Amituanai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration)
[2023] AATA 3213
•12 October 2023
Amituanai and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2023] AATA 3213 (12 October 2023)
Division:GENERAL DIVISION
File Number(s): 2023/5640
Re:Fati Jack Amituanai
APPLICANT
AndMinister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member K Raif
Date:12 October 2023
Place:Sydney
The Tribunal affirms the decision not to revoke the cancellation of the Applicant's Special Category Class TY visa.
.........................[SGD]...............................................
Senior Member K Raif
Catchwords – MIGRATION – Mandatory cancellation of Class TY Special Category visa – Where Applicant has extensive criminal record – Where Applicant fails character test – Whether another reason to revoke the cancellation – Protection of the Australian community – Whether conduct engaged in constituted family violence – Strength, nature and duration of ties to Australia – Best interests of minor children – Expectations of the Australian community – Legal consequences of the decision – Decision under review affirmed
Legislation
Migration Act 1958 (Cth)
Cases
Afu v Minister for Home Affairs [2018] FCA 1311
FYBR v Minister for Home Affairs [2019] FCAFC 185
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348YNQY v Minister for Immigration and Border Protection [2017] FCA 1466
Click here to enter text.
REASONS FOR DECISION
Senior Member K Raif
12 October 2023
BACKGROUND
This is an application for review of a decision of the delegate of the Minister for Immigration, Citizenship and Multicultural Affairs (‘the Respondent’) not to revoke the mandatory cancellation of a Class TY Special Category visa previously held by the Applicant.
The Applicant was born in February 1980 in New Zealand, and he entered Australia in November 1993. The Applicant was granted the Special Category visa upon entry to Australia.
Between 1995 and 2002, the Applicant was convicted of multiple offences which are set out below. In May 2022 he was sentenced to a term of imprisonment of 3 years and 6 months. On 14 June 2022 the Applicant’s visa was mandatorily cancelled. The Applicant made a request to revoke the cancellation, and on 31 July 2023 a decision was made under subsection 501CA(4) not to revoke the mandatory cancellation of the visa. The Applicant is seeking review of that decision.
The Applicant appeared before the Tribunal on 4 October 2023. His father and two of his children had given oral evidence to the Tribunal (and had provided written statements).
For the following reasons, the Tribunal has concluded that the decision dated 31 July 2023 not to revoke the cancellation of the Applicant’s visa should be affirmed.
RELEVANT LAW
Subsection 501(3A) of the Act relevantly states:
(3A) The Minister must cancel a visa that has been granted to a person if:
(i)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
Subsection 501CA(3) provides that as soon as practicable after making a decision under subsection 501(3A) the Minister must, among other things, notify the person of the decision, provide particulars of relevant information and invite the person to make representations to the Respondent, ‘within the period and in the manner ascertained in accordance with the regulations, about revocation of the original decision’.
Subsection 501CA(4) allows for a revocation of a decision under subsection 501(3A) and relevantly states as follows:
(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.
Subparagraph 501CA(4)(b)(ii) of the Act requires the Tribunal to examine the factors for and against revoking a mandatory cancellation decision. If the Tribunal is satisfied that the cancellation should be revoked following that evaluative exercise, the Tribunal must revoke the original visa cancellation decision.
The ‘character test’ is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) provides in part:
(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))…
Paragraph 501(7)(c) relevantly provides that a person has a ‘substantial criminal record’ if the person has been sentenced to a term of imprisonment of 12 months or more.
On 23 January 2023, Direction No. 99 Visa refusal and Cancellation under s. 501 and revocation of a mandatory cancellation of a visa under s. 501CA (‘Direction 99’) was signed, coming into effect on 3 March 2023. Direction 99 is binding on the Tribunal in performing its functions or exercising powers under section 501 of the Act.
Direction 99 sets out the principles that provide a framework within which decision-makers should approach their task of deciding whether to exercise the discretion to refuse to grant a visa or revoke mandatory cancellation decisions. The principle set out at paragraph 5.2(2) of Direction 99 states that:
Non-citizens who engage or have engaged in criminal or other serious conduct should expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.’
The primary considerations which are set out in clause 8 of Part 2 of Direction 99 are:
(1)protection of the Australian community from criminal or other serious conduct;
(2)whether the conduct engaged in constituted family violence;
(3)the strength, nature and duration of ties to Australia;
(4)the best interests of minor children in Australia; and
(5)expectations of the Australian community.
The other considerations, which are not exhaustive, are set out of clause 9 of Direction 99:
a)Legal consequences of the decision;
b)extent of impediments if removed;
c)impact on victims; and
d)impact on Australian business interests.
Decision-makers should ‘generally’ give greater weight to primary considerations than other considerations. As noted by Colvin J in Suleiman v Minister for Immigration and Border Protection:[1]
‘Direction 65 [now Direction 99] makes clear that an evaluation is required in each case as to the weight to be given to the 'other considerations' (including non‑refoulement obligations). It requires both primary and other considerations to be given 'appropriate weight'. Direction 65 does provide that, generally, primary considerations should be given greater weight. They are primary in the sense that absent some factor that takes the case out of that which pertains 'generally' they are to be given greater weight. However, Direction 65 does not require that the other considerations be treated as secondary in all cases. Nor does it provide that primary considerations are 'normally' given greater weight. Rather, Direction 65 concerns the appropriate weight to be given to both 'primary' and 'other considerations'. In effect, it requires an inquiry as to whether one or more of the other considerations should be treated as being a primary consideration or the consideration to be afforded greatest weight in the particular circumstances of the case because it is outside the circumstances that generally apply’”[2]
[1] [2018] FCA 594.
[2] Ibid, [23].
While these comments were made in relation to the earlier Direction, they apply equally in the present case.
