Batson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2022] AATA 1715
•15 June 2022
Batson and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2022] AATA 1715 (15 June 2022)
Division:GENERAL DIVISION
File Number: 2021/2271
Re:Ashley Batson
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Senior Member D. J. Morris
Date:15 June 2022
Place:Melbourne
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the delegate dated 6 April 2021 and, in its place, substitutes a decision that the mandatory cancellation of the Applicant’s visa be revoked under section 501CA(4)(b)(ii) of the Migration Act 1958.
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Senior Member D. J. Morris
Catchwords
MIGRATION – cancellation of Class VE Subclass 176 Skilled Sponsorship visa – substantial criminal record – delegate decided not to revoke mandatory cancellation – ministerial direction No. 90 – primary considerations – protection of the Australian community – offending committed as a minor – Full Court decision in Thornton distinguished as limited to wording in Queensland Act which is not analogous to Western Australian legislation – whether conduct constitutes family violence – best interests of minor children in Australia – expectations of Australian community – extent of impediments if removed – impact on victims – links to the Australian community – offending driven by methamphetamine addiction – evidence that applicant has been drug-free for a considerable period of time – protective factors of employment and stable personal relationship – decision under review set aside and new decision substituted
Legislation
Administrative Appeals Tribunal Act 1975 (Cth), s 33A
Crimes Act 1914 (Cth), s 85ZR
Migration Act 1958 (Cth), ss 499, 500, 501, 501CA
Young Offenders Act 1994 (WA), s 55Youth Justice Act 1992 (Qld)
Cases
Bale and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646
FYBR v Minister for Home Affairs [2019] FCAFC 185
Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337
Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23XXBN v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74
Secondary Materials
Migration Act 1958 – direction under section 499 – Direction No. 90 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (commenced 15 April 2021)
REASONS FOR DECISION
Senior Member D. J. Morris
15 June 2022
BACKGROUND
Mr Batson arrived in Australia in 2010 in company with his parents and two siblings. The family had decided to emigrate from the United Kingdom. He was then aged 13. He is a British citizen. Mr Batson held a Class VE Subclass 176 Skilled Sponsorship visa until 15 May 2020. when a delegate of the Respondent cancelled Mr Batson’s visa. The delegate cancelled the visa on the basis that the delegate was satisfied that Mr Batson failed the character test in the Migration Act 1958 (‘the Act’) because he had a “substantial criminal record” by reason of section 501(6)(a) and 501(7)(c) of that Act. It was, therefore, mandatory that the visa be cancelled.
Mr Batson was invited to make representations to the Minister’s Department as to whether there was “another reason” under section 501CA(4)(b)(ii) of the Act for the mandatory cancellation of his visa to be revoked. He did so. On 6 April 2021, a different delegate decided not to revoke the mandatory cancellation.
Mr Batson sought review of that decision by this Tribunal. He is entitled to do so under section 500(1)(ba) of the Act. The Tribunal (differently constituted) conducted a review and affirmed the decision on 29 June 2021. On 19 October 2021, by order of Justice Logan of the Federal Court of Australia, the matter was remitted to be heard afresh by the Tribunal.
HEARING
On 24 May 2022, the Tribunal conducted a hearing. Mr Ziaullah Zarifi of Zarifi Lawyers represented Mr Batson. The Respondent was represented by Ms Hannah Anderson, a solicitor of Clayton Utz. The Applicant gave evidence and was cross-examined. Other witnesses who gave evidence were Mrs Tina Batson (‘mother’); Mr Gavin Batson (‘father’); Mr Joshua Batson (‘brother’); Ms Rhyannah Woodham (‘de facto partner’); and Professor James Freeman, psychologist, who gave evidence as an expert witness.
The documents listed in the Annexe to this decision were admitted into evidence. In addition, the Tribunal had regard to a Statement of Facts, Issues and Contentions (‘ASFIC’) from the Applicant and a Statement of Facts, Issues and Contentions (‘RSFIC’) from the Respondent.
At the conclusion of the hearing, the Respondent undertook to provide written submissions on the applicability or otherwise of the recent decision of the Full Court of the Federal Court of Australia in Thornton v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 23 (‘Thornton’).
On 1 June 2022, His Excellency the Governor-General appointed the Hon. Andrew Giles MP as Minister for Immigration, Citizenship and Multicultural Affairs, and to administer the Department of Home Affairs. The Migration Act 1958 is listed under the Administrative Arrangement Order (‘AAO’) in place, and the new AAO which takes effect on 1 July 2022 is being administered by that Department. Mr Giles becomes the legal successor to the previous Minister in terms of being the Respondent in this matter.
QUESTIONS BEFORE THE TRIBUNAL
In reviewing a decision not to revoke the mandatory cancellation of a visa under section 501CA(4) of the Act, the Tribunal is not reviewing the delegate’s decision. The Tribunal is making a fresh decision based on the law and the information before it. Parties can make submissions and provide further information to the Tribunal as it conducts the review, including information that was not before the delegate when the original decision was made.
The Tribunal must evaluate the factors for and against revocation. In Gaspar v Minister for Immigration and Border Protection (2016) 153 ALD 337, the Federal Court said, at [38]:
The preferable conclusion is that s 501CA(4)(b)(ii) requires the Minister to examine the factors for and against revoking the cancellation. If satisfied, following an assessment and an evaluation of those factors, that the cancellation should be revoked, the Minister is obliged to act on that view. There is a single, not a two stage, process and the Minister does not have a residual discretion to refuse to revoke the cancellation if satisfied that it should be revoked. In this instance the Minister acted in accordance with that construction of the section. He did not apply the wrong test.
The Tribunal, therefore, must decide two questions. First, whether the Applicant fails the “character test” in the Act. If it is found that he does not, then the cancellation of the visa is set aside, and that is the end of the matter. However, if the Tribunal finds that the Applicant does fail the character test, there remains a second question for the Tribunal to consider – whether the cancellation of his visa should be revoked for “another reason.”
The mandatory cancellation of the visa
The Criminal History Check before the Tribunal (GD, pp 36-37) records that on 11 May 2020, Mr Batson was convicted in the Magistrates’ Court of Queensland of the following offences: Receiving tainted property and Unlawful Use of Motor Vehicles, Aircraft or Vessels. For these offences, Mr Batson was sentenced to 12 months’ imprisonment. He was given a parole release date of 21 July 2020. On the same day, he was convicted of the offences of Contravention of Domestic Violence Order; Stealing; Wilful Damage; Fail to Take Reasonable Care and Precautions in respect of Syringe or Needle (two counts); Contravene Direction or Requirement; Obstruct Police Officer (two counts). The Court recorded a conviction but imposed no further punishment.
In the ASFIC, it was conceded that Mr Batson had seriously offended. The Tribunal is satisfied that at the time Mr Batson’s visa was cancelled in May 2020, he was serving a sentence of full-time imprisonment in a custodial institution and had a “substantial criminal record” in terms of section 501(6)(a), read with section 501(7)(c) of the Act.
