Bates and Minister for Immigration and Multicultural Affairs (Migration)
[2024] ARTA 407
•23 December 2024
Bates and Minister for Immigration and Multicultural Affairs (Migration) [2024] ARTA 407 (23 December 2024)
Applicant:Jeffery Wayne Bates
Respondent: Minister for Immigration and Multicultural Affairs
Tribunal Number: 2024/7944
Tribunal:General Member S Evans
Place:Sydney
Date:23 December 2024
Decision:The decision not to revoke the cancellation of the Applicant’s visa is set aside. In substitution, the decision to cancel the Applicant’s visa on 4 August 2021 is revoked.
…..........................[SGD]...........................................
General member S Evans
CATCHWORDS
Mandatory cancellation of Applicant’s visa – applicant has substantial criminal record – Direction 110 - whether there is ‘another reason’ to revoke mandatory cancellation – citizen of New Zealand and United States – low risk of re-offending - decision under review set aside and substituted with decision revoking the mandatory cancellation.
LEGISLATION
Migration Act 1958 (Cth)
CASES
FYBR v Minister for Home Affairs [2019] FCAFC 185
SECONDARY MATERIALS
Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA
STATEMENT OF REASONS
INTRODUCTION
Jeffery Bates (the Applicant) seeks review of a decision of the delegate of the Minister for Immigration and Multicultural Affairs (the Respondent) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the visa) pursuant to subsection 501CA(4) of the Migration Act 1958 (Cth) (the Act).[1]
[1] G-Documents (‘G’), G2, p.4-11; G4-G5, p.28-44.
The Applicant is a 70-year-old citizen of both New Zealand and the United States of America (America) who first arrived in Australia in 1983.[2] On 8 November 2019, the Applicant was convicted of Dangerous driving occ death – drive manner dangerous-SI and Dangerous driving occ GBH – drive manner dangerous-T1 (the 2017 driving offence) for which he was sentenced to four years and six months imprisonment.[3]
[2] G5, p.32; G28, p.173; Respondent’s Supplementary Tender Bundle (‘SB’) S20, p.79 and 87, filed 6 December 2024.
[3] G6, p.46.
On 4 August 2021, the Applicant’s visa was mandatorily cancelled under subsection 501(3A) of the Act as he had a ‘substantial criminal record’ on the basis of having been sentenced to a term of imprisonment of 12 months or more.[4] On 24 August 2021, Mr Bates made representations to have the cancellation revoked under subsection 501CA(4).[5] On 8 October 2024, a delegate of the Minister found that the power to revoke the cancellation under subsection 501(3A) was not enlivened.[6] The Applicant applied for review of that decision at the Administrative Review Tribunal (Tribunal) on 9 October 2024.[7]
[4] G70, p.355-361.
[5] G13, p.81-85.
[6] G5, p.29-44.
[7] G2, p.4-11.
For the reasons that follow, the reviewable decision will be set aside.
RELEVANT LAW AND MINISTERIAL DIRECTION
Section 501CA of the Act applies where the Minister makes a decision under subsection 501(3A) to cancel a visa that has been granted to a person.
Subsection 501(3A) of the Act requires the Minister to cancel a visa that has been granted to a person if the Minister is satisfied that the person does not pass the character test due to the operation of paragraphs 501(6)(a) and 501(7)(c) of the Act.
Paragraph 501(6)(a) provides that a person does not pass the character test if they have a ‘substantial criminal record’. Paragraph 501(7)(c) provides that a person has a substantial criminal record if the person has been sentenced to a term of 12 months imprisonment or more.
The Minister may revoke the original cancellation decision pursuant to subsection 501CA(4) of the Act. Paragraph 500(1)(ba) of the Act provides the Tribunal with the power to review decisions of a delegate of the Minister under subsection 501CA(4) not to revoke a decision to cancel a visa.
The Minister has made written directions under section 499 of the Act which apply to decision-makers in the exercise of power under subsection 501CA(4). The relevant direction is Direction no. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction or Direction 110).