In this case, it is not in dispute that the Applicant had made representations about the revocation of the cancellation of his visa. The requirements of paragraph 501CA(4)(a) are met. The issues before the Tribunal are:
(a) does the Applicant pass the character test, as defined by section 501 and, if not;
(b) is there another reason why the original decision should be revoked.
DOES THE APPLICANT PASS THE CHARACTER TEST?
The character test is defined in subsection 501(6) of the Act. Relevantly, paragraph 501(6)(a) states that a person does not pass the character test if the person has a substantial criminal record, as defined in subsection 501(7). Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of imprisonment of 12 months or more.
The Tribunal has been provided with the Criminal Intelligence Commission Check Results Report. Information before the Tribunal indicates that the Applicant had been convicted of the following offences. The offences that took place prior to the Applicant turning 18 are set out for the sake of completeness and may be relevant to the assessment of discretionary considerations, but the Tribunal has not taken these into account in determining whether the Applicant passes the character test.
10/02/95
· Resist police,
· offensive language
Fine $75
08/01/96
· assault (3 counts)
· steal conveyance
· unlicensed driver
· negligent driving
Community service order 100 hours
12 months’ probation30/04/96
· violent disorder
· demand money with menace
· common assault
Community service order 30 hours
09/05/97
· assault occasioning actual bodily harm
· goods in custody reasonably suspected of being stolen
· stealing
· malicious damage
· assault
· assault police / resist police
· break enter and steal
12 months’ probation and community service order of 200 hours
· offensive language
· assault police
· evade rail faire
· resist police
12 months’ probation
12 months’ probation and community service order
28/03/01
Destroy or damage property <= $2000
2 year bond
25/11/02
Common assault
Fine $600; 2 year bond
27/08/03
Assault with intent to take / drive motor vehicle
Fine $1000
23/02/06
· common assault
· destroy or damage property <= 2000
· Aggravated dangerous driving occasioning grievous bodily harm
· Destroy or damage property $5000 and <= 15,000
3 months imprisonment
1 months imprisonment
20 months imprisonment and disqualification for 10 years
2 months imprisonment
[convictions upheld on appeal, sentence reduced]
15/05/09
· Recklessly wound another person
· Affray
5 years imprisonment
6 months imprisonment
10/09/12
· Drunk or disorderly in premises for which a permit / license relates
Fine $400
06/09/13
· Assault occasioning actual bodily harm
· Common assault
· Stalk / intimidate intend fear physical etc (domestic) – 2 charges
· Enter inclosed land not prescribed premiss without lawful excuse
15 months imprisonment (suspended)
13/10/15
Drive vehicle illicit drug present in blood
Fine $600 and disqualification 6 months
09/02/18
Have custody of an offensive implement in a public place
Fine $800
26/05/22
· Aggravated break and enter and commit serious indictable offence
· Common assault (domestic) – 2 charges
· Contravene prohibition / restriction in AVO
Imprisonment 3 years and 6 months
The Tribunal finds that in May 2022 the Applicant has been sentenced to a term of imprisonment of 3 years and 6 months. The Tribunal finds that the Applicant has a substantial criminal record as defined in paragraph 501(7)(c) of the Act. As the Applicant has a substantial criminal record, he does not pass the character test. The requirements of subparagraph 501CA(4)(b)(i) are therefore not met.
IS THERE ANOTHER REASON WHY THE ORIGINAL DECISION SHOULD BE REVOKED?
The Applicant told the Tribunal that he has always tried to be a good person, as taught by his father. The Applicant refers to his ‘fractured childhood’ and alcohol abuse. He states that he had not in the past appreciated time spent with his family, but he now recognises his good life in Australia and wants to change. He has taken steps to deal with his alcohol addiction.
The Respondent submits that the Applicant does not pass the character test. The Respondent submits that the Applicant had engaged in serious conduct causing harm to the victims of the offending. The Respondent submits that while some considerations weigh in favour of the revocation – such as the Applicant’s ties to Australia and the best interests of a child – other considerations, most notably the protection of the Australian community, family violence and the expectations of the Australian community, weigh against the revocation and outweigh other consideration.
The Tribunal’s considerations are set out below with regard to Direction 99.
Primary considerations
Protection of the Australian Community
Paragraph 8.1 of Direction 99 provides in part as follows:
8.1 Protection of the Australian community
(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….
(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.
The nature and seriousness of the Applicant’s conduct to date
The Direction provides that violent and/or sexual crimes; crimes of a violent nature against women or children (regardless of the sentence imposed); or acts of family violence (regardless of whether there is a conviction for an offence, or a sentence imposed) are viewed very seriously by the Australian Government and the Australian community.
Sub-paragraph (c) of paragraph 8.1.1(1) of the Direction requires a decision-maker (with the exception of the crimes or conduct mentioned in sub-paragraphs (a)(ii), (a)(iii) or (b)(i) of paragraph 8.1.1(1)) to have regard to the sentence(s) imposed by the Courts for a crime or crimes of a non-citizen. The imposition of a custodial term is regarded as the last resort in any reasonably and correctly applied sentencing process. Custodial terms are viewed as a reflection of the objective seriousness of an Applicant’s offending.
In considering the nature and seriousness of the Applicant’s criminal offending and other conduct to date, the Tribunal has had regard to the police facts sheets and the sentencing remarks. The Tribunal acknowledges that in relation to several instances of offending, the Applicant, in oral evidence, denied the information contained in the police records and stated that despite pleading guilty, some of the offending did not occur. However, the Tribunal is of the view that a finding of guilt by a court is evidence that the offending conduct did take place.