Finding
Mr Batson does not pass the character test, and the Respondent was required to cancel his visa by operation of law.
THE MINISTERIAL DIRECTION – DIRECTION NO. 90
Section 499 of the Act provides that the Minister may make directions which a person or body must consider in performing a function or exercising a power under the Act. Any such direction cannot be inconsistent with the Act, but a decision-maker must, under section 499(2) of the Act, comply with a relevant direction.
On 8 March 2021, the then Minister made a direction under section 499, Direction No. 90 (‘the Direction’), which commenced on 15 April 2021. The Tribunal must have regard to the contents of the Direction in considering whether there is ‘another reason’ to revoke the mandatory cancellation. The Direction requires that some considerations must be taken into account where they are relevant. However, the Direction does not contain the Tribunal’s task; it must look at any other relevant factor in the circumstances of the case.
The Tribunal considered the primary and other considerations in the Direction, as relevant to Mr Batson’s personal circumstances, his nationality, and his offending history.
PRIMARY CONSIDERATIONS
Protection of the Australian community (paragraph 8.1)
The Tribunal should consider the nature and seriousness of the non-citizen’s conduct and the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of the conduct (paragraph 8.1.1)
The Tribunal is obliged by the Direction to take into account, without limiting the range of conduct that may be considered very serious, whether the Applicant has committed violent or sexual crimes, crimes of a violent nature against women or children, or acts of family violence. There is no evidence that Mr Batson has committed sexual crimes or crimes against women or children. There is evidence, however, that he has committed acts of family violence.
Offending as a minor – whether Full Court decision in Thornton applicable
Before the Tribunal (GD, pp 413-418) were documents provided by the Western Australia Police Force relating to appearances the Applicant had before the Children’s Court. The first of these was at the beginning of November 2011. There were two charges before the Court, and the result was two Youth Community Based Orders (‘YCBO’) for six months concurrently.
Mr Batson had further appearances before the Children’s Court in July and August 2012, but one matter was dismissed and the other was dealt with by “no further punishment”. In November 2013, he was ordered to undertake 72 hours of community work. In February 2014, he was given an Intensive Youth Supervision Order (‘IYSO’), and in November of that year was before the Court in relation to three breaches of the IYSO.
Ms Anderson submitted that the Minister’s position was that Thornton was wrongly decided and that an application for special leave has been made to the High Court, which is yet to be determined. However, the Respondent further (and rightly) submitted that the Tribunal is bound to apply Thornton if it is applicable to the matter.
The Respondent contended that Thornton does not directly apply and that that case is only authority as to whether section 184 of the Youth Justice Act 1992 (Qld) (‘YJA’) engages section 85ZR of the Crimes Act 1914 (Cth) (‘the Crimes Act’). Mr Thornton’s relevant juvenile offending had been in Queensland and had been dealt with under the YJA. Mr Zarifi submitted that Thornton was good law and should be taken into account in relation to the Applicant’s offending before he was an adult.
The Tribunal, having considered the written submissions of the Minister, accepts the contention that the decision in Thornton is confined to juvenile offending under the YJA in its conjunction with section 85ZR(2) of the Crimes Act. This is because of the specific wording in the Queensland law, which has the effect of deeming a juvenile offender as having never been convicted of an offence. The wording in the Young Offenders Act 1994 (WA) (‘YOA’) under which Mr Batson was dealt with by the Western Australian (‘WA’) Children’s Court when he relevantly appeared in the period 2011 to 2013 sets out, at section 55, when a conviction is to be recorded. In short, a conviction is to be recorded if a young person is found guilty by a Court of a Schedule 1 or Schedule 2 offence or finds a young person guilty of any offence and imposes a custodial sentence. Importantly, section 55(5) of the YOA provides that if a young person is found guilty of an offence and the Court refrains from imposing any punishment, the Court is not to record a conviction.
Considering offending dealt with under the YOA, there is one entry in July 2012 where the matter was dismissed and another the following month where no punishment was recorded. Neither of these matters are taken into account by the Tribunal. In addition, in November 2013, the Applicant was before the WA Children’s Court in relation to breach of a YCBO, and the Court decided the Order was satisfied. In November 2014, Mr Batson was before the WA Children’s Court charged with three breaches of IYSOs. In each case, the Court discharged the community work obligation and decided the Orders were otherwise completed. These are also not taken into account by the Tribunal.
The Minister, in his written submissions, did not provide Schedules 1 and 2 of the WA Act. The Tribunal, however, using the powers it has under section 33 of the Administrative Appeals Tribunal Act 1975, has examined those Schedules, and considers that the two convictions for Robbery with an offence date of October 2013 fall within the Schedules. On the material before the Tribunal, the other matters do not fall within the Schedules. Therefore, the Tribunal takes the two October 2013 offences into account.
Adult offending
The Applicant turned 18 years of age in March 2015. The next offence entry in his criminal history (GD, p 416) relates to an offence committed in October 2015, for which he appeared in Court the following month. He was convicted of Unauthorised Driving by Learner Driver. The following year, in May 2016, he was convicted of two counts of a much more serious offence, Reckless driving – inherently dangerous (to escape pursuit by police). He was sentenced to six months’ imprisonment on each count, wholly suspended. Mr Batson was also convicted of 17 other offences relating to driving, burglary, possession of stolen property, stealing and breaching bail undertakings. The burglary in this instance was of his parents’ house. He was disqualified from holding a driver’s licence for two years.
The following month he was convicted and fined for the offence of Common Assault. Two months later, he was convicted of Driving with prescribed illicit drug and disqualified from driving. In July 2017, he was again disqualified from driving, and fined for Stealing, Stealing a motor vehicle and Unauthorised driving.
In November 2017, he was convicted of the offence of Aggravated Armed Robbery and sentenced to 18 months’ imprisonment. In December 2017, he was convicted of Steal Motor Vehicle and fined $750. In May 2019, Mr Batson was convicted of Breach of Conditional Suspended Imprisonment Order, and a bench warrant was issued.
In July 2019, he had two convictions relating to the failure to take reasonable care and precautions in respect of syringes and needles, and was fined in each case. He had further driving offences in August and September 2019. In February 2020, the Applicant was before the Courts and convicted of offences relating to knife possession, unlawful use of motor vehicles, stealing, possession of suspected stolen property, more syringe and needle offences, obstructing police, making off without paying, burglary, committing a public nuisance and unauthorised dealing with shop goods.
In May 2020, Mr Batson was convicted of the offending described earlier, which triggered the cancellation of his visa.
It is clear from the evidence that Mr Batson has amassed a relatively substantial criminal record in the period 2016 to 2020. In the Federal Court, His Honour Justice Logan described him as having “engaged in a truly lamentable course of criminal conduct” (GD, p 1485). It is also clear on the evidence, and admitted by the Applicant, that much of this offending was propelled by an addiction to methamphetamine.