Paragraph 5.2 of Direction 110 provides overarching principles which I have considered when reviewing the Applicant’s application. It relevantly provides:
(1)Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on noncitizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia's law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2)The safety of the Australian Community is the highest priority of the Australian Government.
(3)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.
(4)The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they engaged in conduct, in Australia or elsewhere, that raises serious character concerns. This expectation of the Australian community applies regardless of whether the non-citizen poses a measurable risk of causing physical harm to the Australian community.
(5)Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, or by other non-citizens who have been participating in, and contributing to, the Australian community only for a short period of time.
(6)With respect to decisions to refuse, cancel, and revoke cancellation of a visa, Australia may afford a higher level of tolerance of criminal or other serious conduct by non-citizens who have lived in the Australian community for most of their life, or from a very young age.
(7)Decision-makers must take into account the primary and other considerations relevant to the individual case. In some circumstances, the nature of the non citizen's conduct, or the harm that would be caused if the conduct were to be repeated, may be so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation.
(8)The inherent nature of certain conduct such as family violence is so serious that even strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa, or revoking a mandatory cancellation, even if the information available at the time of consideration suggests that the non-citizen does not pose a measurable risk of causing physical harm to the Australian community.
Part 2 of Direction 110 identifies the considerations the Tribunal must take into account where relevant to a decision.
In applying the considerations, information and evidence from independent and authoritative sources should be given appropriate weight. The primary consideration of the protection of the Australian community is generally to be given greater weight than other primary considerations. Otherwise, primary considerations should generally be given greater weight than the other considerations. One or more primary considerations may outweigh other primary considerations.
The primary considerations in the Direction 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 set out in Direction 110 which must be taken into account where relevant include, but are not limited to:
a)legal consequences of the decision;
b)extent of impediments if removed;
c)impact on Australian business interests.
ISSUE TO BE DETERMINED
The issue for the Tribunal to consider is whether there is “another reason” why the cancellation decision should be revoked for the purposes of subparagraph 501CA(4)(b)(ii) of the Act having regard to the primary and other considerations in the Direction.
Subparagraph 501CA(4)(b) of the Act provides that the Tribunal may revoke the original decision if it is satisfied:
(i)that the Applicant passes the character test; or
(ii)that there is another reason why the original decision should be revoked.
I am satisfied that the Applicant does not pass the character test having been sentenced to a term of imprisonment of 12 months or more. As the Applicant does not pass the character test, the only basis upon which I may revoke the cancellation decision is if I am satisfied that there is another reason why the cancellation of the visa should be revoked.
EVIDENCE
Joy Bates
Joy Bates is the Applicant’s wife. She provided a statement and gave oral evidence at the hearing.[8] Mrs Bates told me that she and the Applicant moved from New Zealand in 1989 to start a new life and that they have two adult children together who also reside in Australia.
[8] G47, p.296-297.
Mrs Bates has found it difficult to manage while the Applicant has been incarcerated and held in immigration detention. She and their two adult children have been depressed and anxious, and it has been difficult to cope with the responsibilities of being a parent without the Applicant. In her view, the Applicant has been suffering from PTSD following the accident and notes he had been receiving medical treatment until he went to prison.
Mrs Bates said the Applicant has accepted responsibility for his offending and is very remorseful. She says there is ‘no possibility’ of the Applicant re-offending as he will never drive again. She also expressed concern that the Applicant’s failing health was worsening and fears he may be at risk of suffering a stroke or heart attack while he waits for surgery for his heart condition.
Although she is dedicated to the Applicant, Mrs Bates would not accompany him should he return to New Zealand because she has obligations to their daughter Tylah Bates and her three grandchildren. She is particularly concerned about the future of Child U, who is fond of the Applicant and whose behaviour has changed following his imprisonment.
When asked about the Applicant’s offending, including the 2017 charge for illicit substance possession, Mrs Bates was adamant that she had not known the Applicant to use illicit drugs, though he may have abused prescription medication which was prescribed for an injury.
Despite her best efforts, Mrs Bates maintains a difficult relationship with her son Jordan Bates. It is her experience that the Applicant can help their son manage his mental health challenges and provide the support he needs. She conceded in her evidence that Jordan Bates’s mental health condition had not been diagnosed.