The Tribunal has considered the sentencing remarks of Judge Craigie in May 2022 in relation to the December 2020 offending. There is also before the Tribunal the statement of Agreed Facts in relation to these offences. It is stated that on each occasion the victim was the Applicant’s former domestic partner and there was an ADVO in place. His Honour refers to the agreed statements of facts which sets out the circumstances of the offending. It is stated that at the time of offending, the victim had a three week old child. It is stated that in December, about two months after the ADVO was taken out, the Applicant had appeared outside the front door of the victim’s new premises and was there smoking, in breach of the order made for the protection of the victim. The Applicant later walked into the premises and was asked to leave. In response, the Applicant scattered the victim’s clothing and belongings. The victim walked out of her home and started screaming and the Applicant left.
The Applicant then returned around 10 – 11 pm and was having a chat with the victim. She asked the Applicant ‘why don’t you get off drugs?’ The Applicant thought the victim said something about his mother. When the victim asked him to leave, the Applicant responded by seizing the victim and pushing her into a wall, with sufficient force to cause her head to collide with the wall, making a substantial hole in the plasterboard wall. The Applicant had smashed the victim’s phone and her oven door—in oral evidence, the Applicant denied that some of this conduct took place.
In relation to the offending taking place on 16 December, His Honour states that, at around 2.45 am, the victim was woken by a loud bang. According to the agreed statement of facts, the Applicant had kicked in the door of the victim’s home, pushed the door in causing damage suggesting that considerable force was used. The Applicant then confronted the victim and accused her of sleeping around. He seized the victim’s shirt, ripping it, pushed two glasses off the table causing them to break. The conduct is described in the agreed statement of facts as being aggressive and angry towards the victim and she was fearful of the Applicant and repeatedly asked him to leave.
His Honour referred to the sentencing report, noting that the Applicant denied responsibility and blamed the victim and had an apparent attitude of denial and compromised insight. His Honour referred to the report of Dr Lennings and noted the Applicant’s difficult childhood, and stated that the Applicant’s attitude in recognising that he must do something about underlying psychological issues is a positive step, but a healthier attitude to relationships and dealing with stressors and strains in relationship is a pressing need. His Honour noted the submissions of the Crown and the offender that his prospects of avoiding future offending are, at best, fair. Notably, in his 2021 revocation request, the Applicant also states that he reoffended because of his toxic relationship and a ‘personality clash’. The Applicant appears to suggest that the offending was caused by others, and he appears to lack self-awareness or appreciation of his conduct.
There is, before the Tribunal, the NSW Police Facts Sheet in relation to the 2013 offences. It is stated that the victim and her two children attended premises and there was a verbal argument between the Applicant and the victim. As a result, the victim took a set of car keys from the Applicant and walked to her car and attempted to drive away. The Applicant followed the victim, grabbed her with his two hands and dragged her out of the car. The Applicant pushed the victim onto the roadway beside the car, knelt and put both hands around her neck. The victim was screaming, and the children were heard to yell ‘stop’. Another victim approached the Applicant and tried to stop him. The Applicant had taken hold of the victim and thrown him towards the roadway into the path of an oncoming car and his body collided with the car, causing soreness to his body and a graze.
The Tribunal has had regard to the remarks of Magistrate Linden in relation to the 2013 offending. The description of the incident relates to the Applicant having an altercation with another person and pushing him towards the road, in the path of an oncoming car, although it was conceded by all parties that it was not deliberate. His Honour noted that there was a history of violent offending and that the incident occurred a little over two months after the Applicant’s parole period had expired.
The Tribunal has had regard to the sentencing remarks of Judge Tupman made in May 2009. His Honour sets out the relevant facts as follows. On the morning of 16 February, the Applicant was at a railway station and was seen on the platform drinking beer. He was very drunk. Shortly after, the victim and a friend walked to the platform, approached the Applicant asking for a light. His Honour accepted that the Applicant had been drinking for over 24 hours prior to offending and that the victim was also intoxicated. A fight broke out which was not initiated by the Applicant. The victim threw a punch, forced the Applicant on the ground and straddled on top of him and continued to punch the Applicant on his face and body. The Applicant then walked towards the victim throwing punches, the victim fell to the ground and appeared to be semi-conscious. The Applicant punched the victim in the face, kicked his head and stomped into his face and head multiple times. As a result, the Applicant received minor lacerations and abrasions while the victim received deep lacerations to his head and had spent 16 days in an unconscious state in ICU before regaining consciousness. The victim suffered permanent brain damage with right facial weakness and neuro-cognitive changes as a result, causing speech deficits and decreased ability to care for himself and organise his life. The victim is unable to maintain employment and is unlikely to return to full-time work.
In oral evidence the Applicant suggested that he was acting in self-defence. He noted that he was the one who called the ambulance, because nobody was helping his victim, and he admitted to the police that he was involved in the fight. He said that he was ‘furious’ about what happened as it was his birthday.
Judge Tupman noted that the prospects of rehabilitation are closely connected with the Applicant’s ability to stay clear of excessive alcohol consumption and, if he is able to maintain that situation, the prospects of rehabilitation are ‘reasonably good’. However, his Honour stated that if he is not, it is likely that the Applicant will re-offend. His Honour states that the Applicant believes his wife would leave him if he continued to drink alcohol, and he appears to genuinely care about his family which will positively motivate him towards genuine rehabilitation. His Honour noted that the Applicant had taken steps to deal with alcohol abuse by going to alcohol and other drugs courses while in custody, and found that the prospects of rehabilitation would be improved if he is able to undertake more of these courses.
The Tribunal has had regard to the reasoning of Judge Payne in May 2006 in relation to the appeal by the Applicant. The facts are set out as follows. The victim was driving, and the Applicant decided drive while under the influence, and caused an accident, resulting in the injury to the victim (lump on her forehead). At the time, a psychiatric report was prepared by Dr Allnut who determined that the Applicant was suffering from an untreated psychotic illness, and His Honour also noted a history of mental illness in the family. Her Honour dismissed the appeal and upheld the conviction, confirming the sentence of 20 months imprisonment for the aggravated dangerous driving and 23 months imprisonment (served concurrently) for the common assault.