In his evidence, Mr Batson agreed in response to a question from the Respondent that he first appeared before the Children’s Court in 2011 and that his first adult offending was in 2015. He said that, at the core of his offending, was a bad peer group who he said “led him down the path” of drug use and offending while he was still at school.
The Direction at paragraph 8.1.1(1)(a)(i) provides that violent and/or sexual crimes are to be viewed very seriously.
The elements of the Aggravated Armed Robbery offence in 2017 were set out in the sentencing remarks of Justice Martino of the Supreme Court of Western Australia (GD, pp 1145-1148). Mr Batson had approached a stranger in a car and asked him if he had drugs. The victim said he had the wrong person. The Applicant then asked if he could use the victim’s phone. The victim refused. Mr Batson grabbed the phone from the victim’s lap. He then bit the victim on his arm and punched him to the head. The victim confronted him and told him to return the phone. The Applicant punched the victim several more times and he fell to the ground. He then told the victim he had a knife and would stab him. The learned Judge said no knife was displayed, but Mr Batson pretended to be armed. The victim was required to go to hospital, and the bite wound required gluing. For this offence, the Applicant received an 18-month sentence, suspended on the grounds of his youth (he was 20).
Paragraph 8.1.1(1)(a)(ii) directs decision-makers to view very seriously crimes of a violent nature against women or children. There is no evidence of any such crimes by Mr Batson.
Paragraph 8.1.1(1)(b)(iv) directs decision-makers to consider crimes in immigration detention. There were incident reports in the summonsed material before the Tribunal. One related to the Applicant getting involved in a cake fight with another detainee. Although such behaviour in a custodial environment is to be deprecated, the Tribunal finds that this was at the lower end of a scale of conduct.
Another more serious incident occurred in January 2022 when Mr Batson reportedly punched a television, breaking it into three pieces, punched a wall and used abusive language towards Immigration Detention Centre (‘IDC’) staff. There was a report of drugs being found in a deconstructed towel rail in the Applicant’s room at the IDC, but he denied responsibility for them, stating that the room was shared and the drugs could have been there for some time. The Tribunal is unable to make a finding either way on this last point. There is no evidence of crimes, to use the wording of the Direction, and apart from the television damage, the other incident appears to have been relatively trivial.
The Tribunal notes that in March 2022, the Applicant was assaulted, given a black eye, and stabbed in the neck (by a pen) in the IDC. He was taken to hospital. The International Health and Medical Services (‘IHMS’) medical report recorded a diagnosis of concussion and a ‘small left parietal scalp haematoma’. The IDC authorities thereafter decided to relocate him to an apartment hotel which had been leased by the Minister’s Department for detainees. The reports record that the Applicant refused to discuss the reason for the assault with officers. However, in his oral evidence, Mr Batson said the reason for the assault was “because people were suspicious [of me] by [my] not partaking in recreational drug use.”
Paragraph 8.1.1(1)(d) requires the Tribunal to consider the frequency of offending and whether there has been any trend of increasing seriousness. Mr Batson’s criminal history shows frequent adult offending and some increase in seriousness. His earlier offending was dealt with by the imposition of fines, then suspended sentences, then parole periods before he was ultimately sentenced to a substantive custodial term. Sentencing a convicted person to prison is the highest-level sanction available to a judicial officer, and objectively reflects either the seriousness of the offence or, sometimes, that the defendant has frequently offended in a similar manner and has not responded to other, lower, penalties.
Paragraph 8.1.1(1)(g) of the Direction refers to whether the non-citizen has re-offended since being formally warned or otherwise made aware in writing about the consequences of further offending on his or her migration status. There is no evidence before the Tribunal that the Applicant was previously warned.
The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct (paragraph 8.1.2)
The next part of this primary consideration requires the Tribunal to consider the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct. The Tribunal must consider the nature of the harm to individuals or to the Australian community should the Applicant re-offend or engage in other serious conduct, and any information and evidence on the risk of re-offending.
Before the Tribunal were reports by Professor James Freeman dated 11 June 2021 (GD,
p 355) and 30 March 2022 (Exhibit A1, p 133). Professor Freeman examined Mr Batson in person in immigration detention. He wrote:During the assessment interview, he consistently accepted responsibility for his offending behaviour and acknowledged relapsing into intravenous methamphetamine dependency and committing offences while in an impaired state. A protection order had also previously been initiated by the police due to a verbal argument (e.g., non-violent) that he engaged in with his parents, which was subsequently breached.
Professor Freeman noted that Mr Batson’s recollection of events contained what he called a consistent narrative, “I was fried on ice”. The report surveyed disruptive schooling when the family had emigrated to Australia owing to drug use, truancy and struggles with dyslexia. Professor Freeman noted that the Applicant worked for two months as a bricklayer’s assistant and then undertook a six-month apprenticeship which was terminated because of his use of methamphetamine. In terms of drug use, Professor Freeman recorded that the Applicant smoked cannabis daily between the ages of 13 and 15 before being exposed to methamphetamines, leading to an intravenous dependency. The report recorded that Mr Batson was “chronically dependent (and experiencing drug induced psychosis) at the time of commission of the most recent offences.”
Professor Freeman recorded that the Applicant was prescribed dexamphetamines at the age of 14 or 15 to treat his Attention Deficit Hyperactivity Disorder (‘ADHD’). He told Professor Freeman that he was admitted to a psychiatric ward in a Perth facility for one month to treat drug induced psychosis and that in 2019 he self-admitted to Princess Alexandra Hospital for one month, again due to drug induced psychosis. He was prescribed anti-psychotic medication but ceased taking this medication after six months because of experiencing improved mental health and disliking the side effects, such as weight gain.
Professor Freeman diagnosed two disorders: Drug Induced Psychosis (remission) and Methamphetamine Dependency (partial remission in a controlled environment). The report concluded that he had a functional level of intelligence and no literacy difficulties completing the screening tools. Professor Freeman considered that Mr Batson appeared to have sufficient levels of insight and self-awareness. Professor Freeman administered the Hare Psychopathy Check List (‘PCL-R’) which he descried as a “reasonably accurate predictor of sexual and violent recidivism” and “one of the most effective predictors of re-offending, particularly scores above 20 (with scores of 30 being considered indicative of psychopathy.”
Mr Batson received a raw score in this test of 12. Professor Freeman recorded that the average prisoner scores around 23.6. He wrote:
However, he has shown poor behavioural control (at times), been impulsive, and demonstrated some level of criminal versatility. Nevertheless and when taken together, he does not present with clear psychopathic tendencies that has been demonstrated to increase the risk of recidivism.