Tylah Bates
The Applicant’s daughter Tylah Bates has provided written statements and gave evidence in support of the Applicant at the hearing.[9] Tylah Bates is adamant the Applicant will not drive a motor vehicle in the future.
[9] G49, p.299-302.
Tylah Bates has three children. She gave evidence that the Applicant has a unique relationship with Child U, whose father is absent. She also expressed concern that the Applicant’s absence since being incarcerated had contributed to a deterioration in Jordan Bates’s mental health. Should the Applicant be returned to New Zealand, Tylah Bates writes it would have an enormous impact on Jordan Bates. She said Jordan Bates has ongoing mental health issues and has barely been able to deal with the Applicant’s absence. She said that the Applicant helped Jordan deal with his anxiety issues.
Tylah Bates stated that the Applicant provided her with practical support on occasions when she was subject to domestic violence. The Applicant had reliably come to her aid when she faced the prospect of verbal and emotional abuse escalating into physical violence with her former partners. She is hoping that the Applicant’s return to the community will allow her to work longer hours and improve her financial situation, which has deteriorated because she has not been paid child support owed by the father of two of her children.
CONSIDERATIONS AND REASONING
I now turn to the provisions in the Direction.
Primary Consideration 1: Protection of the Australian Community
I must have regard to the protection of the Australian community from criminal or other serious conduct. Relevantly, paragraph 8.1.(1) of the Direction states:
When considering protection of the Australian community, decision-makers should keep in mind that the safety of the Australian community is the highest priority of the Australian Government. To that end, the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. In this respect, decision-makers should have particular regard to the principle that entering or remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community.
Paragraph 8.1.1 provides that decision-makers should also give consideration to the ‘nature and seriousness of the non-citizen’s conduct to date’ and paragraph 8.1.2 requires consideration of ‘the risk to the Australian community, should the non-citizen commit further offending or engage in other serious conduct’.
Nature and seriousness of the conduct to date
Paragraph 8.1.1 of Direction 110 provides that ‘in considering the nature and seriousness of the non-citizen’s criminal offending or other conduct to date, decision-makers must have regard to the following’:
a) without limiting the range of conduct that may be considered very serious, the types of crimes or conduct described below are viewed very seriously by the Australian Government and the Australian community:
i.violent and/or sexual crimes;
ii.crimes of a violent and/or sexual nature against women or children, regardless of the sentence imposed;
iii.acts of family violence, regardless of whether there is a conviction for an offence or a sentence imposed;
b) without limiting the range of conduct that may be considered serious, the types of crimes or conduct described below are considered by the Australian Government and the Australian community to be serious:
i.causing a person to enter into or being party to a forced marriage (other than being a victim), regardless of whether there is a conviction for an offence or a sentence imposed;
ii.crimes committed against vulnerable members of the community (such as the elderly and the disabled), or government representatives or officials due to the position they hold, or in the performance of their duties;
iii.any conduct that forms the basis for a finding that a non-citizen does not pass an aspect of the character test that is dependent upon the decision-maker's opinion (for example, section 501(6)(c));
iv.where the non-citizen is in Australia, a crime committed while the non-citizen was in immigration detention, during an escape from immigration detention, or after the non-citizen escaped from immigration detention, but before the non-citizen was taken into immigration detention again, or an offence against section 197A of the Act, which prohibits escape from immigration detention;
c) with the exception of the crimes or conduct mentioned in subparagraph (a)(ii), (a)(iii) or (b)(i) above, the sentence imposed by the courts for a crime or crimes;
The Applicant’s offending
On 8 November 2019, the Applicant was convicted of Dangerous driving occ death – drive manner dangerous-SI and Dangerous driving occ GBH – drive manner dangerous-T1 and sentenced to an aggregate term of four years and six months imprisonment.[10] The offending occurred on 14 October 2017 while the Applicant was driving a semi-trailer. Judge Huggett set out the circumstances of the offence in her sentencing remarks.[11]
[10] G6, p.46.
[11] G8, p.50-65.
