Barton and Minister for Home Affairs (Migration)
[2018] AATA 3261
•6 September 2018
Barton and Minister for Home Affairs (Migration) [2018] AATA 3261 (6 September 2018)
Division:GENERAL DIVISION
File Number(s): 2018/3483
Re:Daena Barton
APPLICANT
AndMinister for Home Affairs
RESPONDENT
DECISION
Tribunal:Chris Puplick AM, Senior Member
Date:6 September 2018
Place:Sydney
The decision under review is affirmed
.........................[sgd]...............................................
Chris Puplick AM, Senior Member
CATCHWORDS
MIGRATION – mandatory visa cancellation – character test – discretion to revoke mandatory visa cancellation – substantial criminal record – sentence of imprisonment – driving offences – domestic violence offences – repeated breaches of apprehended violence orders – drug misuse –– mental health issue – protection of the Australian community – best interests of minor children in Australia affected by the decision – expectations of the Australian community – decision affirmed
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501, 501CA
Mental Health Act (NSW) s 33
CASES
Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755
Ahori v Minister for Immigration and Border Protection [2017] AATA 601
BFXK and Minister for Immigration and Border Protection [2018] AATA 886
Darwich and Minister for Immigration and Citizenship [2007] AATA 2106
Do and Minister for Immigration and Border Protection [2016] AATA 390
Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409
G v Minister for Immigration and Border Protection [2018] FCA 1229
Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774
Mahu and Minister for Immigration and Border Protection [2018] AATA 161
Mendoza v Minister for Immigration and Border Protection Citizenship) [2018] AATA 686
Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13
Nevistic v Minister for Immigration and Ethnic Affairs [1981] 34 ALR 639
Oluwafemi and Minister for Home Affairs [2018] AATA 690
Prasad v Minister for Immigration and Border Protection [2017] AATA 1506
Re Drake and Minister for Immigration and Ethnic Affairs (No.2)[1979] 2 ALD 634
Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306
Rowe v Minister for Home Affairs [2018] AATA 2708
Sharma v Minister for Immigration and Border Protection[2015] AATA 608
Suleiman v Minister for Immigration and Border Protection [2018] FCA 594
Uelese v Minister for Immigration and Border Protection [2016] FCA 348
YNYQ v Minister for Immigration and Border Protection [2017] FCA 1466
SECONDARY MATERIALS
Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA
REASONS FOR DECISION
Chris Puplick AM, Senior Member
6 September 2018
BACKGROUND
Daena Barton is a citizen of New Zealand. He is 37 years old and arrived in Australia on 3 November 2002[1] holding a Subclass 444 (Special Category) visa.
[1] Section 501- G Documents at [74].
At the time of his arrival (aged 21) he already had several convictions for offences in New Zealand. These involved possession of cannabis and drug equipment; improper use of a document (unspecified); breach of a periodic detention order and burglary. He was ordered to pay several fines and, in relation to the burglary charge, received a sentence for a period of nine months imprisonment, suspended for one year with community corrections orders attached. On a subsequent burglary count he was sentenced to a term of imprisonment of three months and denied leave to apply for home detention. On a further charge of “unlawful takes motor vehicle etc” he had previously been convicted and sentenced to a period of community service for 40 hours.[2]
[2] Section 501-G Documents at [25]-[26] New Zealand Police Report.
Mr Barton did not disclose details of these convictions on his incoming passenger card when he arrived in 2002[3]. In relation to this he told the Tribunal that this was his first ever trip outside New Zealand, his first flight and that he was “scared” to reveal such details lest he be “embarrassed” at the prospect of being returned to New Zealand on his first flight. Although the Respondent did not press this point strongly in their submissions, the Tribunal notes that Mr Barton clearly (and correctly) understood the possible consequences of his actions and knew them to be wrong.
[3]Section 501- G Documents at [70].
During the next 15 years Mr Barton committed a number of offences in Australia until on 12 October 2017 he was convicted of an offence of domestic violence and breaching an Apprehended Violence Order (AVO) and sentenced to a term of imprisonment of 12 months with a non-parole period of six months.[4]
[4] Applicant served 182 days in custody. (29 August 2017-27 February 2018). Respondent Statement of Facts, Issues and Contentions at para [12].
It was this sentence of imprisonment which led to the mandatory cancellation of his visa on 15 November 2017 under section 501(3A) of the Migration Act 1958 (the Act) which mandates cancellation of a person’s visa where they have been found to have a “substantial criminal record”.
Mr Barton applied for a review of this mandatory cancellation on 24 November 2017 but the decision was affirmed by the Minister’s Delegate on 20 June 2018.[5] On 25 June 2018 Mr Barton sought a review of the Delegate’s decision by this Tribunal which heard his application on 30 August 2018. Under section 500 (6L)(c) of the Act the Tribunal is required to publish its decision on or before 12 September 2018 otherwise the reviewable decision is affirmed.
[5] Section 501-G Documents at [9]-[20].
It is necessary to set out the provisions of the Act which govern the cancellation of visas where a visa-holder is determined to have a substantial criminal record.
THE LEGISLATIVE SCHEME – A BRIEF OUTLINE
Section 501(3A) of the Act provides that the Minister must cancel a person’s visa in the following circumstances:
(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
... 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.
This visa cancellation process is mandatory.
Section 501(6)(a) of the Act then provides that a person does not pass the character test if they have a “substantial criminal record”. Relevantly for this application, s 501(7)(c) provides:
(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;
It can thus be seen clearly in relation to Mr Barton that the cancellation of his visa was an automatic process: he was serving a sentence of imprisonment and further, he cannot meet the required “character test” because that sentence of imprisonment (as distinct from the period of time actually served) was for a period of at least twelve months.
Once the original decision has been made the Minister must notify the person and give them an opportunity to respond to it. Section 501CA of the Act outlines the process:
(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.
