Benioni and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)
[2024] AATA 3048
•30 July 2024
Benioni and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 3048 (30 July 2024)
Division:GENERAL DIVISION
File Number: 2024/2949
Re:Te Aretoa-o-te-pa-toa-o-marouna Ephraim Taufulufulu Benioni
APPLICANT
AndMinister for Immigration, Citizenship and Multicultural Affairs
RESPONDENT
DECISION
Tribunal:Member D. Cosgrave
Date:30 July 2024
Date of written reasons: 30 August 2024
Place:Brisbane
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the decision under review and substitutes a decision revoking the original visa cancellation.
.............[SGD].............
Member D. Cosgrave
Catchwords
MIGRATION – Class TY Subclass 444 Special Category (Temporary) visa cancellation –- failure to pass character test – whether there is another reason to set aside the mandatory visa cancellation – grievous bodily harm – Ministerial Direction No. 110 applied
Legislation
Acts Interpretation Act 1901 (Cth)
Administrative Appeals Tribunal Act 1975 (Cth)
Criminal Code Act 1899 (QLD).
Migration Act 1958 (Cth)
Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
Migration Regulations 1994 (Cth)
Cases
Ali v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 559
Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492
Davis and Minister for Immigration and Border Protection [2017] AATA 1106
Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870
Dharma and Minister for Home Affairs [2018] AATA 2757
Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471
FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19
FYBR v Minister for Home Affairs (2019) 272 FCR 454
Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166
GJJF v Minister for Home Affairs (Migration) [2019] AATA 930
GTPT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246
Holloway v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 1126.
Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461
JKPM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 365
JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168.
Kare Kare v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2020] AATA 498
Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153.
Kelly v Minister for Immigration, Citizenship and Multicultural Affairs [2022] FCA 396
Khalil v Minister for Home Affairs (2019) 271 FCR 326
Meyrick v Minister for Home Affairs [2020] FCA 677
Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187
Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160
Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559
Murphy v Minister for Home Affairs [2018] FCA 1924
PNLB v Minister for Immigration and Border Protection [2018] AATA 16
QKVH v Minister for Home Affairs [2020] AATA 4431
Rahman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888
Rana v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 1327
Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970
Ross v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 1773
Saleh v Minister for Immigration and Border Protection [2017] AATA 367
SGFZ v Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2023] AATA 4353
Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545
Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424
Tanielu v Minister for Immigration and Border Protection [2014] FCA 673
Tera Euna and Minister for Immigration and Border Protection [2016] AATA 301
Tonga v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 1179
Secondary Materials
Direction No. 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (21 June 2024)
Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth)
REASONS FOR DECISION
Member D. Cosgrave
30 August 2024
INTRODUCTION
Mr Benioni seeks review of the Minister’s (the Minister or the Respondent) delegate’s 6 May 2024 decision (the reviewable decision) not to revoke the mandatory cancellation of his Class TY Subclass 444 Special Category (Temporary) visa (the Visa).[1]
[1] Exhibit R1: G2, page 13.
The hearing was held by audio visual link in Brisbane on 18 and 19 July 2024. Ms Ozherelyeva represented Mr Benioni. Mr Duldig represented the Respondent. The Tribunal thanks both Mr Duldig and Ms Ozherelyeva for their excellent advocacy which greatly assisted the Tribunal.
This was an expedited matter. Under s 500(6L) of the Migration Act 1958 (the Act), the Tribunal was effectively required to make a decision by 30 July 2024. On 30 July 2024, the Tribunal met its 84-day statutory obligation[2] by providing a short form decision in which it set aside the decision under review and substituted a decision to revoke the discretionary cancellation of Mr Benioni’s Visa.[3] The Tribunal now gives its reasons for its decision.
[2] Pursuant to s 500(6L) of the Migration Act 1958 (Cth).
[3] Khalil v Minister for Home Affairs (2019) 271 FCR 326 [41]–[48].
Unless the context indicates otherwise, passages quoted in bold font have been emphasised by the Tribunal.
FACTS
Mr Benioni is a twenty-eight year old[4] New Zealand citizen who first arrived in Australia in March 2004 but who lived in Australia since November 2012.[5]
[4] Exhibit R1: G1, page 2.
[5] Exhibit R1: G2, page 86.
On 13 February 2022 Mr Benioni committed the Index Offence of Grievous bodily harm. On 5 May 2023 he pled guilty and was convicted and sentenced to a term of two years’ imprisonment, to be suspended for three years once he had served four months in jail.[6]
[6] Exhibit R1: G2, page 51.
On 29 May 2023 his Visa was mandatorily cancelled by a delegate under s501(3A) (the cancellation decision). because of the operation of s501(6)(a) (substantial criminal record) based on s501(7)(c) and because he was serving a sentence of imprisonment, on a full-time basis in Brisbane Correctional Centre in Queensland.[7]
[7] Exhibit R1: G4, page 435.
On 6 May 2024 the reviewable decision affirmed this decision.[8]
[8] Exhibit R1: G2, page 13.
LEGAL FRAMEWORK
Section 25(1)(a) of the Administrative Appeals Tribunal Act 1975 (Cth) (the AAT Act) and Section 500 of the Act are the sources of the Tribunal’s jurisdiction in this matter.
Under s 501CA(4), the Respondent may revoke a visa cancellation decision if:
representations have been made by the person in accordance with the invitation;[9] and
the Respondent is satisfied that:
(i)the person passes the character test;[10] or
(ii)there is another reason why the original decision should be revoked.[11]
[9] Pursuant to s 501CA(4)(a) of the Act.
[10] Pursuant to s 501CA(4)(b)(i) of the Act.
[11] Pursuant to s 501CA(4)(b)(ii) of the Act.
The Tribunal is satisfied that Mr Benioni made the representations required by s 501CA(4)(a) of the Act.[12]
[12] Exhibit R1: G1.
THE TRIBUNAL’S TASK
Mr Benioni’s Visa was cancelled on the basis that he had failed the character test once the delegate considered s501(2) and then applied sections 501(6)(a) and 501(7)(c).
The Tribunal’s task is set out in s501CA(4).
When the Tribunal assesses and considers the factors weighing for and against setting aside a visa cancellation, section 499(2A) of the Act requires it to comply with Direction 110 – Visa refusal and cancellation under section 501 and revocation of a mandatory cancellation of a visa under section 501CA (the Direction).[13]
[13] See Gaspar v Minister for Immigration and Border Protection [2016] FCA 1166 at para [38].
Paragraph 5.2 of the Direction sets out principles that provide a framework within which the Tribunal should approach its task.[14]
[14] Paragraph 5.2 of the Direction.
Paragraph 6 of the Direction provides that, informed by the above principles, a decision-maker must consider the Primary and Other considerations described in Paragraphs 8 and 9 of the Direction where relevant to their decision making.
The Direction requires the Tribunal to take the primary and other considerations into account. Primary Consideration 1 is generally to be given greater weight than other primary considerations.
Paragraph 8 of the Direction provides the following primary considerations.
·The protection of the Australian community from criminal or other serious conduct;
·Whether the conduct engaged in constituted family violence;
·The strength, nature and duration of ties to Australia;
·The best interests of minor children in Australia; and
·The expectations of the Australian community.
Paragraph 9 of the Direction identifies the other considerations to be assessed where relevant:
·The legal consequences of the decision;
·The extent of impediments if removed; and
·The impact on Australian business interests.
The Tribunal is not precluded from finding that a consideration specified under Paragraph 9 of the Direction has equivalent or greater weight than a consideration specified under Paragraph 8 of the Direction. This depends on each matter’s specific circumstances.[15] The weighing process is substantively left to the individual decision maker exercising the relevant power under section 501 of the Act.[16]
[15] Suleiman v Minister for Immigration and Border Protection (2018) 74 AAR 545, at [23] and [28] (Colvin J); FHHM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCAFC 19.