In summary, at about 4am the Applicant was driving a B-double truck in a generally north direction on the Hume Motorway. The Applicant’s truck crossed onto the southern carriageway and hit another vehicle travelling in a southerly direction resulting in the death of one person and serious injuries to another.
The agreed police facts record that:
"[The Applicant] admitted to not paying attention to the roadway in order to drink from a bottle of Fanta. He describes having removed both hands from the steering wheel to replace the lid. While steering the vehicle with only the edge of his right hand, the offender describes seeing the trees passing the windscreen. The offender stated that he did not apply his brakes or attempt to correct the path of his vehicle after it left the roadway. He said that this was due to the fact he had no time to react as he was not sure what was happening”.[12]
[12] G8, p.53.
Analysis of the Applicant’s blood sample taken at the hospital showed no impairment to his driving due to drugs or alcohol.[13]
[13] G8, p.54.
In addition to the 2017 driving offences, the Applicant has been convicted of numerous offences in both Australia and New Zealand including; possession of a prohibited drug, common assault and multiple driving offences. Notably, on 12 September 1985 the Applicant was convicted of Poss of Heroin and sentenced to six years imprisonment in New Zealand.[14]
[14] G6-G7, p.45-49.
Having regard to the Direction, the harm caused by the offending, the nature of the offence, the significant term of imprisonment he received for the 2017 driving offences and the cumulative effect of his extensive criminal history, I consider the Applicant’s offending to date to be very serious.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
Paragraph 8.1.2 of the Direction provides in part:
In considering the need to protect the Australian community (including individuals, groups or institutions) from harm, decision-makers should have regard to the Government's view that the Australian community's tolerance for any risk of future harm becomes lower as the seriousness of the potential harm increases. Some conduct and the harm that would be caused, if it were to be repeated, is so serious that any risk that it may be repeated may be unacceptable.
In assessing the risk that may be posed by the non-citizen to the Australian community, decision-makers must have regard to, cumulatively:
a) the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
b) the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account:
i. information and evidence on the risk of the 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 (noting that decisions should not be delayed in order for rehabilitative courses to be undertaken).
The Applicant’s offending is very serious and further offending of a similar nature would have the potential to cause physical or psychological harm to members of the Australian community. Critically, the risk to the community includes the potential risk of further fatalities.
As to the risk of further offending, the Applicant claims to have developed insight into his offending and to have commenced counselling and rehabilitative courses. He says he has completed Certificates I and II of an Intensive Corrections Learning Courses and a Positive Lifestyle Course while in prison and is committed to continued rehabilitation.[15] He told me that he had helped establish SMART recovery programs while in detention.
[15] G15, p.105.
The Applicant contends that he is committed to not driving again, which he argues significantly reduces the material risk of any repeat of the 2017 driving offences.
In the sentencing remarks Judge Huggett contemplated the Applicant’s remorse:
I accept that the offender is genuinely remorseful and sorry for the tragic consequences of his dangerous driving and the devastating impact it has had for [the victims] and his family. Whilst his pleas of guilty were not early ones, I am satisfied that when they were eventually entered, they do convey some evidence of his remorse for the impact of his offending even if aspects of that remorse relate to the consequences his offending has had for himself and his family and the fact he must now be punished.[16]
[16] G8, p.59.
Her Honour noted, however, that the Applicant’s offending history indicated a disregard for the law:
While the offender's traffic history does not aggravate the offences he committed on 14 October 2017 and I well appreciate that it is not suggested that excessive speed was a factor in his offending that day, his record suggests that at least prior to that date he had at the very least questionable regard for the rules and regulations put in place to ensure safe driving. In my view his traffic record heightens the need for specific deterrence and has some relevance to a consideration of his risk of reoffending.
In that regard, the author of the Sentence Assessment Report has assessed the offender as being in the low-medium risk of reoffending. While I accept there is a low risk of this offender committing a criminal offence in the future, his driving record is such that in my view there does remain a risk of future driving offences being committed whether in a motor vehicle or in a heavy vehicle.
