Botha and Minister for Immigration and Border Protection (Migration)
[2016] AATA 614
•18 August 2016
Botha and Minister for Immigration and Border Protection (Migration) [2016] AATA 614 (18 August 2016)
Division
GENERAL DIVISION
File Number(s)
2016/3003
Re
Cheslyn Botha
APPLICANT
And
Minister for Immigration and Border Protection
RESPONDENT
DECISION
Tribunal Deputy President Dr P McDermott RFD
Date 18 August 2016 Place Brisbane I affirm the decision under review.
..............................[sgd]..........................................
Deputy President Dr P McDermott RFD
CATCHWORDS
MIGRATION – cancellation of visa on character grounds – applicant does not pass the character test – sentenced to a term of imprisonment of 12 months – the protection of the Australian community from criminal or other serious conduct relevant – expectations of Australian community not met – no other reason why the original decision should be revoked
LEGISLATION
Migration Act 1958 (Cth) ss 499, 500, 501
SECONDARY MATERIALS
Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA
REASONS FOR DECISION
Deputy President Dr P McDermott RFD
18 August 2016
INTRODUCTION
This is an application for a review of a decision of a delegate of the Minister for Immigration and Border Protection (“the respondent”) dated 13 May 2016 to cancel the Class TY Subclass 444 Special Category (Temporary) visa of Mr Cheslyn Botha (“the applicant”) pursuant to s 501(2) of the Migration Act 1958 (Cth) (“the Act”). This Tribunal has jurisdiction to review the decision of the delegate under s 500(1)(b) of the Act.
BACKGROUND
On 29 July 2005 the applicant arrived in Australia on a tourist visa and left on the following day.[1] On 3 August 2006 he arrived in Australia as a New Zealand citizen and was granted a Class TY Subclass 444 Special Category (Temporary) visa which permitted him to remain in Australia while he is a citizen of New Zealand.[2] At the commencement of 2008 he permanently moved to Australia with his family.[3]
[1] Exhibit A, G-Documents, G6 at p. 44.
[2] Ibid.
[3] Ibid at p. 42.
The applicant has committed a number of offences in Australia. On 14 April 2010 the applicant was convicted of assault occasioning bodily harm and was sentenced to imprisonment for one year suspended on the condition that he enter a good behaviour bond.[4] On 9 May 2013 he was convicted of assault occasioning bodily harm and was sentenced to eight months imprisonment.[5]
[4] Exhibit A, G-Documents, G16 at p. 104.
[5] Ibid.
On 14 February 2014 the applicant was served a notice of intention to consider cancellation of his visa.[6] On 13 May 2016 a delegate of the respondent decided under s 501(2) of the Act to cancel the applicant’s visa.[7] On 6 June 2016 the applicant lodged an application with this Tribunal to review the decision.[8]
[6] Exhibit A, G-Documents, G7.
[7] Exhibit A, G-Documents, G3.
[8] Exhibit A, G-Documents, G1.
The applicant was held in detention in the Brisbane Immigration Transit Accommodation and appeared in person before the Tribunal at the hearing.
CHARACTER TEST
Substantial criminal record
Section 501(6)(a) of the Act provides that a person does not pass the character test if he or she has a substantial criminal record. Section 501(7)(c) of the Act provides that a person has a “substantial criminal record” if he or she has been sentenced to a term of imprisonment for a period of 12 months or more. As the applicant was sentenced to one year period of imprisonment, he has a substantial criminal record under s 501(7)(c) of the Act.
MINISTERIAL DIRECTION
Section 499 of the Act empowers the respondent to give written directions about the performance of functions and the exercise of powers under the Act. The effect of this section is that the Tribunal must comply with Ministerial Direction No 65 (Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA) (“the Direction”). The Direction commenced operation on 22 December 2014 and remains in force.
The Preamble provides that the objective of the Act is to regulate, in the national interest, the coming into, and presence in Australia of non-citizens. An objective of the Direction is to provide a framework within which decision-makers approach their decision of whether to exercise the discretion to cancel a visa under s 501(2) of the Act.[9]
[9] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [6.1(4)].
The Preamble specifies seven principles which provide a framework within which decision-makers should approach their specific task:[10]
(1) Australia has a sovereign right to determine whether non-citizens who are of character concern are allowed to enter and/or remain in Australia. Being able to come to or remain in Australia is a privilege Australia confers on non-citizens in the expectation that they are, and have been, law-abiding, will respect important institutions, such as Australia’s law enforcement framework, and will not cause or threaten harm to individuals or the Australian community.
(2) The Australian community expects that the Australian Government can and should refuse entry to non-citizens, or cancel their visas, if they commit serious crimes in Australia or elsewhere.