Professor Freeman concluded (GD, pp 360-361):
The risk of recidivism related primarily to him avoiding relapsing into methamphetamine use and contact with a negative peer support group (that promotes such usage). Encouragingly Mr. Batson has a sufficient level of insight into the extent of his substance abuse, recognises the link between his substance use and offending, as well as his past poor mental health e.g., drug induced psychosis. He also articulates a strong commitment to avoid relapse and contact with his past support group. This capacity has likely been strengthened through his enrolment in multiple drug treatment interventions and he presents as eager to utilise protective factors e.g. brother, employment, etc. Furthermore, the applicant’s first lengthy period of incarceration and the matter before the tribunal (e.g., visa cancellation) are reportedly significant deterrents against relapse.
In his second, more recent report, Professor Freeman recorded that the Applicant has been involved in a SMART recovery course (thrice weekly group meetings) and individual substance abuse counselling with an IHMS practitioner in the IDC. He also participated in an online 12-week “circuit breaker” course, with an attendance letter indicating that Mr Batson has been an active participant, transparent about his past offending and presented as committed to behavioural change.
The main change in Professor Freeman’s later assessment was that he suspected a depressive-based disorder (Adjustment Disorder with anxious distress) based on the custodial environment and concern by Mr Batson about his visa cancellation. Professor Freeman wrote:
Given that his offending history is directly linked to his methamphetamine dependency (and links to a pro-drug support network), his confirmed rehabilitative progress while incarcerated can be considered to reduce his risk of relapse (and subsequent re-offending). That is, the factors associated with his risk of recidivism are condensed, and if he can achieve his stated goals, then the calculated prognosis for his future can be considered more positive.
When Professor Freeman gave oral evidence, Mr Zarifi took him to incident reports while Mr Batson has been in detention. In one report, the Applicant was assaulted but did not fight back. Professor Freeman said it was encouraging to see that Mr Batson did not react, but his assessment related to relapsing into intravenous methamphetamine use. He said the fact that it appears Mr Batson has remained abstinent after a prolonged period in detention is consistent with someone motivated to remain in the community. In terms of his diagnosis of a depressive-based disorder, Professor Freeman said the main stressor is his current immigration situation and, if that is resolved, this could be managed by a general practitioner.
In cross-examination, Professor Freeman was taken to an incident report where Mr Batson and another detainee threw cake at each other and another case where the Applicant punched a television. He responded:
Yes, but this is in a specific and toxic environment, the equivalent of a remand centre. My assessment of the Applicant is that violence is not part of his psycho-social system. He has engaged in reactive behaviour. I don’t think violence in the community is a number one concern.
Professor Freeman said that Mr Batson accepted his faults and his culpability for his past criminal conduct. He said he was generally honest and open. Ms Anderson asked Professor Freeman if he was aware that an IHMS psychologist felt Mr Batson had a stable mental state. He responded: “I wasn’t aware, but it supports my assessment. He has no psychosis. He is in relatively good mental health.”
Ms Anderson asked Professor Freeman about his conclusion (Exhibit A1, p 136) that his Adjustment Disorder is likely to solidify into a Major Depressive Disorder if he was deported to the United Kingdom without a support network or confirmed accommodation options. Professor Freeman responded: “Yes, this is psychologically probable and would meet the criteria for that. That would ingrain his depression.”
The Tribunal finds, largely owing to the frequency of offending in a relatively confined date period, that this primary consideration weighs against revoking the mandatory cancellation of the visa.
Family violence committed by the non-citizen (paragraph 8.2)
The ASFIC submitted that this primary consideration is not engaged and should be given neutral weight. The RSFIC submitted that the contravention of the Domestic Violence Order in March 2020 qualifies for consideration under this part of the Direction.
The Direction includes, at paragraph 4(1) the following definition:
family violence means violent, threatening or other behaviour by a person that coerces or controls a member of the person’s family (the family member), or causes the family member to be fearful …
In the summoned material (GD, p 531) was a police application relating to various incidents that had occurred at the home of Mr Batson’s parents. In one case, the Applicant wanted to be taken to where his ex-girlfriend was. His father was reluctant. The report stated that Mr Batson said, “You know I could just get a knife and stab you”. On a subsequent occasion, Mr Batson was in an argument with his father, wanting some Centrelink money which had been set aside for his rehabilitation. The report said Mr Batson forced his father against the wall and “snarled, ‘I want to bite your face off’”. The Report concluded with Mr Batson acknowledging to police he was affected by drugs. Magistrate Batts issued a protection order that Mr Batson must be of good behaviour and not commit domestic violence against the aggrieved (i.e., his father). He was not to enter or approach his father’s house without written consent of his father. The order was to apply until February 2024.
The Police Solicitor’s report stated (GD, p 538) that Mr Batson had “committed domestic violence against the Aggrieved … by verbally threatening the Aggrieved.”
In his oral evidence, the Applicant’s father, Mr Gavin Batson, agreed that he has sometimes been a victim of his son’s criminal behaviour. He was asked whether his son had ever assaulted him, and he responded, “not physically”. The Tribunal then drew Mr Gavin Batson’s attention to the police report about the Applicant pushing him up against the wall. Mr Gavin Batson said he had “totally” forgiven the Applicant. When Mr Gavin Batson said that he would be happy for the Applicant to return to live in the family home, Mr Zarifi advised him of the terms of the protection order and that the Applicant would need written consent to live with him and his wife. Mr Gavin Batson said he did not realize the order was still in place and that he would willingly consent.
The Tribunal notes that the police report included (GD, p 531): “They [i.e., the Applicant’s parents] also advised that [on] Christmas Day 2018, [Mr Batson] told them he was going to burn the house down with the lot of them in it … [Mr Batson] was holding petrol jerrycans from [his father’s] boat and a cigarette lighter”. The report goes on that Mr and Mrs Batson acknowledged to the police that drugs were the reason for this behaviour, but as the Applicant became so erratic and unpredictable, they were genuinely afraid of him and concerned for their daughter.
This was a police report which was used not for the purpose of founding any charge, but was taken into account by a Magistrate in being satisfied that a protection order was necessary. Taking that into account, the Tribunal is satisfied that this conduct constitutes family violence in terms of paragraph 8.2(2) of the Direction, which relevantly states:
This consideration is relevant in circumstances where:
…
(b) There is information or evidence from independent and authoritative sources indicating that the non-citizen is, or has been, involved in the perpetration of family violence, and the non-citizen being considered under section 501 or section 501CA has been afforded procedural fairness.
The Tribunal accepts that this conduct was driven by the Applicant’s methamphetamine addiction and drug induced psychoses, and that the principal victim, the Applicant’s father, has forgiven him. The other persons who the Tribunal might term the ancillary victims, Mrs Batson and his sister, Ms JB, have also forgiven him. But this is conduct that comes within the ambit of this primary consideration, even if it was relatively contained offending and does not reflect a pattern or theme in the criminal conduct of Mr Batson.
The Tribunal rejects the Applicant’s submissions that this primary consideration weighs neutrally. The Tribunal finds that this primary consideration weighs against the revocation of the mandatory cancellation of the visa, but not heavily so given the nature of the conduct committed.