As for his prospects of rehabilitation, factors including his strong family support and his employment history are such that as best one can predict, he has reasonable to good prospects of rehabilitation.[17]
[17] G8, p.61
I accept the Respondent’s submission that the Applicant’s claim he will not drive again is unenforceable, but I consider he is genuine in his commitment, and it is a significant mitigator of future risk. Additionally, the Applicant maintains strong family support, notably from his wife Joy and daughter Tyler. Both expressed conviction that he did not intend to drive again and capacity to support him so he can maintain that commitment.
In cross-examination, the Applicant said that while he accepted the findings of the Court, he has concluded the accident was caused by more than the momentary lapse of concentration while reaching for a drink. He believes the fact that he did not apply the truck’s brakes indicated he may have momentarily blacked out during the accident. I do not view this as an attempt to downplay his offending or deny responsibility for his offending, but nor does it alter his guilt and culpability for the 2017 driving offence.
In his statement of 1 November 2022, the Applicant outlined the circumstances leading up to the accident on 14 October 2017:
I had arranged with my boss that I wanted the night off on 13 October 2017, the night of the crash. It was my grandson [Child U’s] first birthday and I had just come back from [place] the night before, a ten-hour trip.
Somehow management didn't know that I'd told my direct supervisor I wanted the night off, and so they didn't arrange another driver. Later that night, they called me and asked me where I was.
I wasn't fit to do the run, because I hadn't had any sleep, but I ultimately made a decision that I would regret for the rest of my life. I did my run whilst feeling really tired.[18]
[18] G20, p.143-158.
The police facts record that following the accident the Applicant’s blood was analysed and returned positive for Morphine, Delta 9 THC acid and methylamphetamines.[19] The analysis showed no impairment to his driving due to drugs or alcohol.[20] The Applicant’s understanding is that the traces of drugs in his system were due to his having entered a small room where people were smoking drugs the night before the accident. A submission made on behalf of the Applicant on 13 August 2024, states that the Applicant is committed to “continued rehabilitation” and “his abstinence from alcohol and drugs”.[21]
[19] G10, p.72.
[20] G8, p.54.
[21] G15, p.101-109.
The Applicant’s offending history includes multiple drug related offences, including a conviction on 26 June 2017 for possess prohibited drug for which he was fined $750 and the 1985 conviction in New Zealand for possession of heroin.[22] The Applicant gave evidence that the prohibited drug was not his, but had entered his possession when he had changed into pants taken from a locker at work.
[22] G6-G7, p.45-49.
At the hearing, the Applicant denied having used illicit drugs including heroin and methylamphetamine, but conceded he had consumed marijuana in his youth. However, he said that he had been prescribed Oxycontin for back pain, which he may have abused for several years.
Regarding the 2017 possession charge, the Applicant confirmed he plead guilty to possession but denied using the drugs, noting that his employer was regularly testing him for drug use at the time.
The sum of the evidence appears inconsistent with the Applicant’s assertion not to have used illicit substances. While he is genuine in his remorse, it is of considerable concern that he has a criminal history dating back to 1971. I accept the Respondent’s submission that the Applicant is a recidivist offender and that the rehabilitation courses he has completed are unlikely, by themselves, to be sufficient to curb his pattern of offending behaviour.
I consider there is a low risk the Applicant may re-offend. In sentencing the Applicant Judge Huggett found that despite a sentencing assessment report recommendation that the Applicant was a low risk of committing a criminal offence in the future, his driving record is such that there remains a risk of future driving offences being committed whether in a motor vehicle or in a heavy vehicle.[23] I accept that to be the case should the Applicant choose to drive a motor vehicle, but I consider his assurances he will not drive again to be credible.
[23] G8, p.61.
Against this, the evidence shows that the Applicant has a long history of criminal offending involving illicit drugs. While he is genuine in his remorse, it is of considerable concern that he has a criminal history dating back to 1971. I accept the Respondent’s submission that the Applicant is a recidivist offender and that the courses he has completed are unlikely by themselves to be sufficient to curb his pattern of offending behaviour.