In oral evidence, the Applicant described some of the incidents that took place in his earlier relationships, as set out in the police notices, as well as incidents involving his mother and siblings. The Applicant denied much of the information recorded in the police reports but concedes that there were numerous verbal arguments with his partners, physical altercations, abusive language, and damage to property.
The Tribunal finds that many incidents resulting in the convictions involved violence towards members of the public and there was also violent offending in the context of domestic relationships. As noted above, the Direction provides that violent offending and violent crimes against women are to be viewed very seriously. The Tribunal also notes that the offending involved multiple instances and occurred over a lengthy period of time. The fact that the Applicant was given custodial sentences reflects the serious nature of his past and more recent offending.
The Tribunal has formed the view that the offending was very serious.
The risk to the Australian community, should the non-citizen commit further offences or engage in other serious conduct
The Tribunal has considered the risk to the community, should the Applicant reoffend. Paragraph 8.1.2(1) provides that 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 of the 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) provides that 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;
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 non-citizen 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; and
Assessing the nature of the harm to individuals or the Australian community that may occur if the Applicant were to engage in further criminal or other serious conduct, is informed by the nature of his offending to date, including any escalation in his offending. This assessment also notes that the Direction provides that the Australian community’s tolerance for harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, is so serious that any risk that it may be repeated may be unacceptable.
As noted elsewhere, much of the Applicant’s offending involved violence to others. On more than one occasion his conduct resulted in damage – at times serious and permanent damage – to the victims. In the Tribunal’s view, the nature of harm to individuals, should the Applicant engage in further criminal conduct of similar nature, would be significant.
The Tribunal has considered the risk of the Applicant reoffending and the evidence of rehabilitation achieved.
In his written statement to the Tribunal, the Applicant admits the seriousness of his past conduct and notes that there is an underlying issue. The Applicant states that the majority of his offending happened when he was a minor as he had frequent interactions with the police. The Applicant states that as an adolescent, he was out of reach from his father’s love and discipline and morals. The Applicant states that while in detention, he was physically and sexually abused. The Applicant states that he was heavily addicted to drugs by his 16th birthday, with a $300 a day habit, and he had a disregard for the police and anyone in authority, blaming them for the abuse he suffered while in custody. The Applicant referred to the circumstances of his past offending, stating that his encounters with authority were mostly under the influence. The Applicant refers to the death of his niece in 2016, stating that it had affected his family, and the breakup of his relationship in December 2016. The Applicant states that he was feeling sorry for himself and ‘was killing himself slowly’. He entered a rehab house and although he completed only 6 weeks of a 12 week program, it had given him insight into his feelings and actions. He started attending gym, going to church functions and other ‘wholesome’ activities, reconnected with his parents and siblings, and reunited with his children and their mother. The Applicant states that he later met his second partner, K, and they started to live together, gradually developing a relationship, and the Applicant made an undertaking to look after both K and her baby R who was born in August 2020. The Applicant provided to the Tribunal a number of photographs depicting his interactions with R. The Applicant describes his arguments with K following the birth of her daughter.
The Applicant states that he is ashamed of being labelled as a predator of domestic violence, stating that he loved his partners and stood by them. The Applicant states that the domestic violence charges resulted from many emotions and while he was under some substance, which led to verbal altercations and, at times physical — but not to the extent of physical injury or hospital admission. It is of concern to the Tribunal if the Applicant genuinely believes that the absence of physical injury or hospital admission renders his conduct less serious.
The Applicant states that he feels he has paid for his failings by serving a term in prison and the time spent away from his children who have distanced themselves from him. The Applicant states that most of the offending occurred when he was a juvenile and as he has grown, he learned to be productive and law-abiding, and more self-aware of what may arise if situations lead to arguments. The Applicant states that he has gained mental and emotional awareness and is tirelessly searching and studying to find reasons for his actions. He states that he now has the tools to get through life and has strategies in place to deal with his feelings. The Applicant states that he continues to maintain contact with both of his ex-partners and his children. He wants to reconnect with R — who resides with her grandmother — and hopes to be able to be part of her upbringing.
In oral evidence, the Applicant told the Tribunal that he has attempted to make a good life for himself in Australia and has supported his siblings. His father has led him to a good life. The Applicant states that he has always tried to provide for his family, as the oldest sibling (since his elder brother was incarcerated). The Applicant referred to a number of incidents and explained their circumstances, and states that he is not the person portrayed in the G documents. He admitted to doing the wrong things but states that he is trying to do better. The Applicant stated that he now appreciates his time in Australia and the time with his family. He is finally addressing the drug and alcohol issue.
The Applicant presented to the delegate a number of character references, including a statement from his partner and a statement from his brother, both dated 2009. There are a number of additional statements that have been provided to the Tribunal. These include statements from the Applicant’s father, his siblings, and children. The Tribunal is prepared to accept that those who provided these references believe the Applicant to be a good person and the offending to be out of character.
The Tribunal has had regard to the 13 August 2009 report by probation officers Jo Mckenzie and Amy Ticehurst. It is stated that the Applicant was known to be a polite and compliant inmate, and has received positive reports in relation to his employment. The report refers to close family relationships and support. It is stated that the Applicant had, of his own volition, enrolled in the SMART program designed to address alcohol and other drug use, and had been participating in Alcoholics Anonymous meetings from August 2009. In relation to his attitude, the report states that the Applicant maintained that he did not instigate the fight but had retaliated after being attacked but he was remorseful about the injuries caused to the victim.
Records before the Tribunal indicate that during his incarcerations, on a number of occasions, the Applicant returned a positive urine test indicating ongoing use of drugs. It is also recorded that in March 2021 he was reported to have committed assault, resulting in the removal of contact visits for 28 days. When questioned on this point during cross-examination, the Applicant referred to the incident when an officer was sprayed with water, which was considered to be assault.