[16] Jagroop v Minister for Immigration and Border Protection (2016) 241 FCR 461, at [57].
The considerations in paragraphs 8 and 9 that are relevant in this matter are:
·Primary Consideration 1 – Protection of the Australian community.
·Primary Consideration 3 – The strength, nature and duration of ties to Australia.
·Primary Consideration 4 – Best interests of minor children in Australia affected by the decision.
·Primary Consideration 5 – Expectations of the Australian community.
·Other Consideration (b) – Extent of impediments if removed.
·Other Consideration (c) – Impact on Australian business interests.
Mr Benioni’s concessions can be summarised as follows:[17]
·the cancellation decision was properly made in accordance with s 501(3A) of the Act;
·he does not satisfy the character test defined by s 501(6) of the Act because as at the date of the Original Decision, he:
ohad a substantial criminal record as defined under s 501(7) of the Act;
owas serving a sentence of imprisonment, on a full-time basis, in a custodial institution, for an offence against a law of the state of Queensland.
[17] Exhibit A1: Applicant’s SFIC, page 3 – 5.
EVIDENCE
The following is an overview of the evidence tendered or adduced before the Tribunal. The evidence referred to below includes documentary evidence collated for the purposes of section 501G of the Act, further documents tendered by Mr Benioni and the Respondent and oral testimony given by Mr Benioni, Ms W, Mr Edwards, Mr Harris, Ms Bakker and Mr Weniani.
Documentary evidence
The Tribunal received written evidence during the hearing, which is attached to this Decision and marked ‘Annexure A’.
Credibility of the Witnesses
The Tribunal observed Mr Benioni closely as he gave his testimony. His testimony was cogent but self-interested and guarded at times. He displayed a great deal of insight and remorse, perhaps associated with his rehabilitation (see his observation ‘… come at a time where I was in the stages of becoming from – going from a boy to a man …’[18]). He was generally an articulate and polished witness giving factual evidence and making concessions as appropriate (for example, conceding that the risk management factor of family support co-existed with his Index Offence).
[18] Transcript, page 7, lines 1-2.
Ms W presented as a highly credible witness who gave direct answers even if the subject matter was personally painful to her.
Mr Edwards, Mr Harris and Mr Weniani presented as straightforward, insightful and credible witnesses.
Ms Bakker as an expert witness provided useful information and acknowledged that, as a psychotherapist, she delivered therapy but had not performed any objective assessments of Mr Benioni’s risk of reoffending.
PRIMARY CONSIDERATIONS
Primary Consideration 1: Protection of the Australian community from criminal or other serious conduct
When considering this Primary Consideration 1, the Tribunal must keep in mind that the Australian government’s highest priority is the Australian community’s safety. The Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Serious conduct includes behaviour or conduct that does not constitute a criminal offence. The Tribunal should and has considered the nature and seriousness of Mr Benioni’s conduct to date.
The Tribunal must also have particular regard to the principle that entering or remaining in Australia is a privilege that this country confers on non-citizens with the expectation that they are, and have been, law abiding, that they will respect important institutions and that they will not cause or threaten harm to individuals or the Australian community.
In determining the weight applicable to Primary Consideration 1, paragraph 8.1(2) of the Direction requires decision-makers to consider:
(a)the nature and seriousness of the non-citizen’s conduct to date; and
(b)the risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The nature and seriousness of Mr Benioni’s conduct to date
The Respondent enumerated[19] the sentencing decision addressing Mr Benioni’s Index Offence and contends that:[20]
·Offences of violence are as a general class, abhorrent. It is a fundamental principle of Australian society that its members are entitled to go about their business without fear of violence inflicted upon them by other individuals. The community is entitled to expect that visa holders will comply with this principle absolutely. It is in the furtherance of this principle that Direction 110 singles out violent offences as being particularly serious for the purposes of Primary Consideration 1, regardless of the sentence imposed by any court.
·In accordance with paragraph 8.1.1(1)(d) of Direction 110, the Tribunal ought to place particular emphasis on the harm caused to the victim, noting that at the time Mr Benioni kicked the victim in the face, the victim “posed no threat to [Mr Benioni] at all” and the victim had acted in a defensive manner and "quite bravely" to protect his friend. Mr Benioni's violent offending rendered the victim unconscious and Mr Benioni walked away.
·Paragraph 8.1.1(1)(c) of Direction 110 indicates that offending which results in the imposition of a custodial sentence by a court ought to be treated as particularly serious for the purposes of Primary Consideration 1.[21] The impact on the victim was significant and he has been left with long-lasting injuries.
·Mr Benioni’s offending has demonstrated Mr Benioni's disregard for the leniency and understanding of the Australian community and has caused serious physical harm to the victim of his offence of grievous bodily harm, which has resulted in permanent injury. By reference to the text of Direction 110, Mr Benioni's criminal record should be viewed as being serious, noting the sentence of imprisonment imposed.
·Such offending reflects very poorly upon Mr Benioni's character and ought to be viewed as particularly serious within the context of Primary Consideration 1, and weigh against revoking the cancellation of Mr Benioni's visa. Mr Benioni's offending represents a departure from the conduct reasonably expected of visa holders and reflects an indifference for Mr Benioni's responsibilities to the Australian community. In the Respondent's submission, Mr Benioni's criminal history ought to be viewed as particularly serious within the context of Direction 110.
[19] Exhibit R2: Respondent’s SFIC, [19].
[20] Exhibit R3: Respondent’s Statement of Facts, Issues and Contentions, [23] – [44].
[21] PNLB v Minister for Immigration and Border Protection [2018] AATA 162, [22] and Saleh v Minister for Immigration and Border Protection [2017] AATA 367, [50].
Summarising Ms Ozherelyeva’s contentions on the nature and seriousness of Mr Benioni’s conduct:[22]
[22] Exhibit A2: Applicant’s SFIC, [52] – [69].
·Mr Benioni’s Index Offending involves violence and is, therefore, categorised as serious.[23]
[23] Direction; paragraph 8.1.1(1)(a)(i).
·His offending does not involve:
ocrimes of a sexual nature.[24]
[24] Ibid.
ocrimes of a violent nature against women or children.[25]
[25] Direction; paragraph 8.1.1(1)(a)(ii).
oacts of family violence;[26]
[26] Direction; paragraph 8.1.1(1)(a)(iii).
oforced marriage, crimes directed at vulnerable members of the community, or crimes committed in immigration detention.[27]
[27] Direction; paragraph 8.1.1(1)(b)(i), (ii), (iv).
ocrimes against government representatives.[28]
[28] Direction; paragraph 8.1.1(1)(b)(ii).
·Without diminishing the serious nature of Mr Benioni’s offending, the sentence and penalties[29], for the Index Offending, are indicative of the nature and seriousness of the offence — noting the maximum penalty for grievous bodily harm is fourteen years imprisonment.[30]
[29] Direction; paragraph 8.1.1(1)(c).
[30] Exhibit R1: G2, pages 41-42.
·His Honour Judge Horneman-Wren SC’s 5 May 2023 sentencing decision has two aspects:[31]
[31] Exhibit R1: G2, pages 39-43.
othe seriousness of the offending conduct and its consequences to the victim; and
othe need for community denunciation and general deterrence of this behaviour in public places.
