current prison sentence) in the time that he has lived with his partner (transcript/36).
After considering the evidence discussed above regarding the likelihood of the Applicant reoffending, the Tribunal is of the opinion that the Applicant’s likelihood of reoffending is in the low to moderate range. Whilst there are some factors that weigh against the Applicant, such as his lengthy criminal history, his repeated offending despite terms of imprisonment and the fact that he has had family support in the past and yet has reoffended, the evidence overall suggests that there is a low to moderate likelihood of the Applicant reoffending. The evidence which indicates this level of risk of the Applicant reoffending includes:
(a)the gap of approximately 18 years between 1998 and 2016 in his driving/ traffic related offending, and the gap in his criminal offending of approximately 11 years between 1999 and 2010, which both indicate that the Applicant is capable of living in the community without offending;
(b)his remorse for his offending, which the Tribunal finds to be genuine, and his insight into his offending behaviour;
(c)his appreciation for the detriment that his partner and 15-year-old daughter, A, have suffered physically, financially and emotionally whilst he has been imprisoned;
(d)the prospect of permanent separation from friends and family in Australia, particularly his partner and A, as well as from other family members including his elderly mother, stepdaughter, L, his niece and nephews and friends in Australia;
(e)the strong support the Applicant has from family and friends in the community. Whilst the Applicant previously had this support and nevertheless reoffended, he now appreciates the detrimental impact that his offending has had on them and the extent to which they rely on him physically, financially and emotionally;
(f)the shock at the cancellation of his Visa when his mother was previously advised by the Department that he could not face deportation and the prospect of being permanently removed from Australia to a country that he has never been to and where he has no friends or family;
(g)his completion of the Medium Intensity General Offending Program in prison and his ability to articulate the treatment gains he made in the program, notwithstanding the absence of a completion report from program facilitators;
(h)his good prison behaviour during his most recent term of imprisonment;
(i)the Applicant’s abstinence from drugs for approximately 10 years and alcohol for approximately six years, noting that drug and alcohol use were both a factor in his earlier offending; and
(j)his plan for release into the community, which includes confirmed employment in a landscaping business, involvement in community activities, such as boxing and fitness coaching for a local football club, as well as stable accommodation with his partner and his 15-year-old daughter, A.
The Applicant’s 88-year-old mother suffers from health issues and has been unable to visit the Applicant in prison. She is not aware that the Applicant is facing permanent removal from Australia. In his written statement, the Applicant stated (G9/89):
I’m very worried about my mum. I’m her carer and I want to be able to see her again before she dies. Her last son died eight or nine years ago. She has two daughters – one who lives in Albany and who visits her about once per year, and the other who has not spoken to her in ten years. I am the only son my mother has left and the only one who can properly care for her.
Mum is 90 years old and has a long list of health conditions and associated medications. She is unwell and needs me as carer. Mum was in hospital once for a heart attack, and again for a check up and blood transfusion since I have been in prison. My niece is looking after her and my daughters visit as well, but its not a long-term solution for her care. Mum is not well enough to visit me in prison and I am genuinely afraid I will not see her again before she dies.
If she knew I was facing removal she would probably give up so no one has told her. She thinks I will be coming home on Christmas Eve.
(Paragraph numbers omitted.)
Further, the Applicant’s partner stated (A1/7, para [26]):
[The Applicant]’s mother is still alive however her health is declining. She is unable to visit him in prison due to her health so there is no way she could leave Australia to see him. As discussed in previous statements, [the Applicant] was his mother’s full-time carer before he went to prison. He showered her, wiped her backside, prepared meals and pills, sat with her when she would have anxiety attacks, did housework for her, and pretty much everything else. Her granddaughter is looking after her now and is able to continue being her carer but [the Applicant]’s mother needs her son to be there for other emotional support.