It is up to the individual concerned to place before the Minister whatever information they think relevant for the Minister’s consideration. Upon receipt of such representations, the provisions of sections 501CA(4) and (5) come into effect 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.
(5)If the Minister revokes the original decision, the original decision is taken not to have been made.
A decision on such an application is, in most circumstances, made by a delegate of the Minister. In the Applicant’s case, this review decision, as noted above, resulted in a determination that the mandatory revocation should not be set aside. This is the reviewable decision now before the Tribunal.
In coming to their decision, the Delegate noted that since the Applicant had, by definition, failed the character test, it was required that the Delegate consider whether there was “another reason” for the revocation to be set aside.
In doing so the Delegate followed the requirements set out in Direction No. 65, Visa Refusal and Cancellation under s 501 and Revocation of a Mandatory Cancellation of a Visa under s 501CA (the Direction) (discussed below) in coming to their conclusion. This is because under s 499(1) of the Act the Minister may give written directions to a person or body having functions or powers under the Act if such directions concern the performance of those functions or the exercise of those powers. When such a direction has been given in accordance with that section, a person or body having those functions or powers under the Act must comply with such direction (s 499(2A) of the Act).
It will be necessary to return to the operation of Direction 65 in due course.
MR BARTON’S FAMILY
Mr Barton has been in an intimate/de facto domestic relationship with Ms Cheryle Brider for some 14 years[6]. They have two daughters, Daughter 1 (aged 13) and Daughter 2 (aged 12). Until recently, when Mr Barton and Ms Brider separated, they all lived together at a home in Guilford (NSW). Also living at that home for various periods were three sons of Ms Brider from former relationships. The eldest son is aged 27 and also has a one year old daughter. The middle son is aged 25. The youngest son is now aged 24 and also has a partner (aged 26)[7]. Until recently the youngest son lived with the family but he now has his own separate living arrangements.[8]
[6] Section 501- G Documents at [46].
[7]Section 501- Supplementary Documents at [33].
[8] Although the sons in question are now all adults, their names have been redacted throughout this decision because, at the time of the events described, they were minors as are the two daughters
Both of Mr Barton’s daughters are insulin dependent diabetics, as is Ms Brider. Other members of the family also have compromising illnesses.[9]
[9] Section 501- G Documents at [58].
Mr Barton’s mother lives in Parramatta (NSW) and has done so for many years, apparently arriving in Australia in the late 1990’s. Mr Barton has an elder brother who lived in Australia from approximately 1996 to 2015 when he returned to New Zealand. He has a family of four children (ages unknown). Mr Barton has no contact, other than an occasional Facebook posting with his father, who was never part of his family environment. His father has a second family with whom Mr Barton has no contact. They are all resident in New Zealand.
MR BARTON’S OFFENCES
It is necessary to consider the full extent of Mr Barton’s offences and in particular those which were relevantly antecedent to his October 2017 conviction.
Before doing so however, it is necessary to acknowledge the occurrence of an incident which took place shortly after the birth of Daughter 2 in 2006. Under questioning by the Respondent it emerged that there was an incident where, following some sort of parenting dispute about the newborn, Mr Barton grabbed a “kid’s fluffy toy” (apparently a panda bear) and hit Ms Brider with it repeatedly, occasioning her some degree of pain from its hard facial surfaces, although not leaving her bruised or marked in any way.
The National Police Record[10] reveals that on at least five occasions Mr Barton was convicted of driving offences. These offences included driving without a licence (Mr Barton informed the Tribunal in evidence that he had never obtained such a licence), driving while disqualified, using an uninsured motor vehicle and driving with illicit drug (marijuana) in his blood. These offences resulted in the imposition of several fines.
[10] Section 501- G Documents at [22]-[24].
There are then: a single conviction for common assault (domestic violence); three for breaches of an AVO and three for the offence of “stalk, intimidate intend fear physical etc harm”.
Mr Barton informed the Tribunal that he pleaded guilty on each occasion that he came before the Court.
Domestic Violence Incident: August 2009
It is necessary for the Tribunal to recount some details of this incident which took place on 30 August 2009.[11] In brief:
[11] The Police Fact Sheet gives the date as Sunday 30 August 2009 (Supplementary Documents at [24]) whereas Ms Brider’s Witness Statement gives the date as Sunday 31 August 2009 (Supplementary Documents at [32]). The correct date appears to be Sunday 30 August.
·Mr Barton was at home on the Sunday morning in question when an argument commenced between himself and Ms Brider
·This extended to involve the youngest son (of Ms Brider by a previous marriage) with whom Mr Barton started a verbal argument involving some strong language. It is clear from other evidence that Mr Barton and the youngest son have an established relationship of hostility towards each other.[12]
[12] See comments by the Delegate in report of 20/06/18 making reference to a pre-sentencing report (not before the Tribunal) quoted by the Sentencing Magistrate. Section 501- G Documents at [15] para 42.
·Ms Brider took steps to remove herself and her two young daughters who she was proposing to get into her car and depart the house
·As she was doing so, Mr Barton threw a glass of juice at Ms Brider which hit her in the face causing some pain. He then threw a sandwich at her, again hitting her in the face
·This caused the youngest son to intervene in defence of his mother which in turn resulted in Mr Barton assaulting him. In her statement to Police, Ms Brider says that Mr Barton, “punched (the youngest son) in the face. The punch hit (the youngest son) in the nose and I saw (his) nose bleed.”[13] Mr Barton’s version of events, in relation to this victim, is that he “slapped him but not punched him … on the cheek”[14] and that he noticed no blood or bleeding at the time. He did however feel that he “wanted to kill” him, but he did so in a mood state where he felt that he had “blanked out.”[15]
[13] Further Supplementary Documents at [33].
[14] Further Supplementary Documents at [52]-[54].
[15] Further Supplementary Documents at [54].