(3) A non-citizen who has committed a serious crime, including of a violent or sexual nature, and particularly against vulnerable members of the community such as minors, the elderly or disabled, should generally expect to be denied the privilege of coming to, or to forfeit the privilege of staying in, Australia.
(4) In some circumstances, criminal offending or other conduct, and the harm that would be caused if it were to be repeated, may be so serious, that any risk of similar conduct in the future is unacceptable. In these circumstances, even other strong countervailing considerations may be insufficient to justify not cancelling or refusing the visa.
(5) Australia has a low tolerance of any criminal or other serious conduct by people who have been participating in, and contributing to, the Australian community only for a short period of time. However, Australia may afford a higher level of tolerance of criminal or other serious conduct in relation to a non-citizen who has lived in the Australian community for most of their life, or from a very young age.
(6) Australia has a low tolerance of any criminal or other serious conduct by visa applicants or those holding a limited stay visa, reflecting that there should be no expectation that such people should be allowed to come to, or remain permanently in, Australia.
(7) The length of time a non-citizen has been making a positive contribution to the Australian community, and the consequences of a visa refusal or cancellation for minor children and other immediate family members in Australia, are considerations in the context of determining whether that non-citizen’s visa should be cancelled, or their visa application refused.
[10] Ibid at [6.3].
Paragraph 8 of the Direction provides:
…
(2) In applying the considerations (both primary and other), information and evidence from independent and authoritative sources should be given appropriate weight.
(3) Both primary and other considerations may weigh in favour of, or against, refusal, cancellation of the visa, or whether or not to revoke a mandatory cancellation of a visa.
(4) Primary considerations should generally be given greater weight than the other considerations.
(5) One or more primary considerations may outweigh other primary considerations.
In deciding whether to revoke the mandatory cancellation of the applicant’s visa, paragraph 13(2) of the Direction provides the following are primary considerations:
a) Protection of the Australian community from criminal or other serious conduct;
b) The best interests of minor children in Australia;
c) Expectations of the Australian community.
I will consider each primary consideration in turn.
Primary consideration A – The protection of the Australian community from criminal or other serious conduct
Paragraph 9.1(1) of the Direction provides:
When considering protection of the Australian community, decision-makers should have regard to the principle that the Government is committed to protecting the Australian community from harm as a result of criminal activity or other serious conduct by non-citizens. Remaining in Australia is a privilege that Australia confers on non-citizens in the expectation that they are, and have been, law abiding, will respect important institutions, and will not cause or threaten harm to individuals or the Australian community. Mandatory cancellation without notice of certain non-citizen prisoners is consistent with this principle by ensuring that serious offenders remain in either criminal or immigration detention while their immigration status is resolved.
Paragraph 9.1(2) of the Direction provides that decision-makers should also give consideration to:
a) The nature and seriousness of the non-citizen’s conduct to date; and
b) The risk to the Australian community should the non-citizen commit further offences or engage in other serious conduct.
On 14 April 2010 the applicant was convicted of assault occasioning bodily harm and was sentenced to imprisonment for one year suspended on the condition that he enter into a good behaviour bond.[11] The conviction relates to a particularly serious assault on his wife on 26 January 2010 when the applicant held the victim down and hit the left eye of the victim with the back of his right hand as well as hitting her on the top of her head with such force as to result with a cut on her head.[12] On that occasion the applicant placed the victim in the shower to clean the blood off. At the hearing the applicant did not dispute these facts which were read out to him by the representative of the respondent. There is no indication that the victim then had any medical treatment for her injuries.
[11] Exhibit A, G-Documents, G16 at p. 104.
[12] Ibid at p. 110.
At the hearing the applicant asserted that the children did not enter the room to witness the assault but instead “ran from the house”. However, the statement of facts in evidence indicated that the eldest child had entered the room. The eldest child then took the younger child to a neighbour’s house across the road.[13]
[13] Exhibit A, G-Documents, G15 at pp. 102-103.
On 9 May 2013 the applicant was again convicted of assault occasioning bodily harm and was sentenced to eight months imprisonment. This conviction relates to another serious assault that the applicant committed on his wife when he punched her ribs with his closed left and right fists.[14] The police arranged for the victim to be taken to the hospital by ambulance. As well as having these convictions of assault there is an offence in relation to the destruction or damage of property as well as two offences of the contravention of apprehended violence orders.[15]
[14] Exhibit A, G-Documents, G13 at p. 88.
[15] Exhibit A, G-Documents, G16 at p. 104.
In evidence are the sentencing remarks in the Local Court which were made on 9 May 2013 in which the Magistrate remarked that the circumstances for both offences were “very similar”.[16] As all convictions were made on a plea of guilty there was no contest on the facts. The applicant while under cross-examination admitted the material facts relating to both assault convictions, although he denied that children were present at the time of the assaults and that he damaged property.