There is, before the Tribunal, a statement from the Director of Corrections Strategy and Executive Services. It indicates that the Applicant had undertaken a number of rehabilitation courses while in prison. These include general education courses (core skills assessment and digital literacy training which was suspended at his request), work safety and food safety courses, Business Certificates, a TAFE course, and other courses. It is noted that the Applicant was not eligible for rehabilitation programs in custody. There are, before the Tribunal, course completion letters and other evidence relating to the Applicant’s participation in courses, including a SMART recovery course, and he told the Tribunal he had completed many courses but did not have the paperwork. The Applicant told the Tribunal that he continues to engage with some of the courses, and has been seeing a psychologist and had completed courses for his mental health and alcohol addiction. At VIDC the Applicant is reported to have been engaged in some employment during his incarceration and it is stated that notes regarding his employment are generally very positive and indicate he is a good worker, follows directions, and is helpful and polite. It is also stated that the Applicant was dismissed from an Activities position at Bathurst Correctional Centre due to a poor attitude with a staff member.
The Tribunal is mindful that the Applicant has in the past, participated in various rehabilitation programs. He completed programs as early as in 2009 and he completed a six week residential course in 2016. Having previously engaged in these programs, the Tribunal does not accept that the Applicant lacked insight into his drug and alcohol use, or the effect of substance use on his behaviour. The Applicant’s own evidence is that when faced with difficulties (such as the death of his niece, relationship breakdown or other issues), he turned to drugs. That is, despite his involvement in the rehabilitation programs in the past, the Applicant was unable to overcome the urge to turn to drug or alcohol use when facing challenges. While the Applicant has completed more programs recently, and continues to engage in these programs at present, and has expressed a desire to continue with these, the Tribunal is not satisfied that the Applicant has necessarily acquired the skills to deal with challenges and difficulties that he may experience in the community.
The Tribunal has been provided with a copy of Dr Lennings’ report dated 9 December 2021. Dr Lennings outlines the Applicant’s background and describes his upbringing. It is noted that the Applicant reported to be healthy and denied any major medical crises, but the Applicant also reported to having been identified as experiencing PTSD due to the incidents in a boarding school and juvenile homes. The Applicant reported that he picked up alcohol and polysubstance use in 2016, but engaged in a rehab program and, despite some relapses, maintained sobriety between 2016 and meeting his new partner when his drug use got worse.
Dr Lennings reports that the Applicant had difficulty perceiving himself as a criminal but had engaged in rehab and sought out counselling while in gaol. It is reported that the Applicant did not believe he would again engage in substances, he intended to return to church and resume his life of work and community involvement through sport. Dr Lennings stated that the Applicant had a number of psychological issues that impacted on his judgment and adjustment: he is emotionally reactive and impulsive, and presents as having a bad temper which can be easily aroused. He has an intermittent drug problem and vacillates between minimising the use of drugs and alcohol, and admitting that he has an addiction. It is stated that the Applicant regrets his offending and expressed remorse for his partner but also saw himself as a victim of circumstances. He continues to have deficits in his appreciation of the need to exercise restraint irrespective of his circumstances, and his childhood of neglect and abuse is likely to have desensitised him to recognising respectful behaviour and behaving with restraint. Dr Lennings states that if the Applicant is to receive a lengthy gaol sentence, he will benefit from attending courses, but his treating needs will only be engaged properly in the community, as treatment for past abuse and trauma cannot safely begin in gaol, and the substance abuse needs will only be effectively managed in the community.
The Tribunal has been provided with the submission made by the Applicant to the sentencing judge, dated 21 February 2022. The Tribunal has also had regard to the Sentencing Assessment report completed by Stephanee Bryant, in 2022. The report notes that the Applicant has an extensive history of anti-social behaviour commencing in 1997 with his offending predominantly relating to violence, including domestic violence, property damage, and driving offences, and his offending seems to be escalating in seriousness. It is stated that the Applicant did not accept responsibility for the offences and continually blamed the victim for his actions, despite acknowledging he was in breach of the ADVO. The Applicant stated that he pled guilty but did not agree with the agreed facts, and stated that he was the victim of the assaults perpetrated by the victim. He denied physically assaulting the victim or deliberately damaging property. He denied being influenced by drugs or alcohol at the time of offending (while his family confirmed he had struggled with alcohol and was using ice with the victim around the time of offending). It is stated that the Applicant did not acknowledge he had issues with violence, anger or aggression and stated that he is not usually a violent person but when under the influence of drugs or alcohol, can become violent. The Applicant reported being diagnosed with bipolar and manic depression around the age of 18, but had not been prescribed medication and had never engaged in mental health treatment. It is stated that the Applicant has a history of breaching the conditions of ADVOs. The report states that the Applicant failed to display any insight into the impact of his offending, although he stated he felt ‘sad’ for the victim. He acknowledged that what happened was not okay but was unable to identify strategies he could have used to avoid committing the offences. The report indicates that the Applicant has been assessed at a medium risk of reoffending.
The Tribunal considers it significant that the Applicant had previously received formal warnings in relation to the cancellation of his visa. Thus, in November 2006 the Applicant was given a Notice of Intention to Consider Cancellation (NOICC) of his visa on the basis that he failed the character test based on his criminal conduct. A decision was made not to cancel the visa, but the Applicant was given a Counselling Letter which informed him that any conduct that comes within the scope of s. 501(6) could result in his visa being cancelled in the future and this may lead to his removal from Australia.
In September 2009 the Applicant was given a second NOICC informing him that consideration was being given to the cancellation of his visa on character ground as the Applicant was considered to have a substantial criminal record. The Applicant made representations and a decision was made not to cancel his visa. Again, the Applicant was warned that the cancellation may be reconsidered if he commits further offences, and a disregard of the warning would weigh heavily against him.