·The argument temporarily subsided when Mr Barton went outside, but he returned some moments later by which time the youngest son had retreated to his bedroom. Mr Barton pursued him there and when Ms Brider attempted to intervene he pushed her out of the way aggressively and proceeded to grab him by the neck, pinning him down on his bed, with (according to Ms Brider) “one hand across (his) mouth and the other hand around his throat.”[16]
[16] Further Supplementary Documents at [33].
·Ms Brider intervened to pull Mr Barton away from the youngest son who ran out of the room and then out of the house and up the road. Mr Barton responded by picking up two small axes (tomahawks[17]) from the front verandah of the house and chased him up the street waving the tomahawks above his head and shouting, “Run you little bastard before I kill you.”[18]
[17] A picture of these two small axes (tomahawks) was tendered in evidence before the Court and are pictured at Further Supplementary Documents [45].
[18] Further Supplementary Documents at [34].
·Mr Barton gave up the pursuit while the youngest son eventually managed to find a neighbour who called the Police. In the meantime Mr Barton had returned to the house, passing Ms Brider on the way and yelling at her, “You too bitch.”[19]
[19] ibid.
·It is of some significance that Ms Brider goes on in her statement to record the following:
“19. About 15 minutes later I walked back into the house and spoke to Daena. Daena said, “I didn’t want the demons to come out again. What is wrong with me?”
I said – I am not going to answer that. You just hurt me. I didn’t want to be hurt again.
He said – I wouldn’t do that. I have spoken to Nathan (his brother, then resident in Australia) on the phone and he is coming to pick me up. Where is (the youngest son), who did he ring?
I said – He has called the Police.
He said – Tell case to come back to the house.
I said – He won’t come back.
He said – Go and get him.
I said – No.
20. Daena walked out into the backyard and said, “OK I will wait till they come.” About an hour later the Police arrived and arrested Daena and took him away from the house.”[20]
[20] ibid.
The Tribunal cannot but note that despite the trauma of this incident, Ms Brider returned to the house and engaged in a rational conversation with Mr Barton who appears to have realised to some degree the seriousness of his behaviour and have acknowledged his lack of self-control. He waited for the Police to arrive despite having called is brother to come and collect him. The Respondent suggested to Mr Barton that Ms Brider’s reference to being “hurt again” may well relate to the 2006 incident with the child’s toy and Mr Barton indicated that he agreed with that suggestion.
It is also relevant to note that this incident took place in full view of Mr Barton’s two minor daughters. In fact it was this incident which led the Police to report 4 children (the two daughters and the two younger sons) to the Department of Community Services (DOCS).[21] On previous occasions no such referrals had been made,[22] and none had been assessed as being at risk.[23] In evidence Mr Barton indicated that there had been continuing contacts with DOCS officers who visited the home frequently, but that no further matters had resulted from any of these visits.
[21] Further Supplementary Documents at [64].
[22] Supplementary Documents at [6] and [50].
[23] Supplementary Documents at [36].
When this matter came before the Court on 1 September 2009 (common assault domestic violence, armed with intent to commit indictable offence) the Court made an order under section 33 of the Mental Health Act (NSW) and Mr Barton was taken to Cumberland Hospital, for assessment and treated and where he remained for a matter of some months. There appears to have been no other penalty imposed at this time.[24]
[24] Section 501- G Documents at [24].
However the same matter came back before the Court to be dealt with judicially on 20 October 2010. There are no sentencing remarks held in relation to this appearance[25], but the Court imposed as order as follows:
“bond s9: 2 years to accept the guidance of a psychiatrist or psychologist, to take medication as prescribed and to attend for counseling, rehabilitation or educational development in accordance with medical advice. Nominated psychiatrist Dr Feye of Dundas Community Health. To be of good behaviour not to harass or threatened to harm or assault [the youngest son], notify court of any change of address.”[26]
[25] Section 501- G Documents at [11] paragraph 19.
[26] Section 501- G Documents at [24].
Breaches of Apprehended Violence Orders
·On 14 April 2015 an incident occurred at the family home during which Mr Barton appears to have become particularly agitated and started to slam doors and punch furniture. He and Ms Brider were also arguing about work arrangements in which Mr Barton wanted Ms Brider to undertake some sort of on-line course in preparation for the couple establishing their own business, but the latter refused to do so as she believed it involved her taking time off work. After hitting the furniture, Mr Barton turned aggressively towards Ms Brider and said, “That’s your face next.” Fearful for her safety, Ms Brider left the premises and called the Police. When they arrived, Mr Barton said to them: “If she comes back here, I’m gonna fucking smash her.”[27]
[27] Supplementary Documents at [3].
·This resulted in an AVO being placed on Mr Barton on 15 April 2015 the terms of which (inter alia) prohibited Mr Barton from residing at the home address, coming with 100m of the premises, threatening, harassing, stalking or intimidating the victim (Ms Brider) or contacting her other than through legal representatives.[28]
[28] Supplementary Documents at [30]. An initial Police-initiated AVO was put in place on 14 April 2015. Supplementary Documents at [4].
·On 27 May 2015 this incident came before the Local Court at Parramatta where Mr Barton was placed on a bond for two years with a requirement to attend for counselling, educational development or rehabilitation services and was made subject to the supervision of the NSW Probation Service.[29]
[29] G Documents at [23].
·On 29 June 2015 Mr Barton, in breach of the terms of the AVO, entered the family home, started swearing and calling out words to the effect that, “I’m boss of this house”. On this occasion it does not appear that Ms Brider was resent, but her middle son was at home and he felt intimidated by this intrusion. He called his mother who initially tried to call Legal Aid, but failing that, called the Police.[30]
[30] Supplementary Documents at [33].