[16] Exhibit A, G-Documents, G13 at p. 89.
I consider that the statement of facts of the 2010 conviction as well as the sentencing remarks of the Magistrate in relation to the 2013 conviction are a reliable account of the facts relating to both assault convictions. These facts are indicative of the applicant having a serious disregard for the life and safety of his ex-wife. I have come to the conclusion that he has anger issues and a lack of control of his actions.
The applicant stated at the hearing that he has accepted responsibility for his past actions and feels “profound remorse”. However, he also contended that he had accepted the facts made out by the police because of poor legal advice which omitted the repercussions of pleading guilty.
Paragraph 13.1.2(1) of the Direction requires that in considering whether the applicant represents an unacceptable risk of harm to individuals, groups or institutions in the Australian community, I should have regard to the principle 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.
The applicant had relied upon a report dated 4 July 2016 from Dr Frank Walsh, clinical psychologist.[17] Dr Walsh had interviewed the applicant on 1 July 2016. In that report Dr Walsh has concluded that there is no evidence to suggest that the applicant has any propensity for violence over and above that of the ordinary person.[18] Dr Walsh assessed the applicant as being a low risk of being a threat to the Australian community should he be permitted to remain resident in Australia.[19] Dr Walsh did not provide an explanation for the past conduct of the applicant. Dr Walsh opined that the results of his psychological assessment with a particular emphasis on potential for violence suggested that the applicant does not suffer from any psychological disorder of psychopathology.[20]
[17] Exhibit E, Medical Report of Dr F J Walsh dated 4 July 2016.
[18] Ibid at pp. 11 and 15.
[19] Ibid at p. 15.
[20] Ibid at pp. 13-14.
The report of Dr Walsh appears to be predicated on the assumption that the applicant does not suffer from any diagnosable psychological disorder. Dr Walsh in his report has recognised that major mental illness is one of the factors that is associated with violence.[21] It does not appear that when the applicant was interviewed by Dr Walsh he informed Dr Walsh about his treatment from Saime Dilek. Certainly, the report of Dr Walsh does not refer to a report dated 19 June 2015 of Saime Dilek, consultant psychologist, who reported that the applicant met the criteria of major depression, anxiety and stress in terms of DSM-IV.[22] In that report Saime Dilek has referred to the fact that a number of diagnostic instruments were administered to the applicant. I cannot be satisfied that the applicant has a low risk of violence having regard to this recent report of Saime Dilek which indicates that the applicant has a major mental illness. I have placed some weight on the opinion of Dr Walsh that major mental illness is a factor that is associated with violence. This is although Saime Dilek stated in his report that he strongly believed that the applicant “is not a threat to the community or to his children”.[23]
[21] Ibid at p. 11.
[22] Exhibit A, G-Documents, G33 at p. 183.
[23] Exhibit A, G-Documents, G33 at p. 183.
One matter of concern is whether there is any indication that the applicant has undertaken rehabilitation to address his conduct. Whilst he undertook an anger management course whilst completing his sentence of imprisonment he has not undertaken the domestic violence course that was one of the conditions that was imposed by the Camden Local Court on 14 April 2010.[24] It is a matter of concern that the applicant did not comply with this condition. In giving evidence the applicant asserted that he was excused by the correction authority from undertaking this course because of his work commitments but no such documentary evidence was placed before the Tribunal. If the applicant had undertaken the domestic violence course he may not be in the position that he now finds himself.
[24] Exhibit A, G-Documents, G15 at pp. 95-96.
In his report Dr Walsh mentioned that the applicant describes his ex-wife as being the physical aggressor in their arguments and fights over his fidelity and that he describes her as hitting him to which he did not retaliate and her smashing things in the house in anger with him trying to restrain her.[25] Dr Walsh has quite properly pointed out that the applicant’s account of events does not fit with the police statement of facts or the Magistrate’s sentencing remarks. In my view this account of events that the applicant provided to Dr Walsh indicates that the applicant is not remorseful and has not fully accepted responsibility for his actions.
[25] Exhibit E, Medical Report of Dr F J Walsh dated 4 July 2016 at p. 7.
I have borne in mind what the sentencing Magistrate said in relation to the applicant in response to a submission that “it was not in his character to do such things”.[26] The Magistrate responded by stating: “Clearly it is in his character to do such things”.[27] I respectfully agree with that assessment after reading about the similar circumstances of both offences of assault occasioning bodily harm on the same victim.
[26] Exhibit A, G-Documents, G13 at p. p.90.
[27] Ibid.
I consider that the consideration of protecting the Australian community from criminal or other serious conduct strongly favours the cancellation of the applicant’s visa. There is no cogent evidence that there is little or no risk of re-offending. I am concerned that there is no explanation why the applicant has committed these violent offences.