Best interests of minor children in Australia affected by the decision (paragraph 8.3)
The Direction requires decision-makers to make a determination as to whether non-revocation is or is not in the best interests of a child affected by the decision. To be considered under this part, a child must be aged under 18 at the time of the decision. Where there are more than two relevant children, the best interests of each should be given individual consideration to the extent that their best interests may differ.
The Tribunal must take into account various factors, as relevant, set out in paragraph 8.3(4) of the Direction. These include whether an applicant has a parental relationship with the children; the extent to which an applicant is likely to play a positive role; the impact of prior conduct on the child or children; the likely effect separation would have on the children; and whether there is another person or persons who fulfil a parental role. In addition, any known views of the child or children should be taken into account.
The Tribunal is satisfied to determine that, at the time of this decision, the interests of two minor children are relevant to this part of the Direction: the Applicant’s sister, Ms JB, who is aged 15, and the infant child of the Applicant’s fiancée, who is three years of age and will be called in these reasons IC.
Ms JB
Ms JB provided a statement (Exhibit A1, p 119). She relevantly wrote:
I know Ashley has done stupid things in the past and has been charged with breaking the law when he is taking drugs. Usually he is nice, I feel sorry for him as he is angry with himself that he carried on taking drugs for so long and all the stress he has called [sic] our family and our nan and grandad too. I don’t want Ashley to be sent to England … There is no one who can help Ashley in England, and he would have nowhere to stay. I don’t want to move back to England, I don’t remember living anywhere but Australia as I was only 3 when we came here …
I also want to rebuild a relationship with Ashley, my memory of the last times I saw him are not good. I want the chance to make new happy memories with him. I do not want to live with the last memories of my brother being bad ones.
I am also a victim of Ashley’s crimes, I understand some of the things Ashley got into trouble for were because my parents reported him for threatening our family in our house. I forgive Ashley for this as he was sick and was not acting his normal self. I am not scared of Ashley, I am more scared of never being able to see him again.
The Direction, at paragraph 8.3(4), requires decision-makers to take certain factors into account. The relationship between Ms JB and the Applicant is non-parental. There have been long periods of absence, partly because of Mr Batson’s prison sentence and immigration detention, but also because his parents and minor sister live in WA, and the Applicant and his brother live in Queensland.
I am nonetheless satisfied that Ms JB is old enough to express her own views about the Applicant’s role in her life and has done so in her statement, extracts of which are above. In their oral evidence, the Applicant’s parents Mr Gavin Batson and Mrs Tina Batson also expressed the view that Ms JB would be very affected if her big brother was deported and she lost contact.
The Tribunal makes a determination in the case of Ms JB that it is in her best interests for the mandatory cancellation of Mr Batson’s visa to be revoked. That conclusion is diluted because he does not play a parental role in Ms JB’s life.
IC
IC was born in May 2018, so she has just turned four years of age. Ms Woodham’s evidence was that IC was two months old when she and Mr Batson commenced their relationship. IC’s father lives in another State and is not in her life, and has not been since IC was an infant. Ms Woodham wrote (Exhibit A1, p 55) that she and the Applicant were first together from 2018 to January 2019 and lived together. The relationship broke down but resumed in March 2021. Ms Woodham wrote:
My daughter [IC] and Ashley are very close, over the past year she has grown to love him. She joins our regular phone calls almost every time we have one, she gets excited when she hears his voice she asks me almost daily when [he] will be coming home they always have a laugh without a doubt he’s very important to her and I’d hate to have to tell her she’s not going to see him again. Ashley does play a big role in my daughter [IC’s] life. He cares for [IC] a lot and also supports me emotionally as well as [IC].
In her oral evidence, Ms Woodham said that, apart from providing emotional support, Mr Batson made a financial contribution to the household before his incarceration. She said he helped with rent, groceries and with IC. Ms Woodham agreed that she had been in a bad domestic relationship in the past and, by contrast, said that Mr Batson had never assaulted or threatened her. Under cross-examination, Ms Woodham said that she and Mr Batson did break up very briefly, she estimated for about two weeks, later in 2021. She said she was the primary carer for IC. Her own mother lived nearby but could only care for IC for short periods owing to her own health difficulties. Ms Woodham confirmed that, at this stage, she was living on social welfare but hoped to find a part-time job when IC was in school.
Mr Zarifi made certain oral submissions about Ms Woodham’s indigenous heritage and lodged some documents highlighting vulnerabilities attendant on some people with indigenous backgrounds. Ms Woodham herself did not highlight this factor in her oral evidence and the Tribunal does not consider on the evidence, she has, ipso facto, a heightened need. What is clear is that Ms Woodham is a single mother with a young child and expressed strong views about the Applicant returning to live with her and help care for IC.
The Tribunal was satisfied on the evidence that Ms Woodham gave the Tribunal about the relationship between Mr Batson and IC that Mr Batson plays a positive role in IC’s life. He has cared for her and provided financial and other support in the past. There was evidence in the Applicant’s materials of photographs of Mr Batson with IC and photographs of text exchanges referring to her on several occasions. IC is very young, and Mr Batson’s absences have probably not affected her as much as they would an older child. Still, all the evidence before the Tribunal points to the best interests of IC being enhanced if Mr Batson’s visa was restored. This is principally because the Applicant would be able to share care of IC with Ms Woodham. In addition, once he is employed, Mr Batson would be able to contribute financially to household expenses, including the needs of IC. The Tribunal is satisfied that, when present in the same household, the Applicant performs a parental role in relation to IC.
The Tribunal therefore makes a determination that it is in the best interests of IC for the mandatory cancellation of the visa to be revoked.
Other minor children
In her statement, Mrs Tina Batson (Exhibit A1, p 87) referred to two cousins of the Applicant, aged seven and 10, who are the daughters of her sister, who also emigrated from the United Kingdom and lives in WA. The Applicant’s aunt furnished a statement saying that Mr Batson has enjoyed a close relationship with his cousins since they were born because they lived close to each other in WA. The older niece provided a short statement in support of the Applicant. The Tribunal makes a determination that it would be in their best interests for Mr Batson’s visa to be restored but the weight of this finding in respect of these two cousins is not great, given their age, prolonged periods of absence, and the fact that the Applicant does not perform a parental role, and others do.
Overall, because of the detrimental effect on Ms JB and particularly IC, the Tribunal determines that this primary consideration weighs heavily in favour of revocation of the mandatory cancellation of the visa.
Expectations of the Australian community (paragraph 8.4)
Paragraphs 8.4(1) and (2) of the Direction state:
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.
In addition, visa cancellation or refusal, or non-revocation of the mandatory cancellation of a visa, may be appropriate simply because the nature of the character concerns or offences is such that the Australian community would expect that the person should not be granted or continue to hold a visa …
The Direction specifically refer to acts of family violence (8.4(2)(a)) and commission of crimes against government officials while performing their duties (8.4(2)(d)). The criminal history record refers to offences relating to obstructing police.