·On 3 September 2015 Ms Brider was at home when she heard an argument taking place in the granny flat at the back of the property which is rented to a third party. She went outside to investigate and found Mr Barton engaged in an argument with this third party which she says was “a heated argument … in relation to the consumption of drugs.” Mr Brider returned inside and called the Police who arrested Mr Barton who apparently told them that, Yeah, I know. I shouldn’t be here.”[31]
·The Tribunal notes that in the Police Fact Sheet recording this event it is recorded that:
“The accused has been charged with breaching his AVO twice since 20 July 2015, both of these matters are still before the court. Given that it seems apparent that this accused places little or no regard in the AVO and the conditions it places on his behaviour. Police however noted that the accused was in no way violent or aggressive towards the protected person and only breaching the AVO by being within 100 metres of the property. Both the victim and the accused indicated to police that they are trying to get the AVO dropped. The accused was compliant with police at all times.”[32]
·The AVO in question was indeed modified on 2 February 2016. The revised AVO provided that Mr Barton must not stalk, intimidate, assault, threaten or molest Ms Brider, but the restrictions on cohabiting were lifted. This AVO was made valid for a period of twelve months.[33]
·On 27 October 2015, due to the breach of the AVO (apparently that of 29 June 2015), this matter, returned to court, via a call-up, where additional community service orders were imposed.[34]
·On 18 January 2016 at Fairfield Local Court it appears that the 3 September 2015 AVO breach was dealt with and a fine of $100 imposed.[35]
·On 11 October 2016 Mr Barton was before the Local Court in Blacktown accused of the offences of “stalk/intimidate/ breach AVO”. It is actually difficult from reading the sentencing remarks of Her Honour Magistrate Hawdon to establish the full nature and extent of the matters in question. A Police Report dated 9 August 2015 suggests that this relates to an incident where Mr Brider was out at a restaurant on 15 July 2015, when Mr Barton contacted her on her mobile phone and made a number of seriously threatening remarks such as: “I’ll smash your face in and take you out.” There were apparently several such threatening phone calls made to her while she was at the restaurant. Ms Brider reported the matter to the Police the following day indicating that she believed that while Mr Barton posed no threat to her children she “believed him physically capable of harming her.”[36]
·In dealing with this matter, the Sentencing Magistrate indicated that she accepted that Mr Barton had said “some appalling things” to Ms Brider and that they “were certainly intimidatory words that I am sure would strike fear into the heart of most women, but I do have to say they were not accompanied by any actual violence.” Her Honour imposed a suspended sentence of seven months (11 October 2016 to 10 May 2017) and a seven months bond.[37]
[31] Supplementary Documents at [48].
[32] Supplementary Documents at [47].
[33] Supplementary Documents at [58].
[34] Section 501- G Documents at [23].
[35] Ibid.
[36] Further Supplementary Documents at [9].
[37] Section 501-G Documents at [35]-[36].
There are several other matters to note arising from the evidence before the Court on 11 October 2016. In the first instance, the legal representative for Mr Barton noted that he had “the prior benefit of supervision with Community Corrections and to his credit it has been positive. He has enjoyed one year’s supervision with them, and he tells me it was quite positive, he engaged in various counselling program, he completed, I understand, a domestic abuse program successfully.” The representative went on however to concede that “we are unable to see the fruits of his efforts.”[38]
[38] Section 501-G Documents at [33].
Perhaps more to the point Mr Barton’s representative stated that his relationship with Ms Brider “has come to an end and he asks me to convey to the Court that once this matter is finalised he will have no interest or need to recommence the relationship.”[39]
[39] Section 501- G Documents at [34].
When Her Honour raised the matter of the children of the relationship, the representative stated:
“His position with relation to that is he doesn’t intend to enliven the issue with his children if it causes issues for him with respect to his partner, so at this stage the issue with the children is unresolved. He tells me he would keep his distance and have nothing to do with the victim and the children so as to avoid placing himself in any further situations in which offences like this can occur.”[40]
[40] Ibid.
It is apparent that Mr Barton’s alleged position of not seeking to maintain a relationship with his ex-partner or children did not persist.
On 26 August 2017, although the parties were separated, Mr Barton was attempting to arrange to see one of his daughters, an attempt apparently being resisted by Ms Brider. The remarks of the Sentencing Magistrate are best quoted in full:
“The defendant, Daena Barton, has entered a plea of guilty to a contravene apprehended violence order and an intimidation on 26 August 2017. The intimidation is very serious. The defendant had been trying to arrange to see his daughter with the complainant, his ex-partner Cheryl (sic)[41], and that became an argument. In that argument the defendant said, “I’m going to come and burn your house down with you in it. I’m going to come and break your neck.”
Cheryl then challenged him and they started sending text messages to each other, swearing and arguing, saying hurtful things. One of the text messages escalated aby the defendant saying to Cheryl, “That’s all I need Cheryl. Now I’m going to hunt you down”, She told him that she had contacted the police and his brother so that he would stop threatening everybody and for him to go and see Ian and settle down. The defendant replied, “No, I’m coming for you hard”. Cheryl then told him again the police were on their way and he said:
“No, that’s fine all round like old times, aye, Cheryl, and when I get out you’re dead. I won’t be long behind bars. You need me dead, motherfucker. I hope the cops have a field day looking for me before I break your neck. And the cops find me in time, Cheryl. Do you know what else is frequent beside death by drugs? Death by partners who didn’t figure it out last time. Very frequent. It’s becoming normal as well, partners killing partners, bare hands or not. This is the last time you ever call a cop.”
The police spoke to the defendant about 8.30 and during that conversation the defendant said to the police officer, “I don’t care what you say, I’m going to come and get her. Before you get me I’ll get to her. I’m not going back to gaol. I’m going to finish her off before you get to me.” He then sent a text message saying, I’m not going to hurt anyone. I hate violence, which is why I guess I send messages instead.”[42]
[41] Cheryle Bridie’s name appears incorrectly throughout the court transcript as “Cheryl.”
[42] Section 501- G Documents at [29]-[30].