Conclusion - Protection of the Australian community
While the Applicant is a low risk of re-offending, the potential harm of future offending is very serious. He is a repeat offender with an extensive criminal record, and the Australian offences are of increasing seriousness. The cumulative effect of his offending conduct has been substantial.
Ultimately, the protection of the Australian community weighs very heavily in favour of not revoking the mandatory cancellation of the Applicant’s visa.
Primary consideration 2: Family Violence committed by the non-citizen
Paragraph 4(1) of Direction 110 defines family violence as violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family or causes the family member to be fearful.
As there is no evidence that this primary consideration is relevant, it is afforded neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
I am required to consider the impact of the decision on the Applicant’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. I am also required to consider the strength, nature and duration of any other ties that the Applicant has to the Australian community having regard to:
(a)how long the non-citizen has resided in Australia, including whether the non-citizen arrived as a young child, noting that:
i. less weight should be given where the non-citizen began offending soon after arriving in Australia; and
ii. more weight should be given to time the non-citizen has spent contributing positively to the Australian community
(b)the strength, duration and nature of any family or social links with Australian citizens, Australian permanent residents and/or people who have an indefinite right to remain in Australia.
The Applicant has resided in Australia for 35 years having arrived as an adult aged 35.[24] His immediate and extended family in Australia include his wife, his ex-wife, six adult children, three or four siblings and three grandchildren. The Applicant told me that he has had limited contact with his siblings for many years, with the exception of a sister in Perth who he maintained intermittent contact with.
[24] G5, p.37.
The Applicant has five adult children who reside in Australia. He claims a close connection with his children, particularly his son Jordan and daughter Tylah. In a written statement, Jordan Bates says that the Applicant has always been present to support him.[25] He has been struggling with his mental health for most of his teenage and adult years. He said his father has helped a lot when his mental health issues become crippling - not only emotionally, but physically and financially when he has been unable to maintain employment. He is also extremely worried about his father’s health.
[25] G48, p.298.
Tylah Bates gave evidence of having a strong connection with her father and his being instrumental in maintaining the family dynamic, which was confirmed by Joy Bates. Both expressed a deep connection and reliance on the Applicant for emotional and practical support.
The Applicant’s eldest child Marianne Bates-Ratcliffe has provided a statement in which she says she always felt love and encouragement from the Applicant and that he is supportive both her and her adult children.[26]
[26] G52, p.312.
I accept the Applicant has strong ties to the community as presented in statements from friends and previous employers attesting to his work ethic and commitment to his family. He has also made representations that he has made significant contributions as a volunteer to his church, various charities and neighbourhood watch.[27] I note his contribution to the community through his paid employment.
[27] G20, p.144.
During the 35 years in which the Applicant has resided in Australian he has built strong ties to the community. The Applicant’s children and wife live in Australia. This primary consideration weighs strongly in favour of revocation, but is given less weight in recognition of the fact that the Applicant moved to Australia as an adult at age 35, started offending shortly after and has continued to offend with relative frequency since.
Primary Consideration 4: Best interests of minor children affected by the decision
Paragraph 8.4 of the Direction requires decision-makers to decide whether the cancellation is, or is not, in the best interests of minor children in Australia affected by the decision. This consideration applies only if the child is under 18 years old at the time of the decision. In considering the best interests of each child, the factors that must be considered where relevant include:
(a) the nature and duration of the relationship between the child and the non-citizen. Less weight should generally be given where the relationship is non-parental, and/or there is no existing relationship and/or there have been long periods of absence, or limited meaningful contact (including whether an existing Court order restricts contact);
(b) the extent to which the non-citizen is likely to play a positive parental role in the future, taking into account the length of time until the child turns 18, and including any Court orders relating to parental access and care arrangements;
(c) the impact of the non-citizen’s prior conduct, and any likely future conduct, and whether that conduct has, or will have a negative impact on the child;
(d) the likely effect that any separation from the non-citizen would have on the child, taking into account the child’s or non-citizen’s ability to maintain contact in other ways;
(e) whether there are other persons who already fulfil a parental role in relation to the child;
(f) any known views of the child (with those views being given due weight in accordance with the age and maturity of the child);
(g) evidence that the child has been, or is at risk of being, subject to, or exposed to, family violence perpetrated by the non-citizen, or has otherwise been abused or neglected by the non-citizen in any way, whether physically, sexually or mentally;
(h) evidence that the child has suffered or experienced any physical or emotional trauma arising from the non-citizen’s conduct.