·The fact that the sentence was suspended after Mr Benioni served four months in prison reflects the various mitigating factors His Honour took into consideration, including Mr Benioni’s:[32]
[32] Exhibit R1: G2, page 41.
onil criminal offending other than the Index Offending;
oearly plea of guilty demonstrating remorse and cooperation with the criminal justice system;
otime ordinarily resident in Australia since his mid-to-late teens to pursue a professional sports career;
oexposure to domestic violence as a child;
ohis significant family support in Australia including his fiancé and unborn daughter (as she was then);
ohis good employment record;
ohis community service activities in supporting young people;
ohis significant and ‘commendable’ rehabilitative efforts before sentencing to ‘address alcohol and anger issues, and to try and identify any culture issues’ which may have influenced the violent reaction that gave rise to the Index Offence; and
ohis genuine actions of remorse at the time of sentencing including a written apology letter to the victim, and the voluntary offer to pay compensation to the victim in the amount of $8,000.00.
·It is conceded that Mr Benioni’s Index Offence is of a very serious nature. However, in the circumstances, and considering the sentence, which included releasing Mr Benioni rather than imposing parole, together with numerous risk mitigating factors, the Index Offence arguably falls within the lower range of seriousness for crimes of this nature.[33]
·There is no assessable frequency, trend of increasing seriousness, or cumulative effect, arising from a single instance of offending.[34]
·There is no evidence to suggest Mr Benioni has provided false or misleading information.[35]
·There is no evidence to suggest Mr Benioni has been the subject of previous warning under s 501.[36]
·Mr Benioni has not committed any offences abroad.[37]
Tribunal’s consideration: The nature and seriousness of Mr Benioni’s conduct
[33] Direction; paragraph 8.1.1(1)(c).
[34] Direction; paragraphs 8.1.1(1)(d) and 8.1.1(1)(e).
[35] Direction; paragraph 8.1.1(1)(f).
[36] Direction; paragraph 8.1.1(1)(g).
[37] Direction; paragraph 8.1.1(1)(h).
Paragraph 8.1.1(1)
When assessing the nature and seriousness of Mr Benioni’s criminal offending or other conduct to date, the following elements of paragraph 8.1.1(1) are relevant:
·the nature and details of his Index Offence;
·the sentences imposed for his Index Offence;
·the frequency of his offending and the trend of increasing seriousness.
On 13 February 2022 Mr Benioni committed the Index Offence – a violent crime without provocation against a male victim, causing significant injuries. The Direction states that violent crimes are viewed very seriously[38] by the Australian government and the Australian community.
[38] The Direction uses ‘very’ while the Respondent’s SFIC at [21] uses ‘particularly’.
The sentencing decision reflects both the Index Offence’s serious nature and the mitigating factors that His Honour Justice Horneman-Wren SC also describes in the decision.[39] The result of the sentencing decision is that His Honour sentenced Mr Benioni to two years imprisonment, suspended after four months in jail for an operational period of three years, relative to a possible maximum sentence of fourteen years for the Index Offence.[40]
[39] Exhibit R1: G2, page 41.
[40] s320, Criminal Code Act 1899 (QLD).
The sentencing decision indicates that his victim suffered from the injuries Mr Benioni inflicted for a considerable period after 13 February 2022.
The Tribunal agrees with Ms Ozherelyeva’s contention that there is no assessable frequency, trend of increasing seriousness, or cumulative effect, arising from the single instance of Mr Benioni’s offending.
Tribunal’s finding: The nature and seriousness of Mr Benioni’s conduct
The Tribunal has sought above to apply and consider each of the relevant sub-paragraphs appearing in paragraph 8.1.1(1) of the Direction.
With reference to the relevant and applicable paragraphs referred above and after a holistic consideration of Mr Benioni’s offending, the Tribunal finds that it should be characterised as very serious.
Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct
The Respondent contends here that:
·The Australian community may necessarily be expected to accept a degree of risk associated with the holding of visas by non-citizens. However, as Senior Member Taylor observed in Dharma and Minister for Home Affairs,[41] the degree of risk that may be acceptable is ‘inversely related’ to both the likelihood of reoffending and the apprehended significance of the harm that may be caused by such further offending. In this context, paragraph 8.1.2(1) of the Direction introduces the notion of an "unacceptable risk"; that is, a risk that the community should not be required to tolerate regardless of other considerations. In Tanielu v Minister for Immigration and Border Protection,[42] Her Honour Justice Mortimer (as she then was) drew upon authorities related to other protective schemes to explain that, to determine an ‘unacceptable risk’, a decision-maker must evaluate both the potential consequences of further offending and the likelihood that such consequences will manifest.
[41] Dharma v Minister for Home Affairs [2018] AATA 2757, at [26].
[42]Tanielu v Minister for Immigration and Border Protection [2014] FCA 673, at [89] - [104].
·Mr Benioni has provided the following submissions and evidence with respect to the risk that would be posed to the community were the reviewable decision to be set aside:
osubmissions filed on 3 October 2023[43];
[43] Exhibit R1: G2, pages 85-108.
oa statement dated 3 October 2023 in which Mr Benioni states that he “has made significant efforts to change my behaviour" and has been sober since his incarceration”.[44]
[44] Exhibit R1: G2, pages 115-116.
oletter of apology to the victim (undated).[45]
[45] Exhibit R1: G2, page 122.
oevidence that he has completed a number of rehabilitative courses.[46]
[46] Exhibit R1: G2, pages 124-150.
oletters from Ms Sharyn Wilson (Registered Counsellor) dated 10 April and 11 August 2023.[47]
[47] Exhibit R1: G2, pages 241-243.
oletter from Ms Marina Bakker (Counsellor) dated 23 September 2023.[48]
[48] Exhibit R1: G2, pages 244-245.
oa report of Dr Jacqui Yoxall.[49]
[49] Exhibit R1: G2, pages 246-280.
oa number of character and work references from his friends and former employers.
·Mr Benioni submitted on 3 October 2023 that his risk of recidivism is lowered due to the existence of the following protective factors: [50]
[50] Exhibit R1: G2, pages 85-108.
oHe now has a newborn daughter and is engaged to marry his partner, Ms W.
oHe has made efforts to improve his employability and has an offer of ongoing employment from his previous employer, Black Canvas Barbershop.
oHe has no prior criminal convictions.
ohis offending was not premeditated (and occurred due to "binge-drinking and severe alcohol intoxication") but he has now committed to abstain from alcohol (except on special occasions).
ohe was on bail in the community after his offending and prior to sentencing (a period of 15 months) and did not breach the conditions of his bail.
ohe is remorseful for his actions (as demonstrated by a letter of apology to the victim and his offer to pay $8,000 in compensation); and
ohe has engaged in a significant amount of rehabilitation and counselling.
·In her report, Dr Yoxall reports that Mr Benioni is 'disgusted and ashamed by his actions'.[51] She also states that his reoffending risk is low because he has resolved his abuse of alcohol, undertaken an anger management course, is addressing the other factors that contribute to the likelihood of his overreacting to a perceived threat, demonstrates a high degree of personal insight, is motivated to maintain a prosocial life and faces substantial disincentives to reoffending.
·Ms Sharyn Wilson (Counsellor) has reported that Mr Benioni feels remorseful for his actions and that anger management, identification of triggers, development of strategies and the resolution of underlying issues was explored during sessions.[52]
·If returned to the community, Mr Benioni has stated ‘my plan is to confine my drinking to a very low level (basically nil) going forward, drinking only on special occasions’.[53] The Respondent considers that it is unclear what effect the consumption of even a limited amount of alcohol may have on Mr Benioni or how this may impact the risk of Mr Benioni reoffending, particularly if he has not consumed alcohol for a lengthy period of time, given that his criminal offending occurred in circumstances where he had abstained from consuming alcohol for six weeks and his 'tolerance was low'.[54]
·The Respondent accepts that there is no evidence of repeat offending by Mr Benioni, and he has taken some positive steps towards rehabilitating himself with respect to his substance abuse issues, noting that he has participated in a drug and alcohol program, anger management rehabilitation and culturally specific counselling.