In relation to this matter, Her Honour imposed a term of imprisonment on Mr Barton for twelve months with a non-parole period of six months commencing on 28 August 2017 and ending on 27 February 2018. In addition Her Honour imposed a five year AVO. The terms of the AVO prevent Mr Barton from threatening, stalking or harassing Ms Brider, approaching or contacting her (other than through a lawyer), trying to find her or approach within 200 m of where she lives or works.[43] Although this AVO does not explicitly refer to Mr Barton’s daughters it is clear that it would be almost impossible for him to have any contact with them while they remain living with their mother or otherwise in her care and custody.
[43] Section 501- G Documents at [31].
After the imposition of the sentence, the following exchange is recorded:
Accused: What happens after the five years? Start a whole new one? 12 months is long enough for me to go back to New Zealand? Deportation? Is 12 months long enough for me to go back to New Zealand? Deportation?
Her Honour: I don’t know anything about the deportation.
Accused: You said 12 months permanent resident.
(Legal Aid representative): Yes, you will be deported, but you have got a right to review that.
Accused: No I don’t want to. I’ll see you back in New Zeeland, Cheryl.
(Legal Aid representative): You can go back to NZ.
Accused: Yeah. When can I go for that?
Her Honour: I have no idea.
Accused: Are you going to tell me, Legal Aid, or what?
Her Honour: He won’t know either. It depends on what the Immigration department do. It has got nothing to do with the Courts.
Accused: No worries.”
MR BARTON’S ISSUES WITH DRUGS
It is clear from all the evidence and from Mr Barton’s own admissions that he has a long history of drug use. This started with the use of marijuana before he left New Zealand and continued after his arrival here, although he told the Tribunal that from time to time he stopped using it. However from about 2009 his use of marijuana was fairly continuous until, in about 2013, he started using methamphetamines, primarily in the form of “ice”. Once on “ice” he stopped using marijuana. Mr Barton told the Tribunal that his “ice” use was about half a gram per week for which he paid about $200. The Tribunal notes there is no actual suggestion that Mr Barton was addicted to “ice” and this level of usage would indeed suggest otherwise.
Ms Brider makes several references in various statements to the fact that when Mr Barton is using drugs his behaviour alters and he becomes aggressive, withdrawn, “dark”, difficult to live with and uncommunicative. She also says that he diverts family rent money to pay for his drugs.[44] Letters from his two minor daughters also state that they see problems when their father is using drugs.[45]
[44] Section 501-G Documents at [54]-[59].
[45] Section 501- G Documents at [62] and [63].
By contrast, Mr Barton himself insists, contrary to the observations of others, and perhaps contrary to what common sense might suggest, that, according to his legal representative before the Court:
“…. What Mr Barton tells me is that he is a user of drugs, although he tells me it’s been happening for quite some time, he doesn’t believe it as an entrenched drug issue or an issue which affects his behaviour in any way affecting his offending behaviour, so it’s Mr Barton’s instructions that the drug issues and he mental health issues are not related to the current offending.”[46]
This was the position that Mr Barton maintained when giving evidence to the Tribunal.
[46] Section 501- G Documents at [34].
MR BARTON’S MENTAL HEALTH ISSUES
Again, in evidence before the Court, Mr Barton’s legal representative drew attention to the fact that Mr Barton had been diagnosed as suffering from schizophrenia. This of course is often one of the manifestations of use of “ice”. However, as cited above, Mr Barton denies that any such mental health condition might, in any way have contributed to his offending behaviour. There is no actual medical evidence before the Tribunal of such a diagnosis, although in evidence Mr Barton said that such a diagnosis had been made by a “mental health doctor in Carlingford”. This may (or may not) refer to the Dr Feye of the Dundas Community Health centre designated in the 20 October 2010 bond conditions (see above). In any event Mr Barton told the Tribunal that following this diagnosis he was prescribed appropriate medication but that he discontinued talking it for no apparent reason other than that he did not like doing so.
As already noted, the first occasion on which Mr Barton came before the court on assault charges resulted in him being hospitalised under the provisions of NSW mental health legislation.
At various times Mr Barton has appeared to recognise the need to seek some help with his mental health issues. When interviewed by the Police about his assault on the youngest son in he asked for access to a psychiatrist who he wanted to help him write down his version of events and his feelings at the time.[47] At the time he claimed that: “I wasn’t mentally stable at the time.”[48] He admits that he has “demons” that he needs to keep at bay.[49] He told the Tribunal in evidence that he benefitted from seeing a “psychologist” but that he did not like “psychiatrists” on the basis that the former were of more practical help to him; and indeed he said much the same thing to the Court in October 2017.[50]
[47] Further Supplementary Documents at [56]-[57].
[48] Further Supplementary Documents at [50].
[49] Supplementary Documents at [34].
[50] Section 501- G Documents at [28]-[29].
Despite this, before the court in October 2017, Mr Barton told it that he did not think he needed any assistance with mental health issues or support. He said: “The mental health is over. It’s been over for a long time.”[51]
[51] Section 501- G Documents at [28].
The Tribunal cannot but observe that Mr Barton’s stunning lack of real insight into his issues related to mental health and drugs have undoubtedly been contributing factors to his behavioural problems. His lack of efforts to deal with them in a formal sense and his failure to avail himself of those opportunities which were presented at various times has played no small part in leading him into his current predicament.
His failure to adhere to prescribed medication cannot have but been a further contribution to this problem, indeed in one of her statements Ms Brider refers specifically to Mr Barton’s behavioural problems being occasioned by “not taking his medication for mental illness”[52] and one of the Police reports notes the diagnosis of schizophrenia but records that it is “not medicated.”[53]
[52] Supplementary Documents at [21].
[53] Supplementary Documents at [5].
MINISTERIAL DIRECTION 65
Under section 499 of the Act, the Minister is authorised to issue Directions to decision-makers to guide them, by statement of government policy, as to how they should evaluate various matters which are outlined in the Act and which must be considered by decision-makers.
Ministerial Direction 65 was made on 22 December 2014. The Tribunal is required to take it into account and give it full and proper regard when making its own independent decision on a request for revocation of a visa cancellation.