The Applicant has 11 grandchildren in Australia who would be affected by a non-revocation decision. He specifically identifies Tyler Bates’s three children – Child U age 8, Child W age 7 and 4-year-old Child Y. I accept Tylah Bates’s assertion that all three of her children have ‘an ongoing, loving relationship’ with the Applicant. I also accept the Applicant’s assertion, confirmed by Tylah, that the fathers of the children were domestically violent towards her and the Applicant has stepped into ‘the fatherly role’ for all of the children.[28]
[28] G50, p.305.
The Applicant has been in regular contact with the children while incarcerated and in immigration detention. Regarding Child W, the Applicant gave evidence he is close to the child, having spent a lot of time with her, partly because of his care for Child U. He said that he talks to the children every day in the morning and the evening. Child U and Child W have both visited the Applicant in immigration detention.
The Applicant is a guiding father figure for Child U, who has been diagnosed with autism. Tylah Bates confirmed that the Applicant is an important presence in Child U’s life and one of the only people the child interacts and is comfortable with.
There is insufficient evidence to assess the impact of revocation on the remainder of the Applicant’s grandchildren. I am satisfied that the Applicant has played a positive role in the lives of Child W and Child U, and has a limited connection with Child R, who was born after the Applicant’s incarceration. I acknowledge that it would be open for the Applicant to maintain a relationship with all of his grandchildren through electronic means.
The Applicant’s relationship with the children is non-parental, but Tylah Bates gave evidence that should the Applicant return to the community, she would rely on him to care for the children when she went to work.
On the basis of the practical and emotional support the Applicant provides his three grandchildren, this primary consideration weighs heavily in favour of revocation.
Primary Consideration 5: Expectations of the Australian community
Paragraph 8.5 of the Direction relevantly provides:
(1) 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(4) provides:
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.
In FYBR v Minister for Home Affairs[29] (FYBR) the Full Federal Court decided by majority that it is not for the decision-maker to assess what the expectations of the Australian community are for the purpose of applying this consideration. That is, 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. Rather, the expectations of the community that decision-makers are required to consider are those set out at paragraph 11.3 of Direction 65, the direction considered in that case which is analogous to paragraph 8.5 of Direction 110.
[29] [2019] FCAFC 185.
The Applicant’s offending is very serious and has resulted in the death of one person and serious injury to another. His criminal offending does not meet the expectation of the Australian community that as a non-citizen he will abide by the law, and I am satisfied that the Australian community would expect that he not hold a visa.
I find this consideration weighs heavily against revocation.
OTHER RELEVANT CONSIDERATIONS
Legal consequence of decision under section 501 or 501CA
Paragraph 9.1 of Direction 110 states that decision-makers should be mindful that unlawful non-citizens are, in accordance with section 198 of the Act, 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 that for the purposes of section 198 it is irrelevant whether Australia has non-refoulment obligations in respect of an unlawful non-citizen.
Paragraph 9.1(2) of the Direction defines a non-refoulement obligation as an obligation not to forcibly return, deport or expel a person to a place where they will be at risk of a specific type of harm. Paragraph 9.1.2(2) of the Direction provides that where it is open to a non-citizen to apply for a protection visa, it is not necessary to consider non-refoulement obligations to the same level of detail as those type of issues are considered in a protection visa application.
The legal consequences of the decision not to revoke the cancellation decision are that the Applicant would be expected to remain in immigration detention. I accept that the Applicant may require an operation before he would be eligible for removal, and this would be expected to extend the period of detention.
The Applicant raised the possibility that if he were to be removed to America, he would face the real prospect of being deprived of adequate health care and social security. He told me he does not fear persecution in the US, but contends he would be subject to degrading treatment, particularly given his advanced age and limited access to healthcare and other benefits.