Primary consideration 2 – The best interests of minor children in Australia
The applicant has two children under the age of 18 years in Australia.[28] The applicant has had little contact with his children after his incarceration. The applicant moved to central Queensland after his release from prison and his children live in another state. The children visited him for a week in April 2016. The applicant stated that he is in regular phone contact with his children. The applicant accepted the respondent’s contention that regular phone contact could be maintained even if the applicant’s visa was cancelled.
[28] Exhibit A, G-Documents, G12 at p. p.81.
One matter of concern to me is the denial of the applicant that his children have seen him assault their mother. I do not accept that his assertions are plausible in view of the statement of his ex-wife who stated that the attacks occurred when the children were at home. Instead, I place reliance on the remarks of the sentencing Magistrate who in 2013 referred to the “appalling scenes those kids have seen”.[29] The Direction requires me to consider whether that conduct has had a negative impact on the child.[30] One matter of concern to me is that his current partner has young children.
[29] Exhibit A, G-Documents, G12 at p. 90.
[30] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [9.2(4)(c)].
I consider that the primary consideration which requires me to consider the best interests of minor children in Australia favours the cancellation of the applicant’s visa.
Primary Consideration 3 - Expectations of the Australian community
The Australian community expects non-citizens to obey Australian laws.[31] The violent offences committed by the applicant weigh heavily against the applicant. I find that the expectations of the Australian community weigh strongly in favour of the cancellation of the applicant’s visa. Any risk that the applicant would repeat his violent conduct is unacceptable in terms of principle four of the preamble to the Direction.
[31] Ibid at [9.3(1)].
OTHER CONSIDERATIONS
There are no relevant international non-refoulement obligations.
Paragraph 14.5 of the Direction requires the Tribunal to consider the impediments that the applicant will face if he was removed from Australia to New Zealand in establishing himself and maintaining basic living standards. If the applicant were returned to New Zealand he would go to a country which provides social services support to him as a citizen. No cultural or other impediments, such as age or health, prevent him from resuming his residence in New Zealand.
I have considered the consideration of the “strength, nature and duration of ties” in Australia.[32] The applicant now has a new partner who gave evidence that she has known the applicant for three years and they have had a positive relationship over this period. She stated that the applicant has a good rapport with her children. She has been highly distressed as a result of the applicant being placed in detention. She also gave evidence that she is unable to leave Cairns.
[32] Direction No 65 – Migration Act 1958 – Direction under section 499 – Visa refusal and cancellation under s 501 and revocation of a mandatory cancellation of a visa under s 501CA at [10.2(1)].
The current partner and her children would certainly suffer from the loss of support that is provided by the applicant who pays for the health insurance of her family. The current partner stated that her children have a good relationship with the applicant who is “like a father to them”. My consideration of the “strength, nature and duration of ties” consideration favours a decision not to cancel the applicant’s visa as his partner and her children as well as his children may also lose support. However, the first offences occurred in 2010 after the applicant had been a permanent resident for only two years.
There is evidence before me that there would be an impact on Australian business interests which would support a decision not to cancel of the applicant’s visa. Mr Fish from Suneng in his reference has stated that the applicant is an invaluable member of the project construction team. The applicant is highly respected in the workplace.
The applicant has not placed any evidence before me about the “impact on victims” consideration in paragraph 14.4 of the Direction. There is, however, evidence from the ex-wife of the applicant who has been a victim of the assaults. She has referred to her “near-death experiences” and has stated that the attacks upon her “have left me fearful for my life and occurred at times when our children were home”.[33] This consideration would favour in my opinion the cancellation of the visa.
[33] Victim Impact Statement of Ms N S Botha dated 12 July 2016.
CONCLUSION
I am not satisfied that the applicant passes the character test as defined by s 501(6) of the Act. I have taken into account the Direction and all the evidence before me. In my opinion the three primary considerations: the protection of the Australian community from criminal or other serious conduct, the interests of minor children in Australia and the expectations of the Australian community support the cancellation of the applicant’s visa. The considerations which support the decision to cancel the applicant’s visa are not outweighed by the considerations which favour revocation of that decision. Therefore, I am satisfied that the applicant’s visa should be cancelled.
DECISION
I affirm the decision under review.
I certify that the preceding 39 (thirty -nine) paragraphs are a true copy of the reasons for the decision herein of Deputy President Dr P McDermott RFD ..............................[sgd]..........................................
Associate
Dated 18 August 2016
Date(s) of hearing 19 July 2016 Counsel for the Applicant Mr M White Solicitors for the Applicant Ferguson Cannon Solicitors for the Respondent Ms P Richards, Clayton Utz
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