As far back as 1979 the Full Federal Court held that:
“If the original decision maker has properly paid regard to some general government policy in reaching his decision, the existence of that policy will plainly be a relevant factor for the tribunal to take into account in reviewing the decision. On the other hand, the tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision was, on the material before the tribunal, the correct and preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[54]
[54] Drake v Minister for Immigration and Ethnic Affairs [1979] 46 FLR 409 at [420].
In a further review of the same case, the then President of this Tribunal made it clear in relation to Ministerial discretion (as expressed in policy directions) that “His discretion cannot be so truncated by a policy as to preclude consideration of the merits of a specified class of cases.”[55]
[55] Re Drake and Minister for Immigration and Ethnic Affairs (No.2)[1979] 2 ALD 634 at [640].
In 1981 the Full Federal Court warned that:
“On the other hand, the Tribunal is not, in the absence of specific statutory provision, entitled to abdicate its function of determining whether the decision made was, on the material before the Tribunal, the correct or preferable one in favour of a function of merely determining whether the decision made conformed with whatever the relevant general government policy might be.”[56]
[56] Nevistic v Minister for Immigration and Ethnic Affairs [1981] 34 ALR 639 per Lockhart J at [651-652]. See also Franki J at [642] and Deane J at [646].
In 1985 the Tribunal noted:
“Policy is not law. A statement of policy is not a prescription of binding criteria. By conferring a discretion upon the decision-maker, the law requires that all matters relevant to the exercise of the discretion shall be taken into account”.[57]
[57] Re ER Aston and Y Aston and Secretary to the Department of Primary Industry [1985] AATA 306 at [21]
In 1994 the Full Federal Court opined:
“it is right to say that the tribunal which operates as part of a continuum of administrative decision-making, is not bound by government policy although it may take such policy into account in the exercise of the statutory power or discretion which is under review.”[58]
[58] Minister for Immigration, Local Government and Ethnic Affairs v Gray [1994] 33 ALD 13 at [28].
Most recently, Mortimer J, after a comprehensive review of the authorities on this matter concluded:
“…policy is not to become a rule of law. The statute is the expression of the rule of law. Executive policy cannot, in form or more importantly in substance, be perceived by decision-makers as, or operate as, a rule.”[59]
[59] G v Minister for Immigration and Border Protection [2018] FCA 1229 at [210]
This Tribunal draws heavily upon the recent decision by Senior Member PW Taylor SC in Aciek,[60] where the relationship between Ministerial Direction 65 and the statutory responsibilities of the Tribunal is stated with utmost clarity:
7. Direction no. 65 does not derogate from the Tribunal’s duty to reach the preferable decision in the particular case before it. The guidance it provides is intended to assist in reaching such a decision:- Uelese v Minister for Immigration and Border Protection [2016] FCA 348 at [50] per Robertson J. As the Minister submitted in that case
[35]... the Direction does not determine the law or alter the content of the law. Rather, it provides guidance and direction to decision-makers. Decision-makers are required to comply with the Direction but the Direction does not itself create, vary or remove rights, privileges or obligations. In particular, the Direction does not impose any limit on the matters that may be taken into account; properly construed, it does not stipulate the weight to be given to those matters in each and every case; and does not make relevant (in a mandatory sense) any consideration that is not already relevant by reason of the text and context of s 501 of the Migration Act.
8. The “another reason” criterion for the exercise of the revocation discretion requires an evaluative assessment of all the relevant matters. The purpose of the required evaluation is to achieve a result that is “fair and rational in all of the circumstances”:- Minister for Immigration and Border Protection v Lesianawai [2014] FCAFC 141 at [80]- [83]; [2014] FCAFC 141; 227 FCR 562. The decision must be legally “reasonable” – in the sense of having a rational foundation and a result that is not plainly unjust:- Ogbonna v Minister for Immigration and Border Protection [2018] FCA 620 at [13]- [20]. Where the discretion falls to be exercised in the Tribunal’s review jurisdiction, that jurisdiction is to be exercised for the purpose of achieving the “correct or preferable” result, having regard to the terms and purpose of the relevant statutory provisions, and the available relevant information:- Drake v Minister For Immigration and Ethnic Affairs (1979) 24 ALR 577 at 589. It necessarily follows that the required consideration must address the matters that favour revocation and those that do not:- Marzano v Minister for Immigration and Border Protection [2017] FCAFC 66 at [30]- [32]; Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at [38]. The process of addressing those matters must involve “an active intellectual engagement” and genuine, proper realistic consideration of the relevant information:- Lafu v Minister for Immigration & Citizenship [2009] FCAFC 140; (2009) 112 ALD 1 at [48]–[49]; Minister for Immigration and Citizenship v SZJSS [2010] HCA 48; (2010) 243 CLR 164 at [26]; Maioha v Minister For Immigration and Border Protection [2018] FCA 1016 at [24]- [26].
[60] Aciek and Minister for Home Affairs (Migration) [2018] AATA 2755.
Having addressed that question, the Tribunal returns to the provisions of Ministerial Direction 65. It establishes various matters for consideration, describing some as “primary considerations” and others as “other considerations”.
Three “primary conditions” related to revocation requests are set out as:
·Protection of the Australian community;
·Best interests of minor children in Australia affected by the decision; and
·Expectations of the Australian community.[61]
[61] Part 13.
The protection of the Australian community requires a decision-maker to have regard to both the likelihood of the applicant reoffending if permitted to remain in Australia and the potential adverse consequences of any such reoffending.
Given Mr Barton’s record in relation to breaches of various AVOs and the threats of violence which have been associated with them, although the Tribunal notes that no acts of violence were actually committed during such breaches – they being matters which occurred in another context – the Tribunal cannot come to any conclusion other than that there is a high likelihood of Mr Barton reoffending at some time within the five years of the current AVO. The absence of physical violence, although relied upon by Mr Barton in mitigation of his offences[62] cannot be taken as a sufficient guarantee that this will not occur at some time in the future.