There is no evidence before the Tribunal which indicates the Applicant’s removal to America may give rise to international non-refoulment obligations. The Applicant has not made an application for a protection visa but is able to do so if he chooses.
For these reasons, the legal consequences of the decision are afforded very limited weight in favour of revocation.
Extent of impediments if Removed
Paragraph 9.2 of the Direction provides:
(1) Decision-makers must consider the extent of any impediments that the noncitizen 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 substantial language or cultural barriers; and
c) any social, medical and/or economic support available to them in that country.
The Applicant is 70 years old and has psychological and physical health conditions. He suffers from carpal tunnel syndrome and claims to have been diagnosed with having had a major depressive episode and post-traumatic stress disorder, though there is limited evidence of a formal diagnosis. He continues to have ‘flashbacks’ to the 2017 accident and says he has been receiving regular psychiatric treatment since the accident. The Applicant has high blood-pressure, two blocked arteries and requires blood-thinning medication. He feels frail and weak, and says he requires coronary stents. He says he is very ill and expects his health will continue to decline.
Should he return to New Zealand, I am satisfied that the Applicant will be able to establish himself to maintain basic living standards. He would not be expected to face any substantial language or cultural barriers having lived in New Zealand until he was age 35. There is no evidence to suggest he will not have access to physical and mental health treatment that is generally available to other citizens of New Zealand.
I acknowledge the Applicant’s desire to distance himself from his criminal offending in New Zealand and his concern that his history in that country may be detrimental to his quality of life. He contends he has lost contact with his support network in New Zealand but there is no evidence to suggest that contact could not be reestablished. While the Applicant may face some initial obstacles should he return to New Zealand, there is no evidence they would be insurmountable.
In addition to holding New Zealand citizenship, the Applicant is an American citizen. Should the reviewable decision be affirmed, he wishes to return to America where he believes he would be able to live without worrying about his past. Should he return to America, the Applicant plans to reside in Orange County or San Francisco. As is the case should he return to New Zealand, it would be expected that the Applicant would be eligible for the same level of health and social services support available to other American citizens. While he would not be expected to face any cultural or language barriers, he does not have a support network in that country, and his employment opportunities may be limited given his age and general health.
Overall, the evidence indicates that the Applicant would face considerable difficulty readjusting to New Zealand or establishing himself in America. I do not consider that these would be insurmountable in either country, but he would be doing so without his existing support network, at 71 years of age and in ill health.
Overall, this consideration weighs strongly in favour of revoking the cancellation of the Applicant’s visa.
CONCLUSION
Having considered the specific circumstances relating to the Applicant, I am required to weigh-up the considerations to determine whether there is another reason to revoke the decision to cancel his visa.
The primary consideration of the protection of the Australian community weighs heavily against revocation. The consequence of his most recent offending was unquestionably devastating. However, I am persuaded that the Applicant will not drive again, and his risk of re-offending is low. I also acknowledge that his offending in Australia up until the accident had been relatively minor in comparison, and this consideration is afforded less weight as a consequence. The expectations of the Australian community weighs heavily against revocation.
The primary consideration of the best interests of minor children weighs strongly in favour of revoking the cancellation decision owing to the substantial practical and emotional support he provides three of his grandchildren. The Applicant’s ties to the Australian community also weigh heavily in favour of revoking the cancellation decision primarily on account of the importance of his presence to his wife and their two adult children.
The legal consequences of the decision are afforded limited weight in favour of the Applicant. Given the Applicant’s advanced age and health concerns, the extent of impediments weigh strongly in favour of revocation of the mandatory cancellation of the visa.
This is a very finely balanced decision and the arguments put by Mr Fyfe for the Respondent supporting affirming the decision are compelling. However, on balance I am satisfied there is another reason to revoke the cancellation of the Applicant’s visa.
DECISION
For the reasons outlined above, the decision not to revoke the cancellation of the Applicant’s visa is set aside. In substitution, the decision to cancel the Applicant’s visa on 4 August 2021 is revoked.
Date(s) of hearing: 11 and 12 December 2024 Applicant: In-person Solicitors for the Respondent: J. Fyfe, Minter Ellison
0