In this part of the Direction, the expectation of the Australian community is taken to be a ‘norm’. The word ‘norm’ means of a ‘standard’ or ‘pattern or type’. A superseded version of the Direction contained generally similar wording to paragraph 8.4 and was considered by the Full Court of the Federal Court of Australia in FYBR v Minister for Home Affairs [2019] FCAFC 185 (‘FYBR’). The Court held that it is not for a decision-maker to make his or her own personal assessment of what the ‘expectations’ of the Australian community may be. The expectations articulated in the Direction are ‘deemed’; they are what the executive government has declared are its views, not what a decision-maker (including the Tribunal) may seek to derive by some other evaluative or balancing process.
Direction No. 90 was issued after FYBR and imports the statement that the expectations of the Australian community are to be considered as a norm, which acknowledges the approach taken by the plurality of the Court in FYBR. Therefore, while the expectations of the community are “deemed” to weigh against an applicant (a position accepted by the parties in this matter), the relative weight will be affected by circumstances in the individual case.
Mr Batson has offended steadily over the period between 2016 and 2020. While there is a clear link between the effects of his methamphetamine addiction and ensuing psychosis in the commission of these offences, that may provide some explanation but is not strongly mitigating. The Tribunal finds that the expectation of the community would be that his visa be revoked.
The Tribunal finds that this consideration weighs against revoking the mandatory cancellation of the visa.
OTHER CONSIDERATIONS
Paragraph 9 of the Direction requires the Tribunal to take into account the following matters, where they are relevant, noting this is a non-exhaustive list:
(a)International non-refoulement obligations;
(b)Extent of impediments if removed;
(c)Impact on victims;
(d)Links to the Australian community, including;
(i)the strength, nature and duration of ties to Australia; and
(ii)impact on Australian business interests.
International non-refoulement obligations (paragraph 9.1)
International non-refoulement obligations relate to a case where a person faces the prospect of being returned to a country where they may be at risk of a specific type of harm. In this case, Mr Batson would be returnable to the United Kingdom, his country of citizenship.
The ASFIC stated that Mr Batson does not advance any international non-refoulement claims. The RSFIC did not submit that this consideration was relevant.
The Tribunal finds that this consideration is not engaged.
Extent of impediments if removed (paragraph 9.2)
The Tribunal must consider the extent of impediments Mr Batson may face if removed from Australia to the United Kingdom in establishing himself and maintaining basic living standards, in the context of what is generally available to other citizens of the country. The Tribunal must take into account the Applicant’s age and health, any substantial language or cultural barriers and social, medical, or economic support available to him if repatriated.
Mr Batson did not report any physical ill health. Mr Zarifi submitted that the Applicant contends he no longer has a drug addiction and is in full remission. Professor Freeman has diagnosed an Adjustment Disorder (with anxious distress). It was his expert evidence that this was directly linked both to the time the Applicant has spent in detention and his anxiety about the outcome of his visa cancellation review.
The ASFIC accepted that Mr Batson would not face substantial language or cultural barriers in England, and that the United Kingdom has a health care system and provides social welfare for British citizens. The Tribunal notes that Mr Batson attended school in England until the age of 13, or in other words, for around eight or nine years, and would not be unfamiliar with the cultural mores of the country.
The Tribunal notes that all the Applicant’s direct family, his parents and two siblings, emigrated from the United Kingdom with him. His aunt, Mrs Batson’s sister, also emigrated, and then married and has a family in Australia. Mr Gavin Batson’s oral evidence is that his parents are deceased. Mrs Batson’s parents emigrated to Australia as well, and live in a town in WA. One of only two named relatives in the United Kingdom, Mr Batson’s maternal uncle, Mr Steeper, advised in a written statement (Exhibit A1, p 131) that his circumstances are such that he would be unable to provide any tangible assistance to Mr Batson if he were repatriated. Mr Steeper is a shift worker apprentice who lives in a village where he says there is little or no employment within a 20-mile radius, with no bus or train services. Mr Steeper wrote that the most he could offer would be a phone call to try and give advice. The other relative was Mr Gavin Batson’s sister; there was little information about her except that the Applicant’s father said they were not in close contact.
Mr Zarifi submitted that the Applicant has a history of suicidal ideation, and coupled with his history of drug addiction, now in remission, the stress of being deported to the UK may lead to deterioration of his mental health. It was also submitted that the Applicant has a real prospect of homelessness. Mrs Batson gave evidence that she had made her own online investigations about what might be available to the Applicant in terms of emergency accommodation in England.
In respect to suicide ideation, the evidence is mixed. There is a reference (Exhibit A1, p 113) to the Applicant being admitted to a hospital in Perth early in his teenage years and being placed on suicide watch. More recently (for example, on 3 April 2021), a psychiatrist examining Mr Batson in detention recorded that he denied ever self-harming or attempting suicide (GD, p 1170). The Applicant’s previous legal representative, in a written submission to the Tribunal at the first hearing, relevantly submitted:
…it is accepted that Mr Batson does not appear to have conveyed any suicidal ideation to Prof Freeman or treating medical professionals. This does not diminish the fact that he has voiced such issues to his family and has on [sic] the past acted on such intentions. Furthermore, it cannot be assumed that his mental health will remain stable in circumstances where he will be exposed to the very same risk factors that have precipitated a decline in his mental state in the past.
In her oral evidence, Mrs Batson described the prospects of her son being returned to the United Kingdom as a “death sentence, which is what I think it would be”. Mr Gavin Batson told the Tribunal:
Ashley was taken over by drugs when he was 15. He’s now a different person … He’s been on suicide watch before. He has no UK bank account, or ID such as a driver’s licence. He does have a UK passport. It would overwhelm him. I think he’d slip back; I think he’d just end it.
Mr Batson has a British passport and is a British citizen. It is accepted that he would face difficulties in re-establishing himself in the United Kingdom, but it is a country with a sophisticated social welfare system akin to Australia’s, and a world-renowned National Health Service.
The Applicant’s solicitor said, in his closing submissions, “we say if he is deported to England, he will die of cold”. The Tribunal, with respect, thinks this is an over-blown submission to make and not supportable in fact. Mr Batson is, on the Tribunal’s assessment, an intelligent young man, and he has some reasonable work history and skills. That is not to say he would not encounter challenges, but in respect of being able to navigate the British social welfare architecture, the Tribunal does not conclude they are insurmountable ones.
However, the Tribunal also gives due weight to the expert evidence of Professor Freeman. He relevantly wrote, in his second report of March 2022 (Exhibit A1, p 136):
Consistent with the first assessment, he struggled to articulate a clear reintegration plan into the United Kingdom. That is, he has no confirmed accommodation options, is not cognisant of any work opportunities and does not have a support network. Rather, his exposure to long-term hardship in England (without emotional support) is likely to result in his Adjustment Disorder being solidified into a Major Depressive Disorder, which may elevate his risk of: (a) failing to successfully reintegrate into the local culture and/or (b) experiencing a re-occurrence of past self-harm ideation.