The Applicant was warned about the possibility of his visa being cancelled, and of his removal from Australia, on two previous occasions. The Applicant made representations as to why his visa should not be cancelled. In the Tribunal’s view, the Applicant well understood the consequences of his offending and the effect his conduct could have on his visa and the ability to remain in Australia, and despite this, the Applicant continued to reoffend after both warnings had been issued. That strongly suggests, in the Tribunal’s view, that the Applicant is either incapable of controlling his actions or indifferent about their consequences.
Further, information before the Tribunal indicates that the Applicant had, on multiple occasions, tested positive to drugs while incarcerated. That is, the Applicant continued to use drugs despite his significant custodial sentences. That also suggests to the Tribunal that the Applicant was incapable of managing his addiction. The Applicant’s present undertakings that he would no longer use drugs is thus unpersuasive, despite any further programs or rehabilitation that the Applicant may have undertaken since the earlier use.
In his 2021 revocation request, the Applicant stated that if given the opportunity, he will not reoffend as he wants to be here for his children. The Applicant states that he has gained a lot of insight into his life. The Applicant states that although he does not pass the character test, his past experience and work history shows that he possesses the ability to function in modern and civilised society. The Applicant refers to his past employment (he provided to the Tribunal copies of his payslips) and qualifications. The Applicant states that if he is deemed to be of bad character due to the charges and the AVO in place at the moment and from previous incarcerations, a lot of what he has done and the rehabilitation he has gone through since 2011 would have been ignored. The Applicant expressed the same attitudes in oral evidence to the Tribunal. The Tribunal finds the Applicant’s claims unpersuasive, given his persistent reoffending over the years (despite past employment and the support of his family). As noted above, the Applicant had previously been given two formal warnings when he was made aware of the possibility that he would be required to leave Australia, and be separated from his children and employment. These did not act as a sufficient deterrent for the Applicant to not reoffend.
The Applicant told the Tribunal that his mindset has changed, he no longer uses drugs and has a clearer vision of his future and what is at stake. The Applicant states that he is engaging in various programs, he is no longer thinking about drugs but has learned to appreciate the chances he has been given and ponder those past experiences. The Applicant states that in the past, he would just say things ‘at face value’ and do whatever he wants but he now realises that real change is needed. The Applicant told the Tribunal that if released into the community, he intends to continue with counselling, get a job and find ‘wholesome activities’. The Applicant states that he does not want to be around drugs, but wants to be around people who love him. He states that his family support him and will offer him accommodation if needed. As noted above, given the fact that the Applicant had, in the past, expressed very similar sentiments but repeatedly reoffended and returned to drug use, the Tribunal does not consider these expressions to be persuasive.
The Applicant has been engaging in criminal conduct over many years, resulting in multiple convictions. He had previously served custodial sentences, which did not act as a deterrent, and he continued to reoffend. Despite the serious sentences he has received in the past, the Applicant has continued to both use drugs and engage in criminal conduct notwithstanding the real possibility of his visa being cancelled and of being removed from Australia. In his oral evidence, the Applicant conceded that he may be violent or aggressive if under influence. Having regard to all these factors, and giving due weight to the professional opinions, the evidence of rehabilitation and the Applicant’s own undertakings, the Tribunal has formed the view that there remains a real likelihood of the Applicant reoffending.
The Tribunal finds that there remains a real risk of the Applicant resuming the use of drugs and / or alcohol and, if that is the case, there remains a real risk of the Applicant engaging in further criminal conduct. The Tribunal finds that there remains a moderate risk of reoffending.
Having regard to the nature of the Applicant’s past convictions involving violence, including domestic violence, as well as other offending that posed, or had the potential of causing, significant harm to others, and the Tribunal’s view that there remains a moderate risk of reoffending, the Tribunal has formed the view that the protection of the Australian community weighs very heavily against the revocation.
Whether the conduct engaged in constituted family violence
Paragraph 8.2 of the Direction provides:
(1)The Government has serious concerns about conferring on non-citizens who engage in family violence the privilege of entering or remaining in Australia. The Government’s concerns in this regard are proportionate to the seriousness of the family violence engaged in by the non-citizen
The Applicant had been convicted of offending that involved domestic violence on multiple occasions. The facts relating to the circumstances of these offences are summarised above and the Tribunal notes that family violence occurred in relation to the two partners in his relationships, as well as in relation to his mother (although the Applicant denied this in oral evidence). The Tribunal notes that some of the domestic violence (in particular the 2013 incident) occurred in the presence of the children.
The Tribunal finds that some of the conduct engaged in constitutes family violence. This factor also weighs heavily against the revocation.
The strength, nature, and duration of ties to Australia
Paragraph 8.3 of the Direction provides:
(1)Decision-makers must consider any impact of the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents, or people who have a right to remain in Australia indefinitely.
(2)In considering a non-citizen’s ties to Australia, decision-makers should give more weight to a non-citizen’s ties to his or her child and/or children who are Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
(3)The strength, duration and nature of any family or social links generally with Australian citizens, Australian permanent residents and/or people who have a right to remain in Australia indefinitely.
The Applicant has been residing in Australia since 1993, at the age of 13, and for a period of about thirty years. In his undated revocation request, the Applicant stated that he travelled to Australia to live with his father and his mother later came to live in Australia as well (she passed in 2009). The Applicant states that all of his siblings except one live in Australia, as well as his children. In his personal particulars form, the Applicant refers to having ten siblings and his extended family in Australia, including his nieces, nephews, uncles, and aunts. The Applicant states that he no longer has social ties in New Zealand, and he sometimes forgets he is of New Zealand heritage.
The Applicant provided to the Tribunal several photographs, including photographs depicting himself with his partner and child.