The Applicant’s sister in law, M, described how he cared for his elderly mother (A1/22):
I had always admired the fact that [the Applicant] became the full-time carer of his elderly mother and does this without the support of majority of his own biological family. Prior to his incarceration, [the Applicant] cooked for her, kept the house clean and attended to her personal care needs including liaising with medical professionals on a weekly basis. [The Applicant] also supported my dad when he had lung cancer and did this willingly. [The Applicant] cares so deeply for our family and is somebody we can rely on.
The Applicant also had a brother who died approximately nine years ago. One of his sisters does not speak to his mother. The other lives outside of the Perth metropolitan area and only visits approximately once per year. The Applicant’s niece is currently helping to care for his mother. However, the Applicant is the only one of his siblings who helps to care for her. A close family friend, P, confirmed in a written statement that the Applicant was the main support for his mother (A1/25):
He has cared extensively for his elderly mother and generously gave of [sic] his time daily to look after him mum in her own home. He cooked, cleaned the house, looked after her daily hygiene needs and took her to medical appointments. He has done this graciously without any support from his siblings. This is something I greatly admire about [the Applicant] and qualities of someone who is of good character.
The Tribunal finds that if the Applicant was removed from Australia it is likely that his mother would suffer emotional detriment because she would likely never see her son again. Given the Applicant’s role as her carer prior to his imprisonment, she is also likely to suffer practically because she would lose his physical support and assistance.
As noted above, under the primary consideration of the best interests of minor children, the Applicant’s 15-year-old daughter, A, is struggling emotionally while he has been in prison. She has become withdrawn, has lost weight, refused to go to school and has suffered mental health issues which have resulted in her self-harming. In a written statement, A wrote (A1/2–3, paras [14]–[16]):
I would not be able to cope at all if my dad could not stay. It would feel like everything has been taken away from me. I already have issues struggling mentally and it would deteriorate even more. I do not think I could handle losing my father as well. It would make me feel more alone than I have ever felt in my life and the burden of having everyone suffer working to support me. I feel guilty about what people are doing to help me.
Even though he is trying his best, my dad cannot be there for me the way I need support from him while he is in prison. It is nothing like it would be if he were home. Having our entire relationship based on phone calls and Facetime will not be sufficient to maintain our connection. I need him here with me.
I have been diagnosed with depression before in year 7 and I still feel like that but a lot worse. My dad is the one person I want to talk to and be with to get through all of this and he’s not here. If he never comes home, I do not know what I would do. I need him. My mum needs him. Everyone needs him here in Australia with his family.
(Paragraph numbers omitted.)
It was clear from the evidence of the Applicant’s partner that she is extremely concerned about A’s mental state and the impact on A if the Applicant is removed from Australia (see transcript/33; A1/9, para [33]). It was also apparent from A’s evidence in her written statement and at the hearing that her father’s absence has had a detrimental impact on her mental health and that she was distressed at the prospect that he may be permanently removed from Australia (transcript/39–40). The Tribunal finds that the Applicant’s daughter, A, will suffer emotional and financial detriment if the Applicant is removed from Australia and that her mental health may further decline.
The Applicant’s adult daughters, J and AS, struggle with drug addiction and the Applicant has provided them with support and assistance to help their recovery attempts (transcript/35). In a written statement dated 26 November 2020 (G22/125), J wrote:
I don’t really know how to put into words how my dad has supported me and my sister throughout the years because that kind of support is impossible to paint a clear picture of.
Growing up I cared for my baby sister [AS] and thought [sic] hard times we leant on each other and the comfort of drugs to help us through any challenge we faced. My dad offered countless support but we never wanted to quit so we never took to help. As we got older we realised that our dad had been a rock to us and that it was finally time to accept his help.
Being with my dad again was a feeling I can’t describe. I felt loved and nurtured. He fought countless nights during my detox. Detoxes that could be violent and draining, but he never left my side. My little sister and I were never made to feel judged or unwanted. My dad fought tooth and nail to help us become the women that I knew we could be.