The Tribunal reads this assessment in the context of the evidence of two previous self-admissions by the Applicant to psychiatric wards because of the effect of his psychoses and other evidence in his medical history of suicidal ideation. Ms Woodham confirmed in her oral evidence that she would not be able to travel to the United Kingdom if Mr Batson was repatriated, because of her own situation with IC and her unwell mother.
Mr and Mrs Batson said they could not afford the financial cost of travelling back, though they would offer what support they could through telephone and video links. Mr Joshua Batson said he would be unable to travel to the United Kingdom – at least in at present – because of his own employment obligations and finances. It is true to say, because of their age and current visa conditions, the Applicant’s grandparents would be most unlikely to travel back to the United Kingdom. It would be a fair conclusion to say that if he was repatriated, the Applicant would not be likely to see his grandparents again.
These special factors lead the Tribunal to conclude that this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Impact on victims (paragraph 9.3)
This part of the Direction requires the Tribunal to consider the impact of the decision on victims of the Applicant’s criminal behaviour, and family members of the victims. The Tribunal takes this to mean, first, that the victim must be aware of the immigration action taken against the Applicant and, secondly, must have expressed some view. There was no evidence before the Tribunal that this is the case.
The ASFIC submitted that the Tribunal should weigh this consideration in favour of the Applicant, principally because identified victims – his parents and sister – have written that they have completely forgiven him for his past conduct against them.
In Bale and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] FCA 646 (‘Bale’), the Federal Court considered an argument that the Tribunal had erred in a decision where a wife, who had been the victim of domestic violence offences by her husband, was supportive of his visa being restored. In Mr Bale’s case, the Tribunal had considered that the ‘impact on victims’ consideration was not relevant. The argument put before the Court challenging that was that it is also relevant to know that, when wearing her hat as one of his victims, she was also content for him to remain. The Minister’s direction in force under section 499 of the Act at the time of Bale was Direction No. 79, but the text of this consideration in Direction No. 90 is relevantly similar.
In Bale, Perram J said, at [26]-[27]:
I do not accept this argument because whichever way one looks at it, the fact that Mr Bale’s wife desired for him to remain in Australia was taken into account by the Tribunal. Where a matter is relevant to two or more mandatory relevant considerations, a decision-maker is not usually required to take the matter into account repetitiously: see Hodgson v Minister for Immigration and Border Protection [2017] FCA 1141 at [40] per Tracey J; RZSN v Minister for Home Affairs [2019] FCA 1731 at [67] ff per Anderson J. And, as [54] of the Tribunal’s reasons shows, the Tribunal was well-aware that she was one of his victims.
The only way to outflank that problem would be to submit that there was some aspect of the wife’s evidence as a victim which was different from her evidence as a spouse. Such evidence might be readily enough imagined. For example in her evidence Mr Bale’s wife could have addressed the fact Mr Bale had been convicted of common assault following an attempt to throttle her early on the morning of [date]. She could have said that despite that assault she forgave him and was not concerned that he might assault her again. It may well be that evidence of that kind would have engaged cl. 14.4(1) independently of cl. 14.2(1)(b).
The Full Court of the Federal Court of Australia endorsed the approach in Bale that double-weighting is not required and that an applicant, in a case where a victim might want an applicant’s visa given back, is not entitled thereby to another “score on the board” (see Bromberg, Stewart and Goodman JJ in XXBN v Ministerfor Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 74). The Tribunal therefore considers that it would distort the balancing exercise the Tribunal is required by the Direction to undertake to weigh what has already been accepted as the strong views of Mr and Mrs Batson and Ms JB in favour of the Applicant having his visa restored, by repeating that in relation to this consideration.
Equally, and in a similar way, for example, the first primary consideration refers to crimes against women and children being taken seriously. I consider where the crimes relate to family violence conduct, it would be an equal distortion to double-count them against an applicant in such a case. The Tribunal should apply the factual circumstances and evidence before it in sensibly taking into account the considerations.
The Tribunal finds that this consideration weighs neutrally in this assessment.
Links to the Australian community (paragraph 9.4)
Sub-consideration: The strength, nature, and duration of ties to Australia (paragraph 9.4.1)
The Tribunal must consider any impact on the decision on the non-citizen’s immediate family members in Australia, where those family members are Australian citizens, Australian permanent residents or people who have the right to remain in Australia indefinitely.
The Tribunal must have regard to how long the Applicant has resided in Australia and his contribution to the Australian community. As mentioned above, Mr Batson arrived in Australia in 2010 when he was aged 13. His parents, sister and brother have all since become Australian citizens. Mr Batson’s mother said that his aunt, who subsequently emigrated with her parents (the Applicant’s grandparents), has also become an Australian citizen. She has two young children here. Ms Woodham, the Applicant’s fiancée, is Australian-born and of Indigenous descent. IC is an Australian citizen.
The Applicant’s aunt, Ms Gemma Steeper, provided a statutory declaration (Exhibit A1,
p 126) in which she expressed the view that the deportation of Mr Batson would have a significantly detrimental effect on her niece Ms JB, and on her own two children, who she said have enjoyed a close relationship with the Applicant since they were born. Ms Steeper noted that her parents are on bridging visas while their aged parent visas (which the Tribunal took to mean Aged Parent (Subclass 804) visas) are pending, which Ms Steeper said requires them to reside in Australia until their permanent residency is granted.
Mrs Batson said that neither she nor her husband has returned to the United Kingdom since they emigrated (her husband later said he did return on one occasion, solo, very briefly to attend the funeral of one of his parents). The Tribunal has found that two juvenile offending convictions for Robbery committed in 2013 are relevant in finding that Mr Batson did start offending relatively soon after settling in Australia, with his first adult appearance – on a serious charge – being in the Magistrates’ Court in May 2016. This part of the Direction refers to less weight being given where a non-citizen began offending soon after arriving in Australia. It is narrower than the scope of the first primary consideration, which refers to “other conduct”, which is not necessarily offending.
Before the Tribunal was a March 2022 statement by Mr and Mrs Steeper, the paternal grandparents of Mr Batson (Exhibit A1, pp 123-125). They wrote that they had come to Australia when the Applicant and his family emigrated from England and, on return, decided they did not want to be apart from their three grandchildren. They, therefore, also emigrated a short time after and lived with the Applicant and his family before finding their own accommodation. Their youngest daughter joined them shortly thereafter. In their statement, they acknowledged Mr Batson’s history of drug-taking and wrote:
Ashley is not a hardened criminal or aggressive or confrontational in nature. He is kind and gentle and a bit of a harmless Larakin [sic]. We know the only thing which has ever stood between Ashley and living a crime free life was his drug abuse. Ashley made the decision about a year ago to take responsibility for his own recovery and I believe he has been completing a drug rehabilitation program and has attended many counselling sessions … If Ashely gets deported, this will have a detrimental impact on us and on the whole family here in Australia … This is a terrible time for all of us, we all love our lives in Australia but knowing Ashley may have to return alone to England is destroying us all…
We are 73 and 69 years old and our only wish is to spend our remaining days in Australia with the ability to visit all our grandchildren and future great grandchildren. We are currently able to remain in Australia on a bridging visa whilst waiting for our permanent residency visa to be processed. This makes it very difficult for us to leave Australia for any length of time.