In oral evidence the Applicant described his relationship with his daughter, stating they had been very close but then ceased contact for some time. He states that they want to reconnect and become close again, but he did not want his daughter to visit him in detention. The Applicant describes his relationship with his children, stating that there had been tension because of his new relationship, but the Applicant states he has maintained regular and frequent electronic contact with his children. In his written statement to the Tribunal, the Applicant also described his responsibility to care for his father. He told the Tribunal that his father is healthy, but he is his father’s ‘right hand man’ and does things around the house for his father.
Several of the Applicant’s family members have provided character references and statements in support. Some of the references suggest the recent offending was out of character. The Applicant’s father and two of his children gave oral evidence to the Tribunal. The Tribunal acknowledges their evidence and ongoing support for the Applicant. The Applicant’s daughter, JA, gave oral evidence, stating that she had never seen her father wanting to change so much. She states that this experience has brought them closer. JA states that she had never ‘cut off’ her relationship with her father, but spoke less because of his new relationship and now they have frequent contact several times a week.
The Tribunal accepts that the Applicant has extensive family connections in Australia and that he has been providing support for his father (which, he states, has been provided by other family members since his detention).
The Tribunal accepts that, given the length of his residence in Australia, the Applicant has social links in this country, in addition to his strong family links. The Tribunal finds that this consideration weighs heavily in favour of the revocation.
The best interests of minor children in Australia
Paragraph 8.4(1) of the Direction requires a decision-maker to make a determination about whether cancellation or refusal under section 501, or non-revocation under section 501CA is in the best interests of a child affected by the decision.
Paragraphs 8.4(2) and 8.4(3) respectively contain further considerations. The former provides that for their interests to be considered, the relevant child (or children) must be under 18 years of age at the time when a decision about whether or not to refuse or cancel the visa or not to revoke the mandatory cancellation decision is being made. The latter provides that if there are two or more relevant children, the best interests of each child should be given individual consideration to the extent that their interests may differ.
The Applicant’s children are over the age of 18. However, the Applicant refers to his relationships with nieces and nephews, as well as his relationship with the daughter of his former partner, R.
The Applicant told the Tribunal that he used to see his nieces and nephews almost weekly and he described the activities he would do with the children. There is no suggestion that the Applicant has played a parental (or indeed, a meaningful) role in relation to these children, and his description of their interactions seems to relate to sporting and social activities.
The Applicant also spoke about his relationship with R, a child of his former partner. The Applicant’s evidence is that he has been involved with R since her birth. The child now lives with his ex-partner’s mother, but he is unaware if there are any court orders in relation to the child’s custody. The Applicant confirmed that when the AVO was in place, he was not allowed to be close to the child, but there are no orders in effect at present. The Applicant states that he wants to continue to be a part of the child’s life.
On the limited evidence before it, the Tribunal does not consider that the best interests of the Applicant’s nieces and nephews would be adversely affected by any decision on the Applicant’s visa. However, the Tribunal accepts that the Applicant has a relationship with R, which, at least in the past, was akin to a parent – child relationship. The Tribunal accepts that the Applicant wants to maintain that relationship. The Tribunal is prepared to accept that it may be in the child’s best interests to maintain the relationship with the Applicant, provided there is no family violence committed by the Applicant in relation to the child’s mother or grandmother, and no violence is committed in the presence of the child. the Tribunal does not consider it is in the best interests of the child to witness or observe such incidents.
That consideration weighs considerably in favour of the revocation.
Expectation of the Australian Community
Sub-clause 8.5 of Direction 99 provides that the Australian community expects non-citizens to obey Australian laws while in Australia. Paragraph 8.5(1) of the Direction sets out the government’s view in relation to community expectations:
‘The Australian community expects non-citizens to obey Australian laws while in Australia. Where a non-citizen has engaged in serious conduct in breach of this expectation, or where there is an unacceptable risk that they may do so, the Australian community, as a norm, expects the Government to not allow such a non-citizen to enter or remain in Australia.’
Paragraph 8.5(3) of the Direction provides that the above expectations of the Australian community apply regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
Paragraph 8.5(4) of the Direction provides guidance on how the expectations of the Australian community are to be determined. This paragraph states:
This consideration is about the expectations of the Australian community as a whole, and in this respect, decision-makers should proceed on the basis of the Government’s views as articulated above, without independently assessing the community’s expectations in the particular case.
Paragraph 8.5(4) is consistent with the decision of the Full Court of the Federal Court in FYBR v Minister for Home Affairs,[3] which affirmed the approach established in previous authorities that it is not for the Tribunal to determine for itself the expectations of the Australian community by reference to an Applicant’s circumstances or evidence about those expectations. Instead, the Tribunal is to be guided by the Government’s views as to the expectations of the Australian community, which are to be found in the Direction.[4]
[3] [2019] FCAFC 185 (‘FYBR’)
[4] See Uelese v Minister for Immigration and Border Protection [2016] FCA 348; Afu v Minister for Home Affairs [2018] FCA 1311; YNQY v Minister for Immigration and Border Protection [2017] FCA 1466 and FYBR v Minister for Home Affairs [2019] FCA 500.
Paragraph 8.5(2) contains a statement of the Government’s views as to the expectations of the Australian community, which operates to ascribe to the whole of the Australian community an expectation aligning with that of the executive government which the decision maker must have regard to.
The Tribunal has formed the view that, given the seriousness and repeated nature of the Applicant’s conduct, and in light of the serious harm his conduct had caused to others, the community expectations would weigh very heavily against the revocation.
Other considerations
Legal consequences of the decision
Paragraph 9.1 of the Direction directs a decision-maker to take into account the following:
(1) Decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198, liable to removal from Australia as soon as reasonably practicable in the circumstances specified in that section, and in the meantime, detention under section 189, noting also that section 197C(1) of the Act provides that for the purposes of section 198, it is irrelevant whether Australia has non-refoulement obligations in respect of an unlawful noncitizen…
The Applicant is not a person who is covered by a protection finding. He has not made any claims that could indicate that non-refoulement obligations arise in this case.