·In the Respondent's submission, the Tribunal can have a low to moderate level of confidence that Mr Benioni will not return to substance abuse if the Cancellation Decision is revoked.
·Having regard to Mr Benioni's history with substance abuse, the Respondent contends that Mr Benioni poses a real and not insignificant risk to the safety of the Australian community. Having regard to the nature of Mr Benioni's offending, the further harm he may cause, the likelihood of him reoffending and the significant harm caused to and impact of the offending on the victim, the Respondent contends that Primary Consideration 1 ought to weigh against revocation of the Cancellation Decision and should be afforded greater weight than any of the other primary considerations.
[51] Exhibit R1: G2, page 270.
[52] Exhibit R1: G2, pages 241-243.
[53] Exhibit R1: G2, page 116.
[54] Exhibit R1: G2, page 115.
Ms Ozherelyeva contends here that:
·Mr Benioni concedes that the nature of harm to individuals, should he commit similar offending as the Index Offence, is significant, and is viewed gravely by the Australian government and community.[55] The severity of his Index Offence and the implications it holds in terms of public safety and the values upheld by Australian society, necessitate a stringent review, yet do not necessarily equate to an unacceptable risk. In assessing the overall risk to the Australian community, relative consideration should be extended to the very low likelihood of Mr Benioni reoffending.
[55] Direction: paragraph 8.1.2(1).
·If Mr Benioni reoffends, based on his past conduct, the primary concern would be the risk of harm to individuals if Mr Benioni were to consume excessive amounts of alcohol. However, Mr Benioni has had a history of alcoholism and binge-drinking in the past which has not previously resulted in any offending conduct.
·Since the Index Offence, Mr Benioni has:
odemonstrated he has a low risk of reoffending, tested in the community over a period of fifteen months, between the offending date and the date he was sentenced, during which he complied with all conditions of his bail; and
ovoluntarily initiated, undertook, and self-funded twenty-five rehabilitative programs and relevant counselling to address, inter alia, alcoholism, drugs, and anger management issues, which he commenced prior to sentencing, and continued after entering detention (noting that he was unable to engage in rehabilitation when incarcerated because of the short period of his imprisonment sentence).[56]
[56] Exhibit R1: G2, pages 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 139, 140, 141, 142, 143–5, 146, 147, 148, 149, 150, 242–2, 243, 244–5.
·Prior to sentencing, Mr Benioni had never faced the salutary effect of either prison or the prospects of deportation, and yet he still actively pursued rehabilitation. The Tribunal should be satisfied that Mr Benioni has taken the realisation of his situation very seriously.
·Mr Benioni previously provided twenty-one support letters from various members of his community and network, demonstrating he has the support and respect of his friends, family, and current and former colleagues.[57] It is submitted that these represent the goodwill and good standing Mr Benioni has in his community.
[57] Exhibit R1: G2, 302–3, 328–9, 330, 331, 338, 339–40, 341–2, 343–4, 345–6, 347, 348–9, 350, 351, 352–3,
354, 355, 356, 357, 358–9, 360, 361.
·It is conceded there is an automatically implied risk of reoffending — as is the case with all offenders[58] — yet, the Tribunal must determine the realistic level of risk posed by Mr Benioni at the time of its decision,[59] where the ‘possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk [is], or whether the risk should be “tolerated”’[60], such that it would be considered an unacceptable risk.[61]
[58] Exhibit R1: G2.
[59] Direction; paragraph 8.1.2(2)(b)(ii).
[60] Murphy v Minister for Home Affairs [2018] FCA 1924 (Mortimer J) (‘Murphy’) at [37].
[61] Direction; paragraph 8.1.2(1).
·When determining whether there is a risk, the High Court’s observations in Gou[62] are pertinent, as are the decisions in GJJF[63] and Roberts[64], when determining if Mr Benioni poses ‘more than a minimal or trivial likelihood of risk,’[65] all ‘available information and evidence’ pertaining to the risk of Mr Benioni re-offending, and the ‘rehabilitation achieved’ by Mr Benioni must be considered.
[62] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 (CJ Brennan, JJ Dawson,Toohey, Gaudron, McHugh and Gummow) (‘Guo’).
[63] GJJF v Minister for Home Affairs (Migration) [2019] AATA 930 (‘GJJF’).
[64] Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970 (‘Roberts’).
[65] GJJF v Minister for Home Affairs (Migration) [2019] AATA 930 at [48]–[52]; Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
·As observed in GTPT[66], the Tribunal must also ‘giv[e] weight to any time spent in the community since their last offence,’[67] and the more time that passes without Mr Benioni re-offending, irrespective of formal rehabilitation, is evidence that the recidivism risk of Mr Benioni has significantly reduced to the ‘very lower end of low such that it is only a remote risk … not … a real risk that Mr Benioni will commit further … offences.’[68]
[66] GTPT v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246, at [67] (Senior Member Bellamy) (‘GTPT’).
[67] Ibid [67] citing Direction 110 [8.1.2(2)(b)(ii)].
[68] Ibid [94].
·Mr Benioni’s vow to abstain from alcohol, and his present lengthy duration remaining abstinent since the Index Offence, including:
othe fifteen months he was on bail residing in the Australian community without incident;
ohis substantial and continuing rehabilitative actions;[69] and
[69] Exhibit R1: G2, pages 20-21.
ohis authentically demonstrated acts of remorse,[70]
[70] Exhibit R1: G2, page 63.
are each evidence, in and of themselves, that these considerations are operating independently and cumulatively to perpetually mitigate the likelihood of any reoffending, and significantly reduces that risk.
·In Dr Yoxall’s risk evaluation report[71], she assesses Mr Benioni to have a low to moderate level of State Anger, a moderate level of Trait Anger, and a low level of overall Anger Expression, which indicates that he was not experiencing any angry feelings, nor the need to express any angry feelings, physically or verbally, during the assessment.[72]
[71] Exhibit R1: G2, pages 246-80.
[72] Exhibit R1: G2, page 259.
·Mr Benioni’s score for Trait Anger fell within the normal range of feeling angry about as often as most people.[73] Dr Yoxall reports:[74]
[73] Exhibit R1: G2, page 260.
[74] Ibid.
“[His] responses indicate that he may be prone to react to anger provoking situations with hostility although this could be in the form of sarcastic comments or dark humour which may defuse the situation rather than increase it. However, [Mr Benioni] is more likely to suppress anger than outwardly express it. … Overall, his Anger Index is low indicating that he is not a person who overall has enduring problems with management of anger.”
·Regarding Mr Benioni’s risk of violent reoffending, Dr Yoxall reports:[75]
[75] Exhibit R1: G2, pages 264-265.
“[Mr Benioni] has a low loading on the historical scale risk items, low loading on the clinical scale risk items and no loading on the risk management scale items. This indicates that whilst he has some historical risk factors, he is currently coping well and has achieved good outcomes with rehabilitation completed. Overall [Mr Benioni’s] score … is generally considered to accord with a low risk of violence. [It should be noted that ‘low risk’ is the lowest risk possible …]”
·In the premises above, the risk Mr Benioni poses has significantly reduced to the ‘very lower end of low.’[76]
[76] GTPT and Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2021] AATA 3246 at [94].
·Mr Benioni’s completion of numerous rehabilitation programs indicates a degree of acceptance of responsibility for his actions. This is crucial for meaningful rehabilitation.[77] His persistence and willingness to become self-aware, to understand his motivators, triggers, and coping mechanisms, led him to use up the maximum amount of rehabilitation programs and courses available to him when imprisoned. Upon release and relocation to detention, Mr Benioni has continued to engage with and undertake relevant rehabilitation including psychological counselling and various courses.[78]
[77] Exhibit R1: G2; G2, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 135, 139, 140, 141, 142, 143–5, 146, 147, 148, 149, 150, 242–2, 243, 244–5.