Many things challenge these recovery attempts. Toxic friends, toxic boyfriends and at times toxic family but no matter what we threw at my dad he was there.
2 years ago I moved in with dad and his partner [C] and it was the best I had ever been, I gained weight, got closer with my youngest sisters and even got a job. Sadly I returned [interstate] and that Toxic environment but my dad never stopped fighting for me, but I was an adult and I had made the wrong choices in the past that caught up with me. To this day the thought of my dad has pushed me to keep up with my recovery. To help my baby sister kick her addiction and to be a better person. It’s hard and I sometimes fail but I never give up because I know my dad loves me.
I need my dad, we all need my dad. I couldn’t even imagine what would happen to me if he was sent to England. I probably wouldn’t survive. Please don’t take a father away from his daughters especially daughters who need him for our own survival.
In her written statement dated 27 April 2021, the Applicant’s partner stated that J had now relapsed to substance abuse. The Applicant’s partner stated (A1/8, para [29]):
[J] and [AS] live [interstate] with their mother. They both have battled substance addiction and with their father’s help they have been able to spend extended periods clean. When [J] went back to [interstate] she was clean. Since being back there she is back on drugs. She attempted rehab but this was too hard without [the Applicant’s] support. I think she might even be in jail now. She is a beautiful child who needs help, and her father is the only one that can do it. If [the Applicant] is permitted to stay in Australia, he stands to have a profoundly positive impact in aiding her to stay off drugs.
In his written statement dated 15 December 2020 (G9/90), the Applicant stated:
I managed to get her [J] off meth and she was doing really well until I was charged with these offences. She then went back over east to her boyfriend who has since beaten her up. She is now in rehab to get away from him.
If I am released into the Australian community [J] will return to living with [the Applicant’s partner] and I and we will keep her away from drugs and negative influences. Without me in Australia to help her I have serious concerns about [J’s] ability to break her drug addiction. It breaks my heart to think of the things she would be going [sic] to get drugs and to know that I can’t help her from in here or from overseas.
The effect on [J] if I am unable to remain in Australia will be devastating.
The Tribunal accepts that the Applicant has been the primary support person in assisting his daughters, particularly J, with their drug addictions. He has provided them with emotional and physical support to help them recover. The Tribunal finds that if the Applicant is removed from Australia, it would have a negative impact on his adult daughters, J and AS, and his removal would detrimentally impact their ability recover from drug addiction.
The Applicant’s partner has a daughter, L, from a previous relationship, whom the Applicant has raised as his own daughter since she was approximately three years old (transcript/15). The Applicant’s partner described his relationship with L (A1/8, para [30]) as follows:
[The Applicant] has raised [L] as his own daughter. She was three when we got together. Her dad had schizophrenia and the reality was he was often violent. [The Applicant] saved me from a violent relationship. If it were not for [the Applicant], I would probably have been dead. When [L] was four her father moved [interstate], so their contact became very limited. He was not in her life, but I never stopped him from seeing her. When she was 16, he passed away from a heart attack. [L] looks up to [the Applicant] and has a normal father-daughter relationship with him. Just because she is an adult does not mean she does not need her father close by to support her.
L’s fiancée also wrote a letter stating how supportive the Applicant had been of L and himself, including providing them both with accommodation when they were struggling to find work and assisting them with rent (G23/126; see also A1/12–13). L’s fiancée stated that, “even though [L] was not [the Applicant’s] biological daughter he wanted nothing but the best for her and now myself included”. He further wrote that:
After nearly 4 years of being a part of this family I can take away with 100% knowledge of the fact that [the Applicant] would move mountains for his family, mainly his Partner [name omitted] and his daughters. The love I saw him show them all with this something I can only aspire to do when I myself become a father.
I do believe that to remove [the Applicant] from his family would cause pain and suffering that unfortunately a lot of them have faced before, his family depend on him not only financially but also in a way that can only be seen to be believed.