[62] G Documents at [50] and [68]
In Mendoza this Tribunal discussed the nature of domestic violence noting that:
“Such forms of violence are unacceptable at any time – in any place – in any circumstances – and whether manifest physically, emotionally or psychologically.”[63]
[63] Mendoza v Minister for Immigration and Border Protection Citizenship) [2018] AATA 686 at [48].
The Tribunal has no doubt that the various victims of Mr Barton’s, primarily Ms Brider, have suffered considerable emotional and psychological distress and trauma as a result of his actions and they are vulnerable to any chance of them reoccurring. The Tribunal notes that the youngest son appears to be the only family member to have suffered physical harm, but that is not the sole criterion upon which threats to others must be assessed.
As noted in the Police Report cited above, Mr Barton seems to display an utter sense of indifference to the terms, conditions and significance of court-ordered AVOs.
Because there is a significant chance that Mr Barton will offend again and that his victims will potentially suffer significant harm, this criterion must be weighed significantly against Mr Barton’s application.
In relation to the best interest of the minor children, it is only the interests of the two minor daughters which are relevant. Each of them has submitted a letter in support of Mr Barton, they are in generally similar terms and they were (by acknowledgement) written by their mother. However, they cannot and should not be disregarded simply on that basis.
The elder daughter says that she knows that her father “is not well”; that he changes and becomes angry (presumably when he is taking drugs) and often shouts and yells at the family; that when he is “good” he is fun to be with and that there is a marked effect on the family when he is “sent away.” She says that sending him to New Zealand would “crush” her, although she admits that “My older brother ….. talks badly about my Dad a lot and said he ruined his life, but he’s my Dad and I love having him around.” Finally she pleads that he not be deported because she, her sister and Mum “would not cope” and he “would go back to New Zealand and become in trouble I suppose and hit the drugs.”[64]
[64] Section 501- G Documents at [60]-[62].
The younger daughter says that Mr Barton sometimes “yells a lot when he’s angry and he yells which really upsets me and sometimes frightens me. When my Dad is like this I am aware that he’s been taking marijuana, but he became worse and I always heard Mum say ICE – Mum and Dad argued about it all the time.” Nevertheless she says that she loves her Dad, that he’s often good to her and that they have a great time together as he takes her to school, shopping, the movies and the footy. He takes her out for dinner and watches her netball games. She says that things were always good “before he changed.”[65]
[65] Section 501- G Documents at [63]-[64].
In some ways these are really sad letters. It is clear that the girls love their father and that when he is drug-free he can be a good father to them. But equally, they are aware that he takes drugs, that this causes his mood and behaviour to change and that when this occurs they feel threatened. Ms Brider’s own representations on this matter add to the Tribunal’s concerns about the negative impact on the children of Mr Barton’s drug use and the extent to which this drug use caused “the kids to hate him” and worry about his change in behaviour.[66]
[66] Section 501- G Documents at [57].
Nevertheless, with the caveat regarding the role and influence of Ms Brider on the writing of these letters they must be given some degree of weight and regard.
What colours the Tribunal’s assessment is however, the presence of the five year AVO which has the practical (if not legal effect) of making it all but impossible for Mr Barton to share or participate in any meaningful relationship with his daughters until 2023 when the elder will be aged 19 and the younger aged 17.
Given that Mr Barton’s behaviour has often been frightening to his children; that they have been witness to his bad behaviour and that they have seen him using (or at least under the influence of) drugs, together with the impact of the AVO, the Tribunal cannot but give only marginal credit to Mr Barton’s application under this criterion.
In terms of the expectations of the Australian community, this Tribunal has referred in a number of cases, including BFXK and Minister for Immigration and Border Protection, to the conclusion that “this criteria ipso facto counts against the Applicant regardless of the circumstances of the case”.[67] That seems to flow inevitably from judicial authority in both YNYQ v Minister for Immigration and Border Protection[68] and in Uelese v Minister for Immigration and Border Protection.[69] Of course this does not in itself establish exactly what weight should be given to such findings of expectations, nor does it preclude taking a generous view about the possibility of an applicant’s capacity for rehabilitation and reform,[70] nor the extent to which they may be seen as deserving of a second chance.[71] Each case must be assessed on its individual facts and merits[72] and in terms of the applicant’s “contemporary behaviour and reputation”.[73]
[67] [2018] AATA 886 at [126].
[68] [2017] FCA 1466 at [76]-[77] per Mortimer J.
[69] [2016] FCA 348 at [64]-[65] per Robertson J.
[70] Godley v Minister for Immigration and Multicultural and Indigenous Affairs [2004] FCA 774 at [51] per Lee J.
[71] Do and Minister for Immigration and Border Protection [2016] AATA 390 at [23] per Deputy President McCabe.
[72] Mahu and Minister for Immigration and Border Protection [2018] AATA 161 at [75] per Deputy President Boyle.
[73] Darwich and Minister for Immigration and Citizenship [2007] AATA 2106 at [40] per Senior Member Taylor.
Unfortunately for Mr Barton his contemporary behaviour and reputation must count adversely for him. This is particularly so where issues of domestic violence are concerned.
This Tribunal has made it abundantly clear that it regards domestic violence as a serious matter which will be given considerable regard when assessing matters such as the expectations of the Australian community. This Tribunal’s comments in Mendoza have been noted above.
In Sharma v Minister for Immigration and Border Protection Deputy President Constance made it clear that:
“The Australian Citizenship Instructions provide that crimes of violence are to be regarded as serious offences. This is particularly so in the case of domestic violence. Such conduct is fundamentally inconsistent with the standards of behaviour expected by the Australian community and usually weighs heavily against an individual being of good character.” [74]
He repeated this in Prasad v Minister for Immigration and Border Protection
“Domestic violence, in any form and in any circumstances, is fundamentally inconsistent with the standard of behaviour expected by the Australian community.” [75]
[74] Sharma v Minister for Immigration and Border Protection[2015] AATA 608 at [37].