Although paragraph 9.4.1 requires decision-makers to consider the impact on immediate family members who are citizens or permanent residents, it would appear from Mr and Mrs Steeper’s statement that they are not (yet) in this category. However, in the light of Justice Logan’s judgment remitting the matter, the safer course for the Tribunal to take is to consider their expressed views about the Applicant and the effect on them if he is repatriated, especially as the evidence supports a conclusion they are on course for permanent residency. While it would appear that they are not precluded from leaving Australia, that may affect the status of their bridging visas and would affect the grant of a permanent Aged Parent visa, which carries with it permanent residency.
The Direction requires decision-makers to have regard to time a non-citizen has spent contributing positively to the Australian community. Mr Batson has some history of employment (GD, p 103). He worked from 2018 to 2019 as a landscaper; in 2016 as a roofer and in asbestos removal; from 2015 to 2016 as a general labourer, and for six months in 2013 and 2014, undertaking an apprenticeship in bricklaying. He has assisted, as a volunteer, at the local opportunity shop run by the Salvation Army, lifting and moving furniture.
The Tribunal notes the oral evidence of Mr Joshua Batson, who is currently completing his apprenticeship and confirmed that his employer has made a written offer (Exhibit A1, p 173) of an apprenticeship for the Applicant. Of particular interest to the Tribunal is that Mr Joshua Batson said random drug testing is a common feature of many building sites and his own employer deployed it. The employer wrote:
For the safety and wellbeing of our workers, drug and alcohol testing is part of our OHS policy we reserve the right to request drug/alcohol testing from time to time. I have attached an offer of employment for Ashley Batson along with our employee handbook.
This is an added protective factor.
The Tribunal has reviewed the several statements and the oral evidence submitted by Mr Batson’s family. The Tribunal is satisfied that there would be a very significant impact on the Applicant’s parents, his brother, his sister, his aunt and her children, and his maternal grandparents. Each, except his aunt’s younger child, has provided a written statement to that effect. In addition, the Tribunal is satisfied to find, on her statements and oral evidence at the hearing, that Ms Woodham would be adversely affected if Mr Batson’s visa is not restored and he is repatriated to the United Kingdom.
This sub-consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
Sub-consideration: Impact on Australian business interests (paragraph 9.4.2)
The Tribunal must consider any impact on Australian business interests if the Applicant is not allowed to remain in Australia, noting that an employment link would generally only be given weight where the decision under section 501CA would significantly compromise the delivery of a major project or important service in Australia.
Although Mr Batson has a work history as set out above, the Tribunal does not consider this work history rises to the level contemplated by this part of the Direction. This sub-consideration therefore weighs neutrally.
However, overall, this consideration weighs heavily in favour of revoking the mandatory cancellation of the visa.
SUMMATION
There is no doubt that the Applicant’s offending is serious. There is also no doubt that it was characterised by his methamphetamine addiction and related psychosis. That was particularly so in relation to the domestic violence offending against his parents, where the evidence was that he was in an ‘ice’-driven fugue. The primary consideration relating to the protection of the Australian community weighs against restoring his visa, because of the large number of adult offences, some of which is offending against the person. The primary consideration relating to whether the conduct constituted family violence weighs against the Applicant but not heavily in the circumstances explained above. The best interests of minor children in Australia affected by the decision weigh heavily in favour of the Applicant, mainly because of his fiancée’s young daughter. The primary consideration relating to the expectations of the Australian community weighs against restoring the visa.
Two other considerations have been found to be relevant. The extent of impediments if removed and the links to the Australian community have both been found to weigh in favour of Mr Batson. The former consideration weighs relatively heavily in favour of the Applicant, given the expert medical evidence on a mental health prognosis, and downward trajectory, if the Applicant is repatriated. The consideration relating to the impact on victims weighs in his favour. However, in the calculus, the Tribunal does not ‘double-count’ this consideration where the main points have otherwise been properly considered and weighed in the balance under other considerations in the Direction.
The Tribunal finds that, in this case, the discretion is enlivened and is satisfied that there is another reason under section 501CA(4)(b)(ii) of the Act why the original decision (to cancel the visa) should be revoked. The Tribunal is satisfied that Mr Batson is gravely aware of the pernicious nature of his ‘ice’ addiction and the damage that it has done to him, and that he has shown a willingness to overcome it by his participation in courses and not returning to taking illicit drugs. Of particular significance to the Tribunal were the handwritten notes of Mr Batson, which were before the Tribunal, in which he tracked, in his own words, what he was learning from the courses and how he understood the need to modify his behaviour. This shows a comprehension by a former addict that the Tribunal considers is not only notable, but rare. The fact that the Applicant kept such notes over an extended period and forwarded them to Professor Freeman as evidence that he had been actively engaging with rehabilitative courses augers well for a conclusion that Mr Batson will not relapse.
However, the Applicant should be clear he remains on a visa which is cancellable by the Minister or the Minister’s delegate if he relapses to further offending. The Tribunal hopes that Mr Batson realises that this is a significant incentive for him to continue along his road to full reformation, so that he can build his relationship with his fiancée and her daughter, and his own family, as well as obtain and maintain a productive job. If he relapses and jeopardises his migration status, the likely outcome can be predicted.
DECISION
Pursuant to section 43(1)(c)(i) of the Administrative Appeals Tribunal Act 1975, the Tribunal sets aside the decision of the delegate dated 6 April 2021 and, in its place, substitutes a decision that the mandatory cancellation of the Applicant’s visa be revoked under section 501CA(4)(b)(ii) of the Act.
I certify that the preceding 126 (one hundred and twenty-six) paragraphs are a true copy of the reasons for the decision herein of Senior Member D. J. Morris
........................[SGD]................................................
Associate
Dated: 15 June 2022
Date of hearing:
24 May 2022
Advocate for the Applicant:
Mr Ziaullah Zarifi
Solicitors for the Applicant:
Zarifi Lawyers
Advocate for the Respondent:
Ms Hannah Anderson
Solicitors for the Respondent:
Clayton Utz
ANNEXE – Schedule of Exhibits
R1 ‘GD’ documents lodged on 4 March 2022
R2 Respondent's Bundle RE3 and RE4 lodged on 29 April 2022
R3 Respondent’s Bundle RE5 lodged on 17 May 2022
R4 Respondent’s Bundle RE6 lodged on 20 May 2022
A1 Applicant in two parts lodged a bundle of documents on 5 May 2022
A2Applicant in three parts lodged a supplementary bundle of documents on 18 May 2022
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