I am proud to call [the Applicant] my role model and my father in law and I hope that speaks for itself.
Accordingly, the Tribunal finds that there is likely to be some negative emotional impact on L if the Applicant, who raised her as a father, is deported.
As noted above, the Applicant is close to his sisters in law, M and C, who gave evidence in support of him at the hearing. M gave evidence that approximately six years ago the Applicant helped her, and the children, escape an abusive relationship with the children’s father, and provided them with accommodation until she was financially able to support herself and the children. M described the Applicant as “a father figure and somebody I depend on” (A1/22-23; para [7]). Both spoke of him as being a loving and involved uncle to their children. M gave evidence that the Applicant was a positive male role model for her sons CP and LP who “look up to him and enjoy spending time with him” (A1/23, para [10]). The Applicant is also close to his other nephews, R, T and Z. Approximately two years ago R came to live with the Applicant and his partner for approximately one year while the child’s mother was struggling with drug abuse (transcript/18). The Applicant’s sister in law, C, gave evidence that R is very close to the Applicant, that he enjoys visiting the Applicant and that he talks about the Applicant frequently (transcript/49). The Applicant’s sister in law, M, also has a young daughter, AM, who was born during the Applicant’s most recent term of imprisonment and so he has not been able to spend any time in the community with her (A1/24, para [15]). The Tribunal finds that if the Applicant is removed from Australia, his nephews in particular may suffer emotional detriment if they are unable to have their uncle personally involved in their lives.
It is evident that the Applicant’s family ties to Australia are very strong. All the Applicant’s immediate family reside in Australia. The evidence given by various family members, including the evidence outlined above, indicates that he is loved and respected by his family members as a loving partner, father, brother-in-law and uncle, and that his family members rely on him for support.
As outlined above, the Applicant has resided in Australia for 52 years, since he was a four-year-old child, and has never travelled outside Australia. He faces being returned to a country that he was not born in and that he has never visited. As the Applicant arrived as a four-year-old child, it cannot be concluded that he started offending shortly after arriving in Australia.
As well as having strong family ties to Australia, the Applicant also has significant social ties to the community, as evidenced by the many family friends who have submitted statements and letters of support (G25/128; G26/129; G27/130; G28/131; G29/132; G30/133; G31/134; A1/14–15; A1/16–18; A1/25–6).
For example, a letter from D, who is the cousin of the Applicant’s stepdaughter, L, described how the Applicant helped him to make positive choices in his life when he had started to take drugs (G29/132):
… I found myself going down the same road as my father and turning to drugs such as pot and meth to try and cope with all the pain a [sic] grief I was dealing with. I had finally had enough and sought out help from [the Applicant]. He taught me the importance of working out, he taught me how to channel my anger into hard exercise and other productive outlets such as art, skateboarding, golf and basketball instead of turning to drugs. He sat and listened to my pain on numerous occasions and each time offered me advice that I still hold onto today.
D also described the positive influence the Applicant had on L after her father died (G29/132):
Although my dad is better now and finally able to be the man I needed him to be, I could never thank [the Applicant] enough for being the dad I needed then. He not only helped me but I watched as he built my cousin [L] up after losing her dad. Instead of shying away to let [L’s] mother try and fix it he took it upon himself to make sure [L] never goes a day without realising how much her biological dad loved her, my cousin has grown into a person I know she is proud of because of [the Applicant].
[The Applicant] never had to take the time to love me or help care for me during my time of grief, but he did, and he didn’t even hesitate. Losing him would be crushing. His family especially his partner and daughters would lose themselves if they lost him and so would I.
The Applicant has positively contributed to the community through being a boxing trainer and running a boxing gym (G9/90; transcript/17). He stated in his personal circumstances form that he would teach “street kids” and “underprivileged kids” free of charge (G8/81). The Applicant has made contributions to the community through his employment, primarily in roles involving manual labour (A1/9, para [37]), as well as by caring for his elderly mother. His personal circumstances form stated that the Applicant had undertaken volunteer work for homeless shelters and a disability association in his local community, however the extent and duration of his involvement with these organisations is unclear (G8/81).