[78] Ibid.
·Mr Benioni’s rehabilitation has centrally focused on alcohol, anger management, and cognitive behaviours, Mr Benioni has engaged openly with cognitive behavioural programs, and has acquired a deeper knowledge of himself and his coping mechanisms.
·Mr Benioni’s completion of numerous rehabilitation programs and courses indicates several important aspects regarding his approach to understanding addressing issues related to alcohol, anger, and violence. Such courses collectively show an emphasis on both prevention and response strategies, indicating an understanding that effectively addressing alcohol use, anger management, and violence requires both proactive and reactive measures.
·Engagement in these rehabilitative programs and courses can be viewed as a sign of willingness to change, self-improve, and take responsibility for past actions, especially as Mr Benioni has a history of related offences. These courses likely cover cultural and psychosocial factors that contribute to violence, providing comprehensive understanding of the issues beyond individual circumstances, including legal obligations and ethical considerations, which are crucial for anyone in a position of responsibility and authority.
·In summary, the completion of these rehabilitation programs and courses suggests a significant investment in understanding the complexities of alcohol use, anger management, and violence by Mr Benioni, developing appropriate response skills, and a commitment to personal and professional growth in this area.
·The potentiality of future visa revocation serves as a substantial deterrent, effectively discouraging Mr Benioni from engaging in further offending conduct within the Australian community.
·Notably, the impact Mr Benioni’s offending, and the resulting visa cancellation, has had on his extended family, serves as a strong deterrent against re-offending. He is overcome with an increased sense of shame and remorse for his actions.
·Protective factors that apply and reduce Mr Benioni’s risk of reoffending include:
ohis newborn daughter, who strongly motivates him to become a better person and responsible parent;
ohis commitment to marry his fiancé (the mother of his child), Ms W;
ohis stable accommodation where he and his fiancé have resided for over three years;
ohis strong employment history, and offer of an ongoing/future job with his previous employer, Black Canvas Barbershop;
ohis significant efforts to improve his employability and business skills, which demonstrates a generally proactive attitude towards self-improvement; and
ohis commitment to effectively abstain from alcohol, except for social occasions.
In considering this part of the Direction, the Tribunal 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.[79]
[79] Paragraph 8.1.2(1) of the Direction.
The Tribunal must also have regard to the following relevant factors on a cumulative basis:
·the nature of the harm to individuals or the Australian community should the non-citizen engage in further criminal or other serious conduct; and
·the likelihood of the non-citizen engaging in further criminal or other serious conduct, taking into account available information and evidence on the risk of the non-citizen re-offending; and evidence of rehabilitation achieved by the time of the decision, giving weight to time spent in the community since the most recent offence.[80]
[80] Paragraph 8.1.2(2) (a) and (b) of the Direction.
In assessing the risk to the Australian community, the Tribunal has considered the evidence and the parties’ submissions in relation to paragraph 8.1.2.
Tribunal’s finding: The nature of the harm to individuals or the Australian community were Mr Benioni to engage in further criminal or other serious conduct.
The Tribunal finds that future repetitions of the criminal conduct of the type Mr Benioni has previously engaged in could result in serious and material physical and psychological harm to the potential victims and to the Australian community.
Tribunal’s consideration: The likelihood of the non-citizen engaging in further criminal or other serious conduct.
The Tribunal has holistically considered the totality of the oral testimony and documentary evidence that is relevant to or addresses the likelihood of Mr Benioni engaging in further criminal or serious conduct.
The issues surrounding the consideration of risk under s501(6)(d) of the Act, from which paragraphs 8.1.2(1) and (2) are drawn, have been extensively considered by the Tribunal and superior courts.[81]
[81] See, for example, Rahman v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (Migration) [2020] AATA 888 (20 April 2020); QKVH v Minister for Home Affairs [2020] AATA 4431 (QKVH 2020); Tanielu v Minister for Immigration and Border Protection (2014) 225 FCR 424; GJJF v Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019); Kayo Rerekura v Minister for Home Affairs (Migration) [2019] AATA 153.
Relevantly, in Minister for Immigration and Ethnic Affairs v Baker,[82] it was stated that the reference to ‘criminal conduct’ is:
‘…not concerned with whether the conduct has had some temporal result, such as the incurring of a conviction, but with the light that the conduct throws on the actor’s character. Of course, in the absence of a prosecution and conviction, satisfaction that criminal conduct has occurred will not be attained on slight material.’
(Tribunal’s emphasis)
[82]Minister for Immigration & Ethnic Affairs v Baker (1997) 73 FCR 187 at 194.
The clear legislative intention regarding the threshold is whether there is ‘a’ risk.[83] The Migration Amendment (Character and General Visa Cancellation) Act 2014 (Cth) specifically removed the word ‘significant’ from s 501(6)(d) leaving it as ‘a’ risk.[84] On this occasion, the Explanatory Memorandum to the Migration Amendment (Character and General Visa Cancellation) Act 2014 stated (at [46]):
‘The purpose of this amendment is to clarify the threshold of risk that a decision maker can accept before making a finding that the person does not pass the character test in relation to paragraph 501(6)(d) of the Migration Act. The intention is that the level of risk required is more than a minimal or trivial likelihood of risk, without requiring the decision-maker to prove that it amounts to a significant risk.’
[83] See the discussion in GJJF and Minister for Home Affairs (Migration) [2019] AATA 930 (17 May 2019) at [48] - [52].
[84] See the discussion in Roberts v Minister for Home Affairs (Migration) [2018] AATA 3970 at [27].
In Minister for Immigration and Border Protection v Sabharwal [2018] FCAFC 160 (Sabharwal), the Full Court of the Federal Court stated at [2]:
‘… Section 501(6)(d)(i) provides that a person does not pass the character test if
“in the event the person were allowed to enter or to remain in Australia, there is a risk that the person would ... engage in criminal conduct in Australia”. The section requires an evaluative judgment by the decision-maker, in the present case the Minister personally, as to whether the decision-maker is satisfied that there is such “a risk.” Then, if the decision-maker is so satisfied, the decision-maker has a discretion to refuse to grant a visa to the person.’(Tribunal’s emphasis)
In Guo Chief Justice Brennan, Justices Dawson, Toohey, Gaudron, McHugh and Gummow of the High Court observed as follows, at (574)-(575):[85]
‘The course of the future is not predictable, but the degree of probability that an event will occur is often, perhaps usually, assessable. Past events are not a certain guide to the future, but in many areas of life proof that events have occurred often provides a reliable basis for determining the probability – high or low – of their recurrence. The extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity. In many cases, when the past has been evaluated, the probability that an event will occur may border on certainty. In other cases, the probability that an event will occur may be so low that, for practical purposes, it can be safely disregarded. In between these extremes, there are varying degrees of probability as to whether an event will or will not occur. But unless a person or tribunal attempts to determine what is likely to occur in the future in relation to a relevant field of inquiry, that person or tribunal has no rational basis for determining the chance of an event in that field occurring in the future.’
(Tribunal’s emphasis)
[85] Minister for Immigration and Ethnic Affairs v Guo (1997) 191 CLR 559 at 574 to 575.
Her Honour Justice Mortimer (as she then was) explored the notion of risk and its nexus to future possibilities in Murphy v Minister for Home Affairs [2018] FCA 1924 (Murphy) at [37], where Her Honour noted:[86]
‘That is, part of the Tribunal’s task was to decide not only whether the Applicant might engage in further offending conduct if he were permitted to stay, but what level of risk any such conduct might pose to the Australian community, the possible level of violence of the conduct being at least one measure (but not the only measure) of how serious the risk was, or whether the risk should be “tolerated”.’