The cancellation of the visa under s. 501 means that the Applicant will not be entitled to be granted another visa and will not be able to return to Australia to be with his family or for any other reason.
The Tribunal is of the view that consideration weighs somewhat in favour of the revocation.
Extent of impediments if removed
Paragraph 9.2 of the Direction directs a decision-maker to take into account the extent of any impediments that the non-citizen may face if removed from Australia to their home country, in establishing themselves and maintaining basic living standards (in the context of what is generally available to other citizens of that country), taking into account:
a)the non-citizen’s age and health;
b)whether there are any substantial language or cultural barriers; and
c)any social, medical and/or economic support available to that non-citizen in that country.
The Applicant is 43 years of age. He lived in New Zealand until the age of 13 and there are no language or cultural barriers that the Applicant would face if returned to New Zealand.
The Applicant claims that he suffers from PTSD, bi-polar and abandonment issues. In his sentencing report in May 2022, Judge Craigie noted that Dr Lennings’ report makes no suggestion of any such prior diagnosis or the presence of any such condition.
In his application for review, the Applicant states that he has been living in Australia for over thirty years and no longer has ties in New Zealand; no family nor relatives. The Tribunal accepts that the Applicant has not lived in New Zealand for the past 30 years. The Tribunal accepts that he may experience hardship re-settling into this country and finding employment, accommodation, etc, at least initially. However, there is nothing to suggest that the Applicant would be denied social, medical and / or economic support that would be generally available to other New Zealand citizens.
The Tribunal finds that this considerations weighs, to a limited extent, in favour of the revocation.
Impact on victims
Paragraph 9.3 of the Direction directs a decision-maker to take into account the impact of the section 501 or 501CA decision on members of the Australian community, including victims of the non-citizen’s criminal behaviour, and the family members of the victim or victims, where information in this regard is available and the non-citizen being considered for visa refusal or cancellation, or who has sought revocation of the mandatory cancellation of their visa, has been afforded procedural fairness.
There is no evidence before the Tribunal concerning the impact on victim. This consideration is neutral.
Impact on Australian business interests
Paragraph 9.4 of the Direction directs a decision-maker to take into account the following:
(1)‘Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia.’
There is no evidence before the Tribunal concerning any business interests. This consideration is neutral.
CONCLUSION
The Tribunal has found that the Applicant has a substantial criminal record and that he does not pass the character test. The Tribunal has considered if there is another reason why the decision to cancel his visa should be revoked.
The Tribunal has formed the view that the Applicant has committed serious offences, involving violent offending with respect to members of the community and in the context of domestic relationships. Some of the offending occurred in the presence of his children. There are other offences and breaches of the law as set out above. The nature of his past offending is such that the Applicant’s conduct is against the expectations of the Australian community.
The Applicant claims he now has a ‘different mindset’ and has taken steps towards rehabilitation and to avoid future drug and alcohol use. However, in oral evidence, the Applicant has denied having committed some of the offending, despite having pleaded guilty, and sought to blame others in relation to some of the offending (for example, referring to self-defence). It is not apparent from the Applicant‘s evidence that he has full insight into his behaviour.
The Tribunal has formed the view that there remains a real risk of the Applicant reoffending. The Tribunal places weight on the fact that the Applicant had been given two formal warnings in the past and was aware of the potential consequences of his reoffending. The Tribunal is not satisfied that the Applicant’s present undertaking not to reoffend would necessarily lead to different conduct, noting that in the past the Applicant had made the same undertakings and has continued to reoffend .
The Tribunal has formed the view that the protection of the Australian community, and the expectations of the Australian community weigh heavily against the revocation. The fact that the Applicant has engaged in family violence also weighs strongly against revocation.
The Tribunal places considerable weight on the best interests of the child, R. While R is not a biological child of the Applicant, the Tribunal accepts that he has a close relationship with that child and that he wants to maintain that relationship. The Tribunal accepts that if the cancellation is not revoked, there will be very limited opportunities for the Applicant to maintain a meaningful relationship with R. The Tribunal finds that the best interests of the child weigh strongly in favour of the revocation.
Another factor that weighs in favour of the revocation is the extent of the Applicant’s ties to Australia. The Applicant’s immediate and extended family live in Australia. The Applicant has been living in Australia for over 30 years and has spent his formative years in this country. The Applicant has formed social, family and employment ties in Australia. The Tribunal has formed the view that the extent and duration of the Applicant’s ties to Australia weigh strongly in favour of the revocation. The Tribunal acknowledges that the Applicant may have very limited, if any, links with New Zealand where he has not lived for many years. The Tribunal accepts that there may be some impediment to the Applicant if he is removed as he would need to resettle in a country where he has not lived for over 30 years. This weighs in favour of the revocation.
Having carefully considered all the circumstances, the Tribunal has decided to give greatest weight to the primary considerations of protection of the Australian community, the fact that some of the offending conduct constitutes family violence, and the expectations of the Australian community. In the particular circumstances of this case, The Tribunal has decided that these considerations outweigh other considerations.
The Tribunal has decided that the decision under review should be affirmed.
DECISION
The Tribunal affirms the decision not to revoke the cancellation of the Applicant’s Special Category Class TY visa.
I certify that the preceding 113 (one hundred and thirteen) paragraphs are a true copy of the reasons for the decision herein of Senior Member K Raif
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Associate
Dated: 12 October 2023
Date(s) of hearing: 4 October 2023 Applicant: In person Solicitors for the Respondent: Kate Ervin, Clayton Utz
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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Natural Justice
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Jurisdiction
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Statutory Construction
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