A friend, K, said in a statement dated 1 July 2020 (G27/130):
I began to spend more time with [the Applicant] where he became my boxing coach to teach my discipline and technique. I would spend 2 hours training with him, 6 days a week and often my fiancé and I would join him, his wife [the Applicant’s partner] and daughter [A] for dinner at his house afterwards. [The Applicant] invested so much time in guiding and teaching me the art of Boxing.
When I had no clear role models in my life, [the Applicant] is there for me to give me guidance and point me in the right direction. [The Applicant] was also there for my mother, particularly when she got sick with cancer and he stepped up and supported her in ways that I couldn’t over the years. ...
Losing [the Applicant] would not only be detrimental to myself but to his family, his friends, and community members he has developed lasting relationships with over the years. [The Applicant] only knows a life in Australia, and I do not want to lose him.
In a more recent statement, dated 27 April 2021 (A1/16–18), K described how the Applicant had been a role model to him. He further stated that the Applicant had accompanied his mother to her chemotherapy appointments when she was suffering from cancer:
[The Applicant] is a great person and a great role model. For me, he would arrange for me to be picked up after a night out, no matter what time I called. He would also be there for me when I was mentally not in a good place, and not coping with my mother’s cancer battles. Additionally, he used to be my boxing trainer, he would sacrifice two hours out of his afternoon each weekday to train me. He would not ask for anything from me, simply did it. [The Applicant] is compassionate and giving, always willing to help someone out. I have learnt so much from him, about respect, being a man, and the importance of family. One of the vivid memories I have that shows [the Applicant’s] character is him accompanying my late mother to her chemo appointments to make sure she never went alone.
Another friend, LD, who is the brother of K, described how the Applicant had helped him when he was growing up, and also described how the Applicant helped his mother during her cancer treatment (A1/14, para [7]):
I believe [the Applicant] is of good character and is a good person. From myself growing up in a rough life and up bringing, he has always been in the picture when I need something. If my mum could not afford it, he would get it for me. When I wanted to learn to go to the gym, he paid for my gym fees, and always came with me to show and teach me. If I was hungry, he would take me out to get food. He was always a phone call away for myself and my older brother. He never failed to surprise us and my mum. When my mother was sick with multiple cancers multiple stage 3-4’s, he always was there to help her out with whatever she needed. She never went without. Whatever she needed while she was sick, [the Applicant] would get her, and he always would care and look after her when she was doing chemo and radiation therapy.
The Applicant’s partner also described the support that he gave to L and K when they were growing up (A1/9, para [36]):
Whenever someone in our lives has needed support, [the Applicant] is the one to provide it. For example, [K and L] are sons of a [member of an outlawed motorcycle gang]. [The Applicant] took him under his wing. He even nursed [K’s] mother before she died. Before [the Applicant] came into their lives they were going off the rails. Now they are both working up north and [K] has a boy of his own. Many young drug addicts are now clean because of [the Applicant]. He has never wanted recognition, he has only wanted to help.
In summary, the Applicant’s ties to Australia are very strong. He has lived in Australia since he was a four-year-old child, and he has made positive contributions to the community through helping others in need. All his immediate family members are in Australia. He also has significant social ties to the Australian community. As outlined above, several of the Applicant’s family members who are Australian citizens would be detrimentally affected if he was removed, particularly his partner and his 15-year-old daughter, A. Overall, the Tribunal finds that paragraph 9.4.1 of Direction No 90, being the strength, nature and duration of the Applicant’s ties to Australia, weighs very strongly in favour of the revocation of the Cancellation Decision.
Impact on Australian business interests
Paragraph 9.4.2(3) of Direction No 90 provides that:
(3)Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.