[86] Murphy v Minister for Home Affairs [2018] FCA 1924 at [37].
Consequently, by applying the reasoning in Sabharwal to this matter, the Tribunal’s task is to assess whether there is ‘a risk’ or a likelihood of Mr Benioni engaging in further future criminal or serious conduct, with one consideration being the past events referenced in Guo and guided by Murphy.
In making this assessment, the Tribunal has considered the extant expert evidence of Dr Yoxall, Ms Wilson and Ms Bakker, the oral testimony and the remaining documentary evidence, including the extensive evidence in relation to Mr Benioni participating in and completing formal rehabilitation courses and the widespread community support he and Ms W have experienced.
A consideration of the risk or likelihood of Mr Benioni engaging in further criminal or serious conduct should encompass the factors that:
·facilitate the risk; or,
·conversely, hinder or retard the risk.
Doing this enables the Tribunal, in making its assessment, to consider Justice Mortimer’s question as to ‘whether the risk should be “tolerated”.’
Factors that facilitate the risk
Mr Benioni’s Index Offence indicates that alcohol, anger and poor decision making facilitate his offending. There are likely to be other factors but these three appear dominant.
The High Court’s reasoning in Guo that ‘the extent to which past events are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity’ can be effectively applied here.
Acknowledging extensive his rehabilitation efforts, his statements regarding his future alcohol use and the fact this approach has been tested in the community (the fifteen months between the Index Offence and his incarceration) and the protective factors that manage or mitigate his risk of reoffending, the Tribunal considers that these risk factors are significantly diminished or mitigated in terms of facilitating any future reoffending by Mr Benioni. The Tribunal also considers that Justice Horneman-Wren SC’s comment that Mr Benioni’s sentence was in part fashioned ‘… to act as a deterrent to others who might commit vicious acts of physical violence upon defenceless persons in places where the public gather.’ At the least this suggests that His Honour did not conclude that Mr Benioni required a deterrent.[87]
[87] Exhibit R1: G2, page 42.
Factors that hinder or retard the risk – rehabilitation and remorse
Mr Benioni and the other witnesses provided oral testimony in addition to the documentary evidence demonstrating the extent and nature of his rehabilitation, especially his engagement with formal rehabilitation courses, and his expressions of remorse about his offending, as well as giving useful context to some of his offending.
Risk management factors
The evidence and testimony identify several static risk management factors for Mr Benioni. These include his immediate family, his employment situation, his volunteer work and a committed and supportive network of family and friends. While the efficacy of these factors is tempered by the fact that they did not stop Mr Benioni committing the Index Offence, they still constitute a substantive set of static risk management factors.
The Tribunal notes Mr Benioni’s unilateral and apparently unsolicited offer to pay his victim $8,000 in compensation, towards which he has already made payments and considers this to provide some evidence of his remorse and his ownership of his offending. The Tribunal also takes note of his extensive rehabilitation efforts which also encompass counselling. In addition to these, Mr Benioni is now a father to an infant daughter, which the Tribunal also accepts as an ongoing dynamic risk management factor. These new factors are substantive and material, and, to an extent have been successfully tested in the community.
Risk analysis and consideration
The Tribunal has considered the evidence above, applying the dictum in Guo that the extent to which past events or conduct are a guide to the future depends on the degree of probability that they have occurred, the regularity with which and the conditions under which they have or probably have occurred and the likelihood that the introduction of new or other events may distort the cycle of regularity.
Tribunal’s finding: Risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
The Tribunal finds that the risk to the Australian community should Mr Benioni commit further offences or engage in other serious conduct exists but is low.
Conclusion: Primary Consideration 1: Protection of the Australian community
This consideration weighs substantially in favour of affirming the reviewable decision.
Primary Consideration 2: Family Violence Committed by the non-citizen
This paragraph is not relevant as there is no evidence to suggest Mr Benioni has engaged in conduct constituting family violence, and therefore, has neutral weight.
Conclusion: Primary Consideration 2: Family Violence committed by the non-citizen
This consideration carries neutral weight.
Primary Consideration 3: The strength, nature and duration of ties to Australia
The Tribunal here should consider any impact of the decision on Mr Benioni’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.
The Tribunal should also consider the strength, nature and duration of any other ties that Mr Benioni has to the Australian community, having regard to:[88]
(a)how long the Applicant has resided in Australia, including whether he arrived as a young child, noting that:
(i) less weight should be given where the Applicant began offending soon after arriving in Australia; and
(ii) more weight should be given to time the Applicant 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.
[88] Direction; paragraph 8.3(2).
The Respondent contends that:[89]
·Mr Benioni has previously submitted that he has thirty-three relatives residing in Australia and thirty-one relatives residing in New Zealand. In the Applicant's Statement of Facts, Issues and Contentions, Mr Benioni contends that he ‘has a significant number of immediate and close family members in Australia — approximately 14 Australian citizens, and 14 permanent residents, including his parents, siblings, and half siblings, and numerous minors.’[90]
·Mr Benioni only has two immediate adult family members residing in Australia - his fiancée, Ms W, and his brother, Tiumalu Benioni.[91] Both of these individuals are New Zealand citizens and are residing in Australia on Special Category (subclass 444) Visas.[92] Mr Benioni's other immediate family members (including his parents and other siblings) are all citizens of, and reside in, New Zealand (except his mother, who is a Samoan citizen residing in New Zealand).[93] Mr Benioni's minor daughter resides in Australia and is an Australian citizen.
·Mr Benioni has filed a statement from Ms W in which she says that she relies on Mr Benioni for emotional and financial support.[94]
·In terms of other ties to Australia, departmental records show that Mr Benioni first arrived in Australia on 19 February 2004 when he was eight years' old. From the age of sixteen (in 2012), he began to spend longer periods of time in Australia as he completed his final years of schooling and pursued a professional rugby career.[95] Departmental records indicate that Mr Benioni spent substantial periods of time from 2013-2015 outside of Australia and then ordinarily resided in Australia from around the age of twenty (in 2016).[96] Mr Benioni committed the offending when he was twenty six years old which is six years after he arrived in Australia to live on an ongoing basis.
·Mr Benioni has been involved with semi-professional rugby league and played A-Grade Rugby League for the Wynnum Manly Seagulls and regularly helps out with the junior teams’ league.[97]
·The Respondent notes that Mr Benioni has previously been employed as a barber in Australia and obtained a Certificate III in Barbering at the Australian Institute of Barbering and TAFE in 2021.[98] Mr Benioni's previous employment included unloading shipping containers between 2015 and 2017.[99] Mr Benioni also started a number of businesses together with his fiancée, including an online gift store and vending machine business. He has also obtained his car dealer licence. Prior to his arrest, Mr Benioni was working towards employment as a youth worker at Brisbane Youth Detention Centre.[100]
·Mr Benioni has provided statements from numerous individuals (who are not members of his immediate family), in support of his application. Mr Benioni has also submitted evidence of his relationships in the form of numerous photographs of himself and his family members and friends.[101] Mr Benioni is part of a group called Family over Everything which started after one of Mr Benioni's best friends was shot in gang violence in New Zealand, and the group meets regularly and provide each other with practical and emotional support.[102]
·In the circumstances, the Respondent accepts that Primary Consideration 3 should be afforded some weight in Mr Benioni's favour (primarily due to Mr Benioni's minor daughter being a citizen of, and residing in, Australia). However, the Respondent contends that the Tribunal should find that Primary Consideration 1 strongly outweighs Primary Consideration 3 (and any other primary consideration).
[89] Exhibit R2: Respondent’s SFIC, paragraphs [40] – [47].