[75] Prasad v Minister for Immigration and Border Protection [2017] AATA 1506 at [32].
In Ahori the Tribunal noted:
“Domestic violence is a very serious matter. In no way can violence in a domestic situation by one partner against another partner be trivialised or downplayed. The implication of such violence on the children, broader family and friends of the parties involved can be serious and long lasting.”[76]
[76] Ahori v Minister for Immigration and Border Protection [2017] AATA 601 at [53].
While the Australian community might well extend a degree of tolerance and forgiveness towards Mr Barton for his driving and drug-related offences and not consider these as constituting a sufficient basis for a visa revocation, the Tribunal believes that in relation to repeated breaches of AVOs which themselves resulted from acts of violence and intimidation, the community would expect that people committing these offences should not be allowed to hold an Australian visa. These can be characterised as “rational and reasonable Australian community expectations.”[77]
[77] Oluwafemi and Minister for Home Affairs [2018] AATA 690 at [63].
This criterion counts against Mr Barton’s application.
Ministerial Direction 65 goes on to list a series of “other” considerations which must be taken into account by the Tribunal. These are:
(a)International non-refoulement obligations;
(b)Strength, nature and duration of ties;
(c)Impact on Australian business interests;
(d)Impact on victims;
(e)Extent of impediments if removed.
In Suleiman v Minister for Immigration and Border Protection, Colvin J made it clear that while these considerations are characterise as “other” they are not to be taken as secondary, they must be given “appropriate weight” in line with that given to the “primary” considerations.[78]
[78] Suleiman v Minister for Immigration and Border Protection [2018] FCA 594 at [23] and [28].
Clearly there are no issues arising under “other considerations” (a) and (c) above; and the Tribunal has already addressed item (d) when discussing the chances of reoffending and its consequences.
Mr Barton’s strength, nature and duration of ties consist of lengthy residence in Australia and long-term participation in the workforce. In relation to this matter the Tribunal notes that Mr Barton worked in the construction industry for many years until such time as problems with his wrists made this impossible. He was scheduled for surgery but this did not take place due to his incarceration. Indeed it appears that Mr Barton was fully employed in various construction and supervisory roles from 2002 to January/February 2016 when he was forced to stop work due to the wrist problems. When he ceased work he took on a more active role in the care of his family and he claimed, in oral evidence, that he stopped using drugs, although this is not entirely consonant with other evidence from other sources.
He does not appear to have any other ties with things such as local community groups or churches and has made no obvious contribution to other forms of community welfare or development.
There would be some impediments if Mr Barton were removed. However the proposed removal would be to New Zealand where Mr Barton was born and raised and has lived more than half his life. In New Zealand he would be eligible for various forms of government support and welfare (as a citizen) which are not available to him in Australia. He would have access to health services at no lesser level or standard than is the case in Australia, and were his daughters ever to join him there they would be fully eligible for such levels of support as both are New Zealand citizens themselves.[79]
[79] Section 501- G Documents at [47].
Once problems with his wrists are addressed there is no reason to believe that Mr Barton would be unable to find employment in New Zealand. He is relatively young and fit and his work history in Australia demonstrates that he enhanced his skills over a period of years and did so in an industry (construction) which is always in need of skilled workers.
In his own submission to the Department seeking revocation of the visa cancellation Mr Barton that he had no diagnosed medical conditions, current medical treatment regimes[80], the prospect of criminal charges pending or fears for his safety, or other problems should he be returned to New Zealand.[81]
[80] See this Tribunal’s comments in Rowe v Minister for Home Affairs [2018] AATA 2708 at [99].
[81] Section 501- G Documents at [52].
The Tribunal notes, with interest, that on his incoming passenger card dated 3 November 2002 he gave his “Nationality as shown on passport” as “Maori.”[82] It may well be that if Mr Barton regards this identification as an important part of his self-definition then return to his community in New Zealand may be potentially beneficial, although that must be taken as only a matter of speculation.
[82] Section 501- G Documents at [70]
It cannot be concluded that any of the “other considerations” operate so as to favour Mr Barton’s application.
CONCLUSION
Mr Barton’s visa was cancelled under mandatory provisions of the Act and the revocation of this cancellation can only be made if there is “another” compelling reason to do so.
It is to his credit that Mr Barton, in his evidence to the Tribunal was frank and forthright in stating his case and answering questions. He did not attempt to evade any questions and he did not seek to deny or call into question the findings of fact or the decisions made by the Courts. He accepted responsibility for his actions and expressed both regret and remorse. He spoke of his love for his family and his commitment to them. There is no reason for the Tribunal not to take him at his word in this regard.
Nevertheless, Mr Barton has been before the Courts on many occasions primarily for committing acts of violence or intimidating or threatening members of his own family. In order to protect those family members the Courts have issued AVOs and/or imposed good behaviour bonds on him. He has been given several chances to correct and modify his behaviour and at least one suspended jail sentence has been granted to him in lieu of full-time imprisonment.
Mr Barton has had numerous opportunities to both recognise and come to grips with the underlying problems of drug use and mental ill-health which have contributed to his offending behaviour. He has failed to take advantage of these opportunities.
Moreover he has repeatedly ignored the restrictions placed upon him by AVOs and has demonstrably failed to adhere to them. In doing so he has imperiled other people as well as broken the law.
No evidence in mitigation has been presented to the Tribunal which would justify the revocation of the cancellation of Mr Barton’s visa.
DECISION
The decision under review is affirmed.
I certify that the preceding 94 (ninety -four) paragraphs are a true copy of the reasons for the decision herein of Chris Puplick AM, Senior Member
..............................[sgd]..........................................
Associate
Dated: 6 September 2018
Date(s) of hearing: 30 August 2018 Applicant: In person Solicitors for the Respondent: Mr T Dimmock & Mr W Sharpe, MinterEllison
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