This consideration does not arise on the material before the Tribunal and is therefore not relevant.
CONCLUSION
The Applicant does not pass the character test under s 501 of the Migration Act.
The Tribunal has therefore considered whether there is another reason to revoke the Cancellation Decision, having regard to the primary and other relevant considerations in Direction No 90.
In relation to the protection of the Australian community, the Tribunal has found that:
(a)the nature and seriousness of the Applicant’s offending conduct weighs strongly against the revocation of the Cancellation Decision; and
(b)the risk to the Australian community should the Applicant commit further offences or engage in other similar conduct weighs slightly to moderately against the revocation of the Cancellation Decision.
Overall, the Tribunal has concluded that the protection of the Australian community primary consideration weighs moderately against the revocation of the Cancellation Decision.
With respect to the remaining primary considerations, the Tribunal found that:
(a)the family violence primary consideration was of neutral weight;
(b)the interests of the Applicant’s 15-year-old daughter weighed very strongly in favour of the revocation of the Cancellation Decision. The interests of the Applicant’s five minor nephews weighed strongly in favour of the revocation of the Cancellation Decision. The interests of the Applicant’s 16-month-old niece weighed moderately in favour of the revocation of the Cancellation Decision. There was minimal information before the Tribunal concerning the Applicant’s 12-year-old and 17-year-old granddaughters, who he does not have a relationship with, and their interests were given neutral weight; and
(c)the expectations of the Australian community would be that the Cancellation Decision should not be revoked, and that this primary consideration weighs moderately against the revocation of the Cancellation Decision.
The Tribunal found the following with respect to the other considerations:
(a)considerations of international non-refoulement and impact on victims did not arise on the material before the Tribunal;
(b)the extent of impediments if removed weighed strongly in favour of the revocation of the Cancellation Decision; and
(c)the Applicant’s links to the Australian community, particularly the strength, nature and duration of ties to Australia weighed very strongly in favour of the revocation of the Cancellation Decision. The impact on Australian business interests did not arise on the material before the Tribunal.
The Tribunal finds that the primary consideration of the best interests of the Applicant’s daughter, A, substantially outweighs the other primary considerations of protection of the Australian community, family violence, and the expectations of the Australian community. The best interests of the Applicant’s minor nephews, which weighed strongly, and his 16-month old niece which weighed moderately, in favour of the revocation of the Cancellation Decision, further add to the weight of the best interests of minor children primary consideration. The other considerations that weigh in favour of revocation of the Cancellation Decision, including the extent of impediments if removed and the strength, nature and duration of the Applicant’s ties to Australia, which respectively weighed strongly, and very strongly, in favour of the revocation of the Cancellation Decision, give further weight to the Tribunal being satisfied that there is another reason to revoke the Cancellation Decision.
Having had regard to all of the relevant primary considerations and the relevant other considerations in Direction No 90, the Tribunal is of the view that the correct or preferable decision is to set aside the Reviewable Decision, and to substitute a new decision that the Cancellation Decision should be revoked.
DECISION
The Reviewable Decision is set aside and substituted with the decision that the cancellation of the Applicant’s Visa pursuant to s 501(3A) of the Migration Act 1958 (Cth) be revoked under s 501CA(4)(b)(ii) of the Migration Act 1958 (Cth).
I certify that the preceding 236 (two hundred and thirty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member Dr M Evans-Bonner
..................[Sgd]......................................................
Associate
Dated: 15 June 2021
Date of hearing: 1 June 2021 Representative for the Applicant: Ms J Angel, Estrin Saul Lawyers Representative for the Respondent:
Mr A Burgess, Sparke Helmore Lawyers
Key Legal Topics
Areas of Law
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Immigration
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Administrative Law
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Statutory Interpretation
Legal Concepts
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Judicial Review
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Procedural Fairness
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Jurisdiction
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Statutory Construction
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Standing
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Natural Justice
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