[90] Exhibit A1: Applicant’s SFIC, [49].
[91] Exhibit A1: G2, pages 79-80.
[92] The Tribunal notes that in her testimony, Ms W stated that she was now an Australian citizen: Transcript, page 3, lines 15 – 18.
[93] Exhibit A1: G2, page 70. See also Exhibit A3, ATB1, pages 9-30.
[94] Exhibit A1: G2, page 298.
[95] Exhibit A1: G2, page 86; G7, pages 443-446.
[96] Exhibit A1: G2, page 373.
[97] Exhibit A1: G2, page 111.
[98] Exhibit A1: G2, pages 111 and 353.
[99] Exhibit A1: G2, pages 75 and 113.
[100] Exhibit A1: G2, page 113.
[101] Exhibit A1: G2, pages 151-237.
[102] Exhibit A1: G2, page 114.
Ms Ozherelyeva contends that:
·Mr Benioni arrived in Australia to reside when he was sixteen years old. He was present in Australia during two of his formative years as a minor child, including at a particularly important juncture where, as a teenager, he was learning how to become an adult and engage with the world. He came to Australia on his own, and as a result his development accelerated during this time.
·Mr Benioni’s only offence occurred nine years after he arrived in Australia at sixteen. He is now twenty-eight years old.
·Mr Benioni has contributed to the Australian community since 2012, including:
oholding consistent full-time jobs since 2015, shortly after he finished high school;
ostudying a vocation (barbering) and becoming a respected barber in his field; and
obecoming heavily involved in the semi-professional rugby league community.
·The Tribunal is obliged to prioritise the evaluation of Mr Benioni’s ties to Australia, considering the strength, nature, and duration of these connections, encompassing familial, social, and economical aspects.
·Mr Benioni has very substantial ties to the Australian community as indicated by the numerous support letters.[103] Notably, his support letters clearly establish that Mr Benioni has a strong presence and reputation in his local community, as well as strong support from his family. Mr Benioni has a significant number of immediate and close family members in Australia — approximately fourteen Australian citizens, and fourteen permanent residents, including his parents, siblings, and half siblings, and numerous minors.
[103] Exhibit A1: G2, pages, 302–3, 328–9, 330, 331, 338, 339–40, 341–2, 343–4, 345–6, 347, 348–9, 350, 351, 352–3,354, 355, 356, 357, 358–9, 360, 361.
·The impact on Mr Benioni’s immediate family, being his partner, Ms W, and their daughter Child A would be significant, and have a lasting negative impact on him and them alike.
·Ms W is an Australian citizen who has been living in Australia with her family since she was approximately thirteen years of age (which is now approximately fifteen years, or over half her lifetime). She successfully applied for Australian citizenship (with their newborn daughter Child A as a dependent applicant).
·Ms W has recently given birth to Child A and become a first-time parent. Without Mr Benioni, she is facing very limited parenting support and it has resulted in a steep decline in her financial stability. A letter provided by Ms W’s psychologist, Elizabeth Keays, confirms the importance of Mr Benioni to Ms W’s mental health. Ms Keays writes that ‘Miss W continues to experience periods of low anxious mood, stress and overwhelm in the context of navigating the perinatal period without Mr Benioni and the ongoing uncertainty for their future.’[104]
·In her statutory declaration,[105] Ms W reveals that she was sexually abused by multiple perpetrators from the age of five, when she lived in New Zealand as a child. This has an ongoing impact on her, and she writes that her fiancé, Mr Benioni, is ‘the only man in [her] life who knows about the sexual abuse’ and who supports her emotionally with this very difficult trauma. Arguably, Ms W is a particularly vulnerable individual because of the sexual abuse she suffered as a child, and the stress of being a single parent as a first-time mother has been particularly difficult for her without Mr Benioni.
·Moreover, Ms W writes that she would face severe difficulties if she were to return to New Zealand, on account of the trauma associated with that country and the fact that the perpetrators of her sexual abuse are still living there. This would necessarily result in both Ms W and Child A being separated from Mr Benioni should he be forced to return to New Zealand. Such separation would, in turn, have a further negative impact on Ms W, both emotionally and practically, because it would remove her main support system for both dealing with her ongoing trauma and parenting their child. Arguably, Ms W’s well-being is interlinked with Child A’s well-being, and Child A’s well-being should be of very significant concern.
·On the premises above, and in circumstances where:
oMr Benioni has been ordinarily resident in Australia since he was sixteen and has contributed positively towards the Australian community during this time.
oMr Benioni has most of his family members living in Australia who are either Australian citizens or permanent residents; and
oMr Benioni’s fiancé lives in Australia, and is a vulnerable survivor of sexual abuse, who would suffer very significant harm should Mr Benioni be deported to New Zealand.
Primary Consideration 3 weighs very heavily in favour of revoking the Reviewable Decision.
[104] Exhibit A1: G2, page 327.
[105] Exhibit A1: G2,page 296.
The Respondent contends:
·Ms Ozherelyeva contends that Australian business interests would be affected as Mr Benioni has a standing offer of employment from his former employer and operates three businesses with his fiancée.[142]
·There is no evidence that Mr Benioni's removal from Australia would impact any Australian business interests, let alone significantly compromise the delivery of a major project, or delivery of an important service in Australia. Accordingly, the Respondent contends that this consideration should be afforded neutral weight.
[142] Exhibit A1: Applicant’s SFIC, [109] – [110].
In addressing this consideration, the Tribunal acknowledges His Honour Justice Rangiah’s decision in Arachchi at [68]-[70]:[143]
‘[68]Paragraph 9.4.2 of Direction 90 commences by stating that, “Decision-makers must consider any impact on Australian business interests if the non-citizen is not allowed to enter or remain in Australia …”. The requirement is to consider any impact on Australian business interests. The requirement is not confined to business interests of a particular scale or importance.
[69]Paragraph 9.4.2 goes on to state that, “an employment link would generally only be given weight where the decision under section 501 or 501CA would significantly compromise the delivery of a major project, or delivery of an important service in Australia”. Three observations may be made. First, this qualification applies only where there is a relevant “employment link”. Second, even where there is a relevant “employment link”, decision-makers are not relieved from their obligation to consider any impacts on Australian business interests. Third, while “generally” weight will only be given to the impact on business interests where the cancellation decision would significantly compromise the delivery of a major project or delivery of an important service in Australia, the Direction does not purport to preclude decision-makers from giving weight to impacts on business interests in other circumstances.
[70]The expression “employment link” must refer to a link between employment of the former or prospective visa holder and impacts on Australian business interests resulting from the person not being able to engage in such employment as a result of cancellation or refusal of a visa. It is unnecessary, in the absence of argument, to consider precisely what is meant by “employment” in this context, or to consider the nature of the link that is envisaged. It is enough to conclude that, in the present case, the applicant’s claim was not confined to any “employment link” but was that he had an ownership interest in a business and that his removal from Australia would affect his partner’s business interests.’
[143] Op.cit.
The Tribunal also notes the Federal Court decision of JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs.[144]
[144] JZQQ v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCAFC 168.
In assessing this consideration, the Tribunal notes (in no order), Mr Benioni’s skills as a barber, his gaining a motor vehicle dealer’s licence and his creation of a vending machine business.
The Tribunal considers that a decision to affirm the reviewable decision will impact on Australian business interests in different ways. It will certainly have a substantial and adverse effect on his business partner, Ms W. Her testimony on her efforts to keep the vending machine business going as a source of income while Mr Benioni is in detention was eloquent and uncontested.[145] If the reviewable decision is set aside, Mr Benioni can resume his role and give the vending machine business a greater opportunity to prosper than it currently faces. Additionally, while Mr Benioni may face issues regaining his motor vehicle dealers’ licence, Ms W retains her similar licence, offering a separate business opportunity for the couple to develop.
[145] Transcript, page 29, line 40 – page 30, line 10.
At a higher level of abstraction, the Tribunal considers that the impact on Australian business interests of Mr Benioni’s various businesses ceasing is likely a gain for other Australian businesses.
Tribunal finding
This consideration carries some weight in favour of setting the reviewable decision aside.
FINDINGS
The Tribunal now summarises the respective weights it has allocated to each of the relevant Primary and Other Considerations (specified in the Direction) in this matter:
Primary Consideration 1 – Protection of the Australian community from criminal or other serious conduct:
·This consideration weighs substantially in favour of affirming the reviewable decision.
Primary Consideration 2 – Family Violence committed by the non-citizen:
·This consideration carries neutral weight.
Primary Consideration 3 – The strength, nature and duration of ties to Australia:
·This consideration carries substantive weight towards setting the reviewable decision aside.
Primary Consideration 4 – Best interests of minor children in Australia affected by the decision:
·This consideration carries a very strong and substantive weight towards setting the reviewable decision aside.
Primary Consideration 5 – Expectations of the Australian Community:
·This consideration weighs moderately in favour of affirming the reviewable decision.
Other Consideration (a) – legal consequences of the decision:
·This consideration has neutral weight.
Other Consideration (b) – extent of impediments if removed:
·This consideration carries moderate weight towards setting the reviewable decision aside.
Other Consideration (c) – impact on Australian business interests:
·This consideration carries some weight in favour of setting the reviewable decision aside.
ADDITIONAL CONSIDERATIONS
The Direction does not limit the other considerations to those listed in the Direction (paragraph 9(1) of the Direction).[146]
[146] Per Fehoko v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2022] FCA 1471.
There are no additional considerations before the Tribunal in this matter.
CONCLUSION
The Tribunal has two issues to address:
(a)character test: whether there is a reasonable suspicion that Mr Benioni does not pass the character test in terms of s 501(6)(b), and whether Mr Benioni satisfies the Tribunal that he passes the character test[147] and, if not;
(b)exercise of discretion: whether the Tribunal should not exercise its discretion conferred by s 501(2) to cancel Mr Benioni’s visa.
[147] Section 501(2) of the Act
In determining whether there is ‘another reason’ to revoke the cancellation decision, the Tribunal has applied the Direction to this matter’s specific circumstances.
The Tribunal has set out above its findings on the weight attributable to the Direction’s Primary Considerations and the Other Considerations.
The Tribunal has assessed and considered all the weights it has identified under the relevant considerations, adopting the process outlined in Demir v Minister for Immigration, Citizenship and Multicultural Affairs at [21]:[148]
‘[21] The metaphor of “weighing” relevant considerations should not be taken too literally. The exercise is not mathematical and cannot depend on the simple aggregation of factors on each side of a ledger. The conclusion as to whether there is “another reason” for the purposes of s 501CA(4)(b)(ii) necessarily involves persuasion of a human decision-maker, whose thought processes cannot be reflected in lines of code, as to what is the right result in the circumstances. That persuasion flows from the decision-maker’s personal understanding as to the significance of each of the factors they are required or permitted to take into account, in the light of all the material they have considered. So much is consistent with the decision-maker’s duty to “call his own attention to the matters which he is bound to consider” (Peko-Wallsend at 39 (Mason J), quoting Wednesbury at 229 (Lord Greene MR)) and to give “proper, genuine and realistic consideration to the merits of the case” (Khan v Minister for Immigration and Ethnic Affairs (unreported, Federal Court of Australia, Gummow J, 11 December 1987; noted [1987] FCA 457; (1987) 14 ALD 291, 292). Correspondingly, the statutory specification of mandatory considerations requires those considerations to be taken into account, but not necessarily to be given any particular degree of weight: Telstra Corporation Ltd v Australian Competition and Consumer Commission [2008] FCA 1758; 176 FCR 153 at [110] (Rares J) (varied on appeal (Australian Competition and Consumer Commission v Telstra Corporation Ltd [2009] FCAFC 68; 176 FCR 203), but not on this point).’
[148] Demir v Minister for Immigration, Citizenship and Multicultural Affairs [2023] FCA 870.
In applying this process, the Tribunal has regard to the Direction and specifically paragraph 7(2):
‘The primary consideration at 8.1 below (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.’
(Tribunal’s emphasis)
The use of the term ‘generally’ can be argued to have the implicit effect of negating a decision maker’s discretion to set aside a decision by always giving Primary Consideration 1 greater weight than all the remaining primary and other considerations, overriding the holistic weighing and balancing exercise described in Demir above. This would consequently remove most, if not all, of the statutory discretion available to the decision maker.
The decision in Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration)[149] sets out a line of higher authorities that substantiates the presence of a discretion in s501CA(4) to set aside a reviewable decision.[150]
[149] Blake and Minister for Immigration, Citizenship and Multicultural Affairs (Migration) [2024] AATA 492 (2 February 2024)
[150] Ibid at [37]-[39]
Additionally, paragraph 5.1(2) of the Direction refers to the discretion:
‘(2)Specifically, under subsection 501(1) of the Act, non-citizens may be refused a visa if they do not satisfy the decision-maker that they pass the character test. Under subsection 501(2), non-citizens may have their visa cancelled if the decision-maker reasonably suspects that they do not pass the character test, and the non-citizens do not satisfy the decision-maker that they do pass the character test. Where the discretion to refuse to grant or to cancel a visa is enlivened, the decision-maker must consider the specific circumstances of the case in deciding whether to exercise that discretion.’
(Tribunal’s emphasis)
Taken together these points imply that the Tribunal retains a discretion to determine whether ‘greater weight’ should be given to Primary Consideration 1 in a specific matter.
Acknowledging paragraph 7(2) but having conducted and considered a comprehensive, holistic and integrated view of the Primary Considerations and the Other Considerations in this matter leads this Tribunal to a finding that it is satisfied that there is another reason to revoke the cancellation of Mr Benioni’s Visa. Accordingly, the Tribunal makes a finding setting aside the delegate’s decision to not revoke the cancellation of Mr Benioni ’s Visa and substituting a decision revoking the original visa cancellation.
DECISION
Pursuant to section 43 of the Administrative Appeals Tribunal Act 1975 (Cth), the Tribunal sets aside the delegate’s decision under review and substitutes a decision revoking the original visa cancellation.
I certify that the preceding one hundred and seventy paragraphs (170) paragraphs are a true copy of the reasons for the decision herein of Member D. Cosgrave
..............[SGD]..............
Associate
Dated: 30 August 2024
Dates of hearing: 18 & 19 July 2024 Representation for the Applicant: Ms Ozherelyeva of Samuta McComber Lawyers Solicitor for the Respondent: Mr Duldig of Clayton Utz Lawyers
ANNEXURE A
EXHIBIT
DESCRIPTION OF EVIDENCE
PARTY
DATE OF DOCUMENT
DATE RECEIVED
APPLICANT’S SUBMISSIONS
A1
Applicant’s SFIC (ASFIC)
A
20/06/2024
20/06/2024
A2
Applicant’s Reply (AR)
A
12/07/2024
12/07/2024
A3
Applicant’s Tender Bundle (ATB)
A
Various
12/07/2024
A4
Ancillary Submissions – Re Summons Materials
A
25/07/2024
25/07/2024
RESPONDENT’S SUBMISSIONS
R1
s501G G Documents (GDOCS)
R
Various
22/05/2024
R2
Respondent’s SFIC (RSFIC)
R
5/07/2024
05/07/2024
R3
Summons Material Bundle
R
Various
23/07/2024
0
29
0